Opinion
E080081
04-03-2023
In re M.T. et al., Persons Coming Under the Juvenile Court Law. v. S.T. et al., Defendants and Appellants. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Tracy M. De Soto, by appointment of the Court of Appeal, for Defendant and Appellant, S.T. Neale B. Gold, by appointment of the Court of Appeal, for Defendant and Appellant, B.T. Tom Bunton, County Counsel, and Pamela J. Walls, Special Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Super.Ct.Nos. J286370, J286371 & J286372. Annemarie G. Pace, Judge. Affirmed.
Tracy M. De Soto, by appointment of the Court of Appeal, for Defendant and Appellant, S.T.
Neale B. Gold, by appointment of the Court of Appeal, for Defendant and Appellant, B.T.
Tom Bunton, County Counsel, and Pamela J. Walls, Special Counsel, for Plaintiff and Respondent.
OPINION
FIELDS, J.
I. INTRODUCTION
On October 28, 2022, following a hearing pursuant to Welfare and Institutions Code section 366.26, the juvenile court entered an order terminating the parental rights of S.T. (Mother) and B.T. (Father) with respect to their three children, C.T., Bo.T., and M.T. Mother and Father appeal from this order, challenging only the sufficiency of the evidence to support the juvenile court's finding that the children were adoptable. We conclude the record contains substantial evidence in support of the juvenile court's finding, and we affirm the order.
Undesignated statutory references are to the Welfare and Institutions Code.
II. FACTS AND PROCEDURAL HISTORY
A. Procedural History
Mother and Father are the parents of three children, C.T., Bo.T., and M.T. In August 2020, San Bernardino County Children and Family Services (CFS) filed petitions on behalf of the three children pursuant to section 300 et seq., alleging that M.T. was at risk of serious physical harm as the result of a physical injury inflicted by Father, and that C.T. and Bo.T. were at risk due to abuse of a sibling. After further investigation, CFS filed amended petitions alleging that Father had a history of substance abuse; Mother had an unaddressed substance abuse issue; and both parents engaged in domestic violence in the presence of their children.
On January 28, 2021, the juvenile court held a contested jurisdictional and dispositional hearing on the petitions. Following the hearing, the juvenile court sustained several allegations of the petitions and ordered the children removed from Father's and Mother's custody. In January 2022, the juvenile court held a contested 12-month review hearing, found there was no probability of reunification, ordered reunification services terminated, and set the matter for a permanency planning hearing pursuant to section 366.26.
Both parents appealed from the jurisdictional and dispositional orders of the juvenile court, but the appeal was subsequently dismissed as abandoned after appointed counsel found no error upon review of the record.
B. CFS Reports Admitted Into Evidence
1. Selection and Implementation Report
According to the selection and implementation report filed by CFS pursuant to section 366.26, CFS recommended that all three children be found generally and specifically adoptable. C.T. was 12 years of age, Bo.T. was 9 years of age, and M.T. was 7 years of age at the time the report was prepared. All three children had been placed with a paternal great uncle and paternal great aunt and had been living in this placement for almost two years by the time of the section 366.26 hearing. CFS reported that, in this placement, the children had regular interaction with multiple supportive paternal family members and that the children had expressed that they were happy with this family dynamic.
CFS reported that the medical and dental needs of all three children were being met and that two of the children, M.T. and Bo.T., were developing appropriately for their ages. CFS reported that Bo.T. was doing well educationally, attaining all "A's" and "B's" in his classes, while M.T. had made progress catching up to grade level.
According to CFS, an initial assessment suggested that C.T. fell within the criteria for being considered on the autism spectrum. However, C.T.'s diagnosis was uncertain due to "complicating factors," and a second assessment had been scheduled. Despite that diagnosis, C.T. was "doing exceptionally well in school" and had "made exceptional progress" in his mental and emotional health over the past six months, such that he had graduated from "wrap around services" and required only outpatient therapy moving forward. CFS also disclosed that M.T. was diagnosed with attention deficit hyperactivity disorder and was currently taking prescription medication to address the issue. As the result of medication and services, prior behavioral issues with M.T. had "greatly reduced."
CFS identified the paternal great uncle and paternal great aunt as prospective adoptive parents, reporting that they had expressed a willingness and commitment to adopt all three children. The social worker opined that it was "very likely" that such an adoption would be successful, and that the paternal great uncle and paternal great aunt had been "excellent advocates" for all three children throughout the case. All three boys expressed to social workers that they felt safe and loved in the paternal great uncle and paternal great aunt's home.
The paternal great uncle and paternal great aunt were 51 and 53 years of age, respectively. Neither individual reported any chronic health problems, drug history or criminal history. The paternal great uncle had steady employment, having worked for the same employer for 31 years. While he was currently out on temporary disability, he already had a return-to-work date scheduled. Finally, the paternal great uncle and paternal great aunt had already raised two children to adulthood and had successfully adopted two other children. Both individuals expressed the desire to adopt C.T., Bo.T., and M.T. and had taken concrete steps to educate themselves on dealing with their mental health issues.
2. Additional Information to the Court
The juvenile court accepted three additional information documents into evidence at the time of the section 366.26 hearing. However, most of the information in these documents addressed issues related to compliance with the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.), which is not relevant to the issue raised in this appeal.
In an additional information report to the court, CFS reported that C.T. expressed to a social worker that he felt safe and loved in the prospective adoptive parents' home and that, if he could not be returned to his parents, he would be" 'good with being adopted by [the prospective adoptive parents].'" In a second additional information report to the court, CFS reported that a referral alleging that prospective adoptive parents had engaged in abuse or neglect had been determined to be unfounded and was closed.
C. Findings and Orders
On October 28, 2022, the juvenile court held the contested permanency planning hearing pursuant to section 366.26. It accepted the following reports into evidence without objection: (1) CFS's section 366.26. report dated May 16, 2022; and (2) additional information reports filed June 23, October 6, and October 28, 2022. No additional testimony or evidence was offered at the time of the hearing. The trial court found by clear and convincing evidence that the children were likely to be adopted, ordered Mother's and Father's parental rights terminated, and selected a permanent plan of adoption.
III. DISCUSSION
Both Mother and Father raise a single claim of error on appeal: that the juvenile court erred in terminating parental rights because the evidence did not support a finding that their children were likely to be adopted. As we explain, we conclude that the record does not support the parents' contention.
A. General Legal Principles and Standard of Review
"Before terminating parental rights, the court must find by clear and convincing evidence that it is likely that the child will be adopted within a reasonable amount of time." (In re K.B. (2009) 173 Cal.App.4th 1275, 1290.)
"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.) This inquiry "focuses on the minor, e.g., whether the minor's age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor." (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) "A child's young age, good physical and emotional health, intellectual growth and ability to develop interpersonal relationships are all attributes indicating adoptability. [Citation.] . . .' "[Further], 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." '" (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1562.)
Alternatively, "a minor who is not generally adoptable because of age, poor physical health, physical disability or emotional instability may nevertheless be adoptable because a prospective adoptive family has been identified as willing to adopt the child." (In re R.C. (2008) 169 Cal.App.4th 486, 494.) Such a minor is considered specifically adoptable because the" 'child is deemed adoptable only because a particular caretaker is willing to adopt [and] 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.'" (Ibid.; In re J.W. (2018) 26 Cal.App.5th 263, 267-268.)
"The finding of adoptability is reviewed under the substantial evidence test." (In re K.B., supra, 173 Cal.App.4th at p. 1290.) "[W]e 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." (In re Erik P. (2002) 104 Cal.App.4th 395, 400; see In re Gregory A., supra, 126 Cal.App.4th at pp. 1561-1562.) "The power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination of whether there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. [Citation.] All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the decision, if possible. We may not reweigh or express an independent judgment on the evidence." (In re A.A., supra, 167 Cal.App.4th at p. 1313.)
B. The Trial Court's Finding Was Not Based Solely on Specific Adoptability
Initially, we address Mother's contention that the juvenile court only found her children were specifically adoptable without a finding that her children were generally adoptable. In our view, the record does not support this characterization of the juvenile court's finding.
In this case, the juvenile court's order with respect to each child specified two findings: (1) "The court finds by clear and convincing evidence, it is likely the child will be adopted," and (2) "The court finds by clear and convincing evidence, the minor is at least specifically adoptable if not generally." While the juvenile court's statement as to general adoptability was ambiguous, a review of the entire record demonstrates that substantial evidence supports the juvenile court's implied determination that the children were generally adoptable and express determination that the children were specifically adoptable. Nothing in the language of the juvenile court's written order or in its oral statements on the record suggests the juvenile court intended to limit its adoptability finding.
The juvenile court repeated the second finding orally at the time of the hearing using nearly identical language, stating, "The children are at least specifically adoptable by clear and convincing evidence, if not generally adoptable as well." The use of the phrase "as well" in the court's oral statement also suggests the statement regarding specific adoptability was intended to be an additional finding.
The fact that the juvenile court did not expressly distinguish between general adoptability and specific adoptability when finding that "it is likely the [children] will be adopted" is of no consequence. The juvenile court "was not required to find the children 'generally' or 'specifically' adoptable. . . . It was required only to find by clear and convincing evidence that the children were 'likely' to be adopted within a reasonable time." (In re Mary C. (2020) 48 Cal.App.5th 793, 802 (Mary C.); In re A.A., supra, 167 Cal.App.4th at p. 1313 ["[T]he law does not require a juvenile court to find a dependent child 'generally adoptable.' . . . All that is required is clear and convincing evidence of the likelihood that the dependent child will be adopted within a reasonable time."].)
Further, unlike the cases cited by Mother in her opening brief, nothing in the record suggests the evidence before the juvenile court was limited to a finding of specific adoptability. CFS expressly recommended a finding that the children were both generally and specifically adoptable. Thus, "this was not a case in which the social worker opined the children were likely to be adopted based solely on the existence of a prospective adoptive parent who was willing to adopt," and we do not treat the juvenile court's finding as one based on specific adoptability. (In re G.M. (2010) 181 Cal.App.4th 552, 564; In re R.C., supra, 169 Cal.App.4th at pp. 493-494 [declining to evaluate issue of specific adoptability where juvenile court had evidence in support of both general and specific adoptability before it at the time of ruling].)
Because nothing in the juvenile court's written order, in the express statements on the record, or in the evidence before the juvenile court suggested that a finding of adoptability could only be based on the existence of prospective adoptive parents, we decline to adopt Mother's characterization of the juvenile court's order as limited to a finding of specific adoptability.
C. Substantial Evidence in the Record Supports the Juvenile Court's Finding the Children Were Likely To Be Adopted
The primary argument asserted by both parents on appeal is that the evidence was insufficient to support the juvenile court's determination that the children were likely to be adopted. We disagree.
1. Substantial Evidence Supports a Finding of General Adoptability
The evaluation of whether a child should be considered generally adoptable focuses on" 'evaluation of the child's medical, developmental, scholastic, mental, and emotional status.'" (Mary C., supra, 48 Cal.App.5th at p. 802; §§ 366.21, subd. (i)(1)(C)(i), 366.22, subd. (c)(1)(C)(i).) The section 366.26 report filed by CFS in this case addressed each of these factors and suggested that multiple factors weighed in favor of a finding that each child was generally adoptable.
According to the report, none of the children suffered from a physical condition requiring specialized medical treatment, and the medical and dental needs of all three children were currently being met. Bo.T. and M.T. were developmentally appropriate for their age. All three children had shown improvement in their scholastic achievement, with C.T. reportedly doing "exceptionally well"; Bo.T. earning "all A's and B's in school"; and M.T. "making progress in catching up to grade level." CFS reported that all three children had made noticeable progress with their emotional and mental health since their initial removal, with C.T. making such "exceptional progress" that he had graduated from "wrap around services" and only required outpatient therapy moving forward; Bo.T. "making progress working with his team"; and M.T. showing "greatly reduced" behavioral problems with the help of medication and services.
Additionally, the section 366.26. report clearly detailed that the children's current caretakers were willing to adopt, despite caring for the children over the past two years and, presumably, being aware of the extent of any ongoing behavioral issues. This was also evidence upon which the juvenile court could rely to conclude the children were generally adoptable. (In re Gregory A., supra, 126 Cal.App.4th at p. 1562.) Thus, substantial evidence in the record suggested that multiple factors weighed in favor of the juvenile court's finding that each child was generally adoptable, notwithstanding any lingering behavioral issues that might require continued services.
On appeal, Father and Mother argue that their children could not be considered generally adoptable because of previously documented behavioral problems. For several reasons, we are unpersuaded by this argument.
First, we observe that both Mother and Father rely extensively on facts drawn from outdated reports in order to support their argument on appeal. However, nothing in the record suggests that these reports were presented, let alone read, considered, or admitted into evidence by the juvenile court at the time of the section 366.26 hearing. As this court has recently explained, "the juvenile court cannot consider any evidence unless it 'receive[s]' it from a party and 'state[s] on the record' that it has considered it. . . . [¶] . . . [¶] We cannot reverse an order simply because some fact unearthed from some report filed months or years earlier might tend to undercut it." (In re L.A.-O. (2021) 73 Cal.App.5th 197, 207-208.) The reports upon which Father and Mother now rely were not presented and were not considered by the juvenile court at the time of the section 366.26 hearing. No party suggested these prior reports continued to accurately reflect the children's condition at the time of the hearing, and we decline to consider this evidence for the first time on appeal.
Second, there is no authority for the proposition that a finding of adoptability is precluded simply because a child has some physical, developmental, emotional or mental condition requiring continued support. The existence of such a condition is but one factor for the juvenile court to consider and, under the applicable standard of review, the juvenile court's factual determination "should 'be upheld if . . . supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence.'" (In re Caden C. (2021) 11 Cal.5th 614, 640.) Thus, evidence suggesting the existence of such a condition does not require reversal where other evidence in the record supports the juvenile court's finding that a child is generally adoptable.
To conclude otherwise would be contrary to the purpose of the entire dependency system. As cogently explained by our colleagues in the Second Appellate District, "[v]ery few children in the dependency system are without problems. To deny [a child] the chance to permanently become a member of the family that loves him and that he loves, simply because he has special needs, would derail the entire concept of permanent planning." (In re J.W., supra, 26 Cal.App.5th at pp. 268-269.) Thus, numerous Courts of Appeal, including this court, have rejected the premise that a child with special needs cannot be deemed generally adoptable. (In re K.B., supra, 173 Cal.App.4th at p. 1293 [affirming finding of general adoptability for sibling set despite developmental delays, speech, and education problems resulting from fetal alcohol syndrome]; In re Helen W. (2007) 150 Cal.App.4th 71, 79-80 [child may be found adoptable despite uncertainty surrounding future medical needs]; In re R.C., supra, 169 Cal.App.4th at p. 492 [child may be found generally adoptability despite a history of medical issues, evidence of developmental delays, and a possibility the child may experience future problems]; In re A.A., supra, 167 Cal.App.4th at p. 1312 [upholding finding of adoptability despite evidence of children's ongoing behavioral and emotional problems]; In re I.I. (2008) 168 Cal.App.4th 857, 870-871 [upholding finding of adoptability despite documented behavioral problems].) As a result, even if we fully accepted Father and Mother's characterization that their children had ongoing behavioral issues, this fact would not show error in the juvenile court's finding that the children were adoptable.
Finally, on review for substantial evidence,"' "[w]e do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court." '" (In re I.J. (2013) 56 Cal.4th 766, 773.) It is true that the section 366.26 report in this case disclosed that an initial assessment suggested C.T. fell within the criteria for being considered on the autism spectrum, and that M.T. had been diagnosed with attention deficit hyperactivity disorder. However, the report also detailed that C.T.'s diagnosis was uncertain due to "complicating factors," requiring a second assessment and that C.T. had made "exceptional progress" in his overall mental health and emotional wellness despite this diagnosis. Likewise, the report detailed that M.T.'s behavioral problems had "greatly reduced" with the help of medication and services. The juvenile court was entitled to take all of these facts into consideration when deciding the weight to afford the evidence of C.T. and M.T.'s potential behavioral or developmental problems. Where the record contains evidence of other favorable attributes suggesting the children are likely to be adopted, substantial evidence supports the juvenile court's finding of adoptability, and it is not our role to reweigh the evidence on appeal.
2. Substantial Evidence Supports a Finding of Specific Adoptability
Even if we were to assume that the existence of behavioral or developmental problems precluded C.T., Bo.T., and M.T. from being considered generally adoptable, substantial evidence in the record also supports the juvenile court's finding of adoptability based upon the willingness of the paternal great uncle and paternal great aunt to adopt the children.
The section 366.26 report contained a detailed preliminary assessment of the paternal great uncle and paternal great aunt as prospective adoptive parents. It set forth their social, educational, and economic background; described their current physical conditions; described the appropriateness of their home; and further detailed how the children had improved following placement in their home. Further, the assessment specifically detailed that the paternal great uncle and paternal great aunt had "already raised older children" and successfully adopted two other children. This was strong evidence to suggest there would be no legal impediment to adoption by the paternal great uncle and paternal great aunt.
Both parents suggest that CFS's preliminary assessment was inadequate because it lacked a detailed account of any criminal background or child welfare check and failed to explain how CFS determined that prior referrals alleging abuse on the part of the prospective adoptive parents were unfounded. However, this argument has been forfeited for failure to object or otherwise raise the issue in the trial court. (In re G.M., supra, 181 Cal.App.4th at pp. 563-564 ["Having not raised the legal impediment question in the trial court, mother failed to properly preserve for appellate purposes her claim of trial court error. [Citation.] She also did not object to the department's preliminary assessment as inadequate in this regard and thus forfeited the opportunity to now place the blame for the silent record on the department."]; Mary C., supra, 48 Cal.App.5th at p. 801 ["[W]hile parents may question whether substantial evidence supports the juvenile court's findings of adoptability, by failing to object in juvenile court they have forfeited any challenge to specific defects in the report, such as omission of required content or insufficient discussion of required topics."].)
In this case, CFS addressed the issue of criminal history briefly by stating that neither prospective adoptive parent reported drug or criminal history. Likewise, CFS briefly represented to the juvenile court that prior referrals alleging that the prospective adoptive parents had engaged in child abuse or neglect had been closed as unfounded. Parents did not object to these reports as inadequate, did not seek to examine the social worker to obtain a more detailed explanation regarding these representations, and did not assert that the absence of any details regarding any investigation suggested the existence of a legal impediment to adoption. Having failed to do so, parents cannot pursue their claim that CFS's reports were unreliable due to the lack of specificity on this topic.
Nor do we agree with Father and Mother's attempt to cast this argument as one regarding the sufficiency of evidence to support a finding of specific adoptability. Substantial evidence includes"' "all reasonable inferences from the evidence to support the findings . . . ." '" (In re I.J., supra, 56 Cal.4th at p. 773; In re L.O. (2021) 67 Cal.App.5th 227, 238.) By the time of the section 366.26 hearing, the children had already been placed with the paternal great uncle and paternal great aunt for two years. Under these circumstances, the juvenile court could reasonably infer that the prospective adoptive parents had already been adequately screened for criminal history and prior child abuse referrals. (Mary C., supra, 48 Cal.App.5th at p. 807 ["California law requires all adults residing in a foster home to be screened for criminal history and prior child abuse referrals. . . . Absent evidence to the contrary[,] . . . we presume the appropriate public personnel ensured that the screens were performed."].) The juvenile court could also reasonably infer that CFS did not discover any evidence of abuse by the prospective adoptive parents in response to prior referrals. (Id. at p. 808 [Where prospective adoptive parents had been coparenting dependent children for 17 months and were "not completely unknown to the Department - or to the court," if "any concern had arisen . . . during the dependency, one would expect to see it reflected in the periodic social workers' reports and in the section 366.26 report . . . ."].)
Under the circumstances present here, the juvenile court could reasonably infer that the prospective adoptive parents had already been adequately screened for criminal history and prior child abuse referrals, even without a detailed statement or report by CFS. Because the juvenile court could make this inference even in the absence of a detailed report, and because substantial evidence review includes consideration of all reasonable inferences in support of the juvenile court's factual findings, the absence of detailed information regarding these matters does not establish a lack of substantial evidence.
Finally, we decline to entertain Father and Mother's speculative suggestion that a further investigation might reveal a legal impediment to adoption. Neither the juvenile court nor this court should presume that a legal impediment to adoption exists in the absence of actual evidence in support of such a conclusion. (In re Brandon T. (2008) 164 Cal.App.4th 1400, 1411 [rejecting claim of legal impediment "[a]bsent any evidentiary basis for questioning the feasibility of the minor's adoptive placement"]; Mary C., supra, 48 Cal.App.5th at p. 808 [Parents "cannot, merely by pointing to an omission in the section 366.26 report, gin up a case of reversible error" based upon a claim of a potential legal impediment.].) As we have already explained, substantial evidence in the record supports the juvenile court's finding of specific adoptability. This conclusion is not undermined simply because parents argue there is an absence of evidence to negate the hypothetical possibility that a legal impediment to adoption exists.
IV. DISPOSITION
The order is affirmed.
We concur: CODRINGTON Acting P. J., MENETREZ, J.