Opinion
D071503
05-24-2017
In re MATTHEW H., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. T.G., Defendant and Appellant.
Neil R. Trop, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Daniela Davidian, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. J519018) APPEAL from a finding and order of the Superior Court of San Diego County, Kimberlee A. Lagotta, Judge. Reversed and remanded with instructions. Neil R. Trop, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Daniela Davidian, Deputy County Counsel, for Plaintiff and Respondent.
T.G. challenges an order terminating her parental rights under Welfare and Institutions Code section 366.26. She contends that the court erred when it found that her son, Matthew H., was generally adoptable, and that the beneficial parent-child relationship exception to termination of parental rights did not apply. We conclude that the finding that Matthew is likely to be adopted within a reasonable time is not supported by substantial evidence and therefore reverse the judgment terminating parental rights. Accordingly, we do not reach the issue of whether the court erred when it determined that the beneficial parent-child relationship exception did not apply.
Further unspecified statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
T.G. is the mother of Matthew H., who was born in July 2014. T.G. suffers from a mental health condition that has been diagnosed as Bipolar Disorder and Polysubstance Abuse. When Matthew was born, hospital staff had concerns about his safety in T.G.'s care. T.G.'s understanding about proper feeding of a newborn was limited; she swaddled Matthew to the point that nurses were concerned about his overheating; and she placed his bassinet on top of her bed and covered it with a blanket, making it difficult for the nurses to see him. T.G. was uncooperative and, at times, "borderline combative" with hospital staff.
The San Diego County Health and Human Services Agency (Agency) filed a petition alleging that T.G. was unable to provide regular care to Matthew because of her mental health condition and substance abuse history, which included daily marijuana use. (§ 300, subd. (b).) T.G. resisted telling hospital staff and the Agency social worker about her mental health condition, anticipated living situation, home address or support network. T.G. expressed a fervent desire to parent her newborn son on her own. She had three previous pregnancies. T.G. had given birth to two premature infants who did not survive their first month of life. The other pregnancy resulted in a stillbirth.
T.G. alleged that A.H. was Matthew's father. T.G. said that when she told A.H. that she was pregnant, "He took off." A.H. did not respond to the social worker's efforts to contact him and he did not come forward to assert paternity.
When Matthew was five days old, the Agency detained him with nonrelative extended family members (NREFM), and filed a petition alleging that Matthew was at substantial risk of abuse or neglect because of T.G.'s inability to provide regular care to him. (§ 300, subd. (b).)
On July 30, 2014, the court sustained the petition and removed Matthew from parental custody. The court ordered a plan of family reunification services for T.G., including a parenting education program, substance abuse testing, a psychological evaluation and, if recommended, a medication evaluation.
T.G. attended an inpatient substance abuse program for almost six weeks. She left the program on September 17, saying it was not helping meet her mental health needs. T.G. continued to see a psychiatrist every month, who monitored her medications.
On September 19, the NRFEM reported that they could no longer care for Matthew because of T.G.'s verbally abusive behaviors, and he was moved to a foster care home. On September 20, police officers arrested T.G. after she assaulted A.H. at his home. T.G. was placed on probation. The criminal court ordered her to stay on her medication, complete a 52-week domestic violence prevention group, and have no contact with A.H.
In January 2015, the social worker reported that T.G. was engaged in services and that visitation was going well. T.G. attended every scheduled visit with Matthew. She was very loving with Matthew and encouraged him to improve his motor skills, which were below developmental norms. T.G. purchased educational toys and most of the other provisions that Matthew needed. The social worker said that Matthew responded well to his mother and was always excited to see her.
T.G. and Matthew's caregiver expressed concerns about six-month-old Matthew's motor skills and his inability to perform expected tasks such as reaching for objects, and opening and closing his hands. Matthew was stiff and held his hands in tight fists. He appeared to have developed no self-soothing techniques. Matthew was referred to Rady Children's Hospital Developmental Screening "High Risk Infant" Clinic for a full developmental assessment, which was completed on December 18, 2014. The pediatrician referred Matthew to neurology, ophthalmology, occupational therapy and the Early Start Program.
The "High Risk Infant" assessment and/or a summary of this assessment do not appear in the record.
On May 27, 2015, the Agency held a meeting with T.G. and service providers to review Matthew's developmental assessment and to determine which services he needed. The following services were recommended for Matthew: individual occupational therapy, individual physical therapy, an evaluation at California Early Start, a mental health assessment, a neurological evaluation, and a follow-up eye examination. Matthew's neurological evaluation was scheduled for October 13, 2015.
There is no further mention of Matthew's scheduled neurological evaluation in the record.
Beginning in March 2015, T.G.'s visits with Matthew were unsupervised. She started scheduling Matthew's appointments and taking him to all of them. By the end of April, T.G. was caring for Matthew on weekends by herself. T.G. was very playful with Matthew and attentive to his needs. By July, Matthew was in T.G.'s care half-time. The Agency planned to place Matthew with T.G. for a 60-day trial visit. However, T.G.'s compliance with medication evaluations and drug testing began to be sporadic. Although the Agency had some concerns, the social worker stated that T.G. was very bonded with her son, consistently met his needs, and was proactive in securing any services or items that would benefit him.
Matthew's court-appointed special advocate (CASA) reported that Matthew was a charming one-year-old baby who was displaying some signs of developmental delays. He did not get on all fours or crawl, and was not pulling himself up to stand. He did not have age-appropriate grasping or reaching behavior. The CASA said that T.G.'s home was clean and neat, with books and toys for Matthew. Matthew and T.G. appeared to be attached to each other. Matthew had a difficult time leaving his mother when he returned to his foster home.
In July, the social worker scheduled a meeting to address concerns about T.G.'s obligation to attend a Dual Diagnosis Program and regularly meet with her psychiatrist. When the social worker informed T.G. that the Agency was suspending overnight visitation for that weekend, T.G. responded with obscenities. After the meeting, the Agency agreed to continue overnight visitation but reduced visitation by one night a week until T.G. complied with her case plan. In August, the social worker stated that, despite the Agency's concerns about T.G.'s lack of compliance with some aspects of her care plan, there was no evidence that Matthew was not safe in T.G.'s care. The social worker said that it would be detrimental to Matthew to suspend overnight visitation. At the 12-month review hearing in August, the court extended family reunification services to the 18-month hearing.
In September, T.G. was arrested for violating the no contact order with A.H. for the sixth time. She was jailed for three weeks. The Agency filed a petition to disallow unsupervised visitation. In November, the Agency withdrew its modification petition after T.G. agreed to have two-hour unsupervised visits twice a week with Matthew in a public setting.
In reports prepared for the 18-month review hearing in January 2016, the social worker reported that Matthew was a happy baby. He was walking but was having difficulty with his balance. Matthew's demeanor was flat and his speech was limited. The occupational therapist said that Matthew did not move his head very much and appeared "under responsive." Matthew was placed on a waiting list for California Early Start. T.G. expressed concern about her son's development. She said she could motivate him to do most things, but it seemed to her as if "something is not registering in his brain."
The CASA reported that Matthew was a sweet and active toddler. She was increasingly concerned about his development, which had been in decline since November 2015. The CASA was concerned that Matthew was not receiving the services that were necessary to ensure his development. Although Matthew "clearly adore[d] being with his mother," in view of T.G.'s instability, the CASA recommended that the court terminate reunification services and set a section 366.26 hearing to select a permanent home for Matthew.
The social worker reported that T.G. demonstrated a parental role with Matthew during visits and appropriately responded to his verbal and nonverbal signals. T.G. received positive evaluations from service providers, but she had problems communicating with the social worker in a calm manner. In March, the Agency learned that T.G. had made violent threats against a friend, who had obtained a restraining order against her. T.G. was becoming increasingly volatile and verbally abusive in communicating with the social worker and some of the service providers. The Agency imposed supervision requirements on visitation to mitigate the risk of exposing Matthew to violence. When the social worker informed T.G. that she could not attend Matthew's Early Start in-home services because the services had to take place at the foster home, T.G. said, "I'm going to ask you to leave because it's not safe for you to be in here."
In April, after a contested 18-month review hearing, the court found that T.G. had not mitigated the problems that arose from her mental health condition. Rather, the court observed those problems appeared to have increased during the three months preceding the 18-month hearing, and T.G. had not gained the insight that she needed to safely care for Matthew. The court terminated reunification services and set a section 366.26 hearing.
A new social worker was assigned to the case to assess Matthew's adoptability and the nature of the parent-child bond. The social worker reported that two-year-old Matthew was in good health. He was a very happy toddler. Matthew was walking independently but had difficulty with his balance. He began occupational therapy in January 2016, but did not independently work through his goals. Matthew started in-home speech and play therapy in May 2016. He was able to repeat words but did not talk spontaneously or respond to simple questions. Matthew was not independently engaging in developmentally appropriate activities. The social worker said that Matthew appeared to be a happy and well-adjusted child.
Matthew's caregiver was not interested in adopting him. A great-aunt began the adoption process but, after receiving harassing telephone calls from T.G., said that she was no longer interested in, or willing to, care for Matthew. No other relatives expressed interest in caring for Matthew.
The Agency screened qualified adoptive homes on Matthew's behalf in May, July, September and November 2016. The number of families that were approved or willing to adopt "a child matching Matthew's characteristics" ranged from 18 to 30, depending on the screening. The social worker concluded that Matthew was generally adoptable. He was an adorable, sweet two-year-old, though there were some concerns about his speech and motor development.
The Agency's terminology in its report and addendums alternately refers to the number of families that are approved to adopt and to the number of families that are willing to adopt. In this opinion, in the absence of any evidence to the contrary, we assume that the Agency is referring to the same subset of qualified potential adoptive families, and that the families that are approved to adopt a child matching Matthew's characteristics are also willing to adopt a child matching Matthew's characteristics.
The social worker observed visitation between T.G. and Matthew. Matthew would smile and run to T.G., saying "mama." T.G. encouraged Matthew to play. On two occasions, when T.G. was late, the social worker allowed the visits to continue because Matthew was happy to see his mother and ran to her when she arrived. At another visit, T.G. became upset with the social worker and began to curse at her. Matthew's demeanor changed. He began hitting and trying to kick his mother. At the end of another visit, when T.G. tried to give Matthew to the social worker, he began crying and shaking his head "no." He put his head on his mother's shoulder and cried, refusing to go to the social worker.
In October 2016, Matthew's occupational and speech therapy services were cancelled because he had not made any progress. He appeared to be motivated only by food. The service providers said that Matthew might need more intensive services but they wanted to delay providing additional services to him until he transitioned to his permanent placement. T.G. became upset and called the social worker names. She later apologized. The social worker referred Matthew for in-home services to address his recent tantrums.
T.G. became irate when there were scheduling issues with visitation. She yelled, cursed and threatened the social worker. The social worker was concerned with the amount of food that T.G. was giving Matthew. At a visit in October, T.G. allowed Matthew to eat almost an entire bag of chocolate donuts. Matthew threw up during his afternoon nap. In November, after a visit, Matthew cried and did not want to leave his mother. At another visit later that month, T.G. cursed and yelled at the social workers, and said, "I have court on Monday and I'm giving you a heads up that it's not going to end well. Tell them that they can expect to see me after the court hearing at this office. I'm going to bomb some shit and blow some shit up. Expect to see me on TV cause I'm going to kill at least a couple of people and I hope you're not working that day." The social worker observed that T.G.'s threats appeared to be escalating as her mental health deteriorated.
Matthew's CASA reported that Matthew had a development assessment at Rady Children's Hospital in December 2014. During the next six months, Matthew received physical and occupational therapy and met his goals. However, a reevaluation in December 2015 identified developmental deficiencies. Matthew did not engage in spontaneous play. He was placed on a waitlist for California Early Start services. In May, Matthew had another evaluation. Matthew was determined to have low to average cognition and verbal skills, delays in fine motor skills, a flat affect, and low arousal response. California Early Start services began in May. Matthew received in-home speech therapy and play therapy once a week. In July, Matthew started a 12-week occupational therapy group program at Rady Children's Hospital.
Matthew's December 2015 evaluation and/ or a summary of the findings are not in the record.
The May evaluation is not in the record nor is it summarized in the social worker's reports to the court. However, the CASA briefly described the findings in her report.
The section 366.26 hearing was held on November 28, 2016. The court admitted in evidence the Agency's report and addendums, and the CASA's report. The parties did not call any witnesses. T.G. argued that the Agency had not met its burden to show that Matthew was adoptable and questioned whether the families that were identified as willing to adopt a child like Matthew had been informed of his specific disabilities. She also argued that termination of parental rights would be detrimental to Matthew because they shared a beneficial parent-child relationship.
The court found that Matthew was adoptable and that maintaining a relationship with his mother would not substantially benefit him. At that point, T.G. became very upset. The court had T.G. removed from the courtroom, stating that her behavior was extremely aggressive to the court and to the lawyers in the case. The court found that although T.G. was loving and appropriate with Matthew during supervised visitation, she had not addressed her mental health issues. The court determined that adoption was in Matthew's best interest and terminated parental rights.
DISCUSSION
A
The Parties' Arguments
T.G. argues that there is not substantial evidence to support the finding that Matthew was likely to be adopted within a reasonable time if parental rights were terminated. She maintains that the Agency's assessment report does not substantially comply with statutory requirements because it fails to provide a full analysis of Matthew's developmental status, any prognosis of his future treatment needs, and any description of how his developmental problems may affect him in the future. T.G. contends that the Agency's screening for general adoptability does not constitute substantial evidence that Matthew is likely to be adopted because there is no showing that the families were informed of Matthew's specific disabilities. She also points out that the number of available adoptive families is meaningless without a showing of how many other children are waiting for an adoptive placement with the same families.
The Agency contends that T.G. has forfeited her claim that the assessment report does not comply with statutory requirements by failing to raise the issue at trial. The Agency argues that there is substantial evidence to support the adoptability finding. It maintains that this case is similar to In re Crystal J. (1993) 12 Cal.App.4th 407 (Crystal J.), in which this court held that there was ample evidence to support the finding of general adoptability even though the assessment report did not fully comply with the statutory specifications in section 366.21, subdivision (i). (Id. at p. 413.) The Agency argues that its assessment that there are 30 approved families in San Diego County that are qualified to adopt a child with Matthew's characteristics constitutes substantial evidence of his adoptability, and that T.G. forfeited this argument by failing to raise it at trial.
Minor's counsel joins the Agency's position and arguments.
B
Relevant Legal Principles and Standard of Review
Whenever the court orders a permanency plan selection and implementation hearing under section 366.26, the court is required to direct the social services agency to prepare an assessment as part of its report to the court. (§§ 361.5, subd. (g), 366.21, subd. (i), 366.22, subd. (c), 366.26, subd. (b).) Absent specified statutory exceptions, "[i]f the court determines, based on [the statutory assessment], and any other relevant evidence, by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption." (§ 366.26, subd. (c)(1).)
If the juvenile court finds that the child is likely to be adopted within a reasonable time, it is required to terminate parental rights unless the parent shows that termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1)(A) and (B), or that reasonable services were not offered or provided. (§ 366.26, subd. (c)(1), (2).)
A finding of adoptability requires "clear and convincing evidence of the likelihood that adoption will be realized within a reasonable time." (In re Zeth S. (2003) 31 Cal.4th 396, 406.) The question of adoptability usually focuses on whether the child's age, physical condition, and emotional health make it difficult to find a person willing to adopt that child. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) If the child is adoptable, there is a strong preference for adoption over alternative permanency plans. (In re Michael G. (2012) 203 Cal.App.4th 580, 588.)
Section 366.26, subdivision (c)(1) makes it clear that "[t]he assessment report is 'a cornerstone of the evidentiary structure' upon which the court, the parents and the child are entitled to rely. [Citations.] The Agency is required to address seven specific subjects in the assessment report, including the child's medical, developmental, scholastic, mental and emotional status. [Citation.] In addition, the assessment report must include an analysis of the likelihood that the child will be adopted if parental rights are terminated. [Citations.]" (In re Valerie W. (2008) 162 Cal.App.4th 1, 11 (Valerie W.).) "[I]f the assessment is incomplete in some respects, the court will look to the totality of the evidence; deficiencies will go to the weight of the evidence and may ultimately prove insignificant." (In re John F. (1994) 27 Cal.App.4th 1365, 1378.)
On review, we determined whether the record contains substantial evidence from which the juvenile court could find by clear and convincing evidence that the child was likely to be adopted within a reasonable time if parental rights were terminated. We give the court's adoptability finding the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of the judgment. (Valerie W., supra, 162 Cal.App.4th at p. 13.) We do not, however, limit our review to the evidence favorable to the respondent. (People v. Johnson (1980) 26 Cal.3d 557, 577.) We resolve the issue in view of the entire record without limiting our appraisal to isolated bits of evidence selected by the respondent, considering whether the evidence of each of the essential elements is substantial in view of the other facts in the record. (Ibid.).
C
T.G. Has Not Forfeited the Issue of the Adequacy of the Section 366 .26 Assessment to
Support the Adoptability Finding
The Agency's contention that T.G. has forfeited the right to challenge the sufficiency of the assessment report on appeal is without merit. First, the Agency acknowledges that T.G. raised the issue of adoptability at trial but argues that she raised this issue in a "cursory" manner. We reject the Agency's suggestion that the issue was not adequately raised at trial. Second, the Agency misconstrues T.G.'s argument by claiming that she is arguing that the assessment report does not comply with statutory requirements. T.G.'s argument is that there is not substantial evidence to support the adoptability finding. The sufficiency of the assessment report is relevant to this issue. (Crystal J., supra, 12 Cal.App.4th at p. 413 [deficiencies in the assessment report surely go to the weight of the evidence, and if sufficiently egregious may impair the basis of a court's decision to terminate parental rights].)
Third, even if T.G. had not raised the issue at trial, the Agency has the burden of proving by clear and convincing evidence that the child is likely to be adopted in a reasonable time. T.G. was therefore not required to object to the lack of substantial evidence in order to preserve the issue for appeal. (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1559-1561 [disapproving Crystal J., supra, 12 Cal.App.4th at pp. 411-412, on this point]; see People v. Butler (2003) 31 Cal.4th 1119, 1126 & fn. 4 [noting that challenge to sufficiency of the evidence to support finding of adoptability is not forfeited by lack of objection below].) We conclude that T.G. has not forfeited the issue of whether the assessment report, in view of the other information in the record, constitutes substantial evidence to support the finding that Matthew was likely to be adopted within a reasonable time if parental rights were terminated.
D
There Is Not Substantial Evidence to Support the Juvenile Court's Finding that
Matthew is Likely to Be Adopted Within a Reasonable Time
Our review of the record shows that there are serious concerns about Matthew's developmental status, and that therapy services did not ameliorate the developmental deficiencies. When Matthew was six months old, T.G. and his caregiver expressed concerns about the fact that he did not reach for objects nor open and close his hands. His body was stiff and he had no ability to self-soothe. In December 2014, Matthew received a "High Risk Infant" developmental assessment. As a result, he was referred to neurology, ophthalmology, occupational therapy and the Early Start Program. Neither this developmental assessment, nor a summary of its findings, is included in the record.
Matthew's neurological evaluation was scheduled for November 13, 2015. The record does not contain any information about whether this evaluation took place and if so, whether there were any findings regarding Matthew's neurological functioning. The CASA reported that, at one year of age, Matthew was not yet getting ready to crawl or crawling, and he was not pulling himself up to a standing position. In addition, he did not exhibit age-appropriate grasping or reaching behavior.
The CASA, but not the social worker, reported that Matthew had another developmental evaluation in December 2015, which showed that he had continued to have developmental delays despite receiving services. Neither this evaluation, nor a summary of its findings, is included in the record. At 18 months, Matthew was walking but had balance problems. His demeanor was flat and he repeated words but did not speak spontaneously. He appeared to be "under responsive." In May 2016, Matthew had another developmental evaluation, which again identified developmental problems. This evaluation was not mentioned in the Agency's court reports.
In the assessment report, under the heading "Developmental," the social worker wrote:
"Matthew is a very happy toddler. Matthew is walking independently, but still has some difficulty with his balance. He began occupational therapy in January 2016 and was slated to have a total of 12 sessions to be held every other week. Matthew was meeting his therapy goals, but there was some concern that Matthew was not independently working through his goals. [T.G.] often attends the sessions and motivates Matthew with food and snacks. When there are no snacks or food, Matthew would become upset and refuse to engage or stop participating in the activity. The caregiver was notified by Kid Start on 7/6/16 that Matthew has been entered in a group session occupation therapy program. He will begin on 7/14/16 and meet for 12 weeks every Thursday. [T.G.] can attend and watch from behind the two way
glass. However, parents/caregivers are not invited to actively participate in the classes.
"Matthew began in-home speech and play therapy in May 2016. These meet separately once a week. The speech therapy is to help work with Matthew on language development. He is able to repeat various words, but does not independently talk or respond to simple questions, that he knows the language for. Play therapy is to address the fact that Kid Start had some concerns about Matthew not independently engaging in activities that are developmentally appropriate for his age. When toys are presented to Matthew, there are often times that he will just look at the toy and has to be encouraged by an adult to play with it. There appeared to be a lack of motivation unless presented with food.
"Matthew is not a client of the Regional Center."
In an addendum submitted more than four months later, the social worker reported that Matthew's occupational and speech therapy services were cancelled due to his lack of progress, and that he may need more intensive services.
The social worker's assessment concerning Matthew's development describes the services that were provided to him and his response to those services. The assessment does not describe his diagnosis, condition or prognosis. In an addendum report, the social worker said that Matthew may require more intensive services, but did not describe his treatment needs or identify the services that may be needed.
This case is similar to Valerie W., in which this court held that the deficiencies in the assessment report as to the child's condition were sufficiently egregious to undermine the basis of the court's decision to terminate parental rights. (Valerie W., supra, 162 Cal.App.4th at pp. 14-15.) In that case, the record suggested that the child may have a serious genetic or neurological disorder. The Agency did not provide information about the child's condition, prognosis or treatment needs in its assessment. In addition, there was conflicting and inadequate information about the potential adoptive family. This court held that the court's finding that the child was likely to be adopted within a reasonable time was not supported by substantial evidence. (Ibid.)
In this case, the record shows that Matthew has significant developmental delays that were not ameliorated by a variety of services provided to him during an extended period. Despite receiving those services, Matthew's development had been in decline since November 2015. The CASA said that she was increasingly concerned about his development. According to T.G., it seemed as if "something [was] not registering to [Matthew's] brain." Although Matthew had undergone several evaluations, none of those evaluations appear in the record. The social worker did not summarize or describe the results of Matthew's developmental assessments and evaluations at any time during the proceedings. The only information in the record about Matthew's condition was reported by the CASA, who said that, in May 2016, it was determined that Matthew had low to average cognition and verbal skills, delays in fine motor skills, a flat affect, and low arousal response. In view of information showing that Matthew's developmental delays are persisting and even worsening, and that services have not been effective, a cursory description of Matthew's condition, without any diagnosis, prognosis, or treatment needs, does not support a finding, by clear and convincing evidence, that Matthew was likely to be adopted within a reasonable time if parental rights were terminated.
The Agency acknowledges that there is no showing that Matthew is specifically adoptable. Matthew's foster parents, who had cared for Matthew since he was two months old, were not interested in, nor willing to, to adopt him. A relative withdrew from consideration several months before the original August 2016 hearing date, stating that she was not interested in caring for Matthew.
We are not persuaded by the Agency's contention that the adoptability finding is supported by the social worker's report that there are 30 families that are approved to adopt "a child matching Matthew's characteristics." The reference to Matthew's "characteristics" is simply too vague to support a finding of substantial evidence in the absence of required information about Matthew's developmental status, diagnosis, prognosis and treatment needs. In addition, there is no evidence that any of these families were informed about Matthew's developmental issues, any diagnosis, his treatment needs or prognosis or, and having been so informed, expressed an interest in adopting him.
We reject the Agency's argument that T.G. has forfeited her argument claiming that this statistic is inadequate to support the adoptability finding. The Agency is relying on this statistic to support its claim that there is substantial evidence to support the finding that Matthew is likely to be adopted within a reasonable time.
Further, the number of families that are approved to adopt a child matching Matthew's characteristics is not adequate to establish a likelihood of adoption without a showing of how many children the Agency is seeking to place with those families and what the Agency's rate of success has been when the number of children matching Matthew's characteristics seeking adoption exceeds the number of families in San Diego County that are qualified to adopt such a child. (See, generally, People v. Axell (1991) 235 Cal.App.3d 836, 868 [where evidentiary foundation is adequate and statistical independence of the characteristics at issue adequately proved, objection to statistical conclusions goes to weight rather than admissibility].) Thus, a screening of the number of approved potential adoptive families, by itself, does not constitute substantial evidence to support a finding that Matthew is generally adoptable, particularly where there are significant unanswered questions about his developmental status, diagnosis, prognosis and treatment needs.
For example, if there were 30 children seeking adoption by 30 approved families, it would be very likely that each child would find an adoptive placement within a reasonable time. If, however, there were 300 children seeking adoption by 30 approved families, the likelihood that a child would be adopted by one of those families would be far less certain. --------
We conclude that there is not substantial evidence to support the finding that Matthew was likely to be adopted within a reasonable time if parental rights were terminated. The record suggests that Matthew has persistent developmental delays that have not been ameliorated by services. The assessment report prepared for the section 366.26 hearing lacks information about Matthew's diagnosis, prognosis and future treatment needs. Matthew's developmental assessments and evaluations are missing from the record. There is nothing in the record to suggest that any of the screened families expressed any interest in adopting Matthew during the eight months between the referral hearing and the section 366.26 hearing. Finally, the Agency's report about the number of families in San Diego County that are approved to adopt a child matching Matthew's characteristics, by itself, lacks an adequate evidentiary basis to show a substantial probability of adoption.
DISPOSITION
The finding of adoptability and the order terminating parental rights are reversed. The finding that the parent-child beneficial relationship exception does not apply is necessarily reversed. The court is instructed to order the Agency to file an assessment report that fully comports with statutory requirements, and to hold a new section 366.26 hearing.
AARON, J. WE CONCUR: MCCONNELL, P. J. BENKE, J.