In re L.G.

Filed 6/20/08 In re L.G. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(El Dorado)

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A.S. (appellant), the mother of L.G. (the minor), appeals from an order of the juvenile court terminating appellants parental rights. (Welf. & Inst. Code,  366.26, 395; further unspecified section references are to this code.) Appellant contends the order must be reversed because the evidence was insufficient to support the courts finding it was likely the minor would be adopted. Appellant also claims the court erred by terminating her parental rights in the absence of evidence that the minors prospective adoptive parent had been approved for adoption. We affirm the order terminating appellants parental rights.

FACTS AND PROCEEDINGS

In December 2005, the juvenile court asserted jurisdiction over the nine-year-old minor based in part on appellants history of substance abuse. Thereafter, the court adjudged the minor a dependent child and ordered her removed from parental custody. The court also ordered Department of Human Services (DHS) to provide appellant with reunification services.

The minor was diagnosed as mildly mentally retarded. She had an individual education plan (IEP), which included speech therapy and a special day class. According to DHS, the minor had cognitive defects and communication difficulties.

On August 9, 2006, the juvenile court terminated appellants reunification services.

The report prepared by DHS for the section 366.26 hearing noted the minor was in good health, and described her as a very sweet child with no behavior problems. She was improving in school and demonstrated an apparent ability to form attachments. DHS recommended adoption as the most appropriate permanent placement plan for the minor. However, as of the date of the report, DHS had not located a prospective adoptive family.

In its October 2007 report, DHS noted that in August 2007, the minor was placed in a new foster home with a foster mother who had many years of experience with developmentally delayed children. The foster mother was a pediatric physical therapist who had adopted five other children, two of whom required specialized services. The foster mother advised DHS that she was committed to adopting the minor.

During an October 2007 visit with the minor, the social worker observed that the minor was doing well with her prospective adoptive mother. According to the prospective adoptive mother, the minor also was doing well in school and thriving in her placement. The prospective adoptive mother attended an IEP session on behalf of the minor, and had a home study updated recently by the state.

The October 2007 report noted the prospective adoptive mother had been cleared of any criminal history or other wrongful conduct. According to the social worker, the minor and the prospective adoptive mother were forming a wonderful bond that strengthens everyday. Moreover, DHS opined, the prospective adoptive mother was committed to providing maximum permanence and stability to [the minor] through adoption. DHS continued to recommend adoption as the minors permanent plan.

At the November 7, 2007, section 366.26 hearing, counsel for appellant argued it was premature to find the minor likely to be adopted. Instead of making an adoptability finding, counsel urged the juvenile court to continue [the minors] relationship with [appellant] and see if this placement that has only been happening since the middle of August really is going to work out. Otherwise, we have a situation where we have a child where maybe the placement doesnt work out, the foster mom doesnt adopt [the minor], she winds up in another foster home with no significant adult contact anywhere.

At the conclusion of the section 366.26 hearing, the juvenile court found it likely the minor would be adopted and ordered the parental rights of appellant terminated.

DISCUSSION

I

Sufficiency of Evidence for Adoptability Finding

Emphasizing both the difficulties encountered in locating prospective adoptive families for the minor and the minors age and special needs, appellant contends the juvenile courts finding of a likelihood the minor would be adopted was not supported by substantial evidence. According to appellant, although DHS had located a prospective adoptive home for the minor, she was not generally adoptable. Appellant asserts that DHS had failed to establish the availability of another prospective adoptive home, if a new placement became necessary. Moreover, appellant argues, the record contains no evidence indicating the prospective adoptive mother here was aware of the extent of the minors disabilities and was prepared to make a lengthy commitment to the minor.

In order for the court to select and implement adoption as the permanent plan, it must find, by clear and convincing evidence, the minor will likely be adopted if parental rights are terminated. (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164; see also  366.26, subd. (c)(1).) Usually, the issue of adoptability focuses on the minor, e.g., whether the minors 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.) However, in some cases a minor who ordinarily might be considered unadoptable due to age, poor physical health, physical disability, or emotional instability is nonetheless likely to be adopted because a prospective adoptive family has been identified as willing to adopt the child. (Id. at p. 1650.)

Such was the case here. An experienced professional who had advocated on behalf of the minor at an IEP session expressed her commitment to adopting the minor, despite the minors cognitive and speech difficulties.

Appellant suggests the present existence or nonexistence of a prospective adoptive family is not determinative of the issue of adoptability and that a child may only be found adoptable based on the childs traits. As set forth in In re Sarah M., supra, 22 Cal.App.4th at page 1650, this simply is not the case when a viable, appropriate adoptive home has been identified. For the same reason, appellants argument--that the minor could not be found adoptable unless there were other approved families willing to adopt children with the minors characteristics--fails.

None of the cases relied on by appellant are at odds with our conclusion. Appellant cites In re Jayson T. (2002) 97 Cal.App.4th 75, 85 (Jayson T.) (disapproved on other grounds in In re Zeth S. (2003) 31 Cal.4th 396, 413-414) as support for her suggestion that, if a child is found to be adoptable at the section 366.26 hearing, the social worker should be able to find another prospective adoptive home. To the contrary, Jayson T. recognized it is only common sense that when there is a prospective adoptive home in which the child is already living, and the only indications are that, if matters continue, the child will be adopted into that home, adoptability is established. (Jayson T., at p. 85.) While the reviewing court in Jayson T. referred to th[e] trap that a trial court may easily fall into when it terminates parental rights based on the existence of a committed prospective adoptive placement that later falls through (id. at p. 88), this statement was made in the context of deciding whether an appellate court should accept post-hearing evidence on this issue. (Ibid.)

In re Asia L. (2003) 107 Cal.App.4th 498, 510-511, also cited by appellant, involved siblings, five and seven years old, who exhibited significant emotional and behavioral problems and who needed specialized placement. Although the social worker reported that her agency was confident an adoptive home could be located, the minors current foster parents were not committed to adoption and there was no evidence of other approved families willing to adopt children with the problems faced by the siblings. (Id. at pp. 511-512.) Under those circumstances, the appellate court reversed the juvenile courts finding of adoptability. (Id. at pp. 512, 515.)

Here, there was no evidence the minors special needs would necessitate a specialized placement or that her delays were so severe as to pose an obstacle to adoption. Moreover, unlike in In re Asia L., supra, 107 Cal.App.4that pages 511-512, where only a willingness to consider adoption was present, here the record reflects the prospective adoptive mother had expressed her commitment to adopt the minor. Nor was there anything else about the minors age, physical condition, and emotional state [that would] make it difficult to find a person willing to adopt the minor. (In re Sarah M., supra,22 Cal.App.4th at p. 1649.)

In In re Brian P. (2002) 99 Cal.App.4th 616, 624, also cited by appellant, the social workers opinion that a child was adoptable was held insufficient to sustain a finding of adoptability where the social worker provided no facts to support her opinion. In contrast to the characteristics of the four-and-one-half-year-old child in that case--he had only recently begun to speak, had problems with his gait, was still learning to dress himself and was only recently toilet-trained--the record here does not reflect that the now 11-year-old minors language delays would create any difficulty for purposes of placing her for adoption. (Id. at p. 619.)

In In re Amelia S. (1991) 229 Cal.App.3d 1060, cited by appellant, a finding of adoptability was reversed where 10 siblings had developmental, emotional and physical problems, some of a serious nature and only two of the siblings five foster families were even considering adopting the large sibling group. (Id. at pp. 1062-1063, 1065-1066.) The minors circumstances here are readily distinguishable--she is not a member of a sibling group for purposes of locating an adoptive placement, nor does the record reflect that the minors language delays prevented placement or made more problematical the potential for her prospective adoptive placement.

Appellant also cites In re Jerome D. (2000) 84 Cal.App.4th 1200, 1203, 1205, in which the prospective adoptive parent of a nearly nine-year-old child was the mothers former boyfriend, who had various potential legal impediments to adoption. As there was insufficient evidence of the childs general adoptability, the appellate court reversed the finding of adoptability. (Id. at pp. 1205-1206.) The reasoning in that case does not apply to a child such as the minor here, whose appealing characteristics and placement with an experienced and committed caretaker support the juvenile courts finding of likely adoptability.

In In re Tamneisha S. (1997) 58 Cal.App.4th 798, cited by appellant, the social services agency was unable, after a 10-month search, to find an adoptive home for the child. (Id. at pp. 802-803.) Ultimately, the juvenile court granted a guardianship after finding the agency had failed to show the minor was likely to be adopted. (Id. at p. 803.) The Court of Appeal affirmed the order of guardianship. (Id. at p. 808.)

This case is different from the circumstances found in In re Tamneisha S., supra, 58 Cal.App.4th 798. Here, as we have seen, the minor had developed a close relationship with her prospective adoptive parent. Moreover, despite her learning and developmental challenges, the record suggests the minor has the ability to form attachments with caregivers.

It is true that sometimes special needs children are more difficult to place than those without such needs. For example, in In re Michael G. (1983) 147 Cal.App.3d 56, the minor was developmentally disabled and suffered from serious emotional problems. According to the record in that case, the seven-year-old minor functioned below his age level, was not completely toilet-trained, and possessed limited language abilities. On that record, the court noted all parties had conceded adoptive placement would be difficult. (Id. at pp. 58-59.)

The situation here is different. Although the minor has some special needs, the evidence before the juvenile court suggested the minors circumstances had improved. Moreover, as the evidence also showed, the health of the minor was good and the minor was capable of developing close attachments to new adults in her life.

The record in this case reflects that, contrary to appellants claim, the prospective adoptive mother was well aware of and prepared to handle the minors difficulties. Moreover, as the social workers report indicates, the minor was doing well in her placement and showing continuing improvements. This evidence provides ample support for the juvenile courts determination that the minor was likely to be adopted within a reasonable time. (Cf. In re Scott M. (1993) 13 Cal.App.4th 839, 843-844.)

II

Approval of Prospective Adoptive Parent for Adoption

Appellant claims no evidence was adduced that the prospective adoptive parent had been approved for adoption. According to appellant, possible changes in that parents life occurring after her previous adoptions might affect her ability to adopt the minor. Appellant also argues that no showing was made of the absence of any legal impediment to adoption.

In instances where the likelihood of adoption is based solely on the existence of a prospective adoptive parent who is willing to adopt the minor, an inquiry may be made into whether there is any legal impediment to adoption. (In re Sarah M., supra, 22 Cal.App.4th at p. 1650.) The legal impediments to adoption are found in Family Code sections 8601, 8602, and 8603, and provide that a prospective adoptive parent must be at least 10 years older than a child unless certain exceptions apply, a child older than 12 must consent to adoption, and a prospective adoptive parent not lawfully separated from a spouse must obtain consent from the spouse. (Sarah M., at p. 1650.)

[A]s a general rule, the suitability of the prospective adoptive family does not constitute a legal impediment to adoption and is irrelevant to the issue of whether a child is likely to be adopted. (In re Carl R. (2005) 128 Cal.App.4th 1051, 1061.) However, the statutory scheme requires a preliminary assessment ( 366.21, subd. (i)(1)(D)) of the prospective adoptive parent and [a]n analysis of the likelihood that the minors would be adopted ( 366.21, subd. (i)(1)(G)) when the court orders a hearing pursuant to section 366.26. ( 366.21, subd. (i).) A completed adoptive home study is not a statutory prerequisite for termination of parental rights. ( 366.26, subd. (c)(1).) Instead, it is required only after a minor is freed for adoption and an adoption petition is filed. (Fam. Code,  8715, subd. (b).)

Such was done here. The report filed by DHS in October 2007 contains a comprehensive summary of the circumstances surrounding the prospective adoptive mother, including her social history and understanding of the responsibilities of adoption. As that report also indicates, the parent had been cleared of any issues pertaining to criminal or child abuse histories. Finally, the report noted a home study was updated earlier in 2007.

On this record, no legal impediment to adoption is presented, and the prospective adoptive mother has indicated her commitment to provide the minor with the stability and permanence the minor requires. Contrary to appellants speculative claims, the record reflects a preliminary assessment had shown the prospective adoptive parent was an appropriate caretaker for the minor. There was no error.

DISPOSITION

The order of the juvenile court terminating appellants parental rights is affirmed.

HULL, J.

We concur:

BLEASE , Acting P.J.

BUTZ , J.

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