Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Fresno County. Ct. No. 09CEJ300065-1 Mary D. Dolas, Commissioner.
Michelle L. Jarvis, under appointment by the Court of Appeal, for Defendant and Appellant.
Kevin Briggs, County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Levy, J., and Detjen, J.
INTRODUCTION
Marie W. (mother) appeals from orders terminating her parental rights (Welf. & Inst. Code, § 366.26) to her son, Toby S., and daughter, Cheyenne M. Mother contends there was insufficient evidence to support the juvenile court’s finding that the children were likely to be adopted. We disagree and affirm the juvenile court’s orders.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
Earlier Proceedings
On March 9, 2009, a petition was filed pursuant to section 300 alleging mother physically harmed Toby, then four years old, and alleging that Toby and Cheyenne, then three months old, were at risk of physical harm. The petition further alleged that William M., Cheyenne’s father, failed to protect the children. The allegations were found true at the conclusion of a jurisdiction hearing on July 7, 2009. At the disposition hearing on July 21, 2009, the court ordered supervised visits between mother and the children and reunification services for both parents.
Toby’s father is Toby S., Sr. William is also the parent of an older daughter, Katlyn W. Beginning in January 2009, Katlyn had been cared for by Carolyn S. and her husband, relatives of Katlyn’s mother, Janell M. Carolyn S. and her husband later indicated their interest in adopting Toby and Cheyenne. Carolyn S. had known William for years. The prospective adoptive parents were apparently only blood relatives to Katlyn, not to Toby and Cheyenne.
The social worker’s report for the six-month status review hearing stated that mother lived with William in an apartment with family members. The two were unemployed. Mother is a client of the Central Valley Regional Center (CVRC). Toby S., Sr., was not in contact with the Fresno County Department of Social Services (department) and his whereabouts were unknown. The parents were ordered to participate in parenting classes, mental health evaluations and domestic violence inventory and recommended treatments.
Mother and William completed a parenting program with the department. Toby S., Sr., failed to participate in any parenting class. William failed to complete a program for child batterers. William suffers from a major mental illness, which causes paranoid ideation and is a debilitating factor in his ability to function.
Mother completed a Domestic Violence Inventory and enrolled in classes, but failed to show up for her first session and the group was cancelled a week later. Mother did make some progress in the individual counseling services offered to her.
Mother suffers from mild mental retardation, with an I.Q. of 64, and was depressed. According to the psychologist who evaluated her, mother’s mental retardation is a chronic developmental disability that renders her unable to adequately care for and control her children. The psychologist concluded mother would not learn from court ordered reunification services in order to adequately parent her children.
Although mother regularly attended scheduled visits with her children, she did not interact well with Toby and did not try to engage him. Mother had made only minimal progress in her case plan. Both mother’s psychologist and the social worker recommended that reunification services to mother be terminated. After a lengthy contested hearing, the juvenile court terminated reunification services to the parents on March 26, 2010.
The social worker also recommended termination of William’s reunification services.
The children were evaluated by a Licensed Marriage and Family Therapist, Tressa Prael. Ms. Prael reported that Toby first received infant-preschooler family mental health services in March 2008 when mother reported he was sexually acting out multiple times daily with children and adults. Toby was hitting and biting. Mother failed to follow up with Toby’s therapy. When he was initially detained, Toby exhibited many fears, including the fear of not having enough food. Toby hoarded food under his bed.
Mother’s appellate counsel consistently refers to Ms. Prael as a doctor. Ms. Prael’s report, however, is signed Tressa Prael, LMFT.
Toby was assessed by Ms. Prael five months after living with a foster mother in August 2009. Toby had made “very significant progress in his social-emotional development” in the five months he had been with an attuned foster mother. Toby, who apparently was not yet toilet trained at age four, had been toilet trained by his foster mother. Toby was also no longer acting out sexually.
Toby was reassessed in November 2009 for sexualized behaviors, including “humping” the bed and masturbating. The foster mother was worried about Toby’s behavior and sneaking around the house at night to get food. Toby had masturbated in front of a developmentally delayed seven-year-old girl. The foster mother also reported that Toby was physically aggressive toward Cheyenne. Toby was also having behavioral problems at school, hitting other children. The foster mother did not want to be part of a permanent plan for the children. The foster mother failed to bring Toby to a scheduled appointment with Ms. Prael. Ms. Prael also could not see Toby on another occasion due to illness.
The psychologist who evaluated mother consulted Ms. Prael. The psychologist stated that according to Ms. Prael, Toby was the most disordered child Ms. Prael had treated. Toby had a severe attachment disorder, noted aggression, and sexualized behavior suggesting he had been sexually abused. Ms. Prael apparently told the psychologist Toby and Cheyenne should not be housed together.
The social worker contacted Carolyn S. who was providing care to William’s older daughter, Katlyn. Carolyn S. expressed interest in having Toby and Cheyenne placed in her home under a permanent plan because she wished to keep the children together.
Cheyenne completed an infant mental health assessment with Ms. Prael who found Cheyenne to be a little delayed developmentally. Cheyenne had not yet tried to pull herself up on furniture and seemed to want her bottle more than food. The foster mother failed to bring Cheyenne to Ms. Prael for further evaluation.
A report from a therapist with Comprehensive Youth Services noted in November 2009 that Toby was frightened during visits with his parents and would be quiet and sometimes nonverbal. Toby was more verbal since starting school and was excited to show his parents art projects from school. Toby was less guarded and withdrawn and would seek out his parents to play with him. Mother would sit on a couch and not interact with Toby. Cheyenne appeared content during visits with her parents.
Termination Hearing
The social worker’s report for the section 366.26 hearing was filed in August 2010. The social worker noted Toby did not have significant vision or hearing problems. Toby exhibited some speech delays shown by difficulty in verbalizing. This makes Toby difficult to understand. Toby’s gross and fine motor functions were normal. Toby requires some assistance in putting away toys and dressing himself, but follows simple commands. Toby is active and loves to play outdoors. After an assessment by the CVRC, Toby did not qualify for services.
Toby had just finished preschool and was about to begin kindergarten. Toby had behavior issues in preschool. He received speech therapy in preschool. Mother continued to hold educational rights concerning Toby. Toby was not receiving mental health services.
Cheyenne was in overall good health after her last medical visit. Cheyenne had no vision or hearing problems, but was showing some developmental delays. Cheyenne was not yet walking and was eligible for services at CVRC.
The social worker noted the children have no health issues, were cute, and appear to form positive attachments. The children would benefit if allowed to form parent/child relationships with Carolyn S. and her husband who were still willing to look at a plan of adoption for the children and provide them with a loving, stable home. The social worker noted it was likely Toby and Cheyenne would be adopted. Carolyn S. and her husband are currently caretakers of Katlyn, the older half-sister of Cheyenne. Carolyn S. and her husband had not yet cleared the home approval process at the time the social worker’s report was prepared.
At the termination hearing on August 31, 2010, the parties submitted the matter based on the social worker’s report. Counsel for the department stated the prospective adoptive parents had been visiting the children, the visits were going well, and they wanted to adopt both children. The court found the department made all reasonable services available to the parents. The court found it was likely Toby and Cheyenne would be adopted and terminated the parents’ parental rights.
DISCUSSION
Before a juvenile court may terminate parental rights, it must find by clear and convincing evidence that it is likely the dependent child will be adopted within a reasonable time. (§ 366.26, subd. (c)(1); In re Zeth S. (2003) 31 Cal.4th 396, 406.) The adoptability question 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.) The law, however, does not require a juvenile court to find a dependent child “generally adoptable” ― that is, independent of whether there is a prospective adoptive family waiting in the wings ― before terminating parental rights. (In re A.A. (2008) 167 Cal.App.4th 1292, 1313.) Case law also recognizes that the juvenile court may properly consider a prospective adoptive parent’s willingness to adopt as evidence that the child is likely to be adopted within a reasonable time. (Ibid.)
The existence of a prospective adoptive parent, who has expressed interest in adopting a dependent child, constitutes evidence that the child’s age, physical condition, mental state, and other relevant factors are not likely to dissuade individuals from adopting the child. In other words, a prospective adoptive parent’s willingness to adopt generally indicates the child is likely to be adopted within a reasonable time. (In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.)
Mother relies heavily in her opening brief on In re Brian P. (2002) 99 Cal.App.4th 616, 623-625 (Brian P.), for the proposition that a case with close facts that does not have an adoptability assessment and an evaluation by the social worker that there is a likelihood of adoption requires reversal. We find Brian P. distinguishable from the instant action because, unlike Brian P., the department addressed the likelihood that both children would be adopted. (Brian P., supra, 99 Cal.App.4th at p. 624.)
On the record, as summarized above, we conclude there was substantial evidence to support the juvenile court’s adoptability finding. Although Toby still showed behavioral problems, including sexually acting out and aggressiveness toward his sister and classmates, Toby was described as cute and generally healthy. Toby was more verbal since starting school, learned how to use a toilet (a skill mother failed to teach him), and was excited to show his parents art projects from school. Toby was less guarded and withdrawn and would seek out his parents to play with him. His primary learning difficulty was with speech, but this was being addressed in school.
Cheyenne showed some developmental delay, but was also generally healthy and also described as a cute child. Although William suffered from a mental illness, we find no merit to mother’s lengthy argument in her opening and reply briefs that the father’s mental illness would be an impediment to Cheyenne’s adoptability. Mother argues it does not take a large leap in logic to conclude Cheyenne would have mental health issues. This statement is speculation without any evidentiary basis concerning Cheyenne herself. Mother’s speculation is based on the developing personality of a child not yet two years old at the time of the section 366.26 hearing. We note that the prospective adoptive relatives were already caregivers to Katlyn, also William’s daughter. It is reasonable to infer that over the several years the prospective adoptive relatives had known William, they had become aware of his mental illness and were still willing to adopt Cheyenne.
Because Toby had a different father than Cheyenne, William’s mental illness has even less bearing on Toby’s adoptability than it does on Cheyenne’s adoptability.
The social worker noted that both children demonstrated the ability to bond with others. Both children were still very young. It appears that the original foster mother had some success in helping Toby overcome his behavior issues, but struggled with him later on. We note, however, that Toby was not able to obtain therapy in late 2009 and 2010 and mother still had educational control over Toby. The children were physically healthy and had overcome numerous obstacles to their developmental and emotional wellbeing. In addition, Carolyn S. and her husband were committed to adopting Toby and Cheyenne, and earlier in the proceedings, Carolyn S. told the social worker that she wanted to keep Toby and Cheyenne together.
Mother raises an issue of what weight to give the evidence before the juvenile court. She marshals only negative evidence concerning the children’s emotional problems and ignores all of the positive evidence concerning their adoptability. We, however, may not reweigh or express an independent judgment on the evidence by the juvenile court. (In re Laura F. (1983) 33 Cal.3d 826, 833.) Issues of fact are matters for the juvenile court alone. (In re Amy M. (1991) 232 Cal.App.3d 849, 859-860.) Mother also ignores the evidence that despite the effects of the neglect she caused her children to suffer, they could still develop a loving and bonded relationship with others and improve their social skills.
DISPOSITION
The orders terminating parental rights are affirmed.