In re J.T.
Filed 9/3/13
In re J.T. CA2/3
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
THREE
In re J.T., et al., Persons Coming Under the Juvenile
Court Law.
B245985
(Los
Angeles County
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY
SERVICES,
Plaintiff
and Respondent,
v.
CHARMAIN T.,
Defendant
and Appellant.
Super.
Ct. No. CK89841)
APPEAL from an order of the Superior
Court of Los
Angeles County, Marilyn Kading Martinez, Judge. Affirmed.
Terence M. Chucas, under appointment
by the Court of Appeal, for Defendant and Appellant.
Office
of the County Counsel, John F. Krattli, County Counsel,
James M. Owens, Assistant County Counsel, and Jessica S. Mitchell,
Senior Deputy County Counsel, for Plaintiff and Respondent.
___________________________________________
Appellant mother seeks to reverse the dependency court’s
order terminating her parental rights
with respect to her two children. She
contends that there was insufficient evidence that her children were adoptable.
BACKGROUND
Charmaine
T. (mother) is the mother of J.T. (J.), born in April 2004, and
Jesse T. (Jesse), born in
September 2005. On April 19, 2011,
mother left the children
in the care of maternal grandmother. While mother was out, Orange County probation
officers conducted a search of maternal grandmother’s home and found cocaine
residue on a spoon. Maternal grandmother
admitted to using cocaine two days prior.
The officers arrested maternal grandmother and took the children into
The
probation officers attempted to reach mother but she did not answer her
phone. After approximately four hours,
mother called back to inquire about her children. Mother acknowledged that she was aware that
maternal grandmother had recently been incarcerated for drug-related charges
and had only been released from jail within the previous two months. Mother also admitted to using marijuana up to
twice weekly while she was the primary caretaker of the children. Father was incarcerated due to domestic
violence and drug sales.
Both
children reported that mother and father hit children with a belt and
a hanger, leaving bruises and cuts on them. Jesse had a large scar on his chest which he
said he received when father’s nail cut into him when father grabbed him by the
shirt. J. reported that mother hit her
in the face once, cutting her under her left eye.
The
Department of Children and Family Services (Department) filed a dependency
petition alleging that J. and Jesse came within the jurisdiction of the
juvenile court within the meaning of Welfare and Institutions Code,
section 300, subdivisions (a)
name="_ftnref3" title="">[3]
and (b)
based on mother’s and father’s physical abuse of the children, mother’s use of
marijuana, mother’s history of alcohol abuse, mother’s decision to leave the
children in the care of maternal grandmother, and the parents’ domestic
violence history.
On
June 2, 2011, the Orange County juvenile court sustained the petition’s
allegations under section 300, subdivision (b), and declared J. and Jesse
dependents of the court. The court
approved the case plan which provided for mother to participate in domestic
violence counseling, a parenting class, and a drug treatment program. Mother was granted monitored visitation with
the children.
On
June 7, 2011, the children were placed with maternal great-aunt. In a status review report prepared for the
six-month hearing, the Department reported that mother’s cooperation with the
case plan was minimal. The Department
also reported that the children enjoyed visiting with mother but that mother
had not shown she had completed a drug or alcohol treatment program. The Orange
County juvenile court found that mother had made minimal progress in
alleviating the causes necessitating placement of the children. The court transferred the matter to Los
Angeles County based on mother’s residence and the children’s placement there.
In
a report prepared for the 12-month review hearing, the Department reported that
the children remained with maternal great-aunt and were closely bonded with
her. In addition, the Department found
that maternal great-aunt was dedicated to working with the children’s medical
health providers to address the children’s needs. Mother had visited the children on a sporadic
basis. On June 1, 2012, the court
terminated mother’s reunification services and set the matter for a section 366.26
hearing.
In
an interim review report filed in September 2012, the Department reported that
maternal great-aunt consistently expressed her desire to provide the children
with a permanent home through adoption.
Furthermore,
the children stated that they loved maternal great-aunt and were happy living
with her. The children’s therapist
reported in September 2012 that when the children were asked where they wanted
to live, J. told the therapist that she was “not sure†and Jesse responded by stating that he was
“fine†at maternal great-aunt’s house and liked it there. The therapist also reported that Jesse was
disappointed that he had not moved back with mother, and that his infrequent
contact with mother made him feel sad.
At
the section 366.26 hearing on November 9, 2012, mother’s counsel objected to
the termination of parental rights on the grounds that maternal great-aunt had
not completed a home study. The court
responded that a home study is not a prerequisite to the termination of
parental rights and that, furthermore, there was no evidence of any barrier to
completing the adoption. The children’s
counsel stated that maternal great‑aunt said that she was interested in
adopting the children, and that depending on the children’s wishes, she would
either adopt them or act as their legal guardian. The court found by clear and convincing
evidence that the children would likely be adopted in a reasonable amount of
time and terminated parental rights.
Mother filed a timely notice of appeal.
Mother
contends that substantial evidence
does not support the court’s finding that the children were adoptable.
DISCUSSION
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. (Section 366.26, subd. (c)(1).) “ ‘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.]’
We give the court’s finding of adoptability the benefit of every
reasonable inference and resolve any evidentiary
conflicts in favor of affirming.
[Citation.]†(
Cal.App.4th 1554, 1561-1562.)
“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. [Citations.]†(In re
Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) “[T]he fact that a prospective adoptive
family has been identified is an indication that the child is likely to be
adopted within a reasonable time.†(
870.)
Mother
first contends that there was no substantial evidence that the children were
adoptable because the record contained insufficient information about maternal
great-aunt’s willingness to adopt the children. “[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.†(In re
Sarah M., supra, 22
Cal.App.4th at p. 1649.) Mother contends
that maternal great-aunt equivocated about her willingness to adopt the
children citing to maternal great-aunt’s statement that although she wanted to
adopt the children, depending on the children’s wishes, she was willing to
either adopt them or act as their legal guardian. However, that maternal great-aunt was willing
to consider the children’s wishes about being adopted does not show that she
was unwilling to provide them with a permanent home through adoption. Furthermore, the Department reported that
maternal great‑aunt consistently expressed her desire to adopt the
children.
Mother
also argues that the record contained insufficient evidence about the current
status of Jesse’s physical health. A
child’s physical condition constitutes only one of multiple factors the court
must consider in determining whether a child is adoptable. (In re Sarah M., supra, 22 Cal.App.4th at p. 1649.) Here, the record reflected that maternal
great-aunt was dedicated to working with Jesse’s and J.’s medical care
providers to address the children’s needs.
Accordingly, the evidence indicated that maternal great-aunt was aware
of Jesse’s physical condition and committed to providing him with the care he
needed. Maternal great-aunt’s continued
interest in adopting Jesse despite his medical issues constituted evidence that
his physical condition was not likely to dissuade individuals from adopting
him. (Ibid.) Therefore, mother has
not shown that the court’s finding of adoptability was unsupported by
substantial evidence merely because the record did not contain certain
information about Jesse’s physical health.
Lastly,
mother contends that the record did not contain a statement from the children
expressing their wishes about adoption, and that there was evidence that the
children wanted to reside with mother.
Although section 366.26, subdivision (h) requires that the court at
the selection and implementation hearing “consider the wishes of the child,â€
the juvenile court is not bound by the wishes of a child less than
12 years of age. (Section 366.26,
subd. (c)(1)(b)(ii); In re Joshua G. (2005)
129 Cal.App.4th 189, 201.)
Here,
at the time of the hearing, J. was eight years old and Jesse was six years
old. The therapist’s report indicated
that when the children were asked where they wanted to live, J. told the
therapist that she was “not sure†and
Jesse responded by stating that he was “fine†at maternal great-aunt’s house
and liked it there. Furthermore, the
children stated that they loved maternal great-aunt and were happy living with
her. Although Jesse also said that he
was disappointed he had not been able to move back with mother, this could mean
that he was disappointed mother had not made sufficient efforts to reunify with
him. Accordingly, the record provided
sufficient evidence by which the juvenile court could ascertain the children’s
wishes about adoption. In the absence of
evidence to the contrary, a reviewing court presumes the trial court performed
its statutory duty. (Evid. Code,
§ 664.) Therefore, we presume the
juvenile court took the evidence regarding the children’s wishes about adoption
into consideration.
The
order terminating mother’s parental rights is affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
CROSKEY,
J.
WE CONCUR:
KLEIN,
P. J.
ALDRICH,
J.
name="_ftn1" title="">[1] Although
mother’s notice of appeal also challenges the court’s denial of her
section 388 petition, mother does not address this issue in her
appeal. (Huntington Landmark Adult Community Assn. v. Ross (1989) 213 Cal.App.3d 1012,
1021 [contentions supported by neither argument nor citation of authority are deemed to be
without foundation and to have been abandoned].)
name="_ftn2" title="">[2] All
further statutory references are to the Welfare and Institutions Code.
