In re Damon O.

Filed 7/31/07 In re Damon O. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from orders of the Superior Court of Los Angeles County, Jacqueline Lewis, Juvenile Court Referee. Affirmed.

Darlene Azevedo Kelly, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, and Liana Serobian, Deputy County Counsel, for Plaintiff and Respondent.

__________________

INTRODUCTION

Princess M. appeals from the order terminating her parental rights as to her son, Damon O., Jr., and from the order denying her Welfare and Institutions Code section 388[1]petition. We affirm the orders.

BACKGROUND

Damon is the child of appellant and Damon O., Sr.[2] The parents, who are not married, had Damon during their last year of high school. They later had a second child, Diamond O., who died.

Damon is a medically fragile child. He was born with a very serious inherited metabolic disorder known as Phenylketonuria (PKU). This condition requires regular medical oversight and strict compliance with a severely restrictive low-phenylalanine diet. Elevated levels of phenylalanine resulting from the failure to follow dietary restrictions could cause permanent brain damage or other disorders. Damons parents learned of his medical condition when he was born.

The Department of Children and Family Services (DCFS) took Damon into protective custody in October 2004 at the age of 18 months[3]after his sister, Diamond O., was found dead in the home of a relative in which Diamond and appellant were staying. At the time Damon was detained, his PKU levels were elevated, suggesting that his parents had neglected his special dietary needs. DCFS filed a section 300 petition on Damons behalf and placed him with Ericka R.,[4]whose sister, Kelly R.,[5]was engaged to Damons paternal grandfather, Wesley O.[6]At the detention hearing, the court ordered DCFS to detain Damon in the home of Ms. R[.], meaning Ericka R. A first amended petition was filed later.

Within one month of Damons placement, Ericka R. and Kelly R. had received training from the medical genetics team at Childrens Hospital Los Angeles.[7] Due to their combined efforts, Damons PKU level had fallen to within normal range.

On January 18, 2005, the juvenile court declared Damon a dependent of the court under section 300, subdivision (b), and ordered reunification services for appellant and Damon O., Sr. The court ordered Damons removal from his parents and ordered his care, custody, and control to be placed under DCFS supervision.

Beginning in May 2005, DCFS reported that relations between Ericka R. and appellant had become strained due to intimidation by family members who accompanied appellant to her visits with Damon. Ericka asked that Damon be replaced, and DCFS recommended that Damon be placed with Kelly R., who already had completed PKU training and who assisted Ericka in caring for Damon.

A May 27, 2005 adoption re-assessment approved Kelly R. as Damons pre-adoptive parent. It described Kelly as Damons non-relative extended family member, who had a relationship with him since his birth. The assessment accurately noted that Damon then was being cared for by Ericka R., who was not interested in providing Damon a permanent home.

In June 2005, Damon remained in the home of Ericka R. He was well adjusted, happy and properly cared for. His foster family was very attached to Damon and treated him as part of the family. Damon also was comfortable with the extended family.

Ericka R. remained unwilling to monitor visits between Damon and appellant, but she was willing to transport Damon to a location where visits could be monitored by a social worker. Appellant was hospitalized, however, in that she gave birth to a new daughter.[8]

Kelly R.s home was assessed, and a final assessment was scheduled for July. DCFS anticipated placing Damon with Kelly at that time. Damon O., Sr., no longer resided in Kellys home, making the placement appropriate in DCFSs view. Kelly was comfortable caring for Damon and working with appellant during visits.

Reports prepared for hearings held on August 1 and 16 and September 21, 2005, noted that Damon continued to reside with Ericka R. Appellants relationship with Ericka continued to be strained, however.

At the September 21 hearing, the court terminated Damon O., Sr.s reunification services. When the court inquired whether the current caretaker was interested in a permanent plan, counsel for the child responded in the affirmative. The court then directed that a home study be initiated immediately.

In November 2005, Damon still was living with Ericka R. DCFS recommended termination of family reunification services for appellant. At the hearing, the court set the matter for a contested hearing on January 5, 2006, as well as an order to show cause why the home study was not initiated in a timely manner.

On November 23, 2005, the court entered an order limiting the right of the parents to make educational decisions for Damon and appointing Ericka R. as the responsible adult to make such decisions. DCFS advised the court that the adoption worker assigned to complete the adoption home study on the applicant Ms. R. for the child Damon, met and interviewed Ms. R. on November 19 and received the application for adoption. CSW Lee was scheduled to meet with Ms R. again on December 12, 2005, at which time Ms. R. would submit the remaining adoption paperwork. DCFS anticipated that the adoption home study would be completed and approved by January 5, 2006. An adoption process progress report listed the only impediment to adoption as the familys ambivalence about adopting Damon.

DCFS reports prepared for the January 5, 2006 and the continued February 23, 2006 hearings again stated that Damon continued to remain placed in the home of Ericka R. They also stated that Ericka and her own family had adjusted their own diets and were eating better foods to make life easier for Damon. The social worker informed the court that [t]he applicant familys adoption home study for Damon O[.] was completed and approved on 12/15/2005.

On April 11, 12 and 13, 2006, the court held a contested 12-month review hearing. After hearing the evidence, including the testimony of Ericka R. with whom Damon still continued to live, the court terminated appellants family reunification services and set the matter for a section 366.26 selection and implementation hearing on August 10, 2006.

Appellant thereafter sought writ relief in this court. In July 2006, we denied appellants petition for extraordinary writ in which she sought relief from the juvenile courts order terminating her family reunification services and setting a section 366.26 hearing. (Princess M. v. Superior Court (July 31, 2006, B190406) [nonpub. opn.].)

Sometime between April 13, 2006, when the court terminated appellants family reunification services and scheduled the section 366.26 hearing and August 10, 2006, the date set for the section 366.26 hearing, DCFS removed Damon from Ericka R.s home and placed him with Kelly R.[9] In reports prepared for the August 10, 2006 hearing, DCFS stated that Damon continues to remain in the home of his foster mother, who for the first time was listed as Kelly R.[10]During the preceding period of supervision, Kelly had monitored visits between appellant and Damon. Just as Ericka previously had done, Kelly and her family adjusted their diets and were eating better food to make life easier for Damon. One report described Kelly as Substitute Care Provider for Damon and further stated that Damon now resides with the prospective adoptive family. DCFS reiterated that the home study had been completed and approved on December 15, 2005. In the event the court terminated appellants parental rights, DCFS stated it was prepared to initiate the adoption process.

DCFS explained that Kelly R., the prospective adoptive parent, shares her home with her two daughters who have formed a strong bond with Damon and treat him as their own biological brother. Kellys daughters are aware of Damons strict diet and are committed to his well being. DCFS further noted that [s]ince the child was placed on 10/25/2004 under the care of Kelly R[.], the prospective adoptive parent, and Sister Eri[c]ka R[., a] strong bond was formed with Damon Jr. and Mrs. Kelly R[.]s immediate family.[11]

DCFS noted that the level of commitment by the prospective adoptive parent is commendable and she is more than capable of meeting all of Damons global needs. She has been very diligent in learning Damons strict diet . . . , which as mentioned before requires a lot of dedication and commitment.

DCFS further noted that [s]ince day one the prospective adoptive parent has expressed her desire to adopt Damon Jr. She understands that she will be Damon Jr.s parent and all the responsibilities that come with being a parent. She has gain[ed] experience meeting the childs physical, mental, social, and cultural needs.

On August 10, 2006, appellant requested a contested section 366.26 hearing. The court therefore continued the matter to September 13, 2006. On that day, appellant filed a section 388 petition, in which she asked the court to modify previous orders. Specifically, appellant claimed a change of circumstances and asked the court to grant her increased and unmonitored visits with a view toward reunification with Damon. Appellant also asked the court to take the section 366.26 hearing off calendar. The trial court granted appellant a hearing on her section 388 petition and continued the matter to September 15 for a contested section 388 hearing and a contested section 366.26 hearing.

On September 15, 2006, appellant testified on her own behalf at the hearing on her section 388 petition. She had secured a steady job and stable housing with her grandmother. Although she and Damon O., Sr., were separated, they planned to resume their relationship.

Since the last court date, appellant had been feeding Damon every chance she got. When visiting with Damon, appellant fed him strawberries and juice. When asked what else she fed Damon appellant replied, Well, stuff I take him I cant feed him because they dont have a stove at the park, but I take him can foods, can vegetables, and I take him mostly juice and the pancakes that I will be taking him. They have not come through the mail yet. She checked with the nutritionist to be sure Damon could eat what she brought him. Appellant also worked with Kelly to learn Damons menu and food plans. Appellant had ordered him pancakes, but they had not yet arrived in the mail.

With regard to Damons current medical condition, appellant stated: Its complicat[ed], but Ive got a very good understanding now. He cant eat any meat, or should I say he cant eat anything but ice. He cant have milk, dairy products. He can only have vegetables to a certain extent. He cannot have broccoli because I try to feed him fresh broccoli, and its a lot of things where he cant have, and its still a little complicated, but Im getting more understanding of it. Appellant admitted that during one visit at Chuck E. Cheese, she did not see that Damon, who cannot eat broccoli, had taken a piece of broccoli from the salad bar.

Appellant believed that if the court released Damon to her she would be able to provide him with the appropriate food and nutrition he needed on a daily basis. Kelly kept her updated and informed as to what she fed Damon. Appellant acknowledged that feeding Damon was complicated and that she still was learning.

Appellant also believed there had been an improvement in visitation. Whereas Damon previously was not affected when she left, he now cried and pulled on her leg as if he wanted to go with her.

Appellant acknowledged that Damon was safe in Kellys home, that he was receiving proper medical attention and that he was receiving a proper diet for his condition.

After entertaining the arguments of counsel, the court noted that theres been very little change in circumstances since we were last here. This is not a case where mother seems to be unwilling to provide care for Damon. It appears to me after hearing all the evidence that shes just not capable of it. Although the court acknowledged that appellant had gained some stability in terms of employment and housing, she nevertheless intended to resume her relationship with Damon O., Sr. In addition, there was a lengthy period of time during which appellant did not feed Damon, followed by a period during which she fed him some strawberries and vegetables. She had yet to feed him a full meal. In the courts eyes, appellant had not come close to making the changes necessary to allow her unmonitored visits with her son given the severity of what could happen to Damon if hes not properly fed. The court therefore denied appellants section 388 petition.

The court then turned to the section 366.26 hearing. DCFS introduced various reports into evidence. Appellants counsel asked to present argument with respect to the testimony that already had been provided. The court agreed to consider the testimony that had been given.

Counsel for DCFS and Damon urged the court to terminate parental rights. Both parents objected to termination. Appellant argued that Damon was bonded to her and urged the court to find that the parental relationship exception to termination of parental rights was applicable. ( 366.26, subd. (c)(1)(A).)

While the court acknowledged that appellant loved her son, it observed that the foster mother who appropriately cared for Damon also loved him and is really the mother here already, regardless of what gets done legally. The court found by clear and convincing evidence that Damon is adoptable and concluded that the parental relationship exception urged by appellant did not apply. The court terminated the parental rights of both parents thereby freeing Damon for adoption. This appeal followed.

DISCUSSION

Substantial Evidence Supports the Courts Finding of Adoptability

For the first time on appeal, appellant contends that Damon was specifically adoptable, not generally adoptable, thereby requiring DCFS to demonstrate, and the juvenile court to find, that Kelly R. was able to meet Damons special needs and that there was no legal impediment to his adoption by Kelly. Appellant also maintains that substantial evidence of specific adoptability does not appear in the record, thus requiring reversal of the courts adoptability determination and its order terminating parental rights. Before addressing appellants contentions, we discuss the concept of adoptability.

The juvenile court may terminate parental rights at the section 366.26 hearing only if it determines by clear and convincing evidence that it is likely that the child will be adopted within a reasonable time. (In re Carl R. (2005) 128 Cal.App.4th 1051, 1060;  366.26, subd. (c)(1).) Appellate review of the courts adoptability determination is quite circumscribed with the inquiry limited to whether substantial evidence supports the finding. (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1561-1562; In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.)

Generally speaking, when assessing adoptability, the court focuses on the child and queries whether the childs age, physical condition, and emotional state make it difficult to find a person willing to adopt the child. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) Factors that may make it difficult to find a person willing to adopt a child include membership in a sibling group ( 366.26, subd. (c)(3)), diagnosed medical, physical, or mental handicap[s] (ibid.), physical, developmental or emotional problems (In re Sarah M., supra, at p. 1650; In re Amelia S. (1991) 229 Cal.App.3d 1060, 1065), or a childs age of seven years or more ( 366.26, subd. (c)(3)). Inasmuch as the focus is on the child, it is not necessary to a finding of adoptability that the child have a prospective adoptive family. (In re Sarah M., supra, 22 Cal.App.4th at p. 1649; In re Jennilee T. (1992) 3 Cal.App.4th 212, 223, fn. 11.) The existence of a prospective adoptive family, however, 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 other words, a prospective adoptive parents 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. [Citation.] (In re Sarah M., supra, at pp. 1649-1650.)

[Q]uestions concerning the suitability of a prospective adoptive family are irrelevant to the issue whether the minors are likely to be adopted. General suitability to adopt is a subjective matter which does not constitute a legal impediment to adoption. If inquiry into the suitability of prospective adoptive parents were permitted in section 366.26 hearings, we envision that many hearings would degenerate into subjective attacks on all prospective adoptive families in efforts to avoid termination of parental rights. Such a result is not envisioned by the statutory scheme. Rather, the question of a familys suitability to adopt is an issue which is reserved for the subsequent adoption proceeding. (In re Scott M. (1993) 13 Cal.App.4th 839, 844; accord, In re T.S. (2003) 113 Cal.App.4th 1323, 1326.)

It has been recognized, however, that in some cases a minor who ordinarily might be considered unadoptable due to age, poor physical health, physical disability, or emotional instability is nonetheless likely to be adopted because a prospective adoptive family has been identified as willing to adopt the child. Where the social worker opines that the minor is likely to be adopted based solely on the existence of a prospective adoptive parent who is willing to adopt the minor, an inquiry may be made into whether there is any legal impediment to adoption by that parent. [Citations.] In such cases, the existence of one of these legal impediments to adoption is relevant because the legal impediment would preclude the very basis upon which the social worker formed the opinion that the minor is likely to be adopted. (In re Sarah M., supra, 22 Cal.App.4th at p. 1650, italics added.)

The term specifically adoptable, therefore, denotes a child who but for the existence of a prospective adoptive parent would not be adoptable. Such a child is at high risk of becoming a legal orphan if parental rights are terminated and the prospective adoptive family is later determined to be unsuitable or there is a legal impediment to adoption. Thus, while the suitability of the prospective adoptive parent is not an issue when the child is generally adoptable, it may be placed in issue when the child is specifically adoptable.

Turning now to appellants contentions, we note that this is not a case in which the social worker opines that the minor is likely to be adopted based solely on the existence of a prospective adoptive parent who is willing to adopt the minor. (In re Sarah M., supra, 22 Cal.App.4th at p. 1650.) This also is not a case in which the parties agreed that the child was adoptable only because there was someone willing to adopt him. (In re Carl R., supra, 128 Cal.App.4th at p. 1061.) In fact, at the section 366.26 hearing, the issue of specific adoptability was never raised or discussed. Appellant only sought to preclude termination of her parental rights on the ground that she shared a parental relationship with Damon ( 366.26, subd. (c)(1)(A)), an argument the court rejected. She did not contest the issue of adoptability let alone argue that Damon was only specifically adoptable. She did not challenge Kellys suitability to adopt Damon or argue that there may be a legal impediment to the adoption. Appellant therefore forfeited the right to claim on appeal that Damon is specifically adoptable. A party forfeits the right to claim error as grounds for reversal on appeal when he or she fails to raise the objection in the trial court. [Citations.] Forfeiture, also referred to as waiver, applies in juvenile dependency litigation and is intended to prevent a party from standing by silently until the conclusion of the proceedings. [Citations.] (In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222.)

While we recognize that Damon suffers from a serious genetic disorder and that a medical condition may be considered an impediment to adoption ( 366.26, subd. (c)(3)), appellant cites no authority establishing that having such a condition precludes a finding of general adoptability or renders the child specifically adoptable as a matter of law. Although Damons medical condition is quite serious, it is a condition that can be controlled by diet. Indeed, as Damon grows older and understands what he can and cannot eat, he will be able to control his own condition and maintain his own health.[12] Apart from his medical condition, DCFS reported that Damon seems very well adjusted and happy. In addition, Damon did not exhibit any mental or emotional problems requiring therapy.

Although a party need not object below to a factual determination made by the court in order to challenge the sufficiency of the evidence supporting that particular determination on appeal (In re Brian P. (2002) 99 Cal.App.4th 616, 623), the issue of specific adoptability was never raised and the court did not find Damon to be specifically adoptable. Here, the social worker rendered an unqualified opinion in May 2005 that Damon was adoptable. Consistent with this opinion, the court made an unqualified finding that Damon was likely to be adopted. We construe the courts finding as to adoptability to mean adoptability in the general sense, a finding that appellant does not challenge and which, in any event, is supported by substantial evidence. (In re Roderick U. (1993) 14 Cal.App.4th 1543, 1550 [willingness of prospective parent to adopt]; In re Jennilee T., supra, 3 Cal.App.4th at p. 224 [social workers opinion that child is adoptable].) We therefore reject appellants current attempt, under the guise of a sufficiency of the evidence argument, to inject into this appeal the issue of specific adoptability. All issues pertaining to the suitability of Kelly R. to adopt are reserved for the subsequent adoption proceeding. (In re Scott M., supra, 13 Cal.App.4th at p. 844; accord, In re T.S., supra, 113 Cal.App.4th at p. 1326.)

Section 388 Petition

Appellant challenges the denial of her section 388 petition, in which she sought increased and unmonitored visitation with a view toward reunification. Section 388 permits a party to petition the juvenile court to change its prior orders based upon a change of circumstances. (In re Amber M. (2002) 103 Cal.App.4th 681, 685; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The party seeking a change must demonstrate both that a change of circumstances exists and that the proposed change of court order is in the childs best interests. (Casey D., supra, at p. 47.) We review the courts rulings on the petition for abuse of discretion. (Amber M., supra, at p. 685; Casey D., supra, at p. 47.) Discretion is abused when the courts ruling is arbitrary or capricious or exceeds the bounds of reason. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)

Under section 388, the change of circumstances or new evidence must be of such significant nature that it requires a setting aside or modification of the challenged prior order. (Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 485.) A mere prima facie showing of changing circumstances is not enough to justify the granting of a section 388 motion. (In re Baby Boy L., supra, 24 Cal.App.4th at pp. 609-610.)

While appellant presented evidence that her circumstances were changinge.g., she and her new daughter were living with her grandmother, she had secured a full-time jobthe evidence was insufficient to establish a change . . . of such significant nature, justifying the modification of prior orders. (Ansley v. Superior Court, supra, 185 Cal.App.3d at p. 485.) The evidence also was insufficient to establish that a change in Damons placement was in his best interests. (In re Angel B. (2002) 97 Cal.App.4th 454, 464-465.)

Two years after Damons removal from her care and custody, appellant was still learning what to feed Damon and had yet to feed him a complete meal. On one occasion, appellant failed to notice that Damon had grabbed a piece of broccoli, which he cannot eat. Fortunately, Kelly was watching and took the broccoli away from Damon. Given the restrictions in Damons diet and the severe consequences that can result if he eats the wrong foods, it is imperative that he be watched closely.

Also troubling was appellants expressed intention to re-establish her relationship with Damons father whose family reunification services were terminated due to his failure to comply with his case plan. Appellant also had not maintained consistent visitation with Damon and had not attended his medical appointments regularly. Under these circumstances, the juvenile court acted well within its discretion in denying appellants section 388 petition.

DISPOSITION

The order terminating appellants parental rights as to Damon O. and the order denying appellants section 388 petition are affirmed.

NOT TO BE PUBLISHED

SPENCER, P. J.

We concur:

MALLANO, J.

ROTHSCHILD, J.

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[1] All further statutory references are to the Welfare and Institutions Code.

[2] Damon O., Sr., is not a party to this appeal.

[3] Damon first came to the attention of DCFS in 2003, after which DCFS offered appellant voluntary family maintenance services, pursuant to the Minor Parent Program, without juvenile court jurisdiction. After receiving less than two months of services, appellant relocated without notifying DCFS, and DCFS closed the case.

[4] Ericka R.s name is spelled in various ways throughout the record.

[5] DCFSs assertion that Damon had been placed under the care of Ericka R. and Kelly R. since October 24, 2004 is not borne out by the record. Damons initial placement was solely with Ericka. Kelly voluntarily helped Ericka, however, and accompanied her to learn about Damons medical and nutritional needs.

[6] Wesley O. and Kelly R. lived a two-bedroom apartment with their two minor children, Kashay and Kaliha. Wesley had a 1983 misdemeanor conviction for carrying a concealed weapon and a 1983 felony conviction for assault with a firearm, for which he was sentenced to five years in prison. Wesley admitted that his two other children, Damon O., Sr., and Rakeesha were dependents of the juvenile court from 1999 to 2001. Wesley was ordered to complete parenting, anger management, drug treatment and drug testing.

[7] A DCFS medical training confirmation form dated November 23, 2004, listed Ericka R. as Damons foster parent and listed Kelly R. as the back-up helper. The two sisters signed the form in their respective capacities.

[8] The newborn, who is not a dependent of the juvenile court, was tested for PKU at birth. The test results were negative for PKU.

[9] Appellant argues that DCFS moved Damon in violation of the courts February 8, 2005 order that Damon remain suitably placed with Ericka R. Appellant has cited no authority that precluded DCFS from replacing Damon with Kelly R. after Ericka R. asked that he be removed from her home.

[10] The section 366.26 report erroneously listed Damons Total Number of Placements as 1. Although the report correctly listed Damons original placement date as 10/25/2004, it erroneously listed the date of his current placement as 10/25/2005. In October 2005, Damon was living with Ericka R., not Kelly R.

[11] This is another obvious reporting mistake on DCFSs part. When DCFS took Damon into protective custody in October 24, 2004, it placed him solely with Ericka R. Although Kelly attended PKU training with Ericka and helped her sister care for Damon, Ericka R. was Damons sole foster parent. It was not until sometime after April 13, 2006 that DCFS placed Damon with Kelly.

[12]In stark contrast to Damon, is the child in In re Carl R., supra, 128 Cal.App.4th 1051, who had cerebral palsy, severe quadriparesis, a seizure disorder, and an uncontrolled and severe psychomotor delay and who, as a result of these disabilities, required total care for life. (Id. at p. 1058.) The parties agreed that Carl was adoptable only because a family was willing to adopt himi.e., specifically adoptable. (Id. at p. 1061.)