Filed 1/15/15 In re Andrew A. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
COPY
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(El Dorado)
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In re ANDREW A. et al., Persons Coming Under the C076974
Juvenile Court Law.
EL DORADO COUNTY DEPARTMENT OF (Super. Ct. Nos. SDP201243,
HUMAN SERVICES, SDP201244)
Plaintiff and Respondent,
v.
ERIC A.,
Defendant and Appellant.
Eric A., the father of 10-year-old Andrew A. and six-year-old Ashley A., appeals
from orders of the juvenile court finding clear and convincing evidence that it is likely
the children will be adopted and terminating parental rights. (Welf. & Inst. Code,
§§ 366.26, 395; unless otherwise stated, statutory references that follow are to the
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Welfare and Institutions Code.) As the given names of the children are among the 100
most popular birth names during the last 13 years, we will not designate them by initials
as this impedes readability and results in confusion in legal research and record-keeping.
(In re Jennifer O. (2010) 184 Cal.App.4th 539, 541, fn. 1; In re Edward S. (2009)
173 Cal.App.4th 387, 392, fn. 1; Cal. Rules of Court, rule 8.401(a)(2).)
On appeal, father contends the evidence was insufficient to support the finding
that it is likely the children will be adopted. We affirm the juvenile court’s orders.
FACTS AND PROCEEDINGS
In August 2012 the El Dorado County Health and Human Services Agency (the
Agency) received a report that the residence (trailer) father shared with the children was
in poor condition and its natural gas connection had been turned off. A home visit
revealed that the trailer was noticeably dirtier than in prior visits, the children were
sleeping on old mattresses with no bedding, and there was no natural gas for room or
water heating. Father acknowledged the home’s deteriorated condition and said he was
having emotional and financial difficulties. Father requested that the children be placed
in Child Protective Services custody.
Petition
In September 2012, petitions were filed alleging that father had asked the Agency
to take custody of the children, that his home was filthy and not suitable for the children,
and that father had psychiatric/emotional problems that precluded him from taking proper
care of the children. The petition later was amended to include allegations against B.D.,
the mother of the children, who is not a party to this appeal.
Detention
The parents submitted on the Agency’s detention report and the children were
detained in foster care.
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Jurisdiction and Disposition
The Agency’s report for the jurisdiction hearing reiterated the conditions that had
led to the children’s detention. The parents submitted the jurisdiction issue to the court
on the basis of the report.
Two days later, father attempted suicide by setting fire to his bedroom. After
surrendering to authorities, he was incarcerated on arson and vandalism charges.
The Agency’s October 2012 disposition report recommended that father’s
reunification services be bypassed because they would be detrimental to the children in
light of the arson and incarceration. (§ 361.5, subd. (e)(1).) Father submitted on the
recommendation. He acknowledged that the likely results would be that his parental
rights would be terminated, the children put up for adoption, and perhaps he would have
no future relationship with them.
The disposition report recommended that mother’s services be bypassed based on
her failures to reunify with two other children and resistance of treatment for substance
abuse. (§ 361.5, subds. (b)(10), (b)(13).) Mother provided argument on the issue of
failure to reunify and submitted on the issue of resistance to treatment.
Selection and Implementation
At the time of the first selection and implementation hearing in January 2013, the
children were ages eight and four. After hearing testimony from father, the juvenile court
found by clear and convincing evidence that both children were adoptable. The court did
not terminate parental rights for either child because it concluded severing father’s
relationship with Andrew would be detrimental to him, and severing parental rights for
Ashley would cause substantial interference with the siblings’ relationship. The court
selected a permanent plan of legal guardianship for both children.
At a second selection and implementation hearing in August 2013, the juvenile
court reiterated that guardianship was the permanent plan and issued letters of
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guardianship for both children. The guardian was the foster mother with whom the
children had resided since their removal from father’s custody.
Status Review
A January 2014 status review report indicated that the guardian was having a
“difficult time” with Ashley’s enuresis, which she attributed to prior sexual trauma. A
criminal investigation of the trauma had yielded no confession or physical evidence.
Ashley was engaged in counseling in which she was “extremely verbal” and from which
she “appear[ed] to be benefiting.” But the guardian was unwilling to spend time with
Ashley doing the required muscle exercises, stating she did not have the time; was
uncomfortable being in the bathroom with Ashley; and the enuresis required
psychological rather than physical therapy. The guardian was having a difficult time
understanding how the enuresis was related to the prior sexual trauma.
A February 2014 addendum reiterated that Ashley’s therapist had been working to
educate the guardian about the enuresis as it related to trauma and “parenting from a
trauma based perspective.” The guardian had resisted the therapist’s efforts, stating that
she did not have the time. The guardian reported feeling overwhelmed and needing more
breaks to regain her energy.
The status review report noted that Andrew was “very well-mannered” and
“responsive” to his time with his counselor. Visiting with father was a common
discussion topic. The report noted that, following a September 2013 incident in which
Andrew had physically hurt another child, Andrew was involved in a November 2013
incident in which he argued with a friend and discussed why he was upset rather than
yelling or becoming violent. Andrew was “extremely proud” of the manner in which he
had handled the latter incident.
At the review hearing in February 2014, the juvenile court found that the manner
in which the guardian responded to the enuresis was not appropriate.
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Supplemental Petition
In March 2014, the Agency filed a supplemental petition alleging the guardian was
unable to meet the children’s long-term needs and selection of another caregiver was in
their best interest. In April 2014, the guardianship was terminated.
Selection and Implementation
A May 2014 report for the third selection and implementation hearing noted that
on March 1, 2014, the children had been placed together in a certified foster home. The
Agency assessed Andrew and Ashley as adoptable. Andrew was successfully addressing
his anger, grief, and loss in therapy. Ashley was revisiting the issue of therapeutic
treatment for enuresis and would see a pediatric urologist. The children would attend
conjoint therapy where Andrew could listen, support, and provide compassion to Ashley
regarding the severe trauma she assertedly had received from father and another male.
The children were in need of a permanent and stable home where they could develop and
thrive. No prospective adoptive parents had been identified, but the social worker was
awaiting responses from licensed adoption agencies to a “child available” notice the
Agency had issued.
A contested hearing was held on June 4 and 5, 2014. Father testified that Andrew
had “pretty much accepted the idea” that he would not be coming home to father. Father
said they discussed the possibility of not having more visits if parental rights were
terminated. Andrew “handled it pretty well. He’s actually really mature for his age.
He’s been through a lot so.”
On cross-examination by counsel for the Agency, and over his counsel’s
objection, father admitted that both of the children were adoptable. Father acknowledged
that Andrew needed permanence, stability, and a good home; but father believed that
both children needed to see him and mother on a regular basis. On cross-examination by
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counsel for the children, father conceded that Andrew probably would allow someone
other than father to fill a parental role.
Social worker Katie Zemel testified by offer of proof that she explained adoption
and termination of parental rights to Andrew who affirmed that he wanted to be adopted
but said he also wanted visits with the parents.
Social worker Pamela Utley testified that Andrew had asked his current foster
parents to adopt him. Utley added that the foster mother was struggling with Andrew’s
behavior when he returns from therapeutic visits with father. Andrew is “in turmoil,
upset, and speaks to [the foster mother] inappropriately after those therapeutic visits.”
She would have to assess Andrew’s behavior following termination of parental rights
before considering the issue of adoption.
Utley testified that her “child available” notice, which had drawn no responses,
had reflected a “legal status” of “high risk” for prospective adoptive families in that a
previous selection and implementation hearing had been held but parental rights had not
been terminated. The “risk” was that “the prospective adoptive parents will enter into the
pre-steps into adoption and then not have it finalized.” Prospective parents will “feel at
risk committing before the child is truly free for placement.” The “high risk” label did
not suggest that the children were not adoptable.
DISCUSSION
I
Standard of Review
Father contends the evidence was insufficient to prove that Andrew and Ashley
are likely to be adopted within a reasonable time following the termination of parental
rights.
When the sufficiency of the evidence to support a finding or order is challenged on
appeal, even where the standard of proof in the trial court is clear and convincing, the
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reviewing court must determine if there is any substantial evidence--that is, evidence
which is reasonable, credible, and of solid value--to support the conclusion of the trier of
fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d
1206, 1214.) In making this determination we recognize that all conflicts are to be
resolved in favor of the prevailing party and that issues of fact and credibility are
questions for the trier of fact. (In re Jason L., at p. 1214; In re Steve W. (1990)
217 Cal.App.3d 10, 16.) The reviewing court may not reweigh the evidence when
assessing the sufficiency of the evidence. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-
319.)
“The juvenile court’s judgment is presumed to be correct, and it is appellant’s
burden to affirmatively show error. [Citation.]” (In re S.C. (2006) 138 Cal.App.4th 396,
408.)
II
Adoptability
“If the court determines, based on the assessment . . . and any other relevant
evidence, 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.” (§ 366.26, subd. (c)(1).)
Determination of whether a child is likely to be adopted focuses first upon the
characteristics of the child. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) The
existence or suitability of the prospective adoptive family, if any, is not relevant to this
issue. (Ibid.; In re Scott M. (1993) 13 Cal.App.4th 839, 844.) “There must be convincing
evidence of the likelihood that adoption will take place within a reasonable time.” (In re
Brian P. (2002) 99 Cal.App.4th 616, 625.)
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III
Father’s Contentions
Father contends the adoptability evidence was not “clear and convincing,” in that
it was not “so clear as to leave no substantial doubt.” (Quoting In re Jost (1953)
117 Cal.App.2d 379, 383, reversed by Jost v. United States (1954) 347 U.S. 901 [98
L.Ed. 1061].) But whether that was so was a question for the juvenile court; on appeal
the issue is whether there is any substantial evidence to support the juvenile court’s
finding. (In re Angelia P., supra, 28 Cal.3d at p. 924.)
Father does not set forth all the evidence supporting the adoptability finding or
address why that entirety of evidence is insufficient. (See Foreman & Clark Corp. v.
Fallon (1971) 3 Cal.3d 875, 881.) Instead, father argues that the failed legal guardianship
precluded a finding of adoptability because “the strain of caring for these two children
proved to be too much for the legal guardian.”
Even so, the guardian was also the guardian for two older wards who had
experienced prior trauma and who did not want to share their now “comfortable” and
“wonderful” lives with their “house guests,” Andrew and Ashley. The juvenile court
could infer that the guardianship had failed, at least in part, due to the “strain” of this
family dynamic that was not likely to be replicated in other prospective adoptive homes.
The juvenile court could further infer that the guardianship had failed in part
because the guardian did not understand the cause of Ashley’s enuresis or the nature of
the needed therapy and was not comfortable assisting Ashley with the muscle exercises
that could control her condition. As a result of these failures, the enuresis persisted and
further stressed the children’s placement with the guardian. The court could infer that,
with proper treatment from an engaged caretaker, the condition could be treated and
would not threaten a future placement.
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Father notes that the social worker sent “child available” notices to at least a dozen
adoption agencies, which was far more than she ordinarily sends, yet the notices drew no
responses. But father overlooks evidence adduced at the hearing that the notices had
reflected a “legal status” of “high risk” for prospective adoptive families in that a
previous selection and implementation hearing had been held but parental rights had not
been terminated. The “risk” was that “the prospective adoptive parents will enter into the
pre-steps into adoption and then not have it finalized.” Prospective parents would “feel at
risk committing before the child is truly free for placement.” The juvenile court could
infer that, following termination of parental rights, the “child available” notices no longer
would reflect a legal status of “high risk” for prospective adoptive parents.
Father reads the notices as somehow suggesting “the children were ‘high risk.’ ”
As the evidence made plain, it was the prospective adoptive families who were at risk of
the court selecting and implementing a permanent plan other than adoption.
Father claims the adoptions assessments do not provide substantial evidence that
the children are adoptable. Instead, he claims the reports are limited to a “barebones
assertion that the minors ‘are adoptable’ ” and “[a]ll that we have in this case is nothing
but a barebones claim of adoptability.” The relevant reports do not support this claim.
The selection and implementation report for the June 4, 2014, hearing stated that
Andrew is “well-mannered, personable, a wonderful young man with blue eyes and
brownish hair. He loves to play video games, riding bikes, playing tag, and basketball.
Andrew’s dream is to play in the NBA. On May 1, 2014, Andrew’s foster mother
reported that Andrew will be starting football in July 2014. Andrew is physically healthy
and developmentally on target [chronologically] for his age, and he does not appear to
suffer from any extraordinary behaviors or psychological issues.” The report noted that
Andrew is in the fourth grade; as of May 13, 2014, “Andrew did not have a discipline
record, he had no absences, and just three tardies, which two were unexcused and one
was excused. Andrew was proud and justifiably so regarding his recent grades, as out of
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the five graded classes his Grade Point Average . . . was 88.14, plus in Science he
completed 100% of his homework.” The report noted that Andrew receives weekly
therapy to regulate stress, anger, loss, and grief, and to maintain his current placement.
Andrew told the adoptions worker that, if his parents’ rights were terminated, he could
participate as a healthy member of an adoptive family and follow the directives of those
parents. The adoptions worker complemented Andrew on his maturity and insight.
The report described Ashley as “an adorable, blondish/brownish haired, six-year-
old girl. She is charming, articulate, and loves painting and coloring. Overall, Ashley
appears to be developmentally on target. Currently, Ashley is wearing diapers
concerning her enuresis and will be seeing a pediatric urology specialist to rule out any
medical issues regarding said. Ashley’s enuresis could possibly be a medical issue and/or
a psychological issue due to Ashley’s substantiated referral regarding her sexual abuse.
Although, Ashley has received a medical examination concerning her molestations, there
has not been a urological examination that might reveal an internal issue not detected
prior, as she reported being penetrated with an adult penis, an adult digit, and a beer
bottle.” The report noted that “Ashley does not exhibit any extraordinary behavioral
issues. It is reported that she has tantrums, which appear to be age appropriate, especially
with her history.” The report noted that Ashley receives play therapy and will have
conjoint therapy with Andrew regarding his doubting her reports of sexual abuse. Ashley
was enjoying kindergarten and she had no disciplinary record, had been absent only
twice, and had not been tardy to school. Ashley made a drawing of her “perfect family”
that included her current foster sister, current foster mother, Andrew, and herself, within
her current foster home.
Father relies on the juvenile court’s February 28, 2014, remark that the children
had “very extensive and well-documented behavioral problems.” But the report suggests
that the children’s behavioral issues were not extraordinary and were being addressed at
school and in therapy.
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Father claims that, at age 10, Andrew may be found to be difficult to place for
adoption. (§ 366.26, subd. (c)(3); In re Michael G. (2012) 203 Cal.App.4th 580, 591.)
Where such a finding is made, termination of parental rights may be delayed for a
maximum 180 days. (§ 366.26, subd. (c)(3).) But that finding is properly made only
where there is no identified or available prospective adoptive parent “because of” the
child’s membership in a sibling group, diagnosed handicap, or age of seven years or
more. (Ibid; In re B.D. (2008) 159 Cal.App.4th 1218, 1238.) In this case, the evidence
suggested the lack of an identified parent was because of factors, including the “high
risk” designation, that do not trigger application of the subdivision.
Father claims this case is similar to In re B.D., supra, 159 Cal.App.4th 1218, in
that the children were almost ages seven and 11 and they had emotional problems
including enuresis and molestation issues. But the social worker in In re B.D. testified
that B.D. would “require a long therapeutic process before he would accept adoption.”
(Id. at p. 1232.) Here, in contrast, Andrew and father engaged in a therapeutic process
regarding whether visits would continue or not and, in father’s words, Andrew “handled
it pretty well. He’s actually really mature for his age.” Father’s appellate speculation
that Andrew would experience a “meltdown” when he learns he cannot return to father’s
home finds scant support in the record.
In sum, the juvenile court’s finding that the children are adoptable is supported by
evidence that is reasonable, credible, and of solid value. (In re Angelia P., supra,
28 Cal.3d at p. 924; In re Jason L., supra, 222 Cal.App.3d at p. 1214.)
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DISPOSITION
As to each child, the order terminating parental rights is affirmed.
HULL , J.
We concur:
BLEASE , Acting P. J.
NICHOLSON , J.
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