Opinion
A157717
12-20-2019
In re L.R., a Person Coming Under the Juvenile Court Law. SAN FRANCISCO HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. T.R., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. JD16325)
T.R. (mother) appeals an order of the juvenile court terminating her parental rights over her now three-year-old-daughter, L.R., who has been a dependent of the juvenile court since infancy.
Mother raises two issues. She contends the juvenile court erred by denying her an evidentiary hearing on a Welfare and Institutions Code section 388 petition she filed asking the court to reinstate her reunification services based upon changed circumstances. She also contends there is no substantial evidence that her toddler daughter is adoptable. We reject both claims of error and affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
BACKGROUND
The San Francisco Human Services Agency (the Agency) initiated these dependency proceedings when L.R. was three weeks old, after a mandated report that mother had tested positive for methamphetamines twice during her pregnancy, though negative for drugs at the baby's birth, and hospital staff was concerned for the infant's safety and welfare if mother were to relapse into drug use. The juvenile court sustained allegations that mother had a substance abuse history based on the drug use during her pregnancy and mental health issues that require ongoing assessment and treatment (§ 300, subd. (b)), and had failed to reunify with L.R.'s two older half-siblings as a result of her substance abuse issues (§ 300, subd. (j)), and it adjudged L.R. a dependent of the court. The court ordered the baby placed in-home with mother with family maintenance services. About a year later, though, in September 2017, the one-year-old baby was removed from mother's custody, detained and placed in foster care based on supplemental allegations (pursuant to a section 387 petition) that mother had failed to benefit from prior services, because she had relapsed into drug use and was hospitalized on a section 5150 hold after a violent altercation with her family. Mother received reunification services for approximately eight months, until the court terminated them on August 16, 2018. At that time the court also ordered that visitation would remain suspended until mother tested clean for drugs. The Agency had previously suspended visitation over concerns about ongoing drug abuse after mother was discharged early from a treatment program.
L.R. was born July of 2016.
After several continuances not pertinent here, the matter then proceeded to a section 366.26 hearing on April 19, 2019.
Four days before the continued hearing date, mother filed a petition pursuant to section 388 (JV-180) asking for modification of the order terminating her reunification services and/or of the order suspending her visitation. In general terms, it was premised on allegations she had begun therapy, secured a court-ordered psychological evaluation and had entered a number of drug treatment programs where she had regularly tested negative for drugs. The same day, the court entered an order setting the matter for a hearing. Then, at the beginning of the April 19, 2019 hearing, it entertained argument by the parties as to whether mother's petition stated a prima facie case of changed circumstances that would require an evidentiary hearing, ruled that the petition failed to do so and denied the petition.
The court then proceeded to conduct the section 366.26 hearing. It received into evidence the written assessment report the Agency had prepared several months earlier and heard testimony from the social worker, who supplemented the information contained in that report with updated and additional information about the minor and her foster parents. Upon the Agency's recommendation, with which the minor's counsel concurred, the court concluded after argument that L.R. was adoptable and terminated parental rights. This appeal followed.
DISCUSSION
I.
The Section 388 Petition
Under section 388, a parent may petition the juvenile court to change, modify or set aside a prior order "upon grounds of change of circumstance or new evidence." (§ 388, subd. (a)(1).) The court must order a hearing on such a petition "[i]f it appears that the best interests of the child . . . may be promoted by the proposed change of order." (§ 388, subd. (d).) Here, mother argues the court erred by denying her an evidentiary hearing on her section 388 petition, in three ways.
First, she argues the court had already indicated in a Judicial Council form order that an evidentiary hearing would be held, which was the equivalent of a ruling that her petition was facially sufficient to require one, and so the court could not thereafter dispense with an evidentiary hearing. There was no abuse of discretion. The juvenile court made clear, orally at the April 19, 2019 hearing, that it had intended to afford the parties a hearing only in order to argue about whether the petition stated a prima facie case sufficient to require an evidentiary hearing, which it was permitted to do under the California Rules of Court. We can reasonably infer from these comments, therefore, that when the court entered the hearing date in item 4 of the Judicial Council form rather than in item 3 (see footnote 3, ante), which it entered as an order on April 15, 2019, it was simply an inadvertent error. The authority mother relies upon, In re Alayah J. (2017) 9 Cal.App.5th 469, involved no such facts and involves an entirely different issue: it stands for the proposition that a court cannot grant an evidentiary hearing on a parent's section 388 petition conditionally. (See Alayah J., at p. 480 [abuse of discretion to order that evidentiary hearing on mother's section 388 petition would take place only if her parental rights were not first terminated at section 366.26 hearing held on same date].)
That form (JV-183, entitled "Court Order on Form JV-180, Request to Change Court Order") contains four options for the court to choose from, fill out and enter as its order when ruling on a section 388 request. Items 1 and 2 provide for the outright granting (item 1) or denial (item 2) of the request. Item 3 states that "[t]he court orders a hearing on whether the court should grant or deny an evidentiary hearing," and contains blanks for the court to specify the hearing date, time and location. The juvenile court left this portion of the form blank, and instead entered a hearing date and time on the next (and last) page of the form, in item 4. That final portion of the form states: "The court orders a hearing on the form JV-180 request because the best interest of the child may be promoted by the request."
Rule 5.570 specifies that if the juvenile court does not summarily deny the petition on an ex parte basis, it must either "(1) order that a hearing on the petition be held within 30 calendar days after the petition is filed; or [¶] (2) order a hearing for the parties to argue whether an evidentiary hearing on the petition should be granted or denied. If the court then grants an evidentiary hearing on the petition, that hearing must be held within 30 calendar days after the petition is filed." (Cal. Rules of Court, rule 5.570(f).)
Furthermore, even if we were to construe the court's April 15, 2019 order as a ruling the petition stated a prima facie case, the court had inherent authority to change its ruling and entertain argument on that issue anyway. That was the precise holding of In re G.B. (2014) 227 Cal.App.4th 1147 (G.B.) which affirmed the denial of an evidentiary hearing after the court had set the matter for a hearing using a prior version of the same Judicial Council form order used here. G.B. reasoned that, even construing the written order there as a ruling the mother had stated a prima facie case of changed circumstances entitling her to an evidentiary hearing, there is no "blanket" rule "that a juvenile court is forever bound by a box it checks on a form order suggesting a certain finding." (Id. at p. 1160.) Rather, it said, "[a] juvenile court has the authority to change, modify, or set aside a previous order sua sponte if it decides that a previous order was 'erroneously, inadvertently or improvidently granted.' " (Ibid.) So G.B. upheld the procedure by which the section 388 petition was handled in that case, and found no abuse of discretion, and it is practically on all fours with what happened here. (Ibid.)
Mother acknowledges the court's authority to change its prior order under G.B., but argues that the court didn't acknowledge any error in its prior order or sufficiently explain why it was changing that order. We think it is evident from what the court said on the record that the court did make an error in filling out the form ("I set it for a hearing to determine [a] prima facie case. I haven't made that finding"). Indeed, even mother's counsel below conceded that the Judicial Council form order is "a puzzling form." Mother cites no legal authority that any express acknowledgment of error or explanation was required.
For the first time in her reply brief, she also argues that the court could not change its prior order without notice and an opportunity to be heard but no such notice was given. We deem this question forfeited and do not consider it, because it was not asserted in her opening brief. (See, e.g., Hurley v. Department of Parks & Recreation (2018) 20 Cal.App.5th 634, 648, fn. 10.) Furthermore, it does not appear that mother's counsel raised this objection below at the hearing when the court indicated it would entertain argument on whether the petition stated a prima facie case despite what its written order might have said, which also forfeits the issue.
Next, mother argues the court abused its discretion substantively, because her petition did state a prima facie case that required an evidentiary hearing under section 388. Relatedly, she contends (in a third argument) that because the petition stated a prima facie case, the juvenile court also deprived her of procedural due process when it denied her an evidentiary hearing. Here again, we conclude there was no error.
To warrant an evidentiary hearing, a parent must " 'sufficiently allege both a change in circumstances or new evidence and the promotion of the child's best interests.' " (In re K.L. (2016) 248 Cal.App.4th 52, 61 [affirming denial of evidentiary hearing].) " 'A prima facie case is made if the allegations demonstrate that these two elements are supported by probable cause. [Citations.] It is not made, however, if the allegations would fail to sustain a favorable decision even if they were found to be true at a hearing. [Citations.] While the petition must be liberally construed in favor of its sufficiency [citations], the allegations must nonetheless describe specifically how the petition will advance the child's best interests.' [Citation.] In determining whether the petition makes the required showing, the court may consider the entire factual and procedural history of the case." (K.L., at pp. 61-62.) We review the denial of an evidentiary hearing for abuse of discretion. (Id. at p. 62.)
It is unnecessary to discuss the "best interest" prong of this standard, because the court did not abuse its discretion in ruling that mother failed to allege a prima facie case of changed circumstances. It is true that after reunification services were terminated, mother took some positive steps, such as engaging in therapy and obtaining a court-ordered psychological evaluation. (But see G.B., supra, 227 Cal.App.4th at p. 1160 [allegations that mother belatedly underwent a psychological evaluation, "while commendable," weren't sufficient to state a prima facie case under section 388 to establish mother's right to reunification services].) Yet the record reflects that she fundamentally failed to allege any lasting or substantial change in her drug addiction. Mother asserts she alleged eight months of sobriety, but in fact her own evidence demonstrated that as recently as three months before the court denied her section 388 petition, she had tested positive for drugs again (on January 24, 2019). That was when she was admitted into a substance abuse treatment program in San Francisco, which was the third residential treatment program she had tried since the court terminated her reunification services. Three months of sobriety is not "real reform" given the nature of drug addiction. (See In re Kimberly F. (1997) 56 Cal.App.4th 519, 531, fn. 9.) Apart from mother's generalized assertion that "I have been living a clean and sober life," her petition also contained no information about her current sobriety, because the most recent clean drug test result she included with her papers, from her various short-lived stints in drug rehabilitation, was two months old (from February 20, 2019). The court noted this omission at the hearing. Furthermore, there was no indication in her papers she was currently undergoing any treatment for drug abuse. And at the hearing, she herself told the court she was not currently in any treatment program. She also told the court that she just didn't like inpatient treatment programs because they were too structured an environment, which is why she had been jumping from program to program.
We cannot summarize the picture any better than the Agency, who puts it this way at page 32 of its respondent's brief: mother "had an extensive history of intensive drug abuse, beginning at the age of 14 years old. She failed to reunify with two of her older children due to her substance abuse. She had failed to successfully complete any substance abuse treatment program during her reunification period. Even after reunification services were terminated, she entered two different programs, but failed to complete either program. [Mother] had a pattern of entering treatment, testing negatively for illegal substances, leaving treatment and using drugs again. Given her lengthy history of drug use, as well as prior periods of sobriety after engaging in treatment, she failed to demonstrate compelling evidence of a genuine change of circumstances."
We agree. The Agency cites two decisions that upheld the denial of an evidentiary hearing on section 388 petitions in quite similar circumstances. Both cases, like this one, involved section 388 petitions filed on the eve of permanent planning hearings by parents with long histories of substance abuse, who failed to reunify with older siblings and had only recently begun to seek substance abuse treatment but had not achieved lasting sobriety. (See In re C.J.W. (2007) 157 Cal.App.4th 1075, 1082 and In re Mary G. (2007) 151 Cal.App.4th 184, 206.) Mother argues these cases are distinguishable, principally because the children in those cases came into protective custody because of parental neglect whereas here there is no evidence mother ever neglected her daughter. We do not view that as a meaningful distinction. Both cases amply support the court's exercise of discretion here. (See also In re Cliffton B. (2000) 81 Cal.App.4th 415, 423-424 [affirming denial of section 388 petition filed on the day of the section 366.26 hearing; father's seven months of sobriety since most recent relapse "while commendable, was nothing new" and "was not enough to reassure the juvenile court that the most recent relapse would be his last," in light of long history of drug use and recurrent pattern of relapses]; In re Ernesto R. (2014) 230 Cal.App.4th 219, 223 [similar holding; "To support a section 388 petition, the change in circumstances must be substantial"].) In the only authority mother cites to support her argument that her sobriety reflected a change of circumstances, the parent seeking the return of her children had tested clean in random weekly drug tests for over two years. (See In re Aljamie D. (2000) 84 Cal.App.4th 424, 432 [reversing denial of evidentiary hearing]; see also In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1413 [mother held entitled to evidentiary hearing based on changed circumstances where petition alleged, inter alia, abstinence from substance abuse for more than a year].) The facts alleged here are not at all comparable.
It is unnecessary to address the parties' arguments as to whether the petition sufficiently alleged that a change in the court's order was in L.R.'s best interests. Because the court did not abuse its discretion in ruling mother failed to allege changed circumstances, there was no error in denying her a full evidentiary hearing on her petition.
II.
Adoptability
Mother next contends that the court's finding that L.R. is likely to be adopted within a reasonable time (§ 366.26, subd. (c)(1)) is not supported by substantial evidence. She contends the Agency's written assessment report contained insufficient information to support a finding of adoptability, principally because it contained insufficient information about L.R.'s current foster parents who wanted to adopt her and insufficient (and even "misleading") information about L.R.'s mental health issues. And, she contends, testimony adduced at the hearing did not cure these problems.
A. Factual Background
The Agency filed its report for the section 366.26 hearing on November 19, 2018, about three months after L.R. had been moved to her current foster family. The report recommended terminating parental rights, stated that adoption was the goal but that no adoptive home was yet identified. It said L.R.'s prior foster family had been committed to adopting her but had changed its mind, and identified three other options: it said her current foster family, described as "an FFA approved foster home," was committed to adopting her, and it said another adoptive family identified through something called "Family Builders" (presumably, an adoption agency) had expressed interest in adopting her and so had the paternal grandmother of her half-siblings. The report said the Agency was "pursuing the proposed relative prior to committing to the concurrent adoption plans," and that the relative had a November 30, 2018 deadline to "become RFA approved." The report said there were no concerns noted with L.R.'s physical health. Regarding her "mental/emotional/behavioral status," it said that L.R.'s initial assessment did not suggest any "medical necessity" but that the minor was assessed a second time "due to some behavioral concerns reported from the previous foster family," which resulted in a referral to weekly individual therapy. The little girl was not prescribed any psychotropic medications. She was enrolled in a local head start program, and had not had any contact with her mother for more than a year.
The social worker clarified in her testimony that "meeting medical necessity" means being evaluated as potentially benefitting from some type of therapeutic intervention.
The section 366.26 hearing took place five months later, on April 19, 2019. By that point, L.R. had been living with her current foster family for about nine months.
The social worker testified, updating the court with more current information and filling in some gaps the written assessment report had not covered.
According to the social worker, L.R. was removed from her mother in September 2017 (at about one year of age) and placed in an initial foster home where she was doing quite well and had no behavioral issues. But there was some concern, only vaguely described at the hearing, that the home wasn't caring for her properly, and so the Agency moved her after less than two months to a new foster home, on November 22, 2017 (when she was about one year and four months old).
L.R. lived with her second foster family for approximately nine months, until August 24, 2018, which was shortly after she turned two years old. That family initially had wanted to adopt her and was very committed to doing so, and the Agency was considering them as a potential concurrent placement for potential adoption while it simultaneously was evaluating "a lot" of family members too. But the second placement ended abruptly after the foster mother sent a disturbing email to the social worker giving seven days' notice asking for L.R.'s removal, complaining bitterly about the young child in a manner the juvenile court found extremely inappropriate. The next day, Agency removed L.R. and placed her with a new foster family, with whom she had been living for the past nine months.
The social worker testified that L.R. was the first foster child the second family had hosted, and in her opinion they weren't equipped to handle or understand the kinds of experiences and trauma foster children may be exposed to. From the beginning, she testified, that the prior family had "struggled" with L.R.'s relationship to their own biological daughter. They reported ongoing frustration with the young child's behaviors, including what they described as her "passive-aggressive tendencies" and her "baby bullying tendencies." They also felt the little girl was "purposely and maliciously being rude, intentionally not minding and ignoring the foster mother." After L.R. was removed from their home, the Agency discovered they had even given L.R. a new name and had insisted she use it. The social worker testified that can be very confusing, and the Agency even spoke to the family about it after the fact. And she testified it "obviously" impacted L.R., who struggled with her name in her new foster home and would tell her current foster parents to use the name the previous family had assigned to her.
L.R.'s current caregivers reported no similar concerns.
The juvenile court said it was disturbed by all of this testimony about the previous family, and commented, "I felt like I received trauma today just hearing about their behavior towards this little girl who was two, even less than two years old. I don't know how a family could ever feel that there was . . . passive-aggressive, toxic . . . behavior by such a little child and how they could confuse her by changing her name and all the other things I heard about today. It was troubling, to say the least."
L.R.'s most recent mental health assessment was performed about a month after her placement was changed, in September 2018. It said she had symptoms of post-traumatic stress disorder, including that she would become dissociative and unresponsive for up to 30 to 40 minutes at a time, had sleep disturbances, psychosomatic symptoms of self-soothing during naptime, holding in her bowel movements and difficulty attaching herself to foster parents without "miscueing."
The social worker described how none of these things were posing problems in L.R.'s current foster family, where she was starting to improve. Her current foster family was meant to be a temporary respite placement after the sudden removal from her prior foster home, but the family grew very fond of L.R. and "stepped up immediately" to provide care for her. She testified "[S]ince that time they have advocated for her mental health, her physical health, her education. They've gotten her enrolled in a head start program, are very engaged with the school, often going there . . . if there's any behavioral issues or additional support needed." She testified that L.R. had been displaying "some hitting behaviors at school," which were partly in reaction to another child in her daycare program, and on one occasion (in October 2018), tried to hit another child in the midst of a tantrum and banged her own arm so hard it had to be x-rayed to rule out a broken a bone. And, she testified, "there's some belief that . . . hasn't been confirmed but that she might have some type of . . . sleep apnea or some breathing problems which possibly could contribute to night terrors. It's just an idea. And so we're in the process of getting her assessed for that. And she is committed to working with the current therapist through weekly individual therapy and . . . more if needed." The social worker also described how she would observe the new foster mother use techniques recommended to her by L.R.'s family therapist and be able to soothe L.R. in moments of frustration, talking with the child about her feelings, calming her down "and they end with a hug." She testified that those efforts have "[a]bsolutely" helped to decrease L.R.'s behavioral issues.
The social worker testified that the current foster family wanted to adopt L.R. and had taken steps to accomplish that by having "completed the home adoption approval process." She hadn't seen the actual adoptive home study, but never received any indication that they failed it. In addition, the family was in the process of adopting two other children through the Agency and they would not have been able to pass an adoptive home study for those children had there been any concerns noted about things like a criminal record of anyone living there. The foster mother was herself a C.P.S. worker, employed by another county, was described as "[v]ery loving" toward L.R., and had three of her own children: one adoptive child and two adult children who are licensed through the foster family agency.
The social worker testified that L.R. had been experiencing night terrors but that they had diminished with the help of weekly therapy, that the foster mother was working supportively with L.R.'s therapist, and that L.R. had no other known medical issues. Her current caregivers are committed to adopting her, the child's night terrors did not dissuade them from wanting to adopt her, and neither did L.R.'s need for weekly family therapy or any of her hitting behaviors or the tantrums. In her opinion, L.R. was adoptable, including because of the child's age and the fact that there were people who were willing to adopt her.
The subject first arose during the section 388 portion of the hearing, where mother's counsel alluded to the fact that L.R. had been having night terrors.
She also clarified that in her November 2018 report, she wrote that there was no adoptive home yet because the Agency hadn't yet made a recommendation for an adoptive placement. At the time, it was in the process of first assessing all family members who had expressed interest in adopting L.R. (and "are still assessing relatives"), even though her foster family had expressed interest in adoption.
After the social worker testified, mother objected that the written assessment report was deficient in that it failed to comply with the statutory requirements in a number of ways (see generally § 366.22, subd. (c)(1)). The juvenile court asked if she wanted a continuance to obtain an updated written report, but mother's counsel declined a continuance.
After hearing argument by the parties, the court expressed some concern about omissions in the written report about the prospective adoptive parents and some of L.R.'s medical and emotional history, but noted that the testimony addressed those subjects "in great detail." It declined to delay permanency for L.R. simply because some information was presented orally rather than in writing, found by clear and convincing evidence that L.R. is likely to be adopted, and terminated parental rights.
B. Analysis
"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. [Citations.] The finding of adoptability is reviewed under the substantial evidence test." (In re K.B. (2009) 173 Cal.App.4th 1275, 1290.) "Although a finding of adoptability must be supported by clear and convincing evidence, it is nevertheless a low threshold: The court must merely determine that it is 'likely' that the child will be adopted within a reasonable time. [Citations.] We review that finding only to determine whether there is evidence, contested or uncontested, from which a reasonable court could reach that conclusion. It is irrelevant that there may be evidence which would support a contrary conclusion." (Id. at p. 1292; § 366.26, subd. (c)(1).) "We give the court's finding of adoptability the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of affirming." (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1562.) Moreover, deficiencies in an adoption assessment report merely go to the weight of the evidence. (In re Crystal J. (1993) 12 Cal.App.4th 407, 413 [holding that "there was ample evidence to support the court's findings and judgment" notwithstanding fact that assessment reports contained no information about criminal record of potential adoptive parents or their financial stability].) "Even if 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; see also, e.g., In re Dakota S. (2000) 85 Cal.App.4th 494, 506 [declining to reverse judgment establishing permanent plan of guardianship due to deficiencies in preliminary assessment report, where "the parties fully litigated, explored, and tested the foster parent's suitability as a guardian, and the juvenile court had ample information before it in making its ruling"].)
Although we share some of the juvenile court's concerns about omissions in the (somewhat outdated) written assessment report the Agency prepared in November 2018, it is unnecessary to examine those deficiencies, because the overall record contains substantial evidence that L.R. is adoptable. Her emotional and behavioral needs were not severe, and her symptoms had been improving in therapy with the benefit of her foster mother's support. She was otherwise healthy, and mother acknowledges that her "young age and generally good physical condition weigh in favor of adoptability." L.R.'s emotional and behavioral issues, although not fully discussed in the assessment report, were fully aired at the hearing and did not preclude a finding of adoptability. (See, e.g., In re A.A. (2008) 167 Cal.App.4th 1292, 1312-1313 [upholding finding that siblings aged three and four were adoptable despite developmental delays, a diagnosed attachment disorder and behavioral issues that required "a high level of parental intervention," where children had made significant progress in their current placement, their current caregivers wanted to adopt them and former relatives also had requested adoptive placement]; In re I.I. (2008) 168 Cal.App.4th 857, 866, 871 [upholding finding that four siblings were adoptable, including nearly two-year-old boy with developmental delays who was extremely hyperactive and prone to tantrums, where "[t]he evidence showed that despite negative behaviors, the children were all healthy and had no major medical issues," evidence showed the toddler had become calmer and could be more easily redirected and "[h]is very young age further supported the finding of adoptability"].)
Similarly, questions as to whether her foster parents (or either of them) had been, or could be, approved as an adoptive placement also did not preclude a finding she is adoptable. In the first place, there is substantial evidence the foster parents had been approved, or at least likely would be approved. But even without such evidence, we would affirm. Where the existence of a prospective adoptive parent who is willing to adopt the child is not the sole basis for concluding a minor is likely to be adopted, then questions as to that person's suitability to adopt the child are legally irrelevant. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1651.) In such a case, it is irrelevant whether the prospective adoptive parent has been approved for adoption through the adoption home study process, or is likely to be approved. (See id. at pp. 1648-1649.) Here, as in Sarah M., the willingness of L.R.'s foster parents to adopt her supports a determination she is likely to be adopted within a reasonable time, but their availability as prospective adoptive parents is not essential to that conclusion. (see id. at p. 1651.) Like the three-year-old boy in that case who came from an extremely abusive home, L.R. exhibited behavioral problems but they were diminishing in her current foster home with the benefit of weekly therapy. (See Sarah M., at p. 1646.) And like that child, her young age, good physical health and progress in therapy are all attributes that indicate she is adoptable. (See id. at p. 1651.) The fact her foster family wants to adopt her further supports that conclusion but "is not essential to that conclusion." (Ibid.; see also, e.g., In re Gregory A., supra, 126 Cal.App.4th at p. 1564 [affirming finding that nine-year-old boy diagnosed with ADHD was adoptable even though current caregivers who wanted to adopt him had not completed the adoption approval process; minor's physical and emotional health was good and his ADHD was being addressed through therapy and medication].) Moreover, her current foster family was not the only family who expressed interest in adopting her; at least two other families had done so which further supports a finding of adoptability. (See In re Jennillee T. (1992) 3 Cal.App.4th 212, 224.) Accordingly, it was legally immaterial whether her current foster family could or would be approved to adopt her (see Sarah M., at p. 1651), and therefore so too were omissions in the assessment report bearing on that question (such as the report's failure to address whether they have a criminal history, or specify precisely which of the two adult contemplated adopting her).
The social worker testified the family "completed the home adoption approval process" with regard to L.R., from which we can reasonably infer they were actually approved for adoption. A reasonable inference from her testimony is that the family also passed an adoptive home study for two other children they were in the process of adopting. And the foster mother was a C.P.S. worker for San Joaquin County.
Mother asserts "the court made a finding of specific, rather than general adoptability, which suggests it doubted the child's emotional and behavioral issues were 'minor' and that it based its adoptability finding on the status of the current foster parents." We disagree. "To the extent [mother] contend[s] the trial court solely relied on the caregivers' willingness to adopt in reaching its decision, we are not persuaded. The juvenile court's reasoning is not a matter for our review. [Citation.] It is judicial action not judicial reasoning which is the proper subject of appellate review." (In re A.A., supra, 167 Cal.App.4th at p. 1313.)
Finally, not properly captioned under a separate argument heading as it should be (see Cal. Rules of Court, rule 8.204(a)(1)(B)), mother asserts that "[t]he hearing should have been continued for an updated, complete report which included appropriate assessments regarding the child's status and the prospective adoptive parents." We are not required to consider this contention. (See, e.g., Dinslage v. City & County of San Francisco (2016) 5 Cal.App.5th 368, 377, fn. 3 ["To the extent [appellant's] opening brief contains arguments not set out under distinct headings, we decline to entertain them"].) In any event, it is without merit. When asked by the juvenile court if she wanted a continuance for that purpose, mother's counsel expressly declined one. The parties disagree as to whether those actions constitute invited error, but the point is that mother expressly relinquished her right to obtain a continuance. She didn't want one. "A party who expressly agrees to an action taken by the trial court or in the trial proceedings cannot challenge that action on appeal." (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2019) ¶ 8:250.)
DISPOSITION
The judgment is affirmed.
/s/_________
STEWART, J. We concur. /s/_________
RICHMAN, Acting P.J. /s/_________
MILLER, J.