Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. JD211374, JD220790
OPINION
ROBIE, J.
Andrea A. (appellant), the mother of T. A. and Z. A., appeals from an order of the juvenile court terminating appellant’s parental rights as to both minors.
Appellant makes no claim of error as to Z. A. Accordingly, we consider her appeal as to Z. A. abandoned and will refer to T. A. as “the minor” in this opinion.
Appellant contends the juvenile court’s order terminating her parental rights must be reversed because the finding by that court that it was likely the minor would be adopted was not supported by substantial evidence. Appellant also claims the court committed reversible error in failing to inquire into the reasons for the minor’s absence from the Welfare and Institutions Code section 366.26 hearing. Disagreeing with those contentions, we affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Dependency proceedings on behalf of the minor began in 1998, when the juvenile court adjudged the minor, then three years old, a dependent of the court. Thereafter, the juvenile court first ordered the minor placed into long-term foster care, before subsequently modifying that plan to one of adoption of the minor. In August 2003, the court again ordered the minor placed into long-term foster care.
A July 2004 social worker’s report noted the minor had been in four different foster care placements during the past year. According to the social worker, the minor had “severe anger management problems and his negative behaviors have increased with every change in placement.” Moreover, the minor’s foster parents were concerned about the minor’s “extreme anger and acting out behavior.”
In June 2005, the juvenile court ordered the minor placed in appellant’s care under the supervision of Department of Health and Human Services (DHHS). Thereafter, on October 25, 2005, the minor was detained and placed in foster care, and DHHS alleged the minor had been physically abused by appellant and her boyfriend. The court later found that allegation true, continued the minor as a dependent child, and ordered a planned permanent living arrangement to be the minor’s permanent plan.
On February 21, 2006, a copy of the notice of the section 366.26 hearing mailed to the minor was filed with the juvenile court. That notice stated DHHS was recommending long-term foster care, guardianship, and adoption as the permanent plan for the minor. However, in its May 2006 report prepared for the hearing, DHHS recommended the court select adoption as the minor’s permanent plan.
The DHHS report noted the minor had been in 15 foster home placements, but had been in the current one since late October 2005. Moreover, allegedly he was doing well there. According to the report, the minor had age-appropriate developmental skills and abilities. Unfortunately, he had been suspended from school for fighting and then expelled for possessing a knife. The minor was diagnosed with three different disorders, including attention deficit hyperactivity disorder, and was prescribed medication. The report described the minor as “an average youth who can be a wise-cracking, tough talking, class clown.”
The minor’s foster parents wanted to adopt the minor. The minor, who in the past had stated he did not want to be adopted, now indicated that, as he could not live with appellant, he preferred to remain in his current placement and be adopted. DHHS described the minor as “generally adoptable.”
An April 2006 psychological evaluation concluded the minor’s attachment to appellant was not a secure or positive one. According to that report, the minor probably had a reactive attachment disorder. As a result, the psychologist opined, the minor “would be expected to continue to have difficulties forming secure, positive attachments with his peers and adults as he gets older . . . .”
On June 23, 2006, another copy of the notice of the section 366.26 hearing to the minor was filed, again recommending all three permanent plans for the minor. The juvenile court determined that notice had been given. The minor was absent from the September 19, 2006, section 366.26 hearing. Counsel for the minor agreed with the recommendation of adoption and advised the court that the minor was “agreeable to the adoption. . . .” Moreover, according to counsel, the minor was doing well with his prospective adoptive family.
Appellant’s counsel objected to the proposed termination of appellant’s parental rights and to a finding by the juvenile court that it was likely the minor would be adopted. Appellant testified she believed the minor was bonded to her and she disagreed with the recommendation by DHHS that the minor be adopted. At the conclusion of the hearing, the juvenile court found it likely the minor was “specifically adoptable to [his foster] family.” The court also found proper notice had been given and terminated appellant’s parental rights.
DISCUSSION
I
The Finding Of Adoptability Is Supported By Substantial Evidence
Relying primarily on evidence of the minor’s difficulties forming relationships, attachment to appellant, age, previous failed placements and significant behavior issues, appellant contends the juvenile court’s order terminating her parental rights must be reversed because the finding by that court that it was likely the minor would be adopted was not supported by substantial evidence.
When the sufficiency of the evidence to support a finding is challenged on appeal, even where the standard of proof in the juvenile court is clear and convincing evidence, we must determine if there is any substantial evidence -- that is, evidence that is reasonable, credible, and of solid value -- to support the conclusion of the trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924.) In making this determination, we resolve all conflicts in favor of the prevailing party. Issues of fact and credibility are questions for the trier of fact, and we do not reweigh the evidence when assessing its sufficiency. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
The goal of dependency proceedings is protection of the child. (In re Kerry O. (1989) 210 Cal.App.3d 316, 333.) An important aspect of this goal “is to provide children with stable, permanent homes.” (In re Heather P. (1989) 209 Cal.App.3d 886, 890.) A preference for permanent placement, as afforded by adoption, is a vital component of the statutory scheme. (In re Brian R. (1991) 2 Cal.App.4th 904, 923-924; cf. In re Mark V. (1986) 177 Cal.App.3d 754, 760-762.)
The issue of adoptability “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.” (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) It is not necessary that the minor already be in a potential adoptive home, or that there even be a prospective adoptive parent. (Ibid.)
In In re Sarah M., this court recognized that even where the minor otherwise might be regarded as not adoptable due to such factors as age or instability, the minor would be considered likely to be adopted if a prospective adoptive family was identified as willing to adopt the minor. In such a situation, the juvenile court could inquire whether any legal impediment to adoption by that family existed. (In re Sarah M., supra, 22 Cal.App.4th at p. 1650.) Here, the court found that due to the minor’s circumstances and difficulties, he was not generally adoptable, but was adoptable specifically by his foster parents. Substantial evidence supports that finding.
The record in this case reflects the minor was in good health. Over time, he has shown some improvement in adjusting to foster home placements. Admittedly, the minor has exhibited major behavioral difficulties, including assaultive behavior at school. However, he was receiving services from Sacramento Children’s Home and was attending an alternative school. Based on this evidence, the juvenile court reasonably could find, as it did, that although the record suggests the minor may continue to present some challenges to his caregivers, he was likely to be adopted. (Cf. In re Roderick U. (1993) 14 Cal.App.4th 1543, 1550.)
In In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205, cited by appellant, the adoptability finding was based on the willingness of the mother’s former boyfriend, a problematical prospect, to adopt the minor. Here, the record reflects the existence of a prospective adoptive family, with whom the minor was making a “good adjustment” and where he had been living for nearly a year. That family was committed to adopting the minor. Despite the minor’s behavior difficulties at school, DHHS was optimistic about the likelihood of the minor’s adoptability.
Of course, the lack of an adoptive home does not preclude a finding the minor is likely to be adopted. (In re Sarah M., supra, 22 Cal.App.4th at p. 1649.) And the prospect that a minor may have some continuing behavioral problems also does not foreclose a finding of adoptability as to the minor. (In re Jennilee T. (1992) 3 Cal.App.4th 212, 224.)
In In re Tamneisha S. (1997) 58 Cal.App.4th 798, the social services agency was unable, after a 10-month search, to find an adoptive home for the child. (Id. at pp. 802-803.) Ultimately, the juvenile court granted a guardianship after finding the agency had failed to show the minor was likely to be adopted. (Id. at p. 803.) The Court of Appeal affirmed the order of guardianship. (Id. at p. 808.)
This case is different from the circumstances found in In re Tamneisha S., supra, 58 Cal.App.4th 798. Here, as we have seen, the minor appeared to be developing a relationship with his prospective adoptive family. Moreover, despite the psychologist’s report about his difficulties, the record suggests the minor has the ability to form attachments with caregivers.
It is true that sometimes “special needs” children are more difficult to place than those without such needs. For example, in In re Michael G. (1983) 147 Cal.App.3d 56, the minor was developmentally disabled and suffered from serious emotional problems. According to the record in that case, the seven-year-old minor functioned below his age level, was not completely toilet trained, and possessed limited language abilities. On that record, the court noted all parties had conceded adoptive placement would be difficult. (Id. at pp. 58-59.)
The situation here is different. Although the minor arguably has some “special needs,” the evidence before the juvenile court suggested the minor’s circumstances had improved. Moreover, as the evidence also showed, the health of the minor was good and the minor was capable of developing close attachments to new adults in his life.
Appellant asserts the minor “vacillated” in his feelings about adoption, and suggests the minor can “veto” his adoption. We disagree with appellant. The record reflects quite understandably that although he would prefer to be returned to appellant, if not, the minor would like to be adopted by his prospective adoptive parents. Moreover, only recently has the minor turned 12, and therefore old enough to object to termination of parental rights. (§ 366.26, subd. (c)(1)(B); see also Fam. Code, § 8602.) At the time of the section 366.26 hearing in this case, the minor was only 11.
It is true the minor has had numerous foster home placements since 1998, when these dependency proceedings began. Presumably, at least one or more of those placements failed due to the minor’s emotional and behavioral difficulties. However, in general, the minor was doing well in the home of his prospective adoptive family. On this record, we reject as speculative appellant’s suggestion that the current placement likely would fail as had previous ones. In sum, substantial evidence supports the juvenile court’s determination that the minor was likely to be adopted.
II
The Juvenile Court’s Failure To Inquire Into The Absence Of The Minor Does Not Compel Reversal
Appellant claims the juvenile court committed reversible error in finding the minor was served properly with notice of the section 366.26 hearing and in failing to inquire about the absence of the minor from that hearing. According to appellant, the notices were meaningless because DHHS failed to select one permanent plan for the minor as its recommendation. Appellant argues she was prejudiced by the absence of the minor from the hearing, as the minor was deprived of the opportunity to present his wishes to the court and could not be asked about his understanding of adoption. Appellant also suggests that as the minor soon would be 12, he might choose to veto the proposed adoption.
For purposes of addressing appellant’s claims, we presume appellant has a sufficient legal interest to make her contentions pertaining to the minor. (Cf. In re Jenelle C. (1987) 197 Cal.App.3d 813, 818.)
Section 366.26, subdivisions (h)(1) and (h)(2), state: “At all proceedings under this section, the court shall consider the wishes of the child and shall act in the best interests of the child. [¶] In accordance with Section 349, the child shall be present in court if the child or the child’s counsel so requests or the court so orders. If the child is 10 years of age or older and is not present at a hearing held pursuant to this section, the court shall determine whether the minor was properly notified of his or her right to attend the hearing and inquire as to the reason why the child is not present.”
The record reflects the minor was served with notice of the section 366.26 hearing. It is true that DHHS marked all three boxes for the minor’s permanent plan instead of selecting one plan to propose. However, as the record makes clear, the minor was aware that the permanent plan recommended by DHHS was adoption. Accordingly, the juvenile court’s finding that the minor was notified properly of the hearing is supported by the record. There was no error.
As the minor was 11 by the time of the section 366.26 hearing in this case, subdivision (h)(2) of section 366.26 was applicable to the proceedings.
Appellant argues the juvenile court’s failure to inquire into the reason for the absence of the minor from the section 366.26 hearing is reversible error.
The difficulty with appellant’s claim in this case is that the record does not show counsel for appellant, or appellant herself, tendered in the juvenile court any objection to the absence of the minor from the section 366.26 hearing. The record reflects appellant had ample opportunities to bring that issue to the attention of the juvenile court if she had wished to do so. Yet she failed to avail herself of that opportunity, never even mentioning the minor’s absence.
The California Supreme court has stated, “‘“An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been, but was not, presented to the lower court by some appropriate method. . . . The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppal or waiver . . . . Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial.”’ (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1, italics in Doers.) ‘“The purpose of the general doctrine of waiver is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had. . . .’” (People v. Walker (1991) 54 Cal.3d 1013, 1023.) ‘“No procedural principle is more familiar to this Court than that of a constitutional right,” or a right of any other sort, “may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.” [Citation.]’ [Citation.]” (People v. Saunders (1993) 5 Cal.4th 580, 589-590; cf. In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2 [stating that the correct legal term for loss of right based on failure to assert it in a timely fashion is forfeiture, not waiver].)
Here, as the record shows, at no time did appellant tender any objection to the juvenile court’s failure to inquire as to the minor’s absence from the section 366.26 hearing. Thus, appellant is precluded from raising the claim here. (In re Erik P. (2002) 104 Cal.App.4th 395, 403.) Appellant has forfeited her claim. (In re S.B., supra, 32 Cal.4th at p. 1293, fn. 2.) In any event, any error would be harmless because the record reflects the minor had expressed his wishes about adoption.
DISPOSITION
The order of the juvenile court is affirmed.
We concur: BLEASE, Acting P.J., HULL, J.