Opinion
NOT TO BE PUBLISHED
City & County of San Francisco Super. Ct. No. JD053355
Jones, P.J.
T.J. (father) appeals from an order terminating his parental rights as to his son Ta and daughter Ti. Father contends the order must be reversed because (1) the court’s finding that the children were adoptable is not supported by substantial evidence, (2) termination was detrimental to his children’s interests, and (3) termination was contrary to Ta’s stated preference. We will reject these arguments and affirm the order terminating father’s parental rights.
I. FACTUAL AND PROCEDURAL BACKGROUND
In October 2005, a petition was filed alleging that seven-year-old Ta and four-year-old Ti were dependent children within the meaning of Welfare and Institutions Code section 300, subdivision (b). The petition alleged that L.H. (mother) had a substance abuse problem that caused her to abuse and neglect Ta and Ti and that father had a criminal history and was incarcerated in state prison.
Unless otherwise indicated, all further section references will be to the Welfare and Institution’s Code.
The court detained Ta and Ti and placed them in foster care.
A social worker filed a combination jurisdictional/dispositional report on December 16, 2005. It stated mother had a long history of abusing alcohol and drugs and that father had a lengthy criminal history. The report also noted father had not made contact with the children even though he recently had been released from prison.
An addendum report was filed on February 21, 2006. It noted that the children had been returned to mother’s custody but that things were not going well. Mother had failed to complete any drug tests and Ta was missing a significant amount of school.
On March 1, 2006, the court again removed Ta and Ti from mother’s custody after police found her drunk outside and in the rain.
On April 14, 2006, another dispositional report was filed. It stated the children were in foster care but that mother had failed to visit them, contact her social worker, or engage in any services. Father’s whereabouts were unknown. The report proposed a reunification plan for mother, but stated no plan would be submitted for father until he came forward and made himself known.
The court finally conducted the jurisdictional/dispositional hearing on April 20, 2006. Neither parent attended. The court found the allegations of the petition to be true and declared Ta and Ti to be dependent children. The court ordered that mother receive reunification services but did not order any services for father.
A status review report was filed on October 5, 2006. It stated that mother’s and father’s whereabouts remained unknown. Not surprisingly, the children were facing challenges. Ta was doing well in school but he sometimes had problems telling the truth. Ti, who was only five, was engaging in sexualized behavior telling her foster mother that she wanted to “get pregnant” and that she wanted “a baby.” Sexual abuse was suspected and Ti was referred for therapy. The report noted that some relatives had been contacted about possibly caring for Ta and Ti but that nothing firm had materialized.
A review hearing was conducted on February 1, 2007. The court terminated mother’s reunification services and selected long-term foster care as the permanent plan.
On July 13, 2007, a status review report was filed. It stated that mother had not visited with her children since the last hearing and that father’s whereabouts remained unknown. Both children were in weekly therapy and appeared to be doing well in foster care. However, the report also noted pointedly that “[b]oth children [were] desperately in need of a loving and permanent home....”
Review hearings were conducted in July 2007 and February 2008. At each, the court renewed the dependency without significant change.
Another status review report was filed on July 17, 2008. It discussed several significant developments, both positive and negative. Ta and Ti had been moved to a new foster home after reports of physical abuse were substantiated against the prior foster parents. The move had proved particularly difficult for Ti. In addition, mother had resumed visits with the children, but they had not gone well. Mother failed to show up for many visits and she appeared late at others. During one of the visits, mother slapped Ta. On the positive side, child welfare officials had located a paternal aunt in Los Angeles and Ta and Ti had visited her for five days in June. The visit went well and officials were considering placing the children with her.
Shortly thereafter on July 28, 2008, child welfare officials filed a section 388 petition asking that the children be placed with their aunt and her husband in Los Angeles. The petition noted the children had been moved there temporarily about a week earlier and that they were comfortable in their aunt’s care. The trial court granted the request at a hearing on August 12, 2008.
A status review report was filed on January 20, 2009. It said the children were doing extremely well in their new placement with their aunt. The aunt had recently moved to a new larger home and the children were decorating their rooms. According to the report, the children were “finally relaxing into roles of carefree, happy children.” The report said the aunt had been referred for an adoptive home study and that an evaluation was in progress.
A review hearing was conducted on March 3, 2009. The court renewed the dependency without significant change.
A status review report was filed on July 20, 2009. It stated the children had blossomed in the care of their aunt. The report noted that the aunt had been under pressure from her family not to adopt, but that after discussing it with child welfare officials, she was ready to move forward with adoption. Both children wanted to be adopted.
At a review hearing conducted on August 4, 2009, the court set a hearing on December 23, 2009, to determine whether mother’s and father’s parental rights should be terminated.
The report prepared prior to that hearing urged the court to terminate mother’s and father’s parental rights. Both children wanted to be adopted and the aunt wanted to adopt them. The report stated that Ta and Ti were “thriving” under their aunt’s care and that they were “different children since living in their current home.” Ta’s self-confidence had continued to improve and he made dramatic improvements in school. Ti was also excelling in school and it was “surprising how many behavior problems she had at her previous school compared to all [the] excellent marks in both behavior and grades at her current school.”
After continuances the court conducted a hearing on January 27, 2010. Father made his first personal appearance in the dependency and the court continued the matter for a contested hearing.
The contested hearing finally began on March 12, 2010. Two social workers testified, the first of whom stated that Ta and Ti both wanted to be adopted by their aunt. The social worker also said that father never visited the children and that neither had even mentioned father to her. Another social worker stated that father had contacted him on December 30, 2009, and that he was allowed to speak with Ta and Ti by telephone. Shortly after the contacts began, Ta began misbehaving at home and he failed to come home after school one day. The problem subsided after the social worker met with Ta and his caregiver.
Father also testified on his own behalf. He said Ta and Ti both told him on the telephone that they wanted him to keep his parental rights. Father admitted to the court that he could not recall the last time he had seen his children.
The juvenile court considering this evidence stated it was “not sure that either of these kids know what termination of parental rights means.” Observing that the “most compelling evidence” it heard was that the children wanted to be adopted, the court found by clear and convincing evidence that the children would be adopted and terminated mother’s and father’s parental rights.
After an unsuccessful request for a rehearing, father filed the present appeal.
II. DISCUSSION
A. Appealability
Before we turn to the merits we must address a procedural issue. Respondent San Francisco County Human Services Agency contends the appeal must be dismissed because father did not consent to the filing of the notice of appeal.
An attorney’s authority to represent his client is presumed absent a strong factual showing to the contrary. (Sarracino v. Superior Court (1974) 13 Cal.3d 1, 13.) In the absence of evidence affirmatively showing the attorney’s lack of authorization, a notice of appeal signed by the client’s attorney raises no question as to its validity. (In re Helen W. (2007) 150 Cal.App.4th 71, 78.)
Here, while father did not sign his notice of appeal, he was present at and he testified during the hearing where the court terminated his parental rights. Because there is no strong evidence to the contrary, we will presume father authorized his attorney to file the notice of appeal.
B. Sufficiency of the Evidence
Father contends the trial court’s conclusion that it was likely Ta and Ti would be adopted is not supported by substantial evidence.
Before a court may terminate parental rights, it must find, by clear and convincing evidence, that it is likely the child will be adopted. (§ 366.26, subd. (c)(1).) Clear and convincing evidence requires a finding of high probability. (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205.) The evidence must be so clear as to leave no substantial doubt. (Ibid.) “The issue of adoptability requires the court to focus on the child, and whether the child’s age, physical condition, and emotional state make it difficult to find a person willing to adopt. [Citations.] It is not necessary that the child already be placed in a preadoptive home, or that a proposed adoptive parent be waiting. [Citations.] However, there must be convincing evidence of the likelihood that adoption will take place within a reasonable time. [Citation.]” (In re Brian P. (2002) 99 Cal.App.4th 616, 624.) “Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor’s age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parent’s willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family. [Citation.]” (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650.)
On appeal, we review the record in the light most favorable to the lower court’s ruling to determine whether there is substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that the child or children at issue are likely to be adopted. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.)
Applying these standards, we conclude the trial court’s ruling was well supported.
The record here shows Ta and Ti had been placed in the home of a paternal aunt and her husband who wanted to adopt them. A referral for an adoptive homestudy had been made and was almost complete. The aunt’s criminal and child welfare status had been investigated and cleared. The aunt fully understood the legal and financial responsibilities of adoption. The aunt and her husband both work and have stable jobs. They have a large home that can accommodate both children. The aunt’s mother lives nearby and can and does provide back-up child care when needed. By the time of the termination hearing, the aunt had been caring for both children for more one and one-half years and therefore fully understood the challenges she was undertaking. Ta and Ti both said they were happy living with their aunt and they wanted to be adopted by her. Based on this record, the juvenile court reasonably could conclude it was likely Ta and Ti would be adopted. The court’s ruling is supported by substantial evidence.
Father contends the evidence was insufficient because the children were not generally adoptable due to their sibling bond, their ages and their behavioral problems. The record does not support the argument, but we need not dwell on the point. Even if Ta and Ti were not generally adoptable, the record demonstrates it was highly likely they would be adopted by their paternal aunt.
Father contends the evidence concerning the aunt’s willingness to adopt is insufficient to support the court’s finding because there were legal impediments to that adoption. Father is correct that when a child is deemed adoptable because a particular caretaker is willing to adopt, a court must look to whether there are any legal impediments to that adoption. (In re Helen W., supra, 150 Cal.App.4th at p. 80.) However, we see no impediments here. Father contends that one legal impediment to the aunt adopting is “the lack of an approved home study.” This plainly is incorrect. Many courts have recognized that there is “no requirement that an adoptive home study be completed before a court can terminate parental rights.” (In re Marina S. (2005) 132 Cal.App.4th 158, 166; see also In re Brandon T. (2008) 164 Cal.App.4th 1400, 1410.) The primary case upon which father relies, In re B.D. (2008) 159 Cal.App.4th 1218, does not require a different conclusion. The court there ruled that the “absence of a foster care license or a preliminary assessment” was an impediment to adoption. (Id. at p. 1233.) That was so because the five children who were at issue, some of whom had displayed challenging behaviors, had not been placed with the family who was interested in adoption and the social worker had not even been allowed to provide information about the children to the family. (Id. at pp. 1233-1234.) Here by contrast, it is apparent a preliminary assessment had been conducted and that no impediments to adoption had been identified. (See § 366.22, subd. (c)(1)(D).) Furthermore, the prospective adoptive parent fully understood the children’s situation because she had been caring for them for more than a year and one-half. In re B.D. is not controlling under these very different facts.
Father contends another legal impediment to the aunt adopting is “[Ta]’s lack of fully-informed consent.” He notes that a minor who is 12 years old or more must consent to his own adoption (Fam. Code, § 8602), and he argues that Ta was not informed adequately about what adoption means. We are unpersuaded. A social worker discussed the differences between legal guardianship and adoption with the children. She told Ta that if he was adopted, his aunt “would be legally a mother to them” while under a guardianship, his aunt “would be caring for them.” The social worker also told Ta that if he was adopted, he could still have a relationship with this biological family. It would mean, however, that his parents would lose their right to reunify with him. Armed with this knowledge, Ta said he wanted to be adopted. The social worker’s explanations were accurate and adequate given Ta’s age and circumstances. We find no impediment to adoption on this ground.
C. Whether Termination was Detrimental to the Children
Father contends the children were not adoptable because it would be detrimental to them “to lose contact with their parents.” An exception to the general rule favoring adopting arises when “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26(c)(1)(B)(i).) Father fell far short of meeting this requirement. Father could not remember when he last visited with his children and he made his first appearance in the dependency at the termination stage. Plainly father did not maintain “regular visitation and contact” with his children. We find no impediment to adoption on this ground.
D. Whether Termination was Contrary to Ta’s Stated Preference
Relying on section 366.26, subdivision (c)(1)(B)(ii), father contends the juvenile court should not have terminated his parental rights because doing so was contrary to Ta’s stated preference.
Section 366.26, subdivision (c)(1)(B)(ii) is an exception to the Legislature’s preference for adoption. It permits the court to find termination of parental rights detrimental to a child if “[a] child 12 years of age or older objects to termination of parental rights.” Before terminating parental rights, the juvenile court must consider the child’s wishes, to the extent that they are ascertainable. (§ 366.26, subd. (h).) A court’s finding that the exception to termination set forth in section 366.26, subdivision (c)(1)(B)(ii) does not apply must be upheld on appeal if it is supported by substantial evidence. (In re Christopher L. (2006) 143 Cal.App.4th 1326, 1333.)
The court in In re Christopher L., supra, 143 Cal.App.4th 1326, applied these principles when faced with facts that are very similar to those that are presented here. There, the boy who was the subject of the dependency repeatedly asserted his preference for adoption. (Id. at p. 1335.) However, when asked whether he wanted to be adopted if that meant he could never see his mother again, the boy said no. (Ibid.) On appeal, the mother argued the boy’s testimony triggered the exception now set forth in section 366.26, subdivision (c)(1)(B)(ii). The Christopher L. court disagreed explaining its decision as follows:
“We do not consider each of Christopher’s statements in a vacuum. Our review is deferential. [Citation.] It was the juvenile court’s task to determine the testimony that accurately represented Christopher’s state of mind with respect to adoption. His testimony on direct and cross-examination was consistent with statements made to the Agency during the months before the hearing. Given the deference we must accord to a juvenile court’s factual findings, it was reasonable for the court to resolve conflicts in favor of finding that Christopher favored adoption. We therefore do not construe Christopher’s wish to continue to see Debra as undermining or being contrary to his wish to be adopted by his aunt and uncle. The evidence afforded the juvenile court a reasonable basis for ascertaining Christopher’s wishes. [Citation.] Consequently, on review of the entire record, substantial evidence supports the juvenile court’s finding that Christopher’s statements did not constitute objections, but instead amounted to statements of preference. Substantial evidence supports the juvenile court’s finding that Debra did not meet her burden to show Christopher objected to termination of parental rights.” (Id. at p. 1335.)
We reach a similar conclusion here. There was evidence that Ta did not want his father’s parental right to be terminated. Father himself testified that that was what Ta had told him on the telephone. But there was also abundant evidence that Ta had repeatedly and forcefully said he wanted to be adopted by his aunt. The trial court, who was charged with sorting out this conflicting testimony, ruled specifically that Ta wanted to be adopted and that the exception to termination set forth in section 366.26, subdivision (c)(1)(B)(ii) did not apply. Because that ruling is supported by substantial evidence, we will not disturb it on appeal. (In re Christopher L., supra, 143 Cal.App.4th at p. 1333.)
III. DISPOSITION
The order terminating father’s parental rights is affirmed.
We concur: Needham, J.Bruiniers, J.