Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK62401, Marilyn Kading Martinez, Referee. Affirmed.
Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Defendant and Appellant.
James M. Owens, Assistant County Counsel, and Jeanette Cauble, Deputy County Counsel, for Plaintiff and Respondent.
KLEIN, P. J.
J.M. (father) appeals an order terminating parental rights as to his four children. Father contends there was insufficient evidence to support the finding the oldest of the children, A.M., was likely to be adopted. We reject this contention and affirm the order terminating parental rights.
BACKGROUND
1. Detention of the children; placement with maternal aunt and uncle.
In February of 2006, The Department of Children and Family Services (the Department) detained A.M., then four years of age, and her siblings from mother after mother repeatedly allowed A.M. to wander the neighborhood unsupervised. The children were placed in the home of maternal aunt and uncle. At the time, father was incarcerated.
Mother submitted to the jurisdiction of the juvenile court in March of 2006. As sustained, the petition alleged mother left A.M. without adequate supervision and mother had a history of substance abuse.
On April 6, 2006, a children’s social worker (CSW) conducted the initial home assessment of maternal aunt and uncle’s five-bedroom home where they resided with their two biological daughters. A.M. had her own bedroom. Maternal aunt reported A.M. had been pinching herself and her siblings, and she was breaking things in the home. The CSW initiated a referral for therapy, which was scheduled to commence on July 1, 2006.
On May 22, 2006, the children appeared happy, healthy and reportedly were sleeping and eating well. However, A.M. continued to pinch herself and recently began to have nightmares.
On June 13, 2006, maternal aunt reported A.M. had not eaten for three days. Maternal aunt was very concerned and felt A.M. could not wait until July to begin therapy. The CSW made an immediate mental health referral.
On July 11, 2006, maternal aunt reported A.M.’s behavior had improved with therapy and she has not pinched herself or broken anything “for a while.”
2. The children are placed in foster care.
On August 15, 2006, maternal aunt and uncle told the CSW they were experiencing financial difficulties unrelated to the care of the children, they had almost lost their home and they no longer could afford to keep the children. On August 31, 2006, the children were placed in foster care.
Father was released from prison on October 27, 2006, but was incarcerated again in February of 2007.
A report submitted March 7, 2007, indicated A.M. appeared to be developmentally on track and her teacher reported she is “making great improvements in all areas.” The report indicated A.M. started play therapy in September of 2006. Her therapist indicated A.M.’s goals were to reduce symptoms of post traumatic stress disorder, express feelings in a controlled manner and improve social skills. A.M. was described as motivated to work on goals and was slowly improving her behavior.
3. The children are returned to maternal aunt and uncle who seek to adopt.
On March 7, 2007, the juvenile court ordered the Department to place the children with maternal aunt and uncle. The CSW visited maternal aunt at her home and was informed that, since the children last were placed there, she and her husband had refinanced the home and had paid off their bills.
In July of 2007, mother gave birth to a child who was declared dependent based on a positive toxicological screen for amphetamine and a history of domestic violence between mother and father. The newborn was placed with A.M. and her siblings in the home of maternal aunt and uncle
In August of 2007, the Department reported the children were doing well and maternal aunt and uncle wished to adopt. The report indicated none of the children is a Regional Center client or in therapy and all appear to be developing at age-appropriate levels.
A report prepared for a permanency planning hearing on January 23, 2008, indicated A.M. was referred to Roger H. Morgan, Ph.D., after her school psychologist determined she had attention deficit/hyperactive disorder. The report indicated maternal aunt and uncle, 37 and 39 years of age, respectively, completed their adoption paperwork in a timely manner and their adoptive home study was approved in September of 2007. Maternal aunt was described as “very committed” to adopting the children. The report indicated maternal aunt and uncle “both have a strong desire to parent and consider themselves very fortunate....” The children were reported to be happy in the home. The report stated maternal aunt “has consistently demonstrated her devotion to the children and their well-being.... She has also demonstrated effective parenting skills and a reliable capacity for problem-solving.”
4. Maternal aunt and uncle opt for legal guardianship.
The Department reported that, after the permanency planning hearing of January 23, 2008, the children’s attorney asked maternal aunt to consider legal guardianship rather than adoption. The CSW visited maternal aunt at her home on February 11, 2008, at which time maternal aunt said she would like to adopt the children but would have to check with her husband. On February 15, 2008, a deputy county counsel spoke to maternal aunt and reported that, while maternal aunt appears to want to adopt the children, she was torn over the decision because she did not want to give up on her sister. Maternal aunt’s final decision was legal guardianship.
On February 15, 2008, the juvenile court appointed maternal aunt and uncle the legal guardians of the children.
5. A.M.’s progress in the care of maternal aunt and uncle; reinstitution of adoption proceedings.
A status review report submitted August 15, 2008, indicated maternal aunt had completed D-rate classes and was receiving a specialized foster care rate for A.M. who had numerous problems which include pinching herself, biting her cuticles and purging her food. A.M. was seeing a psychiatrist and a therapist for these problems. The report indicated the children enjoyed living with maternal aunt and uncle and maternal aunt and uncle had once again expressed interest in adopting the children. The report noted A.M. was hospitalized from May 26 to 30, 2008, and from June 24 to 30, 2008, due to self-destructive behaviors such as not eating, inducing vomiting, hurting herself to the point of leaving bruises and peeling the skin around her cuticles.
The report indicated A.M. has been in therapy with Dr. Morgan, a licensed psychologist, since January 25, 2008. She was also seen by a psychiatrist who discontinued her prescription for Ritalin due to its possible side effect of decreasing her appetite. The report indicated maternal aunt “has worked diligently with [A.M.’s] mental health specialist and has sought medical/mental health attention taking [A.M.] to all of her appointments and seeking immediate care when she felt that A.M. needed to be hospitalized for fear that she would herself.... [A.M.]... has been diagnosed with anorexia and depression and will continue to require close monitoring. She requires a caregiver that is able to pick up on any symptoms... and act on them in a timely and appropriate manner.... [Maternal aunt] has been relentless in her effort to ensure that [A.M.] has all of her mental health needs met and will go to any measures to secure the care she requires.”
A progress letter from Dr. Morgan dated May 5, 2008, stated A.M. “has a history of serious acting out behaviors as well as bulimia/anorexia. Her acting out includes violence towards other children, refusal to follow parental requests, passive aggressive behavior, talking out in the classroom, tearing of her clothing, breaking things in anger, and lying to her parents and teachers. As the eating disorder was somewhat stable at the point of the initial intake, the behavioral issues were addressed first. [Maternal aunt] was taught to utilize two forms of very specific time-outs to manage [A.M.]’s behavioral problems. [Maternal aunt] has been a conscientious student and has implemented my recommendations flawlessly. Improvement has been achieved in [A.M.]’s compliance with parental directives, yet [she] continues to have significant problematic behavior, as she is a deeply disturbed child.”
Morgan noted “[A.M.]’s response to psycho stimulant therapy has been quite positive. Her behavior at school has improved significantly. [¶] Dynamically, [A.M.] suffers deep loss issues for her biological parents. She stated quite directly to her aunt that she did not love her, did not wish to live with her, and wanted to live with her mother. Additionally, she stated that she believed that if she acted out behaviorally, she would be sent back to her mother. While this issue has been addressed directly, [A.M.] has a long way to go before she can process this information and reach an age appropriate level of behavior. [¶] Currently, the eating disorder has become exacerbated once again. While [maternal aunt] has affected good structure with regard to her overall behavior, [A.M.] appears to be exercising control over the one thing that she can[,] her eating behavior.” After A.M. missed three weeks of therapy due to a viral infection, the sessions were increased to twice a week. Morgan indicated that if A.M. lost weight or did not progress in the next three to four weeks, “inpatient treatment should be sought. I am very concerned for her condition, as in my nearly thirty years as a mental health professional, I have not previously encountered a child this young with an eating disorder.” Morgan indicated the diagnoses for A.M. were anorexia nervosa, attention deficit disorder, oppositional defiant disorder and major depressive disorder.
A progress letter from Dr. Morgan dated July 30, 2008, indicated A.M.’s behavioral problems were presently “at a significantly reduced intensity and frequency. The treatment course has been enhanced by [maternal aunt’s] consistency and follow through with recommendations. [¶] [A.M.] demonstrated significant resistance to all interventions for the first several weeks of treatment.... [However,] she eventually began to comply more readily with parental requests and directives and to display less argumentative and rule-breaking behavior.... She is playing appropriately with her siblings for the first time since she has been in the care of [maternal aunt].”
Morgan further indicated “[A.M.] also has manifested bulimic and anorexia behavior, while not fully meeting the criteria for diagnosis with these disorders. With medical intervention and the prescription of a medication to stimulate her hunger and with the supportive and reeducative therapy dealing with the difficulties of [A.M.]’s loss issues with her mother, there has been a significant remediation of her vomiting and her resistance to eating.” The letter indicated A.M. “consciously blamed [maternal aunt] for her removal from her mother’s custody.... The role of Social Services and the Judicial system were explained in age-appropriate detail to [A.M.] to counter her strong tendencies to blame [maternal aunt] for this loss, underlying much of [A.M.]’s oppositional behavior.”
The letter concluded: “Progress, therefore, has been in evidence both in extant behavioral cooperation, improvement in attitude and interpersonal interaction, eating related issues, and mood. With these improvements, the frequency of treatment has been reduced from twice weekly to once per week. The prognosis for continued recovery is good.”
The CSW reported that on August 6, 2008, maternal aunt indicated A.M. had thrown up twice and had started to bite her fingers again until they bleed. The report indicated A.M. had made strides at school and will be receiving awards in math and reading. Also, A.M. told the CSW she was happy.
A report prepared for a permanency planning hearing indicated maternal aunt and uncle were motivated to adopt the children and both have a very close relationship with the children. “The applicants appear highly capable of meeting the needs of these children. They are very enthusiastic about parenting and are responsible and committed individuals.”
A letter from Dr. Morgan dated January 15, 2009, indicated that, each time A.M. has had contact with mother or father, her behavior regresses. Morgan recommended contact with mother and father be suspended until A.M.’s condition stabilized.
On January 16, 2009, the juvenile court ordered the children to have no contact with mother or father, finding by clear and convincing evidence it would be detrimental to them.
6. The juvenile court terminates parental rights.
On January 28, 2009, father’s counsel objected “for the record” to termination of parental rights. The juvenile court found, by clear and convincing evidence, the children were likely to be adopted and terminated parental rights. The juvenile court identified maternal aunt and uncle as the children’s prospective adoptive parents. The juvenile court found the children “are very well cared for by their maternal aunt and uncle, who do desire to adopt the children. [¶] They have been taking good care of the children for a substantial period of time. [A.M.] does have some special mental health issues. Her mental health needs are well-known to her caretakers, who are meeting her special mental health needs. In fact, they are providing her with much needed stability and permanency.”
CONTENTIONS
Father contends substantial evidence does not support the juvenile court’s finding A.M. was likely to be adopted or that the prospective adoptive parents could successfully conclude the adoption because they had a history of equivocating on the issue and there was no way to foresee how severe and unmanageable A.M.’s condition might become.
DISCUSSION
1. General principles.
Under Welfare and Institutions Code section 366.26, subdivision (c)(1) the juvenile court may terminate parental rights and order a dependent child placed for adoption if the court determines, by clear and convincing evidence, it is likely the child will be adopted. (Welf. & Inst. Code, § 366.26, subd. (c)(1); In re Jerome D. (2000) 84 Cal.App.4th 1200, 1204; In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164.) The question of adoptability focuses on whether the child’s age, physical condition, and emotional state make it difficult to find a person willing to adopt the child. (In re Carl R. (2005) 128 Cal.App.4th 1051, 1061; In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.)
On appeal, we review the juvenile court’s determination of adoptability for substantial evidence. (In re Carl R., supra, 128 Cal.App.4th at p. 1061; In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.)
2. The record supports the juvenile court’s finding A.M. was likely to be adopted.
Father contends A.M. was a special needs child who suffered from severe emotional and behavioral problems at an unusually early age as evidenced by her two psychiatric hospitalizations before the age of six years. Father argues it was unlikely A.M. would be adopted but for the availability of maternal aunt and uncle. Under these circumstances, father suggests the juvenile court should be required to inquire into the qualifications of the prospective adoptive parents. Relevant considerations in making this determination, according to father, should include the family’s understanding of the nature and extent of the child’s special needs, the family’s qualifications and ability to meet those needs on a permanent basis and the family’s commitment to adoption of the child.
Father claims the record does not support the conclusion maternal aunt and uncle were capable of handling A.M.’s special needs or the increasingly challenging problems she exhibited as she grew. Father notes maternal aunt and uncle had other children to care for and the needs of those children might affect their ability to give A.M. the level of care she might need in the future.
Father further contends that even if the juvenile court had made a thorough inquiry into the ability of the prospective adoptive parents to meet A.M.’s needs, the evidence in this record was insufficient to support the finding she was adoptable. Father claims there was no substantial evidence the family would successfully conclude the adoption, given its equivocation in the past. Father notes maternal aunt and uncle previously decided to remove the children from their home for financial reasons, they initially decided not to adopt and opted for legal guardianship, and they did not pursue adoption until the January 2009 permanency planning hearing.
Father argues termination of parental rights on the mere hope that a special needs child may be adopted impermissibly leaves the child at risk of becoming a legal orphan.
Father’s arguments are premised on the assumption A.M. was a specifically adoptable child. A child is specifically adoptable if the child’s age, physical condition and emotional state make it difficult to find willing adoptive parents, so that a finding that the child is likely to be adopted rests solely on the fact that a particular family is willing to adopt the child. When a child is specifically adoptable, the juvenile court must determine whether there are legal impediments to adoption by the identified prospective adoptive parents. (In re Sarah M., supra, 22 Cal.App.4th at p. 1650.)
Here, the juvenile court neither stated nor implied that A.M. was adoptable solely because maternal aunt and uncle were willing to adopt. Further, father did not argue in the juvenile court that A.M. was specifically adoptable. Indeed, father’s counsel objected to the termination of parental rights only “for the record.” Thus, father failed to preserve the assertion A.M. was specifically adoptability for appeal. (In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222),
In any event, a “legal impediment” to adoption exists only if a prospective adoptive parent does not meet the requirements of Family Code sections 8601, 8602, and 8603. (In re Sarah M., supra, 22 Cal.App.4th at p. 1650.) Generally, these sections require that: (1) an unrelated prospective adoptive parent must be at least 10 years older than the child; (2) a child older than 12 years of age must consent to an adoption; and, (3) a prospective adoptive parent not lawfully separated from a spouse must obtain consent from his or her spouse. Father does not contend any of these impediments apply here.
Rather, father suggests the rule of In re Sarah M. should be extended in this case to require the juvenile court to consider the ability of the prospective adoptive parents to meet A.M.’s needs, which he argues will become more difficult to address as the child reaches adolescence.
Initially, we note the record does not support father’s assertion A.M.’s problems will become increasingly more severe in the future. Dr. Morgan conceded in his letter of July 30, 2008, that A.M. did not fully meet the diagnostic criteria for bulimia and anorexia and indicated her prognosis for recovery was good. Morgan later reported A.M. regressed primarily after contact with mother and father. Based on this evidence, the juvenile court reasonably could infer that stable placement with maternal aunt and uncle would render it likely that A.M.’s self-destructive behaviors would subside with time.
Further, even assuming A.M.’s behavioral problems continue or become more serious, maternal aunt and uncle had a well documented history of effectively coping with these problems. Maternal aunt had taken special D-rate classes to ensure that she would be able to care for the child. Also, Dr. Morgan and the CSW repeatedly described the care provided by maternal aunt and uncle as exceptional. The Department reported maternal aunt and uncle had worked diligently with A.M.’s mental health specialists, took her to all her appointments and immediately sought care when appropriate. The social reports indicated maternal aunt “has consistently demonstrated her devotion to the children and their well being.... She has also demonstrated effective parenting skills and a reliable capacity for problem-solving.” Dr. Morgan indicated maternal aunt “has been a conscientious student and has implemented my recommendations flawlessly.” In a subsequent letter, Morgan indicated their “consistency and follow through with recommendations” had resulted in a significant reduction in A.M.’s behavioral problem.
Finally, with respect to father’s assertion maternal aunt and uncle had equivocated on the issue of adoption, the record reveals maternal aunt and uncle expressed an interest in adopting the children from the outset. They wavered when financial considerations nearly caused the loss of their home. However, when their financial situation stabilized, they immediately sought return of the children. Thereafter, maternal aunt and uncle opted for legal guardianship only to give mother a further opportunity to reunify with the children. Throughout the period of legal guardianship, maternal aunt and uncle continued to demonstrate their commitment to the children. In sum, there is no indication in the record of any uncertainty in the commitment of maternal aunt and uncle to adoption.
The cases cited by father In re Amelia S. (1991) 229 Cal.App.3d 1060 and In re Brian P. (2002) 99 Cal.App.4th 616, are not analogous to the situation presented. In re Amelia S., supra, 229 Cal.App.3d 1060, involved 10 siblings who displayed “various developmental, emotional and physical problems, some of a serious nature....” (Id. at p. 1063.) In re Amelia S. concluded the fact the prospective adoptive parents were considering adoption was insufficient to establish the required likelihood of adoption. Here, maternal aunt and uncle had advanced far beyond considering adoption.
In re Brian P., supra, 99 Cal.App.4th 616, found evidence a child was adoptable to be “fragmentary and ambiguous.” (Id. at p. 625.) Here, the evidence detailed above clearly supported the juvenile court’s finding A.M. was likely to be adopted.
In sum, substantial evidence supports the juvenile court’s finding A.M. was likely to be adopted within a reasonable time.
DISPOSITION
The order terminating parental rights is affirmed.
We concur: CROSKEY, J., KITCHING, J.