Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court No. CK02229 of Los Angeles County, Joan Carney, Juvenile Court Referee.
Andre F. F. Toscano, under appointment by the Court of Appeal, for Objector and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel and Kirstin J. Andreasen, Associate County Counsel, for Petitioner and Respondent.
ALDRICH, J.
INTRODUCTION
Yvonne A. appeals from the orders of the juvenile court that terminated her parental rights to 12-year-old Maurice A. (Welf. & Inst. Code, § 366.26.) We conclude that the record supports the court’s conclusion that Maurice is adoptable and there is no evidence that Yvonne’s and Maurice’s attorneys inadequately represented them. Accordingly, the order is affirmed.
All further statutory references are to the Welfare and Institutions Code, unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
1. The dependency background
This family, including Maurice’s seven half-siblings, has been involved with the Department of Children and Family Services (the Department) since before Maurice was born. In May 2000, the Department removed Maurice from Yvonne’s custody. In June 2000, the juvenile court sustained a petition under section 300, subdivisions (a), (b), (g) and (j), finding that the child was at risk of physical harm because Yvonne inappropriately disciplined his older half-sister.
Maurice’s many half-siblings are not parties to this appeal. Nor is the child’s father.
Before the disposition hearing, the Regional Center assessed Maurice and determined that he qualified for services. At the age of two, he showed significant delays in speech and language, and his gross motor skills were uncoordinated. He showed immediate improvement after he commenced services with the Regional Center. The juvenile court declared Maurice had “special needs.”
Maurice was placed in L.W.’s home in March 2001. A year later, in March 2002, Yvonne’s reunification services were terminated. During the time that Maurice was living with L.W., he developed a “strong emotional bond” with her. L.W. cared for Maurice well and provided him with basic needs, and a safe, loving, and nurturing environment. The social worker observed that L.W. attended to Maurice’s physical and emotional needs and she was committed to the responsibility, safety, and welfare of Maurice. The social worker found by clear and convincing evidence that Maurice was adoptable and that L.W. was willing to adopt him.
In advance of the section 366.26 hearing, L.W. agreed to have an “open” adoption, meaning that she would allow Maurice to maintain an ongoing relationship with his half-siblings.
At the section 366.26 hearing, held in November 2002, the juvenile court found by clear and convincing evidence that Maurice was adoptable. The court found Maurice did not have “sufficient behavioral problems that would keep him from being adopted by Ms. W[.] or by anyone else” that is, by “any other family that can understand and appreciate his needs.” (Italics added.) The court stated further, “I don’t think that they are special needs that categorize him as an absolute behavioral problem or that behavioral problems exist that can’t be dealt with therapy and/or medication if necessary, but he is adoptable.” Notwithstanding its adoptability finding, the court declined to terminate parental rights on the basis of the sibling-relationship exception to adoption found in section 366.26, subdivision (c)(1)(B)(v) [formerly § 366.26, subd. (c)(l)(E)]. The court found that, although the exception had not been proven, Maurice should be given an opportunity to develop a relationship with his many siblings and that Yvonne appeared to be the only one to take him to visit them. Accordingly, the court ordered the Department to investigate legal guardianship with L.W.
2. The guardianship
By January 2003, the Department reported that Maurice was no longer a Regional Center client. He was not on any psychotropic medication.
The juvenile court declared L.W. Maurice’s legal guardian in January 2004. At the time, the court reiterated that Maurice was adoptable but an exception to adoption existed. The Department reported in June 2004, that Maurice said he wanted to continue to live with L.W. Although periodically, once every three to four months, he said he wanted to live with Yvonne, these assertions were not consistently made.
By December 2004, however, Yvonne had not visited Maurice in six months and he had not visited with any siblings in seven months. Thus, the juvenile court terminated the dependency jurisdiction.
3. The Department’s move toward termination of parental rights
A little more than two years later, in February 2007, the Department filed a petition under section 388 requesting a change in the permanent plan for Maurice from guardianship to adoption by L.W. The Department explained, despite the fact that L.W. had originally desired to adopt Maurice, that the court had declined adoption as the permanent plan so as to foster his relationship with his siblings. Change was in the child’s best interest, the Department asserted, because Yvonne had not visited Maurice in approximately one year and did not request visits from the legal guardian. She had called him once in that year, on his birthday.
The juvenile court reinstated jurisdiction and, appointed counsel for Yvonne and Maurice. At the hearing on the petition, the court granted it, finding the best interests of Maurice would be promoted by the proposed change. Accordingly, the court scheduled a section 366.26 hearing for June 2007, and granted Yvonne monitored visits with Maurice in the meantime.
In preparation for that hearing, the Department filed two reports. Maurice was no longer a client of the Regional Center. He was receiving special education services through his school. He was developmentally on target. Diagnosed with attention deficit hyperactivity disorder (ADHD), Maurice was taking medication and he attended group counseling sessions to deal with this syndrome. He was clean, cooperative, open and honest, quiet, and showed no abnormal motor movements or tics. He enjoyed riding a bike, swimming, and playing video games. Although he generally functioned pretty well, Maurice was slightly depressed.
In June 2007, two weeks before the 366.26 hearing, the Department received a referral from two of Maurice’s half-siblings who reported L.W. physically abused Maurice. The half-siblings stated that Maurice told them he did not like living with L.W. They stated, “ ‘Maurice does not want to be adopted. At home when he needs help with his homework he ask[s] L[.] to help him and she says no. She makes him do it on his own.’ ” When he slams the door to his room, she hits him with a belt “all over.” Maurice apparently did not tell the social worker or the judge about this because he was scared that L.W. would be mad at him. The emergency response social worker investigated. Maurice explained to the social worker that he had lied. The Department concluded that the allegations were “unfounded.” Nonetheless, the social worker returned to investigate again. At that time, Maurice explained that he had made a false report because he was angry with L.W. for reporting to Yvonne that Maurice sometimes steals items. Maurice reiterated that he loved L.W. and wanted to remain with her and be adopted by her.
L.W. told the Department that she would allow Maurice to continue having contact with his siblings and Yvonne after the adoption. Meanwhile, Yvonne did not visit Maurice once between February 2006 and March 2007. Once the court agreed to consider adoption as a permanent plan for Maurice, Yvonne visited twice a month. Still, she did not call the child.
At the section 366.26 hearing held on June 28, 2007, Yvonne sought to establish the parental-relationship exception to adoption (§ 366, subd. (c)(1)(B)(i) [formerly § 366.26, subd. (c)(1)(A)]).a Addressing the juvenile court, Yvonne stated that Maurice once told her that the other foster child in L.W.’s house never “get[] whoopings. . . . I only get whoopings.” When the court observed that the Department had investigated Maurice’s allegations of abuse, Yvonne responded that Maurice does not lie and that he had not told the social worker because he was scared. On the topic of visits, Yvonne indicated that she visited the child maybe once in June, twice in May and not at all in April 2007. Yvonne stated she did not want Maurice adopted because then she and his siblings would not be able to see him. Admitting that L.W. brings Maurice all the way from San Pedro to Los Angeles to visit, Yvonne explained that it did not occur to her to make the effort to travel. The court again found Maurice was adoptable. It stated that the exception to adoption did not apply because “I believe that [Yvonne] saw the child on those occasions, but that’s not visitation.” The court then terminated Yvonne’s parental rights. Yvonne’s appeal followed.
CONTENTIONS
Yvonne contends that Maurice is not adoptable and that she and Maurice were denied effective assistance of counsel.
DISCUSSION
1. The evidence supports the juvenile court’s finding that Maurice is adoptable
“The sole issue at the selection and implementation hearing is whether there is clear and convincing evidence that the child is adoptable. [Citations.] In resolving this issue, the court focuses on the child -- whether his age, physical condition and emotional state make it difficult to find a person willing to adopt him.” (In re Josue G. (2003) 106 Cal.App.4th 725, 733, citing § 366.26, subd. (c) & In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649, 1651.)
On appeal, we review the evidence in a light most favorable to the juvenile court’s finding of adoptability, drawing every reasonable inference and resolving all conflicts in support of the judgment. (In re Marina S. (2005) 132 Cal.App.4th 158, 165.) We do not reweigh the evidence. (Ibid.) Our task is to “determine whether there is substantial evidence from which a reasonable trier of fact could by clear and convincing evidence find a factual basis for the finding as to the child’s adoptability.” (Ibid., citing In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.)
Maurice is young, only nine years old and physically he is healthy, suffering only from asthma. He is well groomed, cooperative, and appears to be an open and honest, quiet, child. He enjoys the usual activities of a young boy, namely, swimming, riding bikes, and playing video games. And, he requires no psychotherapy or psychotropic medication, although he appeared slightly depressed. He is doing well in school, and he has been working with counselors and the school district on his individual education plan. The Department opined that adoption was appropriate at this time. While the clerk’s transcript on appeal does not contain the actual adoption assessment, the record contains ample other evidence of Maurice’s personal characteristics along with the Department’s findings that Maurice was adoptable. (Compare In re Brian P. (2002) 99 Cal.App.4th 616, 624 [juvenile court did not have adoption assessment report and old adoption assessments were devoid of facts about child].) Therefore, the record contained sufficient evidence to support the juvenile court’s repeated finding by clear and convincing evidence that Maurice is adoptable.
The record does contain the Department’s recommendation, made in January 2002, in advance of the first section 366.26 hearing. There, the Department stated that it recommended the juvenile court find “There is clear and convincing evidence that the child Maurice A[.] is adoptable and there is someone willing to accept adoptions for the child.” That report made specific references to the adoptions assessment. Insofar as this is a Departmental recommendation, it is powerful evidence that Maurice was adoptable in 2002. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1421 [social worker is qualified as expert to opine about child’s adoptability under Evid. Code, § 720].) Maurice’s circumstances have only changed for the better in the five years since then that he has been under L.W.’s care.
Certainly, Maurice is emotionally attached to L.W. The social worker opined that the two had a “strong emotional bond.” This fact only demonstrates Maurice’s general adoptability. “[T]he 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.]” (In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.) L.W.’s interest in adopting Maurice does not change the adoptability equation, which, as noted, focuses on the child’s characteristics. (In re Josue G., supra, 106 Cal.App.4th at p. 733.) While there was no attempt to locate another prospective adoptive parent, Maurice’s intrinsic characteristics coupled with L.W.’s interest in adopting him, make him generally adoptable either by L.W. or by another family.
Yvonne’s contention appears to center on the assertion that Maurice’s adoptability was specifically and hence, only, predicated on L.W.’s “suitability.” If by this contention, she is arguing that Maurice is not generally, but only specifically adoptable, her contention is meritless. Children are “specifically adoptable” when they are adoptable because one family is willing to adopt, they are “completely developmentally disabled,” or would require total care for life. (In re Carl R. (2005) 128 Cal.App.4th 1051, 1062.) Children who are “specifically adoptable and who will need total care for life [are] at high risk of becoming [] legal orphan[s] if parental rights are terminated and the prospective adoptive family is later determined to be unsuitable.” (Ibid., fn. omitted.)
Yvonne recites outdated reports from 2000 and 2001 as evidence that in 2007, Maurice “was a special needs child” with “speech and language” delays. She cites the Department’s repeated references to L.W.’s desire to adopt Maurice as an indication that L.W.’s availability was the basis for the adoptability finding. However, with respect to the special needs argument, while Maurice was a Regional Center client shortly after he was detained from Yvonne in 2001, he ceased being one by January 2003. And, four years later, in 2007 when the court made the relevant adoptability finding, Maurice was coping with his attention deficit disorder through a combination of medication and counseling, and showed no abnormal motor movements or tics, and was receiving special education services through his school. In fact, his pediatrician noted that Maurice’s “ADD-much improved” and that he was getting good reports in school. The child is in the mainstream in school and so his education needs are not severe as Yvonne would make it seem. The child’s progress on these fronts shows that he is not developmentally disabled and therefore is generally, not specifically, adoptable. Moreover, he certainly does not require total care for life. Rather, Maurice suffers from two common conditions: asthma and ADHD. The first does not appear to present much of any problem, and the second appears to be under control with a combination of group counseling, medication, and an individual education plan. Finally, Maurice’s progress in therapy and his academic growth are important and relevant factors supporting the juvenile court’s conclusion that Maurice is adoptable. (In re Sarah M., supra, 22 Cal.App.4th at p. 1651.) The record contained much evidence from which the juvenile court could conclude, apart from L.W.’s presence, that Maurice was generally adoptable.
Where Maurice is generally adoptable, L.W.’s “suitability” is irrelevant in the adoptability equation. “[A] section 366.26 hearing does not provide a forum for the minors’ parent to contest the ‘suitability’ of a prospective adoptive family. Rather, what is required is clear and convincing evidence of the likelihood that the children will be adopted within a reasonable time either by the prospective adoptive family or some other family. [Citations.] [¶] [Q]uestions concerning the ‘suitability’ of a prospective adoptive family are irrelevant to the issue whether the minors are likely to be adopted. General suitability to adopt is a subjective matter which does not constitute a legal impediment to adoption. If inquiry into the suitability of prospective adoptive parents were permitted in section 366.26 hearings, we envision that many hearings would degenerate into subjective attacks on all prospective adoptive families in efforts to avoid termination of parental rights. Such a result is not envisioned by the statutory scheme. Rather, the question of a family’s suitability to adopt is an issue which is reserved for the subsequent adoption proceeding.” (In re Scott M. (1993) 13 Cal.App.4th 839, 844.)
Nor does the record support Yvonne’s assertion that the juvenile court “failed to exercise its discretion to consider all the evidence about Maurice’s physical abuse [allegation], thereby, the court abused its discretion in terminating parental rights.” The court specifically noted at the hearing that the Department had investigated the abuse allegation and concluded the allegation was unfounded. The record supports this conclusion. Immediately after receiving the allegation, the Department investigated it. The result of that investigation is contained in the Department’s first report. Then, the Department refused to finalize L.W.’s home study until it had re-investigated the allegations. The second report contains the result of that second inquiry which reached the same conclusion as the first, namely, that the allegation was unfounded. Yvonne presented no specific evidence to counteract the Department’s finding, only her view that Maurice does not lie. The juvenile court was entitled to discount Yvonne’s testimony. We may not judge the effect or value of the evidence, reweigh the evidence, consider witnesses’ credibility, or resolve conflicts in the evidence or the reasonable inferences that may be drawn from that evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) In short, the juvenile court considered all the evidence in the record.
As the social worker’s adoption assessment here was premised in part on L.W.’s interest in adopting Maurice, Yvonne could seek to establish a legal impediment to adoption by L.W. (In re Scott M., supra, 13 Cal.App.4th at p. 844.) However, as noted, the only possible legal impediment she raised was the allegation of physical abuse against L.W., which allegation, the juvenile court was satisfied was unfounded. The legal impediments found in Family Code sections 8601 through 8603, do not apply here to prevent L.W. from adopting Maurice. L.W. is more than 10 years older than the child (Fam. Code, § 8601); Maurice is not over the age of 12 years old and so his consent was not required (Fam. Code, § 8602); and L.W. is not married and so her spouse’s consent was not necessary (Fam. Code, § 8603). In short, Yvonne failed to demonstrate any legal impediment to L.W.’s adoption of Maurice.
2. Yvonne has failed to demonstrate that she or Maurice were denied effective assistance of counsel
Yvonne contends that she had received newly appointed counsel at the section 366.26 hearing and that “[(1)] it was mother who addressed the court, not her counsel. [(2)] There is no indication mother’s new counsel had learned about mother’s case before representing mother in the termination proceedings. [(3)] Mother’s new counsel did not request a continuance of the matter to learn about the case or even dispute the Department’s conclusion that Maurice’s physical abuse was unfounded.”
To demonstrate a claim of ineffective assistance of counsel, Yvonne must show that her trial counsel’s performance fell below an objective standard of reasonableness and that there is a reasonable probability that the result would have been more favorable if trial counsel had provided adequate representation. (Strickland v. Washington (1984) 466 U.S. 668, 694.) With respect to counsel’s performance, Yvonne must show that her attorney’s acts or omissions were not the result of a reasonable tactical decision. (In re Merrick V. (2004) 122 Cal.App.4th 235, 255.) On appeal, we will find a performance to be deficient only where the record affirmatively discloses that counsel had no rational tactical purpose for the acts or omissions. (Ibid.)
Normally, the proper way to raise an ineffective assistance claim is by writ of habeas corpus, not appeal. (In re Eileen A. (2000) 84 Cal.App.4th 1248, 1254, disapproved on other grounds in In re Zeth S. (2003) 31 Cal.4th 396, 413-414.) The reason is that resources would be wasted if appellate courts reversed judgments for ineffective assistance of counsel, only to have “ ‘new defense counsel on retrial do exactly what the original counsel did’ based on some ‘informed tactical choice’ not apparent in the appellate record. [Citation, fn. omitted.]” (In re Eileen A., supra, at p. 1254.) However, there is an exception to this rule, where the record on appeal establishes there could be no satisfactory explanation for counsel’s action or inaction. (Ibid.)
Yvonne raised the ineffective assistance of counsel contention in her appeal. We cannot say on this record that there is no satisfactory explanation for counsel’s actions. Yvonne’s attorney’s law firm was appointed in March 2007, nearly four months before the section 366.26 hearing. And, at the beginning of the section 366.26 hearing, counsel stated to the court that she had “spoken with mother” who wished to raise the parent-relationship exception to adoption, but that Yvonne’s visits were outlined in the Department report. Hence, it is obvious that the firm and counsel appearing on the day of trial was prepared and did not require a continuance. Furthermore, given the extensive evidence before the court that Yvonne had not visited Maurice at all during the year before the section 388 petition and called him only once, and given Yvonne’s own testimony that she visited the child possibly once in June 2007, twice in May, and not at all in April 2007, we can envision rational, tactical reasons for counsel’s choices.
DISPOSITION
The order is affirmed.
We concur: KLEIN, P. J., KITCHING, J.