Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Kern County Nos. JD113829-00, JD-113830-00, JD113831-00 & JD113832-00, James Sorena, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Maureen L. Keaney, under appointment by the Court of Appeal, for Defendant and Appellant.
B. C. Barmann, Sr., County Counsel, and Mark L. Nations, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Dawson, Acting P.J., Hill, J. and Kane, J.
Elia H. appeals from orders terminating her parental rights (Welf. & Inst. Code, § 366.26) to her four children, who range in age from one to eight years old. Appellant challenges the court’s underlying finding that it was likely the children would be adopted. On review, we will affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
In June 2007, the Kern County Superior Court adjudged appellant’s children juvenile dependents, removed them from parental custody and ordered reunification services. The court previously determined the children came within its jurisdiction under section 300, subdivision (b) based on the parents’ drug abuse and ongoing domestic violence.
Despite six months of reasonable services, the parents failed to participate regularly and make substantive progress in the court-ordered treatment plan. Because the children were members of a sibling group in which at least one of the children was less than three years old when the children were initially removed and there was no substantial probability the children might be returned to the parents within another six months, the court terminated reunification services. It in turn set a hearing for March 2008 and pursuant to section 366.26 to select and implement a permanent plan for each child.
In preparation for the permanency planning hearing, respondent Kern County Department of Human Services (department) submitted a “SOCIAL STUDY” in each child’s case. In these social studies, the department recommended the court find the children adoptable and terminate parental rights. The social studies included, as summarized below, evaluations of the children’s history and current status, in terms of their placement and medical, developmental, emotional/mental health, as well as scholastic needs.
The children had experienced multiple placements since their original detention in March 2007. Since July 2007, they had been placed together in the home of their maternal great-grandparents who were committed to adopting them.
Except for the second child, a five-year-old boy who had asthma, the children had no reported health problems. All of the children were physically active and appeared to be physically healthy and age-appropriate.
The oldest child, an eight-year-old boy, might have some emotional and cognitive delays. He performed poorly in school and received mental health services as well as medication for Attention Deficit Hyperactivity Disorder (ADHD). The mental health services included medication management and attendance at a weekly social skills group. He responded well to the medication.
During a February 2008 interview of the second child, a social worker noted he was very imaginative but appeared preoccupied with violence and death. She thought he might require counseling and in turn referred him for an evaluation. He did not have any obvious developmental delays and was not as yet enrolled in school.
The third child, a two-year-old boy, was able to run and speak in short sentences. He could drink from a cup, but preferred to drink milk from a bottle. He did not have any obvious developmental delays and was too young for anyone to accurately identify in him any emotional problems or mental health needs.
The youngest child, a one-year-old girl, could stand and walk holding onto furniture. She was able to drink from a cup when held and enjoyed solid foods. Likewise she did not have any obvious developmental delays and was too young to be assessed for any emotional problems or mental health needs.
When interviewed on the topic of adoption, the two oldest children did not appear to understand the concept. Both would like to live with their parents and would be “really” or “very” sad if they could not visit their parents. The other two children were too young to make a statement regarding adoption. In addition, although the children shared an attachment with appellant, their relationship was not so significant that they would suffer detriment if rights were terminated.
All four children were adoptable in the department’s view due to their young age and the absence of any significant medical problems or developmental delays. In addition, their maternal great-grandparents, who had known them since their respective births and had been a stable presence throughout their lives, expressed a desire and commitment to adopt the children. The department’s preliminary assessment of the maternal great-grandparents was positive. The department acknowledged should these relatives be unable to adopt, it would be difficult to find a home willing to adopt all four children.
They were also committed to maintaining a relationship between the children and their biological parents.
The court conducted its permanency planning hearing in March 2008. Although appellant allegedly came for the hearing, she elected not to remain. According to her attorney, she objected to the department’s recommendation, but had no evidence to present. Upon the parties’ submission, the court found clear and convincing evidence that the children were likely to be adopted. Consequently, the court terminated parental rights.
DISCUSSION
Appellant contends there was no substantial evidence to support the court’s adoptability finding. Instead, according to appellant, the evidence showed it was unlikely the children would be adopted should their current placement fail. She relies on some of the evidence regarding the two oldest children, the fact that all children formed a sibling group that should remain together, and the department’s acknowledgement that it would be difficult to find a home willing to adopt all four children, should the maternal great-grandparents be unable to adopt. Citing In re Jayson T. (2002) 97 Cal.App.4th 75 (Jayson T.) and In re Asia L. (2003) 107 Cal.App.4th 498 (Asia L.), appellant further argues the court’s finding was erroneous in the absence of evidence that the department could locate other homes willing to accept children with similar qualities.
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.) Notably, the child need not be in a potential adoptive home nor must there be a proposed adoptive parent “waiting in the wings” for a court to find a child adoptable. (In re Jennilee T. (1992) 3 Cal.App.4th 212, 223, fn. 11.)
Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence the child’s age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the child. In other words, a prospective adoptive parent’s willingness to adopt generally indicates the child 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.)
Here, the department acknowledged it would be a challenge to find the children an adoptive home if the maternal great-grandparents were unavailable to adopt. However, this acknowledgement did not compel a finding that it was unlikely the children would be adopted. Indeed, appellant’s reliance on this acknowledgment leads to nothing more than an argument based solely on speculation.
As the department reported, the children were young and physically healthy as well as showed no signs of developmental delay. Although the oldest of the children had ADHD and performed below grade level in school, the record also reveals he responded well to medication to treat his ADHD. As for the second child, at most it appeared, to one social worker and based on a single visit, that he was preoccupied with violence and death. That had yet to be evaluated out and certainly did not compel an inference that he was not adoptable. Furthermore, the children’s prospective adoptive parents were relatives with whom they had been placed for more than six months and with whom they had a lifelong relationship.
We also reject appellant’s claim that case law required evidence of other approved families who were available and willing to adopt the children. In crafting her argument, she cites cases, neither of which stands for such a position or involves a fact pattern similar to the present case. (Asia L., supra, 107 Cal.App.4th 498; Jayson T., supra, 97 Cal.App.4th 75.) Notably, both of these decisions assessed adoptability largely on postjudgment evidence, an approach which the California Supreme Court soundly rejected in In re Zeth S. (2003) 31 Cal.4th 396.
In any event, the appellate court in Asia L., supra, 107 Cal.App.4th at page 512 at most noted there was no evidence of any approved families willing to adopt the children in that case. However, the appellate court did not go so far as to require such proof. Also, Asia L. is factually distinct from the present case.
In 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 adopti[on].” (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.)
Were we to extrapolate a rule from the Asia L. opinion, 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 opinion or Jayson T. stands for the proposition appellant endorses.
Here, even assuming arguendo that appellant’s children were not generally adoptable, they were in an adoptive placement. They had been in that placement for more than six months. In fact, the record reveals the maternal great-grandparents were committed to adopting the children, had known them since their respective births, and had been a stable presence throughout their lives. Further, the department’s assessment of the couple as prospective adoptive parents addressed each of the statutory factors relating to their eligibility and commitment to adoption in a favorable manner.
Finally, we would agree with the following observation from Jayson T., supra, 97 Cal.App.4th at page 85, the other opinion appellant relies upon.
“[I]t 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.”
For all the reasons stated above, we conclude there was substantial evidence to support the court’s adoptability finding. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379.)
DISPOSITION
The orders terminating parental rights are affirmed.