In re J.G.

Filed 3/23/07 In re J.G. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County, Stephen Marpet, Commissioner. Affirmed.

M. Elizabeth Handy, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Lisa Proft, Deputy County Counsel for Plaintiff and Respondent.

________________________

INTRODUCTION

Y. G., mother of ten-year-old J. and nine-year-old G., appeals from the order of the juvenile court that terminated her parental rights. We affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

1. The dependency

These children have been referred to the Department of Children and Family Services (the Department) at least twice before, once because Y. had left them unsupervised and had been hitting J. This time, the family came to the attention of the Department in August 2004 when Y. was under the influence of a controlled substance to the extent that she was unable to provide the children with adequate care. According to the children, Y. had not fed them and they were starving. The maternal grandparents reported that Y. has a history of cocaine abuse, was unstable, had no permanent home, and was drunk when she left the children at home. The childrens maternal grandparents and aunt Ingrid had been supporting the children since their birth because of Y.s ongoing and pervasive drug and alcohol problems.

The Department detained the children and filed a petition pursuant to section 300 of the Welfare and Institutions Code.[1] In August 2004, the court ordered the children placed with the maternal grandparents and awarded Y. monitored visits.

In October 2004, the court sustained the amended petition declaring the children dependents of the court under section 300, subdivisions (a), (b), (g) and (j).

Despite this upheaval, the children were developing at an age-appropriate level and appeared emotionally and mentally healthy. They were not doing well in school and so their caregivers participated in intervention programs and parent conferences.

The maternal grandparents cared for the children well and provided them with a stable, appropriate, and happy home. Initially, Y. participated in her programs and did well enough that the court liberalized her visits in March 2005 to unmonitored as long as Y.s drug tests were clean, and allowed overnight and weekend visits at the maternal grandparents house. In September 2005, the court ordered that the children be placed with Y. in the grandparents home.

2. The redetention

Four months later, on January 3, 2006, the Department redetained the children, placed them with Ingrid because Y. had missed drug tests, was abusing alcohol, and had taken the children from the maternal grandparents home to live with a friend. A man named Eddie had beaten Y. up in front of the children. When Ingrid discovered where the children were, she retrieved them from Y. and reported the incident to the social worker. The children had not eaten. The Department filed a supplemental petition ( 387) and placed the children with Ingrid.

Once the children were placed with Ingrid, they began arriving to school on time and their attendance was good. Their mental, physical, and emotional health remained good. Ingrid was interested in adopting J. and G. to give them a stable home and keep them in the family. As for her circumstances, Ingrid was in the midst of separating from her husband. She has two children who live with her. Yet, as she is Y.s sister, Ingrid agreed to maintain family contacts as appropriate. In July 2006, the Department recommended that the children be freed for adoption by Ingrid.

In March 2006, the juvenile court terminated reunification services and set the section 366.26 hearing.

Ingrid was overwhelmed in the summer of 2006 and had to take time off from work. The maternal grandfather had passed away six months earlier and Ingrid was struggling to take care of her fathers business, while meeting the needs of J. and G. and her own two children. Also, Y. had been arrested and gave the police Ingrids name as her own, adding to Ingrids busy schedule. Ingrid was planning to move to Santa Maria which was more affordable and where her fianc lives. Still, Ingrid was reportedly doing a good job meeting the needs of the children. At times, she is overwhelmed[. H]owever, she continues to provide for the kids with the help of her [m]other.

3. The adoption assessments

According to the adoption assessment done in February 2005, a year before reunification services were terminated, J. and G. were physically healthy and developing on track. They were personable, played independently, ate well, related well to caregivers and peers, and enjoyed school, although J. was having difficulties academically. The recommended permanent plan at the time was legal guardianship because the Department was recommending additional reunification for Y.

In March 2006, on the eve of the section 366.26 hearing, the Department submitted a second adoption assessment. J. was again described as physically healthy, developmentally age-appropriate, personable, plays independently, eats well, relates well to caregivers and peers, enjoys school, excels academically, and has a positive self-identity. The assessment stated that J. is likely to be adopted. Ingrid indicated that she wished to adopt both siblings. The record only contains the assessment for J.

4. The section 366.26 hearing

The social worker opined in the Departmental report for the permanency planning hearing ( 366.26) that there does not appear to be any reason that these children should not remain in this home and be adopted by their maternal aunt.

Counsel for the children reported that the children were happy in their placement. The childrens counsel joined in the Departments position that the children should be adopted. With respect to the concern that Ingrid was overwhelmed, County Counsel represented that the maternal grandmother was residing with Ingrid and was assisting with child care. Ingrid was only overwhelmed when she had to bring the children to court. Otherwise, Ingrid remained committed to adopting the children and did not feel any hindrance existed to adoption. The court found by clear and convincing evidence that the children were adoptable and terminated Y.s parental rights. Y.s appeal followed.

CONTENTIONS

Y. contends there is insufficient evidence to support the finding the children are adoptable because the adoption assessment was not complete and the only adoptive home that was approved is not secure.

DISCUSSION

Section 366.26 delineates the procedure for permanently terminating parental rights where the minor has been removed from parental custody and declared a dependent child of the juvenile court and reunification services have been terminated. Subdivision (c)(1) of that section states in pertinent part, If the court determines . . . by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption. On review, we determine whether substantial evidence supports the termination order. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.)

The 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. [Citations.] (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650, italics added.) The juvenile court may also consider the childs progress in therapy, intellectual and academic growth, and ability to develop interpersonal relationships. (See id. at p. 1651.)

The evidence of these factors before the juvenile court at the section 366.26 hearing shows these children are eminently adoptable. They are young, physically and emotionally healthy, developing on track and doing well in school. They interact well with peers and with Ingrid. Despite Y.s chaotic circumstances, J. was described as having a positive self identity. Finally, the social worker opined that these children were adoptable. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1421 [social worker is qualified to opine about childs adoptability under Evid. Code,  720].) This is all powerful evidence that these children are very likely to be adopted.

Y. implies that J. and G. are not adoptable because of their older age. We do not agree. The children were eight and nine years old and in elementary school at the time of the section 366.26 hearing.

Y. also contends that the adoption assessment omitted mention of the childrens wishes about adoption, in violation of section 366.22, subdivision (b)(5).[2] However, the court heard from the childrens attorney, who had spoken to the children. Counsel reported that J. and G. were happy in their placement and joined in the Departments adoption recommendation. Furthermore, section 366.26, subdivision (h) requires the court to   consider the childs wishes  prior to terminating parental rights. [Citation.] But the evidence need not be in the form of direct testimony in court or chambers; it can be found in court reports prepared for the hearing. [Citation.] (In re Amanda D. (1997) 55 Cal.App.4th 813, 820.) The court here had a reasonable basis for inferring the childrens wishes. It had the reports from the social workers, the most recent of which stated: there does not appear to be any reason that these children should not remain in this home and be adopted by their maternal aunt.

In addition to the characteristics particular to the children which, standing alone support the juvenile courts adoptability finding, the record shows that Ingrid is ready, willing, and able to provide J. and G. with a safe home, and with

the educational, emotional, and developmental support that they need. That fact 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, 22 Cal.App.4th at p. 1650, original italics deleted, italics added.) That is, [u]sually, the 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. (Id. at pp. 1649-1650, italics added.)

Noting that Ingrid was overwhelmed in the summer of 2006, Y. argues that Ingrids circumstances were too much in transition to assume she could take on the committed role of legal parent simply because of her apparent desire to do so. Because Ingrids home study was not complete, the court did not have the necessary evidence to assess Ingrids commitment to adoption and whether she realistically had the resources and energy necessary to parent the children.

To the contrary, the social worker found Ingrid to be ready, willing, and able to meet the childrens needs and provide them a stable home. When the social worker made that assessment, the children had been in Ingrids care for seven months. During that time, the children had been doing well, had begun to attend school regularly and arrive on time. J.s academic performance improved. Ingrid has always been involved with these children and has assisted in their basic needs even before their original detention from Y. Furthermore, the court heard from County Counsel that Ingrid was overwhelmed only when she had to bring the children to court. In sum, there was sufficient evidence in this record to support the juvenile courts finding by clear and convincing evidence that these children were likely to be adopted.

A central contention in Y.s appeal is that the evidence of adoptability was insufficient because the evidence of Ingrids suitability as an adoptive parent was problematic. The absence of an home study coupled with the fact that Ingrid is overwhelmed and may move out of Los Angeles County, Y. argues, raises questions about whether Ingrid will become the childrens adoptive parent and where these children risk becoming legal orphans, the evidence does not support the adoptability finding.

However, there is no requirement that an adoptive home study be completed before a court can terminate parental rights. The question before the juvenile court was whether the child was likely to be adopted within a reasonable time, not whether any particular adoptive parents were suitable. [Citation.] (In re Marina S. (2005) 132 Cal.App.4th 158, 166, italics added.) Only two findings are needed for the court to terminate parental rights: (1) that there is clear and convincing evidence of the childs adoptability, and (2) that there has been a previous determination to terminate reunification services. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249-250;  366.26, subd. (c).)  [T]he question of a familys suitability to adopt is an issue which is reserved for the subsequent adoption proceeding.  (In re Marina S., supra, at p. 166, quoting from In re Scott M. (1993) 13 Cal.App.4th 839, 844.) Thus, if, as here, the children are otherwise adoptable, the suitability of a prospective adoptive parent is irrelevant. (In re Sarah M., supra, 22 Cal.App.4th at p. 1650.)

For this reason, we also reject Y.s contention that a childs age, physical and emotional health must be such as to make it likely that another parent would be found if adoption by Ingrid does not work out. Because the focus is on the childs characteristics, whether a potential adoptive parent exists is irrelevant to the adoptability finding. [I]t is not necessary that the minor already be in a potential adoptive home or that there be a proposed adoptive parent waiting in the wings. [Citations.] (In re Sarah M., supra, 22 Cal.App.4th at p. 1649.)

In sum, the record here amply supports the juvenile courts finding by clear and convincing evidence that it is likely that J. and G. will be adopted.

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

CROSKEY, Acting P. J.

KITCHING, J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.

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

[2] Section 366.26, subdivision (h) states in pertinent part: (h)(1) At all proceedings under this section, the court shall consider the wishes of the child and shall act in the best interests of the child.

Section 366.22, subdivision (b)(5) requires the adoption assessment to include a statement from the child concerning placement and the adoption or legal guardianship, unless the childs age or physical, emotional, or other condition precludes his or her meaningful response, and if so, a description of the condition.