Opinion
E044309
4-25-2008
In re A.C., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY DEPARTMENT OF CHILDRENS SERVICES, Plaintiff and Respondent, v. ERNEST C., Defendant and Appellant.
William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant. Ruth E. Stringer, County Counsel, and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent. Sharon S. Rollo, under appointment by the Court of Appeal, for Minor.
NOT TO BE PUBLISHED
INTRODUCTION
Ernest C. (father) appeals the juvenile courts order terminating his parental rights to his son, A.C. (Welf. & Inst. Code, § 366.26.) Pointing to what he contends is an inadequate adoption assessment, father maintains the courts adoptability finding is not supported by substantial evidence. We disagree and affirm.
All further statutory references will be to the Welfare and Institutions Code unless otherwise indicated.
Although father frames his challenge as an attack on the sufficiency of the evidence to support the adoptability finding, he is actually questioning the adequacy of the adoption assessment report. In fact, he acknowledges the "[k]ey to determining adoptability is the adoption assessment described in section 366.21, subdivision (i)."
Although a challenge to the sufficiency of the evidence is not forfeited by failure to raise the issue in the juvenile court (In re Brian P. (2002) 99 Cal.App.4th 616, 623; In re Crystal J. (1993) 12 Cal.App.4th 407, 411-412), a challenge to the adequacy of the adoption assessment is. (Brian P., at pp. 622-623.) And while DCS does not question the appealability of this issue, in light of fathers failure to voice an objection to the report in the juvenile court, it may be that the issue has been forfeited. In any event, without deciding whether a forfeiture has occurred, we will exercise our discretion to address the issue on the merits. (In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7.)
FACTUAL AND PROCEDURAL BACKGROUND
A.C. was born in July 2006, addicted to methamphetamine, and was promptly detained by the San Bernardino Department of Childrens Services (DCS). One week later, he was placed in the home of Martha R., where he remains today.
A juvenile dependency petition was filed alleging that A.C.s mother had a chronic substance abuse problem, had failed to reunify with six other children, and had a history of incarcerations, and that father was unable to provide care for the child. Additionally, father had an extensive criminal background dating back to 1994.
A.C.s mother is not a party to this appeal.
At the detention hearing, the court ordered father to undergo paternity testing and also provided for him to have supervised weekly visits. Despite efforts by DCS to arrange for testing, father was not actually tested until several months later, at which time it was determined that he was A.C.s biological father. Father also failed to show up for scheduled visits and had minimal contact with the social worker. As of late September 2006, he had visited A.C. on only one occasion.
Meanwhile, A.C., who had been described by the social worker as "delightful" and "delicate," was doing well in his placement. He reportedly had good eating habits and was sleeping well. Although he experienced some shaking due to his drug exposure at birth, no health problems were reported after his first doctors appointment when he was 11 days old.
After numerous continuances, a contested jurisdictional/dispositional hearing was held on November 7, 2006. Father was not present in court, but was represented by counsel. At the hearing, A.C. was declared a dependent child, and father was offered reunification services.
In May, the social worker filed a status review report recommending that the court terminate reunification services. The social worker reported that for much of the previous six months, fathers whereabouts were unknown, and that she only had sporadic contact with him. He failed to contact her from November 27, 2006, to February 6, 2007, regarding his whereabouts, visitation, or the well-being of the child. When father finally contacted her, he advised her that he had been sentenced to nine months in jail beginning on March 5, 2007. The social worker advised father of his case plan requirements and directed him to enroll in services prior to and during his incarceration. Father reported that, as of April 2, 2007, he had enrolled in a parenting class in jail and was attending meetings of Narcotics Anonymous and Alcoholics Anonymous.
In her report, the social worker described A.C. as "an attractive child, who has a friendly and pleasant disposition." He appeared to be "well bonded to his current foster family," and the entire family was said to "take[] much enjoyment and attention towards caring for [him]. He is `spoiled and accustomed to getting his way all the time. He cries when his foster family members leave his sight. [A.C.] reaches for them and prefers to be held much of the time." Moreover, he was said to be developing appropriately for his age and was fairly close to being "on target" for timely meeting developmental milestones. No difficulties had been reported with respect to his eating and/or sleeping habits. Nor had any significant health problems been disclosed during the past six months.
The six-month review hearing was held over the course of two days in late May and early June 2007. The social worker acknowledged that once father returned to jail, he essentially did everything possible to comply with his reunification plan. When he was out of custody, however, he had not demonstrated a willingness to work on his case plan. In fact, during his testimony, father admitted that he had no interest in participating in his case plan until he was incarcerated.
At the conclusion of the hearing, the court found that father had failed to participate regularly in his case plan or to make substantive progress, and that there was not a substantial probability that A.C. could be returned within the statutory time frame. Thus, the court ordered fathers reunification services terminated and set a section 366.26 hearing for October 4, 2007.
Father thereafter filed a petition for extraordinary relief (case No. E043294), contending he was not provided with reasonable reunification services. By opinion filed August 28, 2007, this court denied the requested relief. As stated in that opinion, from the outset father did virtually nothing to demonstrate a commitment to his son. Thus, in denying fathers petition, we concluded the record clearly supported the juvenile courts finding that he had failed to participate regularly or make substantive progress in his case plan.
The adoption assessment report submitted for the October 4, 2007, hearing described A.C. as "an appropriate child to be adopted due to his age of one, and his current caretakers willingness to pursue legalizing the parental relationship to the child through adoption." The social worker who prepared the assessment described A.C. as "a very cute one year old" whose "prospective adoptive mother stated that he eats all the time, but has trouble gaining weight," and who "does not talk at all." The social worker also reported that A.C. "can walk, run, and hold a sipper cup. He is very active and can go up and down stairs. . . . His only medical concern is that he is having trouble gaining weight."
The report further indicated that A.C.s prospective adoptive mother described her relationship with A.C. as "wonderful and very loving." He had been with her since he was about a week old, and she wished to adopt him. Furthermore, he goes to her "for hugs, kisses and to get his needs met."
A.C.s adoptive family resided in a four-bedroom home in a well-established neighborhood. A.C. was sharing a room with his adoptive mother, but it was anticipated that he would move into his own room when he got older. The prospective adoptive mother reported that she is in good health, does not have a criminal history, and was in the process of adopting another child about the same age as A.C. Further, her biological children and her extended family were supportive of her decision to adopt A.C.
At the conclusion of the report, the social worker recommended that A.C. remain in his current placement and that the prospective adoptive mother proceed with the proposed adoption. A.C. was said to be emotionally attached to his prospective adoptive mother and considered her a parental figure. Moreover, the prospective adoptive mother felt that A.C. was already part of her family and was eager to adopt him.
According to the social workers section 366.26 report, A.C. "is a pleasant child who is socially interactive with those around him. [He] is very energetic and playful. He smiles often and loves being the center of attention. He is a `happy go lucky child, who appears well bonded to his foster family. [He] is very active and can be aggressive. He hits other children in the home and frequently does not like to share toys. When re-directed, [he] laughs and attempts to run away. Many of [his] defiant behaviors are age appropriate. [He] is ambulatory. He is exploratory and has to be supervised closely due to his tendency to get into things." And he had been "fairly healthy" during the past six months.
Furthermore, the social worker acknowledged there had been concerns about A.C.s "small stature" and low weight, noting that the doctor had recommended PediaSure, a dietary supplement, to add calories to his diet. And while this did not result in a significant weight gain, no other recommendation had been made "given the stature of his familial heritage." All in all, A.C. was continuing to develop steadily and was meeting his developmental milestones.
Shortly before his release in August 2007, father contacted the social worker to request visitation. Although a visit was arranged, he failed to either show up or call. A month later, he again contacted the social worker and asked that she schedule a visit for three days later; a visit was arranged and again he failed to show. Father made another call to the social worker on October 2, 2007, and a visit was apparently arranged for October 9, five days after the scheduled section 366.26 hearing.
At the conclusion of the permanency hearing, the court terminated parental rights. Having read and considered the adoption assessment report, it found by clear and convincing evidence that A.C. was adoptable. The court also found that A.C.s need for permanency "far outweigh[ed] any parental bond that may exist between [father] and the child."
DISCUSSION
The sole issue before us is whether substantial evidence supports the juvenile courts finding that A.C. would likely be adopted. We shall conclude that it does.
A. Applicable law.
When the sufficiency of the evidence to support a finding is challenged on appeal, even where the standard of proof in the juvenile court is clear and convincing evidence, we must determine if there is any substantial evidence—that is, evidence which is reasonable, credible, and of solid value—to support the finding. (In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) In making this determination, we resolve all conflicts in favor of the prevailing party. Issues of fact and credibility are questions for the trier of fact, and we do not reweigh the evidence when assessing its sufficiency. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
Before a juvenile court may terminate parental rights, it must find by clear and convincing evidence that it is likely the child will be adopted within a reasonable time. (In re Jennilee T. (1992) 3 Cal.App.4th 212, 223 (Jennilee T.); In re Jerome D. (2000) 84 Cal.App.4th 1200, 1204.) "`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.] [Citation.]" (In re Amelia S. (1991) 229 Cal.App.3d 1060, 1065.) "In making this determination, the juvenile court must focus on the child, and whether the childs age, physical condition, and emotional state may make it difficult to find an adoptive family. [Citations.]" (In re Erik P. (2002) 104 Cal.App.4th 395, 400.) "[A] prospective adoptive parents 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." (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1650 (Sarah M.).)
Pursuant to section 366.21, subdivision (i)(1)(C & D), DCS was required to prepare an assessment, which was to include, among other things, "[a]n evaluation of the childs medical, developmental, scholastic, mental, and emotional status," and "[a] preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent or legal guardian, particularly the caretaker, to include a social history including screening for criminal records and prior referrals for child abuse or neglect . . . ."
A courts finding of adoptability is often based upon the information provided in an adoption assessment, the purpose of which is to provide the juvenile court with information necessary to determine whether adoption is in a childs best interests. (See In re Dakota S. (2000) 85 Cal.App.4th 494, 496.) An assessment report need not be entirely complete so long as it is in substantial compliance with statutory requirements. (In re John F. (1994) 27 Cal.App.4th 1365, 1378.) Where an assessment is deemed 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. (Ibid.)
Father challenges the adequacy of the adoption assessment report on two separate grounds. First, he contends the report is silent with respect to both A.C.s "numerous developmental and behavioral problems" and whether his prospective adoptive mother had an understanding as to the nature of those problems. Secondly, he contends the report does not include the results of the requisite criminal and/or child welfare background checks as to the prospective adoptive mother. As we shall explain, neither contention has merit. Moreover, even if the report was deficient in the particulars asserted by father, we find that DCS substantially complied with the statutory requirements.
B. Absence from adoption assessment of A.C.s purported "developmental and behavioral problems."
In her adoption assessment report, the social worker found adoption to be appropriate for A.C., noting, among other things, that he had been in the home of his prospective adoptive mother since he was about a week old, that they share a bond, and that she loves him and feels he is already a part of her family. Father contends, however, that the report failed to mention A.C.s "numerous developmental and behavioral problems," and/or whether the prospective adoptive mother understood or had had any awareness of those problems. Insisting that the courts finding was therefore premature, he contends "[i]t is A.C.s status that raises concern about his adoptability."
Specifically, pointing to A.C.s "small stature and trouble gaining weight," his "aggressi[on] in his foster home where he hits other children and does not like to share his toys," and his health assessment indicating he is at risk for developmental delays, learning disorders, and various behavior disorders, father maintains A.C. is not necessarily adoptable. Citing the childs Health and Education Passport appended to the adoption assessment report, father asserts: "A health assessment (Passport) describes him with prenatal methamphetamine exposure and at risk for (1) poor feeding coordination, (2) poor breathing coordination, (3) sudden infant death syndrome (SIDS), (4) developmental delays, (5) learning disorders, (6) behavior disorders, (7) attention deficit disorder (ADD) and (8) attention-deficit hyperactivity disorder (ADHD)."
Furthermore, although A.C. has been making marked progress and his prospective adoptive mother has made a commitment to adopt him, father maintains that insufficient data was given to the prospective adoptive mother to enable her to make a firm decision to adopt so as to ensure that an adoption will in fact take place. He acknowledges that a prospective adoptive parents willingness to adopt is generally an indication that the child will likely be adopted within a reasonable time either by that individual or someone else. (Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.) However, he contends reversal is required because nothing in the report indicates that A.C.s prospective adoptive mother is aware of his "numerous" problems.
The issue presented in Sarah M. was whether the suitability of a particular prospective adoptive parent was relevant to a determination of adoptability and the court said it was not. The court recognized, however, that "[w]here the social worker opines that the minor is likely to be adopted based solely on the existence of a prospective adoptive parent who is willing to adopt the minor, an inquiry may be made into whether there is any legal impediment to adoption by that parent . . . ." (Sarah M., supra, 22 Cal.App.4th at p. 1650.) The court explained that the existence of a legal impediment to adoption was relevant if it "would preclude the very basis upon which the social worker formed the opinion that the minor is likely to be adopted. [Citation.]" (Ibid.) In the present case, while it appears that the courts adoptability finding was based at least in part on the existence of prospective adoptive parents who were willing to adopt and had already committed to the adoption, we are unaware of any legal impediment to that adoption.
Fathers position is flawed. Indeed, what he refers to as "numerous problems" are not problems at all. Rather, his argument focuses on potential consequences faced by a child born addicted to drugs. While he is correct that A.C.s drug exposure at birth placed him at risk for various ailments, A.C. had yet to exhibit any of them. Moreover, father overlooks the fact that the health report referencing the risks was made within days of A.C.s birth. The only pertinent data reflected with regard to the childs more recent medical visit in May 2007 was his poor weight gain. And while the recommendation that he be given a dietary supplement did not yield positive results, in light of the fact that no other health issues were reported, it is not unreasonable to presume that his small stature is familial based. In short, there simply is no evidence that A.C. has shown any lingering effects from having been born addicted to drugs, nor has he exhibited any health problems or developmental issues which might hamper his adoption. Postponing an adoption until it is absolutely clear that a child will not develop some problem is not in the childs best interests, nor is it compatible with the legislative goal in enacting the dependency scheme.
In any event, notwithstanding the fact there is nothing in the record to indicate that any of the risk factors enumerated more than a year earlier had been realized, a mere possibility that a child may have a problem in the future does not mean that the child is not likely to be adopted. (Jennilee T., supra, 3 Cal.App.4th at p. 225.) Even where the child has problematic characteristics, he or she is likely to be adopted if there is an identified family willing to adopt. (Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.) A child with a disability, whether it be physical, mental, or emotional, is not necessarily unadoptable. (Jennilee T., at pp. 224-225.) As was recognized by the court in Sarah M., "[I]n some cases a minor who ordinarily might be considered unadoptable due to age, poor physical health, physical disability, or emotional instability is nonetheless likely to be adopted because a prospective adoptive family has been identified as willing to adopt the child." (Sarah M., at p. 1650.) Thus, even if there was evidence that A.C.s exposure to drugs at birth may cause a problem in the future, this would not necessarily mean he is unadoptable. Indeed, if we were to adhere to fathers way of thinking, no child born drug-addicted could be freed for adoption until sufficient time had elapsed within which a determination could be made with absolute certainty as to the childs physical, mental, and emotional health. Furthermore, while it may well be that A.C.s situation will change, there is no evidence that his prospective adoptive mother is unaware of the risks associated with drug-addicted babies.
In re Helen W. (2007) 150 Cal.App.4th 71 (Helen W.) is instructive. There, two young children "suffered from various physical and developmental conditions that required a series of evaluations and tests during their dependency." (Id. at p. 74.) One was developmentally disabled and had serious neurological abnormalities; the other was mildly autistic, was "significantly below average in intellectual, speech and language, and adaptive functions," and exhibited violent behavior towards other children. (Id. at p. 75.) According to the social services agency, "even though the children have significant medical and developmental challenges, they each exhibited likeable qualities, and the foster mother was committed to adopting both of them." (Id. at p. 76.) Nonetheless, the mother argued on appeal that the courts adoptability finding was not supported by substantial evidence. Rejecting that argument, the appellate court explained: "Both children suffer from conditions that require time to determine the full severity of the issues they will face. But [the agency] methodically reported the childrens medical, developmental, emotional, and behavioral conditions throughout the two years of their dependency. The adoption assessment included a synopsis of the childrens conditions. And the foster mother—the prospective adoptive parent—accompanied the children to appointments, advocated for services, and was fully aware of their medical and psychological conditions. Nowhere in the statutes or case law is certainty of a childs future medical condition required before a court can find adoptability. [Citation.]" (Id. at p. 79.)
The Helen W. court also rejected the mothers contention that the juvenile court "impermissibly relied upon only the foster mothers intention to adopt in finding the children adoptable." (Helen W., supra, 150 Cal.App.4th at p. 79.) In so doing, the reviewing court pointed to evidence in the record describing the childrens appealing characteristics, including their young ages, their attractive physical appearances, and their affectionate personality traits. (Id. at p. 80.) Moreover, citing Sarah M., the court found that even if the juvenile court had relied solely on the willingness of the prospective adoptive parent to adopt, short of a legal impediment to adoption the willingness of the adoptive parent constituted clear and convincing evidence of adoptability. (Helen W., at p. 80.)
And so it is here. While a childs physical condition may be a proper focus for an analysis of adoptability where the child is in poor health, has a physical disability, or is emotionally unstable, and an adoptive family has not been identified, that is not this case. Not unlike the children in Helen W., A.C. is adoptable, not only because his prospective adoptive mother has made a commitment to adopt him and because she feels he is already a part of her family, but also because he is a pleasant child, is energetic and playful, was progressing properly for his age, was developmentally on target, and, notwithstanding his small stature, had been fairly healthy in recent months. As DCS aptly points out, father ignores these positive factors demonstrating A.C.s adoptability.
As previously stated, father makes much of the absence in the report of any indication that the prospective adoptive mother understood or even had knowledge of A.C.s "numerous developmental and behavioral problems." He contends Helen W. is distinguishable in that the foster mother there had cared for many foster children with intensive emotional and medical needs, understood the childrens developmental delays and the effects of the neglect, drug exposure, and early trauma on their development, and had been an advocate in getting services for the children. While father is correct that A.C.s prospective adoptive mother apparently had no experience caring for children having specialized needs, there is no evidence that A.C. has needs warranting specialized care. More importantly, A.C.s prospective adoptive mother, who has been his caretaker since he was a week old, is certainly privy to A.C.s background. Thus, although the adoption assessment does not expressly say that she has knowledge of the various risks associated with prenatal drug-exposure, it is reasonable to presume that she does.
C. Absence from adoption assessment of social history reflecting results of criminal and/or child welfare background checks.
Recognizing that the adoption assessment omitted information regarding a criminal and/or child welfare background check, DCS contends any error was harmless as there was substantial compliance with statutory requirements. (In re Diana G. (1992) 10 Cal.App.4th 1468, 1481.) Citing In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205, father contends that although the prospective adoptive mother purports to have no criminal record, "there can be no substantial compliance where the assessment omits criminal and child-welfare histories."
In Jerome D., not only was the adoption assessment prepared without the benefit of a home study, which was to include criminal and social assessments, but also, it failed to consider either the childs close relationship with his mother or his prosthetic eye, which required care and treatment. Thus, the court reversed the order terminating parental rights because there was "insufficient evidence of general adoptability to support the [adoptability] finding." (In re Jerome D., supra, 84 Cal.App.4th at p. 1205.) Not so here. Despite the fact that a social study had not been completed, the failure to do so is harmless in view of all of the other positive evidence.
In this regard, there is ample evidence in the record to demonstrate that A.C. was generally adoptable. Indeed, other than his small stature and low weight, there were no health issues to speak of. Nor was there any issue with regard to his emotional well-being. As previously discussed, any risk factors associated with a drug-exposed baby had not materialized and there was no basis for speculation that any problem might arise in the future. In short, as DCS asserts, "[a]ll the evidence presented clearly evidenced A.C.s adoptability."
Moreover, we agree with DCS that the failure to perform a criminal check not only is unrelated to the issue of adoptability, but also, that any error will be cured when adoption is implemented. As stated in In re Diana G.: "[T]he proceeding being appealed here was merely the preliminary step to adoption, in which parental rights were terminated and a permanent plan established. Only after this section 366.26 hearing are the children referred to the appropriate adoption agency for entertaining a petition for adoption. [Citation.] Under the ensuing adoption process, the prospective families must undergo additional evaluations, which would cure any potential error in the preliminary assessments at issue here." (In re Diana G., supra, 10 Cal.App.4th at pp. 1482-1483.)
In short, given the totality of the evidence before the court, the adoption assessment provided an adequate basis for selecting and implementing adoption as the permanent plan. Accordingly, we conclude that the adoptability finding is supported by substantial evidence.
DISPOSITION
The order terminating parental rights is affirmed.
We Concur:
GAUT, Acting P.J.
KING, J.