California Court of Appeal May 4, 2015 No. D067040MUnpublished
Filed 5/4/15 In re Jason W. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re JASON W. et al., Persons Coming Under the Juvenile Court Law. D067040 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. SJ11987B, D, E) Plaintiff and Respondent.
v. ORDER MODIFYING OPINION
AMANDA G., [NO CHANGE IN THE JUDGMENT] Defendant and Appellant.
THE COURT:
It is ordered that the opinion filed herein on April 30, 2015, be modified as follows:
On the first page, the name "JACOB W." in the title is changed to read "JASON W."
There is no change in the judgment.
NARES, Acting P. J.
Copies to: All parties
Filed 4/30/15 In re Jacob W. CA4/1 (unmodified version) NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re JACOB W. et al., Persons Coming Under the Juvenile Court Law. D067040 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. SJ11987B, D, E) Plaintiff and Respondent.
the legislative mandate 'to provide stable, permanent homes for these children,' the court is
required to consider the assessment report . . . and receive other evidence that the parties may
present." (In re Valerie W. (2008) 162 Cal.App.4th 1, 12 (Valerie W.).)
The assessment report must contain an evaluation of the child's medical, developmental,
scholastic, mental, and emotional status, an analysis of the likelihood that the child will be
adopted if parental rights are terminated, and a statement from the child concerning placement
and adoption, if appropriate. (§ 366.22, subd. (c)(1)(C), (E), (F); In re Crystal J. (1993) 12
Cal.App.4th at 407, 411.) In addition, the social worker must provide "[a] preliminary
assessment of the eligibility and commitment of any identified prospective adoptive parent or 8
legal guardian, particularly the caretaker, to include a social history including screening for
criminal records and prior referrals for child abuse or neglect, the capability to meet the child's
needs, and the understanding of the legal and financial rights and responsibilities of adoption
and guardianship." (§ 366.22, subd. (c)(1)(D).)
"The assessment report is 'a cornerstone of the evidentiary structure' upon which the
court, the parents and the child are entitled to rely." (Valerie W., supra, 162 Cal.App.4th at
p. 11.) Deficiencies in an assessment report go to the weight of the evidence, and if
sufficiently egregious may undermine the court's decision to terminate parental rights. (Id. at
p. 14.)
B
Analysis
Amanda argues the court erred when it determined the children were likely to be
adopted because the Agency did not provide any of the statutorily required information about
the family that had expressed an interest in adopting the children. Amanda misconstrues the
statute.
Section 366.22, subdivision (c)(1)(D) requires a preliminary assessment of the
eligibility and commitment of any identified prospective adoptive parent. It does not require
an assessment of persons who have expressed an interest in a child but have not yet indicated
they are willing to proceed with adoption. The Agency points out that at no time did it
represent to the court that the children were specifically adoptable. The record shows that the
Agency did not identify the interested family as the children's prospective adoptive parents. A
person is not a prospective adoptive parent merely because he or she is interested in adoption
and wants to learn more about a particular child or sibling set. (See § 366.26, subd. (n)(1) 9
[court may designate a child's current caregiver as a prospective adoptive parent if the child has
lived with the caregiver for at least six months, the caregiver currently expresses a commitment
to adopt the child and has taken at least one step to facilitate the adoption process].) Thus, the
Agency was not required to provide a preliminary assessment of the interested family to the
court, and its assessment report was not deficient.
II
ADOPTABILITY
A
Legal Framework and Standard of Review
A finding of adoptability requires "clear and convincing evidence of the likelihood that
adoption will be realized within a reasonable time." (In re Zeth S. (2003) 31 Cal.4th 396, 406
(Zeth S.).) The question of adoptability usually focuses on whether the child's age, physical
condition and emotional health make it difficult to find a person willing to adopt that child. (In
re B.D. (2008) 159 Cal.App.4th 1218, 1231-1232 (B.D.).) Where appropriate, the juvenile
court should also consider the child's feelings toward his or her parents, foster parents and the
prospect of adoption. (Ibid.)
On review, we determine whether the record contains substantial evidence from which
the court could find clear and convincing evidence that the child is likely to be adopted within
a reasonable time. (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1561-1562.) The evidence
must be sufficiently strong to command the unhesitating assent of every reasonable mind. (In
re Jerome D. (2000) 84 Cal.App.4th 1200, 1205-1206.) We give the court's adoptability
finding the benefit of every reasonable inference and resolve any evidentiary conflicts in favor
of the judgment of the trial court. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) 10
B
Analysis
Amanda contends the juvenile court erred with it terminated parental rights because
there was not clear and convincing evidence the children were likely to be adopted. She argues
Jason, Jonathan and A.R. each have severe mental and behavioral problems and are not
generally adoptable.
The Agency argues that each child was generally adoptable at the time of the section
366.26 hearing because multiple families had expressed an interest in adopting them and the
Agency had expedited a home study for one of the families. The Agency argues Amanda
overstates the children's behavioral problems because the record shows that each child's
behavior had greatly improved with medication and therapy.
There is substantial evidence in the record to show that Jason and Jonathan are generally
adoptable. Although they had suffered the effects of sexual abuse and other trauma, they had
been in the same foster home since May 2012, which permits the reasonable inference that
their behaviors, while challenging, were not so severe as to jeopardize their placement. The
social worker believed that Jonathan and Jason were generally adoptable. Jonathan was
healthy, handsome, sweet and talkative, and did not appear to have mental health concerns.
Jason was a cute, healthy boy who had social and behavioral problems. When Jason's and
Jonathan's diagnosis of ADHD was treated with medication, their behaviors improved 90
percent. Jason said he was the happiest he had ever been in his life. The social worker
reported that in San Diego County alone, there were 21 families that were interested in
adopting a child like Jason and 18 that were interested in adopting a child like Jonathan. A
family had come forward that was interested in adopting them. We conclude there is 11
substantial evidence to support the finding that Jason and Jonathan are likely to be adopted
within a reasonable time if parental rights are terminated. (Zeth S., supra, 31 Cal.4th at p.
406.)
In contrast to her brothers, A.R.'s circumstances were more complex. She had a rare
genetic disorder, mild cerebral palsy, mild intellectual disability and hyperthyroidism. She was
on medications to reduce aggression and help her sleep, and required growth hormone therapy.
She functioned at the level of a five or six year old. Her behaviors included tantrums, physical
aggression, noncompliance and lying. Two foster placements had failed because of her
behaviors. In her current foster home, her behaviors were so extreme that her caregiver locked
herself and her children in a bedroom when A.R. had a tantrum. In May 2014, the social
worker reported that A.R. was not generally adoptable and there was no one who was
specifically willing to adopt her.
At the time of the section 366.26 hearing, A.R. was 12 years old. (See § 366.26, subd.
(c)(1)(B)(ii) [a child 12 years of age or older may object to adoption].)4 A.R. initially objected
to being adopted. She said she would be sad if she could not talk to her mother. Later, A.R.
said she would consent to adoption if she could be adopted with her brothers and that she
would like to maintain contact with her mother. Although the social worker identified one
family in San Diego County willing to adopt a child like A.R., and another family had
expressed an interest in adopting all three children, there is no evidence that those families
could meet A.R.'s specific needs. The court reasonably said it was "very hopeful" about the
family that had come forward, but that is not a sufficient basis on which to find that a child is
4 We do not address whether section 366.26, subdivision (c)(1)(B)(ii) applies to a child who is 12 years of age or older but functions on the level of a much younger child. 12
adoptable. A.R.'s age, physical condition and emotional health, and her feelings about her
mother and the prospect of adoption, present some difficulties in finding a person willing to
adopt her. (B.D., supra, 159 Cal.App.4th at pp. 1231-1232.) At the time of the section 366.26
hearing, A.R. did not have a prospective adoptive parent who was specifically interested in
adopting her. On this record, we are unable to conclude there is substantial evidence in the
record to support the finding that A.R. is likely to be adopted within a reasonable time if
parental rights are terminated. (Zeth S., supra, 31 Cal.4th at p. 406.)
DISPOSITION
With respect to Jason and Jonathan, the findings of adoptability are affirmed, and the
orders terminating parental rights are also affirmed. With respect to A.R., the adoptability
finding is reversed, and the order terminating parental rights is therefore reversed without
prejudice. A.R.'s case is remanded to the juvenile court with directions to hold another hearing
under section 366.26 to select and implement a permanent plan for her.
NARES, Acting P. J.
WE CONCUR:
HALLER, J.
O'ROURKE, J.
13
AI Brief
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Holding. The court held that the Agency was not required to provide a preliminary assessment of prospective adoptive parents under Welfare and Institutions Code section 366.22 because no such parents had been identified. It further held that while there was substantial evidence to support the adoptability of two children, there was insufficient evidence to support the adoptability of the third child, A.R.
Issues
Whether the Agency failed to comply with the assessment requirements of Welfare and Institutions Code section 366.22, subdivision (c)(1)(D).
Whether there was substantial evidence to support the juvenile court's finding that the children were likely to be adopted within a reasonable time.
Disposition. Affirmed in part; reversed in part and remanded.
Quotations verified verbatim against the opinion
“Section 366.22, subdivision (c)(1)(D) requires a preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent. It does not require an assessment of persons who have expressed an interest in a child”
“On this record, we are unable to conclude there is substantial evidence in the record to support the finding that A.R. is likely to be adopted within a reasonable time if parental rights are terminated.”