In re Jacob N.

Filed 10/30/07 In re Jacob N. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County. Patricia Spears, Judge. Affirmed.

Michael A. Salazar, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Liana Serobian, Deputy County Counsel, for Plaintiff and Respondent.

No appearance for Minors.

* * * * * *

Joanne N. (mother) appeals from the termination of her parental rights to two of her children, Jacob N. and Johanna I., pursuant to Welfare and Institutions Code section 366.26.^[1] The only issue on appeal is whether substantial evidence supports the juvenile courts finding that the children were adoptable. We affirm.^[2]

FACTUAL AND PROCEDURAL BACKGROUND

This dependency case spans six years and has, accordingly, generated a large record. Given that the facts of this case are well known to the parties, we will narrow our recitation of the facts to those material to the issue of adoptability.

Minor Jacob came to the attention of respondent Los Angeles County Department of Children and Family Services (department) at the beginning of 2001 when he was born suffering drug withdrawals due to mothers use of marijuana and methamphetamine during pregnancy. Jacob was detained and soon placed with his maternal grandmother, who was caring for Jacobs half sister Johanna, who was then three years old. Mother was 16 years old when Johanna was born and had never assumed custody of her. In early 2002, a year after Jacob was born, the department filed a petition requesting that he be removed from the maternal grandmothers house, which was filthy, unsanitary, unsafe, filled with cockroaches and lacking electricity. The court filed a section 300 petition on Johannas behalf on the same basis. The court sustained the petitions. At that time, the children were reportedly with mother and their whereabouts were unknown.

The children were located on April 1, 2002 and placed in a foster home, where they lived for more than two years. The children were reported to be doing well in the foster home, did not display any signs of emotional or behavioral problems and were bonded with the foster mother. The foster mother, however, did not want to provide the children with a permanent home.

An adoption assessment in March 2004 found the children to be adoptable and described them as physically healthy, developmentally age appropriate, personable, and able to relate well to caregivers and peers. The assessment concluded that the children did not have any known emotional or behavioral problems. An adoption reassessment prepared in August 2005 reached the same conclusion. In August 2004, the court found the children to be a bonded sibling group and ordered them not to be separated.

In October 2004, the children were placed with a prospective adoptive family. After moving with the children to Arizona, the prospective adoptive family informed the department in March 2006 that Jacob was exhibiting behavioral problems, including hitting his sister and throwing temper tantrums. The family no longer wanted to care for Jacob, only Johanna. That same month the children were returned to California and placed in a foster home.

In August 2006, the department reported that Jacob had been seen by a psychiatrist, who had diagnosed him with ADHD and oppositional defiant disorder and had prescribed medication. Due to improvement in his behavior, Jacob was not given the medication. Johanna did not exhibit any behavioral problems. The social worker continued to believe the children were adoptable and referred them to the adoption unit.

By November 2006, the department reported that the children had been matched with the A.s, a prospective adoptive family, at an adoption fair. The children had continuous contact with the A.s until they were placed in their home on January 12, 2007. Prior to the placement, the A.s were provided with information regarding the childrens medical, psychosocial and family histories. The children reported that Mr. and Mrs. A. were very nice. Jacob said, I want them to be my mom and dad.

The record discloses that the A.s were a bilingual Hispanic couple who had been married for 20 years, had no children, were healthy and active and had good jobs. They lived in a four-bedroom house with a swimming pool in a Los Angeles suburb and had many nieces and nephews they frequently babysat. They were motivated to adopt because they were unable to conceive a child of their own and wanted to be parents. They had an approved adoption home study, had completed training to familiarize themselves with the foster care system and had no criminal or child abuse history. Mrs. A. took 12 weeks off from work as soon as the children were placed in her home so they could all spend time getting to know one another. The A.s enrolled the children in school, made their medical appointments and were able to meet all of their basic needs. The A.s stated that they were committed to adopting the children and were excited to have them as members of their family.

For the section 366.26 permanent placement hearing on February 21, 2007, the department reported that the children were thriving in the A.s home and were physically and emotionally healthy and doing well in their new school. Though Jacob was adjusting well to his new home, Mrs. A. believed he would benefit from therapy. At times he would throw temper tantrums and pretend to cry to get sympathy.

Mother was not present at the section 366.26 hearing. The court found by clear and convincing evidence that the children were adoptable by virtue of the adoption assessments and by virtue of the fact that they are with a family with an approved home study for that purpose. The court terminated mothers parental rights. This appeal followed.

DISCUSSION

The goal of the dependency scheme as prescribed by the Legislature is to provide stable, permanent homes for dependent children. ( 366.26, subd. (b); In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 13431344.) Thus, under section 366.26, subdivision (c)(1), if the court finds by clear and convincing evidence that it is likely the dependent child will be adopted, the court shall terminate parental rights and order the child placed for adoption. We review the factual basis of an adoptability finding by determining whether the record contains substantial evidence from which a reasonable trier of fact could make the finding made by the trial court by clear and convincing evidence. (In re Christiano S. (1997) 58 Cal.App.4th 1424, 1431; In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) In doing so, we give the courts finding of adoptability the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of affirming. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)

As mother acknowledges, [t]he issue of adoptability posed in a section 366.26 hearing focuses on the minor, e.g., whether the minors age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) Thus, having a prospective adoptive family waiting in the wings is not necessary for a finding of adoptability. (Ibid.) But it is a strong factor: [T]he 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 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.(Id. at pp. 16491650.)

Here, substantial evidence supports the juvenile courts finding of adoptability. Adoption assessments in March 2004 and August 2005 found the children to be adoptable and described them as physically healthy, developmentally age appropriate, personable, relating well to caregivers and peers and stated that the children did not have any known emotional or behavioral problems. In August 2006, the social worker still believed the children were adoptable even after one prospective adoptive family declined to adopt Jacob. Additionally, the evidence, which mother failed to present to us, showed that the A.s had stated they were committed to adopting the children and were excited to have them as members of their family. Their commitment to the children was further evidenced by the fact that Mrs. A. had taken off 12 weeks from work to spend with the children and the A.s had enrolled the children in school and made their medical appointments.

Mother argues that the juvenile court did not have sufficient evidence to make a finding of adoptability. Her argument is based primarily on Jacobs situation: He had only been in the A.s home for a little over a month and his prior preadoptive placement had failed after 18 months; Mrs. A. reported that he was having temper tantrums and would benefit from seeing a therapist; he was not in therapy and therefore the court had no input from a qualified therapist; and there was no progress report yet from his current school. Mother argues that a continuance of a few months for the placement to stabilize and for the court to receive the necessary input from school and therapeutic professionals would not have jeopardized his placement.

Mother is mistaken. Jacob had already been a dependent of the juvenile court for six years, had been in multiple placements and was entitled to a stable and permanent home without further delay. Jacobs psychosocial, medical and family histories had been provided to the A.s, who were still committed to adopting him, despite having seen his temper tantrums. Moreover, this was not a case in which either of the children was found to be adoptable only because one particular family was willing to adopt them. Accordingly, we find mothers arguments to be without merit.

DISPOSITION

The order terminating parental rights is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_______________________, Acting P. J.

DOI TODD

We concur:

_______________________, J.

ASHMANN-GERST

_______________________, J.

CHAVEZ

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

^[2] At the outset, we feel compelled to note some problems we have with this appeal. First, the opening brief filed on mothers behalf by her appointed counsel does not present all of the evidence material to the issue on appeal, but rather an incomplete, one-sided view of the evidence. Appellants who challenge the decision of the trial court based upon the absence of substantial evidence to support it are required to set forth in their brief all the material evidence on the point and not merely their own evidence. Unless this is done the error is deemed waived. [Citations.] (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.) Mother has come dangerously close to having her appeal dismissed for this reason. Second, we note that on page 23 of mothers opening brief, she is referred to by an incorrect name. We do not like seeing recycled briefs. Third, we have trouble understanding why this appeal is being pursued in the first place because it is inconceivable that reversal would be in the childrens best interest. It is undisputed that mother is not bonded with the children and that she has not seen them for more than two years. Yet, she incomprehensibly attempts to thwart their chance at permanency and stability.