In re A.S.
Filed 7/29/13 In re A.S. CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE
DISTRICT
(San
Joaquin)
----
In re A.S. et al.,
Persons Coming Under the Juvenile Court Law.
SAN JOAQUIN COUNTY
HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
T.S.,
Defendant and Appellant.
C072711
(Super. Ct. No. J04294)
T.S.
(mother) appeals from the juvenile court’s order terminating her parental
rights as to minors A.S. and T.L. (Welf. & Inst. Code,
§ 366.26.) She contends the record
does not show by clear and convincing
evidence that the minors are adoptable.
Disagreeing, we shall affirm.
The minors were originally
detained in 2006, when they were four and two years old respectively, due to
mother’s mental problems.
name="_ftnref2" title="">[2] They were placed in foster care and mother
received reunification services.
Before
disposition, T.L. was diagnosed with
(ill-formed or missing irises) and a congenital cataract in his right eye. A.S. had no known physical or emotional
problems.
(the Agency) opined that both minors were adoptable. The minors were bonded with each other.
The
juvenile court returned the minors to mother’s custody under a family
maintenance plan in 2008. In June 2009,
the court terminated jurisdiction.
In
September 2010, the Agency filed a new section 300 petition, alleging that
mother, who appeared to be experiencing paranoid delusions again, was arrested
and jailed for violating court orders related to the minors. In January 2011, the juvenile court found the
allegations of the petition true, set a dispositional hearing, and ordered
psychological evaluations of mother.
In its
disposition report, filed in May 2011, the Agency recommended denying
reunification services to mother because the psychological evaluations had
concluded she suffered from severe
The minors
were in their third placement. T.L., now
seven years old, exhibited social, emotional, and intellectual delays; he
struggled in school and had difficulty interacting with other children. Recently he had displayed anger and
“inappropriate behaviors such as smearing feces and crawling on the floor
making strange sounds.†These behaviors
had decreased in his current placement.
A.S., now
nine years old, was physically healthy, emotionally stable, interacted well
with her foster family and classmates, and showed no intellectual delays.
The minors
were still placed together and bonded with each other. “[D]ue to behaviors and medical conditions,â€
the minors were not currently classified as adoptable; this descriptor
presumably referred to T.L., given his history.
The concurrent plan was for a planned permanent living arrangement. At the dispositional hearing in July 2011,
the juvenile court denied reunification services to mother.
A December
2011 status report opined the minors were again adoptable. T.L.’s behavior and schoolwork were much
improved, he could sleep without medication, and he did not need special
services; he had been referred to a surgeon for consultation about surgery on
his right eye. A.S. continued to show no
problems of any kind.
A section
366.26 report filed in May 2012 recommended termination of parental rights and
adoption. The minors, now 10 and eight
years old respectively, continued to do well and appeared happy; T.L. did not
exhibit the behavioral concerns previously noted. A maternal cousin was willing to adopt the
minors, and they would transition to her home soon, but were waiting for the
school year to end to transition. The
cousin had been assessed for placement beginning in late 2011 and had been visiting
with the minors since early March.
The cousin,
a licensed vocational nurse, had successfully raised three children, two of
whom still lived with her. She
understood the responsibilities of adoption.
Her home had been approved as an adoptive home. The minors were happy to be moving there.
A status
review report filed in June 2012 stated that T.L. had lost vision in his right
eye and had glaucoma in his left eye; surgery on the right eye had been ruled
out due to the severity of his condition.
However, he was adjusting well in school and needed no specialized
services. He and A.S. had been placed
with the cousin since June 1, 2012. The
minors’ placement was adequate and appropriate, and adoption remained the concurrent
plan.
The
juvenile court held a contested section 366.26 hearing in November 2012. A.S. testified that she wanted to continue
living in the cousin’s home until she became an adult. T.L. testified that he liked living there and
wanted to continue doing so, replying “[m]aybe†when asked if he wanted to do
so “forever.â€
Mother’s
counsel argued against termination of parental rights because mother had a
significant bond with the minors and did want them to be adopted. Counsel did not argue that the minors were
not adoptable.
The
juvenile court found by clear and
convincing evidence that the minors were likely to be adopted. Finding no applicable exception to adoption,
the court terminated parental rights.
DISCUSSION
Mother
contends the juvenile court erred by terminating her parental rights in the
absence of clear and convincing evidence the minors were adoptable.
“If the court determines
. . . by a clear and convincing standard, that it is likely the
child will be
adopted, the court shall terminate parental rights and order the child placed
for
adoption.†(§ 366.26, subd.
(c)(1).)
We review the juvenile court’s
finding that the child is likely to be adopted within
a reasonable time
under the substantial evidence standard, giving it the benefit of every
reasonable
inference and resolving any evidentiary conflicts in favor of affirming. (In re
869.) That is, we must determine whether
the record
contains
substantial evidence from which the court could find clear and convincing
evidence that the
child was likely to be adopted within a reasonable time. (In re
B.D.
(2008)
159 Cal.App.4th 1218, 1232.)
Although mother did not argue at the
section 366.26 hearing that the minors were
not adoptable, we
consider her claim that there was insufficient evidence of adoptability
because
insufficient evidence claims are not forfeited by the failure to raise them
below.
(
99 Cal.App.4th 616, 623; In re
Gregory A. (2005) 126
Cal.App.4th 1554,
1561.)
Determination
of whether a child is likely to be adopted focuses first upon the
characteristics of the child; therefore, a finding of adoptability does not
require that the child already be in a prospective adoptive home. (In re
Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) But the fact that a prospective family has
expressed interest in adopting the child is evidence that the child is likely
to be adopted by that family or some other family in a reasonable time, even if
ultimately the child does not stay in that home. (In re
Lukas B. (2000) 79 Cal.App.4th 1145, 1154; In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1651.)
Here, the
Agency had found consistently since December 2011, almost a year before the
section 366.26 hearing, that the minors were adoptable. Further, they were in a prospective adoptive
home, where they wanted to stay. These
facts alone constitute substantial evidence of adoptability.
Mother
points to the Agency’s earlier finding that the minors were unadoptable due to
“behaviors and medical conditions.†But,
as the Agency’s later reports explained, T.L.’s behavioral improvements had
eliminated the main basis for this finding.
His medical condition evidently did not deter his cousin from wanting to
adopt him. And though mother asserts
that this condition renders T.L. unadoptable, she cites no authority to support
this assertion, and we see none.
We note
that mother concedes the minors “might possibly be specifically
adoptable.†We agree that the record
supports this classification of the minors as well. Although mother argues that the minors’
placement with the cousin is “extraordinarily recent and has not withstood the
test of time,†she presents no authority supporting her assertion that--after
the minors had been visiting their cousin from March 2012 and living with her
from June 2012--at the hearing in November 2012, after reading the reports and
hearing from the minors, the juvenile court acted prematurely in terminating
parental rights. Substantial evidence
supports the juvenile court’s finding of adoptability.
DISPOSITION
orders of the juvenile court are affirmed.
DUARTE , J.
We concur:
MAURO , Acting P.
J.
HOCH , J.
name="_ftn1" title="">[1] Further undesignated statutory references are
to the Welfare and Institutions Code.
name="_ftn2" title="">[2] A.S.’s father, K.W., is deceased. T.L.’s father, C.L., is not a party to this
appeal.
