In re Roberto C. CA4/1 ( 2013 )

Filed 8/7/13 In re Roberto C. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 ROBERTO C. et al., Persons Coming
Under the Juvenile Court Law.
D063641
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. J514294C-D)
Plaintiff and Respondent,
v.
ALBERTO C.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Kenneth J.
Medel, Judge. Affirmed.
Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and
Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel and Erica R. Cortez, Deputy County Counsel, for Plaintiff and Respondent.
Alberto C. appeals a juvenile court order terminating parental rights to his minor
son, Roberto C., pursuant to Welfare and Institutions Code section 366.26.1 Alberto
challenges the sufficiency of the evidence to support the court's finding that Roberto was
adoptable. Alberto further argues that if this challenge is successful, the termination of
his parental rights as to Roberto's sister, Victoria C., should also be reversed so the
juvenile court can determine whether the sibling exception to adoption applies. We
affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
The record in this case shows an extensive history of involvement by the San
Diego County Health and Human Services Agency (Agency) with Alberto and the
mother, Mary P., concerning Roberto and his older brother Alexander C., as well as
children by other partners.2 Roberto was the subject of an earlier dependency that began
at his birth in 2008 while Mary was incarcerated. During the 18-month dependency,
Roberto lived with foster parents who were also the adopted parents of Alexander and
1 Statutory references are to the Welfare and Institutions Code unless otherwise
specified.
2 Alexander was removed from Alberto and Mary's custody in 2007 as a result of
being born with amphetamines in his system and Mary's admission to drug use during the
pregnancy. Alberto and Mary failed to reunify with Alexander and their parental rights
were terminated in September 2008. Mary's parental rights were terminated with respect
to another daughter, Darlene D., in 2004. Mary also has two older children who live with
their paternal grandparents and have never resided with her. Alberto's parental rights
were terminated with respect to two additional children, A.D. and Karly D., who tested
positive for amphetamines or methamphetamines at their births. A.D. became a
dependant of the juvenile court due to neglect and substance abuse and, in 2003, parental
rights were terminated as to both parents. Alberto and Karly's mother voluntarily
relinquished their parental rights to Karly in July 2004.
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their older half sibling Darlene. Alberto and Mary successfully reunited with Roberto in
October 2010. In 2012, three-year-old Roberto was living with Alberto, Mary and
Victoria, who was born in late 2011. Roberto's former foster mother, Dora J., however,
continued to care for Roberto regularly. In fact, Mary left Roberto with Dora almost
every weekend.
On June 8, 2012, Mary called Dora and asked her to pick up Roberto. They
arranged to meet at a nearby trolley station. When Dora arrived, Mary was intoxicated
and told Dora the family had been kicked out of the apartment where they were staying.
Dora took Roberto with her and, at Mary's insistence, left Victoria with Mary. A few
days later, the Agency received a referral alleging emotional abuse to Roberto and
Victoria stemming from a domestic violence incident that occurred the day Mary left
Roberto with Dora. The police report alleged Alberto and Mary were fighting with their
roommate over money and the roommate's loud music, and that Mary pulled a knife on
the roommate.
On June 15, 2012, an Agency social worker contacted Alberto and Mary. They
told the social worker Victoria was with them and, although they were homeless, they
were staying with relatives and planned to pick up Roberto soon. Because of their history
with drug abuse and crime, Alberto and Mary were asked to submit to a drug test.
Alberto tested positive for marijuana and Mary refused to test. That same day, Mary
called Dora. During the call, Alberto took the phone and told Dora he would contact her
when they were able to pick up Roberto. Dora called Alberto the following evening and
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arranged to meet him the next morning to drop off Roberto. Alberto did not show up at
the arranged time and place, and Dora contacted the Agency.
On June 20, 2012, the Agency's social worker again contacted Alberto and Mary.
They refused to come to the Agency's office or provide their address. Mary told Dora she
and Alberto were purposefully avoiding contact with the Agency. On July 11, 2012, the
Agency filed a petition in the juvenile court on behalf of Roberto under section 300,
subdivision (b). The petition alleged Roberto suffered, or was at substantial risk of, harm
by the willful or negligent failure of his parents to provide him with the necessities of
life, including adequate food and shelter.
On August 1, 2012, the Agency finally made contact with Alberto and Mary.
They signed a safety plan concerning Victoria requiring them to stay with Alberto's niece
or to notify the Agency if they were staying somewhere else. Alberto and Mary left the
niece's home without notifying the Agency. After weeks of again evading the Agency,
on August 26, 2012, Mary contacted Dora. Dora met both parents at a local park and
found Mary intoxicated. Mary told Dora that Victoria had spent the night in Alberto's
care under a bridge and that he had sexually abused Victoria. Dora took Victoria with
her and contacted the Agency. On August 29, 2012, the Agency filed a petition in the
juvenile court on behalf of Victoria under section 300, subdivision (b) alleging she
suffered, or was at substantial risk of, harm by the parents' inability to provide regular
care due to their substance abuse.
Contested jurisdiction and disposition hearings were held on September 6, 2012,
for Roberto and October 31, 2012, for Victoria. At the hearings, the court assumed
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jurisdiction, declared each child a dependant of the court and removed each from parental
care. The court placed Roberto in Dora's home and Victoria in a different foster home.3
On the Agency's recommendation in light of the parents' history of failing to reunify with
their older children, the court did not provide services for them. The court ordered
section 366.26 selection and implementation hearings for both children to be set within
120 days.
Contested section 366.26 hearings for Roberto and Victoria were held
simultaneously on March 11, 2013. The Agency's report, submitted into evidence at the
hearing, assessed Roberto as adoptable because he was young and healthy with no severe
behavioral issues. The Agency's social worker reported Dora and her husband wanted to
adopt both Roberto and Victoria and were committed to providing them with a safe and
secure home. They also wanted Roberto and Victoria to be raised together and with their
older siblings. The social worker reported Roberto had known Dora and her husband his
whole life and called them mom and dad. The social worker believed Dora and her
husband were capable of meeting Roberto's needs. They were proactive in "scheduling
appointments with the doctor, dentist, school, and other special evaluations for
developmental and behavioral concerns." The social worker who authored the report also
3 After Dora took Victoria from Mary, the nine month old was fussy and hard to
calm. A day later Dora noticed that Victoria's leg was swollen and took her to the
hospital. There it was discovered Victoria had a fractured femur. Because the fracture
was suspicious of nonaccidental injury and Victoria was under Dora's care at the time it
was discovered, Victoria was placed in another foster home. The fracture was ultimately
deemed to have occurred while she was in Mary's and Alberto's care, and Victoria was
placed with Dora in January 2013.
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testified at the hearing that both children were adoptable. She stated in addition to Dora
and her husband there were 79 families in San Diego County willing to adopt a child with
Roberto's characteristics, 102 families seeking to adopt a child like Victoria and 33
families seeking to adopt a sibling group like Roberto and Victoria.
At the hearing, Alberto submitted stipulated testimony that he loved Roberto and
Victoria and shared an attachment with them. Alberto's counsel argued Roberto and
Victoria were not likely to be adopted if parental rights were terminated, pointing to
behavioral and developmental concerns set forth in the Agency's assessment of Roberto.
Alberto's counsel contended the Agency's conclusion about how many families would be
willing to adopt a child with Roberto's characteristics was premature because his
behavioral and developmental issues had only been recently identified and had not been
included into the Agency's assessment. Alberto sought guardianship or long-term foster
care for Roberto and Victoria, rather than termination of parental rights.
After consideration of evidence and the arguments of counsel, the juvenile court
found Roberto and Victoria were adoptable, the benefits of adoption outweighed the
benefits of maintaining the parent-child relationship and terminated the parental rights of
Alberto and Mary. The court also made a finding that Roberto was specifically, but not
generally adoptable. The court explained it did not find clear and convincing evidence
the 79 families identified by the Agency as willing to adopt Roberto would actually do so
because his recently identified behavioral issues were not included in the Agency's
assessment.
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DISCUSSION
The focus of a dependency proceeding is to promote the best interests of the child,
particularly 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.)
Section 366.26 sets forth the procedure for permanently terminating parental rights
with regard to a minor who has been removed from parental custody and declared a
dependent child of the juvenile court. The statute provides "[i]f the court determines . . .
by a clear and convincing standard, that is likely the child will be adopted, the court shall
terminate parental rights . . . ." (§ 366.26, subd. (c)(1).) The court must select adoption
as the permanent plan unless it finds termination of parental rights would be detrimental
to the child under a specified statutory exception. (Id., subd. (c)(1)(A) & (B)(i)-(vi); In re
Erik P. (2002) 104 Cal.App.4th 395, 401.) Alberto does not urge any statutory exception,
but rather contends substantial evidence did not support the court's finding that Roberto
was adoptable.
On review, we determine whether the record contains substantial evidence from
which the juvenile court could find clear and convincing evidence the child was likely to
be adopted within a reasonable time. (In re Gregory A. (2005) 126 Cal.App.4th 1554,
1561-1562.) We give the court's adoptability finding the benefit of every reasonable
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inference and resolve any evidentiary conflicts in favor of that finding. (In re Y.R. (2007)
152 Cal.App.4th 99, 112.)
The focus of the adoptability issue is the dependent child—that is, whether his or
her age, physical condition and emotional state make it difficult to find a person willing
to adopt. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) It is not necessary that the
child already be in a potential adoptive home or "that there be a proposed adoptive parent
'waiting in the wings.' " (Ibid.) Usually, the fact that a prospective adoptive parent has
expressed interest in adopting a dependent child is evidence that the child's age, physical
condition, mental state and other relevant factors are not likely to deter individuals from
adopting the child. (Id. at pp. 1649-1650.) In other words, a prospective adoptive
parent's willingness to adopt generally indicates the child is likely to be adopted within a
reasonable time either by the prospective adoptive parent or by some other family. (Id. at
p. 1650.)
Additionally, "a section 366.26 hearing does not provide a forum for the minors'
parent to contest the 'suitability' of a prospective adoptive family. Rather, what is
required is clear and convincing evidence of the likelihood that the children will be
adopted within a reasonable time either by the prospective adoptive family or some other
family." (In re Scott M. (1993) 13 Cal.App.4th 839, 844.) However, "[w]here the social
worker opines that the minor is likely to be adopted based solely on the existence of a
prospective adoptive parent who is willing to adopt the minor, an inquiry may be made
into whether there is any legal impediment to adoption by that parent . . . ." (In re Sarah
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M., supra, 22 Cal.App.4th at p. 1650.) Legal impediments to adoption are found in
Family Code sections 8601, 8602 and 8603.4 (In re Sarah M., at p. 1650.)
Here, substantial evidence supported the juvenile court's finding that Roberto was
likely to be adopted by his foster parents. Dora and her husband were committed to
adopting Roberto and Victoria, and were already experienced adoptive parents who
understood the responsibilities of adoption. They also expressed their desire for Roberto
to have a safe and secure home and for him to be raised with his siblings. Further, during
his prior 18-month dependency, Roberto thrived in the care of Dora and her husband.
They provided appropriate care for Roberto and met his developmental, mental and
emotional needs. Dora and her husband ensured Roberto was seen regularly by a doctor
and worked with the San Diego Regional Center to obtain developmental assistance for
Roberto.
During the current dependency, Roberto continued to thrive in his prospective
adoptive parents' home. Dora and her husband again provided appropriate care for
Roberto. Although Roberto displayed some concerning behaviors after his return to
Dora's home in June 2012, she and her husband were "proactive in scheduling
appointments with the doctor, dentist, school, and other special evaluations" to address
those developmental and behavioral concerns. Indeed, Alberto concedes Dora and her
husband "have been meeting Roberto's needs since June when [Mary] left him with
4 These statutes provide that a prospective adoptive parent must be at least 10 years
older than a child unless certain exceptions apply, a child older than 12 must consent to
adoption and a prospective married adoptive parent must obtain his or her spouse's
consent to the adoption. (Family Code, §§ 8601, 8602 & 8603.)
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them." Further, there was no evidence in the record of any legal impediments to
adoption. Roberto's prospective adoptive parents had been foster and adoptive parents
(including to two of Roberto's siblings) for many years and had an active foster home
license in good standing. As part of the foster home licensing process, Dora and her
husband had received criminal and child welfare history clearances.5
We reject Alberto's contention that because Dora and her husband had not yet
been approved to adopt Roberto and Victoria, the court was precluded from finding
Roberto adoptable. (See In re Marina S. (2005) 132 Cal.App.4th 158, 166 ["there is no
requirement that an adoptive home study be completed before a court can terminate
parental rights"].) The statutory scheme requires the Agency to provide the court with
information to allow it to make a preliminary evaluation of the eligibility and
commitment of the prospective adoptive parents to adoption. (§§ 361.5, subd. (g)(1)(D),
366.21, subd. (i)(1)(D) & 366.22, subd. (c)(1)(D).) This assessment includes a social
history, screening for criminal records and prior referrals for child abuse or neglect, and
an appraisal of the prospective adoptive parents' capability to meet the child's needs and
whether they understand the legal and financial rights and responsibilities of adoption.
(§§ 361.5, subd. (g)(1)(D), 366.21, subd. (i)(1)(D) & 366.22, subd. (c)(1)(D).) The
information provided by the Agency in this case met the statutory requirements and, as
described, supported the court's finding that Roberto was adoptable.
5 Alberto points out that Dora had six referrals to the agency for neglect, inferring
this calls into question her ability to meet Roberto's needs. All six referrals, however,
were closed as unfounded. This evidence does not undermine the ample evidence
supporting the court's finding of adoptability.
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Finally, Alberto contends a reversal of the order terminating parental rights as to
Roberto requires reversal of the court's termination order with respect to Victoria. This
issue is moot in light of our affirmance of the juvenile court's order with respect to
Roberto and, therefore, we decline to address it.
DISPOSITION
The order is affirmed.
O'ROURKE, J.
WE CONCUR:
BENKE, Acting P. J.
AARON, J.
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