In re Stephanie H.

Filed 5/23/08 In re Stephanie H. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of San Bernardino County. A. Rex Victor, Judge. Affirmed.

Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant and Appellant.

Ruth E. Stringer, County Counsel, and Sandra D. Baxter, Deputy County Counsel, for Defendant and Respondent.

Carl Fabian, under appointment by the Court of Appeal, for Minor.

Donna C. (mother^[1]) appeals a judgment terminating her parental rights as to her one-year-old daughter, Stephanie H. (Welf. & Inst. Code,^[2] 366.26.) Mother contends there is insufficient evidence to support the adoptability finding because the Department of Childrens Services (DCS or department) did not adequately evaluate the nature and quality of mothers relationship with mother. We find no error and affirm.

1. Background

Mother gave birth to Stephanie at home, with assistance from the fire department. Both were transported to a hospital where each tested positive for opiates, cocaine and methamphetamines. In the hospital, Stephanie exhibited severe withdrawal, and mother exhibited strange behavior, leaving the hospital for extended periods before she was discharged and returning to the hospital exhibiting a different demeanor. Mother used heroin four times in the week prior to Stephanies birth rather than admit herself to a hospital for drug treatment as recommended. She had a 20-year history of heroin addiction as well as a history of mental illness with bipolar disorder.

A dependency petition was filed alleging that mother was unable to provide regular care for the child due to the parents mental illness, developmental disorder, or substance abuse. Pending the adjudication of the petition at the jurisdiction hearing, the court detained the child out of the parental home, and referred the parents to drug court to observe. At the contested jurisdiction hearing, the court sustained the petition and declared Stephanie to be a dependent child, finding that mother was unable to provide regular care for the child. ( 300, subd. (b).) The court ordered the parents to participate in a reunification plan which included weekly visitation. The court authorized the social worker to liberalize visitation when and if appropriate. The case plan required mother to participate in counseling, abstain from illegal drugs, submit to random drug testing, obtain a mental health assessment and resume psychotropic medication, attend early child development classes, and complete a DCS approved drug-treatment program.

The six-month review hearing took place on August 7, 2007. In the report prepared for the hearing, the social worker noted that mother had not fulfilled the general counseling or mental health counseling components and she was not taking her psychotropic medications as required, nor had she attended parenting classes. She had submitted to random drug testing and tested clean since February. Mothers visits with Stephanie were irregular; out of 14 scheduled visits between February 28, 2007, and June 25, 2007, mother attended only six visits. If the baby cried during the visit, mother would hand the baby off to the foster mother. In the social workers opinion, mothers prognosis was poor, so DCS recommended terminating services and setting a permanency planning hearing. At the hearing, the court followed the social workers recommendation and set a hearing to select and implement a permanent plan for Stephanie.

The selection and implementation hearing took place on December 11, 2007. At the hearing, the court heard the testimony of mother, and received the social workers report for the section 366.26 hearing, a status review report and an addendum report, as well as the adoption assessment report, into evidence. The report prepared for the selection and implementation hearing indicated that in the four months since the August 2007 hearing, mother had visited only five times. Despite this information, mother testified at the hearing that she visited weekly and had missed only two visits due to a doctors appointment and someones vacation. Mother opposed the recommended permanent plan of adoption because she felt she had a strong parental relationship with her child.

The trial court found there was clear and convincing evidence it was likely Stephanie would be adopted. The court observed that mothers testimony of missing only a few visits was a gross exaggeration, noting the sporadic visits described by the social worker. The court found the child looked upon the foster parents as her parents and that any parental bond that might exist with mother was far outweighed by the childs need for permanency and to place in a nurturing home. Based on these findings, the court terminated parental rights of the parents. Mother appealed.

2. Discussion

1.                  Challenges to the Adequacy of the Adoption Assessment Have Been Forfeited By Mothers Failure to Object.

The Department contends that although mother has framed her challenge as an argument that the evidence was insufficient to support the juvenile courts finding of adoptability, in reality, her challenge is to the adequacy of the adoption assessment. While a challenge to the sufficiency of the evidence is not forfeited by failure to raise the issue in the juvenile court (In re Brian P. (2002) 99 Cal.App.4th 616, 623), a challenge to the adequacy of the adoption assessment is so forfeited. (In re Urayna L. (1999) 75 Cal.App.4th 883, 886; see also, In re Crystal J. (1993) 12 Cal.App.4th 407, 412.)

Mother failed to raise the issue of the adequacy of the adoption assessment in the juvenile court, so that challenge is forfeited. A party is precluded from urging on appeal any point not raised in the trial court. (In re Aaron B. (1996) 46 Cal.App.4th 843, 846.) However, we will address the claim that the finding of adoptability is not supported by substantial evidence. (In re Brian P., supra, 99 Cal.App.4th at p. 623.)

2.                  Substantial Evidence Supports the Judgment Terminating Parental Rights.

Mother challenges the sufficiency of the evidence to support the finding that Stephanie was adoptable. We review the juvenile courts adoptability determination for substantial evidence. (In re Y.R. (2007) 152 Cal.App.4th 99, 112.)

In assessing the sufficiency of the evidence, we must presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) We do not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts. (Ibid.) The judgment will be upheld if it is supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)

Before the juvenile court terminates parental rights and selects a permanent plan of adoption, the juvenile court must find, by clear and convincing evidence, that it is likely the child will be adopted. ( 366. 26, subd. (c)(1).) The issue of adoptability focuses on whether the minors age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor. (In re B.D. (2008) 159 Cal.App.4th 1218, 1231.) A prospective adoptive parents 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. (1994) 22 Cal.App.4th 1642, 1650.)

Mother contends the finding of adoptability was based solely on the expressed desire of Stephanies caretakers to adopt her, but that adoption was not assured because the home study had not been conducted. Mother argues that Stephanie is in her third placement, has emotional and behavioral problems, experiences shaking due to prenatal exposure to drugs, has lazy eye which requires an eye patch, and would require extra attention, implying Stephanie is difficult to place. ( 366.26, subd. (c)(3).) We disagree.

The problems noted were present in earlier stages of Stephanies development, from shortly after birth until March 2007, when first placed in her current adoptive home. But the more current information revealed Stephanie did not appear to have special long term needs. More significantly, the passage of time has seen Stephanie blossom into a happy, active, healthy little girl, whose development is on target. The social workers opinion was that Stephanie is an adoptable child. The substantial evidence supports the trial courts finding of adoptability.

3.                  The Juvenile Court Based Its Judgment on Adequate Information Addressing the Nature and Quality of the Contacts and Relationship Between Mother and Stephanie.

Apparently aware that her failure to object to the adoptability assessment waived any challenges to the assessment, mother argues that the juvenile courts finding of adoptability is not supported by sufficient evidence of the nature and quality of the relationship between Stephanie and her mother. We disagree.

The evidence presented at the hearing included four reports: (1) the report prepared for the section 366.26 hearing, (2) the adoptability assessment, (3) a status review report, and (4) an addendum report. These reports show that in the first four months after the declaration of dependency, mother had six visits. Between August 8, 2007, (the referral hearing), and November 21, 2007, (the date of the section 366.26 report, approximately four months), mother had five visits. Eleven visits in a nine-month period is not regular contact, and the description of mothers relationship with Stephanie during those visitshanding her off to the caretaker when Stephanie would cryspeaks volumes about the nature and quality of the relationship between Stephanie and mother: there was no relationship.

The fact the adoptability assessment report did not contain a discrete section reviewing the amount and nature of any contact between the child and his or her parents ( 366.21, subd. (i)(1)(B)) is not before us because mother did not object to the inadequacy of the report, as discussed in the first section. Further, any omission in the adoptability assessment was cured by the social workers section 366.26 report, discussing the number of visits, as well as the status review report, setting out the number of visits and the quality of the contacts, all of which were submitted to the court and considered along with the adoptability assessment.

There was ample evidence of mothers minimal contact with Stephanie, and the quality of that contact (ending visits early if the baby cried and handing Stephanie to the caretakers) to support a finding that Stephanie is adoptable.

3. Disposition

The judgment terminating parental rights is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Gaut

J.

We concur:

s/Richli

Acting P. J.

s/Miller

J.

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^[1] The presumed father of Stephanie was deported to Mexico in approximately December 2006. He did not appear at any further hearings in the dependency action, and has not appealed.

^[2] All further references are to the Welfare and Institutions Code unless otherwise stated.