Opinion
NOT TO BE PUBLISHED
Napa County Super. Ct. No. JV-13882
Retired judge of the Superior Court of Marin County assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
R. S. (Mother) and G. S. (Father) appeal an order filed by the Napa County Superior Court, Juvenile Division, on August 25, 2008, in which that court terminated their parental rights to the minor R. S. (born Apr. 2004), after finding the minor to be adoptable pursuant to Welfare and Institutions Code section 366.26, subdivision (c)(1). Mother and Father challenge the finding of adoptability. As discussed below, we conclude the finding is supported by substantial evidence and affirm the order.
Further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Background
The minor was born prematurely in April 2004, with multiple congenital anomalies that included Tetralogy of Fallot, a condition with four characteristic heart defects, and severe brain abnormalities. Hospital staff who delivered the minor and made these initial diagnoses contacted the county’s Department of Health and Human Services Agency (Department), and expressed concern that Mother and Father would not be able to provide adequate care due to their homelessness, cognitive delays, and history of drug abuse and volatility. Mother additionally suffered frequent seizures that required medication. Upon the minor’s release from the hospital some six weeks after his birth, the Department took him into emergency protective custody and placed him with a foster care family licensed to care for “medically fragile and severely disabled” children.
Two days later, on May 27, 2004, the Department initiated this proceeding, seeking to establish dependency jurisdiction over the minor as a person described under section 300, subdivisions (b) and (g). The juvenile court entered its detention order the following day. On June 28, 2004, the court sustained the jurisdictional allegations.
The Department recommended that the juvenile court deny reunification services to Mother pursuant to section 361.5, subdivisions (b)(10) and (b)(11), that it deny such services to Father pursuant to section 361.5, subdivision (b)(2), and that it proceed immediately to set a hearing to select a permanent plan for the minor pursuant to section 366.26. On November 8, 2004, the court issued its dispositional order adopting these recommendations.
In January 2005, the minor underwent open heart surgery to correct the Tetralogy of Fallot. The Department’s initial report prepared for the section 366.26 hearing, completed in February 2005, identified more precisely the minor’s brain anomalies: an abnormally small brain stem and agenesis of the corpus collosum—the latter condition involving a lack of corpus collosum, which would “prevent the right and left hemispheres of the brain from working together in any coordinated manner.” The report further stated that the minor suffered moderate hearing impairment and blood platelet anomalies. He remained in the care of the foster family with whom he had initially been placed, and appeared to be particularly bonded with his foster mother. The foster mother had expressed interest in exploring the possibility of providing a permanent home for the minor. The Department recommended that the juvenile court find that the minor had a probability for adoption but was difficult to place and presently had no identified prospective adoptive parent, that it should select adoption as the permanent goal and find that termination of parental rights would not be detrimental, but that it should defer termination of parental rights for 180 days pending efforts to identify an adoptive family. (See § 366.26, subd. (b)(3).) At the section 366.26 hearing, on May 5, 2005, the court adopted the recommended findings and orders and continued the hearing for 180 days.
In the Department’s report prepared for the continued section 366.26 hearing, completed in October 2005, the assigned case worker noted the minor was participating in a research program for infants born with agenesis of the corpus collosum. The foster family remained “very committed” to the minor and desired to continue providing a foster home for him, but, because there was “still a great deal that [was] unknown about his treatment and prognosis,” the family was “unable to commit to a more permanent arrangement.” In particular, the foster family did not want to limit the minor’s access to medical services he might need, which were “more readily available under his court dependency status.” On the other hand, because the minor had become so closely attached to the foster family, and had made progress in his growth and development in part due to their attentive care, the worker concluded it would not be in his best interest to disrupt that relationship. Accordingly the Department recommended that the juvenile court find the minor to be not adoptable, that there was no one willing to accept legal guardianship, and that it adopt long-term foster care as the appropriate permanent plan. On November 10, 2005, the court adopted these recommendations.
In the following year, 2006, the minor received two eye surgeries, a procedure to implant tubes in his ears, and auditory brainstem response testing conducted under general anesthesia. He also continued to be monitored or treated by a cardiologist and a neurologist as well as his pediatrician, and received physical therapy, occupational therapy, and speech therapy through the North Bay Regional Center, a nonprofit organization dedicated to individuals with developmental disabilities.
The juvenile court held postpermanency planning status review hearings (postpermanency hearing) on May 11, 2006, and again on November 9, 2006, and on those dates entered orders continuing the minor in his placement with the foster family. At the conclusion of the third postpermanency hearing, on May 1, 2007, the juvenile court continued its existing findings and orders, but also adopted a specific goal of legal guardianship. On that date the court also granted the foster parents’ request for de facto parent status.
In August 2007, the foster parents traveled with the minor to Maryland in order to attend a conference—an International Noonan Support Group meeting—in order to have the minor assessed by a team of specialists for a possible diagnosis of Noonan’s syndrome. The team’s findings indicated the minor presented “a complex diagnostic case.” While he had some features of the syndrome, the team was unable to make a “secure” diagnosis. The following month a urologist examined the minor and diagnosed him as having bilateral retractile testes. On October 25, 2007, the juvenile court continued its earlier orders at the conclusion of its fourth postpermanency hearing.
It appears that, to secure a diagnosis of Noonan’s syndrome, it was necessary to examine Mother’s features, but photographs of her had been difficult to obtain.
In a report prepared for the fifth postpermanency hearing, completed in March 2008, the assigned case worker stated that the foster parents regarded the minor as an “important part” of their family, that they remained committed to his care and were encouraged by his continuing growth and progress, and that they had now “made the commitment to adopt [the minor] and ha[d] completed the necessary steps for California State Adoptions.” She recommended that the juvenile court find that the prior permanent plan “may no longer be appropriate,” and set a new hearing under section 366.26 to reconsider permanent plan options. On April 10, 2008, the juvenile court filed an order adopting the recommended findings and orders.
The assigned case worker completed her report for the new section 366.26 hearing in July 2008. She recommended that the juvenile court find that the minor was likely to be adopted, that it implement a permanent plan of adoption, and that it terminate Father’s and Mother’s parental rights. In support of these recommendations, she reported that the foster parents had been the minor’s one and only placement, and were “the only family that he knows.” They had been “diligent in accessing and utilizing specialized services” for the minor, and that as a result of their attentive care and acceptance of his special needs, the minor had experienced “astonishing growth and development” beyond all earlier expectations. The minor, then four years of age, continued to show a strong attachment to the foster parents, particularly the foster mother. He had become “a true member of the family,” and had been included in their outings and activities. The foster family included three biological children and one child they had previously adopted, all now adults, and several minor foster children including the minor. The foster parents’ criminal histories had “been cleared via foster care licensing” and the Department had also cleared them with respect to any history of child abuse or neglect. The worker stated that, while the foster parents had initially committed to provide the minor with foster care, “they came to love him as their own child and expressed a desire to adopt him and provide him with a permanent and loving home.” The foster parents had provided the minor with special care for over four years, and appeared to have a good understanding of his special needs and their legal and financial rights and responsibilities as adoptive parents. The worker had re-referred the minor to the state Adoption Services Bureau, which, in an assessment dated June 2008, had indicated the minor was likely to be adopted and had recommended termination of parental rights and a permanent plan of adoption.
At the contested section 366.26 hearing, held August 25, 2008, Mother was not present and Father submitted the matter upon the foregoing report. The juvenile court adopted the report’s recommended findings and orders. Father’s and Mother’s appeal followed. (§ 395.)
Discussion
A. Introduction
“If the court determines... by a clear and convincing standard, that it is likely the child will be adopted, [it] shall terminate parental rights and order the child placed for adoption.” (§ 366.26, subd. (c)(1).) Accordingly, as part of its order of August 25, 2008, the juvenile court found by clear and convincing evidence that the minor was likely to be adopted.
Father claims there was no substantial evidence to support this finding. In reviewing the finding of adoptability, we examine the record to determine whether there is substantial evidence to permit a reasonable judge to make that finding under the clear and convincing evidence standard. (In re Brian P. (2002) 99 Cal.App.4th 616, 623–624; see also In re Isayah C. (2004) 118 Cal.App.4th 684, 694–695; In re Andrea G. (1990) 221 Cal.App.3d 547, 552.) In doing so, we view the evidence in the light most favorable to the finding, resolving all conflicts and indulging all reasonable inferences in its favor. (See In re Jasmine C. (1999)70 Cal.App.4th 71, 75; In re Misako R. (1991) 2 Cal.App.4th 538, 545.)
Mother, in a reply brief, essentially joins this claim and adopts Father’s more specific arguments, which we address below.
B. The Home Study of the Identified Prospective Adoptive Parents
Father points out the minor is not generally adoptable because he is a medically fragile child with developmental delays and other special needs. Thus, the Department did not attempt to show general adoptability, but focused on the foster parents’ specific commitment to adopt. In such a case, the juvenile court is required to determine whether there was any legal impediment to the successful completion of the adoption process by the identified prospective adoptive parents. (See In re Carl R. (2005) 128 Cal.App.4th 1051, 1061.) Father first contends that, because the home study of the foster parents was not completed at the time of the section 366.26 hearing, and because approval of that home study is a prerequisite to their successful completion of the minor’s adoption, the juvenile court was unable to make a proper determination that there was no legal impediment to the foster parents’ adoption of the minor. He urges that the court consequently erred in making its finding that the minor was specifically adoptable.
The requirements of a home study of foster parents who have had the minor in their care for at least six months are set out in Family Code section 8730. If the social services agency or adoption agency conducting the study finds that the home is not suitable, the court, upon receipt of the agency’s report, is required to hold a noticed hearing on the petition for adoption. (See Fam. Code, § 8720.)
The question whether an identified prospective adoptive parent is suitable to adopt the minor is generally not relevant to the issue of the minor’s adoptability. (In re Scott M. (1993) 13 Cal.App.4th 839, 844.) If a general inquiry into a prospective adoptive parent’s suitability were permitted, many section 366.26 hearings “would degenerate into subjective attacks on all prospective adoptive families in efforts to avoid termination of parental rights[,]... a result... not envisioned by the statutory scheme.” (Ibid.) The suitability of a prospective adoptive parent to adopt becomes relevant to a minor’s adoptability only when, as here, the minor is one who “ordinarily might be considered unadoptable due to age, poor physical health, physical disability, or emotional instability” and the social worker has nevertheless recommended a plan of adoption “based solely on the existence of a prospective adoptive parent who is willing to adopt....” (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1650.)
There is no statutory requirement that a completed home study of an identified prospective adoptive parent be submitted at a section 366.26 hearing. Rather, the social services agency is required to submit a report that includes “A preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent..., particularly the caretaker, to include a social history including screening for criminal records and prior referrals for child abuse or neglect, the capability to meet the child’s needs, and the understanding of the legal and financial rights and responsibilities of adoption....” (§ 366.21, subd. (i)(1)(D) (italics added); and see § 366.22, subd. (c)(1)(D).) The report submitted at the section 366.26 hearing, summarized above, included this required preliminary assessment of the foster parents. Father nevertheless argues that “relevant case law” requires a completed home study when a minor is not generally adoptable and the only basis for an adoptability finding is the commitment of identified prospective adoptive parents.
Father’s “relevant case law” consists chiefly of three decisions. In our view none of the cases Father has cited stand as authority for the proposition that a completed home study is required before a juvenile court may make a finding of adoptability based on the specific commitment of an identified prospective adoptive family. The Court of Appeal in In re Jerome D. (2000) 84 Cal.App.4th 1200, reversed a finding of adoptability in part because the agency had relied on the willingness of a caretaker stepparent to adopt the minor, yet its report did not include a screening for criminal records or referrals for child abuse or neglect. It is clear that the language the court used, regarding “approved families” willing to adopt, referred simply to identified families the social services agency had approved after conducting the preliminary assessment required under section 366.22, former subdivision (b)(4) (now § 366.22, subd. (c)(1)(D)). (See Jerome D., supra, at p. 1205.)
In In re Ramone R. (2005) 132 Cal.App.4th 1339, the reviewing court also reversed an adoptability finding for a minor whose “behavioral difficulties were well-documented.” (Id. at p. 1352.) That court noted, among other things, that the assessment was incomplete as to the only identified prospective adoptive parent—a relative who had never before cared for the minor and whose commitment consisted of a statement that she was “open to adoption ‘if the father was okay with it.’ ” (Id. at pp. 1346, 1351–1352.) Clearly the “assessment” to which that court referred was similarly nothing more than the preliminary assessment required under section 366.22, subdivision (c)(1)(D).
Finally, the decision in In re Salvador M. (2005) 133 Cal.App.4th 1415, involved an unusual situation in which the evidence before the juvenile court indicated that the minor was generally adoptable but for the applicability of the sibling relationship exception. (See § 366.26, subd. (c)(1)(B)(v).) The minor was additionally specifically adoptable because of the commitment of the minor’s grandmother, an identified prospective adoptive parent to whom the sibling relationship exception did not apply because she was caretaker to both the minor and his sibling. The Court of Appeal granted a request for augmentation of the record to include a home study of the grandmother that had been completed and approved after the juvenile court made its adoptability finding. The court noted, however, that such augmentation was exceptional, and the “better procedure for the juvenile court to have followed where it concluded the sibling relationship exception to adoption would not apply if the grandmother adopted [the minor] but would apply if someone else adopted the child would have been to continue the hearing until the grandmother’s home study had been completed.” (Salvador M., supra, at p. 1422 (italics added).) We note that the quoted language is dictum. More importantly, the language is expressly confined to a peculiar fact situation—in effect the juvenile court needed to find that it was not merely “likely” but virtually certain that the grandmother would adopt the minor, because otherwise the sibling relationship exception would apply to preclude termination of parental rights. The situation in this case does not present similar facts.
This case is factually more analogous to the situation in In re Brandon T. (2008) 164 Cal.App.4th 1400 (Brandon T.). In Brandon T., the subject minor was not generally adoptable and the juvenile court had denied reunification services to the appellant mother. (Id. at pp. 1405–1407.) At the conclusion of the initial section 366.26 hearing, the court placed the minor with a caretaker who had successfully raised two previously adopted children. (Brandon T., supra, at pp. 1406–1407.) Approximately one year after that placement, the court held a second section 366.26 hearing, found the minor to be adoptable, and terminated the mother’s parental rights. (Brandon T, supra, at p. 1408.) The Court of Appeal affirmed the adoptability finding, finding there was sufficient evidence to find that the minor was specifically adoptable by his caretakers. The reviewing court rejected mother’s argument that a completed home study of the caretakers was necessary to make the finding of specific adoptability, at least in a situation in which the minor had been placed with the identified prospective adoptive parents for a considerable period of time, the agency had approved those parents through the preliminary assessment required by section 366.22, former subdivision (b)(1)(D) (now § 366.22, subd. (c)(1)(D)), and there was no evidence of any specific legal impediment to those parents’ successful completion of the proposed adoption. (Brandon T, supra, at p. 1410.)
We agree with the decision in Brandon T., supra, and conclude that a completed home study was not necessary to support the finding of specific adoptability made in this case, because there was no evidence of any specific legal impediment to successful adoption by the foster parents, and the evidence otherwise showed that those parents had successfully completed the adoption process with another child whom they had successfully raised to adulthood, that they had successfully cared for the minor and his special needs for over four years, and that the Department had approved them as identified prospective adoptive parents through a preliminary assessment that satisfied the requirements of section 366.22, subdivision (c)(1)(D).
C. The Evaluation of the Minor’s Medical, Developmental, Mental and Emotional Status
Father’s alternate contention is that there was insufficient evidence to support the finding of specific adoptability by the foster parents, because “critical information” concerning the minor’s medical status was “incomplete and still being gathered” at the time the juvenile court made the finding. It is Father’s position that the court could not properly assess whether the foster parents had the capacity to meet the minor’s special needs, when “the nature and extent of those needs [were] still unknown.”
Father cites In re Valerie W. (2008) 162 Cal.App.4th 1 (Valerie W.), in support of this position. In that case, the agency’s preliminary assessment indicated that, due to symptoms displayed by one of the two minors, medical personnel had recommended that he receive a neurological evaluation, genetic testing, and testing to determine the cause of his anemia. While the minor had undergone an electroencephalogram and was scheduled for genetic testing, the assessment included no test results. (Id. at p. 6.) The reviewing court reversed the adoptability finding, in part, because it concluded the assessment had not adequately provided an evaluation of the minor’s medical status as required by section 366.21, former subdivision (i)(3) (now § 366.21, subd. (i)(1)(C)). (Valerie W., supra, at pp. 4, 7–8, 11, 13–15.)
The July 2008 assessment prepared by the assigned case worker in this case, admitted at the section 366.26 hearing, included the following information in compliance with the statutory requirement of an “evaluation of the [minor’s] medical, developmental,..., mental, and emotional status.” (§ 366.22, subd. (c)(1)(C); see also § 366.21, subd. (i)(1)(C).) As of July 2008, the minor’s “general health [was] good.” He had received an annual urology examination in September 2007, a dental examination in February 2008, an annual ophthalmology examination that same month, a semi-annual neurologist’s examination in March, an annual pediatric examination in April, a cardiologist’s examination in May, and an audiology examination also in May. These examinations generally disclosed no new problems. The pediatrician, cardiologist, and neurologist continued to monitor the minor’s diagnosed conditions, which included Tetralogy of Fallot, mild pulmonary insufficiency, agenesis of the corpus collosum, a risk for seizure activity, and developmental delays. The urology examination resulted in a diagnosis of bilateral retractile testes and was otherwise classified as “normal.” The dental examination revealed no cavities. The results of the audiology examination noted the minor had a normal response to speech and music in at least one ear, but could not rule out mild hearing loss and recommended a reevaluation in six months. Pursuant to court consent granted on July 9, 2008—the date the worker completed and signed the assessment—the minor was scheduled to have hernia repair surgery later in the month.
Noting the examination previously performed in August 2007 by the team of Noonan’s syndrome specialists, which had not resulted in a definitive diagnosis of that syndrome, the report further indicated that the minor was to have additional genetic testing “to further rule out this disease,” and that the minor’s physicians were “still working” with the foster parents to determine “an official diagnosis.”
With regard to the minor’s “global” developmental delays, a medical therapy unit conference held in April 2008 determined that the minor “appeared to be a healthy child who walks with a wide-based gait,” and whose range of movement was “fairly good” in his hips, knees, and ankles. The minor’s physical and occupational therapies were to continue on a weekly basis. Meanwhile he continued to exceed the developmental goals set for him, was making “great progress” with his motor skills, and was now able to walk, negotiate stairs, and ride a tricycle on his own. He also continued to receive speech therapy, could articulate several words and was “signing frequently.”
Concerning the minor’s mental and emotional status, the case worker characterized the minor as an “engaging and endearing toddler,” who was “very social and smile[d] broadly at everyone.” Although he continued to have “screaming tantrum[s]” when frustrated, as well as “difficulty self soothing,” his tantrums were continuing to decrease and his ability to self sooth was increasing as his communication skills improved. She further noted that much of the minor’s comfort and security seemed to be related to his connection with the foster parents.
A deficiency in the assessment required for a section 366.26 hearing goes to its weight as evidence. The reviewing court evaluates a deficiency in light of the totality of evidence before the juvenile court, including reports submitted at prior dispositional or review hearings, to determine whether it is “sufficiently egregious” so as to impair the basis for the lower court’s decision to select adoption and terminate parental rights. (Valerie W., supra, 162 Cal.App.4th 1, 14.)
The totality of the evidence in this instance shows that the minor received surgery in January 2005 to correct the heart defects characteristic of Tetralogy of Fallot. While a cardiologist continued to monitor the minor, the minor had, by July 2008, survived over three postoperative years without displaying any notable impairment of cardiac function. If the minor still lacked an “official” diagnosis in July 2008—one that either confirmed or ruled out Noonan’s syndrome—his brain anomalies and other congenital defects were nevertheless well documented. There was no indication that such an “official” diagnosis was critical to the minor’s ongoing treatment plan, which by July 2008 appeared to have settled into a fairly predictable schedule of physical, occupational, and speech therapies, together with regular examinations designed primarily to monitor his medical and developmental status. Over a period of four years the minor had consistently shown developmental improvement exceeding the earlier prognoses and expectations of his treating physicians. Thus, by July 2008 the minor’s medical, developmental, mental and emotional status appeared, if anything, to be stabilizing and improving rather than worsening.
This is not a situation, as in Valerie W., supra, 162 Cal.App.4th 1, where the assessment omitted pending test results that, if available, might have resulted in a reassessment, either by the foster parents regarding their own commitment to adoption, or by the Department regarding the foster parents’ ability to care for the minor’s special needs. The foster parents here had been successfully attending to the minor’s special needs for over four years, and indeed the case worker had attributed much of the minor’s remarkable progress to their attentive care. It is evident from the record the foster parents have actively sought to clarify as much as possible the scope and nature of the minor’s special needs, and to meet those needs through both their own special care and an energetic advocacy for professional services. If anyone is capable of providing for the minor’s special needs, it is clearly the foster parents in this case. Any uncertainties as to the minor’s medical condition are attributable to the diagnostic complexity and likely life-long challenges of his case. There is nothing to indicate that these uncertainties are susceptible to swift resolution were we, like the reviewing court in Valerie W., supra, 162 Cal.App.4th 1, to remand the matter for the preparation of another medical evaluation pursuant to section 366.22, subdivision (c)(1)(C). We conclude that the case worker’s assessment of the minor’s medical, developmental, mental and emotional status was in no way so egregiously insufficient as to impair the basis for the juvenile court’s adoptability finding.
The record in this case describes a foster family of such extraordinary kindness, generosity and commitment to this severely challenged child that any just order of things must hold some unique and wonderful reward for them. Perhaps the only reward they seek, although not fully understandable to all of us, is found in occasioning and sharing the child’s huge unpredicted successes and in experiencing his love and joy.
D. Conclusion
We conclude, in sum, that there is substantial evidence in the record that would permit a reasonable judge to make the challenged finding of adoptability under the clear and convincing evidence standard. (See Asia L (2003) 107 Cal.App.4th 498, 509-510.)
Disposition
The order of August 25, 2008, is affirmed.
We concur: Marchiano, P.J., Margulies, J.