Opinion
F079159 F079306
09-25-2019
In re A.B., a Person Coming Under the Juvenile Court Law. MERCED COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. P.B. et al., Defendants and Appellants.
Carol A. Koenig and Robert McLaughlin, under appointments by the Court of Appeal, for Defendants and Appellants. James N. Fincher, County Counsel, and Jennifer Trimble, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17JP-00087A)
OPINION
THE COURT APPEAL from an order of the Superior Court of Merced County. Donald J. Proietti, Judge. Carol A. Koenig and Robert McLaughlin, under appointments by the Court of Appeal, for Defendants and Appellants. James N. Fincher, County Counsel, and Jennifer Trimble, Deputy County Counsel, for Plaintiff and Respondent.
Before Levy, Acting P.J., Franson, J. and Peña, J.
-ooOoo-
INTRODUCTION
A Welfare and Institutions Code section 300 petition was filed on behalf of the minor, Alyssa B., on August 7, 2017, when the minor was seven years of age. At the section 366.26 hearing on April 9, 2019, the juvenile court terminated parental rights and ordered adoption as the permanent plan. Father appeals, contending the juvenile court's order terminating parental rights must be reversed because the finding the minor is adoptable is not supported by substantial evidence. Mother joins in and adopts father's opening brief.
References to code sections are to the Welfare and Institutions Code.
We conclude substantial evidence supports the finding the minor is adoptable and affirm the order terminating parental rights and setting a permanent plan of adoption.
FACTUAL AND PROCEDURAL SUMMARY
The only issue raised by father in his appeal is a challenge to the juvenile court's finding the minor is adoptable. Mother's appeal joins in this issue and raises no additional issues. Therefore, our recitation of facts will focus on those facts relevant to this issue.
A section 300 petition was filed by the Merced County Human Services Agency (agency) on behalf of the minor in August 2017, when she was seven years old. Mother's parental rights to two other children previously had been terminated. Father was incarcerated as of August 30, 2017. At the jurisdiction and disposition hearing on September 21, 2017, the juvenile court declared the minor a dependent of the court and ordered reunification services for both parents.
In the six-month status review report, the minor was described as "very sociable" and "friendly and talkative." It also was noted, however, that a clinician reported on October 3, 2017, the minor exhibited "symptoms of depression[]." Neither parent had tried to schedule visits with the minor since before the August 4, 2017 detention hearing.
At the May 1, 2018 review hearing, reunification services were terminated for mother and continued for father. In the 12-month status review report, the minor was described as on grade level in school, except for reading, where she performed at a higher level.
Father was not to have visits with the minor until he was engaged in ongoing services. Father remained incarcerated until October 22, 2018. On October 30, 2018, the juvenile court terminated father's reunification services and set the matter for a section 366.26 hearing.
In the section 366.26 report filed on March 6, 2019, it was noted the minor was residing in a confidential relative placement and had been in the home since November 9, 2018. Mother had a Skype visit with the minor on February 21, 2019; she had last visited with the minor in August 2017. There had been no visits between the minor and father.
The section 366.26 report noted the minor had excellent grades and was "well-behaved, happy and fun loving." The minor stated she was happy in the relative placement. The relatives wanted to provide the minor with a stable family environment and wanted to adopt the minor. The minor expressed an interest in being adopted by the current caregivers.
At the April 9, 2019 contested section 366.26 hearing, the juvenile court found by clear and convincing evidence the minor is adoptable. The juvenile court noted the minor wanted to be adopted by her current caregivers, there appeared to be a strong bond between them, and they wanted to adopt the minor. The juvenile court terminated parental rights and ordered a permanent plan of adoption.
Father appealed the order terminating parental rights and finding the minor adoptable, which appeal was assigned case No. F079159. Mother filed a separate appeal from the section 366.26 order, which was assigned case No. F079306. Mother filed a motion to consolidate the two appeals on July 11, 2019, and this court granted the request to consolidate and ordered the cases consolidated under case No. F079159.
DISCUSSION
Father contends the juvenile court's order terminating parental rights must be reversed because the finding the minor is adoptable is not supported by substantial evidence. Mother joins in the contention.
The failure to object in the juvenile court to a finding that the minor is adoptable does not forfeit the issue for purposes of appeal when the challenge is to the sufficiency of the evidence. (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1560 (Gregory A.); In re Erik P. (2002) 104 Cal.App.4th 395, 399.)
Standard of Review
We review the juvenile court's order to determine whether the record contains substantial evidence from which a reasonable trier of fact could find clear and convincing evidence the minor was likely to be adopted. (In re Asia L. (2003) 107 Cal.App.4th 498, 509-510.) If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we must uphold those findings. (In re R.C. (2008) 169 Cal.App.4th 486, 491 (R.C.).) We give the juvenile court's adoptability finding the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of the judgment of the trial court. (In re B.D. (2008) 159 Cal.App.4th 1218, 1232.)
Analysis
The issue of adoptability requires the juvenile court to focus on the child, and whether the child's age, physical condition, and emotional state make it difficult to find a person willing to adopt. (In re Josue G. (2003) 106 Cal.App.4th 725, 733.) To be considered adoptable, a minor need not be in a prospective adoptive home and there need not be a prospective adoptive parent " ' "waiting in the wings." ' " (R.C., supra, 169 Cal.App.4th at p. 491.) Rather, what is required is clear and convincing evidence of the likelihood that adoption will be realized within a reasonable time. (In re Amelia S. (1991) 229 Cal.App.3d 1060, 1065.)
The determination of adoptability is based on the individual child. (In re I.I. (2008) 168 Cal.App.4th 857, 872.) 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. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650.)
A child's relative youth, his or her good physical and emotional health, his or her intellectual capacity, and his or her ability to develop interpersonal relationships all indicate that a child is adoptable. (Gregory A., supra, 126 Cal.App.4th at p. 1562.) Thus, while the finding of adoptability has to be supported by clear and convincing evidence, it is nevertheless a low threshold. The juvenile court "must merely determine that it is 'likely' that the child will be adopted within a reasonable time." (In re K.B. (2009) 173 Cal.App.4th 1275, 1292.)
Here, the minor was seven years old when the petition was filed in August 2017. In the six-month status review report, it was noted the minor was "very sociable" and "friendly and talkative." A clinician had reported in October 2017 that the minor had "symptoms of depression[]." In the 12-month status review report, the social worker noted the minor was on grade level in all subjects except reading, where she was above grade level. The minor was receiving individual counseling to work on healthy coping skills.
In the section 366.26 report filed on March 6, 2019, it was noted the minor had been placed in a confidential relative placement on November 9, 2018. The minor had excellent grades; was receiving an academic award; and the caregivers reported she was "well-behaved, happy, and fun loving." The minor told the social worker she was happy in the relative placement. There were no developmental concerns. The minor no longer needed any intervention services or an Individualized Education Plan (IEP).
The minor underwent a mental health screening on March 1, 2019, which identified some mental health risks and the minor received mental health services to address those risks. The current caregivers reported that mental health concerns were not present, and the minor was not displaying any behaviors that indicated mental or emotional health concerns.
The caregivers had been involved in the minor's life since birth and were interested in providing the minor with a stable family environment where she could continue to thrive. The caregivers, who were considered prospective adoptive parents, wanted to keep the minor connected to her extended family and out of the foster care system and were "committed to her for life." The caregivers desired to adopt the minor and felt there was a strong bond between them and the minor. The minor told the social worker she wanted to be adopted by the caregivers.
The prospective adoptive parents had cleared a criminal history check and a child welfare system check as part of the adoption process. They had consulted with the agency about the adoption process and expressed an understanding of the responsibilities and commitment adoption entailed.
The section 366.26 report noted that most adoptive parents prefer children no older than five years of age and with no developmental, emotional, or mental health concerns and the minor was now nine years old. As of the section 366.26 hearing, however, the minor had no developmental, educational, emotional, or physical concerns. She had excellent grades, did not need an IEP or educational support services, and was happy, well-behaved, and fun-loving. The mental health concerns that had manifested shortly after the minor was placed in foster care in the home of strangers had been addressed with counseling and had dissipated after being placed with relatives.
These factors—good physical and emotional health, her intellectual capacity, and her ability to develop interpersonal relationships—all indicate the minor is adoptable. (Gregory A., supra, 126 Cal.App.4th at p. 1562.) The minor's age, although older than five, was still young and her other personal characteristics are sufficiently appealing to make it likely that an adoptive family will be located in a reasonable time, even if no prospective adoptive family had been found. (In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.)
Here, the minor had been in the prospective adoptive home for four months and the caregivers were " ' "waiting in the wings." ' " (R.C., supra, 169 Cal.App.4th at p. 491.) When, as here, the prospective adoptive parents had commenced the process of adopting the minor, on the hope the juvenile court would terminate parental rights at the section 366.26 hearing, there is clear and convincing evidence of the likelihood that adoption will be realized within a reasonable time. (In re Amelia S., supra, 229 Cal.App.3d at p. 1065.)
The juvenile court's finding that the minor is adoptable is supported by substantial evidence. (R.C., supra, 169 Cal.App.4th at p. 491.)
DISPOSITION
The section 366.26 order terminating parental rights and setting a permanent plan of adoption is affirmed.