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In re Valerie W.

California Court of Appeals, Fourth District, First Division
Apr 21, 2009
No. D053604 (Cal. Ct. App. Apr. 21, 2009)

Opinion


In re VALERIE W. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. GREG W. et al., Defendants and Appellants. D053604 California Court of Appeal, Fourth District, First Division April 21, 2009

NOT TO BE PUBLISHED

APPEAL from judgments of the Superior Court of San Diego County No. J513887, Carol Isackson, Judge.

McCONNELL, P. J.

Greg W. and S.W. (together, the parents) appeal judgments terminating their parental rights to their minor children Valerie W. and Gregory W. (together, the minors) under Welfare and Institutions Code section 366.26. In a prior appeal filed by the parents, this court reversed the judgments terminating parental rights on the ground the evidence was insufficient to support a finding the minors were adoptable because the assessment report was inadequate in several respects. (In re Valerie W. (2008) 162 Cal.App.4th 1, 13-16.) We remanded the matter to have the San Diego County Health and Human Services Agency (Agency) prepare an assessment report in compliance with statutory requirements and to have the juvenile court conduct a new section 366.26 selection and implementation hearing. (Id. at p. 17.) In accordance with our opinion, Agency prepared a second assessment report, and the juvenile court held a new selection and implementation hearing. The court found the minors were likely to be adopted within a reasonable time and terminated parental rights.

Statutory references are to the Welfare and Institutions Code.

In this appeal the parents again challenge the sufficiency of the evidence to support the court's finding of adoptability. They assert: (1) the assessment report does not include necessary information about the minors or their caregiver; (2) substantial evidence does not support the court's finding the minors are adoptable; and (3) Agency intends to allow the caregiver and her mother to jointly adopt the minors even though there is no legal authority for such an adoption. We affirm the judgments.

FACTUAL AND PROCEDURAL BACKGROUND

The factual and procedural background of this case is detailed in two prior opinions, Valerie W. (Dec. 4, 2006, D048926 [nonpub. opn.]) and In re Valerie W., supra, 162 Cal.App.4th at pages 5-8. Here, we focus on the evidence presented at the second selection and implementation hearing relating to the court's finding of adoptability.

In May 2006 two-year-old Valerie and nine-month-old Gregory became dependents of the court under section 300, subdivision (b) and were removed from parental custody based on findings they had been neglected and were at substantial risk of harm because of the parents' substance abuse. The court placed the minors with a nonrelative extended family member, Vera V., and ordered reunification services for Greg but not for S.W. Throughout the reunification period, the parents were unable to maintain their sobriety or make the changes necessary to regain custody of the minors. The court terminated Greg's services and set a section 366.26 selection and implementation hearing.

The social worker assessed the minors as adoptable and recommended adoption as their permanent plans. She described four-year-old Valerie as healthy, developing appropriately and doing well in school. Valerie had behavioral and emotional problems for which she was receiving therapy. Three-year-old Gregory was described as healthy, other than having asthma. He was small for his age and was scheduled for a developmental evaluation and neurological and genetic tests.

The minors were doing well in the home of Vera, whose adult daughter, Juana P., also provided care for them. The minors were emotionally attached to Vera and Juana, who were committed to adopting them and were in the process of completing a home study. The social worker had no concerns about the home being approved for adoption. At a selection and implementation hearing held in June 2007, the court found the minors were likely to be adopted by Vera if parental rights were terminated and none of the exceptions to adoption applied to preclude terminating parental rights.

The parents successfully appealed the judgment terminating their parental rights. (In re Valerie W., supra, 162 Cal.App.4th at pp. 1-17.) We held the assessment report relied on by the juvenile court to find the minors were adoptable did not comply with statutory requirements because it did not contain adequate medical information about the minors, sufficient information about the prospective adoptive parents and their ability to meet the minors' needs, and it failed to consider whether there were any legal impediments to the minors' adoption by both Vera and Juana. (Id. at pp. 13-16.) We remanded the matter for a complete assessment report and directed the juvenile court to hold a new selection and implementation hearing. (Id. at p. 17.)

Agency prepared a new assessment report. The report stated Valerie is a physically and emotionally healthy five year old who is developmentally on track. Gregory was described as a healthy three year old. The report included the results of Gregory's medical tests and doctor visits. According to Gregory's pediatrician, his small stature and slow growth were attributable to his history of malnutrition and neglect while in his parents' care, but he was now growing appropriately. Neurological and genetic test results were normal. Gregory had no developmental, emotional or behavioral concerns. He needed no special care other than continued speech and language therapy at school.

The assessment report noted that for the past two years the minors lived part of the time with Juana, who took them to all their medical appointments. Agency no longer intended to have Vera and Juana jointly adopt the minors. Instead, Juana would adopt the minors on her own, and Vera would remain an important part of the minors' lives. The minors had been living exclusively with Juana for the past three months. They referred to her as "Mom" and to Vera as "Nana." Juana has no criminal or child welfare history. She has been capable of meeting the minors' physical, developmental, medical and emotional needs and would like to provide them with a permanent, loving home. Juana is aware of the legal and financial rights and responsibilities of adoption. She has an approved home study. The minors want to live with Juana "forever."

The report also indicated that if, for some reason, Juana did not adopt the minors, Agency had identified numerous families willing to adopt children like Valerie and Gregory individually or as a sibling set.

At a contested selection and implementation hearing in August 2008, the court received Agency's reports into evidence and heard testimony from the parents and the minors' older siblings. The parties stipulated that the social worker, if called to testify, would say there were 26 families with approved home studies interested in adopting a child like Valerie, 31 families with approved home studies interested in adopting a child like Gregory, and 13 families, including Juana, who would adopt both children. After considering the evidence and hearing argument of counsel, the court found the minors were generally and specifically adoptable and none of the exceptions to adoption applied to preclude terminating parental rights.

DISCUSSION

I

The parents contend Agency's new assessment report was still inadequate under section 366.21, subdivision (i) because it lacked basic and critical information about the minors' physical and psychological health, and about Juana's financial ability to care for the minors. The parents further contend the evidence does not support a finding the minors are generally or specifically adoptable.

A

Before selecting and implementing a permanent plan for a minor, the court must order Agency to prepare a written assessment of specified relevant factors, including: (1) an evaluation of the child's medical, developmental, scholastic, mental and emotional status; (2) a preliminary assessment of the eligibility and commitment of any prospective adoptive parent (particularly the caregiver) and that person's ability to meet the child's needs; (3) information about the child's relationship to the caregiver and a statement from the child, if possible, concerning adoption; and (4) an analysis of the likelihood of adoption for the child. (§ 366.21, subd. (i)(1)(C), (D), (E) & (G).) When adoption is the recommended permanent plan, the assessment report serves to provide the juvenile court with information necessary to determine whether adoption is in the child's best interests. (See In re Dakota S. (2000) 85 Cal.App.4th 494, 496.)

The assessment report need not be entirely complete, as long as it is in substantial compliance with statutory requirements. (In re John F. (1994) 27 Cal.App.4th 1365, 1378; In re Diana G. (1992) 10 Cal.App.4th 1468, 1482.) When an assessment is challenged as incomplete, the reviewing court looks at the totality of the evidence before it; deficiencies go to the weight of the evidence and may prove insignificant unless they are so egregious as to undermine the court's permanent plan decision. (In re Valerie W., supra, 162 Cal.App.4th at pp. 14-15; In re John F., supra, 27 Cal.App.4th at p. 1378; In re Crystal J. (1993) 12 Cal.App.4th 407, 413.)

B

Here, Agency complied with section 366.21, subdivision (i)(1)(C) by preparing an assessment of each minor's medical, developmental, scholastic, mental and emotional status. At the time the report was prepared, Gregory was three years old and Valerie was five years old. The social worker described both children as physically healthy and developing appropriately. Gregory's pediatrician wrote a letter, attached to the assessment report, stating Gregory had had many medical tests and consultations with specialists, including nutritionists, geneticists and neurologists, resulting in no particular concerns. Neurological tests were negative for any abnormalities or seizure disorders. Although Gregory is physically small, his pediatrician reported he has shown adequate growth. His speech articulation disorder is being addressed in speech therapy. No further testing or treatment was planned or deemed necessary.

The parents complain Agency failed to submit neurological, genetic or developmental test results, and the assessment report fails to mention Gregory's reactive attachment disorder. However, an assessment report need not include actual medical records or the full text of evaluations or testing by a health care professional. Rather, section 366.21, subdivision (i)(1)(C) simply requires that the social worker evaluate "the child's medical, developmental, scholastic, mental, and emotional status." Here, the social worker properly evaluated Gregory's medical, emotional and developmental status based on information from various sources such as the history of Gregory's medical appointments, his test results, the report and medical opinion of his pediatrician, his therapist's report, and input from his teachers. Although no mention of Gregory's reactive attachment disorder appears in the body of the assessment report, a letter from his therapist attached to the report notes Gregory was making significant progress toward correcting this problem by developing healthy, secure attachments to his foster family and showing more appropriate boundaries with others as a result of having no contact with his parents. The assessment report substantially complied with the statutory requirement of providing an evaluation of the minors' medical, developmental, scholastic, mental and emotional status. (§ 366.21, subdivision (i)(1)(C).)

C

The parents assert the assessment report did not comply with section 366.21, subdivision (i)(1)(D) and (E) because it contained inadequate information about the prospective adoptive parent, the relationship the minors had with her and the minors' position regarding adoption. However, information about Juana, the minors' caregiver who wanted to adopt them, is contained throughout the assessment report. The social worker reported Juana had known the minors before they became dependents. For the past two years, Juana took them to most of their medical, dental and therapy appointments and was fully aware of their positive characteristics as well as their problems. The minors had been in her exclusive care for the past three months and called her "Mom." Juana was described as a single woman with no biological children. She had full-time employment and was very involved with her family. She had no criminal or child welfare history. Juana was aware of the legal and financial rights and responsibilities of adoption. She was committed to providing the minors with a permanent home, stating she loved them as her own and wanted to see them succeed in life. The minors said they loved Juana and wanted to live with her forever. From this information, the social worker could properly provide a "preliminary assessment," as required by section 366.21, subdivision (i)(1)(D), that Juana was able to meet the minors' needs. The assessment report contained the required information about the relationship the minors had with Juana, the character of that relationship and a statement from the minors concerning adoption. (§ 366.21, subd. (i)(1)(E).)

Contrary to the parents' position, the assessment was not deficient for excluding more detailed information about Juana's salary, employment history and housing situation. Their claim that Juana "seemed rather young and immature" is irrelevant and improper speculation.

D

The parents assert the assessment report did not comply with section 366.21, subdivision (i)(1)(G) because it provided an "unclear" adoption analysis. However, under the heading "Assessment/Evaluation," the report analyzes the likelihood of adoption for the minors and concludes they are adoptable. It describes their general characteristics, including their ages, physical conditions and emotional states, and specifically refers to Gregory's medical needs and history. The report notes Juana is committed to adopting the minors, and should she be unable to adopt, there are numerous families willing to adopt the minors, either individually or as a sibling set, based on their characteristics. The report also notes the minors have no beneficial relationship with the parents or their older siblings, and it discusses the benefits of adoption, indicating the minors will have a safe, stable and secure home with a parent who has positive judgment and insight. Living with Juana has allowed Gregory to regain his physical health and both children have acquired self-esteem, self-confidence and a sense of pride. The social worker's professional, competent and detailed assessment report complied with the adoptability analysis required by section 366.21, subdivision (i)(1)(G).

II

The parents further contend the evidence does not support a finding the minors are generally or specifically adoptable. They assert: (1) the minors had numerous physical and emotional problems, including reactive attachment disorder; (2) the 12 families interested in adopting the minors were merely "computer matches" with no serious commitment to adopt; and (3) Juana may not have the financial resources to adopt.

A

The court can terminate parental rights only if it determines by clear and convincing evidence the minor is likely to be adopted. (§ 366. 26, subd. (c)(1).) The statute requires clear and convincing evidence of the likelihood adoption will be realized within a reasonable time. (In re Zeth S. (2003) 31 Cal.4th 396, 406; In re B.D. (2008) 159 Cal.App.4th 1218, 1231.) In determining adoptability, the focus ordinarily is on whether a child's age, physical condition and emotional state will create difficulty in locating a family willing to adopt. (In re David H. (1995) 33 Cal.App.4th 368, 378.) The possibility a child may have future problems does not mean the child is not likely to be adopted. (In re Jennilee T. (1992) 3 Cal.App.4th 212, 223-225.)

A minor considered to be adoptable need not be in a prospective adoptive home, and there need not be a prospective adoptive parent " 'waiting in the wings.' " (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) Nevertheless, "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." (Id. at pp. 1649-1650.) We review the court's finding as to adoptability for substantial evidence. (In re Josue G. (2003) 106 Cal.App.4th 725, 732; In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.)

If substantial evidence supports a finding the child is generally adoptable, we do not examine the suitability of the prospective adoptive home. (In re R.C. (2008) 169 Cal.App.4th 486, 493-494.) Only when the minor is not adoptable because of age, physical condition or emotional state does the analysis shift from evaluating the child's characteristics to determining "whether there is any legal impediment to the prospective adoptive parent's adoption and whether he or she is able to meet the needs of the child." (In re Helen W. (2007) 150 Cal.App.4th 71, 80; In re Carl R. (2005) 128 Cal.App.4th 1051, 1062; In re Valerie W., supra, 162 Cal.App.4th at p. 13.) As long as the minor is generally adoptable, the issue of a family's suitability to adopt is reserved for the subsequent adoption proceeding. (In re R.C., supra, 169 Cal.App.4th at p. 494.)

B

Here, the evidence showed the minors were adoptable based on their general characteristics, their placement in a prospective adoptive home and the interest of other prospective adoptive families. The minors were young and generally healthy. Gregory's asthma was controlled by the occasional use of a nebulizer at home, and he had not had a seizure in nearly two years. Due to Juana's dedicated care, Gregory received extensive medical testing, all of which showed normal results. No further testing was needed. Although Gregory was small for his age, he was growing appropriately and to the satisfaction of his pediatrician. His speech delays were being addressed in speech therapy twice a week. Valerie was also in good physical health, a fact the parents do not dispute, and was doing well academically.

Although the minors had histories of emotional problems, they had made significant strides, including correcting their reactive attachment disorder. After the minors no longer had contact with the parents, their emotional states and behavior improved. They were developing healthy, secure attachments to their caregiver and other family members. The minors' therapist had no concerns about their emotional well-being and believed it would not be detrimental to the minors to terminate parental rights. Any lingering behavioral or emotional problems do not, without more, create an impediment to these minors' adoption. (See In re Erik P. (2002) 104 Cal.App.4th 395, 400; In re Lukas B., supra, 79 Cal.App.4th at pp. 1153-1154.)

Moreover, the minors are thriving in the home of Juana, who is fully aware of their needs and remains committed to adopting them. Her willingness to adopt serves as further evidence the minors are likely to be adopted within a reasonable time either by Juana " 'or by some other family.' " (In re R.C., supra, 169 Cal.App.4th at p. 491.) Should the placement with Juana fail, Agency has identified numerous approved families willing to adopt a sibling set like the minors, and there is no basis in the record to conclude these families are not "serious" about adopting them. Substantial evidence supports the court's finding the minors are generally adoptable.

C

The parents assert the minors are not specifically adoptable because Juana's "[e]mployment and housing history seemed sketchy," and she could lose the placement due to financial concerns. However, because substantial evidence supports a finding the minors are generally adoptable, Juana's suitability to adopt is not a relevant inquiry at this stage of the proceedings. (In re R.C., supra, 169 Cal.App.4th at pp. 494-495; In re Sarah M., supra, 22 Cal.App.4th at p. 1650.) In any event, based on the record before us, there is no showing of any legal impediment to adoption by Juana.

III

The parents contend the evidence strongly indicates Agency intends to permit Juana and Vera to jointly adopt the minors. They assert this type of adoption is not sanctioned by law.

Although Agency originally identified Juana and Vera as the minors' adoptive parents, it has since abandoned that idea. At the time of the second selection and implementation hearing, the minors had been placed in Juana's exclusive care, and Agency was pursuing adoption by Juana alone. Juana has an approved home study. Throughout its new assessment report, Agency noted Juana will be the minors' prospective adoptive parent, with Vera as the "significant support system" and "back up" for Juana, thereby allowing Vera to remain an important part of the minors' lives. This arrangement appears to be in the minors' best interests because they know Juana as "Mom" and Vera as "Nana." We are presented with no opportunity here to decide the propriety of a joint adoption by a mother and her adult daughter.

DISPOSITION

The judgments are affirmed.

WE CONCUR: McDONALD, J., AARON, J.


Summaries of

In re Valerie W.

California Court of Appeals, Fourth District, First Division
Apr 21, 2009
No. D053604 (Cal. Ct. App. Apr. 21, 2009)
Case details for

In re Valerie W.

Case Details

Full title:In re VALERIE W. et al., Persons Coming Under the Juvenile Court Law. SAN…

Court:California Court of Appeals, Fourth District, First Division

Date published: Apr 21, 2009

Citations

No. D053604 (Cal. Ct. App. Apr. 21, 2009)