Opinion
C085904
08-13-2018
In re A.Q. et al., Persons Coming Under the Juvenile Court Law. SUTTER COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent, v. C.M. et al., Defendants and Appellants.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. DPSQ150063, DPSQ150064, DPSQ150070, DPSQ150071, DPSQ150072)
C.M. (mother) and D.Q. (father) appeal from the juvenile court's order terminating parental rights and selecting adoption as the permanent plan for minors E. Q., I. Q., D. Q., A. Q., and M. Q. (Welf. & Inst. Code, § 366.26; statutory section references that follow are to the Welfare and Institutions Code unless otherwise stated.) Both parents contend the juvenile court's finding that it is likely the children will be adopted is unsupported by substantial evidence. Mother also contends the court erred by denying a one-week continuance of the scheduled section 366.26 hearing.
On this record, we conclude there is no substantial evidence to support the juvenile court's finding that it is likely the children will be adopted, because there is no evidence the minors are likely to be adopted within a reasonable time as a sibling group, and no record that likely separate adoptive placements were presented to, and considered by, the juvenile court. Therefore we must reverse. This conclusion moots mother's second contention.
FACTS AND PROCEEDINGS
A. Introduction
This proceeding, which began when the two youngest minors were four months old, has lasted for over two years. The oldest minor is now 11 -- an age at which adoption is problematic for a lone minor, let alone the oldest of a five-child sibling group -- and is opposed to adoption. The other minors have had medical or emotional problems which would not preclude the adoption of any of them alone, but which collectively produce a sibling group that would challenge any prospective adoptive family's skills. No such family has yet appeared, and as of the repeatedly continued section 366.26 hearing the department had not located any families willing to consider adoption either of the entire sibling group or of any subpart.
Although the existence of a family willing to adopt is not a prerequisite to a finding of adoptability, that finding does require clear and convincing evidence that minors are likely to be adopted within a reasonable time -- and if they form a sibling set, that showing must be made for the set, not merely for individual minors. (In re B.D. (2008) 159 Cal.App.4th 1218, 1231, 1233-1234 (B.D.); see In re Zeth S. (2003) 31 Cal.4th 396, 406.) The juvenile court did not explain what evidence it found clear and convincing on this point, and we cannot find substantial evidence from which the court could have drawn that conclusion. (B.D., supra, 159 Cal.App.4th at p. 1232 [standard of review].)
The 54-page brief from the Sutter County Department of Human Services (department) ducks the issue. The department argues only that substantial evidence shows each minor would be adoptable if considered alone. Since the department did not ask the juvenile court to make that finding and the court did not do so, this argument misses the mark. Furthermore, the department ignores B.D., supra, 159 Cal.App.4th 1218, the decision most closely on point, and one heavily relied on by both parents. The department's brief has not been helpful to this court.
B. Procedural History
The department filed section 300 petitions as to all the minors on October 13, 2015, when E. was nine years old, I. was six years old, D. was four years old, and A. and M. were four months old. The petitions alleged that mother tested "indeterminate" for methamphetamine at the twins' premature birth, admitted a history of methamphetamine and prescription opiate abuse, and had failed to follow through with a voluntary family maintenance plan, while father knew of her drug abuse and failed to protect the minors from it.
The jurisdiction/disposition report recommended that the parents retain custody of the minors with a court-ordered family maintenance plan. The juvenile court so ordered on December 8, 2015.
On March 23, 2016, the department filed supplemental petitions, subsequently amended (§ 387), seeking out-of-home placement for the minors. The petitions alleged that father had not cooperated or maintained contact with the department, mother was no longer in compliance with drug testing, and the minors' health needs were being neglected.
On March 28, 2016, the juvenile court detained the minors and ordered the parents to drug-test.
The jurisdiction and disposition reports recommended continued out-of-home placement with reunification services to both parents. According to the disposition report, the parents were living separately; mother said she would do services but denied any problem, despite a recent positive test for methamphetamine; and father, who appeared also to have a substance abuse problem, refused to do anything the department asked and was always angry. The two oldest minors (E. and I.) were placed in one foster home, the three younger minors (D., A., and M.) in another; all seemed to be doing well, although D. had recently required dental treatment under general anesthesia and the twins were still considered medically "high risk."
On April 28, 2016, the juvenile court ordered continued out-of-home placement for the minors and reunification services for the parents.
The department's three-month review report recommended maintaining the existing orders. A. had been assessed by Alta Regional Center for possible intervention due to low gross motor skills, but mother had not given consent to release the results to A.'s foster parents, which caused "grave concern" given A's medical history. Mother remained in denial about her problems and repeatedly tested positive for methamphetamine, which had caused her to miss visits with the minors (visitation being contingent on clean testing); she claimed to believe that the minors would already have been returned to her if the social worker's paycheck did not depend on keeping the case going. Father continued to avoid drug testing, visitation, and contact with the department, aside from hostile and threatening telephone conversations with the social worker.
On July 19, 2016, the juvenile court maintained the existing orders pending the six-month review hearing, but found that mother had made "minimal" progress and father "none."
The department's six-month review report recommended terminating the parents' services, terminating father's visitation, and reducing mother's visitation. Father's conduct had not changed. Mother still resisted the department's recommendations, minimized the department's concerns, and claimed her positive drug tests were the result of tampering by the department. Her compliance with her case plan was minimal.
The minors continued to do well in their separate foster homes. E. and I. trusted and confided in their foster parents; there were no concerns about their behavior. D., A., and M. were also thriving in their placement; D. was reported to be sweet and well-behaved, and the twins' needs were being met. However, D. had suffered recurrent minor injuries, some involving conflicts with other boys.
An addendum report stated that out-of-county and out-of-state relatives had expressed interest in placement but had not completed the initial paperwork. A further addendum report stated that mother had recently enrolled in a substance abuse treatment program and started attending meetings, but had also recently tested positive for methamphetamine, and still advocated for father despite his nonparticipation and hostility.
At the contested six-month review hearing on January 3, 2017, mother testified that D. had "a lot of anger" and "wasn't like that prior to this"; he cried to the social worker about when he could come home, but was ignored.
The juvenile court terminated the parents' services and father's visitation, reduced mother's visitation, and set a section 366.26 hearing for April 27, 2017. The court found that the minors constituted a sibling group, meaning that at least one member of the group was under age three when the minors were removed from the parents' home. (§ 361.5, subd. (a)(3).) The court also observed: "I'm deeply concerned about this case on a number of levels. First of all, there are five children. There's at least one, if not two, medically -- what would generally be considered medically fragile children or who have that history, at least one, and we have D[.] who is in a terrible, terrible place right now. He's deeply conflicted by what's going on and being removed again from the household, and I'm very very concerned about him." The court was concerned about whether the visits were "contributing to D[.]'s deterioration."
On April 27, 2017, the juvenile court granted mother's unopposed request for a two-month continuance of the section 366.26 hearing to give her time to complete her residential drug treatment program.
On May 23, 2017, mother filed a section 388 petition to reinstate services and increase visitation, alleging that in addition to her treatment program she regularly attended 12-step meetings and was actively seeking work, and father had moved out of the home with a documented change of address. The juvenile court set the petition for hearing on June 6, 2017.
On June 6, 2017, the juvenile court consolidated the section 388 petition and the section 366.26 hearing and set them for June 22, 2017.
On June 7, 2017, the department submitted a section 366.26 report recommending that the juvenile court select adoption as the permanent plan for the minors, but set the section 366.26 hearing for 180 days out and not terminate parental rights at this time.
The minors continued to live in two separate foster homes.
E., now 11 years old, was ' "sassy" ' with her teachers, but her foster parent reported no major concerns.
I., now eight years old, was referred to Mental Health Services on May 24, 2017, because she was "withdrawn" and she had told the foster parent within the last two months that she ' "wanted to kill herself." ' D., now five years old, was referred to Mental Health Services on the same date because he was "defiant, "aggressive when upset," "challenge[d] authority," and "g[o]t upset easily," and "it ha[d] become difficult to redirect his behaviors."
The twins, now two years old, were still being seen by the High Risk Infant clinic, but no major health concerns were reported. M. was referred by the clinic to Alta Regional Center for a speech delay in October 2016 and still received services there.
Due to "mixed messages" during visitation, where mother would make inappropriate comments about "going home," E. and I. were stressed and confused, making it difficult for them to stabilize in their current foster home.
The maternal grandmother, who lived in the state of Washington, had indicated she would like to adopt all the minors. An Interstate Compact for the Placement of Children (ICPC) request would need to be completed for the home to be assessed.
Attached to the report was an adoption agency assessment filed March 20, 2017, which found that the minors were likely to be adopted but requested 180 days for additional efforts to locate an appropriate adoptive family. The assessment stated that the caretakers of E. and I. wished to adopt them, but the caretakers of D., A., and M. did not; "[h]owever, the intention is to find a home for the five siblings." The report acknowledged that the minors "are difficult to place children because they are a sibling group of five" and "[i]t is in the best interest of the siblings to stay together in one home," but if this could not be arranged they would be placed with two families who would support the sibling bond. A particular adoptive family had not been identified; the agency was "in the process of recruiting an adoptive family." According to the assessment (which was filed before the mental health referrals of I. and D.), all five minors were functioning very well, and none showed any serious areas of concern. E. and I. expressed the wish to return to their parents' home, but otherwise they would prefer to be placed with relatives and with all the siblings together; E. asked if she could adopt all the others when she turned 18. The minors' sibling bond was "strong and close."
On June 22, 2017, before the juvenile court ruled on mother's section 388 petition, the minors' counsel stated that E. would like the court to grant the petition and still hoped to go home with mother. The court denied the petition, finding there were no changed circumstances, and continued the section 366.26 hearing to September 28, 2017. The court expressed the hope that the minors could be placed with the maternal grandmother under the ICPC and a guardianship.
An addendum submitted September 22, 2017, recommended termination of parental rights. Since the beginning of August mother had repeatedly canceled visits and drug-tested positive for amphetamine and methamphetamine. An adoptive family had not yet been identified. Fearing harassment from the biological parents, the foster parents of E. and I. no longer wished to adopt them; the foster parents of D., A., and M. continued to reject adoption. Investigation of relative placements had yielded nothing so far: the in-state relatives who had previously expressed interest had not followed through, and the maternal grandmother in Washington had been denied by ICPC for failing to respond to its communications.
D. was scheduled to begin counseling on October 27, 2017. His behavior had improved after the foster parent's husband had started to bond more with him and to model appropriate conduct.
I. began weekly counseling on August 29, 2017. She said she felt comfortable talking to the counselor. She also had access to a counselor at school.
A. and M. continued to need speech therapy through Alta Regional.
On September 28, 2017, the juvenile court continued the section 366.26 hearing to October 26, 2017, after mother's counsel withdrew from the case and the court appointed new counsel for her. Mother was present in court.
At the hearing on October 26, 2017, mother was not present. Her counsel requested a one-week continuance, stating that the file was voluminous and counsel had not had the opportunity to meet with mother; counsel did not know why mother was not there. The juvenile court denied the request because there had been numerous continuances already and it was in the minors' best interest to proceed.
The minors' counsel stated that E. continued to oppose adoption, but conceded that he could not find a statutory basis to block termination of parental rights.
The juvenile court adopted the department's proposed findings and orders, including the finding that clear and convincing evidence showed it is likely the children will be adopted. The court did not make any express factual findings in support of its ruling.
DISCUSSION
The parents contend the juvenile court's finding that it is likely the children will be adopted is unsupported by substantial evidence. On this record, we must agree.
Before the juvenile court may terminate parental rights and select adoption as the permanent plan for the minors, the court must find by clear and convincing evidence that it is likely the minors will be adopted. (§ 366.26, subd. (c)(1).) "A finding of adoptability requires 'clear and convincing evidence of the likelihood that adoption will be realized within a reasonable time.' [Citation.] The question of adoptability usually focuses on whether the child's age, physical condition and emotional health make it difficult to find a person willing to adopt that child. [Citation.]" (B.D., supra, 159 Cal.App.4th at p. 1231; italics added.)
"If the child is considered generally adoptable, we do not examine the suitability of the prospective adoptive home. [Citation.] . . . . The juvenile court should . . . explore a child's feelings toward his or her parents, foster parents and prospective adoptive family. [Citations.]" (B.D., supra, 159 Cal.App.4th at pp. 1231-1232.)
"On review, we determine whether the record contains substantial evidence from which the court could find clear and convincing evidence that the child was likely to be adopted within a reasonable time. [Citations.] The evidence must be sufficiently strong to command the unhesitating assent of every reasonable mind. [Citation.] We give the court's adoptability finding the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of the judgment of the trial court. [Citation.]" (B.D., supra, 159 Cal.App.4th at p. 1232.)
In B.D., as here, the minors constituted a five-member sibling group. (B.D., supra, 159 Cal.App.4th at pp. 1222, 1226.) They ranged in age from 10 to three, a range similar to that here. (Id. at p. 1222.) They had never been in a single placement together since the dependency began. (Id. at p. 1223.) Several had experienced emotional problems or developmental delays. (Id. at pp. 1223-1225.) The oldest minor opposed adoption and wished to be reunited with his mother. (Id. at pp. 1222, 1225.)
At the time of the section 366.26 hearing, the social worker opined that the minors were adoptable and had a strong sibling bond, so that the best outcome would be to place them together. (B.D., supra, 159 Cal.App.4th at pp. 1225-1226, 1232.) However, the social worker had not yet found a family that would consider adopting all five. (One family showed interest in adopting a "hypothetical" group of five siblings, but had not met the minors or undergone a home study.) (Id. at p. 1226.) If necessary, the agency would consider separating the minors into two groups as an alternative, but it had not yet located families willing to adopt any subset of these minors. (Id. at pp. 1226, 1232-1233.) The social worker's database showed a number of families that had expressed interest in adopting minors with characteristics similar to those of one or more of these minors, including five out-of-county families that had expressed interest in a sibling group like this one. (Id. at pp. 1232-1233.)
The juvenile court found the minors adoptable, but the Court of Appeal concluded that no substantial evidence supported that finding. (B.D., supra, 159 Cal.App.4th at pp. 1226, 1232-1234.) Mere optimistic predictions by social workers or statistics about families willing to consider adopting generically similar minors was not substantial evidence from which the juvenile court could have found clear and convincing evidence establishing the likelihood that these minors could be adopted as a sibling group within a reasonable time. (Id. at p. 1233; see In re Asia L. (2003) 107 Cal.App.4th 498, 512; In re Brian P. (2002) 99 Cal.App.4th 616, 624; In re Amelia S. (1991) 229 Cal.App.3d 1060, 1065.) The record showed no evidence of any actual families qualified to adopt and willing to consider adopting these minors, either as a five-member group or in any subset. (B.D., at pp. 1233-1234.) There was also no evidence of any previous relationship with a family interested in adopting the minors. (Id. at p. 1234.) Finally, there was no evidence that the therapeutic issues suffered by some of the minors had been resolved or could be resolved soon. (Ibid.)
B.D. is on point. Here, as in B.D., we have a five-member sibling group so closely bonded that adoption of the whole group is the optimum outcome, but the record shows no evidence that that outcome can happen within a reasonable time. Nor does it show that adoption of any subset of these minors is any more likely to happen within a reasonable time. If anything, the evidence for adoptability is weaker here than in B.D. because there is no showing that any families exist who are willing even to consider adopting groups of children similar to these minors -- aside from the relatives who failed to follow through on their initial statements of interest, and none of whom has yet been found legally qualified to adopt. (See B.D., supra, 159 Cal.App.4th at pp. 1233-1234 [lack of preliminary assessment of a prospective home constitutes legal impediment to adoption].) And as in B.D., some of the minors have therapeutic issues which may not be resolved soon: I. and D. have only just begun counseling and there is no evidence as to their progress, while A. and M. remain medically fragile and subject to developmental delays.
Here, unlike in B.D., the two oldest minors (E. and I.) had been in the home of a family interested in adopting them. However, the foster parents lost interest in adoption due to fear of harassment by the biological parents, which might well also discourage other families. In any event, there are no other prospective adoptive families in view, even for E. and I., who have now reached ages that make children difficult to adopt even if willing to be adopted. (B.D., supra, 159 Cal.App.4th at pp. 1238-1239 [seven years old or more].) Thus, for all practical purposes, all the minors here are similarly situated to those in B.D. And, like the oldest child in B.D., E. is adamantly opposed to adoption.
As mentioned above, the department fails to make any argument that would support a finding that the minors are adoptable as a sibling group. Instead, the department merely recites evidence that each minor, standing alone, is adoptable. But that is not germane to the issue presented to the juvenile court. The proposition that a sibling group can be adopted together is qualitatively different from the proposition that each member of the group could be adopted separately. There is no record that likely separate adoptive placements were presented to, and considered by, the juvenile court.
Because the juvenile court's order terminating parental rights depended on the finding that the minors are likely to be adopted and substantial evidence does not support that finding, we must reverse that order. This disposition moots mother's contention that the court erred by denying her request for a continuance of the section 366.26 hearing.
DISPOSITION
The order terminating parental rights is reversed and the matter is remanded to the juvenile court for further proceedings consistent with this opinion.
HULL, Acting P. J. We concur: BUTZ, J. MAURO, J.