Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County. Stephen Marpet, Commissioner.
Helen H. Yee, under appointment by the Court of Appeal, for Defendant and Appellant Christie M.
Orren & Orren and Tyna Thall Orren, under appointment by the Court of Appeal, for Defendant and Appellant Neal L.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Frederick Klink, Deputy County Counsel for Respondent .
CHAVEZ, J.
Appellants Christie M. (mother) and Neal L. (father) appeal from the juvenile court’s order terminating their parental rights over their daughter N.L. (born December 2006). Mother and father contend there was insufficient evidence to support the juvenile court’s finding that N. was adoptable. Father further contends the juvenile court erred by denying an implied request by N.’s counsel to continue the hearing at which parental rights were terminated. We conclude that no request for such a continuance was made, and that substantial evidence supports the juvenile court’s finding of adoptability. We therefore affirm the juvenile court’s order.
BACKGROUND
1. Detention and Jurisdiction
The Los Angeles County Department of Children and Family Services (the Department) detained N. from the custody of mother and father in October 2009 after father was arrested and admitted to a Los Angeles County deputy sheriff that he had used methamphetamine. N. had been previously detained shortly after her birth in 2006 because mother had admitted using methamphetamine. Following N.’s 2006 detention, both parents were accorded family reunification services, including parenting classes, drug counseling, and random drug testing. Father had complied with the case plan and successfully reunified with N., but mother had not. As a result, the juvenile court awarded father sole legal and physical custody of N. in July 2008.
Mother’s history with the Department included three older children who became dependents of the juvenile court and with whom she had failed to reunify. Her parental rights over the three older children were terminated, and the children were adopted in June 2009.
At the October 13, 2009 detention hearing in the instant case, the juvenile court found a prima facie case for detaining N. from her parents and ordered her detained in shelter care. A maternal cousin named Lucia M. subsequently came forward and expressed an interest in having N. placed with her. Lucia reported that she and N. knew each other because she had babysat the child in the past. At the Department’s recommendation, the juvenile court ordered N. placed with Lucia on October 23, 2009.
In its jurisdiction/disposition report, the Department reported that Lucia wanted to continue caring for N. as long as was necessary. Attached to the jurisdiction/disposition report was a concurrent planning assessment dated December 4, 2009, in which the Department recommended adoption as the permanent plan for N.. The adoptions social worker who prepared the assessment noted certain behavioral and developmental concerns regarding N., including speech delay, a short attention span, and aggressive or withdrawn behavior. Despite these concerns, the social worker concluded that N. was likely to be adopted and recommended adoption as the permanent plan. The adoptions social worker also discussed the adoption process with Lucia, who said she wished to adopt N..
On December 11, 2009, the Department supplemented its jurisdiction/disposition report with the findings of a multidisciplinary assessment team (MAT) that had assessed N., mother, father, and Lucia. The MAT assessors described developmental and behavioral issues observed in N. similar to those noted by the adoptions social worker, such as N.’s difficulty in regulating her emotions, and difficulty interacting with others. The assessors also noted N.’s strengths, such as her ability to respond to the caregiver’s assistance and supervision and the ability to adapt to new situations.
In January 2010, the Department reported that neither mother nor father had appeared for random drug testing, and neither parent had maintained contact with the Department. The Department’s social worker had no current addresses for either parent, and father’s whereabouts were unknown.
At the March 15, 2010 jurisdiction hearing, the juvenile court sustained an amended petition filed by the Department pursuant to Welfare and Institutions Code section 300, subdivision (b), finding that father’s history of illicit drug use and mother’s failure to protect N. necessitated her removal from their custody. The court ordered family reunification services for father only, including counseling, parenting, a drug treatment program, and random drug testing.
All further statutory references are to the Welfare and Institutions Code.
2. Review Proceedings
In September 2010, the Department reported that N. had adjusted well to Lucia’s home and was getting along better with the other children in the home. N.’s aggression had subsided and she was learning to play well with the others. Father had failed to maintain regular contact with the Department or appear for drug testing, and mother had failed to maintain regular visits or telephone contact with N..
In January 2011, Mrs. S., the adoptive parent of N.’s three older half-siblings, expressed interest in adopting N.. Mrs. S. believed it would be in N.’s best interest to be raised with her siblings. Mrs. S. said she would speak with her husband to discuss the possible adoption. N. remained placed with Lucia, who was still committed to adopting her, but who felt that placing N. with her siblings might be a more appropriate permanent plan.
3. Section 366.26 Proceedings
In its January 2011 section 366.26 report, the Department reported that N. was not a Regional Center client and that she appeared to be developing in an age appropriate manner. The Department noted that although it was unclear which of Nelllie’s two potential adoptive parents, Lucia or Mrs. S., would move forward with the adoption, adoption was the recommended permanent plan.
Neither mother nor father appeared at the January 18, 2011 section 366.26 hearing, but each was represented by counsel, as was N.. At the outset of the hearing, N.’s counsel argued that it was premature to hold a hearing to terminate parental rights because a specific adoptive parent had not been identified. N.’s counsel pointed out that although Mrs. S. had expressed interest in adopting N., her husband had not yet met N. and was unsure whether he wanted to proceed with the adoption. Counsel further argued that Lucia was willing to proceed with legal guardianship but felt that it was in N.’s best interest to be raised with her siblings.
The juvenile court found, by clear and convincing evidence, that N. was likely to be adopted. The court then terminated parental rights and ordered adoption as the appropriate permanent plan. At the conclusion of the hearing, N.’s counsel requested, on behalf of N.’s caregiver, that the child be enrolled in counseling because of behavioral issues she was experiencing. The juvenile court granted that request. This appeal followed.
DISCUSSION
I. Implied Request for a Continuance
Father contends N.’s attorney “impliedly” asked the juvenile court to continue the proceedings when she argued at the section 366.26 hearing that termination of parental rights was premature absent a clearly identifiable adoptive home. Father further contends he has standing to challenge the juvenile court’s denial of that implied request. The record shows no motion or request for a stay or continuance of the section 366.26 hearing, and we do not construe the argument by N.’s counsel as a motion or request for such a continuance.
II. Waiver
Both parents contend the order terminating parental rights must be reversed because the evidence does not support the juvenile court’s finding that N. was adoptable. Mother claims evidence of adoptability was lacking because the juvenile court did not have a current adoption assessment report, but only the outdated findings of the December 2009 assessment. Both parents argue there was insufficient evidence to support the adoptability finding because no prospective adoptive parent had been identified and because the record showed that N. had substantial behavioral and developmental problems. The Department disputes these contentions, and also claims that mother’s failure to object in the juvenile court to the Department’s 2009 adoption assessment resulted in a forfeiture of the right to challenge the adequacy of that assessment on appeal.
We agree that mother’s failure to object to the adequacy of the Department’s adoption assessment in the juvenile court waived any such objection on appeal. (In re A.A. (2008) 167 Cal.App.4th 1292, 1317.) The waiver does not extend, however, to the right to challenge the sufficiency of the evidence to support the juvenile court’s adoptability finding. (Ibid.) Neither parent waived that right by failing to object below. “[A] claim that there was insufficient evidence of the child’s adoptability at a contested hearing is not waived by failure to argue the issue in the juvenile court.” (In re Brian P. (2002) 99 Cal.App.4th 616, 623.) We therefore address the merits of mother’s and father’s challenge to the sufficiency of the evidence.
III. Applicable Law and Standard of Review
As a prerequisite to terminating parental rights under section 366.26, a court must find by clear and convincing evidence that the children are likely to be adopted within a reasonable time. (§ 366.26, subd. (c)(1).) “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.’ [Citation.]” (In re R.C. (2008) 169 Cal.App.4th 486, 491.)
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. [Citation.]” (In re Helen W. (2007) 150 Cal.App.4th 71, 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.) Even in these situations, however, the 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.)
It is important to note that the law does not require a juvenile court to find a dependent child “generally adoptable” or “specifically adoptable” before terminating parental rights. (In re A.A., supra, 167 Cal.App.4th at p. 1313.) All that is required is clear and convincing evidence of the likelihood that the child will be adopted within a reasonable time. (§ 366.26, subd. (c)(1); In re Zeth S. (2003) 31 Cal.4th 396, 406.)
We review the juvenile court’s finding of adoptability for substantial evidence, viewing the evidence in the light most favorable to the judgment, drawing every reasonable inference and resolving all conflicts in the evidence in favor of the juvenile court’s order. (In re Josue G. (2003) 106 Cal.App.4th 725, 732.) An appellant challenging an adoptability finding bears the burden of showing the evidence is insufficient to support the juvenile court’s findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
IV. Substantial Evidence of Adoptability
Mother and father failed to sustain their burden of showing the evidence was insufficient to support the juvenile court’s finding that N. was adoptable. They contend that N.’s “substantial behavioral concerns” precluded a finding that she was generally adoptable, and the absence of a prospective adoptive parent expressly committed to adopting N. precluded a finding of specific adoptability.
N.’s behavioral concerns were not so severe as to preclude a finding that she was adoptable. The social worker who noted those concerns in the Department’s adoption assessment report nevertheless concluded that N. was likely to be adopted and recommended adoption as the permanent plan.
The juvenile court could properly consider a prospective adoptive parent’s willingness to adopt as evidence that a child is likely to be adopted within a reasonable time. (In re A.A., supra, 167 Cal.App.4th at p. 1313.) Here, two different potential adoptive parents, Lucia and Mrs. S., had expressed interest in adopting N..
The prospective adoptive parents’ willingness to adopt, and the relatively mild behavioral concerns identified by the adoptions social worker distinguish the instant case from the cases the parents cite to support their position. In the cases on which they rely, the Department concluded that the children had severe behavioral and emotional problems requiring specialized placements and no prospective adoptive parent had been identified. (In re Asia L. (2003) 107 Cal.App.4th 498, 511 [no prospective adoptive parents identified for children who needed constant supervision and who needed specialized placements]; In re Amelia S. (1991) 229 Cal.App.3d 1060, 1063 [of caregivers for 10 minors with various developmental, emotional, and physical problems, some of a serious nature, two sets of foster parents did not wish to adopt, two sets were considering adoption, and two sets had no intention to adopt].) Here, no specialized placement was recommended for N., and both Lucia and Mrs. S. had expressed a willingness to adopt her. Lucia, with whom N. had been placed for more than a year, was aware of N.’s behavioral issues and still wished to adopt her. Substantial evidence supports the finding that N. was adoptable. (In re R.C., supra, 169 Cal.App.4th at p. 491.)
DISPOSITION
The order terminating parental rights is affirmed..
We concur: DOI TODD, Acting P. J. ASHMANN-GERST, J.