Filed 9/3/13 In re J.T. CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115(a).


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION THREE


In re J.T., et al., Persons Coming Under the                               B245985
Juvenile Court Law.
                                                                           (Los Angeles County
LOS ANGELES COUNTY                                                         Super. Ct. No. CK89841)
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

CHARMAIN T.,

         Defendant and Appellant.




         APPEAL from an order of the Superior Court of Los Angeles County,
Marilyn Kading Martinez, Judge. Affirmed.
         Terence M. Chucas, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Office of the County Counsel, John F. Krattli, County Counsel,
James M. Owens, Assistant County Counsel, and Jessica S. Mitchell, Senior Deputy
County Counsel, for Plaintiff and Respondent.
                        ___________________________________________
       Appellant mother seeks to reverse the dependency court‟s order terminating her

parental rights with respect to her two children. She contends that there was insufficient

evidence that her children were adoptable.1 We disagree and affirm.

                  FACTUAL AND PROCEDURAL BACKGROUND

       Charmaine T. (mother) is the mother of J.T. (J.), born in April 2004, and

Jesse T. (Jesse), born in September 2005. On April 19, 2011, mother left the children

in the care of maternal grandmother. While mother was out, Orange County probation

officers conducted a search of maternal grandmother‟s home and found cocaine residue

on a spoon. Maternal grandmother admitted to using cocaine two days prior. The

officers arrested maternal grandmother and took the children into protective custody.

       The probation officers attempted to reach mother but she did not answer her

phone. After approximately four hours, mother called back to inquire about her

children. Mother acknowledged that she was aware that maternal grandmother had

recently been incarcerated for drug-related charges and had only been released from jail

within the previous two months. Mother also admitted to using marijuana up to twice

weekly while she was the primary caretaker of the children. Father was incarcerated

due to domestic violence and drug sales.

       Both children reported that mother and father hit children with a belt and

a hanger, leaving bruises and cuts on them. Jesse had a large scar on his chest which he

1
       Although mother‟s notice of appeal also challenges the court‟s denial of her
section 388 petition, mother does not address this issue in her appeal. (Huntington
Landmark Adult Community Assn. v. Ross (1989) 213 Cal.App.3d 1012, 1021
[contentions supported by neither argument nor citation of authority are deemed to be
without foundation and to have been abandoned].)

                                            2
said he received when father‟s nail cut into him when father grabbed him by the shirt. J.

reported that mother hit her in the face once, cutting her under her left eye.

       The Department of Children and Family Services (Department) filed

a dependency petition alleging that J. and Jesse came within the jurisdiction of the

juvenile court within the meaning of Welfare and Institutions Code,2 section 300,

subdivisions (a)3 and (b)4 based on mother‟s and father‟s physical abuse of the children,

mother‟s use of marijuana, mother‟s history of alcohol abuse, mother‟s decision to leave

the children in the care of maternal grandmother, and the parents‟ domestic violence

history.

       On June 2, 2011, the Orange County juvenile court sustained the petition‟s

allegations under section 300, subdivision (b), and declared J. and Jesse dependents of

the court. The court approved the case plan which provided for mother to participate in

domestic violence counseling, a parenting class, and a drug treatment program. Mother

was granted monitored visitation with the children.

       On June 7, 2011, the children were placed with maternal great-aunt. In a status

review report prepared for the six-month hearing, the Department reported that mother‟s

2
       All further statutory references are to the Welfare and Institutions Code.
3
        Section 300, subdivision (a), provides that a child comes within the jurisdiction
of the juvenile court when the child has suffered, or there is a substantial risk the child
will suffer, serious physical harm inflicted nonaccidentally upon the child by the child‟s
parents.
4
       Section 300, subdivision (b), provides a basis for juvenile court jurisdiction if the
child has suffered, or there is a substantial risk the child will suffer, serious physical
harm or illness as a result of the parent's failure to adequately supervise or protect the
child.

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cooperation with the case plan was minimal. The Department also reported that the

children enjoyed visiting with mother but that mother had not shown she had completed

a drug or alcohol treatment program. The Orange County juvenile court found that

mother had made minimal progress in alleviating the causes necessitating placement of

the children. The court transferred the matter to Los Angeles County based on mother‟s

residence and the children‟s placement there.

       In a report prepared for the 12-month review hearing, the Department reported

that the children remained with maternal great-aunt and were closely bonded with her.

In addition, the Department found that maternal great-aunt was dedicated to working

with the children‟s medical health providers to address the children‟s needs. Mother

had visited the children on a sporadic basis. On June 1, 2012, the court terminated

mother‟s reunification services and set the matter for a section 366.26 hearing.5

       In an interim review report filed in September 2012, the Department reported

that maternal great-aunt consistently expressed her desire to provide the children with

a permanent home through adoption. Furthermore, the children stated that they loved

maternal great-aunt and were happy living with her. The children‟s therapist reported in

September 2012 that when the children were asked where they wanted to live, J. told the

therapist that she was “not sure” and Jesse responded by stating that he was “fine” at

maternal great-aunt‟s house and liked it there. The therapist also reported that Jesse was




5
      Section 366.26 governs the termination of parental rights of children adjudged
dependents of the court.

                                            4
disappointed that he had not moved back with mother, and that his infrequent contact

with mother made him feel sad.

       At the section 366.26 hearing on November 9, 2012, mother‟s counsel objected

to the termination of parental rights on the grounds that maternal great-aunt had not

completed a home study. The court responded that a home study is not a prerequisite to

the termination of parental rights and that, furthermore, there was no evidence of any

barrier to completing the adoption. The children‟s counsel stated that maternal

great-aunt said that she was interested in adopting the children, and that depending on

the children‟s wishes, she would either adopt them or act as their legal guardian. The

court found by clear and convincing evidence that the children would likely be adopted

in a reasonable amount of time and terminated parental rights. Mother filed a timely

notice of appeal.

                                     CONTENTIONS

       Mother contends that substantial evidence does not support the court‟s finding

that the children were adoptable.6




6
        The Department argues that mother forfeited her right to challenge the court‟s
finding that the children were adoptable based on her failure to raise this argument in
the trial court. There is a split of authority on whether such a challenge may be
forfeited. (In re Brian P. (2002) 99 Cal.App.4th 616, 623 [“a claim that there was
insufficient evidence of the child‟s adoptability at a contested hearing is not waived by
failure to argue the issue in the juvenile court.”]; In re Crystal J. (1993) 12 Cal.App.4th
407, 411-412 (“If the complaint on appeal be deemed not the admissibility, as such, of
inadequate assessment reports, but substantive insufficiently to establish requisite
findings, this complaint, too, was waived by failure to raise it at the trial level.”].) Even
if we find that the argument was not forfeited, it fails on the merits as explained below.

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                                      DISCUSSION

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

and convincing evidence that it is likely the child will be adopted. (Section 366.26,

subd. (c)(1).) “ „In reviewing the juvenile court‟s order, we determine whether the

record contains substantial evidence from which a reasonable trier of fact could find

clear and convincing evidence that [the child] was likely to be adopted within

a reasonable time. [Citations.]‟ We give the court‟s finding of adoptability the benefit

of every reasonable inference and resolve any evidentiary conflicts in favor of

affirming. [Citation.]” (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1561-1562.)

       “The issue of adoptability posed in a section 366.26 hearing 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.]” (In re Sarah M.

(1994) 22 Cal.App.4th 1642, 1649.) “[T]he fact that a prospective adoptive family has

been identified is an indication that the child is likely to be adopted within a reasonable

time.” (In re I.I. (2008) 168 Cal.App.4th 857, 870.)

       Mother first contends that there was no substantial evidence that the children

were adoptable because the record contained insufficient information about maternal

great-aunt‟s willingness to adopt the children. “[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.”

(In re Sarah M., supra, 22 Cal.App.4th at p. 1649.) Mother contends that maternal

great-aunt equivocated about her willingness to adopt the children citing to maternal


                                             6
great-aunt‟s statement that although she wanted to adopt the children, depending on the

children‟s wishes, she was willing to either adopt them or act as their legal guardian.

However, that maternal great-aunt was willing to consider the children‟s wishes about

being adopted does not show that she was unwilling to provide them with a permanent

home through adoption. Furthermore, the Department reported that maternal great-aunt

consistently expressed her desire to adopt the children.

       Mother also argues that the record contained insufficient evidence about the

current status of Jesse‟s physical health. A child‟s physical condition constitutes only

one of multiple factors the court must consider in determining whether a child is

adoptable. (In re Sarah M., supra, 22 Cal.App.4th at p. 1649.) Here, the record

reflected that maternal great-aunt was dedicated to working with Jesse‟s and J.‟s

medical care providers to address the children‟s needs. Accordingly, the evidence

indicated that maternal great-aunt was aware of Jesse‟s physical condition and

committed to providing him with the care he needed. Maternal great-aunt‟s continued

interest in adopting Jesse despite his medical issues constituted evidence that his

physical condition was not likely to dissuade individuals from adopting him. (Ibid.)

Therefore, mother has not shown that the court‟s finding of adoptability was

unsupported by substantial evidence merely because the record did not contain certain

information about Jesse‟s physical health.

       Lastly, mother contends that the record did not contain a statement from the

children expressing their wishes about adoption, and that there was evidence that the

children wanted to reside with mother. Although section 366.26, subdivision (h)


                                             7
requires that the court at the selection and implementation hearing “consider the wishes

of the child,” the juvenile court is not bound by the wishes of a child less than 12 years

of age. (Section 366.26, subd. (c)(1)(b)(ii); In re Joshua G. (2005) 129 Cal.App.4th

189, 201.)

       Here, at the time of the hearing, J. was eight years old and Jesse was six years

old. The therapist‟s report indicated that when the children were asked where they

wanted to live, J. told the therapist that she was “not sure” and Jesse responded by

stating that he was “fine” at maternal great-aunt‟s house and liked it there. Furthermore,

the children stated that they loved maternal great-aunt and were happy living with her.

Although Jesse also said that he was disappointed he had not been able to move back

with mother, this could mean that he was disappointed mother had not made sufficient

efforts to reunify with him. Accordingly, the record provided sufficient evidence by

which the juvenile court could ascertain the children‟s wishes about adoption. In the

absence of evidence to the contrary, a reviewing court presumes the trial court

performed its statutory duty. (Evid. Code, § 664.) Therefore, we presume the juvenile

court took the evidence regarding the children‟s wishes about adoption into

consideration.




                                             8
                                 DISPOSITION


    The order terminating mother‟s parental rights is affirmed.



    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                                  CROSKEY, J.



WE CONCUR:




    KLEIN, P. J.




    ALDRICH, J.




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