In Re Gabriel G.
In rе GABRIEL G. et al., Persons Coming Under the Juvenile Court Law.
Santa Clara County Department of Family and Children's Services, Plaintiff and Respondent,
v.
Stephanie G., Defendant and Appellant.
Court of Appeal, Sixth District.
Ann Miller Ravel, County Counsel, Susan S. Ware, Deputy County Counsel, for Plaintiff/Respondent Department of Family and Children's Services.
Jonathan Grossman, Under appointment by the Court of Appeal, Stockton, for Defendant/Appellant Stephanie G.
PREMO, Acting P.J.
In this juvenile dependency matter, Stephanie G. (mother) appeals from an order of the juvenile court identifying adoрtion *848 as the permanent placement goal for her sons Roland and Gabriel and directing the Santa Clara County Department of Family and Children's Services (Department) to attempt to locate an appropriate adoptive family for the children. (
We conclude that the order is an appealable order and, given recent amendments to
I. BACKGROUND
Two-year-old Roland and four-year-old Gabriel lived with mother and their infant half-brother. On March 17, 2004, social workers went to mothеr's home, found the children abused and neglected, and took them into protective custody. The Department recommended bypassing services to mother due to her previous failure to reunify with two older children. (§ 361.5, subd. (b)(10).) Roland and Gabriel's father waived his right to reunification services. At the disposition hearing on September 16, 2004, the juvenile court denied reunification services, ordered supervised visitation with mother, and set a
Roland and Gabriel both had behavioral problems. They were first placed together in a foster home but soon had to be separated because they fought "viciously" with each other, constantly scratching and punching until they drew blood. Roland was very angry and often had uncontrollable tantrums. During visits with mother the boys were aggressive with each other and with mother. Roland cursed at mother and slapped her in the face. Gabriel sometimes completely ignоred her. Mother was usually unable to control them.
In the Department's first report prepared for the
Gabriel was five years old by this time. His foster parent reported that he had adjusted well to the placement, that he loved to help around the house, and that he followed the daily routine very well. He tended to control the other children, telling them what to do and disciplining his younger half brother. Gabriel wаs struggling to keep up in kindergarten but the school's principal believed that Gabriel might not need special education; since he was a young kindergartener he might catch up with another year of kindergarten. Gabriel was generally healthy and was on track as far as his height and weight were concerned. He had recently had some wheezing that was being treated with an inhaler. The report described Gabriel as "a green eyed, light brown haired little boy, who, when you see him, you just want to squeeze his cheeks. He is very friendly and energetic; he is helpful with his brothers during visits."
Neither child was in a stable placement. No prospective adoptive home had yet been identified. The Department recommended long-term foster care, noting: "Both of the children are very cute and people are drawn to them the first time they see them. This worker's assessment is that in the future it will likely be possible to place both children in an adoptive home and terminate parental rights. At this рoint, however, neither of the children are in concurrent homes and both of them are experiencing significant behavior problems. Neither of the children's placements are stable, and while the department is working on stable adoptive homes, this stage has not been reached yet. It is therefore this worker's recommendation that the children remain dependents of the court, and that the children, Roland and Gabriel . . . participate in a plan of long term foster care until a nurturing adoptive home is secured."
The Department filed two addenda to its first report. In the last of the two, the Department changed its recommendation "from one of long term foster care to a permanent plan of adoption and termination of parent's visitation." The report noted the benefits adoption would provide and stated that it would be "beneficial if the children could be placed together. The department would like an oppоrtunity to be able to find such an adoptive home. [¶] Although it may not be easy to find adoptive parents that are capable of meeting all of the children's needs, it is not impossible. In fact, this worker was notified on 3/21/05 that there is a possible concurrent placement for the sibling group." Although in her first report the social worker felt that the boys' behavior should be addressed before seeking an adoptive placement, the social worker now felt that "it would be most beneficial to begin the adoption search now, and not wait for the children's behavioral improvements. . . . It is this worker's assessment that such permanence could provide stability that initiate [sic] positive behavioral and emotional changes. It is for these reasons this worker believes that the plan of adoption is in the children's best interests. This worker will recommend a permanent plan of adoption, but will not recommend that the parents' parental rights be terminated until an adoptive hоme is secured." The social worker hoped that terminating mother's visitation would help improve the boys' behavior.
The court adopted the findings and orders recommended in the Department's final report, which included the finding "[b]y clear and convincing evidence" that *850 termination of parental rights would not be detrimental to the children. The juvenile court also adopted the finding that Roland and Gabriel had a probability of adoption but were difficult to place because they were members of a sibling group and because Roland was then being evaluated for the presence of a diagnosed medical, physical, or mental handicap. The court identified adoption as the permanent placement goal and ordered the Department to make efforts to locate an appropriate adoptive family for a period not to exceed 180 days. Mother has timely appealed.
II. DISCUSSION
A. Appealability
The juvenile court's order wаs made pursuant to subdivisions (b)(2) and (c)(3) of
Under subdivision (b) of
When a child's circumstances make him or her particularly difficult to place for adoption, the court may select the option listed under subdivision (b)(2), which is to identify adoption as the goal and give the Department more time to find an appropriate adoptive home. In selecting this option, the juvenile court proceeds under subdivision (c)(3), which provides, "If the court finds that termination of parental rights would not be detrimental to the child pursuant to paragraph [(c)](1) and that the child has a probability for adoption but is difficult to place for adoption and there is no identified or available prospective adoptive parent, the court may identify adoption as the permanent placement goal and without terminating parental rights, order that efforts be made to locate an appropriate adoptive family fоr the child within a period not to exceed 180 days. . . . At the expiration of this period, another hearing shall be held and the court shall proceed pursuant to paragraph (1) or (3) of subdivision (b). . . ." A child is considered difficult to place for adoption only if the lack of a current placement is due to "the child's membership in a sibling group, or the presence of a diagnosed medical, physical, or mental handicap, or the child is the age of seven years or *851 more." (
The Department notes that there is a disagreement among the appellate courts about whether a subdivision (c)(3) order is directly appealable. In re Edward H. (1996)
The rationale of Jacob S. and Cody C. is that the probability-of-adoption finding is a purely interim conclusion. If an adoptive home is found within the time allowed, the issue of adoptability will be considered and decided at the further hearing. (
To the extent Cody C. or Jacob S. may be read as holding that a subdivision (c)(3) *852 order is categorically unappealable, we respectfully disagree for two reasons. First, the general rule in juvenile dependency cases is that all orders (except for an order setting a
Second, given recent changes in thе law, none of the juvenile court's findings may be considered truly preliminary. (In re Ramone R. (2005)
The Department argues that this change in the law must have been inadvertent because it would result in encouraging the selection of long-term foster care at the initial hearing, a result the Department argues is at odds with the overall juvenile dependency scheme. According to the Department, the amendment is also meaningless for practical purposes because, if no adoptive home is found and there is no one willing to serve as legal guardian, the children will have to remain in foster care. *853 The Department urges us to simply ignore this change in the law.
Although eliminating a placement option from the juvenile court's cоnsideration may seem illogical, we must recall that in construing a statute, "that which is construed is the statutory text." (City of Sacramento v. Public Employees' Retirement System (1994)
Furthermore, it appears from our research that the change might have been intentional. It does not seem to have been a clerical error. In 2003, the Legislature amended the pertinent portion of subdivision (c)(3) to read: "the court shall proceed pursuant to paragraph (1), (3), or of subdivision (b) [sic]." (Stats.2003, ch. 813, § 7, p. 4749.) This was certainly a drafting error. But the Legislature corrected the error the following year, changing the pertinent language to "paragraph (1) or (3) of subdivision (b)." (Stats.2004, ch. 810, § 5, p. 4726; see Historical and Statutory Notes, 73 West's Ann. Welf. & Inst.Code (2005 supp.) foll.
In addition, recent legislative activity has focused upon the goal of minimizing "long-term foster care" as a permanent placement plan, as opposed to the use of foster care as a temporary placement arrangement. The stated purpose of the 2003 revisions to California's juvenile dependency law was "to further the goal of achieving permanency for older children in foster care, reducing reliance on long-term foster care as a placement option for these children." (Assem. Com. on Human Services, Analysis of Assem. Bill No. 408 (2003-2004 Reg. Sess.) April 29, 2003, p. 3, italics added.)[4] In 2004, the
B. Sufficiency of the Evidence
We now turn to the merits of mother's contentions. Mother argues that the evidence is insufficient to support the finding that the children were probably adoptable or that they were difficult to place because they were members of a sibling group or because of a diagnosed mental, physical, or medical condition. We review the order under the substantial evidence standard of review. (In re Erik P. (2002)
It is true that there is no evidence that either child had a diagnosed condition that made him difficult to place for adoption. That deficiency is immaterial, however, because there was another reason they were difficult to place and that is their membership in a sibling group. Mother's contention that they were not a sibling group is simply wrong. It is true that they fought with each other, but the social worker felt that plаcement together would be in their best interest. They were full brothers. They had been raised together until they were removed from mother's custody when the youngest was two years old. The recommended permanent plan is adoption of both boys together. That plan makes the children difficult to place within the meaning of subdivision (c)(3).
Mother's contention that there was insufficient evidence that the children had the probability of adoption is equally unavailing. In determining whether a child is likely to be adopted, the juvenile court must focus on the child, and whether the child's age, physical condition, and emotional state may make it difficult to find an adoptive family. (In re Erik P., supra,
III. DISPOSITION
The judgment is affirmed.
WE CONCUR: ELIA and BAMATTRE-MANOUKIAN, JJ.
NOTES
Notes
[1] All further statutory references are to the Welfare and Institutions Code. Unspecified subdivision references are to the subdivisions of
[2] Mother filed a Notice of Intent to File Writ Petition (
[3]
[4] On our own motion, we have taken judicial notice of the cited document pertaining to Assembly Bill 408, which is contained in the files of the Legislative Counsel.