In re Hailey S.

Filed 10/2/07 In re Hailey S. CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Butte)

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Joshua S. and Teresa S., parents of the minors Hailey and Hunter, each appeal from orders of the juvenile court terminating their parental rights and selecting a permanent plan of adoption for the minors. (Welf. & Inst. Code, 366.26, 395)^[1] Parents contend there was not clear and convincing evidence the children were adoptable, the court erred in failing to find the parents established an exception to adoption, and the court should have continued the matter for 180 days to further assess adoption as a permanent plan. Father also contends the trial court abused its discretion in denying his motion to reopen. We affirm.

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

On September 23, 2005, then 16-month old Hailey and 4-year-old Hunter were found wandering in a neighborhood park without supervision. A concerned citizen reported to the police that the children had been unattended for over 45 minutes. Responding officers found the children shoeless and filthy. Hunter led the officers back to his home, where his father was sleeping. After several attempts, officers were able to rouse the father. The house was cluttered and dirty. Next to the father on the bed was a pornographic magazine entitled, Family Love, alongside childrens toys and blankets. Father was on felony probation. Father admitted to the officers he had smoked methamphetamine within the last two days. He also informed officers he had just been awarded custody of the children the previous day. Father was arrested for child endangerment and the children were detained.

Prior to leaving the home, the mother arrived. She begged the officers not to take the children. She claimed the court had ordered the children returned to her that evening. Since Butte County Childrens Services (BCCS) had received a referral regarding mothers alleged drug use when the children were in her care, the social worker decided the children would be taken into custody pending further investigation. Both parents had ongoing drug abuse problems and needed treatment. Accordingly, at the September 28, 2005, detention hearing, the children were ordered detained. The following day, they were released to their mothers custody. On November 14, 2005, the court sustained a jurisdictional finding and set the matter for a dispositional hearing. Father was arrested the following day for possession of drug paraphernalia, and warrants issued from a failure to appear.

From September 29 to October 28, 2005, mother and children lived with her sister-in-law, Christie S. They were evicted from Christies home and moved between various motel rooms and the homes of friends. There were reports mother would sleep all day and leave the children to be cared for by whomever they were living with at the time.

Apparently, on or about November 30, 2005, mother left the children with their paternal grandparents, Lesta S. and James S. As of the December 1, 2005, disposition report, neither parent had maintained consistent communication with BCCS, nor made efforts to engage in services. Father had not contacted BCCS to schedule visitation.

At the December 5, 2005, dispositional hearing, the children were again ordered detained and were placed with their paternal grandparents. On January 30, 2006, the parents waived reunification services. Father had been sentenced to four years in prison.

The social worker had a number of concerns regarding the childrens placement with the grandparents. These concerns related to Lestas inability to control Hunter; poor judgment by the grandmother in different areas; poor boundaries with the adult children in her life. However, these concerns had never risen to the level of the social worker wanting or needing to detain the children.

Both grandparents had medical disabilities which required medication, including up to one and one-half ounces of medical marijuana per week. Grandfather James is 100 percent disabled and completely reliant upon Lesta for his daily needs.

There were questions about Lestas ability effectively to control Hunters behavior, particularly when he became aggressive.

There were also questions about Lestas judgment. On one occasion, when it was hot outside, she had left Hunter in the car with the air conditioning running.

In July 2006, Lesta was referred for a variety of parenting classes and therapy with Hunter. She was learning appropriate parenting skills, was active in the classes and the service providers were highly impressed with the participation of both grandparents. Hunters behavior was also improving.

The social worker acknowledged the children had a good relationship with the grandparents. They have known the grandparents all of their lives and are bonded to them.

An adoption assessment was conducted by the Department of Social Services (DSS) on July 11, 2006. Hunter was reported to be generally healthy, despite a history of ear infections which had led to some degree of hearing loss. His grandmother reported she thought he had a genetic blood clotting disorder, von Willebrand disease (VWD), but he had not been diagnosed with the condition. Hunter was developmentally on track. His mental and emotional status were fragile. He exhibited aggressive behavior and temper tantrums in the presence of the social worker. Hailey was also reported to be healthy, despite also having a history of ear infections. Grandmother also suspected she might have VWD, but this had not been diagnosed and she was not symptomatic. Hailey was developmentally on track. Her emotional and mental status appeared healthy. The children had not had any contact with mother since they were detained in November 2005, and had last visited their father in jail on January 26, 2006.

The adoption worker noted some areas of concern with the grandparents as prospective adoptive parents. She opined Hunter and Hailey were difficult to place children because they were members of a sibling group and required support services to address their special needs. Nonetheless, the adoption social worker determined Hunter and Hailey were generally adoptable.

Karen Murrish, the director of Hunter and Haileys nursery school, reported in an August 23, 2006, letter that when Hunter started at the school, he was angry, anxious and aggressive. His behavior and attitude had improved over time. He is now happy and cooperative and his self-esteem is growing. She reported he is using his communication skills and enjoying the company of his playmates and friends. She felt his improvement had been very impressive. Hailey did not exhibit the same anger problems as Hunter had. Rather, she is an easy-going, delightful child. She is happy to go with the flow and is easily satisfied. . . . She is a pleasure in every way.

An addendum adoption assessment was completed on October 12, 2006. Without benefit of an application for adoption from grandparents or a formal home study, in this report, DSS suggested the grandparents were not a suitable permanent placement for the children. Specifically, they noted previously raised concerns about the childrens safety and emotional well-being, and assertions of poor judgment by the grandparents. Nonetheless, it continued to be the adoption social workers assessment that the children were generally adoptable.

The adoption social worker also testified at the section 366.26 hearing that the children were adoptable due to their young age and generally good health.

Lesta and James have been willing to adopt the children from early in the proceedings. They expressed this desire to the adoption worker. They had not, as of the date of the section 366.26 hearing, started the application process to adopt the children.

Following the close of evidence, the matter was continued for a week so the court could research the applicability of the relative caregiver adoption exception in section 366.26, subdivision (c)(1)(D).

Following the continuance, father sought to reopen his case to introduce testimony from Hunters therapist. In support of this motion, father lodged a letter from the therapist with the court. The letter stated that moving any child from one foster placement to another almost always increases the likelihood of the child developing attachment difficulties. Disrupted attachments in early childhood can negatively affect an individuals ability to trust and form relationships throughout life. In view of these negative consequences, I generally recommend that no child be moved from one placement to another, unless the circumstances in the current placement present a serious threat to the welfare and safety of the child. [] Please understand that I have no direct knowledge of the circumstances surrounding Hunter [S.s] life in [the grandparents] home, and therefore, cannot make any recommendation regarding placement of this individual child.

The court reviewed the letter and denied fathers motion to reopen. The court found, It does not appear . . . that the letter contains any information which would be probative at this time. We dont know what the person would say. And the testimony that the Court heard so far indicates to the Court that moving the children at this time from the home of the [grandparents] would be disruptive to them, not in their best interest. Not to say that eventually moving them might be the plan, but the testimony is already before the Court on that issue. And therefore, I think the testimony of this therapist would be cumulative to what the Court has already heard.

The court then went on to find clear and convincing evidence that the children were adoptable. The court found it unlikely the children would be returned to the parents and that adoption was the permanent plan in the childrens best interests. Unswayed by the negative ruminations about them in the addendum adoption assessment, the court noted the grandparents were entitled to preference as potential adopters and suggested that was a goal that should be worked towards. The court found moving the children at this time would be detrimental to them. The court found the section 366.26, subdivision (c)(1)(D) exception to adoption did not apply. Specifically, the court found there were not exceptional circumstances and that it would not be detrimental in the long run for the children to be adopted.

DISCUSSION

Under subdivision (b) of section 366.26, the juvenile court may do one of four things at the time of the section 366.26 hearing: (1) terminate parental rights and free the child for adoption, (2) identify adoption as the goal and order the Department to try, for no more than 180 days, to locate an appropriate adoptive home, (3) appoint a legal guardian, or
(4) order that the child be placed in long-term foster care.

( 366.26, subd. (b).) In order to select adoption as the permanent placement plan, the juvenile court must make the findings required by subdivision (c)(1). Under subdivision (c)(1), if the court finds by clear and convincing evidence that the child is likely to be adopted, it must terminate parental rights and order the child freed for adoption unless it finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the five listed circumstances. The fact that the child is not yet placed with a family prepared to adopt the child, shall not constitute a basis for the court to conclude that it is not likely the child will be adopted. ( 366.26, subd. (c)(1).) (In re Gabriel G. (2005) 134 Cal.App.4th 1428, 1433-1434.)

I

Substantial Evidence Supports the

Finding that the Children are Likely to be Adopted

The parents contend there was not clear and convincing evidence the children were adoptable. We disagree.

To terminate parental rights under section 366.26, the juvenile court must find by clear and convincing evidence that it is likely the child will be adopted. (In re Asia L. (2003) 107 Cal.App.4th 498, 509; 366.26, subd. (c)(1).) The issue of adoptability focuses on the minor, e.g., whether the minors age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649, italics in original.) Suitability of the prospective adoptive family, if any, is not relevant to the issue of adoptability. (In re Scott M. (1993) 13 Cal.App.4th 839, 844.) Although the availability of a particular prospective adoptive family is not essential for a finding of adoptability, it is relevant if personal characteristics of the child ordinarily would make it difficult to find a family willing to adopt the child. (In re Sarah M., supra, 22 Cal.App.4th at p. 1650; In re Scott M., supra, 13 Cal.App.4th at p. 844; Fam. Code, 8600 et seq.)

On appeal, we review the factual basis for the juvenile courts finding of adoptability and termination of parental rights for substantial evidence. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) Therefore, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576; In re Josue G. (2003) 106 Cal.App.4th 725, 732.) In selecting a permanent plan for an adoptable child, there is a strong preference for adoption over nonpermanent forms of placement. [Citation.] (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)

Mother contends the children were adoptable solely because their paternal grandparents wanted to adopted them; and since the adoption assessment, she incorrectly perceived, found the grandparents unsuitable to adopt, mother concludes the children are not adoptable.

Father contends the children were difficult to place because of their membership in a sibling group, Hunters mental and emotional fragility, their special health needs and the lack of identified prospective adoptive parents.

We are not persuaded that the childrens challenges render them unadoptable.

At a section 366.26 hearing, the focus is on the qualities of the minor. [I]t is not necessary that the minor already be in a potential adoptive home or that there be a proposed adoptive parent waiting in the wings. [Citations.] (In re Sarah M., supra, 22 Cal.App.4th at p. 1649.) Rather what is required is clear and convincing evidence of the likelihood that adoption will be realized within a reasonable time. (In re Amelia S.  (1991) 229 Cal.App.3d 1060, 1065, original italics.) [G]eneral suitability to adopt is a subjective matter which does not constitute a legal impediment to adoption. [Citation.] Accordingly, questions about the suitability of a prospective adoptive family are irrelevant to the issue whether [a minor is] likely to be adopted. [Citation.] Such questions are reserved for the subsequent adoption proceeding, not the section 366.26 hearing whether to terminate parental rights. [Citation.] (In re T.S. (2003) 113 Cal.App.4th 1323, 1329.)

We disagree with mothers construction of the record. The children are not adoptable solely because their paternal grandparents want to adopt them. Rather, as detailed more fully below, the physical, emotional and developmental status of these children, and their young ages, makes them good adoptive candidates. These factors were the basis for the finding they were adoptable, not the grandparents interest in adopting them.

Here, the minors were young and developmentally on track. While there were some health concerns related to chronic ear infections and the possibility that the children might have a genetic blood disease, VWD, there is no evidence in this record that those health concerns would prevent the children from being adopted. In fact, chronic ear infections are common in children under five years old and neither child has actually been diagnosed with VWD. Accordingly, these are not likely to be significant impediments to the children being adopted.

There were some behavioral problems, primarily with Hunter, consisting of temper tantrums and aggressively acting out. However, the evidence from Hunters teacher and the social worker demonstrates that Hunters behavior was improving substantially with counseling. Hunter is described as a happy and cooperative child and Hailey is an easy-going, delightful child . . . [who] . . . is a pleasure in every way. The prospect that a minor may have some continuing behavioral problems does not foreclose a finding of adoptability as to the minor. (In re Jennilee T. (1992) 3 Cal.App.4th 212, 224-225.) None of the behavioral problems in this case are so severe as to make the courts finding of adoptability unsupported. (In re Lukas B., supra, 79 Cal.App.4th at p. 1154.) Although there are some problems which might make placement difficult, there is sufficient evidence to support the finding that adoption is likely. (In re Gabriel G. (2005) 134 Cal.App.4th 1428, 1438.) Here, there was clear and convincing evidence that the children would be adopted within a reasonable time, despite the fact that the paternal grandparents had not been approved as an adoptive home at the time of the permanency hearing. (See In re Gregory A. (2005) 126 Cal.App.4th 1554, 1563.)

II

There Was No Error in Not Finding

an Exception to Adoptability

The parents next contend the trial court erred in failing to find an exception to the childrens adoptability based on section 366.26, subdivision (c)(1)(D).^[2] This exception provides that if a child is living with a relative who is unwilling or unable to adopt because of exceptional circumstances, but is otherwise capable of providing the child with a permanent and stable home and removal of the child from the custody of the relative would be detrimental to the childs emotional

well-being, the court may order a permanent plan other than adoption.

Here, the parents contend the children were living with their grandparents, who were willing to adopt them, but were unable to adopt because of the exceptional circumstance that they were not approved for adoption. We agree with the juvenile court that exceptional circumstances were not demonstrated here.

After reunification services have terminated, the focus of a dependency proceeding shifts from family preservation to promoting the best interest of the child including the childs interest in a placement that is stable, permanent, and that allows the caregiver to make a full emotional commitment to the child. [Citation.] [Citation.] The purpose of a section 366.26 hearing is to provide stable, permanent homes for dependent children. ( 366.26, subd. (b).) . . . Adoption is the preferred plan and, absent an enumerated exception, the juvenile court is required to select adoption as the permanent plan. [Citation.] The burden falls to the parent to show that the termination of parental rights would be detrimental to the child under one of the exceptions. [Citation.] (In re Fernando M. (2006) 138 Cal.App.4th 529, 534.)

In this case, the only reason the grandparents might not be able to adopt is if there is a final determination that they are not a suitable home for the children. The only determination to occur to date is a preliminary assessment of the grandparents and their home relative to their suitability for adoption. As above, the focus in a section 366.26 hearing is whether the children are adoptable, not the suitability of a particular family to adopt. (In re Scott M., supra, 13 Cal.App.4th at p. 844.) As noted by the court, the grandparents had not yet even put in an application to adopt the children. It may well be that the [grandparents] could be the adoptive parents. Thats a possibility. The preliminary assessment by the social worker is not a final determination as to the appropriateness of the grandparents home for adoption. Thus, at this point, there is no evidence the grandparents are unable to adopt the children.

Furthermore, even if the grandparents are determined to be an unsuitable home for the children, that circumstance would not satisfy the statutory requirements. The statute requires the relative caregiver be unable or unwilling to adopt because of exceptional circumstances. The phrase exceptional circumstances should be interpreted in light of the overarching purpose of section 366.26 and the overarching purpose of the dependency system -- to achieve the best interest of the dependent child. [Citation.] (In re Fernando M., supra, 138 Cal.App.4th at p. 536.)

Here, the parents are arguing that a finding that a relative caregiver is not an appropriate adoptive home is an exceptional circumstance warranting the court finding an exception to the Legislative preference for adoption. This cannot be true.

First, to find exceptional circumstances in this scenario runs counter to the purpose of achieving the best interests of the children. Such a finding would effectively require the children to remain in a home which has been determined to be inappropriate for their long-term needs.

This cannot be in their best interests.

Second, the statute requires the relative caregiver who

is unable to adopt because of exceptional circumstances be otherwise capable of providing a permanent and stable home.

It seems to us that a relative who, after having been fully assessed for adoption, is deemed to be an unsuitable home is by definition not capable of providing a permanent and stable home for the children.

Third, such a finding in this scenario runs counter to our states strong public policy favoring termination of parental rights and adoption for adoptable dependent children who cannot safely be returned to parental custody. (In re Marilyn H. (1993) 5 Cal.4th 295, 309-310.) It cannot be that in drafting section 366.26, subdivision (c)(1)(D), the Legislature envisioned a relative caregivers unsuitability to adopt could be used to prevent the adoption of an otherwise adoptable child.
Based on the foregoing, the court did not err in finding that the parents had not met their burden to establish the relative caregiver exception to adoption under section 366.26, subdivision (c)(1)(D).

III

The Court Properly Terminated Parental Rights

Rather than Continuing the Matter for 180 Days

Section 366.26, subdivision (c)(3) provides in pertinent part: If the court finds that termination of parental rights would not be detrimental to the child pursuant to paragraph (1) and that the child has a probability for adoption but is

difficult to place for adoption and there is no identified or available prospective adoptive parent, the court may identify adoption as the permanent placement goal and without terminating parental rights, order that efforts be made to locate an appropriate adoptive family for the child within a period not to exceed 180 days. The juvenile court made no finding that the minors were difficult to place.

Section 366.26, subdivision (c)(3) applies where a child is difficult to place for adoption . . . . For purposes of this section, a child may only be found to be difficult to place for adoption if there is no identified or available prospective adoptive parent for the child because of the childs membership in a sibling group, or the presence of a diagnosed medical, physical, or mental handicap, or the child is the age of seven years or more. (Italics added.)

At the time of the selection and implementation hearing, the minors were siblings, ages five and two. Neither minor had been diagnosed with a qualifying handicap. Although no prospective adoptive parent had been identified or become available, no evidence suggested that this was so because of the minors membership in a sibling group. Nothing in section 366.26, subdivision (c)(3), precluded the juvenile court from finding that the minors were adoptable.

IV

There Was No Abuse of Discretion in

Not Allowing Father to Reopen his Case

Lastly, father contends the juvenile court erred in refusing to allow him to reopen his case to present evidence of the potential detriment to the children from being removed from their grandparents home. We are not persuaded.

The evidence father sought to present was relevant to whether the section 366.26, subdivision (c)(1)(D) exception applied. Specifically, it was relevant to whether removing the children from the physical custody of the grandparents would be detrimental to their emotional well-being.

A partys request to reopen to present additional evidence is addressed to the discretion of the trial court whose determination is binding on appeal in the absence of palpable abuse. [Citations.] (Guardianship of Phillip B. (1983) 139 Cal.App.3d 407, 428.) Even if the better practice would be to permit all evidence bearing on the best interests of the children, it does not follow -- without more -- that the discretionary denial of a motion to reopen warrants reversal. Only in rare instances involving evidence of crucial significance will reviewing courts reverse a decision where denial has resulted in such exclusion. [Citations.] (Id. at pp. 428-429.) This is not such a rare case.

As indicated by the court, there was evidence in the record that in general terms, removing children from a relative caregivers home can be emotionally difficult for the children. There was also evidence that these emotional difficulties can be minimized if the situation is handled appropriately by everyone involved.

The therapists letter did not give any information about the effects of removal on Hunters or Haileys emotional well-being specifically. Rather, the letter spoke in general terms that moving children almost always increases the likelihood of the child developing attachment difficulties. The letter went on to specify that the therapist could not make any recommendations about Hunter specifically, as she had no direct knowledge of the circumstances surrounding Hunter [S.s] life in the grandparents home. Hailey was not even mentioned in the letter. Without the specific information about the effect of removal on Hunter and Hailey in particular, this evidence was only minimally probative on the issue of detriment to their emotional well-being.

In addition, as above, father had not met the threshold criteria for application of the relative caregiver exception. That is, he did not establish that the grandparents were unable to adopt the children or were otherwise capable of providing them a permanent and stable home. Accordingly, the courts exclusion of evidence on emotional detriment to the children could not have been prejudicial. Because the evidence was cumulative of other evidence in the record, it was not probative on the emotional well-being of these particular children and any error could not have been prejudicial, there was no abuse of discretion.

DISPOSITION

The juvenile courts orders are affirmed.

NICHOLSON , J.

We concur:

SCOTLAND, P.J.

CANTIL-SAKAUYE , J.

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^[1] Unless otherwise indicated, further statutory references are to the Welfare and Institutions Code.

^[2] This exception to the preference for adoption as a permanent plan states in pertinent part: If the court determines, . . . by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption. The fact that the child is not yet placed in a preadoptive home nor with a relative or foster family who is prepared to adopt the child, shall not constitute a basis for the court to conclude that it is not likely the child will be adopted. A finding under subdivision (b) or paragraph (1) of subdivision (e) of Section 361.5 that reunification services shall not be offered, . . . shall constitute a sufficient basis for termination of parental rights unless the court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [] . . . [] The child is living with a relative, . . . who is unable or unwilling to adopt the child because of exceptional circumstances, that do not include an unwillingness to accept legal or financial responsibility for the child, but who is willing and capable of providing the child with a stable and permanent environment and the removal of the child from the physical custody of his or her relative . . . would be detrimental to the emotional well-being of the child. . . . (Section 366.26, subd. (c)(1)(D).)