Opinion
G045709 Super. Ct. No. DP020267
01-30-2012
In re D.R., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. M.P., Defendant and Appellant.
Marsha F. Levine, under appointment by the Court of Appeal, for Defendant and Appellant. Nicholas S. Chrisos, County Counsel, and Karen L. Christensen, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from an order of the Superior Court of Orange County, Dennis J. Keough, Judge. Affirmed.
Marsha F. Levine, under appointment by the Court of Appeal, for Defendant and Appellant.
Nicholas S. Chrisos, County Counsel, and Karen L. Christensen, Deputy County Counsel, for Plaintiff and Respondent.
M.P. (Mother), appeals from the order terminating her parental rights to her son, D.R. (Welf. & Inst. Code, § 366.26.) She contends there is insufficient evidence to support the juvenile court's adoptability finding. We disagree and affirm the order.
All further statutory references are to the Welfare and Institutions Code.
FACTS & PROCEDURE
Because Mother only challenges the adoptability finding, we only briefly summarize facts pertaining to detention, jurisdiction, and reunification efforts. Little is known about D.R.'s father, other than Mother's representation he was a 70-year-old man who wanted nothing to do with her or the child. D.R. was born three months prematurely in June 2010. He suffered a "grade I and II brain hemorrhage" and had an umbilical hernia, which doctors indicated could self-correct but could require future surgery. D.R. was released from the hospital to Mother on July 31, 2010, with no medical equipment needed. He was later cleared for retinopathy of prematurity.
D.R. was detained on September 8, 2010, due to Mother's hospitalization for mental health issues. She had a diagnoses history that included schizophrenia and anxiety. Mother told social workers she was first diagnosed with mental illness when she was 33 years old, and she quit taking her prescribed medication. Although D.R. was healthy and without injury, Mother could not care for him. At the detention hearing, D.R. was ordered out of parental custody and Mother was given monitored visitation.
D.R. was placed in a foster home. In its report for the jurisdictional and dispositional hearing, the Orange County Social Services Agency (SSA) reported the foster mother described D.R. as a good baby who slept a lot. He had "a little colic and cries a little." D.R. was eligible for Regional Center services due to his low birth weight and premature birth. Mother participated appropriately in visitation, but she missed appointments relating to mental health services.
At the jurisdictional and dispositional hearing, Mother pled no contest to the petition, alleging jurisdiction under section 300, subdivisions (b) [failure to protect] and (g) [no provision for support]. The jurisdictional allegations were sustained, and the court removed custody from the parents. Mother was given reunification services.
In its March 24, 2011, report for the six-month-review hearing, SSA recommended terminating services and setting a permanency planning hearing. Mother's case plan compliance was minimal, although she had been visiting D.R. D.R. was participating in "developmentally appropriate" activities. He was receiving services from the Intervention Center for Early Childhood, where he was described as making good progress. He was eligible for services from the Regional Center of Orange County "under the high-risk condition due to biomedical factors, grade I and II brain hemorrhage, born at 28 weeks gestation," and because of his low birth weight.
Now nine-months old, D.R.'s gross and fine motor skills included the ability to hold and grasp objects, including his bottle while feeding, scoot forward, turn from his stomach to his back, reach for objects and place them in his mouth, sit in a high chair without support, and extend his arms out to the foster mother. D.R. responded well to stimuli; he cooed and smiled when he stared at himself in the mirror, enjoyed playing with toys, and followed an eating and sleeping schedule. D.R. seemed content in his placement. He was described as a happy baby with a good disposition. He responded to his foster parents when they spoke, allowed strangers to carry him if the foster parents were within sight, and only cried when he was hungry, had a dirty diaper, or needed attention. D.R. smiled and made good eye contact, and there were no emotional or behavioral concerns.
In an April 26, 2011, addendum report, SSA noted D.R. had a well child exam on March 14, 2011. He was anemic. His doctor intended to continue to monitor the umbilical hernia and decide when D.R. turned one year old if surgery was required. He was going to be referred to an appropriate ophthalmologist. Developmentally, D.R. was normal except for some delays in receptive and expressive language, but the foster mother believed D.R. was very timid during the assessment. She was given exercises to do with him. Mother indicated she had given up on being able to reunify and did not want further visits with D.R. The court terminated services and scheduled a permanency planning hearing.
In its August 24, 2011, report, for the permanency hearing, SSA recommended parental rights be terminated and adoption selected as D.R.'s permanent plan. On May 25, D.R. was re-evaluated by Regional Center and found to be no longer eligible for services through the program for high risk conditions, but he was eligible for continued services through a United Way scholarship. D.R.'s anemia had cleared up and surgery was now being recommended for the umbilical hernia. D.R.'s motor development was progressing; he could use furniture to pull himself up to a standing position, could stand for a long time, hold an object in each hand, and reach for objects and put them in his mouth.
On June 16, 2011, D.R. was placed with his prospective adoptive family. An early development specialist continued to visit D.R. and work with the prospective adoptive mother to assist D.R. with his development. At a party at the prospective adoptive parents' home, D.R. was around a large number of relatives. He interacted well with them and responded well to love and attention. D.R. was described as a happy baby and he was developing appropriately. No emotional or behavioral concerns were noted.
SSA's adoption assessment concluded D.R. was adoptable. He recognized his name when called, and could recognize others in the home. He did not appear to have any ongoing medical concerns, and any developmental delays were consistent with his premature birth. He was placed in a home that was willing to adopt him and the prospective adoptive parents had an approved adoptive home study. SSA reported the prospective adoptive mother held a bachelor's degree in child development. The prospective adoptive parents both took time off work when D.R. was placed with the family. The family's six-year-old adopted son was on vacation from school for the summer and the two boys got along very well. The prospective adoptive parents were committed to providing D.R. with a loving home and understood they would assume legal and financial responsibility for D.R. Mother had not been visiting D.R.
At the August 24, 2011, permanency hearing the SSA social worker testified consistently with her reports. D.R. was slightly delayed in his gross motor skills, but he was on par with everything else. His umbilical hernia was not uncommon. D.R.'s brain hemorrhage, described as a common condition in premature infants, had been resolved and there were no lasting or lingering effects. As far as the social worker knew, he was fine and healed. D.R. was still receiving some services from the Regional Center but had completed his early intervention services. The prospective adoptive parents were willing to have post-adoption contact via an interchange of pictures and letters and were "willing to entertain the idea of physical, like a visit contact dependent on the mother's mental health." The social worker testified the prospective adoptive parents were aware of D.R.'s birth history and his involvement with the Regional Center and were willing to adopt him. She testified there was no indication D.R.'s birth history would prevent them from adopting him.
Mother testified she would feel very badly if D.R. were adopted. She had suffered mental problems for approximately two or three years. During this time she had taken medication three times but each time discontinued medication. She now planned to stay on her medication.
In closing argument, Mother's counsel argued there was insufficient evidence D.R. was generally or specifically adoptable. Counsel pointed to D.R.'s receptive language delays, his umbilical hernia that might require surgery, and his premature birth and brain hemorrhage as potential impediments to adoption. Mother's counsel also argued the court should consider Mother's schizophrenia diagnosis, which counsel asserted "is a genetic disorder, and we really don't know if [D.R.] is going to suffer from this mental condition or how serious it could be." Counsel also argued the lack of any information on the biological father, other than the fact he was over age 70, left the court with no information on any genetic health issues the father might have.
The juvenile court ruled that based on the totality of the circumstances contained in the SSA reports and testimony heard D.R. was both generally and specifically adoptable. After finding the lack of regular and consistent visitation between Mother and D.R. precluded application of the parental benefit exception to termination of parental rights, the juvenile court terminated parental rights.
DISCUSSION
Mother contends there is insufficient evidence to support the juvenile court's adoptability finding. Mother argues D.R.'s "discernable developmental problems" preclude a finding he is generally adoptable. She further asserts he is not specifically adoptable because the record does not demonstrate the prospective adoptive parents were apprised of D.R.'s "special needs" and were prepared to meet them. We disagree.
At a section 366.26 permanency planning hearing, the juvenile court must select and implement a permanent plan for the dependent child. When there is no probability of reunification with a parent, adoption is the preferred permanent plan. (§ 366.26, subd. (b)(1); In re Marina S. (2005) 132 Cal.App.4th 158, 164 (Marina S.).)
The juvenile court may 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 Amelia S. (1991) 229 Cal.App.3d 1060, 1065.) On appeal, we review the juvenile court's adoptability finding under the substantial evidence rule, "view[ing] the evidence in the light most favorable to the [juvenile] court's order, drawing every reasonable inference and resolving all conflicts in support of the judgment. [Citation.] An appellate court does not reweigh the evidence. [Citation.] Rather, we must determine whether there is substantial evidence from which a reasonable trier of fact could by clear and convincing evidence find a factual basis for the finding as to the child's adoptability. [Citation.]" (Marina S., supra, 132 Cal.App.4th at p. 165.)
Preliminarily, to the extent Mother contends SSA's adoption assessment does not comply with the statutory requirements of section 366.21, subdivision (i), her failure to raise that objection below waives the argument. (See In re Aaron B. (1996) 46 Cal.App.4th 843 [failure to object to adequacy of adoption assessment]; In re Crystal J. (1993) 12 Cal.App.4th 407, 411-412 [by failing to object to the assessment reports at the section 366.26 hearing, appellant waived the issue of inadequacy of the reports on appeal].) She may of course challenge the sufficiency of the evidence to support the adoptability finding. (See In re Brian P. (2002) 99 Cal.App.4th 616, 623 ["[W]hile a parent may waive the objection that an adoption assessment does not comply with the [statutory] requirements . . . a claim that there was insufficient evidence of the child's adoptability at a contested hearing is not waived by failure to argue the issue in the juvenile court"].) Accordingly, the issue on appeal is whether substantial evidence supports the juvenile court's finding, not whether that evidence was presented to the juvenile court in a document entitled "Adoption Assessment" or otherwise. (See § 366.26, subd. (c)(1) [finding may be based on adoption assessment and "any other relevant evidence . . ."].)
Generally, "[i]n making the determination of adoptability, the juvenile court 'must focus on the child, and whether the child's age, physical condition, and emotional state may make it difficult to find an adoptive family.' [Citation.]" (In re I.W. (2009) 180 Cal.App.4th 1517, 1526 (I.W.).) A child will be considered "generally" adoptable when his or her personal characteristics such as "'[a] child's young age, good physical and emotional health, intellectual growth and ability to develop interpersonal relationships'" are sufficiently appealing that an adoptive family likely will be located in a reasonable time, regardless of whether a prospective adoptive family has yet been found. (Ibid.) A child is considered "specifically" adoptable when a specific prospective adoptive family is interested in adopting the child, but it might be difficult to locate other prospective adoptive families because, for example, the child is part of a sibling group, has a physical or mental disability requiring a high level of care, or is relatively old. Such a child is likely to be adopted in a reasonable time only because a specific adoptive family has committed to adoption. (Ibid.; see also In re Carl R. (2005) 128 Cal.App.4th 1051, 1060-1061; In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650 (Sarah M.).) In the latter case (specific adoptability) the juvenile court must determine if there is any legal impediment to adoption by the identified family. (I. W., supra, 180 Cal.App.4th at p. 1526.)
Substantial evidence supports the juvenile court's finding D.R. is generally adoptable. D.R. was 14 months old at the time of the permanency hearing. He was described as a beautiful, happy baby with a good disposition. His premature birth had left him with some issues, but the record demonstrated they were not overly significant. His umbilical hernia was not uncommon and could be corrected by surgery. The brain hemorrhage D.R. experienced at birth was a common condition for premature infants, it had been resolved, and there were no known lasting or lingering effects. There were no ongoing medical, emotional, or behavioral concerns. D.R. was adjusting well to the prospective adoptive home, attaching to and interacting with the prospective adoptive parents and their older child.
Mother claims it is highly possible D.R.'s developmental delays will not improve and will hinder his ability to function without special accommodation, and he will have lingering effects from his premature birth and brain hemorrhage. That is unsupported by the record and pure speculation on Mother's part. The record indicates D.R.'s delays were consistent with his premature birth, he no longer qualified as "high risk" for purposes of receiving Regional Center services, and he had no significant lingering medical issues. The social worker testified D.R. was slightly delayed in his gross motor skills, but he was on par with everything else. And, significantly, the prospective adoptive parents want to adopt D.R. "Usually, 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." (Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.)
Mother's suggestion her history with mental illness, and in particular her schizophrenia diagnosis, casts doubt on D.R.'s adoptability is without merit. The possibility a child may have future problems does not mean the child is not generally adoptable. (In re Jennilee T. (1992) 3 Cal.App.4th 212, 223-225.) Mother asserts schizophrenia is a genetic disorder that might be inherited by D.R.,and thus, the prospective adoptive parents should have been made aware of the child's family history. But D.R.'s family history of mental illness does not preclude a finding of general adoptability, and in any event, the record indicates the prospective adoptive parents are aware Mother suffers from mental illness. (See In re Erik P. (2002) 104 Cal.App.4th 395, 400.)
Mother supports this assertion with a citation to a Wikipedia entry on schizophrenia. We do not consider Wikipedia a sufficiently reliable source to supplant scientific and or medical evidence for such an assertion. (See In re Marriage Lamoure (2011) 198 Cal.App.4th 807, 826.)
Mother's reliance on In re Brian P. (2002) 99 Cal.App.4th 616, is misplaced. In that case, there was no adoption assessment and all that could be gleaned from the record about the four-and-one-half year old boy's physical condition and emotional state was that "he had only recently learned to dress himself. His speech and gait were still in the process of improving. He was unable to make a statement to his child welfare worker, who relied on facial expressions and gestures to infer that he was happy in his foster placement." (Id. at p. 625.) The appellate court found this was simply not enough to support the finding the child was generally adoptable.
By contrast, in I. W., supra, 180 Cal.App.4th 1517, the appellate court upheld the general adoptability of a child facing far greater hurdles than D.R. The 10-year-old child in I. W. was found to be generally adoptable based on the willingness of his foster parent to adopt him, notwithstanding his testing positive for tuberculosis at birth, his throwing tantrums, his poor performance and lack of motivation in school, his threats to commit suicide and his running away from foster care, his diagnoses of ADHD, a learning disorder, and posttraumatic stress disorder, and the lack of a positive relationship with his foster mother. (I.W., supra, 180 Cal.App.4th at p. 1525.)
We conclude substantial evidence supports the juvenile court's finding D.R. is generally adoptable. Accordingly, we need not address its alternative specific adoptability finding. Nor need we consider Mother's reliance on In re Asia L. (2003) 107 Cal.App.4th 498, and In re Valerie W. (2008) 162 Cal.App.4th 1, both cases that reversed adoptability findings based solely on minors' specific adoptability because there was either no identified prospective adoptive family or the adoption assessment did not demonstrate the identified family was capable of meeting minors' special needs.
DISPOSITION
The order is affirmed.
O'LEARY, ACTING P. J.
WE CONCUR:
ARONSON, J.
IKOLA, J.