Amador Cnty. Dep't of Soc. Servs. v. A.B. (In re J.H.)

Blease, P. J.

NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 16DP00625, 16DP00626, & 16DP00627)

A.B. (mother) appeals from the juvenile court's order terminating her parental rights and freeing her children H.K., Jy.H., and Jz.H. (the minors) for adoption (Welf. & Inst. Code, §§ 366.26, 395), arguing insufficient evidence supports the court's section 366.26 determination of adoptability. We affirm the juvenile court's order.

Undesignated statutory references are to the Welfare and Institutions Code.

FACTUAL AND PROCEDURAL BACKGROUND

In May 2016, the Amador County Department of Social Services removed H.K. (age two), Jy.H. (age 15 months), and newborn Jz.H. from their parents' care and filed section 300 petitions alleging the minors were at risk because both mother and Jz.H. tested positive for drugs at Jz.H.'s birth, both parents admitted drug use, and this drug use resulted in their inability to care for and supervise the minors as seen through the unsafe condition of the home and lax supervision. (§ 300, subd. (b)(1).) The minors were officially detained on May 16, 2016, and the matter was set for a contested jurisdictional hearing. Ultimately, the parents submitted to jurisdiction after certain amendments to the section 300 petitions not relevant to this appeal, and the matter was set for a dispositional hearing.

The disposition hearing took place on June 23, 2016. The juvenile court found the allegations of the petitions true, declared the minors dependents of the court, and ordered the removal of the minors and reunification services. These reunification services were terminated at the 18-month permanency planning hearing because mother had made minimal progress towards reunification, and the matter was set for permanency planning under section 366.26.

The January 11, 2018 section 366.26 report recommended termination of parental rights for all three minors, a finding that adoption was the appropriate permanent plan, and termination of visitation with the parents.

At the time of the section 366.26 report, H.K. was being treated for speech delays. She participated in the Head Start preschool program and was in the process of obtaining a mental health assessment. "[D]efiance and aggressive behaviors [were] not present at the current foster home[,] but sometimes [were] present in the preschool classroom or in the respite foster home where the minor stays when in Amador County for visits with the parents." No concerns were noted at H.K.'s last child health and disability prevention (CHDP) exam. H.K.'s section 366.26 adoption assessment reported she was four years old and in good health, but struggled with anxiety for which she was receiving treatment through her individualized education plan. She also received speech services and was improving. H.K. was otherwise developmentally "on track." The assessment described H.K. as "generally a very happy little girl who wears a big smile" who "is very conscious and thoughtful of others." H.K. was bonding to her caregivers as seen through her seeking comfort from them, calling them " 'mommy and daddy,' " and excitement to be reunited with them. She had "a loving and secure relationship with her potential adoptive family" and "substantial emotional ties to the potential adoptive parents," who were committed to adopting her as well as maintaining sibling visitation after adoption.

At the time of the section 366.26 report, Jy.H. suffered from a speech delay and ankyloglossia for which he was scheduled to have surgery. Jy.H. had an active individual family service plan for his speech delay, which was estimated to be 33 percent or greater. He received weekly services from an in-home infant development specialist and speech and language therapy, which were to continue until age three. He participated in the Early Head Start program and was "doing well mentally and emotionally." Jy.H.'s adoption assessment noted he was two years old and in good health. His mental and emotional health were stable. "His foster mother described him as 'a typical two-year-old' " who is " 'very loving, friendly and typically happy,' " but also "attention seeking." The social worker observed Jy.H. to "always be smiling and playful." Jy.H. sought affection and comfort from his caregivers and enjoyed holding hands and cuddling with family members. While Jy.H. would display negative behaviors after visits with his parents, the behaviors and their longevity had decreased since the reduction in visitation. Jy.H. had "a loving and nurturing relationship with his potential adoptive family" and "appear[ed] to have substantial emotional ties" to his caregivers.

At the time of the section 366.26 report, Jz.H. had an active individual family service plan for which she received services "because of her small gestational age and prenatal drug exposure. However, the Infant Development Specialist sessions were decreased to once monthly and the Speech & Language Therapy for feeding issues was discontinued." Jz.H. was enrolled in Early Head Start, and her mental and physical health appeared appropriate. No concerns were noted at her last CHDP exam. Jz.H.'s adoption assessment noted she was 18 months old and in good health. Her mental and emotional health were stable, and her foster mother described her as " 'strong willed, happy and inquisitive.' " She had formed an attachment to her caregivers as seen through her seeking affection and comfort from them. Jz.H. had "a loving and nurturing relationship with her potential adoptive family" and "appear[ed] to have substantial emotional ties" to her caregivers.

Several attempts were made to place the minors together, which were unsuccessful in large part because of H.K.'s acting out and parenting behavior. However, Jy.H. and Jz.H. were successfully placed together and had been in that placement for approximately 10 months, and their caregiver was interested in adopting them. Likewise, H.K. was successfully placed with a foster family for approximately seven months at the time of the section 366.26 report, and because this was her second time with that family, had spent a total of approximately 13 months with them. This family was interested in adopting her. Preliminary examinations revealed both sets of caregivers were suitable for adoption and committed to adopting the minors. The section 366.26 report recommended: "The permanent plan of adoption appears to be in the best interest of all three minors as all have developed a genuine relationship with the current care providers and each of the families are committed to offering permanency."

Specifically, H.K. had a total of five placements, two of which were in the same home. Jz.H. and Jy.H. had a total of three different placements.

H.K.'s first placement with this family was terminated because of a family emergency necessitating a move away from the area and a desire to keep the siblings near each other and to facilitate reunification, not because of H.K.'s behavior.

Mother, who was then incarcerated after being arrested for assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), testified at the contested section 366.26 hearing and requested the juvenile court refrain from finding her children adoptable and terminating her parental rights, even though she conceded she could not then care for them. The minors' social worker also testified, largely mirroring the content of the section 366.26 report regarding the minors' placement history, including H.K.'s improved behavior with her current placement, even though she had some behavioral problems at school. The social worker testified it was possible that some of H.K.'s issues were tied to her visits with mother because of the temporal connection between the behaviors and the visits. The father's attorney conceded his client was not in a position to care for the children. Mother's attorney argued against adoption of H.K. because she was not "generally adoptable" and that the parental bond exception should prevent the adoption of H.K. and Jy.H.

We nonetheless recognize that the precise causation for these behaviors is not known and that the four-hour trip each way and respite foster care associated with H.K.'s visits with mother may very well have contributed to the negative behaviors.

Thereafter, the juvenile court determined by clear and convincing evidence that the minors were likely to be adopted and terminated parental rights as to mother and father, impliedly determining no exceptions to adoption applied. Mother timely appealed.

DISCUSSION

Mother argues there is insufficient evidence to support the juvenile court's finding that the minors are adoptable. We disagree.

A court must find, by clear and convincing evidence, that a child is likely to be adopted before terminating parental rights and selecting adoption as the permanent plan for the child. (§ 366.26, subd. (c)(1); In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.) We review this finding for substantial evidence. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) "[W]e presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. [Citations.]" (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)

"The issue of adoptability . . . 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.]" (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649 (Sarah M.).) It is not necessary that the minor already be in a potential adoptive home, or even that there be a prospective adoptive parent. (Ibid.; see also § 366.26, subd. (c)(1) ["The fact that the child is not yet placed in a preadoptive home . . . shall not constitute a basis for the court to conclude that it is not likely the child will be adopted"].) And the prospect that the minor may have some continuing behavioral problems does not foreclose a finding of adoptability. (See In re Jennilee T. (1992) 3 Cal.App.4th 212, 224-225.) However, "[t]here must be convincing evidence of the likelihood that adoption will take place within a reasonable time. [Citation.]" (In re Brian P. (2002) 99 Cal.App.4th 616, 624.)

While the issue of adoptability usually focuses on the minor, "in some cases a minor who ordinarily might be considered unadoptable due to age, poor physical health, physical disability, or emotional instability is nonetheless likely to be adopted because a prospective adoptive family has been identified as willing to adopt the child." (Sarah M., supra, 22 Cal.App.4th at p. 1650.) "Where the social worker opines that the minor is likely to be adopted based solely on the existence of a prospective adoptive parent who is willing to adopt the minor, an inquiry may be made into whether there is any legal impediment to adoption by that parent [citations]. In such cases, the existence of one of these legal impediments to adoption is relevant because the legal impediment would preclude the very basis upon which the social worker formed the opinion that the minor is likely to be adopted. [Citation.]" (Ibid.)

The term "specifically adoptable," therefore, denotes a child who but for the existence of a prospective adoptive parent would not be adoptable. The suitability of the prospective adoptive parent is not an issue when the child is generally adoptable; it may be placed in issue when the child is specifically adoptable.

The Adoptability of H.K.

Here, the evidence supports the finding that H.K. was likely to be adopted. H.K. was a four-year-old child who was generally in good health, even though she was in treatment for an improving speech delay and anxiety. Although she exhibited some challenging behaviors at school, they had improved in that she no longer exhibited those behaviors at home. H.K. had "substantial emotional ties" to her caregivers, with whom she had been placed for over a year, and they were committed to adopting her as well as to continuing her sibling visitation.

That a prospective adoptive parent is interested in adopting H.K. is evidence that her age, physical condition, mental state, and other matters relating to her are not likely to keep individuals from adopting her. (See Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650; see also In re A.A. (2008) 167 Cal.App.4th 1292, 1312-1313 [upholding adoptability determination of minors with language delays and attachment disorders].) "[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 family." (Sarah M., at p. 1650, italics omitted.) Thus, substantial evidence supports the juvenile court's finding that H.K. is likely to be adopted within a reasonable time.

Mother's reliance on In re Jerome D (2000) 84 Cal.App.4th 1200 and In re Kristin W. (1990) 222 Cal.App.3d 234 is misplaced as these authorities are factually distinguishable. --------

The Adoptability of Jy.H. and Jz.H.

The evidence also supports the finding that Jy.H. (age two) and Jz.H. (age 18 months) were likely to be adopted. "A child's young age, good physical and emotional health, intellectual growth and ability to develop interpersonal relationships are all attributes indicating adoptability. [Citation.]" (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1562.) Here, both Jy.H. and Jz.H. were young, in good mental and physical health, and had been housed together in the same placement for nearly a year by the time of the juvenile court's decision. They had "substantial emotional ties" to their caregivers, who were committed to adopting them. We do not believe that Jy.H.'s weekly therapy for his speech delay or Jz.H.'s monthly visits from an infant development specialist precluded the court from determining these minors were generally adoptable. (See In re R.C. (2008) 169 Cal.App.4th 486, 492 [positive attributes made 11 month old generally adoptable despite in utero exposure to drugs and slight speech delays].)

Further, given that Jy.H. and Jz.H. were adoptable as supported by multiple positive attributes, we do not reach mother's argument that an unsubstantiated Child Protective Services referral against the prospective adoptive mother for general neglect might indicate a legal impediment to adoption and thus preclude a finding of adoptability. "[T]he potential adoptive parent's suitability to adopt is irrelevant" when the evidence of adoptability is not based solely on the existence of a person willing to adopt. (Sarah M., supra, 22 Cal.App.4th at p. 1651.)

DISPOSITION

The juvenile court's order is affirmed.

/s/_________

Blease, P. J. We concur: /s/_________
Mauro, J. /s/_________
Murray, J.