Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Tulare County Nos. JJV064044A, JJV064044B, JJV064044C Charlotte A. Wittig, Commissioner.
Marsha F. Levine, under appointment by the Court of Appeal, for Defendant and Appellant.
Kathleen Bales-Lange, County Counsel, John A. Rozum and Abel C. Martinez, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Poochigian, J., and Detjen, J.
Lori S. (mother) appeals from orders terminating parental rights (Welf. & Inst. Code, § 366.26) to her three children. She challenges the sufficiency of the evidence to support the juvenile court’s finding that the children were likely to be adopted. On review, we disagree and affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
Mother’s physical abuse and profound neglect of her children, as well as mother’s incarceration, led the juvenile court to exercise its dependency jurisdiction over the children and remove them from parental custody in September 2009. The juvenile court also denied mother reunification services (§ 361.5, subd. (e)), having found it would be detrimental to the children, and set the matter for a section 366.26 hearing to select and implement a permanent plan for them. It would be another year before the court found the children adoptable and terminated parental rights.
Children’s Placement History
When first detained in the summer of 2009, four-year-old Austin, his three-year-old half-sister (girl), and one-year-old half-brother were placed together in a foster home where they were described as “remarkably very loving and good children.” Unfortunately, Austin and the girl had been exposed to inappropriate adult role models and behaviors that in turn impacted their behaviors. The two had a history of being very impulsive and intrusive towards others. Consequently, they were referred for counseling. Both children exhibited many difficult and troubling behaviors. Austin received a preliminary diagnosis of “adjustment disorder with mixed anxiety and depressed mood.” The girl received a preliminary diagnosis of “adjustment disorder with mixed disburbance of emotions and conduct.”
The children had to be moved from their first foster placement in mid-October 2009 due to their foster mother’s health problems. Then, in less than 30 days, the children experienced three placement changes.
These changes in foster home placement affected and exacerbated both Austin’s and the girl’s symptoms. The children’s symptoms increased in frequency and severity and, as of December 2009, their behaviors were characterized as “demanding and out of control” by their therapist. The children were referred for a psychiatric and medication evaluation. The therapist also observed “[s]tabilization of placement will be a key factor to assist [the children] in reduction of symptoms.”
A stable placement, however, was not in the children’s immediate future.
As of the January 2010 date originally set for the permanency planning hearing, the children were in their fourth placement, which was not an adoptive placement. Also, a maternal relative who lived out of state was being evaluated for possible placement. At the request of respondent Tulare County Health and Human Services Agency (agency), the court continued the matter for 180 days in order to find a prospective adoptive home for the children.
In the meantime, the court authorized Austin’s and the girl’s treatment with psychotropic medication. The psychiatrist who evaluated the two children had diagnosed each of them with “Mood Disorder NOS.” Austin’s symptoms were aggressiveness, mood changes, shyness, sleep disturbance, and difficulty eating. The girl’s symptoms were aggressiveness, insomnia, tearfulness, and difficult control on dietary intake.
Within days of the January 2010 hearing, the children’s placement changed yet again at the foster parent’s request. Then, approximately three months later the children were moved out of state and placed with relative caregivers.
As of early June 2010, the agency was recommending that the court find the children adoptable and terminate parental rights. The children, by then five, four, and two years of age, were physically healthy and happy, although Austin and the girl still had behavior problems. However, reportedly the two were still receiving mental health services and some of their behaviors had improved with medication. The agency also identified the relative caregivers as the children’s prospective adoptive parents.
On the eve of the continued permanency planning hearing, one of the relative caregivers asked that the children be removed. She stated her health was adversely affected by trying to meet all the children’s special needs, including speech and occupational therapy, counseling services, and psychotropic medications, as well as their behaviors. Their behaviors consisted of aggressiveness towards peers and adults, sexualized talked, walking around the house at night, and hoarding food.
The agency in turn made arrangements to return the children to California. Although the children formed a large sibling set and had displayed some significant behaviors, it was still felt that the children were adoptable.
At the June 2010 permanency planning hearing, the matter was once again continued, although this time it was not due to the children. The court in turn postponed permanency planning until a hearing date in September 2010.
When social workers arrived to transport the children back to California, the adults quickly discovered the children had drastically regressed and worsened in their behaviors. Austin was especially aggressive and destructive. Once he was given his psychotropic medication, he clearly decompensated in his behavior, demeanor, and attitude. The girl also decompensated in terms of her behaviors with the medication, but not as dramatically as Austin. It appeared that the relative caregivers had not consistently administered the medication. All three children’s speech had radically declined in clarity and word count. The children were also extremely filthy. In hindsight, it appeared the relative caregivers did not suitably care for the children.
Upon the children’s arrival in California, the agency placed the children in a foster home where the family had experience fostering difficult children. The children also had a doctor’s visit, which resulted in Austin and the girl being taken off the psychotropic medication and diagnosed with treatable infections.
In mid-July 2010, the children moved again to what was reported as “an FFA prospective adoptive home.” Yet, three weeks later, the family asked that the children be removed due to their behaviors. Consequently, the children were moved into their ninth placement in early August 2010. From the outset, the children’s new foster parents were not interested in adoption. However, they were experienced caretakers and the focus and goal at the time was to stabilize the children’s behaviors. As of this latest change of placement, the agency predicted that unless the children’s behaviors stabilized and the children were participating in mental health counseling, any attempts at placing them with a prospective adoptive family would eventually be unsuccessful and the children would be going from placement to placement.
By mid-September 2010, the ninth placement continued to be appropriate for the two younger children. However, due to Austin’s extreme behaviors, the foster parents gave a seven-day notice requesting his removal. At this time, Austin was back on psychotropic medications and so far had not improved his behaviors. By contrast, the girl appeared to be doing well behaviorally without medication. Both children were either still in the process of being evaluated for mental health counseling services or just resuming counseling.
It had been the consensus of the current and past several caretakers that it was very difficult to parent all three children together and manage their behavioral issues. Austin’s behaviors were more severe by comparison, but all three children appeared to be feeding off of each other’s behaviors. The youngest child, by then two years old, had started modeling Austin’s negative behaviors. Austin’s behaviors also suggested a lack of attachment to his younger siblings.
It appeared that if the children were separated, the agency could identify prospective adoptive parents for them. Separation of the children might allow caretakers to better address the children’s difficult behaviors and appeared to be the children’s best chance for stability in placement. Austin needed to be in a placement where a caretaker could focus on his needs and address his behavioral issues, without other children around. Thus, the agency developed a plan to separate Austin and keep the younger children together since their behaviors appeared to be more manageable. It was felt that the younger children’s behaviors did not preclude them from adoption planning given their ages as well as their medical and developmental history. At that point, their behaviors could be managed with diligent supervision.
This change in approach led to the appointment of separate counsel for Austin so that the attorneys for the children could evaluate the impact of separation on their respective young clients. It also led to a further postponement of the permanency planning hearing for the children.
Meanwhile, the agency’s social worker was interviewing a couple who was interested in Austin and aware of his extreme behaviors. The couple did not have other children in their home, and the wife was a special education teacher at the school Austin attended. Austin had started school in August and if he was out of control, his teacher would ask the special education or resource teacher to take Austin out for a walk. The special education teacher had also been consulted regarding Austin’s needs at school. The couple was interested in adopting Austin, but they were also willing to provide foster care for him. Austin was placed with the couple in late September 2010.
October 2010 Permanency Planning
The agency recommended parental rights be terminated for all three children. The agency recommended identifying prospective adoptive caretakers for the younger children “once their behavioral issues have stabilized.” As for Austin, the agency recommended adoption as the goal “once his behaviors are stabilized.” All three children were physically healthy, developmentally on target, and happy.
Austin, the only child attending school, was performing at or above grade level. He was making progress interacting with other children, but still was aggressive. His current caregivers wished to adopt him. His foster mother, who worked at Austin’s school as a special education teacher, understood the needs of a child with behavioral issues. In addition, Austin liked his new home and wanted to stay there. He seemed happy and adjusted to his new home. Austin’s new medication also appeared to be helping him with his behavior.
According to the children’s Court-Appointed Special Advocate (CASA), it was in the best interest of all the children for Austin to be adopted into a separate home. Austin’s behavior problems were worse when he was with his siblings and he did not appear to have a bond with them.
As for the younger children, they appeared to be adoptable despite their behaviors. They appeared to respond well to a structured environment. A lack of structure and defined boundaries previously were contributing factors to their difficult behaviors. Their current caretakers were stabilizing the younger children’s behaviors. Also, following Austin’s removal, the younger children’s behaviors were more manageable and appeared to be improving somewhat.
The younger children’s caretakers since August were only interested in fostering children. Meanwhile, the agency identified two sets of possible prospective adoptive caretakers for the younger children. These families had received information about the younger children and were interested in disclosure meetings. However, the agency did not want to proceed until there was a decision about termination of parental rights. The agency explained it did not want to move the children into prospective adoptive homes, “then not have parental rights terminated and have to move [the children] again because the interested caretakers are only interested in adoption.”
The agency did not clarify what a disclosure meeting was.
As of mid-October 2010, CASA observed from her visits with the younger children that their behavioral issues were improving. They also appeared to be happy and adjusted. CASA agreed with the agency’s recommendation to terminate parental rights.
At an October 19, 2010 hearing, the attorneys for the children agreed with the agency’s recommendation to terminate parental rights. Neither attorney was raising a sibling exception to termination. Austin’s attorney observed that since he was separated from his siblings, the child had done significantly better and had not requested visits with them. Mother was not present and her attorney had nothing to offer in the way of evidence or argument.
After reviewing all of the evidence presented, the juvenile court found by clear and convincing evidence that the children were adoptable. The court acknowledged previously having had some reservations. However, with the new information provided, including that regarding the younger children’s adoptability, the court was satisfied that these children were likely to be adopted. The court then terminated parental rights.
DISCUSSION
Mother presumes the court found that Austin was “specifically” adoptable because he was in a potential adoptive home and the younger children were “generally” adoptable because two families identified as possible prospective adoptive caretakers had received information about the children. Based on her presumptions, mother contends neither of these findings was supported by substantial evidence. She adds there was only the social worker’s opinion, and therefore the orders terminating her rights should be reversed. We disagree.
The adoptability issue at a permanency planning 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 (Sarah M.).) It is not necessary that the child already be in a potential adoptive home or that there be a proposed adoptive parent “ ‘waiting in the wings.’ ” (In re Jennilee T. (1992) 3 Cal.App.4th 212, 223, fn. 11.)
Conversely, the existence of a prospective adoptive parent, who has expressed interest in adopting a dependent child, constitutes evidence that the child’s age, physical condition, mental state, and other relevant factors 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. (Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.) Having reviewed the record, as summarized above, we conclude there was substantial evidence to support the court’s adoptability finding.
Mother’s presumptions regarding “specifically” and “generally” adoptable findings ignore the fact that the court made no such findings. Mother’s argument also obfuscates the adoptability issue before the juvenile court. As this court explained in In re G.M. (2010) 181 Cal.App.4th 552, 562, not all dependency cases fall neatly into one of two scenarios: one, in which the availability of a prospective adoptive parent is not a factor whatsoever in a social worker’s adoptability assessment; or two, where a child is likely to be adopted based solely on the existence of a prospective adoptive parent.
“These scenarios represent opposite ends on the continuum of when a child is likely to be adopted. However, many adoption assessments that recommend an adoptability finding fall somewhere in the middle. They consist of a combination of factors warranting an adoptability finding, including, as in this case, the availability of a prospective adoptive parent. This is the reality we confront, notwithstanding appellate arguments that assume a child is either generally adoptable without regard to a prospective adoptive parent or specifically adoptable based solely on the availability of a prospective adoptive parent.” (In re G.M., supra, 181 Cal.App.4th at p. 562.)
Here, there was a combination of factors, which supported the juvenile court’s adoptability finding as to all three children. Save for the children’s behavioral problems, all of their other attributes favored the likelihood of adoption. The children were young, healthy, developmentally on target, and happy. Only Austin was old enough for school, but even he did well in school, save for his behavioral problems, and was performing at grade level.
Austin clearly had serious behavioral problems, which upset numerous previous placements for him and the younger children. However, for the first time, he had been separated from the younger children and placed in a home as the only child. In his new environment, he was showing signs of improvement. In addition, Austin liked his placement and wanted to remain there. His current caretakers also were willing to adopt him.
To the extent mother emphasizes that less than a month had elapsed since Austin entered his current placement and claims there was no proof that the prospective adoptive parents would want or were able to meet Austin’s special needs, she overlooks other evidence before the court. Austin’s prospective adoptive mother was a teacher at his school and already knew him, his difficulties, and his needs when she and her spouse requested placement of Austin for the purposes of adoption. Given the improvement Austin was making in their home, the juvenile court could reasonably infer that the prospective adoptive parents were equipped to meet his special needs.
As for the younger children, while they were not in a current adoptive placement, we do not interpret the agency’s cautious approach to their placement before rights were termination as inexplicable or incompatible with the law, as mother argues. These children, like Austin, needed a stable placement. It was the lack of stability and the multiplicity of placements that had exacerbated the children’s behavioral issues. Also, we remind mother that the law does not require that a child already be in a potential adoptive home or that there be a proposed adoptive parent waiting in the wings in order for a court to find a child adoptable. (In re Jennilee T., supra, 3 Cal.App.4th at p. 223, fn. 11.)
Mother also claims there can be no dispute that the younger children’s behavioral issues had not yet stabilized. Yet, in so arguing, mother dismisses the evidence that their behaviors were stabilizing and did not preclude the younger children’s adoptability.
The younger children’s behavioral problems could be managed with diligent supervision and were more manageable than Austin’s. Since Austin no longer lived with them, the younger children could no longer feed off his behaviors, and the youngest child was no longer in a position to model Austin’s negative behaviors. The younger children were also showing signs of improvement and responded well to a structured environment since Austin’s removal. In addition, the girl appeared to be doing well behaviorally without medication, unlike Austin. Finally, the agency had identified two sets of possible prospective adoptive caretakers who received information about the younger children and were apparently interested in learning more and adopting.
Under these circumstances, we conclude there was substantial evidence to support the juvenile court’s adoptability finding as to each child.
DISPOSITION
The orders terminating parental rights are affirmed.