In re K.H.

Filed 10/19/07 In re K.H. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Riverside County. William A. Anderson, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Ellen L. Bacon, under appointment by the Court of Appeal, for Defendant and Appellant.

Joe S. Rank, County Counsel, Sophia H. Choi, Deputy County Counsel, for Plaintiff and Respondent.

Konrad S. Lee, under appointment by the Court of Appeal, for Minor.

Defendant and appellant Peggy S. (mother) is the natural mother of five children who were made dependents of the juvenile court.^[1] Mother appeals an order terminating her parental rights to child 2. Mother contends that the evidence was insufficient to support the courts finding that child 2 was adoptable. We affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiff and respondent Riverside County Department of Public Social Services (DPSS) filed a dependency petition in September 2003 concerning child 1, child 2, child 3 and child 4, alleging that mother had left them unsupervised: child 2, age three, had wandered away from the residence, and mother left the remaining children alone while she went to look for child 2. The petition alleged that mother had some disabilities attributable to brain surgery, which impaired her ability to care for the children.

Ronald H. (Ronald) is the father of some of the children. He had another child (not related to mother) in dependency for who his reunification services had been terminated. The petition alleged that Ronald suffered from mental illness and did not take his prescribed medications, which impaired his ability to care for the children. An amended petition added allegations that Ronald abused controlled substances in the presence of the children.

In November 2003, at the jurisdictional and dispositional hearing, the court found the allegations of the petition true and found that the children came within the provisions of Welfare and Institutions Code section 300, subdivisions (b) and (g). The children were placed with mother on a family maintenance plan.

In March 2004, DPSS filed a supplemental petition for the older four children, as well as a new original petition for child 5, a newborn. The previous placement was not effective as the family had become homeless. The children were placed in foster care and the court ordered reunification services. In May 2004, child 1 and child 2 were placed together, child 3 and child 4 were placed together, and child 5 was placed in a separate foster home.

The court ordered a psychological evaluation for mother, so that her service plan could be tailored to her needs. The psychological evaluation indicated that mother suffered from mild mental retardation, and she had a dependent personality disorder. Her cognitive functioning was on the level of an eight- or nine-year-old child, and she would be unable to benefit from reunification services.

In May 2004, the court found true all the allegations in the supplemental petition as to the older children, and the allegations of the original petition as to child 5. The court ordered reunification services for mother, but denied them to Ronald. DPSS submitted a service plan for mother, including elements of mental health counseling, domestic violence counseling, and parenting classes.

At the six-month review, mothers progress was incomplete. The court ordered further reunification services. At the 12-month review, in July 2005, the court found that DPSS had not made reasonable efforts to put in place a permanent plan for each of the children, and extended mothers reunification services for another six months.

At the 18-month review, DPSS recommended terminating reunification services. All of the children except child 1 had adoption as their permanent plan. Child 1 had been moved to a new placement, separate from his siblings. DPSS also reported that a four-day visit with mother over the Christmas holiday had gone very badly. All the children were traumatized from the visit. Ronald had evidently been present the entire time, although the court had ordered in March 2004 that placement with mother was on the condition that Ronald not reside in the home. The court terminated mothers reunification services.

DPSS filed later reports recommending adoption for all the children except child 2; as to child 2, DPSS needed more time to complete an adoption home study. The court terminated mothers parental rights to child 1, child 3, child 4 and child 5 on November 22, 2006, finding no exceptions to the legislative preference for termination.

As to child 2, a selection and implementation hearing was calendared for February 27, 2007. At that time, DPSS recommended terminating mothers parental rights with a plan of adoption by the childs current caregivers. The DPSS report noted that child 2 continued to qualify for special education services. She had also recently had a seizure at her school.

The court found that child 2 was adoptable, and severed mothers parental rights. Mother now appeals.

ANALYSIS

I. Standard of Review

Mothers sole contention on appeal is that the juvenile court erred in finding that child 2 was adoptable. (Welf. & Inst. Code,  366.26, subd. (c)(1).) This question is reviewed under the substantial evidence standard. (In re Asia L. (2003) 107 Cal.App.4th 498, 509.)

II. Substantial Evidence Supported the Finding of Adoptability

Mother argues that child 2 had disabilities and needs that precluded a finding of adoptability. Child 2 had had language delays and did not speak normally. She was eligible for special education classes. She had suffered at least one seizure. She had had behavioral problems. She was mildly mentally retarded and had had some incidents of sexual acting out when she was placed together with her brother, child 1. Mother contends that the only evidence of adoptability was child 2s current placement in a family that wanted to adopt her, and that that circumstance is insufficient.

Welfare and Institutions Code section 366.26, subdivision (c)(1) provides that the juvenile court shall terminate parental rights if the court determines, based on the assessment provided as ordered . . . and any other relevant evidence, by a clear and convincing standard, that it is likely the child will be adopted. . . .

This provision requires the court to find by clear and convincing evidence that the child will likely be adopted within a reasonable time either by the prospective adoptive family or some other family. [Citations.] (In re Scott M. (1993) 13 Cal.App.4th 839, 844.) In determining adoptability, the court looks to factors such as the childs age, physical condition, emotional state, and other matters, to determine whether there will be difficulty in locating a family willing to adopt. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650.) The Sarah M. court also held that already being placed in a prospective adoptive home is sufficient evidence to show that nothing in the childs circumstances is likely to deter someone from adopting the child, and that the child will likely be adopted within a reasonable time, by either the prospective adoptive parent or another family. (Ibid.)
Here, child 2 was approximately age three when the dependency began. She was about six years old at the time of the termination hearing. Although she had been in her prospective adoptive placement for approximately three months at the time of the selection and implementation hearing, the caretaker had had a previous relationship with the child, and the transition was made smoothly. The caretaker was a nonrelated extended family member, who was open to continuing child 2s relationships with her siblings. The caretaker had substantial childcare experience as well as professional training in caring for the childs special needs. Child 2 was thriving in the prospective adoptive placement. Her behaviors had improved significantly. She no longer acted out sexually, and her emotional problems had subsided substantially. Any emotional difficulties she did have appeared to be exacerbated by contact with the birth family. She had had a single seizure, which was followed up medically, but no further incidents had occurred. The childs doctor did not require further follow-up and, in any case, the caretaker was experienced in handling children with seizure disorders.

In short, child 2s circumstances did not indicate any untoward difficulty in finding a family willing to adopt. She is young, in good physical condition, and her emotional state is consistently improving. The likelihood of adoption was supported by child 2s individual characteristics and circumstances. Substantial evidence supported the finding of adoptability.

DISPOSITION

The order terminating mothers parental rights to child 2 is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

Acting P. J.

We concur:

GAUT

J.

KING

J.

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^[1] To protect the childrens privacy, their distinctive names are not used. We cannot substitute initials, however, because some of the children have the same initials. We therefore refer to them as child 1, child 2, child 3, child 4 and child 5, respectively, in chronological age from oldest to youngest. Another appeal, E041898, dealt with issues concerning child 1, child 3, child 4 and child 5. The instant appeal concerns child 2.