Filed 9/5/14 In re R.R. CA5

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

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

TULARE COUNTY HEALTH AND HUMAN                                                             F068972
SERVICES AGENCY
                                                                             (Super. Ct. Nos. JJV06081A,
         Plaintiff and Respondent,                                             JJV06081B, JJV06081C,
                                                                               JJV06081D, JJV06081E)
                   v.

MICHAEL R.,                                                                              OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from orders of the Superior Court of Tulare County. Hugo Loza,
Commissioner.
         Carol A. Koenig, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kathleen Bales-Lange, County Counsel, John A. Rozum and Carol E. Helding,
Deputy County Counsel, for Plaintiff and Respondent.
                                                        -ooOoo-



*        Before Kane, Acting P.J., Franson, J. and Chittick, J.†
†     Judge of the Superior Court of Fresno County, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
       Appellant Michael R. (father) appeals from the juvenile court’s order terminating
his parental rights under Welfare and Institutions Code section 366.261 as to his five
minor children, two daughters and three sons. Father contends there was insufficient
evidence the children were adoptable. We affirm.
                     PROCEDURAL AND FACTUAL SUMMARY
       In March 2012, the Tulare County Health and Human Services Agency (agency)
took father’s five minor children into protective custody after his oldest child, his then
13-year-old daughter, confided to a school friend that father had been “raping” her since
she was eight years old. She described “rape” as penile penetration. Father denied the
allegation and his wife, the children’s mother, said she did not believe it. The children
were placed in two separate foster homes.
       During its investigation, the agency discovered that father was physically abusive
to all of the children. He struck them across their faces with the front and back of his
hand and he struck his 11-year-old son with his hand and a belt on his lower back,
buttocks and thighs. On one occasion, father burned this same son with a butter knife and
slammed him against a wall. He struck his seven-year-old son with a belt and threw him
against a door. He made the 11-year-old kneel down and instructed the seven-year-old to
strike him.
       In June 2012, the juvenile court conducted an uncontested jurisdictional hearing
on a second amended dependency petition alleging father inflicted serious physical harm
on the children and sexually abused the 13-year-old and that mother failed to protect the
children. The juvenile court sustained the petition and ordered mother and father to
participate in reunification services.
       Also in June 2012, two of the children were moved so that all five children were in
the same foster home. The foster parents already had two adopted children, ages 14 and

1      All statutory references are to the Welfare and Institutions Code unless otherwise
indicated.


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15. In order to accommodate the children, the foster father and the teenage adopted son
moved in with a relative.
       In July 2012, father was arrested on charges of sexual abuse. In October 2012, a
jury found him guilty of six counts of child molestation (Pen. Code, § 288, subd. (a)), two
counts of forcible child molestation (Pen. Code, § 288, subd. (b)(1)) and two counts of
sexual intercourse with a child age 10 or younger (Pen. Code, § 288.7). He was
sentenced to 88 years to life in prison. Mother remained loyal to father and maintained a
relationship with him throughout his criminal proceedings.
       In December 2012, at an uncontested six-month review hearing, the juvenile court
terminated father’s reunification services and continued mother’s services to the 12-
month review hearing.
       In its report for the 12-month review hearing, the agency informed the juvenile
court that mother made minimal progress in her reunification services. The agency
recommended the juvenile court terminate mother’s reunification services, set a section
366.26 hearing and select a permanent plan of adoption for the children with their foster
family. The agency also informed the juvenile court that the maternal grandparents
(grandparents) expressed an interest in having the children placed with them, but the
agency was not assessing them because mother lived with them and they were close to
family members who did not believe the children’s allegations of abuse. The
grandparents understood that the agency could not consider placing the children with
them until they resolved the family situation.
       In June 2013, following a contested 12-month review hearing, the juvenile court
terminated mother’s reunification services and set a section 366.26 hearing. Mother and
father did not challenge the juvenile court’s setting order by writ petition. (Cal. Rules of
Court, rules 8.450 & 8.452.)
       In its report for the section 366.26 hearing, the agency advised the juvenile court
that the children were adoptable and wanted to be adopted. Under the heading of


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“Analysis of the Likelihood of Adoption and Proposed Permanent Plan,” the agency
reported:

              “[A]n Adoptions Assessment was completed for the children ….
       The children were found to be adoptable.… The prospective adoptive
       parents have stated their desire to adopt the children and raise them as their
       own. The prospective adoptive parents are prepared and qualified to meet
       the children’s emotional and physical needs.…

                “Given the characteristics of the children including but not limited
       to their age, mental health status, general good health, etc., there are foster-
       adopt families that may be willing to adopt the children aside from the
       children’s current prospective adoptive parents. All the children are in
       agreement with being adopted by the prospective adoptive parents.”
       The agency reported that the prospective adoptive parents had been married for 43
years, had two adopted teenagers and three adult children, two sons and a daughter, who
lived in the area and provided support to the family. The adoptive parents stated they
were capable of meeting the children’s needs and understood the responsibilities of
adoption.
       In the fall of 2013, the agency and the court appointed special advocate (CASA)
updated the juvenile court on the children. By this time, the children were 14 years old
(eldest daughter), 13 years old (eldest son), 10 years old (youngest daughter), nine years
old (middle son) and six years old (youngest child).
       The eldest daughter was a freshman in high school. She was excited about being
in high school and hoped to get a “fresh start.” She was affiliated with the Tulare
Salvation Army, as were all the children, and was active in teenage meetings and events.
She was close to her foster mother’s adult daughter, who stood by her and encouraged her
during her father’s criminal trial. Like her siblings, the eldest daughter was being treated
for an adjustment disorder, anxiety, post traumatic stress disorder, depression and being
an abuse victim. Through therapy and medication, her symptoms had been significantly
reduced or eliminated. She was adamant about not reunifying with her mother and was
angry at the relatives who did not believe her father sexually abused her.

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       The eldest son, an eighth grader, was described by the CASA as the “most closed
of all of the children” and was just beginning to open up about the abuse in the home. He
initially struggled with anger, aggression, sadness, anxiety and difficulty concentrating as
he processed his sister’s sexual abuse and his own physical abuse. However, he
completed services to deal with his stress and aggression and he told his therapist he was
feeling less anxious and sad. He continued to struggle, however, with anger and defiance
in his foster home and at school. He was also struggling scholastically but was receiving
tutoring and expressed a desire to do better.
       The youngest daughter, a fifth grader, enjoyed school and loved to read. She was
described as “pleasant to be around,” “polite, engaging and expressive.” However, she
was also guarded and unwilling or unable to verbally process the abuse she and her
siblings suffered. She was diagnosed with an eating disorder and was referred to a
specialist who prescribed medication to increase her appetite. Her foster mother reported
that she was anxious and urinated in her bed three times a week. She also had nightmares
and visual and auditory hallucinations and vomited “over anything.” During the summer
of 2013, the youngest daughter wrote a note that had “suicide verbiage” and drew some
“disturbing” pictures. The foster mother reported these concerns to the child’s therapist.
       The middle son, a fourth grader, was doing well in school. The CASA described
him as a “bright, happy, friendly child who seems to get along with anyone.” He was
receiving therapy for “lying and annoying” his siblings, which his therapist attributed to
the secrecy surrounding the reason for father’s imprisonment.
       The youngest child, a first grader, was also doing well academically. The CASA
described him as “a very outgoing child [who] wants to talk to anyone and everyone and
insists on being heard in every situation.” His teacher reported that he is “often
disruptive and off task in class.” He was diagnosed with enuresis and encopresis but was
making progress. The youngest child’s therapist reported he was beginning to verbalize




                                                5
sadness related to being detained and placed in foster care and had acted out behaviorally
as a result, which his therapist considered normal under the circumstances.
       The CASA recommended the juvenile court place the children with the
prospective adoptive parents either under a plan of legal guardianship or adoption. The
CASA also reported that the children enjoyed their visits with their grandparents, which
occurred once a month for two hours. The visits were unsupervised and the grandparents
took the children shopping or out to eat. The children seemed to look forward to the
visits and showed “great affection” toward their grandparents.
       In January 2014, the juvenile court convened the section 366.26 hearing. Father’s
attorney presented his case by argument only. Father’s argument was that he wanted the
children returned to their mother. If that was not possible, he wanted the children placed
with any appropriate family member and was willing to relinquish his parental rights to
facilitate such placement. He also asked for visitation and to be allowed to write to the
children. Mother’s attorney adopted father’s request. Counsel for the minors advised the
juvenile court that all five children wanted to be adopted. There were no objections
lodged before the court as to any issue regarding adoption. The juvenile court found by
clear and convincing evidence the children were likely to be adopted and terminated
mother and father’s parental rights.
       This appeal ensued.
                                       DISCUSSION
       Father challenges the sufficiency of the evidence to support the juvenile court’s
finding that the children are adoptable. He asserts (1) the children are not “generally
adoptable” because they are a large sibling group and have emotional problems; (2) the
foster mother does not qualify as a prospective adoptive parent because she did not
complete a home study; and (3) the children are not “specifically adoptable” because the
foster mother may have a legal impediment to adoption.




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       We conclude the foster mother’s qualification as the children’s prospective
adoptive parent is irrelevant to their adoptability, and father forfeited the legal detriment
question by failing to raise it at the section 366.26 hearing. We further conclude
substantial evidence supports the juvenile court’s finding that the children are adoptable.
       “Once [the juvenile court] sets a hearing pursuant to section 366.26 to select and
implement a permanent plan for a dependent child, the [agency] must prepare an
assessment [citations], frequently referred to as an adoption assessment. Such an
adoption assessment provides the information necessary for the juvenile court to
determine whether it is likely the child will be adopted [citations] .…” (In re G.M.
(2010) 181 Cal.App.4th 552, 559 (G.M.).) The assessment must include “[a] preliminary
assessment of the eligibility and commitment of any identified prospective adoptive
parent.” (§ 366.21, subd. (i)(1)(D).) “A child’s current caretaker may be designated as a
prospective adoptive parent if the child has lived with the caretaker for at least six
months, the caretaker currently expresses a commitment to adopt the child, and the
caretaker has taken at least one step to facilitate the adoption process. (§ 366.26, subd.
(n)(1).)” (G.M., supra, 181 Cal.App.4th at p. 559.)
       In order to terminate parental rights, the juvenile court must find by clear and
convincing evidence the child is likely to be adopted. (§ 366.26, subd. (c)(1).) The
statute 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.)
       In determining adoptability, the juvenile court assesses the child’s age, physical
condition and emotional state and how these characteristics affect a prospective parent’s
willingness to adopt the child. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649 (Sarah
M.).) “To be considered adoptable, a [child] 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 [child] is evidence that the [child’s] age, physical condition, mental state,


                                              7
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.’” (In re R.C. (2008) 169
Cal.App.4th 486, 491 (R.C.).)
       In assessing adoptability, courts have divided children into two categories: those
who are “generally adoptable” and those who are “specifically adoptable.” A child is
“generally adoptable” if the child’s traits, e.g., age, physical condition, mental state and
other relevant factors do not make it difficult to find an adoptive parent. A child is
“specifically adoptable” if the child is adoptable only because of a specific caregiver’s
willingness to adopt. (R.C., supra, 169 Cal.App.4th at pp. 492-494.) “‘When a child is
deemed adoptable only because a particular caregiver 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.’” (Id. at p. 494.)
       On appeal, we review the juvenile court’s finding that a child is adoptable for
substantial evidence. (R.C., supra, 169 Cal.App.4th at pp. 486, 491.) “[O]ur task is to
determine whether there is substantial evidence from which a reasonable trier of fact
could find, by clear and convincing evidence, that the minor is adoptable. [Citation.]
The appellant has the burden of showing there is no evidence of a sufficiently substantial
nature to support the finding or order.” (Id. at p. 491.)
       As a preliminary matter, we address the terms “generally” and “specifically”
adoptable. In our view, the argument whether a child is “generally” or “specifically”
adoptable obfuscates the adoptability issue before the juvenile court. Indeed, these terms
are not used in section 366.26, the statute governing termination of parental rights.
Further, the juvenile court is not required to assess the general and specific adoptability
of a child or make findings as to whether a child is generally or specifically adoptable.


                                              8
Section 366.26 merely requires the juvenile court to determine if the child is likely to be
adopted within a reasonable time. In other words, it requires the juvenile court to
determine if the child is adoptable.
       In this case, the agency’s adoption assessment identified the foster parents as the
prospective adoptive parents and opined that the children were adoptable based on their
characteristics and the prospective adoptive parents’ willingness to adopt them. Father
did not contest the issue of adoptability, including whether the children were specifically
adoptable, whether the foster mother qualified as prospective adoptive parent or whether
she might have a legal impediment to adoption.
       We conclude the issue of whether the foster mother qualified as a prospective
adoptive parent is irrelevant to the issue of the children’s adoptability. As we stated
above, the presence of a prospective adoptive parent willing to adopt is an indicator of
adoptability but a child does not have to be in a prospective adoptive home to be found
adoptable. Further, on this evidence, the foster mother and father qualified as prospective
adoptive parents. The children had been in their care for over a year and the foster
parents expressed their commitment to adopting them. The fact that the foster parents
had not completed a home study is unimportant at that stage because there is no
requirement that a home study be completed before the juvenile court finds a child is
adoptable and terminates parental rights. (In re Marina S. (2005) 132 Cal.App.4th 158,
166.) Further, “steps to facilitate the adoption process” include being designated by the
agency as the adoptive family. (§ 366.26, subd. (n)(2)(C).) In its adoption assessment,
the agency designated the foster parents as such.
       We further conclude father forfeited the issue of whether the foster mother had a
legal impediment to adoption. A legal impediment to adoption is relevant where a social
worker’s opinion that a child is likely to be adopted is “based solely” on the existence of
a prospective adoptive parent who is willing to adopt the minor. (Sarah M., supra, 22
Cal.App.4th at p. 1650.) The legal impediments to adoption are codified in Family Code


                                             9
sections 8601 through 8603. The one father speculates may pertain is found in section
8603, which prohibits a married person who is not lawfully separated from the person’s
spouse from adopting a child without the consent of the spouse. Father asserts that the
foster mother may be precluded from adopting the children if the foster father does not
consent to it.
       Here, the agency did not opine that the children were likely to be adopted “based
solely” on the willingness of their prospective adoptive parents’ willingness to adopt
them. Rather, the agency opined there were other families willing to adopt. Indeed,
according to the record, the children’s grandparents expressed an interest in assuming
custody of the children and maintained a positive relationship with them.
       Further, we held in G.M. that the failure to raise the legal impediment question in
the juvenile court forfeited the issue for appellate purposes. (G.M., supra, 181
Cal.App.4th at pp. 563-564.) Here, father could have asked the social worker or the
prospective adoptive mother whether she was lawfully separated or could obtain her
husband’s consent to an adoption. Father, however, made no such attempt at the section
366.26 hearing. Consequently, he forfeited the issue. Father nevertheless asks this court
to review the issue in order to prevent an ineffective assistance of counsel claim and
prevent the children from becoming legal orphans in the event the prospective adoptive
parents fail to adopt. We decline to do so.
       Finally, we conclude substantial evidence supports the juvenile court’s finding that
the children are adoptable. The children were physically healthy, were addressing their
emotional trauma in therapy and enjoyed social activities. Those that were struggling
academically and emotionally wanted to improve and were responsive to interventions.
Additionally, they were strongly bonded to each other and wanted to be adopted by their
foster parents. Equally, if not more importantly, the children were in the care of eligible
and committed adoptive parents who were well aware of their struggles and the
responsibility of adoption and wanted to adopt them.


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       To entertain the possibility that these adoptive parents may not adopt the children,
as father would have us do, is mere speculation. We prefer the more commonsensical
view that “when there is a prospective adoptive home in which the child is already living,
and the only indications are that, if matters continue, the child will be adopted into that
home, adoptability is established. In such a case, the literal language of the statute is
satisfied, because ‘it is likely’ that that particular child will be adopted.” (In re Jayson T.
(2002) 97 Cal.App.4th 75, 85.) For all the reasons stated above, we conclude there was
substantial evidence to support the juvenile court’s adoptability finding.
                                        DISPOSITION
       The order terminating father’s parental rights is affirmed.




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