In re Jasmine B.

Filed 9/27/06 In re Jasmine B. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from an order of the Superior Court of Los Angeles County, Debra Losnick, Juvenile Court Commissioner. Affirmed.

Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Judith A. Luby, Senior Deputy County Counsel, for Plaintiff and Respondent.

____________________

INTRODUCTION

Deborah G. appeals from the December 20, 2005 order terminating her parental rights to her children, Jasmine B. and Terrell A., pursuant to Welfare and Institutions Code section 366.26.[1] We affirm.

BACKGROUND[2]

Jasmine and Terrell are dependents of the juvenile court pursuant to section 300, subdivisions (a), (b), (g), (i) and (j).[3] At a section 366.26 hearing held on April 30, 2003, the trial court appointed the children’s maternal aunt, Dorothy G., as their legal guardian. The court ordered monitored visits and gave Dorothy discretion to liberalize the visits.

On June 6, 2005, the Department of Children and Family Services (DCFS) reported that Dorothy had lost her job and might have to move to Texas and place the children in foster care. Jasmine and Terrell wanted to stay with Dorothy, however. Dorothy tried to convince other family members to take custody of the children but was unsuccessful due to appellant’s problematic behavior. At the June 6 hearing, Dorothy said she would not be selling her home right away. She was working with DCFS to find good homes for the children.

On June 17, 2005, DCFS reported that the children were not happy about being placed in foster care. On June 28, DCFS reported that Dorothy had had a change of heart and now wanted to adopt the children and take them with her to Texas. This was acceptable to DCFS.

In October 25, 2005, DCFS reported that adoption with Dorothy was an appropriate plan for the children and it was very likely that Dorothy would adopt them. She loved the children and cared for them as if they were her own. Jasmine wanted to go to Texas with Dorothy and Terrell wanted to be adopted. There was nothing definite about Dorothy’s move, however, and her home study was not yet complete. The court continued the section 366.26 hearing to December 20.

In a report prepared for the December 20, 2005 hearing, DCFS advised the court that the children continued to do well in Dorothy G.’s care. There still was some uncertainty as to when Dorothy would be moving to Texas.

Following a contested hearing at which Jasmine, Terrell and Dorothy G. testified, the court noted that it had presided over this case for six years and was very familiar with the case and its history. Despite its best effort, the court was unable to conclude that the parental relationship exception to termination of parental rights (§ 366.26, subd. (c)(1)(A)) had been established. Rather, it concluded that appellant did not stand in the shoes of a parent. As a result, the court was required to order the most permanent plan, namely, adoption. The court found by clear and convincing evidence that the children were adoptable and terminated the appellant’s parental rights.[4]

CONTENTIONS

Appellant contends (1) insufficient evidence supports the juvenile court’s finding that the children were adoptable; (2) the children’s counsel was an ineffective advocate for their well-being; (3) the juvenile court abused its discretion by granting the legal guardian complete discretion to determine whether court-ordered visits took place; and (4) the court’s delegation of judicial authority over visits to the legal guardian violated appellant’s right to due process and corrupted the findings and orders entered at the section 366.26 hearing. Appellant has failed to substantiate or has waived these contentions.

DISCUSSION

Adoptability

Appellant challenges the sufficiency of the evidence supporting the juvenile court’s finding that Jasmine and Terrell are adoptable. There is no merit to this challenge.

Termination of parental rights must be predicated upon a finding, “by a clear and convincing standard, that it is likely the child will be adopted.” (§ 366.26, subd. (c)(1).) In reviewing the juvenile court’s finding of adoptability, we must determine whether there is substantial evidence from which a reasonable trier of fact could have made the finding by clear and convincing evidence. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.)

In making a finding as to adoptability, the court’s focus is on the child, whether the child’s “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.) “[A] child may only be found to be difficult to place for adoption if there is no identified or available prospective adoptive parent for the child because of the child’s membership in a sibling group, or the presence of a diagnosed medical, physical, or mental handicap, or the child is the age of seven years or more.” (§ 366.26, subd. (c)(3).)

Although siblings Jasmine and Terrell were 12 and 9 years old, respectively, at the time of the section 366.26 hearing, both were developing normally. Although Jasmine had learning disabilities necessitating her enrollment in special education classes, there was no evidence that these disabilities made her unadoptable. Jasmine’s long-time therapist described Jasmine as “very stable,” “very resilient,” “doing quite well” and “not seriously disturbed.”

Although the record does establish that Terrell was diagnosed with ADHD, for which he took Ritalin and Concerta, and that he had some behavioral problems, he was in counseling and his behavior was improving. The evidence does not establish that his problems were so severe as to make him unadoptable. (See, e.g., In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.)

In addition, Dorothy G. expressed her desire to adopt both children. “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., supra, 22 Cal.App.4th at pp. 1649-1650.) The juvenile court therefore had before it substantial evidence from which it could determine that Jasmine and Terrell were adoptable. (In re Baby Boy L., supra, 24 Cal.App.4th at p. 610.)

Effectiveness of Children’s Counsel

Appellant contends the children’s attorney was an ineffective advocate for Jasmine’s and Terrell’s emotional well-being, in that counsel joined in DCFS’s request to terminate appellant’s parental rights. In appellant’s view, counsel “should have conducted further investigation into the intentions of the legal guardian concerning adoption of the minors and the pending move to Texas.” Appellant asserts that at the very least “counsel could have cross-examined the legal guardian while she was on the stand in order to determine her commitment and capability of caring for Jasmine and Terrell.” Inasmuch as these are questions appellant’s own counsel could have asked, we are not convinced.

More fundamentally, Dorothy G. demonstrated her commitment to and capability of caring for the children throughout her legal guardianship which has spanned five years. The report prepared for the December 20, 2005 section 366.26 hearing states unequivocally that Dorothy G. “is seeking adoption of the minors so the family can be safe, secure and properly cared for and remain in the family. Mrs. G[.] wants to protect them from any further harm and abuse and provide them with a permanent home.” Jasmine and Terrell have had an ongoing relationship with Dorothy G. since their birth, and Dorothy has cared for both children throughout most of their current detention. Dorothy “is capable of meeting the children’s daily, medical, educational and therapeutic needs” and “love[s] and cares for Jasmine and Terrell as if they were her own children.” Dorothy “states she is committed to both Jasmine and Terrell providing them with the permanent plan of adoption and caring for them until they reach the age of majority” and “pledges to raise them as her own.” Based upon DCFS’s report, the children’s counsel was more than justified in concurring in DCFS’s recommendation to terminate appellant’s parental rights. Appellant has failed to demonstrate that the children’s counsel was ineffective.

Visitation

Next, appellant contends that the juvenile court abused its discretion by granting the legal guardian complete discretion to determine whether court-ordered visits took place. This contention, in effect, is a challenge to the propriety of the court’s April 30, 2003 visitation order, which has long since been final. This current challenge is based upon an amendment to section 366.26, subdivision (c)(4), that took effect on January 1, 2005[5] and is not properly before us.

In a prior appeal, we rejected appellant’s untimely challenge to the April 30, 2003 visitation order, in that the order was final and appellant had failed to cite us to any legal authority allowing us to review the otherwise final order merely because the juvenile court at a subsequent hearing directed the order to remain in full force and effect. (In re Jasmine B. (July 27, 2004, B170238 c/w B171213) [nonpub. opn.] at p. 8.) We further observed that she was not without recourse and, in the future, could seek modification of the order by filing a section 388 petition. (Ibid.) Appellant does not claim to have done so following the change in the law. She is presently without recourse.

Due Process

Finally, appellant contends the court’s delegation of judicial authority over visits to the legal guardian violated appellant’s right to due process and corrupted the findings

and orders entered at the section 366.26 hearing. Appellant has waived this argument. At no time during the December 20, 2005 section 366.26 hearing did appellant raise the lack of visitation as an impediment to termination of her parental rights. (In re Lukas B., supra, 79 Cal.App.4th at p. 1152.)

The order is affirmed.

NOT TO BE PUBLISHED

JACKSON, J.*

We concur:

MALLANO, Acting P. J.

ROTHSCHILD, J.

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

[2] We set forth only those facts relevant to a resolution of the particular issues raised on appeal. In so doing, we omit various factual and procedural details that typically accompany dependency matters.

[3] The sustained allegations of the first amended petition provided that appellant had abused the children physically, that the children had been exposed to violent confrontations between their mother and Terrell’s father, and that appellant had a history of substance abuse and frequently abused alcohol. The specific events and facts giving rise to juvenile court jurisdiction are set forth in Deborah G. v. Superior Court (Jan. 31, 2002, B153591) [nonpub. opn.] at pages 2 through 11.

Other appeals or writ proceedings involving these children are as follows: Deborah G. v. Superior Court (Jan. 24, 2003, B162910) [nonpub. opn.]; In re Jasmine B. (Sept. 15, 2003, B164571) [nonpub. opn.]; In re Jasmine B. (Mar. 25, 2004, B166438 c/w B169112) [nonpub. opn.]; and In re Jasmine B. (July 27, 2004, B170238 c/w B171213 [nonpub. opn.].

[4] The court also terminated the parental rights of Jasmine’s father, Clee B., and Terrell’s father, Pete A. Neither father is a party to this appeal.

[5] By way of background, in In re S.B. (2004) 32 Cal.4th 1287, the California Supreme Court held that under an amendment to section 366.26, subdivision (c)(4), effective January 1, 2004, “a juvenile court is not precluded from delegating to the appointed guardian the determination whether visitation is to occur between the parent and the child.” (At p. 1296.)

In In re M.R. (2005) 132 Cal.App.4th 269, the court held that in an amendment to section 366.26, subdivision (c )(4), effective January 1, 2005, “the Legislature made clear its intent to require juvenile courts to make visitation orders in both long-term foster care placements and legal guardianships.” (At p. 274.) Inasmuch as “the trial court was required to make a visitation order unless it found that visitation was not in the children’s best interest, it could not delegate authority to the legal guardian to decide whether visitation would occur.” (Ibid.)

* Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.