In re N.A.

Filed 12/18/09 In re N.A. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

C.A., the mother of minor N.A. (Mother), appeals from an order terminating her parental rights. Mother contends there was insufficient evidence the minor would be adopted. We disagree, and affirm the order terminating parental rights.

I. BACKGROUND

Minor, N.A., born in June 2005, came to the attention of respondent Contra Costa County Children and Family Services Bureau (the Bureau) in September 2006, when Mother was arrested for prostitution. Mother reported to police that she had left the minor in a hotel with a man named Tim. When police responded to the hotel, they found Tim and the minor in an unventilated room filled with marijuana smoke. Further investigation revealed that Tim had a drug-related criminal history and was acting as Mothers pimp. N.A. was taken into protective custody.

The Bureau filed a petition under Welfare and Institutions Code[1] section 300, alleging under subdivisions (b) and (g) that N.A. was (1) at substantial risk of suffering serious physical harm as a result of Mothers inability to protect the child adequately, and Mothers willful or negligent failure to protect her adequately from the conduct of the custodian with whom the child had been left; and (2) left without any provision of support due to Mothers arrest for prostitution.

After N.A. was removed, Mother failed to cooperate with a plan to return her to Mothers care under the supervision of Mothers paternal grandmother. Mother also failed to consistently attend parenting classes, counseling, and scheduled visits with N.A. N.A. was placed in non-relative foster care. Her foster mother reported that N.A. initially had trouble sleeping through the night and would wake up and start crying when she realized the foster mother was not in the room with her. According to the foster mother, these negative behaviors began to improve by December 2006.

At a combined jurisdictional and dispositional hearing on December 13, 2006, the court adopted a slightly amended version of the petition and found that Mother had failed to protect N.A. within the meaning of section 300, subdivision (b). The court ordered that N.A. remain in foster care, and that the Bureau provide Mother with reunification services.

Mother was provided with 18 months of reunification services. During that time, she failed to maintain a stable residence, did not take advantage of Bureau referrals to counseling and parenting education, and maintained only sporadic contact with the Bureau. N.A. remained throughout that time in the home of a licensed foster parent. According to the 18-month review report, N.A. enjoyed a warm bond with her foster mother. The Bureau reported minimal contact with N.A.s biological father, who was living in Louisiana. He failed to cooperate with efforts to establish contacts between him and N.A. and to obtain a home study in Louisiana, and told the Louisiana social worker he was unable to care for N.A. due to his financial circumstances.

On May 7, 2008, following the 18-month review hearing, the court found that (1) the Bureau had provided Mother with reasonable reunification services, (2) she had failed to ameliorate the problems that led to court intervention, and (3) the minor could not be safely returned to her care. The court terminated reunification services to both parents and scheduled the matter for a section 366.26 hearing.

The Bureaus section 366.26 report of August 2008 stated that N.A.s caregiver did not want to adopt her. The Bureau had identified a potential adoptive family for N.A. and was in the process of transitioning her to the new home. Its report described N.A. as a healthy 3 year old child who has a happy and playful personality. The Bureau concluded that N.A. was adoptable due to her young age and lack of developmental and medical issues.

In a memorandum of November 2008, the Bureau informed the court that the new placement, where N.A. had lived for approximately one month, had fallen through due to the caregivers unforeseen financial difficulties. The Bureau had identified two other possible placements for N.A. The court continued the section 366.26 hearing to March 5, 2009.

One of the prospective adoptive parents filed a caregiver information form for the section 366.26 hearing. The caregiver reported N.A. had difficulty being separated from her at bedtime or when the caregiver left the home to run errands. She would scream at the top of her lungs, Please dont leave me, when the caregiver left her in her room at night, and she would need reassurance the caregivers would still be her mommy and daddy, and she would still have her room and her clothes, the next day. This had continued throughout the month N.A. had lived with them. The caregiver wrote that N.A.s therapist had told the caregiver she noticed right away that [N.A.] had attachment issues. The caregiver also reported N.A. was too sociable for a three year old and would walk up to anyone and start a conversation, touch them, and at times would even try to ask them for a hug and a kiss. Despite these issues, the prospective adoptive mother found N.A. to be a bundle of joy, and expressed a commitment to adopt her.

An addendum report prepared for the March 5 hearing described the caregivers in positive terms, noting the couple had participated in adoption training, were aware of the effects of abuse and neglect on children, and had an approved home study on file. The report reiterated the Bureaus belief that N.A. was an adoptable child and that the prospective adoptive parents were willing and able to provide her with stability, permanence, diligent care, and love.

The addendum report also recounted recent contacts between N.A. and Mother. These included a telephone call in which Mother began to cry and told N.A. she would come to pick her up so that N.A. could live with her, which was ended by the foster mother when N.A. became agitated and upset. There was a missed visit in December 2008. In a January 2009 visit, N.A. was excited to see her mother, who brought numerous gifts for her, and treated her affectionately. N.A. cried when her mother had to leave.

The section 366.26 hearing took place on March 5, 2009. No witnesses were called. The minors attorney asked the court not to terminate parental rights, arguing that although adoption might be appropriate, it was too early to reach that determination because of N.A.s emotional condition. Minors counsel pointed out that N.A. had only attended four therapy sessions and was having difficulty maintaining her attention span during therapy. Counsel also cited N.A.s severe attachment and emotional abandonment issues, arguing the minor needed a psychological evaluation regarding her attachment disorder to see what can be put in place for the child so the adoption can be successful. Minors counsel agreed the prospective adoptive family was capable and the minor was adoptable, but felt that a guardianship would better ensure the minors attachment disorder was addressed, and that the prospective adoptive parents could deal with it. Fathers counsel supported this position.

Citing the addendum reports account of Mothers January 2009 visit with N.A., Mothers counsel argued the child was clearly attached to her mother and it was important for the child to continue to have a relationship with her. She proposed a legal guardianship without termination of parental rights.

The Bureau argued there was no evidence N.A. was not adoptable, and that the childs behavioral difficulties did not mean she was not adoptable by the current prospective adoptive family. The Bureau noted there was no parent or other relative waiting in the wings to take the child and after 18 months of services the child needed to know she was in a permanent placement. The Bureau pointed out that no diagnosis of reactive attachment disorder had been made, and contended there would be time to address minors counsels concerns after adoption was ordered as the permanent plan. According to counsel, the Bureau often worked with prospective adoptive families for long periods of time to stabilize placements and address outstanding issues, before an adoption occurs.

The court found that (1) the concerns raised by minors counsel did not provide a reason to postpone the termination of parental rights and selection of adoption as the permanent plan, (2) there was clear and convincing evidence that N.A. was likely to be adopted, and (3) there was insufficient evidence of a bond between Mother and N.A. that outweighed N.A.s need for permanence. The court requested the Bureau to address the concerns that minors counsel had raised with N.A.s therapist and report back regarding whether other assessments or services should be provided. It terminated Mothers and the biological fathers parental rights and selected adoption as the permanent plan for N.A. Mother timely appealed from the courts order.

II. DISCUSSION

Mother contends that no substantial evidence supported a finding that N.A. was either generally adoptable or adoptable by the prospective adoptive parents with whom she had been placed. In particular, Mother maintains the Bureau and the court failed to assess how N.A.s significant emotional problemsas evidenced by her prospective adoptive mothers caregivers report and the asserted hearsay comment of N.A.s therapist that she had  attachment issues might affect her general adoptability. Further, the court failed to consider the potential impact of N.A.s emotional issues on the willingness and ability of N.A.s current caregivers to proceed with an adoption.

A. Applicable Law

Section 366.26, subdivision (c)(1) provides in relevant part as follows: If the court determines . . . 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. Section 366.26, subdivision (c)(1) expresses the Legislatures preference for adoption when reunification efforts have failed. (In re Celine R. (2003) 31 Cal.4th 45, 53.)

A juvenile court need not find a dependent child generally adoptable before terminating parental rights. All that is required is clear and convincing evidence of the likelihood that the dependent child will be adopted within a reasonable time. (In re Zeth S. (2003) 31 Cal.4th 396, 406; 366.26, subd. (c)(1).) The juvenile court may properly consider a prospective adoptive parents willingness to adopt as evidence that the child is likely to be adopted within a reasonable time. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 16491650 (Sarah M.).)

The standard of review on appeal from an order establishing a permanent plan of adoption is whether there is substantial evidence in the record from which a reasonable trier of fact could find, by clear and convincing evidence, that it was likely the minor would be adopted. (In re Brian P. (2002) 99 Cal.App.4th 616, 623624.) In conducting our review, we draw every reasonable inference and resolve all conflicts in the evidence in favor of the trial courts adoptability finding. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) Our focus is on the child, and whether the childs age, physical condition, and emotional state make it difficult to find a person willing to adopt. (Sarah M., supra, 22 Cal.App.4th at p. 1649.)

Speculation about possible future problems a minor may have does not preclude a finding that she is likely to be adopted. (In re R.C. (2008) 169 Cal.App.4th 486, 492; In re Jennilee T. (1992) 3 Cal.App.4th 212, 223225.) The fact the minors caregivers remain committed to adoption despite awareness of her challenges supports a reasonable inference that the minors age, physical and emotional condition, and other personal attributes are not likely to dissuade individuals from adopting her. (In re R.C., at pp. 491492; see also In re A.A. (2008) 167 Cal.App.4th 1292, 13111313 [upholding adoptability finding despite confirmed diagnosis of attachment disorder]; In re Helen W. (2007) 150 Cal.App.4th 71, 75, 7880 [upholding adoptability finding of child with reactive attachment disorder].)

B. Analysis

The record in this case contains substantial evidence that N.A. was generally adoptable. She was only three years old at the time of the hearing. The Bureaus August 2008 section 366.26 report described her as healthy and having a happy and playful personality. The issue of N.A.s emotional health, upon which Mother bases her entire adoptability argument, did not even arise until the prospective adoptive mother filed her caregivers report before the section 366.26 hearing. There was no evidence that the decision of N.A.s first foster parenther caregiver from September 2006 to August 2008not to adopt her had anything to do with behavioral or emotional problems. That caregiver reported no emotional difficulties after the first few months.[2] No mental, emotional, or behavioral issues were mentioned in the six-month and 18-month status review reports. When the first caregiver decided not to adopt, the Bureau had no difficulty finding a prospective adoptive parent for N.A. When that placement fell through, due solely to a change in the caregivers financial circumstances, the Bureau was able to identify two prospective fost/adopt homes for N.A. within two weeks. All of this is suggestive that N.A. was likely to be adopted within a reasonable time.

N.A.s specific adoptability is evidenced by the prospective adoptive mothers February 2009 information form showing that, despite the behavioral issues she identified, she and her husband are committed to adopting N.A. The document fails in any way to show that the prospective adoptive parents felt overwhelmed by N.A.s emotional needs or were having second thoughts about their commitment to adopting her. In fact, Mothers reliance on the report as evidence that N.A. was suffering from severe emotional difficulties is misplaced. The caregiver was describing N.A.s behavior in her first month of living with a new family, which might reflect no more than the same type of transitory adjustment issues she had experienced in the first few months of her initial placement, rather than some intractable emotional disorder. No expert testimony was offered that N.A. suffered from severe attachment disorder and there was no evidence that any qualified mental health professional had made such a diagnosis. The caregivers hearsay report of what N.A.s therapist told her after a few sessions of therapy is not substantial evidence of such a diagnosis.

The question thus boils down to whether a suggestion that NA might suffer from an attachment disorder should have been sufficient to prevent the court from finding her adoptable. We have found no case that convincingly supports such a proposition. In re Jayson T. (2002) 97 Cal.App.4th 75 (Jayson T.) involved the general adoptability of two older boys, ages 7 and 10, after the failure of their fourth placement. Based on the apparent success of the fourth placement, the trial court had found the boys adoptable and terminated parental rights. (Id. at p. 83.)  The Court of Appeal found no error in that determination and, in fact, fully endorsed it: [I]t 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. (Id. at p. 85.) The problem arose while the matter was pending on appeal, when the prospective adoptive parents came to believe at least one of the boys suffered from reactive attachment disorder  in a rather severe way,  the placement failed, and the boys were returned to a childrens home. (Id. at pp. 8182.) The Court of Appeal decided to receive and consider evidence regarding the failure of the fourth placement and reversed the order terminating parental rights based upon that evidence. [3] At one point, the Jayson T. court does suggest in rather broad language that the adopting parents mere suspicion of an attachment disorder puts a minors adoptability into question: [S]urely any evidence that the adopting parents considered one of the two boys to be suffering from reactive attachment disorder throws the adoptability finding into serious doubt. (Id. at p. 91.) To the extent this statement may be taken as authority for the proposition that a suspicion of possible attachment issues is sufficient in itself to undermine a finding of adoptability, we do not agree with it. In our view, the courts reasoning in Jayson T. depended upon a constellation of salient facts going beyond the prospective adoptive parents lay diagnosis of the boys psychological condition. These included the boys ages, the need to place both boys (and their sister) together, the boys history of unstable placements, and, most importantly, the failure of the specific placement upon which the adoptability finding had been premised. Because none of these latter factorsall weighing strongly against adoptabilityis present here, we find Jayson T. distinguishable.

In re Asia L. (2003) 107 Cal.App.4th 498, in which the Court of Appeal found the evidence of adoptability insufficient, is also distinguishable. No prospective adoptive parents had been identified for the minors in that case, and both minors were exhibiting serious behavioral problems including extreme hyperactivity, lying, and stealing. (Id. at pp. 510511.) Both were deemed to require specialized placements. (Id. at p. 511.) The social services agency presented no evidence of any approved families willing to adopt children with the developmental problems these minors faced. (Id. at p. 512.) Here, in contrast, several prospective adoptive families had been identified for N.A., she had not been diagnosed with any psychological disorder, and she did not require a specialized placement. Asia L. does not provide a basis for reversing the termination order in this case.

In re Carl R. (2005) 128 Cal.App.4th 1051 involved the unique issue of the proper scope of the inquiry by the juvenile court in determining the adoptability of a child who will require intensive care for life. (Id. at p. 1062.) The child in Carl R. had lived in a convalescent hospital since he was four months old and was completely developmentally disabled. (Id. at pp. 1058, 1062.) Absent evidence that N.A. had been diagnosed with an attachment disorder so severe that her prospective adoptive parents would be unable to cope with it, Carl R. is not a relevant precedent for deciding this case.

In our view, there was substantial evidence supporting a finding that N.A. was both generally and specifically adoptable.

III. DISPOSITION

The order terminating Mothers parental rights is affirmed.

_________________________

Margulies, J.

We concur:

_________________________

Marchiano, P.J.

_________________________

Banke, J.

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[1] All further statutory references are to the Welfare and Institutions Code.

[2] According to the Bureaus December 2006 jurisdiction/disposition report, N.A.s foster mother reported N.A. cried at night when her foster mother left the room at first, but was going to bed more easily by the time the report was prepared.

[3]Jayson T. was disapproved in In re Zeth S., supra, 31 Cal.4th 396 at pages 413414, because of its holding that appellate courts should routinely consider postjudgment evidence uncovered during the pendency of appeals from orders terminating parental rights under section 366.26.