Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County No. CK56988, Valerie Skeba, Juvenile Court Referee. Affirmed.
Lori Siegel, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Melinda White Svec, Deputy County Counsel, for Plaintiff and Respondent.
K.M. (mother) appeals from an order terminating her parental rights over four-year-old D.A. pursuant to Welfare & Institutions Code section 366.26. Mother appeals on the sole ground that clear and convincing evidence did not support the trial court’s finding that D.A. was adoptable. We affirm.
All further statutory references are to the Welfare & Institutions Code.
CHAVEZ, J.
FACTUAL AND PROCEDURAL HISTORY
D.A. was born in July 2004. At the time, mother was a minor under the jurisdiction of the juvenile court living with her cousin in San Diego. Mother had been removed from her parents’ home on February 26, 2004, due to her parents’ failure to protect and the abuse of a sibling.
1. Initial detention and jurisdiction
On October 19, 2004, the Los Angeles County Department of Children and Family Services (DCFS) filed a petition on behalf of D.A. pursuant to section 300, subdivisions (b), (c), and (g). The petition alleged that mother left D.A., then two months old, in the care of his paternal cousin and other unrelated caretakers without an appropriate plan for his ongoing care and supervision. Mother’s whereabouts were unknown.
At the detention hearing on October 19, 2004, the court ordered that the child be detained from mother and placed in the care of H.A. (father), D.A.’s presumed father, who was, at the time, a nonoffending parent. The court ordered family maintenance services for father and D.A. and family reunification services for mother. Mother was allowed reasonable monitored visitation with D.A. no less than three times per week. Father was not to be the monitor of mother’s visits. The matter was continued to November 15, 2004, for a pretrial resolution conference.
2. Jurisdiction/disposition
A hearing took place on November 15, 2004. DCFS submitted a report on the same date, recommending that D.A. be found to be a dependent of the juvenile court and remain placed with father. DCFS further recommended that father be provided with family maintenance services, and mother with reunification services. Mother was now residing in a group home.
The report indicated that DCFS did not believe that either mother or father was ready to care for D.A. alone. Mother’s therapist had informed DCFS that she could not continue counseling with mother because mother was “in denial and did not think that she was in need of therapy.” In addition, mother was “failing in school and not demonstrating any ability to be responsible.” The report also noted that father was immature and not able to provide for the baby without the assistance of his parents. In addition, he had issues with past criminal behavior. The court detained D.A. from the father and placed him with paternal grandmother. The November 15, 2004 hearing was eventually continued to March 21, 2005.
Father was residing with the paternal grandparents at the time. The paternal grandmother was not present at the hearing and was apparently unaware of the order detaining the minor with her.
DCFS filed an interim review report on January 3, 2005. Mother had been moved to a foster home on December 21, 2004, near the home of paternal grandmother, father, and D.A. However, she telephoned her social worker on December 27, 2004, and stated that she wanted to move back to the group home. She did not feel that she could go to school and take care of the baby at the same time.
On March 21, 2005, the section 300 petition was sustained with amendments. Mother was ordered the following reunification services: (1) to complete a DCFS approved program of parent education; (2) to participate in conjoint counseling with father; (3) to enroll in individual counseling to address case issues; and (4) to work toward completion of high school or her G.E.D.
Father was ordered to comply with the following family maintenance services: (1) to enroll in conjoint counseling with mother; (2) to complete individual counseling to address case issues, including parenting, budgeting, and responsible decision making; and (3) to keep DCFS apprised of his address and D.A.’s whereabouts. DCFS was given discretion to liberalize mother’s visits to overnight visits once she found an appropriate home or placement.
The court scheduled a section 366.21, subdivision (e) hearing for mother, and a section 364 judicial review hearing for father for September 19, 2005.
3. Section 342 petition
On June 16, 2005, DCFS filed a section 342 petition alleging that father had left D.A. in mother’s care without DCFS approval or court permission. DCFS had detained D.A. and placed him in foster care. Mother, who was now over the age of majority although still a dependent of the juvenile court, was residing with her parents at the time. Maternal grandmother was ill and “on a lot of medication” which caused her to pass out on a regular basis. Thus, she was not an appropriate caregiver for D.A. Nevertheless, maternal grandmother had been caring for D.A. while mother went out. In addition, DCFS alleged incidents of domestic violence between mother and father. Father had not been compliant with court ordered counseling. DCFS recommended that D.A. continue to be detained, and that both parents be granted monitored visitation.
On June 16, 2005, the juvenile court detained D.A. from his parents and ordered monitored visitation for both of them. DCFS was ordered to conduct a pre-release investigation (PRI) on the paternal grandmother. The matter was continued to June 23, 2005, for the PRI hearing. A pretrial resolution conference was scheduled for July 14, 2005, and both parents were ordered to return on that date.
On June 23, 2005, the court granted DCFS permission to place D.A. with his paternal grandmother. On July 14, 2005, DCFS submitted a report which noted multiple incidents of domestic violence between mother and father. At the hearing, mother expressed fear of father and stated that he had threatened to kill her. The court sustained the section 342 petition, with amendments. D.A. was removed from father’s care and suitably placed with paternal grandmother.
Father was no longer living in paternal grandmother’s home, as the grandmother had “kicked out” father and the baby in March 2005 because father was “being threatening and not being responsible.”
4. Section 387 petition
DCFS filed a status review report on September 20, 2005. D.A.’s grandmother had noticed that his feet were not growing straight. He had an evaluation with an orthopedic doctor, and the paternal grandmother was shown how to massage his feet to help stretch the muscles. On January 24, 2006, D.A. was moved from his paternal grandmother’s home to respite care, at her request, due to a family emergency which required her to leave the country. Upon her return, paternal grandmother informed DCFS that she was no longer able to care for D.A. due to family issues. D.A. was then placed in the home of mother’s cousin, S.M.
On March 21, 2006, mother gave birth to her second child, M.E., and moved in with her parents. Father had not been visiting D.A. and was not in compliance with his case plan. The fathers of D.A. and M.E. did not get along and verbally threatened one another in front of M.E. On September 7, 2006, M.E. was detained from mother’s care. In December 2006, father was arrested in Arizona on charges of aggravated assault, kidnapping, burglary, and armed robbery.
In May 2007 DCFS filed a section 387 petition stating that DCFS had been informed that D.A. had been sexually abused in the home of mother’s cousin. In addition, Sergeant Barb Pirrinen of the Maricopa County Sheriff’s Department informed DCFS that father’s telephone conversations were randomly monitored for criminal activity. The sheriff intercepted a telephone conversation between father, mother and maternal grandmother. Mother informed father that she intended to kidnap D.A. Father was overheard trying to convince mother and maternal grandmother not to kidnap D.A. but to inform DCFS about their concerns that D.A. was being sexually abused at the home of S.M.
As a result of the section 387 petition, D.A. was placed in foster care, in the same home as his half-brother, M.E. Maternal cousin S.M. informed DCFS that due to harassment from mother’s family and false referrals made against her regarding child abuse, she wanted D.A. removed from her home. However, it saddened her greatly to give him up, as she had hoped to adopt him.
A forensic exam for sexual abuse was performed on D.A. The doctor was not able to confirm whether D.A. had been molested, but noted that D.A. “acted out” a lot in his office. He bit and hit the caregiver. The caregiver also reported that D.A. “acted out” frequently, engaging in behavior such as yelling, screaming, hitting, and throwing himself around in public. The referral regarding sexual abuse was deemed unfounded by the responding DCFS social worker.
On July 10, 2007, D.A. was removed from the foster family he shared with his brother. The former foster parents reported that D.A.’s behavior had become too difficult to manage. This behavior included biting, kicking, and hitting his baby brother and other children in the foster home.
On July 31, 2007, DCFS reported that D.A. had been diagnosed with post-traumatic stress disorder due to neglect and multiple placements. D.A.’s therapist recommended that he be placed in a home that would be able to provide him with more individualized attention, primarily in order to be able to avoid more failed placements. D.A. was placed in a foster home where there was only one other child besides D.A., and that child was close to D.A.’s age. DCFS reported that the two children played well together.
On October 1, 2007, DCFS noted that mother had received three years of reunification services. She had not yet completed a parenting course and had not participated in individual counseling. Mother’s visits with D.A. were sporadic and inconsistent. In addition, those visits were still monitored due to the detention of D.A.’s half-brother and mother’s failure to progress with her case plan. DCFS recommended termination of reunification services.
5. Section 366.22 hearing
The section 366.22 trial began on October 1, 2007. Mother testified that she had completed a parenting course and participated in counseling. Mother introduced several certificates and awards she had received while residing in a group home, but none stated that she had completed parent education. Mother had married a man who was not the father of either of her children, but she indicated that she did not know how to spell his first or last name and that they had never lived together. She stated that her husband had never met either of her children. She indicated that she rented a room at the home of a family friend, and that she was not working.
At the end of the proceedings, the court terminated mother’s reunification services and set the matter for a section 366.26 selection and implementation hearing.
6. Section 366.26 hearing
DCFS filed a report on March 4, 2008, in connection with the section 366.26 hearing. DCFS reported that D.A. had been referred to a doctor for therapy for aggression and tantrums, which were thought to be associated with autism. D.A. had a pending Regional Services assessment regarding his possible autism. D.A.’s foster mother had been participating in specialized therapy for him. Attached to the report was a concurrent planning assessment, which indicated that:
“The foster parents are adopting the two year old in their home and they feel that the two year old and [D.A.] do well together. They feel bonded with [D.A.] and would like to adopt if he is available for adoption. They feel committed to his well being and in his having a permanent family.”
DCFS indicated that D.A. was “likely to be adopted.”
The March 4, 2008 hearing was continued twice to May 12, 2008.
DCFS provided a quarterly assessment on April 2, 2008. Under the section entitled “Adjustment to Placement,” the report indicated that D.A. was stable in his foster care placement and that his foster parents were “considering the option of adoption.” Under the section entitled “Permanency Planning,” the report stated that “[w]hile he retains ongoing visitation with his mother, the [foster parents] have stated a desire to adopt [D.A.] if that option becomes available. The [foster parents] are currently in the process of completing an adoptions home study.” The report further noted that a “letter of exception” was still needed for D.A., stating that he “may share this residence and placement with another foster minor, who recently turned age eighteen.”
DCFS’s May 12, 2008 report stated that D.A. was being evaluated for possible seizures, developmental delays, and autism. The child had issues with urinating and defecating on the floor in response to visits with mother. Brain tests were scheduled for June 3, 2008, after which the evaluation for autism would be completed. DCFS further stated that D.A. had to travel an hour each way to visit with mother. Often, mother did not cancel in time to save D.A. from the two hour trip to and from the visit location. DCFS stated that mother was not concerned about the affect of the inconsistent visitation on D.A. DCFS noted that between July 2007 and March 2008, mother visited 14 times out of 32 possible visits. In addition, mother would not provide DCFS with information regarding her counselor, so DCFS could not confirm whether she was participating in counseling.
The section 366.26 trial commenced on May 12, 2008. Mother testified that she lived alone in a studio apartment, which she had moved into on April 7, 2008. She was working as a salesperson, 40 to 50 hours per week. Mother testified that she had not visited with either of her children for a month. Mother admitted that she was aware of the court’s order that she complete a parenting class and participate in individual counseling, however, she had not completed these programs.
The same hearing served as M.E.’s section 366.22 hearing.
Mother’s attorney argued that mother’s parental rights should not be terminated due to the exception found in section 366.26, subdivision (c)(1)(B)(i), which provides for an exception to the termination of parental rights where there is regular visitation and a benefit to the child from continuing the parental relationship. The court was not persuaded by this argument. The court found that D.A. was adoptable by clear and convincing evidence. Mother did not object to this finding. The court terminated mother’s parental rights.
On May 16, 2008, mother timely filed her notice of appeal.
DISCUSSION
I. Applicable law and standard of review
Section 366.26, subdivision (c)(1), provides that “[i]f the court determines . . . by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption.” Clear and convincing evidence requires a finding of high probability, and must be so clear as to leave no substantial doubt. (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205.) Mother’s position in this appeal is that substantial evidence did not support the trial court’s finding that D.A. was adoptable.
The mandatory termination of parental rights found in section 366.26, subdivision (c)(1) is subject to several exceptions. (§ 366.26, subds. (c)(1)(B)(i) – (vi).) Mother does not argue that any of these exceptions applies in this matter.
Generally, the fact that a prospective parent has expressed interest in adopting a child is evidence that the child is adoptable. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650.) “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 that the child will be adopted.” (§366.26, subd. (c)(1).) A child may be found to be difficult to place for adoption if no adoptive home has been identified for the child and such lack of a prospective adoptive home is “because of 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 more.” (§ 366.26, subd. (c)(3).)
A court’s finding of adoptability under section 366.26 is reviewed for a determination of whether substantial evidence supports the finding. (In re Lukas B. (2000)79 Cal.App.4th 1145, 1153.) We must consider 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. (In re Tracy Z. (1987) 195 Cal.App.3d 107, 113.)
II. Forfeiture
We first address the question of forfeiture. DCFS argues that mother forfeited her right to challenge the juvenile court’s finding of adoptability by not raising the issue at trial. Mother admits that generally, points not urged in the trial court cannot be raised on appeal. However, mother cites Tahoe Nat’l Bank v. Phillips (1971) 4 Cal.3d 11, 23, footnote 17 for the proposition that “[t]he contention that a judgment is not supported by substantial evidence, however, is an obvious exception to the rule.” Thus, mother argues, while a parent may forfeit the objection that an adoption assessment does not comply with the requirements provided in section 366.21, subdivision (i), a claim that there was insufficient evidence of the child’s adoptability at a contested hearing is not forfeited by failure to argue the issue in juvenile court.
In re Brian P. (2002) 99 Cal.App.4th 616, supports mother’s position. In Brian P., the father argued that no substantial evidence supported the juvenile court’s finding that Brian was likely to be adopted. In response to the Alameda County Social Services Agency’s assertion that the father forfeited this claim by failing to object below, the father argued that “no objection is necessary to preserve a claim that there was a failure of proof.” (Id. at p. 622.) The court agreed. While we note that contrary authority exists (See, e.g., In re Crystal J. (1993) 12 Cal.App.4th 407, 412 [“substantive insufficien[cy] to establish requisite findings . . . was waived by failure to raise it at the trial level”]), we address the merits of mother’s claim.
III. Substantial evidence supported the juvenile court’s decision
Mother argues that the juvenile court’s determination that D.A.’s foster parents were able to meet his “physical, emotional and intellectual needs” if adopted was “premature” as of the writing of the March 4, 2008 report. Mother points out that, at the time, D.A.’s long-term special medical and behavioral needs were unknown and testing results were incomplete. Mother explains: “[D.A.] had been referred for neurological testing for developmental delays, seizures and autism. . . . [D.A.] was to be evaluated by Regional Center and sedated for a brain MRI and EEG. Moreover, [D.A.’s] therapist recommended and the court ordered [D.A.] have a more thorough psychological evaluation by a licensed psychologist. . . . The results of said evaluation and testing were unknown as of the date the court made its findings of adoptability.”
In support of her arguments, mother cites In re Valerie W. (2008) 162 Cal.App.4th 1. In Valerie W., the two prospective parents were an unrelated woman and her adult daughter. (Id. at p. 6.) The father contended that the Agency’s assessment report did not constitute substantial evidence of his children’s adoptability because “it contained only limited information concerning the prospective adoptive parents, who did not live together, and the Agency did not report on the nature of each caregiver’s relationship to the children, the children’s living arrangements, and whether other families were interested in adopting the children.” (Id. at p. 10.) Mother also notes that the court found that the Agency’s assessment report was insufficient because it did not contain information about the results of one child’s EEG and his most recent pediatric visit. (Id. at p. 13.)
The assessments and reports provided by DCFS were not similarly insufficient. Mother does not complain that past test results or medical information was not provided in the adoption assessment. And the assessment did provide information – if not results – regarding the pending testing. This distinguishes the current circumstances from those present in Valerie W., where: “the parties and the court” were not “provided any information about the testing that was pending at the time of the initial section 366.26 report.” (In re Valerie W., supra, 162 Cal.App.4th at p. 13.) Further, this language does not suggest, as mother indicates, that an adoption assessment report is insufficient if results of testing are unknown at the time of the section 366.26 hearing – as long as the court and the parties are informed that the testing is pending. Thus, the assessment report at issue was far more thorough than the one provided in Valerie W., and does not undermine the court’s decision to select adoption as D.A.’s permanent plan.
Mother is correct that, under Valerie W., the agency must “assess the capability of any identified prospective adoptive parent to meet the child’s needs.” (In re Valerie W., supra, 162 Cal.App.4th at p. 14.) The Valerie W. court further noted that “[w]here, as here, the records suggests the child has been or will be tested for a serious genetic or neurological disorder, a lack of evidence concerning the child’s condition, prognosis and treatment needs, if any, undermines the basis for the determination that a prospective adoptive parent is capable of meeting that child’s needs.” (Ibid.) However, here there was no “lack of evidence” as to D.A.’s condition or treatment. Information on D.A.’s medical condition and physical disabilities was contained in DCFS’s section 366.26 report as well as the May 6, 2008 status review report. Moreover, D.A. had been living with his prospective adoptive parents for over eight months, and he attended specialized therapy with his foster mother. This evidence showed that the foster parents were well aware of his developmental limitations.
In addition to her argument that D.A.’s long-term medical and psychological needs had not been fully evaluated, mother argues that the quarterly report submitted on May 4, 2008, noted that D.A.’s foster parents were “considering” adoption, and did not state that they were “committed” to adopting D.A., especially considering all of his special medical and behavioral needs. We reject this argument because the same report noted that “the [foster parents] have stated a desire to adopt D.A. if that option becomes available” and explained that the foster parents were in the process of completing an adoptions home study.
This evidence of D.A.’s foster parents’ desire to adopt him is sufficient to support the juvenile court’s determination that D.A. was likely to be adopted. “[T]he fact that a prospective parent has expressed interest in adopting the minor is evidence that the minor’s age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective 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. [Citation.]” (In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.) In addition, D.A. had lived with these foster parents for over eight months. This evidence is more than what is considered sufficient for a finding of adoptability. “‘[I]t is not necessary pursuant to section 366.26, subdivision (c)(1) that the child, at the time of the termination hearing, already be in a potential adoptive home. Rather, what is required is clear and convincing evidence of the likelihood that adoption will be realized within a reasonable time. [Citation.]” (In re Jennilee T. (1992) 3 Cal.App.4th 212, 223.) In sum, DCFS provided more than enough evidence to support the juvenile court’s finding of adoptability.
We reject mother’s position that the court’s finding on adoptability was incorrect because “there was only one identified family, [D.A.’s] foster parents, willing to consider adopting [D.A.] at the time the juvenile court terminated parental rights.” As set forth in section 366.26, subdivision (c)(1), the fact that the child does not have a prospective adoptive home “shall not constitute a basis for the court to conclude that it is not likely the child will be adopted.” Thus, there need not be even one identified family who is prepared to adopt the child in order for the court to conclude that the child is likely to be adopted. Mother presents no authority for her position that more than one family willing to adopt the child must be identified before a finding of adoptability can be made.
In re Amelia S. (1991) 229 Cal.App.3d 1060, is factually distinguishable. In that case, the evidence showed that, of the 10 siblings at issue, foster parents were considering adoption as to five of them, and there were no prospective foster parents as to the other five. Because there was inadequate evidence of adoptability, the court stated “[t]his is a far cry . . . from the clear and convincing evidence required to establish the likelihood of adoption.” (Id. at p. 1065.) Here, in contrast, D.A.’s foster parents had made affirmative statements that they desired to adopt him, and had commenced the process of clearing their home for adoption.
Mother emphasizes D.A.’s disabilities as a fact weighing against his adoptability. However, a child’s disabilities do not negate a likelihood of adoption. (In re Jennilee T, supra, 3 Cal.App.4th at pp. 224-225 [possible neurological problems did not “‘make much difference as to the adoptability of the child’”].) Again, the fact that D.A.’s foster parents had expressed interest in adopting him despite his potential disabilities is sufficient to support the court’s determination that he was likely to be adopted. (See In re Lukas B., supra, 79 Cal.App.4th at p. 1154 [finding of adoptability upheld where potential adoptive parents were committed to adopting children and were not dissuaded by the onset of recent behavioral problems].)
In addition, mother points out that the assessment dated April 2, 2008, noted that a letter of exception was still needed for D.A. indicating that he could share his residence and placement with another foster child who had recently turned 18. However, the absence of such a letter of exception does not preclude a finding that the child is likely to be adopted. A finding that a child is likely to be adopted may be made if the “totality of the evidence” supports the finding. (In re Crystal J., supra, 12 Cal.App.4th at p. 413.) That evidence included his current foster parents’ stated desire to adopt him, as well as his successful placement in that home for the previous eight months. As set forth in In re Sarah M., supra, 22 Cal.App.4th at pages 1649-1650, D.A.’s prospective parents’ willingness to adopt him is a powerful indicator that he is “likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family.” The missing letter of exception does not undermine this finding.
In addition, the section 366.26 report submitted by DCFS on March 4, 2008, indicated that “[t]he adoption homestudy for the prospective adoptive parents was approved on February 27, 2008.”
DISPOSITION
The order is affirmed.
We concur: BOREN, P. J., ASHMANN-GERST, J.