Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. J201070, Kyle S. Brodie, Judge.
Diana W. Prince, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruth E. Stringer, County Counsel, and Dawn Stafford, Deputy County Counsel, for Plaintiff and Respondent.
Sharon S. Rollo, under appointment by the Court of Appeal, for Minor.
OPINION
McKinster, J.
Adrian R., presumed father (Father), appeals from the court’s order terminating his parental rights to his child, Andy. (Welf. & Inst. Code, § 366.26, subd. (c).) Father contends there is insufficient evidence to support the court’s finding that Andy is adoptable. We affirm the judgment.
FACTS
Andy and his siblings lived in Fontana with their mother (Mother) and Father. Andy was three years old in April 2005 when he was detained with his two siblings. Andy suffers from cystic fibrosis. Andy’s disease affects his digestive system more than his respiratory system. In February 2005, a public health nurse contacted the child abuse hotline regarding Andy. The primary concern was that Andy had not gained weight since December 2004. The Department of Children Services (the Department) explained to Father and Mother the importance of giving Andy his medication and urged Father and Mother to take Andy to the Loma Linda University Medical Center.
At the medical center, Andy was found to have been neglected and was diagnosed with failure to thrive. The doctor at the medical center stated that “all of this could’ve been prevented if the child’s parents had followed through with the recommended care.” The doctor also found that “this is the worse [sic] that the child has ever been medically.” A public health nurse informed the Department that Andy had missed almost a year of medical appointments, despite attempts to provide Father and Mother with transportation and assistance. The nurse also expressed concern that Andy was not receiving his medications. Andy requires medicines such as enzymes to help him digest food and breathing treatments from a nebulizer machine. Without his enzyme medications, Andy is at risk for bowel blockages.
The court ordered Andy and his siblings removed from Father’s and Mother’s custody. Upon release from the medical center, Andy was placed in a foster home for medically fragile children, in the High Desert. Andy’s foster mother was a registered nurse. Andy’s siblings were placed with their paternal aunt and uncle, but later returned to Mother and Father.
In May 2005, Father informed the court that he and Mother had moved to San Bernardino, closer to the Loma Linda Hospital, so they would be able to provide adequate medical care for Andy. The court ordered that Andy stay at the foster home, but granted supervised visitation with Andy’s parents and siblings.
From July 2005 through October 2005, Andy was hospitalized numerous times for issues related to his digestive system. Andy is primarily fed via gastric tube and intravenous tube. When Andy eats food or a special formula he has difficulty controlling his bowels. Typically, when Andy wakes up in the morning, he vomits and has multiple episodes of diarrhea. While at his foster home, Andy took a variety of medications and was cared for by a pediatrician, a pulmonologist, a gastrointestinal doctor, the Cystic Fibrosis Clinic, and the Inland Regional Center. When Andy feels well, he is a happy and social child. Andy is delayed linguistically, developmentally, and physically.
In November 2005, the court found that Mother and Father had not complied with the initial services ordered at the detention hearing, and had not made progress with the underlying causes for Andy’s removal. As a result, the court ordered that Andy continue to be placed at the foster home. In April 2006, it was noted that Father visited Andy only four times during the preceding six-month period. At one point during that six months, Andy was hospitalized for six weeks, 10 miles from Father’s home, but Father visited Andy in the hospital only once. During that hospitalization, Andy underwent three surgeries and suffered two infections. Father had been offered bus passes and gas vouchers to visit Andy. Also during that six-month period, Father did not complete his court-ordered parenting classes.
Andy’s foster mother attempted to facilitate visits between Andy and Mother and Father at a local McDonald’s. Father came to the McDonald’s once, but only to drop off Mother. Father did not stay to visit with Andy. Additionally, Father attended Andy’s birthday party, but only greeted Andy, did not interact with him, and left halfway through the party. When Father spoke about Andy’s needs, he “appear[ed] to put everything on mom’s shoulders.”
In May 2006, the court ordered Father and Mother to participate in the ordered family maintenance plan. Approximately one month later, the Department sent a letter to Mother and Father stating that neither parent had visited Andy in the past month or attended his medical appointments. The letter informed the parents that Andy had been looking forward to seeing them at a clinic appointment, saying, “See mommy, see mommy,” and was disappointed when neither parent was present. In September 2006, Mother gave birth to a baby. Both Mother and baby tested positive for methamphetamines.
At the 18-month review hearing, in October 2006, the court found Father and Mother had failed to complete the court-ordered maintenance plan. Father informed the Department that he declined to attend parenting classes because “he does not fit in with the type of clients in the classroom.” The court ordered all reunification services be terminated, because “the maximum time to receive services ha[d] expired.” Mother and Father objected to the termination of services. The court concluded terminating parental rights at that time would be detrimental because Andy would be difficult to place for adoption due to his medical problems. The court ordered that visitation be continued.
Andy’s foster parents stated that they were willing to care for Andy until he reached adulthood; however, they were unwilling to commit to adoption or legal guardianship, and they requested that Andy be listed on adoption websites, in order to “give him a ‘chance’ at younger parents.” In January 2007, the court ordered that Andy be listed on two separate adoption websites. In February 2007, it was noted by the Department that Andy’s physical health had greatly improved while in foster care. In March 2007, Mother again tested positive for amphetamines.
In April 2007, the court found that it would be in Andy’s best interests to consider terminating Mother’s and Father’s parental rights. In July 2007, the Department recommended that Mother’s and Father’s parental rights be terminated and the court order a permanent plan of adoption be implemented. In July 2007, the Department noted that Mother was pregnant.
In October 2007, the Department found that Andy was an appropriate child for adoption. The Department based this finding on the desire of Mr. and Mrs. O. (the O. family), who live in Georgia, to adopt Andy. The O. family consists of Mr. and Mrs. O., four biological children, and two adopted children. The children range in age from 11 years to 11 months. The O. family spoke to Andy daily, via telephone, and came to California, at their own expense, “for a couple of days” to visit Andy and attend a medical appointment with him. While the O. family was in California, Andy, his foster mother, and the O. family went to McDonald’s together. While at McDonald’s, Andy was unable to control his bowels. Mrs. O. and Andy’s foster mother worked together to clean Andy and change his clothes.
When the Department asked the O. family why they wanted to adopt Andy, they provided a letter stating that they had previously adopted another special needs child and “are not afraid to love a child that others might shy away from.” The O. family researched cystic fibrosis and located a “wonderful renowned [h]ospital that specializes in Cystic Fibrosis” in their area. Additionally, Mrs. O. is a registered nurse, and her sister is a pediatrician. The O. family has “never waivered in expressing their interest in adopting Andy.” Andy refers to the O. family as “new mommy and new daddy.”
In November 2007, the Department asked the court for the authority to place Andy out of state. Mother and Father contested the matter. The court ordered the parties to return for a contested hearing.
In December 2007, the court held a contested hearing concerning Andy. Father testified that he had not seen Andy since June 2007 and not called him since “around September.” Father explained that he did not visit Andy because “it was just emotionally difficult to sit there and see him and see him leave again.” Father explained that he did not call Andy because he did not have the capability to call long distance. Father testified that over the past few months, his finances had improved, and if given a chance he would visit Andy more often. When Father was asked whether or not he had tried to contact Andy over the past few months, when his finances began to improve, Father responded that he had not tried to contact Andy.
The court found that Andy “deserves permanence at this point.” The court noted that Andy’s medical condition “may be cause for concern; however, in the circumstances of this case, it’s quite clear that Andy is adoptable.” The court concluded that “[t]here is clear and convincing evidence that Andy is likely to be adopted.” The court ordered that Father’s, Mother’s, and all unknown Fathers’ parental rights be terminated. The court ordered that adoption would be Andy’s permanent plan, and granted the Department the authority to place Andy out of state.
DISCUSSION
Father contends there is insufficient evidence to support the juvenile court’s finding that Andy is adoptable. We disagree.
We note that Andy’s counsel filed a letter brief in this matter in support of the Department’s argument.
“The juvenile court may terminate parental rights only if it determines by clear and convincing evidence that it is likely the child will be adopted within a reasonable time. [Citations.] ‘“‘“Clear and convincing evidence” requires a finding of high probability. The evidence must be so clear as to leave no substantial doubt. It must be sufficiently strong to command the unhesitating assent of every reasonable mind. [Citations]’” [Citations.]’ [Citation.] Review of a determination of adoptability is limited to whether those findings are supported by substantial evidence. [Citation.]” (In re Carl R. (2005) 128 Cal.App.4th 1051, 1060-1061.)
“The question of adoptability posed at a section 366.26 hearing usually focuses on whether the child’s age, physical condition, and emotional state make it difficult to find a person willing to adopt that child. [Citation.] If the child is considered generally adoptable, we do not examine the suitability of the prospective adoptive home. [Citation.]” (In re Carl R., supra, 128 Cal.App.4th at p. 1061.) However, where the child is deemed adoptable based solely on the fact that a particular family is willing to adopt him or her, “the analysis shifts from evaluating the characteristics of the child to whether there is any legal impediment to the prospective adoptive parent[s’] adoptions and whether [they are] able to meet the needs of the child.” (In re Helen W. (2007) 150 Cal.App.4th 71, 80.)
Because Andy was deemed adoptable primarily due to the O. family’s desire to adopt him, we begin by examining whether there is clear and convincing evidence supporting the trial court’s implied findings that there is no legal impediment to the O. family adopting Andy and that they will be able to meet Andy’s needs. A home study of the O. family found that they live in a four bedroom, three bathroom house, which “is maintained to ensure the health and safety of its residents.” The O. family has previously adopted another special needs child, from India. The O. family has researched Andy’s disease, and located nearby medical services for Andy. Mrs. O. is a registered nurse, her sister is a pediatrician, and her mother is an emergency room physician. The O. family indicates that Mrs. O.’s sister and mother will care for Andy in the event they are unable to care for him. The O. family is “well able to manage their finances.” Most importantly, the O. family has “never waivered in expressing their interest in adopting Andy.” The foregoing evidence supports a finding that there will not be a legal impediment to the O. family adopting Andy, especially in light of their previous adoption of a special needs child. Additionally, the foregoing evidence amply supports a finding that the O. family will be able to provide for Andy’s needs. Accordingly, we conclude that clear and convincing evidence supports the trial court’s finding that Andy is adoptable.
We now address Father’s four arguments. First, Father argues that the record does not support the trial court’s finding that Andy is adoptable because there is “insufficient evidence as to the specifics of Andy’s cystic fibrosis and the status of his disease, or Andy’s apparently global delays, by which the juvenile court could conclude that Andy is adoptable.” We disagree.
The Department contends Father waived any challenge regarding the adequacy of the adoptability assessment by failing to raise such an objection at the trial court. We choose to address Father’s argument, because it is easily resolved on the merits.
Four reports concerning Andy were admitted into evidence at the hearing terminating Father’s parental rights: the August 3, 2007 report; the November 6, 2007 adoptability assessment; the December 3, 2007 addendum; and the December 10, 2007 addendum. The adoption assessment and December 3, 2007 addendum include a synopsis of Andy’s mental, emotional, and physical conditions. The August 3, 2007 report includes a list of all the medications Andy was taking, his various treatments, the name of his primary doctor, his dietary habits, and his developmental status. Accordingly, the court had ample evidence by which to assess Andy’s disease and linguistic, developmental, and physical delays. Moreover, we note that “[n]owhere in the statutes or case law is certainty of a child’s future medical condition required before a court can find adoptability.” (In re Helen W., supra, 150 Cal.App.4th at p. 79.)
Second, Father essentially contends the O. family may not be able to meet Andy’s needs because they already have a busy household, and Andy’s needs may be too overwhelming for the family. Father offers nothing more than speculation that the O. family may not be able to provide for Andy. Nothing in the record suggests that the O. family is overwhelmed by their children or would be unable to properly care for Andy. Speculation does not provide a legal basis for reversing the order terminating parental rights.
Third, Father argues that one family’s willingness to adopt Andy is not clear and convincing evidence of his adoptability. We disagree. If a juvenile court relies solely on the willingness of one family to adopt, then the adoptability finding is supported by clear and convincing evidence. (In re Helen W., supra, 150 Cal.App.4th at p. 80.)
Fourth, to the extent Father is arguing that one family’s desire to adopt a child should not be sufficient to support a finding of adoptability, because the child may become a legal orphan if the adoption fails, we disagree with such an argument. The Welfare and Institutions Code provides that if a child has not been adopted within three years of the termination of parental rights, then parental rights may be reinstated. (Welf. & Inst. Code, § 366.26, subd. (h)(3)(C)(i)(2).) Accordingly, because statutory provisions are in place to protect children from becoming legal orphans, we are not persuaded by Father’s argument that one family’s willingness to adopt should not be sufficient to support a finding of adoptability.
DISPOSITION
The judgment is affirmed.
We concur: Hollenhorst, Acting P.J., Richli, J.