Filed 4/8/21 In re A.D. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re A.D., a Person Coming Under
the Juvenile Court Law.
D078196
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY, (Super. Ct. No. EJ4348)
Plaintiff and Respondent,
v.
M.C.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Marian F. Gaston, Judge. Affirmed.
Jamie A. Moran, under appointment by the Court of Appeal, for
Defendant and Appellant.
Caitlin E. Rae, Chief Deputy County Counsel, and Eliza Molk, Senior
Deputy County Counsel, for Plaintiff and Respondent.
M.C. (Mother) appeals from a judgment of the juvenile court
terminating her parental rights as to minor child A.D. Mother asserts there
is insufficient evidence to support the juvenile court’s finding that A.D. was
adoptable. We conclude there is substantial evidence to support the finding
and affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
A
A.D. was placed on a hospital hold after testing positive for cocaine at
birth. Mother admitted to using narcotics while pregnant. She identified
D.D., who was present at the hospital, as A.D.’s father. D.D. admitted
knowing about Mother’s drug use during the pregnancy. In addition, Mother
disclosed incidents of domestic violence in which D.D. dragged her, kicked
her, and threw objects at her pregnant belly. D.D. denied the allegations but
admitted it sometimes became physical when he and Mother fought.
The San Diego County Health and Human Services Agency (the
Agency) filed a juvenile dependency petition on A.D.’s behalf shortly
thereafter, in January 2019. The juvenile court found the Agency made a
prima facie showing on the petition, and A.D. was placed in a confidential
foster home while the Agency evaluated the home of D.D.’s cousin, Terri G.1
Mother continued to test positive for cocaine. Mother denied any
domestic violence between her and D.D., but the maternal grandmother
reported Mother and D.D. often argued and said she had heard D.D.
threatening Mother.
1 Terri G. (Terri) was considered a relative at the time, but later became
a non-relative extended family member (NREFM) when testing revealed D.D.
was not A.D.’s biological father.
2
In a jurisdiction and disposition report dated February 4, 2019, the
Agency indicated A.D. was doing well and recommended she remain placed
with her current foster parent while they continued to assess Terri as a
relative placement.
B
In an addendum report dated March 4, the Agency reported A.D. had
been placed with Terri.
A.D. underwent a development and behavioral screening in late
February and scored in the mid-range due to sleeping concerns and an
inability to self-soothe. Mother reported a concern about redness on A.D.’s
face and Terri confirmed there was some redness but stated it was improving.
Terri later indicated A.D.’s face was bumpy, and said she planned to take
A.D. to the doctor because she thought it might be a reaction to her formula.
Mother also expressed concerns that Terri allowed her 19-year-old niece to
care for A.D. while she worked during the day, but Terri stated the niece was
qualified to care for A.D.
Mother continued to test positive for cocaine. Her substance abuse
counselor recommended an inpatient program, but Mother expressed
resistance. Mother denied using cocaine and said she did not know why she
continued to test positive. The counselor indicated Mother would likely be
discharged from her program due to noncompliance. D.D. also tested positive
for cocaine, and both missed several visits with A.D.
On April 11, 2019, the juvenile court made true findings on the petition
by clear and convincing evidence, and ordered that A.D. remain placed with
Terri.
The court also ordered paternity testing for D.D. and, based on the
results of that testing, subsequently found D.D. was not A.D.’s biological
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father. The court struck D.D. from the petition, but A.D. remained placed
with Terri as an NREFM.
Mother identified another alleged father, D.S., shortly thereafter. The
Agency made repeated attempts to contact D.S., but he did not respond to
letters or telephone calls from the social worker and failed to appear at court.
C
In August 2019, the Agency received a report indicating A.D. was
extremely underweight and demonstrated signs of unmitigated hunger while
being fed. The witness said A.D. was approximately 11 pounds at seven
months old and “look[ed] like a skeleton.”
An Agency social worker made an unannounced visit to Terri’s
residence that same day. Terri was not home at the time and the niece would
not let the social worker into the home. Terri returned home but refused to
allow the social worker to hold or touch A.D., and the social worker called law
enforcement for assistance.
A.D. was removed from the home that evening and taken directly to
Rady Children’s Hospital (Rady’s) for evaluation. A physician at Rady’s
indicated A.D. was less than the second percentile on the growth chart and
diagnosed A.D. as failure to thrive. The social worker indicated A.D. had not
taken any formula for several hours while in her care and it appeared A.D.
did not know how to drink from a bottle. A.D. was admitted to the hospital
for monitoring.
A child abuse specialist reviewed A.D.’s records and indicated A.D. had
steadily declined on the growth chart since birth. Although A.D. was getting
sufficient calories to maintain height growth, she was not receiving enough
calories to maintain appropriate weight growth. Terri said she was giving
A.D. 16 ounces of formula a day, and the doctor indicated this was not
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sufficient for an infant A.D.’s age. In addition, A.D. demonstrated a general
inability to suck, which suggested a prolonged period without bottle feeding,
and significant daily weight gain while in the hospital consistent with “catch
up growth.”
The Agency filed a second juvenile dependency petition on behalf of
A.D. on August 22, 2019, and alleged Terri was no longer an appropriate
caregiver. The juvenile court found the Agency made a prima facie showing
on the petition and removed A.D. from Terri’s care.
D
A.D. was subsequently placed in a confidential licensed foster home
and adjusted well to the placement. The caregiver indicated at the outset
that she was unable to provide long-term care for A.D., but said she was
committed to caring for her until reunification or a permanent placement
became available.
In September 2019, the juvenile court made true findings on the
petition by clear and convincing evidence and ordered continued placement of
A.D. in the foster home.
In November, A.D. was diagnosed with a food allergy. The caregiver
followed up with the allergy department at Rady’s and further testing
indicated A.G. had a minor allergy to egg. The allergist recommended the
caregiver give A.D. one serving of baked egg each day, which the caregiver
did without incident.
Meanwhile, Mother continued to test positive for cocaine. She entered
a new treatment program but refused to allow the social worker to speak
with her counselor. Mother also attended drug court, but the court reported
poor compliance. As a result, in November 2019, the Agency recommended
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the juvenile court terminate reunification services for Mother and set a
Welfare and Institutions Code2 section 366.26 permanency hearing.
The juvenile court adopted the recommendations and terminated
services for Mother.
E
In February 2020, A.D. transitioned into a new foster home with
caregivers that expressed a willingness to adopt her. A.D. had gained weight
somewhat consistently with the previous caregivers but continued to be
diagnosed with poor weight gain and mild developmental delays.
In a section 366.26 report dated March 16, 2020, the Agency indicated
A.D. was “generally adoptable based on her numerous appealing
characteristics such as her young age, attractive physical appearance and
appropriate physical, mental and emotional development.” In addition, the
Agency indicated A.D. was specifically adoptable by her current caregivers,
who expressed a desire to provide a permanent home for A.D. Although A.D.
tested positive for cocaine at birth, the Agency noted she was an overall
healthy toddler that presented with a happy and friendly demeanor. The
Agency indicated it had no apprehensions about finding a home for A.D. if the
need arose. A court appointed special advocate (CASA) submitted a report
around the same time and also indicated A.D. was adjusting well to the new
caretakers, and they were interested in adopting A.D.
Mother stopped visiting with A.D. in person in March, in part due to
the Covid-19 pandemic. In May she told the Agency social worker she could
not resume in person visits because of transportation issues. The Agency
offered bus passes, but Mother responded she would continue with virtual
2 All further statutory references are to the Welfare and Institutions
Code.
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visits. Mother had two virtual visits with A.D. in June, one additional virtual
visit with A.D. in July, and two in-person visits in August.
Meanwhile, D.S. contacted the Agency social worker and requested
paternity testing. The juvenile court ordered the testing and it confirmed
D.S. was A.D.’s biological father. D.S. had two visits with A.D. in August
2020.
That same month, A.D.’s caretakers submitted a caregiver information
form and a request to be named as de facto parents for A.D. In an addendum
report dated August 31, 2020, the Agency noted A.D. was thriving with her
current caretakers and continuing to gain weight. A.D. viewed them as her
primary caregivers and referred to them as “Mom and Dad.” The Agency
noted D.S. had said he wanted to be part of A.D.’s life, but recommended
termination of his parental rights to allow for permanency for A.D.
In an addendum report submitted in October, the Agency indicated
A.D. had been in her current placement for approximately eight months,
which was the longest A.D. had been in any single placement. The Agency
reported A.D. had established a secure and predictable routine and continued
to refer to her caregivers as “Mom and Dad.” The Agency therefore continued
to recommend the juvenile court terminate Mother’s and D.S.’s parental
rights to allow for adoption.
At the section 366.26 hearing on November 2, 2020, Mother asserted
A.D. was not generally or specifically adoptable based on her slow weight
gain and need for ongoing physical and occupational therapy. Counsel for
D.S. indicated D.S. had decided it was in A.D.’s best interest to remain with
her current caregivers. After hearing argument, the juvenile court found
A.D. was both generally and specifically adoptable. The court terminated
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Mother’s and D.S.’s parental rights and granted prospective adoptive parent
status to A.D.’s caregivers.
Mother appeals.
DISCUSSION
Mother’s sole contention on appeal is that there is insufficient evidence
to support the juvenile court’s finding that A.D. was adoptable.
I
Once the juvenile court terminates reunification services in a
dependency proceeding, the focus shifts from preserving the family to
promoting the best interests of the child, including the child’s interest in a
stable, permanent placement. (In re Stephanie M. (1994) 7 Cal.4th 295, 317;
In re Fernando M. (2006) 138 Cal.App.4th 529, 534; In re Autumn H. (1994)
27 Cal.App.4th 567, 573.) At that point, the juvenile court has three options;
it can terminate parental rights to allow for adoption, appoint a legal
guardian, or place the child in long-term foster care. (In re Fernando M.,
supra, at p. 534.) Adoption is the preferred option, so long as the juvenile
court finds, “by a clear and convincing standard, that it is likely the child will
be adopted.” (§ 366.26, subd. (c)(1); In re Autumn H., supra, at p. 573.)
In determining whether it is likely that a child will be adopted, the
juvenile court considers whether the child's age, physical condition, and
emotional state make it likely that a family willing to adopt the child will be
identified, or whether a specific family willing to adopt the child has already
been identified. (In re Zeth S. (2003) 31 Cal.4th 396, 406; In re B.D. (2008)
159 Cal.App.4th 1218, 1231; In re Carl R. (2005) 128 Cal.App.4th 1051,
1061.) If the court determines the child is generally adoptable, it is not
required to examine the suitability of a particular prospective adoptive home;
but if the juvenile court determines the child is specifically adoptable based
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on a finding that a particular family is willing to adopt the child, the court
must determine whether there is a legal impediment to the adoption. (In re
Carl R., supra, at p. 1061.)
We affirm the juvenile court’s finding of adoptability on appeal if there
is substantial evidence to support a finding, by clear and convincing evidence,
that the child is either generally or specifically adoptable. (See In re Gregory
A. (2005) 126 Cal.App.4th 1554, 1561-1562). The California Supreme Court
recently clarified, “when presented with a challenge to the sufficiency of the
evidence associated with a finding requiring clear and convincing evidence,
the [appellate] court must determine whether the record, viewed as a whole,
contains substantial evidence from which a reasonable trier of fact could have
made the finding of high probability demanded by this standard of proof.”
(See In Re Conservatorship of O.B. (2020) 9 Cal.5th 989, 1005.)
As the appellant, Mother bears the burden of establishing there is
insufficient evidence to support the juvenile court’s adoptability finding. (In
re R.C. (2008) 169 Cal.App.4th 486, 491.)
II
Here, there was substantial evidence to support the juvenile court’s
finding that A.D. was both generally and specifically adoptable.
At the time of the section 366.26 hearing, A.D. was not quite two years
old. She was an active, social, and generally happy child. She napped
regularly and enjoyed swinging, reading books, and dancing to music. The
Agency indicated she was “generally adoptable based on her numerous
appealing characteristics such as her young age, attractive physical
appearance and appropriate physical, mental and emotional development.”
According to the Agency, A.D. met the qualifications for numerous adoptive
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families and it had no concerns about finding a placement for A.D. if the need
arose.
In addition, A.D. had been placed with the prospective adoptive family
for over eight months. She was secure and thriving in their care despite her
medical and developmental challenges and referred to them as “Mom and
Dad.” She was healthy and gaining weight, her speech had improved, and
she was doing well with gross motor, fine motor, problem solving, personal,
and social skills. The prospective adoptive parents had attended numerous
medical and therapy appointments with A.D. and, despite being well aware of
any associated challenges, they expressed a desire to adopt A.D. They had
previously adopted two other children through the Agency, understood the
commitment, and indicated they were willing and able to meet A.D.’s daily
needs on an ongoing and permanent basis.
Mother asserts the Agency failed to present the juvenile court with the
necessary clear and convincing evidence to establish A.D. was adoptable. As
Mother points out, section 366.21, subdivision (i), requires the Agency to
provide “[a] preliminary assessment of the eligibility and commitment of any
identified prospective adoptive parent . . . to include a social history including
screening for criminal records and prior referrals for child abuse or neglect,
the capability to meet the child's needs, and the understanding of the legal
and financial rights and responsibilities of adoption and guardianship.”
However, Mother specifically does not contend there was any defect in the
Agency’s assessment that necessitates reversal, and instead contends the
Agency did not provide sufficient evidence to support the juvenile court’s
adoptability findings.
Specifically, Mother asserts the Agency did not provide sufficient
evidence the caregivers were sufficiently aware of or willing and able to
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address A.D.’s medical challenges. We disagree. A.D. had undergone
numerous assessments related to her slow weight gain, allergies, and general
development. The prospective adoptive parents were well aware of A.D.’s
medical and developmental needs and demonstrated a willingness to attend
to those needs. A.D. had been gaining weight while in their care and had
graduated from some of her services. Moreover, as discussed, the prospective
adoptive caregivers wanted to adopt A.D.
Mother contends In re Valerie W. (2008) 162 Cal.App.4th 1 (Valerie W.)
is instructive here, but it is not. In Valerie W., the court found the Agency
failed to comply with the assessment requirements of section 366.21,
subdivision (i), and those failures undermined the juvenile court’s finding of
adoptability. (Id. at pp. 13-15.) Mother asserts the Agency’s assessment in
this case was similarly lacking, but she expressly does not allege the Agency
failed to meet the requirements of section 366.21, subdivision (i), and also
does not allege the Agency failed to include any specific information in its
reports.
Specifically, the court in Valerie W. concluded the Agency failed to
include important information in its reports regarding recent test results and
pending testing regarding one of the children being considered for adoption.
(Id., at p. 13.) Mother contends A.D. had special needs like the child at issue
in Valerie W., but she relies heavily on the Agency’s reports to describe those
needs, belying her own contention. Indeed, Mother is only able to rely on the
Agency reports because they contained extensive detailed information
regarding A.D.’s medical and developmental history and needs.
Moreover, there was substantial evidence, in the Agency’s reports and
the prospective foster parents’ own de facto parent status request, indicating
the prospective adoptive parents were fully aware of A.D.’s special needs, and
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both capable and willing to meet those needs on an ongoing and permanent
basis. The mere fact that A.D. had some medical or developmental needs was
not an impediment to adoption, particularly where, as here, the prospective
adoptive parents were well aware of and attentive to those needs. (See In re
Helen W. (2007) 150 Cal.App.4th 71, 79-80.) Rather, A.D.’s specialized needs,
and the caregivers’ attentiveness to those needs, weigh in favor of
permanency for A.D.
DISPOSITION
The judgment is affirmed.
McCONNELL, P. J.
WE CONCUR:
AARON, J.
DATO, J.
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