In re S.W.

Filed 3/23/07 In re S.W. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

Maurice W. (Father) appeals the termination of his parental rights in relation to his daughter, S.W., to challenge the juvenile courts finding that she was adoptable. Because the finding that S.W. is adoptable was supported by substantial evidence, we affirm.

Factual and Procedural Background^[1]

Pursuant to Welfare and Institutions Code^[2]section 300, subdivision (b), a petition, filed in August 2004, alleged that seven-month-old S.W. was riding in a car driven by Mother, who ran over Father and broke both of his legs. Father was hospitalized and unable to care for the child. Mother was incarcerated on felony domestic violence and child endangerment charges.^[3] At the jurisdictional hearing, the court adjudged S.W. a dependent of the court and followed the recommendation of the Alameda County Social Services Agency (the Agency) that she be placed with Father, who had been released from the hospital. Mother returned to the home in March 2005, and more domestic violence ensued.

A supplemental petition filed in October 2005, alleged that during a domestic altercation between Father and Mother, the minor fell from a second-story balcony and suffered a concussion.^[4] The petition was sustained and the minor was removed from the parents in November 2005. The Agency recommended termination of reunification services in a report prepared for the February 2006 status review hearing. Father had tested positive for cocaine in December 2005 and January 2006, and domestic violence continued. The court found Father had only partially alleviated the causes necessitating placement, terminated reunification services, and set a hearing pursuant to section 366.26.

Father attended the section 366.26 hearing in June 2006, and submitted on the Agencys recommendations. Mothers counsel also submitted the matter. Father understood his parental rights would be terminated, but wanted the minor to remain in the family and asked that a maternal aunt be considered for adoption. The maternal aunt was present at the hearing, and indicated her continuing interest in adopting the minor.^[5]Counsel for Father also suggested the court should defer any determination whether the minor was adoptable until the results of a pending regional center evaluation were received.

The court rejected Fathers suggestion and found that this child is clearly adoptable. Although the child does have some issues that are being looked into, theres absolutely nothing here that would lead the court to believe this child would not be adoptable. In fact, I believe theres [sic] indications in the report itself that there are peoplealso evidence of family members, there are lots of people who would love to adopt this beautiful child, including her family members. The court acknowledged that the Agencys report could not identify the cause for S.W.s delays in speaking and affect, but the court wouldnt have any questions in my mind based on the information that Ive received over the past several months with regard to this child that would lead me to believe shes not adoptable. [] Shes a beautiful, thriving child and she certainly is adoptable from the courts perspective. The court found that the Agencys report prepared for the hearing provided clear and convincing evidence that it was likely the minor would be adopted, and terminated the rights of both parents. Father timely appealed.

Discussion

Father argues there is no substantial evidence to support the courts finding that S.W. is adoptable. When the juvenile court determines upon clear and convincing evidence that it is likely a dependent child will be adopted, it is to terminate parental rights and hold the child over for adoption. ( 366.26 (c)(1).) While the juvenile court applies a clear and convincing standard of proof, our job when we review such an order is to determine  if there is any substantial evidence, that is, evidence which is reasonable, credible, and of solid value to support the conclusion of the trier of fact. [Citation.] In making this determination, all conflicts [in the evidence and in reasonable inferences from the evidence] are to be resolved in favor of the prevailing party, and issues of fact and credibility are questions for the trier of fact. [Citation.] In dependency proceedings, a trial courts determination will not be disturbed unless it exceeds the bounds of reason. [Citation.] [Citation.] . . . The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record.  (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393-1394.) The clear and convincing standard is not a standard for appellate review. (In re J.I. (2003) 108 Cal.App.4th 903, 911.)

The Agencys report prepared for the June 2006 permanency planning hearing was admitted into evidence and described 29-month-old S.W. to be in general good health, with a healed concussion. She was referred to the regional center for evaluation because she had Post Traumatic Stress Disorder (PTSD), and suffered from developmental speech and affect delays. But she was making great progress in weekly in-home therapy. She had an increased ability to express herself, and this allowed her to be less frustrated and aggressive with others. She was considered to be adoptable since a January 2006 adoption assessment. There were concurrent planning homes available at the time, and relatives were being considered as adoptive parents. The June 2006 report characterized S.W.s likelihood of adoption this way: Although [the minor] is not currently placed in an adoptive home, adoptive homes can be found for her. At this writing, a potential match has been identified. Adoption appears likely.^[6]Moreover, a maternal aunt and uncle were interested in caring for the minor but did not qualify.

A May 2006 report from S.W.s therapist was received in evidence with the Agencys report. The therapist was treating her for PTSD and was primarily trying to increase S.W.s ability to communicate through language. The therapist considered S.W.s progress very good. In particular, she described an interaction where the minor used her body and her words to take an emotional risk, and it was the therapists belief that S.W. can continue to make progress in a safe and secure setting.^[7] She was concerned that the parents visits were having a detrimental impact on S.W., and recommended that visits be reduced or more closely supervised.

 The issue of adoptability requires the court to focus on the child, and whether the childs age, physical condition, and emotional state make it difficult to find a person willing to adopt. [Citations.] It is not necessary that the child already be placed in a preadoptive home, or that a proposed adoptive parent be waiting. [Citations.] However, there must be convincing evidence of the likelihood that adoption will take place within a reasonable time. [Citation.] [Citation.] 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.  (In re Asia L. (2003) 107 Cal.App.4th 498, 510; see also In re Sarah M. (1994) 22 Cal.App.4th 1642, 1651 [willingness of foster mother to adopt supported determination of minors adoptability, but her availability as a prospective adoptive parent was not essential to that conclusion].)

There is substantial evidence to support the courts finding that S.W. was adoptable. S.W. has been through a lot for her tender age, including a serious physical injury suffered in her fall from a second-story balcony, and serious emotional injury attendant to her interaction with warring and violent parents. But her PTSD is being treated and she is making very good progress. While S.W. has deficits in communication and affect, she has forged close bonds with her therapist and seems attached to her maternal relatives. She is in good physical health. Family members, including a maternal aunt, had expressed a desire to adopt S.W.^[8] A potential adoptive match for S.W. was identified, adoption appeared likely, and the process of selecting an adoptive home was beginning at the time of the hearing. (See In re Asia L., supra, 107 Cal.App.4th at p. 510 [ 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 ].)

Father relies on In re Asia L., supra, to argue there is insufficient evidence in this case. In re Asia L. is very different. There, the juvenile court found three children adoptable who were in need of specialized placement that was not available within the county. (In re Asia L., supra, 107 Cal.App.4th at pp. 511-512.) There has been no need for specialized placement identified in this case, and the special considerations affecting a proposed adoptive family in In re Asia L. do not apply.^[9]

Disposition

The orders of the trial court are affirmed.

_________________________

Siggins, J.

We concur:

_________________________

Parrilli, Acting P. J.

_________________________

Pollak, J.

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^[1] We will focus only on those facts which are relevant to whether the minor was properly found to be adoptable, which is the single issue contested in this appeal.

^[2] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[3] The petition also noted Mother was presently not caring for her four other children who are under care of relatives due to her history of unstable housing, poor mental health functioning, and substance abuse.

^[4] The supplemental petition also alleged Mother and Father had relapsed, admit to drug and alcohol use, and have failed to seek substance abuse treatment. They were evicted for not paying rent and had no stable residence. Mother was arrested on October 22, 2005, for battery against Father.

^[5] The maternal aunt was previously considered for S.W.s fost/adopt placement, but was ruled out due to a number of concerns.

^[6] The social workers report also stated: The current caretaker is a foster parent not interested in becoming an adoptive parent. A potential adoptive parent has been initially identified, but not yet confirmed at this writing. [] Relatives have been ruled out, or ruled themselves out. . . . Several prospective adoptive families have expressed interest in [the minor]. As of this writing, a match meeting is pending.

^[7] By comparison, an initial January 2006 evaluation characterized the minors behavior as consistent with that of a child who has had a serious trauma and has experienced problems in her primary relationship. Her selective muteness, her excessively careful manner, her abrupt changes in behavior, her anxiety, and her aggression, all indicate that the child has learned to cope with life situations by being excessively careful and cautious. Unfortunately, the anxiety and frustration appears to be so overwhelming at times that it spills over, and she behaves in an excessively aggressive manner in her play and in certain relationships. It is also possible that [the minor] is acting out something she has been exposed to. As stated above, the May 2006 report showed S.W. made considerable progress.

^[8] While Fathers reply brief questions whether the maternal aunt was aware of the minors problems, the record suggests otherwise, in light of this aunts long-term interest in adopting the minor and her history of frequent visitation.

^[9] The Agency has requested that we take judicial notice of the status review report filed in the juvenile court in November 2006. We deferred ruling on the request for judicial notice pending consideration of the merits in this appeal. Father argues it would be improper to judicially notice a report filed five months after the judgment. In light of our conclusion that the trial courts finding of adoptability was supported by substantial evidence, we deny the request for judicial notice as moot.