In re K.G.

Filed 9/28/06 In re K.G. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(Yolo)

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Tara G. (appellant), the mother of K.G. (the minor), appeals from an order of the juvenile court terminating her parental rights. (Welf. & Inst. Code, §§ 366.26, 395; undesignated section references are to the Welfare and Institutions Code.) Appellant makes several claims of alleged prejudicial error in the dependency proceedings. For the reasons that follow, we shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On February 20, 2003, Department of Employment and Social Services (DESS) filed an original juvenile dependency petition pursuant to section 300 on behalf of the seven-year-old minor. That petition alleged in part that appellant had a history of substance abuse and admitted the recent use of methamphetamine. The petition also alleged appellant and the father of the minor had a history of Child Protective Services referrals.^[1]

The juvenile court sustained the petition as amended, adjudged the minor a dependent child, and granted appellant reunification services. The elements of appellant’s reunification plan included drug testing, substance abuse treatment, parenting classes, and regular visitation with the minor. Appellant also was required to obtain suitable housing and maintain employment.

The minor appeared to be bonded to appellant. However, there were difficulties at visits. On several occasions, appellant displayed inappropriate behavior and argued with the minor’s father. Moreover, appellant missed some visits with the minor.

The minor manifested several behavior problems, including anger outbursts and sexual activities. However, she participated in counseling and had shown improvement. The minor’s counselor reported the minor was doing well but would require therapy “for a long time.”

According to an October 2003 report, appellant failed to maintain contact with DESS for approximately six weeks. Moreover, she lacked stable housing and employment. The report also alleged appellant had failed to complete a residential drug treatment program and an outpatient drug treatment program.

An April 2004 report by DESS noted that the minor was continuing to “progress in her development.” She was working at grade level in school and had improved academically. However, the minor continued to struggle with “anger control and tantrums.” Appellant had failed to complete four different substance abuse programs. At a July 2004 hearing, the juvenile court found that appellant received reasonable reunification services, ordered those services terminated, and scheduled a section 366.26 hearing.

In November 2004, DESS recommended adoption as the permanent plan for the minor. The minor’s medical condition was reported to be good. However, she was having difficulties in school, and engaged in temper tantrums.

A June 2005 letter from the minor’s counselor noted the minor was “attaching” to her foster mother. According to the counselor, the minor had difficulty forming healthy attachments. Moreover, she suffered from several disorders, including post-traumatic stress disorder. However, noting the minor was “quite intelligent and responsive” to her foster mother, the counselor opined that the minor’s prognosis was “favorable.”

In late July 2005, DESS placed the minor in a prospective adoptive home. Unfortunately, several previous placements for the minor had failed. However, the minor’s older siblings were in the minor’s most recent placement. Moreover, a September 2005 report by the social worker noted the minor was doing well in her current placement.

At the January 20, 2006, section 366.26 hearing, counsel for appellant asserted that appellant and the minor had been deprived of regular visitation, and counsel also argued the juvenile court should find an exception to adoption based on existing sibling relationships. Moreover, counsel suggested, the minor might not be adoptable, and guardianship would be a more appropriate disposition for the minor.

At the conclusion of the hearing, the juvenile court found it likely the minor would be adopted, and that termination of parental rights would not be detrimental to the minor. The court then ordered appellant’s parental rights terminated.

DISCUSSION

I

Appellant contends the juvenile court erred prejudicially in terminating her reunification services at the 12-month review hearing. According to appellant, DESS failed to provide her with reasonable services where, as here, it did not make referrals for housing and employment or for a domestic violence program, and it refused to pay for an appropriate residential substance abuse program. Moreover, appellant argues, DESS improperly terminated her visits with the minor for six months.^[2]

“The strong preference of the law in dependency matters, expressed both judicially and legislatively, is reuniting children with their natural families whenever possible.” (In re Joanna Y. (1992) 8 Cal.App.4th 433, 438.) “To effectuate this paramount goal of reunification, the law requires that reasonable reunification services, tailored to the parents’ individual needs be offered . . . . [Citations.] The agency supervising the children must identify the problems leading to the loss of custody, offer services designed to remedy these problems, and maintain reasonable contact with the parents to assist in areas where compliance proves difficult, such as transportation.” (Ibid.) A “reunification service plan should be well defined, specific, and tailored to provide services that will lead to the resumption of a family relationship.” (In re Mario C. (1990) 226 Cal.App.3d 599, 603-604.)

We must determine whether there is substantial evidence supporting the juvenile court’s finding that reasonable services were provided. (In re Joanna Y., supra, 8 Cal.App.4th at p. 439.)

The record refutes appellant’s claim that DESS failed to make necessary program referrals for her. At the July 2004 review hearing, social worker Anthony Bennett testified he had not referred appellant to housing or employment assistance programs. He had been the social worker for appellant since June 2003. But the record shows that, prior to Bennett’s tenure, DESS had made the necessary referrals for housing and employment assistance. Moreover, at the hearing, Bennett testified and appellant acknowledged that he had referred her to a domestic violence program. Finally, as to payment for a residential treatment program, the record reflects appellant was enrolled in such a program; unfortunately, she failed to complete it.

The social worker must make “a good faith effort” to provide reasonable services responding to the unique needs of each family. (In re Kristin W. (1990) 222 Cal.App.3d 234, 254; In re Dino E. (1992) 6 Cal.App.4th 1768, 1777.) The question is not whether more or better services could have been provided, but “whether the services were reasonable under the circumstances.” (In re Misako R. (1991) 2 Cal.App.4th 538, 547.)

Here, there is substantial evidence to support the juvenile court’s finding that DESS made reasonable efforts on appellant’s behalf, especially considering that, for one six-week period, appellant failed to maintain contact with DESS. Reunification is a two-way street, requiring the active, willing participation of the parent to overcome the problems that caused the loss of custody. “Reunification services are voluntary, . . . and an unwilling or indifferent parent cannot be forced to comply with them. [Citations.]” (In re Mario C., supra, 226 Cal.App.3d at p. 604.)

Appellant asserts, “there was no basis for believing that visitation was detrimental” to the minor. Appellant also claims DESS should have arranged for her visits with the minor to be held separately from the minor’s visits with the father.

It is true that, as social worker Bennett testified, appellant and the minor’s father argued during some of their joint visits with the minor, and there was the possibility the father had physically abused appellant. On the other hand, it appeared to the social worker that appellant and the father were together, and appellant, who once requested separate visits, later changed her mind and stated she wanted them together with the father.

Social worker Bennett told the juvenile court that, at one time, the minor was having emotional and academic difficulties resulting from her visits with appellant. Thereafter, the minor’s counselor and the state Department of Social Services (DSS) both suggested continued visits would be detrimental. In sum, ample evidence supported the cessation of visitation.

Appellant has a 16-year history of substance abuse. Social worker Bennett believed appellant required additional treatment for her drug problems. Noting her last positive drug test was in June 2003, appellant believed she was able to maintain her sobriety. However, at the July 2004 hearing, appellant admitted that, in December 2003, she had used alcohol and methamphetamine.

In this case, the record establishes that appellant failed to maintain regular contact with DESS, participated only sporadically in services, and failed to make progress in ameliorating the conditions that led to the filing of the dependency petition. Substantial evidence supports the juvenile court’s order terminating appellant’s reunification services.

II

Appellant contends the denial of visitation and lack of reasonable services, which rendered her unable to prove a statutory exception to adoption in this case, resulted in a violation of her due process rights.

The difficulty with appellant’s claim is that the record does not show appellant proffered an objection to any of the juvenile court’s orders based on due process grounds.

The California Supreme Court has stated, “‘”An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been, but was not, presented to the lower court by some appropriate method . . . .

The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver . . . . Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial.”’ (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1 [151 Cal.Rptr. 837, 588 P.2d 1251], italics in Doers.) ‘”The purpose of the general doctrine of waiver is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had

. . . .”’ (People v. Walker (1991) 54 Cal.3d 1013, 1023 [1 Cal.Rptr.2d 902, 819 P.2d 861].) ‘”No procedural principle is more familiar to this court than that of a constitutional right,” or a right of any other sort, “may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.” [Citation.]’ [Citation.]” (People v. Saunders (1993) 5 Cal.4th 580, 589-590; cf. In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2 [stating that the correct legal term for loss of right based on failure to assert it in a timely fashion is forfeiture, not waiver].)

Here, the record shows, at no time during the proceedings did appellant tender any objection to the visitation order based on due process grounds. Thus, appellant is precluded from raising the claim here. (In re Erik P. (2002) 104 Cal.App.4th 395, 403; In re Dakota S. (2000) 85 Cal.App.4th 494, 498-500.) She has forfeited her claim. (In re S.B., supra, 32 Cal.4th at p. 1293, fn. 2.)

III

Relying primarily on evidence of the minor’s previous failed placements and significant behavior difficulties, appellant contends the juvenile court’s order terminating her parental rights must be reversed because the finding by that court that it was likely the minor would be adopted was not supported by substantial evidence.^[3]

When the sufficiency of the evidence to support a finding is challenged on appeal, even where the standard of proof in the juvenile court is clear and convincing evidence, we must determine if there is any substantial evidence -- that is, evidence that is reasonable, credible, and of solid value -- to support the conclusion of the trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) In making this determination, we resolve all conflicts in favor of the prevailing party. Issues of fact and credibility are questions for the trier of fact, and we do not reweigh the evidence when assessing its sufficiency. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; In re Jason L., supra, at p. 1214; In re Steve W. (1990) 217 Cal.App.3d 10, 16.)

The goal of dependency proceedings is protection of the child. (In re Kerry O. (1989) 210 Cal.App.3d 326, 333.) An important aspect of this goal “is to provide children with stable, permanent homes.” (In re Heather P. (1989) 209 Cal.App.3d 886, 890.) A preference for permanent placement, as afforded by adoption, is a vital component of the statutory scheme. (In re Brian R. (1991) 2 Cal.App.4th 904, 923-924; cf. In re Mark V. (1986) 177 Cal.App.3d 754, 760-762.)

The issue of adoptability “focuses on the minor, e.g., whether the minor’s 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.) It is not necessary that the minor already be in a potential adoptive home, or that there even be a prospective adoptive parent. (Ibid.)

The record in this case reflects the minor was in good health. Moreover, over time, she has shown improvement in adjusting to foster home placements. Admittedly, the minor has exhibited major behavioral difficulties, including tantrums and assaultive behaviors. However, she had received therapy, and her therapist was sanguine about the minor’s prospects. Based on this evidence, the juvenile court reasonably could find, as it did, that although the record suggests the minor may continue to present some challenges to her caregivers, she was likely to be adopted. (Cf. In re Roderick U. (1993) 14 Cal.App.4th 1543, 1550.)

In In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205, cited by appellant, the adoptability finding was based on the willingness of the mother’s former boyfriend, a problematical prospect, to adopt the minor. Here, the record reflects the existence of a prospective adoptive family, with whom the minor was bonding. Moreover, based on the minor’s improvement, DESS was optimistic about the likelihood of the minor’s adoptability.

Of course, the lack of an adoptive home does not preclude a finding the minor is likely to be adopted. (In re Sarah M., supra, 22 Cal.App.4th at p. 1649.) And the prospect that a minor may have some continuing behavioral problems also does not foreclose a finding of adoptability as to the minor. (In re Jennilee T. (1992) 3 Cal.App.4th 212, 224.)

In In re Tamneisha S. (1997) 58 Cal.App.4th 798, the social services agency was unable, after a 10-month search, to place an adoptive home for the child. (Id. at pp. 802-803.) Ultimately, the juvenile court granted a guardianship after finding the agency had failed to show the minor was likely to be adopted. (Id. at p. 803.) The Court of Appeal affirmed the order of guardianship. (Id. at p. 808.)

This case is different from the circumstances found in In re Tamneisha S., supra, 58 Cal.App.4th 798. Here, as we have seen, the minor appeared to be developing a relationship with her prospective adoptive family. Moreover, the record suggests the minor has the ability to form attachments with caregivers. This fact suggests the adoptability of the minor does not depend on the willingness of any particular foster parents to adopt her.

Sometimes “special needs” children are more difficult to place than those without such needs. For example, in In re Michael G. (1983) 147 Cal.App.3d 56, the minor was developmentally disabled and suffered from serious emotional problems. According to the record in that case, the seven-year-old minor functioned below his age level, was not completely toilet-trained, and possessed limited language abilities. On that record, the court noted all parties had conceded adoptive placement would be difficult. (Id. at pp. 58-59.)

The situation here is different. Although the minor arguably has some special needs, the evidence before the juvenile court suggested the minor’s circumstances had improved. Moreover, as the evidence also showed, the health of the minor was good and the minor was capable of developing close attachments to new adults in her life. This evidence tends to refute the claim of appellant that the evidence adduced by DESS suggests the minor was unlikely to be adopted within a reasonable time.

In re Asia L. (2003) 107 Cal.App.4th 498, 503, 504, 510-511, involved siblings, five and seven years old, who exhibited significant emotional and behavioral problems and who needed specialized placement. Although the social worker reported that her agency was “confident” an adoptive home could be located, the minor’s current foster parents were not committed to adoption, and there was no evidence of other approved families willing to adopt children with the problems faced by the siblings. (Id. at pp. 511-512.) Under those circumstances, the appellate court reversed the juvenile court’s finding of adoptability. (Id. at pp. 512, 515.)

Here, there was no evidence the minor’s difficulties would necessitate a specialized placement, or that her difficulties were so severe as to pose an obstacle to adoption. Nor, contrary to the suggestion of appellant, was there anything else about “the minor’s age, physical condition, and emotional state [that would] make it difficult to find a person willing to adopt [her].” (In re Sarah M., supra, 22 Cal.App.4th at p. 1649.)

In In re Brian P. (2002) 99 Cal.App.4th 616, 624, the social worker’s opinion that a child was adoptable was held insufficient to sustain a finding of adoptability where the social worker provided no facts to support her opinion. In contrast to the characteristics of the four-and-one-half-year-old child in that case -- he had only recently begun to speak, had problems with his “gait,” was still learning to dress himself and was only recently toilet-trained -- the record here does not reflect that characteristics such as those would create any difficulty in terms of placing the minor for adoption. (Id. at p. 619.)

We reject appellant’s suggestion that the minor would continue to be difficult to place due to her behavioral problems. Section 366.26, subdivision (c)(3), states in part that a minor “may” be found to be difficult to place for adoption due to various factors. Here, the minor was placed in a prospective adoptive home, where she was doing well. The juvenile court made no finding that the minor was “difficult to place,” and we conclude the record would not support such a finding.

The minor has had several foster home placements. Each of those placements had failed due to the minor’s emotional and behavior difficulties. However, the minor was doing well in the home of her most recent prospective adoptive family. On this record, we reject as speculative appellant’s assertion that future placements likely would fail as had previous ones.

In sum, substantial evidence supports the juvenile court’s determination that the minor was likely to be adopted within a reasonable time. (Cf. In re Scott M. (1993) 13 Cal.App.4th 839, 843-844.) As we have seen, the minor is healthy and improving in her overall adjustment. Moreover, the record contains no evidence, contrary to the claims of appellant, suggesting that anything about the personal characteristics of the minor would make it difficult to find another prospective adoptive home for her, if necessary. Accordingly, the juvenile court did not err in finding it likely the minor would be adopted.

DISPOSITION

The order terminating appellant’s parental rights is affirmed.

SIMS , Acting P.J.

We concur:

DAVIS , J.

HULL , J.

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^[1] The father of the minor is not a party to this appeal.

^[2] Appellant’s claims are cognizable in this appeal because she made a challenge to the termination of her reunification services in her petition for extraordinary writ, which was denied summarily by this court. (§ 366.26, subd. (l)(1)(B); Joyce G. v. Superior Court (1995) 38 Cal.App.4th 1501, 1513-1514.) On July 28, 2006, this court took judicial notice of the record in C047417, the writ petition proceeding.

^[3] On July 28, 2006, this court denied a request by appellant to consider alleged postjudgment developments pertaining to the minor.