Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Fresno County. No. 08-300008, Jane A. Cardoza, Judge.
Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant and Appellant.
Kevin Briggs, County Counsel, and William G. Smith, Deputy County Counsel for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Kane, J. and Franson, J.
T.A. (mother) appeals from an order terminating her parental rights (Welf. & Inst. Code, § 366.26) to her 12-year-old daughter, K. Mother contends there was insufficient evidence that the child was likely to be adopted, and therefore the juvenile court erred by terminating mother’s rights. On review, we disagree and affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
In 2008, the juvenile court adjudged then 10-year-old K. and her three younger siblings dependent children. Mother had a history of using inappropriate punishment on her children, one of whom suffered serious physical harm. (§ 300, subd. (a).) That child also suffered severe emotional damage due to mother’s failure to provide appropriate care. (§ 300, subd. (c).) The court initially removed that child from parental custody, while permitting K. and her other siblings to remain in mother’s care. Later in 2008, however, respondent Fresno County Department of Social Services (department) had to remove K. and the others and place them in foster care because of additional problems mother had in caring for her children. The department placed K. in a foster home separate from her siblings. K. has lived apart from her siblings throughout the balance of these proceedings.
Despite reasonable reunification services, mother made minimal progress toward alleviating or mitigating the causes necessitating the children’s placement in foster care. As a result, in the summer of 2010, the court terminated reunification services and set a hearing pursuant to section 366.26 to select and implement permanent plans for K. and her siblings. Because mother raises no issues regarding her other children, our opinion shall make no further reference to them.
Soon after the court set the section 366.26 hearing, the department assigned an adoption social worker, Lexi Alcazar, to K.’s case. The department also changed K.’s placement to respite care. Her long-time foster parent was no longer able to care for the child. The foster parent had been hospitalized after suffering a stroke.
Meanwhile, K. had an individualized educational plan (IEP), which her school needed to implement. When her teacher, Ms. L., called Alcazar to report this need, the social worker realized Ms. L. had considerable knowledge about K.’s current situation. Alcazar discovered Ms. L. and her husband had become mentors to K. over the preceding two years. They were also interested in placement.
In November 2010, because the court previously appointed K.’s former foster parent as holder of the child’s educational rights, Alcazar asked the court to change its order and instead appoint Ms. L. and her husband. The juvenile court granted the request.
Subsequently, in her December 2010 permanency planning report, Alcazar recommended that the court authorize K.’s placement in the L. home, find K. likely to be adopted and terminate parental rights. Alcazar described K.’s placement in the L. home as a “mentor placement” with Ms. L., who anticipated providing a permanent plan of adoption for K. once the placement occurred. In assessing K. as likely to be adopted, Alcazar reported the following.
Twelve-year-old K. was in good health. She was soft-spoken, to the point of being timid, and spoke only to people with whom she was familiar. She was also well mannered and for the most part appeared to be in a good mood. K. liked sports, playing video games, going online, watching television, and being outdoors.
Having been previously diagnosed with a cognitive disorder, K. was eligible for services through Central Valley Regional Center (CVRC). She was also attending seventh grade and had been placed in special day classes. Ms. L., who remained K.’s teacher, reported the child worked best in her (Ms. L.’s) presence. When Ms. L. was not in the classroom, K. tended to act out. With consistency in the classroom, K. paid attention and did her work with little or no problems. She had better than average grades.
K. also attended mental health counseling to work on communication, expressing emotions and social skills. At the time of the department’s report, K. and her therapist met every week because K. had gone all semester in the fall of 2010 without experiencing behavioral problems. Previously, they met weekly.
In addition, K. received “Wrap Around Services” to increase her appropriate social skills and communication. These services had been in place for approximately six months. They were one-on-one services with a specialist every other week. According to the specialist, K. was showing signs of improvement. K was more vocal, able to readily answer questions and not hesitant to speak. She also appeared to be more relaxed and was starting to make jokes. Nevertheless, she needed to continue working consistently on her communication skills. Once K. was placed with the L. family, those involved with K.’s wrap around services would look into discharging her.
With respect to K.’s wishes, she asked to “go home” with Ms. L. and be a part of the L. family. She also wanted to be adopted. K. reported having fun “hanging out” with Ms. L. and her family. K. spent a weekend during the Thanksgiving holiday with the L. family. She wished to come back and spend more time with Ms. L. and her family.
For their part, Ms. L. and her husband were highly committed to adopting K. Their relationship with the child started two years earlier when Ms. L. brought two of her daughters to help out in Ms. L.’s classroom. K. and the girls became very close. K. had spent Saturdays with Ms. L. and her daughters, during which time Ms. L. included K. in a wide array of family activities. Over the past two years, K. established an ongoing relationship with Ms. L. and her family, as well as started to open up and learn how to express her feelings.
The L.s told Alcazar that they previously attempted to have K. placed with them. However, at the time of their home evaluation, they did not have a bed for the child, and their home was not approved. Alcazar later conducted a walk-through of the L. home and found it appeared to meet the minimum standards for placement. She noted there was a bed and dresser for K.
It was at the time of the walk-through that Alcazar arranged for K. to spend the Thanksgiving holiday weekend at the L. home. Because the visit went well, with no problems, Alcazar permitted K. to continue spending the following week with the L.s. During that week, Ms. L. also took K. to her therapy appointment. Since then, K. had spent another overnight weekend with Ms. L. Around the time Alcazar wrote her permanency planning report for the court, K. and Ms. L. looked forward to spending more time with each other.
Ms. L. observed K. to be relaxed, friendly and comfortable with all of the L. children. K. loved to joke with Mr. L. as she loved sports and they liked to watch games together. K. also appeared to be affectionate and loved to give hugs and kisses.
In her permanency planning report, Alcazar also included a positive preliminary assessment of Mr. and Ms. L. as K.’s mentors and potential adoptive parents. Both were long-time school teachers and had been mentors to many children in addition to K. Neither Mr. nor Ms. L. had a criminal or child welfare services history. Also, not only were they highly committed to adopting K., they had the ability to meet her needs.
In her report, Alcazar incorrectly identified Mr. and Ms. L. as the child’s prospective adoptive parents. A prospective adoptive parent is, among other things, a current caretaker with whom a dependent child has lived for at least six months. (§ 366.26, subd. (n)(1).)
On the date set for the section 366.26 hearing, mother’s attorney asked to continue the matter for trial. The attorney also stated her and her client’s opposition at the time to K.’s placement with the L.s. Consequently, the court set the matter for a contested hearing in January 2011, without authorizing K.’s immediate placement in her mentors’ home.
At the January hearing, mother claimed that termination would be detrimental to her children based on her relationship with them and offered her own testimony. She offered no evidence to support her opposition to K. being placed with the L. family.
The juvenile court rejected mother’s argument, and having found it likely that K. would be adopted, terminated parental rights.
DISCUSSION
Mother contends there was no evidence to support the juvenile court’s finding that K. was likely to be adopted. According to mother, K. was not generally adoptable because: her age and academic, as well as behavioral, challenges allegedly presented formidable obstacles to the possibility of adoption, and there was no evidence of any approved adoptive homes willing to take in a child such as K. Mother also argues K. was not specifically adoptable because: K. was not living with a caregiver who was willing to adopt, and the L. family had not been approved for placement or foster care, let alone adoption. As a consequence, mother further complains the L. family had not received full disclosure of K.’s background and special needs. In mother’s view, this left the juvenile court in no position to determine whether the L. family was suitable or eligible to meet her special needs, and therefore, whether K. was likely to be adopted.
We disagree. As discussed below, mother’s arguments are supported neither by the law nor the record in this case.
The adoptability issue at a permanency planning 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 (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.) Indeed, the fact that a child is not yet placed in a preadoptive home does not constitute a basis for concluding that it is unlikely the child will be adopted. (§ 366.26, subd. (c)(1).)
Although evidence of approved adoptive families willing to accept a child may contribute to a court’s adoptability determination, the law does not mandate such proof. While mother argues otherwise, she fails to cite any authority supporting her argument. To the extent she relies on case law, such as In re Jerome D. (2000) 84 Cal.App.4th 1200 (Jerome D.), her reliance is misplaced. (In re K.B. (2009) 173 Cal.App.4th 1275, 1293 (K.B.).)
In Jerome D., supra, 84 Cal.App.4th at page 1205, an appellate court reversed an adoptability finding, which it determined was based only on the willingness of a child’s stepfather to adopt him. The Jerome D. court did note there was no evidence of any approved families willing to adopt the child. (Ibid.) However, the holding in Jerome D. was that the stepfather’s willingness to adopt would not suffice because the adoption assessment failed to address, as required by law, the stepfather’s criminal and Child Protective Services (CPS) history, which was not insubstantial. (Ibid.) As the K.B. court observed, there were serious impediments to the stepfather in Jerome D. ever being approved. The issue was not whether there was an “approved” adoptive family available. (K.B., supra, 173 Cal.App.4th at p. 1293.)
Mother’s argument regarding whether K. was “generally” or “specifically” adoptable also obfuscates the adoptability issue before the juvenile court. As this court explained in In re G.M. (2010) 181 Cal.App.4th 552, 562, not all dependency cases fall neatly into one of two scenarios: one, in which the availability of a prospective adoptive parent is not a factor whatsoever in a social worker’s assessment that a child is likely to be adopted (generally adoptable); or two, where a child is likely to be adopted based solely on the existence of a prospective adoptive parent (specifically adoptable).
“These scenarios represent opposite ends on the continuum of when a child is likely to be adopted. However, many adoption assessments that recommend an adoptability finding fall somewhere in the middle. They consist of a combination of factors warranting an adoptability finding, including, as in this case, the availability of a prospective adoptive parent. This is the reality we confront, notwithstanding appellate arguments that assume a child is either generally adoptable without regard to a prospective adoptive parent or specifically adoptable based solely on the availability of a prospective adoptive parent.” (In re G.M., supra, 181 Cal.App.4th at p. 562.)
Here, there was a combination of factors, which supported the juvenile court’s adoptability finding as to K. She was physically healthy, soft-spoken, well mannered and affectionate. For the most part she appeared to be in a good mood and liked a wide range of activities.
Mother takes pains to describe earlier evidence, regarding K. and behavioral, cognitive and communication problems she suffered, as undermining the court’s adoptability finding. However, dependency cases by their nature are not static, and circumstances can dramatically change. Consequently, a juvenile court must make its findings and orders based on the circumstances existing at the time of the hearing. (K.B., supra, 173 Cal.App.4th at p. 1291.) Here, mother glosses over the evidence that, as of the permanency planning hearing, K. had gone several months without experiencing behavioral problems. K. was also meeting less frequently with her therapist. Similarly, while mother also characterizes K. as “mostly uncommunicative, ” mother overlooks the child’s improvement with her communication skills as of the permanency planning hearing. K. was more vocal, able to readily answer questions and not hesitant to speak. Although K. had been previously diagnosed with a cognitive disorder and qualified for CVRC services, mother gives short shrift to other, more recent evidence before the court. K. was able to attend school, where she was enrolled in special day classes, placed in the seventh grade and received better than average grades. With consistency in the classroom, K. also paid attention and did her work with little or no problems.
Mother also insinuates that a failed foster care placement in K.’s past raised a further question about the child’s adoptability. We remind mother, however, that the placement to which she refers had been ongoing for more than a year and ceased only when the foster parent had a stroke and required someone to care for her.
Finally, the L. family, who had known K. for over two years and built a caring and mentoring relationship with her, was committed to adopting K., another factor supporting the court’s adoptability finding. Although mother disputes the value of the evidence regarding the L. family, her arguments once again ignore the law, as well as the record in this case.
We start by observing that social worker Alcazar repeatedly referred to the L. couple as mentors to K. While mother assumes those references have no significance, we do not.
When dependent children require placement outside the custody of the child’s parents, preferential placement consideration is given first to relatives (§ 361.3) and then to a “nonrelative extended family member” or NEFM. (§ 361.2, subd. (e).) An NEFM is an adult who has an established familial or mentoring relationship with the child. (§ 362.7.) Here, Alcazar verified the existence of such a mentoring relationship, especially between Ms. L. and K. As a NEFM, Ms. L. could be considered for placement regardless of whether she had a foster care license. (§ 362.7; see also § 361.4.)
In addition, placement of K. with the L. family was permissible under sections 361.4 and 362.7. Alcazar visited the L. home to ascertain the appropriateness of the placement (§ 361.4, subd. (a)). She found the L. home met minimal standards for placement and therefore could approve it pursuant to the same standards used for licensing foster family homes (§ 362.7). She further conducted a child abuse search, as well as a criminal records check, and found the L. family had neither a history of child abuse or neglect referrals nor any criminal record. (§ 361.4, subds. (c) & (d)(1).)
The fact that the department had not placed K. in the L. home, as of the contested section 366.26 hearing, does not lend any credence to mother’s argument. The L. family, K. and her attorney wanted that placement to occur, and the department asked the court in December 2010 to authorize K.’s placement with Mr. and Ms. L. However, mother specifically objected to it on the original section 366.26 hearing date and requested a contested hearing, causing placement to be deferred, a fact which she conveniently overlooks on appeal. Mother’s objection also appeared to be nothing more than a delaying tactic in that she presented no evidence challenging the department’s placement recommendation at the contested section 366.26 hearing.
Mother’s further claim that the juvenile court could not rely on the L. family’s desire to adopt K. because the L. family had not received full disclosure of K.’s background and, to use mother’s words, special needs, also fails. First, there is no evidence in the record to support such a claim. In addition, mother again overlooks the record which does exist.
Ms. L. had been the child’s mentor for over two years, as well as her classroom teacher. Over the past two years, K. spent Saturdays with Ms. L. and her family and in the process established an ongoing relationship with Ms. L. and her family, as well as started to open up and learn how to express her feelings. As Alcazar had learned, Ms. L. had considerable knowledge about K.’s current situation. Ms. L. was aware of, if not involved in the development of, K.’s IEP. In fact, the court had appointed Mr. and Ms. L. as holders of K.’s educational rights. Since Alcazar had been assigned to K.’s case, the child also had an extended visit in the L. home. During that time, Ms. L. even took K. to her mental health therapy appointment. There was also social worker Alcazar’s assessment that the L. family had the ability to meet K.’s needs. Thus, we see no reason why the juvenile court could not rely on the L. family’s commitment to adopt K. in finding her adoptable.
This leaves us with mother’s related claims that the L. home had not been approved for adoption and the juvenile court should have evaluated whether there was a legal impediment to the L. family adopting K. Both are based on mother’s premise that the juvenile court deemed K. adoptable only because of the L. family’s willingness to adopt her. While we have rejected her premise, as discussed above, even assuming arguendo that mother is correct, her arguments over a required approval to adopt and any legal impediment to adoption fail.
Legal impediments to adoption are contained in the Family Code, specifically Family Code sections 8601 through 8603. (In re G.M., supra, 181 Cal.App.4th at pp. 559-560, citing Sarah M., supra, 22 Cal.App.4th at p. 1650.) Family Code section 8601 requires, in general, that an adoptive parent be in general at least 10 years older than the child. Family Code section 8602 requires the child’s consent if he or she is over the age of 12. Family Code section 8603 prohibits adoption by a married person, who is not lawfully separated, unless the spouse consents or is incapable of giving consent. Also, as alluded to in K.B., supra, 173 Cal.App.4th at page 1293 and Jerome D., supra, 84 Cal.App.4th at page 1205, a criminal and/or CPS history would be a serious impediment to adoption.
As this court explained in In re G.M., supra, 181 Cal.App.4th at page 562, evidence of a legal impediment to adoption by an identified prospective adoptive parent is relevant and an inquiry may be made when a social worker’s opinion that a dependent child will be adopted is based in part on the willingness or commitment of an identified prospective adoptive parent. The existence of one of these legal impediments to adoption is relevant because the legal impediment would preclude the very basis upon which the social worker formed the opinion that the child is likely to be adopted. (Sarah M., supra, 22 Cal.App.4th at p. 1650.)
Here, none of the parties, including mother, even raised a question regarding any legal impediment to adoption by the L. family. Having not raised a legal impediment question in the juvenile court, mother failed to properly preserve her dispute over a possible legal impediment for appellate purposes. (In re G.M., supra, 181 Cal.App.4th at pp. 563-564.) She also did not object to Alcazar’s preliminary assessment as inadequate in this regard. (In re Crystal J. (1993) 12 Cal.App.4th 407, 411-412.) In any event, the record affirmatively establishes that there was no legal impediment under the Family Code to the L. family adopting K. Mr. and Ms. L. were clearly more than 10 years older than K. They had an intact marriage, and K. wanted to be a part of their family. Also, according to Alcazar’s preliminary assessment of the L. family, neither Mr. nor Ms. L. had either a criminal record or a CPS history.
Furthermore, where there is no evidence of any specific legal impediments to completing the adoption process, parental rights may be terminated to a specifically adoptable child regardless of whether a home study of the adoptive parent has been completed. (In re Brandon T. (2008) 164 Cal.App.4th 1400, 1401.)
Under all of these circumstances, we reject mother’s arguments and conclude there was substantial evidence to support the juvenile court’s adoptability finding as to K.
DISPOSITION
The order terminating parental rights is affirmed.