San Bernardino Cnty. Children & Family Servs. v. T.W. (In re I.D.), E072745 (Cal. App. 2019)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super.Ct.No. J260623)

OPINION

APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander, Judge. Affirmed.

Jacques Alexander Love, by appointment of the Court of Appeal, for Defendant and Appellant T.W.

Lauren K. Johnson, by appointment of the Court of Appeal, for Defendant and Appellant D.D.

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Michelle D. Blakemore, County Counsel, and Pamela J. Walls, Special Counsel, for Plaintiff and Respondent.

        T.W. (mother) and D.D. (father) appeal from an order terminating parental rights to their son, I.D. (I. or child). Their main contention is that there was insufficient evidence that I. was adoptable. The trial court found that I. was adoptable both specifically (i.e., by the identified prospective adoptive parents) and generally (i.e., without regard to any particular prospective adoptive parents). There is sufficient evidence to support both findings. Hence, we will affirm.

        In January 2015, when I. was four years old, the police went to the mother's apartment in Bakersfield in response to a request for a welfare check. Because they heard "banging noises and a child crying hysterically," they entered the apartment. The mother ran into her bedroom, with the child, and locked the door. When the police broke down the door, she was "naked and yelling obscenities." She was involuntarily committed for psychiatric treatment. (§ 5150.¹)

        She was on probation in San Bernardino on a conviction for felony child endangerment; in 2014, she had been arrested for child endangerment in Las Vegas.

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        The mother's mother reported that she had been diagnosed with schizophrenia and bipolar disorder but refused to take her prescribed medication. She "ha[d] been hospitalized 'many, many times' for psychotic episodes." She also used marijuana and alcohol.

        I. had been removed from the mother's custody once before, from the age of three months to two years six months.

        The parents had never lived together. The father was "completely paralyzed due to a gang-related shooting . . . ." He lived in San Bernardino County.

        The Kern County Department of Human Services detained I. and filed a dependency petition regarding him. He was placed with a foster family (the H.'s).

        Between the detention hearing and the jurisdictional hearing, the mother was involuntarily committed at least three more times.

        In April 2015, at the jurisdictional hearing, the trial court sustained jurisdiction based on failure to protect (§ 300, subd. (b), and failure to support (id. § 300, subd. (g)).

        During the dependency, the mother moved to San Bernardino County. Accordingly, in May 2015, the case was transferred there.

        In August 2015, at the dispositional hearing, the juvenile court ordered reunification services for the mother but not for the father.

        In September 2015, the mother gave birth to a daughter, N.L. (N.). In November 2015, CFS filed a dependency petition regarding N. The mother disappeared, and a warrant was issued for N. In February 2016, CFS located N., detained her, and placed

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her with a foster family. Meanwhile, the mother failed to comply with her reunification services.

        In April 2016, at the 12-month review, hearing, the trial court terminated reunification services and set a section 366.26 hearing.

        Around that time, I. was having "behavioral and impulse control issues" at school. The H.'s asked that he be removed "[d]ue to his behavioral issues." In April 2016, he was removed and placed in respite care until June 2016, when both he and N. were placed with a different foster family (the R.'s). While he was with the R.'s, his behavior improved. They expressed interested in adopting both I. and N.

        In or before July 2016, the mother's father also expressed interest in adopting both I. and N. He lived in Minnesota. The trial court therefore initiated the interstate placement process. This caused I.'s section 366.26 hearing to be repeatedly continued.

        In August 2017, the trial court ordered that I. remain in foster care with a permanent plan of adoption. (See § 366.26, subd. (c)(4)(B)(ii).)

        In November 2017, the interstate placement process was terminated because the mother's father did not pass the background check.

        Meanwhile, I. began having "behavioral issues" again. In June 2018, he threatened to kill another child; he also made a "suicidal statement." As a result, he was placed on a 72-hour psychiatric hold.

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        When I. was released, both children were placed with another foster family (Ms. D. and Mr. W.).² I. also began receiving therapy. This resulted in a positive "turnaround" in his behavior.

        By September 2018, the foster parents had expressed willingness to adopt both children. Accordingly, in October 2018, the trial court set another section 366.26 hearing.

        The foster parents had been a couple for three years. They intended to get married; the social worker reported, "Mr. W. is legally separated from his spouse and has been seeking to finalize[] his divorce [from] her . . . , but his wife has not been cooperative." They had agreed that, if the divorce was not finalized before the children were ready for adoption, Ms. D would adopt them on her own.

        As of March 2019, the prospective adoptive parents "ha[d] developed a strong and loving attachment with both [children]." I.'s "behavioral issues ha[d] diminished . . . ." In school, he "enjoy[ed] being the class clown and ma[de] random noises in class, but otherwise [wa]s doing well with his behavior."

        In May 2019, at the section 366.26 hearing, the trial court found that I. was adoptable and that there was no applicable exception to termination. Accordingly, it terminated parental rights.

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        A. The Trial Court's Ruling.

        Regarding adoptability, the trial court ruled: "I do find that there is clear and convincing evidence that it's likely that the children will be adopted, and I do find that they are both generally and specifically adoptable. I will note that they are a bonded sibling set. They are described to be healthy. There is no developmental concerns. They have been placed together in the concurrent planning home who wishes to provide them permanency, and I will note that they have been placed there since June of last year, so just under a year, and are thriving in their care. There does not appear to be any impediment[] to adoption."

        B. Legal Background.

        "A juvenile court may terminate parental rights only if it determines by clear and convincing evidence that it is likely the child will be adopted within a reasonable time. [Citation.] . . . On review, '"we determine whether the record contains substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that [the child] was likely to be adopted within a reasonable time. [Citations.]" [Citations.] We give the court's finding of adoptability the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of affirming. [Citation.]' [Citation.]" (In re J.W. (2018) 26 Cal.App.5th 263, 266-267.)

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        "There is a difference between a child who is generally adoptable (where the focus is on the child) and a child who is specifically adoptable (where the focus is on the specific caregiver who is willing to adopt). [Citations.]" (In re J.W., supra, 26 Cal.App.5th at p. 267.)

        "'A child's young age, good physical and emotional health, intellectual growth and ability to develop interpersonal relationships are all attributes indicating adoptability.' [Citation.]" (In re I.W. (2009) 180 Cal.App.4th 1517, 1526.) "To be considered adoptable, a minor need not be in a prospective adoptive home and there need not be a prospective adoptive parent '"waiting in the wings."' [Citation.] Nevertheless, '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.]" (In re R.C. (2008) 169 Cal.App.4th 486, 491.)

        On the other hand, "a minor who is not generally adoptable because of age, poor physical health, physical disability or emotional instability may nevertheless be [specifically] adoptable because a prospective adoptive family has been identified as willing to adopt the child. [Citation.] '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

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adoptive parent's adoption and whether he or she is able to meet the needs of the child.' [Citations.]" (In re R.C., supra, 169 Cal.App.4th at p. 494.)

        C. General Adoptability.

        First, the parents contend that there was insufficient evidence that I. was generally adoptable.

        The social worker's report for the section 366.26 hearing stated, "The children . . . are appropriate to be adopted due to their age and the caregiver's willingness to . . . adopt[]." Thus, the parents argue that I.'s age at the time of the hearing — he was eight — did "not necessarily" mean he was adoptable, and hence the adoptability finding turns on whether the caregivers would be able to adopt.

        The fallacy in this reasoning is that the trial court was not limited to considering the two factors listed in the report. In fact, as the parents concede, the trial court specifically cited two additional factors — that the children were healthy and developmentally on track.

        Generally, when it comes to adoptability, younger is better; nevertheless, absent any countervailing factors, an eight-year-old is adoptable. In re G.M. (2010) 181 Cal.App.4th 552 held that the trial court properly found that an eight- and nine-year-old sibling pair was generally adoptable. (Id. at pp. 557, 564.) Here, I.'s sibling N. was only three, making them, as a pair, even more adoptable.

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        In addition, as the trial court mentioned, both children were in "overall good health" and "meeting their developmental milestones . . . ." I. was getting A's and B's in school, aside from a C in conduct.

        Finally, the fact that the prospective adoptive parents wanted to adopt I. — who had been living with them for nearly a year — was yet more evidence that he was generally adoptable. (In re R.C., supra, 169 Cal.App.4th at p. 491.) In other words, even assuming there was some legal impediment to adoption by them, it was inferable that another family would want to adopt.

        The parents complain that CFS did not introduce any "statistical information regarding the number of identified families interested in adopting the child or a child with the same age, physical condition and emotional state." This might have been nice, but it was not required.

        Finally, the father argues that I. "had serious mental health issues." Much of this argument is based on information in social worker's reports filed in connection with earlier hearings. These reports, however, were not introduced at the section 366.26 hearing. Thus, they were not before the trial court, and it had no duty to consider them. (See § 366.26, subd. (b).)³

        Regarding I.'s mental and/or or behavioral issues, the report for the section 366.26 hearing showed only that:

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        (1) I. had had eight prior placements.

        (2) I.'s next-to-last placement had "ended in [him] being hospitalized on a 5150 hold."

        (3) Since I. had been placed with the prospective adoptive parents, his "behavioral issues ha[d] diminished

        (4) I. "enjoy[ed] being the class clown and ma[de] random noise in class, but otherwise was doing well with his behavior."

        (5) I. was receiving therapy; however, it was not aimed at any particular pathology, but rather at "help[ing] [him] work through his conflicted feelings about the upcoming adoption."

        As we said in footnote 2, ante, the statement that I. had had eight prior placements was most likely an unfortunate mistake. Even if taken as true, however, there was no evidence that any of the changes of placement were necessitated by I.'s behavior, other than the last. And that — while certainly concerning — appeared to be a one-time-only thing. Since then, I. had been in therapy, he had bonded with the prospective adoptive parents, and he was doing well at home and at school.

        We therefore conclude that the trial court's finding that I. was generally adoptable was supported by substantial evidence. It follows that it did not need to consider whether there was any legal impediment to adoption by Mr. W and Ms. D.

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        D. Specific Adoptability.

        Second, the parents contend that there was insufficient evidence that I. was specifically adoptable, because there was a legal impediment to adoption.

        Of course, we have already held that the trial court could properly find that I. was generally adoptable, even if there was such a legal impediment. Hence, we discuss this contention solely in the alternative.

        Preliminarily, CFS contends that the parents forfeited this issue by failing to raise it in the trial court. It cites In re G.M., supra, 181 Cal.App.4th 552, which did indeed hold that this issue is subject to forfeiture. (Id. at pp. 563-564; accord, In re R.C., supra, 169 Cal.App.4th at p. 493, fn. 2.) On the other hand, it has been held that the sufficiency of the evidence to support a finding of adoptability is not subject to forfeiture. (In re Joshua G. (2005) 129 Cal.App.4th 189, 200, fn. 12; In re Gregory A. (2005) 126 Cal.App.4th 1554, 1561.) Rather than resolve the apparent conflict between these two lines of cases, we decline to rest our decision on forfeiture.

        Turning to the merits, the asserted legal impediment is Family Code section 8603. It provides that, subject to exceptions not applicable here, "[a] married person, not lawfully separated from the person's spouse, shall not adopt a child without the consent of the spouse . . . ." (Id., subd. (a).) Mr. W. was not divorced, and it was not clear when he would be able to get divorced. However, he was legally separated from his wife. Hence, he did not need her consent, and Family Code section 8603 was not an impediment.

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        The parents do not argue that two unmarried people cannot adopt jointly. Rather, they state, "There is no authority as to whether more than one person, other than a husband and wife or person currently or formerly in a domestic partnership or similar arrangements, are entitled to jointly adopt." They then argue that "[t]he [trial] court had a sua sponte duty to consider" this legal issue.

        Actually, in California, two unmarried persons can adopt jointly. An existing parent and a prospective adoptive parents can agree that they will both continue to have parental rights after an adoption. (Fam. Code, § 8617, subd. (b).) Thus, our Supreme Court has held that a person can adopt, as second parent, the child of another person, even if they are not married. (Sharon S. v. Superior Court (2003) 31 Cal.4th 417, 432.) Here, then, if Mr. W. adopted on Monday, Ms. D. could also adopt, with his consent, on Tuesday. We therefore see no barrier to them both adopting jointly on the same day.

        We also note that, in the event that Mr. W. and Ms. D. could not adopt together, Ms. D. was willing to adopt on her own. The parents brush this fact aside, asserting that the trial court "did not likely rely on that briefly mentioned option." However, the record need not show that the trial court relied on it. Rather, we may presume that the trial court relied on it, unless the record shows otherwise. "The juvenile court's judgment is presumed to be correct, and it is appellant's burden to affirmatively show error. [Citation.]" (In re S.C. (2006) 138 Cal.App.4th 396, 408.)

        In sum, then, there was substantial evidence that there was no legal impediment to adoption by Mr. W. and/or Ms. D., and therefore that I. was specifically adoptable.

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        The order appealed from is affirmed.

        NOT TO BE PUBLISHED IN OFFICIAL REPORTS

        RAMIREZ
        P. J.

We concur:

MILLER
        J.

FIELDS
        J.