In re Josiah C.

Filed 2/1/08 In re Josiah C. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from an order of the Superior Court of Orange County, Gary Bischoff, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant.

Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Paula A. Whaley, Deputy County Counsel, for Plaintiff and Respondent.

No appearance for the Minor.

* * *

Appellant contends the juvenile court erred when it found sufficient evidence to conclude the minor is adoptable and terminated parental rights. We affirm.

I

FACTS

Appellant Robert C. is the father of six-year-old Josiah C. He appeals from the juvenile courts order terminating his parental rights. He argues the juvenile courts finding the minor was adoptable was not supported by substantial evidence.

Almost two years ago, Josiahs mother was arrested for child endangerment when she left her three-month-old infant in the care of two juvenile runaways. The baby had not received food or had her diaper changed for several hours. The police found her brother Josiah unsupervised in a parked car in an alley. The court ordered both children removed from the physical custody of their mother.

Orange County Social Services Agency (SSA) spoke with the father the next month. He has a history of mental illness and has been diagnosed with bipolar disorder. He stated he served five years in prison and was discharged from parole the previous month. After that, SSA sent multiple letters to the father and tried to telephone him, but his phone had been disconnected. Eleven months after Josiah was detained, the social worker reported the father still had not responded.

A home study worker completed an adoption home study. The two siblings were placed in their prospective adoptive home a year ago. SSA reported [t]he prospective adoptive parents have expressed a strong interest and commitment to providing the children with a permanent and loving home. The study found the prospective adoptive parents both have careers which would enable them to provide a comfortable income for the family. They maintain a child centered home environment. They have attended all of the mandatory foster and adoptive parent classes offered through SSA in order to become licensed foster parents. They also completed the entire basic series of classes on adoption offered through the Kinship Centers Bridge Builders Program.

SSA reported: The prospective adoptive parents were able to interact one-on-one with the children and also encourage interaction with their biological children. They were able to set up a routine and have been consistent in following the routine to provide structure and limits for Josiah and [his sister]. The children have responded positively to this routine, and have followed the prospective adoptive familys directions. The children appear to respond positively to the personal interaction they receive from the prospective adoptive parents and have conversed with the foster family regarding questions about the childrens daily routine, habit, hobbies, etc.

Josiah told the social worker he was happy at the home and wants to remain with the prospective adoptive parents. Both he and his sister call them mother and father. In its assessment, SSA noted: The assessment is found that adoption is probable but the children are difficult to place due to membership in a sibling set. Josiahs behavioral difficulties, and the recommendation of both children being placed together. SSA advised the court the children were adoptable and recommended parental rights terminated.

At the Welfare and Institutions Code section 366.26 hearing, the fathers lawyer said she had not been in contact with her client for a long time, but my previous conversations with him have been that he does not want his parental rights terminated. Counsels argument to the court was that Josiah has behavioral issues that prevent him from being considered adoptable, so parental rights should not be terminated.

SSAs report of May 8, 2007 states: The caretaker reports that the child, Josiah [C.], has become increasingly aggressive in his behaviors and she is concerned. Josiah punched the prospective adoptive parents biological son in the stomach and is hitting [his younger sister] . . . . The prospective adoptive parent was made aware of Josiahs aggression prior to placement and she continues to be willing to work with him to change this behavior. Both children have complete developmental and psychological assessments with no indications of any issues prior to this placement. [] . . . The undersigned has called the childs therapist, Bruce Fredenberg, and requested to increase the therapy for the child and family to twice weekly. The prospective adoptive parents state that despite the behaviors they continue to be committed to the adoption process for both children.

After reading all the reports, the juvenile judge stated on May 8, 2008: It is clear to the court that both children are adoptable, and I think that its equally clear that the family that is currently taking care of them is committed to them and appears to be treating them appropriately. [] And even if the court were to have been in a situation to find that the children were difficult to place because of the fact that theyre a sibling set and that Josiah has some behavioral issues, that would, normally, require us to proceed pursuant to (c)(3), to identify an adoptive home; but thats already taken place. [] We already have an adoptive home and it doesnt appear that the behaviors that Josiah is exhibiting is really beyond the pale of what we, unfortunately, see with children who have come to us by way of the dependency system because of, unfortunately, the kind of experiences these young children are exposed to in their young lives. [] . . . I do find, by clear and convincing evidence, that it is likely that they will be adopted and that they are adoptable, and as a result, will order that the parental rights of the childrens parents . . . be terminated pursuant to 366.26 of the Welfare & Institutions Code.

II

DISCUSSION

The father now argues the juvenile courts finding that Josiah was adoptable was not supported by substantial evidence. The issue of adoptability focuses on the child, specifically, whether the childs age and physical and emotional condition are likely to make it difficult to find an adoptive placement. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.)

The juvenile court may terminate parental rights only if it determines by clear and convincing evidence that it is likely the child will be adopted within a reasonable time. [Citations.] (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1204.) Clear and convincing evidence requires a finding of high probability. The evidence must be so clear as to leave no substantial doubt. It must be sufficiently strong to command the unhesitating assent of every reasonable mind. [Citations.] [Citations.] (In re Amelia S. (1991) 229 Cal.App.3d 1060, 1065.) On appeal, we review the juvenile courts decision for substantial evidence. (In re Jennilee T. (1992) 3 Cal.App.4th 212, 224.)

The father cites In re Jerome D., supra, 84 Cal.App.4th 1200, 1204, to support his argument there is a lack of sufficient evidence. But, unlike the evidence in the instant case, in Jerome D., there was no finding there was an approved family willing to adopt the minor. (Id. at p. 1205.) In Amelia S., the foster parents were merely considering adoption or did not wish to adopt, circumstances much different than those in Josiahs situation. (In re Amelia S., supra, 229 Cal.App.3d at pp. 1062-1063.) In Brian P. (2002) 99 Cal.App.4th 616, the adoption assessment report stated the chances of adoption were very good, a rating somewhere below clear and convincing. (Id. at p. 624.)

Here, the children have been placed in the home of the prospective adoptive family. The approved prospective adoptive parents state they are committed to adoption. Josiah says he is happy in the home. Under these circumstances, we must conclude there is sufficient clear and convincing evidence to support the juvenile courts order.

III

DISPOSITION

We affirm the findings and order of the juvenile court.

MOORE, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

OLEARY, J.

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