Plaintiff and Respondent, v. BRANDY (2011)

Opinion following order vacating prior opinion

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

In this dependency case (Welf. & Inst.Code, § 300 et seq.),¹ Brandy H., the mother of a minor child adjudged a dependent of the juvenile court (Mother), has filed an appeal from that court's order terminating her parental rights over the minor.   Mother contends the court lacked sufficient evidence that her daughter is an adoptable child and therefore termination of paternal rights and a permanent plan of adoption for the minor should not have been ordered.   Our review of the record convinces us otherwise and therefore we will affirm the challenged order.²

BACKGROUND OF THE CASE

1. Intervention of Child Services

Caitlyn F. is the minor child in this case.   She was six years old when she came to the attention of the Los Angeles County Department of Children and Family Services (the Department) in June 2007.   The minor and her maternal grandmother (MGM) had been living in California for about a year when the MGM passed away in June 2007 of natural causes.   A relative found the minor asleep next to the deceased woman.   The MGM had been the minor's legal guardian since 2002.   The Department detained the minor to the home of her maternal uncle.

When Mother was interviewed by a Department social worker Mother stated the MGM's legal guardianship for the minor was voluntary on her (Mother's part) and entered into because Mother was abusing drugs and the MGM was better able to care for the minor.   Mother stated she was currently sober and had been for three years, she was living and working in Arizona, and the minor had lived with her there from mid-2004 to January 2006.   Mother stated the MGM and the minor visited her in April 2007.   She stated she was prepared to take custody of the child.   She was 28 years old at that time.

The section 300 petition filed by the Department on June 20, 2007 alleged the minor had no legal guardian to supervise and care for her and provide her with the necessities of life because her legal guardian, the MGM, is deceased.   The dependency court detained the minor with the maternal uncle, ordered the Department to provide Mother with family reunification referrals in Arizona, and ordered that Mother could have unmonitored day visits with the minor in Southern California.   Mother was 28 years old at the time

The minor was replaced to a foster home when her maternal uncle reported he found his three-year-old son on top of the minor and the son told the uncle that the minor had told him (the son) to “kiss her pee-pee.”   The minor stated she had seen Mother having sex.   She denied having been touched inappropriately by anyone.   The social worker opined the minor was probably engaging in age appropriate sexual curiosity and acting out something she had seen.   Mother stated she did not recall the minor walking in on her having sex.³

In a July 2007 interview with the minor a Department social worker investigator found the minor to be very bright, articulate, chatty and strong willed.   The minor again denied she had been sexually abused by anyone.   She indicated she wanted to live with Mother.   She referred to Mother, the MGM, and her foster mother all as “mommy.”

Mother was having telephone visits with the minor.   She and her boyfriend were living together and were both employed.   She told the social worker she had completed a four-week drug rehabilitation program in 2003 and had been drug free since.   There is a letter from a treatment center in Washington attesting to the treatment.

The social worker observed that an Interstate Compact on Placement of Children (ICPC) was needed in order for the Department to conduct a thorough investigation of both Mother and the other people living in her home in Arizona.   The social worker observed that although Mother suspected that the MGM's boyfriends might be sexually abusing the minor, Mother had permitted the child to live with the MGM. The social worker opined that based on the minor's background the minor has underlying mental and emotional stressors that she has learned to mask and she would benefit from assessment and intervention.

At the jurisdiction and disposition hearing the court sustained the allegation in the section 300 petition, declared the minor a dependent of the court, and ordered Mother to complete a parenting education program and random drug testing.   The court also ordered that the minor be enrolled in individual counseling, and it signed an order for an ICPC on Mother's home in Arizona.

2. The Minor is Replaced to Mother's Home in Arizona

Mother's home study was approved on the condition that she continues to submit to random drug tests.   The court's prior order of suitable placement for the minor was terminated on September 6, 2007, and the minor was released to Mother's care in Arizona at that time on the condition that Mother continue her parenting class and drug testing.   Thereafter a social worker from Arizona Child Protective Services (ACPS) reported to the Department that she had made four visits to Mother's home and found it appropriate for the minor, that the minor appeared happy and content living with Mother, and that the minor “seems somewhat hyper and presented with boundary issues” with strangers.   For the January 2008 review hearing the Department social worker recommended to the court that jurisdiction over the minor be terminated and the minor released to Mother with a Family Law Order in place.   However, just days before that hearing the minor was removed from Mother's care by ACPS because Mother and her boyfriend had a domestic violence incident and Mother refused to go to a domestic violence shelter.   ACPS placed the minor in protective emergency shelter and requested that she be returned to California.

Because of the incident the Department filed a section 387 supplemental petition alleging that Mother was not able to provide the minor with appropriate care and supervision in that the minor was making “false and implausible allegations of physical abuse, domestic violence and violence against animals.”   Reports from Arizona revealed that the minor told school officials that Mother and the boyfriend had a fight;  then the minor burned the boyfriend on his back with a cigarette lighter;  then the boyfriend put a knife on the stove and when it was hot he burned the minor and Mother with the knife;  and then he stabbed a dog.   Case notes from Arizona indicate that the minor made up most of the story.   There were no stabbings or burnings, but there was domestic violence in the home.   The minor told the person in Arizona who investigated the matter that the boyfriend was good at fixing things and he put the dog back together.   Mother stated that perhaps the minor was reporting harm to the dog because they were going to have the dog fixed and the cat already had a scar from being fixed.   An Arizona social worker opined the minor showed signs of ADHD and needed to be in counseling.

The minor was returned to California at the insistence of Arizona and detained in shelter care here.   Mother told a Department social worker that she and her boyfriend had never engaged in a physical altercation.   Mother indicated to her dependency court attorney that she would be willing to live in California until such time as the minor was released to her.   The court ordered monitored visits for Mother and counseling for the minor, and gave the Department discretion to place the minor in the home of Mother.⁴

3. The Minor Has Psychological and Psychiatric Testing and Treatment

At the adjudication of the amended section 387 petition in April 2008 the court ordered a psychological evaluation and individual counseling for the minor.   The person administering the psychological evaluation diagnosed the minor with ADHD and a learning disability and inquired of the social worker how she felt about the minor being placed on medication.   The social worker replied that the minor's IEP indicated she does not have a learning disability and the social worker had not observed any behavior that would cause the minor to need medication.   The minor's counselor was also of the belief that no medication was necessary.   The social worker opined that the minor is a normal active child who is able to sit still and have a meaningful conversation with the social worker.   At a progress hearing in July 2008 the court ordered a psychiatric evaluation for the minor.

The minor was doing well in school except for a notation on her first reporting period for second grade that she needed to improve in the area of “demonstrates appropriate behavior.”   She remained in counseling with her therapist.   The social worker reported that the foster mother, who had been caring for the minor since January 2008, was doing a good job of seeing to the minor's physical and emotional needs and the minor appeared to be doing very well in the foster home.   The foster mother reported for the October 2008 section 366.21, subdivision (f) hearing that in Mother's telephone calls to the minor Mother would tell the minor that she was trying to enter programs that the court ordered but something always comes up that prevented her from doing it, and Mother told the minor that if she could not do what the court ordered her to do she would give the minor to a friend.   For the January 2009 section 366.22 hearing the foster mother reported that when Mother tells the minor that she will be going to live with Mother soon, the minor becomes defiant for a few days thereafter.   The Department's reports state that Mother and the minor love each other, Mother remained a vital part of the minor's life, and although Mother was looking forward to the minor being returned to her care, Mother was comfortable with the minor remaining with the current foster mother in a legal guardianship until she could be reunited with Mother.   Mother had visits with the minor during the occasions when Mother would come to California for dependency court hearings.

At the request of the minor's attorney a Court Appointed Special Advocate (CASA) was appointed for the minor.   The CASA's January 2009 report states Mother and the minor were having twice weekly telephone calls, Mother was writing to the minor, and she sent her Christmas presents.   The report also states the minor was on medication (apparently for her ADHD diagnosis) and was in therapy.   The therapist reported that the minor had engaged in self-injurious behaviors at school but that behavior had stopped.   The foster mother reported that after the minor began the medication the minor was better able to manage her behavior in school and in the foster home.   The minor told the CASA it was “excellent” living with her foster family and if she could speak to the judge she would ask to visit with Mother.   The CASA opined that because of the bond between Mother and the minor it would be detrimental to the minor to terminate Mother's parental rights.   The CASA described the minor as “a very engaging, bright and precocious 7 year old.”

Both the Department and the CASA recommended termination of family reunification services and a legal guardianship for the minor.   At the January 2009 hearing the reunification services were terminated, and although the foster mother was in agreement with being the minor's legal guardian, the court ordered the Department to initiate an adoption home study “due to concurrent planning.”   The minor was removed from her foster home in February 2009 because of alleged inappropriate care of the minors there, and replaced to a new foster family.   About that same time, the minor was diagnosed with bipolar disorder, placed on medication for that condition, and taken off her ADHD medication.

The Department's reports for the July 2009 progress and status review hearings state the minor's original foster mother was cleared of wrongdoing and was still willing to serve as the minor's legal guardian.   However, the new foster mother, with whom the minor was placed in February 2009, stated she also would be willing to be the minor's legal guardian and so the minor remained in her care.   The Department was also looking for an adoptive family for her.   The minor received good grades in her new school.   She was attending parties, participating in ballet, attending youth camps, and “living a normal child life.”   Mother was telephoning the minor twice a week and the minor looked forward to the calls.   A report from the CASA states the minor was very happy in her new foster home.   The two foster children with whom she lived in her original foster home were also living in the new placement and the three children appeared to be bonded and were treating each other like siblings.   However, the minor very much wanted to return to Mother's care.   At the hearing the court noted the strong bond between Mother and the minor, and the court opined that setting the case for a section 366.26 hearing would not be in the minor's best interest.   Instead, the court ordered a permanent plan of placement in foster care with a goal of returning the minor to Mother's care, and it set a progress hearing for August 6, 2009.   It noted that Mother had indicated she was planning on moving to California.   In the meantime, the minor continued to receive psychiatric services as well as weekly counseling services, and to take medications for the assessed bipolar condition.   The foster mother reported the medications were working to control the minor's mood swings.   On August 6, the court ordered Mother's attorney to set a section 388 petition to address Mother's desire to have the permanent plan amended to place the minor with her instead of continuing in foster care.   However no petition was filed.

After Mother moved to California her phone calls to the minor decreased to approximately once a week and visits to approximately once a month, and the minor had adjustment issues that were addressed in therapy.   The minor became defiant, tended to run off in a store and appeared to be depressed when Mother did not call or visit her.   The foster mother spoke with Mother about making promises to the minor that Mother could not keep, saying it was making the minor quite upset and the minor was acting out when Mother did not follow through.   Mother told the Department she was not employed, had no money, and had transportation problems.   She was residing with the minor's maternal grandfather and maternal great grandmother.   The CASA opined that the most appropriate long term plan for the minor would be legal guardianship because of the minor's bond with Mother and the possibility that in adoption the minor could turn against an adoptive parent and engage in regressive behavior.   Although the minor was in tutoring and was above average in her reading ability, the foster mother intended to request an Individualized Education Program for the minor because she was having issues in school.

An October 5, 2009, quarterly outpatient report from the minor's therapist, whom she began seeing on November 25, 2008, reveals behavior issues the minor was having that are not detailed in the various Department and CASA reports.   It reveals that the minor had then-current treatment goals of (1) increasing her use of constructive coping skills that would replace pulling her own hair, screaming, and excessive fears when she experiences stressors, and doing so from a 1x/day baseline to 4x/day;  and, (2) following directives at a second prompt rather than at the sixth prompt (baseline).   The minor also had a social skills group goal of increasing her ability to follow adult directives by two prompts instead of five prompts (baseline).

The interventions the therapist was using with the minor included identifying stressors, learning healthy ways to express feelings, such as drawing and writing in a journal, learning positive self talk, relaxation techniques, and learning effective communication skills such as “I statements.”   The minor was also being taught active listening, role playing for stressful situations, cognitive modeling, overt external guidance and self guidance in being able to increase attention and focus.   The minor's foster parents completed a child-parent relationship therapy curriculum and were continuing with collateral sessions to make better their interaction style and parenting skills.   The minor and the foster parents were actively participating in their sessions.

The therapist's report also states the minor eliminated self-harming behaviors of burning herself with hot water and induced vomiting, and she increased “attention and frequency of on-task behaviors evidenced by following directives of Foster Parent and Teachers from 0x/day to 3x/day as of July 2009.”   She also resolved, with the help of her foster parents and the other children in the foster home, a problem of over possessiveness of toys and food (she was hiding them).   Additionally, she had recently displayed grief and loss issues, paranoia, and excessive fears.

A Department report for a January 2010 hearing to review the permanent plan shows the foster mother remained available to be the minor's legal guardian but like the minor's first foster mother, she rejected adoption on the grounds that the minor and Mother were too closely bonded and it would be detrimental to the minor to sever that bond.   The minor agreed that she did not want to be adopted.   She had been living with her then-current foster family for a year.   She continued in therapy and psychiatric services, continued on medication, continued to do well in her foster placement, and continued to want to be returned to Mother.   She kept a suitcase in her closet packed with clothes for the day when she could return to Mother's care.   The court set a section 366.26 hearing for April 2010, issued an order limiting the right of Mother to make education decisions for the minor, and placed that right with the foster parent.

According to the Department's reports for the April and July 2010 section 366.26 hearings the minor's last report card indicated she was earning positive grades, showing high motivation and interest, working well with others, and was a pleasure to have in class.   She was still on medication through her psychiatrist and still seeing her therapist weekly.   Her foster mother reported she was lying and stealing from others in the foster home and at school and was scheduled to begin a behavior modification problem through her school.   The foster mother was concerned that the minor's behavior was affecting the other children in the home.   The foster mother opined that this new, negative behavior of the minor was associated with the minor's contacts with Mother, such that when Mother was not calling and visiting on a regular basis the minor's behavior improved, and the behavior became negative when Mother would begin visiting or was visiting on a regular basis.   The negative behavior was believed to result from Mother telling the minor that she would be coming home soon and she did not need to follow the foster parent's rules.   The social worker asked the minor what adoption would mean for her.   She replied that adoption is plan B, with plan A being able to return to Mother's care.   She stated that adoption would occur if the judge said she could not live with Mother and that would mean the adoptive parents would keep her and she could not “go back to the other people.”

Prospective adoptive parents for the minor were identified.   Their home study had been approved in June 2009.   They were only interested in adoption, not legal guardianship.   The adoptions social worker indicated she did not foresee any obstacles that would prevent their adoption of the minor.   She stated that the minor's “primary concern was that the prospective adoptive applicants have a pool” and when she was told that they do have one, the minor was willing to proceed with placement steps.   The adoptions social worker indicated that pre-placement contacts (telephone calls, visits, etc.) between the minor and the prospective adoptive parents had begun and would increase gradually in frequency and duration until the minor was placed with the prospective adoptive parents.   It appeared that the visits went well, and the minor looked forward to them and stated she enjoyed them.   The minor indicated to her CASA that her first choice for where she would live would be with Mother, and if that were not possible, her next choices, in order of preference, would be living with relatives, a legal guardianship, and adoption.

In May 2010 the minor was removed from her foster home because the foster parents felt they were spending so much time dealing with the minor's behavior problems that they were neglecting their own biological children.   The minor was replaced to the home of the prospective adoptive parents.   The minor told a social worker she liked the prospective adoptive family and wanted to live with them.   The CASA opined that their home was a good one for the minor, and that the minor appeared to get along well with the prospective adoptive parents' four sons (ages 5 to 14) and really well with the prospective father.   Regarding the prospective adoptive mother, the minor appeared leery.   The prospective adoptive mother stated she is a firm parent but not inflexible, and although there could be rough roads ahead since the minor is bonded with Mother, she was willing to deal with the challenges that the minor might present.   About two months after the minor was placed in the home of the prospective adoptive parents, the prospective adoptive mother opined that the honeymoon period with the minor had passed.   The CASA replied that the minor's honeymoon periods tend to last up to a year.   The CASA opined that prior to termination of parental rights the minor should receive therapy to address the issue of adoption, and a report from the therapist should be received.

By the time of the July 2010 hearing Mother's contacts (visits and telephone calls) with the minor were described by the social worker as “rare and sporadic.”   She had not visited “in months” and was letting weeks go by between phone calls to the minor.   The prospective adoptive parents were providing the minor with appropriate care, and the social worker opined the minor appeared to be happy and very comfortable in their home.   The minor's attorney reported that the minor wanted to have unmonitored visits with Mother, and that she retained a belief that some day she may be able to reunify with Mother, but the attorney believed that the minor understood that Mother has issues and problems.   During a call on July 30 Mother told the minor that the prospective adoptive family is the one that the minor “need[s] to have.”   The minor continued to explore adoption issues with her counselor.   The CASA recommended that parental rights be terminated.

At the hearing on September 14, 2010, the dependency court found that the minor is adoptable and that the permanent plan of adoption is appropriate.   Parental rights were ordered terminated.   The minor's attorney indicated to the court that he supported the court's finding that termination of parental rights and adoption of the minor is in the child's best interest.

Mother filed a timely appeal from that order.   She contends there is insufficient evidence to support the dependency court's finding that the minor is an adoptable child.

DISCUSSION

1. The Concept of Adoptability

Section 366.26, subdivision (b) provides that when a dependency court is determining a permanent plan for a dependent minor child, it is termination of parental rights and adoption of the minor that is the first preference for that child, not legal guardianship, and not long term foster care.   Subdivision (c)(1) of section 366.26 directs that if the dependency court finds by clear and convincing evidence that it is likely a dependent child will be adopted, then parental rights should be terminated and an order for adoption made.   The likelihood that a minor will be adopted is a question of the child's “adoptability.”

In examining adoptability, section 366.26, subdivision (c) directs that an assessment be made.   An assessment under section 366.21, subdivision (i), which is mentioned in section 366.26, subdivision (c), includes, among other things, an “evaluation of the minor's “medical, developmental, scholastic, mental, and emotional status,” and “[a]n analysis of the likelihood that the child will be adopted if parental rights are terminated.   Thus, the Supreme Court has observed that the question of adoptability focuses on the minor child and whether the minor's age, physical condition, and emotional state make it difficult to find a person who is willing to adopt the minor.⁵  “All that is required is clear and convincing evidence of the likelihood that adoption will be realized within a reasonable time.”  (In re Zeth S. (2003) 31 Cal.4th 396, 406.)   Courts have described this burden of proof as one that is “a low threshold” (In re K.B. (2009) 173 Cal.App.4th 1275, 1292), and is “relatively easy for social services agencies to establish” (In re Jayson T. (2002) 97 Cal.App.4th 75, 84, disapproved on another matter in In re Zeth S., supra, 31 Cal.4th at pp.413-414).   Subdivision (c)(1) provides that “[t]he fact that the child is not yet placed in a preadoptive home nor with a relative or foster family who is prepared to adopt the child, shall not constitute a basis for the court to conclude that it is not likely the child will be adopted.”

In the instant case, when the dependency court terminated parental rights and ordered adoption as the permanent plan, the minor was already placed with a foster family that had become her preadoptive family.  “[I]t is only common sense that when there is a prospective adoptive home in which the child is already living, and the only indications are that, if matters continue, the child will be adopted into that home, adoptability is established.   In such a case, the literal language of [section 366.26, subdivision (c)(1) ] is satisfied, because ‘it is likely’ that that particular child will be adopted.”  (In re Jayson T., supra, 97 Cal.App.4th at p. 85.)   Moreover, even if the minor is not already living with the prospective adoptive parent, the fact that there is a prospective adoptive parent who is willing to adopt the minor creates the inference that other persons might also be willing to adopt the minor, and thus that the child's age, physical condition, mental state and other matters relating to the minor will not likely cause individuals to refrain from adopting the child.  (Ibid ;  In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-165..) However, “the present existence or nonexistence of prospective adoptive parents is, in itself, not determinative [of whether a child is adoptable].”  (In re Erik P. (2002) 104 Cal.App.4th 395, 400.)   It is not necessary to have identified prospective adoptive parents if there is clear and convincing evidence that the minor will be adopted in a reasonable time;  that is, that the aforementioned factors do not make it difficult to find a person willing to adopt.  (In re Jayson T., supra, 97 Cal.App.4th at p. 85;  In re Sarah M., supra, 22 Cal.App.4th at p. 1649.)

These rules address minors who are known as “generally adoptable” children.   When a child is considered generally adoptable, courts will not examine the suitability of the prospective adoptive home.  (In re Carl R. (2005) 128 Cal.App.4th 1051, 1061-1062.)   However, other minors are considered to be specifically adoptable because of their age, physical disability, poor physical health, or emotional instability.   That is, they are considered adoptable solely because a particular family is willing to adopt them.  (Id. at p. 1061;  In re Sarah M., supra, 22 Cal.App.4th at p. 1650.)   In those cases, the dependency court considers whether the prospective family is suitable for that child because of the minor's particular needs due to his or her physical, mental, or emotional conditions, and whether there is a legal impediment to adoption by that prospective family.   If the sole prospective adoptive family is not suitable or there is a legal impediment to adoption by those parents, termination of parental rights based on those parents' willingness to adopt the minor would not be appropriate because it would render the minor a legal orphan.  (In re Carl R., supra, 128 Cal.App.4th at pp. 1061-1062.)

2. Standard of Review

As noted, a trial court's finding of adoptability must be made by clear and convincing evidence.   A finding made with clear and convincing evidence is one based on high probability;  it leaves no substantial doubt.  (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205.)   When an appeal challenges a finding of a dependency court that was required to be made with clear and convincing evidence, the reviewing court applies the same standard of review that it does with respect to any order or judgment that is required to be based on that burden of proof.   That standard of review is the substantial evidence test.   Thus, the clear and convincing evidence standard is one for the trial court, not for reviewing courts.   If the reviewing court determines there is substantial evidence to support the trial court's finding, such finding will not disturbed.   In so examining the evidence, the appellate court applies the rule that judgments and orders are presumed correct and error must be affirmatively shown.   It also considers the evidence in the light most favorable to the respondent by giving that party the benefit of reasonable inferences;  and it resolves conflicts in the evidence in favor of the judgment or order by giving full effect to the respondent's evidence and disregarding the appellant's evidence.  (Shelia S. v. Superior Court (2000) 84 Cal.App.4th 872, 880-881.)

3. There Is Sufficient Evidence of the Minor's Adoptability

In arguing that there is insufficient evidence to support the trial court's finding of adoptability, Mother focuses on the minor's steadfast desire to be returned to Mother's care, her need for psychotropic medications for her diagnosed bi-polar condition, her being diagnosed as having ADHD, the necessity of her ongoing emotional therapy, her periods of acting out in school and during the time she was in various placements, and the fact that she was already nine years old when parental rights were terminated and the plan of adoption ordered.   Mother argues these matters make the minor specifically adoptable, not generally adoptable, and she asserts there is insufficient evidence regarding the suitability of the prospective adoptive parents.   She also objects that the court did not find whether the minor is generally or specifically adoptable, although she does not cite authority showing such a finding was necessary.

In asserting that there is sufficient evidence to support the court's finding of adoptability, the Department focuses on the reports that indicate the minor is intelligent and charming, she has scholastic success and an ability to get along in her placements, and her periods of bad behavior and disturbances to her emotional stability were sometimes caused by Mother's actions and statements to her.

We find that although the minor did exhibit bad behavior and emotional problems during her placements, the evidence of her positive attributes and behavior would be sufficient to support a finding of general adoptability.   As early as July 2007 the minor was described by a Department social worker as being very bright, articulate, chatty, and strong willed.   A year later a social worker described the minor as a normal active child who is able to sit still and have a meaningful conversation with the social worker.   In January 2009, the CASA described the minor as “very engaging, bright and precocious.”   The minor received positive school grades, and other than behavior problems at school from time to time, received positive comments from her teachers.   Her adaptability is demonstrated by the fact that (1) she referred to Mother, her MGM and at least one foster mother as “mommy”;  (2) she bonded with the other foster children in her first foster home and when she was replaced to the second home the other children went with her and together they were described as treating each other like siblings;  and (3) she enjoyed her foster families.

Although the minor had behavior problems in school and at her foster homes, she was receiving ongoing therapy and medication, she was compliant with taking the medication, her foster families were helpful in controlling the behavior, and the reports were positive in that her various negative behaviors were described as decreasing, under control, or being eliminated.   Moreover, both of her foster mothers reported that they often associated the minor's negative behavior with Mother's statements to the child, Mother's actions, and Mother's inactions (sporadic visits and phone calls).   The Department always reported that the minor appeared to be doing well in the home of the foster mother with whom she was placed in January 2008, and the minor described living with that foster family as “excellent.”   The unfortunate removal of her from that home in February 2009 on charges against the foster parent that were ultimately found to be not true nevertheless resulted in that foster mother being willing to have the minor placed back into her home.   However, the minor remained in her new foster home, and as with her former foster family, the minor reported she was very happy in the new home.   She was attending parties, participating in ballet, attending youth camps, and “living a normal child life.”   Although that foster mother asked that the minor be replaced to another home because attending to the minor's behavior issues was short-changing her own children, the minor entered her next foster home with a positive attitude.   It must be remembered that the minor lived her life pillar to post.   She lived first with Mother.   That was followed by periods of living with the MGM, then Mother and the MGM, then the MGM, then the maternal uncle, and then three foster families.   One would be surprised if she did not have behavior problems from time to time, and as noted, her negative behavior was often observed by her caretakers to be caused by Mother herself.   Moreover, throughout all this, the minor was receptive to new families, she adapted to them, and she was generally able to get along with the people in the various foster homes.

Regarding adoption, the minor always maintained that her first choice would be to return to Mother's care.   Reports for the mid-2010 section 366.26 hearing indicate she was aware of what adoption would mean.   She stated it would mean that the court had ordered that she could not return to live with Mother, the adoptive parents would keep her, and she could not “go back to the other people.”   The Department social worker reported that the minor's primary concern about the preadoptive home that was located for her was that it have a pool and when told that the home does have a pool, the minor was willing to proceed with placement steps.   She was positive in her visits with the prospective adoptive family, stating she enjoyed them.   When she was replaced to the home of the prospective adoptive family in May 2010, she told the social worker she liked the prospective adoptive family and wanted to live with them.   The CASA opined that the minor appeared to get along well with the four sons in the home and the prospective adoptive father, and even though the minor appeared leery of the prospective adoptive mother, the CASA believed that their home would be a good one for the minor.   Although the minor's attorney reported that the minor still retained a belief that some day she could reunify with Mother, the attorney believed the minor understood Mother has issues and problems, and the social worker reported she appeared to be happy and very comfortable in the prospective adoptive family home.   In her final report the CASA recommended that parental rights be terminated and the adoption be finalized.

DISPOSITION

The order from which Mother has appealed is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We Concur:

FOOTNOTES

FN1. Unless otherwise indicated, all references herein to statutes are to the Welfare and Institutions Code..  FN1. Unless otherwise indicated, all references herein to statutes are to the Welfare and Institutions Code.

FN2. The minor's alleged father is not a part of this appeal and we make no further mention of him..  FN2. The minor's alleged father is not a part of this appeal and we make no further mention of him.

FN3. Mother told the Department that she did not have a belief that the minor had been touched inappropriately.   However, an exhibit attached to the Department's July 30, 2007 jurisdiction/disposition report shows that in January 2005 Mother had the minor examined at a pediatric clinic on suspicion of sexual abuse in 2004.   Mother told the examining doctor that the MGM had failed to protect Mother from sexual abuse by the MGM's boyfriends when Mother was a child.   Mother told the doctor the minor's “pee pee is irritated a lot,” the minor often pulled at her underwear especially after visiting the MGM, the minor dances like a stripper when her clothing is off, but the minor had not made any reports of inappropriate touching..  FN3. Mother told the Department that she did not have a belief that the minor had been touched inappropriately.   However, an exhibit attached to the Department's July 30, 2007 jurisdiction/disposition report shows that in January 2005 Mother had the minor examined at a pediatric clinic on suspicion of sexual abuse in 2004.   Mother told the examining doctor that the MGM had failed to protect Mother from sexual abuse by the MGM's boyfriends when Mother was a child.   Mother told the doctor the minor's “pee pee is irritated a lot,” the minor often pulled at her underwear especially after visiting the MGM, the minor dances like a stripper when her clothing is off, but the minor had not made any reports of inappropriate touching.

FN4. After Mother returned to California in February 2008 she tested positive from time to time for various drugs and that prompted the filing of a first amended section 387 petition in April 2008.   Mother submitted on the issue of jurisdiction on the amended petition, to wit, that Mother has a history of substance abuse and recently tested positive for illicit drugs, and that the minor has special and unique behavior which Mother is not able to adequately address.   The court declared the minor a dependent of the court, ordered Mother to drug rehabilitation with random testing and parenting education, and ordered monitored visits for Mother, with discretion to liberalize.   After that, Mother was a “no show” for some drug testing, tested positive for some tests, and tested negative for others.   By early July 2008 she had returned to Arizona.   In August 2008 the ACPS contacted the Department with information that Mother was under investigation for non-accidental injuries to the child of her roommate, and that Mother and her boyfriend “were the only two home” when the child was injured.A Department report notes that Mother had a pattern of enrolling in programs before dependency court hearings and then stopping them after the hearings.   Between the November 2008 and January 20 2009 dependency court hearings, she completed a parenting class and enrolled in a rehabilitation program.   She completed that program in early May 2009..  FN4. After Mother returned to California in February 2008 she tested positive from time to time for various drugs and that prompted the filing of a first amended section 387 petition in April 2008.   Mother submitted on the issue of jurisdiction on the amended petition, to wit, that Mother has a history of substance abuse and recently tested positive for illicit drugs, and that the minor has special and unique behavior which Mother is not able to adequately address.   The court declared the minor a dependent of the court, ordered Mother to drug rehabilitation with random testing and parenting education, and ordered monitored visits for Mother, with discretion to liberalize.   After that, Mother was a “no show” for some drug testing, tested positive for some tests, and tested negative for others.   By early July 2008 she had returned to Arizona.   In August 2008 the ACPS contacted the Department with information that Mother was under investigation for non-accidental injuries to the child of her roommate, and that Mother and her boyfriend “were the only two home” when the child was injured.A Department report notes that Mother had a pattern of enrolling in programs before dependency court hearings and then stopping them after the hearings.   Between the November 2008 and January 20 2009 dependency court hearings, she completed a parenting class and enrolled in a rehabilitation program.   She completed that program in early May 2009.

FN5. Section 366.21, subdivision (i)'s provisions for assessment also include a preliminary assessment of the eligibility and commitment of an identified prospective adoptive parent and the relationship of the minor to the prospective adoptive parent, including the duration and character of that relationship, the motivation of the prospective adoptive parent for seeking adoption, and a statement from the minor concerning placement and the adoption “unless the child's age or physical, emotional, or other condition precludes his or her meaningful response, and if so, a description of the condition.”Although a parent may waive defects in the adoption assessment by failing to challenge it in the trial court, no objection need be made in the trial court to assert, on appeal, that the social services agency did not prove, by clear and convincing evidence, that the minor child is likely to be adopted.   The issue of substantial evidence to support a judgment or order is not waived by failure to raise it in the trial court.  (In re Brian P. (2002) 99 Cal.App.4th 616, 622-623.).  FN5. Section 366.21, subdivision (i)'s provisions for assessment also include a preliminary assessment of the eligibility and commitment of an identified prospective adoptive parent and the relationship of the minor to the prospective adoptive parent, including the duration and character of that relationship, the motivation of the prospective adoptive parent for seeking adoption, and a statement from the minor concerning placement and the adoption “unless the child's age or physical, emotional, or other condition precludes his or her meaningful response, and if so, a description of the condition.”Although a parent may waive defects in the adoption assessment by failing to challenge it in the trial court, no objection need be made in the trial court to assert, on appeal, that the social services agency did not prove, by clear and convincing evidence, that the minor child is likely to be adopted.   The issue of substantial evidence to support a judgment or order is not waived by failure to raise it in the trial court.  (In re Brian P. (2002) 99 Cal.App.4th 616, 622-623.)