In re F.R.A.

Filed 10/14/08 In re F.R.A. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

A. A. is the mother of two daughters: F.R.A. (age 5) and R.A. (age 2). She appeals from the judgment terminating her parental rights to the children. (Welf. & Inst. Code,  366.26.)^[1] Appellant contends: (1) the adoption assessment report was deficient because it failed to substantially comply with the requirements of section 366.21, subdivision (i); and (2) the evidence is insufficient to support the juvenile court's finding that the children are likely to be adopted within a reasonable time. We affirm.

Adoption Assessment Report

When the juvenile court orders a hearing pursuant to section 366.26, it must direct the social services agency to prepare a report assessing the child's adoptability. ( 366.21, subd. (i).) In the juvenile court, appellant did not object to the adequacy of the adoption assessment report prepared by respondent, the Ventura County Human Services Agency. By not objecting below, appellant waived her right to claim on appeal that the report was deficient. (In re Brian P. (2002) 99 Cal.App.4th 616, 623; In re Urayna L. (1999) 75 Cal.App.4th 883, 886.) "[A]ny other rule would permit a party to trifle with the courts by standing silently by, thus permitting the proceedings to reach a conclusion in which the party could acquiesce if favorable and avoid if unfavorable. [Citation.]" (Ibid.) 

Sufficiency of the Evidence

Before terminating appellant's parental rights, the juvenile court was required to find by clear and convincing evidence that the children are likely to be adopted within a reasonable time. ( 366.26, subd. (c)(1); In re Zeth S. (2003) 31 Cal.4th 396, 406.) In the juvenile court, appellant did not dispute the adoptability of the children. Therefore, respondent contends, she is precluded from claiming on appeal that the evidence of adoptability is insufficient.

We disagree. The section 366.26 hearing was calendared as a contested hearing. Although appellant's counsel told the court during the hearing that he was unable to present "any evidence at this stage that would make any difference to the Court's decision," he said that his client "is not agreeing with it [the termination of parental rights] by any means." In In re Brian P., supra, 99 Cal.App.4th at page 623, the court held that, when the hearing is contested, an objection is not necessary to preserve a parent's right to claim on appeal that the evidence of adoptability is insufficient: "When the merits are contested, a parent is not required to object to the social service agency's failure to carry its burden of proof on the question of adoptability. [Citations.] 'Generally, points not urged in the trial court cannot be raised on appeal. [Citation.] The contention that a judgment is not supported by substantial evidence, however, is an obvious exception to the rule.' [Citations.] Thus, while a parent may waive the objection that an adoption assessment does not comply with the requirements provided in section 366.21, subdivision (i), a claim that there was insufficient evidence of the child's adoptability at a contested hearing is not waived by failure to argue the issue in the juvenile court." (Accord, In re Gregory A. (2005) 126 Cal.App.4th 1554, 1560-1561.) Our Supreme Court cited Brian P. for the proposition that a party may claim on appeal that a judgment is not supported by substantial evidence even though the point was not urged below. (People v. Butler (2003) 31 Cal.4th 1119, 1126 & fn. 4.)

Accordingly, we consider the merits of appellant's claim that the evidence is insufficient to support the finding that the children are likely to be adopted within a reasonable time.

F.R.A.

At F.R.A.'s "first preadoptive home, her foster mother, Sandra [J.], became increasingly hostile toward [her]." Sandra J. complained that F.R.A. had engaged in violent and destructive behavior. "[I]t appeared that [Sandra J.] was becoming emotionally labile, going from rage to sadness." F.R.A. was removed from Sandra J.'s care and "was then placed at Casa Pacifica, where they observed none of the severe negative behaviors that [Sandra J. had] reported." The staff at Casa Pacifica described F.R.A. "as independent, social and happy."

In August 2007 F.R.A. was placed with her present foster parents. This placement reunited F.R.A. with her younger sister, R.A., who had been living with the foster parents since June 2007.

In a letter dated August 14, 2007, a social worker wrote that F.R.A. "is cheerful, outgoing and friendly." According to the section 366.26 report dated August 20, 2007, F.R.A. "has some speech delays but appears to be on target developmentally." She has no reported physical problems and is not taking any medication.

In December 2007 a psychologist prepared a report evaluating F.R.A. The report includes the following information:

F.R.A. "presented as a friendly, talkative child who was well behaved and cooperative with her [foster] parents." The foster parents said that F.R.A. is " 'happy, sweet' and . . . 'plays well by herself.' " However, they also said that she has various behavioral problems. The psychologist opined that F.R.A. "appears to have been very traumatized. She is very angry at adults for causing her so much pain, very depressed for having lost the few caregivers she has known, very confused about what and why all this has happened to her, and very self loathing." The psychologist diagnosed F.R.A. as suffering from a "Reactive Attachment Disorder" that makes it difficult for her to form emotional attachments to other persons. F.R.A. "will need to be in long-term treatment" for her problems. On the other hand, the psychologist observed that F.R.A. "has several strengths. She is intelligent, artistic, and well coordinated. She is a cute girl that can elicit adult involvement and positive attention."

R.A.

R.A. "presented as a healthy and loving child." She is "outgoing and cheerful." In June 2007 R.A. "went willingly to the new foster home and has shown no emotional trauma or distress." She is "extremely happy in her new foster home where she is receiving a tremendous amount of love and attention." R.A. "has formed an especially close bond to the foster mother as she never wants the foster mother to put her down." According to the section 366.26 report dated August 20, 2007, R.A. "appears to be on target (and even early) in some areas of her development . . . ." She has no reported physical problems and is not taking any medication.

Foster Parents

An addendum report dated January 10, 2008, stated: "The prospective adoptive parents have been caring for the girls for several months and have developed a significant attachment and love for them. They are committed to making them a part of their family through adoption . . . ."

Substantial Evidence Supports the Finding of Adoptability

In assessing a child's adoptability, " 'the juvenile court must focus on the child, and whether the child's age, physical condition, and emotional state may make it difficult to find an adoptive family. [Citations.] In reviewing the juvenile court's order, we determine whether the record contains substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that [the child] was likely to be adopted within a reasonable time. [Citations.]' [Citations.] We give the court's finding of adoptability the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of affirming. [Citation.] [] . . . ' "Usually, the 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 Gregory A., supra, 126 Cal.App.4th at pp. 1561-1562.)

Substantial evidence supports the juvenile court's finding that the children are likely to be adopted within a reasonable time. R.A.'s adoptability is unquestionable. There is no evidence of any condition that would make it difficult to find an adoptive family for her.

Although F.R.A. has psychological problems, a reasonable trier of fact could still find by clear and convincing evidence that she is also adoptable. The foster parents said that F.R.A. is " 'happy, sweet' and . . . 'plays well by herself.' " A social worker described F.R.A. as "cheerful, outgoing and friendly." The staff at Casa Pacifica described her "as independent, social and happy." The psychologist observed that F.R.A. "is intelligent, artistic, and well coordinated. She is a cute girl that can elicit adult involvement and positive attention." F.R.A. has no reported physical problems, is not taking any medication, and appears to be on target developmentally except for some speech delays. Moreover, the foster parents' willingness to adopt the children " ' "indicates [they are] likely to be adopted within a reasonable time either by the prospective adoptive parent[s] or by some other family." ' [Citation.]" (In re Gregory A., supra, 126 Cal.App.4th at p. 1562.)

"Even if the juvenile court had relied solely on the foster [parents'] willingness to adopt, the adoptability finding would be supported by clear and convincing evidence. When a child is deemed adoptable only because a particular care taker is willing to adopt, the analysis shifts from evaluating the characteristics of the child to whether there is any legal impediment to the prospective adoptive parent's adoption and whether he or she is able to meet the needs of the child. [Citation.]" (In re Helen W. (2007) 150 Cal.App.4th 71, 80.) Here there is no evidence that the foster parents would face a legal impediment to adoption.

Furthermore, the evidence indicates that the foster parents are both committed to and capable of meeting the needs of the children. The psychologist stated that the foster parents "are working hard to understand what [F.R.A.] needs. . . . They appear committed to the children and adoption." Dr. Barbara Meyer, who supervised F.R.A.'s therapist, observed that F.R.A. "is now in a home that supports her developmental and emotional growth. She has been in weekly treatment, play therapy, designed to help her address her loss issues." She has "already met some of the goals of her Master Treatment Plan." F.R.A.'s social worker said that the foster parents "have been improving their parenting skills rapidly." According to the addendum report dated January 10, 2008, "[t]he foster parents have already begun to educate themselves on Attachment [D]isorder as well as many ways to actively foster [F.R.A.'s] attachments with significant people in her life. The foster parents have seen much growth in [F.R.A.] over the past four months and are committed to providing continued therapeutic treatment as long as necessary to aid [F.R.A.] in working through her feelings of loss and abandonment, depression and anger." A social worker "observed the children in the care of the prospective adoptive parents and was able to see the bond and attachments that have developed. . . . The children appeared to be comfortable in their prospective adoptive parents and looked to them for comfort and care."

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

COFFEE, J.

Tari L. Cody, Judge

Superior Court County of Ventura

______________________________

Iana Serobian, under appointment by the Court of Appeal, for Amber A., Appellant.

Noel A. Klebaum, County Counsel, County of Ventura and Oliver G. Hess, Assistant County Counsel, for Respondent.

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^[1]All statutory references are to the Welfare and Institutions Code.