Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. CK58793, Robert Stevenson, Referee (pursuant to Cal. Const., art. VI, § 21).
Carlson, de Klerk & Sherman, Robbert J.F. de Klerk for Objector and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Aileen Wong, Senior Associate County Counsel for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
Dianne N. (mother), mother of Eugenia N., appeals from the juvenile court’s order terminating her parental rights to Eugenia under Welfare and Institutions Code section 366.26. Mother contends that the juvenile court erred in finding that Eugenia is generally adoptable. Mother also contends that she was denied due process when the juvenile court barred her from contesting the evidence submitted by the Los Angeles County Department of Children and Family Services (DCFS) in support of its position that Eugenia is adoptable. We affirm.
All statutory citations are to the welfare and Institutions Code unless otherwise noted.
BACKGROUND
The following facts were set forth in our prior opinion (B194019) denying mother’s petition for an extraordinary writ setting aside the juvenile court’s order terminating family reunification services and setting the matter for a hearing to consider the termination of mother’s parental rights under section 366.26.
“In 2000, mother adopted nine-year old Eugenia from a Russian orphanage. Mother was 49 years old. As Eugenia reached adolescence, conflicts between mother and Eugenia increased. On March 30, 2005, mother called 911 and reported that Eugenia had assaulted her. (Mother had taken Eugenia’s homework, and Eugenia tried to retrieve it.) After the incident, Eugenia ran to a neighbor’s home crying, and mother locked her out of the house. After another altercation several days later, mother agreed to allow Eugenia to stay at the home of a neighbor, Blanche B.
“By that time, DCFS had intervened, based on telephone referrals it had received in which the callers claimed mother was emotionally and physically abusive to Eugenia. Interviewed at school, Eugenia told a DCFS social worker that she was ‘fearful in her home and did not want to stay in her home due to her mother’s behavior towards her, which included her mother throwing things at her, being cursed at, as well as being locked out of the home.’ Mother told Eugenia on numerous occasions that she should send Eugenia back to Russia. She told Eugenia that her birth mother was a criminal and that Eugenia had ‘probably inherited her deviant behavior.’
“The social worker also interviewed mother, who ‘presented as a rigid person who is in need of control.’ Mother admitted the need for family services and agreed that Blanche B. would be an appropriate caregiver for Eugenia. Mother withdrew her permission soon thereafter. DCFS detained Eugenia because the DCFS social worker believed detention was the only way to protect Eugenia.
“During the following 12 months, mother and Eugenia each participated in individual therapy sessions, as well as in conjoint counseling with Dr. Paula Bruce. By May 2006, they had attended approximately 39 sessions with Dr. Bruce. Dr. Bruce came to the following conclusions: it appeared that the root of the family’s problem lay in the fact that mother was ill-prepared to parent a child who ‘had come from a difficult early history of parental abandonment and institutional living in Russia and was a late adoptee in a foreign country’; mother had limited parenting skills and little understanding of the likely issues that would be presented in parenting such a child; and mother ‘appeared to have brought to her relationship with Eugenia her way of relating in the world, which appeared to be a rigid, rule bound, pedantic, over-controlling style where attention to feelings were, at best, secondary.’
“Although Dr. Bruce attempted to address these issues in conjoint therapy, she said she met with little success because mother was often combative, and ‘simply could not see how her behavior was destructive to developing relationships. Instead, she continued to hold to her position that it was the actions of other people conspiring against her that led to her difficulties with Eugenia, along with what she felt to be Eugenia’s inherent difficulties. She simply would not take responsibility for the state of her relationship with Eugenia.’ Dr. Bruce agreed with the conclusions reached by Dr. Michael Ward, a psychologist appointed by the court to conduct an evaluation pursuant to Evidence Code section 730, that mother was a ‘self-centered, controlling, socially awkward individual who really does seem to lack insight into herself and her interpersonal relationships.’ Because the conjoint counseling sessions had become uncomfortable for Eugenia, Dr. Bruce recommended that mother and Eugenia should not be reunified, and that any further conjoint counseling sessions (no more than six) should be scheduled ‘to deal with termination and the end of the legal relationship, with the hope of some mutually agreed on other relationship between the two.’
“A contested 12-month hearing (§ 366.21, subd. (f)) began on July 6, 2006, and continued over several sessions until mid-September 2006. In reports prepared for the 12-month hearing, DCFS recommended that the court terminate mother’s parental rights and order adoption as the permanent plan. DCFS concluded that neither the individual nor the conjoint counseling sessions had been successful; the conjoint counseling sessions had traumatized Eugenia; and Eugenia was thriving in the home of her foster parents, Barbara B. and Drew S., who wished to adopt her. A DCFS adoption study prepared in anticipation of that hearing reported that ‘Eugenia never wishes to return to her adoptive mother.’ Eugenia expressed similar sentiments in her testimony at the 12-month hearing, stating that she would never go back to mother under any circumstances.
“At the conclusion of the 12-month hearing on September 13, 2006, the court found DCFS had offered mother reasonable reunification services. The trial court terminated family reunification services and set the matter for a section 366.26 hearing. Mother . . . filed a petition for an extraordinary writ setting aside the trial court’s order on the grounds of inadequacies of reunification services, including a lack of objectivity by DCFS.” We denied mother’s petition.
The following facts were adduced in the juvenile court after the matter was remanded following our denial of mother’s petition for an extraordinary writ.
A November 9, 2006, Interim Review Report attached a report from Dr. Bruce in which Dr. Bruce writes, “No further contact between Eugenia and [mother] should be mandated. Any continued contact outside of session between the two should only be at Eugenia’s discretion.” Dr. Bruce’s report details mother’s and Eugenia’s final six conjoint sessions. Summarizing the sessions, Dr. Bruce reports, “The general picture that emerged from these sessions was not much different from that of the last 16 months of treatment. There was the continuation of Eugenia’s angry rejection of the notion of reunification of any kind with [mother], including rejection of the idea of any ongoing relationship. [Mother] remained defensive, blaming of others and continually preoccupied with finding responsibility in others for the current state of her relationship with Eugenia.”
The DCFS’s report for the section 366.26 hearing set for January 11, 2007, states that Barbara B. “admitted that she’s never been happier in her life since becoming a parent to Eugenia. She enjoys a warm and nurturing relationship with Eugenia and she would like to provide Eugenia with a permanent home through adoption. Barbara loves Eugenia and has become attached to her in the last year that she has resided in her home.” Eugenia is reported to understand what adoption is and to want Barbara B. to adopt her. The report notes that Eugenia’s grades at school are “average”; that Barbara B. was monitoring Eugenia’s academic progress; and that Barbara B. was “doing an ‘excellent’ job meeting Eugenia’s physical, academic, emotional, and expressed needs.”
The section 366.26 report notes that numerous conjoint therapy sessions had failed to rectify the relationship and communication problems between mother and Eugenia and again stated Eugenia’s opposition to further contact with mother. The report states that Eugenia and Barbara B. appeared to have a positive relationship and that Eugenia likely would benefit from a permanent, stable home of her own choosing. The report recommends termination of mother’s parental rights.
A March 13, 2007, Status Review Report for the continued section 366.26 hearing states, “Eugenia continues to thrive in this placement and wishes to be adopted by Barbara [B.] No academic or behavioral problems have been reported or are apparent.” The report states, “Eugenia fervently hopes to be adopted by Barbara [B.] and consistently indicates that she is happy in this placement. She wishes to have no contact with [mother].” Barbara B. is reported to have “demonstrated the ability to meet all of [Eugenia’s] needs over the more than a year that Eugenia has been in her home, and she is committed to continuing to do so on an adoptive basis.”
The report addresses mother’s concern about Drew S.’s alleged history of domestic violence. The social worker addresses the issue with Barbara B. who reported that Drew S. previously had an alcohol problem, but had been sober for 30 years. Barbara B. reported to the social worker that Drew S. “has some anger management problems, but . . . adamantly and credibly denied that [Drew S.] had ever hit or harmed her.” The report states that the current case plan of adoption with Barbara B. remained appropriate.
In a subsequent report, the social worker noted that, through a typographical error, the March 13, 2007, report incorrectly stated that Drew B. “has” rather than “had” some anger management problems.
An Interim Review Report for the further continued section 366.26 hearing on May 1, 2007, reports the substance of an April 19, 2007, telephone interview social worker Donna K. Becker conducted of Blanche B. The report states, “Blanche [B.] once told CSW Susan Snyder that adopting Eugenia would be ‘lovely.’ ‘I thought about adopting her permanently,’ she told CSW Becker, but she did not pursue it because she believed that Dawn [R.] and David [K.] would do so. She also stated that she subsequently realized that she ‘was not a good candidate,’ partly because of her age and her likely credibility with a teenager. Mrs. [B.]’s adult daughter, Ellen, also seriously considered adopting Eugenia. [¶] Dawn and David ‘totally intended to do it.’ Ms. [B.] added that Irina [K.], a neighbor across the street, also thought about adopting Eugenia.”
An Interim Review Report dated May 9, 2007, states, “Eugenia continues to thrive at home, in school, and socially. Of particular note is her recent selection as a Student of the Month for April. . . . [¶] Eugenia frequently alludes to her friends at school and reportedly has an active social life. She possesses excellent communication skills and is unusually insightful. In many respects quite mature for her age, Eugenia also possesses the trait of playfulness and has the capacity to enjoy life. Overall, she appears to be an exceptional, personable young woman with entrepreneurial tendencies, as evidence by her dog-walking business.”
At the section 366.26 hearing on May 10, 2007, the juvenile court terminated mother’s parental rights to Eugenia. The juvenile court ruled that Eugenia is generally adoptable. The juvenile court found that Eugenia has no physical disabilities, there is no evidence of any type of emotional incapacity, and she has no learning difficulties. The juvenile court observed, “[t]o the contrary, she is quite insightful and an excellent student. She is relating well with her peers in school as well as in the neighborhood. And despite her age of being 16 years of age, I don’t believe that, by itself, without other factors, should be a factor that should make her not generally adoptable.” Notwithstanding Eugenia’s age, the court noted, several persons had requested to adopt or had discussed the possibility of adopting Eugenia. The juvenile court then, alternatively, ruled that Eugenia is specifically adoptable. Mother appeals from the termination of her parental rights.
DISCUSSION
Mother argues that the juvenile court erred when it ruled that Eugenia is generally adoptable because it failed to consider Eugenia’s advanced age, previous unsuccessful placements, and emotional problems. Mother, in effect, challenges the sufficiency of the evidence supporting the juvenile court’s ruling. Mother also argues that if parental rights were terminated because Eugenia is deemed “specifically” adoptable—i.e. by a specific family—the juvenile court violated mother’s due process right to test the DCFS’s evidence in support of its position that Eugenia is adoptable. We hold that the trial court did not err in ruling that Eugenia is “generally” adoptable. In light of that holding we need not address mother’s secondary arguments concerning Eugenia’s specific adoptability.
I. Standard of Review
“Review of a determination of adoptability is limited to whether those findings are supported by substantial evidence. [Citation.]” (In re Carl R. (2005) 128 Cal.App.4th 1051, 1061.) “As to the sufficiency of the evidence, we are governed by the same rules that apply to all appeals: we must indulge in all reasonable inferences to support the findings of the juvenile court [citation], and we must also ‘. . . view the record in the light most favorable to the orders of the juvenile court.’” (In re Luwanna S. (1973) 31 Cal.App.3d 112, 114.) The appellant bears the burden of showing that the evidence is insufficient to support the juvenile court’s findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
II. Application of Relevant Legal Principles
Before a juvenile court terminates parental rights and frees a child for adoption, it must determine, by clear and convincing evidence, that the child is likely to be adopted within a reasonable time. (§ 366.26, subd. (c)(1); In re Jennilee T. (1992) 3 Cal.App.4th 212, 223.) A juvenile court’s determination about whether a child is adoptable is made at the selection and implementation hearing under section 366.26. (In re David H. (1995) 33 Cal.App.4th 368, 378.) Children may be considered “generally” adoptable or “specifically” adoptable. (See In re Carl. R., supra, 128 Cal.App.4th at p. 1061.) In determining whether a child is generally adoptable, the juvenile court focuses on the child and considers whether the child’s age, physical condition, or emotional state make it difficult to find a person willing to adopt the child. (See In re Zeth S. (2003) 31 Cal.4th 396, 406; In re Carl R., supra, 128 Cal.App.4th at p. 1061; In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) In determining whether a child is specifically adoptable, the juvenile court determines whether the child is adoptable “based solely on the fact that a particular family is willing to adopt him or her . . . .” (In re Carl R., supra, 128 Cal.App.4th at p. 1061.)
A. General Adoptability
In ruling that Eugenia is generally adoptable, the juvenile court found that Eugenia has no physical disabilities, emotional incapacities, or learning difficulties that would impede Eugenia’s adoption. Although Eugenia likely is older than the typical adoptee – she was 16 years old at the time of the section 366.26 hearing – the trial court found that that fact alone did not prevent a ruling of general adoptability.
Mother contends that Eugenia’s age precludes a ruling that Eugenia is generally adoptable. In support of this contention mother relies on In re Elise K. (1982) 33 Cal.3d 138, 148 & fn. 20 [recognizing, in dictum, that a 14-year-old was no longer reasonably likely to be adopted due to her age], In re Scott M. (1993) 13 Cal.App.4th 839, and In re Sarah M., supra, 22 Cal.App.4th at pp. 1644-1645. None of those cases holds that a minor upon reaching a certain age is per se not generally adoptable. Indeed, none of the cases even considers a claim that a child was not generally adoptable due to the child’s advanced age. Age is but one of the factors that juvenile courts are to consider in deciding general adoptability. (In re Zeth S., supra, 31 Cal.4th at p. 406; In re Carl R., supra, 128 Cal.App.4th at p. 1061; In re Sarah M., supra, 22 Cal.App.4th at p. 1649.)
That Eugenia’s age is not an impediment to a ruling of general adoptability is shown in the willingness of Barbara B. and others to adopt Eugenia. (In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650 [“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 finding that Eugenia’s age alone did not preclude a ruling that Eugenia is generally adoptable, the juvenile court explained that, despite Eugenia’s age, several persons had been interested in adopting or had discussed the possibility of adopting Eugenia. The juvenile court appears to have been referring to the May 1, 2007, Interim Review Report, that identified the subject persons as Blanche B.; Blanche B.’s daughter, Ellen; Dawn R. and David K.; and Irina K. Mother rejects the juvenile court’s reliance on such evidence, arguing that because Eugenia had been placed with most of the persons who expressed a desire to adopt her and the placements had failed, those failed placements do not support a ruling that Eugenia is generally adoptable, they support the opposite ruling. Mother’s argument fails to address the juvenile court’s point. None of the reasons mother cites for the failed placements is Eugenia’s age. Moreover, by itself, Barbara B.’s interest in adopting Eugenia is a sufficient indication that Eugenia’s age is not likely to dissuade others from adopting Eugenia. (In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.)
Mother contends that the juvenile court’s finding that Eugenia has no learning difficulties and its observation that Eugenia is an excellent student are belied by the fact that Eugenia’s grades are average and that she occasionally has had the assistance of a tutor. Although the trial court’s assessment of Eugenia’s academic performance may be overstated—the January 11, 2007, section 366.26 report notes that Eugenia’s grades at school are “average”—Eugenia was selected as a “Student of the Month” for April 2007, and her mathematics teacher reportedly wrote her a note dated February 2, 2007 that states, “Your hard work is amazing [and] it still impresses me after two years of having you as a student! I’m so happy [and] I feel so lucky to be your math teacher!! [¶] Thank you for always being so kind and well-behaved in class. Your class participation is fantastic! [¶] Keep up the great work!” Moreover, with respect to Eugenia’s academic performance, the March 13, 2007, Status Review Report states that no problems had been reported or were apparent. Thus, even if Eugenia is not an excellent student, average grades and the occasional use of tutorial assistance are not evidence of a deficiency.
Mother contends the juvenile court was incorrect in finding that Eugenia is without any type of emotional incapacity. Mother alleges Eugenia’s advanced age, unsuccessful placements, Eugenia’s feelings, emotional health, and behavior. Much of the evidence on which mother relies predated by a significant period the section 366.26 hearing. The evidence presented to the juvenile court for the section 366.26 hearing demonstrates that Eugenia is doing well emotionally in Barbara B.’s care. As of the March 13, 2007, report for the section 366.26 hearing, Eugenia had been placed in Barbara B.’s home for more than a year. Eugenia was reported to be thriving and happy in Barbara B.’s care and wished to be adopted by Barbara B. The report states that no behavior problems with Eugenia had been reported or were apparent. Barbara B. was reportedly committed to adopting Eugenia. The May 9, 2007, Interim Review Report states, “Eugenia continues to thrive at home, in school, and socially.” Eugenia was reported to have “an active social life,” to possess “excellent communication skills,” to be “unusually insightful,” and to be “quite mature for her age.” The report concludes, “Overall, [Eugenia] appears to be an exceptional, personable young woman . . . .” Viewing the record in the light most favorable to the juvenile court’s ruling (In re Luwanna S., supra, 31 Cal.App.3d at p. 114), the juvenile court properly found that Eugenia does not suffer from an emotional incapacity that precludes a ruling that she is generally adoptable.
Substantial evidence in the record supports the juvenile court’s finding that Eugenia is generally adoptable, notwithstanding her age or other alleged factors. (In re Carl R., supra, 128 Cal.App.4th at p. 1061.) Accordingly, the trial court did not err in ruling that Eugenia is generally adoptable.
B. Specific Adoptability
Mother’s argument that the juvenile court denied her due process right to test the sufficiency of the evidence in support of the DCFS’s position that Eugenia is adoptable by presenting evidence about Drew S.’s alleged domestic violence and other untoward conduct is expressly predicated on this court holding that Eugenia is not generally adoptable, but is specifically adoptable. Having held that the juvenile court did not err in finding Eugenia generally adoptable, we need not address the juvenile court’s alternative ruling that Eugenia also is specifically adoptable or mother’s argument that she should have been permitted to introduce evidence showing that prospective adoptive parent Barbara B. is not suitable due to her relationship with Drew S. (See In re Carl R., supra, 128 Cal.App.4th at p. 1061 [“If the child is considered generally adoptable, we do not examine the suitability of the prospective adoptive home. [Citation.]”].)
DISPOSITION
The order is affirmed.
We concur: ARMSTRONG, Acting P. J., KRIEGLER, J.