In re D.M.

Filed 6/25/07 In re D.M. CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

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Ernst M., father of the minors, appeals from orders of the juvenile court terminating his parental rights. (Welf. & Inst. Code, 366.26, 395; undesignated statutory references are to the Welfare and Institutions Code.) Appellant contends there is no substantial evidence the minors are likely to be adopted. We affirm.

FACTS

D.M., then seven months old, was first removed from parental custody in April 2002 because the mothers mental health and violence issues rendered her incapable of caring for the minor and appellant was in custody. The court in Calaveras County sustained the petition, adopted a reunification plan and, in September 2002, transferred the case to San Joaquin County where the minors parents resided.

In January 2003, the Human Services Agency (HSA) in San Joaquin County detained J.M., then three months old, because the parents were not complying with the case plan for D.M.

Both minors were placed with the maternal grandmother.

D.M. had a congenital heart defect and was a client of Valley Mountain Regional Center (VMRC) for her developmental delays. Services were provided in San Joaquin County and, after the parents showed progress, HSA recommended returning the minors to them. Both minors were returned to parental custody under supervision by October 2003.

In March 2004, the minors were again removed from the parents. HSA initially placed the minors in foster care. When D.M. was removed from her parents the second time, there was a disturbing change in her behavior which had become highly sexualized. After several months in foster care, the minors were placed with the maternal great-grandparents. The minors were considered adoptable although D.M. had a heart condition and both minors were VMRC clients, with D.M. being more developmentally delayed and showing behavioral problems including frequent masturbation and self-gagging after visits. HSA recommended termination of services. The court sustained the second removal petition and ordered services terminated in May 2005.

By July 2005, D.M. had undergone surgery to correct her heart defect and was in weekly therapy. After visits she continued to show stress-related behavior such as masturbating, waking up crying and needing to be reassured that her home was with the maternal great-grandmother. Both minors were in an Early Start program. J.M. was doing well. D.M. had additional help from a special education program.

A permanent plan assessment in August 2005 stated the minors were blue-eyed, blond, healthy, Caucasian children. D.M. was evaluated as moderately mentally retarded with weak motor skills. Both were in weekly therapy to deal with post-visit behavior including crying when approaching the visit center, needing to be coaxed to visit, D.M.s masturbatory behavior, crying during visits and needing additional reassurance after visits. The assessment stated the minors were likely to be adopted because they were young, healthy and engaging despite D.M.s delays. The maternal great-grandparents were very committed to the minors but even if they were not adopted by them, HSA was confident another home could be found because D.M.s developmental issues were moderate.

A subsequent review report noted that the minors had no mental health issues but were stressed by visits. D.M. continued to need reassurance after visits. J.M. did not want to go to visits and was indifferent to the parents when he got there. J.M. was in speech therapy and D.M. continued as a VMRC client.

A supplemental assessment in March 2006 reiterated the maternal great-grandmothers commitment to the minors although the maternal great-grandfather had died. The assessment noted that the maternal grandmother was available to care for the minors if something happened to the maternal great-grandmother. The assessment stated that five-year-old D.M.s delays were such that she required assistance with daily activities and that J.M. continued in speech therapy. Visits continued to be stressful for the minors and both had behavioral problems after visits.

At an extended hearing, which also addressed a petition for modification filed by appellant, the adoptions worker testified that with therapy D.M.s post-visit behaviors had been minimized. The adoptions worker, who had 16 years of experience in placing children, further testified she believed the minors were generally adoptable and that D.M.s delays did not mean that she would not be adopted.

The maternal great-grandmother testified she was 64 and healthy but that, if anything happened to her, the maternal grandmother could take over. The minors had been with the maternal great-grandmother nearly two years by the time she testified. The maternal grandmother testified the minors were previously placed with her but that she did not ask for placement after the second removal due to her work schedule and small home. She admitted she had used drugs in the past but had been clean and sober for seven years.

At the conclusion of the hearing, the court terminated parental rights and selected adoption as the permanent plan.

DISCUSSION

Appellant contends substantial evidence did not support the juvenile courts finding the minors were likely to be adopted. He argues that D.M. had a heart disorder, serious behavioral problems and significant delays which made her difficult to place. Appellant recognizes that the maternal great-grandmother was the prospective adoptive parent but, noting her age, argues the back-up plan should the maternal great-grandmother become unable to care for the minors is to place them with an unsuitable caretaker. Appellant insists the only evidence of adoptability was the social workers opinion which, he argues, is inadequate to support the finding without further evidence.

When the sufficiency of the evidence to support a finding or order is challenged on appeal, even where the standard of proof in the trial court is clear and convincing, the reviewing court must determine if there is any substantial evidence--that is, evidence which is reasonable, credible and of solid value--to support the conclusion of the trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) In making this determination we recognize that all conflicts are to be resolved in favor of the prevailing party and that issues of fact and credibility are questions for the trier

of fact. (In re Jason L., supra, 222 Cal.App.3d at p. 1214; In re Steve W. (1990) 217 Cal.App.3d 10, 16.) The reviewing court may not reweigh the evidence when assessing the sufficiency of the evidence. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)

Determination of whether a child is likely to be adopted focuses first upon the characteristics of the child. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) The existence or suitability of the prospective adoptive family, if any, is not relevant to this issue. (Ibid., In re Scott M. (1993) 13 Cal.App.4th 839, 844.) [T]here must be convincing evidence of the likelihood that the adoption will take place within a reasonable time. (In re Brian P. (2002) 99 Cal.App.4th 616, 625.) The fact that a prospective adoptive family is willing to adopt the minor is evidence that the minor is likely to be adopted by that family or some other family in a reasonable time. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.)

Focusing first on D.M., the record reflects that, while she was born with a heart defect, she had corrective surgery prior to the section 366.26 hearing and is now considered healthy. It is true that D.M. suffered developmental delays and was a VMRC client, however, as the adoptions worker testified, this fact did not make her unadoptable. According to the evidence, D.M.s current emotional and behavioral problems were directly connected to visitation. Although D.M. displayed excessive masturbation

after her second removal from parental custody, by the time of the hearing, the record suggests that this and other negative behaviors were present only after she was stressed by contact with her parents. Moreover, therapy reduced the severity of the behaviors which could be expected to fade further with the security of a stable adoptive home and reduced post-adoptive visitation. D.M.s other characteristics, i.e., an engaging, young, blue-eyed blonde Caucasian girl, favored a finding she was likely to be adopted.

We now turn to J.M. As appellant recognizes, J.M.s characteristics (solidly described in several reports) also support a finding he is likely to be adopted since his speech delay does not present a significant problem in finding him a permanent home.

The evidence supports a finding that both minors are generally adoptable. They are also specifically adoptable because the maternal great-grandmother wants to adopt them and is committed to doing so. Substantial evidence supports the finding that each minor is likely to be adopted.

Appellant challenges the specific adoptive placement of the minors with the maternal great-grandmother because, given her age, she might not be available to raise the minors to adulthood and the maternal grandmother, who was likely to take over raising the minors, was an unsuitable caretaker.

Assuming for the sake of argument that this issue is cognizable in light of the above conclusion that the minors were both generally and specifically adoptable, appellant cannot prevail. Appellants argument is based upon the highly speculative proposition that a 64-year-old woman will die or otherwise be unavailable to raise the minors. There was no evidence the maternal great-grandmother was frail, mentally incapacitated or otherwise unsuitable to continue to raise the minors who had thrived in her care for two years. Further, relying on the maternal grandmother as a back-up caretaker was perfectly reasonable in light of the fact that she had previously provided care for D.M. and J.M. for many months before the minors were returned to parental care. There was no suggestion at any time during the dependency that her admitted history of substance abuse (which was followed by years of a clean and sober life) had ever affected the care she provided the minors.

Appellant suggests that the only evidence of the minors adoptability is the social workers opinion and that the bare opinion of the social worker is inadequate to support the courts finding. Appellant relies on In re Brian P., supra, 99 Cal.App.4th at page 624 [no adoption assessment report and only a bare assertion in a social workers testimony that the child was adoptable] and In re Asia L. (2003) 107 Cal.App.4th 498, at pages 510 through 512 [adoption assessment identified the children as needing specialized placement but had not identified a

prospective placement even after a continuance for homefinding although the social worker concluded they were adoptable].^[1]

While there may be circumstances in which the social workers opinion is inadequate, this is not such a case. The authorities cited by appellant are distinguishable. Unlike Brian P., there was an adoption assessment before the court and, unlike Asia L., the adoptions worker did not assess that the minors needed a specialized placement. Here, the assessment of the adoptions worker, who had 16 years experience in the specific area of placing children in adoptive homes, based upon the minors characteristics, was that the minors were likely to be adopted either because families could be found or because the maternal grandmother was willing to adopt them.

The court properly concluded from the evidence presented that the minors were likely to be adopted in a reasonable time and that there were neither legal nor practical barriers to the maternal great-grandmother being a suitable prospective adoptive parent for them.

DISPOSITION

The orders of the juvenile court are affirmed.

SIMS , J.

We concur:

SCOTLAND, P.J.

CANTIL-SAKAUYE , J.

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^[1] To the extent that Asia L. can be read to require an identified adoptive home be available for any child prior to termination of parental rights, we note that it is in conflict with section 366.26 and disagree with such a requirement.