In re Marc R.
Filed 10/18/07 In re Marc R. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re MARC R., a Person Coming Under the Juvenile Court Law. | |
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. PATRICIA L., Defendant and Appellant. | D050816 (Super. Ct. No. 507591B) |
APPEAL from a judgment of the Superior Court of San Diego County, Harry Elias, Judge. Affirmed.
Patricia L. appeals a judgment terminating her parental rights to her minor son, Marc R., under Welfare and Institutions Code section 366.26.[1] Patricia challenges the sufficiency of the evidence to support the court's findings that Marc was adoptable. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In November 2005 the San Diego County Health and Human Services Agency (Agency) filed a petition on behalf of nine-year-old Marc under section 300, subdivision (b). The petition alleged Patricia was unable to provide regular care for Marc because of her ongoing substance abuse problems. Patricia admitted to using drugs in the past and had served jail time for a drug-related offense. She further admitted she had two older children that had been removed from her care.
The court detained Marc and subsequently declared him a dependent of the court. Following a disposition hearing, the court removed Marc from Patricia's care and placed him in the home of his maternal grandmother. The court ordered Patricia to comply with her case plan and with the Substance Abuse Recovery Management System program (SARMS).
During the next six months, Patricia did not comply with her case plan. She showed poor compliance with SARMS and the court issued a bench warrant for her failure to appear at a SARMS review hearing. In April 2006 Patricia submitted a waiver of reunification services to the court and the court terminated her from the SARMS program.
Marc continued to live with his maternal grandmother and was doing well in her care. His grandmother reported Marc showed some signs of being unable to focus and planned to have him evaluated for Attention Deficit Hyperactivity Disorder (ADHD). A few months later, Marc brought a toy gun to school resulting in a week-long suspension. In October 2006 the social worker reported Marc's grandmother was no longer willing to adopt Marc. The grandmother claimed she suffered from poor health and her husband was not interested in adopting Marc. The Agency removed Marc from his grandmother's care and placed him in the home of another relative caregiver.
The Agency filed a follow up addendum report recommending Patricia's parental rights be terminated and that Marc be placed for adoption. The social worker assessed Marc as adoptable. He was a healthy, happy 11-year-old boy and was doing well in the home of his relative caregiver. Marc had been living in his current placement for about three months and received a great deal of support from his caregiver. He made significant progress in school and was performing at his grade level. The caregiver wanted to adopt Marc and was committed to providing him with a stable home. Marc told the social worker he looked to his caregiver for comfort and support and wanted to be adopted by her.
At the section 366.26 selection and implementation hearing, the court found by clear and convincing evidence that Marc was adoptable and that none of the exceptions to adoption in section 366.26, subdivision (c)(1)(A) applied to preclude termination of parental rights. The court terminated Patricia's parental rights and referred Marc for adoptive placement.
DISCUSSION
Patricia challenges the sufficiency of the evidence to support the court's finding that Marc was adoptable. Specifically, Patricia asserts Marc suffered from emotional problems that render him unadoptable and there is no evidence suggesting Marc would be adopted within a reasonable time.
A
When reviewing a court's finding that a minor is adoptable, we apply the substantial evidence test. (In re Josue G. (2003) 106 Cal.App.4th 725, 732; In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings. We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 52.) Rather, we "accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact." (Id. at p. 53.) The appellant has the burden of showing that there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
The court can terminate parental rights only if it determines by clear and convincing evidence the minor is likely to be adopted. ( 366. 26, subd. (c)(1).) The statute requires clear and convincing evidence of the likelihood adoption will be realized within a reasonable time. (In re Zeth S. (2003) 31 Cal.4th 396, 406; In re Amelia S. (1991) 229 Cal.App.3d 1060, 1065.) In determining adoptability, the focus is on whether a child's age, physical condition and emotional state will create difficulty in locating a family willing to adopt. ( 366.22, subd. (b)(3); In re David H. (1995) 33 Cal.App.4th 368, 379.) "Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor's 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 parent's 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 1642, 1649-1650.) We review the court's finding of adoptability for substantial evidence. (In re Josue G., supra, 106 Cal.App.4th at p. 732; In re Lukas B., supra, 79 Cal.App.4th at p. 1154.)
B
Patricia asserts the court did not have sufficient evidence to support its finding that Marc was adoptable because it did not consider Marc's attention problems in making its determination. Patricia claims Marc needed an ADHD assessment and was having difficulties in school. The social worker did report early in the proceeding that Marc might suffer from ADHD and that he had been suspended from school at one time. However, by the time of the section 366.26 hearing, Marc was no longer behind in school and was performing at his grade level. Further, the evidence showed Marc was adoptable because he was a healthy, intelligent boy with no known developmental delays or concerns. There was no evidence showing that Marc's problems, if any, were so great as to preclude a finding of adoptability. This is particularly true given that Marc was in a prospective adoptive home. His prospective adoptive parent is a relative that understands and meets Marc's physical and emotional needs and is committed to adopting him. Marc informed the social worker he wants to be adopted and that he receives support and comfort from his caregiver. Given this evidence, the social worker believed Marc was adoptable. The court was entitled to find the social worker's opinion credible and give great weight to her assessment. (In re Casey D., supra, 70 Cal.App.4th at p. 53; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1420-1421 [social worker may be expert in assessment and selection of permanent plan for dependent minor].) We cannot reweigh the evidence or substitute our judgment for that of the trial court. (In re Casey D., supra, 70 Cal.App.4th at pp. 52-53.) Substantial evidence supports the court's finding Marc was likely to be adopted.
DISPOSITION
The judgment is affirmed.
O'ROURKE, J.
WE CONCUR:
BENKE, Acting P. J.
McINTYRE, J.
Publication courtesy of San Diego pro bono legal advice.
Analysis and review provided by Poway Property line attorney.
[1] Statutory references are to the Welfare and Institutions Code.
