Opinion
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. No. JD07-3297
Margulies, J.
K.M. was detained as a newborn by the City and County of San Francisco Department of Human Services (Agency) after prenatal methadone exposure caused her distress at birth. Within a month, K.M.’s parents, Ana S. (Mother) and Lorenzo M. (Father), ceased contact with her. After K.M.’s maternal grandmother (Grandmother) was identified as a prospective adoptive parent, the juvenile court found K.M. adoptable and terminated parental rights. Mother, who was eventually located, and Father, who has been deported to Mexico, contend the juvenile court erred in finding K.M. adoptable. We affirm.
I. BACKGROUND
K.M. was detained by the Agency when she was just one month old. In a juvenile dependency petition filed under Welfare and Institutions Code section 300, subdivisions (b) and (g), the Agency alleged K.M. had tested positive for methadone at birth and required intensive care as a result of her prenatal drug exposure. Mother and Father were said to be unable to care for K.M. as a result of their mutual histories of drug abuse and Mother’s “significant mental health issues.”
All statutory references are to the Welfare and Institutions Code.
In a report prepared for the detention hearing, the Agency explained that both parents had a long history of heroin abuse. Mother, who also had a history of mental illness, was undergoing methadone treatment at the time of K.M.’s birth. Despite encouragement from the Agency, Mother’s postnatal visits with K.M. in the hospital were sporadic. At the time the Agency detained K.M., neither parent had visited their baby in nearly a week. Mother had stopped attending the methadone clinic, and she had tampered with her drug test sample, causing the clinic to assume she had resumed drug use.
By order of September 17, 2007, the juvenile court detained K.M. Over the next year, as the dependency proceedings unfolded, the parents failed to visit K.M. or appear for any of the statutory hearings, and their whereabouts remained unknown despite diligent searches.
It was eventually learned that Father was deported to Mexico in June 2008.
During her first months, K.M. suffered the symptoms of irritability and sleeplessness typical of infants with prenatal narcotic exposure, but she gradually improved. The Agency quickly identified Grandmother, who already had custody of two of Mother’s children, as a foster parent for K.M. At the jurisdictional and dispositional hearing held November 28, 2007, the juvenile court sustained certain of the allegations, declared K.M. to be a dependent of the court, found Father to be a presumed father, denied services to the absent parents, and placed K.M. with Grandmother.
In the July 2008 report prepared for the selection and implementation hearing (§ 366.26), the Agency recommended that the parents’ rights be terminated and K.M. placed for adoption. By that time 11 months old, K.M. was reported as happy and healthy, but her prenatal trauma had left its mark. She “continue[d] to have on-going upper respiratory infections” requiring use of a humidifier at night, and a developmental assessment found she had “significant delays in overall development,” including delays in “the areas of cognitive, fine motor, language, social and self help skills.” As a result, K.M. was participating in a stimulation program and receiving therapy to develop her fine motor skills. Despite these issues, she was not adjudged by the Agency to “have special education or developmental needs.”
The report described Grandmother, who was “committed to adoption as the permanent plan,” as a “very busy” 49-year-old who had been employed in Los Angeles County government for the past 10 years. She was “a member of a large Mormon community which offers her a great deal of support and resources” and had no criminal history. The Agency’s adoptive home study eventually found Grandmother to be “an appropriate caretaker” and approved her as K.M.’s adoptive parent.
The selection and implementation hearing was not held until February 3, 2009, more than six months after the filing of the Agency report. During testimony at the selection and implementation hearing, Mother’s attorney sought to prove that Grandmother had abused Mother when she was a child. In response to a relevance objection from the Agency’s attorney, Mother’s counsel argued, “I think that there is no case made in this report that [K.M. is] generally adoptable. And that, therefore, I have the right to question this worker as to specific adoptability and the appropriateness of this caretaker.” Counsel for the Agency responded, “Your Honor, the standard is proving that the minor is not adoptable; not that she is adoptable. Therefore, that question is irrelevant.” After Mother’s counsel repeated her contention that “the only analysis of adoptability I see in [the Agency report] is that of this particular caretaker adopting [K.M.],” the following colloquy occurred:
By that time, Mother had been located and disappeared again. In January 2009, she had filed a section 388 motion to modify the court’s prior order seeking reunification services and K.M.’s return, premised on her entry into mental health and drug abuse treatment in October 2008. By the time of the selection and implementation hearing, however, Mother had left the program, and her attorney had lost contact with her. When Mother failed to appear for the hearing, the juvenile court denied her motion to modify.
“THE COURT: Well, let me ask something. Isn’t the law whether abstractly the child is not adoptable as opposed to not adoptable by this particular caretaker?
“[Mother’s Counsel]: Your honor, it is. But there’s [no] analysis of this in here. The analysis is of this specific caretaker and her ability and appropriateness to adopt this child. [¶] If this report had reflected a section which explained [why] [K.M.] is generally adoptable, then I [would] agree and I didn’t have any questions on that.
“THE COURT: Let me cut this short for a moment. But as I understand the law, it is your responsibility to demonstrate the child isn’t adoptable. And so thus, that is the leeway you have here. Not whether this caretaker is appropriate to adopt the baby.
“[Mother’s Counsel]: I don’t know if I agree with that. I mean, the report is supposed to lay out why the child is adoptable, either generally or specifically. And from the reading of this report, there’s no analysis as to whether this child would be generally adoptable. It more lays out why the child is specifically adoptable.
“THE COURT: I don’t agree with that analysis, because look on page 3, the baby is described as happy, healthy, good health, sees her pediatrician regularly. [¶] Yes. She is tox positive [sic] and there are some delays, but there’s no reason to believe that that will prevent her from being adopted. [¶] It’s for you to demonstrate that because of, I guess some of these delays, she won’t be adopted. There’s nothing here that indicates that she is not adoptable. She’s a little baby who is in good health who is making progress. [¶] So if you want to proceed to elicit testimony which would demonstrate that she’s not adoptable, you may proceed. But I don’t agree with your characterization of the report.”
In the testimony that followed, the social worker confirmed K.M. was still receiving therapy for her developmental delays, which were estimated at four to six months. She continued to suffer from respiratory congestion about once a month. The social worker also testified that doctors had recently discovered a condition in K.M.’s hip that prevented her from placing weight on one leg and therefore from standing upright. K.M. had been using a walker to assist in learning to walk. Despite this evidence, the juvenile court denied counsel’s request to demonstrate Grandmother’s unfitness as an adoptive parent. The court thereafter terminated parental rights and found K.M. adoptable.
II. DISCUSSION
Mother and Father contend (1) the juvenile court improperly placed the burden of proof on Mother in finding K.M. adoptable; and (2) there was insufficient evidence to demonstrate that K.M. was adoptable, either generally or specifically by Grandmother.
As an initial matter, the Agency contends the appeals should be dismissed because the notices of appeal were signed by counsel and the parents had shown little interest in the proceedings. Although a line of cases in the Fourth District held that such an inquiry is appropriate (see Suzanne J. v. Superior Court (1996) 46 Cal.App.4th 785, 787–788 and cases cited therein), that District has more recently disapproved those cases, refusing to dismiss an appeal in the absence of evidence “affirmatively showing the attorney’s lack of authorization.” (In re Helen W. (2007) 150 Cal.App.4th 71, 78.) The Agency presents no evidence demonstrating these appeals were affirmatively unauthorized. On the contrary, both parents’ attorneys told the court their clients were very interested in retaining their parental rights in K.M.
A. Governing Law
“The court may terminate parental rights only if it determines by clear and convincing evidence the minor is likely to be adopted. (§ 366.26, subd. (c)(1).) The statute requires clear and convincing evidence of the likelihood adoption will be realized within a reasonable time. [Citations.] In determining adoptability, the focus is on whether a child’s age, physical condition and emotional state will create difficulty in locating a family willing to adopt. [Citations.] To be considered adoptable, a minor need not be in a prospective adoptive home and there need not be a prospective adoptive parent ‘ “waiting in the wings.” ’ [Citation.] Nevertheless, ‘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.’ ” (In re R.C. (2008) 169 Cal.App.4th 486, 491, italics omitted.)
There are two alternative methods of demonstrating adoptability. “General adoptability” is demonstrated when an Agency proves that a child’s personal characteristics are sufficiently appealing that it is likely an adoptive family will be located for the child in a reasonable time, regardless of whether a prospective adoptive family has yet been found. “Specific adoptability” refers to an Agency’s demonstration that it has located a committed adoptive family for a child whose adoptability is otherwise in question, most often because the child is part of a sibling group, has a physical or mental disability requiring a high level of care, or is relatively old. (See § 366.26, subd. (c)(3).) When a prospective adoptive family has been found for such a child, the child is found likely to be adopted, not in the abstract, but because that specific adoptive family has committed to adoption. (See, e.g., In re Carl R. (2005) 128 Cal.App.4th 1051, 1060–1061; In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649–1650.)
Because specific adoptability depends upon a successful adoption by the designated prospective adoptive family, the judicial inquiry must, to a limited degree, include that family. “When a child is deemed adoptable only because a particular caretaker is willing to adopt, the analysis shifts from evaluating the characteristics of the child to whether there is any legal impediment to the prospective adoptive parent’s adoption and whether he or she is able to meet the needs of the child.” (In re Helen W., supra, 150 Cal.App.4th at p. 80.) This limited inquiry into the characteristics of the prospective adoptive family is necessary because a demonstration that the family is legally prevented from adopting or is incapable of caring for a child with special needs would preclude a finding of adoptability. (See, e.g., In re Carl R., supra, 128 Cal.App.4th at pp. 1061–1062; In re Sarah M., supra, 22 Cal.App.4th at p. 1650.) Nonetheless, even in these situations this inquiry must be balanced against the concern that “[i]f an inquiry into the suitability of prospective adoptive parents were permitted at the section 366.26 hearing, many hearings would degenerate into subjective attacks on those prospective adoptive parents—a result not envisioned by the statutory scheme. [Citation.] Those types of inquiries might also discourage people from seeking to adopt, a result that would contravene the strong public policy favoring adoption.” (In re Carl R., at pp. 1061–1062.)
“When reviewing a court’s finding a minor is adoptable, we apply the substantial evidence test. [Citations.] If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we must uphold those findings. We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or weigh the evidence. [Citations.] Rather, our task is to determine whether there is substantial evidence from which a reasonable trier of fact could find, by clear and convincing evidence, that the minor is adoptable. [Citation.] The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order.” (In re R.C., supra, 169 Cal.App.4th at p. 491.)
B. The Allocation of Burden of Proof
While we acknowledge the juvenile court’s description of the burden of proof during its colloquy with counsel was arguably incorrect, we conclude the court properly understood its task in determining adoptability.
There is no doubt the burden of proof was on the Agency to demonstrate adoptability by clear and convincing evidence. (§ 366.26, subd. (c)(1); In re Thomas R. (2006) 145 Cal.App.4th 726, 731.) As a practical matter, however, once a child welfare agency has provided the juvenile court with evidence that, on its face, constitutes clear and convincing evidence of adoptability, the child will be found adoptable unless the parent provides some evidence casting doubt on the credibility or weight of the agency’s evidence. We are persuaded by a review of the totality of the juvenile court’s remarks that it was making this point in its colloquy with counsel, rather than expressing its view as to the ultimate allocation of burden of proof.
The juvenile court made clear it had been persuaded by the Agency’s report pursuant to section 366.22, subdivision (c)(1) that K.M. was adoptable. As the court said, “the baby is described as happy, healthy, good health, sees her pediatrician regularly. [¶] Yes. She is tox positive [sic] and there are some delays, but there’s no reason to believe that that will prevent her from being adopted. [¶]... She’s a little baby who is in good health who is making progress.” It was only in light of that prima facie demonstration by the Agency that the juvenile court suggested the burden of coming forward with evidence of non-adoptability lay with Mother’s counsel. As the court expressed the concept, “It’s for you to demonstrate that because of, I guess some of these delays, she won’t be adopted.”
Even if the juvenile court had erred, however, we would find that error harmless. Applying the harmless-error rule of People v. Watson (1956) 46 Cal.2d 818, 836, which we are required to apply in connection with statutory violations that occur in dependency proceedings (In re Jesusa V. (2004) 32 Cal.4th 588, 624–625), we conclude it is not reasonably probable the result would have been more favorable to the parents absent the error because, as discussed below, the evidence supporting K.M.’s adoptability was very strong.
We would reach the same result if a somewhat higher standard for harmless error were applied, as suggested in Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 1514–1515.
C. General Adoptability
K.M. was barely 18 months old at the time of the hearing. Very young children readily find an adoptive home, particularly when they do not suffer from a condition that will impose unusual burdens on their adoptive families. While K.M. was suffering some delays in her social and mental development, there was no evidence to suggest these were anything other than delays in the course of otherwise normal development. Nothing in the record suggests K.M. will be permanently mentally or emotionally disabled in any manner, and certainly not in a manner that would impose an unusual burden on an adoptive family. The fact that the ultimate outcome of K.M.’s condition is not yet known does not prevent her from being found adoptable. (See, e.g., In re Helen W., supra, 150 Cal.App.4th at p. 79.)
K.M. had also recently been found to be suffering from an undiagnosed condition in her hip that had prevented her from learning to walk. Again, there is nothing in the record to suggest this will result in a permanently disabling condition. Yet even if the present condition persists, K.M. at most will not have the complete use of one leg. That condition will not impose any unusual burdens on K.M.’s adoptive family, nor will it reduce significantly K.M.’s desirability as an adopted child. Even without considering the availability of Grandmother as a prospective adoptive parent, there was substantial evidence to support a finding by clear and convincing evidence that K.M. would likely be adopted within a reasonable period of time.
Essentially indistinguishable is In re R.C., supra, 169 Cal.App.4th 486,in which the court affirmed a finding that an infant exposed to narcotics in utero and suffering speech delays was generally adoptable. As evidence of general adoptability, the court noted the willingness of the foster family to adopt the child despite an awareness of his problems was proof other prospective adoptive parents would not be dissuaded from adopting. (Id. at p. 492.) While the evidentiary force of Grandmother’s willingness to do the same is lessened somewhat by her direct family tie with K.M., it is nonetheless true that Grandmother’s full knowledge of K.M.’s difficulties has not reduced her commitment to adoption. This further supports the juvenile court’s finding of general adoptability.
In the reported cases in which an agency was found not to have demonstrated a likelihood of adoption, the children were invariably older than K.M. and suffered from a physical disability or serious emotional condition that required a level of care significantly beyond that for a typical child. (E.g., In re Ramone R. (2005) 132 Cal.App.4th 1339, 1352 [older child with severe behavioral problems that were a challenge even for a foster parent experienced in handling such children]; In re Asia L. (2003) 107 Cal.App.4th 498, 510–511 [hyperactive five-year-old who steals, lies, and aggravates other children and an older sibling who was “ ‘out of control’ ” due to extreme hyperactivity].) In contrast, young children who suffer from conditions likely to be temporary or not unusually disabling are generally found adoptable. (E.g., In re A.A. (2008) 167 Cal.App.4th 1292, 1312 [three- and four-year-old children with delayed language skills and attachment disorder found generally adoptable]; In re Helen W., supra, 150 Cal.App.4th at pp. 74–76 [developmentally delayed one-year-old with digestive problems and neurofibromatosis and an autistic, possibly bipolar four-year-old sister found generally adoptable]; In re Jeremy S. (2001) 89 Cal.App.4th 514, 523–524, disapproved on other grounds in In re Zeth S. (2003) 31 Cal.4th 396, 413–414 [child with potentially treatable seizures and occasional, improving tantrums found generally adoptable]; In re Jennilee T. (1992) 3 Cal.App.4th 212, 224 [baby with possible genetic predisposition to mental illness found generally adoptable].)
Mother argues, as did her counsel below, that the juvenile court was precluded from finding K.M. generally adoptable because the Agency’s report did not discuss K.M.’s adoptability independently of Grandmother’s willingness to adopt. Nothing in the dependency statutes, however, precludes the juvenile court from making an independent evaluation of general adoptability, based upon the evidence presented to it. As the juvenile court noted, K.M. was generally healthy, and there was nothing in her developmental problems that significantly reduced her appeal as an adopted child. If Grandmother were not available, another family would have been found that was eager to adopt K.M. The Agency was not required to state this conclusion in its report in order for the juvenile court to make this finding.
In the words of the juvenile court, “I don’t agree with that analysis [that the Agency report demonstrated only that K.M. was specifically adoptable], because look on page 3, the baby is described as happy, healthy, good health, sees her pediatrician regularly. [¶] Yes. She is tox positive [sic] and there are some delays, but there’s no reason to believe that that will prevent her from being adopted.”
D. Specific Adoptability
Grandmother’s undisputed willingness to adopt K.M. made the case for specific adoptability even stronger than the case for general adoptability. There was no doubt that Grandmother intended to adopt K.M., and there was no evidence of a legal impediment to adoption or inability of Grandmother to meet K.M.’s needs. At the time of the hearing, Grandmother had been caring successfully for K.M. for several months, and Grandmother’s other children, K.M.’s half-siblings, were enthusiastic about their baby sister. Mother argues that because the extent of K.M.’s deficiencies was unknown, there was no evidence Grandmother would be able to meet K.M.’s needs. As noted above, however, uncertainty about a child’s health problems does not render the child non-adoptable (see, e.g., In re Helen W., supra, 150 Cal.App.4th at p. 79), and there was nothing in the reports of K.M.’s health problems to suggest they would impose an unusual burden on her caregiver.
To the extent K.M. had development difficulties, Grandmother, a certified nursing assistant, had shown herself capable and willing to work with them. In an assessment filed with the court, the social worker described K.M.’s development as “good/but slow” and noted Grandmother was working with the child care provider “to promote development in child’s grasping and handling things & crawling.”
Mother relies largely on In re Valerie W. (2008) 162 Cal.App.4th 1, but that decision is readily distinguishable. In Valerie W., the court found “egregious” deficiencies in the section 366.22 report, including the failure to analyze the background of one of the prospective adoptive parents and the suspicion of a “serious” genetic or neurological condition that could require special parental caretaking skills. (In re Valerie W., at pp. 14–15.) There were no such deficiencies here. Grandmother’s background was fully investigated, and none of K.M.’s known health problems presented the risk of requiring special parental care.
III. DISPOSITION
The order of the juvenile court is affirmed.
We concur: Marchiano, P.J., Graham, J.
Retired judge of the Marin County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.