Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tuolumne County Nos. JV5824 and JV5825. William G. Polley, Judge.
Maureen L. Keaney, under appointment by the Court of Appeal, for Defendant and Appellant.
Gregory J. Oliver, County Counsel, Sarah Carrillo, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Levy, J., and Gomes, J.
Ruby S. appeals from orders terminating her parental rights (Welf. & Inst. Code, § 366.26) to her sons Jacob and Charley. She contends the court’s finding that her sons were adoptable was not supported by substantial evidence. On review, we disagree and will affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
In October 2004, the Tuolumne County Superior Court adjudged three-year-old Jacob and one-year-old Charley dependent children. The court previously determined the children were at substantial risk of serious physical harm, having been diagnosed with failure to thrive and based on appellant missing scheduled medical appointments for the children. Charley, in particular, had serious medical problems that required consistent medical attention and monitoring.
At first, the court formally removed only Charley from parental custody and ordered both reunification and family maintenance services for appellant and the father. However, in March 2005, the court removed Jacob as well from parental custody after the court found he too had special medical needs and the parents failed to keep their various appointments. Meanwhile, evidence emerged that appellant lacked verbal and reasoning skills adversely affecting her ability to parent her children.
Eventually in the summer of 2005, Charley was diagnosed with congenital fiber-type disproportion (CFTD), a rare and congenital form of muscular dystrophy, associated with failure to thrive. Nevertheless, given its ongoing concern over the parents’ failure to provide consistent medical supervision of their special needs children, the court in late 2005 found the parents received reasonable reunification services and terminated those services in order to pursue permanency planning for the children.
On review of appellant’s petition for extraordinary writ, this court concluded the parents did not receive reasonable services and consequently vacated the permanency planning setting order. (Ruby S. v. Superior Court (Mar. 13, 2006, F049378) [nonpub. opn.].) We directed in our disposition the creation of a new case plan based on a comprehensive medical plan addressing the various services needed to manage Jacob and Charley’s medical conditions and accommodating, as reasonably possible, appellant’s intellectual limitations. (Ibid.)
Despite the new case plan to address her needs and reasonable services provided, appellant made minimal progress. Consequently, in July 2007, the court once again terminated reunification services and set a section 366.26 hearing to select and implement a permanent plan for each child.
In advance of the section 366.26 hearing, respondent Tuolumne County Department of Social Services (department) prepared a “366.26 WIC Report” in which it recommended the court select adoption as the permanent plan for the children and terminate parental rights. According to the department, an adoption specialist with the California Department of Social Services (CDSS) had determined the children were likely to be adopted. The department reported in this regard:
“Although both the children have significant mental, behavioral and medical concerns, they have made and continue to make numerous strides. In addition, they possess qualities that deem them adoptable. They have bonded with the prospective adoptive families and have shown that they can be maintained in a home where they are safe and their needs are consistently met. The children are playful and affectionate. The children currently refer to the prospective adoptive family as ‘mom’ and ‘dad.’ They have a clear bond with the immediate and extended family of the prospective adoptive parents.”
Attached to the department’s report was the CDSS adoption specialist’s “W.I.C. 366.26 ADOPTION ASSESSMENT” of the children. In it, she described having conducted a review with the department, interviewed the children and their foster parents, and also reviewed available records concerning the children’s medical, psychological, scholastic, and developmental backgrounds.
The CDSS adoption specialist described Jacob as:
“an adorable six-year-old boy with brown hair and eyes. Jacob was very small when detained and was diagnosed with malnutrition and failure to thrive. He received services from [Valley Mountain Regional Center (VMRC)] for developmental delays until he turned three years of age. He is repeating Kindergarten at Jamestown Elementary this year due to behavioral issues and lack of maturity. It is reported that Jacob is adapting well to the school program overall and he likes the other children in the classroom. He is receiving adaptive physical education and speech therapy at school.
“Jacob is a healthy child at this time and his immunizations are up to date. He is followed by Dr. Cabanag at Tuolumne County Miwok Indian Center for routine medical care. He weighed 42 pounds at his last medical appointment.
“Jacob is also seen twice a month at Tuolumne County Mental Health. He has been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and will begin medication management once the court approves the order.”
According to the CDSS adoption specialist, Charley was:
“a very sweet four-year-old boy with light brown hair and brown eyes. He has had numerous medical appointments and hospitalizations to address his many developmental delays and medical needs. He was diagnosed with [CFTD] while hospitalized at UCSF on 7/26/05. He has a gastric (PEG) feeding tube to help with nutrition and he requires a specialized orthotic brace on his leg due to nerve damage resulting in drop foot and poor muscle development from an erroneous nerve biopsy. Charley received services from the [VMRC] Early Start Program for developmental delays until he turned three. He will begin in Head Start this year and will continue to receive occupational therapy twice a month and physical therapy once a month at a nearby school. Charley was assessed for speech services on 3/13/06 and at that time did not meet the criteria for services. An Individual Education Plan (IEP) will be requested this year including another assessment for speech services.
“Charley is followed by Dr. Martinez, pediatric gastroenterology and Dr. Donat, pediatric neurologist at Oakland Children’s Hospital. Charley receives his routine medical care from Dr. Cabanag at the Tuolumne Mi-Wuk Indian Health Center. He currently weighs 25 pounds.”
The children were too young to make statements regarding their permanent plan preference. However, the adoption specialist observed the children responded positively to the nurturing and care they received from their caregivers. The children also had made many emotional, physical, and developmental strides over the course of their out-of-home placement.
The adoption specialist also identified the children’s caregivers as their prospective adoptive parents. They had been the children’s foster parents essentially since 2004 and were very committed to the children and their adoption. The prospective adoptive parents had been strong advocates for the children, had attended the children’s numerous medical appointments, and had been at Charley’s side during all of his hospitalizations. A preliminary assessment of the couple’s suitability to adopt was also positive.
Other portions of the record established the prospective adoptive parents had received special training in dealing with the children’s health problems.
Attached as well to the department’s report, was a letter signed by each of the prospective adoptive parents in which they wrote:
“Jacob and Charley C[.] have been in our care as foster children now for 3 years 5 months and have become a very significant part of our immediate family as well as our extended family. It is our desire and hope to someday adopt the boys and make our home a permanent placement for them, where they can feel safe and secure and not have to be moved. The boys are very well established in their present setting in our home and being ‘special needs’ children have many community resources in place to help with their needs.
“It has been our pleasure and honor to have these boys in our home, and we look forward to a long future with them.”
The court conducted its section 366.26 review in October 2007. At the hearing, all parties, including appellant, submitted on the department’s report and attachments. The court in turn found clear and convincing evidence that each of the children would be adopted and ordered termination of parental rights.
DISCUSSION
Appellant contends the court erroneously found the children were generally adoptable. Relying on the children’s medical histories and special needs, appellant contends the children were not generally adoptable. She also criticizes the adoption specialist’s adoptability opinion for not specifying the attributes that made the children adoptable. According to appellant, any analysis of the likelihood of their adoption depended solely on the foster parents’ desire to adopt them. Under these circumstances, appellant further claims the case law foreclosed the court from finding the children were specifically adoptable unless it inquired into the prospective adoptive parents’ ability to meet the children’s needs. She concludes, therefore, that she is entitled to reversal.
The adoptability issue at a section 366.26 hearing focuses on the dependent child, e.g., whether his or her age, physical condition, and emotional state make it difficult to find a person willing to adopt. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649 (In re Sarah M.).) It is not necessary that the child already be in a potential adoptive home or that there be a proposed adoptive parent “waiting in the wings.” (In re Jennilee T. (1992) 3 Cal.App.4th 212, 223, fn. 11.)
By converse, 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 Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.)
Having reviewed the record as summarized above, we find no support for appellant’s claims. First, the trial court did not determine the children were generally adoptable. Rather, it simply found clear and convincing evidence that the children would be adopted based on all the evidence. Second, to the extent appellant claims there was a lack of specificity in terms of the factors supporting either the department’s or the adoption specialist’s adoptability opinion, we note appellant had the opportunity to raise this issue in the trial court, by asking to cross-examine the adoption specialist or the department’s social worker. However, she did not take advantage of that opportunity, submitting instead on those reports.
Third, as for appellant’s argument over generally adoptable versus specifically adoptable children, we frankly do not see the point. The law does not compel a greater showing if a child is adoptable solely because a particular individual wishes to adopt him or her. We recognize that the appellate court in In re Carl R. (2005) 128 Cal.App.4th 1051, 1061 (In re Carl R.), did observe:
“[W]here the child is deemed adoptable based solely on the fact that a particular family is willing to adopt him or her, the trial court must determine whether there is a legal impediment to adoption.”
However, In re Carl R. involved such a unique set of circumstances that it is of little precedential value to this case. As even that court observed, the issue in In re Carl R., was “very narrow – what is the proper scope of the inquiry by the juvenile court in determining the adoptability of a child who will require intensive care for life?” (In re Carl R., supra, 128 Cal.App.4th at p. 1062.) Also, we question the imperative of In re Carl R., -- that is the trial court must determine whether there is a legal impediment -- given its reliance on In re Sarah M., wherein the appellate court stated an inquiry at the trial court level into legal impediments may be made (In re Sarah M., supra, 22 Cal.App.4th at p. 1650). In yet another case, In re Scott M. (1993) 13 Cal.App.4th 839, 844, an appellate court reasoned if a parent sought to introduce evidence of some legal impediment to adoption, such evidence would be relevant when a social worker’s opinion regarding adoptability was based at least in part on the existence of a prospective adoptive parent willing to adopt. Notably, here, appellant did not seek to introduce any evidence of legal impediment nor does she argue so before this court.
The child in In re Carl R., suffered severe disabilities such that he would always require total care. Indeed, he had lived for most of his life in a convalescent hospital and, although almost eight years old, had the emotional maturity of an eight-month-old child. (In re Carl R., supra, 128 Cal.App.4th at p. 1058.)
In any event, to the extent appellant contends there was no inquiry into the prospective adoptive parents’ ability to meet the children’s needs, we note she ignores the record, which demonstrated they had been meeting the children’s needs for years and the children in turn made many emotional, physical, and developmental strides while in their care. Under these circumstances, a separate inquiry would appear unnecessary. What the statutory scheme does require in this regard is a preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent. (§ 366.21, subd. (i)(1)(D); § 366.22, subd. (b)(1)(D).) The appellate record in this case contains a favorable assessment of the prospective adoptive parent’s eligibility and strong commitment.
Fourth, appellant’s claims of error fail because they essentially rely on speculation, i.e. suppose the prospective adoptive parents do not adopt the children, and amount to nothing more than an invitation for this court to reweigh the evidence. We will neither speculate nor supplant the juvenile court’s role as trier of fact. (See In re Laura F. (1983) 33 Cal.3d 826, 833.)
Last, no doubt Jacob and Charley are special needs children, medically and developmentally speaking. However, they also are very young and have endearing characteristics. Finally, they are in a long-standing and bonded placement, living with a couple who share a loving relationship with the children and are very committed to adopting them. To cite, as appellant does, cases such as In re Jayson T. (2002) 97 Cal.App.4th 75 (Jayson T.) and In re Asia L. (2003) 107 Cal.App.4th 498, 509-510 (Asia L.), misses the point. In Jayson T., the appellate court sought to justify its evaluation of evidence which did not exist at the time of the trial court’s decision, an effort which our state Supreme Court soundly rejected in In re Zeth S. (2003) 31 Cal.4th 396, 413-414. In Asia L., the appellate court noted there was no evidence of any approved families willing to adopt the children. (Asia L., supra, 107 Cal.App.4th at page 512.) However, appellant ignores the lack of any holding in either opinion to require such proof as well as the factual dissimilarities between Asia L. and her children’s circumstances. The dependent children in Asia L. had emotional and behavioral problems serious enough to make them difficult to place for adoption (§ 366.26, subd. (c)(3)). Notably, they were not in an adoptive placement. At best, their foster parents were willing to “explore the option of adopt[ion].” (In re Asia L., supra, 107 Cal.App.4th at p. 512.) Those facts are a far cry from those in this case.
DISPOSITION
The orders terminating parental rights are affirmed.