In re A.D.

Filed 7/20/07 In re A.D. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. William A. Anderson, Jr., Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Michael D. Randall, under appointment by the Court of Appeal, for Defendant and Appellant.

Joe S. Rank, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.

Leslie A. Barry, under appointment by the Court of Appeal, for Minors.

Irene D. (Mother) appeals from the juvenile courts order terminating her parental rights to A.D. and I.D. pursuant to Welfare and Institutions Code section 366.26.^[1]

I. PROCEDURAL BACKGROUND AND FACTS

Mother has nine children. A.D. was born in 2003 when Mother was working on a reunification services plan for her other children. At the time, Mother had not completed a substance abuse treatment plan. The Riverside County Department of Public Social Services (the Department) received a referral in September 2003 alleging that A.D. was suffering from neglect. A social worker visited the family and recommended that the child not be detained outside the home. However, a section 300 petition was filed on A.D.s behalf in October 2003, alleging that A.D. was at risk of harm due to the neglect that her older siblings had suffered.

According to the Departments October 23, 2003 report, Mother has a history of substance abuse and neglect. Mother continued to use drugs after A.D.s case began. Additional problems included Mother being homeless and demanding that the Department take four of the older children into protective custody, Mothers history of psychiatric hospitalizations, and Mothers acknowledgment that she is bipolar. On January 12, 2004, the juvenile court sustained the petition, declared the child a dependent of the court, and ordered family maintenance services for both parents.

On June 25, 2004, the Department filed a section 387 petition on the childs behalf. The petition requested that the court place A.D. solely with her father. The parents relationship was unstable. Mother had not completed a substance abuse program. During this time, the father had become the childs primary caretaker.

On September 7, 2004, the juvenile court sustained the Departments section 387 petition. The court ordered A.D. placed in the fathers care, and family reunification services for Mother.

On February 7, 2005, the father died. Two days later, the Department filed a supplemental petition on A.D.s behalf recommending that the juvenile court place the child in out-of-home care. A contested jurisdictional hearing was held on April 27, 2005. The juvenile court found true the allegations in the petition, and placed the child in foster care. That same day, the court found that Mother had failed to comply satisfactorily with her reunification services plan, terminated her reunification services, and set a section 366.26 hearing.

In August 2005, Mother gave birth to I.D. A.D. and I.D. are full siblings. I.D. was born approximately six months after his fathers death. On August 30, the Department filed a section 300 petition on I.D.s behalf. It was amended on September 19 to correct the childs name. The petition alleged that Mothers history of substance abuse, child neglect and mental illness hindered her ability to provide adequate care for I.D.

According to the Departments report, Mother admitted to using methamphetamine while pregnant with I.D. Mothers excuse was that she had lost [her] husband . . . [and] found out [he] had another wife. None of Mothers nine children were in her care. The Department opined that Mother had a poor prognosis for reunifying with her children.

On February 7, 2006, the juvenile court sustained the allegations in the amended petition filed on behalf of I.D. The child was continued as a dependent of the court and placed in foster care. The court ordered reunification services for Mother.

In the April 26, 2006, status report for I.D., the Department reported that Mother had successfully completed a substance abuse program. She also tested clean for drugs. However, several months earlier, following Mothers psychological evaluation, the evaluator concluded that Mother could not care for I.D. and A.D. because she . . . doesnt have the wherewithal to give [her children] what they need, other than love. The evaluator recommended that reunification services be terminated and that both children be put up for adoption. The Department concurred.

The contested review hearing regarding I.D.s amended petition was held on June 19, 2006. At the conclusion of the hearing, the juvenile court terminated Mothers family reunification services as to I.D. and set a section 366.26 hearing.

The section 366.26 hearing report dated October 26, 2006, noted that A.D. and I.D. were placed in the same adoptive home. Mother had not visited with the children or maintained contact with the social worker. The prospective adoptive family resides at Camp Pendleton in base housing, where the prospective adoptive mother provides daycare services for other military families. The prospective adoptive father was deployed in August 2006, with an anticipated time of deployment of four to six months. He planned to retire fully from the military within a few years. The prospective adoptive family had previously adopted a three-year-old African-American girl.

On December 11, 2006, the juvenile court presided over the section 366.26 hearing for both children. Mother was present. The Department recommended that the juvenile court terminate Mothers parental rights to both children. The Department told the court that the children were adoptable and that a family had been identified which wanted to adopt both children. A.D. was described as a happy, healthy child who smiles often. I.D. was described as a smiling and giggling baby who was meeting his developmental milestones in a timely manner. The foster parents had already adopted a little girl. They had a fully approved adoptive home study and were open to sibling contact.

Mother opposed the proposed adoption. She told the court that she loved her children. While she acknowledged that she had inconsistent visits with them, she blamed the social worker.

After hearing the evidence, the court found by clear and convincing evidence that the children were likely to be adopted, that reasonable services were provided to Mother, and that adoption was in the childrens best interests. The court terminated Mothers parental rights and ordered them placed for adoption. Mother appeals.

II. FINDING OF ADOPTABILITY

Mother contends the juvenile courts finding that the children were adoptable is not supported by sufficient evidence. She claims that because the foster father was on duty as a Marine stationed overseas since August 2006, there was no evidence that either child had bonded with him. For the following reasons, we reject Mothers contention.

A juvenile court must terminate parental rights under section 366.26 if it determines by clear and convincing evidence that the child will be adopted within a reasonable time (and no exception to termination of parental rights exists). ( 366.26, subd. (c)(1); In re Jerome D. (2000) 84 Cal.App.4th 1200, 1204.) The trial courts findings are reviewed under the substantial evidence standard. (In re Carl R. (2005) 128 Cal.App.4th 1051, 1061.)

The finding of adoptability may be made based on the characteristics of the child, such as age, emotional state, and physical condition. (See In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) In the alternative, a finding of adoptability may be made because a particular family wishes to adopt the child. However, a prospective adoptive familys desire to adopt is not, by itself, sufficient to support a finding of adoptability. (In re Jerome D., supra, 84 Cal.App.4th at p. 1205.)

Here, Mothers sole argument is that due to the foster fathers absence and alleged inability to bond with the children, the juvenile court should not have found them to be adoptable. She relies on section 366.22, subd. (b)(5) and In re Josue G. (2003) 106 Cal.App.4th 725, 732. However, as the Department points out, neither of these authorities suggests that a bond between a prospective adoptive parent and a child is a critical factor that must exist prior to finding that the child is adoptable.

Section 366.22, subdivision (b), in relevant part, provides: Whenever a court orders that a hearing pursuant to Section 366.26 shall be held, it shall direct the agency supervising the child and the licensed county adoption agency, or the State Department of Social Services when it is acting as an adoption agency in counties that are not served by a county adoption agency, to prepare an assessment that shall include: [] . . . [] (5) The relationship of the child to any identified prospective adoptive parent or legal guardian, the duration and character of the relationship, the motivation for seeking adoption or legal guardianship, and a statement from the child concerning placement and the adoption or legal guardianship, unless the childs age or physical, emotional, or other condition precludes his or her meaningful response, and if so, a description of the condition. ( 366.22, subd. (b)(5).)

In In re Josue G., supra, 106, Cal.App.4th at pp. 727, 730-732, the juvenile court chose a permanent plan of legal guardianship for the child based on its finding that the child was not likely to be adopted. On appeal, the appellate court reversed. It held that the evidence was insufficient to support the juvenile courts finding that the child was not likely to be adopted. The only reason given by the juvenile court in support of its finding was that [the child] was closely bonded with his foster parents, who, in the courts view, would be too old by the time [the child] becomes a teenager to be considered qualified adoptive parents. (Id., at p. 733.) The court noted, the inquiry as to whether a child is likely to be adopted does not focus on the adoptive parents, but rather, on the child. [Citation.] (Ibid.)

Here, the evidence supports the juvenile courts finding that the children are likely to be adopted. The record establishes that these children were very young, were developmentally on target, had no medical and/or other challenges and were friendly, happy and loving. Additionally, there is evidence that the children were beginning to develop a relationship with the prospective adoptive parents in July 2006.^[2] The oldest child addresses her prospective adoptive family as mommy and daddy and the children are thriving in their prospective adoptive home.

III. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

Acting P. J.

We concur:

MCKINSTER

J.

RICHLI

J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by El Cajon Property line attorney.

^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] Although Mother claims there was no evidence that either child had bonded with [the prospective adoptive father], the Department points out that Mother failed to raise this issue regarding a lack of information at the hearing, and has thus waived it on appeal. (In re Urayna L. (1999) 75 Cal.App.4th 883, 885-886; In re Crystal J. (1993) 12 Cal.App.4th 407, 411.)