Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. JD111717-00. John E. Stuebbe, Judge.
Linda J. Conrad, under appointment by the Court of Appeal, for Defendant and Appellant.
B. C. Barman, County Counsel, and Judith M. Denny, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Gomes, J., and Dawson, J.
Sharonne G. appeals from an order terminating her parental rights (Welf. & Inst. Code, § 366.26) to her 9-month-old son. She contends the court erred at an earlier stage of the dependency proceedings when it found the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.) did not apply. Appellant also argues the court erred by denying her petition (§ 388) for reunification services and finding her son was likely to be adopted. On review, we will affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
Appellant gave birth prematurely to William in early August 2006. As a result, the newborn had some minor breathing and feeding difficulties and was admitted to the neonatal intensive care unit (NICU) at the Kern Medical Center (KMC). Fortunately, William suffered no complications and made good progress such that he could be released in two weeks’ time.
Meanwhile, appellant was admitted to KMC’s “3B,” a secured mental health facility, on a “5150 hold.” She had been involved in a physical altercation with an NICU nurse who was holding William. Later the same day, appellant exhibited extremely combative behavior at her residence. Appellant had a diagnosis of bipolar disorder and postpartum psychosis. She was also “noncompliant with her medication.”
Consequently, respondent Kern County Department of Human Services (the department) in mid August detained William and initiated the underlying dependency proceedings. At the detention phase, it appeared the ICWA might apply as appellant and her parents claimed Shosone, Chickasaw, and Cherokee Indian heritage. The record documents the department’s effort to serve notice pursuant to ICWA on 22 Shosone and Cherokee Indian tribes, the Bureau of Indian Affairs, appellant, and the child’s father. To the extent the noticed tribes responded to the department’s effort, those tribes reported William was ineligible for tribal membership.
In September 2006, the Kern County Superior Court exercised its dependency jurisdiction (§ 300, subd. (b)) over William and found the department gave proper ICWA notice. At the September jurisdictional hearing, the court also found good cause to appoint two mental health specialists to evaluate appellant and determine whether she suffered from a mental disability rendering her incapable of utilizing reunification services (§ 361.5, subd. (b)(2)). Due to the time it would take to complete these evaluations, the court deferred its dispositional hearing until mid November. Appellant’s time for reunification having started to run by this point, the court further directed the department to assist her in beginning services.
In the meantime, appellant presented a demonstrated danger of inflicting substantial physical harm upon others. As a result, the court in October 2006 ordered appellant confined for 180 days of mental health treatment pursuant to section 5300. During the same month, the department also renoticed the tribes which had yet to respond regarding the upcoming dispositional hearing.
As of November 2006, the department recommended the court order reunification services for appellant. At the time, she was cooperative and assisting in changing her behavior. Also, the psychologists who evaluated appellant agreed she suffered a mental disability but reached opposite conclusions regarding her capacity to utilize reunification services. In particular, Dr. Eugene Couture believed appellant would be able to benefit from services if she continued to comply with her current treatment and followed up with outpatient care once she was released from confinement.
Due to continuances sought by first the department and then appellant, the court did not conduct its dispositional hearing in William’s case until January 2007. Meanwhile, though, the court did determine that William was not subject to ICWA because no determinative evidence that ICWA applied had been received in the intervening 60 days since notice was complete.
As of January 2007, the department no longer recommended reunification services for appellant. Sometime after the two psychological evaluations were completed, appellant’s behavior became increasingly problematic. She was involved in numerous altercations, both verbal and physical, with other patients and staff. She appeared neither able nor willing to work to improve her symptoms. Crestwood Behavioral Center (Crestwood), the psychiatric facility to which appellant had been committed, discharged her to KMC’s 3-B unit in mid-December. By the end of the year, appellant was transferred to Metropolitan State Hospital in Southern California.
Once Dr. Couture reviewed Crestwood’s records regarding appellant, he changed his opinion regarding the benefit of reunification efforts. It was clear to him appellant was unable to make use of the services provided to her and her inability was consistent with her mental illness and prior behavior. Given appellant’s continued inability to function in a structured environment, such as Crestwood, she was unlikely to be able to benefit from a reunification program in a reasonable amount of time. There was also documentation that appellant told staff she did not wish to benefit from reunification and rather wished for her mother to raise William so that she (appellant) could party. In Dr. Couture’s opinion, the statement attributed to appellant was consistent with her other behavior and believable. Dr. Couture concluded appellant’s mental disorder rendered her incapable of utilizing reunification services.
Consequently, in January 2007, the superior court adjudged William a dependent child, removed him from appellant’s custody, and denied appellant reunification services pursuant to section 361.5, subdivision (b)(2). Having done so, the court also set a section 366.26 hearing to select and implement a permanent plan for William. Although the court gave appellant notice of her writ remedy under section 366.26, subdivision (l), she did not challenge the court’s setting order.
In advance of the section 366.26 hearing, the department prepared a social study in which it recommended that the court find William adoptable and order parental rights terminated. The infant had no serious health concerns or developmental problems. He smiled and babbled, did not appear very shy and was apparently emotionally and mentally on target. His personality, age, appearance, health, development, mental and emotional status, and ability to attach made him a good candidate for adoption. His current caretakers were not willing to adopt him. Nevertheless, it was highly likely in the opinion of an adoption social service worker that an adoptive home could be found. The department had identified prospective adoptive parents who were motivated to adopt William and had been spending each day with him for several weeks. The department expected the couple would complete the requirements for foster care certification within a month’s time at which point the department would place William in the couple’s home.
On the figurative eve of the section 366.26 hearing, appellant petitioned (§ 388) for reunification services. She alleged she had completed treatment at Metropolitan State Hospital and returned to Kern County. She was confined once again to Crestwood on a second 180-day commitment. She was “attending groups” at Crestwood and had “job duties.” She submitted three certificates of appreciation she recently received from Crestwood. She believed she was stable enough to benefit from family reunification services and that services would benefit William by giving him the opportunity to “spend life with biological mother.”
The court heard testimony from appellant on her section 388 petition on the May 2007 date set for the section 366.26 hearing. She attributed her previous inability to care for William to postpartum emotional distress. She believed she was currently able to care for William because she was able “to do the things that I -- I’m learning.” She claimed she was “using [her] coping skills very well” as evidenced by the certificates of appreciation she received. Crestwood was also assigning her work which she was completing.
Appellant testified she did not plan to be at Crestwood “very long.” Under further questioning, she testified she was placed on a second 180-day hold on April 4, 2007, and would remain confined until approximately October 2007.
According to appellant, it would be in William’s best interest for her to receive services because she saw herself as a good mother who loved her son with all her heart. William needed her and no one else could give him the love that she could provide.
While there were no parenting classes available at Crestwood, appellant was willing to go to any classes selected by the court once she was released. She was attending anger management classes at Crestwood. While she testified she could go outside of Crestwood on outings, she did not know whether she would be able to attend court-ordered classes at this point.
At the department’s request, the court took judicial notice of its April 4, 2007, order remanding appellant for additional post-certification treatment not to exceed 180 days. The court issued its order having found that appellant had recently attempted, inflicted or made a serious threat of substantial physical harm upon another person such that appellant still presented a demonstrated danger of inflicting substantial physical harm upon others.
Following argument, the court denied appellant’s petition. Although the court found appellant to be very genuine and “trying her best to get things under control,” the court concluded appellant did not meet her burden under section 388. Moving on to the issue of permanency planning, the court found William adoptable and terminated parental rights.
DISCUSSION
I. ICWA Argument
Appellant contends the juvenile court failed to ensure the department complied with ICWA notice requirements in two respects. One, she claims the department failed to notify any Chickasaw tribe. Two, she complains several of the notices were misaddressed or misdirected. Thus, she concludes there was insufficient evidence to support the court’s January 2007 finding that ICWA did not apply.
The court’s January 2007 finding was part of the court’s disposition which was reviewable by way of an extraordinary writ proceeding once the court set a section 366.26 hearing. (In re Anthony B. (1999) 72 Cal.App.4th 1017, 1022.) However, appellant did not seek extraordinary writ relief following the setting order. Thus, the court’s disposition is final and no longer subject to review on appeal from the termination order. (§ 366.26, subd. (l).) Consequently, appellant has waived her opportunity to raise her ICWA compliance issues. (In re Pedro N. (1995) 35 Cal.App.4th 183, 185 (Pedro N.).)
Her retort is that, as a parent, she cannot waive ICWA requirements on behalf of a tribe. While we do not disagree with appellant’s claim (In re Desiree F. (2000) 83 Cal.App.4th 460, 471 (Desiree F.)), this does not mean she may now raise the notice issue. In Pedro N., this court held a parent who fails to timely challenge a juvenile court’s action regarding ICWA is foreclosed from raising ICWA notice issues once the court’s ruling is final in a subsequent appeal. In so ruling, we specifically held we were only addressing the rights of the parent, not those of a tribe. We did not foreclose a tribe’s rights under ICWA due to a parent’s appellate waiver. (Pedro N., supra, 35 Cal.App.4th at p. 185.)
After we invited waiver of oral argument, respondent asked this court to consider taking additional evidence regarding notice to the Chickasaw Indian tribe. Under the circumstances, we will deny the request as moot.
II. Petition for Reunification Services
Appellant next contends the court erred when it denied her modification petition. In her estimation, she showed changed circumstances in that she no longer experienced emotional problems triggered by post-partum distress and she was doing very well with her treatment at Crestwood. She further argues reunification services would have served William’s interest in belonging to a family unit, protected from abuse and neglect and having a permanent and stable home. Having reviewed the record, we conclude the court did not abuse its discretion by denying the modification petition.
First, appellant oversimplifies the reasons for William’s dependency and the decision to deny her services. Even had the court accepted appellant’s claim that she overcame her postpartum difficulties, there remained the issue of her bipolar disorder. We note in this regard that appellant did not offer any evidence from Crestwood or her treating physicians on the subject. At most, there was her testimony that she was stable enough to benefit from family reunification services. Although appellant apparently chose to overlook her bipolar disorder, the court did not have to do the same. Furthermore, the recent remand for an additional 180-days of confinement, by itself, called into serious question whether appellant was making progress.
Second, as a matter of logic, a change of circumstance or new evidence which would justify setting aside the order denying appellant services (In re Marilyn H. (1993) 5 Cal.4th 295, 309) would have to address the basis for the court’s original denial of services. As summarized above, the court denied appellant reunification services due to her mental illness and consequential inability to benefit from services (§ 361.5, subd. (b)(2)). However, except for appellant’s claim that she was sufficiently stable, there was no evidence that her circumstances had changed either as to her mental illness or her inability to benefit from services. In our view, the court does not abuse its discretion by finding an insufficient change of circumstance to set aside an order denying services if the parent does not show a change of circumstance which challenges, if not refutes, the basis for the original denial of services. (See In re Audrey D. (1979) 100 Cal.App.3d 34, 43.)
Third, because William was a newborn when detained, services were limited to six months from the date he entered foster care. (§ 361.5, subd. (a)(2).) By statute, William was deemed to have entered foster care on the September 2006 date of the jurisdictional hearing. (§ 361.5, subd. (a).) Thus, by May 2007, when appellant petitioned for services, that six-month period had long since passed and services were no longer available.
This leads us to our final observation regarding appellant’s petition for services. Even had there been an adequate showing of changed circumstances, the fact remained that the focus of these proceedings was no longer on appellant’s interest in being a loving parent, but rather on William’s interest in a permanent and stable home. (In re Marilyn H., supra, 5 Cal.4th at p. 309.) Although William was not as yet in an adoptive home, the evidence was undisputed that he was adoptable and that the department had identified a couple committed to adopting him. In any event, given appellant’s on-going mental health commitment and the lack of positive prognosis for the future, the court could properly find that an order for services would not advance William’s interests.
We therefore conclude the court did not abuse its discretion by denying appellant’s petition for services. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
III. William’s Adoptability
Before a court may terminate parental rights, it must find by clear and convincing evidence that it is likely the dependent child will be adopted. (§ 366.26, subd. (c)(1).) The adoptability question focuses on the dependent child, e.g., whether his or her age, physical condition, and emotional state make it difficult to find a person willing to adopt. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) It is not necessary that the child already be in a potential adoptive home or that there be a proposed adoptive parent “waiting in the wings.” (In re Jennilee T. (1992) 3 Cal.App.4th 212, 223, fn. 11.)
In this case, there was substantial evidence that William was likely to be adopted. (In re Sarah M., supra, 22 Cal.App.4th at p. 1649.) His pleasant personality, young age, appearance, health, development, mental and emotional status as well as ability to attach made him a good candidate for adoption. It was highly likely in the opinion of the adoption worker that the department could find an adoptive home for William. Indeed, the department had identified a couple, whom it had favorably assessed, as prospective adoptive parents for William. The couple was motivated to adopt William, had been spending each day with him for several weeks, and was taking the necessary steps to have him placed with them.
Appellant downplays this evidence. Instead, she concentrates on William’s premature birth and initial health problems, adverse parental background, and placement history, as well as his current caregivers’ unwillingness to adopt him, and the fact that he was not as yet in an adoptive placement. She concludes William was difficult to place and therefore not generally adoptable. Consequently, she further argues, absent proof of identified prospective adoptive parents or other families interested in adopting a child with William’s characteristics, the court could not find William adoptable. We disagree.
Notably, appellant raised none of these concerns in the trial court where her points and their legal significance, if any, could have been litigated. By arguing them now, appellant essentially asks this court to reweigh the evidence and draw inferences which do not support the judgment. However, neither is within our appellate purview.
The power of an appellate court, when asked to assess the sufficiency of the evidence, begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the decision, if possible. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379.) We may not reweigh or express an independent judgment on the evidence. (In re Laura F. (1983) 33 Cal.3d 826, 833.) Moreover, issues of fact are matters for the trial court alone. (In re Amy M. (1991) 232 Cal.App.3d 849, 859-860.)
Not only does appellant draw inferences to reverse the judgment, her inference drawing is far from reasonable or legitimate. For example, the record discloses that William’s premature birth did not result in any long-term complications. Rather, his problems were minor and short-lived. In addition, the fact that William had been in two placements since birth and his current caregivers were not interested in adopting him did not necessarily mean the infant was not adoptable. The placement change and the caregivers’ unwillingness could just as likely have had nothing to do with William. Further, there is no evidence to support appellant’s inference-drawing that William’s adverse family background necessarily made him an unlikely candidate for adoption. At best, she cites the availability of adoption assistance aid for children from adverse family backgrounds. (See § 16120.) Further, the fact that William was not in an adoptive placement as of the section 366.26 hearing means little in the absence of other evidence given that the law does not require there be a proposed adoptive parent “waiting in the wings” to support an adoptability finding (In re Jennilee T., supra, 3 Cal.App.4th at p. 223, fn. 11.)
Under these circumstances, we conclude there is no merit to appellant’s argument and the court’s adoptability finding is supported by substantial evidence.
DISPOSITION
The order terminating parental rights is affirmed. Respondent’s request to consider additional evidence is denied.