Opinion
C084614
01-09-2018
In re S.M. et al., Persons Coming Under the Juvenile Court Law. SHASTA COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. L.M. et al., Defendants and Appellants.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15JVSQ3055401, 15JVSQ3055501)
Father J.M. and mother L.M. (parents) appeal from the juvenile court's orders terminating parental rights and freeing the minors for adoption. (Welf. & Inst. Code, §§ 366.26, 395.) They contend the juvenile court erred in finding the minors adoptable and in failing to consider the wishes of the minors with respect to their permanent plan. We affirm.
Undesignated statutory references are to the Welfare and Institutions Code. --------
FACTUAL AND PROCEDURAL BACKGROUND
On December 28, 2015, the Shasta County Health and Human Services Agency filed a section 300 petition on behalf of minor S.M., then seven years old, and minor A.M., then two years old. The petition alleged the minors had suffered, or there was a substantial risk that they would suffer, serious physical harm or illness as a result of the inability of the parents to provide regular care due to the parents' mental illness or substance abuse. The family home "contained hazardous conditions," including a pipe within the children's reach and floors "covered with choking hazards, clutter, debris, clothing and garbage," mother had mental health and anger control problems, and parents had a history of domestic violence. (§ 300, subd. (b).)
The jurisdiction and disposition hearing took place on April 1, 2016. The juvenile court found the allegations of the petition true, declared the minors dependents of the court, ordered the minors removed from parental custody, and ordered reunification services for parents.
Several relatives expressed interest in placement of the minors. The minors were placed together in a foster placement. They were moved to a different foster placement in February of 2016 because S.M.'s behaviors had become unmanageable in school, on the bus, and in the placement, and he was considered a danger to other children placed in that home. Those behaviors included assaulting school personnel, starting fights with peers without provocation, and engaging in self-injurious behaviors. Although his behavior problems continued in his new placement, they improved after a behavioral intervention plan was initiated and he began seeing the school psychologist. S.M. was also administered medication for attention deficit hyperactivity disorder (ADHD) and oppositional defiant disorder, which greatly improved his behavior. His behavior worsened after visits with parents.
A.M. struggled to adjust to her new placement, with crying during the night and difficulty sleeping. She also had begun to mimic some of S.M.'s negative coping behaviors, including banging her head and biting her foster parents. These behaviors improved over time and she became strongly bonded to her foster parents. She did not have any diagnosed mental health disorders and her behavior was not considered a significant problem in the home. She did, however, display increased acting out after visits with parents.
Visits were initially reviewed as positive but problems developed with the parents' behavior over time and their visitation was inconsistent. Parents failed to reunify with the minors and reunification services were terminated on October 28, 2016.
At the time of the March 24, 2017, section 366.26 hearing, the minors had been in their current placement for over a year. Although the placement had not been intended to be a concurrent prospective adoptive placement, the foster parents were in love with the minors and wanted to adopt them. The minors appeared completely comfortable in their care. The social worker reported that if the current foster parents did not adopt the minors, there were "limited available homes with an approved home study." However, several relatives had expressed an interest in placement and the paternal aunt wanted to adopt them if the current caregivers did not.
S.M. was in second grade and on grade level for reading, math, and writing, had good communication skills and demonstrated appropriate fine and gross motor development. He had an individual education plan related to his ADHD. He demonstrated hyperactivity, impulsivity, and inattention, as well as poor self-direction and poor self-control, but he was able to follow directions while taking his ADHD medication. He had a history of nightmares and continued to receive counseling services. He also demonstrated aggressive behavior when he became angry--with such anger increasing surrounding visits with parents. A.M. was not of school age but was attending a Head Start program. She loved her school and teacher. She had many friends, although she did demonstrate some behavioral issues at school, such as pushing, slapping, hitting, and yelling. Both minors were in good physical condition with no concerning medical conditions.
The juvenile court found the minors adoptable and that no exceptions to adoption applied, and terminated parental rights.
DISCUSSION
I
Adoptability
Parents claim there is insufficient evidence to support the juvenile court's finding that the minors are adoptable. We disagree.
A court must find, by clear and convincing evidence, that a child is likely to be adopted before terminating parental rights and selecting adoption as the permanent plan for the child. (§ 366.26, subd. (c)(1); In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.) We review this finding for substantial evidence. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) "[W]e presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. [Citations.]" (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)
"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. [Citations.]" (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649 (Sarah M.).) It is not necessary that the minor already be in a potential adoptive home, or even that there be a prospective adoptive parent. (Ibid.; see also § 366.26, subd. (c)(1) ["The fact that the child is not yet placed in a preadoptive home . . . shall not constitute a basis for the court to conclude that it is not likely the child will be adopted"].) And the prospect that the minor may have some continuing behavioral problems does not foreclose a finding of adoptability. (See In re Jennilee T. (1992) 3 Cal.App.4th 212, 224-225.) However, "[t]here must be convincing evidence of the likelihood that adoption will take place within a reasonable time. [Citation.]" (In re Brian P. (2002) 99 Cal.App.4th 616, 624.)
While the issue of adoptability usually focuses on the minor, "in some cases a minor who ordinarily might be considered unadoptable due to age, poor physical health, physical disability, or emotional instability is nonetheless likely to be adopted because a prospective adoptive family has been identified as willing to adopt the child." (Sarah M., supra, 22 Cal.App.4th at p. 1650.) "Where the social worker opines that the minor is likely to be adopted based solely on the existence of a prospective adoptive parent who is willing to adopt the minor, an inquiry may be made into whether there is any legal impediment to adoption by that parent [citations]. In such cases, the existence of one of these legal impediments to adoption is relevant because the legal impediment would preclude the very basis upon which the social worker formed the opinion that the minor is likely to be adopted. [Citation.]" (Ibid.)
The term "specifically adoptable," therefore, denotes a child who but for the existence of a prospective adoptive parent would not be adoptable. The suitability of the prospective adoptive parent is not an issue when the child is generally adoptable; it may be placed in issue when the child is specifically adoptable.
The evidence supports the finding that the minors are likely to be adopted. Although their behaviors are challenging, they have improved. The proposed adoptive parents, with whom the minors had been placed for over a year, advised that they fell in love with the minors, were completely committed to raising them, and wished to adopt them.
The fact that a prospective adoptive parent has expressed interest in adopting the minors is evidence that the minors' ages, physical conditions, mental states, and other matters relating to the minors are not likely to dissuade individuals from adopting them. (Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.) "[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 p. 1650.) Thus, the evidence supports the juvenile court's finding that the minors are likely to be adopted within a reasonable time.
Moreover, the evidence supported a finding that the minors were likely to be adopted by their current foster parents. There were no apparent legal impediments to the minors' adoption. The foster parents were advised of and understood the responsibilities of adopting, were committed to adopting the minors, were providing appropriate care, and were found suitable for adoptive placement.
Under these circumstances, there is substantial evidence supporting the juvenile court's decision to find the minors adoptable and terminate parental rights.
II
Consideration of the Minors' Wishes
Parents contend the juvenile court erred by terminating parental rights without any evidence of the minors' wishes. Taking this contention to be a subset of the substantial-evidence attack on the court's finding of adoptability (see In re Joshua G. (2005) 129 Cal.App.4th 189, 200, fn. 12 (Joshua G.)), we reject it.
At all proceedings under section 366.26, "the court shall consider the wishes of the child and shall act in the best interests of the child." (§ 366.26, subd. (h)(1).) However, unless the child is age 12 or over and objects to the termination of parental rights, this does not mean that the court must follow the child's wishes, because what a child wants is not necessarily determinative of his or her best interests. (§ 366.26, subds. (c)(1)(B)(ii), (h); Joshua G., supra, 129 Cal.App.4th at p. 201; In re Michael D. (1996) 51 Cal.App.4th 1074, 1087.)
Moreover, the court must consider the child's wishes only to the extent they are ascertainable, which may be limited when children are too young to understand concepts such as adoption. (Joshua G., supra, 129 Cal.App.4th at p. 201.) Reports prepared for the section 366.26 hearing are an acceptable means of obtaining evidence as to the child's wishes. (Joshua G., at p. 201.) What the court must strive to do is " 'to explore the minor's feelings regarding his/her biological parents, foster parents, and prospective adoptive parents, if any, as well as his/her current living arrangements. . . . [A]n attempt should be made to obtain this information so that the court will have before it some evidence of the minor's feelings from which it can then infer his/her wishes regarding the issue confronting the court.' " (In re Amanda D. (1997) 55 Cal.App.4th 813, 820.)
S.M. was nine years old at the time of the section 366.26 hearing, and A.M. was three. In Joshua G., supra, 129 Cal.App.4th 189, where the minors were seven and five years old, the social worker concluded that the minors were too young to understand the concept of adoption. The appellate court found that the social worker had satisfied her duty to inform the juvenile court by providing the information she had about the minors' wishes. After noting that the court need not follow the minor's wishes unless he or she is over the age of 12, the appellate court affirmed the termination of parental rights even though the minors stated they wanted to live with their mother. (Id. at p. 201.) Here, too, we may infer that if questioned about adoption, the minors probably would not have understood the concept. Moreover, their wishes would not have been binding on the juvenile court because they were too young to have a legal right to reject adoption. (§ 366.26, subd. (c)(1)(B)(ii).) Regardless of the minors' wishes, the juvenile court was required to act in their best interests. (§ 366.26, subd. (h)(1).)
Moreover, the section 366.26 report provided the court with information about the minors' feelings about their parents, their proposed adoptive parents, and their current living arrangements. The minors had been living with the proposed adoptive parents for over a year, had been accepted as members of the family, and "appear completely comfortable in their care." The minors were reported to relate to their caregivers as their parents, seek them out for comfort and affection, and present as secure in their care. Both minors' negative behaviors increased surrounding visits with parents. The section 366.26 report did not contain any evidence that the minors wished to be in a different placement, and minors' counsel did not object to termination of parental rights. Given the minors' young ages, there was sufficient information to permit the juvenile court to carry out its obligation to consider the minors' wishes. And even if they had expressed a desire not to be adopted, the court likely would have concluded adoption was in their best interests anyway. We find no reversible error.
DISPOSITION
The orders terminating parental rights and ordering a permanent plan of adoption for the minors are affirmed.
/s/_________
Blease, Acting P. J. We concur: /s/_________
Butz, J. /s/_________
Murray, J.