In re Rico C.

Filed 11/14/09 In re Rico C. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from an order of the Superior Court of Los Angeles County, Stanley Genser, Commissioner. Affirmed.

Anna L. Ollinger, under appointment by the Court of Appeal, for Defendant and Appellant.

James M. Owens, Assistant County Counsel, and Byron G. Shibata, Associate County Counsel, for Plaintiff and Respondent.

INTRODUCTION

Tina W. (Mother) appeals from an order of the juvenile court terminating Mothers parental rights to her sons, Rico C. and Daniel C., pursuant to Welfare and Institutions Code section 366.26.^[1] Mother contends that the juvenile court erred in finding the boys were adoptable because Rico had behavioral problems that had not been adequately assessed, and because Daniel was suspected of having developmental delays that also had not been assessed. We conclude the court had before it substantial evidence that both boys were likely to be adopted, and affirm the order terminating parental rights.

factual and procedural background

The Los Angeles County Department of Children and Family Services (DCFS) detained Rico (born in May 2005) and Daniel (born in June 2007) from Mothers custody in April 2008, after the maternal grandmother reported to DCFS that Mother was not properly caring for the children. She said Mother did not feed them or change their diapers. Mothers ten-year-old sister, who lived in the same home, told the social worker that Mother sometimes left during the night without telling anyone. The sister was late for school at times because she had to feed and dress the boys in the morning. The children appeared to be healthy and there were no signs of physical abuse.

DCFS filed a section 300 petition on April 11, 2008, alleging that on numerous occasions Mother had left the children at the maternal grandmothers home without making a plan for their ongoing care and supervision, and had failed to provide food for the children. It was further alleged that Mother had a history of domestic violence and of engaging in violent altercations with the boys father.^[2]

At the detention hearing, the court ordered DCFS to conduct an assessment of the children and the family, including an assessment of the childrens physical and psychological status. Mother was granted monitored visits twice weekly, and the visits were to last as long as could be arranged with the caregiver.

DCFS filed an amended section 300 petition, adding allegations regarding the father. On June 18, 2008, the court sustained the allegations of the section 300 petition that Mother had failed to protect the children, and had failed to make provisions for their support. ( 300, subds. (b) & (g).) The court ordered DCFS to provide Mother with family reunification services, and to have Rico assessed for play therapy. Mother was ordered to participate in individual counseling to address the case issues and domestic violence, and parenting classes.

In April 2008 when they were first detained, the children were placed with Ms. T. Shortly thereafter, she hurt her back and could no longer care for the children. They were placed in the foster home of Ms. M., who reported that Mother cursed at her every time she tried to arrange a visit. Ms. M. asked that the children be removed from her home after one month because she could not take Mothers abuse. The children were then placed with Ms. W., who asked that the children be removed after about one week because Daniel was hard to take care of and Rico had behavioral problems. Daniel and Rico also remained in their next placement, with Ms. M.T., for only one week. Ms. M.T. said Daniel was a good baby but Rico was bad and does not listen. The boys were next placed with Ms. V. in late June 2008. She said that Daniel was a good baby and that Rico listened to her. She stated that Mother was very rude to her and cursed at her when trying to arrange visits. According to Ms. V., as of November 2008, Mother had visited with the children only once.

In July 2008, a mental health screening for Rico was done, which apparently involved the foster mother describing the childs behavior to an evaluator. The foster mother said Rico was disruptive, and that he fought, hit, and kicked. He seemed to respond only to male authority figures. However, when asked if Rico exhibited behaviors that would not allow him to remain in his current living situation, the foster mother answered no. The evaluator recommended play therapy, and that Rico be referred to the Department of Mental Health for further evaluation. As of November 2008, Rico was still waiting to be evaluated by the Regional Center.

At the six-month review hearing ( 366.21, subd. (e)) in December 2008, the court found that Mother had not complied with the case plan, and terminated family reunification services. Mother had not attended any court-ordered programs, and visited the children infrequently. The court ordered DCFS to prepare a supplemental report addressing the status of counseling for Rico, by January 16, 2009. The court scheduled a section 366.26 permanency planning hearing for April 2009.

DCFS did not comply with the order to report on the status of Ricos counseling in its interim review report of January 2009. At a subsequent review hearing on February 3, 2009, the minors counsel pointed out to the court that the current caregiver was not interested in a permanent plan of guardianship or adoption, in significant part because of Ricos being a very aggressive child with substantial behavioral problems, including being violent and using obscene language. Nonetheless, the children were doing much better in the current caregivers home than they had done previously. DCFS had indicated to minors counsel that Rico was on a waiting list for therapy, and he was expected to begin counseling during February 2009.

In early February 2009, the boys had begun having visits with a prospective adoptive family, and had begun to develop a positive bond with them. The boys had overnight visits with the prospective adoptive family, and the visits had increased in intensity and duration. On April 8, 2009, the children were placed in the prospective adoptive parents home. The couple had no parenting experience, so DCFS referred them to the Adoption Promotion Support System for assistance. DCFS had fully explained the rights and responsibilities associated with adoption, and felt the prospective adoptive parents understood the magnitude of their commitment and were dedicated to providing the boys with legal permanency. Their adoptive home study had been completed and approved in November 2008.

For the section 366.26 hearing, the adoptions social worker reported that Daniel was mentally and emotionally stable, and appeared to be behaving in an age-appropriate manner. The former foster parent, Ms. V., said Rico had behavioral issues, was very disruptive, hit other children, and was disobedient. The foster family agency had arranged for Rico to begin receiving mental health services, but then the children were matched with the prospective adoptive family, who lived outside the service area of the foster family agency. DCFS planned to provide the prospective adoptive family with referrals for counseling for Rico. The adoptions social worker indicated that it was highly likely that the children could be placed for adoption with an approved adoptive family.

The prospective adoptive parents enrolled Rico and Daniel in pre-school programs in early May 2009. Rico had an intake evaluation on May 4, 2009 for counseling, and he was to begin weekly therapy shortly. He continued to display behavioral issues, including aggression, hitting, biting, kicking, and hitting his head against the wall. A visit with Mother on April 16, 2009, resulted in an increase in his problem behavior, including cursing. The social worker observed, however, that Rico was strongly attached and positively bonded to his pre-adoptive parents, and was learning to respond to the use of time-outs. He was growing particularly attached to his pre-adoptive father as a role model and father figure.

In early April 2009, Daniel had been referred to a Regional Center intervention program to be assessed for a suspected speech delay. The social worker had observed that his expressive language was limited to single-syllable utterances, indicative of a possible developmental delay. The Regional Center did not complete the assessment because the children were going to be placed in the pre-adoptive home in another area. The social worker had begun preparing a referral packet for the Regional Center serving the area in which Daniel would be living. The prospective adoptive parents reported that Daniel was a good baby, and was generally quiet and well-behaved, although at times he imitated Ricos misbehavior, such as hitting or screaming. The social worker observed that Daniel was attached to his prospective adoptive mother, and exhibited some separation anxiety when she left the room.

DCFS noted that the pre-adoptive parents knew that the children had been in numerous placements, and understood the potential for behavioral problems such as physical aggression or acting out. The caregivers had responded proactively, using time-outs in response to Ricos misbehavior, and they had taken steps to initiate weekly therapy for him. The children were happy and comfortable in their placement. The prospective adoptive mother had taken a leave of absence from her work in order to be with the children full-time.

The section 366.26 hearing was held on May 12, 2009. Mother objected to the termination of parental rights, stating that she had been visiting more in the previous month, and that she had almost finished with parenting classes. The maternal great aunt was interested in adopting the children. Her home had been assessed by DCFS and found to be generally suitable. However, she had not visited the children since the initiation of the dependency proceedings, and DCFS recommended that the childrens placement should not be changed yet again, particularly to the home of someone the children did not know.

The court found the children to be adoptable, terminated parental rights, and ordered DCFS to pursue a permanent plan of adoption.

This appeal followed.

discussion

Mother argues the trial courts finding that the boys were adoptable was not supported by substantial evidence because there was no diagnosis or prognosis given regarding the emotional and developmental conditions affecting the children. Mother contends that the evidence about Ricos emotional health, Daniels delayed development, and their multiple foster placements, raise as many questions as assurances about their adoptability. She points out that, despite the repeated orders of the court, after over a year as a dependent child Rico had not started therapy or been assessed by a mental health professional. Until the courts long-standing orders are complied with there will not be substantial evidence to support a finding that the children are adoptable.

Waiver

Mother did not raise the issue of the childrens adoptability at the section 366.26 hearing. Respondent urges us to therefore consider the issue waived. (See, e.g., In re Aaron B. (1996) 46 Cal.App.4th 843, 846; In re Crystal J. (1993) 12 Cal.App.4th 407, 411-412; In re Urayna L. (1999) 75 Cal.App.4th 883, 886.) However, as recognized in In re Brian P. (2002) 99 Cal.App.4th 616, 623, while a parent may waive the objection that an adoption assessment does not comply with the requirements provided in section 366.21, subdivision (i), a claim that there was insufficient evidence of the childs adoptability at a contested hearing is not waived by failure to argue the issue in the juvenile court. This is so because [w]hen the merits are contested, a parent is not required to object to the social service agencys failure to carry its burden of proof on the question of adoptability. (Ibid.) Thus, to the extent Mother argues on appeal that DCFS presented insufficient evidence of the childrens adoptability, we will review the matter on its merits. We conclude that there was substantial evidence before the juvenile court that the children were likely to be adopted, and thus affirm the courts order terminating parental rights.

Discussion

We review the factual basis of a termination order to determine whether the record contains substantial evidence from which a reasonable trier of fact could find a factual basis for termination by clear and convincing evidence. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) A juvenile court can terminate parental rights only if it determines by clear and convincing evidence the minor is likely to be adopted. ( 366.26, subd. (c)(1).) In determining adoptability, the focus is on whether a childs age, physical condition and emotional state will create difficulty in locating a family willing to adopt. ( 366.22, subd. (b); In re David H. (1995) 33 Cal.App.4th 368, 379.)

Section 366.21, subdivision (i)(1)(C) states that when a court schedules a section 366.26 hearing, the supervising agency must prepare an assessment which includes [a]n evaluation of the childs medical, developmental, scholastic, mental, and emotional status.^[3] Mother asserts that in the absence of an evaluation or clinical assessment of Ricos therapeutic needs and Daniels developmental delay, the court was foreclosed from assessing whether the prospective adoptive parents had the capability to meet the childrens needs, citing In re Valerie W. (2008) 162 Cal.App.4th 1, 15. However, Mother has not cited authority for the proposition that the assessment must include an evaluation performed by a mental health professional. Here, the evidence presented to the court included the report prepared by the adoptions unit social worker finding that the children were adoptable, and also the assigned social workers reports describing the childrens status, as observed by the social worker and as described by the foster mother and the prospective adoptive parents.

In addition, to the extent Mother argues that the prospective adoptive parents might be unsuitable, given the lack of a diagnosis for either child and the prospective adoptive parents inexperience, such a contention is flawed. If a child is considered generally adoptable, we do not examine the suitability of the prospective adoptive home. (In re Valerie W., supra,162 Cal.App.4th at p. 13, citing In re Scott M. (1993) 13 Cal.App.4th 839, 844.) It is only when the child is deemed adoptable based solely on a particular familys willingness to adopt the child that the trial court must determine whether there is a legal impediment to adoption. (In re Valerie W., supra, 162 Cal.App.4th at p. 13, citing In re Carl R. (2005) 128 Cal.App.4th 1051, 1061.) That was not the case here: the children were found to be generally adoptable, and not based solely on their prospective adoptive familys willingness to adopt them. DCFS was required to assess the prospective adoptive parents capability to meet the childrens needs ( 366.21, subd. (i)(1)(C)), and accordingly, the parents adoptive home study was completed and approved. Beyond that, questions concerning the suitability of a prospective adoptive family are irrelevant to the issue whether the minors are likely to be adopted. (In re Scott M., supra,13 Cal.App.4th at p. 844.)

The record on appeal demonstrates that these children were generally adoptable. Rico was four years old, and Daniel almost two years old, at the time of the section 366.26 hearing. The children were both reported to be in good physical health. Regarding Rico, Mother questions the courts adoptability finding based on his emotional state, as evidenced by his behavioral problems, including aggressiveness, hitting, and cursing. As to Daniel, Mother focuses on his potential developmental delay, as evidenced by his limited vocabulary. At the time DCFS prepared its report for the section 366.26 hearing, Rico had not been evaluated by a mental health professional, despite repeated court orders stating Rico should be evaluated and should be in therapy. DCFS had recommended that Daniel be evaluated, but that had not occurred. However, the absence of an assessment by a mental health professional in Ricos case, and by a developmental specialist in Daniels case, did not undermine the courts finding of adoptability. As to Daniel, at worst he exhibited a speech delay and at times mimicked his older brothers bad behavior. Those conditions would not support the conclusion that Daniel was not likely to be adopted. The prospective adoptive parents found him to be a good baby, generally quiet and well-behaved, and the social worker observed that Daniel was already exhibiting attachment to his prospective adoptive mother.

As to Rico, his behavioral problems were in fact well documented, and the social worker, foster mother, and prospective adoptive parents were all quite familiar with the nature and extent of his acting out. This was not a situation in which a diagnosis was needed to reveal the nature or extent of a condition that might drastically alter the childs likelihood of being adopted. This is in contrast to the situation involved in In re Valerie W., supra, 162 Cal.App.4th 1, relied upon by Mother, in which the appellate court reversed a finding of adoptability where one of the children found by the juvenile court to be adoptable had numerous physical ailments, and an evaluation for a serious genetic or neurological disorder was recommended but had not yet been done. Here, Ricos behavioral problems were well established, and yet the foster mother continued to care for him for about 10 months, and the prospective adoptive family wanted to adopt him after having extended visits with him for two months and having him in their home for another month. The adoptive parents had already enrolled both children in preschool, and had arranged for Rico to start therapy. Rico had begun to respond positively to the permanency of his situation, to the presence of a male authority figure (his adoptive father), and to the use of time-outs as a disciplinary tool. His prospective adoptive parents, in view of his behavioral issues and their inexperience as parents, had received a referral to the Adoption Promotion Support System. The social worker reported that it was clear that the prospective adoptive parents understood the rights and responsibilities, and permanency, of adoption, and that they were committed to providing the children with a permanent home. Mother questions the social workers assessment that the boys had already begun to bond with the prospective adoptive parents, however, the court found the report credible, and we will not reweigh the evidence.

Mother repeatedly mentions the fact that the children were placed in five different foster homes before being placed with the prospective adoptive family. She relies on this fact as evidence that Ricos behavioral problems, and to some extent Daniels potential condition, meant that they were unlikely to be adopted. We note that the first four placements occurred during the first three months of the childrens dependency. The first ended because the foster mother injured her back, and the second because the foster mother could not withstand Mothers abusive behavior. The next two foster mothers, in whose home the children remained for only one week, did find Rico too difficult to care for and asked that the children be removed. However, the fifth foster placement, Ms. V., cared for the boys from late June 2008 until they were placed in their prospective adoptive home in early April 2009. Ms. V. honestly reported the difficulty she had caring for Rico, but she continued to do so until a prospective adoptive family was identified. The fact the children had been in five placements before being placed with the adoptive family does not demonstrate that the children were unlikely to be adopted. In any event, the question on appeal is whether the court had before it substantial evidence to find that the children were likely to be adopted in the foreseeable future. We conclude that it did.

Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minors age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parents willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650, italics omitted.) The prospective adoptive parents were committed to adopting the children, in spite of the problems the children displayed. Indeed, the maternal great aunt was also interested in adopting the boys. The social workers involved in the case indicated that the children were adoptable. While Rico was undisputedly a difficult child to care for, his well-documented behavioral issues did not rise to the level of making his adoption unlikely. Daniels possible speech delay was an insignificant factor in determining whether he was likely to be adopted. In short, the court had before it sufficient evidence that the boys were likely to be adopted in the foreseeable future.

disposition

The order terminating parental rights is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, Acting P. J.

We concur:

MANELLA, J. SUZUKAWA, J.

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

^[2] The alleged father of the children is not a party to this appeal. Father and a maternal great aunt both filed notices of appeal from the order terminating parental rights, but they have not pursued their appeals.

^[3] Mother actually cites section 366.22, subdivision (b), which governs 12-month review hearings, but the cited provision is identical to the relevant provision in section 366.21, subdivision (i).