Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Kern County Nos. JD115670, JD115671. Peter A. Warmerdam, Referee.
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant.
Theresa A. Goldner, County Counsel, and Jennifer L. Thurston, Deputy County Counsel, for Plaintiff and Respondent.
Before Vartabedian, A.P.J., Cornell, J., and Kane, J.
P.M. (father) appeals from orders terminating his parental rights (Welf. & Inst. Code, § 366.26) as to his daughters, T. and A. (the girls). He contends there was insufficient evidence to support the court’s finding that the girls were likely to be adopted. On review, we affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
In November 2007, the Kern County Superior Court (court) adjudged father’s four children, including the girls who are the subjects of this appeal, juvenile dependents and removed them from parental custody. The court previously found the children came within its jurisdiction under section 300, subdivision (b), due to parental neglect. Having removed the children from parental custody, the court ordered reunification services for both parents.
During the reunification period, respondent Kern County Department of Human Services (department) discovered that prior to the children’s dependency, father had engaged in sexual intercourse with one of his children’s half siblings. He also physically abused several of the children. This new information led the department to allege and the court to find, pursuant to section 342, additional grounds for dependency jurisdiction. (§ 300, subds. (a)[substantial risk of physical abuse] & (d)[substantial risk of sexual abuse].)
The court subsequently terminated father’s services and denied him further services (§ 361.5, subd. (b)(6)). After it later terminated the mother’s reunification services due to her lack of progress, the court set a March 2009 section 366.26 hearing to select and implement permanent plans for the girls.
In advance of the section 366.26 hearing, the department filed a report in which it recommended the court find the girls were likely to be adopted and order parental rights terminated. An adoption social worker who had assessed the girls as adoptable reported the following.
T. was five years old and A. was four years old when they entered foster care. Over the approximate 18 months of the girls’ dependency, each had 7 placements. Those placements consisted of a one-day stay at the children’s center, a brief stay in an emergency foster home, and two foster home placements that each lasted a few months. The girls were not placed together during these early months. That changed in February 2008 when the department placed the girls with an aunt. However, the relative placement lasted only four months. The aunt was no longer able to care for the girls. This led to the girls once again being placed in separate foster homes in June 2008. Then in February 2009, they were placed together in a pre-adoptive home that also included their two younger brothers.
At the time of the adoption assessment, T. was described as a happy, playful and beautiful six-year-old girl with no known major medical or behavioral problems. T. seemed to be developing appropriately for her age. She played well with other children and could operate age-appropriate toys and play age-appropriate games. T. was currently in the first grade and was doing well in school. Her caretaker described her as a smart, active, and outgoing child.
Meanwhile, A. was described as an active, happy, playful and adorable five-year-old girl, also with no known major medical or behavioral problems. A developmental assessment found her to be age appropriate in all the skills evaluated. She too played and socialized well with children her age. Currently in kindergarten, A. was a little behind in reading.
In the adoption social worker’s opinion, the girls were appropriate for adoption planning due to their young age and absence of any significant medical problems or developmental delays. Their current caretakers also expressed a desire to adopt them.
The adoption social worker also reviewed the contacts that the girls had with each of their parents pursuant to a statutory requirement (§ 366.21, subd. (i)(1)(B)). Because visitation was supervised, there were generally narratives describing the visits. For the first nine months or so, the parents visited together with the girls. Those visits went well with no concerns or problems.
Starting in July 2008, the parents visited separately with the girls. Mother’s visits with the girls and their siblings continued to go well and there were no concerns. By contrast, father’s visits with the girls and their younger brothers who were also father’s children were markedly different. Father would bring food and drink, frequently soda, for the children. Once they ate, the children would become hyperactive and start playing roughly with each other. Often times, the children did not mind father and when they did not get their way, the children would throw tantrums, cry and scream. In addition, father sometimes had difficulty paying equal attention to each child and became frustrated when the children whined or fought with each other. Discipline was also difficult for him.
During two visits with mother in January and February 2009, the younger girl, A., had a tantrum and cried uncontrollably. Mother did nothing to comfort the child or to get her to stop crying.
The court conducted the section 366.26 hearing in March 2009. The matter was submitted on the department’s social study. Father’s counsel objected to the department’s recommendation but had no evidence to introduce. The court found clear and convincing evidence that the girls were likely to be adopted and ordered parental rights terminated.
Father appealed in May 2009. By the time the court clerk prepared the appellate record, there had been a post-termination review hearing. The clerk included in the appellate record documents regarding the post-termination review hearing. In a report prepared for that hearing, the department revealed the social worker was looking for a new adoptive home for all four of father’s children and had apparently referred the girls for mental health assessments based on their behavior.
DISCUSSION
As previously mentioned, father contends there was insufficient evidence to support the court’s finding that it was likely the girls would be adopted. He contends the girls were not generally adoptable, by highlighting the girls’ seven placements over the course of their dependency, “their unruly conduct during parental visits,” and the post-termination evidence about the girls’ apparent need for mental health services. He also criticizes any reliance by the court in March 2009 on the girls’ then recent placement in a pre-adoptive home. That placement was simply too short, according to father, to support a finding that the girls were specifically adoptable by the family.
The adoptability issue at a section 366.26 hearing focuses on the dependent child, e.g., whether his or her age, physical condition, and emotional state make it difficult to find a person willing to adopt. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) It is not necessary that the child already be in a potential adoptive home or that there be a proposed adoptive parent waiting in the wings. (In re Jennilee T. (1992) 3 Cal.App.4th 212, 223, fn. 11.) The law does not require a juvenile court to find a dependent child “generally adoptable” before terminating parental rights. (In re A.A. (2008) 167 Cal.App.4th 1292, 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; § 366.26, subd. (c)(1).)
Here, there was substantial evidence to support the court’s finding. Each girl was young, healthy, developmentally on target, happy, and social. Father overlooks this evidence and instead selectively chooses evidence from the record in support of his argument. This is not an approach we may follow on review. When asked to assess the sufficiency of the evidence, we determine whether there is any substantial evidence, whether or not contradicted, which will support the court’s conclusion. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the decision, if possible. We may not reweigh or express an independent judgment on the evidence. (In re Laura F. (1983) 33 Cal.3d 826, 833.)
Although the girls had seven placements over the course of their dependency by the time of the section 366.26 hearing, there is no evidence in the record that the placement changes were somehow the girls’ fault. For father to assume otherwise violates the substantial evidence rule, as recited above.
Father’s reliance on the girls’ so-called unruly conduct during parental visits is also misplaced. As we read the record, the girls only began to misbehave when they and their younger brothers started visiting father, separate from mother. The reasonable inference to be drawn from the record is that father could not manage his four children during visits and perhaps complicated matters with the food and drinks he brought. Such evidence speaks to father’s abilities, not to the likelihood of the girls’ adoption.
To the extent father cites to the record developed after the court terminated parental rights, his reference to that evidence fails as well. Events that occur after the order being appealed can have no effect on the appellate court’s review. (In re Heather P. (1989) 209 Cal.App.3d 886.) An appeal reviews the correctness of a trial court’s decision as of the time of its rendition and upon a record of matters which were before the trial court for its consideration. (In re Zeth S., supra, 31 Cal.4th at p. 405.) Thus, we do not consider the post termination evidence as it was not before the trial court when it decided the girls were likely to be adopted. Father’s argument improperly would have this court substitute its own judgment for the trial court’s determination. (Id. at p. 410.)
DISPOSITION
The orders terminating parental rights are affirmed.