Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. J207258, Kyle S. Brodie, Judge.
Christy C. Peterson, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruth E. Stringer, County Counsel, and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.
Valerie N. Lankford, under appointment by the Court of Appeal, for Minor.
OPINION
McKinster, J.
A.M., the mother of two-year-old D.S. (hereafter D.), appeals an order terminating her parental rights and selecting adoption as D.’s permanent plan. She contends that the juvenile court’s finding that D. is adoptable is not supported by substantial evidence. We disagree, and we therefore affirm the order.
PROCEDURAL AND FACTUAL HISTORY
A.M. (hereafter mother) was a court dependent with one child when D. was born in January 2006. Mother and her daughter, J.L., had been placed in foster care when they were both removed from the custody of the maternal grandmother. Mother left the placement with J.L. She left the child with friends who were unable to care for her and who ultimately called the Department of Children’s Services (DCS). J.L. was placed with mother’s grandmother, who subsequently adopted J.L. after mother’s parental rights were terminated.
DCS filed a petition pursuant to Welfare and Institutions Code section 300 as to D., alleging that mother’s history of impulsive behavior, including leaving her placement with J.L. and not having the means to provide food, shelter and medical care for J.L., put the newborn D. at risk as well. The court ordered D. detained and placed him, along with mother, in a group home which offered services for teenaged mothers.
All further statutory references will be to the Welfare and Institutions Code unless otherwise indicated.
The court found D. to be a dependent child and removed him from mother’s custody. Both remained placed at the group home. The court ordered reunification services for mother. D.’s alleged father was incarcerated and was in any event ineligible for services.
Mother reported difficulties in the group home and requested placement in the home of a nonrelative extended family member, A.G. DCS approved the placement. Mother and D. were transferred to A.G.’s home. A status review report indicated that both were doing well in that placement. Mother was attending school regularly and cared for D. when she was at home.
At the six-month review, D. was continued in his placement with A.G., along with mother. Six months later, a status review report recommended that the placement continue and that services continue to be provided to mother. The report stated that D. had been referred to a specialist because of an unspecified eye problem. Otherwise, D. was happy and healthy and developmentally on target.
Mother wanted to emancipate from foster care and live independently with D. She was working toward her GED. Appropriate services toward that goal were ordered, and the 12-month review hearing was set contested. However, the addendum report dated June 21, 2007, stated that mother and A.G. had missed six medical appointments which had been set to address D.’s eye problem. He had been diagnosed with blocked tear ducts. The blockage made it difficult for D.’s eyes to maintain the correct amount of fluid. If uncorrected, the condition could result in irreparable damage to the eyes, including loss of vision.
Before the pretrial settlement conference held on June 22, 2007, mother absconded with D. She had returned with him before the continued settlement conference. At the 12-month review hearing, mother submitted on the recommendation for continued services. The court ordered DCS to ensure that D. did not miss any further medical appointments.
The status review report dated September 10, 2007, recommended terminating reunification services and setting a section 366.26 hearing to establish a permanent plan of adoption for D. The report stated that in June 2007, mother had left the placement she shared with D. and was placed with another relative in Lancaster. She left that home on August 23, 2007. She had not contacted anyone since leaving that placement to inform them of her whereabouts.
The social worker stated that mother had continued to be impulsive and immature. She exhibited little sense of responsibility. DCS had twice paid for her to take the GED test, but she had failed to take the test both times. She had obtained a job, but had attended only two days of orientation and had failed to return. Her actions had shown that she could not care for D. or maintain healthy relationships with others. The social worker found it necessary to look at other relatives for potential permanent placement.
Mother failed to appear at the contested 18-month review hearing. After testimony by the social worker, A.G. and a therapist who had treated mother, the court terminated services and set a section 366.26 hearing.
DCS had arranged for D. to have surgery on his eyes on December 6, 2007. The social worker visited A.G. and reminded her of his upcoming surgery. She stressed to A.G. the need to take D. to his appointment. A.G. became angry, and stated that her work schedule made it difficult for her to attend to D.’s medical needs. She said that DCS had too many rules and that they should remove D. from her home immediately. A section 387 petition was filed, stating that A.G. was no longer willing to care for D. On November 29, 2007, the court removed D. from A.G.’s care and placed him in the custody of DCS and in a foster family agency home, where his medical needs could be provided for. Mother was allowed monthly supervised visitation.
According to the jurisdiction and disposition report dated December 20, 2007, D.’s surgery had been postponed until February because D. had had diarrhea for two weeks. (Elsewhere, the report states that he had diarrhea for five days.) D. was a playful, energetic child. He was adjusting well to his placement. His sleeping habits were good. However, he played roughly and was destructive. He would kick, throw things and hit if he did not get his way, but he otherwise did not cry often, and he enjoyed being chased. He appeared never to get full, and if allowed would eat constantly. His speech appeared to be delayed. He would grunt and/or point if he wanted something, and the social worker reported that D. did not utter a single word during an eight-hour visit unless prompted. DCS obtained court approval for D. to attend an early intervention program to address his aggression, short attention span, frustration, speech delays and possible feeding problems.
The adoption assessment stated that D. is “highly adoptable.” It described him as an adorable, affectionate child with a beautiful smile who loves to give hugs. It described him as a healthy eater. The only concern was his aggressiveness with adults and other children. In the first few weeks in his current placement, he had broken another child’s glasses and had bitten another child on the face. The assessment worker described his prior placement as “chaotic” and remarked that A.G. had not met D.’s needs. She expressed the hope that D.’s behavior would improve once he was in a permanent and stable home. However, DCS recommended, and the court ordered, that he not be removed from his current placement until he had had his eye surgery and had recovered from it.
At the contested section 366.26 hearing on February 27, 2008, the adoption assessment report and the section 366.26 report were admitted into evidence without objection. The social worker testified that her search for a concurrent planning home had resulted in four potential homes, and that a meeting had been set with the families for March 6, 2008. She anticipated that D. would be placed with one of the families. She testified that D. had “calmed down” since being placed in his current placement and that the caretaker also reported that he had calmed down. She believed the change was due to D.’s new environment. She testified that the biting incident described in the adoption assessment had occurred in December or January and that there had been no reports of aggressive behavior since then. She testified that D.’s eye condition was considered minor and treatable, and that surgery was scheduled for March 6. D.’s only other medical problem was “a little Exemia [sic; eczema?].” The social worker did not believe that either condition affected D.’s adoptability.
Two relatives had been considered as possible placements. One had criminal and substance abuse history which caused the social worker serious concern. The other never followed up with DCS.
The attorneys for mother, for the alleged father and for D. all asked the court to delay terminating parental rights at least until a prospective adoptive home had been found. They warned against making D. a “legal orphan” when there was no identified prospective adoptive home. The court found that D. is adoptable and found by clear and convincing evidence that he was likely to be adopted. It terminated parental rights and freed D. for adoption.
Mother filed a timely notice of appeal.
LEGAL ANALYSIS
SUBSTANTIAL EVIDENCE SUPPORTS THE COURT’S FINDING THAT D. IS ADOPTABLE
Adoption is the preferred permanent plan once reunification services have been terminated. (In re Celine R. (2003) 31 Cal.4th 45, 53.) Section 366.26, subdivision (c)(1) provides that if the juvenile court determines, by clear and convincing evidence, that it is likely that the child will be adopted, the court “shall terminate parental rights and order the child placed for adoption.” A judicially-added gloss provides that there must be clear and convincing evidence that the child will be adopted within a reasonable time. (In re Zeth S. (2003) 31 Cal.4th 396, 406-407.)
Mother contends that there was insufficient evidence to support the juvenile court’s finding that D. is adoptable because (1) the adoption assessment report provided an incomplete picture of D.’s physical condition and emotional health, and (2) there was insufficient evidence that D. will be adopted within a reasonable time.
DCS asserts that mother’s contention that the adoption assessment failed to provide substantial evidence that D. is adoptable must be rejected because mother failed to object to the sufficiency of the adoption report in the juvenile court. Mother acknowledges that she cannot assert for the first time on appeal that the report was inadmissible or otherwise objectionable. (In re Brian P. (2002) 99 Cal.App.4th 616, 623.) She can, however, assert for the first time on appeal that the evidence, including the report, was not legally sufficient to support the conclusion that D. is adoptable. (Ibid; accord, In re Gregory A. (2005) 126 Cal.App.4th 1554, 1560-1561; see also, generally, People v. Butler (2003) 31 Cal.4th 1119, 1126 & fn. 4 [sufficiency of the evidence to support a judgment or order may be raised for first time on appeal].)
Quoting In re Gregory A., supra, 126 Cal.App.4th 1554, mother asserts that because the finding of adoptability must be supported by clear and convincing evidence, we must review the record to determine whether it contains “‘substantial evidence from which [the juvenile court] could find [by] clear and convincing evidence that [the child] was likely to be adopted.’” (Id. at p. 1562.) If mother means that we must review the record and independently determine that there was evidence sufficient to satisfy a “clear and convincing” burden of proof, we disagree. The clear and convincing standard applies in the trial court and is not a standard for appellate review. (Crail v. Blakely (1973) 8 Cal.3d 744, 750.) “‘“The sufficiency of evidence to establish a given fact, where the law requires proof of the fact to be clear and convincing, is primarily a question for the trial court to determine, and if there is substantial evidence to support its conclusion, the determination is not open to review on appeal.” [Citations.]’ [Citation.]” (Ibid.) Thus, on appeal, “‘the clear and convincing test disappears . . . [and] the usual rule of conflicting evidence is applied, giving full effect to the respondent’s evidence, however slight, and disregarding the appellant’s evidence, however strong.’ (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 365, p. 415.)” (In re Angelique C. (2003) 113 Cal.App.4th 509, 519; accord, In re Mark L. (2001) 94 Cal.App.4th 573, 580-581.) Accordingly, we view the evidence in the light most favorable to the trial court’s judgment. Where there is a conflict in the evidence, we indulge all reasonable inferences in support of the trial court’s finding. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378; In re Joshua H. (1993) 13 Cal.App.4th 1718, 1728.) To the extent we may draw inferences from the record, we may do so only as to those legitimate inferences which uphold the decision of the trial court. (In re Laura F. (1983) 33 Cal.3d 826, 833.)
Mother asserts that the evidence was insufficient to support a finding of adoptability primarily because the evidence suggested that D. has a serious emotional or personality problem, in that he has severe temper tantrums and a problem with aggression and biting. The basis for this concern is the statement, contained in both the section 366.26 report and the adoption assessment report, that D. has tantrums when he does not get what he wants, and that in the early weeks of his foster care placement, after having been removed from A.G.’s home, he broke another child’s glasses and in a separate incident, bit another child’s face. The social worker testified, however, that both incidents occurred in December or in January, and that by the time of the section 366.26 hearing, on February 27, 2008, D. had calmed down.
We disagree that the only reasonable inference to be drawn from the evidence is that D. may have a severe emotional or personality problem. First, as the juvenile court noted, “acting out” (presumably, in this context, meaning throwing tantrums) is common in two year olds, and “[l]ots of kids bite.” Second, the first mention of temper tantrums and hitting and biting appeared in the status review report dated September 10, 2007. Slightly more than two months later, on November 26, 2007, D. was removed from A.G.’s at her request. The adoption assessment report noted that D.’s placement with A.G. had been chaotic and that A.G. did not meet D.’s needs. This is consistent with the detention report on the supplemental petition, which indicates that A.G. appeared to find caring for D. too stressful, in part, perhaps, because her own two children both have ADHD. She was working full time as well. She was unhappy with the demands placed upon her by D.’s medical needs and with what she perceived to be unreasonable rules imposed by DCS. The jurisdiction/disposition report on the supplemental petition, dated December 20, 2007, states that D. had already begun to respond positively to his new caretaker and was adjusting well. By mid-February, after he had been out of A.G.’s home for two months, D. had begun to calm down and was not described by his foster mother as aggressive.
Mother expresses doubts that such a severe problem could have been resolved in a matter of weeks, as the social worker suggested. However, it is equally reasonable to infer that D.’s tantrums were not the result of some undiagnosed emotional problem but were merely common two-year-old behavior, perhaps exacerbated by A.G.’s inability to provide a calm and stable environment for him, and that he was indeed benefitting from his new placement. Taken all together, the evidence supports the juvenile court’s conclusion that D.’s behavior is “not age inappropriate” and not an impediment to his adoptability.
The court also noted that the statement in the adoption assessment that D. needs constant supervision is merely a “truism,” in that all two year olds need constant supervision.
The adoption assessment describes D. as an affectionate, adorable two year old with a beautiful smile, and, despite his reported aggressiveness and need for supervision, as “a very adoptable cute little boy in need of a stable and loving home.” This too supports the court’s conclusion that there was nothing remarkable about D. that would cause him not to be adoptable, and that he is, in fact, adoptable.
Mother also asserts that the fact that D.’s tear duct blockage had not been corrected more than a year after it was diagnosed “due to various issues including D.’s persistent diarrhea,” suggests that the problem is serious, and that it will require “multiple visits to the eye specialist, surgery . . . and a caregiver willing and able to take D. to the eye appointments and provide aftercare.” The court viewed D.’s eye condition as “trivial” and concluded that it is not a barrier to his adoptability. We agree that it is not. According to the social worker’s uncontradicted testimony, the condition is minor and easily correctible. Moreover, the court had previously ordered that D. was to remain in his foster home until he had recovered from the eye surgery precisely because the foster family was able to provide for his needs. Accordingly, a prospective adoptive family would not be involved in the surgery or the aftercare, and substantial evidence supports the conclusion that once D. had recovered from the surgery, his eye condition would no longer be an issue.
Mother also contends that D. is not adoptable because the reports suggested that his speech development was significantly delayed and that he has a “possible ‘feeding problem.’” DCS had already been authorized to place D. in a program to address those issues, and there is no evidence that either condition was so serious as to be an impediment to adoption.
Finally, mother contends that the fact that DCS has identified four families which might be interested in adopting D. is insufficient to constitute clear and convincing evidence that D. will be adopted within a reasonable time. The social worker testified that four prospective adoptive families were to attend a “matching meeting” about a week after the section 366.26 hearing, and that she was confident D. would be placed with one of those families. Mother argues that it is sheer speculation that a placement will result, and argues that the court should have refrained from terminating parental rights until a placement had occurred. At the permanency planning hearing, counsel for mother and for the alleged father expressed concern that there was something wrong with D. that had not yet been ascertained. They referred to the fact that although D. had been a dependent since birth and is now two years old, no one has expressed willingness to adopt him. Mother again refers to these concerns in this context.
As mother acknowledges, a finding of adoptability does not depend upon evidence that the child is either already in a preadoptive placement or that there is a proposed adoptive parent “waiting in the wings.” (In re Jennilee T. (1992) 3 Cal.App.4th 212, 223, fn. 11.) Section 366.26, subdivision (c)(1) expressly states, “The fact that the child is not yet placed in a preadoptive home nor with a relative or foster family who [sic] is prepared to adopt the child, shall not constitute a basis for the court to conclude that it is not likely the child will be adopted.” All that is required is clear and convincing evidence that it is likely—not certain—that adoption will be realized within a reasonable time. Evidence that a child is generally adoptable is sufficient to support the conclusion that it is likely that adoption will occur within a reasonable time. (In re Jennilee T., supra, at pp. 223-225.)
The court’s finding that D. is adoptable is supported by substantial evidence, as we have discussed. There is nothing in his history which undermines that conclusion or suggests that no one will want to adopt D. Mother refers to the fact that neither A.G. nor D.’s current caretakers want to adopt him. However, although A.G. had told DCS that she would be willing to provide him with a permanent home if mother was unable to care for D., there is no indication in the record that DCS ever viewed A.G. as a possible adoptive mother for D. And, when A.G. asked the social worker to remove D. from her home, her request had nothing to do with D. personally. Rather, she resented the rules DCS imposed on her and apparently did not feel that she had the time or energy to take D. to his medical appointments. D.’s placement with his current caretakers was apparently never expected to result in adoption. Rather, he was apparently placed with a foster family that was willing to see to his medical needs while DCS sought a permanent home. Thus, D.’s “failure” to find an adoptive home does not suggest that he is not adoptable.
Finally, we must point out that the concern that the attorneys for mother, D. and the alleged father expressed about making D. a “legal orphan” before a prospective adoptive home had been located for him is exaggerated. The Welfare and Institutions Code provides that if a child has not been adopted after the passage of at least three years from the date the court terminated parental rights and the child and the social services agency or adoption agency agree that adoption is not likely, the child may petition for reinstatement of parental rights. (§ 366.26, subd. (h)(3)(C)(i)(2).) Accordingly, freeing D. for adoption carries no risk that he will be left in legal limbo.
DISPOSITION
The order terminating parental rights and freeing D. for adoption is affirmed.
We concur: Hollenhorst, Acting P.J., Gaut, J.