Filed 4/13/21 In re E.R. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 E.R. et al., Persons Coming
Under the Juvenile Court Law.
D078154
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY,
(Super. Ct. No. NJ15444A-B)
Plaintiff and Respondent,
v.
M.R.
Defendant and Appellant.
1
APPEAL from orders of the Superior Court of San Diego County,
Michael Imhoff, Commissioner. Affirmed.
Jamie A. Moran, under appointment by the Court of Appeal, for
Defendant and Appellant.
Office of County Counsel, Caitlin E. Rae, Chief Deputy County Counsel,
and Patrice Plattner-Grainger, Senior Deputy County Counsel, for Plaintiff
and Respondent.
Mi.R. (Father) appeals orders issued in the Welfare and Institutions
Code section 3001 dependency proceedings for his two minor sons, E.R. and
M.R. (the boys), in which the juvenile court found the boys likely to be
adopted and selected permanent plans of adoption for them pursuant to
section 366.26. On appeal, Father contends there is insufficient evidence to
support the court’s findings, by clear and convincing evidence, that the boys
were likely to be adopted. We disagree, and affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
Since February 2018 the boys had been residing with, and primarily
cared for by, their maternal grandmother (Grandmother). In September
2018, police found the boys, then six and four years old, near train tracks and
Father asleep on a bench at a train station. Father was under the influence
of alcohol. In October, the boys’ mother E.S. (Mother), was arrested for
driving under the influence and possessing methamphetamine and drug
1 All statutory references are to the Welfare and Institutions Code.
2
paraphernalia. She was later arrested for attempting to strike Grandmother,
twisting her finger, and forcibly taking her wallet and cell phone. After the
assault, Grandmother obtained a criminal protective order (CPO) against
Mother. A month later, the San Diego County Health and Human Services
Agency (Agency) filed section 300, subdivision (b), dependency petitions for
E.R. and M.R., alleging that there was a substantial risk that they would
suffer serious physical harm or illness due to their parents’ substance abuse.
At the detention hearing, the court detained the boys in out-of-home
care and ordered supervised visitation with their parents. Grandmother was
present at the hearing and asked that the boys be placed with her. Her home
was being assessed through the resource family approval (RFA) process.2
She sought guardianship of the boys. The Agency had concerns about her
practice of allowing Mother and Father to have unsupervised contact with the
boys despite being concerned about their ability to safely care for them.
Finding that the Agency made a prima facie showing on the petitions’
allegations, the court ordered that the boys be detained in confidential foster
care and gave the Agency discretion to detain them with Grandmother.
In its jurisdiction and disposition report, the Agency stated that the
boys were doing well in their foster home, except for an incident where E.R.
placed his hands around M.R.’s neck and did not let go until he was pulled off
his brother. E.R. had no known health concerns, but the foster mother and a
nurse practitioner raised questions about his developmental progress. M.R.
was healthy, except for allergies, and had no known developmental concerns.
2 The RFA process is “a unified approval process to replace the multiple
processes to approve foster care homes, relatives and nonrelative extended
family members, and adoptive homes for the placement of dependent
children.” (In re Charlotte C. (2019) 33 Cal.App.5th 404, 408.)
3
Both Mother and Father failed to meet with the Agency. Father
admitted that he drank two to three times per week and smoked marijuana
to help him sleep. Neither parent met with a substance abuse specialist as
requested. Mother also did not submit to requested drug testing. Neither
parent requested visits with the boys. Grandmother spoke with the boys on
the phone and visited them once, bringing them toys and interacting well
with them. The Agency recommended that the court find the petitions’
allegations true and declare the boys dependents of the court.
After the initial jurisdiction hearing was continued, the Agency
submitted an addendum report stating that Mother had tested positive for
methamphetamines and THC. She was in a voluntary inpatient treatment
program. Mother admitted she had not spoken to Father in weeks and had a
new boyfriend who was a support person for her. Father admitted drinking
daily and that he had placed the boys in a dangerous situation at the train
station. The boys’ foster caregiver stated that they were behaving well and
she had not received any complaints from their school. E.R. was reading
above his grade level and scoring 100 percent on his math tests. At the
December jurisdiction hearing, the court made true findings on the petitions’
amended allegations and gave the Agency discretion to expand
Grandmother’s visits with the boys.3
In January 2019, a court-appointed special advocate (CASA) was
designated for the boys. In an addendum report, the Agency stated that
Father had attended a recovery program; tested positive for alcohol,
methamphetamine, and THC; and had thereafter relapsed and lost his job.
3 The petitions were amended to allege Mother had falsely imprisoned
Grandmother rather than assaulted and robbed her.
4
Mother was on formal probation for the false imprisonment charge. She
reported that she and Grandmother began clashing when she was in high
school and began abusing drugs and alcohol. After graduation from high
school, Mother’s drug and alcohol use increased and Grandmother required
her to leave the home. She met Father after her high school graduation and
they both used methamphetamine and alcohol. Mother acknowledged that
she needs to repair her feelings toward Grandmother. The Agency also
reported that E.R. had a possible issue with his kidney functioning and was
under a physician’s care.
The January disposition hearing was continued as Mother was doing
well in her residential recovery program and the Agency was in the process of
reassessing its recommendations. In its subsequent addendum report, the
Agency stated that Mother’s counselor believed Mother was definitely not
ready to assume physical custody of the boys. Father left his detox program
because he did not like it and wanted to work. He tested negative for drugs
and was interested in an outpatient treatment program.
E.R.’s teacher reported that E.R. was disruptive in class, made noise,
bothered other students, and acted silly. A child and adolescent needs and
strengths (CANS) assessment found that E.R. had anxiety and depression
and was adjusting to trauma, which affected his functioning. Both boys were
receiving therapy. Their therapist reported that after they visited with
Mother, E.R. suffered stomachaches and headaches and M.R. exhibited
behavioral issues, such as hitting and getting upset. She noted that the
foster mother’s calm approach to parenting worked well with the boys.
During an incident at school, E.R. urinated in the bushes on the playground
and told the teacher he really had to go.
5
At the February 2019 contested disposition hearing, the court declared
the boys dependents of the court, placed them in foster care, ordered that
reunification services be provided to Mother and Father, and set a six-month
review hearing date.
The Agency’s six-month review hearing report noted that Mother had
relapsed, resulting in discharge from her treatment program. She tested
positive for methamphetamine, was incarcerated for a probation violation,
and entered another substance abuse treatment program after her release.
While at that program, she violated the rules and was discharged early.
Mother’s visits with the boys were inconsistent, and they exhibited
negative behaviors after visits with her. Father was unemployed and
homeless, and had relapsed into methamphetamine, alcohol, and marijuana
abuse. Father’s visits with the boys were canceled after excessive no-shows.
E.R. received a diagnosis of, and began treatment for, a kidney
condition that requires lifelong medication and monitoring. He was receiving
therapy for anxiety and aggression, which increased after visits with his
parents. M.R. was also receiving therapy for anxiety and aggressive
behaviors, including yelling, biting, and hitting. He had mild to moderate
hearing loss caused by fluid in this ears and was awaiting surgery to relieve
it. He also had allergic rhinitis, sleep disorder breathing, and abnormal
weight loss.
The Agency social worker stated the boys were active, engaging, and
developmentally on target. Although Grandmother had suspended
completion of paperwork necessary for her RFA approval due to the death of
a relative, the Agency had resumed the RFA process and was reassessing her
for placement of the boys. The Agency recommended that the court continue
6
the boys’ placement in foster care and extend their parents’ reunification
services for an additional six months.
At the August 2019 six-month review hearing, the court continued the
boys as dependents and ordered an additional six months of reunification
services for Mother and Father. In late August, M.R. underwent surgical
procedures that returned his hearing to normal.
In late September, the Agency placed the boys with Grandmother. In a
December report, the CASA stated that the boys were happy and doing well
in Grandmother’s care. Their behaviors had improved since being placed
with her. When the CASA observed M.R. becoming close to losing control,
Grandmother was able to calm him with a few words. The boys’ therapist
had reduced their sessions from weekly to biweekly.
In its January 2020 12-month review report, the Agency recommended
that the court terminate reunification services for Father, but continue them
for Mother. Father was homeless, had been sober for only three days before
meeting with the Agency social worker, had been arrested on felony burglary
and theft charges, and was not participating in services. Mother continued to
reside in a residential treatment facility, had a part-time job, and had weekly
visits with the boys that were supervised by Grandmother. However, Mother
subsequently relapsed and ceased participating in any substance abuse
treatment program. The Agency stated that Mother’s and Grandmother’s
relationship had improved. Mother was participating in individual therapy
and understood her methamphetamine use played a part in their past
arguments.
In March addendum reports, the Agency changed its recommendations
and asked the court to terminate reunification services for both parents.
7
Mother had moved in with her new boyfriend and accompanied him to visits
with his children, which was in violation of the Agency’s visitation policy.
Mother had been terminated from the dependency drug court for unexcused
absences and admitted to the Agency that she had an alcohol binge in
January. In addition, Mother’s therapist had terminated her therapy
because of missed appointments. At the March 12-month review hearing, the
court terminated Mother’s and Father’s reunification services and set a
section 366.26 hearing to select permanent plans for the boys.
In its July 2020 section 366.26 report, the Agency recommended that
the court terminate Mother’s and Father’s parental rights and select adoption
as the boys’ permanent plans. The Agency social worker opined that the boys
were specifically adoptable because Grandmother expressed interest in
adopting them. The boys had lived with her since September 2019. She
provided them with daily care, safety, and permanence, and she showed an
ability to meet their developmental, physical, mental, and emotional needs.
They had formed an attachment to her, and she expressed her commitment to
provide them with a long-term home. The boys looked to her for reassurance
and comfort and stated they wished to stay in her care.
The Agency did not believe that the parents’ relationships with the
boys rose to the level of true parent-child relationships. After visits with
their parents, the boys had no difficulty separating from their parents.
Mother and Father continued to struggle with substance abuse.
In August, the court granted Grandmother’s request for de facto parent
status and she became the boys’ educational rights holder. That same month,
Mother filed two section 388 petitions seeking: (1) placement of the boys with
her or, alternatively, resumption of reunification services; and (2)
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unsupervised visits with the boys and a 60-day visit.4 The Agency opposed
Mother’s petitions. In so doing, the Agency social worker stated that
Grandmother had difficulty in the past maintaining consistent boundaries
with Mother and recommended against allowing Grandmother to supervise
Mother’s visits with the boys. The social worker believed Grandmother
would become nervous and easily swayed to make concessions when she felt
pressured by Mother. Also, Grandmother did not want to supervise Mother’s
visits with the boys and believed increased visits with Mother would not be in
their best interests. In an October addendum report, the Agency stated that
the boys’ therapist reported that their severe symptoms had subsided,
although they had some regression after in-person visits resumed with their
parents.
At the October hearing, the court heard Mother’s section 388 petitions
concurrently with the boys’ section 366.26 permanency planning hearing.
The court first conducted an evidentiary hearing on Mother’s petitions and
denied both. The court then conducted an evidentiary hearing on the section
366.26 issues at which it considered the Agency’s section 366.26 report,
related addenda, and other documentary evidence. It also heard testimony
from Father, who stated he opposed the Agency’s recommendation that his
parental rights be terminated. Finding, by clear and convincing evidence,
that it is likely the boys would be adopted within a reasonable period of time,
the court terminated Mother’s and Father’s parental rights and selected
adoption as their permanent plans.
DISCUSSION
4 Father also filed a section 388 petition, seeking resumption of
reunification services, which the court summarily denied.
9
Father challenges the juvenile court’s orders selecting adoption as the
permanent plan for both boys.
1. Adoptability under Section 366.26 Generally
When there is no probability that a child will be reunified with a parent
and reunification services have been terminated, the juvenile court must
conduct a section 366.26 hearing and select a permanent plan for the child.
(In re Celine R. (2003) 31 Cal.4th 45, 52.) "The court has four choices at the
[section 366.26] permanency planning hearing. In order of preference the
choices are: (1) terminate parental rights and order that the child be placed
for adoption . . . ; (2) identify adoption as the permanent placement goal and
require efforts to locate an appropriate adoptive family; (3) appoint a legal
guardian; or (4) order long-term foster care." (Id. at p. 53.) Adoption is the
preferred permanent plan. (In re Valerie A. (2007) 152 Cal.App.4th 987, 997;
In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) The juvenile court does not
consider other permanent plans unless and until adoption has been rejected.
(§ 366.26, subd. (b)(1)-(7); In re Tabatha G. (1996) 45 Cal.App.4th 1159,
1164.)
At a section 366.26 hearing, the juvenile court, in selecting a
permanent plan for a dependent child of the court, must determine whether
Agency has shown, by clear and convincing evidence, that it is likely the child
will be adopted. (§ 366.26, subd. (c)(1).) In making this finding, the court
must consider the Agency's adoption assessment report and any other
relevant evidence. (§ 366.26, subd. (c)(1).) "The juvenile court may terminate
parental rights only if it determines by clear and convincing evidence that it
is likely the child will be adopted within a reasonable time." (In re Carl R.
(2005) 128 Cal.App.4th 1051, 1060.) "[W]hat is required is clear and
10
convincing evidence of the likelihood that the [child] will be adopted within a
reasonable time either by the prospective adoptive family or some other
family." (In re Scott M. (1993) 13 Cal.App.4th 839, 844.)
Although the court need not find a child to be “generally” or
“specifically” adoptable (In re Mary C. (2020) 48 Cal.App.5th 793, 802),
evidence showing that a child is either specifically adoptable or generally
adoptable may support a finding that the child is likely to be adopted within
a reasonable time. (In re A.A. (2008) 167 Cal.App.4th 1292, 1313; In re Sarah
M. (1994) 22 Cal.App.4th 1642, 1651.) "The question of adoptability posed at
a section 366.26 hearing usually focuses on whether the child's age, physical
condition, and emotional state make it difficult to find a person willing to
adopt that child. [Citation.] If the child is considered generally adoptable,
we do not examine the suitability of the prospective adoptive home." (In re
Carl R., supra, 128 Cal.App.4th at p. 1061.) "Usually, the fact that a
prospective adoptive parent has expressed interest in adopting the minor is
evidence that the minor's age, physical condition, mental state, and other
matters relating to the child are not likely to dissuade individuals from
adopting the minor. In other words, a prospective adoptive parent's
willingness to adopt generally indicates the minor is likely to be adopted
within a reasonable time either by the prospective adoptive parent or by some
other family." (In re Sarah M., supra, at pp. 1649-1650.) The presence or
absence of a proposed adoptive family is only one factor to be considered by
the court. (In re David H. (1995) 33 Cal.App.4th 368, 378.) If, however, a
child is found adoptable based solely on a particular family’s willingness to
adopt (i.e., the child is specifically adoptable), the court must find whether
there is any legal impediment to adoption and whether the prospective
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adoptive parents can meet the child’s needs. (In re Carl R., supra, at p. 1061;
In re J.W. (2018) 26 Cal.App.5th 263, 268.)
On appeal from an order finding a child is likely to be adopted within
the meaning of section 366.26, we apply the substantial evidence standard of
review. (In re B.D. (2008) 159 Cal.App.4th 1218, 1232; In re Jennilee T.
(1992) 3 Cal.App.4th 212, 223-224.) In determining whether there is
substantial evidence to support a finding or order, "[w]e do not evaluate the
credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts.
Rather, we draw all reasonable inferences in support of the findings, consider
the record most favorably to the juvenile court's order, and affirm the order if
supported by substantial evidence even if other evidence supports a contrary
conclusion." (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.) The appellants
challenging that finding bear the burden on appeal to show there is
insufficient evidence to support the court's findings and orders. (Ibid.; In re
D.M. (2012) 205 Cal.App.4th 283, 291.) In determining whether there is
substantial evidence to support the court’s finding by clear and convincing
evidence, we determine whether the record 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.” (In re Conservatorship
of O.B. (2020) 9 Cal.5th 989, 1005.)
2. Substantial Evidence Supports the Court’s Adoptability Findings
Father contends there is insufficient evidence to support the juvenile
court’s findings, by clear and convincing evidence, that the boys are likely to
be adopted within a reasonable time. He argues E.R. has a serious kidney
condition that requires medications and frequent medical care, that both boys
have unresolved emotional issues and have exhibited negative behaviors,
12
especially after visits with Mother, and that Grandmother is unable to
maintain boundaries with Mother and protect the boys and care for their
needs on a permanent basis without the assistance of the Agency and
juvenile court.
Based on our review of the record, we conclude there is substantial
evidence to support the juvenile court’s finding, by clear and convincing
evidence, that both boys are likely to be adopted within a reasonable time. In
particular, there is substantial evidence to support an implied finding by the
court that the children are specifically adoptable. The Agency opined the
boys are specifically adoptable and recommended that the court find the boys
are adoptable. Grandmother had completed the RFA approval process and
wanted to adopt the boys. She had cared for them on and off for most of their
lives. The boys had lived with her for the 12-month period before the section
366.26 hearing and she provided them with daily care, safety, and
permanence. They had also lived with her, and she had been their primary
caretaker, from February 2018 until early November 2018, when they were
detained in their dependency proceedings.
The Agency concluded that Grandmother had shown an ability to meet
the boys’ developmental, physical, mental, and emotional needs and it had no
concerns regarding her ability to care for them. They had formed an
attachment to her, looked to her for reassurance and comfort, and wished to
stay in her care. In turn, she was committed to providing the boys with a
long-term home. In December 2019, the boys’ CASA reported that they were
doing well in Grandmother’s care. In July 2020, their CASA reported that
the boys were “thriving” in her care and agreed with the Agency’s
recommendation for the court to terminate parental rights and select
permanent plans of adoption for them.
13
As to Father’s concerns with behavioral issues, the boys’ therapist
reported that many of their severe symptoms had subsided. The Agency
stated that the boys’ negative behaviors had improved, except after in-person
visits with their parents. In January 2019, E.R. began therapy and
subsequently learned coping skills to manage his anxiety and aggression.
When he did not have contact with his parents, E.R. did not exhibit negative
behaviors, such as chewing on his shirt collar. Furthermore, whereas before
his placement with Grandmother E.R. would exhibit his anxiety by chewing
on his shirt collar, after he was placed with Grandmother in September 2019,
E.R.’s teacher did not notice that negative behavior.
The developmental concerns initially raised during the boys’
dependencies appeared to be resolved by their primary physician’s conclusion
that they were at normal growth and development levels for their ages.
Although E.R. has a serious kidney condition and requires lifelong
medications, Grandmother had shown over the 12-month period prior to the
section 366.26 hearing that she was able to monitor his condition and ensure
his compliance with taking his medications. On that basis, the court could
reasonably infer that Grandmother would be able to meet the boys’ needs on
a permanent basis even without the assistance of the Agency or the court.
The possibility that a child may have future problems does not make that
child unlikely to be adopted. (In re Jennilee T., supra, 3 Cal.App.4th at pp.
223-225.)
Here, Grandmother wished to adopt the boys despite any medical or
behavioral issues they had or may have in the future. Also, she had received
RFA approval and the record contains no evidence of any legal impediment to
her adoption of the boys. Therefore, based on the evidence showing that
Grandmother can meet the boys’ needs and wished to adopt them, and that
14
there is no legal impediment to adoption, we conclude there is substantial
evidence to support the court’s finding, by clear and convincing evidence, that
the boys are likely to be adopted in a reasonable time despite any medical,
emotional, or behavioral problems that either of them had or may have in the
future. (§ 366.26, subd. (c)(1); In re Carl R., supra, 128 Cal.App.4th at pp.
1061-1062; In re J.W., supra, 26 Cal.App.5th at p. 268; In re David H., supra,
33 Cal.App.4th at p. 378 [existence of prospective adoptive parents is factor
in determining whether child is adoptable]; cf. In re Helen W. (2007) 150
Cal.App.4th 71, 79 [children were likely to be adopted despite physical and
developmental conditions].)
Contrary to Father’s assertion, there was evidence showing that the
strained relationship between Mother and Grandmother had improved and
that Grandmother would be able to maintain adequate boundaries to protect
the boys from Mother, if necessary. Although Grandmother previously
declined to supervise Mother’s visits with the boys, apparently because of her
past difficulties with Mother, the court could reasonably infer that those past
difficulties did not mean Grandmother could not adequately protect the boys
in the future. Mother’s difficulties with Grandmother were in large part due
to Mother’s drug use and bad choices; Mother was now getting along better
with Grandmother after participating in individual therapy and learning how
her methamphetamine use played a part in their past arguments. The court
could reasonably infer that because of Grandmother’s improved relationship
with Mother and her prospective legal status as the boys’ parent, she would
be fully capable of protecting the boys if Mother were to take any action that
might place them at risk emotionally or physically. In particular, after
adoption Grandmother may, but need not, permit Mother to visit with the
boys on such terms that ensure their safety and well-being.
15
Father has not carried his burden on appeal to show there is
insufficient evidence to support the court’s finding, by clear and convincing
evidence, that the boys are likely to be adopted in a reasonable time.5 To the
extent he cites evidence or inferences that would have supported a contrary
finding by the court, he misconstrues and/or misapplies the substantial
evidence standard of review.
5 In particular, unlike in In re Valerie W. (2008) 162 Cal.App.4th 1, cited
by Father, the Agency’s section 366.26 report included an assessment of the
boys’ medical, emotional, and behavioral needs, Grandmother’s ability to
meet those needs, and her eligibility and commitment to adopt the boys. (Cf.
In re Valerie W., at pp. 6, 13, 15.) Furthermore, because Father does not
challenge the adequacy of the Agency’s adoption assessment and solely
argues there is insufficient evidence in the record to support the court’s
finding of adoptability, we need not, and do not, address the Agency’s
argument that Father forfeited or waived any challenge to that assessment
by not objecting to it in the juvenile court.
16
DISPOSITION
The orders are affirmed.
DATO, J.
WE CONCUR:
BENKE, Acting P. J.
O'ROURKE, J.
17