In re T.H.
Filed 11/5/13
In re T.H. CA2/7
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
In re T.H., et al., Persons
Coming Under the Juvenile Court Law.
B247304
(Los Angeles
County
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
W.H.,
Defendant and Appellant.
Super. Ct.
No. CK80737)
APPEAL from a judgment of the Superior Court of
County, Anthony Trendacosta, Juvenile Court Referee. Affirmed.
Law Office of John M. Kennedy and
John M. Kennedy, under appointment by the Court of Appeal, for Defendant and
Appellant.
John Krattli, County Counsel, James
M. Owens, Assistant County Counsel, and Jacklyn K. Louie, Principal Deputy
County Counsel for Plaintiff and Respondent.
_______________________
W.H. appeals the juvenile
court’s termination of his parental rights to his daughters T.H., Ciara H., and
C.H., on the ground that the children are not adoptable. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
T.H., Ciara H., and C.H., all under the age of eight
years old in January 2010, lived with their mother, her boyfriend Eric T., and
the children’s half-sibling.
name="_ftnref1" title="">[1] The Los Angeles County
(DCFS) began to investigate the family after receiving a report that the
half-sibling had suffered a severe burn but had not received medical
treatment. DCFS found the child, 18 months
old, with burns on her chin, her entire chest, and her stomach; her skin was
peeling off and some of the burned areas were bleeding and swelling. She was admitted to the hospital with
infected second- and third-degree burns.
In the course of the investigation, the children’s
mother reported that her boyfriend committed domestic violence and threatened
to kill her, but that she allowed him to live with her because he helped pay
expenses and provided child care. The mother
told DCFS that Eric T. had hit one of the children in the past. T.H., Ciara H., and C.H. told DCFS that Eric
T. hit the children. The oldest child,
T.H., reported to DCFS that when Eric T. got mad, he and the mother would throw
items at each other. She had seen Eric
T. hit C.H.; she also saw mother throw crayons and a knife at him, and hit him
with a broom on the head. T.H. reported
that her mother hit her with a belt, and that Eric T. had hit Ciara H. with a
belt. The children had no visible fresh
marks but displayed old injuries that had healed.
DCFS took the children into
friendly and cheerful. Middle sister Ciara
H. also spoke freely, was potty trained and ready to go to school, and liked
books. The youngest sister, C.H.,
imitated her older sisters, was cheerful, and liked picture books. The children were observed to hit each
other.
DCFS filed a dependency petition alleging that T.H.,
Ciara H., and C.H. fell within juvenile court jurisdiction under Welfare and
Institutions Code
name="_ftnref2" title="">[2] section 300, subdivisions
(a), (b), (g), and (j). The children
were placed with a nonrelative caregiver.
The caregiver reported that T.H. was very emotional, including having
sleeping difficulties and crying often.
The caregiver believed that T.H. needed counseling; DCFS believed that
the younger children should be assessed for counseling needs as well. The children adjusted to their foster home,
growing increasingly respectful of their foster mother.
A Multi-Disciplinary Assessment Team assessed the
family in March 2010. All three children
bore scars on their foreheads and faces; the older two children reported that
these scars came from having objects thrown at them by their mother and Eric
T. All presented as anxious and worried,
with a high activity level and limited focus.
The three children were disinhibited to varying degrees and tended to
react to their feelings or act on impulse without ability to control or edit their
responses. They were needy,
attention-seeking, and indiscriminately affectionate; their presentation was
consistent with being deprived of attention, neglected, and abused physically
and emotionally. Each reported violent
dreams. The three children were generally
in good physical health.
T.H. was aggressive toward her siblings, did not
listen when instructed to stop inappropriate behaviors, and was unable to
self-soothe. She “obsessively expresse[d]
her worries, fears, anxiety & preoccupation with sex, safety & domestic
violence issues.†She disclosed
information about sexual acts that she saw performed by her mother and Eric
T. She reported being sexually
abused. T.H. had achieved her childhood
milestones, and her gross and fine motor skills were age-appropriate. Her speech skills were very well-developed,
and she had an extensive vocabulary. She
was performing at an average level in school, but had difficulty concentrating
and remaining on task; her teacher believed she was capable of higher
achievement. T.H. lacked social skills
and was described as a loner at school.
Ciara H. often broke down and cried uncontrollably;
she could not be soothed. She described
sexual abuse between her mother and Eric T.
She seemed to be obsessed with domestic violence. Like her older sister, Ciara H. was very
verbal with an extensive vocabulary. She
was bright and capable of academic achievement, but had not been regularly
exposed to educational materials. At the
age of five, she was learning to count, identify colors, sing her alphabet, and
use writing tools; she did not know how to write her name. Her foster parent was reading with her, using
colors and shapes, and working to bring her up to age-appropriate levels.
Three year-old C.H. was the most aggressive child and was
often angry. She expected immediate
response to her needs, and was prone to running away from caregivers in busy
locations. The caregivers were working
to establish boundaries with her and to model appropriate social interactive
behaviors. Her gross motor skills were
well-developed, and her fine motor skills age-appropriate. Like her sisters, she was verbal and
communicated accurately and in great detail.
She was openly emotional and cried when talking about domestic abuse of
her mother. C.H. wanted to go to school
and already knew how to hold her pencil appropriately. She could identify some colors and draw some
shapes but could not yet write her name.
She had recently begun preschool and was very happy to be going to
school and making friends.
As of March 2010, the children’s placement was
functioning well. The caregivers were
cooperative and attuned to the needs of the children. The children were reported to get along well
with all family members. The caregivers
were working with the children’s therapist to understand them and to provide
appropriate care and boundaries. Their
aggression had decreased dramatically and the children were making significant
progress.
In early April, however, the foster mother found T.H.
and C.H. in bed together without clothes:
they reported that they were “kissing and having sex,†as they had seen
their mother do. The children’s
therapist subsequently recommended that DCFS consider whether to split the
children up between placements because she feared that the foster parents,
though highly committed to the children’s safety and emotional healing, would
be overwhelmed due to the children’s significant needs. The caregivers were staying up all night long
to maintain round-the-clock supervision and to prevent further inappropriate
sexual activity between the children. Later
that month, the children were moved to a new placement.
In June 2010, the juvenile court declared the children
to be dependent children of the court under section 300, subdivisions (a) and
(b).
As of July 2010, Ciara H. had begun taking a
psychotropic medication; she responded well, and her impulsivity had
decreased. The children each received
short-term, one-to-one behavioral interventions to redirect some negative
behaviors they displayed. The children
continued to be defiant and physically aggressive, and T.H. continued to act out
sexually, which jeopardized her placement.
The children continued to participate in therapy to address aggression,
profanity with peers, and emotional dysregulation.
By December 2010, T.H. had been separated from her
sisters and moved through several different placements. T.H. was described as forthcoming in therapy,
and she was working on abandonment issues, peer pressure, parentification, and
lying. She had exhibited sexualized
behaviors and had inappropriate conversations with younger children. As of December 2010, T.H. had been re-placed
with a former foster parent because the foster parent believed that she could
make a difference in T.H.’s life. T.H.
appeared to be bonded with this caregiver and was happy to be returned to her. T.H. was taking psychotropic medications in
addition to undergoing therapy.
Ciara H. and C.H. were also bonded with their foster
parents, who had volunteered for permanent placement should reunification
efforts fail. These two children were
reported to be thriving and to have made “incredible improvement with their
behaviors.†Ciara H. was very excited
about attending kindergarten and was an eager learner. She attended therapy regularly and
participated actively. Ciara H.’s prognosis
was good. She was excited to participate
in therapy, maintained a cooperative attitude, and was demonstrating progress
toward the goals of her treatment. Being
in a stable and nurturing home environment had helped to stabilize her mood and
behavior. Ciara H. was a “healthy and
happy child,†developing appropriately.
C.H. was also attached to her caregivers and called
them “mommy†and “daddy.†A “bright
little girl,†C.H. loved to sing, enjoyed being outdoors, and acted as a
leader. C.H. also had a good
prognosis: she actively participated in
therapy and was cooperative some of the time. At other times, she wanted to control the
therapy. C.H. was learning to adhere to
limitations and had made some improvement with behavior issues. At the age of four, she was still throwing
temper tantrums and screamed loudly when she did not get her way. C.H. was taking psychotropic medications in
addition to her therapy.
As of April 2011, the children’s placements were
unchanged and they were reported to be developing appropriately. T.H. was doing well in school and in therapy,
and she was not exhibiting any behavioral issues. C.H. had overcome some earlier speech
limitations and her speech and language skills were now within the expected
range for her age.
In April 2011, T.H. was moved to a new placement due
to conflict with another child placed in the home. DCFS began efforts in May 2011 to obtain Wraparound
services for T.H., as well as to obtain a D-rate for her (a special funding
category for children with special mental health needs). The following month, the younger children
were moved to another placement closer to their mother.
As of July 2011, T.H. was struggling academically due
to the school changes that accompanied her placement changes. She was set to begin Wraparound services and
was concluding her therapy with her former provider as a result. The former therapist described T.H. as having
made tremendous progress; she assessed T.H.’s prognosis as good. Ciara H. and C.H. remained placed together;
they were fighting regularly, and Ciara H. antagonized C.H. Ciara H. reported that she wanted C.H.’s
attention, but C.H ignored her, and she felt that her sister did not love
her. Ciara H. wanted C.H. removed from
the home. C.H. reported hearing voices
in the night telling her to come eat with them, and she was experiencing
sleeping difficulty unless she ate in the middle of the night.
DCFS performed adoption assessments for the children
in July 2011. T.H.’s former caregiver
was willing to care for her again, and told DCFS that she had not wanted T.H.
removed from her care. She said that she
loved T.H., that she would accept her at any time, and that she would care for
her as long as necessary; but that she (the caregiver) was not interested in
committing to a permanent plan because of her age and her many grandchildren. The caregiver for the younger girls expressed
a preference for legal guardianship over adoption in the hope that someday the
children’s mother would be able to reunite with them; if, however, adoption was
selected as the permanent plan, she wanted to be considered as the adoptive
parent. DCFS believed all three children
were likely to be adopted.
The following month, social workers documented that C.H.
was acting out sexually with dolls and with her older sister Ciara H. after
witnessing T.H. engaging in similar behavior.
The children’s therapist was working with the children and the foster
parent to address these behaviors. DCFS
began working on obtaining more intensive services such as Wraparound services
for these two children.
In September 2011, family reunification services were
terminated and a permanent plan hearing was set for January 2012. In late December 2011, C.H. was removed from
her placement because of physical abuse between her and Ciara H. She was placed in February 2012 in the home
of R.W., a D-rate certified caregiver. By
the following month R.W. had been identified as a prospective adoptive parent
for C.H. and also for T.H., who began weekend visits with R.W. Ciara H.’s caregiver was interested in
adopting her. All three children were
approved for D-rates and were receiving Wraparound services.
As of May 2012, both T.H. and C.H. were placed with
prospective adoptive parent R.W. T.H.,
diagnosed with oppositional defiant disorder, no longer needed psychotropic
medication. R.W. reported that T.H. was
often defiant, and that she and the Wraparound team were addressing T.H.’s
behavioral issues. C.H. was reported to
be diagnosed with attention deficit hyperactivity disorder and reactive
attachment disorder. She was taking
medication and receiving Wraparound services.
C.H. continued to be defiant at home and at school, and these issues
were being addressed by the caregiver and the Wraparound team. R.W. reported that since C.H.’s medication
regimen had been changed, C.H. was much calmer and did not act out as much. R.W. was committed to adopting the two
children; she acknowledged that they were “a hand[]ful[]†but stated, “[W]e
will work out the problems as a family.â€
Ciara H. remained placed with her prospective adoptive
parent, and she had adjusted well to the home.
Ciara H., diagnosed with generalized anxiety disorder and reactive
attachment disorder, remained on her medication. Her caregiver reported that she sometimes
acted out when she did not get her way, and when this occurred, she was placed
in time out. The prospective adoptive
parent was committed to Ciara H. and said that together they were a loving
family. Ciara H.’s prospective adoptive
parent had undergone D-rate training.
The children remained in their placements as of August
2012. Each child had adjusted well to her
placement, and each reported being happy in her home. T.H. told DCFS she wanted R.W. to adopt her. The Wraparound services provider observed
that the children had made significant progress in the past 10 months. R.W. could see a difference in T.H.’s
behavior at school and at home. C.H. had
made behavioral progress at home, although she still had difficulty following
instructions at school. Ciara H. was
having tantrums and crying spells, as well as minor difficulties at
school. The service provider reported
that both prospective adoptive parents were very involved in the children’s activities
at home and in school and were proactive about stabilizing the children’s
economic and living arrangements. The
prospective adoptive parents provided monthly sibling visits. Home studies were delayed for both
prospective adoptive parents; in one case this was due to the caregiver
experiencing a medical problem, and in the other because a DCFS referral had
been received. Both issues were to be
addressed in the home studies.
As of December 2012, the children remained in their
placements and the prospective adoptive parents remained committed to the
children. The DCFS referral regarding
one prospective adoptive parent had been determined to be unfounded, but the
investigation had delayed the completion of the home study.
On December 18, 2012, the
juvenile court found that T.H., Ciara H., and C.H. were both generally and
specifically adoptable. The court terminated
parental rights and freed the children for adoption. The children’s father, W.H., appeals.
DISCUSSION
“At a hearing under section 366.26, the court must select and
implement a permanent plan for a dependent child. Where there is no probability of
reunification with a parent, adoption is the preferred permanent plan.†(In re
K.P. (2012) 203 Cal.App.4th 614, 620.) To implement adoption as the permanent plan,
the juvenile court must find, by clear and convincing evidence, that the minor
is likely to be adopted within a reasonable time if parental rights are
terminated. (§ 366.26, subd. (c)(1);
In re Jerome D. (2000) 84 Cal.App.4th
1200, 1204.) “The issue of adoptability
posed in a section 366.26 hearing focuses on the minor, e.g., whether
the minor’s age, physical condition, and emotional state make it difficult to
find a person willing to adopt the minor.
[Citations.]†(In re Sarah M.
(1994) 22 Cal.App.4th 1642, 1649.)
Review of the juvenile court’s finding of adoptability is limited to
determining whether it is supported by substantial evidence. (In re
Carl R. (2005) 128 Cal.App.4th 1051, 1061.)
W.H. argues
that the children were neither generally nor specifically adoptable, but we
need not consider the general adoptability of the children because substantial
evidence supports the juvenile court’s conclusion that they were specifically
adoptable. All three children were
generally healthy and intelligent, were developing appropriately, and were cheerful,
friendly, and trusting. They had been
exposed to great violence, fear, abuse and neglect while in their mother’s
care, and they experienced emotional and behavioral problems as a result. Although they had multiple placements before
being placed with their prospective adoptive parents, they were fortunate in
having caregivers who had gone to great lengths in helping the children recover
from the trauma they experienced. In
stable placements with regular therapeutic care the children made great progress
in healing, and they were active participants in their therapy and
recovery.
At the time
of the adoptability determination, each of the three children was living with
her prospective adoptive parent, and had been placed with her for substantial periods
of time. T.H. had been living with R.W.
for nine months, and C.H. had been living with R.W. for 10 months. Ciara H. had been placed with her prospective
adoptive parent for more than one and one-half years. The prospective adoptive parents were fully
aware of the challenges and behavioral problems the children faced, and they
were working with Wraparound service providers to address them. Each of the children, moreover, had made
substantial progress in addressing her specific constellation of emotional and
behavioral challenges while in her placement.
Both caregivers were fully committed to permanently caring for the
children, and they ensured that the girls received all the therapeutic,
medical, and academic services that they needed. The girls were happy in their homes.
This evidence is sufficient for the
juvenile court to have concluded, as it did, that based on their age, physical
condition, and emotional state, as well as the existence of prospective
adoptive parents, it was likely that T.H., Ciara H., and C.H. would be
adopted. (§ 366.26, subd. (c)(1); In
re Sarah M., supra, 22 Cal.App.4th at p. 1649.) “Usually, the fact that a prospective
adoptive parent has expressed interest in adopting the minor is evidence that
the minor’s age, physical condition, mental state, and other matters relating
to the child are not likely to dissuade individuals from adopting the
minor. In other words, a prospective
adoptive parent’s willingness to adopt generally indicates the minor is likely
to be adopted within a reasonable time either by the prospective adoptive
parent or by some other family.â€
(In re Sarah M., supra, at pp. 1649-1650.)
W.H.
contends that the fact that the home studies had not been completed and
approved at the time of the permanent plan hearing constitutes a legal
impediment to adoption.
name="_ftnref3" title="">
The law
is to the contrary. “[W]here there is no
evidence of any specific legal impediments to completing the adoption process,
parental rights may be terminated to a specifically adoptable child regardless
of whether a home study has been completed.â€
(In re Brandon T. (2008) 164
Cal.App.4th 1400, 1410.)
In
re B.D. (2008) 159 Cal.App.4th 1218, on
which W.H. relies to support his argument that the absence of a completed home
study is a legal impediment to adoption, does not stand for the principle that
a child cannot be determined to be adoptable until a home study is
complete. In In re B.D., the evidence to support the adoptability finding came
from a database in which a certain number of parents were matched with the
children by their characteristics, and the social services agency contended
that the number of families interested in adopting the children individually
and in groups supported a finding that the children were generally and specifically
adoptable. (Id. at pp. 1232-1233.) The
agency had identified one family that had expressed an interest in adopting a
sibling group, but because that family did not have an approved adoptive home
study, the social worker could not provide specific information to the family
about the children and could only speak about them and their behavioral issues
in hypothetical terms. (
the prospective home, and accordingly, there had been no social history taken
of the adults in the home, no screening for criminal records and prior
referrals for child abuse and neglect, and no assessment of the family’s
capacity to meet the minor’s needs. (
information about the children to the prospective adoptive family, facilitate
contact between the children and the prospective adoptive family, or place the
children in a preadoptive placement with the prospective adoptive family. (Id.
at pp. 1233-1234.) Under such circumstances,
the court found that “the absence of a foster care license or a preliminary
assessment constitutes a legal impediment to adoption.†(Id.
at p. 1233.) Because of this
obstacle, and because in In re B.D.
the children had no previous relationship with a family interested in adopting
them, the evidence did not support a determination that they were adoptable. (Id.
at p. 1234.)
While both
here and in In re B.D.,
had been completed, in all other respects the cases are different. In In
re B.D., the prospective adoptive parents had no foster care license and no
preliminary assessment had been performed, and that was an obstacle to adoption. Here, in contrast, the girls had been placed with
their prospective adoptive parents for many months. Unlike In
re B.D., the prospective adoptive parents here were not expressing an
interest in adopting the children based on hypotheticals and vague descriptions
of the children by a social worker, nor were they forming a desire to adopt in
the absence of contact with the children.
They were already living with and raising the girls, obtaining services
for them, providing stable home environments for them, and working with service
providers to help the children heal from their past trauma. While caring for the children they had become
committed to becoming permanent caregivers for T.H., Ciara H., and C.H. Accordingly, by its own terms,
studies have not been completed, he has established no error in the court’s
determination that the children were adoptable.
DISPOSITION
The order is affirmed.
ZELON,
J.
We
concur:
PERLUSS, P. J. WOODS,
J.
name="_ftn1" title="">[1]
half-sibling is not a subject of this appeal.
name="_ftn2" title="">[2] All further statutory references are to the Penal Code.
