Filed 11/24/20 In re Melody I. CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re Melody I., a Person Coming B305843
Under the Juvenile Court Law.
______________________________ (Los Angeles County
LOS ANGELES COUNTY Super. Ct. No.
DEPARTMENT OF CHILDREN 18CCJP03647C)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
MONIQUE I.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Jana Seng, Judge. Affirmed.
Deborah Dentler, under appointment by the Court of
Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kim Nemoy, Assistant
County Counsel, and Jane Kwon, Principal Deputy County
Counsel, for Plaintiff and Respondent.
______________________
We affirm the juvenile court’s order finding a child
adoptable and terminating a mother’s parental rights. All
unspecified statutory references are to the Welfare and
Institutions Code.
I
Monique I. and Sergio L. had a daughter, Melody I., born in
March of 2018. The mother has four other children who are not
directly involved in this appeal.
The mother was inconsistent in her efforts to obtain
prenatal care while pregnant with Melody. The mother had a
history of using methamphetamine. She first became addicted to
drugs when she was 12 years old and had been addicted to drugs
for 17 years.
The father used methamphetamine and he was violent with
the mother. The mother went to the emergency room while
pregnant with Melody because the father hit the mother’s face
and belly.
In June 2018, the Department filed a petition under section
300 on behalf of two-month-old Melody. The petition alleged
Melody was at substantial risk of serious harm due to the
mother’s drug abuse and the mother’s failure to protect Melody
from the father, who abused methamphetamine and beat the
pregnant mother. Two other allegations were about the mother
driving Melody’s half siblings while under the influence of
marijuana.
The court found section 300 applied to Melody and detained
Melody from the mother.
On June 12, 2018, Melody began living with her paternal
aunt and uncle and their six children. Melody had known the
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family since she was born. She appeared comfortable in their
home and she had started to bond with her cousins.
The aunt and uncle had to meet certain guidelines for
Melody to remain in their care. The uncle had been arrested in
October 2002 for driving under the influence of alcohol or drugs.
The Department told the aunt and uncle they would need to get a
waiver because of the arrest.
On August 28, 2018, the court held a jurisdiction and
disposition hearing. The court dismissed the allegations related
to Melody’s half siblings and otherwise sustained an amended
section 300 petition. The court declared Melody a dependent,
removed her from the mother’s custody, and ordered family
reunification services with monitored visitation.
The mother missed 12 drug tests between August 2018 and
January 2019.
In October 2018, Melody’s maternal grandfather reported
the mother broke a window at his home. The same month, a
Department social worker said the mother appeared under the
influence of drugs at the Department’s office. The mother
decided not to enroll in an inpatient drug program.
In November 2018, the mother said she stopped visiting
Melody because she had been using drugs and did not want
Melody to see her that way.
In December 2018, the mother broke into the paternal
aunt’s home.
In January 2019, the mother told a social worker she was
over four months pregnant and had not been getting prenatal
care. She tested positive for marijuana twice that month.
In February 2019, the mother entered a drug treatment
program but the program discharged her early “due to her
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temperament.” The mother failed to complete several court-
ordered programs.
Melody remained with her aunt and uncle. In March 2019,
the Department reported Melody was thriving. The aunt took
her to medical appointments. Melody had no medical, emotional,
or behavioral issues, but her motor skills lagged. The aunt
secured services for Melody to address this situation.
The mother did not call the aunt and uncle to check on
Melody, did not attend Melody’s medical appointments or therapy
sessions, and did not maintain regular visits.
On April 17, 2019, the court terminated the mother’s
reunification services, ordered permanency placement services
for Melody, and set the matter for a section 366.26 selection and
implementation hearing.
In June 2019, a court detained the mother’s newborn son
from her custody because she used methamphetamine during her
pregnancy. The mother tested positive for the drug two weeks
before he was born.
In August 2019, the Department reported Melody was
adoptable and her aunt and uncle wanted to adopt her. The aunt
and uncle met Melody’s psychological, emotional, and physical
needs. Melody continued to receive therapy for her motor skills.
The aunt and uncle facilitated Melody’s contact with her brother
and maternal grandfather.
The mother admitted she and the father used
methamphetamine on August 24, 2019 and they got into a fight.
The mother punched the father. She threw a bike at the paternal
grandmother, who observed the fight. Days later, the mother
entered an inpatient treatment program, where she tested
positive for methamphetamine and marijuana.
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On September 17, 2019, the resource family approval
program, which assesses whether families are fit to care for
dependent children (see § 16519), denied approval for the aunt
and uncle. According to the Department, the approval program
had denied the uncle’s waiver for his 2002 arrest.
The aunt and uncle said they were committed to providing
permanency for Melody and were in the process of appealing the
denial. The uncle enrolled in a class to help resolve the arrest
issue. A social worker involved in the approval program did not
foresee any “further barriers” in the approval process.
In October 2019, the Department reported Melody
continued to thrive with her aunt and uncle. Melody had been
meeting developmental milestones. She attended weekly
physical therapy. She had bonded with her aunt, uncle, and six
cousins. Melody saw her half siblings at a barbeque her aunt and
uncle hosted in September 2019. She had no medical, mental, or
emotional issues.
On October 16, 2019, the juvenile court ordered adoption as
Melody’s permanent plan.
On December 12, 2019, the mother filed a petition under
section 388 requesting the court order Melody to be in her care or
in the alternative, to reinstate family reunification services.
The mother offered evidence she completed 82 days at an
inpatient drug treatment program; completed parenting,
domestic violence, and anger management classes; had several
negative drug tests between October 2019 and January 2020; and
visited Melody.
In January 2020, the Department submitted an interim
review report. Melody continued to thrive and meet
developmental milestones. Her language development was good.
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She was making progress through her weekly physical therapy.
She was well-liked by her six cousins, who were “extremely
bonded” to her. She was “very bonded” to her aunt and uncle. In
November 2019, the approval program confirmed receipt of the
aunt and uncle’s appeal and the aunt and uncle were awaiting a
resolution hearing date. The uncle completed the class in which
he had enrolled.
The court held a section 388 and section 366.26 hearing on
February 5, 2020. Melody was 22 months old. The court denied
the section 388 petition.
For the section 366.26 portion of the hearing, the mother
requested the court make Melody’s permanent plan legal
guardianship, not adoption. She said the parent-child beneficial
relationship exception to adoption applied and terminating her
parental rights would not be in Melody’s best interests.
Melody’s counsel disagreed with the mother and said no
exception applied. The mother consistently visited Melody only
after she was in a treatment program or sober living home, and
only when the Department transported Melody to the mother.
Furthermore, the mother visited Melody just once a week.
Melody did not see the mother as a parental figure. In contrast,
Melody had bonded with the aunt, uncle, and their children.
Melody’s counsel said adoption would provide Melody with the
highest level of permanency. The Department agreed with
Melody’s counsel.
The court found Melody adoptable and found adoption was
in her best interests. The mother maintained regular visits but
had not established a bond with Melody nor taken on a parental
role. The court found it would be detrimental to return Melody to
the mother, no exception to adoption applied, and there were no
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legal impediments to adoption. The court terminated the
mother’s parental rights. The court designated the aunt and
uncle as Melody’s prospective adoptive parents.
The mother timely appealed.
II
The order finding Melody adoptable was proper.
At a section 366.26 permanency planning hearing, the
court determines whether, by clear and convincing evidence, it is
likely someone will adopt the child within a reasonable time.
(§ 366.26, subd. (c)(1); In re Zeth S. (2003) 31 Cal.4th 396, 406.)
The shorthand for this inquiry is “adoptable” or “adoptability.” If
a child is adoptable, the court must terminate parental rights and
order the child placed for adoption. (§ 366.26, subd. (c)(1).)
Absent certain statutory exceptions, the legislature’s preferred
choice for adoptable children is adoption and termination of
parental rights. (In re Celine R. (2003) 31 Cal.4th 45, 53.)
The focus of the adoptability inquiry is the child, not the
potential adoptive parents. (In re Josue G. (2003) 106
Cal.App.4th 725, 733 (Josue).) Indeed, the court may find a child
adoptable even absent a placement with someone prepared to
adopt the child. (§ 366.26, subd. (c)(1).)
A child may be generally adoptable, meaning the child’s
individual attributes make it likely someone will adopt the child
irrespective of whether there is a prospective adoptive family. (In
re A.A. (2008) 167 Cal.App.4th 1292, 1313 (A.A.).)
Factors supporting a child’s general adoptability include
young age, good physical and emotional health, intellectual
growth, and ability to develop interpersonal relationships. (In re
Gregory A. (2005) 126 Cal.App.4th 1554, 1562.) A person’s
interest in adopting the child tends to show someone, either that
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prospective parent or another parent, will adopt the child. (In re
Sarah M. (1994) 22 Cal.App.4th 1642, 1649–1650 (Sarah).)
A child who is not generally adoptable may be specifically
adoptable. If a particular prospective family wishes to adopt a
child, the child may be specifically adoptable notwithstanding
factors such as the child’s older age, poor health, physical
disability, or emotional instability. (Sarah, supra, 22
Cal.App.4th at p. 1650.) In such a circumstance, the court
examines whether legal impediments may prevent that family
from adopting the child. (Ibid.)
The court must make an express finding of adoptability but
it need not make an express finding about whether the child is
generally or specifically adoptable. (See A.A., supra, 167
Cal.App.4th at p. 1313 [no requirement to make express finding
of general adoptability].)
We review a juvenile court’s finding of adoptability for
substantial evidence. (Josue, supra, 106 Cal.App.4th at p. 732.)
We must determine whether the record contains substantial
evidence from which a reasonable trier of fact could have made
the finding of high probability demanded by the clear and
convincing standard of proof. (Conservatorship of O.B. (2020) 9
Cal.5th 989, 1005, 1009.) We do not reweigh evidence. (Id. at p.
1008.)
The mother incorrectly contends substantial evidence did
not show Melody was likely to be adopted within a reasonable
time. On appeal, she raises no arguments about statutory
exceptions. We therefore do not analyze exceptions.
Substantial evidence supported the adoptability finding.
The evidence showed Melody was generally adoptable. Her
young age made adoption more likely. She was thriving. She
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had good language development. She had no medical, mental, or
emotional issues. While her motor development had lagged, she
attended therapy and was progressing. Her close bonds with her
aunt, uncle, and six cousins showed she could develop
interpersonal relationships. With the aunt and uncle’s
coordination, she also maintained relationships with her siblings
and maternal grandfather. The aunt and uncle’s interest in
adopting Melody tended to show it was likely someone would
adopt her.
The mother incorrectly says there was “no evidence” the
aunt and uncle would adopt Melody in a reasonable time because
the resource family approval program had not approved them.
Evidence showed the aunt and uncle had taken steps to resolve
the approval issue. Even absent that evidence, the mother’s
argument dismisses the possibility Melody was generally
adoptable. The Department made this argument in its
respondent’s brief and the mother decided not to reply. As we
explained, substantial evidence showed Melody was generally
adoptable.
Contrary to the mother’s argument, this case is unlike In re
Jerome D. (2000) 84 Cal.App.4th 1200. In Jerome, the evidence
was insufficient to support a finding of general adoptability. (Id.
at p. 1205.) The child was eight years old, had a close
relationship with his mother, with whom he had lived for most of
his life, and had a prosthetic eye that needed care and treatment.
(Id. at pp. 1205, 1207.) Melody does not share these
characteristics.
The court properly found Melody adoptable and therefore
properly terminated the mother’s parental rights.
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DISPOSITION
We affirm.
WILEY, J.
WE CONCUR:
GRIMES, Acting P. J.
STRATTON, J.
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