Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Ct.No. RIJ111419. Kenneth Fernandez, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Donna B. Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant.
Joe S. Rank, County Counsel, and Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
Leslie A. Barry, under appointment by the Court of Appeal, for Minors.
OPINION
McKinster Acting P.J.
S.S. (hereafter mother) appeals the trial court’s order under Welfare and Institutions Code section 366.26 terminating her parental rights to her two children, Q. and H. Mother contends that the trial court’s finding that the children are adoptable is not supported by substantial evidence. We disagree and therefore will affirm the order.
All further statutory references are to the Welfare and Institutions Code unless indicated otherwise.
DISCUSSION
Resolution of the issue mother raises on appeal does not depend on the facts of the underlying dependency. In that regard it is sufficient to note that on January 29, 2006, Riverside County Department of Public Social Services (DPSS) filed section 300 petitions with respect to both Q. and his half sister H. after mother was arrested for stabbing and killing H.’s father. Both children were present in the apartment when the killing occurred, and Q. may even have witnessed the actual stabbing. In the ensuing dependency proceeding, the trial court declared the children a sibling set, and DPSS placed them in a confidential placement with a licensed foster care provider. The children have lived with this foster care provider since that initial placement. By the time of the section 366.26 selection and implementation hearing, originally set for March 20, 2007, and actually held nearly a year later on February 13, 2008, DPSS identified the foster parent as the prospective adoptive parent of Q. and H. At that hearing, the trial court terminated mother’s parental rights after first making the necessary findings, including the finding that H. and Q. were likely to be adopted. Mother, as noted above, contends the adoptability finding is not supported by substantial evidence.
Mother has been in jail since the beginning of the dependency process. All of her visits with Q. and H. have occurred in jail, and “between glass,” i.e., mother was behind the glass partition in the jail visiting room.
As a prerequisite to termination of parental rights under section 366.26, a court must find by clear and convincing evidence that the children are likely to be adopted. (§ 366.26, subd. (c)(1); Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249-250.) “On appeal, we review the factual basis for the trial court’s finding of adoptability and termination of parental rights for substantial evidence. [Citations.] We therefore ‘presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order.’ [Citation.]” (In Josue G. (2003) 106 Cal.App.4th 725, 732.)
“The issue of adoptability posed in a section 366.26 hearing 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. [Citations.]” (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649 (Sarah M.); see also In re Zeth S. (2003) 31 Cal.4th 396, 406.) “Usually, 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.]” (Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.)
According to the adoption assessment presented in the trial court, the current foster parent wants to adopt Q. (then six years old) and H. (then nearly three years old). The assessment reveals that Q. has been diagnosed with Attention Deficit Disorder and as a result has “problems with focusing and paying attention in school and at home. He is frequently off task and argumentative. It has been reported that [Q.] sometimes hears voices. He attends counseling once per week to assist him in resolving his mental health issues. [¶] Despite the fact that [Q.] has behavioral problems, he is a straight ‘A’ student. He has received positive reviews from his teacher regarding academics, however socially he struggles with making friends. The prospective adoptive mother reports that [Q.] takes psychotropic medications, which has [sic] helped him tremendously. She states that, despite his hyperactivity, he is able to self correct behavior along with redirection from her.”
The assessment describes H. as “a very caring child that [sic] likes to be in control. The prospective adoptive mother reports that [H.] likes to share and ‘be in the know[.]’ She is reported to be physically healthy and up to date on all immunizations. [H.] has a good appetite and sleeps well.”
The above noted evidence is sufficient to support the trial court’s finding that the children are adoptable, mother’s contrary claims notwithstanding. In arguing otherwise, mother contends that Q. has serious emotional and psychological issues that make him generally unadoptable, and H. may suffer from mild cerebral palsy, as evidenced by earlier social worker’s reports, a condition that makes her also generally unadoptable. Neither assertion is supported by the record. Although Q. has behavioral problems associated with hyperactivity, the evidence noted above shows that those problems are not extreme and are controlled with medication. Similarly, the evidence shows that Q. has emotional and psychological issues, but the problems are not severe and are being addressed through counseling.
Mother notes that Q. sometimes hears voices, a fact that could indicate the early onset of schizophrenia. Because she did not raise the concern in the trial court, her claim on appeal is pure speculation derived from evidence that mother did not present in the trial court and therefore is not included in the record on appeal.
Although earlier reports noted that H. has an odd gait when she walks, which could indicate a mild case of cerebral palsy, that concern was resolved after H.’s doctor referred her for testing at Inland Regional Center (IRC). H. does not have cerebral palsy and does not qualify for IRC services. Mother’s claims otherwise simply are not supported by the record. But even if H. did have a mild form of cerebral palsy, no evidence was presented in the trial court to show that H. would be unadoptable as a result. The only evidence on the issue is contained in the adoption assessment and the social worker’s reports, all of which indicate that H. and Q. do not have personal characteristics that are likely to dissuade a prospective adoptive parent. (Sarah M., supra, 22 Cal.App.4th at p. 1649.)
Because we conclude the evidence presented in the trial court supports a finding that Q. and H. are generally adoptable, we need not address mother’s claims regarding the purported deficiencies of the prospective adoptive parent because those claims are irrelevant. We nevertheless address those claims in order to disabuse mother of her notion that any deficiencies exist.
As noted previously, “[u]sually, the issue of adoptability 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.’ [Citation.] However, ‘in some cases a minor who ordinarily might be considered unadoptable due to age, poor physical health, physical disability, or emotional instability is nonetheless likely to be adopted because a prospective adoptive family has been identified as willing to adopt the child.’ [Citation.]” (In re Brandon T. (2008) 164 Cal.App.4th 1400, 1408.) “Where the social worker opines that the minor is likely to be adopted based solely on the existence of a prospective adoptive parent who is willing to adopt the minor, an inquiry may be made into whether there is any legal impediment to adoption by that parent [citations]. In such cases, 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 minor is likely to be adopted. [Citation.]” (Sarah M., supra, 22 Cal.App.4th at p. 1650.)
Mother cites three purported defects with the prospective adoptive parent, which mother contends are potential impediments to adoption: (1) a home study had not been completed at the time of the selection and implementation hearing; (2) a criminal background check revealed a 1981 charge that did not result in a disposition or sentence; and (3) the prospective adoptive parent had not completed the adoption application.
According to the adoption assessment, the prospective adoptive parent is a licensed foster parent, and the person with whom the children have lived from the outset of the dependency process. The prospective adoptive parent has legal guardianship of three other children, who are the children of her sister who has a drug problem. The prospective adoptive parent is self-employed as a day care provider, and “presents as organized, and knowledgeable about child development.” A criminal background search indicated a 1981 “charge,” but no complaint or disposition was uncovered. The prospective adoptive mother stated that she has never been arrested or charged with a crime but that “her sister lived in the area of the arrest in 1981 and was writing fraudulent checks in her name.” The assessment also states, “The prospective adoptive mother would like to adopt the children as they have been in her home for an extended period and have bonded with her. She wants to give the children a permanent loving home. It appears that the prospective adoptive mother has a gift with working with children who have experienced serious trauma and neglect. She has demonstrated the ability to appropriately parent multiple children with success and would like the opportunity to adopt.”
“[W]here 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 has been completed.” (In re Brandon T., supra, 164 Cal.App.4th at p. 1410.) It is the lack of a foster care license or a preliminary adoption assessment that is an impediment to adoption. (Ibid., quoting In re B.D. (2008) 159 Cal.App.4th 1218, 1233.) In this case, the prospective adoptive parent is a licensed foster care provider, and as such has undergone the pertinent home study and background investigations. (See In re Diana G. (1992) 10 Cal.App.4th 1468, 1481, which cites the requirements for foster home licensing under the California Community Care Facilities Act (Health & Saf. Code, § 1500 et seq.).)
The “1981 charge” on an undisclosed crime, standing alone, also is not an impediment to adoption. The prospective adoptive mother explained the likely source of that charge. No other matters were revealed in the criminal background check which suggests that mother’s explanation either is true, or that she has led a crime free life during the intervening 28 years. In either event, the charge is not an impediment to adoption because as the Attorney General points out, as a licensed foster care provider, the adoptive parent had to routinely demonstrate her “‘reputable and responsible character,’” which includes reporting any crime more serious than a “‘minor traffic violation.’” (In re Diana G., supra,10 Cal.App.4th at p. 1481.)
Finally, we do not share mother’s view that the prospective adoptive parent’s failure to complete the adoption application is indicative of an underlying problem, such as an inability to cope with two more children, and as such is an impediment to adoption. The assertion is speculation. The evidence shows that the prospective adoptive mother has provided care for Q. and H. for nearly two years and therefore has demonstrated her ability to care for five children.
Two of the children for whom the prospective adoptive parent is guardian are teenagers, and as such presumably require less physical care and direct supervision than Q. and H.
In short, the evidence supports the trial court’s finding that Q. and H. are both generally and specifically adoptable, and mother’s contrary claims are unfounded. Moreover, mother is simply wrong when she asserts there is a risk the children will become legal orphans. Under section 366.26, subdivision (i)(2) “[a] child who has not been adopted after the passage of at least three years from the date the court terminated parental rights and for whom the court has determined that adoption is no longer the permanent plan may petition the juvenile court to reinstate parental rights pursuant to the procedure prescribed by Section 388.”
DISPOSITION
The order is affirmed.
We concur: Richli J., King J.