Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JD226699
BLEASE, Acting P. J.
Appellant, father of minor A.M., appeals from an order terminating his parental rights. (Welf. & Inst. Code, § 366.26; all further undesignated statutory references are to this code.) He contends there is insufficient evidence the minor is adoptable. We affirm.
BACKGROUND
On November 30, 2007, the Sacramento County Department of Health and Human Services (DHHS) filed a section 300 petition on behalf of five-year-old A.M. The petition alleged A.M. was at substantial risk of physical abuse due to the severe and prolonged physical abuse and torture inflicted by her legal guardian [and paternal great-grandmother], L.M.H., and her guardian’s husband, upon L.M. L.M. is the guardian’s 15-year-old adopted daughter. L.M.H. had also adopted L.M.’s four siblings. L.M. and her siblings are A.M.’s cousins.
Guardian L.M.H. was arrested after L.M. escaped, called law enforcement, and went to the emergency room. A.M. was placed in protective custody after L.M.H. was arrested. A.M.’s biological father is incarcerated for criminally negligent homicide. Her mother was strangled to death when A.M. was an infant.
We will not recount the horrific details of the abuse and torture inflicted upon L.M. It is sufficient to summarize that she had been repeatedly stabbed with knives, beaten with items such as a hammer and boards, burned, pinched, and locked in the closet for hours to months at a time. She was extremely disfigured and scarred. She had orthopedic, dental and facial injuries which would require specialty involvement and had undergone extensive emotional abuse.
A.M. reported that she received “whippings with a belt,” which left bruises. She was whipped daily by L.M.H. Other than providing this information, she did not wish to talk about anything except playing. She was assessed at the University of California at Davis CAARE (Child and Adolescent Abuse, Resource & Evaluation) Center. Dr. Stewart reported that A.M. appeared obsessed with violence (stabbing, shooting, guns, death, and bullets). A.M. had lived in a home where severe physical and emotional violence was perpetrated. A.M. reported that she thought about her deceased mother all the time.
In December 2007, after her removal, A.M. reported that she was doing “great.” A.M. had indicated she wanted a “white” foster mother and did not want a “foster daddy.” A single foster mother with a seven-year-old child was identified and meetings with A.M. went well. The foster mother was briefed on dealing with A.M.’s needs and behaviors, and A.M. was placed with her in January 2008. An Interstate Compact on the Placement of Children (ICPC) was being performed to pursue permanent placement with A.M.’s maternal grandfather.
On January 15, 2008, A.M.’s foster mother reported A.M. was doing well, but also reported the child had smeared feces on a door on two occasions and then denied doing so. The foster mother described the child as “workable.”
The juvenile court sustained the allegations of the petition and adjudged A.M. a dependent child of the court on February 11, 2008. The court denied reunification services and set the section 366.26 hearing for June 5, 2008.
On March 3, 2008, DHHS informed the court that the maternal grandfather had passed away on January 28, 2008, and, accordingly, the ICPC was closed. A.M. was moved to a new placement on March 11, 2008. Her foster mother had requested the move due to A.M.’s physically and verbally aggressive behavior. A.M. was having severe tantrums and minor sexualized behaviors.
The social worker’s June 5, 2008, section 366.26 report, describes A.M. as a cute and energetic child. She was in counseling to address her behavioral problems and separation from caregivers. She and her therapist, however, were still in the rapport-building stage. The foster mother reported A.M. still had anger issues when she did not get her way, including tantrums and screaming. The foster mother noted, however, that A.M. was remorseful for her actions, could be redirected, and was making progress. Overall, A.M. was adjusting to the placement. It was recognized that A.M. would need long-term/extensive therapy to address the issues of abuse.
Although A.M.’s foster mother had previously been open to adopting A.M., she “had recently reported that she does not want to adopt the child due to personal reasons not related to the child. Despite her decision, she reported that [A.M.] can be a sweet child, who can be re-directed and has made a lot of progress, in that her emotional/behavioral outbursts have minimized.” Several prospective adoptive families had since expressed an interest in adopting A.M. and were open to dealing with her behavioral and emotional issues. The social worker opined it was “highly likely” that A.M. would be adopted.
The juvenile court continued the matter on its own motion to further stabilize A.M. in counseling. On September 2, 2008, the social worker reported that A.M. was still having some behavioral issues, which had increased when her foster parent provided respite care to one of A.M.’s cousins in July 2008. This cousin had lived with A.M. when she was in L.M.H.’s home, and had told A.M. to act out. A.M. had started being defiant by kicking, screaming and throwing objects. She had also flooded her daycare provider’s home by clogging the bathtub when she did not get her way. A.M. did, however, continue to show remorse for her behavior. Because of these increased behavioral issues, the therapist recommended that Parent Child Interactive Therapy (PCIT) be started to assist A.M. with her behavior.
Transitional visits with a new potential adoptive home began on August 26, 2008. The potential adoptive parent had an approved adoption home study and was aware of the child’s emotional and behavioral issues. A.M. indicated she was ready to move in and wanted to be adopted. The social worker was arranging for PCIT with A.M. and the potential adoptive parent. Additionally, an in-home support person was visiting weekly to assist with A.M.’s behavior. The social worker requested a 60-day continuance to permit A.M. to transition into her potential adoptive home prior to termination of parental rights. The request was granted.
The social worker’s addendum prepared for the November 4, 2008 hearing, reported that DHHS had delayed placing A.M. with the prospective adoptive parent until October 6, 2008, in order to complete a background clearance on another individual who was staying in the home. However, A.M. had been visiting the caregiver since August 26, 2008. A.M. was adjusting well to her new placement. Although A.M. had had frequent and severe tantrums in her previous placement, her current caregiver reported that A.M.’s behaviors are “manageable” and she would not describe them as “severe.” A.M. continued to be “demanding in requesting her wants” and had anger issues when she did not get her way. The current caregiver had begun PCIT with A.M. to assist A.M. with the transition to placement and her anger issues. The current caregiver had an approved adoptive home study and remained committed to adopting A.M. A.M. also reported to the social worker and her attorney that she wanted to be adopted by this caregiver. The social worker recommended termination of parental rights and adoption as the permanent plan.
The juvenile court found by clear and convincing evidence that A.M. was likely to be adopted. The court found she had adjusted well to her placement, and her behavior issues were manageable and no longer severe. The court further found both the current caregiver and A.M. were committed to adoption. Accordingly, the juvenile court terminated parental rights.
DISCUSSION
Appellant contends the evidence was insufficient to support a finding that the minor is adoptable. We disagree.
As an initial matter, we reject respondent’s contention that appellant is precluded from raising the issue of the sufficiency of the evidence in this appeal due to his failure to raise this contention in the juvenile court. Generally, a claim of insufficient evidence of the minor’s adoptability is not waived by failure to raise the issue in the juvenile court. (In re Brian P. (2002) 99 Cal.App.4th 616, 623.) We, therefore, reach the merits of appellant’s claim.
“‘At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must make one of four possible alternative permanent plans for a minor child . . . . The permanent plan preferred by the Legislature is adoption.’” (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368, italics omitted.) “In order for the court to select and implement adoption as the permanent plan, it must find, by clear and convincing evidence, the minor will likely be adopted if parental rights are terminated.” (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164; § 366.26, subd. (c)(1).)
“The issue of adoptability posed in a section 366.26 hearing 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.] Hence, it is not necessary that the minor already be in a potential adoptive home or that there be a proposed adoptive parent ‘waiting in the wings.’” (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) On the other hand, “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.” (Id. at pp. 1649-1650.)
We review the juvenile court’s finding that the minor is likely to be adopted within a reasonable time under the substantial evidence standard, giving it the benefit of every reasonable inference and resolving any evidentiary conflicts in favor of affirming. (In re I.I. (2008) 168 Cal.App.4th 857, 869.)
Applying these principles to the present matter, by the time of the section 366.26 hearing, the minor had been visiting for transitional purposes with the prospective adoptive mother for several months, placed with her for a month, and was adjusting well to the placement. She had made significant progress with her behavioral issues since her removal from the guardian’s home a year earlier. Although there remained some emotional and behavioral concerns about the minor, the minor was improving, was in therapy, and the prospective adoptive mother had demonstrated her willingness and ability to address the minor’s needs in this regard by participating in PCIT and providing the minor with a permanent home. The prospective adoptive mother also indicated that the minor’s behavior was manageable and no longer severe. No one argued at the section 366.26 hearing that the minor was not adoptable, likely because the minor was living in a prospective adoptive home with no apparent impediments to adoption.
On appeal, appellant focuses on the minor’s history of behavioral and emotional problems in asserting that the evidence does not support a finding that the minor is generally adoptable. But, as we have previously noted, the fact that a family wants to adopt the minor is evidence that she is generally adoptable. (In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.) Furthermore, the minor’s behavior had improved since her removal from the guardian’s care. Her behavior was manageable and no longer severe. She was in therapy and continuing to improve.
Even if we were to assume there was some question as to the minor’s general adoptability, the minor was in a stable adoptive placement with a prospective adoptive parent who was aware of the minor’s problems and committed to providing a permanent home for her. Even a minor who otherwise might be considered difficult to place for adoption may be deemed likely to be adopted if a prospective adoptive family has been identified that is willing to adopt the child. (In re Sarah M., supra, 22 Cal.App.4th at p. 1650.) Thus, absent any evidentiary basis for questioning the feasibility of the minor’s adoptive placement, such placement was sufficient to support a finding that the minor is adoptable.
Usually, the issue of adoptability focuses on the characteristics of the minor, not on the existence or suitability of a prospective adoptive family. (In re Sarah M., supra, 22 Cal.App.4th at p. 1649; In re Scott M. (1993) 13 Cal.App.4th 839, 844.) Where, however, the social worker opines that the minor is likely to be adopted based, not on the general adoptability of the minor, but solely on the existence of a prospective adoptive parent who is willing to adopt the minor, inquiry into whether there is any legal impediment to adoption by that parent is appropriate. (In re Sarah M., supra, 22 Cal.App.4th at p. 1650.) “In such cases, the existence of one of these legal impediments to adoption is relevant because the legal impediment would preclude the very basis upon which the social worker formed the opinion that the minor is likely to be adopted. [Citation.]” (Ibid.)
Here, the social worker did not assert that the minor was adoptable solely upon the existence of the current prospective adoptive mother. In fact, the social worker reported that the minor was cute and energetic and that several families had expressed an interest in adopting the minor. However, even if the social worker had opined that the minor was adoptable solely due to the existence of the current prospective adoptive mother, the record reveals no evidence that there were any impediments to adoption.
Appellant has identified no legal impediment to this prospective adoptive mother adopting A.M. In fact, to the contrary, the prospective adoptive mother has an approved home study. Instead, appellant asserts the placement was unstable and tenuous because he speculates that the prospective adoptive mother may change her mind about adopting A.M. or be unable to handle A.M.’s behavior. We shall not engage in such speculation.
We also reject appellant’s assumption that this placement was likely to fail because the minor’s other two placements had failed. The first foster placement failed when the minor had only been removed from the guardian’s home for a few months and before much of the therapy the minor has since undergone. The second placement failed for reasons unrelated to the minor. Appellant’s speculation to the contrary is unsupported.
The prospective adoptive mother here had done more than simply assert a general interest in adopting the minor. She had undergone an adoptive home study, had the minor placed in her home, participated in PCIT with the minor, participated in reporting the minor’s progress to the court, appeared in court, and expressed a commitment to adopt the minor. She had been working with the minor for several months, had the minor in her home for at least a month, and found the minor’s behavior to be manageable. She further had the support of mental health care providers in handling the minor’s emotional and behavioral needs. This was ample evidence for the juvenile court to find the minor would be adopted within a reasonable time.
Appellant’s reliance on In re Carl R. (2005) 128 Cal.App.4th 1051, 1058 for the proposition that the juvenile court was required to further assess the prospective adoptive mother’s suitability is misplaced. The appellate court in In re Carl R., supra, expressly noted that, “as a general rule, the suitability of the prospective adoptive family does not constitute a legal impediment to adoption and is irrelevant to the issue of whether a child is likely to be adopted. [Citations.] If an inquiry into the suitability of prospective adoptive parents were permitted at the section 366.26 hearing, many hearings would degenerate into subjective attacks on those prospective adoptive parents – a result not envisioned by the statutory scheme. [Citation.]” (Id. at pp. 1061-1062.) The appellate court, however, carved out a small exception to the general rule that the juvenile court will not inquire into the suitability of prospective adoptive parents. In re Carl R. involved an eight-year-old child with cerebral palsy, severe quadriparesis, a seizure disorder, and severe psychomotor delay. The appellate court held that an “assessment of the adoptability of such a child must necessarily include some consideration of whether the prospective adoptive parents can meet that child’s needs, since if the prospective adoptive parents cannot meet the child’s needs, the child cannot properly be found to be adoptable.” (Id. at p. 1062, italics added.)
A.M.’s prospects for adoption here cannot be equated with those of a child experiencing severe physical disabilities requiring comprehensive care as in In re Carl R., supra. Under the circumstances in this case, it was unnecessary for the juvenile court to further explore the prospective adoptive mother’s general characteristics or abilities to care for the minor, as appellant urges now. If appellant had doubts as to the minor’s adoptability or believed the minor had special needs which the prospective adoptive mother may not be able to accommodate, it was incumbent upon him to examine witnesses to explore those concerns at the section 366.26 hearing. He failed to do so, and there was sufficient evidence supporting the appropriateness of the minor’s placement.
In sum, there was ample support for the juvenile court’s finding of adoptability.
DISPOSITION
The orders of the juvenile court are affirmed.
We concur: ROBIE , J., CANTIL-SAKAUYE , J.