In re Briana L.

Filed 3/13/07 In re Briana L. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

Appeal from an order of the Superior Court of Orange County, Gary Vincent, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Sharon S. Rollo, under appointment by the Court of Appeal, for Defendant and Appellant.

Benjamin P. de Mayo, County Counsel, Dana J. Stits and Paula A. Whaley, Deputies County Counsel, for Plaintiff and Respondent.

* * *

Michael L. (father) appeals from the juvenile courts order terminating his parental rights to Briana L., who is now 10 years old. (See Welf. & Inst. Code,  366.26; further undesignated statutory references are to this code.) Father contends the juvenile court erred by finding Briana to be adoptable. Substantial evidence supports the courts conclusion, and we therefore affirm.

I

FACTUAL AND PROCEDURAL BACKGROUND

In August 2003, a Placentia police officer detained then-six-year-old Briana after her father, who suffered from schizophrenia, became paranoid and incoherent in a store parking lot. Fathers girlfriend reported he had stopped taking his medication and that the trio were homeless, having recently driven from Tennessee. The officer placed father on a 72-hour hold. ( 5150.) Orange County Social Services Agency (SSA) discovered the child protection agency in Henry County, Tennessee, had investigated a recent report that father gave Briana a black eye, which proved unsubstantiated.

According to father, Brianas mother consumed crack cocaine and remained in Tennessee with the couples two-year-old son and a boyfriend who regularly struck Briana, the boy, and mother. Father admitted he had been arrested for aggravated domestic violence in Tennessee but claimed the charges had been dropped; he also admitted he used methamphetamine intravenously. Father informed the social worker he would turn to street drugs rather than take psychotropic medication.

The social worker who interviewed Briana found her angry, defiant, and uncooperative. Father later acknowledged he had instructed the child not to tell anyone anything about her[self] as a way of protecting her[self]. Briana did disclose that mother disciplined her by slapping her in the face and placing her in an icy tub because she wanted me to be cold and die.

Briana soon moved from Orangewood Childrens Home to a foster home. She was devastated when her mother broke a promise to visit. Briana excused her mothers lack of telephone calls by citing a recent hurricane on the East Coast. The foster mother observed that while Briana could be aggravating, she respond[ed] well to firm directives and continue[d] to do well in the placement; similarly, although Briana could be disruptive at school, she performed well.

Briana did not want to see father initially because she feared he would strike her, as he had in the past. Early in the proceedings, she reported that father sexually abused her, but then recanted. Resuming visits with father, she enjoyed them, acknowledging, Its really hard being away from my dad. But she confirmed the physical abuse, noting father also punched a previous girlfriend in the face, giving her a black eye.

The juvenile court sustained jurisdiction over Briana based on the serious physical harm inflicted by her parents, their neglect, and failure to provide for her when father became incapacitated. ( 300, subds. (a), (b) & (g).) After hearing Brianas testimony, the court observed this kid is really very sharp, ranking her as one of the top 10 or 15 kids . . . of that age the judicial officer had encountered in 13 years as a dependency court. The court specifically complimented Briana as articulate, composed, [and] mature beyond her years . . . .

The next six months proved difficult for Briana: father moved out of the county, behaved erratically, sometimes spoke abusively with the social worker, and stopped telephoning Briana; and Brianas foster mother verbally abused Briana as their relationship deteriorated. This foster mother reported sexualized behavior consisting of Brianas comment that a chandelier was sexy, grabbing other childrens underwear at school, and wearing her pants low on her waist. SSA moved Briana to a new foster home where, after a period of adjustment that included enuresis and an imaginary friend abused by the friends imaginary mother, her mood improved.

Generally loud, aggressive, and always the boss or in charge with playmates, seven-year-old Briana let her guard down in counseling; her therapist concluded Briana attempted to control her environment because she felt a lack of control in her life. Her teacher reported she had settled down in class but continued to underperform academically, and Briana expressed anxiety about improving her marks occasionally hitting herself and calling herself stupid when doing homework. Briana also bit herself, and the social worker noted Briana showed a tendency to become easily frustrated if she can not succeed in a task.

Mother had finally initiated telephone contact during this period, but Briana terminated the calls angrily. According to her therapist, Brianas anger stemmed from feeling unloved. After Briana told her classmates she wanted to kill them and herself, the therapist determined she was neither suicidal nor a danger to others. But the therapist agreed to meet with Briana more frequently and to evaluate whether medication could help Briana improve.

By the 12-month review hearing in October 2004, Briana had stabilized and the therapist observed she was doing really well in her present home. Briana particularly appreciated the level of safety in the present home versus . . . when she was with her father. But she still acted out in moments of loss or uncertainty. When her therapist went on vacation, Briana again vocalized suicidal thoughts, although the substitute therapist concluded her threats were not serious. Briana acted out sexually in respite care when her foster parents were away, stripping off her pants and allegedly telling a younger boy to touch her genitals and buttocks. She also continued to scratch and bite herself, mainly at school. Brianas psychiatrist diagnosed her with oppositional defiant disorder and prescribed low doses of Risperdal to address her agitation, irritability, and self-destructive behaviors.

After disappearing for most of 2004, father surfaced in Tennessee and telephoned Briana on the eve of the 12-month review hearing. Briana showed little interest in further contact. Mother had not contacted Briana in six months and neither parent made progress on their respective case plans. Accordingly, the juvenile court terminated reunification services and set a permanency planning hearing for February 2005. ( 366.26 (hereafter .26 hearing).)

Briana received mail and telephone calls from a paternal aunt and uncle in Tennessee, and she became excited at the prospect of being adopted by them, though she worried her parents might gain access to her. The juvenile court repeatedly continued the .26 hearing as the Tennessee authorities first lost SSAs interstate adoption inquiry and then attempted to verify whether the aunt and uncle were suitable for placement. During this time, Brianas foster mother volunteered to continue caring for Briana, noting her behavior had improved and she was a welcome addition to the family. Brianas psychiatrist adjusted her medication consistent with a refined diagnosis of attention deficit hyperactivity disorder and post traumatic stress disorder, and Briana stopped harming herself.

The social worker described Briana as a very cute, adorable, and loving child and classified her as adoptable, but delayed searching for a local adoptive placement with the Tennessee application pending. The worker noted Brianas sexualized and self-harming behaviors had subsided over time. She bit her arm once when a new baby came into the foster home and was keeping her up at night, but this passed and there were no other incidents. And while Briana remained behind in school, the worker attributed this to inadequate schooling in her early years rather than an innate or intractable problem. The worker characterized Briana as quite precocious, quite bright, and very eager to learn, concluding that if an adoptive family chooses Briana the child will respond openly to this and will seek to integrate herself into the home very quickly.

Corroborating the social worker, Brianas court appointed special advocate (CASA) similarly observed the child likes learning and has a strong desire to practice what she has already learned. The CASA recognized that Briana tests the limits as any normal young child would, and described her generally as a sweet, attractive, outgoing, 8 year old young lady who enjoys writing stories and journaling, her baby dolls, playing at the park and shopping.

Briana cried inconsolably in November 2005 when she learned she could not be placed in her aunt and uncles home in Tennessee. The foster mother observed Briana became stubborn, obstinate, and oppositional for awhile, but the girl soon recovered. Briana later grew upset when the foster mother told her to brush her hair; the child threatened to bite her arm but refrained from doing so. Briana improved academically and, despite earlier emotional challenges, her teacher remarked one gets very fond of her.

Briana met prospective adoptive parents Michael, Christina, and Michaels 10-year-old son, Charlie, in February 2006. The four bonded quickly, and Brianas transition went smoothly except for one incident when Christina slapped Brianas arm after the child became frustrated with her homework and threw a shoe at Christina. The investigating social worker noted Briana felt safe in the home, referred to Christina and Michael as mom and dad, and Christina, a remorseful first-time parent, reported the arm-slap, enrolled herself and the family in therapy, and pledged never to use physical discipline again.

The social worker recognized that Briana, now nine years old, could be challenging, difficult, stubborn and not expressive, but the worker continued to believe this adoptive placement will be successful. Even in the unlikely event it failed, the worker noted Briana would remain adoptable because she was a very energetic, delightful child who very much wants to be adopted. She is smart and is fun to be around and is very cute. The worker observed that Brianas earlier biting tendency stemmed from her anxiety about her stability, but believed the childs anxiety would diminish once placed in an adoptive home. The worker concluded Brianas new adoptive home provided the safety and stability Briana needed.

The social worker learned of another incident in which Briana reported that Christina hit her with a shoe. Briana cleaned her room by tossing her shoes into her closet, but Christina wanted her to arrange them more neatly, and tossed them back out, inadvertently hitting Briana. SSA investigated the incident exhaustively, concluding it was a harmless accident. The family rallied around Briana. Charlie confirmed neither parent used physical discipline and attested, We all love her, she is my little sister; the father provided a calming influence in the household and already considered Briana his daughter, as did the mother. Both parents acknowledged difficulties might arise, but vowed they were committed to the child and will do whatever it takes to make this placement successful. Brianas CASA reported the girl was very happy having her own mom, dad, and brother, and the prospective adoptive parents, in turn, reported to the CASA they felt they have hit the jackpot with Briana, and they are extremely happy to have her as part of their family.

Father reappeared just before the .26 hearing in June 2006. An adoption worker mistakenly told Briana father was trying to get her back. Briana became extraordinarily clingy with the adoptive mother, struck her twice, bit her own arm once, and refused to eat on one occasion, announcing, Id rather be dead than eat. Briana expressed to her counselor her fear that father would gain custody of her. Briana expressed relief when SSA canceled Brianas scheduled phone call with father.

At the .26 hearing, after listening to Brianas testimony, the juvenile court concluded: The childs clearly adoptable. Take a look at her. Shes beautiful. Shes smart. Shes got a personality. The court terminated parental rights, and father now appeals.

II

DISCUSSION

Fathers sole contention on appeal is that the juvenile court erred in concluding Briana was adoptable. If any credible evidence supports the juvenile courts order, we must uphold the finding. (In re Cliffton B. (2000) 81 Cal.App.4th 415, 424-425.) Our review of the record confirms substantial evidence supporting Brianas adoptability. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154; see 366.26, subd. (c)(1) [child must be found likely to be adopted within a reasonable time before juvenile court may terminate parental rights].)

Father argues Brianas preadoptive trial period with Michael, Christina, and Charlie for three months before the .26 hearing was not nearly long enough to establish Brianas stability in this placement. This argument is utterly without merit, for the inquiry as to whether a child is likely to be adopted does not focus on the adoptive parents, but rather, on the child. (In re Josue G. (2003) 106 Cal.App.4th 725; accord, Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 253.) The record shows Briana is a healthy child, still young, an eager learner and an improving student, resilient in overcoming the instability and disappointments she had faced, very happy with her future prospects, and uniformly recognized as a charmer all attributes of an adoptable child. (See In re Sarah M. (1994) 22 Cal.App.4th 1642, 1651 [court looks to whether childs age, physical condition, or emotional state will prevent adoption].)

Father contends Brianas history bespoke a willful child with mental health issues requiring management by psychotropic medication, but father underestimates Brianas character in addressing her behavioral problems and overcoming them. (See In re Jeremy S. (2001) 89 Cal.App.4th 514, 524 [behavioral improvement supports adoptability finding], disapproved on another ground in In re Zeth S. (2003) 31 Cal.4th 396, 413-414.) Notably, moreover, these problems generally occurred when father or mother or other destabilizing factors intruded into Brianas life, and father should not reap any benefit from his disruptive influence. (Ibid.; In re Lukas B., supra, 79 Cal.App.4th at p. 1154.)

Focusing on the transition to Michael and Christinas home, father suggests the juvenile court should have, at a minimum, continued the .26 hearing in order for the sturm und drang to resolve itself. But father overstates the disputes with this foster mother, which proved to be minimal and an occasion for bonding rather than destabilization. In any event, our focus concerns Brianas adoptability and, on that score, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minors age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. (In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.)

III

DISPOSITION

The order finding Briana adoptable and terminating fathers parental rights is affirmed.

ARONSON, J.

WE CONCUR:

SILLS, P. J.

RYLAARSDAM, J.

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