Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. JD226316, JD226317
BUTZ, J.
Father N.H. appeals the order terminating his parental rights to his two young daughters, claiming it is based on insufficient evidence of adaptability and claiming the department abused its discretion in denying his petition for modification. We shall affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Father, a developmentally disabled Hmong man, has been a client of Alta Regional Center for about 10 years and has the mental capacity of approximately a 12 year old. He was married and had two children. His wife had had three children from a previous relationship. When his wife passed away in July 2007, her three children, father’s stepchildren, went to live with their biological father. Father’s two minor children stayed with him.
In August 2007, father’s 11-year-old stepdaughter, M.V., reported he had sexually abused her when she resided in his home, before her mother’s death. Father denied ever abusing her. He explained her reason for making a false allegation, saying his stepdaughters were in gangs and he had told them not to be, “so they... are mad.”
A Welfare and Institutions Code section 300 petition was filed in September 2007, and father’s two minor children were detained. The minors were two and four years old at the time they were detained. The social worker recommended father be provided reunification services, specifically including parenting education, counseling and a psychological evaluation.
Undesignated statutory references are to the Welfare and Institutions code.
M.V. tested positive for chlamydia. Physical examination of the minors revealed no evidence of sexual abuse, and both tested negative for the presence of any sexually transmitted diseases.
Father was arrested in December 2007 and remained in custody until July 14, 2008, when he was released on his own recognizance pursuant to the District Attorney’s recommendation. Services were not available to father while he was in custody. The jail also would not allow contact visitation with the minors.
In February 2008, the social worker received letters written by M.V.’s classmates stating M.V. had indicated it was a physical education (P.E.) teacher who had sexually molested her, not father. In an additional interview, M.V. confirmed the P.E. teacher had sexually molested her. She first stated she had not been molested by both the P.E. teacher and father. Later in the interview she said she had been molested by both of them.
In April 2008, while father was still incarcerated, the social worker reported father had not made any progress in his reunification services. The social worker noted father “did not engage in services prior to arrest, nor does he have services available to him in jail.” Reunification services were terminated on April 23, 2008.
On July 14, 2008, pursuant to the district attorney’s request, father was released from custody on his own recognizance. The district attorney was still investigating the sexual abuse case, “but had serious doubts.” Approximately one month later, the district attorney’s motion to dismiss the criminal case for insufficient evidence was granted.
On October 22, 2008, father filed a section 388 petition. The petition requested reunification services be reopened. The petition alleged the minors were not in adoptable homes and father’s failure to participate in services was due to his incarceration. The petition asserted father “has been active with his [Alta Regional] services.” It was also noted father had been incarcerated for a crime he did not commit.
The modification petition was set for hearing at the same time as the section 366.26 hearing, early January 2009. The court found there were indeed changed circumstances, but concluded that reopening reunification services would not be in the best interests of the minors. This finding was based on the initial allegations of severe sexual abuse and the social worker’s opinion that because of father’s developmental disabilities, he would not benefit from services and would not be able to appropriately parent the minors. Accordingly, the petition was denied.
The minors
The minors were placed in a Hmong foster home in November 2007. The now-three-year-old L.H. was scared to take a bath, untrusting of adults, and avoided interacting with others. She did not speak and tended to use a form of sign language learned from her mute stepmother. L.H. was doing well in her foster home, she was more engaging, very playful, and sometimes bossy. L.H. had eczema and an irregular heart rate that was being monitored. Her physical development was on target. Her language skills were delayed and her motor skills borderline. No behavioral problems were reported.
Almost five-year-old C.H. also presented challenges with taking baths and trusting adults. These challenges were improving since her placement in the Hmong foster home. Her language and social skills were delayed, but improving. She also had eczema. C.H. was on target for physical development. She was shy but trying to interact more with others. Her behavior at school was excellent.
By August 2008, the minors were both generally healthy. They both also had speech delays. No behavioral problems were reported, nor were any physical problems reported. The minors were happy in their placement and had established a good bond with their foster mother. The foster mother was not interested in adopting the minors.
In January 2009, the foster mother’s parents-in-law wanted to adopt the minors. They were the alternate caretakers/daycare providers for the minors, caring for them every day while the foster mother was at work. The minors were very attached to the prospective adoptive parents and thought of them as grandparents. The prospective adoptive parents were open to continuing visitation and phone contact between the minors and father.
The court found the minors adoptable and parental rights were terminated.
DISCUSSION
I
Father contends the minors were not adoptable. He contends they are not generally adoptable because they “have significant special needs, are of Hmong descent, and there were no approved adoptive families identified as possible placements.” He also contends the minors are not specifically adoptable because the agency failed to submit an adoption assessment. Both of these contentions fail.
In order to terminate parental rights under section 366.26, the juvenile court must find by clear and convincing evidence that it is likely the child will be adopted. (In re Asia L. (2003) 107 Cal.App.4th 498, 509; § 366.26, subd. (c)(1).) The issue of adaptability “focuses on the minor, e.g., whether the minor’s age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor.” (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) We review the termination order “to determine whether the record contains substantial evidence from which a reasonable trier of fact could find clear and convincing evidence” the minors were likely to be adopted. (In re Asia L., at pp. 509-510.)
On this record, the minors are adoptable. They are young, happy, physically healthy children, with no behavioral problems. Although both were shy, they were engaging with people more as they stayed in their foster home. Although their language skills were delayed, they were improving, particularly with greater exposure to speaking populations. The only physical ailment noted is that L.H. has an irregular heart rate which has to be monitored, but there is nothing in the record suggesting this condition would be an impediment to her being adopted. The minors had lived in the same foster home for over a year and bonded with their foster mother. They also bonded with their foster “grandparents,” with whom they spent significant time on a daily basis. The foster grandparents were completely familiar with these minors and their challenges and wanted to adopt them.
Both the minors’ qualities, their young ages, and the fact that prospective adoptive parents had been identified who wanted to adopt them, provided sufficient support for the juvenile court’s finding of adaptability. To the extent the minors had special needs, there is no evidence in the record that these needs presented an impediment to adoption.
As to father’s claim that there was not an adoption assessment on file, we disagree. While section 366.21, subdivision (i)(1) requires an adoption assessment, it does not require the report be so titled. Subdivision (i)(1) also delineates the information to be contained within the assessment. Here, prior to the section 366.26 hearing, the social worker filed a “Selection and Implementation Report” and an “Addendum Report.” The information contained in these two reports covered every statutorily mandated area of an adoption assessment, with the exception that there was no indication there had been any discussion with the prospective adoptive parents relative to the legal and financial rights and responsibilities of adoption. But, this missing information is harmless. “[E]ven if the assessment is incomplete in some respects, the court will look to the totality of the evidence; deficiencies will go to the weight of the evidence....” (In re John F. (1994) 27 Cal.App.4th 1365, 1378; In re Dakota S. (2000) 85 Cal.App.4th 494, 496, 503.) Here, there was substantial compliance with the requirements of section 366.21, subdivision (i)(1) and the information contained in the reports was sufficient to support the finding of adaptability.
Although father’s complaint is stated as a complaint that there was no adoption assessment, father’s real complaint seems to be that there was no information provided about the prospective adoptive parents. Such an argument, of course, was forfeited by the failure to object to the deficient adoption assessment at the trial court. (In re Urayna L. (1999) 75 Cal.App.4th 883, 886.)
Moreover, the record shows these prospective adoptive parents had cared for the minors virtually every day and were responsible, caring and nurturing to the minors. They were of Hmong descent and so could meet the minors’ cultural needs and were open to maintaining a relationship with father. They were referred for a non relative extended family member assessment and approved by the Kinship Unit on October 25, 2008. They also had completed the psycho-social assessment on November 10, 2008.
Finally, “the proceeding being appealed here was merely the preliminary step to adoption, in which parental rights were terminated and a permanent plan established. Only after this section 366.26 hearing are the children referred to the appropriate adoption agency for entertaining a petition for adoption. [Citation.] Under the ensuing adoption process, the prospective families must undergo additional evaluations, which would cure any potential error in the preliminary assessments at issue here. Thus, any possible error was harmless.” (In re Diana G. (1992) 10 Cal.App.4th 1468, 1481-1482.)
II
Father next contends the trial court abused its discretion in denying his section 388 petition because he had demonstrated changed circumstances and that reunification was in the minors’ best interests. We agree, as did the trial court, that father demonstrated changed circumstances. We cannot find, however, that father put forth any evidence that reunification was in the minors’ best interests.
Under section 388, a parent may bring a petition for modification of any order of the juvenile court based on new evidence or a showing of changed circumstances. “The parent requesting the change of order has the burden of establishing that the change is justified. [Citation.] The standard of proof is a preponderance of the evidence.” (In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) Determination of a petition to modify is committed to the sound discretion of the juvenile court and, absent a showing of a clear abuse of discretion, the decision of the juvenile court must be upheld. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.)
When the section 388 petition is brought after the termination of reunification services, the best interests of the child are of paramount consideration. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) In assessing the child’s best interests, the juvenile court looks not to the parent’s interests in reunification but to the needs of the child for permanence and stability. (Ibid.; In re Marilyn H. (1993) 5 Cal.4th 295, 309.)
In ruling on the petition for modification, the juvenile court may consider: “(1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been.” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 531-532, italics omitted.)
In his section 388 petition, father did not offer any discussion of the minors’ best interests and why providing reunification services to him would serve those interests. The only evidence proffered was on the issue of father’s changed circumstances in no longer being incarcerated and a statement that it was “only just that this family gets the time and opportunity they all deserve to reunify.” It appears father’s statements may have been premised on the assumption there would not be a prospective adoptive home for the minors and that if they were to reunify, he could provide a permanent and stable home. At the time of the hearing, however, there was a prospective adoptive home for the minors.
Further, after having spent more time with father and more fully understanding his cognitive limitations, the social worker did not feel father could benefit from the provision of services and would not be able to appropriately parent the minors or provide for their special needs. In the three months before his arrest and incarceration, father was referred for individual counseling but did not participate in any sessions. Nor did he participate in any parenting classes prior to being incarcerated.
The minors were two and four years old when they were removed from the home and had been living in the same foster home for over a year. During that year, they had daily contact with their prospective adoptive parents, bonded with them, and viewed them as grandparents.
Conversely, there is little evidence of a bond between father and the minors. When father did participate in visits with the minors prior to his incarceration, they appeared nervous and tense and he appeared disengaged. Father had not had any contact with the minors since December 2007 when he was incarcerated. As their stepmother continued visits without father, the girls appeared more relaxed and playful.
The facts of this case are quite sad: a developmentally disabled man who, it appears, may have been wrongly accused of sexually molesting the minors’ half sibling and whose ability to complete reunification services was severely hampered by circumstances beyond his control. But, despite these sad circumstances, we cannot find the court abused its discretion in denying father’s request to reopen reunification services.
DISPOSITION
The orders of the juvenile court are affirmed.
We concur: NICHOLSON, Acting P. J., ROBIE, J.