Filed 6/21/17 In re Baby Boy M. CA5



NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT

In re BABY BOY M., a Person Coming Under the Juvenile Court Law.

KERN COUNTY DEPARTMENT OF HUMAN SERVICES
Plaintiff and Respondent,
v.
DANIELLE M.,
Defendant and Appellant.
F074849
(Super. Ct. No. JD135799-00)

OPINION
THE COURT*
APPEAL from an order of the Superior Court of Kern County. Louie L. Vega, Judge.
Mara Carman, under appointment by the Court of Appeal, for Defendant and Appellant.
Theresa A. Goldner, County Counsel, and Bryan C. Walters, Deputy County Counsel, for Plaintiff and Respondent.
-ooOoo-
In this juvenile dependency case, newborn Baby Boy M. (baby) was removed from the custody of his mother, Danielle M. (mother). Mother was not offered reunification services. At a subsequent Welfare and Institutions Code section 366.26 hearing, the juvenile court found baby was likely to be adopted and entered an order terminating parental rights. Mother appeals, arguing the juvenile court erred in terminating her parental rights because there is insufficient evidence to support the finding that baby is likely to be adopted. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In early February 2016, the Kern County Department of Human Services (department) was notified that mother gave birth to baby at 28 weeks gestation and tested positive for methamphetamine five days before while being admitted to the hospital. Baby tested negative for drugs but was exposed to methamphetamine in utero. Baby remained in the hospital for approximately seven weeks and was discharged to foster care where he remained throughout these proceedings. Mother left the hospital against medical advice the day after his birth.
Mother has an extensive history of mental illness and drug abuse (methamphetamine and cocaine). She also has a history of child welfare intervention. In the 10 years preceding baby’s birth, she had lost her parental rights to four children. In June 2016, the juvenile court exercised its dependency jurisdiction over baby (§ 300, subds. (b)(1) & (j)), removed him from mother’s custody and denied her reunification services (§ 361.5, subd. (b)(10) & (11)). The court also found the whereabouts of his alleged father were unknown and set a section 366.26 hearing. Mother did not challenge the setting order by filing an extraordinary writ petition.
Baby’s foster parent expressed concern that baby may have a sensory processing problem because he startled easily, especially when water touched his body, he only slept on his stomach, and did not cry for food or when in pain. In addition, his head and body appeared unstable and he put his weight on one leg only. He kept his arms and hands tightly clenched, and was always on guard and tense. A social worker observed that baby could not sit on his own, did not attempt to hold his bottle and could not effectively hold a toy in his hands. He was able to roll onto his side but struggled to roll back in the opposite direction. He cried a lot at night and was not easily consoled.
In June 2016, baby’s foster parent completed the “Ages and Stages Questionnaire” which when scored revealed that baby fell below target in gross motor, fine motor, problem solving, and personal social development. An intake coordinator at Kern Regional Center assessed him in August and found he had a 33 to 50 percent delay in all areas. He was eligible for early intervention services and scheduled to begin in September 2016.
In its report for the section 366.26 hearing, the department recommended the juvenile court find baby adoptable, terminate parental rights and select adoption with baby’s foster parents (referred to as his prospective adoptive parents) as his permanent plan. The department considered baby adoptable because he was young, he did not have any significant medical problems or developmental delays and the prospective adoptive parents were committed to adopting him and caring for his needs. The department also opined it would not be detrimental to baby to terminate parental rights because he did not know his father and did not appear bonded to mother. In addition, mother had not visited him regularly, having attended only eight of 26 scheduled visits.
The department also reported the prospective adoptive parents were highly motivated to adopt baby. The adoptive mother believed she had the knowledge and patience to help baby. The adoptive father loved baby and was very attached to him. When asked about her motivation for adopting, the adoptive mother disclosed her initial uncertainty about adopting baby because of his sensory problems. Although she had experience with an autistic son and knew she could help baby, she was already committed to another child she was fostering. However, the results of the Kern Regional Center assessment resolved any uncertainty she had and she realized she could help baby meet his developmental milestones. She believed strongly in family and had a lot of love to give. She and the adoptive father understood the responsibilities of adoption and were committed to adopting baby.
Mother testified at the section 366.26 hearing that she was participating in intensive outpatient treatment and not using drugs. She acknowledged not visiting baby but explained the department relocated the visitation location and terminated her bus passes. She believed baby’s best interests would be served by maintaining her parental rights because he needed her. The issue of baby’s adoptability was not raised.
The juvenile court found baby was likely to be adopted and terminated parental rights, finding it would not be detrimental to him.
DISCUSSION
Mother challenges the sufficiency of the evidence to support the juvenile court’s finding that baby is adoptable. She asserts (1) baby is not “generally adoptable” because he is developmentally delayed with an uncertain prognosis and (2) baby is not “specifically adoptable” because the full extent of his developmental delay was not known and, therefore, the court could not determine if the adoptive parents could meet his future needs. We conclude substantial evidence supports the juvenile court’s finding that baby is adoptable.
“Once [the juvenile court] sets a hearing pursuant to section 366.26 to select and implement a permanent plan for a dependent child, the [agency] must prepare an assessment, frequently referred to as an adoption assessment. Such an adoption assessment provides the information necessary for the juvenile court to determine whether it is likely the child will be adopted and to consequently order termination of parental rights.” (In re G.M. (2010) 181 Cal.App.4th 552, 559 (G.M.), citations omitted.) The assessment must include “[a] preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent.” (§ 366.21, subd. (i)(1)(D).) “A child’s current caretaker may be designated as a prospective adoptive parent if the child has lived with the caretaker for at least six months, the caretaker currently expresses a commitment to adopt the child, and the caretaker has taken at least one step to facilitate the adoption process. (§ 366.26, subd. (n)(1).)” (G.M., supra, 181 Cal.App.4th at
p. 559.)
At a section 366.26 hearing, the juvenile court must determine by clear and convincing evidence whether it is likely the minor will be adopted. (§ 366.26,
subd. (c)(1).) If the court finds a likelihood of adoption, the court must terminate parental rights absent evidence termination would be detrimental to the minor under one of the exceptions to adoption (§ 366.26, subd. (c)(1)(B)(i)-(vi)) that mother does not argue are applicable here. (In re Celine R. (2003) 31 Cal.4th 45, 53.)
In determining adoptability, the juvenile court assesses the child’s age, physical condition and emotional state and how these characteristics affect a prospective parent’s willingness to adopt the child. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649
(Sarah M.).) “To be considered adoptable, a [child] need not be in a prospective adoptive home and there need not be a prospective adoptive parent ‘ “waiting in the wings.” ’ [Citation.] Nevertheless, ‘the fact that a prospective adoptive parent has expressed interest in adopting the [child] is evidence that the [child’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 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.’ ” (In re R.C. (2008)
169 Cal.App.4th 486, 491 (R.C.), italics omitted.)
In assessing adoptability, some courts have divided children into two categories: those who are “generally adoptable” and those who are “specifically adoptable.” A child is “generally adoptable” if the child’s traits, e.g., age, physical condition, mental state and other relevant factors do not make it difficult to find an adoptive parent. A child is “specifically adoptable” if the child is adoptable only because of a specific caregiver’s willingness to adopt. (R.C., supra, 169 Cal.App.4th at pp. 492-494.) “ ‘When a child is deemed adoptable only because a particular caregiver is willing to adopt, the analysis shifts from evaluating the characteristics of the child to whether there is any legal impediment to the prospective adoptive parent’s adoption and whether he or she is able to meet the needs of the child.’ ” (Id. at p. 494.)
As a preliminary matter, we address the terms “generally” and “specifically” adoptable. In our view, identifying a child as “generally” or “specifically” adoptable obfuscates the adoptability issue before the juvenile court, as those terms are not mentioned in section 366.26, the statute governing termination of parental rights. Further, the juvenile court is not required to assess the general and specific adoptability of a child or make such findings. Instead, section 366.26 merely requires the juvenile court to determine if the child is likely to be adopted within a reasonable time. In other words, it requires the juvenile court to determine if the child is adoptable.
“Although a finding of adoptability must be supported by clear and convincing evidence, it is nevertheless a low threshold: The court must merely determine that it is ‘likely’ that the child will be adopted within a reasonable time. [Citations.] We review that finding only to determine whether there is evidence, contested or uncontested, from which a reasonable court could reach that conclusion. It is irrelevant that there may be evidence which would support a contrary conclusion.” (In re K.B. (2009)
173 Cal.App.4th 1275, 1292.) Moreover, we review the record in the light most favorable to the juvenile court’s findings, and draw all inferences from the evidence that support the court’s determination. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1177.)
Here, the department opined that baby was adoptable because of his young age and the absence of any medical, developmental or behavioral problems that would concern a prospective adoptive parent. Thus, he was adoptable based on his characteristics or “generally” adoptable as that term has been defined. Baby was also adoptable because his adoptive parents wanted to adopt him. Thus, he was “specifically” adoptable, a fact that alone serves as evidence he was likely to be adopted within a reasonable time by his adoptive parents or some others. (Sarah M., supra,
22 Cal.App.4th at pp. 1649-1650.)
Mother concedes baby’s prospective adoptive parents’ desire to adopt is some evidence of his adoptability but argues it is insufficient given the lack of evidence they were capable of meeting his medical and developmental needs. She likens her case to
In re Valerie W. (2008) 162 Cal.App.4th 1 (Valerie W.), where the adoption assessment was deficient because the supervising agency failed to address several required points, including the capability of the identified prospective adoptive parent to meet the child’s needs. (§ 366.21, former subd. (i)(4).) The Valerie W. court concluded the inadequate assessment undermined the juvenile court’s adoptability finding and reversed the judgment. (Valerie W., supra, at pp. 14-17.)
Valerie W. is distinguishable on several key points. First, the potential medical problems at issue in that case were far more severe, including a possible seizure disorder and stunted growth. (Valerie W., supra, at pp. 5-6.) In addition, the child had “unresolved neurological and genetic issues that required further testing” and the agency had failed to provide the results of his most recent pediatric visit and electroencephalogram. Therefore, the prospective adoptive parents did not know the extent of care that would be necessary because they had not been informed of the child’s “diagnosis or possible diagnoses, prognosis[,] or any needs for treatment or special care.” (Id. at pp. 10, 13, 15.) Here, in contrast, baby’s condition was not unresolved because his developmental needs had been assessed and he was scheduled to begin treatment. Further, his prospective adoptive parents were aware of his developmental delay because they raised the concern, completed the survey questionnaire used to assess him and reviewed the results.
In sum, we conclude substantial evidence supports the juvenile court’s finding that baby is adoptable based on his general characteristics and placement in a prospective adoptive home. To the extent mother invites us to speculate whether the prospective adoptive parents will be able to meet baby’s future needs and whether their commitment to adopting him is reliable in the face of uncertainty, we decline. Rather, we prefer the more commonsense view that “when there is a prospective adoptive home in which the child is already living, and the only indications are that, if matters continue, the child will be adopted into that home, adoptability is established. In such a case, the literal language of the statute is satisfied, because ‘it is likely’ that that particular child will be adopted.” (In re Jayson T. (2002) 97 Cal.App.4th 75, 85.)
DISPOSITION
The order terminating parental rights is affirmed.