SNAUFFER, J.
On October 6, 2014, the Stanislaus County Community Services Agency (agency) filed a petition pursuant to Welfare and Institutions Code
Father appeals from the termination of his parental rights to both children asserting there was not substantial evidence to support the juvenile court's finding that the children were adoptable. Father further contends the agency unilaterally ended his right to visit the children in violation of the Fourteenth Amendment. We reject these contentions and affirm the juvenile court's orders.
Father was not named on either boy's birth certificate as his biological father. He promptly responded to the agency when he learned about the children's detention and was described as very pleasant and affable. Father first visited with the children three days after they were detained. Father was late to or missed the next three visits but again saw the children in early November 2014. The children appeared to like father and called him dad, but did not have a close relationship with him.
Father was immediately referred to parenting classes but did not attend them. On October 9, 2014, father tested positive for benzodiazapines, morphine, and oxycontin. Although father was friendly and well organized, he had a significant CPS history that included two allegations of molesting two pre-teen daughters of different women and domestic violence. In late November 2014, the juvenile court detained the children, ordering services for mother but not for father because he was an alleged father.
On December 14, 2014, father filed a section 388 petition seeking reunification services and alleging DNA testing showed him to be the biological father of both boys. Father stated that prior to the dependency case, he saw the children two to three times per month and on holidays. Father stated he sometimes bought them clothes. At a hearing on January 12, 2015, father testified he had been married for 11 years to a woman other than mother. K.D.T. and K.Z.T. were conceived when father was separated from his wife, who knew about K.D.T. but not K.Z.T. Father only brought the children to his house when his wife was at work. Father recently told his wife about K.Z.T. after he received DNA test results.
Father did not believe he needed any services; he just wanted joint custody with mother. He thought mother would be getting the children back soon. Father was open to receiving services if ordered by the court. The juvenile court granted reunification services to father, explaining to him: "And if you want to be a father, it needs to be full time, not just half of the time." Father's case plan included a clinical assessment as well as assessments for drug use, anger management, and domestic violence. Father was referred to a parenting program. The court ordered weekly visitation at the agency.
The juvenile court advised father: "[Y]ou do need to understand that the next court hearing is May 14th, and you are starting behind; so you are going to have to catch up and really be involved in services and show that you are willing to be involved in services and that you regularly visit with the children." The court further advised him that if he did not show good progress, the agency would probably file a section 388 petition to terminate services at the six-month hearing. Father replied he was willing to comply with the court orders and case plan.
In late January 2015, the court granted the agency's petition to authorize psychotropic medication for K.D.T. who had been diagnosed with posttraumatic stress disorder, attention deficit hyperactivity disorder (ADHD) and in utero drug exposure. He was otherwise generally healthy. In late March 2015, the court granted a second psychotropic medication request to add a new medication to treat K.D.T.'s ADHD.
The report by the agency for the six-month review hearing and an accompanying section 388 petition requested termination of father's reunification services. The report addressed the children's well-being, indicating that K.D.T. was healthy and not developmentally delayed but was struggling with school due to the structure it imposed on him. A behavioral support plan was implemented to assist him. K.D.T. was receiving counseling with a clinician, as well as medication management. K.Z.T. was healthy and not developmentally delayed. He had no discipline issues, was not receiving mental health services, and was making progress in school. While the older brother was having behavioral issues in the home, the two younger children had adjusted well to their placement and got along with the caregivers who loved the children and were attentive to their needs.
The social worker's report indicated that father had not participated in his court-ordered assessments. Father attended four parenting classes, the last being on March 26, 2015. Father had since been placed "on hold." He missed two separate drug use assessment appointments made for him. Of 17 scheduled visits, father visited only four times. When father attended visits, he had little interaction with the children. Father brought gifts, but then sat watching the children play or used his cell phone. He last visited the children February 27, 2015. Father failed to call or show up for all subsequent scheduled visits.
On February 13, 2015, father called to cancel the visit stating he had the flu. Shortly thereafter, the visitation center's phone rang and it appeared to be an accidental call. The calling number was the number father had just called from. A man's voice, which three members of visitation staff identified as father's, was heard in a conversation saying, "I got the weed, man." "She's fucking crazy." "You should smash it up and put in in the garbage." "I'm scared, man, scared for my life." "If I don't get the money for the boat
Father failed to appear at the June 11, 2015 hearing. His counsel was present and explained he did not know why father was not present. Counsel tried calling father just before the hearing and got no response. Counsel requested a continuance, which was denied. Father's counsel opposed termination of services. The court denied the motion. The court stated that if father would at least visit with his children on a regular basis, it might consider continuing services. The court noted that father had requested services but failed to follow through with them. The court described father as a stubborn man who wanted to do things the way he wanted to do them. The court stated it was very concerned that shortly after it granted father's section 388 petition, father failed to consistently visit the children. The court urged father's attorney to encourage his client to visit with the children and terminated reunification services to father. Services were continued for mother.
The agency's 12-month report recommended that services to mother be continued. The children remained stable in their placement and were well-bonded to their caregivers. K.D.T. and K.Z.T. were doing well in placement. The only concern the caregivers had was for the older child. The social worker had had no contact with father during the reporting period. The reunification plan continued to recommend visits with father once a month for two hours at the agency.
Father failed to appear at the 12-month review hearing on November 12, 2015. Counsel for the minors indicated that the foster parents did not experience the temper tantrums that mother was seeing during her visits with the children. Father's counsel indicated that he had no comments, but renewed unspecified "prior objections." Mother continued to receive reunification services.
The agency's 18-month review report recommended termination of services for mother. The oldest child was 15 and had been moved from the placement with his brothers to a separate foster home due to behavior issues. K.D.T. and K.Z.T. remained in the same placement. Both children were healthy and developmentally on target. K.D.T. struggled with grades in school and began tutoring. He had made great improvement since the beginning of second grade, but was still behind grade level. K.D.T. continued to receive mental health counseling and medication. K.Z.T. did not require any mental health services. The children were doing "exceptionally well" in their placement. The caregivers were willing and able to provide long-term care for the children. The recommendation was for long-term foster care if reunification with mother failed.
Mother appeared at the hearing on April 1, 2016, and requested a contested hearing which was set for April 28, 2016. Father failed to appear. On April 28, 2016, father again failed to appear. His counsel was present. A stipulated settlement was reached that mother's reunification services would be terminated and father's educational rights would be suspended.
Father was provided written notice of a section 366.3 hearing set for October 20, 2016. The agency's report recommended no changes in the children's permanent plan. K.D.T. and K.Z.T. remained in the same placement. K.D.T. was undergoing an assessment for special education services. He had some "challenges" both academically and behaviorally in school, but he had not been moved to a different school. There was no report of suspensions or other behavioral discipline from the school regarding K.D.T. K.Z.T. was doing well in school. He was slightly behind but was in a tutoring program that was assisting him in improving academic skills. K.Z.T. was eager to do his best and was well motivated. He did not need mental health services.
While mother had weekly scheduled visits with the children, the children had been refusing to participate for the past two months. The social worker had no communication with father who had failed to visit the children. K.D.T. and K.Z.T. were adoptable and their caretakers were expressing some interest in adopting both children. The children told the social worker they wanted to be adopted by their current care providers. The social worker had identified the children's mother, a grandparent, and their care providers as important adults in their lives. The proposed case plan granted father once monthly visits at the agency.
Father failed to appear at the hearing on October 20, 2016. His counsel was present. Counsel for father had no comments to make on behalf of his client. The juvenile court found that the agency had complied with the case plan.
Father was sent notice of a hearing on April 13, 2017, to recommend a section 366.26 hearing with the plan of adoption for the children. The agency prepared a status review report for the hearing recommending continuance in foster care with a permanent plan of guardianship or adoption. K.D.T. did not meet the criteria for an individualized education plan but qualified for a 504 plan. He was still being treated for ADHD. K.Z.T. had no developmental delays. He continued to do well at school and in the foster home. The older brother was not interested in maintaining sibling visits with the two younger children. Although the two younger children displayed some sibling rivalry, they were protective of each other.
The care providers to K.D.T. and K.Z.T. wanted to adopt both children. The social worker believed adoption was in the best interests of both children. The social worker had a discussion with the boys about adoption, and they were clear that they wanted to be permanently part of their care providers' family. Although K.D.T. had struggles academically, the social worker described him as a smart, loving child who was always willing to engage in conversation. The social worker recommended that a section 366.26 hearing be set for the children to establish a permanent plan.
Father was not present at the hearing on April 13, 2017. The matter was continued to May 8, 2017. On May 8, 2017, father was again absent, though his attorney was present. Counsel for father lodged an objection to the setting of a section 366.26 hearing but made no argument. Counsel for the agency noted father had not visited in "some time." Because there was no showing of detriment, the juvenile court did not change its orders with regard to visitation and set the matter for a section 366.26 hearing on September 5, 2017.
The agency's section 366.26 report recommended termination of parental rights and adoption for K.D.T. and K.Z.T. with their current care providers. The social worker indicated K.D.T. is healthy and not developmentally delayed. He made significant academic improvements in the third grade. K.D.T. continued to receive counseling and medication for ADHD. K.Z.T. was entering the third grade and was doing very well in school. He was healthy, not developmentally delayed, and was not in counseling or receiving medication. K.D.T. and K.Z.T. refused to have visits or phone contact with their mother and father, seeking only contact with their older brother. The social worker clarified that it was specifically mother the children did not want to visit. The social worker's attempts to have the children explain why they did not want visits with mother led to them stating they just did not want to do so. They were also uninterested in talking to mother by phone, despite encouragement from the social worker to call mother to just say hello. Both children wanted to be adopted by their care providers who had had custody since November 2014.
The care providers had been parenting the children for nearly three years at the time of the agency's report. The bonds between all the parties were described as very strong. The care providers were married and had a comfortable, clean, and child friendly home. The care providers understood the responsibilities of adoption and wanted to be the children's legal parents. The social worker found that both children were emotionally connected to their care providers, loved them, and wanted to be part of the care providers' family. The social worker found the permanent plan of adoption was appropriate and both children were likely to be adopted. The social worker further noted that termination of both parents' parental rights would not be detrimental to either child.
At the September 5, 2017, hearing, at which both father and his attorney were present, the section 366.26 hearing was continued to November 7, 2017. During the hearing, father's counsel stated: "[A]apparently, the father had been told he could not visit with the children. But it is in the case plan that he should have once per month visits with the children. So I will be giving him the phone number for the visitation center to set those visits up." Counsel for the agency replied: "[T[he social worker just wanted to correct that. The parents haven't been told that they couldn't visit." The agency's counsel explained that when children are these children's ages, the agency does not force children to visit if they are not comfortable or do not desire to visit. The court noted that the agency's report stated the children were encouraged to visit with their parents.
Prior to the hearing, the agency filed an addendum report requesting a 90-day continuance because the foster parents had recently suffered significant losses which had been a barrier to completion of the adoption packet which was necessary to move forward with the adoption process. On November 7, 2017, father was present with counsel and the case was continued to February 8, 2018. There was no further discussion or request regarding visitation.
Father appeared with counsel for the section 366.26 hearing on February 8, 2018. The agency made an offer of proof that the issue concerning completion of the adoption packet was resolved and the foster parents remained very committed to adoption. The offer of proof was accepted by all parties without objection. Father's counsel made an offer of proof that father would testify that at prior visits, the boys were excited to visit him, called him daddy, and father brought gifts and food to the visits. Further, once the visits stopped, father made efforts to call the visitation center and set up more visits with the children. It was agreed that the last time father visited the children was in February 2017. Father's counsel objected to termination of parental rights and requested a guardianship. The juvenile court found by clear and convincing evidence "it is very likely that both of the boys will be adopted. There has been no evidence provided to the contrary. . . ." Mother's and father's parental rights were terminated.
Father contends there was not substantial evidence to support the juvenile court's finding that K.D.T. and K.Z.T. were generally adoptable. Father describes K.D.T. and K.Z.T. as a sibling set in which K.D.T. had many behavioral and mental problems requiring psychotropic medication. There was substantial evidence that both children were 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, 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 [citation] and to consequently order termination of parental rights." (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, at p. 559.)
At the section 366.26 hearing, the juvenile court must determine by clear and convincing evidence whether it is likely the minor will be adopted. (§ 366.26, subd. (c)(1).) If the court finds a likelihood of adoption, the court must terminate parental rights absent evidence termination would be detrimental to the minor under one of the exceptions to adoption (§ 366.26, subd. (c)(1)(B)(i)-(vi)) that are not applicable here. (See In re Celine R. (2003) 31 Cal.4th 45, 53.)
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, the child need not be in a prospective adoptive home and there need not be a prospective adoptive parent waiting to adopt. The fact a prospective adoptive parent has expressed interest in adopting the child is evidence the child's age, physical condition, mental state, and other matters relating to the child are not likely to dissuade adoption of the minor. 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, some 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 child's needs. (Id. at p. 494.)
We address the terms "generally" and "specifically" adoptable, terms that, in our view, obfuscate the adoptability issue before the juvenile court because those terms are not mentioned in section 366.26. Further, the juvenile court is not required to assess the general and specific adoptability of a child or make such findings. Instead, section 366.26 merely requires the juvenile court to determine if the child is "likely" to be adopted within a reasonable time. The law requires the juvenile court to determine if the child is adoptable. "Although a finding of adoptability must be supported by clear and convincing evidence, it is nevertheless a low threshold: The court must merely determine that it is `likely' that the child will be adopted within a reasonable time. [Citations.] We review that 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." (In re K.B. (2009) 173 Cal.App.4th 1275, 1292.)
Moreover, we review the record in the light most favorable to the juvenile court's findings, and draw all inferences from the evidence that support the court's determination. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1177.) Here, the agency explained the two children were adoptable because of their caregivers' commitment to adoption and the fact the caregivers had been meeting the children's needs for over three years. The juvenile court described the children as both being adoptable. Although K.D.T. had been struggling in school, he appeared to have overcome these problems during third grade. K.D.T. was being treated successfully for ADHD with psychotropic medication. The care providers were well aware of K.D.T.'s problems but were still willing to adopt him and his brother. K.D.T. was described as a smart, loving child who was always willing to engage in conversation. He also was healthy with no developmental delays. K.Z.T. had no developmental delays and did well in his foster home and school throughout the proceedings. The children were, therefore, adoptable because their potential adoptive parents wanted to adopt them, making them "specifically" adoptable. Under the facts of this case, this factor alone serves as evidence the children were likely to be adopted within a reasonable time by these adoptive parents or some others. (Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.)
Father argues that even a specifically adoptable child may have so many disabilities that a juvenile court must assess such a child, giving consideration to "whether the prospective adoptive parents can meet that child's needs, since if the prospective adoptive parents cannot meet the child's needs, the child cannot properly be found to be adoptable." (In re Carl R. (2005) 128 Cal.App.4th 1051, 1062 (Carl R.).) Carl R. had serious physical disabilities that would require life-long care. (Ibid.) The court in Carl R. found the prospective adoptive family had a long history of caring for children with special needs and there was substantial evidence Carl R. was adoptable. (Id. at pp. 1064-1067.) As the agency points out, the facts of Carl R. are distinguishable from this case because K.D.T.'s disabilities are far less serious and were being successfully addressed by his foster parents. Furthermore, as in Carl R., there was substantial evidence before the juvenile court that the prospective adoptive parents were skilled in caring for both of these children.
Father also relies on In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205, a case where an adoptability finding was made by the juvenile court prior to an adoption study. Unlike here, there was evidence in Jerome D. that the minor lived with his stepfather and stepsiblings most of his life and it would be detrimental to remove him from his family. (Ibid.) Father further argues that as in Jerome D., there was no evidence that an adoptive home study had been completed. This was the case in October 2017, as noted in the agency's addendum report. The continuance here was so the study could be completed. The care providers had undergone criminal child welfare history background checks. At the next hearing, the agency made an offer of proof, accepted by all of the parties, that the issue set forth in the addendum report had been resolved and the care providers remained committed to adoption.
There is no legal requirement an adoptive home study be completed before a juvenile court can terminate parental rights. The question before the juvenile court was whether the children were likely to be adopted within a reasonable time, not whether any particular adoptive parents were suitable. The issue of a potential family's suitability to adopt is reserved for a subsequent adoption proceeding. (In re Marina S. (2005) 132 Cal.App.4th 158, 166, citing In re Scott M. (1993) 13 Cal.App.4th 839, 844.)
The mother in In re Helen W. (2007) 150 Cal.App.4th 71, 79 (Helen W.), contended the social services agency's finding that the children there were adoptable was not supported by sufficient evidence because the agency had failed to consider obstacles to adoption. The court in Helen W. disagreed, noting the agency methodically reported the children's medical, developmental, emotional, and behavioral conditions. The foster mother who sought adoption had accompanied the children to appointments, advocated for services, and was fully aware of the children's medical and psychological conditions. The court in Helen W. found no legal basis for the mother's assertion that there had to be certainty in a child's future medical condition before the court could find adoptability. (Ibid. )
The mother in Helen W., like the father here, also argued the juvenile court improperly relied solely on the foster parents' willingness to adopt. Addressing this point, Helen W. noted that 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 determining 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. (Helen W., supra, 150 Cal.App.4th at p. 80, citing Carl R., supra, 128 Cal.App.4th at p. 1062; also see G.M., supra, 181 Cal.App.4th at pp. 563-565 [social worker did not conclude children were adoptable solely on caregiver's willingness to adopt them].) No legal impediment was found with the prospective adoptive parent in Helen W. and the adoption assessment report detailed the relevant social history of the foster mother in addition to her commitment to adoption. (Helen W., supra, at p. 80.) The same is true here. As discussed above, there is independent evidence in the record showing both children are adoptable and the juvenile court did not prematurely make an adoptability finding.
Father contends the agency unilaterally ended his visits with the children. Father does not argue the juvenile court's visitation order itself improperly delegated authority to the agency. Father contends the agency's unilateral actions violated his due process rights and that he was prevented from arguing the beneficial parent-child relationship as an exception to termination of parental rights.
We agree with the agency's position, however, that although it is clear father stopped visiting the children, there is no evidence in the record to support his assertion that the agency ended his visitations. The parties stipulated at the section 366.26 hearing that father had last seen the children in February 2017. The agency's reports indicated that father had only a handful of visits with the children at the beginning of the dependency notwithstanding the juvenile court's plea that he visit them as much as possible.
Father was only intermittently engaged in the reunification process and did not regularly visit the children. By late 2017, more than three years after the children were detained, they were committed to being adopted by their care providers. The report for the section 366.26 hearing explained that the children did not want visits with father or mother. The agency, however, encouraged the children to maintain visitation with the parents. The record does not support father's contention that the agency unilaterally terminated his visitation with the children.
Father further argues the beneficial parent-child relationship exception should apply to his case. The factors to consider in determining whether a parental relationship is important and beneficial include the age of the child, the portion of the child's life in the parent's custody, the positive or negative effect of interaction between the parent and child, and the child's particular needs. The relationship must be such that the child would suffer detriment from its termination. (In re Angel B. (2002) 97 Cal.App.4th 454, 467.) Parent bears the burden of showing more than loving contact and visits. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 953-954 (L.Y.L.).) Although day-to-day contact is not necessarily required, it is typical. A biological parent who has failed to reunify with an adoptable child may not derail adoption merely by showing the child would derive some benefit from continuing the parent-child relationship during periods of visitation. (In re Jason J. (2009) 175 Cal.App.4th 922, 937.) Parents need to demonstrate they occupy a parental role in their children's lives resulting in a significant, positive, emotional attachment from child to parent. (L. Y. L., supra, 101 Cal.App.4th at p. 954.)
The record indicates that the children did not consider father to be an important person in their lives. Father stipulated that he last visited the children in February 2017, a year prior to the hearing terminating his parental rights. The record does not support father's contention that the agency terminated his visitation. Rather, it appears that father was somewhat disinterested in maintaining a parental relationship with the children. The beneficial parent-child relationship exception to termination of parental rights is inapplicable to father. Father's due process rights to the companionship of the children were not violated.
The findings and orders of the juvenile court are affirmed.
LEVY, Acting P.J. and FRANSON, J., concurs.
