Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SJ11280E, Laura J. Birkmeyer, Judge.
NARES, J
David B. appeals the judgment terminating his parental rights to his eight-year-old daughter, Helena B. (Welf. & Inst. Code § 366.26). David contends the adoption assessment prepared by the San Diego County Health and Human Services Agency (the Agency) was deficient; thus, substantial evidence does not support the juvenile court's finding that Helena was adoptable. We affirm.
All further statutory references are to the Welfare and Institutions Code.
BACKGROUND
In February 2009 the Agency filed a dependency petition for seven-year-old Helena. The petition alleged David sexually abused Helena by touching her buttocks under her clothing, asking her to help him bathe, showing her a pornographic film, licking her face and neck and placing his penis on her back and buttocks. The juvenile court made a true finding on the petition and ordered Helena placed in foster care. After a two-day detention in Polinsky Children's Center, Helena was moved to a foster home. She remained there until July 2010, when she was placed in the prospective adoptive home of a nonrelative extended family member. The section 366.26 hearing took place in September.
DISCUSSION
The Agency was required to prepare an adoption assessment with an evaluation of Helena's "medical, developmental, scholastic, mental, and emotional status" (§ 366.21, subd. (i)(1)(C)) and "[a] preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent, " including "the capability to meet the child's needs" (§ 366.21, subd. (i)(1)(D)). Adoptability is determined "[o]n the basis of this assessment and 'any other relevant evidence.' " (In re Josue G. (2003) 106 Cal.App.4th 725, 732, quoting § 366.26, subd. (c)(1).) The Agency had the burden of proving adoptability. (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1557, 1559-1561.) "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.]" (In re K.B. (2009) 173 Cal.App.4th 1275, 1292.)
A finding of general adoptability "focuses on the minor, e.g., whether the minor's age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor." (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649, italics omitted.) A child who is not generally adoptable may be specifically adoptable, that is, adoptable "because a prospective adoptive family has been identified as willing to adopt the child." (Id. at p. 1650.) "[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." (Ibid, italics omitted.) Construing the record most favorably to the judgment (In re Josue G., supra, 106 Cal.App.4th at p. 732), substantial evidence supports the court's finding Helena was both generally and specifically adoptable (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154).
The Agency contends David forfeited his right to challenge the adequacy of the adoption assessment by failing to do so in the juvenile court. While David's trial counsel did not assert that the assessment was inadequate, she did argue against a permanent plan of adoption. Thus, David has not forfeited his right to challenge the sufficiency of the evidence supporting the adoptability finding. (In re Brian P. (2002) 99 Cal.App.4th 616, 622-623.) In any case, as discussed below, David's argument regarding the adequacy of the assessment is meritless.
Here, the Agency's assessment expressly discussed Helena's "medical, developmental, scholastic, mental, and emotional status." (§ 366.21, subd. (i)(1)(C).) As might be expected, Helena's sexual abuse and the chaos in her family of origin had not left her unscathed. The assessment and other material in the record show that Helena suffered from enuresis and had difficulty sleeping. She sometimes told lies, stole things, bullied other children and made inappropriate sexual remarks. She was in psychotherapy but did not need psychotropic medication. She had a severe learning disability but was otherwise healthy and developmentally on target. She was happy, sweet, loving, beautiful and intelligent. The social worker believed Helena was generally adoptable.
Any perceived inadequacy of the assessment was remedied by other parts of the record. Taken as a whole, the Agency's reports, the social worker's testimony and Helena's psychological evaluation set forth the information required by section 366.21, subdivision (i)(1)(C), and constitute an assessment substantially complying with the statutory requirements. (In re John F. (1994) 27 Cal.App.4th 1365, 1378.)
While a child's psychological and behavioral problems may make it more difficult to find adoptive homes, such problems do not necessarily prevent an adoptability finding. (In re Lukas B., supra, 79 Cal.App.4th at p. 1154; In re Helen W. (2007) 150 Cal.App.4th 71, 75, 79.) Such was the case with Helena. The family with whom she was placed wished to adopt her. The family had adopted three of Helena's half siblings, was the foster family of a fourth half sibling and wanted to adopt that half sibling. Additionally, a maternal family friend and a paternal relative had asked to adopt Helena. The relative's home had been cleared for placement. There were five more approved adoptive families in San Diego County and six elsewhere interested in adopting a child with characteristics similar to Helena's.
The above factors constitute substantial evidence supporting the finding that Helena was generally adoptable. Thus, "the suitability or availability of the caregiver to adopt is not a relevant inquiry." (In re R.C. (2008) 169 Cal.App.4th 486, 493.) In any case, the Agency provided "[a] preliminary assessment of the eligibility and commitment of [the] identified prospective adoptive parent, " including their "capability to meet [Helena]'s needs." (§ 366.21, subd. (i)(1)(D).) The prospective adoptive parents were experienced adoptive and foster parents and had therefore "already been screened for the factors required in the assessment report." (In re L. Y. L. (2002) 101 Cal.App.4th 942, 956.) They were committed to making sure that Helena received therapy and any other services she needed. The Agency would continue to offer those services after adoption and the social worker believed that Helena would progress and stabilize.
In the opening brief, David's counsel cites a report by Helena's court appointed special advocate (CASA) stating that Helena said she was "afraid of the caregiver." In context, the CASA's report stated: "[Helena] told me [that] she is 'scared' of the caregiver but appears to be developing trust and adapting to a new living environment." The CASA noted that Helena "seems to enjoy" being in the prospective adoptive home and "thoroughly enjoys being with her half-siblings...." The CASA recommended that Helena remain in her current placement under a permanent plan of adoption.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., BENKE, J.
By the time of the section 366.26 hearing, Helena was establishing a bond with her prospective adoptive family. Helena wished to remain in their home and be adopted if she could not return to the care of her grandmother or David. Neither the grandmother nor David was a placement option.