Opinion
E068914
02-02-2018
In re C.W. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. E.H. et al., Defendants and Appellants.
Neil R. Trop, under appointment by the Court of Appeal, for Defendant and Appellant E.H. Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant S.W. Jean-Rene Basle, County Counsel, and Kristina M. Robb, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J256726 & J266232) OPINION APPEAL from the Superior Court of San Bernardino County. Annemarie G. Pace, Judge. Affirmed. Neil R. Trop, under appointment by the Court of Appeal, for Defendant and Appellant E.H. Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant S.W. Jean-Rene Basle, County Counsel, and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.
I
INTRODUCTION
E.H. (Mother) and S.W. (Father) have a history of abusing drugs, domestic violence issues, and failing to meet the medical needs of their toddler son C.W. that led to the San Bernardino County Children and Family Services (CFS) removing their children from their home. The parents were afforded approximately 22 months of services, including return of C.W. back in their care on family maintenance. Unfortunately, they regressed to their old practices resulting in the removal of C.W. and his baby sister Ch.W. Parental rights to both children were eventually terminated. This appeal followed.
On appeal, Mother challenges the juvenile court's adoptability findings. Specifically, Mother argues (1) the juvenile court's finding of adoptability was not supported by substantial evidence of C.W.'s developmental status, and (2) the juvenile court erred by finding the children to be generally adoptable. Father joins Mother's arguments. For the reasons explained below, we find there was substantial evidence to support the juvenile court's adoptability findings, and affirm the judgment.
In a separate argument, Mother also contends the children should have been placed together. Although identified as a separate issue, Mother indicates she is not requesting a change in placement of the children, but wanted the "Court of Appeal [to] be aware of the availability of a relative home where the children could live together should their findings of adoptability be reversed." Because we find sufficient evidence to support the juvenile court's finding of adoptability, we need not address Mother's placement argument.
II
FACTUAL AND PROCEDURAL BACKGROUND
The factual and procedural background up until parental rights were terminated is taken from this court's prior opinion (In re C.W. (Dec. 11, 2017, E067974) [nonpub. opn.]), unless otherwise indicated.
The family came to the attention of CFS in April 2014, after a referral was received alleging both Mother and her infant son, C.W., had tested positive for methamphetamine and marijuana at the time of C.W.'s birth. Mother had limited prenatal care and a seizure disorder. Mother indicated she had a prescription for medical marijuana due to being shot on two separate occasions. Father was legally blind, and had a history of abusing drugs. Both parents also had a criminal history involving drugs and theft-related offenses. CFS received a second referral, stating C.W. had surgery to remove congenital cataracts and his parents failed to follow through with after care appointments.
Due to the positive drug test at birth, the parents' substance abuse histories, and the parents' failure to follow through with C.W.'s medical needs, then five-month-old C.W. was placed in protective custody on September 26, 2014. And, on September 30, 2014, a petition was filed on behalf of C.W. pursuant to section 300, subdivision (b) (failure to protect).
CFS recommended the allegations in the petition be found true and the parents be provided with reunification services. C.W. was assessed for glasses and his prescription was being processed. He appeared to be developmentally, mentally, and emotionally on target for his age. C.W. was doing well in his placement.
The jurisdictional/dispositional hearing was held on November 18, 2014. After the parents waived their constitutional rights, the juvenile court found the allegations in the petition true as amended and declared C.W. a dependent of the court. The parents were provided with reunification services and ordered to participate.
In May 2015, CFS recommended that C.W. remain in out-of-home placement with Ms. M. and that services continue for the parents. The parents were compliant with their case plan and had made progress in resolving the problems that led to C.W.'s removal from their home. The parents married on February 20, 2015, and were expecting a baby girl in June or July 2015. The parents believed they had benefited from their services.
C.W. continued to be developmentally on target and did not display any issues with his mental and emotional functioning. The social worker noted C.W.'s medical issues related to his eyes, in which he had cataracts, and that C.W. would continue to receive medical care under an optometrist. The social worker described C.W. as a happy child with his parents and his caregivers.
Ms. M. reported that C.W. appeared to be a little bit behind developmentally due to his eye impairments. Ms. M. had a referral for Inland Regional Center (IRC) to come into the home and provide services for C.W. IRC was already providing services to another child in the home, and C.W. would often interact with the service provider during those visits. Ms. M. was working with C.W. daily to increase his developmental functioning.
By June 30, 2015, the parents continued to make progress in their case plans. As such, CFS agreed to allow the parents a two-week trial visit with C.W. and then return C.W. to their care on family maintenance services. Mother gave birth to a baby girl and there was no referral and no concerns regarding this child.
At the August 25, 2015 hearing, C.W. was returned to the custody of his parents on family maintenance services.
Unfortunately, by July 2016, the parents regressed to their old practices and relapsed. And, on July 6, 2016, a section 387 supplemental petition was filed on behalf of C.W. based on the parents' issues with substance abuse and domestic violence, Mother's arrest and incarceration on charges of child endangerment, and Father leaving C.W. in the custody of Mother who failed to protect him. A section 300 petition was also filed on behalf of Ch.W. pursuant to section 300, subdivisions (b)(1) (failure to protect), (g) (no provision for support), and (j) (abuse of sibling).
The detention hearing was held on July 12, 2016. The court found a prima facie case for detention outside of the home and ordered the children placed in foster care.
CFS recommended the allegations in the petitions be found true, no reunification services be provided to the parents, and a section 366.26 hearing be set. Ch.W. had been placed in the home of Mrs. M., and C.W. had been placed in the home of his former foster parents, Mr. and Mrs. Mc. CFS was making efforts to have the children placed together. The children were adjusting well to their placements.
We note the social worker previously referred to C.W.'s former foster mother as "Ms. M." The section 366.26 report refers to C.W.'s prospective adoptive parents, who were C.W.'s former foster parents, as "Mr. and Mrs. Mc." For the sake of clarity, from hereon we will refer to C.W.'s prospective adoptive parents as "Mr. and Mrs. Mc."
The social worker confirmed with C.W.'s eye doctor that while in parental care, the parents failed to follow up on his visual impairment needs. Due to the parents' lack of follow-up, C.W. was suffering from pressure in his right eye. C.W. would require surgery to relieve the pressure in his eye. C.W. continued to have vision impairment and was under a physician's care. He was issued glasses to help correct the impairment and had no other noted medical or dental issues. C.W. appeared to be meeting his developmental milestones, and a SART and IRC referral was resubmitted for C.W. C.W. had no mental or emotional issues at the time. The Health Education Passport (HEP) attached to the report noted that on June 3, 2015, C.W. was seen by Dr. Matney with the health problem description stating, "Dx: Dev. delay, possible autism, food refusal." The treatment plan was stated as "Referred to OT/PT."
This notation in the HEP is the only suggestion in the record that C.W. had possible autism. Although an HEP is referenced in the status review report for the February 25, 2016 hearing, the first report that was submitted after the June 3, 2015 doctor visit, the HEP is not included in the record and there is no mention of the potential for autism mentioned in the report itself.
Ch.W. had no medical or dental issues. She was meeting her developmental milestones, and a SART referral was submitted for her as well. It was reported that Ch.W. did not like men, and would not interact with her caregiver's husband or other males, except children. Other than this, no other mental or emotional issues for Ch.W. were noted. The social worker noted that it was appropriate to place the siblings together, however at the time there were no available placements to take both children. CFS was working diligently on getting the children placed together.
At the August 25, 2016 hearing, the court found the allegations in the petitions true. The parents were denied reunification services and a section 366.26 hearing was set.
CFS recommended the children be placed in a planned permanent living arrangement due to no prospective adoptive parents being identified. C.W. underwent surgery to correct his vision impairment and had done well. C.W. apparently ate better after his surgery since he could clearly see his food. He was meeting most of his developmental milestones but was behind in a few of his developmental needs and was referred to the IRC. C.W. was described as usually happy, but he had begun to physically act out on other children in the home. If he became angry or frustrated, he would throw toys at the other children. Mrs. Mc. was working with C.W. on helping him to appropriately deal with his anger and frustration. Ch.W. also received treatment for her eye problems, but otherwise was healthy. She appeared to be meeting her developmental milestones and was reported to be a happy child. Ch.W. was doing better with her fear of men and it no longer seemed to be an issue. There were no other mental or emotional concerns noted for Ch.W. The children were appropriate children for adoption once adoptive parents were found.
The December 14, 2016 section 366.26 hearing was continued in the best interest of the children to assess a maternal aunt seeking placement.
C.W. remained in the home of Mr. and Mrs. Mc. and Ch.W. remained with Mrs. M. The maternal aunt's home had been approved, but a social worker had not been able to assess the maternal aunt for placement. The children's caregivers had not committed to adoption at that time.
On January 12, 2017, CFS updated the court regarding the relative assessment. The maternal aunt's home was assessed and after noting some issues to be corrected, it was recommended that the children be placed together with the maternal aunt.
On February 7, 2017, Father filed a section 388 petition seeking return of the children to him under a plan of family maintenance or reinstating reunification services.
The court summarily denied Father's section 388 petition on February 8, 2017. The court indicated that Father's circumstances may be changing but are not changed and that his request was not in the children's best interest.
Father subsequently filed an appeal from the denial of his section 388 petition (In re C.W., supra, E067974). This court affirmed the juvenile court's order summarily denying Father's section 388 petition on December 11, 2017.
On February 22, 2017, CFS notified the court that placement of the children with the maternal aunt could not occur because an undisclosed individual was living at the home that had not been assessed. Father and the maternal aunt claimed the individual was not residing with the maternal aunt. However, the individual listed the maternal aunt's address as her own. Additionally, the social worker was informed by the foster family worker that the maternal aunt was the caretaker for Father, and the social worker was concerned the parents would have unapproved access to the children. When the social worker made an unannounced visit to discuss the issue with the maternal aunt, the home was found to be so crammed full of items that the social worker could not access the garage or either of the closets. The rooms were packed full of various items, leaving very little room for little children to play. Furthermore, it appeared Mother and Father were back together and attempting to have joint visits, which had not been approved by the social worker. Father also continued to call the social worker numerous times a week regarding the placement of the children and returning the children to his care.
C.W. remained placed with Mr. and Mrs. Mc., and they were willing to adopt Ch.W. as well. CFS could not move Ch.W. to the home yet, and were working to get the home cleared for Ch.W.'s placement into Mr. and Mrs. Mc.'s home. Mrs. Mc. had continued to meet C.W.'s ongoing medical, emotional, and developmental needs. Additionally, after further assessment and consideration, CFS determined placement in the maternal aunt's home was not in the best interest of the children.
The further section 366.26 hearing was continued to allow for changes in placement.
On May 10, 2017, the maternal aunt filed a motion for an order for relative assessment and a hearing.
CFS recommended parental rights be terminated and adoption selected as the permanent plan for both children. C.W. remained in the home of Mr. and Mrs. Mc. since July 28, 2016, and Ch.W. remained in the home of Mrs. M. since July 5, 2016.
C.W. was three years old at the time of the June 2017 section 366.26 report. He was initially placed with Mr. and Mrs. Mc. at six months of age, and remained in their care for 12 months until he was reunified with his parents at 18 months of age. He was removed at two years old and returned back to Mr. and Mrs. Mc.'s care with whom he has remained. As a newborn C.W. was diagnosed with glaucoma, which impaired his vision. His caregivers reported that C.W. will never have full vision, and the goal was to prevent further deterioration of his vision. C.W. underwent eye surgery in 2016, and was scheduled to have another eye surgery in 2017. C.W. took four eye drops daily to help relieve the pressure in his eyes, and did not like receiving the eye drops as he struggled when the drops were given. C.W. was described as a picky eater and would only eat if he was fed by his caregiver or another person with whom he was familiar.
C.W.'s caregivers had initially agreed to take placement of Ch.W., but decided to take placement of their grandson instead, preventing them from having another child in the home. This was the second time the caregivers had placement of their grandson. The first time Mrs. Mc. had asked CFS to remove her grandson from her care due to his behaviors, but he had recently completed a group home program and his behaviors were manageable at that time. All the children in Mr. and Mrs. Mc.'s home had special needs. Mr. and Mrs. Mc. had utilized family support and hired help to assist with the children. Mr. and Mrs. Mc. very much wanted to adopt C.W. as they were bonded to him, and felt he was bonded to them. The couple had adopted in the past. They were willing to maintain C.W.'s relationship with his sister.
The social worker noted that due to C.W.'s vision problems, finding an alternative placement would be difficult. However, he was appropriate to be adopted based on his caretakers' desire and willingness to pursue adoption. Mr. and Mrs. Mc. continued to meet C.W.'s medical, emotional, physical, and social needs, as well as loving C.W. as their own child.
Ch.W. was two years old at the time of the report. She was placed with her caregivers at 11 months, and was healthy with no health problems. Her caregivers reported that Ch.W. made behavioral improvement while in their care, and the severe temper tantrums she used to have had not occurred for several months. Ch.W. had learned to go to her room and cry when she becomes upset. Ch.W. was developmentally on target, her speech was clear and easy to understand, she was able to feed herself, and she enjoyed singing and dancing to music.
Ch.W.'s caretakers reported that they felt Ch.W. was " 'very bonded' " to them and their biological children. Ch.W. referred to her caregivers as " 'momma and daddy,' " and their biological daughters as " 'sissy.' " Ch.W.'s caretakers were aware of C.W. but were not willing to take placement of him due to his special needs. The social worker noted Ch.W. was adoptable due to her young age and her caregivers' willingness to adopt her. Her caregivers continued to demonstrate a commitment to her and meet her medical, emotional, physical, and social needs.
At the June 13, 2017 contested section 366.26 hearing, a continuance was requested due to some concerns of minors' counsel regarding information in the report. Additionally, Father's counsel noted issues with the adoption assessment, in particular that it was missing an assessment of the caretakers. The issue of placement with the maternal aunt was also raised again, and CFS indicated it would provide additional information through a report. The hearing was continued to address the issues raised.
In a second addendum to the section 366.26 report dated August 14, 2017, CFS continued to recommend adoption and termination of parental rights. The report provided greater detail regarding the children's caregivers. As to C.W.'s caregivers, Mr. and Mrs. Mc., it was reported that they had been married for 10 years and had mutually adopted several children, including a two-year-old daughter, a five-year-old daughter, a 14-year-old daughter, and a four-year-old son. The couple's 14-year-old daughter, who was adopted in 2006, had mental health issues and currently resided out of state. In addition, Mr. and Mrs. Mc. had two of their grandsons residing in their care, a one-year-old and a 12-year-old. The 12-year-old's previous behavioral issues were stable and he was participating in wraparound services. In addition to their minor children, Mrs. Mc. had three adult children, including a 19-year-old adopted daughter, a 22-year-old adopted daughter, and a 32-year-old biological son. None of the adult children resided in the home. Mr. Mc. worked as a warehouse specialist, a CPR instructor, and a travel agent. Mrs. Mc. ran a daycare, and worked as a parent partner for her foster family agency, a CPR instructor, and a travel agent.
The interactions between C.W. and his caregivers indicated that he looked to them as parental figures. He would only eat if one of them was feeding him, and his caregivers were easily able to calm C.W. when he was scared or upset. The couple stated they were bonded to C.W. and that he was a part of the family. The couple ensured C.W. received all the necessary medical treatment for his eyes and stayed by his side during his eye surgeries. Mr. and Mrs. Mc. understood the importance of maintaining sibling relationships and were willing to allow C.W. to have post-adoption contact with Ch.W. They were not open to allowing C.W. to maintain contact with his parents. Attached to the report was a letter from Children's Hospital of Los Angeles (Children's Hospital), indicating that it was imperative that C.W. be seen regularly by an ophthalmologist to monitor the pressure in his eyes and visual acuity. If this did not occur, C.W. was at risk for permanent and complete loss of vision in his eyes. C.W. required consistent care from his caregivers who were familiar with him and his eye conditions. His caregivers would need to provide him with eye drops multiple times a day and take him to frequent appointments in Los Angeles. The Children's Hospital also noted it was critical that C.W. remain in his current home for the next three months to allow him to fully recover after his most recent surgery.
Ch.W.'s caregivers, Mr. and Mrs. M., were married in 2003 and had a happy relationship. They had twin daughters who were 12 years of age. The girls shared a good relationship with Ch.W. Mrs. M. had two adult sons and an adult daughter from a previous marriage. The 30-year-old daughter resided in the home with the family. The couple also cared for two foster children. Mr. M. worked at a warehouse store and Mrs. M. did not work but stayed at home to care for the children. Prior to staying home, Mrs. M. worked at a daycare for 10 years. The interactions between Ch.W. and her caregivers indicated she looked to them as parental figures. Ch.W. would go to the couple to get her needs met, and when she was scared or upset she would seek them out for comfort. Mr. and Mrs. M. felt Ch.W. was very bonded to them and their biological children. She referred to them as " 'momma and daddy.' "
A third addendum to the section 366.26 report dated August 14, 2017, provided an update on the assessment of the maternal aunt's home. The social worker noted two unannounced visits were attempted unsuccessfully at the home, both times a silver vehicle was observed in front of the apartment door. A third unannounced visit was attempted on August 9, 2017, and after calling the maternal aunt, she agreed to come home for an assessment. The silver car was again in front of the apartment. Upon the maternal aunt's arrival, the social worker entered the home, at which time the maternal aunt's sister and her niece, who were in the upstairs bedroom, quickly exited the apartment. The social worker asked about a female voice she heard in the house while she was knocking, and the maternal aunt indicated that was her niece, but she did not live in the home. The silver car belonged to the maternal aunt's niece. The house was observed to be tight and narrow with a large quantity of children's toys. The bedrooms had little room to move and it appeared as though other individuals were living in the home. Although the odor of marijuana was detected, the maternal aunt denied anyone in the home smoked. When asked how she would protect the children from their parents, the maternal aunt indicated she did not speak with the parents any longer and would not let the children see them. After interviewing the maternal aunt, the social worker found her ability to care for the children's needs and protect them was questionable. The social worker did not believe it was in the children's best interest to remove them from their placements and place them with the maternal aunt.
The further contested section 366.26 hearing was held on August 14, 2017. After the relevant reports were admitted into evidence, without objection, the court heard testimony from Father and Mother. Both parents testified regarding their visits and bond with the children and what occurred during visits. Father's counsel thereafter presented closing argument, asserting the parental bond exception. Father's counsel did not object to the reports admitted into evidence. Mother's counsel objected to the recommendation of terminating parental rights, requested the children be placed with a relative, and argued the parental bond exception should apply. Mother's counsel also did not object to the reports admitted into evidence.
Following argument from counsel for CFS and minors, the juvenile court stated: "With respect to the first finding, I am going to find by clear and convincing evidence that it's likely that each child will be adopted. [Ch.W.], both generally and specifically; and [C.W.] at least specifically, as [minors' counsel] highlighted that his prospective adoptive parents are dealing with his issues and needs quite well." The court then found the parental bond exception did not apply, terminated parental rights and selected adoption as the permanent plan. This appeal followed.
III
DISCUSSION
Mother contends there was insufficient evidence to support the adoptability finding as to C.W. because CFS failed to provide a full analysis of C.W.'s developmental status concerning C.W.'s developmental delay and possible autism. She further claims the children were not generally adoptable. Father joins in, and adopts by reference, Mother's arguments. CFS responds Mother waived her right to challenge the sufficiency of the adoption assessment report, and sufficient evidence supports the finding C.W. was specifically and generally adoptable and Ch.W. were generally adoptable.
A. Waiver
When services are terminated and a section 366.26 hearing is set, the juvenile court must direct the social services agency to prepare an adoption assessment report that, among other things, evaluates the child's medical, developmental, scholastic, mental and emotional status, and includes a statement from the child concerning adoption unless the child is too young to give a meaningful response. (In re Crystal J. (1993) 12 Cal.App.4th 407, 411.)
The purpose of the assessment report is to provide the juvenile court with information necessary to determine whether adoption is in a child's best interest. (See In re Dakota S. (2000) 85 Cal.App.4th 494, 496.) An assessment report need not be entirely complete as long as it is in substantial compliance with statutory requirements. (In re John F. (1994) 27 Cal.App.4th 1365, 1378.) Where an assessment is deemed incomplete, the reviewing court looks at the totality of the evidence before it; deficiencies go to the weight of the evidence and may prove insignificant. (Ibid.)
Neither Mother nor Father objected to the adoption assessment report at the section 366.26 hearing. CFS urges us to, therefore, consider the issue of the report's purported deficiencies waived or forfeited. (See, e.g., In re Crystal J., supra, 12 Cal.App.4th at pp. 411-412 [failure to object to assessment report at section 366.26 hearing waived the issue of the report's inadequacy]; In re Urayna L. (1999) 75 Cal.App.4th 883, 886 [waiver of issue of adequacy of adoption assessment].) We see no reason why the general rule of waiver should not apply here. "Any other rule would ' " 'permit a party to play fast and loose . . . by deliberately standing by without making an objection of which he [or she] is aware and thereby permitting the proceedings to go to a conclusion which he [or she] may acquiesce in, if favorable, and which he [or she] may avoid, if not.' " [Citations.]' " (In re Riva M. (1991) 235 Cal.App.3d 403, 411-412.)
However, although "a parent may waive the objection that an adoption assessment does not comply with the requirements provided in section 366.21, subdivision (i), a claim that there was insufficient evidence . . . at a contested hearing is not waived by failure to argue the issue in the juvenile court." (In re Brian P. (2002) 99 Cal.App.4th 616, 623.) Thus, our conclusion that the parents forfeited their challenge to the adequacy of the adoption assessment concerning C.W.'s developmental delay and possible autism does not deprive them of their challenge to the sufficiency of the evidence regarding whether the children were adoptable.
B. Sufficiency of Evidence of Adoptability
" 'At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must make one of four possible alternative permanent plans for a minor child. . . . The permanent plan preferred by the Legislature is adoption.' " (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368, italics omitted.) A juvenile court may terminate parental rights and order a child placed for adoption only if it finds by clear and convincing evidence that the minor is likely to be adopted within a reasonable amount of time. (§ 366.26, subd. (c)(1); see In re Zeth S. (2003) 31 Cal.4th 396, 406.) This is a low threshold, as the court must merely determine that it is "likely" that the child will be adopted within a reasonable time. (§ 366.26, subd. (c)(1); In re K.B. (2009) 173 Cal.App.4th 1275, 1292.)
On appeal, "we review the factual basis for the trial court's finding of adoptability and termination of parental rights for substantial evidence." (In re Josue G. (2003) 106 Cal.App.4th 725, 732.) "In reviewing the sufficiency of the evidence on appeal, we look to the entire record to determine whether there is substantial evidence to support the findings of the juvenile court. We do not pass judgment on the credibility of witnesses, attempt to resolve conflicts in the evidence, or determine where the weight of the evidence lies. Rather, we draw all reasonable inferences in support of the findings, view the record in the light most favorable to the juvenile court's order, and affirm the order even if there is other evidence that would support a contrary finding. [Citation.] When the trial court makes findings by the elevated standard of clear and convincing evidence, the substantial evidence test remains the standard of review on appeal. [Citation.] The appellant has the burden of showing that there is no evidence of a sufficiently substantial nature to support the order. [Citations.]" (In re Cole C. (2009) 174 Cal.App.4th 900, 915-916.)
The issue of adoptability focuses on the minor—on whether the child's age, physical condition, and emotional state might make it difficult to find someone willing to adopt him or her. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649 (Sarah M.).) The child need not already be placed in a potential adoptive home, nor must a proposed adoptive parent be waiting. (See In re Brian P., supra, 99 Cal.App.4th at p. 624; In re Jennilee T. (1992) 3 Cal.App.4th 212, 223, fn. 11 [to prove adoptability, there need not be proposed adoptive parents " 'waiting in the wings' "].)
There are two alternative methods of demonstrating adoptability. General adoptability is demonstrated when an agency proves that a child's personal characteristics are sufficiently appealing that it is likely an adoptive family will be located for the child in a reasonable time, regardless of whether a prospective adoptive family has yet been found. In a case where the child is considered generally adoptable, the court does not look at the suitability of a prospective adoptive home. (Valerie W. (2008) 162 Cal.App.4th 1, 13.) But if the finding of adoptability is based entirely on the fact that a specific family has indicated a willingness to adopt the child, "the trial court must determine whether there is a legal impediment to adoption." (In re Carl R. (2005) 128 Cal.App.4th 1051, 1061 (Carl R.); see In re Helen W. (2007) 150 Cal.App.4th 71, 80 (Helen W.) [where adoptability finding is based solely on a particular caretaker's willingness to adopt the child, "the analysis shifts from evaluating the characteristics of the child to whether there is any legal impediment to the prospective adoptive parent's adoption and whether he or she is able to meet the needs of the child"].) In other words, "specific adoptability" refers to an agency's demonstration that it has located a committed adoptive family for a child whose adoptability is otherwise in question, most often because the child is part of a sibling group, has a physical or mental disability requiring a high level of care, or is relatively old. (See § 366.26, subd. (c)(3). When a prospective adoptive family has been found for such a child, the child is found likely to be adopted, not in the abstract, but because that specific adoptive family has committed to adoption. (See, e.g., Carl R., at pp. 1060-1061; Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.)
Specific adoptability bears on general adoptability and likelihood of being adopted but is not determinative. " 'A prospective adoptive parent's . . . interest in adopting is evidence that the child's age, physical condition, mental state, and other matters relating to the child are not likely to discourage others from adopting the child.' [Citation.] [¶] In other words, '[w]hile, generally, the present existence or nonexistence of prospective adoptive parents is, in itself, not determinative, it is a factor in determining whether the child is adoptable.' " (In re I.W. (2009) 180 Cal.App.4th 1517, 1526; see Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.) The possibility a child may have future problems does not mean the child is not likely to be adopted. (In re Jennilee T., supra, 3 Cal.App.4th at pp. 223, 225.) Further, the court may find a child with problematic characteristics is likely to be adopted if there is an identified family willing to adopt. (See Sarah M., at pp. 1649-1650.)
Similarly, general adoptability bears on the ultimate question of whether the child is likely to be adopted (§ 366.26, subd. (c)(1)) but likewise is not determinative. "[T]he law does not require a juvenile court to find a dependent child 'generally adoptable' before terminating parental rights. All that is required is clear and convincing evidence of the likelihood that the dependent child will be adopted within a reasonable time. [Citations.] The likelihood of adoptability may be satisfied by a showing that a child is generally adoptable, that is, independent of whether there is a prospective adoptive family ' " 'waiting in the wings.' " ' " (In re A.A. (2008) 167 Cal.App.4th 1292, 1313, italics omitted.)
1. C.W.
Here, whether or not C.W. had a developmental delay or possible autism, by the time of the section 366.26 hearing, C.W. had been living with his prospective adoptive parents for about two years. C.W. was removed from parental care when he was five months old in October 2014. He had initially resided with his prospective adoptive parents for about 10 months from October 2014 until he was returned to his parents' care on family maintenance in August 2015. After C.W. was again removed from parental care in July 2016, he was placed back with his prospective adoptive parents, and had been living with them for approximately 12 months from July 2016 until the August 14, 2017 section 366.26 hearing. C.W.'s prospective adoptive parents had provided care to C.W. for half of his young life. The prospective adoptive parents, who had an approved home study, were aware of C.W.'s medical and behavioral issues, but remained unwavering in their desire to adopt C.W. Mother's assertion that a two-year-old possible diagnosis of autism or developmental delay renders C.W. not adoptable is not supported by the record.
The only reference in the record to C.W. possibly having a developmental delay or autism was from a June 3, 2015 note in the HEP that Dr. Matney saw C.W. and under the "Health Problem Description" it stated: "Dx: Dev. delay, possible autism, food refusal." --------
The possibility that a child may have future problems does not preclude a finding that he or she is likely to be adopted. Children exposed to substances in utero and suffering speech delays may be found generally adoptable. (In re R.C. (2008) 169 Cal.App.4th 486, 492.) Young children may be generally adoptable despite evidence of physical and developmental conditions, significant delays, and speech issues. These conditions require time to determine the full severity of the issues the minor will face. The certainty of a child's future medical condition is not required before a court can find that the child is generally adoptable. (See Helen W., supra, 150 Cal.App.4th at p. 79.)
Here, substantial evidence supports the juvenile court's finding C.W. was adoptable. At the time of the section 366.26 hearing, C.W. was only three and a half years old. Although C.W. had vision impairments and exhibited some behavioral issues with getting angry and frustrated, with the efforts of Mr. and Mrs. Mc., C.W. was steadily advancing. The record clearly shows that Mr. and Mrs. Mc. were aware of C.W.'s needs and were ensuring that C.W.'s medical, emotional, and physical needs were met. Mr. and Mrs. Mc. were aware of the extent of C.W.'s eye problems and the fact he would never have full vision. They ensured he received his eye drops daily, dealing with C.W.'s dislike of the drops and his tendency to struggle when he received them. Although Mr. and Mrs. Mc. had other special needs children in their home and had accepted placement of their grandson who had prior behavioral issues, they had family support and hired help to assist them. Moreover, there is nothing in the record to suggest that because they cared for their grandson and other special needs children, they were incapable of meeting C.W.'s needs. Indeed, the record shows Mr. and Mrs. Mc. met C.W.'s needs since he was five months old, and continued to meet his needs by the time of the section 366.26 hearing. Mr. and Mrs. Mc. loved C.W. as their own and were committed to adopting C.W. C.W. looked to Mr. and Mrs. Mc. as his parental figures, they were able to calm him when he was upset, and they were mutually bonded to one another. All these attributes support the conclusion that C.W. was generally adoptable.
Not only does substantial evidence support a finding of general adoptability, substantial evidence supports a finding that C.W. was specifically adoptable. "[I]n 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.) Thus, a child may be "deemed adoptable based solely on the fact that a particular family is willing to adopt him or her." (Carl R., supra, 128 Cal.App.4th at p. 1061.) Here, a prospective adoptive family had been found that was willing to adopt C.W.
The court in Carl R. addressed the proper scope of inquiry to be undertaken by the juvenile court to determine the adoptability of a child who will require care for life. The court stated: "A child who is specifically adoptable and who will need total care for life is at high risk of becoming a legal orphan if parental rights are terminated and the prospective adoptive family is later determined to be unsuitable. This could occur if the courts analyze only whether there is a legal impediment to adoption, as indicated by In re Scott M., In re Sarah M., and In re T.S. To avoid rendering a total needs child a legal orphan, the assessment of the adoptability of such a child must necessarily include some consideration of whether the prospective adoptive parents can meet that child's needs, since if the prospective adoptive parents cannot meet the child's needs, the child cannot properly be found to be adoptable. The question becomes the extent of the inquiry to be conducted by the juvenile court at the section 366.26 hearing in such a case. [¶] The statutory scheme requires the Agency to provide the court with a preliminary assessment of the eligibility and commitment of the prospective adoptive parents for the section 366.26 hearing. That assessment includes a social history, screening for criminal records and prior referrals for child abuse or neglect, together with an assessment of the capability of the prospective adoptive parents to meet the child's needs, and whether they understand the legal and financial rights and responsibilities of adoption. ([former] §§ 361.5, subd. (g)(4), 366.21. subd. (i)(4), 366.26, subd. (b)(4).)" (Carl R., supra, 128 Cal.App.4th at pp. 1062-1063.)
Here, the record shows that CFS provided the court with a detailed assessment of C.W. and his prospective adoptive parents. The section 366.26 reports dated June 13 and August 14, 2017, included detailed information regarding C.W.'s health status, and his developmental issues, as well as his progress. Moreover, the reports addressed C.W.'s eye problems, including C.W. having to receive four eye drops daily to help relieve C.W.'s eye pressure, and C.W.'s issues relating to receiving his eye drops and picky eating habits. In addition to addressing C.W.'s current status, the reports provided detailed information regarding the prospective adoptive parents, Mr. and Mrs. Mc., including their marital history, work history, connection with C.W., participation in C.W.'s medical care, and the other children residing in the home. The assessments provided enough detail for the court to determine if C.W. was adoptable based upon Mr. and Mrs. Mc.'s willingness to proceed with adoption. Although Mother complains the assessments failed to provide a detailed account of C.W.'s possible autism or developmental delay, she fails to indicate how the lack of C.W.'s possible autism or developmental delay affected the court's ability to make a determination on C.W.'s adoptability.
Mother also challenges the court's adoptability finding as to C.W. based on the large number of children residing in the home of Mr. and Mrs. Mc., Mrs. Mc.'s operation of a daycare center, Mrs. Mc.'s decision not to adopt C.W.'s sister, and the presence of Mrs. Mc.'s 12-year-old grandson in the home. General adoptability is based on the child's age, physical condition, and emotional state. (Sarah M., supra, 22 Cal.App.4th at p. 1649.) When considering adoptability of a child who will need care for life, additional consideration of the prospective adoptive parents' social history, screening for criminal records, and prior referrals for child abuse or neglect, an assessment of the capability of the prospective adoptive parents to meet the child's needs, and whether they understand the legal and financial rights and responsibilities of adoption must be made. (Carl R., supra, 128 Cal.App.4th at pp. 1062-1063.) In this case, there is nothing in the record to indicate that Mr. and Mrs. Mc. cannot care for C.W. To the contrary, the record is replete with instances of Mrs. Mc.'s engagement, for approximately two years, in caring for C.W.'s needs since he was five months old, and helping him progress in his development. There is nothing in the record to suggest that the number of children residing in the home of Mr. and Mrs. Mc., Mrs. Mc.'s operation of a daycare center, Mrs. Mc.'s decision not to adopt C.W.'s sister, and the presence of Mrs. Mc.'s grandson in the home should prevent Mr. and Mrs. Mc. from adopting C.W. Moreover, Mother has failed to provide any legal authority that these issues should undermine adoption. The impediments laid out by Mother are subjective attacks on the caretakers, rather than legal impediments to adoption. (See Sarah M., at p. 1650.)
Helen W., supra, 150 Cal.App.4th 71 is instructive. In that case, two young children "suffered from various physical and developmental conditions that required a series of evaluations and tests during their dependency." (Id. at p. 74.) One child was developmentally disabled and had serious neurological abnormalities. The other child was mildly autistic, and was "significantly below average in intellectual, speech and language, and adaptive functions," and exhibited violent behavior towards other children. (Id. at p. 75.) According to the agency, "even though the children have significant medical and developmental challenges, they each exhibited likeable qualities, and the foster mother was committed to adopting both of them." (Id. at p. 76.) The mother, however, argued on appeal that the court's adoptability finding was not supported by substantial evidence. The court, in rejecting the mother's argument, stated: "Both children suffer from conditions that require time to determine the full severity of the issues they will face. But [the agency] methodically reported the children's medical, developmental, emotional, and behavioral conditions throughout the two years of their dependency. The adoption assessment included a synopsis of the children's conditions. And the foster mother—the prospective adoptive parent—accompanied the children to appointments, advocated for services, and was fully aware of their medical and psychological conditions. Nowhere in the statuses or case law is certainty of a child's future medical condition required before a court can find adoptability." (Id. at p. 79.)
Moreover, the Helen W. court rejected the mother's contention that the juvenile court "impermissibly relied upon only the foster mother's intention to adopt in finding the children adoptable." (Helen W., supra, 150 Cal.App.4th at p. 79, italics omitted.) The appellate court pointed to evidence in the record describing the children's appealing characteristics, including their young ages, their attractive physical appearances, and their affectionate personality traits. (Id. at p. 80.) Furthermore, citing Sarah M., the court found that even if the juvenile court had relied solely on the willingness of the prospective adoptive parent to adopt, short of a legal impediment to adoption, the willingness of the adoptive parent constituted clear and convincing evidence of adoptability. (Helen W., at p. 80.)
In this case, the record clearly supported a finding that C.W. was specifically adoptable, if not generally adoptable, as Mother appears to concede. Despite C.W.'s impairments and challenges, he was young, happy, and bonded to his caregivers, who were dedicated to providing care for him. Substantial evidence in the record supports the court's finding C.W. was specifically adoptable.
2. Ch.W.
As previously noted, a child is generally adoptable when his or her personal characteristics are sufficiently appealing to make it likely that an adoptive family will be located in a reasonable time, regardless of whether a prospective adoptive family has been found. (See Sarah M., supra, 22 Cal.App.4th at p. 1649.) A child's relative youth, his or her good physical and emotional health, the child's intellectual capacity and his or her ability to develop interpersonal relationships all indicate that the child is adoptable. (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1562 (Gregory A.); Helen W., supra, 150 Cal.App.4th at pp. 79-80.)
Here, substantial evidence supports the juvenile court's finding Ch.W. was generally adoptable. The record contains ample evidence of Ch.W.'s appealing characteristics, which support the lower court's finding that she was generally adoptable. Ch.W. was only a year old when she was removed from parental custody and placed with her prospective adoptive parents, Mr. and Mrs. M., on July 5, 2016. Although Ch.W. received treatment for eye problems, she was reported as being otherwise healthy and happy. Her fear of men was lessening and there were no other mental or emotional concerns noted for her. Ch.W. was continuing to meet her developmental milestones, her speech was clear and easy to understand, she was able to feed herself, and she loved to sing and dance to music.
Moreover, Ch.W.'s prospective adoptive parents were committed to adopting Ch.W. " ' "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." ' [Citation.]" (Gregory A., supra, 126 Cal.App.4th at p. 1562.) Ch.W.'s prospective adoptive parents consistently expressed a strong desire to adopt Ch.W. The juvenile court could properly consider a prospective adoptive parent's willingness to adopt as evidence that a child is likely to be adopted within a reasonable time. (In re A.A., supra, 167 Cal.App.4th at p. 1313.)
Mother argues that the evidence supports the conclusion Ch.W. was "only specifically adoptable," because CFS opined Ch.W. was " 'appropriate to be adopted due to her young age and the prospective adoptive parents' desire and willingness to pursue their parental relationship to the child through adoption.' " Mother, therefore, believes the suitability of Ch.W.'s prospective adoptive parents is also subject to analysis, and argues the juvenile court "did not know enough about Mr. and Mrs. M. to determine if they would be suitable adoptive parents" and "Mr. and Mrs. M. had not yet participated in the Live Scan process or passed the required background checks." For the reasons explained below, we reject Mother's contentions.
In this case, CFS's adoption assessments identified Mr. and Mrs. M. as the prospective adoptive parents and opined that Ch.W. was adoptable based on her characteristics and the prospective adoptive parents' willingness to adopt her. Mother did not contest the issue of adoptability, including whether Ch.W. was specifically adoptable, whether Mr. and Mrs. M. qualified as prospective adoptive parents or whether they might have a legal impediment to adoption. The failure to raise the legal impediment question in the juvenile court forfeited the issue for appellate purposes. (In re G.M. (2010) 181 Cal.App.4th 552, 563-564.)
Furthermore, Mr. and Mrs. M.'s qualifications as Ch.W.'s prospective adoptive parents are irrelevant to her adoptability, because substantial evidence supports the juvenile court's finding Ch.W. was generally adoptable. As we stated above, the presence of a prospective adoptive parent willing to adopt is an indicator of adoptability but a child does not have to be in a prospective adoptive home to be found adoptable. Mr. and Mrs. M. qualified as prospective adoptive parents. Ch.W. had been in their care for over a year, and Mr. and Mrs. M. expressed their commitment to adopting Ch.W. The fact that the prospective adoptive parents had not been Live scanned or passed a criminal background check is unimportant at that stage because there is no requirement that a Live scan be completed before the juvenile court finds a child is adoptable and terminates parental rights. (See In re Marina S. (2005) 132 Cal.App.4th 158, 166.) Here, CFS did not opine that Ch.W. was likely to be adopted "based solely" on the willingness of her prospective adoptive parents' willingness to adopt her. Indeed, according to the record, the children's maternal aunt expressed an interest in caring for the children.
We conclude substantial evidence supports the juvenile court's finding Ch.W. was adoptable.
IV
DISPOSITION
The order terminating parental rights is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: RAMIREZ
P. J. McKINSTER
J.