In re I.W.

Filed 8/6/07 In re I.W. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Heidi W. appeals an order of the juvenile court declaring that her daughter I. is adoptable, and terminating her parental rights. (Welf. & Inst. Code, 366.26, subd. (c)(1).)[1] We modify the order to provide for visitation at the discretion of the San Luis Obispo County Department of Social Services ("DSS"), but otherwise affirm.

Heidi W. also appeals an order denying her modification petition filed pursuant to section 388. We affirm.

FACTS AND PROCEDURAL HISTORY

On February 23, 2006, DSS filed a petition on behalf of eight-year-old I.W. Two days prior, Heidi W. was involved in a vehicle rollover accident while driving I. to school. Police officers found prescription pain-reliever medication in Heidi W.'s possession, and after field sobriety tests, determined that she was under the influence of drugs. In the dependency petition, DSS alleged that Heidi W. could not protect and provide for her child due to her drug abuse and incarceration following the accident. ( 300, subds. (b) & (g).)[2]

DSS also alleged that Heidi W. had a long history of prescription drug abuse and mental instability. In November, 1999, the Fresno County juvenile court ordered that I. be detained due to Heidi W.'s prescription drug abuse. The juvenile court later sustained the allegations of a dependency petition and ordered that Heidi W. receive family reunification services, including mental health counseling and drug abuse treatment. Heidi then completed a 12-month residential treatment program, and on March 16, 2001, the Fresno County juvenile court terminated the dependency.

On February 24, 2006, the San Luis Obispo County juvenile court ordered I. detained and DSS placed her in a foster home. That day, Heidi W. pleaded nolo contendere to driving under the influence of drugs and admitted that she drove with a child passenger. The criminal court granted Heidi W. three years' probation with terms and conditions.

Several weeks later, DSS informed Heidi W. that it would recommend that she not receive family reunification services due to her "extensive, abusive, and chronic use of drugs." ( 361.5, subd. (b)(13).) The women's shelter in which Heidi W. resided reported finding many empty bottles of prescription pain relievers and sedatives in her room. A DSS social worker described Heidi W.'s problems as "long standing and severe," noting that she "remains without housing, [and is] mentally unstable, and addicted to prescription medications." Heidi W. continued to abuse prescription drugs until she entered her first detoxification program on April 13, 2006.

On May 23, 2006, the juvenile court sustained the allegations of the dependency petition, continued I. in foster care, and ordered that Heidi W. not receive any family reunification services. It set the matter for a review hearing and a permanent plan hearing.

Heidi W. then completed a second detoxification program and commenced drug treatment and mental health counseling for bipolar disorder. On September 20, 2006, she filed a modification petition pursuant to section 388, requesting reunification services. Heidi W. pointed to the changed circumstances of her drug treatment and mental health counseling. Prior to the modification petition hearing, Heidi W. completed a third detoxification program and then entered a one-year residential treatment program at Bethel House.

During this period, I. left foster care and resided with her maternal uncle and aunt in Clovis. Although estranged from Heidi W., the uncle and aunt were interested in adopting I. Due to conflict with their nine-year-old son, however, they later requested that DSS remove I. A DSS social worker described the problem as I. is "bickering, fighting with their son[,] mouthy, [and] sassy." She opined that it was "just normal childhood behavior" and the aunt and uncle "didn't really give [I.] a chance."

At the time of the January 16, 2007, modification petition and permanent plan hearing, I. was residing with her elementary school principal and sports coach, Kurt C. The C. family had not yet decided whether it would apply to adopt I. Family members stated that they viewed I.'s "sassy and talk back" behavior as "nothing that's so serious it can't be worked out or worked on." Kurt C. also knew Heidi W. and encouraged her rehabilitation.

At the combined modification and permanent plan hearing, the DSS social worker opined that I. is a bright and beautiful child and is adoptable. The social worker testified that I. states that she would like a family and now appears indifferent to Heidi W. For example, I. discarded her mother's letters without reading them.

Heidi W. testified that she completed three detoxification programs within the last year and now resides in a residential treatment home. She stated that "a possibility" exists that she could complete her treatment as an outpatient. Heidi W. also denied that she consumed drugs the day of the vehicle rollover accident.

A counselor at Bethel House testified that Heidi W. is progressing in her treatment and has resided at Bethel House for 75 days. She stated that Bethel House would consider Heidi W.'s outpatient placement in July, 2007, but outpatient placement generally is not "encourage[d]."

I.'s attorney presented an offer of proof, accepted by the parties, that I. had been hurt emotionally by her mother "a great deal." I. also informed her attorney that she did not wish to live with her mother "until [her mother] learns to make better choices."

The juvenile court denied the modification petition. It also concluded by clear and convincing evidence that I. is likely to be adopted, and it terminated Heidi W.'s parental rights. ( 366.26, subd. (c)(1).)

Heidi W. appeals and contends that 1) the juvenile court applied an incorrect standard in deciding the modification petition; 2) insufficient evidence supports the juvenile court's finding that I. is adoptable ( 366.26, subd. (c)(1) [juvenile court shall terminate parental rights and order adoption if clear and convincing evidence exists that child is adoptable].); and 3) the termination order does not contain the order of the juvenile court regarding visitation.

DISCUSSION

I.

Heidi W. argues that the juvenile court abused its discretion by applying an incorrect legal standard to the modification petition. (In re Hunter S. (2006) 142 Cal.App.4th 1497, 1507-1508) She points to the juvenile court's ruling that it had "a difficult time [finding] there is a substantial probability, not just a likelihood or possibility, but the law would require that [it] make a finding that there's a substantial probability that I. would be placed with [Heidi W. within 6 months]." Heidi W. adds that section 388 requires only that she establish changed circumstances and that granting the modification petition would be in I.'s best interests. ( 388; In re Hunter S., supra, 142 Cal.App.4th 1497, 1506.)

Although Heidi W. did not appeal the order denying the modification petition, we liberally construe the notice of appeal to include an appeal from the modification denial. (In re Madison W. (2006) 141 Cal.App.4th 1447, 1449-1451.) We do so because the juvenile court considered the modification petition at the permanent plan hearing, and DSS is not prejudiced by our review of the modification order. (Id., at p. 1450.)

The juvenile court did not apply an incorrect legal standard nor did it abuse its discretion. The modification petition discussed the changed circumstances and the best interests of I. DSS argued that the court must find "a change of circumstances and that the requested order would be in the best interest of the child" in order to grant the modification petition. The court stated that it could not grant the [modification] request "based on [its] inability under the law to make the findings that are required." Although the juvenile court did discuss time limitations for reunification services, we presume that it applied the correct standard in deciding the modification petition in view of the written documents, statements of counsel, and statements by the court. (People v. Campo (1987) 193 Cal.App.3d 1423, 1432 [presumption that trial court properly follows established law].) We also note that the parties waived formal recitation of the court's orders, which would have allowed clarification of the basis for the court's ruling.

Moreover, Heidi W. established only changing circumstances. At the time of the modification hearing, she had resided at Bethel House for 75 days of a one-year residential program. Counseling regarding parent education would occur at Bethel House during the last six months of her treatment. Heidi W. testified that her focus necessarily concerned her addiction treatment and not reunification with I. "A petition which alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child's best interests." (In reCasey D. (1999) 70 Cal.App.4th 38, 47.)

II.

Heidi W. contends that insufficient evidence supports the juvenile court's finding that I. is likely to be adopted within a reasonable time. Heidi W. points out that I. is now nine years old, desires a relationship with her mother, and has no adoptive home, having left a prior placement with her uncle and aunt. (In re Erik P. (2002) 104 Cal.App.4th 395, 400 [existence of prospective adoptive home "a factor" in determining whether child is adoptable].) Heidi W. adds that the present DSS social worker is new to I.'s dependency, has met her only three times, and is an inexperienced adoptions case worker. (In re Brian P. (2002) 99 Cal.App.4th 616, 624-625 [social worker's "bare statement" of adoptability plus "fragmentary and ambiguous evidence" insufficient to support finding of adoptability within a reasonable time].)

Heidi W. also asserts that the juvenile court abused its discretion by not continuing the matter for 180 days to find an adoptive home for I. ( 366.26, subd. (c)(3) [without terminating parental rights, juvenile court may continue matter for 180 days to identify adoptive home for child].)

In determining the sufficiency of evidence to support a dependency order, we review the evidence and draw all reasonable inferences therefrom to decide if reasonable and credible evidence supports the decision of the juvenile court. In reJ.I. (2003) 108 Cal.App.4th 903, 911 [review applied to finding regarding adoptability].) This rule pertains although the law requires proof of adoptability by clear and convincing evidence. (Ibid.) "'"The sufficiency of evidence to establish a given fact, where the law requires proof of the fact to be clear and convincing, is primarily a question for the trial court to determine, and if there is substantial evidence to support its conclusion, the determination is not open to review on appeal." . . . '" (Ibid.)

The factual issue whether a minor is adoptable depends upon the minor's age, physical condition, and emotional state. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) Moreover, "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." (Id, at p. 1650.) It is not necessary that the child is placed in a preadoptive home now or that a proposed adoptive home is waiting. (In re Brian P., supra, 99 Cal.App.4th 616, 624.)

Here there exists substantial evidence from which the juvenile court could find by a clear and convincing standard of proof that I. is likely to be adopted within a reasonable time. ( 366.26, subd. (c)(1).) Two DSS social workers opined that she is adoptable. Her former social worker stated that I. is healthy and has no medical or developmental problems. The social worker described I. as adorable, confident, friendly, bright, mature, and resilient. I. cooperated with her first foster parents and "transitioned well" into the home of her uncle and aunt. I. is also an excellent student. She loved her mother but hoped for a permanent and stable family home.

I.'s second social worker believed that I. was bright, assertive, beautiful, and likely to be adopted. The social worker viewed I.'s "mouthy" conduct with her cousin as normal child behavior. The C. family believed it was not serious misbehavior and could be worked out. Neither social worker reported any emotional or developmental concerns with I. The juvenile court weighed the evidence and decided matters of witness credibility. (In re Sheila B. (1993) 19 Cal.App.4th 187, 199.) We defer to the trier of fact regarding "the effect or value of, or [weight of] the evidence." (Ibid.) 

Moreover, there is no requirement that I. live in a preadoptive home now. Section 366.26, subdivision (c)(1) provides: "The fact that the child is not yet placed in a preadoptive home nor with a relative or foster family who is prepared to adopt the child, shall not constitute a basis for the court to conclude that it is not likely the child will be adopted." The law requires only convincing evidence that adoption will likely occur within a reasonable time. (In reBrian P., supra, 99 Cal.App.4th 616, 624.)

III.

Heidi W. asserts that the juvenile court's order does not contain its statement that it "strongly encourage[d]" visitation "as soon as possible" and "as frequently as possible." DSS concedes. We modify the order to permit visitation between Heidi W. and I. at the lawful discretion of DSS. The orders are otherwise affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

COFFEE, J.

Roger Picquet, Judge

Superior Court County of San Luis Obispo

______________________________

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

James B. Lindholm, Jr., County Counsel, Leslie H. Kraut, Deputy County Counsel, for Plaintiff and Respondent..

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Analysis and review provided by San Diego County Property line attorney.

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

[2]Ivee's father is not a party to this appeal.