Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. J209692 Marsha Slough, Judge. Affirmed.
Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruth E. Stringer, County Counsel, and Jeffrey L. Bryson, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
MILLER J.
William H. Hook, under appointment by the Court of Appeal, for Minor.
This is an appeal by Ashley F. (mother) from a juvenile court order terminating her parental rights to her daughter, A.V., pursuant to section 366.26 of the Welfare and Institutions Code. Mother’s principal grievance is that the court’s adoptability finding is not supported by substantial evidence, requiring reversal. She also contends the court failed to comply with the statutory requirement that it consider A.V.’s wishes before terminating parental rights. Finding no merit to either contention, we affirm.
Further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
A.V. was born in February 2004. Mother, who was then 15 years old, had already been using methamphetamine for a year or two, and continued to do so after A.V.’s birth. When A.V. was a few months old, the Department of Children’s Services (DCS) learned that mother was using drugs and that she frequently left A.V. with the child’s maternal grandmother, J.E. However, no formal action was taken until 2006, when social workers investigated a report that J.E., with whom A.V. was then residing, was using drugs and living in a filthy home. By August, J.E. had been arrested and incarcerated, mother’s whereabouts were unknown, and DCS learned that A.V. had been left with her step-great-grandmother, Deborah E.
Deborah E. is described variously in the record as A.V.’s paternal great-grandmother, paternal step-great-grandmother, and maternal step-great-grandmother. She is apparently the mother of mother’s stepfather.
Several days later, a juvenile dependency petition was filed alleging, in essence, that mother suffered from substance abuse, was unable to provide adequate and responsible care for A.V., and had continuously left A.V. in the care of inappropriate caretakers. The petition further alleged that A.V.’s father, who also had substance abuse problems, was incarcerated and thus unable to provide adequate and responsible care for A.V.
The petition also alleged that mother “is unwilling to care for the child,” “has a history of incorrigible, violent and dangerous behavior, which places the child at risk of physical harm,” and has “an explosive temper, which she is unable to control, that resulted in her assaulting a police officer and being a threat to the child and to her own siblings.” These allegations were stricken by the court at the December 2006 jurisdictional hearing.
A.V.’s alleged father is not a party to this appeal.
A.V. was permitted to remain in Deborah E.’s home, which had been assessed as appropriate for placement. A.V. adjusted well to this placement, as she was already familiar with the home and interacted well with family members. At this time, A.V. had no known emotional, developmental, psychological, behavioral, social, or mental health problems, had no special needs, and was developmentally on target. Initially, mother did not visit A.V. and showed no interest in doing so. By October, however, mother and A.V. began to have visits, which were said to be positive for the child.
Mother appeared at the jurisdictional hearing in December 2006. The court declared A.V. a dependent child, ordered mother to drug test and to participate in family reunification services, and scheduled a six-month review hearing for the following June.
In March 2007, the social worker learned that Deborah E., who for nine months had been caring for A.V. and four of her grandchildren, was no longer able to care for A.V., as it had become very difficult to manage all five children. In May, A.V. was removed from Deborah E.’s home and placed with Janet R., where she has since remained, and a supplemental section 387 petition requesting authorization for the placement change was filed by DCS.
Upon learning about A.V.’s new placement, mother cried and then became angry. In response to the social worker’s inquiry as to whether she was ready to be a parent to her child, she indicated that she was capable of attaining the goals of her case plan, loved A.V. very much, and was “‘willing to do anything’” to have A.V. returned to her. However, she had made minimal progress towards completing her service plan.
By June, Janet R. had expressed a desire to adopt A.V. A.V. apparently liked her new home and her new foster mother, whom she referred to as “‘mommy.’” After visits with mother, during which A.V. would refer to her foster mother in this way, mother would become verbally irate at DCS staff members.
According to DCS’s status review report, A.V. had “no known significant medical conditions or treatments.” A.V., who was described as “very smart and inquisitive,” had been assessed the previous March to determine her level of motor, language, personal and social skills. The testing revealed that A.V. “is a typical child—but showed some caution in language. . . . Overall, it showed that she is rarely compliant, very alert and interested in her surroundings, is not fearful of many things, and has a very distractible attention span. [¶] [She] is age appropriate in her cognitive, language, self-help, and motor skills. [She] is in the midst of becoming potty trained. She is able to dress herself, name friends, wash/dry her hands, name pictures, knew [six] body parts, move correctly, and feed herself. Her foster parent reports that [she] plays well with other family children.”
The report also disclosed that A.V. “tends to throw temper tantrums where the caretaker will have to put her on a time out to settle down. [She] is known to be stubborn and often refuses to complete tasks simply because she does not want to. When playing with other children, [she] can be aggressive. She tends to overtake the room, commanding through verbalization, that all attention be focused on her.”
At a hearing in July 2007, the court sustained the allegations of the section 387 petition, terminated mother’s reunification services, and scheduled a permanency planning hearing.
According to its permanency planning report, DCS’s recommendation was to terminate parental rights, to implement a permanent plan of adoption, and for A.V. to remain with Janet R., whose home was found to be appropriate. DCS’s adoption assessment report described A.V. as “a healthy and vibrant child who is very verbal and active.” On the negative side, however, she was stubborn, had a short attention span, and displayed a poor attitude after visiting with mother. According to the report, A.V. had been with Janet R. since May 2007, and the two shared a significant emotional attachment; Janet R. loved A.V. as her own child and cared deeply about her and her future. The report indicated that Janet R., who was committed and able to meet A.V.’s needs on a permanent basis, believed she was the best parent for A.V. in that they shared similar likes and dislikes, had a similar energy level, and even looked alike. Additionally, Janet R. was a medical professional, who seemed able to handle A.V.’s temperament and activity level.
The report stated that A.V. was not articulate enough to tell the social worker about her wishes. However, it pointed out that A.V. refers to Janet R. as “‘[m]ommy,’” showed by her actions that she viewed Janet R. as her mother, and when she was ill, looked to Janet R. for comfort and affection. Further, A.V. was learning what respect, stability, consistency and earning a reward for good behavior was all about, and she seemed to like it. According to the social worker, A.V. had “really blossomed in this prospective adoptive home and to say that she [had] made a positive adjustment to this placement would be an understatement.”
Finally, the social worker reported that A.V. had no mental health or emotional issues. A developmental screening performed in October 2007 revealed no negative results, and another screening was scheduled in six months.
Attached to the report was a letter from Janet R. asking that mother’s visitation with A.V. be terminated due to A.V.’s display of aggression, anger, and confusion after visits with mother. Janet R. also noted in her letter that mother sometimes showed up for visits “visually appearing under the influence of illegal substances,” and that on one occasion, she heard mother tell a friend while sitting in the court lobby, “Oh, I am not going to stop getting high for nobody.”
Mother was present at the permanency hearing on December 18, 2007. Her attorney “object[ed] for the record,” indicating that he had “no affirmative evidence to present.” He shared his opinion that both mother and the maternal grandmother “have made significant progress,” and he was impressed by the addendum report filed that day, indicating that the maternal grandmother “feels that the child is in a good place and that they love the child and hope sometime in the future to at least have some contact. [¶] I think that shows a lot of growing up and a lot of maturity on the part of the parties that they would feel this way and write this letter, because the maternal grandmother, basically, was the caretaker and had done much to raise this child. . . . [¶] So anyway, I just wanted to put that on the record. We are, as I say, objecting for the record, but we are prepared to move forward.”
After reading and considering DCS’s reports, including its adoption assessment, the court found by clear and convincing evidence that A.V. would likely be adopted and that adoption was the appropriate permanent plan. The court then ordered that parental rights be terminated.
DISCUSSION
A. Applicable law and standard of review.
Whether a child is likely to be adopted is the “pivotal question” at a section 366.26 hearing. (In re Tamneisha S. (1997) 58 Cal.App.4th 798, 804.) “In order for a juvenile court to terminate parental rights under section 366.26, the court must find by clear and convincing evidence that it is likely that the child will be adopted. [Citation.] [The appellate court] review[s] the juvenile court’s order to determine whether the record contains substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that [the children] were likely to be adopted. [Citations.] ‘Clear and convincing’ requires a finding of high probability. The evidence must be so clear as to leave no substantial doubt. [Citation.]” (In re Asia L. (2003) 107 Cal.App.4th 498, 509-510.) In fact, the evidence “‘must be sufficiently strong to command the unhesitating assent of every reasonable mind. [Citations.]’ [Citation.]” (In re Amelia S. (1991) 229 Cal.App.3d 1060, 1065.)
The likelihood of adoption is often discerned from an adoption assessment report, the purpose of which is to provide the court with information necessary to determine whether the permanent plan selected is in the child’s best interests. (In re Dakota S. (2000) 85 Cal.App.4th 494, 496.) Pursuant to section 366.21, subdivision (i)(1), DCS was required to prepare such an assessment, to include, among other things, “[a]n evaluation of the child’s medical, developmental, scholastic, mental, and emotional status,” and “[a] preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent or legal guardian, particularly the caretaker, to include a social history including screening for criminal records and prior referrals for child abuse or neglect . . . .”
In making its determination of adoptability, the juvenile court is required to “focus on the child, and whether the child’s age, physical condition, and emotional state make it difficult to find a person willing to adopt. [Citation.]” (In re Brian P. (2002) 99 Cal.App.4th 616, 624.) However, a finding that a child is likely to be adopted does not require the child’s placement in the home of a prospective adoptive parent, or even that one be “‘waiting in the wings.’” (In re Jennilee T. (1992) 3 Cal.App.4th 212, fn. 11 (Jennilee T.).) Thus, while the existence of a prospective adoptive family is a factor to be considered in making the determination, it is not dispositive. (In re David H. (1995) 33 Cal.App.4th 368, 378.) As a general rule, “the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor’s 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 parent’s 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.) In this regard, “[i]f the child is considered generally adoptable, we do not examine the suitability of the prospective adoptive home. [Citation.] However, where the child is deemed adoptable based solely on the fact that a particular family is willing to adopt him or her, the trial court must determine whether there is a legal impediment to adoption. [Citation.]” (In re Carl R. (2005) 128 Cal.App.4th 1051, 1061.)
As previously indicated, we review the juvenile court’s adoptability determination for substantial evidence. (In re Y.R. (2007) 152 Cal.App.4th 99, 112.) In assessing the sufficiency of the evidence, we must “presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) If any credible evidence supports the juvenile court’s conclusion as to adoptability, we must uphold it. (In re Cliffton B. (2000) 81 Cal.App.4th 415, 424-425.)
B. Substantial evidence supports the juvenile court’s adoptability finding.
In challenging the sufficiency of the evidence to support the court’s adoptability finding, mother presents three issues. She contends, (1) A.V.’s prospective adoptive mother, Janet R., had only a vague interest in adopting A.V., which does not rise to the level of clear and convincing evidence of adoptability; (2) DCS failed to demonstrate that other potential adoptive homes were available in the event Janet R. changed her mind about adopting A.V.; and (3) A.V.’s “troubling behaviors,” her exposure to drugs at birth, and the fact that her prior caretaker, Deborah E., asked that she be removed from her care, created an inference that A.V. was unadoptable.
Distilled to its essence, mother’s argument goes something like this: In light of the emotional and developmental challenges A.V. will face in the future as a result of being exposed to drugs at birth, A.V. is not generally adoptable, as the court impliedly found. Thus, because the only potential adoptive home identified is that of Janet R., who has not demonstrated a firm commitment to adoption, the court’s adoptability finding is not, in the absence of other potential adoptive homes, supported by clear and convincing evidence. As we shall explain, her position is meritless. Furthermore, because there is substantial evidence that A.V. is generally adoptable, we need not reach the second prong of mother’s argument. Indeed, as indicated above, where a child is considered generally adoptable, a finding that he or she is likely to be adopted does not require the child’s placement in the home of a prospective adoptive parent, or even that one be “‘waiting in the wings.’” (Jennilee T., supra, 3 Cal.App.4th at p. 223, fn. 11.) Thus, although there is no question that the evidence points to Janet R. as A.V.’s soon-to-be adoptive mother, her identification as such was unnecessary for purposes of an adoptability finding.
Even if we were to conclude that A.V. is not generally adoptable, we would still reject mother’s contentions. A mere possibility that a child may have a problem in the future does not mean that the child is not likely to be adopted. (Jennilee T., supra, 3 Cal.App.4th at p. 225.) Indeed, even where the child has problematic characteristics, he or she is likely to be adopted if there is an identified family willing to adopt. (In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.)
The fallacy in mother’s argument derives from her erroneous position that, simply because A.V. was exposed to drugs at birth, she faces an assortment of mental, emotional and developmental problems and is therefore not generally adoptable. There is simply no evidence that A.V. has demonstrated any physiological effects from her drug exposure at birth. Nor is there any evidence of developmental or emotional issues which could conceivably hamper her adoption or affect her well-being. Indeed, mother’s argument focuses on potential consequences faced by a child born to a drug dependent mother. While she is correct that a child’s drug exposure at birth could conceivably subject the child to risk for various ailments, A.V. had yet to exhibit any of them. Described by the social worker as a healthy, active and vibrant child, A.V. had no apparent mental health or emotional issues to speak of, and a developmental screening had disclosed nothing out of the ordinary. Accordingly, mother’s suggestion that A.V. faces emotional and/or developmental challenges due to her drug exposure at birth is purely speculative.
In fact, while it is undisputed that mother was using methamphetamine at or around the time that A.V. was born, nothing in the record indicates that A.V. was born with methamphetamine in her system. Indeed, had that been the case, we question if she would have been released to mother’s custody following her birth.
In taking this position, mother ignores entirely the fact that speculation is not evidence. (In re Ashley P. (1998) 62 Cal.App.4th 23, 29.) Pointing to her own drug problems, she contends, “The sad reality here is that this exposure to methamphetamine may have had a negative impact on [A.V.] and possibly caused her behavioral problems.” (Italics added.) Also speculative is her position that babies who are exposed to methamphetamine during pregnancy may have emotional problems after birth, with a “great chance” of brain damage, hyperactivity and developmental delay. In the absence of evidence that what mother refers to as A.V.’s “problems” (e.g., she had a short attention span, was easily distracted, was rarely compliant, and had occasional temper tantrums), were anything other than typical behaviors for a young child, we reject her contention that A.V. has already shown some of the effects of methamphetamine exposure, and that “there was suggestion that [A.V.] was unadoptable based on her characteristics.”
Furthermore, mother takes the untenable and unsubstantiated position that the reason Deborah E. elected not to continue caring for A.V. was because A.V. was a “particularly difficult child to raise,” in that she threw temper tantrums, was aggressive with other children, and was stubborn—circumstances which created an inference that A.V. was possibly unadoptable. Our review of the record reveals absolutely nothing to support mother’s position. In contrast with her interpretation of the record, Deborah E. informed the social worker only that “it [had] been extremely difficult for her raising [A.V.] along with her four (4) other grandchildren.”
Mother argues: “There was reason to believe that [A.V.] might not be adoptable based on her characteristics. Such an inference arose when the previous caregiver asked to remove [A.V.] from her home, but continued to care for four other children. If it really was difficult for the step[-]great[-]grandmother to care for a child, why did she keep on caring for four other children? Why did she call DCS regarding only this child?” She later states: “[A.V.]’s behavioral issues likely caused one caregiver to refuse placement and may present a similar obstacle over the long-term in the future.”
In light of the foregoing, we conclude the juvenile court’s finding that A.V. was generally adoptable is supported by substantial evidence. Any notion that A.V. has or faces problems that make her unadoptable is pure speculation. Although the court knew that Janet R. was ready, willing, and able to adopt A.V., it was unnecessary that an adoptive family be “waiting in the wings” for it to find A.V. to be adoptable and to terminate parental rights. If we were to adhere to mother’s way of thinking, no child who is exposed to drugs at birth could be freed for adoption until sufficient time had elapsed within which a determination could be made with absolute certainty as to the child’s physical, mental, and emotional health. That is not the law.
C. In considering A.V.’s wishes as reported by the social worker, the juvenile court fulfilled its statutory obligation.
According to the minute order prepared following the hearing at which parental rights were terminated, the juvenile court “considered the wishes of the child, consistent with the child’s age and all findings, and orders of the court are made in the best interest of the child.” Citing section 366.26, subdivision (h), and In re Juan H. (1992) 11 Cal.App.4th 169, 173 (Juan H.), mother contends reversal is required because there is no evidence that A.V.’s wishes were considered.
Section 366.26., subdivision (h)(1) states, in pertinent part: “At all proceedings under this section, the court shall consider the wishes of the child and shall act in the best interests of the child.” Section 366.26., subdivision (h)(2) requires the child’s presence in court if requested by the child or the child’s counsel or the court so orders.
The child in Juan H. was, like A.V., almost four years old. On appeal, counsel argued on his behalf that the court failed to consider his wishes. The permanency report indicated, “he was too young to sufficiently understand the situation and provide a statement.” (Juan H., supra, 11 Cal.App.4th at p. 172.) Because the mother did not challenge that statement in the report, the court properly relied upon it. (Id. at p. 173.) The court construed former section 366.26, subdivision (g) (now subdivision (h)) “as directing the court to consider the child’s wishes to the extent ascertainable. [¶] . . . Error cannot be predicated on the juvenile court’s failure to consider the express wishes of the child when the child is not capable of adequately expressing those wishes.” (Juan H., at p. 173.) And so it is here, the social worker having opined that A.V. was “not articulate enough” to express her wishes.
Mother did not raise the issue in the juvenile court. DCS contends that had mother done so, the juvenile court could have ordered A.V.’s presence at the hearing and allowed the social worker to be cross-examined as to her opinion of A.V.’s maturity; thus, mother has forfeited the issue. Citing In re Erik P. (2002) 104 Cal.App.4th 395, 399-400, mother contends that challenging an adoptability finding as not supported by substantial evidence is an exception to the forfeiture rule, which applies here. Without deciding whether mother’s argument regarding consideration of A.V.’s wishes is akin to a substantial evidence claim, we give her the benefit of any doubt and proceed to address her contention.
Subdivision (h) of section 366.26 has been interpreted to mean that, prior to terminating parental rights, the court must “consider the child’s wishes to the extent ascertainable.” (In re Leo M. (1993) 19 Cal.App.4th 1583, 1591.) However, the evidence need not be in the form of direct testimony in court or chambers; it can be found in court reports prepared for the hearing. (Ibid.) Indeed, what the court must strive to do is “explore the minor’s feelings regarding his/her biological parents, foster parents, and prospective adoptive parents, if any, as well as his/her current living arrangements. . . . [A]n attempt should be made to obtain this information so that the court will have before it some evidence of the minor’s feelings from which it can then infer his/her wishes regarding the issue confronting the court.” (Id. at p. 1592.)
Here, the permanency hearing was held two months before A.V.’s fourth birthday. Pursuant to section 317, subdivision (e), when the child is at least four years of age, the child’s attorney is required to interview the child to determine the child’s wishes and to assess the child’s well-being. Here, of course, A.V. was not yet four years old; thus, to the extent the statute applies to a child who is four years of age or older, it does not apply to A.V. Thus, A.V.’s counsel was not statutorily required to perform such an interview or to advise the court of A.V.’s wishes. Nonetheless, mother contends “[t]he court could not have properly inferred [A.V.] was too young to give a meaningful statement or to otherwise express her wishes because she was almost four years old, she had been described as being on target in her development and her caregiver described her as a ‘smart young lady.’” We cannot agree.
As DCS points out, in the opinion of the social worker who prepared the adoption assessment, A.V. was “‘not articulate enough to tell the [social worker] about her wishes regarding adoption.’” The social worker also stated that A.V. and Janet R. had a “‘significant emotional attachment,’” and that A.V. viewed Janet R. as her mother. In light of this information, the court was clearly presented with evidence of A.V.’s wishes. In the absence of a request by mother’s counsel for the court to interview A.V. in chambers, we fail to see what more the court could have done.
Furthermore, alluding to a purported “beneficial relationship exception,” mother contends there is indirect evidence that A.V. wanted to continue a relationship with her and that she even preferred her to Janet R. Pointing to A.V.’s defiant behavior immediately following visits with her, mother argues this “provides evidence of separation-anxiety with a mother whom [A.V.] obviously still cares for.” She concludes: “Insofar as there was no direct evidence of [A.V.’s] wishes, and the indirect evidence shows that [A.V.] wanted to continue a relationship with her mother, the juvenile court’s findings and orders regarding adoption must be reversed.”
Mother explains that this exception was not raised on appeal because trial counsel “for some reason” failed to raise it below.
Notwithstanding mother’s position, even if A.V. was able to articulate to the court that she wanted to stay with mother, the result would have been the same. Given the totality of the evidence, including the adoption assessment report, the court was provided with adequate information upon which to base an adoptability finding and to select adoption as the permanent plan for A.V.
DISPOSITION
The order terminating parental rights is affirmed.
We concur: RICHLI Acting P.J., GAUT J.
In this case, Janet R. was identified as A.V.’s prospective adoptive mother. We disagree with mother’s position that by reason of Janet R.’s failure to complete an adoption application, her interest in adopting A.V. can only be described as “vague.” In our view, completion by Janet R. of an adoption application was only a formality which had no bearing on her commitment to adopt. In that regard, In re Jacob E. (2004) 121 Cal.App.4th 909, 922-923, upon which mother relies for the proposition that even if a person expresses an interest in adoption, he or she cannot be identified as a prospective adoptive parent unless he or she has filled out the necessary paper work, is inapposite. The issue in that case was whether the court abused its discretion in failing to hold a hearing before the child was removed from the care of his maternal grandmother. The appellate court concluded that no hearing was required because the grandmother was not a prospective adoptive parent, as she had utterly failed to cooperate with the department and also had not completed an adoption application. Simply because the grandmother in that case failed to complete an application does not, without more, mean that because Janet R. did not complete her application, she cannot be designated a prospective adoptive parent.