Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. OJ09012171.
Reardon, Acting P.J.
The juvenile court terminated the parental rights of appellant M.J. to her minor daughter S.S. M.J. appeals, challenging the juvenile court’s finding that the minor is likely to be adopted. (See Welf. & Inst. Code, § 366.26, subd. (c)(1).) We affirm the termination order.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
I. FACTS
Appellant M.J. has a history of substance abuse, mental health issues, domestic violence and incarceration. By July 2007, seven of her children had been removed from her care by the juvenile court and she was receiving family reunification services.
S.S. was born to M.J. and presumed father Shannon S. in August 2008. She was exposed in utero to controlled substances. The parents received informal family maintenance services from October 2008 to March 2009 for S.S. This informal plan required M.J. to participate in a substance abuse program and drug testing.
The parental rights of Shannon were also terminated, but he did not appeal this ruling. We will only refer to him to the extent relevant to M.J.’s appeal.
On March 16, 2009, child welfare officials making a home visit learned that the older children were not attending school and that Shannon, who had been barred from M.J.’s home by a court order, was there. The next day, Shannon admitted that he was living in the home. He also reported that M.J. was using drugs and alcohol; that she was diluting her drug tests; and that she was neglecting the minors, leaving them with Shannon and her disabled mother. On March 19, 2009, S.S. was removed from the home and placed with a former daycare provider.
The next day, respondent Alameda County Social Services Agency petitioned the juvenile court to take jurisdiction over S.S., alleging that the mother had failed to protect the minor, that M.J. had provided no support for her, and that the minor’s siblings had been abused or neglected. (§ 300, subds. (b), (g), (j).) Specifically, the petition alleged that M.J. had a history of substance abuse treatment and relapse; that she relapsed while S.S. was in her care; that she left S.S. with Shannon in violation of a court order; and that she left the home for days at a time. M.J. had lied to the agency, denying that Shannon was in the home. M.J. was not attending a substance abuse program, her drug testing was sporadic, and some of the drug tests were positive. The petition also alleged the abuse, neglect and removal of S.S.’s siblings. On March 23, 2009, the juvenile court approved S.S.’s detention.
The agency recommended that no services be provided to M.J. as she had failed to avail herself of services that had already been offered. S.S. was suspected to have gross motor delays and she was referred for services to enhance her development. The agency concluded that S.S. was adoptable and that it appeared likely she would be adopted.
The juvenile dependency petition was amended and its allegations found true on May 14, 2009. The juvenile court declared S.S. to be a dependent child. It approved reunification services for M.J. M.J. was ordered to participate in an inpatient substance abuse program; submit to drug testing; undergo psychotropic medication evaluation and monitoring; attend counseling; address her anger management and domestic violence issues; make regular visitation; and address parenting concerns. M.J. was formally advised that agency services would not extend more than six months unless the court found substantial probability that S.S. would be returned to her custody within 12 months.
While the initial petition stated that M.J. was gone for three days, the amended petition stated that she was “only intermittently present” during this period.
The court found all amended allegations to be true. (§ 300, subds. (b), (g), (j).)
In June 2009, M.J. was arrested by Oakland police for forgery. In July 2009, she tested positive for cocaine and marijuana use.
In September 2009, the caregiver with whom S.S. had been placed expressed her willingness to adopt the child. At that time, M.J. supported this plan, acknowledging that her mental health and substance abuse issues prevented her from appropriate parenting.
S.S. was observed to have an affectionate relationship with her caregiver. The agency noted that S.S. was feisty and irritable at times. In October 2009, another adoption assessment was conducted and again S.S. was found to be adoptable. The caregiver was referred for an adoption home study.
In advance of the six-month review hearing, the agency recommended that M.J.’s reunification services be terminated and that the matter be set for a permanency planning hearing. (§ 366.26.) M.J. objected to the proposal to terminate her parental rights. The agency asserted that M.J. had only partially complied with her case plan. She had not completed residential drug treatment, outpatient substance abuse treatment and testing, or counseling. At times, M.J. had appeared to be emotionally unstable and possibly under the influence. She continued to be involved with Shannon. The agency also reported that early in the reporting period M.J.’s mental health and overall situation had deteriorated.
In this report, S.S. was described as an adorable 13 month old with big bright eyes and lots of dark curly hair. The caregiver described S.S. as active and inquisitive. The child was screened for early development issues. She had muscle tightness that indicated possible developmental delays, as well as sensitive skin that made her prone to diaper rash. Her feet tended to cross, prompting an orthopedic referral. A child care worker also observed S.S. to be irritable and aggressive when Shannon failed to make an anticipated visit.
By November 2009 the caregiver concluded that she was not in a position to adopt S.S. Another caregiver came forward to be considered for fost-adopt placement of S.S.
After the November 2009 review hearing, the juvenile court terminated M.J.’s reunification services after finding that she made only partial progress toward alleviating or mitigating the causes necessitating S.S.’s removal. It found that a permanent plan of adoption for S.S. was appropriate and set a March 2010 date for a permanency planning hearing. (§ 366.26.)
In December 2009, an incident of domestic violence involving M.J. and Shannon resulted in his being briefly incarcerated. S.S. was placed in the potential fost-adopt home in January 2010. In February 2010, an adoption home study began.
In February 2010, the agency prepared a report for the permanency planning hearing. It reported that although S.S. had been born exposed to controlled substances, she had only had mild health issues that had responded well to treatment. It noted that she had sensitive skin, was prone to diaper rash, experienced muscle tightness and had an orthopedic condition that caused her difficulty walking. She had an awkward and unsteady gait and her neck was stiff on one side. Her speech was limited, but she babbled enthusiastically. Her 10-month assessment showed age-appropriate development except for the muscle tightness. The agency referred S.S. for assessment of possible developmental and speech delays.
S.S. was well able to form a positive bond with her new caretaker, once she grew accustomed to her. S.S.’s resistance to transitions was deemed to be age-appropriate behavior from which the child recovered quickly.
The agency stated that S.S. was likely to be adopted despite her developmental delays. The child was affectionate with her proposed adoptive mother and her son. The proposed adoptive parent wanted very much to adopt S.S. and an initial investigation suggested that the home study was likely to be approved. The agency recommended termination of parental rights and adoption as the permanent plan for S.S. If the home of the proposed adoptive parent was unavailable, other adoptive homes would be, the agency concluded. The March 2010 permanency hearing was continued and ultimately was not held until September 2010 for reasons unrelated to S.S.’s adoptability.
In May 2010, the agency reported that S.S. had a growing relationship with her new caregiver who was committed to adopting the child. S.S.’s continuing gait and balance issues prompted a referral to a physical therapist. A speech evaluation was also planned.
S.S. had become clingy with her caregiver, showing a strong preference toward her. During this time, an early development clinician held weekly sessions to support S.S.’s adjustment to her caregiver. The agency acknowledged that S.S. might qualify for additional financial support to address her special needs. S.S. started attending a special preschool in July 2010.
Before the September 2010 permanency planning hearing, the agency again stated that S.S. was adoptable. Its final report noted some oral motor delay, a recommendation for speech therapy and a scheduled hearing examination. The agency also observed that just past her second birthday, S.S. was not yet eating solid food.
A developmental evaluation revealed developmental delays in fine motor, gross motor, cognitive, language, adaptive and social-emotional skills. Continued evaluation of these issues, a special preschool program, continued physical therapy, evaluation by an occupational therapist and an “ENT” examination were recommended. S.S.’s verbal skills were underdeveloped and she was prone to express her frustration by whining and engaging in aggressive behavior. The report suggested that adoption by the proposed adoptive parent was likely.
At the September 2010 permanency planning hearing, the agency informed the court that the home study was almost complete. The child welfare worker told the agency that the home study would be approved as soon as a certain document was received. M.J. was not present at this hearing. Her attorney informed the court that M.J. objected to the plan of adoption. Despite these objections, the juvenile court found by clear and convincing evidence that S.S. was likely to be adopted. It terminated M.J.’s parental rights.
II. ADOPTABILITY
A. Standard of Review
M.J. contends that the juvenile court erred in terminating her parental rights because there was insufficient evidence to support its finding that S.S. is adoptable. A juvenile court may terminate parental rights and order a child placed for adoption only if it finds by clear and convincing evidence that the minor is likely to be adopted. (§ 366.26, subd. (c)(1).) The issue of adoptability focuses on the minor—on whether the child’s age, physical condition, and emotional state might make it difficult to find someone willing to adopt him or her. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) The child need not already be placed in a preadoptive home, nor must a proposed adoptive parent be waiting. However, there must be convincing evidence of the likelihood that an adoption will occur within a reasonable time. (In re Brian P., supra, 99 Cal.App.4th at p. 624.)
A claim that there is insufficient evidence of a child’s adoptability at a contested hearing is not waived by failure to argue the issue in juvenile court. (In re Brian P. (2002) 99 Cal.App.4th 616, 623.)
On review, we determine whether the record contains substantial evidence from which the juvenile court could find by clear and convincing evidence that the minor is likely to be adopted within a reasonable time. That evidence must be strong enough to command the unhesitating assent of reasonable minds. We give the adoptability finding the benefit of every reasonable inference from the evidence and resolve all evidentiary conflicts in favor of that finding. (In re B.D. (2008) 159 Cal.App.4th 1218, 1232.)
B. General Adoptability
First, M.J. argues that S.S. is not generally adoptable because of her special needs and her unique and challenging characteristics. A child is generally adoptable when his or her personal characteristics are sufficiently appealing to make it likely that an adoptive family will be located in a reasonable time, regardless of whether a prospective adoptive family has been found. (See In re Sarah M., supra, 22 Cal.App.4th at p. 1649.)
A child’s relative youth, his or her good physical and emotional health, the minor’s intellectual capacity and his or her ability to develop interpersonal relationships all indicate that the child is adoptable. (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1562.) Factors that make a minor generally adoptable include appealing characteristics such as a young age, affectionate personality traits, positive interaction with others, and an attractive physical appearance. These characteristics make adoption likely even if the prospective adoptive parent’s plans fall through. (In re Helen W. (2007) 150 Cal.App.4th 71, 79-80; see In re R.C. (2008) 169 Cal.App.4th 486, 492 [prenatal exposure to substances and speech delays]; In re Sarah M., supra, 22 Cal.App.4th at p. 1651.)
The possibility that a child may have future problems does not preclude a finding that he or she is likely to be adopted. Even a minor exposed to substances in utero and suffering speech delays may be found generally adoptable. (In re R.C., supra, 169 Cal.App.4th at p. 492.) Young children may be generally adoptable despite evidence of physical and developmental conditions, significant delays and speech issues. These conditions require time to determine the full severity of the issues the minor will face. The certainty of a child’s future medical condition is not required before a court can find that the minor is generally adoptable. (See In re Helen W., supra, 150 Cal.App.4th at p. 79.)
In this matter, the record contains evidence of S.S.’s appealing characteristics that support the finding that she was generally adoptable. S.S. was under three years old at the time of the adoptability finding. Her caregiver described her as happy, outgoing and loveable. She was physically appealing, busy and active, healthy, delightful and affectionate. S.S. responded well to therapy and successfully transitioned into a preschool program. S.S. was closely attached to her caregiver and had developed an appropriate relationship with the caregiver and her son.
S.S.’s special needs and challenges do not preclude a finding that she is generally adoptable. Although S.S. was exposed to controlled substances in utero, she experienced only mild health issues related to this circumstance. Other challenges include muscle tightness, gait and balance issues, and developmental delays. There is no evidence that her challenging characteristics will develop into permanent disabilities that will place an extraordinary burden on an adopting family.
For example, the record indicates that M.J. reported that she experienced gait and balance issues as a child similar to those S.S. demonstrated. M.J.’s issues were eventually resolved.
It is also relevant that two caretakers considered adopting S.S. A prospective adoptive parent’s willingness to adopt generally indicates that the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family. (In re R.C., supra, 169 Cal.App.4th at p. 491.) S.S.’s characteristics did not dissuade two prospective adoptive parents from pursuing adoption. When the initial caregiver realized she was not in the position to adopt a child, the second candidate immediately came forward expressing a desire to adopt S.S. The willingness of these potential adoptive parents to adopt S.S. supports our determination that S.S.’s special needs are not likely to dissuade individuals from adopting her. For all of these reasons, we find substantial evidence to support the juvenile court’s finding that S.S. was generally adoptable.
C. Specific Adoptability
M.J. also argues that S.S. is not specifically adoptable by the proposed adoptive parent. As the evidence supports the finding that S.S. is generally adoptable, and the suitability or availability of a specific person to adopt her is not a relevant inquiry, neither are legal impediments. (See In re R.C., supra, 169 Cal.App.4th at pp. 493-494.)
The termination order is affirmed.
We concur: Sepulveda, J., Rivera, J.