In re J.H. CA4/2

Opinion

Filed 1/8/14 In re J.H. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re J.H. et al., Persons Coming Under the Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT E059324 OF PUBLIC SOCIAL SERVICES, (Super.Ct.No. SWJ010218) Plaintiff and Respondent, OPINION v.

A.H.,

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. John M. Monterosso,

Judge. Affirmed.

Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and

Appellant.

Pamela J. Walls, County Counsel, and Julie Koons Jarvi, Deputy County Counsel,

for Plaintiff and Respondent.

1 A.H. (mother) appeals from an order terminating her parental rights to three of her

daughters — J.H., now aged nine; S.M., now aged four; and I.M., now aged two. Her

sole appellate contention is that, because J.H. had scoliosis, an IQ of 41, and some

unpleasant behaviors, the juvenile court erred by finding that the girls were adoptable.

We will conclude, however, that the adoptability finding is supported by substantial

evidence.

I

FACTUAL AND PROCEDURAL BACKGROUND

As of July 2010, the mother and J.M. (father) had two daughters together — J.H.

and S.M. At that time, the Department received a report that the mother had physically

and verbally abused J.H.

An investigation revealed that the family was living in a filthy motel room. Both

children were filthy. The mother had been diagnosed as bipolar and the father had been

diagnosed as schizophrenic; they had been prescribed medication, but they were not

taking it. The father abused alcohol.

The parents did not supervise the children adequately. Recently, J.H. had used the

father’s razor to cut her own hair, cutting her head in the process.

J.H. appeared to be developmentally delayed; at the age of six, she had “limited

verbal skills” and still was not potty-trained. She also had severe scoliosis; a rod had

been surgically placed in her back.

2 The Riverside County Department of Public Social Services (Department)

detained the children and filed a dependency petition concerning them.

In October 2010, at the jurisdictional hearing, the juvenile court found that it had

jurisdiction based on failure to protect. (Welf. & Inst. Code, § 300, subd. (b).)

In January 2011, at the dispositional hearing, the juvenile court formally removed

the children from the parents’ custody and ordered reunification services.

In July 2011, the mother gave birth to another daughter, I.M. The Department

immediately detained I.M. and filed a dependency petition as to her.

In September 2011, at a jurisdictional/dispositional hearing regarding I.M., the

juvenile court found that it had jurisdiction based on abuse of a sibling. (Welf. & Inst.

Code, § 300, subd. (j).) It formally removed I.M. from the parents’ custody; it denied

reunification services, and it set a hearing pursuant to Welfare and Institutions Code

section 366.26 (section 366.26).

On the same date, at a review hearing regarding J.H. and S.M.,1 the juvenile court

terminated reunification services and set a section 366.26 hearing.

1 The hearing could be considered a six-month review hearing (Welf. & Inst. Code, § 366.21, subd. (e)), because the juvenile court had not held a six-month review hearing yet. Alternatively, as the juvenile court noted, it could be considered a 12-month review hearing (Welf. & Inst. Code, § 366.21, subd. (f)), based on the date of the hearing. As the juvenile court concluded, however: “I don’t think it matters whether we call it six-month or 12-month.”

3 In July 2013, at the section 366.26 hearing, the juvenile court found that the

children were adoptable and that there was no applicable exception to termination.

Accordingly, it terminated parental rights.

II

THE SUFFICIENCY OF THE EVIDENCE OF ADOPTABILITY

A. Additional Factual and Procedural Background.

The evidence introduced and admitted at the section 366.26 hearing consisted of

the social worker’s report for the hearing. We confine our review to this evidence. (See

Welf. & Inst. Code, § 366.26, subds. (b), (c)(1).)

J.H.’s IQ was 41. Her speech was delayed, but it was improving. She could not

read or write. She had been diagnosed with attention deficit hyperactivity disorder

(ADHD), for which she took Adderall. She attended elementary school, where she was

in a special education class.

J.H. was potty-trained, but she would occasionally express anger by urinating or

defecating “on the floor, [on] her sisters’ toys, in the closet, etc. . . .”

The social worker reported, “[J.H.] has not recently tor[n] off a finger nail or toe

nail as she was doing.”

The children had been in a total of four placements over the course of the

dependency.2 As of the section 366.26 hearing, they had been placed in their prospective

2 I.M. had been in only three placements because she was not born until her sisters were in their second placement.

4 adoptive home for five months. The social worker reported: “They have quickly bonded

with the family. They refer to the prospective adoptive parents as Mama and Papa and to

the prospective adoptive parents’ children as their brothers and sister. . . . They are very

comfortable in their new home.”

The prospective adoptive parents were “committed” to adopting all three children.

They “[we]re fully aware of [J.H.]’s special needs and [we]re prepared to provide her

with the love, care, and services that she needs.”

B. Analysis.

The juvenile court cannot terminate parental rights unless it finds, “by a clear and

convincing standard, that it is likely the child will be adopted . . . .” (Welf. & Inst. Code,

§ 366.26, subd. (c)(1).) “The finding of adoptability is reviewed under the substantial

evidence test. [Citation.]” (In re K.B. (2009) 173 Cal.App.4th 1275, 1290 [Fourth Dist.,

Div. Two].) “We review th[e adoptability] finding only to determine whether there is

evidence, contested or uncontested, from which a reasonable court could reach that

conclusion. It is irrelevant that there may be evidence which would support a contrary

conclusion. [Citation.]” (Id. at p. 1292.)

“‘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.]’ [Citation.]” (In re Zeth S. (2003) 31 Cal.4th 396, 406.)

“‘“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

5 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.]’ [Citation.]” (In re I.I.

(2008) 168 Cal.App.4th 857, 870 [Fourth Dist., Div. Two].) “If the child is considered

generally adoptable, we do not examine the suitability of the prospective adoptive home.

[Citation.]” (In re Michael G. (2012) 203 Cal.App.4th 580, 589.)

On the other hand, “[i]n 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.’ [Citation.]” (In re Jose C. (2010) 188

Cal.App.4th 147, 158.) “‘When a child is deemed adoptable only because a particular

caretaker is willing to adopt, the analysis shifts from evaluating the characteristics of the

child to whether there is any legal impediment to the prospective adoptive parent’s

adoption and whether he or she is able to meet the needs of the child.’ [Citations.]” (In

re R.C. (2008) 169 Cal.App.4th 486, 494.)

Preliminarily, the mother’s argument focuses on J.H. and her special needs. Her

position appears to be that S.M. and I.M. also were not adoptable because they were part

of a sibling set with J.H. This is not the law. “The child’s membership in a sibling set is

a relevant consideration in determining whether an exception to termination of parental

rights exists [citation], . . . or in determining whether the child is difficult to place for

6 adoption [citation]. However, the statutory scheme and case law require a determination

of the adoptability of a child as an individual . . . . [Citation.]” (In re I.I., supra, 168

Cal.App.4th at p. 872.) Here, S.M. and I.M. were thoroughly unobjectionable children;

the juvenile court plainly did not err by finding that they were adoptable.

As to J.H., the very fact that she had been placed with a family that was willing to

adopt her was substantial evidence that she, too, was adoptable. We recognize that “there

could be facts that contraindicate adoptability notwithstanding the parent’s interest.” (In

re I.W. (2009) 180 Cal.App.4th 1517, 1526.) However, the mother does not point to any

here. There was no legal impediment to adoption. The prospective adoptive parents

were able to care for J.H.’s needs; they had in fact been caring for her needs from

February through July 2013. The social worker who prepared the adoption assessment

had “no concern” about their ability to meet her future needs.

The mother argues that the previous placements had failed due to J.H.’s special

needs. However, there was no evidence of this before the juvenile court. While there

was evidence that the children had, in fact, been in three prior placements, there was no

evidence that J.H.’s special needs had had anything to do with any of the placement

changes.3

3 The Department argues that J.H.’s special needs had caused the failure of only one prior placement, at the outset of the dependency. We need not review the evidence on this point, because it was not before the juvenile court.

7 The mother also relies extensively on other evidence found in social worker’s

reports filed at earlier stages in the dependency (which ultimately stretched out over three

years). We must repeat, this evidence was not before the juvenile court at the section

366.26 hearing. Thus, it was irrelevant to challenge (or to support) the adoptability

finding.

If only out of an excess of caution, we also note that, even if we were to consider

this evidence, it would not change our conclusion. J.H. had evidently grown out of any

behavioral issues she may have had. Admittedly, she sometimes urinated or defecated in

inappropriate places to express anger. Only about a week into the placement, however,

the prospective adoptive mother reported that “[J.H.]’s behaviors aren’t as severe as what

was described and [J.H.] is doing fairly well.” A month after that, she reported that J.H.

was no longer wearing diapers and that she “makes it to the bathroom most of the time.”

In the opinion of the social worker, the prospective adoptive parents “[we]re fully aware

of [J.H.]’s special needs and [we]re prepared to provide her with the love, care, and

services that she needs.”

Significantly, the mother’s counsel did not argue below that J.H. was not

adoptable; while this did not constitute a waiver (In re Gregory A. (2005) 126

Cal.App.4th 1554, 1559-1560), it does suggest that her adoptability was self-evident.

We therefore conclude that the juvenile court did not err by finding that all three

children were adoptable.

8 III

DISPOSITION

The order appealed from is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI Acting P. J.

We concur:

KING J.

MILLER J.