Filed 4/27/22 In re J.M. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

C.H. (mother) appeals from an order terminating her parental rights to one of her children, J.M. (minor). Mother asserts the court erred by finding the minor adoptable and contends the order should be reversed for a more appropriate permanent plan. We disagree and affirm the order.

I.
BACKGROUND

The record indicates the minor was detained in June 2017 due to unspecified issues involving alcohol abuse, a lack of car seats in the family vehicle, and the family being homeless and sleeping in their vehicle. The Del Norte County Department of Health and Human Services (Department) initially provided reunification services to the parents, but the court terminated reunification efforts at the 12-month review hearing. At the initial Welfare and Institutions Code[1] section 366.26 hearing (.26 hearing) to select a permanent plan, the court ordered another planned permanent living arrangement for the minor and adoption for her brother. At that time, the minor had been approved for out-of-county placement and was residing in a group home.

Between 2017 and 2020, the minor struggled with her mental health, which was reported to have impacted her placements, relationships, and school success. She went through a number of placements before being placed in a group home. However the minor continued to struggle, with the group home reporting that the minor was “constantly running away and putting herself in danger,” and her behavior “has gotten increasingly worse.”

The minor appeared to start stabilizing after being terminated from the group home. She was placed with another foster family who had been looking to adopt, and CASA[2] indicated it could evolve into a long-term placement. The minor was reported to be doing well and enjoying her new placement. There were no reports of mental health concerns. Unfortunately, the minor had to be placed in a new home after the father unexpectedly passed away.

The minor was then placed with T.K. and adjusted well to the new foster home. CASA reported its “concerns about [the minor’s] mental health and education have decreased.” CASA noted there had been no mental health concerns at this placement, and “her current [resource family home] is reporting that [the minor’s] mental health is ‘excellent’ and that she has not had any outbursts.” The report further noted the minor was no longer suicidal, “plays and interacts well with the other family members,” and generally reported an improvement in the minor’s mental health. The minor’s progress report from school during this period also noted that her grades had improved and she was “ ‘doing fairly well at our school.’ ” CASA stated it was “pleased that [the minor] is in a home that appears to have insight into why behaviors occur and how to properly respond in a positive and supportive way.”

In May 2020, mother filed a section 388 petition to change the order denying visitation. Mother had taken significant steps to improve herself and maintain sobriety, and the Department supported this request. The court accordingly granted the petition.

Communication between the minor and mother initially appeared to be beneficial. However, issues began to arise, such as mother being inattentive and “manipulative in her questioning of [the minor],” acting as though she did not care about the minor’s wishes, and placing the minor in the middle of disagreements between mother and mother’s boyfriend. The minor began displaying increased mental health issues after these interactions with mother, including having to be hospitalized for making suicidal statements.

Despite these challenges, in a December 2020 postpermanency placement report, CASA stated T.K. was interested in adopting the minor, who was also amenable to that plan. The report noted T.K. “has gained [the minor’s] trust and [established] a very strong relationship” with the minor. The court set the matter for a new .26 hearing to consider a new permanent plan of possibly adoption.

CASA filed a report in advance of the .26 hearing. It noted T.K. “would still like to adopt [the minor].” Both CASA and the Department stated they were in favor of the adoption. The report also noted a family friend and relative, along with one of the minor’s former resource family home placements, expressed interest in adopting the minor. In assessing the current placement, the report explained the minor was doing “fairly well” in the home, highly values the relationship with T.K., and is “very protective” of that relationship. The minor’s care team noted improvements in the minor’s communication skills, mood, and cooperation with services while being placed with T.K. However, the report noted the minor had been posting concerning comments on TikTok, such as her intent to jump off a bridge and claiming to be pregnant. T.K. was surprised when informed of these statements, and explained the minor was never left alone unattended. Overall, CASA stated T.K. “is doing a great job at meeting all [the minor’s] emotional and educational needs.” The report explained how T.K. was able to address and resolve certain educational issues, is in “constant communication with [the minor’s] psychiatrist and her counselor,” and is a strong advocate for the minor.

The Department also filed a report in advance of the .26 hearing, in which it requested the court terminate parental rights and select adoption as the minor’s permanent plan. The report acknowledged the minor’s ongoing struggles with her mental health, including statements regarding suicidal ideations, which often occurred after unsupervised contacts with mother. The report noted T.K. was working with the minor to emphasize the importance of these contacts being supervised. Despite these challenges, the report stated the minor was assessed and determined to be adoptable, with a plan for the minor to be adopted by T.K., her current caregiver. The report further noted the minor had been successful in her current placement, developed “an incredibly strong bond” with T.K., and had consistently stated she wished to be adopted by T.K. Likewise, the caregiver informed the Department she was willing to take any necessary steps to address the minor’s mental health needs and provide a permanent home for the minor.

The adoption assessment also noted the minor wished to be adopted by T.K. In that assessment, T.K. described the minor as “ ‘funny, caring, and sensitive,’ ” and commented she had adjusted “ ‘very well’ ” in the home. The assessment stated T.K. “appears to be a competent parent who is able to meet the child’s mental health and medical needs, and provide a loving, nurturing environment for [the minor],” and the minor was thriving and functioning better in the care of her current placement than in any of her prior placements. The assessment also noted there were two family members and a former resource home placement (who had adopted the minor’s brother) who expressed interest as possible placement options for the minor. The assessment recommended the court terminate parental rights and order a permanent plan of adoption for the minor.

The court subsequently found by clear and convincing evidence that the minor would likely be adopted, and it terminated parental rights. Mother timely appealed from this order.

During a subsequent family trip out of state, the minor experienced a psychiatric emergency and was hospitalized. T.K. reported the minor attempted to run away, asked to be removed from T.K.’s care, and made suicidal statements after T.K. refused to drive the minor to meet an online boyfriend, did not let her get her belly button pierced, and found evidence the minor sent nude photographs of herself to strangers. After returning to California, the minor was removed from T.K.’s home and placed in another resource family home. The minor was upset with this move, stated she had resolved the issues with T.K., and wished to “ ‘go home’ ” and be adopted by T.K. The minor’s counsel noted T.K. remained willing and committed to providing the minor with a stable environment.

The Department filed an interim review report following these developments. It recounted the recent events involving suicidal threats, sending nude photographs to older men, and making plans to run away. It also noted that while the minor was hospitalized out of state she became physically aggressive, and the staff expressed concern that the relationship between T.K. and the minor was unstable. T.K. expressed concern she could no longer keep the minor safe, but later clarified she wanted the minor to receive any necessary mental health support—even if it meant having the minor temporarily removed from her home—but to proceed with the adoption if that was what the minor wanted. The Department noted it believed relocating the minor was necessary for her safety, and placed her in the resource family home that had adopted her brother.

II.

DISCUSSION

Mother argues that the record does not contain substantial evidence establishing the minor was likely to be adopted. More specifically, she asserts the evidence was insufficient to show the minor was either generally or specifically adoptable. The argument lacks merit.

A. Relevant Law

If the juvenile court finds clear and convincing evidence that it is likely a dependent child will be adopted, the court shall terminate parental rights and order the child placed for adoption unless an exception applies. (§ 366.26, subd. (c)(1).) The clear and convincing evidence standard “requires a finding of high probability.” (In re Angelia P. (1981) 28 Cal.3d 908, 919.) “A child’s young age, good physical and emotional health, intellectual growth and ability to develop interpersonal relationships are all attributes indicating adoptability.” (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1562.) It is not necessary that the child already be in a preadoptive home or with a foster parent who is prepared to adopt. (§ 366.26, subd. (c)(1); In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) Nevertheless, the foster parent’s “willingness to adopt generally indicates the [child] is likely to be adopted within a reasonable time either by the [foster] parent or by some other family.” (In re Sarah M., at p. 1650.)

Some courts have distinguished between generally and specifically adoptable children. General adoptability refers to cases in which the child’s personal characteristics are sufficiently appealing that it is likely the child will be adopted within a reasonable time. (In re R.C. (2008) 169 Cal.App.4th 486, 492–493.) Specific adoptability refers to “unusual cases where a child, due to severe physical or mental needs, may be deemed adoptable based solely on the fact that a particular family wants to adopt the child.” (In re Mary C. (2020) 48 Cal.App.5th 793, 802 & fn. 5.)

A juvenile court is not required to find a child “ ‘generally’ or ‘specifically’ adoptable.” (In re Mary C., supra, 48 Cal.App.5th at p. 802.) Section 366.26 does not reference general or specific adoptability. Nor does the law require the Department’s assessment to include evidence of general or specific adoptability—the Department must merely analyze “the likelihood that the child will be adopted.” (§§ 366.21, subd. (i)(1)(G), 366.22, subd. (c)(1)(F).) Moreover, “[a]lthough 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.” (In re K.B. (2009) 173 Cal.App.4th 1275, 1292.)

Appellate review must incorporate the heightened standard of proof applied by the juvenile court. Specifically, we must determine “whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable” that the children were likely to be adopted. (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011.) But we do not reweigh the evidence. (Id. at p. 1008.) We “view the record in the light most favorable to the prevailing party below and give appropriate deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence.” (Id. at pp. 1011–1012; accord, In re R.C., supra, 169 Cal.App.4th at p. 491 [“We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or weigh the evidence.”].)

B. Analysis

Mother argues the minor was not specifically adoptable because her “significant behavioral and emotional conditions were an obstacle to adoption.”

“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 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. (2007) 150 Cal.App.4th 71, 80.) Here, mother does not identify any legal impediment to T.K.’s adoption of the minor. Nor does the record indicate T.K. was no longer willing to adopt the minor. Despite the serious mental health emergency during an out-of-state trip and the minor’s subsequent removal from T.K.’s home, both the minor and T.K. were still committed to adoption. The minor requested to be returned to T.K.’s home, and she reiterated her desire to be adopted by T.K. Similarly, the record indicates T.K. was seeking temporary support from the Department in stabilizing the minor’s mental health, rather than a termination of the placement. T.K. had been caring for the minor for approximately a year and a half, during which the current events were the only major event of concern. Otherwise, throughout the placement the minor’s behavior and mental health had improved, and she and T.K. had formed a strong, loving bond.

Moreover, even if T.K. were no longer willing to adopt the minor, the record demonstrates the minor is still adoptable.

No case requires a minor to be “problem-free” to be found generally adoptable. (See, e.g., In re Gabriel G. (2005) 134 Cal.App.4th 1428, 1431, 1438 [probability of adoption finding affirmed for minors, including three year old whose “ ‘violent and aggressive’ ” behavior resulted in his foster parent and two daycare facilities requesting his removal, where there was also evidence he was “healthy, developmentally on target in most areas, and . . . physically appealing”].) In In re A.A. (2008) 167 Cal.App.4th 1292, 1312, for example, the children had delayed language skills, were diagnosed with attachment disorder, and displayed aggressive behavior toward each other. The court found the children were likely to be adopted “[g]iven the children’s positive attributes, the progress they were making in overcoming their behavioral and emotional problems, as well as the current and former caregivers’ willingness to adopt them.” (Ibid.)

Mother contends the minor is not generally adoptable due to her significant and ongoing mental health issues. We disagree. Here, the record provided substantial evidence from which a reasonable fact finder could conclude that it was highly probable the minor was likely to be adopted. As in In re A.A., the minor has positive attributes and was generally making progress with her mental health issues. T.K. described the minor as “ ‘funny, caring, and sensitive.’ ” The minor is physically healthy and able to forge interpersonal relationships, as evidenced by her strong bond with T.K. Likewise, a former foster parent continued to have contact and visit the minor even after she had been removed from the resource family home due to challenging behavior. Undoubtedly, the minor suffers from substantial mental health issues. However, the record indicates at the time of the .26 hearing the frequency of the minor’s negative behaviors had substantially decreased. The adoption specialist noted the minor “is progressing towards being stable and has taken significant steps towards improving her choices and behaviors.” The Department noted T.K. was committed to supporting the minor with her mental health struggles.

While mother asserts the record indicates the minor’s patterns of behavior were “shown to have not been resolved,” eliminating all negative behavior is not required for a finding of adoptability. (See, e.g., In re Gabriel G., supra, 134 Cal.App.4th at pp. 1431, 1438; In re A.A., supra, 167 Cal.App.4th at p. 1312.) Positive attributes and the presence of a foster parent committed to adoption may constitute substantial evidence of the likelihood of adoption. (See In re Mary C., supra, 48 Cal.App.5th at pp. 802–805.) Those factors are present here. Accordingly, the court did not err in finding the minor adoptable.

III.

DISPOSITION

The juvenile court’s order terminating parental rights is affirmed.

Margulies, Acting P. J.

WE CONCUR:

Banke, J.

East, J.*

A162414

In re J.M.

[1] All statutory references are to the Welfare and Institutions Code.

[2] Court Appointed Special Advocates for Children, Del Norte County (CASA).

* Judge of the San Francisco Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.