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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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. 2 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

3 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

4 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. 5 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

7 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

8 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.) 9 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. 10 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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