Opinion
NOT TO BE PUBLISHED
Lake County Super. Ct. No. JV320247A
Margulies, Acting P.J.
Four-year-old C.M. was detained by the Lake County Department of Social Services (agency) on allegations his mother kept a “hazardous and inadequate home.” The mother and C.M.’s father, appellant D.M. (Father), were provided reunification services for six months, but the services were terminated after neither parent cooperated in a meaningful way with the agency’s efforts. During foster care, C.M. demonstrated serious behavioral problems, but the agency was confident they were not severe enough to impair his adoption. The juvenile court concluded C.M. was likely to be adopted and terminated Father’s parental rights. Father contends the court’s finding of adoptability was not supported by the evidence. We affirm.
I. BACKGROUND
C.M., then nearly four years old, was the subject of a dependency petition under Welfare and Institutions Code section 300, subdivision (b), filed February 23, 2010. The petition alleged C.M.’s mother (Mother), who had a history of drug abuse and mental illness, had created a hazardous and inadequate home and engaged in poor parenting of C.M. and N.W., C.M.’s younger brother by a different father. Father, who also had a history of drug abuse and mental illness, was alleged to have knowingly permitted C.M. to live under these circumstances. Both boys were detained and placed in foster care.
All statutory references are to the Welfare and Institutions Code.
Once in foster care, C.M. proved to have serious behavioral problems. In his first foster placement, he bit other children, “ ‘beat up’ ” a two-year-old, and killed a dog by slamming it against furniture and a wall. The foster parents soon gave notice. When removed to an emergency home, C.M. “on a regular basis... hit[], kick[ed], grab[bed], and bit[] other children.” In the next foster home, C.M. lasted only two months before the parents also gave notice, since he “hit, scratch[ed], and bit[] the other children in the home, as well as act[ed] defiantly towards the foster parents.” In the next foster home, his fourth in six months, C.M. started a fire in his bedroom, told his foster mother, “I’m going to kill you with a real knife, ” had “fits of rage, ” claimed to hear voices, exhibited sexualized behavior with a young foster girl, yelled and kicked closet doors to get attention, urinated in his bedroom, stole and hoarded food, and lied to avoid consequences. The juvenile court eventually approved a doctor’s request to administer psychotropic medication to control C.M.’s hyperactive and impulsive behavior. Although this foster mother was “very overwhelmed” by the task of caring for C.M., she did not return him to the agency.
During this time, the agency attempted to provide services and supervised visits to Father and Mother. Burdened by his own drug use and mental illness, Father was only intermittently and reluctantly cooperative with the agency, and he proved during visits to be incapable of dealing constructively with C.M.’s difficult behavior. Mother faded from the scene within a few months after the boys were detained, having failed to participate in services and, eventually, visitation. At the six-month review hearing, the juvenile court terminated services to both parents and scheduled a permanency planning hearing.
In preparation for the hearing, the agency submitted an adoption assessment report. The report acknowledged C.M.’s difficult behavior, but it noted his foster mother had seen some improvement in his conduct over time. It concluded C.M. could “move to an adoptive home” if provided with sufficient support services and was likely to be adopted. As the report explained, “[The agency] completed a thorough search for a family for [C.M.] and received many qualified home studies from licensed adoption agencies of families that are interested in adopting a young child and a sibling group. [The agency] is confident that if this identified family turns out not to be the prospective adoptive parents, [the agency] has other well-qualified families to choose from. Therefore, it appears that the child is likely to be adopted if parental rights are terminated.”
The report’s mention of “this identified family” referred to a married couple in their early 30’s who had expressed a willingness to adopt C.M. and his brother. The couple was given “a full disclosure of [C.M.’s] placement history and his current educational and mental health issues” and trained to handle children with special needs. During the couple’s first visit with the boys, C.M. “repeatedly charged and body slammed the prospective father, ” but the two ended up reading together. A second visit a week later “went well.” When C.M. lost control, the potential adoptive father was able to “calm [him] verbally and redirect his behavior.” Thereafter, C.M. and his brother stayed with the family for two week-long visits without “any major issue with [C.M.’s] behavior.” By the time of the permanency planning hearing, the potential adoptive parents had enrolled C.M. in preschool.
The assessment report referred to the couple as “potential, ” rather than “prospective” adoptive parents, the more common term. The report was written before C.M. had any home visits with the family, and it concluded, “Before this family can be named as perspective [sic: prospective] adoptive parents more visits need to occur and their developing relationships further assessed.” By the time of the permanency planning hearing, the couple, after spending additional time with C.M., was characterized as having a “very strong commitment” to his adoption, and there was no indication of a legal impediment. We use the report’s terminology, while recognizing the couple could as easily have been deemed prospective adoptive parents by the time of the permanency planning hearing.
Brian McGuire, an “adoption specialist” with the agency who had handled “hundreds” of adoptions, testified at the permanency planning hearing. He said he had placed children with “[m]uch worse” behavioral problems than C.M. in adoptive homes and saw nothing in C.M.’s behavior that made him “unadoptable.” As McGuire explained, “[C.M. has] a lot of issues relating to his history of abuse that he’s going to have to overcome. And... with proper care, structure and guidance he will overcome that. He made a lot of progress in the prior foster home where he was placed.... And then [the potential adoptive] home is going to help stabilize him further. [¶]... [¶]... [W]hat really makes kids adoptable is the commitment of the families that take the kids.” C.M.’s foster parents were reluctant to adopt because they were in their 60’s and the boys are young children, but the much younger potential adoptive parents were “excited” and “definitely committed” to the adoption.
On this evidence, the juvenile court found C.M. likely to be adopted and terminated Father’s parental rights.
II. DISCUSSION
Father contends the juvenile court’s finding C.M. is likely to be adopted was not supported by the evidence.
“A child who cannot be returned to his or her parent must be placed for adoption, in legal guardianship, or in long-term foster care. [Citation.] ‘Adoption, where possible, is the permanent plan preferred by the Legislature. [Citation.] “Only if adoption is not possible, or if there are countervailing circumstances, or if it is not in the child’s best interests are other, less permanent plans, such as guardianship or long-term foster care considered.” ’ ” (In re Jose C. (2010) 188 Cal.App.4th 147, 157–158.) To select adoption as the permanent plan, the court must find, by clear and convincing evidence, the minor is likely to be adopted within a reasonable time after parental rights are terminated. (§ 366.26, subd. (c)(1); In re B.D. (2008) 159 Cal.App.4th 1218, 1231.)
“ ‘The issue of 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 Zeth S. (2003) 31 Cal.4th 396, 406.) It is not necessary that the child already be placed in a preadoptive home or that a proposed adoptive parent be waiting. (In re Brian P. (2002) 99 Cal.App.4th 616, 624 (Brian P.).) However, “ ‘ “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.” ’ ” (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1562.)
When a child’s adoption cannot be predicted with confidence as a result of his or her relatively advanced age, poor physical health, physical disability, or emotional instability, the child is said to be not “generally” adoptable. (In re Brandon T. (2008) 164 Cal.App.4th 1400, 1408 (Brandon T.).) In these circumstances, the child may yet be found likely to be adopted under section 366.26 if a person has been identified who is willing to adopt. Such children are deemed “specifically” adoptable. (Brandon T., at p. 1408.) “[W]hen a child is deemed adoptable ‘only because a particular caretaker is willing to adopt, the analysis shifts from evaluating the characteristics of the child to 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 Jose C., supra, 188 Cal.App.4th at p. 158.)
On appeal of a ruling on adoptability, “we look to the entire record to determine whether there is substantial evidence to support the findings of the juvenile court.... When the trial court makes findings by the elevated standard of clear and convincing evidence, the substantial evidence test remains the standard of review on appeal.” (In re Cole C. (2009) 174 Cal.App.4th 900, 915–916.)
Father argues there was insufficient evidence to find C.M. generally adoptable because his challenging conduct makes it unlikely adoptive parents will be located. In addition, he contends the juvenile court could not have found C.M. generally adoptable because “the whole premise of his adoptability was based on being adopted by a recently-identified family.”
Substantial evidence supported the juvenile court’s finding C.M. was likely to be adopted within a reasonable time, notwithstanding his behavioral problems. The agency’s assessment report, “ ‘a cornerstone of the evidentiary structure’ upon which the court, the parents and the child are entitled to rely” in dependency matters (In re Valerie W. (2008) 162 Cal.App.4th 1, 11; § 366.21, subd. (i)(1)), examined C.M.’s circumstances and found him likely to be adopted. Although the report recognized the problems created by C.M.’s behavior, the agency believed he could make a successful transition to a permanent home. The report noted that his behavior had improved in the stability of his final foster home, making the agency “confident” he would be adopted. McGuire, the adoption specialist who testified at the permanency planning hearing, was similarly undeterred by C.M.’s difficult behavior. He explained C.M.’s behavior was an artifact of the abusive environment in which he spent nearly all of the first four years of his life and expressed confidence it could be overcome with patience and commitment by his adoptive parents. McGuire had placed children with “[m]uch worse” behavioral problems than C.M. in adoptive homes. Finally, potential adoptive parents had been located, had been fully informed of C.M.’s history and conduct, and had allowed C.M. into their home for two weeks. Their experience with him—including a first meeting at which C.M. introduced himself by repeatedly charging and body slamming the potential adoptive father—left them unmoved in their determination to make C.M. a part of their family. “From this, a reasonable inference can be drawn that [C.M.’s] age, physical and emotional condition and other personal attributes are not likely to dissuade individuals from adopting him.” (In re R.C. (2008) 169 Cal.App.4th 486, 492.)
In his reply brief, Father argues the conclusion of the assessment report was “not evidence, ” citing Brian P., supra, 99 Cal.App.4th 616, 624. Brian P. actually holds that an agency worker’s factually unsupported conclusion of adoptability, standing alone, is not substantial evidence to support a finding of adoptability. (Ibid.) Because the assessment report’s conclusion was fully explained by reference to facts, it was certainly evidence and likely could have constituted substantial evidence to support the decision. Because, as noted in the text, there was additional evidence to support the finding of adoptability, we need not resolve that issue.
McGuire was also a signatory to the assessment report. We treat his testimony and the assessment report as separate items of evidence because the assessment report represented the official conclusion of the agency, signed as well by the district manager.
The primary evidence before the juvenile court to support Father’s contention that C.M. was unadoptable was the refusal of his first two foster families to retain him. While this certainly illustrates the difficulty of caring for and controlling C.M., it is hardly determinative. Foster parents often have very different motivations from adoptive parents. Foster care, particularly in the case of a young child like C.M., is often a temporary arrangement, without the satisfactions provided by a permanent, parental relationship. Further, C.M.’s final set of foster parents refuted any inference that might be drawn from his initial experiences by sticking by him in spite of his exhausting, exasperating conduct. For these foster parents, the satisfaction of helping a young child work through an undeserved trauma evidently outweighed their own comfort, and only their age prevented them from considering his adoption. While there is no reason to think younger adoptive parents could not be found who shared the commitment of these foster parents, it is unnecessary to speculate on this score. Both the agency and McGuire, familiar with the adoptability of troubled children like C.M., were confident such parents could be found, and, indeed, they appear to have been found. (See, e.g., In re R.C., supra, 169 Cal.App.4th at p. 492 [affirming adoptability of baby with developmental limitations]; In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154 [affirming adoptability when “there is no indication the behavioral problems were so severe as to make the court’s finding of adoptability unsupported”].)
Father contends C.M. had “failed at least two placements.” On the contrary, there is no indication either of these foster families had expressed any interest in adopting C.M., and the “placements” were not made for the purpose of achieving adoption.
Father cites a number of cases in which a finding of likely adoption was found to be unsupported. Each such case turns on its own unique circumstances, and all are distinguishable. In Brian P., the minor was severely developmentally delayed, the agency had done no assessment report, and there were no facts cited by the social worker to support adoptability. (Brian P., supra, 99 Cal.App.4th at pp. 624–625.) In Brandon T., the minor was found not generally adoptable primarily because of complications created by the Indian Child Welfare Act, in addition to his own developmental problems. (Brandon T., supra, 164 Cal.App.4th at p. 1409.) In re Asia L. (2003) 107 Cal.App.4th 498 involved two siblings, both with significant behavioral problems. (Id. at pp. 510–511.) While the agency believed them to be adoptable, it acknowledged they would require “specialized placement.” At the time, no specialized placements were available in the county, and there was no evidence of an approved family willing to adopt. (Id. at pp. 511–512.) None of these cases precludes affirmance of the juvenile court’s finding of adoptability.
Nor do we agree that the finding of adoptability was based entirely on the existence of the potential adoptive parents. Neither the assessment report, McGuire, nor the juvenile court suggested their conclusions of adoptability rested on the existence of the identified adoptive parents. On the contrary, the assessment report referred to the identified couple merely as “potential” adoptive parents, recognizing it was too early to conclude they would successfully adopt C.M. Even if this couple did not adopt, the report concluded, other suitable families were available. While McGuire was less reserved in his evaluation of the couple, having the benefit of their subsequent visits with C.M., he also noted other families would be available if this placement was unsuccessful. As a result, there is no basis in the record for Father’s contention C.M. was found to be adoptable only because potential adoptive parents had been identified.
Because we conclude substantial evidence supports the finding C.M. was generally adoptable, we need not consider Father’s arguments that he was not specifically adoptable. (In re R.C., supra, 169 Cal.App.4th at pp. 493–494.)
III. DISPOSITION
The order of the trial court is affirmed.
We concur: Dondero, J. Banke, J.