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San Diego Cnty. Health & Human Servs. Agency v. Leticia P. (In re Victor A.)

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jul 6, 2017
D071709 (Cal. Ct. App. Jul. 6, 2017)

Opinion

D071709

07-06-2017

In re VICTOR A., JR., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. LETICIA P., Defendant and Appellant.

Patti L. Dikes, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Dana C. Shoffner, Deputy County Counsel, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CJ1061D) APPEAL from an order of the Superior Court of San Diego County, Ronald L. Johnson, Judge. Affirmed. Patti L. Dikes, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Dana C. Shoffner, Deputy County Counsel, for Plaintiff and Respondent.

Leticia P. appeals the order terminating her parental rights in the dependency case of her minor son Victor A., Jr. (Victor). Leticia contends the evidence does not support the juvenile court's finding that Victor was likely to be adopted within a reasonable period of time. (Welf. & Inst. Code, § 366.26, subd. (c)(1).) We disagree and affirm.

Further statutory references are to the Welfare and Institutions Code.

FACTUAL AND PROCEDURAL BACKGROUND

"In accord with the usual rules on appeal, we state the facts in the manner most favorable to the dependency court's order." (In re Janee W. (2006) 140 Cal.App.4th 1444, 1448, fn. 1.)

On February 1, 2012, the San Diego County Health and Human Services Agency (Agency) petitioned the juvenile court under section 300, subdivision (b) on behalf of six-year-old Victor. The Agency alleged that Victor A., Sr. (Victor Sr.), Leticia's live-in boyfriend and Victor's father, had sexually abused Victor's half sister J.P. and physically abused Victor. The Agency received reports that Victor Sr. hit Victor every day and locked him in a room without any food. Leticia had been diagnosed with mild mental retardation and had a history of child neglect. The Agency concluded that Victor had suffered, or was at substantial risk of suffering, serious physical harm or illness as a result of Leticia's failure or inability to protect him.

Concurrent with Victor's petition, the Agency filed petitions under section 300 on behalf of J.P., Victor's brother Allen P., and his sister Alexis A. During Victor's dependency case, Leticia gave birth to a fifth child, Liliana A., who was also the subject of an Agency petition under section 300. --------

The juvenile court ordered that Victor be detained in out-of-home care. It later sustained the allegations of the petition, removed Victor from his parents' custody, and ordered reunification services for Leticia. (Victor Sr.'s whereabouts were unknown at the time; he was later located and offered services.) Soon after the petition was filed, Victor was placed at Polinsky Children's Center, a temporary emergency shelter. A couple weeks later, he was placed with his siblings in the home of their maternal aunt Josephine P.

After four months in Josephine's care, the Agency petitioned the juvenile court under section 387 for a change in Victor's placement. The Agency determined that Victor needed a level of care that Josephine could not provide. Victor had been diagnosed with borderline to mild mental retardation, severe language delays, and oppositional behavior. He acted out in impulsive and aggressive ways. During the incident that led to the Agency's petition, Victor hit various children while playing in a park. When told to stop, he placed his hands around his neck and said, "I want to die." He started punching himself in the head, said "I want to kill myself," and ran out into traffic. Josephine called police, who transported Victor to a hospital for evaluation. At the hospital, Victor denied suicidal thoughts and was released to police for transportation to Polinsky. Josephine told the Agency she was concerned about Victor's threats against animals. She believed Victor had killed a dog at Leticia's house before his detention, and she said Victor had threatened to kill her fish and turtle. Victor's behavior had generally deteriorated since summer school ended. His negative behaviors included hitting and kicking other children, refusing to bathe, and destroying property. Victor was placed in foster care.

Victor's maternal aunt and uncle, Guadalupe P. and her husband Raul P., expressed interest in placement. Raul had a potentially disqualifying criminal record, however, and he was resistant to the idea of applying for an exception. He was also reluctant to attend any training on parenting skills for a special needs child like Victor. Guadalupe had some medical issues and was concerned that Victor's care would conflict with her appointments. Eventually Guadalupe told the Agency that they could not take Victor.

Leticia and Victor Sr. participated in services, but by the time of the 12-month review hearing the Agency did not believe they would reunify with the minors within the next six months. The Agency therefore recommended that the juvenile court terminate their reunification services and schedule a selection and implementation hearing. As to Leticia, the court agreed and terminated her reunification services. As to Victor Sr., however, the court found he had not been provided with reasonable services and extended his reunification period for six additional months. When those six months were over, the Agency again recommended that Victor Sr.'s services be terminated. This time, the juvenile court agreed, terminated Victor Sr.'s services, and set a selection and implementation hearing under section 366.26.

The Agency requested a continuance of the scheduled selection and implementation hearing to evaluate whether to recommend adoption as Victor's permanent plan. It reported that Victor was a friendly, happy, and outgoing child who was doing well in his foster care placement. But the Agency believed he would be "a difficult child to adopt" because of his special needs. Victor had been diagnosed with mild mental retardation and attention and hyperactivity disorders, and he had some symptoms of an autism spectrum condition. He had a speech impairment and required some assistance with daily activities such as taking a shower. Victor's foster caregiver was willing to care for him indefinitely, but she did not want to adopt him because he would lose certain services offered by the foster care agency. The foster caregiver's daughter, who lived in the home, had expressed interest in adoption, but she separated from her boyfriend and was not willing to adopt alone. The juvenile court granted the requested continuance.

In advance of the continued selection and implementation hearing, the Agency provided conflicting recommendations. It initially recommended that Victor remain with his foster caregivers under "Another Permanent Planned Living Arrangement" (APPLA). Victor was thriving in his current placement and the Agency did not want to risk moving him to an adoptive home. Ten days later, the Agency reversed course and requested another continuance. It wanted to find an adoptive home for Victor and gradually transition him to that placement. If an adoptive home could not be found, or if Victor did not react well to the change in placement, the Agency planned to renew its APPLA recommendation. Later the Agency reported that Josephine was interested in adopting Victor. She was already caring for Victor's sisters Alexis and Liliana and his half sister J.P. Josephine was interested in adopting them, and she believed she could adopt Victor as well once her husband immigrated from Mexico to the United States. The juvenile court granted the requested continuance.

Circumstances did not substantially change over the next several months. Josephine remained willing to adopt Victor, but her husband had not yet immigrated. The Agency was unable to find another prospective adoptive family given Victor's need to have regular contact with his biological family. The Agency therefore recommended that the court order an APPLA, but it would revisit the issue if and when Josephine's husband immigrated and Victor was successfully placed with them. At the continued hearing, the juvenile court found that Victor was likely to be adopted but that the circumstances of his foster care justified an exception to adoption, apparently under section 366.26, subdivision (c)(1)(B)(iv). It ordered APPLA as Victor's permanent plan and set a postpermanency review hearing in six months.

At that hearing, the Agency recommended that Victor remain at his foster placement under APPLA. His foster caregiver reported that he had made "tremendous progress" with his behavior. Josephine remained interested in adopting Victor and expressed her desire to move forward even though her husband's immigration status remained uncertain. But she had not made progress on his adoption despite generally successful day and overnight visits with Victor. The juvenile court continued APPLA as Victor's permanent plan and set another review hearing in six months.

During that time, Victor saw Josephine regularly. Although she told the Agency she remained willing to adopt Victor, she began to have second thoughts. Victor bothered his sister Alexis during a visit, and Josephine took a break from seeing him. Victor's anxiety also appeared to increase, and after one visit with Josephine he broke a lamp, tore his shirt, and engaged in other destructive behaviors at his caregiver's home. Josephine eventually told the Agency she did not want to adopt Victor.

However, the Agency reported that Guadalupe renewed her interest in adopting Victor. She visited him regularly, participated in his medical appointments, and helped him with schoolwork. (Guadalupe's husband Raul had died some months earlier.) The Agency developed a plan to transition Victor into Guadalupe's care, including her relocation to a larger residence. The Agency recommended that Victor's APPLA be continued while the Agency evaluated Guadalupe for adoption. The juvenile court agreed and set a further review hearing in six months.

Guadalupe continued to visit Victor several times a week. After some initial difficulty, she had identified a larger residence for her family. Victor's behavior had deteriorated somewhat, but he began to feel more comfortable with Guadalupe. The Agency believed that placement with Guadalupe would eventually be possible but wanted the transition to continue slowly. The Agency again recommended that APPLA be continued. The juvenile court agreed and set another review hearing in six months.

Guadalupe moved to the larger residence, and Victor's visits became longer and more frequent. He had overnight and extended visits. He generally looked forward to the visits, but during one 10-day visit he had an "anxiety episode" and scratched a nickel-sized sore in his forehead. After that, though, he did not have another episode and continued to have lengthy visits. After one week-long visit, Victor said he did not want to return to his foster home so the visit was extended. Victor remained with Guadalupe through his formal placement there several weeks later. The Agency recommended setting another selection and implementation hearing. The court agreed and set the hearing in three months.

In its report for the selection and implementation hearing, the Agency recommended terminating Leticia and Victor Sr.'s parental rights and ordering adoption as the permanent plan for now 11-year-old Victor. He had been formally placed with Guadalupe for approximately four months. The Agency reported that Victor was generally physically healthy. As noted, he had mild mental retardation and symptoms of autism, and he was under psychiatric care for attention deficit and hyperactivity disorder (ADHD), posttraumatic stress disorder, and disruptive behavior disorder. He took a number of prescription medications, including Vyvanse and Adderall for ADHD, Trazodone for insomnia, Seroquel for aggression, and Tenex for hyperactivity and impulsivity. The Agency described Victor as "curious" and "lively" with a strong affinity for his family. He spoke both English and Spanish, though his speech was difficult to understand for those unfamiliar with him. He required some assistance with daily tasks, including verbal prompting to remind him not to eat continually, to shower thoroughly, and to attend to other basic hygiene matters. He had difficulty maintaining focus and occasionally acted out aggressively against other children. He displayed other bad behaviors, including destroying his clothing and not listening to teachers at school. Once, he opened the door of a school vehicle while it was moving; his ability to receive transportation services from the school was terminated. Guadalupe reported that his behavior had improved in the past month, however. She was happy with his progress.

The Agency considered Victor "specifically adoptable" based on Guadalupe's willingness to adopt him. Victor was placed with Guadalupe, and she was successfully meeting his physical and emotional needs. She had received criminal and child welfare clearances for adoption. She was in the initial process of her adoptive home study. As to the status of that study, the Agency reported that "her application for a home study is being screened for outsourcing with another Agency." Victor told the Agency he wanted to live with Guadalupe forever.

The Agency appeared to believe that Victor was also generally adoptable. If Guadalupe could not adopt Victor, the Agency believed it would likely find another family to adopt him. It reported there were five possible families in San Diego County who wanted to adopt a child with Victor's characteristics.

At the selection and implementation hearing, the court received the Agency's report into evidence. The Agency made its social worker available for cross-examination, but there were no questions. Victor's counsel joined the Agency's recommendations. Leticia's counsel argued that Victor was not likely to be adopted. She pointed to his special needs, his aggressive behavior, and his other behavioral problems. She argued that Guadalupe's home study had not been approved, and no other adoptive families appeared likely, so it was possible Victor would become a legal orphan if parental rights were terminated. Victor Sr.'s counsel joined in those arguments. In rebuttal, the Agency argued that Victor had many positive qualities, he was doing well in Guadalupe's home, she was committed to adopting him, and there were no legal impediments to adoption.

The court found by clear and convincing evidence that Victor was likely to be adopted and no exception to adoption existed. It terminated Leticia and Victor Sr.'s parental rights over Victor and ordered a permanent plan of adoption. Leticia appeals.

DISCUSSION

Unless certain exceptions apply, "[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." (§ 366.26, subd. (c)(1).) We review the court's adoptability finding for substantial evidence. (In re K.B. (2009) 173 Cal.App.4th 1275, 1292 (K.B.).)

" 'On review of the sufficiency of the evidence, 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.' [Citation.] The 'clear and convincing' standard is for the edification and guidance of the juvenile court. It is not a standard for appellate review. [Citation.] ' "The sufficiency of evidence to establish a given fact, where the law requires proof of the fact to be clear and convincing, is primarily a question for the trial court to determine, and if there is substantial evidence to support its conclusion, the determination is not open to review on appeal." [Citations.]' [Citation.] 'Thus, on appeal from a judgment required to be based upon clear and convincing evidence, "the clear and convincing test disappears . . . [and] the usual rule of conflicting evidence is applied, giving full effect to the respondent's evidence, however slight, and disregarding the appellant's evidence, however strong." ' " (In re J.I. (2003) 108 Cal.App.4th 903, 911; see In re I.W. (2009) 180 Cal.App.4th 1517, 1525-1526 (I.W.).) "The appellant has the burden of showing the finding or order is not supported by substantial evidence." (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)

" 'The issue of adoptability . . . 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.]' [Citation.] All that is required is clear and convincing evidence of the likelihood that adoption will be realized within a reasonable time." (In re Zeth S. (2003) 31 Cal.4th 396, 406.)

"However, 'in some cases a minor who ordinarily might be considered unadoptable due to age, poor physical health, physical disability, or emotional instability is nonetheless likely to be adopted because a prospective adoptive family has been identified as willing to adopt the child.' " (In re Brandon T. (2008) 164 Cal.App.4th 1400, 1408 (Brandon T.).) "It is well established that if a child has special-needs which render the child not generally adoptable, a finding of adoptability can nevertheless be upheld if a prospective adoptive family has been identified as willing to adopt the child and the evidence supports the conclusion that it is reasonably likely that the child will in fact be adopted within a reasonable time." (K.B., supra, 173 Cal.App.4th at pp. 1292-1293.) "When a child is deemed adoptable only because a particular caretaker is willing to adopt, the analysis shifts from evaluating the characteristics of the child to whether there is any legal impediment to the prospective adoptive parent's adoption and whether he or she is able to meet the needs of the child." (In re Helen W. (2007) 150 Cal.App.4th 71, 80 (Helen W.).)

The evidence here supports the juvenile court's adoptability finding. Guadalupe had moved to a larger residence in order to care for Victor, she had Victor in her care at the time of the selection and implementation hearing, she had been successfully meeting his needs for at least four months, she was committed to adopting him, she had passed the Agency's criminal and child welfare checks, and she had submitted her application for an adoptive home study. In the absence of some undisputed evidence of Guadalupe's inability to adopt Victor or successfully parent him, Guadalupe's commitment to adopting Victor is sufficient to support the court's finding of adoptability. (See Brandon T., supra, 164 Cal.App.4th at pp. 1409-1410 [affirming adoptability finding based on caretakers' commitment to adoption]; I.W., supra, 180 Cal.App.4th at p. 1527 [affirming adoptability finding based on foster parents' interest in adoption]; K.B., supra, 173 Cal.App.4th at p. 1293 [affirming adoptability finding based on prospective adoptive parent's commitment to adoption]; Helen W., supra, 150 Cal.App.4th at p. 80 [affirming adoptability finding based on foster mother's commitment to adoption].) We therefore need not consider whether Victor would generally be adoptable based on his age, physical condition, and emotional state in the absence of a prospective adoptive family.

Leticia relies on In re Asia L. (2003) 107 Cal.App.4th 498 (Asia L.), which reversed an adoptability finding. Asia L. found that the foster parent's interest in adoption was "too vague" to support a finding of adoptability. (Id. at p. 512.) The foster parents " 'indicated they are willing to explore adoption of the children, [but] it is too soon for them to make such a permanent and life changing decision.' " (Id. at p. 511.) Leticia's reliance on Asia L. is unpersuasive. Guadalupe's commitment to Victor's adoption is much stronger, and it therefore constitutes sufficient evidence of adoptability. In re Amelia S. (1991) 229 Cal.App.3d 1060, 1065 is similarly unpersuasive because the foster parents there were only "considering" adoption. And, unlike In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205, where the minor's caretaker expressed willingness to adopt but the extent of his criminal and child welfare history was unknown, Guadalupe had passed the Agency's criminal and child welfare checks. The facts of this case are more similar to Brandon T., I.W., K.B., and Helen W., referenced above, which upheld findings of adoptability.

Leticia argues it was "premature" to believe that Victor was likely to be adopted by Guadalupe, given his limited time in Guadalupe's care and the fact that several past prospective adoptive parents had not moved forward with adoption. Leticia's argument relies on adverse inferences from the evidence, which we cannot credit given our standard of review. Based on our review of the entire record, the juvenile court could reasonably find Victor adoptable based on Guadalupe's commitment to adopting him.

Leticia points out that Guadalupe's adoptive home study had not yet been approved and the Agency had not identified any other families who were willing to adopt Victor. But neither of these circumstances were required to find Victor specifically adoptable by Guadalupe. (See Brandon T., supra, 164 Cal.App.4th at p. 1410 [rejecting rule that prospective adoptive parent must have an approved home study] K.B., supra, 173 Cal.App.4th at p. 1293 [same]; In re I.I. (2008) 168 Cal.App.4th 857, 870 [rejecting rule that "backup families" must be identified].) Leticia also points to Victor's developmental delays and behavioral problems, but she has not shown it would be unreasonable to find Guadalupe could meet his needs. (See In re Carl R. (2005) 128 Cal.App.4th 1051, 1062.) Lastly, Leticia's concern that Victor may end up a "legal orphan" is mitigated by the opportunity to reinstate parental rights if Victor is not adopted. (§ 366.26, subd. (i)(3).) "Thus, under the current statute, there is no danger of the child[] becoming [a] legal orphan[]." (In re I.I., at p. 871.)

"[A]doption, where possible, is the permanent plan preferred by the Legislature. This principle has been well established in many cases." (In re Tamneisha S. (1997) 58 Cal.App.4th 798, 804.) Leticia has not shown the court erred by selecting that plan under the circumstances here and giving Victor the opportunity to have a permanent, loving, adoptive home.

DISPOSITION

The order is affirmed.

BENKE, Acting P. J. WE CONCUR: HUFFMAN, J. O'ROURKE, J.


Summaries of

San Diego Cnty. Health & Human Servs. Agency v. Leticia P. (In re Victor A.)

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Jul 6, 2017
D071709 (Cal. Ct. App. Jul. 6, 2017)
Case details for

San Diego Cnty. Health & Human Servs. Agency v. Leticia P. (In re Victor A.)

Case Details

Full title:In re VICTOR A., JR., a Person Coming Under the Juvenile Court Law. SAN…

Court:COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date published: Jul 6, 2017

Citations

D071709 (Cal. Ct. App. Jul. 6, 2017)