In re Mariam D.

Filed 1/13/10 In re Mariam D. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Lloyd M. Harmon, Juvenile Court Referee. Affirmed.

Mariam D. (Mother) appeals a judgment terminating her parental rights to her minor daughter, Mariam M. D. (Mariam), under Welfare and Institutions Code[1] section 366.26. Mother challenges the sufficiency of the evidence to support the court's finding Mariam was adoptable. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In March 2008 the San Diego County Health and Human Services Agency (the Agency) filed a petition on behalf of newborn Mariam under section 300, subdivision (b). The petition alleged Mother suffered from a mental illness that rendered Mother unable to provide adequate care for Mariam.

At the time of Mariam's birth, Mother was a patient at a mental health facility and her condition had been diagnosed as paranoid schizophrenia. Health professionals described Mother as being paranoid about her surroundings and she had been hospitalized on at least one occasion because of her illness. Mother, in addition to her mental illness, had a history of drug abuse and admitted to abusing several illegal substances. Mother was under a conservatorship because she was unable to care for herself. Mother's conservator told social workers that Mother would need to remain in a psychiatric facility for at least 6 to 12 months.

The court held a jurisdiction and disposition hearing in May 2008. The court ordered that Mariam be declared a dependent, removed from Mother's custody and placed in out-of-home care. The court ordered that Mother receive six months of reunification services.

During the next six months, Mariam was placed in the home of her second cousin. Mariam did not show signs of developmental problems. At seven months of age, Mariam was able to crawl, sit up on her own and stand while holding the couch. She had a cute and playful personality and did not appear to suffer from any mental problems.

Mother had supervised visits with Mariam while living at the psychiatric facility. Mother participated in a psychiatric evaluation conducted by Walter J. Litwin, Ph.D. Dr. Litwin diagnosed Mother's condition as paranoid schizophrenia. Mother suffered from a severe mental illness and did not have the capacity to make decisions about Mariam's health, medication or educational needs. Dr. Litwin concluded that based on Mother's illness and her symptoms, it was highly unlikely that during the next 12 months, she would be able to benefit from services that would allow her to properly care for Mariam.

The court held a six-month review hearing and found that returning her to Mother's care would be detrimental to Mariam. The court terminated services and scheduled a section 366.26 selection and implementation hearing.

Social worker Valerie Pofahl submitted an assessment report to the court. Mariam was 14 months old and remained in the home of her second cousin. Mariam was a happy and active child and appeared to be developmentally on target. Pofahl believed that Mariam was adoptable because of her young age, personality and good health. Mariam's caregiver wanted to adopt her and the Agency identified numerous other families willing to adopt a child like Mariam. Mother continued to have weekly visits with Mariam. However, Mother's illness prevented her from being unable to interact with Mariam or fulfill a parental role in her life.

In May 2009 the Agency removed Mariam from her caregiver's home and placed her in a licensed foster home. The caregiver was no longer able to care for Mariam because of personal reasons.

Pofahl submitted an addendum report and continued to recommend termination of Mother's parental rights. The Agency identified 10 approved adoptive families interested in a child like Mariam. Eighty families living outside San Diego County also were identified by the Agency as prospective adoptive families. Pofahl did not believe Mariam would be difficult to place, and she had recently met with a prospective adoptive family interested in adopting Mariam.

The court held a section 366.26 hearing and received in evidence the Agency's reports. Mother testified at the hearing that she loved Mariam very much and did not want her to be adopted. Mother did not cross-examine the social workers. The court found by clear and convincing evidence that Mariam was likely to be adopted within a reasonable time and none of the statutory exceptions to adoption under section 366.26 applied. The court terminated parental rights and referred Mariam for adoptive placement.

DISCUSSION

Mother challenges the sufficiency of the evidence to support the court's finding that Mariam was adoptable. Mother asserts Mariam is not adoptable because she has a family history of mental illness that raises the risk Mariam will suffer a mental disability as she becomes older.

A

When reviewing a court's finding that a minor is adoptable, we apply the substantial evidence test. (In re Josue G. (2003) 106 Cal.App.4th 725, 732; In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings. We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 52.) Rather, we "accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact." (Id. at p. 53.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

The court can terminate parental rights only if it determines by clear and convincing evidence the minor is likely to be adopted within a reasonable time. ( 366.26, subd. (c)(1); In re Zeth S. (2003) 31 Cal.4th 396, 406; In re Amelia S. (1991) 229 Cal.App.3d 1060, 1065.) In determining adoptability, the focus is on whether a child's age, physical condition and emotional state will create difficulty in locating a family willing to adopt. (In re David H. (1995) 33 Cal.App.4th 368, 379.) The possibility a child may have future problems does not mean the child is not likely to be adopted. (In re Jennilee T. (1992) 3 Cal.App.4th 212, 223-225.) The presence or nonexistence of a proposed adoptive family is one factor to be considered by the court, but it is not itself determinative of the child's adoptability. (In re David H., supra, 33 Cal.App.4th at 378.) "[I]t is not necessary that the minor already be in a potential adoptive home or that there be a proposed adoptive parenting 'waiting in the wings.' " (In re Sarah M. (1994) 22 Cal.App.4th 1342, 1649.) "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." (Id. at pp. 1649-1650.)

B

The social worker's assessment report concluded Mariam is adoptable because she is an adorable, happy baby with a sweet personality. Mariam does not suffer from any mental illness or developmental delays. She has been able to attach and bond with others. The record shows Mariam had not been placed in an adoptive home at the time the court held the section 366.26 hearing. However, the Agency reported that 10 approved adoptive families in San Diego County are interested in adopting a child like Mariam. Pofahl met with one of these families and reported that the family is interested in adopting Mariam. The Agency also identified 80 families out of the county wanting to adopt a child with Mariam's characteristics.

Mother asserts there were some potential impediments to adoption because the Agency's reports had not discussed that Mariam has a family history of mental illness and that the illnesses might manifest in Mariam later in her life. The Agency argues to the extent Mother attacks the sufficiency of the assessment report on appeal, she has forfeited this argument. " '[A] parent's failure to object or raise certain issues in the juvenile court prevents the parent from presenting the issue to the appellate court. [Citations.]' " (In re Dakota S. (2000) 85 Cal.App.4th 494, 502.) Mother did not challenge the sufficiency of the assessment report at trial. She did not object to the Agency's reports being admitted in evidence and she did not cross-examine the social worker. The argument is forfeited on appeal. In any event, Mother's mental illness is documented in the Agency's reports.[2] Any prospective adoptive family would become fully aware of Mariam's needs and family background by reading these reports. Nothing in the record shows that families are not interested in adopting a child like Mariam, and the Agency remained confident a placement for Mariam could be found. Mariam's family history of mental illness does not, without more, create an impediment to adoption. (See In re Erik P. (2002) 104 Cal.App.4th 395, 400.)

DISPOSITION

The judgment is affirmed.

McDONALD, J.

WE CONCUR:

HUFFMAN, Acting P. J.

McINTYRE, J.

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[1] Statutory references are to the Welfare and Institutions Code.

[2] Mother argues that Mariam's father suffers from a mental illness, which contributes to the possibility of Mariam developing an illness as she becomes older. However, there is nothing in the record to show that Mariam's alleged father is her biological father.