Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of San Diego County, No. EJ2765 A & B, Gary M. Bubis, Judge.
HUFFMAN, J.
Regina A. and Andres A., the parents of Adrian A. and Andrew A., appeal the judgments terminating their parental rights under Welfare and Institutions Code section 366.26. Regina's major contention is the juvenile court erred by allowing Adrian, who was then 11 years old, to testify by telephone at the section 366.26 hearing. Regina also contends the court should have granted her request to continue the hearing. Additionally, Regina claims the court erred by not finding the parent-child beneficial relationship exception to adoption.
Statutory references are to the Welfare and Institutions Code unless otherwise specified.
Andres contends there was insufficient evidence supporting the court's finding that Adrian and Andrew were likely to be adopted in a reasonable time. Andres, who is in prison, also contends his parental rights should not have been terminated because he did not receive court-ordered visitation.
FACTS
In September 2005, 10-year-old Adrian, and one-year-old Andrew were taken into protective custody when authorities learned that Andres had been sexually molesting the boys' older stepsisters for several years; Regina reportedly knew of the molestations, but did nothing to stop them. The following month, the San Bernardino County juvenile court sustained petitions under section 300, subdivisions (d) and (g), and declared Adrian and Andrew dependents. The court ordered reunification services for Regina; Andres waived reunification services.
In February 2006, Andrew and Adrian were placed with a non-relative extended family member.
In May, Regina was released from a San Bernardino County jail facility and moved to San Diego County to live with her maternal grandparents. Adrian's and Andrew's dependency cases were transferred to San Diego County.
At the 12-month review hearing on December 7, the juvenile court terminated Regina's services and set a section 366.26 hearing.
In its adoption assessment report, the San Diego County Health and Human Services Agency (Agency) reported that Regina had weekly supervised contacts with Adrian and Andrew. According to the caregivers, Regina did not spend quality time with the boys. Regina spent more time with Andrew than Adrian. Regina did not ask Adrian questions regarding school or his athletic accomplishments. The adoption social worker did not observe any visits between Regina and the boys because Regina did not show up for the two scheduled visits.
The adoption social worker opined Adrian and Andrew were likely to be adopted because they were healthy, developmentally on target, personable and had good relationships with their caregivers, who were interested in adopting the boys. These caregivers were the only identified prospective adoptive family willing to adopt both boys. Five families with approved home studies were willing to adopt Adrian separately and 33 families with approved home studies were willing to adopt a child with Andrew's characteristics.
At the contested section 366.26 hearing on May 29, 2007, Regina did not appear. Adrian also did not appear even though the court had ordered that he be produced for the hearing. Regina's counsel asked for a continuance, which the court denied. The court ruled, over counsel's objection, that Adrian could testify by telephone.
Adrian testified that he knew what adoption meant—his caregiver would become his real mother if she pursued adoption and he would not be able to see Regina until he was 18. Adrian wanted to continue seeing Regina if her visits did not interfere with his wrestling tournaments. Adrian would "be kind of disappointed" if he had to wait until he was 18 to see Regina. Adrian said he had not seen his father in more than a year and if he could not see his father until he was 18, he would feel "really sad." Adrian wanted more contact with his father.
Adrian testified that he wanted his current caregivers to adopt him and Andrew. Further, Adrian wanted to stay in the caregiver home, continue to see his mother and have contact with his father.
Adrian testified he had not spoken with the social worker regarding adoption.
Social worker Juliet Kwagala-Kyegimbo testified that she had discussed adoption and termination of parental rights with Adrian. She informed Adrian it would be up to the caregivers whether he and Regina would have contact after adoption. The social worker believed Adrian understood the conversations she had with him.
The court found the children would likely be adopted if parental rights were terminated and none of the statutory exceptions to adoption applied. The court found adoption was in the best interests of Adrian and Andrew, terminated Regina's and Andres's parental rights and selected adoption as the boys' permanent plan.
DISCUSSION
I.
TELEPHONIC TESTIMONY BY ADRIAN
Regina contends the juvenile court violated her due process rights by allowing Adrian to testify by telephone at the section 366.26 hearing over her counsel's objection, thereby abridging her right to cross-examine and confront Adrian. We disagree.
We shall address this issue even though Adrian was not Agency's witness; Regina called Adrian as a witness. Regina's counsel did not cross-examine Adrian; she questioned him on direct examination and redirect examination.
It is important from the outset to recognize that juvenile dependency hearings are special proceedings. These proceedings are distinct from criminal proceedings and are exempt from the constitutional constraints that apply in criminal cases. Dependency is civil in nature and focuses on the protection of the child, not the guilt of the criminal defendant. (In re Carmen O. (1994) 28 Cal.App.4th 908, 922, fn. 7.)
"Criminal defendants and parents are not similarly situated. By definition, criminal defendants face punishment. Parents do not. [Citation.] Criminal defendants, as such, are expressly given protection in the United States Constitution itself. [Citation.] Parents are not." (In re Sade C. (1996) 13 Cal.4th 952, 991.)
Among the constitutional protections afforded solely to criminal defendants is the right to confront adverse witnesses. The Sixth Amendment's confrontation clause provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." The Sixth Amendment right to confrontation does not extend to parents in a juvenile dependency procedure. (In re April C. (2005) 131 Cal.App.4th 599, 602.)
That is not to say, however, that parents in a dependency proceeding do not have constitutional rights and protections. The right to due process and fundamental fairness embodied by the Fourteenth Amendment most definitely applies to dependency proceedings. (See In re Marilyn H. (1993) 5 Cal.4th 295, 307 ["The dependency scheme, when viewed as a whole, provides the parent due process and fundamental fairness while also accommodating the child's right to stability and permanency."].)
The essence of due process in the statutory dependency scheme is fairness in the procedure employed by the state to adjudicate a parent's rights. (In re Crystal J. (1993) 12 Cal.App.4th 407, 412.) The due process attributes of a dependency hearing include proper notice of the hearing, and the right to present evidence and cross-examine adversarial witnesses—that is, the right to be heard in a meaningful manner. (In re Matthew P. (1999) 71 Cal.App.4th 841, 851; In re Crystal J., supra, 12 Cal.App.4th at p. 412, see also In re Malinda S. (1990) 51 Cal.3d 368, 383, fn. 16.) However, the due process guarantee of a "'meaningful opportunity to cross-examine'" is not synonymous with full-fledged cross-examination rights. (In re Jeanette V. (1998) 68 Cal.App.4th 811, 816-817.)
Due process is a flexible concept and its application depends on the circumstances presented. (Ingrid E. (1999) 75 Cal.App.4th 751,757.) "Different levels of due process protection apply at different stages of dependency proceedings." (In re Thomas R. (2006) 145 Cal.App.4th 726, 733.) Before services are terminated, that is, while family reunification is still the focus of proceedings, the burden of proof is on Agency to prove jurisdictional facts, detriment, reasonable services, and the need for further supervision. (§§ 355, subd. (a); 366.21, subds. (e), (f); 366.22, subd. (a).) At contested hearings held before the permanency planning stage, a parent has an "unfettered due process right" to confront and cross-examine adverse witnesses. (In re Thomas R., supra, 145 Cal.App.4th at p. 733.)
This "unfettered" due process right to confront and cross-examine adverse witness, however, does not extend to the section 366.26 hearing, where the focus of the proceedings has shifted to the child's need for stability and permanence. (In re Thomas R., supra, 145 Cal.App.4th at p. 733.) "But the parent retains a right to due process at the hearing under section 366.26, and due process 'requires, in particular circumstances, a "meaningful opportunity to cross-examine and controvert the contents of the report"' if it is relevant to the issues before the court." (Ibid.) It follows that "where the parents wish to test whether the agency has met its burden of proof at a section 366.26 hearing, they have a due process right to do so through examination of the agency's witnesses." (Id. at p. 734.)
At the selection and implementation hearing, the department has the burden of proving adoptability. (§ 366.26, subd. (c)(1).)
Putting aside the fact that Adrian was Regina's witness—not Agency's witness (see fn. 2, ante)—the record shows that Regina's counsel was provided the opportunity to directly examine Adrian and to examine him on redirect.
Regina's complaint then must rest on her not being able to confront Adrian as he testified. Because Adrian's demeanor and physical mannerisms—key determinants of witness credibility—were not observable, Regina maintains her counsel's ability—and that of the court—to effectively gauge Adrian's credibility was compromised. Regina also claims her counsel's ability to frame follow-up questions was limited because counsel could not observe Adrian as he testified.
However, Adrian's credibility was not at issue. Much of Adrian's testimony was cumulative to Agency's adoption assessment report. With respect to the questions regarding adoption, Adrian testified that he knew what adoption meant and he wanted his caregivers to adopt him and Andrew. Adrian wanted to stay in the caregiver home, continue to see Regina and have contact with Andres. Although Adrian said he had not spoken with the social worker regarding adoption, which contradicted the social worker's testimony, we do not put too much stock in the discrepancy since Adrian also could not recall a telephone conversation with his attorney's investigator.
In any event, counsel and the court—sitting as trier of fact—were able to evaluate Adrian's credibility by listening to his tone and manner of speech, his responsiveness, his recollection and by determining whether there were any internal inconsistencies in his testimony. Adrian's physical absence from court did not prevent Regina from exploring his wishes regarding adoption.
We certainly can envision dependency court scenarios in which the credibility of a witness is highly contested and allowing telephonic testimony of that witness over objection would infringe upon a parent's due process rights in a prejudicial manner. Accordingly, we do not endorse the procedure. But here, where the witness's credibility is not at issue, Regina cannot point to any prejudice she suffered when the court allowed Adrian to testify telephonically. We are convinced beyond a reasonable doubt that allowing the telephonic testimony was harmless in this case. (Chapman v. California (1967) 386 U.S. 18.)
Regina also argues that the juvenile court acted in excess of its jurisdiction by allowing Adrian to testify by telephone over her objection. We disagree. Although there is no statute or court rule authorizing telephone testimony in dependency proceedings in California, there also is no statute or court rule prohibiting its use. Evidence Code section 711 provides that a witness "can be heard only in the presence and subject to the examination of all the parties to the action," and section 355, subdivision (c)(1)(D), requires witnesses to be "present in court." These provisions can be construed to imply the necessity of the witness's physical presence. These provisions also can be interpreted to permit testimony by a witness who is not physically in the courtroom, so long as the testimony is received in the courtroom in the presence of the parties who have the opportunity to object and to cross-examine the witness. In the absence of any countervailing authority, we deem the second interpretation to be the more reasonable one.
Use of telephone testimony is not an unheard of procedure. For example, Family Code section 3411 allows out-of-state witnesses to testify by telephone in child custody proceedings. Rule 43(a) of the Federal Rules of Civil Procedure authorizes telephonic testimony at trial ". . . for good cause, shown in compelling circumstances . . . ."
Moreover, courts have the inherent power and wide discretion to "develop rules of procedure aimed at facilitating the administration of justice." (In re Jeanette H. (1990) 225 Cal.App.3d 25, 34.) This is particularly true in dependency cases, where "[j]uvenile courts are required to 'control all proceedings with a view to the expeditious and effective ascertainment of the jurisdictional facts and all information relevant to the present condition and welfare of the child.'" (Id. at p. 36.) "Juvenile court proceedings, particularly in abuse and neglect cases, are supposed to be informal and to place the best interests of the child ahead of inflexible and ritualistic adherence to ordinary, adversarial trial court procedures." (In re Lucerno L. (2000) 22 Cal.4th 1227, 1252 (conc. opn. of Chin, J.).)
We realize that the court previously had ordered Adrian to be present at the hearing. Adrian should have appeared. However, under the circumstances, the court did not abuse its discretion in permitting Adrian, who lives in another county and was attending school, to testify telephonically when he did not appear at the hearing.
II.
CONTINUANCE REQUEST
Regina contends the court abused its discretion by denying her counsel's request for a continuance of the section 366.26 hearing so that Regina could attend and testify and Adrian be present in court to testify.
Under section 352, the juvenile court may grant a continuance of any hearing only on a showing of good cause and only if the continuance is not contrary to a child's best interests. In considering the child's interests, "the court shall give substantial weight to a [child's] need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements." (§ 352, subd. (a); In re Ninfa S. (1998) 62 Cal.App.4th 808, 810.) Continuances in juvenile cases are discouraged. (Jeff M. v. Superior Court (1997) 56 Cal.App.4th 1238, 1242.) We reverse an order denying a continuance only on a showing of an abuse of discretion. (In re Gerald J. (1991) 1 Cal.App.4th 1180, 1187.)
There was no abuse of discretion. Regina had notice of the section 366.26 hearing. Her nonappearance did not constitute good cause for a continuance. (In re J.I. (2003) 108 Cal.App.4th 903, 912.)
Moreover, these dependency proceedings began in September 2005, after authorities learned that Andres had been sexually molesting the boys' older stepsisters for several years and Regina, who had knowledge of the molestations, had not done anything to protect the children. By the time of the section 366.26 hearing, Adrian and Andrew had been in an out-of-care home for approximately 20 months. During that period, the boys had little meaningful contact with Regina. Since February 2006, the boys had lived with a caregiver, who wanted to adopt them. "'[T]ime is of the essence in offering permanent planning for dependent children.'" (In re Gerald J., supra, 1 Cal.App.4th at p. 1187.) It was not in the best interests of Adrian and Andrew to further delay the resolution of their permanent plan.
III.
BENEFICIAL PARENT-CHILD RELATIONSHIP EXCEPTION TO ADOPTION
Regina contends that the court erred by finding that the beneficial parent-child relationship exception to adoption did not apply.
Adoption is the permanent plan preferred by the Legislature. (In re Derek W. (1999) 73 Cal.App.4th 823, 826.) Section 366.26, subdivision (c)(1), allows termination of parental rights upon clear and convincing evidence of adoptability. An exception exists if "[t]he parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (Former § 366.26, subd. (c)(1)(A), now § 366.26, subd. (c)(1)(B)(i).) This exception applies only if both prongs are met. (Ibid.) The parent bears the burden to establish by a preponderance of the evidence that an exception to the statutory preference for adoption applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345.)
Effective January 1, 2008, the Legislature amended and renumbered section 366.26, subdivision (c)(1). (Stats. 2007, ch. 583, § 28.5.) Because these proceedings occurred before the statutory change, we shall refer to the earlier version of the statute.
On appeal, we review the juvenile court's findings for substantial evidence; we do not reweigh the evidence and substitute our judgment for that of the juvenile court. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)
After Regina was released from custody in May 2006, she began supervised visits. At first, Regina's visitation was inconsistent. Later, she visited the children on a regular basis, but she still missed some scheduled visits. We need not decide if Regina regularly visited the children within the meaning of former section 366.26, subdivision (c)(1)(A) because, even assuming she did, she failed to meet the second prong of the statute.
In In re Autumn H. (1994) 27 Cal.App.4th 567, 575, this court explained that to come within the beneficial relationship exception to adoption, a parent must show the "relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents." (Italics added.) "To meet the burden of proof, the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits." (In re Dakota H., supra, 132 Cal.App.4th 212, 229.) "To overcome the preference for adoption and avoid termination of the natural parent's rights, the parent must show that severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed." (In re Angel B. (2002) 97 Cal.App.4th 454, 466.)
The juvenile court must balance "the strength and quality of the . . . parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) In balancing these interests, relevant factors include the "age of the child, the portion of the child's life spent in the parent's custody, the 'positive' or 'negative' effect of interaction between parent and child, and the child's particular needs . . . ." (Id. at p. 576.) We affirmed this balancing test, explaining that the standard "reflects the legislative intent that adoption should be ordered unless exceptional circumstances exist . . . ." (In re Casey D. (1999) 70 Cal.App.4th 38, 51, italics added.)
Substantial evidence supported the court's finding that the benefits of continuing the relationship between Regina and the children were outweighed by the benefits and stability the children would gain from permanent adoptive homes.
Regina failed to protect her children and left them exposed to the risk of sexual molestation. During visits, Regina was, at most, a friendly visitor to the boys. Regina paid considerably more attention to Andrew rather than Adrian, which upset Adrian. Regina did not ask Adrian about his school, activities or accomplishments. The supervisors of the visits reported that Regina did not spend quality time with either child and spent too much time talking on the phone or talking with staff. By the time of the section 366.26 hearing, Andrew and Adrian acted as though they were largely indifferent about Regina's visits.
Although Adrian wanted to have contact with his parents, he repeatedly made it clear he wanted to be adopted by the caregiver.
The evidence showed Adrian's and Andrew's need for permanence and stability through adoption outweighed any interest in preserving their parental ties to Regina. Where, as here, the biological parent does not fulfill the parental role, "the child should be given every opportunity to bond with an individual who will assume the role of parent. . . . To hold otherwise would deprive children of the protection that the Legislature seeks to provide." (In re Brittany C. (1999) 76 Cal.App.4th 847, 854.)
Substantial evidence supported the court's finding that former section 366.26, subdivision (c)(1)(A) did not apply. There was no error.
IV.
ANDRES'S VISITATION
Andres's contention that he was denied visitation rights is without merit. Andres waived reunification services. At the disposition hearing, the court ruled that in-person visits between Andres and his children will take place upon his release from prison. Andres did not request the visitation order be changed.
V.
ADOPTABILITY FINDING
In a supplemental brief, Andres contends the juvenile court erred by terminating parental rights because Agency had not met its burden of proving the children were adoptable within a reasonable time. Appellate counsel for the children joins in the argument. (Cal. Rules of Court, rule 8.200(a)(5).)
Preliminarily, we note the basis for counsel's supplemental argument is a purported delay by the prospective adoptive family in completing the home study after the section 366.26 hearing. However, appellate courts rarely accept postjudgment evidence or evidence that is developed after the challenged ruling is made. (See In re Zeth S. (2003) 31 Cal.4th 396, 405, 413-414(Zeth S.).) The Zeth S. court set forth the general rule that:
"'[A]n appeal reviews the correctness of a judgment as of the time of its rendition, upon a record of matters which were before the trial court for its consideration.' [Citation.] This rule reflects an 'essential distinction between the trial and the appellate court . . . that it is the province of the trial court to decide questions of fact and of the appellate court to decide questions of law . . . .' [Citation.] The rule promotes the orderly settling of factual questions and disputes in the trial court, provides a meaningful record for review, and serves to avoid prolonged delays on appeal." (Id. at p. 405.)
We find there are not exceptional circumstances to depart from the general rule underscored by the Zeth S. court. (Zeth S., supra, 31 Cal.4th at pp. 413-414, fn. 11.) Accordingly, we refrain from considering and determining new factual issues that have been developed since the judgment terminating parental rights. (Id. at p. 405.)
Counsel's reliance on In re Salvador M. (2005) 133 Cal.App.4th 1415 is misplaced. (Id. at pp. 1420-1421 [Agency sought to augment the record with postjudgment evidence to show that the appeal was moot and to have the appeal dismissed, a practice endorsed by our Supreme Court in In re Josiah Z. (2005) 36 Cal.4th 664, 673-677].)
"'At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must make one of four possible alternative permanent plans for a minor child. . . . The permanent plan preferred by the Legislature is adoption.'" (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368, italics omitted.) To select adoption as the permanency plan, the court must find by clear and convincing evidence the child is likely to be adopted within a reasonable time. (§ 366.26, subd. (c)(1); In re Jennilee T. (1992) 3 Cal.App.4th 212, 223.)
The adoptability issue at a section 366.26 hearing focuses on 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.)
On review, we determine whether the record contains substantial evidence from which the juvenile court could find clear and convincing evidence that the child was likely to be adopted within a reasonable time. (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1562.) We give the court's adoptability finding the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of the judgment. (In re Y.R. (2007) 152 Cal.App.4th 99, 112.)
We conclude the juvenile court's finding of adoptability was supported by substantial evidence. There is nothing in the record to suggest that Adrian and Andrew are not suitable for adoption. There is no indication of physical impairment, mental disability or antisocial behavior. Nor do the boys have special needs. Since February 2006, Adrian and Andrew had been living with their caregivers in an environment that has allowed them to thrive. Adrian was old enough to appreciate this fact and to intelligently state his desire to be adopted. Children have a fundamental interest in belonging to a family unit and a placement that is stable, permanent, and that allows a caretaker to make a full emotional commitment to them. (In re Marilyn H., supra, 5 Cal.4th at p. 306.)
On appeal, Andres's appellate counsel and appellate counsel for the children question the caregiver's commitment to adoption, but at the section 366.26 hearing the following statement by the caregiver on why she and her husband wanted to adopt was before the court:
"'The children will grow to be very complete human beings. I have three girls, to have these boys means to live again. I want to be there for them. I want to give them something they have never had before. I would like them to have good memories. My husband feels the same way. Adrian . . . has made a mark on the family. He looks to me to spend time with him. We love him. For the baby, we just love him. My husband and I are committed to adopting the boys, to show them our love, out commitment to raising them, to be healthy and happy adults.'"
Appellate counsel for Andres and for the children, however, maintain that because Adrian and Andrew were specifically adoptable—that is, they were adoptable only because their current caregivers wanted to adopt them—the caregiver's verbal statement of commitment to adoption did not constitute substantial evidence. Both counsel are correct that the boys were only specifically adoptable and not generally adoptable. This is so because the boys were properly considered as difficult to adopt; Adrian was 11 years old at the time of the section 366.26 hearing, and he and Andrew are members of a sibling group. These are among the factors that may make it difficult to find a person willing to adopt a child. (See § 366.26, subd. (c)(3).)
Although the suitability of the prospective family is not at issue when a child is generally adoptable, the suitability of the prospective adoptive family may be placed at issue when the child is only specifically adoptable. (See In re Sarah M., supra, 22 Cal.App.4th at p. 1650.) A specifically adopted child is at high risk of becoming a legal orphan if parental rights are terminated and the prospective adoptive family is later determined to be unsuitable or there is a legal impediment to adoption. "In such cases, the existence of one of these legal impediments to adoption is relevant because the legal impediment would preclude the very basis upon which the social worker formed the opinion that the minor is likely to be adopted." (Ibid.; see also In re Carl R. (2005) 128 Cal.App.4th 1051, 1061.)
Legal impediments to adoption are found in Family Code sections 8601, 8602, and 8603, which respectively 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 adoptive parent not lawfully separated from a spouse must obtain consent from the spouse. There was no evidence of legal impediments to adoption in this case.
Finally, we do not agree that the lack of a completed home study of the prospective adoptive family constitutes a legal impediment to adoption. There is no statutory requirement for a completed home study at the section 366.26 hearing. (In re Marina S. (2005) 132 Cal.App.4th 158, 166.) Counsel has cited no authority requiring one before parental rights are terminated. It is only necessary that Agency provide the court with information allowing the court to make a preliminary evaluation of the eligibility and commitment of the prospective adoptive parents. (§§ 361.5, subd. (g)(1)(D); 366.21, subd. (i)(1)(D); 366.22, subd. (b)(1)(D).) The adoption assessment includes a social history, screening for criminal records and prior referrals for child abuse or neglect, together with 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. (b)(1)(D).) As set forth above, Agency provided the court with ample information here. There may be a situation where the circumstances of a prospective adoptive family for a specifically adoptable child are such that a home study should be completed before parental rights are terminated, but this is not such a case.
DISPOSITION
The judgments are affirmed.
I CONCUR: McCONNELL, P. J.
McINTYRE, J.
I respectfully dissent.
I disagree with the majority that there was substantial evidence to support the juvenile court's finding that Adrian and Andrew were likely to be adopted within a reasonable time.
To select adoption as the permanency plan, the court must find by clear and convincing evidence the child is likely to be adopted within a reasonable time. (Welf. & Inst. Code, § 366.26, subd. (c)(1) (statutory references are to the Welf. & Inst. Code); In re Jennilee T. (1992) 3 Cal.App.4th 212, 223.) "'Clear and convincing' evidence requires a finding of high probability. The evidence must be so clear as to leave no substantial doubt. It must be sufficiently strong to command the unhesitating assent of every reasonable mind." (In re David C. (1984) 152 Cal.App.3d 1189, 1208.)
On review, we determine whether there is substantial evidence from which the court could find clear and convincing evidence that the child was likely to be adopted within a reasonable time. (In re Erik P. (2002) 104 Cal.App.4th 395, 400.)
Dependent children may be generally adoptable, because they possess desirable attributes, or they may be specifically adoptable, because a particular prospective adoptive family is willing to adopt them. (See In re Carl R. (2005) 128 Cal.App.4th 1051, 1061.) It is not disputed that Adrian and Andrew are specifically adoptable, as the majority acknowledges. This sibling pair, which includes an older child, is only adoptable because the caregivers expressed a willingness to adopt them.
The majority also acknowledges that because the two boys are specifically adoptable—as opposed to generally adoptable—the suitability of the prospective adoptive parents may be considered. (See In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.)
However, on the crucial issue of this case, the majority and I part company. In my view, the majority's blind adherence to In re Zeth S. (2003) 31 Cal.4th 396 and its ban on postjudgment evidence—especially, in the face of factual concessions by Agency—is inexplicable.
Seven months after the juvenile court terminated parental rights and selected adoption as Adrian's and Andrew's permanent plan, appellate counsel for Andres filed a supplemental brief informing this court that the adoptive home study for the caregiver had not been completed and raising the lack of substantial evidence to support the adoptability finding for the first time. Children's counsel joined in this argument. Agency, in its supplemental response brief, conceded that the home study was not completed. At oral argument last month, Agency acknowledged the home study was still not completed. We are now approaching the one-year anniversary of the section 366.26 hearing without a completed home study.
In my view, 11 months to complete a home study—a prerequisite under section 366.26, subdivision (c)(3)—is not a reasonable time. Although there is a dearth of authority as to the meaning of "reasonable time" in this context, I note that under section 366.26, subdivision (c)(3), when a child is "difficult to place for adoption" and therefore there exists only "a probability" versus a likelihood that the child will be adopted, the juvenile court may continue the section 366.26 proceeding for 180 days to find a family willing to adopt the child. "The words of the statute must be construed in context, keeping in mind the statutory purpose, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible." (Dyna-Med, Inc. v. Fair Employment Housing Com. (1987) 43 Cal.3d 1379, 1387.) Considerably more than 180 days has elapsed here—in fact, nearly twice that period of time.
This lengthy delay in completing the home study suggests the possibility that the caregivers are not totally committed to adopting this otherwise hard-to-place sibling group. In light of these circumstances, I would reverse and remand for a new section 366.26 hearing in which the juvenile court can assess the reasons for the inordinate delay and determine if the children are likely to be adopted within a reasonable time as the law requires. As it stands now, there is too much doubt on the issue.