In re D.M.
Filed 4/2/07 In re D.M. CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SIXTH APPELLATE DISTRICT
In re D.M., A Person Coming Under
the Juvenile Court Law.
SANTA CLARA COUNTY DEPARTMENT
OF FAMILY AND CHILDRENS SERVICES,
H030518
Plaintiff and Respondent, (Santa Clara County
Super. Ct. No. JD15744)
v.
REYNA M.,
Defendant and Appellant.
_______________________________________/
Reyna M. appeals from an order terminating her parental rights to her daughter D. pursuant to Welfare and Institutions Code section 366.26.[1] Appellant contends: (1) the juvenile court erred by failing to appoint a guardian ad litem for her; and (2) there was insufficient evidence to support the juvenile courts finding that D. was adoptable. We find no error and affirm.
I. Statement of Facts
Appellant was 15 years old when she gave birth to D. D. suffers from Vater (Vacterl) Syndrome. Vater Syndrome is a life-threatening condition that includes several birth defects: only three heart chambers; a hole in the left ventricle; an opening between the trachea and esophagus; one kidney; butterfly vertebrae and multiple right rib anomalies; and no anal opening. D. remained at the hospital until she was three months old.
While D. was in the hospital, the staff attempted to educate appellant and D.s father Germaine M. regarding how to care for their medically fragile daughter.[2] Though the parents appeared to love D., they often seemed distracted, missed multiple feedings, and were more focused on each other than on D. Extended family members convinced the staff that they would provide adequate support for the young couple and D. On September 10, 2004, D. was discharged from the hospital and began residing with appellant and the maternal grandparents.
However, appellant failed to cooperate with medical professionals and to take D. to medical appointments. On November 16, 2004, D. returned to the hospital. Both her legs had been fractured three weeks earlier. She had also suffered seizures, retinal hemorrhaging, and brain bleeds, which was consistent with shaken baby syndrome. The medical staff concluded that her injuries were not accidental.
On November 23, 2004, the Santa Clara County Department of Children and Family Services filed a petition under section 300, subdivisions (a) [serious physical harm] and (b) [failure to protect]. Appellant appeared in court at the detention hearing on November 24, 2004. Counsel was appointed to represent her.
On December 13, 2004, a first amended petition was filed. The petition included allegations that Mr. M. accepted full responsibility for D.s injuries. By mid-December, D. had been discharged from the hospital and placed with a foster family, who were skilled in providing care for medically fragile infants.
On January 19, 2005, the jurisdictional and dispositional hearings were held. Appellant was present and represented by counsel. Both parents waived their rights to trial and submitted the matter on the evidence. The juvenile court adjudged D. a dependent child, removed her from parental custody, and ordered reunification services for both parents.
In an interim report dated March 11, 2005, the social worker stated that D. remained medically fragile and was recovering from heart surgery. Her medical needs were extremely challenging. She was eight months old, but had reached the development age of only four months. She still needed surgery to reposition her anus. D. took several medications and was unable to eat solid foods.
According to the social worker, both parents had significant emotional delays that prevented them from understanding the magnitude of D.s medical problems. They did not act appropriately with D. and had difficulty completing their case plans.
In an interim report dated April 15, 2005, the social worker stated that D. remained medically fragile and had been diagnosed as developmentally delayed. She was relying less on the feeding tube and had begun to eat solid food. Appellant had completed a 10-week parenting class, but did not show any sympathy for D. and appeared uninterested in her needs. An addendum report dated April 15, 2005 included the results of the parents psychological evaluations. According to the psychologist, both parents had significant deficits in their cognitive and emotional functioning which would interfere with their ability to understand and care for a baby with significant medical problems and developmental delays. He concluded that they might be capable of raising a healthy baby, but would need significant assistance to care for D.
On July 15, 2005, retained counsel substituted in to represent appellant in the proceedings.
In the six-month review report dated July 15, 2005, the social worker recommended that the juvenile court terminate reunification services and set the matter for a section 366.26 hearing. Appellant failed to understand D.s medical needs, tested positive for amphetamines on three drug tests, had not completed her counseling, behaved inappropriately during visits with D., and continued to deny how D. had been injured. D. remained a medically fragile child and continued residing in the placement with the foster family that had cared for her since November 2004. This family provided her with excellent care and she was attached to them.
On September 7, 2005, the parties agreed that the parents would receive an additional three months of reunification services.
In an addendum report dated December 7, 2005, the social worker again recommended that reunification services be terminated. D. had recently had two surgeries, and now required a colostomy bag. Though she had received instruction from a public health nurse, appellant was unable to change D.s colostomy bag or to calm her during the procedure. Appellant continued to minimize D.s medical needs. Appellant had also tested positive for methamphetamines twice and had not attended a substance abuse treatment program.
On February 27, 2006, the juvenile court terminated reunification services and set a section 366.26 hearing.
In the section 366.26 hearing report dated June 21, 2006, the social worker recommended the termination of parental rights and a permanent plan of adoption. Though D. continued to be medically fragile, her foster family was committed to adopting her. D. had lived with the foster family for 19 months and had established a healthy attachment with them. D. was an adorable, social and outgoing little girl. The home study of the foster family had been completed. The social worker also noted that appellant had moved to Stockton where she gave birth to twins. However, she was still able to attend most of the scheduled visits with D.
On August 9, 2006, the section 366.26 hearing was held. Appellant, who was 18 years old, was present and represented by retained counsel.
Eve Plank, the social worker, testified as an expert in risk assessment and child abuse and neglect as well as permanency planning. She testified that D. was adoptable despite her medical needs, because there was a family that was willing to adopt her and she was making progress with her medical needs. D. had lived with the family for over 20 months and she was attached to her foster mother.
According to Plank, appellant continued to visit D. D. viewed appellant as a playmate. On two occasions, D. pointed to appellant and said, I dont like her. Appellants interaction with D. was sometimes not appropriate.
Appellant testified that she had a bond with D. She believed that she could care for D. She also referred to relatives who were willing to adopt D.
The juvenile court terminated parental rights and freed D. for adoption.
II. Discussion
A. Appointment of Guardian Ad Litem
Appellant contends that all orders issued subsequent to the detention hearing must be set aside. She contends that the juvenile court had a sua sponte duty to appoint a guardian ad litem for her, since she was under 18 years of age. We disagree.
A minor shall appear . . . by a guardian ad litem appointed by the court in which the action or proceeding is pending, or by a judge thereof, in each case. (Code Civ. Proc. 372, subd. (a).) The failure to appoint a guardian ad litem for a minor is not jurisdictional. (Pacific Coast Joint Stock Land Bank of San Francisco v. Clausen (1937) 8 Cal.2d 364, 366.) Thus, a party, who does not make a timely objection in juvenile dependency proceedings to a non-jurisdictional issue, has waived the issue on appeal. (In re Christopher B. (1996) 43 Cal.App.4th 551, 558.) Assuming that the appointment of a guardian ad litem for minor parents is required in juvenile dependency proceedings, here appellant waived the issue by failing to object below.[3]
Appellants reliance on In re D.D. (2006) 144 Cal.App.4th 646 is misplaced. In that case, a presumed father, who was a minor, appealed from an order terminating his reunification services. (Id. at p. 648.) He argued that the juvenile court erred by failing to appoint counsel or a guardian ad litem until the six-month review hearing. (Ibid.) The reviewing court vacated all findings and orders issued subsequent to the detention hearing, because the presumed father did not have either a guardian ad litem or counsel to represent him. (Id. at p. 654.) In contrast to D.D., here appellant was represented by counsel at every hearing.
B. Adoptability
Appellant next contends that there was insufficient evidence to support the juvenile courts adoptability finding.
When a hearing is held pursuant to section 366.26, the juvenile court must make one of four possible alternative permanent plans for the child. ( 366.26, subd. (b)(1)-(4).) The legislative preference for a permanent plan is adoption. (In re Brian R. (1991) 2 Cal.App.4th 904, 923-924.) In order to terminate parental rights and order adoption, the juvenile court must find by clear and convincing evidence that it is likely the child will be adopted. ( 366.26, subd. (c).) We review this finding under the substantial evidence standard. (In re Asia L. (2003) 107 Cal.App.4th 498, 509-510.)
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.] Hence, it 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.] [] 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 Sarah M. (1994) 22 Cal.App.4th 16442, 1649-1650, italics omitted.) [And] in 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. (Id. at p. 1650.)
Here D. is very medically fragile due to birth defects and shaken baby syndrome. Thus, her physical health and disability indicate that she might be considered unadoptable. However, she is also a happy, social, friendly, joyful two-year-old girl. Her foster parents, who had cared for her for over 20 months, were committed to adopting her. The adoption home study for this family had already been completed. Thus, once parental rights were terminated, there would be no impediment to the prospective parents adoption of D. In the unlikely event that the foster parents do not adopt D., appellant stated at the section 366.26 hearing that her relatives were interested in adopting her. Accordingly, substantial evidence supports the juvenile courts finding of adoptability.
Appellant relies on In re Asia L., supra, 107 Cal.App.4th 498 and In reJerome D. (2000) 84 Cal.App.4th 1200, in which the reviewing courts held that there was insufficient evidence of adoptability. However, both cases are factually distinguishable from the instant case. In Asia L., the children had been placed for two to three months with foster parents who had indicated a willingness to explore adoption in the future. (In re Asia L., at p. 512.) In Jerome D., the home study process had not begun and the prospective adoptive parent had a criminal and CPS history. (In re Jerome D., at p. 1205.) Here D. has been living with the prospective adoptive parents for over 20 months, they have a completed adoption home study, and they have no criminal or CPS history.
III. Disposition
The order is affirmed.
_______________________________
Mihara, J.
WE CONCUR:
_____________________________
Bamattre-Manoukian, Acting P.J.
_____________________________
Duffy, J.
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[1] All further statutory references are to the Welfare and Institutions Code.
[2] Mr. M. is not a party to this appeal.
[3] We also note that appellant was an adult when the section 366.26 hearing was held. She did not object at that point to the juvenile courts failure to appoint a guardian ad litem for the prior hearings.
