Opinion
E080967
10-17-2023
In re D.M. et al., Persons Coming Under the Juvenile Court Law. v. J.M. et al., Defendants and Appellants. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Appellant, J.M. Pamela Rae Tripp, under appointment by the Court of Appeal, for Defendant and Appellant, D.M.-S., Sr. Tom Bunton, County Counsel, and Jessica L. Morgan, County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Nos. J280204, J282898, J287092. Cara D. Hutson, Judge. Affirmed.
Suzanne Davidson, under appointment by the Court of Appeal, for Defendant and Appellant, J.M.
Pamela Rae Tripp, under appointment by the Court of Appeal, for Defendant and Appellant, D.M.-S., Sr.
Tom Bunton, County Counsel, and Jessica L. Morgan, County Counsel, for Plaintiff and Respondent.
OPINION
CODRINGTON J.
I.
INTRODUCTION
Defendants and Appellants J.M. (Mother) and D.M.-S., Sr. (Father) appeal the juvenile court's order terminating their parental rights to their child, D., and freeing him for adoption. They argue the juvenile court erroneously found that he was generally adoptable and thus erroneously freed him for adoption. We affirm.
This appeal concerns only D'Juan M. (D.). The appeals as to Dolly M. and Della M. are Dismissed.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff and respondent, San Bernardino County Child and Family Services (CFS) filed a petition on D.'s behalf under Welfare and Institutions Code section 300, subdivisions (b) (general neglect) and (j) (abuse of a sibling). In June 2019, the juvenile court sustained the allegations, removed D. from parents' care, placed him in foster care, and ordered family reunification services.
All further statutory references are to the Welfare and Institutions Code.
In May 2021, four-year-old D. was placed in Mr. C.'s home along with his sibling, K. Mr. C. was excited about the prospect of adopting D. and K. together. K. had come to Mr. C.'s home with serious behavioral issues, but they had significantly improved under Mr. C.'s care. By October 2021, although D. had made progress, he continued to have serious behavioral issues as well, including throwing things, breaking toys, and having temper tantrums.
By the end of 2021, parents' efforts at reunification failed, so the juvenile court terminated their services and set the matter for a section 366.26 hearing to determine a permanent plan for D. In its February 2022 report for the hearing, CFS recommended permanent planning services with a goal of adoption for D. CFS described D. as a happy, healthy, active, inquisitive, talkative four-year-old, who loves and excels in school. He had no medical problems and was fully up-to-date on all medical and dental visits. He was developmentally on target, except for his speech, which was sometimes hard to understand, but he was attending speech therapy once per week. Mr. C. was not willing to move forward with the adoption of D. and K. due to their behaviors and the decrease in funding that would occur after adoption, although D. was making steady progress with his behavioral issues.
After several continuances, the contested section 366.26 hearing took place over a year later, in March 2023. In the interim, CFS submitted further reports, all of which pertained to the Indian Child Welfare Act (which is not relevant here), except for one report detailing the problems with parents' visits.
At the hearing, D.'s counsel explained that Mr. C. "is committed to permanency for both K[.] and D[.]," but he "wants to make sure that they have all of his services in place that are needed to stabilize both of their behaviors before he is able to finalize the adoption but he is actually a concurrent planning home," so he was "not quite ready yet to finalize the adoption."
Minor's counsel acknowledged the situation was unusual because parental rights would be terminated before Mr. C. was ready to proceed with an adoption. CFS agreed but argued that the juvenile court had to terminate parental rights if CFS proved by clear and convincing evidence that D. was adoptable. CFS further explained that section 366.26, subdivision (i)(3) provided that parents could move to reinstate their parental rights if D. was not adopted within three years.
The juvenile court initially stated that it would "structure [the orders] in such a way that parental rights are not terminated outright to leave this child without a parent." After CFS argued that the court must follow the specific orders as outlined on the JV320 form in order to terminate parental rights, the court found it was in D.'s best interest to be adopted and found by clear and convincing evidence that he was generally adoptable. The court, therefore, terminated the parent's parental rights to D. and freed him for adoption while keeping the dependency proceedings ongoing with permanency hearings and reports every six months. The parents timely appealed.
III.
DISCUSSION
Both parents argue the juvenile court incorrectly found that D. was generally adoptable and thus the court erred in freeing him for adoption. They also argue that the court erroneously did so without an adoption assessment while Father also argues adoption was not mandatory, as CFS argued and the juvenile court found. We reject the parents' arguments.
We first address the parents' argument that the juvenile court erred because it terminated parental rights without requiring an adoption assessment as required by section 366.21, subdivision (i) or section 366.22, subdivision (b). The parents forfeited the argument by failing to object in the juvenile court. (See In re Urayna L. (1999) 75 Cal.App.4th 883, 886; In re Aaron B. (1996) 46 Cal.App.4th 843, 846.) The parents never suggested that CFS's section 366.22 report outlining D.'s adoptability and recommending that he be freed for adoption failed to comply with the statutory requirements or was otherwise inadequate. The parents cannot raise the issue for the first time on appeal. (See In re Brian P. (2002) 99 Cal.App.4th 616, 623.)
"[I]f the trial court finds that the child is adoptable, it must terminate parental rights unless a statutory exception applies. (§ 366.26, subds. (b)(1) &(c)(1).)" (In re Katherine J. (2022) 75 Cal.App.5th 303, 316, italics added.) "[A]bsent an enumerated exception, the juvenile court is required to select adoption as the permanent plan." (In re Fernando M. (2006) 138 Cal.App.4th 529, 534, italics added; accord, In re Caden C. (2021) 11 Cal.5th 614, 630.) The exceptions allow the court "'to choose an option other than the norm, which remains adoption.'" (Caden C., supra, at p. 631, quoting In re Celine R. (2003) 31 Cal.4th 45, 53.) "[I]t is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350, disapproved on another ground by Caden C., supra, at p. 636, fn. 5.)
"Although a finding of adoptability must be supported by clear and convincing evidence, it [i.e., the determination that it is likely the child will be adopted within a reasonable time] is nevertheless a low threshold." (In re K.B. (2009) 173 Cal.App.4th 1275, 1292.) On appeal, "'"we determine whether the record contains substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that [the child] was likely to be adopted within a reasonable time. [Citations.]" [Citations.] We give the [juvenile] court's finding of adoptability the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of affirming. [Citation.]'" (In re J.W. (2018) 26 Cal.App.5th 263, 267.)
"When reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true. In conducting its review, the court must view the record in the light most favorable to the prevailing party below and give appropriate deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence." (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011-1012.)
The question of adoptability posed at a section 366.26 hearing usually focuses on whether the child's age, physical condition, and emotional state make it difficult to find a person willing to adopt that child. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) If the child is considered generally adoptable, we do not examine the suitability of the prospective adoptive home. (In re Scott M. (1993) 13 Cal.App.4th 839, 844; In re Carl R. (2005) 128 Cal.App.4th 1051, 1062 ["[T]he availability of prospective adoptive parents" is "irrelevant" if a child is generally adoptable].) The court may find a child generally adoptable and terminate parental rights even if the child is not in a prospective pre-adoptive home, although there must be convincing evidence that it is likely the child will be adopted in a reasonable time. (§ 366.22, subd. (a)(3); In re Brian P., supra, 99 Cal.App.4th at p. 624.) But if the child is deemed adoptable based solely on the fact that "a particular family is willing to adopt him or her, the trial court must determine whether there is a legal impediment to adoption." (In re Carl R., supra, 128 Cal.App.4th at p. 1061.)
In other words, the suitability of the prospective adoptive parent is not an issue when the child is generally adoptable, but it may be an issue when the child is specifically adoptable. Because the juvenile court here found only that D. was generally adoptable, we need not consider the suitability of Mr. C. as a prospective adoptive parent.
Substantial evidence supports the juvenile court's finding, by clear and convincing evidence, that D. is generally adoptable. D.'s age, four years old, supports the juvenile court's finding that he was generally adoptable. (See In re Elise K. (1982) 33 Cal.3d 138 [observing that 10 years old is the "turning point" of adoptability].) At the time of the section 366.26 hearing, D. was comfortable and bonded with Mr. C. (See In re Sarah M., supra, 22 Cal.App.4th at p. 1651 [attributes indicating adoptability include the child's "ability to develop interpersonal relationships"].) CFS described D. as an active and inquisitive four-year-old, and reported that he was excelling in school. (See ibid. [attributes indicating adoptability include the child's "intellectual and academic growth"].) Aside from his speech issues, which were steadily improving, D. has no other medical issues, which weighs in favor of adoptability. (See In re Asia L. (2003) 107 Cal.App.4th 498, 512; In re A.A. (2008) 167 Cal.App.4th 1292 [four-year-old's delayed speech did not weigh against adoptability, particularly given that child "was making progress"].)
Although D. has some remaining behavioral issues, that does not foreclose a finding of adoptability. (See In re Jennilee T. (1992) 3 Cal.App.4th 212, 224-225.) Mr. C. was hesitant to adopt D. in part because of his behavioral issues, but also because he wanted to adopt D. along with K., who had serious behavioral issues, and because Mr. C. was concerned he would not be able to financially support them with the decreased funding he would receive if he adopted the boys. Mr. C., however, remained interested in caring for the boys and remained open to potentially adopting them. Even though D. had behavioral problems, there is substantial evidence supporting the juvenile court's finding of adoptability, based on clear and convincing evidence that his emotional health and needs do not rise to the level that would undermine his general adoptability.
In sum, the juvenile court properly found that D. was generally adoptable and the court was mandated to terminate the parents' parental rights and free D. for adoption unless a statutory exception applied. Although the parents suggested that the parental-benefit exception applied, they have abandoned that argument on appeal. As a result, we conclude the juvenile court properly terminated the parents' parental rights to D. and freed him for adoption.
IV.
DISPOSITION
The juvenile court's orders terminating the parents' parental rights to D. and freeing him for adoption are affirmed.
We concur: McKINSTER Acting P. J., MILLER J.