Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni, No. RIJ114021, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.).
Grace Clark, under appointment by the Court of Appeal, for Defendant and Appellant.
Pamela J. Walls, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.
McKinster, J.
This is an appeal by G.B. (hereafter mother) from the trial court’s order under Welfare and Institutions Code section 366.26 terminating her parental rights to her son, J.B. At the time the trial court terminated mother’s parental rights, J.B. was three months shy of his twelfth birthday. J.B. entered the dependency system at birth when he tested positive for cocaine. When J.B. was two years old, the juvenile court returned him to mother’s custody and he stayed with mother until he was nearly four years old when he was again detained. The juvenile court returned J.B. to mother again for about six months when he was five years old. One month before his sixth birthday, J.B. was detained again and he has not lived with mother since that time.
All further statutory references are to the Welfare and Institutions Code unless indicated otherwise.
Mother raises two claims of error in this appeal. First she contends that the trial court’s finding that J.B. is adoptable is not supported by substantial evidence. Second, mother contends that the so-called child objection exception to termination of parental rights applies in this case.
We conclude mother’s claims are meritless. Therefore, we will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We will recount the specific facts pertinent to mother’s claims in our discussion of those issues. To provide a context for those issues, it is sufficient to note that after J.B. tested positive for cocaine at birth in December 1998, Los Angeles County Department of Children and Family Services (DCFS) filed a section 300 petition with respect to J.B. and placed him in foster care. DCFS returned J.B. to mother’s custody in June 2000 after she completed her reunification plan which included drug rehabilitation. In July 2001, the juvenile court terminated jurisdiction.
In September 2002, DCFS filed a second dependency petition and detained J.B. after mother tried to commit suicide. DCFS placed J.B. in foster care where he remained until May 2004, when he was returned to mother’s custody under a plan of family maintenance. In November 2004, mother tested positive for cocaine. As a result, DCFS removed J.B. from mother’s custody and placed him in the home of a previous caretaker. In February 2007, J.B.’s caretaker apparently moved from Los Angeles to Riverside County and his dependency case was transferred, accordingly.
Riverside County Department of Public Social Services (DPSS) filed a section 387 petition in November 2007 to remove J.B. from the custody of his caretaker because she was financially unable to care for the child. DPSS placed J.B. in foster care where he remained, albeit in several different foster homes, until June 2010, when he was placed in the home of a prospective adoptive parent. On September 8, 2010, the trial court held the selection and implementation hearing. According to the evidence presented at that hearing, in addition to living for the past two months with a prospective adoptive parent, J.B. had regular weekly contact with this prospective adoptive parent during the five months preceding that placement. At the conclusion of the hearing, the juvenile court found J.B. was likely to be adopted, selected adoption as the permanent plan, and terminated mother’s parental rights.
DISCUSSION
1.
ADOPTABILITY FINDING
Mother contends the juvenile court’s finding that J.B. was likely to be adopted is not supported by substantial evidence because the adoption assessment did not disclose that J.B. suffers from behavioral and emotional problems and as a result is not generally adoptable. In addition, mother asserts that although J.B. was living in the home of a prospective adoptive parent, and therefore was specifically adoptable, the trial court failed to inquire whether there were any legal impediments to that adoption. We agree with respondent’s view that mother’s claims are thinly disguised challenges, first, to the adequacy of the adoption assessment and, next, to the trial court’s purported failure to determine whether there was a legal impediment to the adoption, both of which are forfeited because mother did not raise them in the juvenile court.
At the selection and implementation hearing, mother did not object to the adequacy of DPSS’s assessment of J.B.’s adoptability. Instead, mother’s evidence was directed at showing J.B. did not want mother’s parental rights terminated. Because mother did not object in the juvenile court to the adequacy of the adoption assessment she may not raise that claim for the first time on appeal. (In re Dakota S. (2000) 85 Cal.App.4th 494, 501-502.)
Nor did mother assert her legal impediment claim in the juvenile court. (See In re G.M. (2010) 181 Cal.App.4th 552, 563-564 [“Having not raised the legal impediment question in the trial court, mother failed to properly preserve for appellate purposes her claim of trial court error.”].) As mother correctly notes, the so-called legal impediments to adoption are set out in Family Code sections 8601, 8602, and 8603, which respectively provide that the adoptive parent must be at least 10 years older than the child, a child older than 12 must consent to the adoption, and if the prospective adoptive parent is married but not lawfully separated from his or her spouse, the spouse’s consent to the adoption must be obtained. Mother concedes that none of the statutory legal impediments apply in this case. She argues, however, that case law establishes other legal impediments, such as the prospective adoptive parents’ ability to meet the needs of a “total needs” child (see In re Carl R. (2005) 128 Cal.App.4th 1051, 1062); the prospective adoptive father’s criminal record and history with child protective services (see In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205); and the prospective adoptive parents’ lack of a foster care license and the absence of a preliminary assessment of the prospective adoptive parents (see In re B.D. (2008) 159 Cal.App.4th 1218, 1233).
Mother does not claim that any of the above noted impediments apply in this case. Instead she cites J.B.’s history of behavioral and emotional problems as the impediment to adoption. Although the record includes evidence that shows J.B. had emotional and behavioral problems in the past, mother does not cite any evidence to show that at the time of the selection and implementation hearing J.B. suffered from any serious problem that affected his adoptability. By the time of the selection and implementation hearing, J.B. had been diagnosed with attention-deficit/hyperactivity disorder and depression both of which improved with medication and therapy. The evidence also showed that J.B. had been in his placement with his prospective adoptive parent for two months and before that had visited at least weekly with the prospective adoptive parent for five months. Even if mother had not forfeited the issue by her failure to raise it in the court below, we nevertheless would conclude that the record on appeal does not support mother’s claim that an impediment to adoption existed that should have been addressed by the juvenile court.
The juvenile court’s finding that it is likely J.B. will be adopted, a finding that is a prerequisite to termination of parental rights (see § 366.26, subd. (c)(1)), is supported by substantial evidence, namely the evidence that J.B. was living in the home of a prospective adoptive parent. Evidence that a child is placed in a prospective adoptive home is sufficient evidence to support a finding of adoptability. “The issue of adoptability posed in a section 366.26 hearing focuses on the minor, e.g., whether the minor’s age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor. [Citations.]” (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649, italics omitted.) “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. [Citation.]” (Id. at pp. 1649-1650, italics omitted.)
2.
CHILD OBJECTION EXCEPTION
Mother contends the exception to adoption set out in section 366.26, subdivision (c)(1)(B)(ii) applies in this case and therefore the juvenile court erred in terminating mother’s parental rights. That section provides an exception to termination of parental rights when termination would be detrimental to the child because “[a] child 12 years of age or older objects to termination of parental rights.” (§ 366.26, subd. (c)(1)(B)(ii).) The exception does not apply in this case because J.B. was not 12 years old at the time the trial court terminated mother’s parental rights.
But even if the exception applied, the evidence does not support mother’s claim that J.B. objected to termination of her parental rights. At the selection and implementation hearing J.B. confirmed he would like to talk with mother on the phone and also be able to see her; he wanted to stay in his current home and be taken care of by his prospective adoptive parent, whom he referred to as DP, but he also expected that he would be able to visit with mother; he would be upset if he did not get to see his mother again; and he wanted DP to adopt him and to be his mom. J.B. did not express a clear objection to termination of mother’s parental rights. Therefore, even if the child objection exception were applicable, the evidence does not support a finding that J.B. objected to termination of mother’s parental rights.
DISPOSITION
The judgment is affirmed.
We concur: Ramirez, P.J., Hollenhorst, J.