In re J.L.

Filed 7/3/07 In re J.L. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Robert G. Fowler, Temporary Judge. (Pursuant to Cal. Const., art. VI,  21.) Affirmed.

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

Ruth E. Stringer, County Counsel, and Julie J. Surber, Deputy County Counsel, for Plaintiff and Respondent.

Michael D. Randall, under appointment by the Court of Appeal, for Minor.

Sonja L. (the mother) appeals from an order terminating parental rights to her infant son, J.L. Her sole appellate contention is that the juvenile court erred by finding that J.L. was adoptable. We will hold that the adoptability finding was supported by sufficient evidence. Hence, we will affirm.

I

FACTUAL AND PROCEDURAL BACKGROUND

Six of the mothers other children have been removed from her custody. In February 2006, when J.L. was born, she tested positive for amphetamines. As a result, J.L. was detained and the Department of Childrens Services (the Department) filed a dependency petition concerning him.

In May 2006, the juvenile court found jurisdiction based on failure to protect (Welf. & Inst. Code,  300, subd. (b)), abuse of a sibling (id., subd. (j)), and ‑‑ solely as to the father ‑‑ failure to support (id., subd. (g)). It denied reunification services (Welf. & Inst. Code,  361.5, subd. (b)(10), (11) & (13)) and set a hearing pursuant to Welfare and Institutions Code section 366.26 (section 366.26).

In September 2006, J.L. was placed with Ms. C., a relative of some of his half siblings.

In January 2007, at the section 366.26 hearing, the juvenile court found that J.L. was adoptable. It therefore terminated parental rights.

II

ADOPTABILITY

A. Additional Factual and Procedural Background.

The evidence before the juvenile court at the section 366.26 hearing consisted of three specified social workers reports, plus some brief oral testimony by the social worker. This evidence showed the following.

As of the date of the section 366.26 hearing, J.L. was 10 months old. The adoptions social worker found him easy to engage . . . . The case social worker reported that he smiles and coos and is attentive to the facial expressions of others. She added, He is developing a pleasant personality. He had not been diagnosed as having any developmental delays. According to Ms. C., when he was placed with her, at the age of seven months, he was not sitting up or crawling; by the age of nine months, however, he had learned to sit up and to hold his own bottle. He was even trying to walk, although he took very high steps. The adoptions social worker concluded that J.L. was adoptable due to his age . . . .

J.L. was receiving regular medical evaluations. He had asthma, which resulted in chronic ear infections. He also had an umbilical hernia; his doctors were monitoring it, and they had indicated that if he needs surgery at all it will not be until he is about five years old. He had been previously diagnosed as having oral thrush.

In November 2006, a public health nurse examined J.L. He was smiling throughout the visit and was alert[,] with good eye contact. She did not note any significant health problems; he did not appear to have an ear infection. His height and weight were average. She did note that he did not jabber much throughout the visit . . . . Ms. C. reported that he mostly just makes grunting noises. However, he was able to say ma-ma and da-da.

Ms. C. was willing to adopt J.L., even though she was worried about how being born drug exposed would affect him as he grows. She was also concerned about several things [he] does . . . . On waking up, and at other times during the day, he would have a blank look and appear dazed. He would paw at his crib sheets as if trying to pick something up. He had a tendency to bang his head back and forth on the sides of his car seat or when he [wa]s in his walker. Three or four times a week, he would cry and scream for most of the day. Ms. C. was also concerned that he ha[d] an average of seven bowel movements a day. The adoptions social worker noted that he was never still; even when being held, he would move his head or arch his back. The case social worker opined that, as the child was prenatally exposed to methamphetamines, it is possible that developmental delays may be diagnosed at a later time.

Under Family Code section 8603, [a] married person, not lawfully separated from the persons spouse, may not adopt a child without the consent of the spouse . . . . Ms. C. was married but not living with her husband. Although she had not had any contact with him for two years, she made it very clear . . . that she ha[d] no interest in filing for a legal separation or pursuing a divorce . . . . She did not want her husband to have anything to do with the adoption. She would not give the social worker his name. However, she was willing to ask his mother to have him get in touch with the social worker.

In December 2006, the social worker sent Ms. C. a letter, giving her until January 15, 2007, to choose between obtaining her husbands consent to the adoption or giving the Department his contact information so it could obtain his consent. The record does not reflect any response.

B. Analysis.

The juvenile court cannot terminate parental rights unless it finds, by a clear and convincing standard, that it is likely the child will be adopted . . . . (Welf. & Inst. Code,  366.26, subd. (c)(1).) The issue of adoptability . . . 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.] [Citation.] (In re Zeth S. (2003) 31 Cal.4th 396, 406, quoting In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.)

Usually, 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. 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. [Citation.] (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1562, quoting In re Asia L. (2003) 107 Cal.App.4th 498, 510, quoting In re Sarah M., supra, 22 Cal.App.4th at p. 1649‑1650.)

[I]n some cases a minor who ordinarily might be considered unadoptable due to age, poor physical health, physical disability, or emotional instability is nonetheless likely to be adopted because a prospective adoptive family has been identified as willing to adopt the child. Where the social worker opines that the minor is likely to be adopted based solely on the existence of a prospective adoptive parent who is willing to adopt the minor, an inquiry may be made into whether there is any legal impediment to adoption by that parent [citations]. In such cases, the existence of one of these legal impediments to adoption is relevant because the legal impediment would preclude the very basis upon which the social worker formed the opinion that the minor is likely to be adopted. [Citation.] (In re Sarah M., supra, 22 Cal.App.4th at p. 1650, italics added.)

Review of a determination of adoptability is limited to whether those findings are supported by substantial evidence. [Citation.] (In re Carl R. (2005) 128 Cal.App.4th 1051, 1061.) [W]e view the evidence in the light most favorable to the trial courts order, drawing every reasonable inference and resolving all conflicts in support of the judgment. [Citation.] An appellate court does not reweigh the evidence. [Citation.] (In re Marina S. (2005) 132 Cal.App.4th 158, 165.)

Here, Ms. C.s willingness to adopt J.L. was some evidence that he was adoptable, if not by her, then by some other family. Admittedly, there was a legal impediment to adoption by her; while it was not impossible that her husband still might consent to the adoption, on this record, this possibility was so speculative that the juvenile court could not rely on it. This simply meant, however, that the juvenile court could not find adoptability based solely on Ms. C.s willingness to adopt.

There was also additional evidence of adoptability. J.L. was an infant; as the social worker suggested, infants are highly adoptable. He had a pleasant personality. Both the social worker and the public health nurse noted that he smiled at them and focused on their faces. The health problems that his doctors had noted were not particularly serious. Thrush is treatable; indeed, by November 2006, when the public health nurse examined J.L., it was evidently gone. Likewise, the umbilical hernia was treatable and did not appear to be causing any problems.  Asthma and ear infections are common in children; also, at the November 2006 examination, neither was apparent.

Although the social worker speculated that being born drug exposed might mean that J.L. was developmentally delayed, he had been having regular medical examinations, and his doctors had found no evidence of this. Admittedly, the behaviors that Ms. C. reported warranted some further investigation. However, in the absence of such investigation ‑‑ and in the absence of any expert testimony regarding their significance ‑‑ they did not require a finding that there was anything seriously wrong with J.L. They did not make him unadoptable as a matter of law. (See In re Jeremy S. (2001) 89 Cal.App.4th 514, 523-526 [child was adoptable despite tantrums, seizure disorder, intermittent elimination problems, and possible need for medical treatment], disapproved on other grounds in In re Zeth S., supra, 31 Cal.4th at pp. 413-414; In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154 [brother and sister were adoptable even though sister had been urinating on herself and regurgitating spontaneously].)

Significantly, the mothers counsel did not argue below that J.L. was not adoptable; while this did not constitute a waiver (In re Gregory A., supra, 126 Cal.App.4th at pp. 1559-1560), it does suggest that his adoptability was self-evident.

We therefore conclude that the juvenile courts finding of adoptability was supported by substantial evidence.

III

DISPOSITION

The order appealed from is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

HOLLENHORST

Acting P.J.

McKINSTER

J.

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