Opinion
E044142
4-24-2008
In re J.G., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. MARTHA S., Defendant and Appellant.
Kate M. Chandler, under appointment by the Court of Appeal, for Defendant and Appellant. Joe S. Rank, County Counsel, and Sophia H. Choi, Deputy County Counsel, for Plaintiff and Respondent. Nicole Williams, under appointment by the Court of Appeal, for Minor.
NOT TO BE PUBLISHED
Martha S. (mother), the mother of J.G. who is now eight years old, appeals from an order terminating her parental rights to this son. On appeal she raises only one issue. She contends that there is insufficient evidence that J.G. is adoptable. We find that substantial evidence supports the termination order. We will therefore affirm the order.
J.G. has four other older siblings who are not parties to this appeal; nor is his father a party to the appeal.
FACTS AND PROCEDURAL HISTORY
Mother has a long history with the dependency system. One of her sons, now 19 years old, tested positive for drugs at birth and was removed from her custody. Mother allowed her mother to obtain legal guardianship of him. Mother admits a long history of drug abuse. She had been a heroin user for 17 years, but mother has been using methamphetamine for the last few years. Mother admitted to a social worker that she had been convicted and served time in state prison on four different occasions for being under the influence of drugs and possession of drugs for personal use and sale.
The Riverside County Department of Public Social Services (DPSS) received a referral alleging general neglect, and mother was leaving J.G. with elderly paternal grandparents while she was using drugs. DPSS filed a petition pursuant to Welfare and Institutions Code section 300, subdivisions (b) and (g) on January 20, 2005, when J.G. was then four years old. As to father, it alleged that his whereabouts were unknown and that he was not supporting J.G. The petition alleged mothers long history of drug abuse and her current use of methamphetamine as evidenced by a recent failed drug test. It alleged that mother left J.G. with the paternal grandparents who were not capable of handling J.G.s behavior. It alleged that mothers house had little food, was unhealthy, malodorous and unsafe. It further alleged that she had had another child removed when the child tested positive for drugs at birth and mother failed to complete reunification services as ordered by the court.
All further statutory references are to this code.
A combined jurisdictional/dispositional hearing was held on February 17, 2005. The pleadings were amended, and, as amended, the court sustained the petition and found that J.G. came within section 300, subdivisions (b) and (g). The court declared J.G. to be a dependent of the court and ordered that he be maintained with mother under a family maintenance plan.
A six-month review hearing was held on August 17, 2005. Mother was ill, having been diagnosed with hepatitis C, and was having financial difficulties. The court ordered that J.G. remain in mothers home under the family maintenance plan and ordered six more months of services.
On November 3, 2005, DPSS filed a supplemental petition pursuant to section 387, alleging that mother had failed to comply with her service plan and that her whereabouts were then unknown. She had not drug tested nor entered a drug program, and she stopped her therapy. A hair follicle test later showed that mother had been using methamphetamine for three months.
A combined jurisdictional/dispositional hearing was held on January 4, 2006. The court sustained the petition and removed J.G. from mothers custody. It ordered further reunification services for mother. J.G. was placed with a paternal aunt and her husband with whom he has now lived for over two years. They have been involved in J.G.s life since birth. The paternal aunt often provided food, clothing and other necessities for J.G.
A review hearing was held on July 5, 2006. The court granted an additional six months of reunification services. The report prepared for that hearing stated that J.G. was healthy and developing normally. He was, however, in psychotherapy. His behavior was often oppositional. He did not follow directions well and whined and cried if he did not get his way. At school he spat in a girls face.
A review hearing was held on January 8, 2007. Mother was not present. The court found that reasonable services had been provided, that mother had not completed her case plan, and that return of J.G. would be detrimental to him. The court terminated reunification services, set a section 366.26 hearing and notified mothers attorney of her right of writ review. Mother did not seek writ review of the courts orders and findings.
A report filed in anticipation of the selection and implementation hearing stated that the paternal aunt was ambivalent about adopting J.G. due to "loyalty to her brother." However, she later changed her view and wanted to adopt J.G. J.G. was assessed as adoptable in the reports filed by the social worker. He was healthy and developmentally on track. He is intelligent and doing very well in school. He is friendly and likeable. His behaviors had improved while living with his aunt and uncle. He initially had abandonment fears if his aunt left the house without him, but that was no longer a problem. He also had bad dreams about his life with mother, often after visitation with mother. He feared insects, especially cockroaches, as a result of substandard housing he had experienced in mothers custody. Mothers visitation was not regular, and J.G. did not understand why his mother did not want to see him. He continued in therapy to address abandonment and other issues. His therapist eventually recommended that J.G. see his mother only in a therapeutic setting. His behavior, depression, bad dreams and sleeplessness have improved with therapy and when he had not seen his mother recently.
The selection and implementation hearing was held on August 8, 2007. Mother was not present. She had been ordered to appear at the prior hearing held on May 8, 2007, and her attorney had had no contact with her since that date. Her attorney requested that the court implement a plan other than adoption by the paternal aunt and uncle which was DPSSs recommendation. The court found that adoption was the most appropriate plan and that no exceptions to adoption existed. The court further found that it was likely that J.G. would be adopted and terminated parental rights.
DISCUSSION
Mother appeals raising only the issue of the sufficiency of the evidence to support the courts finding that J.G. is adoptable.
Preliminarily, the county counsel contends that mother has forfeited the right to raise the issue of adoptability because mothers attorney did not object at the section 366.26 hearing that the child was not adoptable. We reject the contention out of hand since the issue of the sufficiency of the evidence to support an adoptability finding is subject to the general rule that the insufficiency of the evidence can always be raised on appeal without prior objection. (In re Brian P. (2002) 99 Cal.App.4th 616, 622-623.) However, any direct challenge to the adequacy of the adoption assessment report itself is forfeited by failure to object below. (Ibid.) To the extent mother appears to challenge the adequacy of the adoption assessment report, commencing at page 15 of her opening brief, it is forfeited for failure to object in the trial court. We will address, however, whether the record as a whole supports the courts finding that J.G. is adoptable.
A courts finding by clear and convincing evidence that a child is adoptable is reviewed using the substantial evidence test. The clear and convincing evidence standard is for the edification and guidance of the trial court. It is not a standard for appellate review. On appeal, the clear and convincing standard disappears. If there is substantial evidence to support the courts findings and order, we must affirm. We resolve all conflicts in the evidence in favor of the judgment. (In re J.I. (2003) 108 Cal.App.4th 903, 911.)
Mother contends she does not want J.G. to end up a judicially created orphan and speculates in various ways that he may not ever be adopted. Mother states that J.G. had about nine seizures in his first three years, claims that he has ADHD and has had behavioral/psychological problems to show that he is not adoptable. Mother claims that these deficits have not been thoroughly investigated and assessed, and that failure is consequently fatal to the adoptability finding. We disagree. At the very most, mother can only point to a conflict in the evidence.
The issue of adoptability focuses on the characteristics of the child, i.e., whether the childs age, physical condition and emotional state make it likely he or she will be adopted by someone. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650.) J.G. was seven years old at the time of the section 366.26 hearing. He has lived with his prospective adoptive parents for two years now, and he has become a part of the family. The adoptive parents are committed to him. They are well aware of the claimed seizures, and his behavioral problems have improved greatly while in their care and with diminished maternal visitation. Therapy has helped him deal with the effects of the abuse he suffered while in his mothers care. He is a bright and friendly child who is likeable.
At the time of the filing of the initial petition in this case, when J.G was four years old, mother stated that J.G had had nine seizures, the last of which had occurred nine months before the petition was filed. J.G. had a CAT scan in November 2004, and he had no seizures since then. The doctor stated J.G. needed no medication. No diagnosis of epilepsy has ever been made.
It is indeed ironic that mother would point to the residual effects of his neglect and abuse suffered in her care as a reason to deny his adoption by loving relatives who are committed to him.
In order for a court to find a child adoptable pursuant to section 366.26, subdivision (c)(1), the court must find by clear and convincing evidence that the child is likely to be adopted within a reasonable time either by the prospective adoptive family or some other family. (In re Scott M. (1993) 13 Cal.App.4th 839, 844.) The fact that a child is already with a prospective adoptive family is sufficient evidence that the child will be adopted within a reasonable time by either the prospective adoptive parents or some other family. (In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.) The evidence we have recounted constitutes substantial evidence to support the courts adoptability finding. This is clearly not a case where J.Gs age, physical and mental condition makes it unlikely that no one, other than the present caretakers, would ever adopt him. (Id. at pp. 1650-1651.) He is a desirable little boy who has made substantial progress in overcoming the damage caused when he was in the custody of his birth mother.
DISPOSITION
The judgment is affirmed.
We Concur:
Gaut, J.
Miller, J.