IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
March 22, 2011
IN RE M.M. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
C.M., DEFENDANT AND APPELLANT.
(Super. Ct. Nos. JD229645, JD229646, JD229647, JD229648)
The opinion of the court was delivered by: Hoch, J.
In re M.M.
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Appellant, the mother of the minors, appeals from the juvenile court's order terminating parental rights. (Welf. & Inst. Code, §§ 366.26, 395; undesignated statutory references are to the Welfare and Institutions Code.) Mother claims there is insufficient evidence to support the court's finding that the minors are adoptable. Disagreeing with this assertion, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2009, juvenile dependency petitions were filed by the Sacramento County Department of Health and Human Services (the Department) concerning four minors -- one-year-old M.M., nearly two-year-old Ar.M., three-year-old Z.H., and nearly five-year-old An.M. -- based on mother's failure to protect the minors (who had an array of injuries) from her live-in boyfriend. The petitions were later amended to allege that An.M. had been sexually abused the previous year by a family friend and exhibited inappropriate sexualized behavior with Z.H., and that mother was aware of the abuse but failed to report it or seek psychological and medical assistance for An.M. and Z.H.
In October 2009, the juvenile court sustained the allegations in the petitions and ordered reunification services for mother.*fn1
According to the report for a review hearing in December 2009, mother had made little progress in services. She had not begun parenting classes and had attended only three group counseling sessions, despite receiving her initial referral to therapy six months earlier. Moreover, she was often late or did not attend visits with the minors, which upset them. Although the minors' then current caretakers were not interested in adopting them, the minors had been assessed as being adoptable, and the social worker recommended termination of services.
Following a contested review hearing in February 2010, the juvenile court terminated reunification services and set the matters for a hearing pursuant to section 366.26 to select and implement a permanent plan for the minors. Shortly before the review hearing, the minors had been placed in a prospective adoptive home.
According to the June 2010 report for the section 366.26 hearing, the minors had become noticeably more stable since being placed in their prospective adoptive home. M.M. was described as a "sweet toddler who is affectionate and happy." Ar.M. was reportedly "delightful and engaging." Z.H. was described as "a beautiful girl who is learning to share and take turns." An.M. was "quiet and reserved," and although he became "frustrated" at times, he was "overall a child who presents as happy and kind." All of the minors "appear[ed] to be at or near normal intellectual levels" and were reportedly in good health. Although M.M. was receiving services for speech and physical therapy, it was anticipated he would not continue to require such services. An.M. and Z.H., who had been in therapy, were expected to begin counseling with a new therapist closer to their adoptive placement. The prospective adoptive parent monitored the minors carefully and, as of the writing of the report, had observed no inappropriate sexualized behavior.
The prospective adoptive parent had been a successful foster parent for several years. She had routinely been a foster parent to children who were very chaotic and had on many occasions stabilized children before they moved to a permanent home. After the four minors were placed in her home, the prospective adoptive parent, with the support of her birth children, became interested in adopting the minors. She was enthusiastic about adopting the minors. The social worker concluded that "the [minors] are very adoptable," noting: "While there could be a debate as to whether the [minors] were generally or specifically adoptable, the argument is moot, as the caretaker is very interested in providing permanence via adoption. The caretaker is appropriate and the [minors] have stabilized tremendously in her care."
At the section 366.26 hearing in June 2010, the attorney for the Department stated she had informed the court and parties there had been a report that Z.H.'s sexual acting out had "re-emerged." However, this had not changed the Department's recommendation as to the minors' adoptability. The fact remained that the minors were still placed together and the family wanted to work with the minors to make this a successful adoption. Mother's attorney did not seek to cross-examine the social worker on this new information, but argued that An.M. and Z.H. were not generally adoptable due to their sexual acting out behaviors.
Based on the minors' ages and their physical and emotional attributes, the juvenile court concluded they were adoptable and that the evidence of new sexual acting out behavior did not detract from this finding. The court noted there was no evidence that the prospective adoptive parent was not still committed to adopting the minors, notwithstanding the new information, and that this individual's willingness to adopt the minors was evidence that they were generally adoptable. Accordingly, the court terminated parental rights and ordered a permanent plan of adoption.
Mother contends the evidence was insufficient to support a finding that the minors were likely to be adopted. We disagree.
"'At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must make one of four possible alternative permanent plans for a minor child . . . . The permanent plan preferred by the Legislature is adoption.'" (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368, italics omitted.) "In order for the court to select and implement adoption as the permanent plan, it must find, by clear and convincing evidence, the minor will likely be adopted if parental rights are terminated." (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164; § 366.26, subd. (c)(1).)
Generally, "[t]he issue of adoptability posed in a section 366.26 hearing 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." (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) "[T]he 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." (Id. at pp. 1649-1650.)
We review an order terminating parental rights for substantial evidence. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) "On review of the sufficiency of the evidence, we 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.)
Turning to the present matter, at the time of the section 366.26 hearing, the minors ranged in age from two to six years old, were essentially healthy and of normal intelligence, and all possessed positive attributes. While it is true that An.M. had exhibited sexual acting out behavior toward Z.H. in the past and that there was a more recent report of such behavior by Z.H., there is nothing in the record to suggest that this had deterred the prospective adoptive parent from wanting to adopt the minors. Such evidence was sufficient to support the juvenile court's finding that the minors were adoptable.
Mother maintains that, because the minors were "a large sibling group" and "there was a history of two failed placements," the evidence failed to support their adoptability. In support of this argument, she cites section 366.26, subdivision (c)(3), which provides in part that a child may be found 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." Here, however, the four minors already were placed with a prospective adoptive parent, who had been caring for them for more than four months, was familiar with the issues they faced, and was committed to adopting them. With regard to the minors' previous placement changes, the record does not disclose any information indicating that these changes occurred for reasons that might bear on the minors' adoptability.
Mother also contends that, in the absence of evidence of other families willing to adopt the minors, the sexualized behavior exhibited previously by An.M. and recently by Z.H. further undercut the finding that the minors were an adoptable sibling group. Mother attempts to analogize the circumstances here to those in In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205 (Jerome D.), in which a finding of adoptability was reversed on appeal. In that case, an eight-year-old child's adoptability was premised on the willingness of the mother's former boyfriend to adopt him. The child lived with his siblings in the ex-boyfriend's home, and the social worker reported it would be detrimental for him to be removed from this placement. However, as the adoption assessment of the ex-boyfriend had not addressed factors such as criminal record and child protective services (CPS) history, and as the child's adoptability was based solely on the viability of the ex-boyfriend as an adoptive parent, the appellate court concluded there was insufficient evidence to support adoption. (Ibid.)
Here, in contrast, the minors' qualities and the fact that a prospective adoptive parent had been identified who was committed to adopting them provide ample support for the juvenile court's finding that they are adoptable. To the extent the minors had issues requiring special monitoring and services, there is no evidence in the record that these presented an impediment to adoption at the time of the section 366.26 hearing. Unlike in Jerome D., supra, 84 Cal.App.4th 1200, the juvenile court in the present matter did not base its conclusion that the minors were adoptable solely on the willingness of the prospective adoptive parent to adopt them. The court found the minors to be adoptable based on the minors' ages and characteristics. Moreover, the prospective adoptive parent had been a successful foster parent for several years and had been cleared in terms of her criminal and CPS history. In other words, there were no obstacles to her being able to adopt the minors. (See In re Sarah M., supra, 22 Cal.App.4th at p. 1650 [a minor can be found adoptable when a prospective adoptive family has been identified that is willing to adopt].)
Finally, noting that the statement by the Department's attorney as to the minors' continued adoptability was not evidence, mother argues "[t]here is no evidence to support counsel's assertion the [minors] are adoptable in the face of there being a new report of the older children acting out sexually." She maintains that the juvenile court should not have proceeded with termination of parental rights without "a report on the sexual behaviors now occurring, the services in place or needed, an evaluation by therapists, and the caretaker's commitment and ability in the face of new and recurring inappropriate sexual behaviors."
But the sexualized behavior of the two older minors was not new information. They had been placed in counseling to address this issue well before the section 366.26 hearing, during which the court and parties became aware that there had been a report that Z.H.'s sexual acting out had "re-emerged." The prospective adoptive parent was aware of the minors' history in this regard, and she was closely monitoring them for sexualized behavior. The prospective adoptive parent was an experienced foster parent and was enthusiastic about adopting the minors. There is nothing in the record to suggest she was any less committed to adopting the minors based on the recent behavior by Z.H. reported at the section 366.26 hearing. Although the statement by the Department's attorney regarding the minors' continued adoptability was not evidence, it provided an explanation to the court as to why the social worker had not submitted a new report and why her recommendation had not changed despite this new information. If mother had concerns in this regard, she could have sought to cross-examine the social worker about this concern at the section 366.26 hearing. She did not do so.
In sum, there is substantial evidence to support the juvenile court's conclusion that the minors were adoptable.
The juvenile court's orders are affirmed.
We concur: HULL, Acting P. J. BUTZ, J.