California Cases July 31, 2020: L.A. Cnty. Dep't of Children & Family Servs. v. Ja.P. (In re J.P.)

Case Description

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. DK21632A)

APPEAL from an order of the Superior Court of Los Angeles County, Nichelle L. Blackwell, Judge Pro Tempore. Affirmed.

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Mitchell Keiter, under appointment by the Court of Appeal, for Defendant and Appellant.

Mary C. Wickham, County Counsel, Kim Nemoy, Acting Assistant County Counsel, Brian Mahler, Deputy County Counsel, for Plaintiff and Respondent.

In these dependency proceedings, Ja.P. (mother) appeals from a juvenile court order terminating her parental rights over J.P., her three-year-old daughter, contending the court erred in finding the child to be adoptable despite her special needs. We affirm.

In October 2017, the juvenile court found that J.P. was at substantial risk of suffering serious physical harm based on a history of domestic violence between mother and her male companion, mother's substance abuse and engagement in a number of endangering activities, and the dependency history of an older sibling, who had sustained non-accidental injuries and as to whom mother's parental rights had been terminated. The court removed J.P. from mother's physical custody and ordered family reunification services that included drug and alcohol services for mother, domestic violence support, parenting education, individual counseling, and monitored visitation. J.P. was placed in the Foster Family Network home of a Ms. Jackson.

At the six-month review hearing the court found mother had complied only partially with her case plan, and at the 12-month hearing found she had failed to make substantial progress. The court terminated reunification services and ordered the Department of Children and Family Services (DCFS or the

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department) to evaluate a maternal great-aunt for possible placement.

DCFS reported that J.P. was "very active and playful" with Ms. Jackson, had a "healthy appetite," and received all necessary medical and dental care. The maternal great-aunt's home offered ample necessities and posed no safety hazards, and the aunt was attentive to and engaged with J.P., who responded well in the relationship. Both Ms. Jackson and the aunt expressed interest in adopting J.P. and committed to ensure that the child continue to receive services if adopted. In April 2019, J.P. was placed in the great-aunt's home.

DCFS reported that J.P.'s physical and adaptive abilities were delayed compared to her peers, and that she presented with a possible autism spectrum disorder. She communicated by making sounds but not using words or gestures, would not respond to attempts to gain her attention, hummed and clapped repetitively, and had intense tantrums when denied access to a desired item or when transitioning between activities. However, J.P. engaged in pretend and imitative play, and was a candidate for intervention services, as she was only 32 months old and had not yet received such services. She showed progress in her development, was "thriving" in the maternal great-aunt's home, and was "clearly benefitting from the attention and support" received from the great-aunt.

DCFS reported that the maternal great-aunt was able to care for J.P.'s special needs and was committed to providing her a permanent home.

The court found that the maternal great-aunt provided "excellent care" to J.P. and ensured that the child received intervention services. It ordered DCFS to "engage in a full

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conversation and discussion of the options regarding permanence, explaining the differences between legal guardianship and adoption, and obtaining a statement from [the maternal great-aunt] of the option that she would choose to have as [J.P.'s] permanent plan."

In October 2019, DCFS reported that a social worker had spoken with the maternal great-aunt about a permanent plan. The great-aunt stated she "want[ed] to provide J.P. with the stability and security that adoption will bring," and therefore wished to pursue adoption rather than legal guardianship. DCFS concluded it was "highly likely" J.P. would be adopted if parental rights were terminated, and approved the aunt as an adoptive parent.

At the permanency planning hearing on October 23, 2019, the court found that J.P. was "likely to be adopted," and no exception to adoption applied. The court terminated parental rights and designated the maternal great-aunt, with whom J.P. had lived "for at least six months," as J.P.'s prospective adoptive parent.

Mother appealed.

Mother contends insufficient evidence supported termination of her parental rights because no evidence established that J.P. was adoptable. We disagree.

"A 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 J . W . (2018) 26 Cal.App.5th 263, 266.) We review an adoptability finding for substantial evidence, drawing every reasonable inference and

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resolving any evidentiary conflict in favor of the finding. ( Id . at p. 267.)

"There is a difference between a child who is generally adoptable (where the focus is on the child) and a child who is specifically adoptable (where the focus is on the specific caregiver who is willing to adopt)." ( In re J . W ., supra , 26 Cal.App.5th at p. 267.) A child is generally adoptable if his or her age and physical and mental condition make adoption likely to occur within a reasonable time. ( In re I . W . (2009) 180 Cal.App.4th 1517, 1526.) A child with special needs can be deemed generally adoptable based on evidence of the child's positive characteristics. ( In re I . I . (2008) 168 Cal.App.4th 857, 870-871; In re Helen W . (2007) 150 Cal.App.4th 71, 76, 79-80; see In re J . W ., at p. 268 ["Very few children in the dependency system are without problems"].)

"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 ., supra , 150 Cal.App.4th at p. 80.)

Here, J.P. suffered developmental delays and was diagnosed with a possible autism spectrum disorder, but had several other characteristics. She was active and playful, showed progress in her development, and was thriving in the maternal great-aunt's home. She was also very young, received services to treat her special needs, and was making progress, and was wanted both by Ms. Jackson and the maternal great-aunt. "[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

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family." ( In re Sarah M . (1994) 22 Cal.App.4th 1642, 1649-1650, italics omitted.) Situational factors and J.P.'s personal attributes thus amply supported the juvenile court's finding that she was generally adoptable.

Mother argues J.P. was not generally adoptable because she was significantly delayed in her motor, cognition, language, and social skills, made limited eye contact, would not respond when her name was called, and sometimes engaged in intense tantrums. She hummed and clapped repetitively, would wave her hand and watch it, showed little interest in other children, and was described as sometimes being in her "own world." Mother argues that similar concerns precluded a finding of adoptability in In re Brian P . (2002) 99 Cal.App.4th 616 and In re Asia L . (2003) 107 Cal.App.4th 498, and as a matter of law should preclude such a finding here as well. We disagree.

A bare recitation of a child's impairments informs only half of the adoptability equation, the other half concerning the child's other characteristics, which mother ignores. Here, the juvenile court considered all J.P.'s qualities and conditions in reaching a reasoned conclusion as to her adoptability. We have no province to reweigh this evidence. ( In re R . C . (2008) 169 Cal.App.4th 486, 491 [when reviewing an adoptability finding, "[w]e do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or weigh the evidence"].)

In re Brian P . and In re Asia L . are distinguishable. In Brian P ., the only evidence of positive qualities exhibited by a child who otherwise suffered significant developmental impairments was that he had "blossomed" into a healthy four-and-a-half-year-old boy. ( In re Brian P ., supra , 99 Cal.App.4th at p. 625.) The appellate court reversed a general adoptability

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finding not because the child was impaired, but because no substantial evidence demonstrated the boy's positive characteristics. In Asia L ., the appellate court reversed an adoptability finding because affirmative evidence established that no placement was as yet available to address the children's developmental impairments. ( In re Asia L ., supra , 107 Cal.App.4th at p. 512.)

Mother argues J.P. was not specifically adoptable by the maternal great-aunt because no evidence established that the aunt appreciated what caring for the special needs child would require. On the contrary, the aunt provided "excellent care" to J.P., who had resided in her home for the six months preceding the permanency planning hearing, and had ensured that the child receive the intervention services she needed. This evidence supported the court's finding that the aunt was able to meet J.P.'s needs.

Mother argues the court erred in selecting adoption because the maternal great-aunt failed to understand the difference between adoption and legal guardianship. This is so, mother argues, because nothing in the record explicitly describes how the department explained the difference to the aunt. The argument is without merit. The aunt stated she "want[ed] to provide J.P. with the stability and security that adoption will bring," and therefore wished to pursue adoption rather than legal guardianship. This reflects an understanding of the difference between adoption and guardianship. How that understanding arose is irrelevant.

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The juvenile court's order terminating mother's parental rights is affirmed.

NOT TO BE PUBLISHED

CHANEY, J.

We concur:

ROTHSCHILD, P. J.

BENDIX, J.