In re Breanna S

Filed 11/30/05 In re Breanna S. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

In re BREANNA S., a Person Coming Under the Juvenile Court Law.	2d Juv. No. B183348 (Super. Ct. No. J57273) (Ventura County)
VENTURA COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. KIMBERLY S., Defendant and Appellant.

Kimberly S. appeals a judgment of the juvenile court declaring that her daughter Breanna is adoptable, and terminating her parental rights. (Welf. & Inst. Code, § 366.26, subd. (c)(1).)[1] We affirm.

FACTS AND PROCEDURAL HISTORY

On September 20, 1999, the Ventura County Human Services Agency ("HSA") filed a petition on behalf of eight-year-old Breanna. Port Hueneme police officers had arrested Breanna's parents, Kimberly S. and Kenneth S., for being under the influence of drugs. In the dependency petition, HSA alleged that Kimberly could not care for her child due to her drug abuse, and that she had not protected Breanna's half-siblings from sexual abuse by Kenneth. (§ 300, subd. (b).)

Kimberly and Kenneth had lengthy criminal histories. Kimberly had drug and prostitution convictions, and Kenneth had drug, theft, and sexual assault convictions. Kenneth, now a registered sex offender, had been convicted of sexual assault upon Breanna's half-siblings and had served a prison term therefor.

The juvenile court ordered Breanna detained. HSA placed her in a foster home. The court later sustained the "failure to provide and protect" allegations against Kimberly, continued Breanna in foster care, and ordered HSA to provide family reunification services to Breanna, Kimberly, and Kenneth.[2] (§ 300, subds. (b) [Kimberly] & (d) [Kenneth].)

Kimberly refused to agree to a reunification services plan and stated that she would not cooperate with HSA. She visited Breanna only once. Kimberly requested that HSA terminate her parental rights and place Breanna with her paternal grandfather and step-grandmother in Tennessee.

On December 11, 2000, the juvenile court ordered that family reunification services to Kimberly and Kenneth cease. The court ordered that HSA place Breanna with her Tennessee grandparents in long-term foster care. HSA requested that the grandparents accept social services, however, because they did not believe that Kenneth was a sex offender.[3]

In mid-2002, the Tennessee grandparents sent Breanna to live with her paternal grandmother and step-grandfather in Mississippi. They did not seek permission from the juvenile court or HSA. By then, Kenneth had been paroled to Mississippi following incarceration for a drug conviction. Breanna's grandparents allowed her unsupervised visitation with Kenneth.

HSA filed a petition with the juvenile court pursuant to section 387, requesting that the court order that Breanna return to California. The court sustained the supplemental petition and ordered Breanna's return. Breanna later questioned a social worker, "What took [HSA] so long to come and get [her]?"

In October, 2002, HSA placed Breanna with Ms. H. Two years later, on Ms. H.'s birthday, Breanna requested that Ms. H. adopt her. Ms. H. had long been interested in adopting Breanna. Breanna also had informed her therapist that she wanted Ms. H. to adopt her. HSA then petitioned the juvenile court to set a permanent plan hearing pursuant to section 366.26.

Breanna and Ms. H., a school principal, had many interests in common, including music, dance, and academic subjects. An HSA social worker described Breanna and Ms. H. as "bonded and attached."

During the dependency proceedings, Breanna had received psychological counseling for her problems of separation, change, frustration, and anger. Breanna sought to please others and too quickly became attached to social workers and foster parents. She made slow but consistent improvement through counseling. Breanna also performed well in school, and participated in band and cheerleading activities.

At the permanent plan hearing, Kimberly asserted her parental rights to Breanna and requested visitation. Fourteen-year-old Breanna did not appear and testify at the hearing, stating to a social worker that she did not want to see her mother.

The juvenile court concluded by clear and convincing evidence that Breanna is likely to be adopted, and it terminated Kimberly's parental rights. (§ 366.26, subd. (c)(1).) In ruling, the trial judge noted Breanna's "very close family bond" with Ms. H., formed while Kimberly "was away dealing with her issues."

Kimberly appeals and contends that insufficient evidence supports the juvenile court's finding that Breanna is adoptable. (§ 366.26, subd. (c)(1) [juvenile court shall terminate parental rights and order adoption if clear and convincing evidence exists that child is adoptable].)

DISCUSSION

Kimberly points to evidence that Breanna is now 14 years old, had received counseling for problems of anger and separation, and until recently, preferred long-term foster care to adoption. Kimberly relies upon evidence that during most of the five-and-one-half-year dependency, Breanna stated that she did not want to be adopted. Kimberly describes Breanna as "a walking contradiction."

Kimberly adds that the existence of an adoptive family is not necessarily determinative. (In re Jennilee T. (1992) 3 Cal.App.4th 212, 223; In re Amelia S. (1991) 229 Cal.App.3d 1060, 1065 [insufficient evidence of likelihood of adoption where "a few foster parents were considering adoption"].)

In determining the sufficiency of evidence to support a dependency order, we review the evidence and draw all reasonable inferences therefrom to decide if reasonable and credible evidence supports the decision of the juvenile court. (In re J.I. (2003) 108 Cal.App.4th 903, 911 [review of finding regarding adoptability].) This rule pertains although the law requires proof of adoptability by clear and convincing evidence. (Ibid.) "The sufficiency of evidence to establish a given fact, where the law requires proof of the fact to be clear and convincing, is primarily a question for the trial court to determine, and if there is substantial evidence to support its conclusion, the determination is not open to review on appeal." (Ibid.)

The factual issue whether a minor is adoptable depends upon the minor's age, physical condition, and emotional state. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) Moreover, "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 p. 1650.)

There exists substantial evidence from which the juvenile court could find by a clear and convincing standard of proof that Breanna is likely to be adopted within a reasonable time. (§ 366.26, subd. (c)(1); In re Gregory A. (2005) 126 Cal.App.4th 1554, 1561-1562 [standard of review].) At the time of the section 366.26 hearing, Breanna was in excellent health and participating in individual counseling and counseling with Ms. H. Breanna, an "A" student, was active in cheerleading and in the school band and was developing friendships. She had lived with Ms. H. for two years and they were "very bonded and attached to each other." They enjoyed activities together and Breanna flourished in Ms. H.'s care.

The juvenile court reasonably inferred that Breanna's desire for adoption came from her maturity and personal growth. Breanna first expressed her desire for adoption by Ms. H. in October, 2004, and she reaffirmed it at the permanent plan hearing in March, 2005. By then, Breanna had lived in her prospective adoptive home for nearly two and one-half years.

Moreover, the law contemplates that children 12 years and older are adoptable. (§ 366.26, subd. (c)(1)(B) [child 12 years or older may object to termination of parental rights].) Here Breanna stated that she was happy in Ms. H.'s care and wished to be adopted. (§ 366.26, subd. (h)(1) [court shall consider wishes of child]; In re Aljamie D. (2000) 84 Cal.App.4th 424, 432 [child's wishes bear upon his or her best interests].)

Breanna's excellent physical health, emotional and intellectual growth, and her ability to develop personal relationships are attributes indicating she is adoptable. (In re Gregory A., supra, 126 Cal.App.4th 1554, 1562.) Ms. H.'s willingness to adopt Breanna also generally indicates that Breanne is likely to be

adopted within a reasonable time either by Ms. H. or another family. (Ibid.)

The judgment is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

COFFEE, J.

PERREN, J.

Donald D. Coleman, Judge

Superior Court County of Ventura

______________________________

Maureen L. Keaney, under appointment by the Court of Appeal, for Defendant and Appellant Kimberly S.

Noel A. Klebaum, County Counsel, Ilene F. Mickens, Oliver Hess, Assistant County Counsels, for Plaintiff and Respondent Ventura County Human Services Agency.

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

[2] Kenneth S. is not a party to this appeal.

[3] Kenneth S. appealed his Tennessee conviction of sexual assault. According to his grandparents, his appeal was successful in part. The appellate record contains no additional information regarding the conviction and appeal.