In re A.J.

Filed 7/5/07 In re A.J. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(San Joaquin)

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Dena A., the mother of minors A.J. and F.A., appeals from an order of the San Joaquin CountyJuvenile Court terminating her parental rights. (Welf. & Inst. Code,  366.26, 395.)^[1] She contends the courts finding that the minors are adoptable is not supported by sufficient evidence. We shall affirm the judgment (order terminating parental rights as to A.J. and F.A.).

FACTUAL AND PROCEDURAL BACKGROUND

Minor A.J. was born in October 2001 and minor F.A. was born in September 2004.^[2]

From July 1998 to March 2002, the mother had numerous contacts with the San Joaquin County Human Services Agency (Agency) as a result of substance abuse and neglect of her children.

F.A. tested positive at birth for amphetamines, which resulted in a protective hold being placed on her. The mother admitted to a social worker that she had used methamphetamine two days prior to F.A.s birth and that she had previously used crank. The mother also conceded that she had smoked cigarettes and had consumed alcohol during the pregnancy. She informed the social worker that she had been homeless and was living in the home of a friend. She indicated to the social worker that she did not plan to keep F.A. and implied that to do so would be burdensome.

The minors were detained at a September 16, 2004 hearing and the court took jurisdiction over the minors at a September 28, 2004 hearing. At the latter hearing, the mother was ordered to participate in a drug court program.

A March 2005 status review report indicated that the mother had been discharged from a substance abuse treatment program and was struggling to complete her reunification case plan. The report noted that A.J. and F.A. had been placed in different foster care homes. The minors had been assessed for adoption in December 2004 and had been found to be adoptable.

In April 2005, the mother was remanded into custody for three days for failure to comply with an ordered drug court program. In May 2005, it was reported that the mother tested positive for methamphetamine and marijuana. She was again remanded into custody.

In October 2005, the juvenile court granted the social worker discretion to place the minors with the mother at a residential substance abuse treatment facility. In November 2005, a status review report indicated that the prognosis for family reunification was good: The minors had been placed in the same foster home; their visits with the mother were increasing; and they were preparing to reunify with the mother at the residential treatment facility. At the review hearing, the court ordered the minors placed with the mother at that location.

In December 2005, a supplemental petition was filed alleging that the mother failed to comply with her case plan in that she was using drugs and planned to leave the treatment facility. The minors were again removed from the mother.

A March 2006 status review report indicated that the mother continued to test positive for methamphetamine, had ceased visitation with the minors, no longer participated in a substance abuse program, and was nonresponsive to the Agencys attempted contacts. The report noted that, after an investigation regarding allegations of verbal and physical abuse in their foster home, the minors were placed in a new foster home. A.J. was enrolled in a Head Start program. His teacher reported that he is a pleasure in class and is doing well. The minors are [both] very nice children, have adjusted well to their new foster home, and have no severe behavior problems.

In July 2006, the juvenile court ordered termination of the mothers reunification services. The mother was present and received a writ package, but she did not file a writ in this case.

A November 2006 status review report stated that the minors continued to do well in their foster placement. A.J., who was in kindergarten, performed well academically but struggled with behaviors during an after-school program. Reported behaviors included punching and scratching students, tackling others, repeatedly flushing the toilets, and using profanity. Because A.J. does better with older students than with his peers, an intervention meeting was held and an older student was assigned to be his buddy. The report indicated that the foster parent was interested in adopting the minors.

Two months later, the January 2007 selection and implementation report indicated that neither minor exhibited any developmental concerns. F.A. was attending daycare and was doing well with other children. A.J. was doing very well academically and was working at grade level. His teacher reported that he could be easily distracted, easily angered, impulsive, and a tease to other students. A peer mentor was meeting with him three times a week to model appropriate behaviors. His pediatrician was monitoring him for Attention Deficit Hyperactivity Disorder. Although he had experienced significant behavior difficulties at an after‑school program in the beginning of the school year, he was moved to a licensed daycare facility and was benefiting from its more structured environment. He was set to begin services with a private therapist to help him deal with issues of loss, anger and impulsiveness.

The selection and implementation report noted that a joint adoption assessment in September 2006 had found both minors to be adoptable. The foster parent had been indecisive about adopting the minors and continued to be hesitant about making that commitment. Recently, she had advised the social worker that she was unable to commit to adopt. The Agency forwarded the minors child available information to various adoption agencies and planned to present the information at an upcoming monthly adoption exchange for all California adoption agencies.

In January 2007, a selection and implementation hearing was held. The mother appeared by counsel but did not personally attend. No testimony was taken and all parties submitted on the selection and implementation report, which recommended termination of parental rights. The court found that there is clear and convincing evidence that it is likely that the minors will be adopted. The court terminated the mothers parental rights as to A.J. and F.A.

DISCUSSION

The mother contends the juvenile courts finding that the minors are adoptable within the meaning of section 366.26, subdivision (c)(1), is not supported by substantial evidence. We disagree.

When the sufficiency of the evidence to support a finding or order is challenged on appeal, even where the standard of proof in the trial court is clear and convincing, the reviewing court must determine if there is any substantial evidence‑‑that is, evidence that is reasonable, credible and of solid value‑‑to support the conclusion of the trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) In making this determination we recognize that all conflicts are to be resolved in favor of the judgment and that issues of fact and credibility are questions for the trier of fact. (In re Jason L., at p. 1214; In re Steve W. (1990) 217 Cal.App.3d 10, 16.) The reviewing court may not reweigh the evidence when assessing the sufficiency of the evidence. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)

Determination of whether a child is likely to be adopted focuses first upon the characteristics of the child. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) The existence or suitability of the prospective adoptive family, if any, is not relevant to this issue. (Ibid.; In re Scott M. (1993) 13 Cal.App.4th 839, 844.) [T]here must be convincing evidence of the likelihood that adoption will take place within a reasonable time. (In re Brian P. (2002) 99 Cal.App.4th 616, 624.) The fact that a prospective adoptive family is willing to adopt the minor is evidence that the minor is likely to be adopted by that family or some other family in a reasonable time. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.)

The mother contends the evidence of adoptability was insufficient because [A.J.s] behavior had resulted in the foster mother withdrawing her offer to adopt, and the social worker identified no prospective home likely to adopt this sibling group or either child individually. (Italics added.) We disagree.

Viewed most favorably to the judgment (In re Jason L., supra, 222 Cal.App.3d at p. 1214), the evidence does not show any causal connection between A.J.s behavior and the foster mothers decision. Her reasoning process does not appear expressly on the record, and the social workers reports do not support the mothers inference of cause and effect.

The November 2006 status review report documented A.J.s problematic behaviors at school, but it nevertheless noted that the foster mother has indicated a commitment to adopting the minors.

Two months later, the selection and implementation report noted A.J.s improvement following the implementation of peer mentorship and structured day care, and it raised the possibility of treatment for his hyperactivity disorder. Nevertheless, that report noted that the foster mother had become uncertain about adopting and ultimately decided not to adopt.

This record suggests that the foster mothers commitment to the minors was diminishing at the same time that A.J.s behavior was improving as a result of the interventions. The juvenile court was not required to infer that A.J.s behavior caused the withdrawal of the offer to adopt. The withdrawal, in turn, did not compel a finding that the minors were not adoptable.

As noted, the fact that a prospective adoptive family is willing to adopt the minor is evidence that the minor is likely to be adopted by that family or some other family in a reasonable time. (In re Lukas B., supra, 79 Cal.App.4th at p. 1154.) Here, the foster mothers initial willingness to adopt the minors (and the lack of evidence that her change of heart was based on the condition of either minor) is evidence that the minors are likely to be adopted by some other family in a reasonable time. (Ibid.)

The selection and implementation report contained further evidence of adoptability. The Agency completed a joint adoption assessment in September 2006 and found both minors to be adoptable. The Agency was optimistic that a prospective adoptive family could be located for these minors due to their attractive qualities, young ages and their overall good health.

Contrary to the mothers argument, the selection and implementation report did not suggest that A.J. was still suffering significant behavior difficulties at the time of the hearing. The report indicated that those difficulties had occurred at the beginning of the school year (presumably the previous September) and had subsequently been addressed. The reports assertion that A.J. now exhibits behavior difficulties appears to relate back to its observation that he can be easily distracted, easily angered, impulsive and a tease to other students. Those traits do not distinguish him from typical five-year-old boys or otherwise suggest that he is unadoptable. (Cf. In re Lukas B., supra, 79 Cal.App.4th at p. 1154 [child urinating on herself and regurgitating for no apparent reason not so severe as to make the courts finding of adoptability unsupported].) Nor is adoptability negated by A.J.s use of a mentor and licensed day care. (Ibid.) This record contains the requisite convincing evidence of the likelihood that the adoption will take place within a reasonable time. (In re Brian P., supra, 99 Cal.App.4th at p. 624.)

The mother claims the juvenile court should have identified adoption as the permanent plan and ordered the Agency to find an adoptive home within 180 days, pursuant to section 366.26, subdivision (c)(3). We disagree.

Section 366.26, subdivision (c)(3) applies where a child is difficult to place for adoption . . . . For purposes of this section, a child may only be found to be difficult to place for adoption if there is no identified or available prospective adoptive parent for the child because of the childs membership in a sibling group, or the presence of a diagnosed medical, physical, or mental handicap, or the child is the age of seven years or more. (Italics added.)

At the time of the selection and implementation hearing, the minors were siblings, ages two and five. Neither minor had been diagnosed with a qualifying handicap. Although no prospective adoptive parent had been identified or become available, no evidence suggested that this was so because of the minors membership in a sibling group. Rather, the evidence suggested that it was because of the foster mothers late decision not to adopt. Nothing in section 366.26, subdivision (c)(3) precluded the juvenile courts finding that the minors were adoptable.

DISPOSITION

The judgment (order terminating parental rights as to A.J. and F.A.) is affirmed.

BUTZ , J.

We concur:

SIMS , Acting P. J.

________HULL ___________, J.

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^[1] Undesignated statutory references are to the Welfare and Institutions Code.

^[2] The mothers two older children, K.Q. and D.Q., are not subjects of this appeal.