In re E.D.

Filed 3/12/07 In re E.D. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Cynthia A. Bashant, Judge. Affirmed.

Amelia H. appeals a judgment of the juvenile court terminating her parental rights to her minor daughter E.D., under Welfare and Institutions Code section 366.26.^[1] Amelia challenges the sufficiency of the evidence to support the court's finding that E.D. was likely to be adopted within a reasonable time. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In October 1998 the San Diego County Health and Human Services Agency (Agency) filed a petition on behalf of five-year-old E.D. under section 300, subdivision (b). The petition alleged Amelia suffered from chronic schizophrenia that rendered her unable to provide adequate care and support for E.D.

According to the Agency's reports, Amelia was brought to a local police station after refusing to pay her taxicab fare. A police officer noted Amelia exhibited strange behavior and was making incoherent statements. The officer further noted that E.D. and E., her sister, were not wearing shoes and complained they were hungry. E.D. and E. were taken into protective custody where they told social workers they had not eaten in quite some time. Amelia was subsequently hospitalized on the basis of her medical condition. Amelia admitted to social workers that she was required to take prescribed medication to treat her mental condition. She further admitted to abusing illegal drugs.

In December 1998 the court held a jurisdiction and disposition hearing. The court considered the Agency's reports, declared E.D. a dependent, removed her from Amelia's custody, and placed her with a relative. The court ordered Amelia to participate in reunification services as set forth in her case plan.

During the next six months, Amelia did not avail herself to reunifications services. She continued to suffer from chronic schizophrenia and had not secured a stable residence. The Agency reports revealed Amelia had a long history of involvement with child welfare services. Amelia had three other children that were removed from her custody and placed in the care of relatives. The social worker believed it was unlikely that Amelia's mental illness and ongoing drug addiction would improve.

E.D. continued to remain in the custody of a relative caregiver. E.D. met with a geneticist and was diagnosed with Neurofibromatosis Type I, or Elephant Man's Disease (neurofibromatosis).^[2] The condition was categorized as being a progressive one that might adversely affect her vision and hearing. E.D.'s condition would be closely monitored by medical specialists, including a neurologist and ophthalmologist. Despite her condition, E.D.'s caregiver remained committed to caring for E.D. At the six-month review hearing, the court found returning E.D. to Amelia's custody would be detrimental. The court ordered an additional six months of services and continued supervised visits between E.D. and Amelia.

At the 12-month review hearing, the Agency recommended terminating services and scheduling a selection and implementation hearing under section 366.26. Amelia remained mentally unstable and relatives reported that she continued to abuse drugs. The Agency had discontinued visits between Amelia and E.D. because Amelia attempted to run away with E.D. In addition, E.D. exhibited negative behaviors after visiting with Amelia. E.D. told social workers that she enjoyed living with her relative caregiver and wanted to know, "do [I] have to see my mom again?" After considering the evidence, the court found Amelia had not made substantive progress with her case plan and terminated reunification services. The court scheduled a section 366.26 hearing.

According to an initial section 366.26 assessment report, E.D. was happy and thriving in her current placement. E.D. continued to suffer from neurofibromatosis and therefore exhibited some cognitive delays. However, the caregiver remained committed to caring for E.D. and reported the placement was going well. E.D. referred to the caregiver as "mommy." The caregiver informed social workers she would be unable to become E.D.'s legal guardian at this time because she was expecting a child of her own. The caregiver indicated she would like the placement to remain as long-term foster care. The social worker therefore recommended that E.D. remain in long-term foster care with the caregiver. In August 2000 the court held a section 366.26 hearing and ordered that E.D. remain with the relative caregiver in a permanent plan of long-term foster care.^[3]

From August 2000 through 2005, E.D. remained placed with her relative caregiver. E.D. received consistent medical care to address her condition. E.D. indicated to social workers she was afraid of Amelia and asked that she not be forced to visit with Amelia. Amelia continued to suffer from schizophrenia and frequently the social workers did not know her whereabouts. However, the Agency did learn that Amelia had given birth to two more children. The court eventually removed both of these children from her custody.

In November 2005 the relative caregiver informed the Agency she was very interested in adopting E.D. The Agency prepared and submitted an assessment report in March 2006. The report indicated Amelia was unable to parent E.D. or her six other children. All her children remained in the care and custody of others. Social workers reported that E.D. suffered from some cognitive delays but was otherwise developmentally on target. She attended elementary school and was in the sixth grade. She had an Individualized Education Plan to address her learning disabilities. Overall, E.D. was a happy child and was bonded to the caregiver she had lived with for about eight years. E.D. continued to tell social workers that she did not want to see Amelia because she was afraid Amelia would hurt or kidnap her.

In September 2006 the court held a section 366.26 hearing. After considering the Agency's reports and hearing counsel's arguments, the court found by clear and convincing evidence that E.D. was likely to be adopted if parental rights were terminated. The court noted E.D. had been with her caregiver for eight years and adoption would give her the stability she required. The court found none of the exceptions to section 366.26, subdivision (c )(1) applied to preclude terminating parental rights. The court terminated parental rights and referred E.D. for adoptive placement.

DISCUSSION

Amelia contends the court erred by finding that E.D. was likely to be adopted. She asserts E.D. is not adoptable because E.D. suffers from developmental delays and the current caregiver's willingness to adopt is insufficient to support a finding of adoptability.

A

When reviewing a court's finding a minor is adoptable, we apply the substantial evidence test. (In re Josue G. (2003) 106 Cal.App.4th 725, 732; In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold the findings. We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 52.) Rather, we view the record favorably to the juvenile court's order and affirm the order even if some evidence supports a contrary conclusion. (Id. at pp. 52-53.) The parent has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

The court can terminate parental rights only if it determines by clear and convincing evidence the minor is likely to be adopted within a reasonable time. ( 366.26, subd. (c)(1).) The statute requires clear and convincing evidence of the likelihood adoption will be realized within a reasonable time. (In re Zeth S. (2003) 31 Cal.4th 396, 406; In re Amelia S. (1991) 229 Cal.App.3d 1060, 1065.) In determining adoptability, the focus is on whether a child's age, physical condition, and emotional state will create difficulty in locating a family willing to adopt. ( 366.22, subd. (b)(3); In re Erik P. (2002) 104 Cal.App.4th 395, 400; In re David H. (1995) 33 Cal.App.4th 368, 379.) The possibility a minor may have future problems does not indicate the child will likely not be adopted. (In re Jennilee T. (1992) 3 Cal.App.4th 212, 223-225.) "Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor's 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 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 Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650, italics omitted.)

B

The social worker's assessment report concluded E.D. was adoptable. E.D. is a happy young girl and does not exhibit signs of a mental illness. The report stated E.D. suffers from some cognitive delays and was diagnosed with neurofibromatosis. However, the evidence shows E.D. has not developed any severe complications stemming from the neurofibromatosis. She remains enrolled as a sixth grade student and is doing well. Any realized cognitive delays are carefully being monitored and addressed through an Individualized Education Plan. Despite her medical condition, the evidence shows E.D. has remained in the same placement since she became a dependent of the court eight years before. E.D.'s caregiver is therefore fully aware of her responsibilities after living with E.D. for an extended period of time. At the time the social worker prepared the assessment report, the caregiver remained committed to adopting E.D. In addition, the social worker had no concerns about the relative caregiver's qualifications to adopt. The social worker noted E.D. was thriving and had overcome significant emotional problems while living with her caregiver. In addition, the caregiver had passed a criminal background check and had no history with child welfare services. In the event the caregiver could not adopt E.D., there was one family interested in adopting a child like E.D. The evidence of the additional family is relevant to evaluating the likelihood of a child's adoption. (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205.) Where, as here, "evidence of a minor's adoptability is not based solely on the existence of a prospective adoptive parent who is willing to adopt the child, the potential adoptive parent's suitability to adopt is irrelevant to the issue of whether the minor is likely to be adopted." (In re Sarah M., supra, 22 Cal.App.4th at p. 1651.) Substantial evidence supports the court's finding E.D. was adoptable.

DISPOSITION

The judgment is affirmed.

NARES, J.

WE CONCUR:

HUFFMAN, Acting P. J.

McDONALD, J.

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

^[2] Neurofibromatosis type 1 is defined as: "[A] genetic disorder characterized by a number of remarkable skin findings including multiple caf au lait (coffee with milk) spots, multiple benign tumors called neurofibromas on the skin, plexiform neurofibromas (thick and misshapen nerves due to the abnormal growth of cells and tissues that cover the nerve), and freckles in the armpit and groin. The caf au lait spots increase in number and size with age. Ninety-seven percent of people with NF1 have 6 or more caf au lait spots by age 20. The skin neurofibromas appear later, usually in the second decade of life. In NF1 there is an increased risk of scoliosis, optic gliomas (benign tumors on the optic nerve), epilepsy, and learning disability. The risk of malignant degeneration of neurofibromas is below 5 percent." (See [as of Mar. 9, 2007].)

^[3] The permanent plan eventually changed to Another Planned Permanent Living Arrangement (APPLA).