Filed 12/8/20 In re V.S. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

In re V.S. et al., Person s Coming Under the

Juvenile Court Law.

STANISLAUS COUNTY COMMUNITY

SERVICES AGENCY,

Plaintiff and Respondent,

v.

V ICTOR S. et. al.

,

Defendants and Appellants. F081427

(Super. Ct. No s

. JVDP

- 18

- 000027,

JVDP

- 18

- 000028, JVDP

- 18

-

000029.)



### OPINION

THE COURT *

APPEAL S from order s of the Superior Court of Stanislaus County. Margaret

Johnson , Judge. (Retired Judge of the Santa Clara Sup. Ct. assigned by the Chief Justice

pursuant to art. VI, § 6 of the Cal. Const.)

Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant

and Appellant Victor S.

Suzanne M. Nicholson, under appointment by the Court of Appeal, for Defendant

and Appellant S. B

.

* Before Detjen, Acting P.J., Franson, J. and Smith, J.2

.

Thomas E. Boze, County Counsel, and Maria Elena Ratliff, Deputy County

Counsel, for Plaintiff and Respondent.

- ooOoo

S

. B. (mother) appeals from a Welfare and Institutions Code section 366.26 1

hearing order terminating her parental rights to her three children. Mother contends there

was insufficient evidence for the juvenile court to find her children

, V.S., F.S., and J.S.

were adoptable within a reasonable time. Victor S. (father) does not raise any

independent arguments but joins mother’s argument. We affirm.

SUMMARY OF FACTS AND PROCEDURE

The Stanislaus County Community Services Agency (agency) received a referral

on May 15, 2018, that mother, father and the three children were living out of a car in the

parking lot of a nursing and rehabilitation facility (facility). Mother appeared to be

developmentally delayed and seriously overweight, making her physically and mentally

unable to care for the children. Mother initially said she was not the children’s mother

and that they were not living out of the vehicle, but that they were living with an aunt,

although she could provide no further information. She then admitted she was the

children’s mother, and that father left early that morning with the third child and she had

no way to contact him. Mother reported she was not able to care for the children and

relied on fathe r to help her at all times. The vehicle was unsanitary with trash and dirty

diapers.

Mother reported that she and father had previously had another child removed

from their care in Arizona for these same reasons. They did not reunify with the child

and she was placed for adoption.

1 All further statutory references are to the Welfare and Institutions Code unless

otherwise stated.3

.

It was learned that the family was staying at the parking lot of the facility because

mother’s aunt, who was also father’s wife (hereafter aunt/wife), was being treated in the

facility. The family had been living with the aunt/wife but were evicted the previous

month. The facility had been feeding the children for the past four days.

The social worker at the facility reported that the children had been wearing the

same clothing for four days, as the parents did not have a change of clothing for them.

The facility had been feeding the children meals, brought them into the facility for baths,

and purchased new clothing and shoes for the children, and provided them blankets at

night. The social worker noted that father leaves the children with mother in the parking

lot for most of the day. While facility staff suggested she take the children to the park or

bring them into the facility to get them out of the heat, mother refused.

Mother also refused to go to the Gospel Mission, stating she had been kicked out

of there before and they would not let her be there with father. She also declined to seek

emergency housing, as they would not allow father to live with her.

Mother reported that she was diagnosed with attention deficit hyperactivity

disorder ( ADHD ) and depression but did not take medication. She self

- medicated with

marijuana and tested positive for such.

Mother reported that two

- year

- old J .S. had been diagnosed with delays and

remained non

- verbal, but she had not obtained any services for her. Four

- year

- old F .S.

reported that mother and father fought by hitting each other with kicks and punches. Six

year

- old V.S. reported being scared that mother, fat her and his “stepmother” were going

to have a big fight because the children were going to be taken away.

Father returned mid

- afternoon and reported that he wanted to stay in the parking

lot as it was closer to aunt/wife in the facility. He refused to consider services at the

Gospel Mission, Crisis Center, or the welfare department. While he acknowledged that

the children needed a safe place to stay, he refused to leave the parking lot. Mother4

.

stated that leaving the parking lot would give the aunt/wife a “heart attack.” Father

confirmed that mother was unable to care for the children due to her disabilities.

Detention

The children were detained and a section 300 petition filed alleging failure to

provide basic needs, substance abuse, domestic violence, mother’s mental and physical

disabilities, failure to address J.S. ’s delays, father’s criminal record, and the failure of

mother and father to reunify with the children’s sibling, A.B.

, who was removed in

Arizona in 2006.

The report prepared for detention reflected 11 previous referrals regarding the

family, beginning in 2013. There was also a referral in 2000 when mother, then age 15,

disclosed that she and her uncle (father) had had a sexual relationship when she and her

mother lived together with aunt/wife and uncle (father)

.

Father, who had a criminal history reflecting 14 aliases, had convictions for theft,

burglary, battery, and infliction of corporal injury on a spouse. He was deported

“ voluntary[ ily ] ” to Mexico in October 1993, a week after a conviction for battery and

theft.

On May 21, 2018, with mother’s consent, the juvenile court appointed a guardian

ad litem for mother. The minors were ordered detained and jurisdiction/disposition set

for June 22, 2018.

Jurisdiction/Disposition

The report for the jurisdiction/disposition hearing recommended that the children

be detained and mother and father provided services. The report included the referral

from Arizona, which indicated that mother, then aged 21, was under a guardianship, due

to her developmental delays. Her mother, maternal grandmother, was her guardian.

Mother, who had given birth to A.B.

, was deemed unable to care for the child due to her

disabilities. The alleged father was father, who was married to aunt/wife. It was found

that mother was unable to give consent to the sexual contact with father, and father and5

.

aunt/wife were ordered not to have contact with mother and the baby. Mother was

provided reunification services, but unable to learn parenting skills. Father was

eventually also provided services, along with aunt/wife.

During the course of the previous dependency case, maternal grandmother passed

away. Mother was in Ca lifornia at the time, where she remained. Father and aunt /wife

returned to California and mother began living with them.

During the previous case, mother disclosed that father had begun fondling her

when she was 12 years old and told her this was acceptable as girls in Mexico had sex

with older men at that age. Mother also reported that aunt/wife touched her

inappropriately.

In the current situation, the report indicated that V.S. was experiencing worry and

anxiety over the family’s situation and he had concern for his parents. He was constantly

seeking food at school.

On July 6, 2018, the petition was found true and the children removed from

parental custody. A six

- month review hearing was set for December 20, 2018.

Six

- Month Review

The agency report for the six

- month review recommended that the children remain

in foster care and that both mother and father receive an additional six months of

services. In June of 2018, aunt/wife died and father and mother married each other in

September 2018. They remained homeless.

Mother was participating in services, but due to her difficulties, was proceeding

very slowly. Father was participating in services and it was recommended that he

participate in sexual abuse counseling. Father denied having sexual relations with mother

as a minor, despite documentation to the contrary. Father explained that his wife

( aunt/wife ) was unable to have children and she was the one who suggested he have the

relationshi p with mother. Aunt/wife was also jealous of this relationship and they would6

.

argue. When mother would attempt to hit aunt/wife, he would defend aunt/wife, which

led to his arrest on one occasion.

An addendum report was filed stating that mother had completed her clinical

assessment and it recommended that she attend one

- on

- one domestic counseling.

Additional therapy to address the topic of codependency was recommended, as well as a

psychological evaluation.

Mother and father attended J.S. ’s assessment, but they played with her the entire

time and gave her their telephone, making an assessment impossible. A second

assessment was scheduled, and the parents ordered to attend and not bring the phone.

V.S. was diagnosed with ADHD and it was recommended that he begin ADHD

medication.

While both mother and father were participating in services, neither took

responsibility for the actions that led to the dependency, blaming instead the agency or

the facility.

At the rescheduled hearing on March 12, 2019, the juvenile court found that

reasonable services had been offered and adopted the recommendation of the agency to

provide mother and father with an additional six months of services. A parent partner

was provided to assist mother and father in mentoring/education, housing and job search.

Mother and father were to meet with the parent partner three times a month. Mother was

also to participate in a psychological evaluation to determine if the case plan could be

furth er tailored to her needs. If the evaluator determined that mother could not benefit

from reunification services due to a mental disability, a second psychological evaluation

would be completed to address the issue.

A 12

- month hearing was scheduled for June 25, 2019.7

.

Twelve

- Month Review

The agency report for the 12

- month review recommended that services be

terminated, and a section 366.26 hearing be set, with a permanent plan of adoption for the

children.

J.S. was found to be eligible for regional center services and referred to Head

Start.

Mother had attended counseling sessions focused on developing coping skills,

domestic violence, codependency and managing stress and anger. The therapist relayed

that mother had difficulty retaining information and continued to blame the social

workers and other care providers for being unable to help her. She made little progress in

her parenting classes.

Mother’s parent partner reported that mother appeared receptive to new parenting

techniques when the parent partner was present but reverted to old habits when the parent

partner left the room. Father was not open to suggestion s and insisted that he knew what

was best for the children.

A psychological evaluation done in April 2019, reported that mother was

diagnosed with “Intellectual Disability

- Moderate and Personality Disorder NOS with

Avoidant and Dependent Features.” The therapist opined that mother would not be able

to develop adeq uate skills to parent her children.

At a contested hearing July 29, 2019, the juvenile court continued services for

both mother and father and directed that an amended plan be added in consultation with

the regional center to determine if there were services that could help mother. A second

psychological examination was ordered for mother. An 18

- month review was scheduled

for November 8, 2019.8

.

Section 388 Petition

An August 20, 2019 section 388 petition filed by the agency was granted, allowing

the educational rights of the children be shared between the new caregivers and mother

and father.

Eighteen

- Month Hearing

By the time of the section 18

- month review, mother had completed her second

psychological evaluation. While the psychologist had not finished the report, she

verbally agreed with the first psychologist that mother, due to her intellectual disability,

was unable to learn and integrate new information. Mother did not understand that her

children were in danger. Various alternate services were offered and attempted with

mother, but she did not want and was resistant to assistance.

Mother insisted that V.S. was aggressive during visits and she needed to spank

him to make him listen. Mother was not open to suggestions for alternatives to

disciplining V.S. and she did not like working with the parent partner and did not like

having supervised visits. Father had completed some of the domestic violence classes but

insisted that he was not guilty of what he was “accused of.”

The visits were determined to be detrimental to the children as the children

exhibited various concerning behaviors before and after the visits. It was requested by

the agency that the visits be suspended.

A contested hearing was set for December 13, 2019. Prior to the hearing, the

agency filed a letter indicating that all three children were receiving services from a

program involving individual therapy and rehabilitation support, as well as case

management and parent support with the “guardians.”

The completed second psychological report was attached, indicating that mother’s

impulse control was very poor, her intellectual function severely impaired, and her

remote memory, judgment and insight very poor. The report indicated that mother was9

.

unaware of her role in creating the chaos in her family and there were no services that

could improve her potential for success in parenting her children.

While father had completed his domestic violence counseling, he was found to be

in need of improvement in the fundamental knowledge that using threats, intimidation, or

violence was unacceptable. While father was not now denying use of violence in his

relationship with mother, he was now justifying it to control her.

An observed visit described mother and V.S. yelling at each other, V.S. refusing to

listen to mother, and mother ignoring him. Mother then attempted to give V.S. a time

out, which involved more shouting and eventually mother physically carrying V.S. to a

corner with more shouting.

At the December 13, 2019, hearing, services were terminated and visits reduced to

one a month. Mother and father’s education rights were suspended and assigned solely to

the car egivers. A section 366.26 hearing was set for April 13, 2020.

Section 366.26 Hearing

The agency report filed for the section 366.26 hearing recommended that mother

and father’s parental rights be terminated and adoption be established for the children

with their current caregivers.

The report assessed each child. V.S.

, now age eight

, was in good health, but

displayed traits of autism. He qualified for speech therapy. He had not begun his ADHD

medication as the caregiver had not received the prescription yet. V.S. was reported not

to need the medication at home, only at school.

F.S.

, now age six

, was in good health, developing normally, and qualified for

speech therapy. He was receiving mental health counseling.

J.S.

, now age four

, was healthy, was a regional center client receiving case

management services and mental health support and was set to begin speech therapy.

The report indicated that the children were “certain” to be adopted by their current

caregivers “if given the opportunity to do so.” The children had been placed in their10

.

current caregiver’s home in early August 2019. The family had adopted another child in

2013, and the father in the home had been a stay

- at

- home dad ever since, taking

occasional side jobs. The mother worked in the medical field. The family had been

cleared through the Resource Family Approval program. The report indicated that the

caregiver family had demonstrated their capability to care for the children’s needs and the

children enjoyed the attention of the caregivers.

V.S. reported that he wished to be adopted. F.S. stated that he wished to reunify

with mother and father, but if that was not possible, to stay with the caregivers. J.S. was

to o young to understand the concept of adoption.

The children were all reported to be doing well in the caregivers’ home and had

established a strong bond with them. They had adjusted to the structure and routine,

including homework time, chores, bedtime, family and individual time. The caregivers

had worked closely with the school to get the support they needed. All children were

continuing to work through “some behaviors.”

The caregivers submitted detailed information on each child. They reported that

V.S. had been recently tested for asthma but was otherwise healthy. While he continued

to have significant emotional struggles at school he did not at home. The caregivers

reported that, after each visit with mother and father, V.S. exhibited parentified behavior

and the younger children then look to him for direction. His speech issues were

improving, and he was doing well in

- home schooling due to COVID

- 19. He was

learning to trust the caregivers to provide him with what he needed. He had recently

started piano lessons, which he enjoyed.

The caregivers reported that F.S. still struggled emotionally but was learning that

it was okay to cry. He vomited before and after visits with mother and father and the

caregivers reported numerous ailments requiring attention. Both the caregivers and his

teacher identified areas that caused him anxiety. His individualized education plan ( IEP )

was postponed due to COVID

- 19. They are pursuing additional help with his sp eech.11

.

The caregivers reported that J.S. was physically healthy and now toilet trained.

She still struggled with food insecurity and was initially overeating. She becomes

obsessed with food after visits with mother and father, as well as exhibiting separation

anxiety. The caregivers were working on alleviating her anxiety. She did not speak

when initially placed with the caregivers, but she was now beginning to speak and sing.

The section 366.26 hearing was rescheduled to June 25, 2020, due to COVID

- 19.

In an additional report, the agency stated that all three children had been found

eligible for an IEP in speech services.

The hearing was again trailed to July 14, 2020. At that time, the agency submitted

on the reports; mother testified briefly on the visits with the children; and father’s counsel

made an offer of proof that he loves his children and has a strong bond with them, and

believes they would suffer if his parental rights were terminated. Counsel for the agency

noted that the children had been with the current caregivers for almost a year and had

been out of home placement for almost two years.

Counsel for both parents argued that the beneficial parent child exception to

adoption applied. Counsel for mother specifically argued there was no clear and

convincing evidence that the children were likely to be adopted, as the “problems”

discussed by the caregivers evidenced doubt on their willingness to adopt the children.

Counsel for the children disagree d

, as did counsel for the agency, who argued that the

detailed information given by the caregivers showed how involved they were with the

children and showed the progress they had made, to the point that the children now

“allowed themselves” to call the caregivers mom and dad.

The juvenile court found by clear and convincing evidence that the children were

adoptable and that it would not be detrimental to terminate mother and father’s parental

rights. Parental rights were terminated, and this appeal followed.12

. DISCUSSION

Mother argues that the record does not contain substantial evidence establishing

the children were likely to be adopted

. More specifically, she asserts that the evidence

was insufficient to show the children were either generally or specifically adoptable

. The

argument lacks merit.

If the juvenile court finds clear and convincing evidence that it is likely a

dependent child will be adopted

, the court shall terminate parental rights and order the

child placed for adoption (unless an exception applies). (§ 366.26, subd. (c)(1).) The

clear and convincing evidence standard “requires a finding of high probability.” ( In re

Angelia P. (1981) 28 Cal.3d 908, 919.) “A child ’ s young age, good physical and

emotional health, intellectual growth and ability to develop interpersonal relationships are

all attributes indicating adoptability .” ( In re Gregory A. (2005) 126 Cal.App.4 th 1554,

1562.) It is not necessary that the child already be in a preadoptive home or with a

caregiver who is prepared to adopt

. (§ 366.26, subd. (c)(1); In re Sarah M. (1994) 22

Cal.App.4 th 1642, 1649.) Nevertheless, the caregiver ’ s “willingness to adopt generally

indicates the [child] is likely to be adopted within a reasonable time either by the [foster]

parent or by some other family. ” ( In re Sarah M., supra, at p. 1650.)

Some courts have distinguished between generally and specifically adoptable

children. General adoptability refers to cases in which the child ’ s personal characteristics

are sufficiently appealing that it is likely the child will be adopted within a reasonable

time. ( In re R.C. (2008) 169 Cal.App.4 th 486, 493.) Specific adoptability refers to

“unusual cases where a child, due to severe physical or mental needs, may be deemed

adoptable based solely on the fact that a particular family wants to adopt the child.” ( In

re Mary C. (2020) 48 Cal.App.5 th 793, 802, fn. 5.) In such cases, the court must

determine if there is a legal impediment to adoption. ( Ibid. )

But the juvenile court is not required to find the child “ ‘generally’ or

‘specifically’ adoptable .” ( In re Mary C., supra, 48 Cal.App.5 th at p. 802.) Section13

.

366.26 does not speak in terms of general or specific adoptability

. Nor does the law

require the agency’s assessment to include evidence of general or specific adoptability

—

the agency must merely analyze “the likelihood that the child will be adopted .”

(§§ 366.21, subd. (i)(1)(G), 366.22, subd. (c)(1)(F).) Moreover, “[a]lthough a finding of

adoptability must be supported by clear and convincing evidence, it is nevertheless a low

threshold: The court must merely determine that it is ‘likely’ that the child will be

adopted within a reasonable time.” ( In re K.B. (2009) 173 Cal.App.4 th 1275, 1292.)

Our review accounts for the heightened standard of proof in the trial court

. We

must determine “whether the record as a whole contains substantial evidence from which

a reasonable fact finder could have found it highly probable” that the children were likely

to be adopted

. ( Conservatorship of the Person of O.B. (2020) 9 Cal.5 th 989, 996

– 997.)

But we do not reweigh the evidence. ( Id. at p. 1008 .) We “view the record in the light

most favorable to the prevailing party below and give appropriate deference to how the

trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the

evidence, and drawn reasonable inferences from the evidence.” ( Id. at p. 996 ; accord In

re R.C., supra, 169 Cal.App.4 th at p. 491 [“We do not pass on the credibility of

witnesses, attempt to resolve conflicts in the evidence or weigh the evidence”].)

Mother contends the children were not generally adoptable due to their various

emotional, physical and behavioral issues. During the dependency, V.S. was diagnosed

with ADHD and possible autism traits. His issues had caused him to be held back in the

first grade. He struggled emotionally and displayed symptoms of extreme anxiety. F.S.

required speech therapy services. And J.S. had significant language impairment and

adaptive functions below her age. Her emotional health was of concern and she suffered

from food anxiety. The children all required individual therapy and rehabilitation support

services. Mother contends these issues have made her children ineligible for a finding of

adoptability

.14

.

Mother cites several cases in which an appellate court has reversed a termination

of parental rights for insufficient evidence based on deficient evidence of adoptability

. In

re Asia L. (2003) 107 Cal.App.4 th 498 involved two extremely hyperactive children who

needed “specialized placement,” where a prospective adoptive family had not been

identified. ( Id. at p. 511.) In re Jerome D. (2000) 84 Cal.App.4 th 1200, involved a child

with a prosthetic eye whose prospective adoptive parent had a criminal history of

domestic violence and was listed as a perpetrator by Child Protective Services for

emotionally abusing his nephews and niece. ( Id. at p. 1203.) The case also involved the

beneficial parental relationship exception to termination of parental rights, where the

child ’ s attorney agreed with the mother that parental rights should not be terminated. ( Id.

at pp. 1206

– 1207.) Neither case supports mother’s argument here.

And none of the children here exhibited problems even remotely close to the

problems experienced by the minor in In re Carl R. (2005) 128 Cal.App.4 th 1051, which

gave rise to the concept of “specific” adoptability. In that case, the minor at issue had

cerebral palsy, severe quadriparesis, a seizure disorder, and an uncontrolled and severe

psychomotor delay and required intensive care for life. ( Id. at pp. 1061

– 1062.)

In this case, there was substantial evidence from which a reasonable factfinder

could conclude that it was highly probable the children were likely to be adopted. All

three were quite young. The caregivers, who had had the children in their home for

almost a year at the time of the section 366.26 hearing, described the children as

physically healthy. V.S. was described as very intelligent and well

- liked by his

classmates; F.S. as friendly, kind and tender

- hearted; and J.S. as friendly with family and

friends she is familiar with. It is true that, in addition to those positive attributes, all three

children had some difficulties: all three children had speech and food issues related to the

environments they endured as small children. V.S. had some behavioral problems at

school, but those were not exhibited in the caregiver’s home.15

.

Mother also contends the children were not generally adoptable because it is not

clear that the current caregivers were really committed to adopting the children, thus

casting doubt on the likelihood that the children would be adopted. Mother points to the

statement by the caregiver mother that they would be “honored” to be called “mom and

dad” as somehow showing less than full commitment by the caregiver father and only

lukewarm commitment by mother. We find this speculative. The very thorough

statements by the caregivers, chronicling in detail each of the children, their issues, and

what the caregivers were doing to alleviate those issues, showed the caregivers were

extremely committed to the children, and that the children were likely to be adopted.

Mother also contends the caregiver’s reluctance to adopt the children is evident

from the fact that they had not, as yet, been designated as prospective adoptive parents, as

described in section 366.26, subdivision (n)(1). 2 However, there is no legal requirement

that the caregivers complete the requirements of section 366.26

, subdivision (n)(1) before

a juvenile court can terminate parental rights. The question before the juvenile court was

whether the children were likely to be adopted within a reasonable time, not whether any

particular adoptive parents were suitable. The issue of a potential family's suitability to

adopt is reserved for a subsequent adoption proceeding. ( In re Marina S. (2005) 132

Cal.App.4 th 158, 166, citing In re Scott M. (1993) 13 Cal.App.4 th 839, 844.)

“The issue of adoptability posed in a section 366.26 hearing focuses on the minor

,

e.g., whether the minor’ s age, physical condition, and emotional state make it difficult to

find a person willing to adopt the minor. [Citations.] Hence, it is not necessary that the

minor already be in a potential adoptive home or that there be a proposed adoptive parent

2 Section 366.26, subdivision (n)(1) provides that a court may, at any time during or

after the section 366.26 hearing, designate a current caregiver as a prospective adoptive

parent if the child has lived with the caregiver for at least six months, expressed a

commitment to adopt, and taken “at least one step” to facilitate the adoption process, such

as, but not limited to, applying for an adoption home st udy, requesting de facto parent

status, or signing an adoptive placement agreement. (§ 366.26, subd. (n)( 2 )(A)

– (H).)16

.

‘waiting in the wings.’ ” ( In re Sarah M., supra, 22 Cal.App.4 th at p. 1649.) There being

no requirement of a potential adoptive parent at all to establish general adoptability

,

mother correspondingly has no right to challenge the caregiver’s suitability ( id. at pp.

1649

– 1650; In re Scott M., supra, 13 Cal.App.4 th at p. 844), for even if the caregiver’s

suitability should prove to be unsuitable, the finding that the children are “likely to be

adopted ” incorporates a finding that another willing adoptive parent is likely to be found.

We find substantial evidence that the children’s positive attributes and the

presence of a caregiver committed to adoption constituted substantial evidence of the

likelihood of adoption and reject mother’s claim to the contrary

. (See In re Mary C.,

supra, 48 Cal.App.5 th at pp. 802

– 805 [substantial evidence supported adoptability of

children with developmental delays, behavioral issues, and emotional difficulties, given

that they were “ ‘young, sweet, and engaging,’ ” they could form loving and trusting

relationships, and foster family wanted to adopt them]; In re A.A. (2008) 167 Cal.App.4 th

1292, 1312

– 1313 [substantial evidence that children were likely to be adopted

, given that

they were young, bright, and making progress in addressing behavioral and emotional

problems, and caregivers were committed to adoption ].)

DISPOSITION

The orders of the juvenile court finding the children adoptable and terminating

parental rights are affirmed.