Opinion
NOT TO BE PUBLISHED
HUFFMAN, Acting P. J.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA Super. Ct. No. SJ11105B
APPEAL from a judgment of the Superior Court of San Diego County, Ernest Borunda, Judge. (Retired Judge of the San Diego S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Jorge G. appeals from a judgment terminating parental rights to his daughter, Michelle G., under Welfare and Institutions Code section 366.26. We affirm the judgment.
Unless otherwise indicated, further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Michelle G., now age 10, is diagnosed with cerebral palsy and moderate mental retardation. In August 2003 Michelle and her brother R.G. (together, children) became dependents of the juvenile court. (§ 300, subd. (b).) Their mother, Martha, had cancer. Due to her deteriorating health, Martha was unable to care for the children. She died in May 2005.
R.G. is not a subject of this appeal.
The children's alleged father, Jorge G., lived in Mexico. Family members said Jorge did not have much contact with the children after 1997, when Martha returned to California for treatment. Jorge was unable to enter the United States. He saw the children when Martha brought them to Mexico. Jorge did not remain in contact with the social worker or the children during the initial stages of the dependency proceedings. At Jorge's first appearance in the case on August 19, 2004, the court granted his request for status as presumed father.
The Agency investigated maternal relatives for placement but none was able to meet Michelle's needs. Michelle did not have bowel or bladder control and was not able to walk or dress herself. She was self-destructive and at times physically aggressive. If not diapered, Michelle had a tendency to play with her feces. Michelle could brush her hair, use a fork and spoon, and assist with bathing. The Agency placed Michelle in a foster care home licensed for medically fragile children and placed R.G. in another foster care home. He visited Michelle every two weeks.
During the dependency proceedings, Michelle had a series of orthopedic surgeries to improve her ability to walk. She was prescribed psychotropic medication to control anxiety and aggressive behaviors. Michelle received special education services and physical, occupational and speech therapy.
At the 12-month review hearing in October 2004 the court terminated family reunification services and set a section 366.26 hearing. The Agency was unable to locate an adoptive placement for Michelle. On August 9, 2005, the court found that Michelle was not likely to be adopted within a reasonable time and ordered a permanency plan of long-term foster care.
The Agency continued to search for an adoptive placement for Michelle. In February 2006 the Agency reported that it identified an out-of-state family interested in adopting Michelle. On March 16 the Agency asked the court to set a section 366.26 hearing in 180 days to allow the completion of the family's adoptive home study through the Interstate Compact on the Placement of Children (ICPC). (Fam. Code, § 7900 et seq.)
Jorge visited Michelle on March 16, 2006 and June 27, 2006. He asked the Agency to evaluate his relatives for placement. In August, after speaking with a paternal aunt and trying unsuccessfully to contact a paternal uncle, the social worker reported there were no relatives who were willing or able to care for Michelle.
In August 2006 the Agency received ICPC approval for Michelle's placement with the identified prospective adoptive family (the H.'s or the family). In September 2006 the court continued the section 366.26 hearing to allow the Agency to place Michelle with the family and assess her adjustment before the hearing. The Agency placed Michelle with the H.'s in November.
In February 2007 the Agency reported that Michelle was adapting well to her placement. She was affectionate with Mrs. H. and established positive relationships with the other children in the household. The H.'s demonstrated the ability to meet Michelle's daily needs. The family appeared to be "a good match for Michelle." They were willing to adopt her.
On May 22, 2007, the court held the contested section 366.26 hearing. Jorge and R.G. were present with counsel. R.G., who spent several days with the H.'s when Michelle was placed in their home, concurred with the plan for adoption. The court found by a preponderance of the evidence that it was likely Michelle would be adopted within a reasonable time (May 22 finding), and that none of the section 366.26, subdivision (c) exceptions applied. The court terminated Jorge's parental rights and ordered adoption as Michelle's permanent plan.
Effective January 1, 2008, the Legislature amended and renumbered section 366.26, subdivision (c)(1). (Stats. 2006, ch. 838, § 52.) Because the proceedings at issue here occurred before the statutory change, we refer to the earlier version of the statute.
On May 24, 2007, at county counsel's request, the court held a special hearing to amend the standard of proof recited in its May 22 finding. The court stated that it misread the bench guide and misstated the standard of proof required to support the finding. The court found that there was more than adequate information presented at the section 366.26 hearing to support the adoptability finding by clear and convincing evidence. The court issued a nunc pro tunc order amending the May 22 finding to the standard of proof required under section 366.26, subdivision (c)(1).
Nunc pro tunc is a Latin phrase meaning "now for then." A nunc pro tunc order has retroactive legal effect through the court's inherent power. (Black's Law Dict. (8th ed. 2004) p. 1100, col. 1.)
DISCUSSION
A
Jorge Forfeited His Argument The Court Did Not Have Authority to Issue an Order Nunc Pro Tunc
Jorge contends the juvenile court exceeded its authority and acted without jurisdiction when it issued a nunc pro tunc order amending the standard of proof recited in its May 22 finding. The Agency asserts Jorge forfeited the right to claim this error as grounds for reversal on appeal when he did not raise the objection in the trial court. (Civ. Code, §§ 3515, 3516; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, §§ 390, 391, pp. 440-442; In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222.) In response, Jorge asks this court to exercise its discretion to review the legal issue de novo.
As a general rule, a party may not assert new theories on appeal that were not raised in the trial court. (In re Kevin S. (1996) Cal.App.4th 882, 885-886; Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478, 1489.) Here, the record shows that Jorge, through counsel, affirmatively stated that he did not have any objection to a nunc pro tunc order amending the adoptability finding to reflect the correct standard of proof under section 366.26, subdivision (c)(1). "[A]n appellant waives his right to attack error by expressly or impliedly agreeing or acquiescing at trial to the ruling or procedure objected to on appeal. [Citations.]" (In re Marriage of Broderick (1989) 209 Cal.App.3d 489, 501.)
Even if the doctrine of forfeiture did not apply, we would reject Jorge's argument the court was without authority or jurisdiction to amend its May 22 finding. "All courts have inherent powers that enable them to carry out their duties and ensure the orderly administration of justice." (LeFrancois v. Goel (2005) 35 Cal.4th 1094, 1104; Nickolas F. v. Superior Court (2006) 144 Cal.App.4th 92, 110; see Carter v. J.W. Silver Trucking Co. (1935) 4 Cal.2d 198, 204 ["All courts have the inherent power to correct their records so they shall conform to the facts and speak the truth"].) "It is the important function of a nunc pro tunc order to supply deficiencies in the record of orders or judgments already actually made or rendered so as to make the record conform to the truth." (Boyd v. Lancaster (1939)32 Cal.App.2d 574, 579.)
Jorge argues section 366.26, subdivision (i)(1) precludes the juvenile court from modifying its orders related to termination of parental rights. Section 366.26, subdivision (i)(1) prohibits the juvenile court from setting aside, changing or modifying an order permanently terminating parental rights. Jorge contends the trial court had no authority to make any changes to its finding and orders terminating parental rights on May 22, 2007.
We are not persuaded by Jorge's argument. Here, the juvenile court was not setting aside, changing or modifying its order terminating parental rights. (§ 366.26, subd. (i)(1).) The nunc pro tunc order did not alter the court's finding that Michelle was likely to be adopted within a reasonable time (adoptability finding) or the judgment terminating parental rights. Rather, the court stated that it mistakenly recited the standard of proof required for an adoptability finding under section 366.26, subdivision (c)(1). The court made it clear that it was satisfied, based on the evidence that was presented at the May 22 hearing, the adoptability finding was proved by clear and convincing evidence.
"Rulings and even judgments inadvertently made are not the result of judgment but of oversight, neglect or accident and are subject to correction by the court making them." (Carter v. J.W. Silver Trucking Co., supra, 4 Cal.2d at p. 205.) We conclude the court did not err when it corrected its misstatement of the standard of proof required to support an adoptability finding under section 366.26, subdivision (c)(1).
B
Adoptability
Jorge contends the evidence shows that Michelle was not generally adoptable and the only identified prospective adoptive home was not a suitable placement for her. Citing concerns about the H.'s health, Jorge asserts Michelle would not receive proper care in their home; thus the adoptability finding is not supported by substantial evidence.
The Agency responds that it recognized Michelle was not generally adoptable and took a cautious approach to her placement with the H.'s. The Agency did not recommend adoption as the permanent plan until the supervising agency determined that Michelle had adjusted to the prospective adoptive placement and the H.'s were able to meet her needs. The Agency maintains the adoptability finding is supported by substantial evidence. Minor's counsel joins with the Agency's argument.
The question of adoptability usually focuses on whether the child's age, physical condition, and emotional health make it difficult to find a person willing to adopt that child. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) If the child is considered generally adoptable, reviewing courts do not examine the suitability of the prospective adoptive home. (In re Scott M. (1993) 13 Cal.App.4th 839, 844.) When the child is deemed adoptable based solely on a particular family's willingness to adopt the child, the trial court must determine whether there is a legal impediment to adoption. (In re Carl R. (2005) 128 Cal.App.4th 1051, 1061.)
On review, we determine whether the record contains 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 Gregory A. (2005) 126 Cal.App.4th 1554, 1562; see also In re Zeth S. (2003) 31 Cal.4th 396, 406.) The evidence must be sufficiently strong to command the unhesitating assent of every reasonable mind. (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205-1206.) We give the court's adoptability finding the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of the judgment of the trial court. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)
Michelle is not generally adoptable. When a child is only specifically adoptable and will need lifelong support, as here, the court must not only consider whether there is a legal impediment to adoption but also give some consideration to the suitability of the prospective adoptive parents and their ability to meet the child's needs. (In re Carl R., supra, 128 Cal.App.4th at pp. 1061-1062.)
Jorge posits the H.'s health conditions made their home unsuitable for Michelle. Mr. H. was disabled with arthritis. Mrs. H.'s condition included diabetes, high blood pressure, hypothyroidism and a history of anxiety and depression. Both were obese. The H.'s did not want a child in their home who was physically or sexually aggressive with other children or animals. The H.'s asked a social services agency to remove an aggressive foster child from their home and arranged an alternative placement for an adopted son when he was in his teens. The other children in the home had many special needs. Jorge argues the H.'s medical conditions would impact their ability to meet Michelle's physical needs and to manage her aggressive behaviors; thus the court's adoptability finding was not supported by substantial evidence.
Contrary to Jorge's assertions, the record contains ample evidence to support a finding that the H.'s were capable of meeting Michelle's needs. The H.'s commitment to and care of exceptional children are well documented in the record. The H.'s had been foster care parents since 1983, and had adopted five special needs children. They had provided respite care for mentally retarded children since 2000. Two of their adopted children lived in their home. A disabled adult son lived semi-independently in a trailer on their property, and another adult son was living in Arizona. The H.'s were long-term foster care providers for another special needs child. Mr. H. was retired. Mrs. H. did not work outside the home. Their family life revolved around meeting the needs of their children.
Kristal Roberts, MSW, the ICPC social worker, directly addressed the H.'s health and capability to care for another child. The H.'s openly discussed their medical conditions. At the time of the adoptive home study, they recently had medical examinations. Their physician concluded that each was in good physical condition. Mrs. H.'s conditions were well controlled by medication, and she was clearly making progress in her efforts to lose weight.
Roberts examined the H.'s ability to care for an additional disabled child in their home. She visited the H.'s home and observed their ability to bathe, feed, dress and care for their children. Roberts observed that the H.'s were patient. They had the ability to work with each child at that child's specific level of ability. The children always came first. The H.'s enjoyed parenting. They were experienced, stay-at-home parents and strong advocates for their special needs children. The H.'s understood that adoption was a lifelong commitment.
Because Michelle was in a stable, capable long-term foster care placement, the Agency proceeded cautiously when the H.'s expressed an interest in adopting Michelle. After the H.'s adoptive home study was approved, the Agency requested another continuance to evaluate whether Michelle's placement in the home would be successful. Michelle's adoptive status changed when the Agency conducted a thorough assessment of her placement and determined the H.'s were capable of meeting Michelle's needs and were committed to adopting her. (See §§ 366.3, subd. (c); 366.22, subd. (b).)
In a pre-adoptive supervisory report dated January 19, 2007, Roberts reported that Michelle "made a wonderful adjustment" to the H.'s home and family. Michelle was affectionate with Mrs. H. and frequently put her hands on Mrs. H.'s legs and arms. Michelle readily accepted Mrs. H.'s affection, and established positive sibling relationships with the other children in the household. The H.'s were working with Michelle to improve her toileting and other independent life skills. They used techniques that were effective with their other children. The H.'s were in discussions with the local school district to identify the best educational placement for Michelle. Roberts concluded:
"[Mr. and Mrs. H.] provide Michelle with security, consistency, attention, and love. They encourage her to do everything that she is able to do . . . . [The agency] recommends that this placement continue until Michelle can become legally free for adoption and then [the H.'s] adoption of Michelle can be finalized."
The court was entitled to rely on the social worker's expert opinion that the prospective adoptive family was committed to adoption and capable of meeting Michelle's needs. (In re Luke M. (2003) 107 Cal.App.4th 1412, 1427; In re Carl R., supra, 128 Cal.App.4th at pp. 1061-1062. The ICPC adoptive home study had been approved. There were no legal impediments to adoption. (Ibid.) The cautious pace of the proceedings allowed the Agency to dispel any hesitation about the suitability of Michelle's adoptive placement. (In re Jerome D., supra, 84 Cal.App.4th at pp. 1205-1206.) Thus, the record contains ample evidence to support a finding, by clear and convincing evidence, that Michelle was likely to be adopted within a reasonable time.
C
Sibling Relationship Exception
Jorge asserts the court erred when it terminated parental rights because termination substantially interfered with Michelle's relationship with her brother R.G. The Agency and minor's counsel disagree.
To establish detriment under the sibling relationship exception to termination of parental rights, the parent must show by a preponderance of the evidence "[t]here would be substantial interference with a child's sibling relationship, taking into consideration the nature and extent of the relationship." (§ 366.26, subd. (c)(1)(E).) The party seeking to prove the exception must show that "under alternative factors, a significant sibling relationship existed or exists, and that continued sibling contact may be of greater long-term emotional interest to the child than adoption." (In re Valerie A. (2007) 152 Cal.App.4th 987, 1010.)
We review the record for substantial evidence to support the court's finding the sibling relationship exception to termination of parental rights did not apply. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)
The record shows that Michelle has a significant relationship with R.G., who is seven years her senior. Until November 2006, R.G. visited Michelle every two weeks. The Agency recommended continued sibling contact. Michelle was "very attached" to R.G. He was the only relative she mentioned or asked to see. R.G. was protective of Michelle. R.G. told the court that he loved his sister and hoped to maintain their relationship.
The Agency acknowledges Michelle's placement with the H.'s created some interference with her relationship with R.G. R.G. stayed with the H.'s for several days in November 2006 and planned to visit Michelle every six months, if possible. At the time of the section 366.26 hearing, R.G. hoped he would be able to visit Michelle sometime that summer. The H.'s welcomed R.G. into their home and said they planned to allow future contact. They maintained contact with the birthparents of some of the children in their home. Thus the record supports the inference the H.'s would facilitate contact between Michelle and R.G.
To the extent sibling contact would be diminished by adoption, the court could reasonably conclude that Michelle's needs for stability and security outweighed her long-term emotional interest in maintaining contact with R.G. (§ 366.26, subd. (c)(1)(E).) Michelle was gaining a family. R.G. recognized that adoption was in Michelle's best interests and supported the Agency's recommendation. Substantial evidence supports the court's finding that termination of parental rights would not be seriously detrimental to Michelle under section 366.26, subdivision (c)(1)(E).
D
Notice of Right to File Writ Petition
Jorge contends he did not receive timely notice of his right to file a writ petition after the March 16, 2006 hearing. He asserts the Agency should have facilitated visitation in Mexico. Jorge argues that if he had the opportunity to file a writ petition, he would have asserted the Agency did not make reasonable efforts to provide him visitation and thus denied him the opportunity to establish a beneficial parent-child relationship with Michelle. Jorge also contends the notice and the order setting the referral hearing were not provided to him in Spanish and therefore he received no notice at all.
The Agency asserts Jorge was not prejudiced by the untimely notice of his right to file a writ petition. It contends Jorge was not deprived of his right to file a writ petition under California Rules of Court, rule 8.450(e)(4)(D). Rule 8.450(e)(4)(D) provides that a party notified of the referral order by mail to an address outside the United States has within 27 days after the clerk mailed the notification to file a notice of intent.
Further rule references are to the California Rules of Court.
Here, on March 16, 2006, the court ordered a section 366.26 hearing to be held within 180 days. Although the referral order advised the parties that a petition for extraordinary writ review must be filed to preserve any right to appeal, the court did not inform Jorge of his rights at the referral hearing or direct Jorge's attorney to discuss those rights with him. The clerk of court did not provide a copy of the minute order or written notice to Jorge of his right to file a writ petition until August 17, 2006.
The rule on which the Agency relies was amended effective January 1, 2007. (Rule 8.450(e).) At the time of the referral hearing here, rule 38 governed the notice of intent to file a writ petition. (Rule 38, as amended, eff. Jan. 1, 2006.) A party was required to file a notice of intent within seven days of the date of the order setting the hearing, or within 12 days if the party was notified only by mail. (Rule 38(e)(4), (5).) The reviewing court had the authority to extend any time period, but only on a showing of exceptionally good cause. (Rule 38(d); see In re Rashad B. (1999) 76 Cal.App.4th 442, 450.)
Even if Jorge were able on this record to demonstrate exceptionally good cause, he cannot show he was prejudiced by the lack of visitation in Mexico. The record shows Jorge did not ask the Agency to facilitate visitation in Mexico; thus the issue would be forfeited on appeal. (In re Dakota H., supra, 132 Cal.App.4th at pp. 221-222.)
Further, Jorge's assertion that the Agency impeded his opportunity to establish a beneficial parent-child relationship with Michelle sufficient to avoid termination of parental rights is wholly without merit. To establish a beneficial parent-child relationship, the parent must show that he or she maintained regular and consistent contact with the child and the child would benefit from continuing the relationship. (§ 366.26, subd. (c)(1).)
The record shows Jorge did not have any contact with Michelle during the reunification period. He knew Michelle had been detained, yet he did not maintain contact with the children or the social worker. Jorge did not make an appearance in the case for more than a year. When he appeared, Jorge did not request custody of Michelle, and did not seek to participate in reunification services. Jorge did not raise issues of visitation or reasonable services when the court referred the case to a section 366.26 hearing in October 2004. He first visited Michelle on March 16, 2006. There is no record Jorge visited Michelle after June 27, 2006. She was not placed with the H.'s until November 2006. Thus, even had the Agency facilitated visitation in Mexico after March 16, 2006, Jorge cannot establish that he maintained regular and consistent visitation with Michelle, or that the benefits of the parent-child relationship outweighed the benefits of adoption to Michelle. (§ 366.26, subd. (c)(1)(A); In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
The record also shows that Jorge did not maintain much contact with Michelle prior to the dependency proceedings. Martha sought treatment in California in 1997, the year of Michelle's birth. Thus we can draw the reasonable inference Michelle never identified Jorge as a parental figure.
We conclude that Jorge was not prejudiced by the untimely notice of his right to file a writ petition. A judgment may not be reversed on appeal unless the reviewing court, after examining the entire cause, including the evidence, concludes the error caused a miscarriage of justice. (Cal. Const., art. VI, § 13.) Here, error, if any, is harmless.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McDONALD, J. HALLER, J.