Opinion
G053638
01-10-2017
In re J.M. et al., Persons Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. J.C. et al., Defendants and Appellants.
William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant J.C. Marsha F. Levine, under appointment by the Court of Appeal, for Defendant and Appellant Mi.M. Leon J. Page, County Counsel, Karen L. Christensen and Joyce Riley, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. DP023761, DP023762) OPINION Appeals from an order of the Superior Court of Orange County, Dennis J. Keough, Judge. Affirmed. William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant J.C. Marsha F. Levine, under appointment by the Court of Appeal, for Defendant and Appellant Mi.M. Leon J. Page, County Counsel, Karen L. Christensen and Joyce Riley, Deputy County Counsel, for Plaintiff and Respondent.
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INTRODUCTION
The juvenile court found that J.M. (now eight years old) and M.M. (now six years old) were adoptable, and terminated the parental rights of J.C. (mother) and Mi.M. (father). Mother and father challenge the court's finding of adoptability; we affirm.
We will sometimes refer to J.M. and M.M. collectively as the children.
Substantial evidence supported the juvenile court's finding that J.M. and M.M. were generally adoptable, based on their young ages, good physical and emotional health, intellectual growth, and ability to develop interpersonal relationships. Because the juvenile court's finding of general adoptability was correct, on appeal, we need not consider any issues of specific adoptability.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Because the only issue before us on appeal is the juvenile court's finding that the children were adoptable, we provide a truncated version of the facts.
In May 2013, J.M. (then four years of age), M.M. (then three years of age), and their half siblings were taken into protective custody. A juvenile dependency petition was filed alleging they came within the juvenile court's jurisdiction pursuant to Welfare and Institutions Code section 300, subdivision (b). (All further statutory references are to the Welfare and Institutions Code.) The juvenile court found the allegations of the petition were true, and the children were within the court's jurisdiction. At a dispositional hearing, the juvenile court declared J.M. and M.M. to be dependent children of the court, but allowed them to remain in mother and father's custody, and approved a family maintenance plan.
Mother and father's parental rights to the half siblings were not terminated in the same order as were their parental rights to J.M. and M.M. The half siblings will be mentioned in this opinion only as necessary to understand the issues vis-à-vis J.M. and M.M.
In November 2014, the children were again taken into protective custody, and later placed in the care of J.D. (the caregiver), the paternal grandmother of their half brother, D.Q. The juvenile court found true the allegations of a supplemental petition (§ 387), removed J.M. and M.M. from mother and father's physical custody, and approved reunification services.
In January 2016, the juvenile court terminated reunification services and set a hearing pursuant to section 366.26. The section 366.26 hearing was held in May 2016. The juvenile court found by clear and convincing evidence it was likely that J.M. and M.M. would be adopted, and that no exceptions to adoption had been established. Therefore, the court terminated mother's and father's parental rights. Both mother and father appealed from the juvenile court's order.
Father did not file a separate appellant's opening brief. Pursuant to California Rules of Court, rule 8.200(a)(5), father joined in mother's brief. References in this opinion to mother's arguments apply equally to father.
DISCUSSION
Mother raises a single issue on appeal: Whether there was substantial evidence supporting the juvenile court's finding that the children were adoptable. "We review the factual basis of an adoptability finding by determining whether the record contains substantial evidence from which a reasonable trier of fact could make the finding made by the trial court by clear and convincing evidence." (In re Christiano S. (1997) 58 Cal.App.4th 1424, 1431.) "We give the court's finding of adoptability the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of affirming. (In re Gregory A., supra, 126 Cal.App.4th at p. 1562.)
Neither mother nor father argued before the juvenile court that the children were not adoptable. The sufficiency of the evidence supporting a juvenile court's finding of adoptability may be challenged for the first time on appeal. (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1557.)
When making a finding regarding the adoptability of a dependent child, the juvenile court 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 Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) A child's young age, good physical and emotional health, intellectual growth, and ability to develop interpersonal relationships are all attributes indicating adoptability. (Id. at p. 1651.) In this case, there was clear and convincing evidence that the children met all of these criteria.
Having reviewed the appellate record, we conclude the Orange County Social Services Agency offered clear and convincing evidence that both J.M. and M.M. are generally adoptable; that is, adoptable whether or not there is a prospective adoptive family already identified. (In re A.A. (2008) 167 Cal.App.4th 1292, 1313.)
"A child's young age, good physical and emotional health, intellectual growth and ability to develop interpersonal relationships are all attributes indicating adoptability." (In re Gregory A., supra, 126 Cal.App.4th at p. 1562.) In the report filed in connection with the section 366.26 hearing, the social worker opined: "It is the undersigned's professional opinion that termination of parental rights would not be detrimental to the children J[.M.] and M[.M.], as evidenced by their ability to thrive in the current placement." The social worker explained that J.M. "presents as a happy child, smiling and interacting with the undersigned. The child's current caregiver states the child has no developmental delay concerns. J[.M.] is observed to be on target with her developmental stages. The child has been observed to interact well with others and is noted to be friendly very quickly. J[.M.] enjoys drawing, painting, and playing outdoors and indoors with her siblings." The social worker also described J.M. as follows: "The child is a generally well-behaved child. She presents as a quiet, but happy and friendly child. Her caregiver describes her as friendly and eager to learn."
As to M.M., the social worker stated: "The child . . . is quiet, but friendly. Since being in this current placement, M[.M.] has become more talkative, per the caregiver. The child attempts to communicate with the undersigned and often competes for attention from the undersigned while the undersigned meets with his sister. The child is able to recite the alphabet in its entirety. No developmental concerns have been noted regarding the child." Additionally, M.M. was described as follows in the section 366.26 report: "The child is a quiet, but friendly five year old boy. His caregiver describes him as generally well behaved. He is a happy child and likes to play with his siblings or on his own. The caregiver denied any concerns and indicated his behavior is typical for his age and had no concerns with regards to his mental and emotional well being."
The children were well behaved, and both responded to the caregiver's redirection. In addition, they were healthy, were enrolled in school, and had improved academically.
"[T]he 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. [Citation.]" (In re A.A., supra, 167 Cal.App.4th at p. 1313.) The section 366.26 report noted that the caregiver had "expressed her commitment to pursue adoption" of J.M. and M.M.
Mother contends that the references to the children's ability to thrive and their positive characteristics or attributes are too vague to support a finding that either J.M. or M.M. is likely to be adopted within a reasonable time, citing In re B.D. (2008) 159 Cal.App.4th 1218. In that case, B.D. was one of a sibling set of five children, whom the social worker "strongly believed" should be placed for adoption together. (Id. at p. 1232.) The social worker, however, testified, "it would not be easy to find a suitable adoptive home for the sibling group." (Id. at p. 1233.) B.D. had been diagnosed with a major depressive disorder, recurrent, and attention deficit hyperactivity disorder. (Id. at p. 1223.) One of B.D.'s siblings was mildly mentally delayed, and had been diagnosed with posttraumatic stress disorder. (Id. at pp. 1223-1224.) Another sibling had been diagnosed with depressive disorder, not otherwise specified, adjustment disorder with anxiety, and impulse-control disorder, not otherwise specified, and exhibited temper tantrums and aggression toward others. (Id. at p. 1224.) Still another sibling had been diagnosed with adjustment disorder with mixed emotions and conduct, and was below average in cognitive and intellectual functioning. (Ibid.) B.D. and his siblings were placed in separate foster homes, and none was placed with prospective adoptive parents. (Id. at pp. 1232-1234.) Under these circumstances, the appellate court concluded that the social worker's generalized statements regarding adoptability were not sufficient because there was "no evidence in the record to support a finding that B.D. [and two of his siblings] were likely to be adopted as a sibling group within a reasonable time." (Id. at p. 1233.)
Unlike the siblings in In re B.D., J.M. and M.M. are not part of a large sibling set, and neither suffers from serious intellectual or emotional delays. They are currently placed with an extended family member who has bonded with the children and expressed interest in adopting them. The social worker's opinions regarding their adoptability were well supported by the evidence.
Because there was sufficient evidence of the children's general adoptability, we need not consider the suitability of the children's prospective adoptive home to determine whether they are specifically adoptable. (In re Carl R. (2005) 128 Cal.App.4th 1051, 1061.)
DISPOSITION
The order is affirmed.
FYBEL, J. WE CONCUR: O'LEARY, P. J. BEDSWORTH, J.