Opinion
NOT TO BE PUBLISHED
San Mateo County Super Ct. No. 73055.
Lambden, J.
Ruby R. (mother) appeals from the order following a hearing pursuant to Welfare and Institutions Code section 366.26. The juvenile court found M.V. adoptable and terminated mother’s parental rights to M.V. Mother claims that insufficient evidence supported the court’s finding that M.V. was adoptable. We are unpersuaded by her argument and affirm the judgment.
All further unspecified code sections refer to the Welfare and Institutions Code.
BACKGROUND
Prior Proceedings
The facts prior to the section 366.26 have been set forth in detail in our prior nonpublished opinion In re M.V., A115837, filed on February 15. 2007. In this nonpublished decision we denied mother’s writ petition from the order setting the section 366.26 hearing. The facts and proceedings prior to the section 366.26 hearing, as set forth in this nonpublished decision, are in relevant part as follows:
In another decision concerning M.V., we reversed the court’s order that removed M.V. from the home of his foster parents. (In re M.V. (2006) 146 Cal.App.4th 1048.)
M.V. was born in February 2004, to mother and the presumed father, M.M., who resided in a household of extended family that had an extensive history of domestic violence, including physical fights by the parents. The precipitating event for this dependency was a Stanford Hospital emergency room visit on July 2, when M.V. was four months old. He had a fever plus pain in his left arm. X-rays showed a spiral fracture of the left humerus, deemed non-accidental. The perpetrator was never identified. Neither parent admitted the abuse; mother insisted the father was not responsible.
An original petition filed on September 30, 2004, by San Mateo County Human Services Agency, Children and Family Services (the agency), was sustained as amended on November 6, on waivers of rights by both parents, for risk of serious physical harm (§ 300, subd. (a)) and severe physical abuse (id., subd. (e)). M.V. was made a dependent and placed out-of-home, having been detained since July 1 while the parents underwent mental health evaluations.
The court held a six-month status review hearing and continued dependency for a 12-month status review hearing. A report for the 12-month status review hearing by M.V.’s court appointed child advocate (CASA) indicated that it was difficult to assess how much M.V. benefited from parental visits, that the parents had not shown enough progress to reunify within the statutory time, and that M.V.’s safety was a concern for lack of a record of successful supervised visits. A report by mother’s therapist, Marie Clemente, noted moderate participation and good efforts and caring by her, more passive and less engaged participation by the father, but slow progress by mother and, due to “serious concerns” about M.V.’s safety if returned, a need for continued treatment to address child abuse, risk factors, prevention and intervention. A status review report noted 14 months of services with “some” but no “substantive” progress with the case plan, 120 supervised visits by the parents (three per week for mother) that went well overall, but significant unresolved therapeutic issues (including the source of M.V.’s twist-fractured arm), lack of enough progress to begin unsupervised visits, and a “highly unrealistic” prospect of the parents demonstrating, in the 90 days remaining in the outside18-month time permitted, an ability to protect their son full time. The report recommended terminating reunification services.
Then in November, pending a continued hearing date, an update evaluation by a second psychologist, C. Mark Patterson, Ph.D., expressed somewhat rosier views. In an initial evaluation seven months earlier, Patterson had found “some problematic aspects” of mother’s personality, like difficulty managing anger and histrionic personality traits such as “easy sociability and overt friendliness, impulsivity, a desire to be the focus of attention, a tendency to seek excitement, and self-dramatization.” His current findings, based on one further interview, “were consistent.” He had spoken as well with Social Worker Clemente, who related “ ‘pretty positive progress’ ” overall, “ ‘quite positive’ ” family visits, a cessation of couples therapy after mother separated from the father, and that mother “could be an adequate parent to her son as long as she were to have ‘a lot of support’ in that role.” Mother acknowledged a need for more classes and education, said she had suffered low self-esteem that was now improving, and expressed love and affection for her son, and positive help from services. She reported “a very high level of stressful life events (e.g., separation, new job, her move to a new location) in the past year, although she did not report significant stress in her role as a parent related to her son’s behavior or to her own behavior.” Patterson felt: “Based on the available information, [mother] continues to demonstrate her motivation to benefit from interventions to promote her development of parenting skills and, more generally, her mental health. The available information also supports the conclusion that she has made substantive progress (i.e., more than negligible progress) in that regard since April 2005.”
An addendum from the agency for the hearing in November 2005 noted plan compliance, but lack of “substantive progress,” and continued to urge termination of services. Against the recommendation, the court found a probability of return “based on Dr. Patterson’s report” and ordered further services. It set an 18-month review for January 2006 but reserved ruling on unsupervised visits pending an ordered parent/child relationship assessment by Renée LaFarge, Ph.D.
LaFarge submitted her report nine days before the January 11 hearing. It was focused on the feasibility of unsupervised visits and was based on a review of reports and the prior evaluations, plus six hour-long sessions, over two weeks, of direct contact with mother and child and observing, as well, the child’s reactions to separations and reunions with people who brought him to the sessions. LaFarge recounted examples at length but, overall, saw “avoidant” behavior by M.V. toward mother and, on the other side, overinvolved or controlling behavior, often oblivious to the child’s wants, dislikes and emotions. LaFarge found in mother a “distraught single parent who presents with identifiable and rectifiable problems. Even though she tends to be overcontrolling, [she] is also warm and loving with [M.V.] and appears desperate to establish a positive relationship with him, but she does not know how to accomplish that. She continually makes overtures toward him that he rejects, yet she does not take in his responses and continues to overwhelm him with her actions.” Of greatest concern was that M.V. was “not adequately bonded with or attached” to mother. Also of concern was the poor interaction, given “the coercive relationship between abusive and potentially abusive parents and their children.” “Difficulty in communication leads to frustration for the parent and significant agitation and frustration for the child,” LaFarge explained, and “[i]ncreased frustration for the parent is a red-flag for repeated abuse to occur.” Nevertheless, and while LaFarge found “many deficits . . . present in the mother-child relationship,” she did not feel that they “indicate a need to change the long-term reunification plan.” Before any unsupervised visits should take place, however, mother needed “an interactive, in-vivo parenting coach” who could guide her and M.V. through six to eight visits, an intervention that traditional family therapy and anger management classes would not address. Unsupervised visits could start only once the coach, in consultation with the social worker, found them appropriate.
A contemporaneous report by the CASA, noting M.V.’s age of 23 months, current shelter care, and recent negative personality changes after a removal from foster parents of 20 months to whom he had bonded strongly, stressed M.V.’s need for permanence and urged that he be either placed in an adoptive home or returned to mother with support and services. The CASA feared that the effect of recent changes in mother’s life—ending the relationship with the father, losing her job, financial hardship and having to move again—were causing depression that could diminish her ability to give M.V. “the care and focused attention that such a young child needs.” Buoyed by Patterson’s findings yet “not confident in recommending” a return until she had seen LaFarge’s, the CASA believed that returning M.V. or releasing him for adoption were both “better alternatives” than keeping him in temporary foster care.
An 18-month status review report supported unsupervised visits and a long-term plan of reunification with mother, although with visits still unsupervised, return was not recommended. Mother was seeing M.V. three days per week, two for supervised visits and one for family therapy. M.V. had begun to identify with his parents, calling them “mom” and “dad,” and mother was responding better to his needs and cues. (Services for the father had been terminated at 12 months, and he was in a new relationship.)
At a conference on January 11, 2006, it was clarified that the agency was now recommending, not adoption, but, with 18 months of services having passed, “a plan of long-term placement” in hopes that mother would eventually reunify, with or without services. The matter was set for a contested 18-month review on March 7. In successive update letters, LaFarge first resisted further services, raising alarm about mother’s lack of progress and M.V.’s need for permanence, but then retracted that view and supported working toward unsupervised visits.
On March 7, the court ordered further reunification services on an “extraordinary circumstance” finding that lack of a track record of unsupervised visits was not mother’s fault. The court ordered (rather than merely authorizing) unsupervised visits to begin after mother had some coaching at supervised visits.
A new report and the case plan goal going into the May 10 hearing contemplated a return to mother under agency supervision. The report noted that mother lived with “a male roommate” in a one-bedroom apartment, had safety measures in place there, and had 32 successful unsupervised visits, some overnight, with one unannounced monitoring visit. Negatives were that mother had allowed a five-year-old in her care to answer the door for the monitor, who then heard mother and her roommate arguing from the closed bedroom. Another negative was that mother had once run into the father at a MacDonald’s near her home and, without authorization, allowed him an hour-long visit with M.V. Clemente and the foster parents reported overall positive visits and reactions by M.V.
Those prospects changed shortly before the May 10 hearing, and M.V. was not returned. An altercation between mother and the roommate—her “boyfriend,” mother confided—had led her to call the police, oust the boyfriend, and secure a restraining order against him. This left her now unable to pay the rent, needing to find a job and/or a new roommate and, counsel said, stuck in a lease that the landlord wanted honored through September. All of this had been “hectic,” mother’s counsel said. The agency was concerned about the instability, mother’s difficulty in managing relationships with her child and a boyfriend at the same time, and reports from the foster parents that M.V.’s speech and behavior had regressed in the past few days. Counsel for the child bemoaned the “chaotic” turn of events, that mother had run into the father at MacDonald’s, and that services were still being offered at 22 months after M.V.’s removal. The court strongly admonished mother that she had to put her son first, could not switch roommates without screening checks, and had to find a suitable place to live and no longer put off applying for CalWORKS assistance. The court said it had found extraordinary circumstances based on what it saw as mother’s ability to put her son first. It now found “nothing to warrant retracting that finding,” but mother would have to “forget about” her boyfriends and her own needs enough to put her son first. The court accepted mother’s assurances that she would do this and, over the concerns of the agency and M.V.’s counsel, continued services, ordering the agency to assist mother in getting out of the lease. Review was set for September 6.
On September 5, the day before the scheduled review, the agency filed a section 388 petition to modify the May 10 order to terminate reunification services and set a section 366.26 hearing. Cited was mother’s failure to utilize services to reunify, a decreased attendance at therapy sessions, and an evident depression that affected her ability to meet her own needs and make rational decisions for herself and M.V. M.V. had now been placed out of home for 26 months and allegedly needed permanence to help address speech, language, and motor delays. The petition was supported by M.V.’s counsel. On September 6, a contest was set.
An addendum report of August 31 from Social Worker Nicole Hayes detailed the circumstances. Medical and developmental testing of M.V. disclosed needs for physical, speech and language therapy. At 26 months of age, his expressive speech was at the 14- to 16-month level, with frequent omission of the final sounds in words. A “mild spastic diplegia with hyper-reflexia and bilateral ankle catches” featured recent walking on his toes rather than whole foot, poor balance, and decreased range of motion in the hip.
The child’s reactions to mother had changed markedly. He displayed a “flat affect” when with her, pulled away and resisted affection and food, even struck her on one occasion, no longer looked forward to visits, and yet resumed a happy and verbal demeanor when with others. He now used the names “mom” and “dad” for his foster parents, and they were concerned that he was returning from visits with blisters, and with feces in his diaper. Mother had also been giving him foods he could not tolerate despite knowing of his dietary restrictions.
It was not true, as represented at the May 10 hearing, that mother was bound by a lease on the apartment she had with the boyfriend. Rather, a check by Hayes with the property manager two days later revealed that mother was not on the lease and was being evicted—her length of residence there requiring the manager to give her 30 days notice. The manager could not offer mother the apartment, he said, because she had “ ‘the worst credit report.’ ” Mother thus had to vacate by June 15. She then moved in with a sister and brother-in-law, and their two children, and, with considerable assistance, eventually got her own apartment on August 30.
Mother’s participation and progress in therapy, Clemente reported, had declined. Mother was at first active in individual counseling sessions but, starting in May, attended less often and now made only about half the scheduled sessions. She had started family therapy with Clemente in June, and likewise, was initially able to provide structure and predictability in a calm home environment, but now, her progress toward every treatment goal had decreased, a change apparently coinciding with the changes in her life—a break up with a partner, financial stress, and seeking a job and housing. M.V. had “special needs” for “language, social-emotional and motor issues” and would need services, plus consistency both in those services and in daily life, to prosper. Mother could provide structure and predictability when stable but not when “profound stressors” existed. Her “anxiety and depressive symptoms” inhibited her from accomplishing needed tasks, and Clemente had referred her to a psychiatrist for medication management.
Hayes also related various problems of mother failing to communicate or making excuses that Hayes knew not to be true. The foster parents had complained, during a July mother/son visit, that they kept leaving voice messages on mother’s phone but that her phone went “straight to voicemail.” Then mother failed to return M.V. at the appointed time and left them a message over an hour later saying she had gone to see her mother in Fairfield and was on her way back. Mother had no answer the next morning when asked by Hayes why she did not inform Hayes of her plans to take the child to Fairfield. Hayes also related several instances of mother being asked, and failing, to provide her with a work schedule so that visitation could be arranged. Then a conflict arose about an arranged August 30 visit for which Hayes recalled telling mother twice, at the end of one visit, of the time and place for the next, yet mother claimed that she (and a sister-in-law and cousin) heard Hayes give a different time. A week earlier, mother had called to say she missed a visit due to car trouble, insisting she had left Hayes “voicemails,” yet Hayes had received none.
Hayes reported that, while mother was demonstrating hopeful progress in insight, parenting ability and priorities, Hayes and others had all seen a shift in her by late May. Mother seemed to function best when with a partner but, when alone, was unable to meet her own needs adequately, and Hayes was also gravely concerned about mother getting into “codependent relationships.”
Hayes saw that mother loved her son but continued to display the “limited coping skills, fluctuating self-esteem, and contradictory behavior” that Press had identified in August 2004. Also consistent with Press’s early findings, mother continued to “express her anger passive aggressively” and attribute her own angry feelings to others, something that had increased as her level of stress increased. Mother’s stress-filled lifestyle had rendered her incapable of sustaining daily routine in an effective and healthy manner for M.V., and she had “regressed in her progress due to lack of continued involvement in the therapeutic process.” When discussing with mother her behaviors, actions and choices, mother “often turned the conversation around and began to blame [Hayes] for a variety of things as a means to shield herself” from self-examination. Clemente had said mother needed more time to demonstrate her ability to parent and provide, but the statutory time had run out, and M.V. needed and deserved some permanency and the chance to bond to permanent caregivers. Hayes saw no substantial probability of return and recommended terminating services and setting a .26 hearing.
An early October letter from Clemente reported that mother had “made efforts” to keep appointments and address her frustration about possible termination of rights, had just begun group therapy offered to build coping skills, and was “increasingly conscious of” providing M.V. more structure “as opposed to ‘being on the go’ with little structure.” Mother was “at times” able to take responsibility for “the inconsistencies she has shown in her therapy sessions in the past, but continues to express that she had valid excuses due to illness or misunderstandings between her and [her] social worker.” Clemente stuck by her earlier evaluation and, without urging a return, recommended more services or, if those were no longer available, then individual counseling for loss.
A final addendum from Hayes in mid-October noted Clemente’s report, stood by the earlier recommendation for terminating services, and related recent interactions with mother, many of which corroborated an impression of mother’s persistent unreliability, resistance, lack of cooperation, and tendency to blame others. She had missed visits, been late other times, and still resisted giving Hayes work schedules. On the latter point, there were marked inconsistencies suggesting lying by mother. Hayes contacted mother’s work manager, Abebe, and learned that mother had been missing work, calling in to say she had to miss because of visits Hayes had scheduled; but Hayes was scheduling visits only for days mother said she had off from work. Abebe also told Hayes that work schedules were posted on Thursdays and not changed unless employees were approached about the changes and agreed. Abebe also relayed in conversation with Hayes that mother had not worked at all the past week “due to a reported bike accident,” whereas mother had never mentioned an accident to Hayes.
Testimony at the hearing on October 24 and 25 came from Hayes and mother. Hayes opined that M.V. was in significant danger, or substantial risk, of physical harm and neglect, if returned immediately to mother, and recounted much of what was in her reports, adding that mother had “a low frustration tolerance and ongoing anger issues” and had isolated herself from therapeutic support. Hayes also cited of mother’s recent “deceptive behavior” and “manipulative lying,” like the claim that her family members had heard her give a different visitation time (which had occurred over the phone, not in their presence), the bike accident claim and telling her employer she had to miss because of visits. Also of concern to Hayes were the men in mother’s life, especially with her history of relationships involving domestic violence. Mother was involved with men yet, when asked, would say “it’s a needs relationship,” which Hayes assumed meant sexual needs rather than ongoing relationships. Hayes did not know who these men were or whether mother could protect M.V. from them. Hayes recalled the man with whom mother had shared the apartment (later conceded to be a boyfriend) and that mother had said: “ ‘He’s my friend. It’s a relationship purely for financial means.’ ” Her dependence on people who could leave anytime also left mother and son vulnerable.
Hayes saw no improvement until the last minute—after the last hearing. Clemente wrote that mother’s upset over the prospect of terminating her parental rights was what had motivated mother to keep appointments. And while mother was now on medication and Clemente had written that mother “ ‘feels the medication has helped calm her and helped her not become reactive,’ ” this did not mean Clemente shared that assessment. Mother had been offered medication before, but refused it. Hayes saw no improvement in her coping skills, noting that she had just begun the new group.
Mother’s visits had dropped from three a week to two once she started “working fully,” and Hayes still had trouble getting her to supply a work schedule each Friday, as repeatedly requested, which made it hard for Hayes to arrange transportation and work with the foster parents’ schedule. Mother had only Fridays off consistently. She had said that she had Thursdays off, too, but this proved not to be so.
Mother herself was the only “external factor” preventing reunion, and Hayes distinguished mother’s “participation in” the plan to “progress” in it. Stated differently, mother’s only progress was her consistent participation, which Hayes saw as “an 11th-hour effort to reconvene with services in an attempt” to reunify. Over the last two weeks, Clemente had expressed concern to Hayes about returning M.V. to mother now. Clemente was concerned about an unknown man mother was “clearly depending on for some kind of support,” yet mother’s inability in therapy to address “why she involves herself in these codependent relationships” or “the stressors of being alone.”
Hayes also stressed mother’s “contradictory” behavior and actions in scheduling, like calling in to work sick over a bike accident that Hayes saw no evidence of that same week, and mother not calling to schedule visits that week. Hayes was also suspicious, on the home visit, that mother had a boyfriend concealed there.
Mother testified on the second hearing date. Since hearing concerns about her case plan performance in September, she had sought psychiatric help and was now taking Wellbutrin. She felt that it was helping, as was the recently begun group therapy on “[h]ow to deal with coping skills” (sic). Regarding the apartment visit, mother said she did have bedding for M.V. and that the boots and shirt that Hayes saw belonged to her cousin, who was in the bathroom “on the phone.” She did not know of any reason Hayes would lie but insisted that she never told Hayes that her niece, nephews and cousin had just been picked up. Also, there were noises, including talking on the phone, coming from the bathroom, and Hayes never asked to go into the bathroom. Hayes lied in saying mother said her nephews and cousin were in there. Mother said it was her cousin, Arturo, who had just come from Mexico and was living between there and her sister’s place.
Mother said that her bike accident was when a man riding a bike ran into her as she was walking, and that Hayes was lying about her employer saying she took a week off. It was only two days. Hayes also lied about her not giving schedules, not complying with the plan, not using resources, what they spoke about—“all that stuff.” Further, she did have every Thursday (as well as Friday) off.
The man she had gotten the restraining order against, mother testified, was Gerardo Israel Layva, and he was not her “boyfriend.” He wanted to “go out” with and had “feelings for” her, and “it was mutual”; however, and while they did have sex together “[a] couple of times,” she did not consider herself “romantically involved.” She conceded calling Layva a “boyfriend” at the May 10 hearing. When she told Hayes she had “needs,” mother explained, she meant that there are “times that I want to be intimate with someone”; she did see those as “relationships.” Mother felt that when the court warned her back in May against having men in her life besides her son, the court meant: “No live-in men. [¶] Basically that’s my definition.”
Mother also insisted that she had told Hayes about the April car accident the week after it occurred, not just after the May 10 hearing. She said there were police reports and that police had come out to her house three times. She did not have a copy of any report, however, and, when questioned by the court, said she only got a “card” from one officer (also not produced).
As announced the day before, at the close of Hayes’s testimony, Hayes was unavailable to testify on the date of mother’s testimony. In rebuttal, however, the court accepted an unchallenged offer of proof that agency records showed mother having called Hayes about the car accident, and being “jumped,” on May 11. To rebut testimony by mother of limited visits with M.V., that he had been on vacation “[e]very other week” in October and that she had been able to visit him only three or four times in October, the court accepted an offer of proof that mother had visits on seven days in September, four in October, and had missed a fifth scheduled date in October.
After hearing the testimony, the court continued dependency, terminated services, reduced visitation to once a month (over mother’s objection), and set a section 366.26 hearing for February 22, 2007. Mother filed a writ petition, which we denied.
Current Proceedings and Reports
The agency filed its section 366.26 report on February 9, 2007. Clemente had reported that M.V., who was now three years old, was displaying a wider range of affect. The adoptive social worker, Carlos Bravo, provided an analysis of the likelihood of M.V.’s adoption. He noted that in the last few weeks he had seen a “dramatic” change from M.V.’s earlier “saddened look.” Bravo observed that M.V. now flirts with his eyes, is ready to laugh, and giggles. Further, he “has a soft demeanor and does not present any aggressive or violent behavior. He is sensitive and likes to cuddle with his caregivers.” He eats and sleeps well and is overall a healthy child.
Bravo further noted that M.V. needed specialized services such as speech therapy and weekly occupational therapy. Although he was progressing in his gross motor skills, he continued to have developmental issues that require continuous services to maintain the progress he had shown in treatment.
M.V., according to Bravo, had attended preschool the last month and his teacher described him as a “ ‘delightful boy.’ ” He did not present behavioral problems with the other children.
Bravo recounted the various caregivers of M.V., but noted that he was attaching to his current caregivers where he had been residing for over one year. Bravo stated that M.V.’s ability “to develop a permanent and secure attachment is at serious risk and it is imperative that he be in a permanent placement.”
With regard to M.V.’s adoptability, Bravo stated: “Due to the losses he has endured, his age, and his developmental issues, the pool of adoptive families is decreased; however this is not a barrier to finding an appropriate adoptive family. The agency has been able to successfully place for adoption other children of [M.V.’s] age and with his characteristics. [M.V.] is adoptable.”
The agency’s report stated that it had not yet identified prospective adoptive parents for M.V. M.V.’s maternal grandmother requested placement, and the agency was reassessing her home and her ability to provide permanency for M.V. Although the agency had been concerned with some issues related to grandmother in the past, it noted that she had “been cooperative and conscientious in working with the adoption social worker and appear[ed] to be committed to the child’s well-being.” The agency stated that it had not considered other prospective adoptive families for M.V. because of “the uncertainties of the legal proceedings.” The adoption worker, however, was confident that a prospective adoptive home could be identified for M.V.
The agency attached to its report a written progress summary from M.V.’s therapist, Clemente. She noted that during the initial phase of treatment, M.V. “displayed significant traumatic symptoms of withdrawal and emotional flatness which effected social interactions, and he was clearly distraught emotionally and overall appeared disinterested in his surroundings.” Recently, he had started to display a wider range of affect and had engaged in play that was “richer in content[.]” She noted that it was “critical that any transition in his placement toward permanency be done with utmost respect for [M.V.], and that a very slow transition take place in conjunction with active involvement in [M.V’s] treatment.
The court held its hearing on February 22, 2007. Bravo testified that he concluded that M.V. was adoptable even though he had some developmental problems. When asked whether he was aware that M.V. had cerebral palsy, he stated that he recalled reading that diagnosis but was not aware whether M.V.’s cerebral palsy had been assessed. In coming to the conclusion that M.V. was adoptable, Bravo considered “[h]is current and prior placement . . . . While [M.V. had] been removed from the mother, he ha[d] been able to attach.” He stated that M.V. related to his shelter care parents, although these foster parents were not interested in adopting him.
Bravo stated that he had looked for an adoptive family for approximately one year, but had not identified an adoptive family yet. When asked whether he believed it would be difficult to place M.V. for adoption, Bravo responded: “No. I think he has great qualities to be adopted by an appropriate family.” He stated that he had not yet identified any prospective adoptive parent other than the grandmother for the following reasons: “Well, there is a lot of legal uncertainty, to start with. The prior, during the last year he had a great deal of visits or contact with the mother; overnights, that would––that would make it very difficult for a prospective fost/adopt family to be willing to take him as a high-risk child from their home.” When asked to define “high risk,” he stated that the label applies “when the legal proceedings and the contacts with the birth family are great, are many visits to start with. [¶] We see that many fost/adopt families are not willing to take the emotional risk to have the child placed in their home with a possibility of returning back to the birth parents.”
Bravo stated that he had completed about 30 adoptions, and about one-half of these adoptions involved children with disabilities. Some of the adopted children had cerebral palsy. Compared to these other children who were adopted and had disabilities, M.V.’s disabilities were, in Bravo’s opinion, “mild.” He testified that M.V. had mild cerebral palsy and he did not believe that this disability would “impair him from being adopted.”
Hayes, the social worker who prepared the agency’s report, also testified. She believed it would not be detrimental to terminate mother’s parental rights because M.V. and mother do not have a mother and son attachment and M.V. is not unhappy leaving at the end of his visits with mother. Since his visits with mother had decreased, his affect had improved. Hayes attributed his improvement to the “[c]onsistency, stability, [and] nurturance” that he was receiving from his current foster home. Hayes stated that M.V. had been diagnosed with mild cerebral palsy, which affects his gross motor skills. He was receiving therapy and responding to therapy. She explained that he “presents uncoordinated, like a clumsy child, someone that just might be prone to accidents a little more frequently than the normal child. But cognitively he’s age appropriate.”
Hayes stated that she had managed about 10 cases that had proceeded to adoption and most of those children had disabilities. Compared to the other children with disabilities, Hayes characterized M.V.’s disabilities as follows: “Mild. Very mild disabilities. Like I said, you wouldn’t even notice unless you had an ongoing relationship with him.” She did not believe that his disability would “impair” his ability to be adopted. She noted that, in addition to cerebral palsy, he could not tolerate certain foods and had speech delays.
After hearing the evidence, the court concluded that there was “more than clear and convincing evidence that [M.V.] will be adopted.” The court terminated the parents’ rights and ordered that M.V. be immediately placed for adoption.
Mother filed a timely notice of appeal.
DISCUSSION
I. Section 366.26 and the Standard of Review
At a section 366.26 hearing, the juvenile court is required to select and implement a permanent plan for the dependent child. If the child is likely to be adopted, adoption is the preferred permanent plan. (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164.) “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. The fact that the child is not yet placed in a preadoptive home nor with a relative or foster family who is prepared to adopt the child, shall not constitute a basis for the court to conclude that it is not likely the child will be adopted.” (§ 366.26, subd. (c)(1).)
Mother contends that substantial evidence does not support the juvenile court’s decision that M.V. was adoptable and therefore the order terminating her rights should be reversed. (See, e.g., In re Derek W. (1999) 73 Cal.App.4th 823, 827 [standard of review is substantial evidence].) The Agency cites In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351, which applied the abuse of discretion standard to the determination whether terminating the parent’s rights would be detrimental to the child. The Jasmine court, however, was not considering a challenge to the adoptability finding. Moreover, it stated that there was no practical difference between the abuse of discretion and substantial evidence standards of review. (Ibid.) We follow the long line of cases that have used the substantial standard of review (see, e.g., In re Autumn H. (1994) 27 Cal.App.4th 567, 576; In re Cliffton B. (2000) 81 Cal.App.4th 415, 425), but note that, if we were to apply an abuse of discretion standard to the facts of this case, the result would be the same.
“In reviewing the sufficiency of the evidence on appeal, we look to the entire record for substantial evidence to support the findings of the juvenile court. [Citations.] Evidence sufficient to support the court’s finding must be reasonable in nature, credible, and of solid value; it must actually be substantial proof of the essentials that the law requires in a particular case.” (In re N.S. (2002) 97 Cal.App.4th 167, 172.) We have no power to judge the effect or value of, or to weigh the evidence, to consider the credibility of witnesses; or to resolve conflicts in, or make inferences or deductions from the evidence. (In re Sheila B. (1993) 19 Cal.App.4th 187, 199.)
However, substantial evidence is not synonymous with any evidence. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393.) “A decision supported by a mere scintilla of evidence need not be affirmed on appeal. [Citation.] Furthermore, ‘[w]hile substantial evidence may consist of inferences, such inferences must be “a product of logic and reason” and “must rest on the evidence” [citation]; inferences that are the result of mere speculation or conjecture cannot support a finding [citations].’ [Citation.] ‘The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record.’ ” (Id. at pp. 1393-1394.)
II. The Finding of Adoptability
“ ‘The issue of adoptability requires the court 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. [Citations.] It is not necessary that the child already be placed in a preadoptive home, or that a proposed adoptive parent be waiting. [Citations.] However, there must be convincing evidence of the likelihood that adoption will take place within a reasonable time.’ ” (In re Asia L. (2003) 107 Cal.App.4th 498, 510.) “ ‘Usually, 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.’ [Citation.] Alternatively, evidence of ‘approved families willing to adopt a child of [this] “age, physical condition, and emotional state” ’ can be used to evaluate the likelihood of the child’s adoption.” (Ibid.)
In the present case, there are people interested in adopting M.V. M.V.’s grandmother had requested placement and the agency believed that she was committed to M.V.’s well-being. Additionally, M.V.’s original foster parents are still interested in adopting him. M.V. had been removed from his placement with these foster parents, but we reversed that ruling in In re M.V., supra, 146 Cal.App.4th 1048. It was clear from the statements of counsel for M.V. at the hearing, and as both agency and mother acknowledge, that the foster family is still aggressively seeking custody of M.V. Although the foster parents lost their license to be foster parents and may not be approved by the agency, their interest in adopting M.V. supports a finding that M.V. is adoptable. (See, e.g., In re Asia L., supra, 107 Cal.App.4th at p. 510.)
Not only do the facts that both grandmother and the original foster parents have an interest in adopting M.V. support a finding of adoptability, Bravo, the adoptive social worker, testified in court and presented the court with his written assessment. He concluded that M.V. was adoptable. He noted that M.V. displayed no aggressive or violent behavior, but “is sensitive and likes to cuddle with his caregivers.” Indeed, his teacher described him as a “ ‘delightful boy.’ ” Bravo opined that M.V. eats and sleeps well and is overall a healthy child. Although M.V. had suffered emotionally because of his removal from both his parents’ home and later the home of his original foster parents, M.V. was still able to attach emotionally to his current caregivers. With regard to his adoptability, Bravo acknowledged that M.V. had mild development problems, but he still believed he was adoptable. He opined: “Due to the losses he has endured, his age, and his developmental issues, the pool of adoptive families is decreased; however this is not a barrier to finding an appropriate adoptive family. The agency has been able to successfully place for adoption other children of [M.V.’s] age and with his characteristics. [M.V.] is adoptable.”
Bravo testified that he had been looking for an adoptive family for approximately one year, but had not yet identified an adoptive family. He indicated that he did not believe it would be difficult to find an appropriate family, and that he had difficulty because of the “legal uncertainty” related to this case and M.V.’s frequent contacts and visits with mother. He noted that many families “are not willing to take the emotional risk to have the child placed in their home with a possibility of returning back to the birth parents.”
When asked whether M.V.’s mild disabilities, including mild cerebral palsy, would prevent his adoption, Bravo responded that he did not believe these mild disabilities would pose a problem. He had completed about 30 adoptions, and about one-half of those children had disabilities; M.V.’s disabilities were minor compared to these other children who had been adopted.
Hayes, the social worker for the agency who had prepared the agency’s report for the hearing, also indicated that no prospective adoptive families had yet been identified for M.B. because of “the uncertainties of the legal proceedings.” She stated that M.V. had mild cerebral palsy, which affected his gross motor skills. She explained that M.V. “presents uncoordinated, like a clumsy child, someone that just might be prone to accidents a little more frequently than the normal child. But cognitively he’s age appropriate.” She stated that she had managed about 10 cases that had proceeded to adoption and most of those children had disabilities. Compared to these children with disabilities who had been adopted, she characterized M.V.’s disabilities as follows: “Mild. Very mild disabilities. Like I said, you wouldn’t even notice unless you had an ongoing relationship with him.”
Mother contends that M.V. is a “special-needs child” under Family Code section 8545 and therefore it would be unlikely for him to be adopted. She also cites section 16120 of the Welfare and Institutions Code, which provides that barriers to adoption may occur when a child has “mental, physical, emotional, or medical disability that has been certified by a licensed professional” or is three years of age or more.
We reject mother’s argument. All of the evidence supports a finding that M.V. has a mild disability, which includes mild cerebral palsy, some dietary issues, and some delayed language skills. Neither Bravo nor Hayes believed these mild disabilities would impede his adoption and both had placed children for adoption who suffered from more serious disabilities. Mother attempts to attack Bravo’s credibility by arguing that his opinion was based on incomplete data on the cerebral palsy diagnosis. It is the trial court’s role to assess credibility and Bravo’s testimony makes it clear that he was aware of the cerebral palsy diagnosis.
Mother also maintains that the absence of any prospective adoptive parent established that M.V. was not adoptable. She cites three cases where the appellate court reversed the lower court’s termination of parental rights because the record did not support a finding of adoptability. (In re Brian P. (2002) 99 Cal.App.4th 616; In re Amelia S. (1991) 229 Cal.App.3d 1060; In re Asia L., supra, 107 Cal.App.4th 498.) These cases, however, are clearly distinguishable from the present case.
Unlike the present case, the court in In re Brian P. did not have the benefit of an adoption or assessment report. (In re Brian P., supra, 99 Cal.App.4th at p. 624.) Rather, the court based its finding of adoptability simply on the social worker’s opinion that the child was adoptable. (Ibid.) The facts in the record were “fragmentary and ambiguous” and said nothing about the child’s adoptability or likelihood of adoption. (Id. at pp. 624-625.) In contrast, in the present case, Bravo wrote an adoption assessment and also testified at the hearing. Both Bravo and Hayes provided particular details about M.V., which supported a finding that he was adoptable. Additionally, they testified that they had placed children for adoption that had more serious disabilities than M.V.
Mother’s reliance on In re Amelia S., supra, 229 Cal.App.3d 1060, is similarly unavailing. Amelia S. was a case that involved 10 brothers and sisters, and they were described as “ ‘hard to place’ ” minors. (Id. at p. 1063.) Here, there was no testimony suggesting that M.V. was not likely to be adopted. The record establishes that he is a loving child, cognitively at the appropriate age level, and able to interact with other children. Moreover, as already emphasized, it is not necessary to have an adoptive home already chosen. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.)
Finally, In re Asia L., supra, 107 Cal.App.4th 498, concerned the adoptability of three children who displayed significant emotional and psychological problems requiring specialized placement. (Id. at pp. 510-511.) 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.) Here, there was no evidence that M.V.’s minor disabilities were so severe as to pose an obstacle to adoption. Moreover, although it is not clear that grandmother or the prior foster parents of M.V. will be approved by the agency to adopt M.V., their unequivocal interest in adopting him supports the court’s finding that M.V. will likely be adopted within a reasonable period of time.
Mother also argues that the court’s statements at the hearing indicated that the court considered its own personal experience with adoptions rather than evidence. Mother claims the court supplemented the evidence with its own experience.
Mother complains about the following statements made by the court: “As [county counsel] has artfully argued, and as the evidence has shown beyond a clear and convincing standard, [M.V.] is not even a one on the one-to-ten scale of the kind of disabilities that would cause us to pause vis-à-vis adoptability. [¶] He has some gross motor impairment which renders him rather clumsy, according to Ms. Hayes. There are many clumsy children on the planet and many children with serious, serious motor impairment, loss of movement in one or more limbs, blindness, deafness, severe retardation, who are adopted every day of the week. [¶] We know that because the adoptions are done in this court when rights are terminated and dependency is terminated.”
We do not agree with mother’s characterization of what the court did. Moreover, the case she cites, Zasueta v. Zasueta (2002) 102 Cal.App.4th 1242, is inapplicable. In Zasueta, the reviewing court held that the lower court in granting the grandparents visitation, violated the law and the mother’s due process rights. (Id. at pp. 1253-1254.) No such violations occurred in the present case. The record thoroughly supported the lower court’s finding that M.V. was adoptable. Contrary to mother’s depiction of M.V. as having serious developmental issues, the record is clear that he has mild developmental issues. The evidence at the hearing established that M.V.’s cerebral palsy is mild and the experts opined that such a minor disability would not be an impediment to adoption. Bravo and Hayes testified, based on their assessment of M.V. and their experience in placing other children for adoption, it was likely that adoption of M.V. would take place within a reasonable time. (See, e.g., In re Asia L., supra, 107 Cal.App.4th at p. 510.) Additionally, and most notably, mother has ignored all of the wonderful qualities displayed by M.V. He is a loving child and is able to attach to his caregivers. He does not exhibit aggressive behavior and behaves well with other children. His cognitive abilities are age appropriate. Although grandmother and the prior caretakers of M.V. may not be approved by the agency to adopt M.V., their willingness to adopt indicates that M.V. “ ‘is likely to be adopted within a reasonable time . . . .’ ” (Ibid.)
Finally, mother argues M.V. is too emotionally fragile to be adoptable. Mother complains that the court relied on the speculative statements by Hayes and Bravo that they hoped he would be able to attach to another family. Hayes and Bravo, however, provided much more than simply a hope that M.V. would attach to another family. They testified that he had attached to his current caretakers and that his current teacher described him as “delightful.” The record contains evidence that emotionally M.V. is doing much better since he has stopped having visits with mother.
Although there is no doubt that great care will have to be taken when placing M.V. in a new home, the evidence indicates that he is able to attach and will develop an emotional bond with a caring family. Unfortunately, one of the consequences of the dependency proceedings is that the children do suffer emotionally. However, in the present case Bravo stated that M.V.’s ability to develop a permanent and secure attachment was at risk making it “imperative that he be in a permanent placement.” Further, although M.V. initially displayed significant traumatic symptoms of withdrawal and emotional flatness when he was first removed from the original foster parents’ home, since his visits with his mother have stopped, he has started to display a “wider range of affect[.]” Thus, the record establishes that any placement of M.V. into a new home must be done with care and sensitivity and that placement must be done as soon as possible.
Accordingly, the evidence in this record supports a finding that M.V. is adoptable.
III. Court’s Consideration of the Effect of Terminating Mother’s Parental Rights
Mother complains that the court based its decision that M.V. was adoptable partially on the basis that no prospective family had come forward and it concluded that terminating her parental rights would increase the number of families interested in adopting M.V. Mother claims that the court’s ruling that M.V. was adoptable was an abuse of discretion because there was no evidence that any families had refused to adopt M.V. because of the legal issues and his continued visits with his mother. She asserts that the court was not to determine that M.V. was adoptable prior to determining that parental rights would be terminated. (§ 366.26, subd. (c)(1).)
Specifically, mother objects to the following comments by the court: “I have absolutely no doubt whatsoever that [M.V.] is adoptable and that he will be adopted. I think the explanation given by Mr. Bravo during his testimony as to the reluctance and sort of gun-shy nature of adoptive prospective homes, to fall in love or get involved in an adoption case when there is extensive family contact with the child and legal wranglings, is understandable. [¶] People do not want to fall in love with a child and get excited about a future, to find out that the reunification track is going to be successful and the child is going to be back with the parent or that one of many, many appeals, writs, or what-have-you is going to pluck that child out from their bosom. [¶] I have no opinion at all as to where he should be placed. That is not this court’s job. That’s the job of the department. [¶] However, I do believe it’s abundantly clear that once these rights are terminated, there will be more than one family or one home open and excited about potentially having [M.V.] become a part of that family. [¶] So I am not going to extend the timeline on this proceeding. [M.V.] is entitled to permanence. Every child deserves permanence. And [M.V.] is one of the children who needs it more than anyone because of the unfortunate disruptions that have been necessitated by the failure of those with whom he has been placed to put his welfare ahead of all other concerns.”
Mother has simply tried to recast her substantial evidence argument as an abuse of discretion argument. The trial court could properly consider that an impediment to M.V.’s adoption had been the legal wrangling in the case and the possibility that mother would regain custody of M.V. Further, as discussed above, substantial evidence supported the court’s finding that M.V. is adoptable.
Mother argues that the court improperly rejected the alternative to rejecting her parental rights, which is set forth in section 366.26, subdivision (c)(3). Section 366.26, subdivision (c)(3) provides: “If the court finds that termination of parental rights would not be detrimental to the child pursuant to paragraph (1) and that the child has a probability for adoption but is difficult to place for adoption and there is no identified or available prospective adoptive parent, the court may identify adoption as the permanent placement goal and without terminating parental rights, order that efforts be made to locate an appropriate adoptive family for the child within a period not to exceed 180 days. . . . For purposes of this section, a child may only be found to be difficult to place for adoption if there is no identified or available prospective adoptive parent for the child because of the child’s membership in a sibling group, or the presence of a diagnosed medical, physical, or mental handicap, or the child is the age of seven years or more.”
Mother again argues that M.V. is difficult to place for adoption because of his physical disabilities. However, as already stressed, the record establishes that his mild disability would not be an impediment to adoption. The court did not, as mother argues, scuttle the statutory scheme.
We therefore reject mother’s attempt to characterize the court’s ruling as arbitrary or capricious in an attempt to ignore the ample evidence in the record supporting the lower court’s finding that M.V. is adoptable.
DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J. Richman, J.