Filed 1/26/18 In re Faith K. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from orders of the Superior Court of Stanislaus County. Ann Q. Ameral, Judge.

Carolyn S. Hurley, under appointment by the Court of Appeal, for Defendant and Appellant.

John P. Doering, County Counsel, and Maria Elena Ratliff, Deputy County Counsel, for Plaintiff and Respondent.

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INTRODUCTION

Appellant A.R. (mother) appeals from the orders of the juvenile court after a hearing terminating her parental rights to Faith K. (now two years old) pursuant to Welfare and Institutions Code section 366.26.[1] At the hearing on April 11, 2017, the juvenile court denied mother’s motion to modify prior orders of the juvenile court pursuant to section 388 and found by clear and convincing evidence that Faith was adoptable.[2] Mother contends there was insufficient evidence to support the juvenile court’s finding that Faith was likely to be adopted in a reasonable time. We disagree and affirm the orders of the juvenile court.

FACTS AND PROCEEDINGS

Early Proceedings

Faith was detained on August 26, 2015, shortly after her birth pursuant to allegations in a section 300 petition filed by the Stanislaus County Community Services Agency (agency). The petition alleged mother admitted to hospital workers to smoking methamphetamine the day before Faith’s birth and to smoking a “20 sack of methamphetamine per day.” Mother lost custody of an older child in 2010, who had tested positive for methamphetamine at birth. Mother also admitted her methamphetamine use to social workers prior to Faith’s birth. In addition, there were cockroaches in mother’s home. Mother has cognitive delays and reported in 2010 that she would forget how to make a bottle and did not know how to clothe a baby.

Mother was appointed a guardian ad litem on September 29, 2015. Faith was placed with nonrelated extended family. At the joint jurisdiction/disposition hearing on November 19, 2015, the juvenile court found the allegations in the petition true by clear and convincing evidence and adjudged the minor a dependent of the court. The juvenile court ordered reunification services for mother and the presumed father.

A status review report prepared by the agency for the six-month review hearing recommended continued reunification services for mother. Faith had been placed in a registered foster home where the caregivers had been the legal guardians of Faith’s half sibling since 2011. The social worker for the agency reported Faith had some developmental delay because of lack of physical activity, and she was referred to the Valley Regional Mountain Center (VRMC) for assessment. The hearing was continued on May 13, 2016. The agency filed an addendum report seeking to discontinue reunification services to mother.

Mother’s scheduled visit with Faith on April 15, 2016, was cancelled because mother threatened suicide. Mother was hospitalized because of this threat and was placed on a hold pursuant to section 5150. Although mother was released from the hold and the hospital, she missed several more visits with Faith due to her inability to get to the agency on time. Mother only viewed drug use as good or bad and was unable to understand the negative effects of drug use on her own life. Mother attended parenting classes for six months, but was unable to demonstrate she could apply the skills she was taught. During a three-hour visit in May 2016, mother attempted to feed Faith a bottle while Faith was lying flat, causing Faith to choke. During that visit, Faith also fell on her face while sitting with mother. The agency did not believe mother would reunify with Faith with an additional six months of services.

The foster mother noticed gross and fine motor skill delays in Faith in December 2015 and began doing exercises with Faith to help her. For instance, Faith had difficulty holding her head up. Faith was assessed by VRMC in February 2016 and found to be three months behind in her development. In March 2016, Faith still had difficulty rolling over to her back, could not roll to front, and was unable to sit up without full assistance. Social workers were concerned mother would not be able to parent her baby safely, and during visits she had to be reminded by staff concerning what to do. Faith was well bonded with her caregiver.

By May 20, 2016, Faith’s infant development specialist with VRMC reported she had never seen mother, who had missed scheduled appointments. The specialist reported Faith initially had many physical obstacles to overcome, which she believed was due to mild to moderate cerebral palsy. But the foster mother took on the demanding physical tasks assigned by the specialist to perform on Faith.

The specialist described the foster mother’s efforts as dedicated and explained the foster mother “accomplishe[s] the unthinkable” every week. Faith’s limited range of motion in her shoulders was gone and she was able to combat crawl very quickly. Faith also acquired the ability to stand against furniture with support and could cruise alongside the furniture. The specialist described Faith as affectionate, able to speak five words, and could play with a variety of toys; she could grasp cereal off her tray and get it into her mouth.

At the conclusion of the six-month review hearing on June 28, 2016, the juvenile court found the social worker had expended a great deal of effort trying to get mother to appointments and providing additional services to assist her with her disabilities, but mother failed to keep her appointments for her own clinical assessment and for visitation with her daughter. The court found by clear and convincing evidence that services were offered or provided to mother, but she had not successfully availed herself of those services. The court terminated further reunification services to mother.

In the 12-month VRMC evaluation, Faith was described as trying hard at everything one does with her. She loved playing with toys and in the swimming pool. The foster mother reported there was nothing difficult about her daily routine and “she in fact would not change a thing.” Faith was cuddling more, crawling, pulling herself to a stand, more interested in her toys, and was a good eater.

The 12-month review hearing was conducted on November 21, 2016. The social worker’s report recommended the matter be set for a section 366.26 hearing within 120 days. Mother presented no evidence at the hearing and essentially submitted the matter on the social worker’s report. The court found no progress by mother, ordered Faith be kept as a dependent of the court, and set the matter for a hearing pursuant to section 366.26 to terminate both parents’ parental rights.

Hearing on Termination of Parental Rights

In April 2017, the agency prepared a report for the hearing to terminate mother’s and presumptive father’s parental rights and recommended adoption as the permanent plan. Faith was taken to Valley Children’s Hospital in March 2017 to see a neurologist for her developmental delays and was receiving weekly services from VRMC for improving motor skills and speech. Faith showed no signs of being at risk for mental health issues. The prospective parents had been caring for Faith since she was weeks old. Faith and her caregivers were closely and mutually bonded in a parent-child relationship. The caregivers have been married since 2006 and have a large, close-knit family. Neither caregiver has a criminal history, nor do they have a history of child abuse or neglect. As noted above, the caregivers have a registered foster home. Both caregivers feel adoption is the best permanent path for Faith.

The prospective parents had been meeting Faith’s needs for 18 months, hoped to do so into the foreseeable future, and were certain to adopt her. The consequences of adoption had been explained to the caregivers and they stated they understood them. The caregivers are not interested in having a formal, postadoption contact agreement with Faith’s parents. Both caregivers are “fully committed to offering Faith permanency through adoption” and were completing the process to have an approved adoption home study, which the agency anticipated would be completed soon. The agency recommended the parental rights of the parents be terminated with a permanent plan of adoption.

Mother filed a petition in April 2017 to modify the juvenile court’s prior order denying her further reunification services. As the basis for her petition, mother stated she had been clean and sober for two years and lived in sober housing despite no longer having a court-ordered case plan. Mother asserted it was in Faith’s best interests to reunify with mother. Mother attached documentation establishing her continued sobriety. Mother failed to explain why she had so few visits with Faith. After visiting Faith on October 28, 2016, mother was absent for three scheduled visits between early December 2016 and early February 2017. Mother last visited Faith on February 17, 2017.

At the hearing on April 11, 2017, the juvenile court first denied mother’s petition to modify its prior order ending reunification services. The court noted that although mother remained clean and sober, mother had special needs of her own that made it difficult for her to care for Faith. Addressing the termination of parental rights, mother’s counsel made an offer of proof concerning mother’s testimony, which was accepted by the parties. According to counsel, if mother were to testify, she would explain she did not know she still had monthly visits until she was informed by father. Mother would state her last visit with Faith was on February 17, 2017, and she cared and played with Faith during that visit, which they both very much enjoyed. Mother would state she missed a visit in March because she was delayed on her way to the agency by a passing train. Mother called to leave a message for the social worker.

Mother would testify she does not want Faith adopted and would like another chance to be her mother. If Faith could not be returned to mother, mother’s alternative choice would be for Faith to be returned to father. Mother’s last choice would be for Faith to be placed in a long-term guardianship with a relative. Mother would also testify that she loves Faith very much and does not want Faith removed from her life. Father testified concerning the quality of his visits with Faith. Neither parent presented any evidence related to Faith’s adoptability, although mother’s counsel objected to the agency’s finding that Faith was adoptable.

The juvenile court noted both parents cared for Faith, but continuing their parental rights would cause more damage to Faith than would a permanent plan of adoption. The court observed Faith had been living with her current caregivers for a long time and she knows them as parents. The court found Faith was adoptable by clear and convincing evidence and terminated the parental rights of mother, presumed father, and alleged father.

DISCUSSION

Mother challenges the sufficiency of the evidence to support the juvenile court’s finding that Faith is adoptable. She asserts Faith is not “generally adoptable” because she is developmentally delayed, the juvenile court failed to take into account Faith’s developmental delays, and the agency had not completed the adoption study of the caregivers. We conclude substantial evidence supports the juvenile court’s finding that Faith 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 [citation] and to consequently order termination of parental rights.” (In re G.M. (2010) 181 Cal.App.4th 552, 559.) 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).)” (In re G.M., supra, at p. 559.)

At the 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 are not applicable here. (See 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.) To be considered adoptable, the child need not be in a prospective adoptive home and there need not be a prospective adoptive parent waiting to adopt. The fact a prospective adoptive parent has expressed interest in adopting the child is evidence the child’s age, physical condition, mental state, and other matters relating to the child are not likely to dissuade adoption of the minor. 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.)

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. (In re 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.)

We address the terms “generally” and “specifically” adoptable, terms that, in our view, obfuscate the adoptability issue before the juvenile court because those terms are not mentioned in section 366.26. 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. The law 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 agency explained Faith was adoptable because of her caregivers’ commitment to adoption, the fact the caregivers have been meeting Faith’s needs nearly her entire life, and the caregivers’ large, close-knit family. The juvenile court described Faith as “an adorable little girl.” The parties were aware throughout the proceedings of impediments to Faith’s adoption—specifically, her developmental delays potentially caused by cerebral palsy. The caregivers were proactive in seeking physical therapy and medical attention for Faith. By May 20, 2016, an infant development specialist with VRMC assigned to Faith’s case reported Faith initially had many physical obstacles to overcome but observed the foster mother took on demanding physical tasks assigned by the specialist to perform on Faith. The specialist described the foster mother’s efforts as dedicated and explained the foster mother accomplished the unthinkable every week. Faith’s limited range of motion in her shoulders was gone and she was able to combat crawl very quickly. Faith also acquired the ability to stand against furniture with support and could cruise alongside furniture. The specialist described Faith as affectionate, able to speak five words, and played with a variety of toys. Faith could feed herself cereal.

The specialist’s description of Faith’s progress with her foster mother was given before Faith was one year old and about 11 months prior to the section 366.26 hearing and indicates the caregivers’ ongoing commitment to Faith’s development and care. Faith was, therefore, adoptable because her potential adoptive parents wanted to adopt her, making her “specifically” adoptable. Under the facts of this case, this factor alone serves as evidence Faith was likely to be adopted within a reasonable time by these adoptive parents or some others. (In re Sarah M., supra, 22 Cal.App.4th at pp. 1649–1650.)

Mother asserts the report did not adequately address the “general” adoptability of the minor because the report section addressing the minor’s characteristics did not specifically address her appearance or personality. Looking to the record as a whole, it is apparent Faith is a likeable and generally easy child to care for and raise despite her developmental issues. Father described her as “a really happy baby” in his testimony at the hearing. In the 12-month VRMC evaluation, Faith was described as trying hard at everything one does with her. She loved playing with toys and in the swimming pool. The foster mother reported there was nothing difficult about Faith’s routine and she would not change anything. Faith showed no signs of being at risk for mental health issues.

Mother argues that even a specifically adoptable child may have so many disabilities that a juvenile court must assess such a child, giving consideration to “whether the prospective adoptive parents can meet that child’s needs, since if the prospective adoptive parents cannot meet the child’s needs, the child cannot properly be found to be adoptable.” (In re Carl R. (2005) 128 Cal.App.4th 1051, 1062.) Carl R. had serious physical disabilities that would require life-long care. (Ibid.) The court in Carl R. found the prospective adoptive family had a long history of caring for children with special needs and there was substantial evidence Carl R. was adoptable. (Id. at pp. 1064–1067.) As the agency points out, the facts of Carl R. are distinguishable from this case because Faith’s disabilities are far less serious and were being addressed by her foster parents. Furthermore, as in Carl R., there was substantial evidence before the juvenile court that the prospective adoptive parents were skilled in caring for children, including a child with special needs.

Mother notes the child in In re Brandon T. (2008) 164 Cal.App.4th 1400 was not generally adoptable because he had serious disabilities, but was specifically adoptable because his caretakers were relatives who were emotionally bonded with him and committed to adoption. The relatives had also adopted two other children who were adults at the time of the proceedings. (Id. at pp. 1409–1410.) Mother contrasts the facts of Brandon T. with the facts here, because here there was no evidence the caretakers had adopted and, in fact, acted as guardians to Faith’s half sibling.

We disagree with mother’s characterization of the facts in this case. The facts of Brandon T. are actually very similar to the facts here. The caregivers here had cared for Faith for a year and a half, were very committed to adoption, and although not apparently Faith’s blood relatives, they were part of her extended family. The fact the caregivers had a guardianship for Faith’s half sibling rather than adopting that child does not lessen their commitment to adopting Faith, and, without an adequate record concerning the half sibling, we are left to speculate as to the circumstances leading to long-term guardianship rather than adoption of that child. We note, however, the caregivers have had a six-year guardianship of Faith’s half sibling since 2011, indicating a dedicated long-term commitment to the child.

Mother argues the absence of a home study prior to the hearing casts doubt on the caregivers’ commitment, or their qualifications, to adopt Faith. We disagree. Although Faith had a developmental delay caused by a potential disability, she was otherwise a happy and healthy child, supporting the juvenile court’s conclusion she was readily adoptable. Even though the home study was not completed prior to the hearing, the agency determined the caregivers had no criminal background or child abuse past. The caregivers had a registered foster home. Furthermore, they have been legal guardians of Faith’s half sibling since 2011. (See In re Marina S. (2005) 132 Cal.App.4th 158, 165.)

There is no legal requirement an adoptive home study be completed before a juvenile court can terminate parental rights. The question before the juvenile court was whether the child was likely to be adopted within a reasonable time, not whether any particular adoptive parents were suitable. The issue of a potential family’s suitability to adopt is reserved for a subsequent adoption proceeding. (In re Marina S., supra, 132 Cal.App.4th at p. 166, citing In re Scott M. (1993) 13 Cal.App.4th 839, 844.)

The mother in In re Helen W. (2007) 150 Cal.App.4th 71, 79, contended the social service agency’s finding the children there were adoptable was not supported by sufficient evidence because the agency had failed to consider obstacles to adoption. The court in Helen W. disagreed, noting the agency methodically reported the children’s medical, developmental, emotional, and behavioral conditions. The foster mother who sought adoption had accompanied the children to appointments, advocated for services, and was fully aware of the children’s medical and psychological conditions. The court in Helen W. found no legal basis for the mother’s assertion that there had to be certainty in a child’s future medical condition before the court could find adoptability. (Ibid.)

The mother in Helen W., like the mother here, also argued the juvenile court improperly relied solely on the foster mother’s willingness to adopt. Addressing this point, Helen W. noted that when a child is deemed adoptable only because a particular caretaker is willing to adopt, the analysis shifts from evaluating the characteristics of the child to determining 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. (In re Helen W., supra, 150 Cal.App.4th at p. 80, citing In re Carl R., supra, 128 Cal.App.4th at p. 1062; also see In re G.M., supra, 181 Cal.App.4th at pp. 563-565 [social worker did not conclude children were adoptable solely on caregiver’s willingness to adopt them].) No legal impediment was found with the prospective adoptive parent in Helen W. and the social history detailed the relevant social history of the foster mother in addition to her commitment to adoption. (In re Helen W., supra, at p. 80.) The same is true here, and as discussed above, there is independent evidence in the record showing Faith is adoptable notwithstanding her developmental delays.

We conclude substantial evidence supports the juvenile court’s finding Faith is adoptable based on her general characteristics and placement in a prospective adoptive home. We decline mother’s invitation to speculate whether the prospective adoptive parents will be able to meet Faith’s future needs and whether their commitment to adopting her is reliable in the face of uncertainty. 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 if matters continue the child will be adopted into that home, adoptability has been established. In such a case, the literal language of the statute is satisfied, because it is “likely” the child in question will be adopted. (In re K.B., supra, 173 Cal.App.4th at p. 1292, citing In re Jayson T. (2002) 97 Cal.App.4th 75, 85, disapproved on other grounds in In re Zeth S. (2003) 31 Cal.4th 396, 414.) Even where a child’s special needs render the child not generally adoptable (a term we have already noted is not particularly useful in analyzing the issue of adoptability), a finding of adoptability can be upheld if a prospective family has been identified as willing to adopt the child and the evidence supports the conclusion it is reasonably likely the child will in fact be adopted within a reasonable time. (In re K.B., supra, at pp. 1292–1293.)

DISPOSITION

The orders of the juvenile court finding the minor adoptable and terminating parental rights are affirmed.

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PEÑA, J.

WE CONCUR:

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FRANSON, Acting P.J.

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SMITH, J.