Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, Carol Isackson, Judge, Super. Ct. No. J514824D-E
McINTYRE, J.
Andre W. appeals a juvenile court judgment terminating his parental rights to his minor children David W. and Z.V. (together, the minors) under Welfare and Institutions Code section 366.26. (Statutory references are to the Welfare and Institutions Code.) Andre challenges the sufficiency of the evidence to support the court's finding the minors were likely to be adopted if parental rights were terminated. He further contends the San Diego County Health and Human Services Agency (Agency) impermissibly pursued adoption as the minors' permanent plans without considering the paternal grandmother's requests for placement. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2006 three-year-old David and five-month-old Z.V. became dependents of the juvenile court and were removed from parental custody based on findings the family home was filthy and unsafe, their mother abused drugs and Z.V. tested positive for marijuana. The court ordered reunification services for both parents.
Andre did not participate in reunification services and his whereabouts became unknown. He was eventually located in prison. The mother began but discontinued drug rehabilitation. The paternal grandmother, who had been visiting the minors and attending court hearings, asked that her home be evaluated as a potential placement for the minors and sought de facto parent status. At the 12-month hearing, the court terminated services and set a section 366.26 selection and implementation hearing. The court denied the paternal grandmother's de facto parent application.
The minors had been living in the same foster home for the past 17 months. Their caregiver wanted to adopt them. David had a diagnosis of disruptive behavior disorder and was participating in therapy. His problematic behavior, including aggression toward Z.V. and episodes of encopresis, increased after visits with his parents.
The social worker assessed the minors as adoptable because they were young, healthy, physically attractive, affectionate and able to bond with others. Z.V. is a healthy 20-month-old girl who was hyperactive but developmentally on target. David is a handsome, physically healthy four-year-old boy who is lively and outgoing. After David was placed with his caregiver, many of his behaviors improved. However, David continued to be impulsive, hyperactive and have tantrums. His lack of impulse control put him at risk of harm and required close and constant supervision. A psychiatric evaluation showed David had intermittent explosive disorder, oppositional defiant disorder, posttraumatic stress disorder and attention deficit hyperactivity disorder (ADHD). He required psychotropic medication to address symptoms of aggression, hyperactivity and poor sleep.
The caregiver, who was aware of David's behavior issues and special needs, remained committed to adopting the minors. The caregiver was a licensed foster parent and had no criminal or child welfare history. She was able to meet the minors' needs and understood the financial and legal rights and responsibilities of adoption. The minors appeared to be bonded to her.
The social worker believed the minors should be adopted together because they are a bonded sibling set. If the caregiver could not adopt, there were five approved adoptive families in San Diego County interested in adopting a sibling set like these children.
The social worker recommended adoption as the minors' permanent plan. In her opinion, there was no beneficial parent-child relationship and thus, it would not be detrimental to the minors to terminate parental rights. Andre visited the minors about five times in 17 months. The social worker believed the relationship between the parents and the minors was that of extended family members. Any benefit the minors would gain from continuing the relationship with their parents was outweighed by the stability and security of an adoptive home.
At a contested selection and implementation hearing, the social worker testified there were currently four approved adoptive families for the minors should their caregiver not adopt them for any reason. These families were willing to adopt a child with some behavioral difficulties. Agency could not evaluate the paternal grandmother as a potential placement because she lived in a shelter and licensing regulations prevented such evaluations.
After considering the evidence and hearing argument of counsel, the court found the minors were likely to be adopted and none of the exceptions of section 366.26, subdivision (c)(1) applied to preclude terminating parental rights.
DISCUSSION
I
Andre challenges the sufficiency of the evidence to support the court's finding the minors are adoptable. He asserts: (1) David was not generally adoptable because of his serious behavior problems; and (2) the sibling set was not specifically adoptable because there were potential legal impediments to adoption by the minors' caregiver.
A
When reviewing a court's finding a minor is adoptable, we apply the substantial evidence test. (In re Josue G. (2003) 106 Cal.App.4th 725, 732; In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we must uphold those findings. We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or weigh the evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 52.) Rather, we view the record favorably to the juvenile court's order and affirm the order even if there is substantial evidence supporting a contrary conclusion. (Id. at pp. 52-53.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 947.)
The court can terminate parental rights only if it determines by clear and convincing evidence the minor is likely to be adopted. (§ 366.26, subd. (c)(1).) The statute requires clear and convincing evidence of the likelihood adoption will be realized within a reasonable time. (In re Zeth S. (2003) 31 Cal.4th 396, 406; In re Amelia S. (1991) 229 Cal.App.3d 1060, 1065.) In determining adoptability, the focus ordinarily is on whether a child's age, physical condition and emotional state will create difficulty in locating a family willing to adopt. (§ 366.22, subd. (b); In re David H. (1995) 33 Cal.App.4th 368, 378.) If the child is generally adoptable, we do not examine the suitability of the prospective adoptive home. (In re Scott M. (1993) 13 Cal.App.4th 839, 844.) However, "[w]hen a child is deemed adoptable only because a particular caretaker is willing to adopt, the analysis shifts from evaluating the characteristics of the child to whether there is any legal impediment to the prospective adoptive parent's adoption and whether he or she is able to meet the needs of the child." (In re Helen W. (2007) 150 Cal.App.4th 71, 80; In re Carl R. (2005) 128 Cal.App.4th 1051, 1061.)
B
Here, because the minors are a bonded sibling set, they are only generally adoptable to the extent each child is generally adoptable. Although the evidence shows Z.V. is generally adoptable based on her age, physical condition and emotional state, the evidence as to David's characteristics paints a different picture. At the time David was removed from parental custody, he had many developmental, emotional and behavioral problems. Some of these problems improved over time, but others persisted throughout the dependency proceedings. Despite receiving services, including weekly therapy, David continued to test limits and have temper tantrums. He had difficulty following directions, delaying gratification and tolerating frustration. When structure is imposed, he becomes defiant, agitated and angry. He endangered himself due to his lack of impulse control. According to a psychological evaluation, David was "acting out underlying emotional distress in maladaptive ways." The evaluator noted that David's behavioral problems and "intense level of need for basic emotional and physical support are factors that would be difficult for any parent figure to manage." David's psychiatric diagnosis confirmed this assessment. In addition to ongoing therapy, David required psychotropic medication to help regulate his difficult behaviors.
Further, although the record shows Agency had identified four approved adoptive families who were willing to adopt a child "with some behavior difficulties," there was no evidence these families were aware of the serious nature of David's behavior problems, which require committed and constant supervision. Even though David was young, physically healthy, handsome and affectionate, his significant and complex psychological and behavioral problems cannot be ignored. Clear and convincing evidence does not support a finding David was generally adoptable.
C
Nevertheless, David is adoptable because a particular caregiver is willing to adopt him as part of a bonded sibling set. At the time of the selection and implementation hearing, the minors had been living with their caregiver for 19 months and were bonded to her. The caregiver was employed as a nurse and was very skilled in meeting David's special needs. The record contains a preliminary assessment of the caregiver as required by statute (§ 366.22, subd. (b)(1)(D)): her social history; lack of criminal history or involvement with Child Protective Services; motivation for seeking adoption; duration and nature of relationship with the minors; ability to meet the minors' needs; understanding of the responsibilities of adoption and its legal and financial rights; and commitment to the permanent plan of adoption, especially her commitment to meeting the challenges of providing for David's care. (Cf. In re B.D. (2008) 159 Cal.App.4th 1218, 1233 [where minors had not been placed with family interested in adopting them, absence of preliminary assessment was legal impediment to adoption].)
Andre claims the court failed to inquire about a recent referral made as to the caregiver's level of care of the minors. However, the social worker reported the allegations of the referral were vague and unsubstantiated. The record does not show there were any legal impediments to adoption by the caregiver. (In re Brandon T. (2008) 164 Cal.App.4th 1400, 1410; In re Sarah M. (1994) 22 Cal.App.4th 1642, 1650 [general suitability to adopt is subjective matter which does not constitute legal impediment to adoption].)
D
Andre asserts there were some potential impediments to adoption because the caregiver had not completed a home study. However, there is no requirement an adoptive home study be completed before the court can find a minor is adoptable and proceed to terminate parental rights. (In re Brandon T., supra, 164 Cal.App.4th at p. 1411; In re Marina S. (2005) 132 Cal.App.4th 158, 166.) The minors' caregiver had begun the home study and nothing in the record suggests "there were any obstacles to completing it in a routine manner." (In re Brandon T., supra, 164 Cal.App.4th at p. 1411.) As the juvenile court found, the caregiver remains committed to adopting the minors, even after experiencing David's difficulties.
II
Andre contends Agency "railroaded" the adoption process by ignoring the paternal grandmother's repeated requests for placement of the minors. Preliminarily, we note the minors' placement and the paternal grandmother's ability to establish herself as a caretaker were not proper inquiries at the selection and implementation hearing. The findings to be made at that hearing—whether the minors are adoptable and if so, whether any of the enumerated exceptions to adoption apply—are limited and specific. (§ 366.26, subd. (c)(1)(A) & (B)(i)-(vi); In re Jennifer J. (1992) 8 Cal.App.4th 1080, 1090.) There is no window of evidentiary opportunity for a parent to show that in some general or specific way a minor's best interests would be served by considerations not set forth in section 366.26. (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164.)
In any event, there is nothing in the record to support Andre's claim Agency "thwarted" the paternal grandmother's efforts to care for the minors in order to advance its own adoptability agenda. We do not address Andre's contention, raised for the first time in his reply brief, that Agency's incentive to place the minors for adoption was purely financial.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J. HUFFMAN, J.