Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County, Nos. J201293 & 201294, Kyle S. Brodie, Judge.
Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruth E. Stringer, County Counsel, and Danielle E. Wuchenich, Deputy County Counsel, for Plaintiff and Respondent.
Sharon S. Rollo, under appointment by the Court of Appeal, for Minors.
OPINION
Gaut, J.
Father appeals from the juvenile court’s order terminating parental rights to his daughter, C.V. (born in July 2002), and son, J.V. (born in July 2003), pursuant to Welfare and Institutions Code section 366.26. On appeal, father challenges the finding that C.V. and J.V. are adoptable. We affirm, concluding there was substantial evidence supporting the order.
Unless otherwise noted, all statutory references are to the Welfare and Institutions Code.
1. Factual and Procedural Background
In April 2005, father physically abused C.V. When she would not stop coughing due to having a chronic cough and congestion, father repeatedly pushed C.V.’s face into the couch, beat her on the back, and called her a “little whore,” “little bitch,” and a “piece of shit.” C.V. was two and a half years old at the time. Mother was present but did nothing to intervene. C.V.’s 14-year-old half-sister, removed C.V. from the home and sought refuge with maternal relatives, who called the police.
The Department of Children’s Services (DCS) was contacted and a social worker took C.V. to the hospital emergency room for treatment on April 25, 2005. C.V. was diagnosed with a high fever and bacterial infection, and was treated with antibiotics and pain and anti-inflammatory medications.
The DCS filed a dependency petition, alleging that, in addition to father physically abusing C.V., mother and father (parents) abused drugs, failed to treat C.V.’s medical condition, and emotionally abused the children by subjecting them to ongoing domestic violence. Parents denied physically abusing the children but admitted a history of methamphetamine use and domestic violence. At the detention hearing in April, J.V. was taken from mother at the hearing and detained with the DCS. The court ordered supervised weekly visitation for parents. Both C.V. and J.V. (the children) remained in a foster home.
At the jurisdictional/dispositional hearing in June, the court declared the children dependents of the court and ordered that the children remain in foster care. The court ordered weekly visitation and reunification services for parents.
Throughout the juvenile dependency proceedings, father and mother were in and out of jail and prison. When he was not incarcerated, father’s whereabouts were unknown. According to the six-month status review report filed on December 21, 2005, father was in custody due to criminal charges against him for child abuse. Mother was homeless and pregnant by another man.
C.V. was assessed as having developmental and physical delays. She had speech delays, threw tantrums, was not potty trained, and was diagnosed as mildly mentally retarded. J.V. did not appear to have any developmental or health problems.
Father was released from prison in April 2006, but did not disclose his whereabouts thereafter.
In April 2006, the children were placed with their paternal grandparents (grandparents). The social worker reported in the June 2006 hearing report that grandparents wanted to adopt the children if reunification services failed.
At the 12-month status review hearing in July 2006, the court terminated father’s reunification services. His whereabouts were unknown.
The social worker reported in the October 2006 status review report that paternal grandmother (grandmother) wanted to adopt the children and that mother had had another baby. Mother said that, with her newborn baby, it would be difficult for her to care for the children and therefore, if she was unable to reunify with the children, she would like grandparents to adopt the children. The social worker recommended the court set a section 366.26 hearing (.26 hearing) and order a permanent plan of adoption for the children.
At the October 2006 18-month status review hearing, the court terminated mother’s reunification services and set a .26 hearing.
In January 2007, the DCS filed an adoption assessment report, requesting a continuance of the .26 hearing due to concerns about the children’s placement with grandparents. Grandmother was having health problems, including uncontrolled diabetes, and was having difficulty caring for the children appropriately. When she was tired, grandmother would let the children do whatever they wanted. C.V., who was four years old, was still not potty trained and frequently threw temper tantrums. The children did not get along with each other and would fight with each other and with other children in daycare. The county adoption service recommended further evaluation of grandparents at a later date.
According to an adoption assessment addendum report filed in March 2007, a public health nurse assessed C.V. as being two years delayed developmentally. C.V. also was diagnosed with mental retardation. The nurse assessed J.V. as showing possible problems in speech and fine motor skills. The DCS determined that the children were adoptable but recommended that the permanent plan not be changed to adoption at that time due to the children’s placement not being stable. Grandparents were wavering between wanting adoption and guardianship.
At the March .26 hearing, the court found that it was not likely the children would be adopted due to their special needs, and continued the matter to September. The court noted that the goal remained adoption and ordered that the children remain placed with grandparents.
In the adoption assessment report filed in January 2008, and the February .26 hearing report, the social worker recommended parental rights not be terminated at that time due to grandparents failing to provide the children with appropriate medical and dental care, and there being no other appropriate placement at that time. The social worker stated that, due to grandmother’s recent decline in health, she was no longer an appropriate caretaker for the children. Grandmother had been hospitalized several times.
The assessment report further stated that both children were active, social, and playful, but showed poor impulse control and excessive activity. They also did not respond to their grandmother’s instructions. C.V., who was five and a half years old, was receiving special education and still was having problems speaking. She was potty trained at school but not at home. C.V. was diagnosed in October 2007 as being mildly mentally retarded. J.V., who was four and a half years old, did not have any significant developmental problems. The children did not express a desire to be adopted by grandparents and grandmother did not appear responsive to their needs. The DCS was in the process of finding a new permanent home for the children.
At the review hearing in February, the juvenile court continued the .26 hearing and ordered the children remain in grandparents’ care while DCS searched for another home for the children. Mother was in state prison and father’s whereabouts were still unknown. The children’s attorney informed the court that the children’s cousin (cousin) was interested in providing a home for the children if they needed to be moved. Cousin previously had expressed an interest in caring for the children but did not want to disrupt their current placement. After it became clear grandparents were no longer able to care appropriately for the children, cousin requested to adopt the children.
The adoption assessment addendum filed in April 2008, stated that on March 13, 2008, the DCS placed the children with cousin. Cousin was 22 years old. She worked full-time in restorative nursing and wanted to return to college to earn a degree. Cousin had helped care for the children since October 2007, when grandmother was hospitalized.
The social worker reported that the children had transitioned well into cousin’s home. They seemed to listen to cousin and viewed her as a parental figure. The social worker observed cousin appropriately discipline the children and felt she had a natural ability to parent. Nevertheless, it was suggested that due to her young age, she attend parenting classes and/or read parenting books, which she agreed to do.
The social worker described C.V. in the April addendum report as a cute, sweet, friendly five-year-old girl. In October 2007, she was diagnosed by the Inland Regional Center (IRC) as mildly mentally retarded and eligible for services. She still had difficulty speaking and understanding what she was told. C.V. was in kindergarten, in special education, was not yet potty trained, and had tantrums when she did not get her way. J.V. was described as a cute, friendly, outgoing four-year-old. He was described as bright and had no developmental delays.
The DCS recommended parental rights be terminated and implementation of a permanent plan of adoption, preferably by cousin.
At the April 2008 review hearing, the court ordered that the children remain placed in cousin’s home and appointed cousin to be the children’s educational representative.
As of April 17, 2008, both parents were incarcerated.
At the .26 hearing on May 15, 2008, father testified that he had not seen the children for over a year. Before that, he had had supervised visits for six to eight months. While out of custody during the past year, he had not made any attempt to visit his children, even though the children were living with his parents. Father objected to termination of his parental rights because he hoped to be their father someday. Father appreciated cousin caring for the children but requested cousin be granted the lesser plan of guardianship, rather than adoption.
The juvenile court acknowledged C.V. had some problems but found that both children were adoptable, ordered adoption as the children’s permanent plan, and terminated parental rights.
2. Adoptability
Father contends the trial court erred in finding C.V. and J.V. adoptable and terminating parental rights. Father complains the juvenile court found the children adoptable solely based on cousin’s willingness to adopt the children, whereas at the time of the .26 hearing, cousin was only 22 years old, wanted to return to school to get a graduate degree, was living in an apartment with a roommate, and had been the children’s caretaker for only two months. In addition, C.V. had developmental and behavioral problems, and there was no evidence that a home study had been completed or even initiated.
The juvenile court cannot terminate parental rights unless it finds, “by a clear and convincing standard, that it is likely the child will be adopted . . . .” (§ 366.26, subd. (c)(1).) “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, 1061.) “[W]e view the evidence in the light most favorable to the trial court’s order, drawing every reasonable inference and resolving all conflicts in support of the judgment. [Citation.] An appellate court does not reweigh the evidence. [Citation.]” (In re Marina S. (2005) 132 Cal.App.4th 158, 165.)
The “clear and convincing” standard applies to the juvenile courts. It is not a standard for appellate review. (In re J.I. (2003) 108 Cal.App.4th 903, 911.) “‘“The sufficiency of evidence to establish a given fact, where the law requires proof of the fact to be clear and convincing, is primarily a question for the trial court to determine, and if there is substantial evidence to support its conclusion, the determination is not open to review on appeal.” [Citations.]’ [Citation.] ‘Thus, on appeal from a judgment required to be based upon clear and convincing evidence, “ the clear and convincing test disappears . . . [and] the usual rule of conflicting evidence is applied, giving full effect to the respondent’s evidence, however slight, and disregarding the appellant’s evidence, however strong.” [Citation.]’ [Citation.]” (Ibid.)
“‘The issue of 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. [Citations.]’ [Citation.]” (In re Zeth S. (2003) 31 Cal.4th 396, 406, quoting In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) “‘“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 other words, 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.”’ [Citation.]” (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1562.)
Here, the evidence established that C.V. and J.V.’s cousin was committed to adopting the children. She was fully aware and informed of the children’s psychological, physical, and emotional health. Cousin had cared for the children while grandmother was hospitalized in October 2007, and had assisted grandmother with the children thereafter. In addition, the children had been living with cousin for two months at the time of the May 2008 .26 hearing.
The adoption assessment reports and addendum, stated that the social worker had observed cousin with the children and cousin demonstrated proper discipline and parenting skills. The children appeared to respond favorably to cousin. The reports also indicated that cousin could provide appropriate housing for the children and was willing to take a parenting course and/or read parenting books to enhance her parenting skills.
Father asserts there was insufficient evidence of adoptability because there was no home study of cousin’s home and the adoption assessment reports did not provide adequate information. We disagree. There was ample information provided in the adoption assessment reports and status review reports. The adoption assessment reports and addendum reports filed in January 2007, March 2007, January 2008, and April 2008, described the age, physical health, and emotional and psychological development of both children. The reports contained detailed information concerning C.V.’s developmental delays and conditions. The reports fully informed the court of the status, needs and progress of the children, as well as cousin’s living circumstances, parenting abilities, and desire to adopt the children.
The various reports stated that J.V. was a cute, bright, typical four-year-old boy who did not have any significant problems or developmental delays. While C.V. had developmental delays, was mildly retarded, and threw temper tantrums, she was a cute, sweet five-year-old girl, with no significant physical or psychological problems. The assessment reports indicated that, initially, before grandmother’s decline in health, grandparents had wanted to adopt the children. It became apparent, however, that as grandmother’s health problems worsened, she did not have the energy or ability to care for the young children. Cousin also wanted to adopt the children. At the time of the May .26 hearing, she was committed to providing a home for the children and had proven she was fully capable of caring for them. The children had also responded well to cousin while in her care.
Although the children had lived with cousin for a relatively short period of time when the court terminated parental rights and C.V. had been diagnosed with some developmental problems, there was sufficient evidence establishing that the children were adoptable. The children were young, healthy, sociable, and attractive. The trial court could reasonably conclude C.V.’s problems were not likely to dissuade cousin or others from adopting C.V. and her brother.
Father argues that there was no evidence that the DCS had completed a home study regarding cousin. However, this was not required since the adoption assessment addendum filed in April 2008, indicated that the DCS had investigated cousin’s home. The DCS reported that cousin lived with a roommate who helped her care for the children. Cousin and her roommate were fingerprinted by the DCS’s Relative Assessment Unit (RAU) and approved for placement. The social worker also reported that cousin lived in a three-bedroom, two-bath apartment, which the DCS concluded was adequate for the children.
Father cites In re Jerome D. (2000) 84 Cal.App.4th 1200 (Jerome) and In re Amelia S. (1991) 229 Cal.App.3d 1060 (Amelia), for the proposition that the current caretaker’s willingness to adopt constitutes insufficient evidence of adoptability. These cases are distinguishable from the instant case. In Jerome, the adoption assessment report did not state whether there were any approved families willing to adopt the child. The report also failed to mention the child had a close relationship with his mother and had a prosthetic eye, which required special treatment. In addition, the prospective adoptive parent had a substantial criminal and child abuse history. (Jerome, supra, at pp. 1203, 1205.) The court in Jerome concluded it was clear that the finding of adoptability was based on the caretaker’s willingness to adopt. Therefore there was insufficient evidence of general adoptability to support the adoptability finding. (Id. at p. 1205.)
Here, the adoption assessment report did not omit any significant information and there were factors apart from cousin’s willingness to adopt the children that supported a finding of adoptability. The children were young. J.V. and C.V. were four and five years old, respectively, whereas in Jerome, the child was almost 13, which is a less desirable age to adopt. In addition, the children in the instant case did not have any significant health or psychological problems. C.V. had developmental delays and threw tantrums when she did not get her way but there also was evidence she was a sweet, cute, sociable, healthy child. In addition, there was no evidence the children were closely attached to either of their parents.
Amelia, supra, 229 Cal.App.3d 1060,is also distinguishable. In Amelia, the court reversed a finding of adoptability of a set of nine of 10 children who had developmental, emotional, and physical problems. (Id. at pp. 1063, 1065.) The children reportedly were difficult to place and no one had agreed to adopt them. A few of the children’s foster parents had merely stated they were considering adoption. The court thus concluded there was insufficient evidence of adoptability. (Id. at p. 1065.)
Here, there were only two children in the set, one of whom had no problems, and the children’s caretaker had requested to adopt the children. In addition, unlike in Amelia, the children’s young age made the children easier to place and the children did not have significant emotional or physical problems. In the instant case, there was sufficient evidence of adoptability apart from cousin’s willingness to adopt.
As noted in Amelia, supra, 229 Cal.App.3d at page 1065, “it is not necessary pursuant to section 366.26, subdivision (c)(1) that the child, at the time of the termination hearing, already be in a potential adoptive home. Rather, what is required is clear and convincing evidence of the likelihood that adoption will be realized within a reasonable time.” Not only were the children in a potential adoptive home, but in addition, even if they were not ultimately adopted by cousin, there was sufficient evidence of the likelihood that they would be adopted within a reasonable time.
Father’s reliance on In re Valerie W. (2008) 162 Cal.App.4th 1 (Valerie), is also misplaced. In Valerie, the trial court reversed an order terminating parental rights on the ground there was insufficient evidence of adoptability. (Id. at p. 4.) The adoptability assessment report failed to consider whether the prospective adoptive parent was qualified to adopt the children and inadequately assessed one of the children’s medical condition. (Ibid.) The Valerie court concluded the assessment report deficiencies were so egregious as to undermine the trial court’s adoptability ruling. (Id. at pp. 2, 15.)
As discussed above, such is not the case here. Not only did father not object to the adequacy of the assessment reports in the trial court, but in addition the totality of the information provided in the January 2007 adoption assessment report, March 2007 addendum assessment report, January 2008 adoption assessment report, and April 2008 addendum assessment report, more than adequately provided the required information under section 366.21, subdivision (i). (See Valerie, supra, 162 Cal.App.4th at pp. 11-14.)
3. Disposition
The judgment is affirmed.
We concur: Ramirez, P. J., Miller, J.