Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County No. 510306E-F, Eric G. Helgesen, Judge. (Retired Judge of the Tulare Mun. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
BENKE, Acting P. J.
Shelly B. appeals a judgment terminating her parental rights to her minor children, Aaliyah J. and Destiny R. (the minors), under Welfare and Institutions Code section 366.26. Shelly challenges the sufficiency of the evidence to support the court's findings that the minors were adoptable. We affirm the judgment.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Destiny and Aaliyah were born in June 2005 and July 2003, respectively. In December 2005 the San Diego County Health and Human Services Agency (Agency) filed a petition on behalf of Destiny alleging she had been exposed to domestic violence in the home. Destiny's father physically abused and threatened to kill Shelly in Destiny's presence. Shelly admitted to having a long history of domestic violence with Destiny's father. She also had an extensive history with child protective services and had failed to reunify with five of her other children. The Agency reported Shelly did not comply with her case plan in these prior dependencies and had a tendency to associate with violent people. The court held a detention hearing and detained Destiny in out-of-home care.
In June 2006 the Agency filed a petition on behalf of Aaliyah. The petition alleged Aaliyah had witnessed violence between her stepfather and Shelly. The court detained Aaliyah in out-of-home care. After several continuances, the court held a jurisdiction and disposition hearing. Shelly submitted to the allegations of the petition and the court declared Aaliyah a dependent of the court and ordered reunification services for Shelly.
During the next six months, Shelly participated in her case plan and regularly visited the minors. The court found Shelly had made substantive progress with her case plan and granted an additional six months of services.
Shelly requested unsupervised visits with the minors after completing parenting and domestic violence classes. She had secured full-time employment, participated in individual therapy sessions and did not have any positive drug tests during the last reporting period. The social worker recommended unsupervised visits with the minors and the court granted Shelly's request.
During the next six months, the social worker reported the minors were in good health and did not have any significant medical concerns. They appeared to be developmentally on target and reported no problems with their behavior. The social worker described both minors as "beautiful" and "cute." Shelly continued to do well with her case plan, had obtained housing and consistently visited the minors. The court granted Shelly a 60-day trial visit based on her substantive progress with her case plan.
In July 2007 the Agency filed a section 387 petition on behalf of the minors seeking to remove them from Shelly's care. The petition alleged Shelly was unable to provide the minors with adequate care because she had been arrested for physically and verbally abusing Aaliyah. Aaliyah suffered purple bruises on her chest as a result of the physical abuse inflicted upon her. The court ordered Shelly not to have any contact with Aaliyah but allowed Shelly to continue her supervised visits with Destiny. The court held a hearing on the section 387 petition and ordered the minors removed from Shelly's care and placed them in foster care. The court scheduled a section 366.26 selection and implementation hearing.
In the Agency's section 366.26 report, the social worker indicated adoption as the permanent plan. The minors remained in overall good physical health with no serious health concerns. Aaliyah did exhibit some mild developmental speech delays, and her articulation skills appeared to be below her age level. Destiny had similar developmental delays. Both girls sometimes showed signs of aggression toward each other and threw temper tantrums. The minors' caregiver reported that aside from these delays, the minors enjoyed playing with age appropriate toys and reading books. Both minors participated in the Head Start program, and Aaliyah appeared to be doing well in school. They did not live in a prospective adoptive home at the time the social worker submitted the report. However, the social worker identified four families in San Diego and 25 families outside of San Diego interested in a sibling set like Aaliyah and Destiny. Further, numerous other families were interested in adopting the girls individually should they be separated.
In an addendum report, the social worker noted the minors had been placed in a prospective adoptive home and the Agency had initiated a home study. The minors transitioned well into their new placement, and the social worker observed significant improvement with the minors' speech and behaviors.
The court held a section 366.26 hearing and, after hearing arguments and considering the evidence, the court found by clear and convincing evidence that the minors were adoptable and none of the exceptions to adoption in section 366.26, subdivision (c)(1) applied to preclude terminating parental rights. The court terminated Shelly's parental rights and referred the minors for adoptive placement. Shelly timely filed a notice of appeal.
DISCUSSION
Shelly challenges the sufficiency of the evidence to support the court's finding that the minors were adoptable. Specifically, Shelly asserts the minors suffered from developmental delays and behavioral problems that render them unadoptable, and there is no evidence suggesting they would be adopted within a reasonable time.
A
The Agency asserts that to the extent Shelly is challenging the sufficiency of the section 366.26 report to qualify as an adoption assessment report, she has forfeited the issue by not raising it in the trial court. (In re Crystal J. (1993) 12 Cal.App.4th 407, 411; In re Aaron B. (1996) 46 Cal.App.4th 843, 846; In re Urayna L. (1999) 75 Cal.App.4th 883, 886.) The agency filed its section 366.26 report in December 2007 in anticipation of the section 366.26 hearing. The report included a permanency planning assessment and an analysis of the likelihood of adoption. Thus, Shelly was aware the Agency was recommending terminating her parental rights based on its assessment of the minors' adoptability and best interests. At the section 366.26 hearing, Shelly's counsel did not object to the submission of the Agency's report, did not cross-examine the social worker concerning adoptability and gave no indication that Shelly considered the report to be deficient in any way. Shelly has forfeited this argument on appeal. (See In re Crystal J., supra, 12 Cal.App.4th at p. 411.)
Even had Shelly not forfeited this issue, an assessment report need only substantially comply with the statutory requirements. (In re John F. (1994) 27 Cal.App.4th 1365, 1378; In re Diana G. (1992) 10 Cal.App.4th 1468, 1481.) Section 366.21, subdivision (i) requires the Agency to prepare an adoption assessment report that includes an evaluation of the minor's medical, developmental and emotional status. (§§ 366.21, subd. (i)(C), 366.22, subd. (b)(1)(C).) The purpose of the assessment report is to provide the juvenile court with information necessary to determine whether adoption is in a child's best interests. (See In re Dakota S. (2000) 85 Cal.App.4th 494, 496.) Where an assessment is challenged as incomplete, the reviewing court looks at the totality of the evidence before it; deficiencies go to the weight of the evidence and may prove insignificant. (In re John F., at p. 1378; In re Crystal J., supra, 12 Cal.App.4th at p. 413.)
Here, the Agency's section 366.26 report substantially complied with statutory requirements and sufficiently addressed the minors' adoptability. In the report, the social worker opined the minors were adoptable because they did not have serious health concerns. The minors did have some developmental delays relating to speech and articulation but overall, the social worker reported that the minors were bright girls. The social worker indicated there were families interested in adopting the girls both as a sibling set and individually. In spite of any deficiencies, the section 366.26 report contained substantial evidence of the minors' adoptability, including the minors' general characteristics and the interest of several prospective adoptive families. The totality of the circumstances shows the court had sufficient information to determine there were no impediments to the minors being adopted. Adoption was the appropriate permanent plan for the minors.
B
To the extent Shelly challenges the sufficiency of the evidence to support the court's finding the minors were adoptable, her argument has no merit. When reviewing a court's finding that a minor is adoptable, we apply the substantial evidence test. (In re Josue G. (2003) 106 Cal.App.4th 725, 732; In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings. We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) Rather, we "accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact." (Id. at p. 53.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 947; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
The court can terminate parental rights only if it determines by clear and convincing evidence the minor is likely to be adopted within a reasonable time. (§ 366.26, subd. (c)(1); In re Amelia S. (1991) 229 Cal.App.3d 1060, 1065.) In determining adoptability, the focus is on whether a child's age, physical condition and emotional state will create difficulty in locating a family willing to adopt. (§ 366.22, subd. (b)(1)(C); In re David H. (1995) 33 Cal.App.4th 368, 379.) "Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor's age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor." (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650.)
The social worker reported the minors were adoptable because of their age and good physical health. The minors lack significant health concerns and although they exhibit some developmental speech delays, these problems do not render them unadoptable. Both girls are living with a caregiver that is interested in adopting them. The social worker reported the minors have shown improvement with their speech development and behavior after being placed with their current caregiver. There is no indication the caregiver has any concerns about the developmental delays. In addition, although the social worker acknowledged an adoptive home study had not yet been completed, there is no indication in the record that the caregiver has a criminal or Child Protective Services history. In the event the caregiver is unable to adopt, there are four families in San Diego interested in the siblings and 25 families out of the county. Further, there are numerous other adoptive families willing to adopt the girls separately. Where, as here, "evidence of a minor's adoptability is not based solely on the existence of a prospective adoptive parent who is willing to adopt the child, the potential adoptive parent's suitability to adopt is irrelevant to the issue of whether the minor is likely to be adopted." (In re Sarah M., supra, 22 Cal.App.4th at p. 1651.) Substantial evidence supports the court's finding of adoptability.
DISPOSITION
The judgment is affirmed.
WE CONCUR: NARES, J. McDONALD, J.