Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara Nos. J1174625, J1174626, J1174627, J1172648, J1174810 Arthur A. Garcia, Judge
Maureen Keaney, under appointment by the Court of Appeal, for Appellant.
Stephen Shane Stark, County Counsel, County Santa Barbara and Toni Lorien, Deputy, for Respondent.
YEGAN, J.
Joseph M. is the father of five minor children: Tamra M. (age 14), Joe M. Jr. (age 12), J. M. (age 9), Trinity M. (age 4), and Violet M (age 2) (hereafter collectively referred to as minors). He appeals from the judgment terminating his parental rights to minors. (Welf. & Inst. Code, § 366.26.) Appellant contends that (1) the evidence is insufficient to support the juvenile court's finding that minors are likely to be adopted; (2) the court erroneously failed to consider minors' wishes; and (3) the court abused its discretion and denied him due process by refusing to conduct a contested hearing on one of the statutory exceptions to termination of parental rights. We affirm.
All statutory references are to the Welfare and Institutions Code.
Factual and Procedural Background
On March 6, 2006, the juvenile court declared minors to be dependent children of the court. It removed the children from their mother's custody and ordered that they be placed in the care and custody of Santa Barbara County Child Protective Services for placement in the home of a suitable relative. Family reunification services were ordered to be provided to mother and appellant.
On September 7, 2006, the juvenile court ordered that minors be returned to the custody of mother and that family reunification services be terminated as to appellant.
On February 5, 2007, the juvenile court found true allegations of a section 387 supplemental juvenile dependency petition. The petition alleged that mother had abandoned minors. The court ordered that the physical custody of minors be removed from mother, that reunification services be terminated as to mother, and that minors remain in the care and custody of Santa Barbara County Child Welfare Services (CWS) for placement in the home of a suitable relative. The matter was set for a hearing pursuant to section 366.26.
Appellant petitioned for an extraordinary writ to vacate the order setting the section 366.26 hearing. In an unpublished opinion, we summarily denied the petition because appellant had failed to comply with the procedural requirements of rule 8.452 of the California Rules of Court. (B196730, filed May 15, 2007.)
On June 11, 2007, the parental rights of both parents were terminated. Only appellant filed an appeal.
Adoptability
The juvenile court found by clear and convincing evidence that minors are likely to be adopted. This finding is a prerequisite to the termination of parental rights. (§ 366.26, subd. (c)(1); Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249-250; In re Jessie G. (1997) 58 Cal.App.4th 1, 6.) Appellant contends that the evidence is insufficient to support this finding.
"[W]e review the factual basis for the trial court's finding of adoptability and termination of parental rights for substantial evidence. [Citation.] We therefore 'presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order.' [Citation.]" (In re Josue G. (2003) 106 Cal.App.4th 725, 732.)
" 'In resolving [the adoptability] issue, the court focuses on the child-whether his age, physical condition and emotional state make it difficult to find a person willing to adopt him. [Citation.]' [Citation.]" [¶] . . . [O]ne of the factors in determining adoptability is the existence of prospective adoptive parents . . . . '[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 Josue G., supra, 106 Cal.App.4th at p. 733.)
Substantial evidence supports the trial court's finding of adoptability. The report prepared by CWS for the 366.26 hearing (hereafter the report) states that, since February 3, 2006, minors have been living with their maternal grandparents, "although because of the parents' long history of drug and criminal problems [minors] have been cared for by their grandparents on and off for most of their lives." According to the report, the grandparents "are very capable of meeting all of the children's needs" and "are fully committed to taking the necessary steps to adopt these children." "Both expressed their love for all of the children and their desire to raise them together in a healthy family environment. They wish to provide the children with a stable and long-term home through adoption." The "grandparents even bought a larger and newer home in order to give the older children their own bedrooms."
Consideration of Minors' Wishes
Section 366.26, subdivision (h)(1), provides: "At all proceedings under this section, the court shall consider the wishes of the child and shall act in the best interests of the child." Appellant contends that the juvenile court failed to consider minors' wishes.
The contention is without merit. The juvenile court stated, "I have considered the wishes of the child, as expressed through counsel here in court and also as contained in the report . . . ." The court found that, although the report "was a bit light" and "didn't have a lot of detail from the children," it was "sufficient for these purposes." We concur in the juvenile court's assessment of the report, which stated: "Although initially resistant, Tamra has now decided that she would like to be adopted by her grandparents. Joe and J. both state that they want to be adopted and describe the prospect of adoption as 'good, very good, terrific.' They state that their grandparents love and take good care of them and teach them right from wrong. Both Trinity and Violet are too young to make a statement regarding adoption." When the report was prepared (May 11, 2007), Trinity was three years old and Violet was one year old.
Denial of Contested Hearing
"If the court finds that a child may not be returned to his or her parent and is likely to be adopted, it must select adoption as the permanent plan unless it finds that termination of parental rights would be detrimental to the child under one of [several] specified exceptions. [Citations.]" (In re Derek W. (1999) 73 Cal.App.4th 823, 826.) The exception at issue here is contained in section 366.26, subdivision (c)(1)(A): "The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." Based on an offer of proof presented by appellant, the juvenile court denied his request for a contested hearing on the application of this exception. Appellant contends that the court's ruling constituted an abuse of discretion and a denial of due process.
"[I]t does not violate due process for a trial court to require an offer of proof before conducting a contested hearing on one of the statutory exceptions to termination of parental rights." (In re Tamika T. (2002) 97 Cal.App.4th 1114, 1122.) "The offer of proof must be specific, setting forth the actual evidence to be produced, not merely the facts or issues to be addressed and argued. If the trial court finds the offer of proof insufficient and declines to hold a contested hearing, the issue is preserved for appeal so that a reviewing court can determine error and assess prejudice. [Citation.]" ( Id ., at p. 1124) Appellant's offer of proof was as follows: "1. With the exception of the last 11/2 years, all of the children, ages 1 to 13, have been living with father (and mother) as a family in their family home in Santa Maria; [¶] 2. Over the past several years, a strong familial bond was developed with the children and their father (and mother). This will be demonstrated by testimony about the family's life together, their activities, their routines, their chores, their roles and their love and support of each other. This testimony will come from the eldest two children and the father; and [¶] 3. The older three children have, at a minimum, lived with their parents for six years (eleven for the eldest). By this very length of time, cutting off contact with termination of parental rights would be detrimental to them as there is no guarantee the grandparents will adopt any of these children."
The juvenile court did not abuse its discretion, nor did it deny appellant due process. The offer of proof was insufficient because it set forth no evidence showing that appellant had maintained the required "regular visitation and contact with [minors]." (§ 366.26, subd. (c)(1)(A).) There was a gap in the offer of proof as to appellant's visitation and contact with minors during the previous one and one-half years.
The juvenile court permitted appellant to testify "to preserve [his] appeal rights." Respondent CWS argues that, because he testified, appellant was granted the contested section 366.26 hearing that he had requested. Since the juvenile court correctly concluded that appellant's offer of proof was insufficient to warrant a contested hearing, we need not resolve this issue.
Disposition
The judgment terminating parental rights is affirmed.
We concur: GILBERT, P.J. PERREN, J.