Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Nos. J210591, J210592 & J210593, Marsha Slough, Judge.
Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruth E. Stringer, County Counsel, and Sandra D. Baxter, Deputy County Counsel, for Plaintiff and Respondent.
Sharon S. Rollo, under appointment by the Court of Appeal, for Minors.
OPINION
Gaut, J.
Mother appeals from an order terminating her parental rights (Welf. & Inst. Code, § 366.26 ) to three of her four children, N.M. (a boy, almost eight years old), L.M. (a girl, six years old), and E.M. (a boy, four years old). This appeal does not concern mother’s youngest child, O.M. (a girl, almost three years old), who was also removed from mother’s custody.
Unless otherwise noted, all statutory references are to the Welfare and Institutions Code.
Mother contends the juvenile court did not apply the clear and convincing standard of proof when ruling her three children, N.M., L.M., and E.M. (the children) were adoptable. Mother also argues there was insufficient evidence supporting such finding and the adoption assessment reports were inadequate. This court rejects mother’s contentions and affirms the judgment.
1. Facts and Procedural Background
At the time of O.M.’s birth in August 2006, mother and father (the parents) were living with their children at Fort Irwin Army Base. Father was an active duty soldier stationed at Fort Irwin.
On September 26, 2006, medical personnel at the army base community hospital contacted the Department of Children’s Services (DCS) and reported that O.M., who was eight weeks old, had a displaced skull fracture and subdural hematoma to the right side of her head. O.M. required reconstructive skull surgery and would likely suffer mental retardation. O.M.’s parents initially claimed her injuries were caused when O.M.’s four-year-old sister, L.M., dropped her.
O.M. was transferred to Loma Linda University Medical Center (LLUMC) for treatment. Testing at LLUMC revealed that O.M.’s skull was fractured on both sides and it appeared someone had stomped on her head. O.M.’s injuries were not consistent with being dropped on the floor. The parents told the social worker inconsistent explanations for O.M.’s injuries, which included blaming L.M., E.M., and N.M. for intentionally and accidentally dropping, kicking, and hitting O.M. The parents also claimed O.M. was injured when she fell from their bed.
On September 28, 2006, the children were taken into protective custody. On October 2, 2006, the DCS filed a juvenile dependency petition on behalf of the children. The following day, the court ordered the children detained. The children were placed in foster care.
On October 5, 2006, the parents were arrested and incarcerated for violating Penal Code section 273a, subdivision (a) (child abuse). Father told law enforcement that O.M. had been asleep on his chest when he had a flashback from his service in Iraq. He accidentally dropped O.M. onto the floor and kicked her. Father admitted dropping her a couple times and slamming her onto the linoleum-concrete floor during an argument with mother. He admitted kicking O.M. in the head, thinking she was one of L.M.’s dolls. Mother admitted being present when father abused O.M.
O.M. was placed in a medically fragile foster home upon being released from the hospital. The other three children were placed together in another foster home. The children exhibited emotional and behavioral issues. According to the October 16, 2006, jurisdiction report, N.M. appeared to be delayed in fine and gross motor skills but was meeting age appropriate developmental milestones. He also appeared to have Attention Deficit Hyperactivity Disorder (ADHD). L.M. had a slight speech delay. The three children were overly aggressive towards each other and other children. The children initially were placed together but later N.M. was placed in a separate foster home due to his aggressive behavior, sexual misconduct, and hyperactivity. L.M. and E.M. remained together.
At the pretrial settlement conference on November 17, 2006, the juvenile court appointed a guardian ad litem for mother because she was having difficulty understanding the court proceedings and was unable to understand the juvenile dependency allegations. The social worker informed the court L.M. had serious behavior problems, including aggression, running away from adults, temper tantrums, and possible autism. A week earlier she had been removed from her placement and placed in another foster home.
At the jurisdiction hearing on December 7, 2006, the court found jurisdiction over the children. The bifurcated disposition hearing was continued to February 15, 2007.
On January 31, 2007, the DCS filed an ex parte motion informing the court that the relative care providers no longer wished to care for the children due to financial and medical hardships. The children were placed with another foster family.
On February 15, 2007, the court conducted a pretrial settlement conference and disposition hearing. The juvenile court ordered no reunification services for the parents under section 361.5, subdivisions (b)(5)-(7) and (E)(1). Parental visitation was permitted after the parents were released from incarceration. The court set a section 366.26 hearing (.26 hearing) for June 15, 2007, which was continued several times due to the DCS’s ongoing efforts to locate a prospective adoptive family for the children.
On June 12, 2007, N.M. was moved into a new foster home separate from L.M. and E.M.’s home because N.M. had engaged in sexual behaviors with E.M. and the caregiver’s granddaughter on several occasions.
As of August 2007, mother was released from jail and had visited L.M. and E.M. four times. The court suspended visits because the children were having adjustment problems after mother’s visits and seemed to show little interest in interacting with her.
In the DCS’s December 7, 2007 report, the DCS stated that there were several approved adoptive families interested in adopting the three children. After the children attended an adoption recruitment event on October 17, 2007, there were eight prospective families wishing to adopt the children.
On November 2, 2007, there was an adoption matching meeting to consider the families interested in adopting the children. The DCS determined that it would be best to have N.M. adopted separately from L.M. and E.M. due to his sexual misconduct. One family was chosen for N.M. from the eight prospective adoptive families and another was selected for L.M. and E.M.
At the .26 hearing on January 31, 2008, mother requested another continuance because adoption assessments had not been completed on the prospective adoptive families. The court denied the continuance and found the children adoptable even though adoptive families had not yet been identified for the children. The court terminated parental rights and ordered the children freed for adoption.
2. Clear and Convincing Evidence
Mother contends the juvenile court did not apply the clear and convincing evidence standard when ruling the children were adoptable. Mother argues that at the .26 hearing on January 31, 2008, the juvenile court indicated it applied other inappropriate standards.
Before the juvenile court can order parental rights terminated, the court must find by clear and convincing evidence that it is likely that the child will be adopted. (§ 366.26, subd. (c)(1); In re Tamneisha S. (1997) 58 Cal.App.4th 798, 800 (Tamneisha); In re J.I. (2003) 108 Cal.App.4th 903, 911.) We must assume the juvenile court applied the correct standard where there is no evidence to the contrary. (In re Bernadette C. (1982) 127 Cal.App.3d 618, 625.) “[I]t is presumed that the trial judge applied the appropriate standard and no articulation is required.” (Ibid.)
Mother argues there is evidence the juvenile court applied the wrong evidentiary standard based on the court’s statement: “I understand the argument presented by Mr. Clark [mother’s attorney] today; however, the Court does find that adoption is in the children’s best interest and probable and will be the permanent plan.”
This statement does not show that the court failed to apply the clear and convincing evidence standard when ruling the children were adoptable. The court merely noted, after finding the children adoptable and terminating parental rights, that it believed adoption was in the children’s best interests and that it was probable the children would be adopted.
Mother also claims the court’s reliance on proposed findings and orders when ruling the children were adoptable established that the juvenile court failed to apply the clear and convincing standard. Mother argues that since the proposed findings and orders were not founded on application of the clear and convincing evidentiary standard, the juvenile court’s finding that the children were adoptable was not based on clear and convincing evidence.
We reject this argument as well. During the .26 hearing, DCS’s attorney introduced into evidence numerous DCS reports and addendum reports. The juvenile court’s statements, indicating it had considered and relied on the proposed findings and orders, by no means establish that the court did not apply the clear and convincing evidence standard. Furthermore, the juvenile court’s minute order and signed orders on January 31, 2008, state that the court found by clear and convincing evidence that the children were adoptable. The juvenile court’s written signed orders control over any potentially conflicting statements made regarding application of the correct evidentiary standard made during the .26 hearing. (In re Jerred H. (2004) 121 Cal.App.4th 793, 798, fn. 3.)
Since the court did not articulate it was employing a lesser standard than the clear-and-convincing standard, we presume the juvenile court applied the correct standard and no articulation was required. (In re Bernadette C., supra, 127 Cal.App.3d at p. 625.)
3. Adoption Assessment Reports
Mother contends the adoption assessment reports were inadequate because they did not contain any analysis of the likelihood the children would be adopted.
A. Adoption Assessment Background Information
The .26 hearing report filed on June 1, 2007, recommended terminating parental rights and placing the children for adoption. Under the heading, “PERMANENCY PLANNING ASSESSMENT,” the report instructed the reader to see the addendum report filed on June 4, 2007.
The June 4, 2007 report stated that the children had not yet been placed in an adoptive home but were adoptable due to their young ages. The DCS social worker noted that she was unable to submit a full adoption assessment report because the children were not currently in an adoptive home, but once a home was found for them, a full adoption assessment report would be provided.
The social worker further noted that the DCS’s placement coordinator had said that, “since the children are so young and do not have any known major behavioral problems, finding a home to match the children with would not be impossible. The placement coordinator did state that since [L.M.] does have developmental delays, the children may need to be placed on the Internet or presented at the Adoption Co-op meetings. However, at this time, the Department is still awaiting the pending ICPC [Interstate Compact Placement of Children] relative assessment outcome, and if needed, to search an appropriate adoptive home for these three children.”
The June 8, 2007 addendum report contains a section entitled “Evaluation of Children,” in which the social worker discusses each child’s medical, developmental, educational, and mental and emotional status. Under the report heading, “Analysis of the Likelihood of Adoption and Proposed Permanent Plan,” the social worker recommended that the children be adopted together.
Under the report heading, “ASSESSMENT/EVALUATION,” the report stated that “Adoptions SSP, Roz Hug, has stated in her Adoptions Assessment, dated 06/15/2007 that [the children] are appropriate for Adoption planning.” It was recommended the children be placed in an adoptive home when one was found for them. The social worker requested the children be listed with California Kids Connections for a suitable adoptive home if one could not be found within the DCS.
The June 13, 2007 report stated that N.M. was moved to another foster home due to inappropriate sexual behavior. The children’s caregiver reported that N.M. had engaged in inappropriate sexual behaviors, including sexually touching E.M. on several occasions and engaging in sexual conduct with the caregiver’s granddaughter. As a consequence, N.M. was removed from the caregiver’s home and placed in a separate home. N.M. attended therapy to address his problems.
In the September 11, 2007 addendum report, the social worker again recommended the children be placed for adoption. The DCS requested permission for the children to participate in the October 17, 2007, adoption recruitment event, California Kids’ Connection Children’s Picnic, and the DCS be permitted to place the children in adoptive homes.
In the report section entitled, “ADOPTABILITY ASSESSMENT OF The CHILD,” the social worker stated that N.M. was “a good-looking six-year-old child.” Although he was hyperactive and impulsive, he was “redirected easily and responds very well to the foster parent.”
The social worker noted that L.M.’s caregiver described her as “a beautiful, loving child,” whom the caregiver enjoyed taking care of. The social worker also mentioned that L.M. was hyperactive, impulsive, and not redirected easily. L.M. appeared to have a developmental disability and was being assessed for service eligibility. L.M.’s caretaker said she could no longer care for the children because the caregiver’s adult daughter, who was living with the caregiver, was going to have a baby and her doctor recommended L.M. move out because of her feces-smearing behavior which would not be healthy for the new baby.
The social worker described E.M. as a “shy and sweet little boy. He is absolutely adorable with his dark brown, curly hair and big brown eyes. Although he has behaviors that are expected of a three year old, he is redirected easily and responds very well to both foster parents.” All three children reportedly became aggressive when they did not get their way and this was being addressed in therapy.
The social worker concluded in the September report that the children were adoptable. Difficulties placing the children were due to there being “an opposite sex sibling group of three young children and from [N.M.’s] sexual acting-out behavior.” N.M. was currently placed by himself. The DCS had recently begun looking for placement of N.M. in an adoptive home separate from the placement of L.M. and E.M. The social worker concluded “[t]here is every reason to believe that two adoptive homes can be found, and the children’s placements will be successful.”
In the December 7, 2007 addendum report, the social worker stated that there were approved adoptive families willing to adopt the three children. In the report section entitled, “ADOPTABILITY ASSESSMENT OF The CHILDREN,” the social worker stated that N.M. was “a very likeable boy, who is active and imaginative. . . . He appears to be able to make friends. It has been reported that he can be aggressive, but this was in relation to his siblings.” N.M. appeared to be developmentally on target and did well in kindergarten. He had ADHD-like behaviors but could take direction and be redirected. Since moving from his foster home with L.M. and E.M., N.M. had not shown any sexual acting-out behavior in his current home or during his visits with L.M. and E.M.
The social worker described E.M. as an average three year old, “inquisitive, happy, and funny, but as with [his] other siblings, he can become easily upset and cry, especially if he does not get his way.” He did not appear to be delayed. Once he made a sexual overture to L.M. but L.M. ignored it. He is “emotionally stable, but under significant stress, may have problems of enuresis.” He relates well with adults and enjoys being with peers, siblings, and adult caregivers.
As to L.M., who was five years old at the time, the social worker stated that she presented several problems. She was not fully toilet trained and she played with her feces. Also, her speech was delayed and she responded better to women than men. She was being evaluated by the school psychologist and speech therapist. The social worker described her as “a lovely, loveable child. She has a beautiful smile and personality.”
In the “ASSESSMENT/EVALUATION” section of the report the social worker stated that on October 17, 2007, the children participated in an adoption recruitment event. Afterwards, several families indicated they were interested in adopting the children. The social worker mentioned three families who were being evaluated.
The addendum report filed on January 28, 2008, stated: “On January 24, 2008, two (2) supervisors and five (5) social workers met (via teleconference) for a second Adoption matching meeting. At the meeting eight (8) prospective adoptive homes were considered for the placement of the . . . children. The members of the committee jointly decided on the first ‘H’ family as the best possible match for [N.M.], and a different ‘H’ family as the best possible match for [L.M. and E.M.] . . . [¶] . . . [¶] Presentations to the families will be made as soon as it is convenient for the families to meet with [two other social workers] and the undersigned.” The DCS recommended that the court terminate parental rights and order the children freed for adoptive placements.
The final addendum report filed on January 29, 2008, stated that “[o]nce the Adoption presentation meetings are conducted, and the identified prospective adoptive families accept the adoptive placements, [N.M] will be transitioned into his adoptive home, and [L.M.] and [E.M.] will be transitioned into their adoptive home.”
At the .26 hearing on January 31, 2008, mother’s attorney requested another continuance of the hearing on the ground that DCS had not provided adequate adoption assessment reports. Counsel also complained that, although there were assessments, none had been prepared for the current eight prospective adoptive families. The court denied a continuance, overruled mother’s objection to the adoption assessment reports, and admitted DCS’s reports into evidence.
B. Applicable Law
Under section 361.5, subdivision (g), when reunification services are bypassed, as in the instant case, and the court sets a .26 hearing, the court shall direct the DCS to prepare an adoption assessment report which must include: (1) information regarding current search efforts for absent parents; (2) a review of the amount and nature of contact between the child and his parents and other members of his extended family; (3) an evaluation of the child’s medical, developmental, scholastic, mental, and emotional status; (4) a preliminary assessment of the eligibility and commitment of any prospective adoptive parents; (5) information regarding the relationship between the child and any prospective adoptive parents; (6) a description of efforts made to identify a prospective adoptive parent; and (7) an analysis of the likelihood that the child will be adopted. (§ 361.5, subd. (g).)
Section 361.5, subdivision (g) does not prohibit the juvenile court from terminating parental rights in the absence of an adoption assessment report. It merely requires the court to direct the DCS to prepare such a report. Thus, while an adoption assessment report should be submitted to the court and parties prior to terminating parental rights, failure to do so is not reversible error if the DCS has established by other means that parental rights should be terminated under section 366.26. (In re Dakota S. (2000) 85 Cal.App.4th 494, 496, 503.)
C. Analysis
Mother argues that the DCS did not provide a sufficient adoption assessment report under section 361.5, subdivision (g)(1)(F) because there was no analysis of the likelihood the children would be adopted. Mother acknowledges that the adoption assessment reports contained limited information addressing each child’s medical, developmental, scholastic, mental and emotional status but complains that there was no assessment of any of the prospective adoptive families. But this was because there were no approved families until one week before the .26 hearing. Rather than continue the matter again, the juvenile court proceeded with the .26 hearing due to having continued the hearing numerous times before and finding there was clear and convincing evidence that the children would be adopted.
The statutes do not require an analysis of the likelihood of adoption by a particular family if a prospective adoptive family has not yet been found. “‘The issue of adoptability . . . 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.]’ [Citation.]” (In re Zeth S. (2003) 31 Cal.4th 396, 406, quoting In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.)
Here, the .26 hearing report and addendum reports provide detailed information from which the juvenile court could reasonably conclude the children were adoptable, even in the absence of an assessment of recently identified prospective adoptive parents. The various DCS reports discussed each child’s behavioral, medical, developmental, educational, mental, and emotional status in detail. The reports also described the efforts undertaken to find adoptive homes for the children, with the most recent attempts resulting in eight families expressing interest in adopting the children and three families being evaluated for adoption at the time of the .26 hearing.
There was ample information provided to the court from which the court could determine the children were adoptable. Furthermore, any deficiencies in the assessment report constituted harmless error. The outcome would likely have been the same even in the absence of any claimed deficiencies. (In re Dakota S., supra, 85 Cal.App.4th at p. 503; In re Sabrina H. (1990) 217 Cal.App.3d 702, 713.)
4. Sufficiency of the Evidence
Mother contends there was insufficient evidence the children were adoptable. We disagree.
Selection of adoption as the permanency plan, requires a finding by clear and convincing evidence that the child is likely to be adopted within a reasonable time. (§ 366.26, subd. (c)(1); In re Zeth S., supra, 31 Cal.4th at p. 406; In re Jerome D. (2000) 84 Cal.App.4th 1200, 1204.) “The fact that the child is not yet placed with a family 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.’ (§ 366.26, subd. (c)(1).) If the court finds that the child is likely to be adopted, it must order adoption unless termination of parental rights would cause serious detriment to a child under one or more specific statutory exceptions. [Citations.]” (In re B.D. (2008) 159 Cal.App.4th 1218, 1231 (B.D.).)
In determining adoptability, the court considers “whether the child’s age, physical condition and emotional health make it difficult to find a person willing to adopt that child.” (B.D., supra, 159 Cal.App.4th at p. 1231.)
On review, we must determine whether there is substantial evidence “from which the court could find clear and convincing evidence that the child was likely to be adopted within a reasonable time. [Citation.] The evidence must be sufficiently strong to command the unhesitating assent of every reasonable mind. [Citation.] We give the court’s adoptability finding the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of the judgment of the trial court. [Citation.]” (B.D., supra, 159 Cal.App.4th at p. 1232.)
Mother argues that, not only was there insufficient evidence but, in addition, there was evidence establishing that the children were not adoptable. She argues the children had severe behavior problems which led to several failed placements and they still, 16 months after their removal, had not been placed in an adoptive home. The children suffered from hyperactivity, impulsiveness, aggressive behavior, and difficulty expressing frustration and anger. Initially L.M. was below age appropriate developmental levels, had a slight speech delay, smeared her feces, and still wet her pants but later on her development was normal. N.M. had engaged in inappropriate sexual behaviors, causing him to be removed from the caregiver’s home and placed in a home separate from L.M. and E.M. The DCS admitted the children were difficult to place.
Despite the children’s problems, we conclude there was sufficient evidence to support the juvenile court’s finding that the children were adoptable. The children were young, attractive, healthy and engaging. Their emotional problems were intermittent and being addressed in therapy. The children’s emotional, behavioral and developmental problems were manageable and seemed to be improving with time.
In addition, numerous families had expressed an interest in adopting the children. “‘Usually 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. [Citation.]’ [Citation.]” (In re Jeremy S. (2001) 89 Cal.App.4th 514, 525, disapproved on other grounds in In re Zeth S., supra, 31 Cal.4th at pp. 413- 414, quoting In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.) While the children still had emotional and behavioral problems at the time of the .26 hearing, these did not appear to be insurmountable or deter potential families from wishing to adopt the children.
Citing Tamneisha, In re Amelia S. (1991)229 Cal.App.3d 1060 (Amelia), and B.D., supra, 159 Cal.App.4th 1218, mother argues that the fact that eight families had expressed an interest in adopting the children and there were two possible matches did not constitute clear and convincing evidence the children were adoptable.
These cases are distinguishable. In Tamneisha, the juvenile court found that Tamneisha was not adoptable. (Tamneisha, supra, 58 Cal.App.4th at p. 800.) However, she had more severe problems than the children had in the instant case. At birth, she suffered from cocaine withdrawal and was removed from her parents at birth. (Ibid.) Tamneisha had severe asthma and was mildly delayed in mental development and motor development. She also displayed abnormal behavior including rolling her eyes back into her head and banging her head. (Tamneisha, supra, at p. 802.) Three and a half years after the DCS initiated the dependency proceedings, the DCS still had not found a potential adoptive family for Tamneisha, although several families had expressed an interest in adopting her. (Tamneisha, supra, at pp. 802-803.)
Amelia is also factually distinguishable in that the case involved a set of 10 children, ranging in age from one to 10 and a half years old, who had various developmental, emotional and physical problems, some serious in nature. The children’s foster parents did not wish to adopt the children and an adoptive family had not been found for the children, although a few foster parents were considering adoption. (Amelia, supra, 229 Cal.App.3d at pp. 1063, 1065.)
B.D. also involved a relatively large set of children. In B.D., the court reversed the juvenile court finding that five siblings were not likely to be adopted as a sibling group within a reasonable time. (B.D., supra, 159 Cal.App.4th at p. 1233.) The court reasoned that the children were strongly bonded to each other and, thus, the size of the sibling group, along with the children’s emotional, developmental and behavioral problems required a finding that the children were not adoptable. (Id. at pp. 1230, 1232.) In addition, one of the children did not want to be adopted and thus would require a long therapeutic process, which would not be completed within a reasonable time. (Id. at p. 1234.)
In the instant case, the dependency proceedings had been pending for less than a year and a half and there was evidence that numerous families wished to adopt the children, with two families approved. The children did not have any serious health problems and were very attractive, engaging children despite their problems. Unlike in Amelia and B.D., there was not a large set of children requiring placement.
This court will not disturb a custody determination made in a dependency proceeding unless the juvenile court has abused its discretion by making an arbitrary, capricious or patently absurd determination. (Tamneisha, supra, 58 Cal.App.4that p. 806.) There was no such abuse in this case. Even though at the time of the .26 hearing the children had not yet been placed in prospective adoptive homes, there was sufficient evidence to support the juvenile court’s finding that the children would be adopted within a reasonable period of time.
5. Disposition
The judgment is affirmed.
We concur: Hollenhorst Acting P. J., McKinster J.