Filed 8/19/16 In re Emma R. CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


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

ORANGE COUNTY SOCIAL SERVICES
AGENCY,
                                                                       G053318
     Plaintiff and Respondent,
                                                                       (Super. Ct. Nos. DP024234-001,
         v.                                                             DP024234-002 & DP025915-001)

SONIA R.,                                                              OPINION

     Defendant and Appellant.



                   Appeal from orders of the Superior Court of Orange County, Gary G.
Bischoff, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Orders affirmed.
                   Merrill Lee Toole and Daniel G. Rooney, under appointment by the Court
of Appeal, for Defendant and Appellant.
                 Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su,
Deputies County Counsel, for Plaintiff and Respondent.
                 No appearance for the Minors.
                                       *                 *                *
                                            I. BACKGROUND
                 Emma, a little girl now almost three years old, was born in September
2013, with methamphetamine in her system and a number of congenital heart defects.
Her younger sister Olivia, now almost a year and a half old, was born in February 2015,
with methamphetamine in her system and suffering from Incontinentia Pigmenti, a
congenital condition that affects a number of bodily organs, including the brain and the
eyes. Their mother, Sonia R., now appeals from orders made March 14, 2016
terminating her parental rights to both young children.1 Sonia makes no argument based
on her own relationship to the two children (such as the oft-litigated benefit exception of
Welfare and Institutions Code section 366.26, subd. (c)(1)(B)(i)2), but rather presents
only the issue of the “adoptability” of the two children given their congenital disabilities.
                 By the time of the March 14, 2016 orders of termination, a prospective
adoptive couple had been located and the children had been living with them for a little
more than two months, having been placed in the couple’s home on January 10, 2016.
For a month before the placement, the couple had regular preplacement visits in
December 2015, and by the end of February, social workers had completed a preliminary
assessment of the couple. Specifically, they took a social history of the couple, checked
for criminal history, checked for the involvement of other children or adults in the home,
checked for any record of child abuse, ascertained the couple’s motivation for adoption,


         1         Emma was the subject of both an initial dependency petition (the “001” petition) filed late
September 2013, and an amended petition (the “002” petition) filed in late October 2013, which explains the three
case numbers in our caption for two children. Each child is the subject of her own separate order terminating
Sonia’s parental rights, each made March 14, 2016.
         2         All further statutory references are to the Welfare and Institutions Code.


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ascertained the character of the relationship between the couple and the two children,
determined the couple knows the legal and financial responsibilities of adoption and –
perhaps most significantly for the case at hand – evaluated their ability to meet the
children’s medical and related needs. There were no problems in regard to any of these
categories.
                                                 II. DISCUSSION
A. Adoptability: General and Special
                   Before we explain the details of Sonia’s thesis, we first quickly recap the
basic structure of the law involving adoptability. The issue of adoptability arises in the
first place because, by statute, a juvenile court must find, by clear and convincing
evidence, a child to be adoptable before parental rights may be terminated. (See
generally In re Sarah M. (1994) 22 Cal.App.4th 1642 (Sarah M.); In re Helen W. (2007)
150 Cal.App.4th 71, 79-80; see § 366.26, subd. (c)(1).3) In considering the issue,
California’s appellate courts have generally distinguished two kinds of adoptability,
general and specific. (E.g., In re Brandon T. (2008) 164 Cal.App.4th 1400, 1408; but see
In re G.M. (2010) 181 Cal.App.4th 552, 562 (G.M.).4) The basic paradigm then goes like
this: If a child is “generally adoptable,” there is no need to ask whether a prospective
adoptive parent or parents have been found. It is enough he or she is generally adoptable.


             3      The exact statutory phrase is found in subdivision (c)(1) of section 366.26: “If the court
determines, based on the assessment provided as ordered under subdivision (i) of Section 366.21, subdivision (b) of
Section 366.22, or subdivision (b) of Section 366.25, and any other relevant evidence, by a clear and convincing
standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed
for adoption.” (Italics added.) The phrase “likely to be adopted” has often been treated in the case law under the
general rubric of “adoptability.” (E.g., Sarah M., supra, 22 Cal.App.4th at pp. 1646-1648 [four usages of
“adoptable” in less than three pages] and p. 1649 [“The issue of adoptability posed in a section 366.26 hearing
 . . . .”].)
             4      G.M. recognizes that many children are not so easily categorized as one or the other. The court
said: “However, many adoption assessments that recommend an adoptability finding fall somewhere in the middle.
They consist of a combination of factors warranting an adoptability finding, including, as in this case, the
availability of a prospective adoptive parent. This is the reality we confront, notwithstanding appellate arguments
that assume a child is either generally adoptable without regard to a prospective adoptive parent or specifically
adoptable based solely on the availability of a prospective adoptive parent.” (G.M., supra, 181 Cal.App.4th at p.
562.)


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Or a child can be specifically adoptable – defined as “deemed adoptable based solely on
the fact that a particular family is willing to adopt him or her.” (In re Carl R. (2005) 128
Cal.App.4th 1051, 1061 (Carl R.), italics added.)
                  In the present case, Sonia points out that by March 14, the couple had not
yet been formally approved by an adoption home study social worker. And she notes
there is no indication the couple had obtained a foster care license or a license to care for
special needs children. These lacunae in the approval process for the prospective
adoptive couple form the core of Sonia’s adoptability argument as set forth in her
opening brief. She specifically reads In re B.D. (2008) 159 Cal.App.4th 1218 (B.D.) for
the proposition that the absence of a foster care license and an approved home study “can
constitute” legal impediments to the adoption of special needs children. (“Can
constitute” is her phrase, but the tenor of her argument is that they necessarily “do
constitute” legal impediments. See App. Opn. Br. at pp. 64-66.)
                  There are three independent reasons we reject Sonia’s thesis. First is a
simple one: Waiver. Sonia’s counsel did not bring any issue concerning any legal
impediments to the couple adopting Emma and Olivia to the attention of the trial court.
“Having not raised the legal impediment question in the trial court, mother failed to
properly preserve for appellate purposes her claim of trial court error.” (See G.M., supra,
181 Cal.App.4th at pp. 563-564.)
                  Second, even if not waived, we disagree with the underlying assumption
that Emma and Olivia are not generally adoptable. The record shows there was an earlier
placement of the two girls with a couple who would have adopted Emma and Olivia, but
only declined because they thought themselves too old.5 That shows that Emma and
Olivia are not adoptable “solely” because of their current placement.



        5        They told social workers, “If we were thirty years younger, yes, but not at this point. They need a
younger family, someone that can grow with them.”


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              More basically, social workers have reported that Emma and Olivia bring
with them a number of characteristics that tend to be associated with general adoptability.
Here is a social worker’s description of Emma from July 2015: “Emma has been
observed to be joyful and social as evidenced by always greeting people with a smile.
The child is able to wave hello and good-bye, and can blow kisses. The child has been
observed to enjoy playing with her dolls, especially her Minnie Mouse stuffed doll. She
is able to walk on her own. Emma has been observed to know and use sign language
such as ‘more’ and ‘all finished.’” A month later a social worker noted “Emma is a very
cute and endearing little girl with many qualities that suggest she is adoptable.” By the
same token, here is the description of the younger Olivia, from September 2015: “Olivia
is a cute, [then] 9-month old infant with a reasonably easy temperament. She has
beautiful brown eyes, brown hair, light tan skin, and an enchanting smile. She is very
social and loves to be carried and rocked to sleep. . . . [¶] There are no noteworthy
mental or emotional issues at this time.”
              In light of such evidence, we decline to accept Sonia’s assumption that all
children with special medical needs or disabilities can only be specially adoptable. As
the G.M. case has noted, an adoptability determination can involve a “combination of
factors” only one of which may be “the availability of a prospective adoptive parent.”
(G.M., supra, 181 Cal.App.4th at p. 562.) Here, the combination of factors is not as
lopsided in favor of general adoptability as it often is; there are a number of factors which
a trial court could reasonably conclude make them generally adoptable despite the
fragility of their physical constitutions. These factors include the lack of mental or
emotional issues, the two girls’ young ages and their pleasant dispositions, and perhaps
even their (to be sure, subjectively perceived) cuteness.
              And third, even if not waived and even if Emma and Olivia are only
specifically adoptable, the lack of a formal adoptive home study of the prospective
adoptive couple, or their lack of various licenses are not “legal impediments” to adoption.

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Under section 366.26, only a “preliminary assessment” is required of a prospective
adoptive parent or parent, and here social workers touched all the bases as to the required
contents of such an assessment. In rejecting a challenge similar to the one Sonia makes
here, the court in Carl R., supra, has helpfully identified what is, and what is not,
required of a preliminary assessment: “The statutory scheme requires the Agency to
provide the court with a preliminary assessment of the eligibility and commitment of the
prospective adoptive parents for the section 366.26 hearing. That assessment includes a
social history, screening for criminal records and prior referrals for child abuse or
neglect, together with an assessment of the capability of the prospective adoptive parents
to meet the child’s needs, and whether they understand the legal and financial rights and
responsibilities of adoption. (§§ 361.5, subd. (g)(4), 366.21, subd. (i)(4), 366.22, subd.
(b)(4).)” (Carl R., supra, 128 Cal.App.4th at pp. 1062-1063.) Thus the Carl. R. court
actually held, in the case of a special needs child who was clearly only specially
adoptable, that the prospective adoptive parents were not required to formulate a specific
educational plan before parental rights could be terminated.6
                 Sonia gives us no authority to support the basic premise of her argument –
that an “approved home study” for adoption is required in every case of special
adoptability. Nor is it a premise we accept. The statutes just quoted do not distinguish
between general and special adoptability, and it is common in cases of general
adoptability not to have a home study at all. We see no reason to graft on to the statutes a
requirement of a home study based on a common law distinction not recognized by the
statutes.




          6       Carl was, at the time of termination, an eight-year-old child with both cerebal palsy and severe
quadriparesis who had the “emotional maturity of an eight-month-old child.” (Carl R., supra, 128 Cal.App.4th at p.
1058.) The prospective adoptive parents planned to home school Carl, a point on which the appellant mother based
her appeal. The court rejected the idea that their plan for home schooling was a legal impediment to the adoption.
(Id. at pp. 1065-1067.)


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              As to special licenses, we have been cited by Sonia to no authority that
actually requires them, including B.D. if carefully read. B.D. was a case involving a
sibling group of five children, the oldest being ten-year-old B.D. himself, who was old
enough to actively oppose “losing his relationship with his mother.” (B.D., supra, 159
Cal.App.4th at p. 1231.) The group ranged from three to ten years old, and included
several children with various disabilities, developmental delays, significant language
deficits and severe tantrums. (Id. at p. 1223; see p. 1238 [“several of whom had
diagnosed mental handicaps”].) The social worker “strongly believed” the children had
to be placed for adoption as a sibling group of five (id. at p. 1232). By the time of the
termination hearing, the social services agency had found one family who had expressed
an interest in adopting “a sibling group” – but, we note, not necessarily that sibling
group. There was also an absence of “specific information” about this family. (Id. at p.
1233.) There was no adoptive home study of the family (ibid.) nor had any preliminary
assessment been made either. (Id. at p. 1234, fn. 6.)
              It was in that context the B.D. court opined that the absence of a foster care
license and a preliminary assessment were “a legal impediment to adoption.” (B.D.,
supra, 159 Cal.App.4th at p. 1234.) The court also noted the family interested in
adopting the children had no “previous relationship” with them. (Ibid.) And yet, if one
reads all the way to the end of the opinion, one finds the termination orders were
affirmed, because – on an augmented record – the appellate court learned that within 180
days of the termination all five children were placed in an approved adoptive home,
rendering the issue of adoptability moot. (Id. at pp. 1240-1241.)
              It is enough, for purposes of the case before us, to note two points of
distinction with B.D. First, statutorily, a preliminary assessment clearly is required in all
cases where a prospective adoptive parent has been “identified,” and in B.D. there wasn’t
such an assessment. In the case before us, by contrast, the B.D. court’s concern about
finding a prospective adoptive family without sufficient information is not applicable:

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Here, in contrast to B.D., the couple and the two girls had plenty of contact prior to the
termination hearing, and a preliminary assessment had been completed.
B. Post-Appeal Motions
              A postscript is necessary, however, to complete the present case. On July
1, 2016, the Social Services Agency filed two motions in this court. The first motion was
a request to take judicial notice of a trial court minute order dated June 22, 2016 (or
alternatively take evidence on appeal of that minute order), to the effect that an adoptive
home study had indeed been completed as of June 16, 2016, which was about three
weeks after the opening brief had been filed (on May 25, 2016). This motion was
actually joined in by Sonia, because it allows her to embellish her argument against the
adoptability of the two children.
              The second motion was to dismiss the appeal as moot, since the fact of a
completed home study, accordingly to the agency, obviated Sonia’s sole ground of
appeal. Sonia opposed the motion to dismiss, having spotted a discrepancy in the
description of the proposed adoptive couple in the trial court minute orders: Previously,
as our description of the facts illustrates, the couple had been described as a couple. But
in the minute order noting the completion of the home study, the minute order used the
phrase “the prospective adoptive parent” – singular. The description prompted Sonia to
argue that the couple into whose home the children had been placed had decided not to
adopt them; rather, a new adoptive parent – singular – had stepped into their place. The
perceived change underscored her argument that the children are neither generally or
specially adoptable, since the implication was the couple had become just another in a
series of unsuccessful placements.
              But then, on July 19, 2016, in response to Sonia’s argument, the agency
filed a second request to take judicial notice (or additional evidence of same on appeal) of
a minute order dated July 7, 2016, to the effect that the home study had been completed
on “the prospective adoptive family” after all. The minute order of June 16 was just

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incorrect, at least according to the agency, in describing the couple as a parent with no
“s.” On July 29, Sonia filed a joinder in the agency’s July 7 request, but used the
opportunity to argue it still wasn’t clear whether there were prospective adoptive parents
or just one prospective adoptive parent. And that is where matters stood by early August,
Sonia’s appellate counsel having waived oral argument by not requesting it.
              This post-appeal clutter does not change the result. If In re Zeth S. (2003)
31 Cal.4th 396 teaches appellate courts anything, it is to not to take evidence on appeal
regarding the possible post-appeal failure of prospective adoptions, but rather stick to the
record before the trial court. (See id. at pp. 407-411.) Accordingly, we deny the
agency’s motions to take judicial notice or additional evidence of post-appellate minute
orders made by the trial court, which effectively moots the agency’s motion to dismiss
the appeal.
                                    IV. DISPOSITION
              The orders appealed from are affirmed.




                                                 BEDSWORTH, ACTING P. J.

WE CONCUR:



MOORE, J.



FYBEL, J.




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