Foster Parents' Advanced Age Doesn't Bar Adoption, Court Rules

By Kenneth Ofgang
The Metropolitan News-Enterprise

LOS ANGELES -- A Los Angeles Superior Court referee abused his discretion when he ruled that a dependent child was not adoptable because the prospective adoptive parents were more than 70 years of age, the Second District Court of Appeal has ruled.

A finding as to adoptability must be based on the present circumstances of the child, Justice Kathryn Doi Todd wrote Feb. 6 in an opinion that was certified for publication Feb. 27. Referee Brian Petraborg erred, the justice wrote, by basing his ruling on his concern that the foster parents would be incapable "of keeping up with a young vibrant 18-year-old" near the end of the next decade.

The appellate court ordered that a new juvenile court hearing take place.

Josue was placed with Carmela and Fernando R., as they were identified by the court, 12 days after he was born. The couple already was caring for his then 2-year-old sister, Annel.

The children's mother threatened to kill herself when Annel was five months old, and since the mother was less than 18 years old at the time, she and Annel both were declared dependent.

The Los Angeles County Department of Children and Family Services petitioned to have Josue declared dependent on the ground that his parents were not complying with the case plan for Annel. In the summer of 2000, the court terminated parental rights with respect to Annel and held a review hearing for Josue.

The social worker said the mother needed at least six months of individual therapy before the child could be safely returned to her custody, and that the father -- from whom the mother was estranged -- had not complied with the case plan, had not visited the child in months, and could not be reached by the social worker.

At the 18-month review hearing two years ago, the mother said she was not ready to have the child returned to her. The court terminated reunification services and set the matter for a permanent placement hearing, also known as a selection and implementation hearing.

The hearing was held in April of last year. The Department of Children and Family Services prepared a report suggesting that visitation between the mother and Josue had not gone well, because the mother found that she could not control the child and because she had canceled or postponed several visits.

Fernando R. testified that he felt "sound and strong," that he and his wife both were in good health, that he saw no reason he would not be able to care for Josue when he got older, and that if he and his wife were unable to care for the child, his daughter would be willing and able to do so.

The county urged Petraborg to permit the adoption, but the parents and the child's attorney objected and urged that the foster parents be appointed as guardians instead.

Petraborg ruled that the case came under a statute which provides that notwithstanding the failure of reunification efforts, parental rights shall not be terminated if doing so would be detrimental because the child is living with a relative who is unwilling or unable to adopt because of special circumstances.

The referee commended the foster parents for taking good care of the child, found that it was in Josue's best interests to continue living with them under a guardianship, and concluded that he was not adoptable solely because of "the age of these particular caretakers."

DCFS appealed and won.

Doi Todd, writing for the Court of Appeal, said the referee erred by focusing the adoptability determination on the prospective adoptive parents, rather than on the child.

"Here, all the evidence points to the likelihood of Josue being adopted, and the record is devoid of any evidence to support a contrary finding," the justice wrote. "The record establishes that Josue had lived in the same foster home his entire life and had developed into a healthy, happy two-year-old by the time of the selection and ... implementation hearing."

Doi Todd noted that there were other prospective adoptive couples besides the foster parents, and rejected the contention that guardianship was preferable to adoption in Josue's case.

"While guardianship may provide some measure of short-term stability over foster care, it provides none of the long-term security an adoption would ensure," the jurist wrote.

Nor would guardianship solve the problem the referee was trying to address, since it "will not ensure that Josue has any parent or responsible adult involved in his life when he reaches 18 who is capable of keeping up with him and willing to do so," Doi Todd reasoned.