Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Marilyn K. Martinez, Juvenile Court Referee. Affirmed. Los Angeles County Super. Ct. No. CK69468
Grace Clark, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Byron G. Shibata, Associate County Counsel, for Plaintiff and Respondent.
MANELLA, J.
Appellant, Jose H. (father), challenges an order terminating his parental rights over his three children, G.H., N.H., and A.H. His sole argument is that the record lacks substantial evidence to support the juvenile court’s conclusion that the children were adoptable. We find that conclusion sufficiently supported and affirm the juvenile court’s order terminating parental rights.
FACTUAL AND PROCEDURAL BACKGROUND
On August 10, 2007, the Department of Children and Family Services (DCFS) filed a Welfare and Institutions Code section 300 petition, alleging that mother had a history of substance abuse and had used illicit drugs during her pregnancy with A.H. The petition further alleged that N.H. suffered from severe diaper rash and that mother and father failed to change N.H.’s diaper and failed to obtain necessary medical treatment for the diaper rash. At that time G.H. was three, N.H. was two, and A.H. was five months old. Mother pled no contest and is not a party to this appeal.
Statutory references are to the Welfare and Institutions Code.
On August 10, 2007, the children were detained and released to father. However, a subsequent petition filed October 25, 2007 alleged that father had failed to provide the children with timely medical and dental care, including regular examinations and immunizations. It further alleged that N.H. was suffering from strep throat, pharyngitis (sore throat), and head lice, but father failed to provide necessary medical treatment. The juvenile court sustained the petition.
On October 25, 2007, DCFS reported that father had asked his brother and sister-in-law, who live in Arizona, to “adopt the children so as to avoid placing the children in foster care.” The children’s paternal aunt confirmed that the children were living in her home and expressed concern that they had been neglected, and as a result, suffered from several ailments. She was particularly concerned with A.H.’s lack of developmental progress, specifically noting that he was not sitting or rolling over, one side of his face was flat, and his left eye wandered. That same day, DCFS reported that paternal aunt and uncle (aunt and uncle or caregivers) were willing to care for the children. The court detained the children and placed temporary custody with DCFS.
By November 27, 2007, the children had been placed with aunt and uncle. At that time, DCFS reported that N.H. was diagnosed with obesity. Additionally, a physician noticed “significant delays” in A.H.’s development, and he later was diagnosed with intermittent exotropia.
The children continued to reside with aunt and uncle and in February 2008, DCFS reported the children were adjusted and thriving in aunt and uncle’s care, where they were content and comfortable. DCFS also reported that aunt and uncle followed through with all necessary medical care for the children and provided the children with care consistent with their needs. Aunt and uncle were willing and able to adopt the children. At a hearing on February 22, 2008, paternal uncle indicated that his “main concern [was] that the kids stay together....”
On June 27, 2008, DCFS reported that the children continued to thrive in aunt and uncle’s care, and aunt continued to attend to the children’s medical needs. At that time, A.H. was required to wear glasses and was found to suffer from “global delays.” DCFS reported that aunt made sure the children received appropriate medical care. The children were happy and comfortable with their caregivers. Aunt and uncle’s foster care home study was completed and approved. Additionally, aunt and uncle were willing and able to adopt. DCFS reported that the children were adoptable. Four months later, in October, DCFS again reported that the children continued to do well in their placement with aunt and uncle.
A hearing to determine the children’s permanent plan was set for March 11, 2009. In a report dated March 11, 2009, and prepared for that hearing, DCFS described the children’s medical needs. G.H. was receiving mental health services to address eating concerns. His teacher expressed some concern that he wanted her attention at all times. N.H. received therapy to develop the glands and muscles in her throat because she had difficulty swallowing. An assessment conducted October 23, 2008, indicated that A.H. was prone to tantrums and aggressive behavior. The same report indicated that A.H. was happy and was improving in many areas. A.H. was assessed by the Arizona Early Intervention Program in May 2008 and his status was reviewed October 30, 2008. An MRI showed a stain on one side of the brain. A.H. had a limited vocabulary and had difficulty using utensils to eat. The family set goals for A.H. to be able to walk without assistance, to use words to express his needs, and to stop using a bottle. A.H. received speech therapy, and had been referred for psychological assessment.
Also on March 11, 2009, DCFS reported that although the caregivers’ foster care home study had been completed, DCFS could not request an adoption home study from the state of Arizona until parental rights had been terminated. The social worker initially reported that she had not completed her interview with the prospective adoptive parents and for that reason did not recommend adoption. In a supplemental “last minute” filing, the social worker informed the court that she had spoken to the caregivers, and they had reaffirmed their commitment to adopt the children.
Throughout the dependency period, father had been inconsistent in his visits and care of the children. In February 2008, DCFS reported that father had been inconsistent, “detached,” “inappropriate,” and under the influence of alcohol during some of the visits he attended. On June 27, 2008, DCFS reported that father was asked to move out of aunt’s sister’s house because she suspected him of using drugs and he offered drugs to someone in the household. At the same time, DCFS reported that father lacked stable housing and was not attending his parenting classes. By October 2008, father had cancelled many visits and made promises to the children he did not fulfill. On November 6, 2008, DCFS reported that father showed up to a visit drunk. When father took the children on an outing, father left A.H.’s stroller behind a couple of times, appearing to forget about A.H. Father also asked strangers for food. G.H. reported that father bit his back. On November 14, 2008, the court terminated father’s reunification services.
At the section 366.26 hearing, no witness testified. Father’s counsel argued that father “feels he has a very strong bond to the children and the children to him.” The court found “[t]he children have some special needs.” “The caretakers are well aware of these children’s needs and are meeting the children’s needs on a regular basis and [e]nsuring that all assessments are made and interventions made. Any special needs that the children have do not pose a barrier to the clear and convincing evidence that it is likely the children will be adopted.” The court terminated father’s parental rights. Father appeals from the March 11, 2009 order terminating his parental rights.
DISCUSSION
Father contends there was insufficient evidence to support the court’s finding that it was likely the children would be adopted.
In the juvenile court, father challenged neither the sufficiency of the evidence nor the adoption assessment report. A challenge to the sufficiency of the evidence is not forfeited by failing to raise it in the juvenile court. (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1561; In re Erik P. (2002) 104 Cal.App.4th 395, 399.) However, as father recognizes, an argument that the adoption assessment does not comply with the requirements of section 366.21 is forfeited if it is not raised it in the juvenile court. (In re Erik P., at p. 399.) Although egregious deficiencies in an assessment report may “impair the basis of a court’s decision” (In re Brian P. (2002) 99 Cal.App.4th 616, 623), here the juvenile court’s decision was sufficiently supported by evidence in other portions of the record.
The juvenile court may terminate parental rights if it determines by clear and convincing evidence that it is likely the child will be adopted within a reasonable time. (In re Erik P., supra, 104 Cal.App.4th at p. 400.) There is no requirement that the minor be placed in a potential adoptive home. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) However, “the existence of a prospective adoptive parent, who has expressed interest in adopting a dependent child, constitutes evidence that the child’s age, physical condition, mental state, and other relevant factors are not likely to dissuade individuals from adopting the child. In other words, a prospective adoptive parent’s willingness to adopt generally indicates the child is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family.” (In re A.A. (2008) 167 Cal.App.4th 1292, 1312.) “[T]he law does not require a juvenile court to find a dependent child ‘generally adoptable’ before terminating parental rights. All that is required is clear and convincing evidence of the likelihood that the dependent child will be adopted within a reasonable time.” (Id. at p. 1313.)
In In re A.A., supra, 167 Cal.App.4th 1292, a case similar to the present one, the court applied the foregoing principles. It found substantial evidence of adopt ability even where the children were diagnosed with various ailments including attachment disorder, delayed language skills, and other behavioral and emotional problems. (Id. at p. 1312.) The court emphasized that the children were making progress and that their caregivers saw them as bright children with a bright future. (Ibid.) “Despite the children’s current emotional and behavioral problems, their current caregivers had not wavered from their commitment to raising the children as their own, advising the court, ‘[w]e are 100% committed to these girls. It’s an adjustment for everyone but I think we are all doing well.’” (Ibid.) The court concluded: “Given the children’s positive attributes, the progress they were making in overcoming their behavioral and emotional problems, as well as the current and former caregivers’ willingness to adopt them, the court properly could find it was likely the children would be adopted.” (Id. at pp. 1312-1313.)
Similarly, here substantial evidence supported the juvenile court’s finding that the children were adoptable. Aunt and uncle repeatedly expressed a desire to care for and adopt all three children. Uncle wanted to make sure the children stayed together. Aunt took care of all the children’s medical needs. While she expressed concern over A.H.’s developmental delays, she made sure that he received appropriate medical care, and the record shows that he was making progress in aunt and uncle’s care. The caretakers were also cognizant of N.H.’s and G.H.’s needs, as they were the ones caring for the children and taking them to their medical appointments. On May 5, 2009, six days before the section 366.26 hearing, the caregivers again informed the social worker that they were “committed to the care of the children, and are committed to adopting the children....” This constitutes substantial evidence supporting the juvenile court’s conclusion that the children were adoptable. (In re A.A., supra, 167 Cal.App.4th at p. 1312; see also In re Erik P., supra, 104 Cal.App.4th at p. 400 [where prospective adoptive parents knew of family history of mental illness, had adopted child’s siblings, and were committed to keep siblings together, finding that child was adopted was supported].)
Appellant’s statement that the caregivers’ last expression of interest in adoption was June 27, 2008 is incorrect, as is the further assertion that the potential adoptive parents stated they were willing to adopt when they were unaware the children had any disabilities. The record indicates that the caregivers spoke to the social worker on March 5, 2009 and again reaffirmed their willingness to adopt.
Although father correctly points out that the social worker did not recommend adoption, our review is to the juvenile court’s finding of adopt ability, not the social worker’s recommendation. (In re Valerie W. (2008) 162 Cal.App.4th 1, 13 [“We give the court’s adopt ability finding the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of the judgment.”].) In addition, on June 27, 2008, DCFS also found the children “to be adoptable” and “happy and comfortable in the presence of their caregivers.” In a “last minute” report, DCFS indicated that aunt and uncle reaffirmed their desire to adopt on March 5, 2009, shortly before the section 366.26 hearing.
Father’s reliance on In re Valerie W., supra, 162 Cal.App.4th 1 is misplaced. In that case, the social worker’s report incorrectly stated that both caregivers had previously adopted and had been approved for international adoption when only one had been approved. (Id. at pp. 14, 15.) The record suggested the child would be tested for a serious genetic or neurological disorder, but there was a dearth of evidence concerning the child’s condition, prognosis and treatment needs, thus undermining the conclusion that a prospective adoptive parent was capable of meeting the child’s needs. (Ibid.) The agency failed to assess what would happen in the event the proposed mother and daughter joint adoption was not approved. (Id. at p. 14.) The record did not reveal whether the court understood the prospective adoptive parents were a mother and daughter as opposed to a married couple or persons in a domestic partnership. (Id. at p. 16.) In contrast to In re Valerie W., supra, 162 Cal.App.4th 1, here the caregivers both had been approved following a home study by the state of Arizona, they were aware of the children’s conditions and were consistently meeting the children’s needs, and the court understood that the prospective adoptive parents were the same caregivers who had been caring for the children for over a year, during which the children had made substantial progress.
DISPOSITION
The March 11, 2009 order terminating father’s parental rights is affirmed.
We concur:, EPSTEIN, P. J., WILLHITE, J.