Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JD4824.
DUARTE, J.
M.W. (mother) appeals from the juvenile court’s orders terminating her parental rights and ordering a permanent plan of adoption as to minor A.V., Jr. (A.V.). (Welf. & Inst. Code, § 366.26.) A.V., Sr., the father, did not appeal.
Further undesignated statutory references are to the Welfare and Institutions Code.
Mother contends the juvenile court erred by finding that A.V. is adoptable. Concluding that substantial evidence supports this finding, we shall affirm. In doing so, we note that A.V.’s case serves as a stark reminder of the many years of emotional trauma and instability that can occur in a young child’s life during juvenile dependency proceedings when cases are permitted to percolate their way through the system at their own pace, as we explain throughout.
FACTUAL AND PROCEDURAL BACKGROUND
A.V. is 12 years old. He is one of eight minors originally included in this proceeding, and the only one still subject to the juvenile court’s jurisdiction. The case began in San Joaquin County in late 2003, and is currently in Calaveras County.
I
Detention and Removal in San Joaquin County
On November 6, 2003, the San Joaquin County Human Services Agency (the Agency) filed a section 300 petition as to four-year-old A.V. and his siblings and half siblings. The petition alleged that the parents’ home was unsanitary and hazardous, the minors lacked supervision, mother had an extensive history with Child Protective Services (CPS), as well as a criminal history that included convictions for possession of illegal drugs and possession of illegal drugs for sale, and father was incarcerated. A.V. was ordered detained the next day. The jurisdiction hearing originally scheduled for December 2, 2003, was continued to December 16, 2003. An amended petition adding further allegations related to the failure to protect allegation (§ 300, subd. (b)) was filed on December 15, 2003.
On December 16, 2003, the juvenile court took jurisdiction over A.V.’s case, accepting no contest pleas from both parents, and A.V. remained detained on the amended petition. His case was continued for disposition to January 13, 2004. The disposition of A.V.’s case was then continued for numerous reasons that apparently had nothing to do with A.V.; from what we can determine from the record, the continuances were for contested paternity and jurisdiction hearings related to mother’s other children. The record fails to show even preparation of a dispositional report for A.V. until mid-May, when the Agency filed a report and an amended report on May 17 and May 24, 2004, respectively. The reports described A.V. as “gregarious [and] highly energetic with a domineering nature, ” but he also presented with “impulsiveness, inattentiveness, and hyperactivity.” He had been seen by a therapist, and referrals for continued therapy and mental health evaluation were made on his behalf.
A.V.’s disposition hearing was finally held on September 23, 2004--more than 10 months after he was first detained and more than nine months after jurisdiction was taken. At that hearing, the juvenile court declared A.V. and four of his siblings dependents of the court and removed them from mother’s custody, with reunification services offered to the parents.
We note that section 352, subdivision (b), requires that exceptional circumstances justify a continuance of greater than 60 days between detention and disposition, and further that “[i]n no event shall the court grant continuances that would cause the hearing pursuant to Section 361 to be completed more than six months after the hearing pursuant to Section 319.”
A court-ordered psychological evaluation found that A.V. suffered from Attention Deficit Hyperactive Disorder (ADHD), together with companion issues, and the juvenile court authorized the administration of psychotropic medication.
A status review report filed November 15, 2004, stated that A.V. continued to function below his age level and have control issues with his peers. He was, however, beginning medication and continuing therapy and it was hoped that he would be able to overcome his behavioral problems and difficulties with school. The report indicated that A.V. was deemed adoptable as of December 31, 2003.
At the review hearing on November 24, 2004, the social worker noted that A.V. was an “ADHD child” who “has had a few failed placements....” He was, however, in the process of having his medication re-evaluated and visiting with R.J., his maternal aunt, with an eye toward placement with her. The juvenile court continued the existing orders, granted the social worker discretion to return A.V. to mother or to place him with R.J., and set the matter for dependent review, termination of reunification services, and permanency planning on May 4, 2005. A.V. was subsequently placed with R.J.
On February 10, 2005, the Agency filed a section 387 petition requesting A.V.’s return to foster care because R.J. had been unable or unwilling to meet A.V.’s needs, including properly administering his medication for his ADHD, or controlling his behavior--he had suffered a broken femur while in the care of a babysitter who admitted she had deliberately sat on the five-year-old child. On February 14, 2005, the juvenile court ordered A.V. removed from R.J.’s home and placed in foster care.
After his removal from R.J., A.V. adjusted well to foster care and was described as well behaved and a “good kid.” A status report filed on May 31, 2005, reiterated that a joint adoption assessment had previously found A.V. adoptable; the Agency’s intent as to A.V. was to transition him to an adoptive home in the event that reunification efforts failed. The report also recommended terminating the parents’ reunification services and setting a section 366.26 hearing, noting: “The mother and father have had eighteen months to complete their case plans, which required parenting education, substance abuse treatment, attain [sic] suitable residence, comply with orders of the court and for the mother a psychological evaluation. Only three have been successfully completed over the past 18 months, parenting education, comply with the orders of the court, and for the mother the psychological evaluation.”
On July 5, 2005, a mere 35 days after the filing of the previous report recommending terminating A.V.’s parents’ services and indicating that A.V. was doing well in foster care, the social worker asked the juvenile court for permission to return A.V. to his parents. The court inexplicably granted the request without any inquiry or supplemental findings, and A.V. was returned home.
Indeed, it appears that discretion was given to the Agency to return A.V. to his mother’s house the day after the report was filed, but it is unclear from the record as to what prompted this order.
II
A.V.’s Return to his Parents
Not surprisingly, A.V.’s situation deteriorated rapidly after his return home and his parents once again failed to comply with their case plans and cooperate with the Agency. The Agency filed a section 387 petition on September 23, 2005, seeking A.V.’s removal from the parents’ custody. A status report also filed on September 23, 2005, discussed at length the parents’ poor performance in the three months since A.V.’s return, and concluded that leaving A.V. in his mother’s care would place him at risk, recommending removal from mother for his safety and well-being.
Examples include failure to get A.V. to counseling and medication/mental health services, mother’s resistance to services and refusal to communicate with the Agency, delay in securing food stamps for A.V. and enrolling him in school, and violating her own probation, resulting in a jail sentence.
At the October 7, 2005 hearing, held a mere two weeks after the report’s filing, the Agency--again, inexplicably--withdrew the section 387 petition and the court ordered it dismissed without prejudice. A.V. remained in the home, with parents who at the hearing had to be ordered by the court to respond to the Agency’s phone calls.
The record reveals no reason for the abrupt change of mind as to whether A.V. was suffering harm in his parents’ care. No separate findings were made that might serve to contradict those proposed in the report and substantiated by the report itself, which was admitted into evidence. A.V.’s name was merely scratched out from where he had previously been listed with his siblings as part of proposed findings and orders that included his removal.
After a number of continuances from the original date set in April 2006, A.V.’s first review hearing was held on August 11, 2006--13 months after he was returned home. That same day, the Agency filed a section 387 petition requesting A.V.’s return to foster care. The petition alleged that the parents had not complied with their case plan or cooperated with the Agency, had not obtained further mental health counseling for A.V., had not ensured that he attended school regularly and took his medication, and had not maintained a stable residence. The petition also alleged that there were no known relatives with whom A.V. could be placed.
This information mirrored information contained in the status review report filed July 14, 2006, less than a month before the section 387 petition was filed. The report noted that the parents had made little to no progress with their case plans, had provided marginal care for A.V., had caused A.V. to be truant in school, had been evasive and difficult to maintain contact with, and were not meeting A.V.’s mental or emotional needs. The report expressed concern regarding A.V.’s safety, “both emotionally and physically.”
Inexplicably, despite all of the above, as of July 14, 2006, 28 days before it filed a section 387 petition over the very same issues expressed in the report, the Agency called A.V.’s current placement “adequate and appropriate” and recommended six more months of services for the parents.
III
A.V.’s Return to Foster Care and Removal at Disposition
On August 11, 2006, the juvenile court ordered A.V.’s temporary placement in shelter care and continued jurisdiction for a contested hearing on the section 387 petition to September 8, 2006. A.V. was seven years old and was neither receiving mental health services nor regular medication, due to his mother’s inattention. At school, he had truancy and behavior control issues.
At the continued hearing on the section 387 petition, held on November 17, 2006, after hearing testimony from the parents and the social worker, the juvenile court found the petition true and set a dispositional hearing for December 20, 2006.
The record is silent as to why the matter was continued from early September to mid-November 2006.
That hearing was not held until June 6, 2008. The limited information in the record regarding the reasons for the multiple continuances does not support an 18-month delay from the jurisdiction to the disposition hearings on the section 387 petition after the parents had already consumed over 18 months of services.
The disposition report, filed March 3, 2007, summarized the long history of removals and near-removals, foster care, and returns home that A.V. had suffered. It also described A.V. as “a child that presents with difficult behaviors to manage. He continues to challenge his foster parents, his teacher, the principal and anyone else in authority over him. At times he can be a model student and child. He is a very handsome seven-year-old who does seek approval and acceptance. His behaviors seem to improve with medication and the Agency is pursuing a psychological evaluation from UC Davis to further evaluate his needs.” It added that “A.V. is not adoptable due to his behaviors and the bond he has with his parents” and recommended that he be placed in a planned permanent living arrangement. This appears to be the first time A.V. had been specifically described by the Agency as “not adoptable.”
A status review report filed November 8, 2007, stated that A.V., now taking his ADHD medication regularly, had adjusted well to his current foster placement. Though still slightly below grade level in school, he was not misbehaving there. He sometimes displayed opposition and defiance in the foster home, however, especially after visiting his parents. He continued to wonder why he could not go home. The parents’ failure to visit regularly and to meet his needs when he was with them was affecting him negatively. The Agency now recommended referring A.V. for adoption.
A supplemental status review report filed February 29, 2008, recommended instead that A.V. be referred “for at least permanency planning if not adoption.” Since November 2007, when A.V. began to have more regular and extended visits with the parents, his behavior had deteriorated. He had been dismissed from an after-school program, then suspended from school, and had allegedly physically abused a neighbor girl.
At the dispositional hearing on June 6, 2008, the parents submitted on the record. The juvenile court found by clear and convincing evidence that A.V.’s return to the parents would create a substantial risk of detriment to him. The court also terminated the parents’ reunification services and adopted the other findings and orders recommended in the latest status review report.
A status review report filed November 21, 2008, stated that A.V. was recently assessed as not adoptable because “[t]he parents have regular visitation and adoption would not be in the best interest of the minor.” He still said he wanted to live with his parents.
IV
Transfer to Calaveras County
On January 20, 2009, because the parents had moved to Calaveras County, the juvenile court ordered the case transferred there. In February 2009, the Calaveras County Juvenile Court accepted the transfer in and adopted all orders previously issued, including A.V.’s placement in a San Joaquin County foster home, counseling in San Joaquin County, and weekend visitation with the parents.
A status review report filed May 12, 2009, recommended the permanent plan of “a planned permanent living arrangement with a specific goal to return home.” A.V. had been moved to Calaveras County when the case was transferred and had adjusted well to his first foster family. Unfortunately, he was moved to attend a different school--one closer to his parents that his sibling was attending; just as he was moved, his parents lost their house and moved back to San Joaquin County, taking the sibling with them.
Not surprisingly, A.V.’s behaviors once again deteriorated and he was again removed from his foster placement. At the time of the report, he was in a placement that appeared to be working out, was performing adequately in school, and had not shown physical aggression at his new placement; though he “need[ed] redirection in class, it [wa]s not far above the level that other students need.” Yet on November 5, 2008, prior to the transfer, A.V. had been assessed as “not adoptable.”
At a periodic permanent plan review hearing on June 2, 2009, the juvenile court adopted the recommended findings and orders and scheduled a further review hearing for December 1, 2009.
V
A.F.
A status review report filed November 16, 2009, announced a surprising development: in August 2009, Calaveras County Works and Human Services Agency (Human Services) had located a maternal aunt, A.F., living in Eureka, California, with her husband, who was willing to accept placement of A.V. When A.F. agreed to take him in, A.V. said: “[T]his is the best day of my life being able to go live [with] my aunt. I can’t wait to be with family and out of foster care.”
The record does not reveal why the Agency did not learn of A.F.’s existence long before 2009 when Human Services was able to locate her within seven months of the transfer-in hearing.
In the time since A.V. had moved into A.F.’s home, he had bonded with her and others there, his behavior had improved (even though he was temporarily off medication), and he had started to make friends in school. A.F. intended to be a permanent part of A.V.’s life, and both would consider adoption if A.V.’s parents could not reunify with him. A new assessment by a state adoptions specialist, endorsed by the social worker, recommended discussing a permanent plan of adoption or guardianship with A.V. and A.F. during the next six months.
At the status review hearing on December 1, 2009, the juvenile court adopted the recommended findings and orders, including a permanent plan of placement with A.F. with the specific goal of adoption, and set the next review hearing for June 1, 2010.
A status review report filed May 17, 2010, recommended setting a section 366.26 hearing within 120 days to consider a permanent plan of adoption with the current care provider, A.F. A.F. and A.V. were now willing to pursue adoption because the parents had not maintained contact with A.V. or completed their case plan services. The home study process had begun. A.F. was ensuring that A.V.’s emotional, educational, and physical needs were being met. He was performing well in school and participating in intramural sports for the first time, with the help of medication to keep him focused. He was also receiving regular counseling for feelings of abandonment and loss.
The parents’ whereabouts were unknown. They had not remained in contact with Human Services since their move, they were apparently separated, and the father had recently been arrested for DUI and drug possession. A.F. reported that mother, whom A.F. believed to be using drugs again, had made threats and accusations against her and her husband.
At the status review hearing on June 1, 2010, at which the parents did not appear, the juvenile court adopted the recommended findings and orders.
The social worker filed a declaration of due diligence as to Human Services’s attempts to locate the parents.
The section 366.26 report, filed September 9, 2010, recommended termination of parental rights and adoption as the permanent plan. A.V. was now content in A.F.’s home and wished to be adopted by her. The parents had not had an approved visit with A.V. since December 2009 and had not maintained contact with Human Services.
An attached adoption assessment dated August 17, 2010, stated that A.F. was going through a divorce and would be moving out of her present residence, along with A.V. She had assured him that she was still totally committed to him and still wanted to adopt him. She appeared able to succeed as a single parent, with the support of family and friends. She was employed as a medical technician and was studying to become a registered nurse. She had no biological children. The social worker conducting the home study assessment found that A.F. had demonstrated good parenting practices, had secured access to medical care, physical therapy, and counseling for A.V., and had taken an active interest in his school progress, including attempts to get him assessed for special education services as needed. She understood and was prepared to accept the responsibilities of an adoptive parent.
VI
Termination of Parental Rights
On October 20, 2010, at the scheduled section 366.26 hearing, the parents were not present. Mother’s counsel stated that she wanted to oppose the adoption and he had intended to call her to testify, but he did not offer any argument or evidence. The juvenile court terminated both parents’ parental rights, and adopted the additional recommended findings and orders, including the finding by clear and convincing evidence that A.V. is likely to be adopted.
DISCUSSION
I
Substantial Evidence Supporting A.V.’s Likely Adoption
“If the court determines, based on the assessment... and any other relevant evidence, by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption.” (§ 366.26, subd. (c)(1).) Mother contends the juvenile court’s finding that A.V. was adoptable is not supported by substantial evidence. Mother’s arguments are misplaced.
A substantial evidence challenge to a finding of adoptability may be raised for the first time on appeal. Therefore, mother’s failure to object to the recommendation of adoption in the juvenile court does not forfeit the issue. (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1561; In re Erik P. (2002) 104 Cal.App.4th 395, 399.)
We review the juvenile court’s finding that the child 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.) That is, we must determine whether the record contains substantial evidence from which the court could find clear and convincing evidence that the child was likely to be adopted within a reasonable time. (In re B.D. (2008) 159 Cal.App.4th 1218, 1232.)
Determination of whether a child is likely to be adopted focuses first upon the characteristics of the child. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) The law does not require the juvenile court to find before terminating parental rights that a dependent child is “generally adoptable, ” or that additional approved families are willing and able to adopt the child if a prospective adoptive placement falls through. (In re A.A. (2008) 167 Cal.App.4th 1292, 1313-1314.) The fact that a prospective adoptive parent who already has custody of a child wants to adopt him is evidence that the child is likely to be adopted by that prospective adoptive parent or some other in a reasonable time. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154; In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1651.)
Mother contends that A.V. is not generally adoptable because of his age and his troubled history, and he is not specifically adoptable by A.F. because her marital situation creates a legal impediment to adoption. We disagree with both arguments, but only need address A.V.’s specific adoptability by A.F.
The record shows that A.F. took A.V. into her home, well aware of his age and his troubled history. They bonded from the start. A.V.’s behavior improved dramatically. A.F. has provided him with unwavering support; she has also secured the expert help he needs to function in school and to deal with the emotional traumas of his past. For the first time in his life, he is performing up to his capacity both academically and socially, and he is evidently happier than he has ever been before. Both A.F. and A.V. want to proceed to adoption. The adoption assessment, written with knowledge of A.F.’s pending divorce, expressly found her fully capable of raising A.V. as a single parent. Mother cites no contrary evidence, and we see none in the record. Therefore, it is likely that A.V. will be adopted by A.F. within a reasonable time, unless there is a legal impediment to such adoption. (See In re A.A., supra, 167 Cal.App.4th at pp. 1313-1314; In re Lukas B., supra, 79 Cal.App.4th at p. 1154; In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1651.)
II
Legal Impediment to Adoption
Mother asserts that Family Code section 8603 creates a legal impediment to this adoption. This statute provides: “A married person, not lawfully separated from the person’s spouse, may not adopt a child without the consent of the spouse, provided the spouse is capable of giving that consent.” According to mother, the record does not show that A.F.’s estranged spouse consents to her adoption of A.V. Mother concedes that she did not raise this argument below, but asserts the contention is not forfeited because “the existence of the potential adoptive placement was the sole basis for the adoptability finding.” Even assuming for the sake of argument that her latter assertion is correct, we disagree with mother as to both forfeiture and the merit of her claim.
“[E]vidence of a legal impediment to adoption under the Family Code by a prospective adoptive parent is relevant when a social worker’s opinion that a dependent child will be adopted is based in part on the willingness or commitment of an identified prospective adoptive parent.” (In re G.M. (2010) 181 Cal.App.4th 552, 562.) However, a party wishing to raise the claim of a legal impediment to adoption must do so at trial; failure to do so forfeits the issue on appeal. (In re G.M., supra, 181 Cal.App.4th at pp. 563-564.)
Mother’s claim that the record is silent on whether A.F.’s spouse consents to the adoption does not avoid forfeiture. Because mother “did not object to the department’s preliminary assessment as inadequate in this regard, [she has] forfeited the opportunity to now place blame for the silent record on the department.” (In re G.M., supra, 181 Cal.App.4th at p. 564.)
In any event, Family Code section 8603 on its face does not apply to persons lawfully separated from their spouses. On this record, it appears that A.F. intends to lawfully separate from her spouse in the near future (if she has not already done so), making his consent to her adoption of A.V. legally irrelevant. If mother wished to prove otherwise, it was up to her to do so at trial. She may not win reversal based on speculation on what the evidence might have shown had she raised the issue at the proper time. (In re G.M., supra, 181 Cal.App.4th at p. 564.)
Because substantial evidence supports the juvenile court’s finding that A.V. “is likely to be adopted” within a reasonable time, it does not matter whether A.V. is deemed generally adoptable.
We note that neither the adoption assessment nor the section 366.26 report identified any characteristics of A.V. as he is now that would make him difficult to place with other prospective adoptive parents. His primary difficulties with prior placements stemmed from his attachment to his parents and his behavior issues, both of which have been mitigated by his parents’ voluntarily absenting themselves from his life and his aunt’s careful attention to his mental health needs, including regular counseling and proper administration of medication.
We conclude that the juvenile court’s finding that A.V. was likely to be adopted is amply supported by the evidence.
We end with the observation that the timelines contained in the Welfare and Institutions Code are intended to operate to protect not only the rights of parents, but of their children as well. In this case, A.V. languished in foster care from November 2003, at which time he was an adoptable, gregarious four year old with manageable ADHD, to August 2009, at which time he was a 10 year old with a track record of unmanaged mental health issues, blown placements, and unimaginable angst. His many placements were further disrupted by a lengthy return to, as well as periods of unsupervised visits with, his parents. His parents were clearly unable and/or unwilling to properly care for him, despite exhausting the 18 months of services to which they were (even arguably) entitled and receiving many more months of services. Many hearings in his case were continued for months and even years without any apparent cause.
As of this writing, A.V. is 12 years old and still has not achieved permanency. The juvenile court did not err in providing him with the opportunity to do so.
DISPOSITION
The orders terminating mother’s parental rights and ordering a permanent plan of adoption are affirmed.
We concur: ROBIE, Acting P.J., BUTZ, J.