Opinion
B229878 (c/w B230081)
08-02-2011
In re ISAIAH M., A Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. I.M., Defendant and Appellant.
Nicole Williams, under appointment by the Court of Appeal, for Defendant and Appellant I.M. Amir Pichvai for Plaintiff and Respondent. No appearance for Minor.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. Nos. CK60921, CK62229)
APPEAL from an order of the Superior Court of Los Angeles County. D. Zeke Zeidler, Judge. Affirmed.
Nicole Williams, under appointment by the Court of Appeal, for Defendant and Appellant I.M.
Amir Pichvai for Plaintiff and Respondent.
No appearance for Minor.
I.M. (mother) appeals from the juvenile court's order terminating her parental rights to her five-year-old son Isaiah M. The sole issue on appeal is whether substantial evidence supports the juvenile court's finding that Isaiah was adoptable. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Mother and her extended family have a long history of involvement with the Los Angeles County Department of Children and Family Services (the department) and numerous appeals have been filed by the family from the juvenile court's various orders. On February 1, 2011, this Court issued an unpublished opinion, In re Abrama M., et al., case No. B216673 (consolidated with case Nos. B217561, B218628, B219476 and B219574), in which the juvenile court's order terminating the maternal grandparents' legal guardianship of Isaiah was affirmed. It was noted that mother was a minor and a juvenile dependent herself, she had been hospitalized in a psychiatric hospital, and had been granted reunification services.
With respect to this appeal, in December 2009 the department reported that mother continued to reside at a locked mental healthcare facility in Texas, and that her counselor believed she suffered from multiple personality disorder and that it was unlikely she would ever be able to parent a child. Mother had to be physically restrained a minimum of three times a week. She was having weekly telephone calls with Isaiah, which she enjoyed.
In the same report, the department stated that Isaiah was "thriving" in his foster home, where he lived with his cousin Sahri. He had become an "outgoing," "fun loving," and "talkative little boy" who loved to sing and dance. His Head Start preschool teacher reported that he got along well with the other children and that he was a "joy" to have in class. In May 2009 he was assessed for counseling and was found "not to meet the medical necessity for counseling." That same month he had a physical examination and no problems were noted. The department determined that he was adoptable because of "his age and overall good health." Because his current foster parent was not interested in adoption, the department had begun actively looking for an adoptive match and recommended termination of mother's reunification services.
In March 2010, Isaiah received an intake assessment with a therapist and began having individual counseling every other week.
On April 13, 2010, after mother had twice contested the termination of her reunification services, the court terminated those services. The court set a hearing on August 12, 2010 pursuant to section 366.26 of the Welfare and Institutions Code for the selection and implementation of a permanent plan.
Unless otherwise noted, all statutory references shall be to the Welfare and Institutions Code.
Meanwhile, Isaiah's May 2010 "End of Year Summary" from his Head Start educational program indicated that he was personally and socially competent, learning effectively, and demonstrating physical and motor competence. That same month Isaiah had a physical examination and "was diagnosed with a persistent cough and wheezing that responded well to Albuterol." On August 11, 2010 Isaiah had a follow-up physical examination with a different physician. According to the department, this doctor instructed Isaiah "to continue with his Xopenex treatment, as needed, for his asthma." No other medical problems were noted.
At the initial section 366.26 hearing on August 12, 2010, the department informed the court that on August 4, 2010 it had matched Isaiah and his cousin Sahri as a "sibling set" with a prospective adoptive family, Mr. and Mrs. A., and that preplacement steps were taking place. The department requested that the monthly monitored visits that had been taking place between Isaiah and Sahri and the maternal grandparents since November 2009 be terminated in preparation for the adoptive planning. Over the department's objection, the court ordered the monitored visitation to continue. The court continued the section 366.26 hearing to November 16, 2010.
In September 2010, Isaiah was seen by an allergist, apparently to determine if he was allergic to cats. The allergist could not determine "with 100% certainty" whether Isaiah's asthma would be exacerbated by "a furry warm blooded pet." The allergist's report also stated: "One also has to weigh the pros and cons of a family with pets for an asthmatic. The benefits of a good family and benefits of pet ownership has to be weighed against the potential of the pet being a problem for Isaiah's asthma. Moreover it is also uncertain if his asthma will improve or get worse over time. It may not be an issue with the pets if his asthma becomes very mild. [¶] I am sorry that the answer is not clear cut and the total patient has to be considered."
For the continued section 366.26 hearing, the department reported in November 2010 that Isaiah and his cousin had been placed in the home of Mr. and Mrs. A. on October 29, 2010. The A. family already had an approved adoption home study. Isaiah had been very excited to meet them and asked them to be his family during the first visit. Isaiah was later observed to be appropriately attaching to the family and comfortable in their care, seeking out their involvement, guidance and approval. During one visit, Isaiah was observed hugging Mrs. A. and calling her "mommy." During this same visit, he was eager to give the adoption case worker a tour of the home and to introduce the "household pet." Mr. and Mrs. A. demonstrated a "strong" commitment to adopting both children. Mr. A. reported that Isaiah's therapist had contacted him about having therapy services transferred to the new placement. The department reported that Mr. and Mrs. A. "listen intently to the children's needs," had shown "they are very capable of handling" the children's needs, and "ensured that the children's needs are met by enrolling them in school, arranging medical visits, providing them with appropriate food, clothing, and shelter." The report also stated: "Regional Center services, as well as, post-adoption services, including medical, educational, and psychological, among others, were discussed verbally and in writing with the applicants, who indicated they would not hesitate to utilize these services if the need for them arises after their adoption is finalized."
At the November 16, 2010 continued section 366.26 hearing, the court found that Isaiah was adoptable and terminated parental rights. This appeal followed.
This appeal was consolidated with two separate appeals filed by the maternal grandparents and a maternal aunt. We have dismissed these appeals pursuant to In re Phoenix H. (2009) 47 Cal.4th 835.
DISCUSSION
The goal of the dependency scheme as prescribed by the Legislature is to provide stable, permanent homes for dependent children. (§ 366.26, subd. (b); In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1344.) Thus, under section 366.26, subdivision (c)(1), if the court finds by clear and convincing evidence "that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption." "We review the factual basis of an adoptability finding by determining whether the record contains substantial evidence from which a reasonable trier of fact could make the finding made by the trial court by clear and convincing evidence." (In re Christiano S. (1997) 58 Cal.App.4th 1424, 1431; In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) In doing so, we give the court's finding of adoptability the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of affirming. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)
"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." (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) Thus, having a prospective adoptive family "'waiting in the wings'" is not necessary for a finding of adoptability. (Ibid.)But it is a strong factor: "[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.'" (Id. at pp. 1649-1650.)
Mother argues that the juvenile court did not have the "full picture" when making its finding that Isaiah was adoptable because "there were many unaddressed and lingering questions about the minor's medical and emotional issues." We disagree.
With respect to Isaiah's asthma, mother asserts it is undisputed that he suffered "serious" asthma. To the contrary, the record shows only that he suffered asthma that appeared to respond well to medication. Even the allergist who examined Isaiah in September 2010 did not describe his asthma as "serious" or "severe" and could not determine with certainty whether it would improve or get worse over time. As it was, Isaiah was living in Mr. and Mrs. A.'s home with an unidentified "household pet," and there was no indication that this was exacerbating his asthma. Mother is particularly concerned that the department never reported "whether or not the caretakers were willing to get rid of their pets in order to protect the minor should the need arise." But the department's November section 366.26 report made clear that Mr. and Mrs. A. were committed to meeting the children's needs and acting in their best interests. In any event, Isaiah had no other reported medical problems, and nothing in the record suggests that his manageable asthma was so severe or difficult to treat as to render him unsuitable for adoption by Mr. and Mrs. A. or any other family.
We note the pages mother cites to in the record do not support this assertion; they are copies of notices of hearing and have nothing do with the status of Isaiah's asthma.
Mother also complains that there is nothing in the record to indicate whether Isaiah's individual counseling had been transferred to the area of his new residence. She also points out that after the department discontinued Isaiah's monitored visits with his grandparents, the court granted his attorney's request for "grief counseling, yet the record does not contain any follow-up information on whether this was provided. But mother acknowledges that in September 2010, Isaiah had become "ambivalent" about visiting his grandparents, and never asked to see them. Additionally, the department did in fact report that post-adoption services, including psychological counseling, were discussed with Mr. and Mrs. A., "who indicated they would not hesitate to utilize these services if the need for them arises after their adoption is finalized." Moreover, there was nothing in the record to suggest that Isaiah had serious emotional or psychological problems. Indeed, the record indicates otherwise. Isaiah was doing well in his Head Start program—he was a "joy" to have in class; got along well with other students; and was evaluated to be personally and socially competent. He was developmentally on target. By all accounts, he was bonding well with Mr. and Mrs. A. and enjoyed living with them and being in their care. Other than the common condition of asthma, there was no indication in the record that he had any special needs, psychological or physical, that would make caring for him more difficult or challenging than caring for any other little boy. This situation is therefore entirely different from In re Valerie W. (2008) 162 Cal.App.4th 1, on which mother relies. There, the court found that when "the record suggests the child has been or will be tested for a serious genetic or neurological disorder, a lack of evidence concerning the child's condition, prognosis and treatment needs, if any, undermines the basis for the determination that a prospective adoptive parent is capable of meeting that child's needs." (Id. at p. 14.)
We are satisfied substantial evidence supports the juvenile court's finding of adoptability. Accordingly, mother has presented no basis for reversing the court's order terminating her parental rights to Isaiah.
DISPOSITION
The order terminating mother's parental rights to Isaiah is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
________________________________ , J.
DOI TODD
We concur:
________________________________ , P. J.
BOREN
________________________________ , J.
ASHMANN-GERST