In re Samuel A.

Filed 1/29/07 In re Samuel A. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Gary

G. Bischoff, Temporary Judge. (Pursuant to Cal. Const., art. VI,  21.) Affirmed.

Michelle L. Morris, under appointment by the Court of Appeal, for Defendant and Appellant.

Benjamin P. de Mayo, County Counsel, Dana J. Stits and Paula

A. Whaley, Deputy County Counsel, for Plaintiff and Respondent.

Andrea R. St. Julian, under appointment by the Court of Appeal, for the Minors.

Manuel A. appeals from a judgment terminating his parental rights and freeing his children for adoption. He contends there is insufficient evidence his children are adoptable, but we disagree and affirm the judgment.

* * *

Manuel and Amy P. had four children together: Samuel, age 13, Eve, age 8, Robert, age 3, and Maya, age 2. The family lived with Amys parents and did not become involved with social services until December 2004, when Maya was born with amphetamines in her system. Amy, it turned out, had an unresolved drug problem, and Manuel drank excessively and only lived with the family off and on.

Under the initial case plan, Amy and Manuel were allowed to live with the children at the grandparents house. But they failed to curb their substance abuse, so the court prohibited them from living there. Samuel and Eve said they felt safe with their grandparents, and Robert was bonded to his grandfather. After suffering mild withdrawal symptoms, baby Maya was released from the hospital and placed with her siblings.

Six months into the case, the parents showed no signs of progress, but the court extended their services for another six months. When the parents squandered that opportunity as well, the court terminated their services and set a hearing to decide on a permanent placement plan for the children.

By that time, the grandparents had become accustomed to caring for the children without the help of the parents. At first, they needed assistance getting their home cleaned up and organized, but they soon settled into their role as the childrens sole caretakers. Grandmother has had a hip replaced and uses a walker to get around. She also undergoes dialysis for kidney problems. Grandfather has had cancer, but is in good overall health and works as a pipe fitter. While it has not been easy, the grandparents have been able to provide appropriate care for the children.

Save Maya, all of the children have special needs. Samuel has asthma. He was also diagnosed with attention deficit disorder, but that was successfully treated with medication. With the help of a therapist, Samuel has worked through issues of anger, abandonment and depression associated with his mothers departure from the home. He is protective of his mother and has consistently expressed his desire to have her return to the home. At the same time, though, he has always been happy living with his grandparents. In school, he has an individualized education program and attends special classes to address learning deficits in reading and English. Developmentally and emotionally, he is on track, although he tends to act in a parental role with respect to his siblings.

Leading up to the permanency hearing, the social worker asked Samuel his preference regarding placement, and he said he wanted to remain in the family and be adopted by his grandparents. When the social worker explained to him that would mean not living with his parents, Samuel became sullen. However, he was consoled by the fact he would be able to remain with his grandparents.

Eve is happy living with her grandparents. In fact, she said she would be content if she only saw her parents on weekends. Although initially she exhibited considerable anxiousness over her familys situation, therapy has helped Eve to the point where she no longer needs counseling. She is developmentally and behaviorally age appropriate, but like Samuel, gets tutoring and attends special classes to keep up in school. Her health is problematic; she has struggled with enuresis, urinary tract infections, respiratory problems and obesity. She also has asthma.

Robert has asthma, too, as well as ear problems and an enlarged head. Testing revealed he has a moderate receptive language delay, a severe expressive language delay and below-average cognitive skills. He participates in speech and language therapy and is scheduled to attend an early intervention program. He is close to his grandparents, who describe him as a quiet, but loving child.

Maya is also attached to the grandparents. Due to her mothers drug use, she is at risk for developmental problems, but so far none have come about. She is a healthy, happy baby who, by all appearances, is perfectly comfortable being cared for by her grandparents.

A senior social worker who assessed the childrens adoption prospects determined it is probable they will be adopted. In this regard, it was noted the grandparents love the children and are willing to adopt them. The grandparents also stated they are open to maintaining on going contact between the children and their parents.

That may be rather difficult with respect to Manuel, however, because in April 2006, two months before the permanency hearing, he was jailed in Los Angeles. Although the nature of his alleged offense is not disclosed in the record, one would suspect it is rather grave, considering his bail was set at $1,000,000.

At the permanency hearing, no testimony or argument was presented. Instead, the parties submitted the matter on the social workers reports. Thereupon, the court followed the social workers recommendation to terminate parental rights and ordered the children placed for adoption.

I

Manuel argues there is insufficient evidence adoption is a viable placement plan for Samuel. In so arguing, he claims the record shows Samuel objected to being adopted and the court failed to consider Samuels feelings in this regard. Manuel also faults the court for failing to inquire about Samuels absence from the permanency hearing. We find Manuels arguments unpersuasive.

Adoption is the preferred placement plan when, as here, a child cannot be returned to his or her parents. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) Only if adoption is not possible, or if there are countervailing circumstances, or if it is not in the childs best interests are other, less permanent plans, such as guardianship or long-term foster care considered. [Citation.] (Id. at p. 574.)

Manuel argues the court should have opted for one of these less permanent plans because Samuel objected to adoption. But the fact is, Samuel told the social worker he wanted to be adopted by his grandparents. True, he became sullen when told this would mean he would not be able to live with his parents. But he was consoled by the news he would be able to remain with his grandparents. This is hardly surprising, considering Samuel has always enjoyed living with his grandparents. At the start of the case, he experienced feelings of sadness and anger about his familys situation, but by the end of the case, he had worked through those issues in therapy. While he obviously has feelings toward his mother, he has never expressed any opposition to being adopted by his grandparents. Therefore, the so-called child-veto exception to adoption does not apply. (See Welf. & Inst. Code,  366.26, subd. (c)(1)(B).)

Manuel also complains the court failed to consider Samuels wishes regarding adoption. (Welf. & Inst. Code,  366.26, subd. (h)(1).) However, Samuels feelings about the case were well documented in the record: He hoped his mother would be able to return to the family, but he was quite happy living with his grandparents without her. And as explained above, he never objected to being adopted. In short, there was sufficient evidence in the record from which the trial court could consider Samuels wishes. (See In re Amanda D. (1997) 55 Cal.App.4th 813, 820 [evidence regarding childs wishes need not be in the form of direct testimony in court or chambers; it can be found in court reports prepared for the hearing].)

Manuel further faults the court for failing to determine whether Samuel was given proper notice of the permanency hearing and not inquiring into why he was not present at the hearing. (Welf. & Inst. Code,  366.26, subd. (h)(2).) However, Manuel never said a word about these issues in the trial court and has therefore waived his right to raise them now. (In re Amanda D., supra, 55 Cal.App.4th at pp. 819-820.) In any event, the record shows Samuel was notified of the permanency hearing, and his feelings about the case were, as explained, well documented in the social workers reports. Under these circumstances, there is no basis for reversal on the procedural grounds alleged by Manuel.

II

Next, Manuel challenges the trial courts decision that the children are likely to be adopted. (See Welf. & Inst. Code,  366.26, subd. (c)(1).) Particularly, he contends [s]ubstantial evidence does not support a finding that all of the children were adoptable due to the childrens medical, developmental and educational needs as well as maternal grandmothers severe health issues. This is especially true since the children were only adoptable since the grandparents were willing to adopt.

The issue of adoptability posed in a [Welfare and Institutions Code] 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.] (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) However, [u]sually, 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. (Id. at pp. 1649-1650, italics omitted.)

The grandparents in this case have made it clear they are willing to adopt all the children. Unlike some cases, where the prospective adoptive parents have spent relatively little time with the minors in question, these grandparents know full well what adoption will entail. The children have lived their entire lives with them. And since 2005, the grandparents have been caring for the children on their own, without help from the parents. While this has not been easy, the grandparents have been up to the task. They may suffer from various health ailments, but this has not prevented them from meeting the childrens needs. All of the children are relatively happy, and despite some individual health issues, they seem to be getting along quite well. There is no evidence their special needs are not being met.

Manuel speculates the children may become legal orphans if something happens to the grandparents. However, the trial court did not condition its finding of adoptability on the basis the children would be adopted by their grandparents. Rather, the court made a general finding that the children are likely to be adopted. This finding is supported by substantial evidence and will not be disturbed on appeal. (Compare In re Jerome D. (2000) 84 Cal.App.4th 1200, 1204-1206 [reversing adoptability finding which was based solely on the current caretakers willingness to adopt].)

Manuel also suggests the children may be difficult to place for adoption because they are part of a sibling group. That factor may affect a childs adoptability prospects, but only when no prospective adoptive parents have been identified. (See Welf. & Inst. Code,  366.26, subd. (c)(3).) Since the grandparents have been identified as prospective adoptive parents for the children, that factor does not apply in this case.

The judgment is affirmed.

BEDSWORTH, ACTING P. J.

WE CONCUR:

MOORE, J.

IKOLA, J.

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