IN RE: M.L. (2011)

Court of Appeal, Second District, California.

IN RE: M.L., a Person Coming Under the Juvenile Court Law.2d Juv. SANTA BARBARA COUNTY CHILD PROTECTIVE SERVICES, Plaintiff and Respondent, v. BARBARA W., Defendant and Appellant.

No. B226698

Decided: April 18, 2011

Barbara W., the biological mother of 13–year–old M. L., appeals from an August 17, 2010 order terminating parental rights.  (Welf. & Inst.Code, § 366.26.) 1 Appellant claims the evidence does not support the finding that M.L. is likely to be adopted. (§ 366.26, subd. (c)(1).)   We affirm.   Facts and Procedural History On April 11, 2008, Santa Barbara County Child Welfare Services (CWS) filed a dependency petition for sibling abuse, failure to protect, and failure to support M.L. (§ 300, subds.(b), (g) & (j).)  School authorities reported that M.L. had missed 15 out of 21 school days and had seven unexcused absences.   M.L. was struggling socially and academically.   In 2007she missed eight months of her fourth grade school year.   CWS reported that appellant moved from county to county and had 10 prior referrals, two of which had been substantiated and resulted in the removal of her children. who were at risk of suffering serious physical harm or illness.   Appellant was living at the Good Samaritan Shelter, appeared to be under the influence of drugs, and provided false information to the social worker.   Appellant refused to let CWS interview M.L. and the whereabouts of M.L.'s presumed father, H.L., was unknown.   M.L. was detained on April 14, 2008 and the matter was set for a contested jurisdiction hearing.   Thereafter,, the trial court found the allegations in the petition to be true and ordered M.L. detained.   The court denied appellant's motion to transfer the case to Orange County where she had recently moved.   Appellant failed to appear at the July 14, 2008 disposition hearing.   The trial court declared M.L. a dependent of the court and ordered foster care, reunification services, and visitation.   Appellant was ordered to undergo a substance abuse treatment assessment, take prescription drugs only in the amounts proscribed, undergo a psychological evaluation, attend a parenting education program, obtain a safe and stable residence, and not discuss the case with M.L. Appellant requested a hearing to contest the implementation of family reunification services but missed several court dates.   On April 11, 2008, appellant was ordered to stop calling the foster home and to give CWS her current address.   On October 20, 2008, the trial court denied appellant's Marsden motion (People v. Marsden (1970) 2 Cal.3d 118) and found that appellant had not provided appropriate contact information or “lived up to her responsibilities in terms of making her court appearances․”  A contested disposition hearing was conducted on November 13, 2008.   Appellant testified that she was living in a shelter, had not attended parenting classes or counseling programs, had not followed through on the substance abuse evaluation, and had missed three psychological evaluation appointments.   The trial court declared M.L. a dependent of the court and ordered appellant to participate in family reunification services.   The court warned appellant to stop “fighting everybody on every front and making up excuses for all the reasons why you're not doing services․”  Appellant was ordered not to undermine M.L.'s placement or encourage M.L. to disrespect her foster parents.   At the six month review hearing, appellant was still living in Santa Ana, had not obtained suitable housing, and was not cooperating with the case worker.   Visitation was sporadic.   Although appellant was provided $1,100 in gas cards to facilitate visitation, appellant used the gas cards to purchase cigarettes, soda, and snacks and did not save receipts.   The trial court found that appellant had made no progress towards alleviating or mitigating the causes necessitating M.L.'s placement and continued reunification services.   The case was calendared for a June 1, 2008 twelve-month permanency hearing. (§ 366.21, subd. (f).)  At the twelve-month permanency hearing, CWS recommended that family reunification services be terminated because appellant had not met any of her case plan objectives.   Appellant refused to cooperate with the case worker and had missed 22 out of 26 scheduled visits.   Appellant claimed that it would take too much time to travel and refused to use prepaid Amtrak and Greyhound tickets to visit M.L. The case worker reported that appellant had essentially abandoned M.L. When visitation did occur, appellant tried to undermine the placement and CWS staff.   Appellant was afforded bi-weekly phone visitation but abused it, calling the foster home at random times and demanding to speak to M.L. The case worker reported that appellant questioned M.L. “over and over, on the most mundane details of her placement and daily activities.   [Appellant's] comments were often of a negative focus, and she consistently painted M.L.'s foster parents and the Department as abusive and uncaring.”   In one call, appellant told M.L. that her attorney and CWS staff “were lying to her and had always lied to her․”  The case worker reported that M.L.'s “emotional state continues to spiral downward at every incendiary and negative comment [and] with each broken promise and false hope offered by her mother.”   After the trial court suspended telephone visitation, appellant requested a contested hearing but failed to appear at the July 16, 2009 hearing.   The trial court found that appellant was not participating in the case plan, terminated reunification services, and set the matter for a section 366.26 hearing.   Appellant requested a contested hearing, filed a section 388 petition to reinstate visitation and transfer the case to Orange County, and failed to appear three times.   On March 8, 2010, CWS reported that M.L. had been in protective custody for 24 months and “continues to search for her own permanency solution, as evidenced by her recent recruitment of potential foster/adoptive parents, in her reaching out to parents of friends, and in her discussions of adoption.”   M.L.'s therapist recommended that M.L. not have visitation or telephone contact with appellant because it was detrimental to the child.   A combined section 366.26/388 hearing was conducted on August 17, 2010.   Evidence was received that appellant was provided 15 months of reunification services, that appellant moved away after M.L. was placed in protective custody, and that appellant “chose to invest her time arguing with the Department, instead of completing the [case plan] objectives ordered by this Court.”   Over the last 18 months, M.L. befriended a family in the condominium complex where she lived and was placed with the family.   CWS reported that the family had grown to love M.L. and wanted to adopt.   The trial court found that the evidence was clear and convincing that M.L. “is adoptable.   She's a very likeable young woman who is in a home that wants to adopt her.”   The court found no impediment to adoption and cited a June 28, 2010 addendum report that “[n]o barriers to adoption are anticipated and the adoption is highly likely.”   M.L. is not only “generally adoptable, but she has a concurrent planning family that is ready, willing, and able to adopt․”  The court terminated parental rights (§ 366.26), granted a closure visit, and set the matter for a six month post-permanency review hearing.   Adoptability of the Child A 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. (§ 366.26, subd. (c)(1);  In re Carl R. (2005) 128 Cal.App.4th 1051, 1060.)  “ ‘The issue of adoptability ․ 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.]’  [Citation.]”  (In re Zeth S. (2003) 31 Cal.4th 396, 406.)   On review, we resolve all evidentiary conflicts in favor of the judgment and determine whether there is substantial evidence from which a reasonable trier of fact could find by clear and convicting that the child is likely to be adopted within a reasonable time.  (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1561–1562.)  “The clear and convincing standing specified in section 366.26, subdivision (c)(1) is for edification and the guidance of the trial court and not a standard for appellant review.  [Citations.]”  (In re I.W. (2009) 180 Cal.App.4th 1517, 1525.)