California Court of Appeal Jan 14, 2015 No. E061563Unpublished
Filed 1/14/15 In re I.M. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re I.M., a Person Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E061563
Plaintiff and Respondent, (Super.Ct.No. J231568)
v. OPINION
R.S.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Lily L. Sinfield,
Judge. Affirmed.
Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant
and Appellant.
Jean-Rene Basle, County Counsel, Regina A. Coleman, Principal Assistant
County Counsel, and Jamila Bayati, Deputy County Counsel, for Plaintiff and
Respondent. 1
I
INTRODUCTION
Regina S., mother, appeals from an order terminating parental rights. (Welf. &
Inst. Code, § 395.1.)1 Mother argues there was insufficient evidence that her son I.M.
was adoptable or that he should be moved from his current institutional placement to a
exception—only operates when the court has found “by a clear and convincing standard,
that it is likely the child will be adopted, the court shall terminate parental rights and
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order the child placed for adoption. The fact that the child is not yet placed in a
preadoptive home nor with a relative or foster family who is prepared to adopt the child,
shall not constitute a basis for the court to conclude that it is not likely the child will be
adopted.” The exception applies when “[t]he child is placed in a residential treatment
facility, adoption is unlikely or undesirable, and continuation of parental rights will not
prevent finding the child a permanent family placement if the parents cannot resume
custody when residential care is no longer needed.” In other words, the court first
decides whether a child is adoptable, then decides whether adoption is “unlikely or
undesirable” and whether parental rights will affect a permanent placement.
A fair reading of the record demonstrates the court considered whether it is likely
or desirable that I.M. be adopted and whether continuing parental rights would inhibit a
permanent family placement. Although respondent argues mother has waived or
forfeited on appeal the issues involving adoptability and the residential treatment facility
exception, in the interest of justice and “the protection and welfare of the child,” we will
consider these issues. (In re Jeremy S. (2001) 89 Cal.App.4th 514, 527.)
A. Adoptability
Adoption is, of course, the preferred plan. A finding of adoptability is reviewed
for substantial evidence. (In re Carl R. (2005) 128 Cal.App.4th 1051, 1061.) In Carl R.,
a similar case involving a severely disabled child and a single prospective adoptive
family, the court said, “the issue before this court is very narrow—what is the proper
scope of the inquiry by the juvenile court in determining the adoptability of a child who
will require intensive care for life”—in other words, what is “the proper scope of the
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inquiry the juvenile court must make when the child in question is adoptable only
because one family is willing to adopt . . . where the child in question is completely
developmentally disabled.” (Id. at p. 1062.)
The Carl R. court continued: “A child who is specifically adoptable and who will
need total care for life is at high risk of becoming a legal orphan if parental rights are
terminated and the prospective adoptive family is later determined to be unsuitable. [Fn.
omitted.] . . . To avoid rendering a total needs child a legal orphan, the assessment of the
adoptability of such a child must necessarily include some consideration of whether the
prospective adoptive parents can meet that child’s needs, since if the prospective adoptive
parents cannot meet the child’s needs, the child cannot properly be found to be adoptable.
The question becomes the extent of the inquiry to be conducted by the juvenile court at
the section 366.26 hearing in such a case.
“The statutory scheme requires the Agency to provide the court with a preliminary
assessment of the eligibility and commitment of the prospective adoptive parents for the
section 366.26 hearing. That assessment includes a social history, screening for criminal
records and prior referrals for child abuse or neglect, together with an assessment of the
capability of the prospective adoptive parents to meet the child’s needs, and whether they
understand the legal and financial rights and responsibilities of adoption. (§§ 361.5,
11
subd. (g)(4), 366.21, subd. (i)(4), 366.22, subd. (b)(4).)” (In re Carl R., supra, 128
Cal.App.4th at pp. 1062-1063.)3
In her appellate brief, mother recites a litany of purported obstacles to I.M. being
adopted, relying on a 2010 medical opinion. However, it is contradictory for mother to
argue simultaneously that I.M. cannot be placed anywhere except an intermediate care
facility and also that he could eventually be placed with her. Instead, the experience and
commitment of the prospective adoptive parents constituted substantial evidence of their
suitability to adopt I.M. From September 2013 until June 2014, the adoptive parents
were unwavering in their desire to adopt I.M. In March 2014, they visited him and
confirmed their willingness to proceed and to engage in any necessary training. The
prospective parents had significant experience with caring for medically-fragile children.
In a CFS meeting, nine professionals—including the “special needs adoption social
worker”— who were involved in I.M.’s care conferred and agreed that the prospective
family was an appropriate match for I.M. All of these factors supplied substantial
evidence of I.M.’s adoptability. (In re Jeremy S., supra, 89 Cal.App.4th at pp. 523-526;
In re Helen W. (2007) 150 Cal.App.4th 71, 74-75, 79-80; see In re Ramone R. (2005) 132
Cal.App.4th 1339, 1352.) Because the juvenile court correctly determined I.M. was
adoptable by the prospective family, the other issue for us to consider is whether the
residential treatment facility exception should operate to prevent the termination of
parental rights.
3 The risk of becoming a legal orphan for hard-to-place children has now been alleviated by statute. (In re I.I. (2008) 168 Cal.App.4th 857, 871.)
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B. The Residential Treatment Facility Exception
On appeal, mother relies on the residential treatment facility exception which
provides the court shall terminate parental rights unless the court finds a compelling
reason that termination would be detrimental to the child because “[t]he child is placed in
a residential treatment facility, adoption is unlikely or undesirable, and continuation of
parental rights will not prevent finding the child a permanent family placement if the
parents cannot resume custody when residential care is no longer needed.” (§ 366.26,
subd. (c)(1)(B)(iii).)
There is very little authority on this exception. The practice guides find it
somewhat puzzling. In Dependency Quick Guide, the Administrative Office of the
Courts, p. H-184, explains, “This exception is invoked only in relatively rare situations
involving children with severe disabilities who are institutionalized. Proceeding by this
exception keeps open both the options of return to the parent and permanent placement at
a later time,” citing In re Jeremy S., supra, 89 Cal.App.4th 514 and In re Ramone R.,
supra, 132 Cal.App.4th 1339. In Seiser & Kumli on California Juvenile Courts Practice
and Procedure, § 2.171[5][b], pp. 2-550-551, the authors comment, “If the child is
‘unlikely’ to be adopted, the court will never reach the possibility of this exception
applying, since the court could not have found it likely the child would be adopted within
a reasonable amount of time as required before even considering the exceptions [Welf. &
Inst. Code § 366.26(c)]. Further, what the statute means by adoption being ‘undesirable’
is unclear. This exception is the least utilized exception, if indeed it has ever been
utilized.” California Juvenile Dependency Practice asserts, “Social workers are
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generally unlikely to recommend the termination of parental rights for children placed in
residential treatment facilities, because such children are not currently adoptable.” (2
Cal. Juvenile Dependency Practice (Cont.Ed.Bar 2007) § 14.75, p. 1080.)
The only reported case to have analyzed the “residential facility exception” is In re
Jeremy S, supra, 89 Cal.App.4th at pages 528-529. The court considered the legislative
history for the exception: “The Senate Bill No. 1195 task force concluded that when a
child is in a residential treatment facility, termination of parental rights generally is not
needed to ensure a stable placement for the child. (Sen. Select Com. on Children and
Youth, Rep. on Child Abuse Reporting Laws, Juvenile Court Dependency Statutes, and
Child Welfare Services, supra, at p. 11.) It reasoned, moreover, that terminating parental
rights might result in leaving a child without any parents if another permanent home
cannot be found when he or she is able to leave the residential treatment facility. (Ibid.)
“In applying this analysis to our facts, we conclude the exception is inapt. Jeremy
was placed in a special needs home primarily because his disabled older brother lives
there and the boys share a strong bond. There is no evidence that Jeremy currently
requires the professional services available at the home and, as such, is ‘able to leave the
residential treatment facility’ now. Likewise there is no evidence to suggest Jeremy
would be ‘leaving the home without any parents.’ The evidence is quite the contrary.
Jeremy has prospective parents who are ready and willing to adopt him. Nothing in the
statute or its legislative history suggests the Legislature had any intent to declare those
who, by occupation or vocation, choose to operate a residential facility ineligible as
adoptive parents. [Fn. omitted.] [¶] [T]he court’s action allows Jeremy the freedom to
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transition from a resident at the special needs facility to a member of a loving family
without ever having to make an adjustment to a new physical surrounding.” (In re
Jeremy S., supra, 89 Cal.App.4th at pp. 528-529.)
Based on the foregoing, we reach the following conclusions. Assuming I.M. is
placed in a “residential treatment facility”—a term not defined by the statute, the trial
court has decided that I.M. is adoptable, a conclusion we affirm. The factors that make
I.M. adoptable also mean adoption is likely and desirable. Under these circumstances, an
exception for when adoption is unlikely or undesirable does not seem to exist.
Furthermore, if mother is ultimately unable to resume custody—which seems to be the
most plausible outcome in view of her history and her present circumstances—continuing
mother’s parental rights would certainly hinder I.M.’s eventual permanent family
placement. As was expressly discussed at the section 366.26 hearing, if mother was to
engage in reunification services, I.M. would very likely lose the chance of adoption.
Therefore, even if the exception applied, whether the standard of review is
substantial evidence or abuse of discretion, the exception should not operate in this case:
“It requires little discussion to conclude the court did not abuse its discretion in this case.
The benefit of a stable, permanent adoptive home . . . clearly outweighed the benefit of a
continued relationship” with mother, whose history and prospects are not favorable;
“[t]his is not the extraordinary case where an adoption should have been foreclosed by”
an exception provided in section 366.26, subdivision (c)(1). (In re Jasmine D. (2000) 78
Cal.App.4th 1339, 1351-1352.)
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IV
DISPOSITION
Substantial evidence supports the trial court’s finding that I.M. is adoptable and
that no exception applies to the termination of parental rights. We affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
McKINSTER Acting P. J.
MILLER J.
16
AI Brief
AI-generated · verify before citing
Holding. The court held that substantial evidence supported the finding that the child was adoptable and that the residential treatment facility exception to the termination of parental rights did not apply.
Issues
Whether there was sufficient evidence to support the juvenile court's finding that the child was adoptable.
Whether the juvenile court erred in declining to apply the residential treatment facility exception to the termination of parental rights.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Substantial evidence supports the finding of adoptability and no exception applies under section 366.26, subdivision (c)(1)(B)(iii).”
“The benefit of a stable, permanent adoptive home . . . clearly outweighed the benefit of a continued relationship” with mother”
“Because the juvenile court correctly determined I.M. was adoptable by the prospective family, the other issue for us to consider is whether the residential treatment facility exception should operate to prevent the termination of parental rights.”