Opinion
G055516
03-19-2018
In re JONATHAN Z., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. CHELSEA Z. et al., Defendants and Appellants.
Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant Chelsea Z. Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant Justin Z. Leon J. Page, County Counsel, Karen L. Christensen and Robert N. Ervais, Deputies County Counsel, for Plaintiff and Respondent. No appearance for the Minor.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. DP007192-002) OPINION Appeal from an order of the Superior Court of Orange County, Katherine Lewis, Judge. Affirmed. Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant Chelsea Z. Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant Justin Z. Leon J. Page, County Counsel, Karen L. Christensen and Robert N. Ervais, Deputies County Counsel, for Plaintiff and Respondent. No appearance for the Minor.
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I. INTRODUCTION
This case is an anomaly. Typically in dependency matters parents contend that their parental rights should not be terminated because their child is unadoptable. Here, however, we have adoptive parents contending their parental rights should be terminated because their adoptive child is adoptable.
Jonathan Z.'s adoptive parents, Chelsea and Justin Z., appeal from an order of the juvenile court finding Jonathan unadoptable and upholding Chelsea and Justin's parental rights under California's Welfare and Institution Code section 366.26. Two issues are presented on appeal. The first issue concerns whether the adoptive parents received proper notice of a statutory option under section 358.1, subdivision (g) to voluntarily relinquish Jonathan for adoption under certain conditions. The second issue concerns whether Jonathan is likely to be adopted.
All statutory references are to the Welfare and Institutions Code.
We affirm. While it is not clear whether Chelsea and Justin received adequate notice of their section 358.1, subdivision (g) option to voluntarily relinquish Jonathan, any such error is harmless. And, given he is a 15-year-old with two past failed adoptions and psychological struggles, Jonathan cannot be considered generally adoptable. Neither can he be considered specifically adoptable since no individual has stepped forward and expressed an interest in adopting him. Accordingly, since a court may only terminate parental rights if there is clear and convincing evidence that the child is likely to be adopted, we affirm the trial court's permanency planning order.
II. FACTS
Jonathan was born in August of 2002. He tested positive for heroin and methadone at birth and spent the first nine months of his life being weaned off drugs in the hospital. Jonathan was never formally reunified with his biological parents and their parental rights were terminated. At age two Jonathan was adopted by Roberta B. who had five other adopted children. She struggled to care for Jonathan and eventually allowed him, as a teenager, to live with his biological father for 18 to 24 months. While living with his biological father, Jonathan met Justin and Chelsea. The couple took Jonathan in, and Roberta B. relinquished her parental rights. Justin and Chelsea legally adopted Jonathan on January 20, 2017.
In early April 2017, however, Jonathan was admitted to an in-patient psychiatric center. He had gotten into a physical altercation with Chelsea and Justin. He was placed on a section 5585 hold and considered a danger to himself and others.
The record indicates that Jonathan pushed Justin to the ground and Chelsea into a wall. Jonathan then ran into a mirror stating that he was suicidal.
Known as the Children's Civil Commitment and Mental Health Treatment Act of 1988, this act provides for "prompt evaluation and treatment of minors with mental health disorders[.]" (§ 5585.10.) --------
Jonathan spent 11 days there. When he was discharged on April 14, 2017, Justin and Chelsea refused to pick him up. While they tried to secure an alternative placement for Jonathan, they were unable to find a facility willing to house him.
On April 19, 2017, Jonathan was detained by the Orange County Social Services Agency (SSA) because of the unwillingness of his adoptive parents to take him back into their home. Based on the recommendation of SSA, the juvenile court found that reunification services did not have to be offered to Chelsea and Justin, and on July 18, 2017, he was placed in the foster home of Jennifer and Christina. Our record indicates this placement has been a good match for Jonathan. However, Jennifer and Christina do not wish to adopt Jonathan.
At Jonathan's section 366.26 hearing on September 25, 2017, Chelsea and Justin, as well as Jonathan, asked the juvenile court to terminate Chelsea and Justin's parental rights to Jonathan. The juvenile court found that Chelsea and Justin's parental rights could not be terminated because Jonathan was not likely to be adopted. The juvenile court determined that a permanent plan of foster care was appropriate.
III. DISCUSSION
Chelsea and Justin raise two issues on this appeal. First, the adoptive parents contend that SSA did not advise them of their right to voluntarily relinquish Jonathan as required by section 358.1, subdivision (g), and that this failure warrants reversal of the juvenile court's order. Second, the adoptive parents contend the evidence does not support the juvenile court's finding that Jonathan was not likely to be adopted within a reasonable time. A. Section 358.1 Disclosure
As to the first contention, we note that section 358.1, subdivision (g) requires a social worker's evaluation to include a factual discussion of "'[w]hether the parent has been advised of his or her option . . . to voluntarily relinquish the child for adoption if an adoption agency is willing to accept the relinquishment.' [Citation.]" This requirement was "enacted to encourage adoption by relatives by offering an alternative to 'the adversarial juvenile court process that requires finding the birth parent unfit' and severing family ties." (In re R.T. (2015) 232 Cal.App.4th 1284, 1304, quoting Sen. Com. on Judiciary, com. on Assem. Bill No. 1544 (1997-1998 Reg. Sess.) Aug. 26, 1997, p. 4.)
In this case, the evidence is unclear whether SSA provided adequate notice to Chelsea and Justin under section 358.1, subdivision (g). But that statute is plainly conditional. It says parents may only voluntarily relinquish their child for adoption "if an adoption agency is willing to accept the relinquishment." (Italics added.) Here, notice would not have changed the situation because the record shows no agency was willing to accept the relinquishment. And the parents did try. They personally made countless calls to find an appropriate placement for Jonathan, but were unable to find a facility or department willing to accept Jonathan on even a temporary basis. So the putative notice failure is a moot point. B. Adoptability
To terminate parental rights, a court must have clear and convincing evidence a child is adoptable. In relevant part, section 366.26, subdivision (c)(1) states that "[i]f 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." (See In re Sarah M. (1994) 22 Cal.App.4th 1642, 1648.) The "clear and convincing" standard requires the evidence to be "so clear as to leave no substantial doubt." (In re Asia L. (2003) 107 Cal.App.4th 498, 510.) Here, the evidence does not clearly and convincingly show that Jonathan is likely to be adopted.
Adoptability is analyzed two ways: generally and specifically. To determine a child's general adoptability, we focus on "whether the minor's age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor." (In re Sarah M., supra, 22 Cal.App.4th at p. 1649.) In this case, Jonathan's age, two failed past adoptions, and psychological struggles present an obstacle to his adoption. In regards to his age, Jonathan is in his mid-teens. Case law shows a rough correlation between a child's relatively young age and his or general adoptability. (See In re Gregory A. (2005) 126 Cal.App.4th 1554, 1562 [noting young age was among attributes indicating adoptability]; In re Helen W. (2007) 150 Cal.App.4th 71, 80 [same].) Alas, the converse seems true as well. (See In re Sarah M., supra, 22 Cal.App.4th at p. 1650 [intimating that a minor's relatively advanced age may act as factor dissuading adoption].) We need only add that in addition to his less-than-optimal age, Jonathan has been diagnosed with ADHD and Conduct Disorder and experienced psychological struggles, such as being placed on a section 5585 hold in 2017. While these instances do not take away from what a social worker has recognized as Jonathan's strong social and leadership skills, there certainly is no clear and convincing evidence of general adoptability.
Despite a lack of general adoptability, a child may still be specifically adoptable if a potential adoptive parent actually wants to adopt that child. (E.g., In re Sarah M., supra, 22 Cal.App.4th at p. 1650.) Here, however, there are no such potential adoptive parents. In fact, multiple candidates, such as Jonathan's biological father, his current foster parents, first adoptive mother, and a male mentor, have all declined to adopt Jonathan. Specific adoptability does not seem to be in the cards. So while Jonathan has overcome much and Justin and Chelsea have accomplished much, we cannot decide this appeal in their favor.
IV. DISPOSITION
While we echo the juvenile court's general sympathy for Jonathan's situation, the law will not allow us to direct the termination of Chelsea and Justin's parental rights under section 366.26. The permanency planning order appealed from is thus affirmed.
BEDSWORTH, ACTING P. J. WE CONCUR: FYBEL, J. IKOLA, J.