Filed 4/4/18 In re J.I. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



In re J.I. et al., Persons Coming Under the Juvenile Court Law.

SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

K.I.,

Defendant and Appellant.


E069500

(Super.Ct.Nos. J268325 &
J268326)

OPINION


APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes, Judge. Affirmed.
Elizabeth Klippi, under appointment by the Court of Appeal, for Defendant and Appellant.
Michelle D. Blakemore, County Counsel, Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.
Defendant and appellant K.I. (Father) is the father of the two children, M.I. and J.I. (the children) who were, respectively, ages two years and one year on the date of the challenged order. Father appeals from the court’s order of November 3, 2017, terminating his parental rights regarding the children at the hearing held under Welfare and Institutions Code, section 366.26. Specifically, he argues the court’s finding that the children are adoptable is not supported by substantial evidence. As explained post, we affirm the court’s order.
FACTS AND PROCEDURE
In the days leading up to November 18, 2016, as during a period several months prior, Father had been acting paranoid. He told relatives living in the same home that he heard people walking on the roof and that he wanted to kill someone. He told his own mother that D.B., the mother of the children (Mother), was putting voodoo on him and that he was going to kill her. He made similar statements to his brother. On that date, Father walked into the bedroom he shared with Mother and the children, then ages 23 months and two months, and shot Mother in the head, in front of the children. He then fled the scene, carjacked a car, and drove to Los Angeles. While parked in front of a police station in Los Angeles, Father shot himself twice in the chest. Mother was on life support and not expected to regain consciousness. Father underwent surgery and was expected to survive. The children were taken into protective custody. They were placed in a foster home along with their four-year-old half sister, I.B. , who had been living with her maternal grandmother. The maternal grandmother could not pass an emergency background check.
The detention hearing was held on November 23, 2016. Neither parent was present because they were both hospitalized. The court ordered the children detained, the relatives assessed for placement and counseling for the children, and found visits with Father to be detrimental.
Mother died on November 23, 2016.
In the jurisdiction and disposition report filed December 12, 2016, San Bernardino County Children and Family Services (CFS) described Father as “a known gang member with [a] criminal lifestyle” and a history of serious drug use. The children were described as “on target developmentally with no apparent developmental delays.” M.I. remembered or at least was aware, that Father had shot Mother, was heard by the foster parents to say “daddy bang bang to mommy,” and formed a gun with his finger when asked about Father. M.I. was referred to the SART program for assessment and play therapy. The children were healthy overall, with no serious medical problems, although they entered foster care with head lice. Upon entering the foster home, the children had a hard time and cried for Mother. However, they were now doing better and for the most part were happy. M.I. called the foster mother “Mommy.”
Multiple relatives requested placement of the children. CFS determined it would not be in the children’s best interest to place them with the paternal grandmother because she was present in the home when Father shot Mother, and was aware of Father’s erratic behavior, but did nothing to protect the children. The maternal grandparents were ruled out for placement because they had prior CPS involvement for their own children. The maternal uncle could not be approved at that time because he shared a home with several other adults and did not have enough room for the children. A maternal cousin, D.S.M., and her husband were being assessed and were to submit needed information. A paternal great aunt, J.Z., had never met the children but learned of the circumstances from family members, and was being assessed.
The jurisdiction and disposition hearing was held on December 14, 2016. Father was present, in custody. The court took jurisdiction of the children, ordered no reunification services for Father, and set the section 366.26 hearing for April 13, 2017.
On March 28, 2017, the foster parents filed with the court a Judicial Council Forms, form JV-290, “caregiver information form,” to which they attached a letter describing the children and their half sibling as “happy and doing well,” despite having suffered the loss of their mother and the incarceration of Father. The foster parents described “the primary reason for their doing well is their strong and loving relationship with each other, . . . they play together almost constantly without any typical sibling rivalry, . . . all three smile, kiss and laugh together often.” The letter ended in a plea to keep the three siblings together.
In the section 366.26 report, filed April 5, 2017, CFS asked for the hearing to be continued for 120 days. CFS requested an ICPC for foster placement with a maternal aunt who lives in Indiana. CFS asked that J.Z., the paternal great aunt, be ruled out for placement because she had four children residing with her as part of a guardianship, in addition to one child of her own. Because state regulations allow for only six children in this situation, J.Z. had room for only one additional child, and the social worker believed it was in the children’s best interest to keep them together. CFS also asked the maternal cousin, D.S.M., be ruled out for placement, because her husband has a criminal background and a medical condition that would interfere with the couple’s ability to care for the children.
The section 366.26 hearing was continued for 120 days to allow the ICPC for the maternal aunt in Indiana.
On August 11, 2017, the section 366.26 hearing was again continued for 45 days to allow completion of the ICPC for the maternal aunt in Indiana.
On September 8, 2017, another paternal great aunt, K.I., filed a motion requesting standing, visitation, and placement of all three children with her.
On September 15, 2017, the social worker filed an information to the court, informing the court that the ICPC in Indiana had been denied because the husband of the maternal aunt was undocumented, and was the sole source of income for the family. However, because the family and their home were otherwise suitable for the three children, the social worker recommended that, after the court terminated parental rights, the children could then be placed with the Indiana relatives directly for relative adoption, rather than the family having to first be approved as a foster placement.
On September 22, 2017, the court continued the section 366.26 hearing so CFS could provide an adoption assessment. The court tentatively denied K.I.’s motion for placement because CFS had already assessed her for placement and found she did not have enough room for the children at her home. The court asked CFS to reassess K.I. if her living accommodations changes.
On October 6, 2017, K.I. filed a section 388 petition asking the court to grant paternal relatives visitation with the children and to order CFS to complete home studies on paternal relatives.
On October 27, 2017, CFS filed an additional information to the court, recommending the court terminate parental rights and select adoption as the children’s permanent plan. The social worker explained that all three children were appropriate for adoption and, at ages five, two and one, had no issues that would prevent them from being adopted. The social worker opined the children were adoptable “due to their ages and given that they do not have any special needs.” The social worker noted the children had been in a single foster home during the dependency and had become “very attached” to their foster mother, leading to the belief that the children would have no trouble forming a similar attachment in their prospective adoptive home. The social worker noted that several relatives had come forward for placement, and that CFS intended to have the children adopted by relatives. However, should none of the relatives be viable for adoption, the social worker believed a nonrelative adoptive home could be found. The maternal aunt in Indiana was the preferred placement because she was willing to adopt the children, was open to maintaining contact with the paternal family as deemed appropriate by the court, she came forward promptly in January 2017, was very cooperative, and, as the maternal aunt, she was the biological relative of all three children.
On October 31, 2017, CFS filed its interim review report in response to K.I.’s section 388 petition, describing its assessment of each of the paternal and maternal relatives who had asked for placement of the children. CFS again requested the maternal aunt be approved for placement over K.I., because of her longstanding relationship with Mother, consistent contact with family members, blood relationship to all three children, and early involvement in the case as a potential placement.
The section 366.26 was finally held on November 3, 2017. Father was present in custody. After hearing argument, the court denied the section 388 petition. The court found by clear and convincing evidence that it is likely each of the children would be adopted. The court terminated parental rights to all three children and ordered adoptive placement with the maternal aunt in Indiana upon ICPC adoption approval. The court ordered visits with the paternal family while the children were still in California. The court ordered that, if for some reason the placement with the Indiana relatives failed, CFS was to reassess the paternal relatives, starting with the great aunt K.I.
This appeal followed.
DISCUSSION
Father argues substantial evidence does not support the court’s finding that the children were adoptable.
A finding of adoptability requires “clear and convincing evidence of the likelihood that adoption will be realized within a reasonable time. [Citation.]” (In re Zeth S. (2003) 31 Cal.4th 396, 406 (Zeth S.); see § 366.26, subd. (c)(1).) Although the juvenile court must find adoptability by clear and convincing evidence, “it is nevertheless a low threshold: The court must merely determine that it is ‘likely’ that the child will be adopted within a reasonable time. [Citations.]” (In re K.B. (2009) 173 Cal.App.4th 1275, 1292.)
The question of adoptability focuses on whether the child’s age, physical condition, and emotional health make it difficult to find a person willing to adopt that child. (Zeth S., supra, 31 Cal.4th at p. 406.) A specific adoptive family need not be identified in order to find it likely a child will be adopted within a reasonable time. (In re Jennilee T. (1992) 3 Cal.App.4th 212, 223, fn. 11 [to prove adoptability, there need not be proposed adoptive parents “ ‘waiting in the wings’ ”].) In a case where the child is considered generally adoptable, the court does not look at the suitability of a prospective adoptive home. (In re Valerie W. (2008) 162 Cal.App.4th 1, 13.)
Specific adoptability bears on general adoptability and likelihood of being adopted but is not determinative. “ ‘A prospective adoptive parent’s . . . interest in adopting is evidence that the child’s age, physical condition, mental state, and other matters relating to the child are not likely to discourage others from adopting the child.’ [Citation.] [¶] In other words, ‘[w]hile, generally, the present existence or nonexistence of prospective adoptive parents is, in itself, not determinative, it is a factor in determining whether the child is adoptable.’ ” (In re I.W. (2009) 180 Cal.App.4th 1517, 1526.)
Similarly, general adoptability bears on the ultimate question whether the child is likely to be adopted (§ 366.26, subd. (c)(1)) but likewise is not determinative. “[T]he law does not require a juvenile court to find a dependent child ‘generally adoptable’ before terminating parental rights. All that is required is clear and convincing evidence of the likelihood that the dependent child will be adopted within a reasonable time. [Citations.] The likelihood of adoptability may be satisfied by a showing that a child is generally adoptable, that is, independent of whether there is a prospective adoptive family ‘ “ ‘waiting in the wings.’ ” ’ ” (In re A.A. (2008) 167 Cal.App.4th 1292, 1313.)
In reviewing the juvenile court’s finding of adoptability, we must determine “whether the record contains substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that [the child] was likely to be adopted within a reasonable time.” (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1562.) We give the lower court’s finding of adoptability the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of the judgment. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) Likewise, we do not assess the credibility of any witnesses, nor do we weigh the evidence. (In re R.C. (2008) 169 Cal.App.4th 486, 491.)
Here, substantial evidence supports the juvenile court’s finding the children were generally adoptable and that they were likely to be adopted within a reasonable time. First, the age of each of the children, their physical condition, and emotional health indicate they are generally adoptable. At the time of the hearing, they were ages five, two, and one. They had no physical limitations or emotional issues that would be a barrier to adoption. Father argues the children were not emotionally healthy enough to be adopted because they were in the room when he murdered their mother; the court made a true finding under section 300, subdivision (c), that the children were suffering from serious emotional damage or were at risk of suffering serious emotional damage; and at the detention hearing the court ordered the children be referred for therapy. Father refers to these as the children’s “unresolved psychological needs.” However, the record indicates the children were doing well, and there is no indication in the record, at all, that their emotional health made them unadoptable. As far back as March 2017, the foster parents wrote the court a letter describing the children as “happy and doing well,” despite their huge loss because of “their strong and loving relationship with each other.” In addition, the foster parents liked having the children in their home, and stated the children were bonded with them. The children had been in only one foster home, indicating they were not difficult to care for. There simply was nothing in the record to indicate the children were having any emotional difficulties. Similarly, by all accounts the children were healthy, as evidenced by their health and education passports attached to the jurisdiction and disposition report, the caregiver information form filed March 28, 2017, indicating “no new or additional information since the last court hearing” regarding the children’s “medical, dental, and general physical and emotional health,” and the lack of any evidence in the record whatsoever of any physical or health problems. This includes the social worker’s additional information to the court, filed October 27, 2017, which states the children “do not have any special needs” and “no issues that would prevent them from being adopted.” Try as he might, Father cannot point to specific credible evidence in this record to justify reversing the court’s finding that the children were generally adoptable and likely to be adopted within a reasonable time.
DISPOSITION
The court’s orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ
P. J.
We concur:

McKINSTER
J.

FIELDS
J.