In re J.H. CA4/1

Filed 12/19/14 In re J.H. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re J.H., a Person Coming Under the
Juvenile Court Law.
D066250
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. EJ3617, EJ3617A)
Plaintiff and Respondent,

v.

H.H.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Gary M.

Bubis, Judge. Affirmed.

Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and

Appellant.

Thomas E. Montgomery, County Counsel, John E. Philips and Patrice Plattner-

Grainger, Deputy County Counsel, for Plaintiff and Respondent.

Benjamin Brueseke, under appointment by the Court of Appeal, for Minor.
 H.H. (Mother) appeals from a juvenile court order terminating her parental rights

to her minor daughter (JH). (Welf. & Inst. Code, § 366.26.)1 Mother challenges the

sufficiency of the evidence to support the court's finding that JH is adoptable. We affirm.

FACTS AND PROCEDURE

Relevant Background

In November 2012, nine-year-old JH was placed into protective custody after her

mother was involved in several violent confrontations with her boyfriend and with a male

roommate. Shortly after, the San Diego Health and Human Services Agency (Agency)

filed a dependency petition alleging JH was at risk of substantial physical harm if she

remained with Mother. (§ 300, subd. (b).) The next month, JH was placed with her

second cousin (Caretaker), who was married and had young children.

After sustaining the Agency's allegations, the court removed JH from Mother's

care, ordered reunification services, and set a six-month review hearing. No father came

forward during the dependency proceedings.

At the six-month review hearing, in November 2013, the court found JH's return to

Mother's custody would be detrimental and the services provided had been reasonable.

The court found Mother had not made meaningful progress with her case plan and had

failed to mitigate the protective issues. The court terminated reunification services and

scheduled a section 366.26 hearing.

1 All statutory references are to the Welfare and Institutions Code.
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 Section 366.26 Assessment Reports

Four months later, Agency social worker Dannielle Moores prepared a report for

the section 366.26 hearing. In the report, Moores described 10-year-old JH as an

"attractive" and "vivacious" young girl "with a very likeable personality," who is

"affectionate and loving" and has a wide variety of age-appropriate interests, including

involvement in an after-school cheerleading program. Moores said that although JH has

manifested certain behavioral problems associated with an ADHD diagnosis and "can be

oppositional," she now has an Individual Educational Plan and is receiving counseling

that has helped her learn to control her emotions. Moores said that JH is developmentally

on target and doing much better at school and at home and seems to thrive on structure

and clear limit setting. Moores also noted that JH is in generally good health, but that she

continues to have issues with bedwetting and that JH has reported pain or burning upon

urination. Additionally, JH has "occasionally soil[ed] herself during the day time."

Regarding Mother, Moores said that Mother's visits have been sporadic and

difficult. Mother was often "volatile and out of control," and has a history of being

involved in violent confrontations, including committing a serious assault against another

woman. Mother appeared to be under the influence during one visit, and did not engage

in positive interactions during other visits. Moores stated: "There is no doubt that

[Mother] has a relationship with [JH] and that in her own ways she cares about her. [But

Mother] has not been in the role of parent to [JH] in over a year and unfortunately,

[Mother] has not demonstrated in over a year that she can adequately parent or provide a

safe home and environment for JH. . . . Any benefit that there might be of a future

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relationship with [Mother] does not outweigh the benefits of adoption with a stable and

loving parent . . . ."

With respect to JH's current placement, Moores stated that Caregiver has known

JH since she was an infant and has cared for her "off and on" since that time. Caregiver

is "very attached to" JH and has expressed a "full commitment to adopting" her.

Caregiver said she loves JH "like one of her own children and wants her to have a safe

and permanent home." Caregiver is married and has four young children. Although the

couple recently separated and are contemplating a divorce, they remain "best friends."

Moores stated that Caregiver has provided JH with a "loving family experience . . . that

also includes structure and limits on behavior when needed." JH said that "she likes

living with [Caregiver] and her family and she would like to remain with them and be

adopted."

Moores opined that JH is likely to be adopted upon termination of parental rights.

The social worker explained Caregiver's strong commitment to adopting JH, and that in

the event Caregiver could not adopt her, there are 12 other San Diego County families

with approved adoption home studies that are seeking a child matching JH's

characteristics. Moores also described additional placement options with out-of-county

and out-of-state families.

Based on Moores's report, the Agency recommended that Mother's parental rights

be terminated and that the court select adoption as the permanent plan.

In an addendum report filed two months later, Moores stated that Mother is

pregnant and was recently sentenced to three years of probation and 180 days of jail time

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(for an unidentified criminal offense). Moores further discussed Caregiver's numerous

attempts to schedule a medical appointment to address JH's bedwetting issues, and

indicated that she would continue to do so. Moores concluded: JH "continues to be an

adoptable child. She is an attractive young girl with a pleasant personality. She is in

overall good health and her development appears to be within normal limits. . . . [¶] . . .

[¶] . . . Any benefit that there might be in a future relationship with the mother does not

outweigh the benefits of adoption in a stable and loving home. [¶] . . . [¶] [JH] deserves

a permanent home where she can grow up without the trauma that she experienced in the

care of her mother. The Agency is recommending that parental rights be terminated and

the child's permanent plan becomes that of adoption."

Section 366.26 Hearing

At the section 366.26 hearing, Mother and JH were each represented by counsel.

At the outset of the hearing, the court stated: "This matter is set for a contested 26

hearing. . . . [¶] Is this still a contested 26 hearing?" Mother's counsel responded: "It is

not. I would make a brief statement. My client loves her daughter dearly. She is in

agreement with this plan today because she believes it is what is best for her daughter. It

certainly does not diminish her feeling for her. She is trying to do what is best for her at

this time in her life. She just doesn't want anybody to think it is because she doesn't

care." (Italics added.) JH's counsel then said that both he and JH agree with the

Agency's parental termination recommendation. He said therapy has been scheduled and

there will be additional follow-up on other related issues.

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 The court then ordered parental rights terminated. The court stated it had read and

considered the Agency's section 366.26 reports. The court found clear and convincing

evidence that JH was likely to be adopted if parental rights are terminated. The court also

found that none of the statutory exceptions apply.

DISCUSSION

I. Overview

After reunification services are terminated, the court's focus shifts from preserving

the family to promoting the best interests of the child, including the child's interest in a

stable, permanent placement that allows the caregiver to make a full emotional

commitment to the child. (In re Fernando M. (2006) 138 Cal.App.4th 529, 534.)

"Adoption, where possible, is the permanent plan preferred by the Legislature." (In re

Autumn H. (1994) 27 Cal.App.4th 567, 573; accord In re D.M. (2012) 205 Cal.App.4th

283, 290.)

If the court finds a child cannot be returned to his or her parent and is likely to be

adopted if parental rights are terminated, it must select adoption as the permanent plan

unless it finds a compelling reason for determining that termination of parental rights

would be detrimental to the child under one or more of the enumerated statutory

exceptions. (§ 366.26, subd. (c)(1)(A) & (B)(i)-(vi).) The parent has the burden to

establish the facts supporting an exception. (In re C.F. (2011) 193 Cal.App.4th 549,

553.)

In her opening brief, Mother contends the court erred in failing to find the

exception set forth in section 366.26, subdivision (c)(1)(B)(i), which provides an

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exception to the adoption preference if terminating parental rights would be detrimental

because "[t]he parents have maintained regular visitation and contact with the child and

the child would benefit from continuing the relationship." However, in her reply brief,

Mother states she has "withdrawn" this argument and instead challenges the court's

judgment only on its factual finding that JH is likely to be adopted. Mother filed a

supplemental appellate brief supporting this argument. For the reasons explained below,

we conclude the argument lacks merit.

II. Legal Principles Governing Adoptability Finding

"The court may terminate parental rights only if it determines by clear and

convincing evidence the minor is likely to be adopted. (§ 366.26, subd. (c)(1).) . . . 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. [Citations.]

To be considered adoptable, a minor need not be in a prospective adoptive home and

there need not be a prospective adoptive parent ' "waiting in the wings." ' [Citation.]

Nevertheless, '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.' [Citation.]" (In re R.C. (2008) 169

Cal.App.4th 486, 491 (R.C.), italics omitted.)

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 "When reviewing a court's finding a minor is adoptable, we apply the substantial

evidence test. [Citations.] If, on the entire record, there is substantial evidence to support

the findings of the juvenile court, we must uphold those findings. We do not pass on the

credibility of witnesses, attempt to resolve conflicts in the evidence or weigh the

evidence. [Citations.] Rather, our task is to determine whether there is substantial

evidence from which a reasonable trier of fact could find, by clear and convincing

evidence, that the minor is adoptable. [Citation.] The appellant has the burden of

showing there is no evidence of a sufficiently substantial nature to support the finding or

order. [Citations.]" (R.C., supra, 169 Cal.App.4th at p. 491.)

III. Analysis

The court made a finding by clear and convincing evidence that JH is likely to be

adopted. Mother's challenge to the adoptability finding fails on two grounds.

First, Mother forfeited her right to assert the claim on appeal because she did not

challenge the Agency's report or recommendation in the proceedings below. Instead,

Mother's counsel affirmatively expressed Mother's position that she agreed with the

Agency adoption recommendation because the proposal is "what is best for her

daughter." Mother now seeks to advocate for a completely different outcome. Under

well-established appellate rules, she has no right to do so.

A party may not assert theories on appeal that were not raised in the trial court.

(In re G.C. (2013) 216 Cal.App.4th 1391, 1398; Kevin R. v. Superior Court (2010) 191

Cal.App.4th 676, 686.) This doctrine applies in dependency proceedings, including in

cases involving failure to challenge an adoption assessment report or to challenge the

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public agency's adoption recommendation. (See G.C., supra, 216 Cal.App.4th at pp.

1398-1399; In re Dakota S. (2000) 85 Cal.App.4th 494, 502.) This rule "serves vital

policy considerations of promoting finality and reasonable expedition" in the

Legislature's "carefully balanced [dependency] scheme," and preventing a parent's "late-

stage 'sabotage of the process' " through collateral attacks on otherwise final orders. (In

re Jesse W. (2001) 93 Cal.App.4th 349, 355.)

Second, even if we were to reach the issue on the merits, substantial evidence

supports the juvenile court's finding that JH is likely to be adopted. It was undisputed

that Caregiver (a close relative) was fully committed to adopting JH and JH wanted to be

adopted by the Caregiver. JH had made substantial progress while in Caregiver's home

and JH was strongly bonded to Caregiver and her family. The evidence showed

Caregiver had provided JH with a loving and positive home environment, and wanted to

adopt JH.

Additionally, the evidence showed that in the event Caregiver was unwilling or

unable to adopt JH, there were 12 approved adoptive San Diego County families who

were interested in adopting a child with JH's characteristics. JH was described by her

Court Appointed Special Advocate (CASA) as a "beautiful child, inside and out" who has

a "winning smile and a sparkle in her eyes when she is happy. She enjoys new

adventures and is an eager participant in most activities." The social worker similarly

said JH is an "attractive young girl with a very likeable personality" who has many age-

appropriate interests and is now doing well in school. These facts support that JH would

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not be a difficult placement, and was likely to be a strong candidate for adoption with

Caregiver or with numerous other prospective adoptive families.

Mother argues that JH has special needs that were not adequately addressed in the

Agency's adoption assessment report, including her behavioral issues and her bedwetting

and occasional daytime soiling issues. However, social worker Moores identified and

discussed these issues, but implicitly concluded that none of them precluded adoption in

this case. The court had a reasonable basis to agree with this conclusion.

The evidence showed JH is a healthy, "adorable" child who is "compassionate,"

"makes friends easily," and enjoys helping others. Although JH has had some behavioral

issues and possibly some medical issues relating to using the toilet and bedwetting, the

Agency's report made clear that these issues could be addressed through medical care,

therapy, and continued stability. The evidence further showed that JH is doing much

better at school and at home and "seems to thrive on structure and clear limit setting."

She is loved and welcomed into Caregiver's family and has thrived there. On this record,

the court had an ample evidentiary basis to conclude that even if JH had certain special

needs, they would not be an obstacle to adoption.

Mother also argues that Caregiver is an unsuitable adoptive parent because she did

not promptly medically address JH's bedwetting issues; she has four other young

children; and she is currently divorcing her husband. However, a selection and

implementation hearing does not provide a forum for a parent to contest the "suitability"

of prospective adoptive parents as long as the minor is generally adoptable. (In re Sarah

M. (1994) 22 Cal.App.4th 1642, 1650-1651; see R.C., supra, 169 Cal.App.4th at p. 494.)

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"[T]he question of a family's suitability to adopt is an issue which is reserved for the

subsequent adoption proceeding." (In re Scott M. (1993) 13 Cal.App.4th 839, 844.) The

record supports that JH was likely to be adopted within a reasonable time, either by

Caretaker or another family. During the adoption proceeding, the court may consider all

of the relevant facts—including the existing bond between Caretaker and JH and

Caretaker's demonstrated ability or inability to properly parent JH—in determining

whether Caregiver is a suitable adoptive parent or whether another adoptive placement

would serve JH's best interests.

DISPOSITION

Order affirmed.

HALLER, J.

WE CONCUR:

MCCONNELL, P. J.

MCINTYRE, J.

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