IN RE S.E.

No. C083035.

In re S.E., a Person Coming Under the Juvenile Court Law. YUBA COUNTY HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. R.E., Defendant and Appellant.

Court of Appeals of California, Third District, Yuba.


NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115

DUARTE, J.

Appellant R.E., mother of minor S.E., appeals from the juvenile court's order terminating parental rights and freeing the minor for adoption. (Welf. & Inst. Code, §§ 366.26, 395.)1 She contends there was insufficient evidence to support the juvenile court's finding that the minor was adoptable. Disagreeing, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

We dispense with a recitation of the complete facts of this case, as they are not necessary to the resolution of this appeal, which challenges only the finding of the minor's adoptability. It suffices to say that on January 10, 2014, police found the minor alone and unattended in a hotel room at the age of two. There were health and safety hazards in the room. When mother returned to the room, she was verbally combative, uncooperative, and making bizarre and untruthful statements. The minor was taken into protective custody, where he presented as lethargic with quiet behaviors.

Yuba County Department of Health and Human Services (DHHS) filed a section 300 petition on behalf of the minor, based on mother's substance abuse, bizarre behavior, and failure to adequately supervise the minor. The juvenile court sustained the petition and removed the minor from mother, providing her with reunification services.

The minor had been diagnosed with a metabolic disorder (short-chain-acly-CoA dehydrogenase deficiency or "SCAD") that required a low fat diet to prevent seizures. An assessment indicated that he had "severe delay for language expression." However, by the time of the April 10, 2014 disposition hearing, the social worker reported the minor had "transitioned from a quiet and shy child to energetic and engaging," had adjusted well to his foster home, and was forming strong relationships with his foster parents, who also had biological children of their own. He was beginning to sleep in own bed, use utensils at meals, maintain personal hygiene, and starting toilet training.

The minor had speech therapy once a week and had made good progress on improving his language skills by October 2014. His behaviors had settled down and he had adjusted to his new environment. He was doing well emotionally and was described as a "snuggly" little boy.

Although the minor continued to improve in all respects, his foster mother was experiencing health issues and required bed rest. The minor needed to be moved, although it was not yet clear whether the new placement would be temporary. The foster father expressed an interest in having the minor returned to their home if the foster mother's health improved.

The minor was moved to a second foster placement in January 2015, without exhibiting emotional distress. This second foster placement was an emergency placement, and the foster parents were not interested in adoption. The minor was assessed in April 2015 and determined to be delayed in the areas of physical, adaptive behavior, and social-emotional, and below average in cognitive and communication. He had trouble speaking and a tendency toward minor aggression with other children (such as cheek pinching). He was, however, described as "loveable and gives lots of hugs."

In July 2015, it was reported that there were no remaining concerns with the minor's SCAD or other medical issues. He had scored "borderline" on an intelligence test, and his new primary disability was "specific learning disability" with a secondary disability of speech or language impairment. He was receiving special education services. The minor had stabilized both emotionally and behaviorally. At times he would still display negative behavior toward other children but, over the previous months, those behaviors had decreased.

An 18-month review hearing took place on September 23, 2015, wherein mother's reunification services were terminated and a section 366.26 hearing was set in January 2016. DHHS later requested a continuance of the hearing, in part to allow for a more detailed adoption assessment of the minor.

The minor's current foster parents requested his removal; they were transitioning away from offering foster care but also referenced the minor's behavior, which at times seemed to be regressing. Another foster home had been identified, but that foster mother was not interested in adopting. Nonetheless, he was placed there, while relatives were assessed.

A section 366.26 report was filed on July 20, 2016. The minor had been in his new (third) foster home since January 10, 2016. The foster mother had changed her mind about adoption, contacting the social worker in May 2016 to relate that she had grown attached to the minor, could not see him living anywhere else, and was now committed to adopting him. The minor appeared happy in his placement and had formed a positive attachment to his foster mother. He had been doing well in the home and was making very good progress. His socialization issues and aggression were no longer a problem. He had made progress in his learning skills, his speech clarity, his verbal skills, and his independent living skills. The minor was described as having "blossomed" since he was moved to his third foster home.

An adoption assessment was performed in June and July 2016. An in-home assessment was conducted and all available medical, psychological, scholastic, and developmental documents were reviewed. The foster mother was advised of and understood the responsibilities of adopting, was committed to adopting the minor, and a review of her application showed she was suitable for adoptive placement. Several meetings were also held with the foster family agency social worker and the minor's mental health providers to determine the long-term appropriateness of the minor's placement. After the meetings, it was "clear" that the current foster parent was committed to adopting the minor and all the service providers agreed it was a good placement. The minor had substantial emotional and loving ties to his foster mother and it was opined that removal from her home would be seriously detrimental to the minor's well being. Based on all the information, DHHS recommended terminating parental rights.

The section 366.26 hearing took place on August 3, 2016. No additional evidence was presented at the hearing. The juvenile court found the minor was likely to adopted and terminated parental rights.

DISCUSSION

Mother claims there is insufficient evidence to support the juvenile court's finding that the minor is adoptable. We disagree.

It is well settled that the juvenile court must find, by clear and convincing evidence, that a child is likely to be adopted before terminating parental rights and selecting adoption as the permanent plan for the child. (§ 366.26, subd. (c)(1); In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.) We review this finding for substantial evidence. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) "[W]e 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. [Citations.]" (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)

"The issue of adoptability . . . focuses on the minor, e.g., whether the minor's age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor. [Citations.]" (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649 (Sarah M.).) It is not necessary that the minor already be in a potential adoptive home, or even that there be a prospective adoptive parent. (Ibid.; see also § 366.26, subd. (c)(1) ["The fact that the child is not yet placed in a preadoptive home . . . shall not constitute a basis for the court to conclude that it is not likely the child will be adopted"].) And the prospect that the minor may have some continuing behavioral problems does not foreclose a finding of adoptability. (See In re Jennilee T. (1992) 3 Cal.App.4th 212, 224-225.) However, "[t]here must be convincing evidence of the likelihood that adoption will take place within a reasonable time. [Citation.]" (In re Brian P. (2002) 99 Cal.App.4th 616, 624 (Brian P.).)

While the issue of adoptability usually focuses on the minor, "in some cases a minor who ordinarily might be considered unadoptable due to age, poor physical health, physical disability, or emotional instability is nonetheless likely to be adopted because a prospective adoptive family has been identified as willing to adopt the child." (Sarah M., supra, 22 Cal.App.4th at p. 1650.) "Where the social worker opines that the minor is likely to be adopted based solely on the existence of a prospective adoptive parent who is willing to adopt the minor, an inquiry may be made into whether there is any legal impediment to adoption by that parent [citations]. In such cases, the existence of one of these legal impediments to adoption is relevant because the legal impediment would preclude the very basis upon which the social worker formed the opinion that the minor is likely to be adopted. [Citation.]" (Ibid.)

Here, mother does not argue that the prospective adoptive parent is unsuitable, or that there is any legal impediment to adoption. Rather, she argues that the minor's "individual traits" render him undesirable to prospective parents in general, as evidenced in large part by his "multiple placements" and "unresolved issues." Mother adds that the minor has been in his current placement for too short a time period, and that it is "too soon" to find him adoptable based on that placement.

First, the fact that any 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 minor are not likely to dissuade individuals from adopting him. (See Sarah M., supra, 22 Cal.App.4th at p. 1649.) 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." (Id. at pp. 1649-1650.)

Further, the evidence in this particular case supported a finding that the minor was likely to be adopted by his current foster mother. There were no apparent legal impediments to the minor's adoption and mother does not even purport to challenge the foster mother's suitability. Although she claims that the finding comes "too soon," we are aware of no authority for the argument that eight months together, resulting in well-documented progress to the minor's abilities and behaviors, is "too soon" for a finding of suitability and adoptability, and mother cites no authority supporting this assertion. Although the minor has special needs, developmental delays, and some behavior challenges, his skills and behavior had been improving. He had made progress in his learning skills, his speech clarity, his verbal skills, and his independent living skills. He was described as cuddly and lovable, and his foster mother had grown so attached to him that, after only four months with him in her home, she changed her mind and became committed to adopting him. We disagree with mother's suggestion that the minor's two previous placements weigh against his adoptability or signal a change of mind is likely in his current placement. As we have explained, the minor's first placement was terminated because of the foster mother's medical condition and his second was never intended to be an adoptive home. The fact that he is thriving in the first real home in which he had a chance to be adopted is in and of itself sufficient evidence of his adoptability, but we have described other proper bases for the juvenile court's finding as well.

Substantial evidence supports the juvenile court's decision to find the minor adoptable by clear and convincing evidence and terminate parental rights.

DISPOSITION

The orders of the juvenile court (terminating parental rights) are affirmed.

Nicholson, Acting P. J., and Robie, J., concurs.

FootNotes


1. Further undesignated statutory references are to the Welfare and Institutions Code.

Comment

1000 Characters Remaining

Leagle.com reserves the right to edit or remove comments but is under no obligation to do so, or to explain individual moderation decisions.

User Comments

Listed below are the cases that are cited in this Featured Case. Click the citation to see the full text of the cited case. Citations are also linked in the body of the Featured Case.

Cited Cases

  • No Cases Found

Listed below are those cases in which this Featured Case is cited. Click on the case name to see the full text of the citing case.

Citing Cases