In re M.S.

Filed 7/14/09 In re M.S. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(San Joaquin)

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Father, H.S., appeals the termination of his parental rights to the minor, M.S. He contends there is insufficient evidence to support the finding that M.S. was adoptable. We affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

In January 2005, M.S.,[1] who was then two and a half years old, lived with his mother and his three half brothers. His mother was pregnant at the time.

On January 30, 2005, police went to the home and found mother standing naked in the bedroom, holding on the minors half brothers by his shirt collar and threatening to kill him. She had broken a mirror with her head and was holding a glass rock pipe so tightly that it was cutting her hand. She was arrested and the children were taken into protective custody.[2]

Mother and father both failed to complete their reunification services and reunification was terminated on March 13, 2006. Father had attended only four of nine visits with M.S. during the reunification period. After reunification services were terminated, father had no visits with M.S.

The minor, two of his brothers and mothers baby daughter were placed in a foster home together. The boys were adjusting well, in spite of several emotional and behavioral problems. M.S. had frequent tantrums, but was developmentally on target and very bonded with his foster mother.

By June of 2006, M.S. was healthy and developmentally on target. He was still exhibiting severe tantrums in class and had been referred for a behavioral/mental health assessment. He was described as a very active boy who had tantrums and a pattern of aggression associated with his level of personal frustration.

In January of 2007, M.S. was thriving in his foster home. He was showing definite signs of character development associated with being well cared for. Now four years old, M.S. still had tantrums, with good days and bad times. He was a spontaneous, active and social child who made friendships easily. He was also impatient about waiting his turn. ~

By June 2007, all three boys continued to have behavioral difficulties. Mothers sporadic contact continued to be a problem for the children. When she stopped visiting them altogether, their behavior deteriorated. M.S. also had a speech impairment, stuttering, which made it difficult for him to express himself. M.S. continued to have severe tantrums and difficulty adjusting to change.

M.S.s two half brothers placement was changed so they longer lived in the same home as M.S.

By January 2008, with the provision of mental health treatment and services, there was a noticeable improvement in M.S.s behavior. He was happier and more relaxed at home and in the classroom, and he was having an easier time adjusting to change. He was also learning to manage his frustrations and control his impulses.

A psychiatric evaluation was completed on June 6, 2008. M.S.s teacher and school nurse reported that he displayed behaviors associated with fears and panic. M.S. was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD), atypical type, and possible early psychotic disorder. He was prescribed Risperdal, an antipsychotic medication given to decrease the symptoms M.S. was experiencing. M.S.s foster parents indicated they wanted to adopt him, so it was recommended his permanent plan be changed to adoption.

The November 13, 2008, Welfare & Institutions Code[3] section 366.26 report noted M.S. was developmentally on track, enjoyed school and did well academically. He was described as a pleasant child with a charming personality who engaged in attention-seeking behaviors but responded well to the limits set by his foster parents. The report also noted M.S.s history of behavioral difficulties, including tantrums and aggression, and his stuttering. M.S.s behavior appeared to have deteriorated upon beginning first grade. He had temper tantrums that sometimes required him to be physically restrained and he was suspended from school several times. He was transferred to another school at the beginning of October and was doing well there. However, his behavior again deteriorated at the end of October; he was aggressive with other children and defecated in his pants twice in one day.

In October 2008, M.S. was temporarily placed in a different foster home. His foster mother was ill and M.S.s behavior problems continued to escalate at school. M.S. was returned to his original foster home within three weeks. His foster mothers health had stabilized and the foster family remained committed to adopting him, as he was an integral part of their family.

The social worker determined M.S. was a special needs child based on his behavior, ADHD diagnosis, age, race and adverse parental background. The foster parents had completed their adoption home study and had been approved to adopt him. These same foster parents had also adopted M.S.s sister in June 2008. M.S. had been placed with the foster parents when he was two and a half years old. Having raised M.S. for three and a half years, he was then six years old, they were well aware of the challenges of adopting him, but felt M.S. was a part of their family and wanted to raise him with his sister.

At the section 366.26 hearing, the court found it was likely M.S. would be adopted and it was in his best interest to be adopted. Accordingly, the court terminated parental rights. Despite having been personally served with notice of this hearing, father was not present.

DISCUSSION

Father contends there was insufficient evidence that M.S. is adoptable. Specifically, he argues that M.S. is not generally adoptable, and the likelihood of him being adopted is unclear because the placement with his foster family of three and a half years was unstable and tenuous. We disagree. There was substantial evidence supporting the finding that M.S. was specifically adoptable by his foster parents.

At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must make one of four possible alternative permanent plans for a minor child. . . . The permanent plan preferred by the Legislature is adoption. [Citation.] [Citation.] (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368, italics omitted.) 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;  366.26.) We review an order terminating parental rights for substantial evidence. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.)

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.)

Where the social worker opines that the minor is likely to be adopted 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 by that parent [citations]. In such cases, the existence of one of these legal impediments to adoption is relevant because the legal impediment would preclude the very basis upon which the social worker formed the opinion that the minor is likely to be adopted. [Citation.] (In re Sarah M., supra, 22 Cal.App.4th at p. 1650.)

Father has identified no legal impediment to these foster parents adopting M.S. Rather, he claims the placement was unstable and tenuous because in October 2008, M.S. was temporarily placed in another home and M.S.s older half brothers were placed in a different home as they approached their teenage years. We disagree with fathers interpretation of these facts.

Father implies that removal of the minors half brothers from this foster home as they approached their teenage years means that the same will happen as M.S. reaches his teenage years. There is no support for this claim. There is a significant difference between meeting the needs of children with behavioral problems who first come into a home at the ages of 12 and eight years old and meeting the needs of a child with behavioral problems who comes into a home at two and a half years of age. That the foster family might not feel it was best able to meet the half brothers needs, particularly as they headed into adolescence, does not reflect an inability on the foster familys part to meet M.S.s needs as he matures.

Nor does the temporary three-week removal from the foster home necessarily indicate the placement is unstable or that the foster parents are anything less than wholly committed to adopting M.S. The record indicates that there was a concurrent deterioration in the foster mothers health and M.S.s behavior.[4] Once the foster mothers health was stabilized with medication, M.S. was returned to the foster parents home and they expressed their continuing commitment to adopting him. Contrary to fathers interpretation, we believe this shows the strength of the foster familys commitment to M.S.

Father relies on In re Jayson T. (2002) 97 Cal.App.4th 75 (disapproved on other grounds in In re Zeth S. (2003) 31 Cal.4th 396, 413-414) and In re Asia L. (2003) 107 Cal.App.4th 498. These cases do not aid his claim.

In In re Jayson T.,the Court of Appeal 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. (In re Jayson T., supra, 97 Cal.App.4th at p. 85.) While the reviewing court in In re Jayson T. referred to the 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 posthearing evidence on this issue. (Ibid.)

In re Asia L., supra, 107 Cal.App.4th 498, involved siblings 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 these circumstances, the appellate court reversed the juvenile courts finding of adoptability. (Id. at p. 515.) In this case, of course, we have an approved family, without legal impediments, committed to adopting M.S.

M.S. has been placed with his foster family for three and a half years. His foster parents are well aware of his behavioral problems and, in fact, have been coping with them and helping him overcome them for most of his life. Importantly, although M.S. has problems, he also has good positive qualities. He has no health problems and is developmentally on track. He does well academically, makes friends easily, is pleasant with a charming personality, responds appropriately to limitations set by his foster parents, and is well-bonded with his foster parents. M.S. also appears to be responding to his mental health treatment with improved behavior. The adoption home study has been completed and the family has been approved to adopt M.S. In fact, they have already adopted M.S.s younger sister. There is no evidence of any obstacle to the foster parents adopting M.S.

Absent any evidentiary basis for questioning the feasibility of M.S.s adoptive placement, we conclude that sufficient evidence supports the trial courts finding the minor was specifically adoptable.

DISPOSITION

The order of the juvenile court is affirmed.

NICHOLSON , J.

We concur:

BLEASE , Acting P. J.

CANTIL-SAKAUYE , J.

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[1] As this appeal only involves M.S., only facts pertinent to him and the disposition of this appeal will be recounted here.

[2] The minors oldest half brother was not taken into protective custody, as he had apparently run away from home the week before.

[3] Further undesignated statutory references are to the Welfare & Institutions Code.

[4] We note that it would not be surprising if this deterioration in behavior by M.S. was connected to his foster mothers illness.