In re Marissa S.

Filed 5/10/07 In re Marissa S. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Jamileh Schwartzbart, Temporary Judge. (Pursuant to Cal. Const., art. VI,  21.)

Jesse F. Rodriguez, under appointment by the Court of Appeal, for Defendant and Appellant.

Dennis A. Marshall, County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

Ignacio R. appeals from an order terminating his parental rights (Welf. & Inst. Code,  366.26) to his young daughter and son.^[1] He challenges the superior courts finding that it was likely the children would be adopted. On review, we will affirm.

PROCEDURAL AND FACTUAL HISTORY

In June 2004, the Fresno County Superior Court adjudged appellants two-year-old daughter and infant son dependent children and removed them from parental custody. The court previously determined the children came within its jurisdiction under section 300, subdivision (b) based on the profound neglect they suffered as a result of their parents alcohol abuse.

The court denied appellant reunification services based on a violent felony conviction he had ( 361.5, subd. (b)(12)) and his extensive, abusive and chronic history of alcoholism coupled with his resistance to treatment. Although the mother received lengthy services, she was unable to make any progress. The court consequently terminated reunification efforts in December 2005 and set a section 366.26 hearing to select and implement a permanent plan for the children.

In the interim, respondent Fresno County Department of Children and Family Services (the department) prepared a 366.26 WIC Report in which it recommended the court select adoption as the permanent plan for the children, find them likely to be adopted and order parental rights terminated. According to the report, appellants daughter and son were not generally adoptable because they comprised a sibling group as well as the fact the boy was developmentally delayed and, based on genetic testing, had Fragile X Syndrome.^[2] The daughter had previously received early intervention services but was developmentally and emotionally on target. At most, her speech development was behind that of other children her age. Nonetheless, the children were considered adoptable. The children appeared comfortable, happy and healthy in their foster care placement. The department considered the foster parents to be their prospective adoptive parents. The couple had cared for the children since their detention in January 2004 and were very willing and able to provide a stable and loving home for the children through adoption. The preliminary assessment ( 366.22, subd. (b)) of the prospective adoptive parents eligibility and commitment to adopt was favorable as well. The departments report also noted that despite regular visitation, there was no parent/child relationship between the children and their parents.

The court ultimately conducted its section 366.26 hearing in September 2006. At the hearing, appellant testified to his belief that termination would be detrimental to the children. He claimed he shared a parent/child bond with his children. Appellants trial counsel pursued this issue in her closing argument. She also remarked Yes, it is true that theyll likely be adopted. She then speculated that in a few years, the adoptive parents might decide that the boy was too much to handle.

Following argument, the court found the children were likely to be adopted and terminated parental rights. It also rejected appellants argument that termination would be detrimental.

DISCUSSION

As previously mentioned, appellant challenges the courts adoptability finding as based on insufficient evidence. Focusing on the evidence of his sons developmental delays, appellant argues the department failed to establish: (1) the foster parents had the financial wherewithal to provide for his needs in the future; and (2) there were other qualified families interested in adopting children, such as appellants.

The issue of adoptability posed in a section 366.26 hearing focuses on the dependent child, e.g., whether his or her age, physical condition, and emotional state make it difficult to find a person willing to adopt. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) Usually, the fact that a prospective adoptive parent has expressed an interest in adopting the minor is evidence that the minors 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 parents 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 Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.)

Appellant acknowledges the foregoing. Nonetheless, he claims that in the case of children, such as his, who are not generally adoptable, the law requires a greater showing. Simply put, the law does not.

Once the superior court ordered a section 366.26 hearing in this case, it was the departments responsibility to prepare an adoption assessment. ( 366.22, subd. (b); see also  361.5, subd. (g) &  366.21, subd. (i).) The adoption assessment report provides the information necessary for the juvenile court to determine the likelihood of the dependent childs adoptability ( 366.26, subd. (c)(1)) and relevant to this appeal, must include:

A preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent or guardian, particularly the caretaker, to include a social history including screening for criminal records and prior referrals for child abuse or neglect, the capability to meet the minors needs, and the understanding of the legal and financial rights and responsibilities of adoption and guardianship [and]

The relationship of the minor to any identified prospective adoptive parent or guardian, the duration and character of the relationship, the motivation for seeking adoption or guardianship . . . ( 366.22, subd. (b)(4) & (5); see also  361.5, subd. (g) &  366.21, subd. (i).)

As a preliminary matter, if appellant believed the departments adoption assessment was inadequate, the time to complain was then in the superior court, not now on appeal. We note appellant raised neither of his concerns in the trial court where his points and their legal significance, if any, could have been litigated. By arguing them now, appellant essentially asks this court to reweigh the evidence by speculating on a silent record regarding financial means and the availability of other possible adoptive parents. This, however, is not within our appellate purview in assessing the sufficiency of the evidence. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379.) Having failed to object in the juvenile court to the adequacy of the adoption assessments, appellant has waived the right to so complain on appeal. (In re Crystal J. (1993) 12 Cal.App.4th 407, 411-412.)

Notably, the statutory scheme merely requires a preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent. ( 366.22, subd. (b)(4).) It does not require the kind of in-depth analysis appellant urges nor does it distinguish between children who are generally adoptable and those who are not. Further, there are no additional statutory requirements for assessing a child who is adoptable, in whole or large part, because he or she has prospective adoptive parents who are committed and motivated to adopt the child.

As one court has explained:

If inquiry into the suitability of prospective adoptive parents were permitted in section 366.26 hearings, we envision that many hearings would degenerate into subjective attacks on all prospective adoptive families in efforts to avoid termination of parental rights. Such a result is not envisioned by the statutory scheme. (In re Scott M. (1993) 13 Cal.App.4th 839, 844.)

While appellant denies challenging the prospective adoptive parents suitability, it appears his arguments on appeal are nothing more than that.

Not only do appellants arguments find no support in the statutory scheme, they find none in the case law as well. When a childs likelihood of adoption is based solely on a prospective adoptive parents willingness to adopt, an inquiry may be made at the section 366.26 hearing, within the ambit of eligibility to adopt ( 361.5, subd. (g)(4), 366.21, subd. (i)(4), & 366.22, subd. (b)(4)), into whether the prospective adoptive parents suffer any legal impediment to adopt. (In re Sarah M., supra, 22 Cal.App.4th at p. 1650.)^[3] Here, appellant does not claim there was any legal impediment to adoption by the childrens prospective adoptive parents.

In support of his argument for proof of a prospective adoptive parents financial ability, appellant cites In re Carl R. (2005) 128 Cal.App.4th 1051 (Carl R.). As discussed below, however, Carl R. does not obligate the department to show or the trial court to inquire into a prospective adoptive parents capacity, financial or otherwise, to meet a childs needs. At most, Carl R. states that the assessment of the adoptability of a total needs child must necessarily include some consideration of whether the prospective adoptive parents can meet that childs needs. (Id. at p. 1062.)

By way of background, the dependent child in Carl R. suffered severe disabilities such that he would always require total care for the rest of his life. Carl R. had lived for most of his life in a San Diego convalescent hospital and, although close to eight years old, had the emotional maturity of an eight-month-old child. (In re Carl R., supra, 22 Cal.App.4th at p. 1058.) The agency involved had located a prospective adoptive family who lived in Northern California and had cared for and home-schooled profoundly disabled children for many years. In the meantime, however, a local family, whose own disabled son attended the same school as Carl R., expressed an interest in adopting the child.

Carl R. sought to introduce evidence showing the education he would receive in San Diego furthered his best interests to a greater extent than being home schooled by the prospective adoptive family would. The trial court prohibited the introduction of such evidence and, having found Carl R. adoptable, terminated parental rights. At issue on appeal was whether the trial court should have considered whether the prospective adoptive family would meet Carls specific educational needs. In rejecting the contention, the Carl R. court reasoned that because the agencys statutory obligation is to provide only preliminary information the courts inquiry should also be preliminary, and need not include an in-depth assessment of specific educational plans. (In re Carl R., supra, 128 Cal.App.4th at p. 1063.) It further determined that an inquiry into the prospective adoptive parents specific educational plan was inappropriate. (Id. at pp. 1063-1068.) Thus, we fail to see how Carl R. supports appellants position in this case.

In support of his claim that there must be evidence of other qualified families willing and able to adopt his children, appellant cites In re Asia L. (2003) 107 Cal.App.4th 498 and In re Jerome D. (2000) 84 Cal.App.4th 1200; In re Jennilee T. (1992) 3 Cal.App.4th 212. Neither of these decisions, however, stands for such a position or involves a fact pattern similar to the present case.

At most, in In re Asia L., supra, 107 Cal.App.4th at page 512 and In re Jerome D., supra, 84 Cal.App.4th at page 1205, the appellate courts noted there was no evidence of any approved families willing to adopt children, such as those in each case. However, appellant ignores the lack of any holding in either opinion to require such proof as well as the underlying circumstances in each of those cases and their dissimilarity to the present case.

In In re Asia L., supra, 107 Cal.App.4th 498, the dependent children had emotional and behavioral problems serious enough to make them difficult to place for adoption ( 366.26, subd. (c)(3)). Notably, they were not in an adoptive placement. At best, their foster parents were willing to explore the option of adoption. (In re Asia L., supra, 107 Cal.App.4th at p. 512.) The Asia L. court considered such evidence too vague to support an adoptability finding. (Ibid.)

In In re Jerome D., supra, 84 Cal.App.4th at page 1205, the appellate court reversed an adoptability finding that it determined was based on the willingness of a childs stepfather to adopt him. The Jerome D. court held such evidence would not suffice because the adoption assessment failed to address the stepfathers criminal and Child Protective Services history, which was not insubstantial, as required by section 366.22, subdivision (b)(4).

Were we to extrapolate a rule from the Asia L., supra, and Jerome D., supra, opinions, it might be that when there is no evidence that a child is generally adoptable and the child is not in an adoptive placement or there is no favorable preliminary assessment of a prospective adoptive parent, then the correctness of an adoptability finding may depend on evidence of approved families willing to adopt such a child. However, we fail to see that these decisions stand for the proposition appellant endorses. More importantly, the types of situations posed in Asia L., supra, and Jerome D., supra, bear no resemblance to this case.

Here, appellants children were in an adoptive placement. They had lived in the same home for more than two-and-a-half years. Their prospective adoptive parents were well aware of the challenges posed by the boys developmental delays and yet they were strongly committed to adopting both children. Moreover, as previously noted, the departments preliminary assessment of the prospective adoptive parents addressed each of the statutory factors relating to their eligibility and commitment to adoption in a favorable manner.

Finally, we note:

it is only common sense 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.)

For all the reasons stated above, we conclude that the juvenile court did not err in finding it likely the children would be adopted.

DISPOSITION

The order terminating parental rights is affirmed.

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^*Before Harris, Acting P.J., Levy, J., and Kane, J.

^[1] All statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] The department did not define Fragile X Syndrome in this or prior reports. It is apparently the most common cause of inherited mental impairment, ranging from learning disabilities to more severe cognitive or intellectual disabilities. It is also apparently the most common known cause of autism or autistic-like behaviors. Symptoms can include characteristic physical and behavioral features and delays in speech and language development. (What is Fragile X? www.fragilex.org 4/30/07.) It is unclear from the record what Fragile X Syndrome symptoms appellants son has. According to other portions of the record, appellants daughter is a carrier for the Fragile X Syndrome.

^[3] The legal, i.e., statutory, impediments to adoption are contained in Family Code, section 8601 et seq. (Fam. Code, 8601 [a prospective adoptive parent must be at least 10 years older than the child, unless the adoption is by a stepparent, sister, brother, aunt, uncle, or first cousin and the court is satisfied that adoption by the parent and, if married, by the parents spouse is in the best interests of the parties and is in the public interest regardless of the ages of the child and the prospective adoptive parent], 8602 [consent of a child over the age of 12 is necessary to the childs adoption], & 8603 [a married person, not lawfully separated, may not adopt a child without the consent of the spouse, provided the spouse is capable of giving consent].)