Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. NJ13170C Blaine K. Bowman, Judge.
IRION, J.
Christina M. and Juan B. appeal the judgment terminating their parental rights to Sophia V. Christina contends the juvenile court's selection of adoption as the permanent plan is unsupported by substantial evidence that Sophia was adoptable. Juan joins in Christina's contention. Juan also contends the court erred by denying his Welfare and Institutions Code section 388 petition which sought Sophia's placement with her paternal grandparents. We determine the contentions to be without merit and affirm.
All further statutory references are to the Welfare and Institutions Code.
PROCEDURAL AND FACTUAL BACKGROUND
In August 2009 newborn Sophia tested presumptive positive for opiates and suffered withdrawal symptoms. Christina tested presumptive positive for opiates and admitted using drugs during pregnancy. Juan admitted a history of drug use. As a result, the San Diego County Health and Human Services Agency (the Agency) filed a dependency petition for Sophia. In October the juvenile court made a true finding on the petition and ordered Sophia placed in foster care.
After being detained in the hospital for a few days, Sophia was moved to a foster home where she remained at the time of the section 388 and section 366.26 hearings. The foster parents wish to adopt Sophia.
I
The Court Did Not Abuse Its Discretion By Denying Juan's Section 388 Petition
Section 388 allows the juvenile court to modify an order if a parent proves, by a preponderance of the evidence, that changed circumstances exist and the proposed modification would promote the child's best interests. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) We review the denial of a section 388 petition for abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)
Juan filed his section 388 petition in September 2010. The petition asked the court to vacate the order placing Sophia in foster care and to place her with the paternal grandparents. The hearing on the section 388 petition took place in October 2010 immediately preceding the section 366.26 hearing. At the section 388 hearing, the parties stipulated the paternal grandparents' home was approved in September for placement of Sophia's younger sister, A.V. The parties further stipulated that this constituted a change of circumstance. Thus, the court found there was a change of circumstance, and the only issue litigated was whether the proposed change in placement was in Sophia's best interests. Juan's section 388 petition alleged Sophia "would benefit, socially and emotionally, " by the proposed placement, and "[s]he would be able to develop family relationships with her aunts and uncles and other family members."
The petition listed the date of the order as August 24, 2009. That was the date of the detention hearing. The date of the dispositional hearing, at which the court ordered Sophia placed in foster care, was October 5.
Christina gave birth to A.V. in August or September 2010. Christina said Juan was A.V.'s father. Juan claims there is a "very high" likelihood that the paternal grandparents will adopt A.V., but the record contains no information about the circumstance of A.V.'s placement or the status of any dependency case regarding A.V.
The petition alleged the following additional change of circumstance: "Originally, there was confusion due to the language difficulty as to whether the [p]aternal [g]rand[p]arents were willing to have Sophia placed with them. This has been straightened out and the [p]aternal [g]rand[p]a[r]ents are requesting [p]lacement."
The court found that Sophia would derive some benefit from contact with A.V. and her other biological relatives, and from exposure to their culture, but it was clearly not in Sophia's best interests to be removed from the only home she had known. The court considered Sophia's special needs and noted that her caregivers were Options-trained foster parents who had helped Sophia develop coping and motor skills. Sophia had thrived in the care of her foster parents and was securely attached to her foster mother. The foster parents had "expressed an unwavering desire to adopt Sophia...." The foster family had adopted Sophia's half sister, S.M., and Sophia had a significant bond with her.
The paternal grandmother was from Mexico and her relatives lived there. Juan asserts the foster parents "do not share [Sophia's] ethnicity." The record does not disclose the foster parents' ethnicity.
The Options for Recovery Foster Care Program, a collaborative effort of the Agency and the California Department of Social Services, provides training for foster parents of drug-exposed children.
S.M.'s adoption was finalized in January 2008.
The court did not abuse its discretion by finding that Juan failed to show that placement with the paternal grandparents was in Sophia's best interests. As a result of her in utero drug exposure, newborn Sophia suffered from various physical problems, including tremors, poor muscle tone, reflux and difficulty sleeping. While she was still in the hospital the foster mother visited her, fed her and learned how to ease her withdrawal symptoms. Sophia became attached to the foster mother and the other members of the foster family, including the foster father and S.M. The foster mother ensured that Sophia received services to ameliorate her developmental delays, and Sophia's motor skills improved. In light of the delays in Sophia's adaptive abilities, the social worker believed it would be risky to move her from the foster home.
Sophia was not bonded to A.V. In the presence of persons outside the foster family, Sophia became extremely anxious. Although some of Sophia's problems improved over time, her stranger anxiety persisted. Sophia was very dependent on her foster mother. When they were separated, even briefly, Sophia cried and did not sleep well. This continued to the time of the section 388 hearing.
Sophia manifested this anxiety by screaming and crying inconsolably.
The paternal grandmother began visiting Sophia in October 2009. Initially, Sophia displayed extreme stress during the grandmother's visits. Over time, Sophia's anxiety eased, although until July 2010 she cried during the grandmother's visits. Shortly before the section 388 hearing, a visitation monitor had to pry Sophia away from the foster mother to take Sophia to a visit with the paternal grandmother. Sophia was still crying when the visit began. She smiled only five times during the visit and laughed only once. Upon returning to the foster home, Sophia became animated, reached for the foster mother and smiled.
The paternal grandfather visited Sophia only four times. The last visit took place in May 2010. In view of Sophia's stranger anxiety, this lack of contact further supports the denial of the section 388 petition.
Contrary to Juan's suggestion, the relative placement preference (§ 361.3) did not apply. After a dispositional hearing, the relative preference arises only if a new placement is necessary. (In re Lauren R. (2007) 148 Cal.App.4th 841, 853-854.) At the time of Juan's section 388 petition, the case was well past the reunification phase. Thus, the focus was on Sophia's need for permanency and stability and there was a rebuttable presumption that continued foster care was in her best interests. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) Juan did not overcome that presumption. Accordingly, the court did not abuse its discretion by denying Juan's section 388 petition.
The reunification phase in this case ended in April 2010, nearly six months before the section 388 hearing.
II
Substantial Evidence Supports the Adoptability Finding
The Agency had the burden of proving that one-year-old Sophia was adoptable. (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1557, 1559-1561.) Adoptability is determined "[o]n the basis of [the Agency's] assessment 'and any other relevant evidence'." (In re Josue G. (2003) 106 Cal.App.4th 725, 732, quoting § 366.26, subd. (c)(1).) "Although a finding of adoptability must be supported by clear and convincing evidence, it is nevertheless a low threshold: The court must merely determine that it is 'likely' that the child will be adopted within a reasonable time. [Citations.]" (In re K.B. (2009) 173 Cal.App.4th 1275, 1292.) A finding of general 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." (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649, italics omitted.) A child who is not generally adoptable may be specifically adoptable, that is, adoptable "because a prospective adoptive family has been identified as willing to adopt the child." (Id. at p. 1650.) Construing the record most favorably to the judgment (In re Josue G., supra, at p. 732), substantial evidence supports the court's finding that Sophia was both generally and specifically adoptable (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154).
A child's psychological, behavioral and developmental problems may make it more difficult to find adoptive homes, but do not necessarily prevent an adoptability finding. (In re Lukas B., supra, 79 Cal.App.4th at p. 1154; In re Helen W. (2007) 150 Cal.App.4th 71, 75, 79; In re Jennilee T. (1992) 3 Cal.App.4th 212, 224-225.) Such is the case with Sophia. The foster parents wanted to adopt her. "[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." (In re Sarah M., supra, 22 Cal.App.4th at p. 1650, italics omitted.) The paternal grandmother was also willing to adopt. In addition, there were 45 families in San Diego, with approved home studies, who were willing and able to adopt a child with characteristics similar to Sophia's. The juvenile court found this was "not surprising, " because Sophia was adorable and engaging, with a pleasant disposition and a nice smile. Thus, contrary to Christina's contention, there is substantial evidence that Sophia was generally adoptable.
The Agency contends Christina forfeited her right to challenge the adequacy of and the foundation for the adoption assessment because she did not do so in the juvenile court. Christina's trial counsel did not assert that the assessment was inadequate or object to a lack of foundation, but did argue against a permanent plan of adoption. Thus, Christina may not now challenge the foundation for the Agency's statement regarding the 45 families (In re R.C. (2008) 169 Cal.App.4th 486, 492-493), but she has not forfeited her right to challenge the sufficiency of the evidence supporting the adoptability finding (In re Brian P. (2002) 99 Cal.App.4th 616, 622-623).
Christina contends the juvenile court's selection of adoption as the permanent plan is unsupported by substantial evidence because neither the Agency's adoption assessment nor any other evidence provided "[a] preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent..., to include a social history including screening for criminal records and prior referrals for child abuse or neglect, the capability to meet the child's needs, and the understanding of the legal and financial rights and responsibilities of adoption...." (§ 366.21, subd. (i)(1)(D).) The foster parents were experienced adoptive and foster parents and had therefore "already been screened for the factors required in the assessment report." (In re L.Y.L. (2002) 101 Cal.App.4th 942, 956.) They had a completed home study, were committed to adopting Sophia, had proved capable of meeting her needs and understood the rights and responsibilities of adoption. At the very least, there was substantial compliance with the statutory requirements for the assessment. (In re John F. (1994) 27 Cal.App.4th 1365, 1378.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., NARES, J.
Juan now asserts that the Agency should have considered the paternal grandmother for placement "from the outset or at least as early as February" 2010. Juan has forfeited his right to make this assertion, as he never challenged the April six-month review hearing order continuing Sophia's placement in foster care.