Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Madera County Nos. MJP015803, MJP015804. Thomas L. Bender, Judge.
Carolyn S. Hurley, under appointment by the Court of Appeal, for Defendant and Appellant.
David A. Prentice, County Counsel, and Miranda P. Neal, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Vartabedian, A.P.J., Levy, J., and Kane, J.
C.V. appeals from orders terminating parental rights (Welf. & Inst. Code, § 366.26) to her two sons. She contends the court erred by finding the children were likely to be adopted. On review, we disagree and affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
As of early 2006, appellant had a history of allowing her then five-year-old son to roam the neighborhood unsupervised, thus exposing him to a substantial risk of physical harm. At best, the child sometimes had his 11-year-old brother to supervise him when they were out in the neighborhood together. However, because of that responsibility, the older child was at substantial risk of physical harm should it become necessary for him to act in order to protect his younger brother. Appellant did not appreciate the danger of leaving the children alone. She also admitted an occasional use of methamphetamine and marijuana but did not believe drugs were a significant part of her life.
Consequently, respondent Madera County Department of Public Welfare (department) detained the children and initiated dependency proceedings. The Madera County Superior Court, sitting as a juvenile court, in turn exercised its dependency jurisdiction (§ 300, subds. (b) (neglect) & (j) (abuse or neglect of a sibling)) and later still adjudged the children juvenile dependents as well as removed them from parental custody.
Despite 18 months of reunification services, neither parent succeeded in reunifying with the children. As a result in September 2007, the juvenile court terminated reunification services and set a section 366.26 hearing for January 2008 to select and implement a permanent plan for the children.
The juvenile court repeatedly continued the section 366.26 hearing for reasons, largely having nothing to do with the children. In the spring of 2008 at an uncontested hearing, the juvenile court selected adoption as the permanent placement goal but did not terminate parental rights at that time. Rather, it directed efforts be made to locate an appropriate adoptive family and granted a lengthy continuance.
Eventually, in November 2008, the juvenile court conducted an uncontested hearing at which it found, by clear and convincing evidence, the children were likely to be adopted and terminated parental rights.
DISCUSSION
Evidence Regarding Adoptability
Over the course of 2008, the California Department of Social Services (CDSS) filed three reports addressing the question of whether it was likely the children would be adopted. In its first report prepared in January 2008, CDSS recommended the court find the children adoptable based on CDSS’s review of all available records concerning each child’s medical, psychological and scholastic status, interviews, and in-person observations of the children.
The department referred the adoption assessment issue to CDSS because the department does not have its own adoption unit.
According to the January 2008 report, the children were healthy and active, developmentally on target, and bonded to one another. Both children expressed a desire to live together without the need for any further placement changes.
The older child, an adolescent, was in the eighth grade and made progress in school despite some difficulties completing the seventh grade. He also had an ongoing issue with enuresis and twice attended counseling, the second time for behavioral problems.
The younger child, whom CDSS described as very pleasant, was in the first grade and making progress in reaching achievement milestones. He once attended therapy sessions for a brief period in late 2006.
According to the January 2008 report, the children were living together in their fifth out-of-home placement. Their caregivers were a maternal aunt and uncle who had expressed a commitment to adopting the children and with whom the children had been placed since the fall of 2007. Initially the children were placed in a foster family agency home, although they were moved to another foster home two months later at the agency’s request. Between May 2006 and January 2007, the department placed the children with relatives. The children returned to foster care when those relatives were no longer able to care for them “[d]ue to unforeseen circumstances.”
Soon after CDSS wrote its first adoption assessment, the maternal aunt and uncle, with whom the children were placed, advised that they had reservations about and were no longer committed to adopting the children. This led CDSS to issue an addendum report in late February 2008 on the children’s adoptability.
This first addendum report revealed that despite the relatives’ unwillingness to commit to adoption, they were providing the children with structure and consistency. It was the assessment of CDSS that the children may be adoptable, but their relative placement should not be severed. Instead, CDSS recommended the court continue the section 366.26 hearing and order additional efforts to locate an appropriate adoptive family for the children. It was on the basis of this addendum report that the juvenile court in the spring of 2008 selected adoption as the permanent placement goal but did not terminate parental rights. Notably, the court did not find the children “nonadoptable” at this point.
Approximately six months later, CDSS filed a second addendum report, recommending once again that the juvenile court find the children adoptable and terminate parental rights. This report disclosed that following three months of transitional visits, the children were moved together in July 2008 to a CDSS-approved prospective adoptive home. The new placement was going very well for both the children and prospective adoptive family. The children indicated they already felt very comfortable and secure in the home. They were developing a strong parent-child bond with the prospective adoptive mother and got along very well with their teenage prospective adoptive brother. They called their prospective adoptive mother “Mom” and referred to her teenage son as their “brother.” The children wished to be adopted into the prospective adoptive family.
The prospective adoptive father was a naval officer deployed in the Middle East. The children participated in daily e-mail and weekly telephone contact with him. Together they appeared to be actively developing parent-child relationships that were strong as possible given the circumstances. The children shared the prospective adoptive family’s anticipation for the father’s return in the fall.
CDSS offered excerpts from an early August 2008 e-mail it had received from the prospective adoptive father.
“ ‘To be completely honest, having two boys I’ve never met call me “Dad” on the phone is not a little bit incongruous, but I can tell you that, somewhat surprisingly, doing this while I’ve been deployed without a doubt brought us closer together as a family … I feel like I’ve been much more involved at home that I’ve been on previous deployments and, as strange as it sounds, I think we’re a better family for it. A couple of days after [the children] moved in, I called home to wish [C.] a happy birthday. (My wife) and the boys were out at swim lessons on base, so I had a chance to talk to [C.] by himself. When I asked him how Mom was holding up, he told me: “Dad, I don’t know what’s up with her. All she does is laugh all the time.” I think that pretty much sums it up.’ ”
“(My wife) and I are 100% committed to fully incorporating both [children] into our family, and finalizing their adoption as soon as possible. My greatest fear is that something will pop up and we’ll lose them. I don’t even want to think about it. I’ve spent so much time envisioning coming home and putting my arms around everyone that I feel like I know them well even after just a few phone calls and our (first) “meeting” on a VTC (video teleconference). (My wife) and I are ready.”
CDSS also updated and added further details to its assessment of the children. With regard to the older child, CDSS explained he had had a long-standing problem with enuresis. His birth father had the same problem as a child. The enuresis was only present at night during sleeping hours. In the prospective adoptive home, the child wore pull-ups at night. The prospective adoptive mother was “very openly accepting” of the child’s condition and exhibited a “keen sensitivity” to his emotional state. She did not want him to ever get the idea that permanency in her home was contingent on a resolution of his enuresis issue. Once the child was more fully adjusted in the home, the family would pursue mental health therapy to help him cope and possibly medical treatment.
The older child’s academic outlook was also excellent. He appeared to be of average to above average intelligence. His school attendance and performance clearly improved. Education was valued highly in the prospective adoptive home. The prospective adoptive mother, a teacher, was available to assist him both with understanding academic subjects and helping him to organize his work. He completed homework with no complaints and appeared to be a motivated student. He was described as generally thoughtful and upbeat.
The younger child continued to do well. CDSS described him as a happy, resilient, and emotionally stable child. He was athletic and socially very outgoing. He interacted well with both children and adults and appeared to be bonding with his prospective adoptive family.
On the subject of the children’s placement history, CDSS noted the children’s first relative caretaker stated in September 2006 she had “difficulties with [the older child’s] bed wetting and not completing his school work” and expressed doubt about her ability to continue providing care for the children. By the following month, she did not want long-term placement of the children. Regarding the second relative placement, the maternal aunt stated she and her husband took placement of the children out of a sense of obligation as well as their belief that a non-relative fost-adopt home would likely be less capable of meeting the childrens’ needs. When the time came to make a commitment to permanency for the children, however, the aunt and uncle concluded their marriage, previously childless by choice, should remain so.
Finally, this second addendum report included a glowing assessment of the prospective adoptive parents. In describing the family as “very committed to the boys,” CDSS also noted the couple adopted their teenage son seven years earlier. In the process, the couple experienced the challenges of parenting a child with physical abuse issues, grief and loss issues, attachment problems and Attention Deficit Hyperactivity Disorder. Over the past few years, the prospective adoptive parents decided they would to enlarge their family by adopting additional children. The prospective adoptive father had been an adopted child and he had a positive outlook on adoption.
Appellant’s Argument
Appellant challenges the sufficiency of the evidence to support the court’s finding that her children were likely to be adopted. In her view, there was no evidence the children were generally adoptable; rather, their adoptability hinged solely on their prospective adoptive parents’ desire to adopt. Appellant argues such a desire did not suffice because the children’s placements in the past changed due to the older child’s “challenges.” She also questions the prospective adoptive parents’ desire to adopt because the prospective adoptive father’s contact with the children had been restricted due to his military deployment overseas. As she sees it, the history of this case showed even relative caretakers who have known children all their lives can believe they are committed to adoption but their commitment wanes once the honeymoon period is over and problems become apparent.
Analysis
As a preliminary matter, we reject respondent’s claim that appellant has waived her argument by not contesting the children’s adoptability in the juvenile court. Although points not urged in the trial court generally cannot be raised on appeal, a contention that a judgment is not supported by substantial evidence, however, is an obvious exception to the rule. (Tahoe National Bank v. Phillips (1971) 4 Cal.3d 11, 23, fn. 17; In re Brian P. (2002) 99 Cal.App.4th 616, 623 [a claim of insufficient evidence of the child’s adoptability is not waived by failure to argue the issue in the juvenile court].)
The adoptability issue at a section 366.26 hearing focuses on the dependent child, that is, whether his or her age, physical condition, and emotional state make it difficult to find a person willing to adopt. It is not necessary that the child already be in a potential adoptive home or there be a proposed adoptive parent figuratively waiting in the wings. Conversely, 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, 1311-1312.)
Consequently, the legal issue is not whether a child is generally or specifically adoptable. (Id. at p. 1313.) All that is required is clear and convincing evidence of the likelihood that the dependent child will be adopted within a reasonable time. (In re Zeth S. (2003) 31 Cal.4th 396, 406.)
Having reviewed the record as summarized above, we conclude there was substantial evidence to support the court’s adoptability finding. Each child was healthy, active, developmentally on target, and performing well in school. There was no evidence of current behavioral problems. In addition, the children were in the home of a prospective adoptive family committed to adopting them. Also, there was no evidence that either child’s age, physical condition and emotional state, in the abstract or in fact, made it difficult to find a person willing to adopt both children. (In re A.A., supra, 167 Cal.App.4th at p. 1311.) At most, they were a bonded sibling group and the older child was an adolescent. Although the older child also suffered enuresis, this did not pose a hindrance to his prospective adoptive family’s decision to adopt.
The fact that the former relative caregivers waffled on their level of commitment to the children does not render the prospective adoptive parents’ commitment suspect nor does it otherwise mean the juvenile court could not find the children adoptable. There is no showing that whatever motivated the former relative caregivers to forgo their commitment would so motivate the prospective adoptive parents. Appellant’s argument is mere speculation.
Indeed, the record is devoid of evidence that the first set of relative caregivers ever wanted to adopt the children. At most, they offered a long-term placement for the children. The second set of relatives did express interest in adoption but did so out of a sense of family obligation. We fail to see how this evidence impacts the prospective adoptive family and their commitment to adopt the children.
In addition, it is by no means clear that there was something about either child which triggered the relatives’ change of heart. There was evidence the first relative caregiver reported difficulties with some of the older child’s behaviors and expressed doubt about her ability to continue providing care for the children. However, there was also evidence she later asked that the children be placed in a new foster home due to unforeseen circumstances. During the second relative placement, the maternal aunt had undisclosed reservations about adoption and eventually she and her husband concluded their marriage should remain childless. We will not speculate, as appellant would have us, regarding the unforeseen circumstances or the undisclosed reservations.
Furthermore, appellant’s reasoning overlooks the evidence regarding the prospective adoptive parents and their commitment as well as the weight the juvenile court could have given such evidence. The couple previously adopted an older child, a child who had a range of issues. Nevertheless, over the past few years, the prospective adoptive parents decided to enlarge their family by adopting additional children. In addition, the prospective adoptive father was himself an adopted child and had a positive outlook on adoption. Also, the prospective adoptive mother made clear it that adoption was not contingent on a resolution of the older child’s enuresis issue.
Finally, to the extent appellant questions the prospective adoptive father’s commitment based on his lack of in-person contact with the children and his comment that it was “a little bit incongruous” having the children call him “Dad”, we are not persuaded. Her challenge argument is nothing more than an invitation for this court to reweigh the evidence. However, that is not within our appellate authority. (In re Laura F. (1983) 33 Cal.3d 826, 833.)
DISPOSITION
The orders terminating parental rights are affirmed.