Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from orders of the Superior Court of Los Angeles County, County Super. Ct. No. CK56510, Stanley Genser, Juvenile Court Referee.
Megan Turkat-Schirn, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Judith A. Luby, Principal Deputy County Counsel, for Plaintiff and Respondent.
PERLUSS, P. J.
Robert S., the father of 20-month-old A. H., appeals from orders of the juvenile court denying him reunification services under Welfare and Institutions Code section 361.5, subdivision (e)(1), and thereafter terminating his parental rights under section 366.26. We affirm.
Statutory references are to the Welfare and Institutions Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
A. H. was born five weeks prematurely in March 2007. She tested positive for cocaine, as did her mother, Monique H., who also tested positive for opiates. At the time of A. H.’s birth, Robert S., who was identified as the father by Monique H. but not named on the birth certificate, was incarcerated for various drug-related and parole offenses. On March 15, 2007 the Los Angeles County Department of Children and Family Services (Department) filed a petition under section 300, subdivision (b), alleging A. H.’s parents each had a history of illicit substance abuse and had failed to protect A. H. The petition additionally stated, “The Department . . . may seek an order pursuant to WIC 361.5 that no reunification services shall be provided the family which will result in immediate permanency planning through termination of parental rights and adoption, guardianship or long term foster care.” A. H. was detained and, after her release from the hospital, placed with a fost-adopt family (that is, foster parents with a goal of adoption by them in the event reunification should prove unsuccessful).
The Department’s investigation revealed Monique H. was herself a former dependent child of the juvenile court and had a lengthy history of drug abuse and arrests for criminal offenses. She previously had two other children removed for general neglect, one of whom had subsequently died of a congenital defect. She had failed to reunite with her oldest son, and her parental rights to him were terminated a week before A. H.’s birth. Monique H. had lived with Robert S. for a period of eight months before his arrest on a parole violation and subsequent incarceration in February 2004, when Monique H. was nearly seven months pregnant. After his incarceration, she told him she had aborted the baby.
Robert S., who admitted he was a non-active member of the White Fence gang and had used drugs since the age of 18, had an extensive history of theft, robbery and drug-related felony convictions and parole violations. Regarding his most recent incarceration, he advised the social worker he would be released in January 2008. He also told the social worker he had an adult daughter with whom he had had no contact for many years. Nonetheless, he stated he would be interested in establishing a relationship with A. H. and indicated his uncle might be willing to care for A. H.
In its jurisdiction/disposition report the Department recommended reunification services be denied to both parents. The Department cited section 361.5, subdivision (e)(1), which permits the court to deny reunification services to an incarcerated parent if providing services would be detrimental to the child, as the basis for denying services to Robert S., stating, “At this juncture, Robert S[.] will remain incarcerated until sometime after/around January 2008. Given that [A. H.] is a newborn, such sentence precludes Robert S[.] from reunifying with his child within a designated 6-month reunification period.” In a subsequent update the Department reported it had been unable to locate Monique H. after her release from the hospital and Robert S.’s uncle had declined to be considered for placement of A. H. on the ground he and his wife had already accepted placement of five other “drug babies” from their family and could not start over with another. Meanwhile, Robert S. had been transferred to a different prison, twice causing the jurisdiction/disposition hearing to be continued and reset for a contested adjudication hearing.
In a July 12, 2007 letter to the court Robert S. complained his counsel had failed to contact him and he wanted to know the results of the previously scheduled hearing. Unbeknownst to Robert S., the court had already ordered he be brought to the rescheduled adjudication hearing.
Although the Department was unable to find Monique H., Robert S. appeared and testified at the July 23, 2007 adjudication hearing. The trial court sustained the allegations of the petition under section 300, subdivision (b). Based on Robert S.’s anticipated release date in January 2008 and his lengthy criminal history (including multiple serious or violent felony “strike” convictions), recidivism and continued drug use, the court denied his request for family reunification services under section 361.5, subdivision (e)(1), finding reunification would be detrimental to A. H. The court also found by clear and convincing evidence it would be in A. H.’s best interests to set a hearing date under section 366.26 for termination of parental rights. The court explained the ruling to Robert S. and then advised him of his “right to appeal the order . . ., but you must file a notice of intent to appeal within seven days of today. . . . Your attorney will go over your appeal rights and assist you in completing any paperwork that needs to be completed if you want to appeal the order denying you reunification services. That request has to be filed . . . within seven days of today. Do you understand that? Is that yes? The father is nodding in a yes fashion.” The court then set the section 366.26 hearing for November 19, 2007 and directed Robert S.’s counsel to advise her client of his appeal right. The minute order for the hearing reflects Robert S. was provided with the necessary forms to seek writ review of the court’s orders. The court clerk then prepared the notice for the section 366.26 hearing, which was personally served on Robert S. before he left the building to return to prison. The notice stated the Department recommended termination of Monique H.’s and Robert S.’s parental rights and implementation of a plan of adoption.
The evidence supporting the court’s finding related to A. H.’s best interests established she had never met or bonded with her father and had been in a stable placement since her departure from the hospital with a family interested in adopting her. Her counsel supported the Department’s recommendations to deny reunification services to the parents and to proceed with the section 366.26 hearing.
Notwithstanding the court’s advisements, Robert S. did not file the notice of intent to seek appellate review of the July 23, 2007 orders. (See § 366.26, subd. (l)(1); Cal. Rules of Court, rules 5.600, 8.450.) On November 19, 2007 the Department filed a section 366.26 report, including an adoption assessment, stating A. H., at eight months old, had exhibited some developmental delays and had tested positive for the Hepatitis C. virus (as had her mother Monique H.) but was otherwise healthy and was strongly attached to her fost-adopt family. The Department also reported Monique H. had never been located. At the request of Robert S.’s counsel, the court continued the hearing to December 10, 2007 and issued a statewide removal order directing that Robert S. be brought from prison to the courthouse for the hearing. When the case was reconvened on December 10, however, Robert S. was again absent. Upon inquiry, the court was advised Robert S. had orally waived his right to be present at the hearing. Because of the absence of a written waiver, the court terminated Monique H.’s parental rights, but stayed the order and trailed the hearing to allow the prison sufficient time to obtain Robert S.’s written waiver of his right to attend the hearing. On December 13, 2007, with a written waiver executed by Robert S. in hand, the court terminated his parental rights, found A. H. was likely to be adopted and ordered adoption as the permanent plan for A. H.
CONTENTIONS
Robert S. contends he received inadequate information about his right to seek writ review of the orders setting the section 366.26 hearing and denying him reunification services, as well as inadequate notice of the date of the section 366.26 hearing; the juvenile court erred by not extending the six-month reunification period based on his incarceration and by terminating his parental rights without first offering him reunification services; his waiver of his right to be present at the section 366.26 hearing was not knowing; and the court lacked substantial evidence for the finding A. H. was adoptable.
DISCUSSION
1. Standard of Review
When the factual basis for a juvenile court’s finding or order is challenged on appeal, the reviewing court must determine if there is substantial evidence, contradicted or uncontradicted, that supports it. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393; In re Ricardo L. (2003) 109 Cal.App.4th 552, 564.) Under this standard of review we examine the whole record in a light most favorable to the findings and conclusions of the juvenile court and defer to the lower court on issues of credibility of the evidence and witnesses. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430; In re Tania S. (1992) 5 Cal.App.4th 728, 733-734.) We must resolve all conflicts in support of the determination and indulge all legitimate inferences to uphold the court’s order. Additionally, we may not substitute our deductions for those of the trier of fact. (In re Albert T. (2006) 144 Cal.App.4th 207, 216; In re John V. (1992) 5 Cal.App.4th 1201, 1212.)
Substantial evidence is not synonymous with any evidence. (In re Savannah M., supra, 131 Cal.App.4th at p. 1393.) “A decision supported by a mere scintilla of evidence need not be affirmed on appeal. [Citation.] Furthermore, ‘[w]hile substantial evidence may consist of inferences, such inferences must be “a product of logic and reason” and “must rest on the evidence” [citation]; inferences that are the result of mere speculation or conjecture cannot support a finding [citations].’ [Citation.] ‘The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record.’” (Id. at pp. 1393-1394; accord, In re David M. (2005) 134 Cal.App.4th 822, 828.)
2. Robert S. Received Adequate Notice of His Right To Seek Writ Review of the Court’s July 23, 2007 Orders and Thus Forfeited Those Claims by Failing To File the Necessary Petition
Section 366.26, subdivision (l), precludes direct appeal of orders made at a hearing at which the section 366.26 selection and implementation hearing is set unless preceded by a petition for extraordinary writ review that is not decided on the merits. (See In re Merrick V. (2004) 122 Cal.App.4th 235, 247; In re Charmice G. (1998) 66 Cal.App.4th 659, 668.) “[T]he bar of section 366.26, subdivision (l) [extends to] all orders issued at a hearing in which a setting order is entered.” (In re Anthony B. (1999) 72 Cal.App.4th 1017, 1023.) As the Anthony B. court explained, “The goals of expedition and finality would be compromised if the validity of these types of contemporaneous, collateral orders were permitted to be raised by appeal from the order itself or from a later permanent planning order and therefore allowed to remain undecided until well after the permanent plan was decided upon. The desired expedition and finality obviously would be most threatened when the permanent plan was adoption and termination of parental rights, the preferred plan which must be ordered if the child is found adoptable and the juvenile court cannot make any of the findings set out in section 366.26, subdivision (c)(1)(A) through (D).” (Ibid.; accord, In re Tabitha W. (2006) 143 Cal.App.4th 811, 815-816; In re Merrick V.,at p. 248.)
Because the order denying reunification services to Robert S. was made contemporaneously with the order setting a section 366.26 hearing and he failed to file a petition for extraordinary writ review under section 366.26, subdivision (l), he has forfeited his appeal from that order.
Seeking to avoid this result, Robert S. contends he was inadequately advised of his right to review by extraordinary writ, pointing to the juvenile court’s use of the term “appeal” rather than “writ” in describing his rights. Under the circumstances this is a meaningless distinction. Robert S. was expressly told he was required to file a notice of intent to seek appellate review of the court’s order within seven days. The court ensured Robert S. was listening to its words and nodded affirmatively to indicate his understanding of that fact before concluding the hearing. The court also directed Robert S.’s attention to the form to be used for indicating his intention to seek appellate review and instructed Robert S.’s counsel to advise her client of his right to review. Counsel answered she would do so, and Robert S. has submitted nothing to indicate she failed to carry out the court’s instruction. On this record we see no reason to relieve Robert S. from the bar of section 366.26, subdivision (l), and decline to consider his substantive arguments related to the court’s orders denying him reunification services and setting the section 366.26 hearing.
Robert S. contends the clerk served him with copies of the minute order and writ forms at the wrong address after the hearing, but this defect in service is irrelevant because he was present at the hearing. California Rules of Court, rule 5.600(b)(1) does not require these items to be mailed unless a party is absent from the hearing. (See § 366.26, subd. (l)(3)(A).)
3. The Trial Court Properly Accepted Robert S.’s Waiver of His Right To Attend the Section 366.26 Hearing
An incarcerated parent has a right to attend a section 366.26 hearing at which his parental rights may be terminated. Penal Code section 2625 provides that no section 366.26 proceeding may be conducted without the physical presence of the prisoner or his attorney, “unless the court has before it a knowing waiver of the right of physical presence signed by the prisoner or an affidavit signed by the . . . person in charge of the institution, . . . stating that the prisoner has, by express statement or action, indicated an intent not to appear at the proceeding.” (Pen. Code, § 2625, subds. (b), (d); cf. In re Julian L. (1998) 67 Cal.App.4th 204, 208.)
Robert S. now contends he did not knowingly waive his appearance at the section 366.26 hearing, but the record belies that contention. Robert S. was personally served with notice of the November 19, 2007 hearing when it was set at the July 23, 2007 jurisdiction and disposition hearing. Although the court failed to issue a statewide removal order for the hearing set for November 19, 2007 (and Robert S.’s counsel did not request such an order), when the court convened the hearing on that date, it recognized the oversight, continued the hearing to December 10, 2007 and issued the necessary removal order disclosing “[t]he hearing [would] be held under . . . section 366.26 to [¶] . . . terminate parental rights.” The copy of that order in the record bears the handwritten notation “Waived on 12-04-07,” but was not completed or signed by Robert S. or a prison official. On December 10, 2007, in the presence of Robert S.’s counsel, the court discussed the inadequacy of the waiver and trailed the hearing to secure a written waiver of appearance. The waiver subsequently transmitted to the court from the prison contained a one-page form entitled “Out To Court Appearance Waiver,” with a reference to the purpose of the court hearing as “child custody.” That page, bearing a checkmark in the box indicating, “No, I do not wish to attend the hearing,” was signed by Robert S. on December 11, 2007. Attached to the same facsimile transmission was the second page of the original statewide removal order issued by the court on December 10, 2007, containing a completed declaration signed by a prison official on December 11, 2007 stating Robert S. had declined to attend the hearing.
The waiver was received by the court on December 13, 2007. Upon receipt of the waiver, the court reconvened the hearing with Robert S.’s counsel in attendance. In announcing her appearance, his counsel stated, “[Robert S.] has waived his appearance for today.” The court proceeded to terminate his parental rights. Under these circumstances Robert S.’s contention his waiver was not knowing is simply not credible.
4. The Trial Court’s Adoptability Finding Was Supported by Substantial Evidence
Section 366.26 directs the juvenile court in selecting and implementing a permanent placement plan for a dependent child. The express purpose of a section 366.26 hearing is “to provide stable, permanent homes” for dependent children. (§ 366.26, subd. (b).) If the court has decided to end parent-child reunification services, the legislative preference is for adoption. (§ 366.26, subd. (b)(1); see In re Celine R. (2003) 31 Cal.4th 45, 53 [“[I]f the child is adoptable . . . adoption is the norm. Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances provides a compelling reason for finding that termination of parental rights would be detrimental to the child.”]; In re Matthew C. (1993) 6 Cal.4th 386, 392 [when child adoptable and declining to apply one of the statutory exceptions would not cause detriment to the child, the decision to terminate parental rights is relatively automatic]; see also In re Marilyn H. (1993) 5 Cal.4th 295, 307 [once reunification efforts have been found unsuccessful, the state has a “compelling” interest in “providing stable, permanent homes for children who have been removed from parental custody”; and the court then must “concentrate its efforts . . . on the child’s placement and well-being, rather than on a parent’s challenge to a custody order”].)
Robert S. contends the court’s finding of adoptability was not supported by substantial evidence because the adoption assessment prepared by the Department under section 361.5, subdivision (g)(1), failed to disclose the full extent of A. H.’s medical problems or establish the prospective parents’ ability to meet her needs. The Department responds Robert S. waived this issue because his counsel expressly submitted on the record before the court without raising an objection to the adequacy of the report. (See, e.g., In re Aaron B. (1996) 46 Cal.App.4th 843, 846 [failure to object to adequacy of adoption assessment forfeited the issue on appeal]; In re Crystal J. (1993) 12 Cal.App.4th 407, 411-412 [same].) We agree with the decisions of the First District in In re Brian P. (2002) 99 Cal.App.4th 616, 623 and the Fourth District in In re Gregory A. (2005) 126 Cal.App.4th 1554, 1560-1561, in which the courts held, while the objection an adoption assessment is inadequate may have been forfeited, “‘“[t]he contention that a judgment is not supported by substantial evidence . . . is an obvious exception to the forfeiture rule.”’” (In re Gregory A., at p. 1560, quoting In re Brian P., at p. 623.)
Robert S.’s argument, however, fails on the merits. As an initial matter, there is no requirement prospective adoptive parents be shown to have a detailed understanding of every potential health or developmental hurdle a particular child might face. “The issue of adoptability posed in a section 366.26 hearing focuses on the minor, e.g., whether the minor’s age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor. [Citations.] Hence, it is not necessary that the minor already be in a potential adoptive home or that there be a proposed adoptive parent ‘waiting in the wings.’” (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649; see § 366.26, subd. (c)(1).) “[T]he 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.” (In re Sarah M., at pp. 1649-1650; see In re Asia L. (2003) 107 Cal.App.4th 498, 510.) “‘“[W]hat is required is clear and convincing evidence of the likelihood that adoption will be realized within a reasonable time.”’” (In re Gregory A., supra, 126 Cal.App.4th at p. 1563.)
Moreover, the assessment in this case is necessarily limited because A. H. is little more than an infant. The adoption assessment before the court discloses A. H. was born drug-affected and positive for the Hepatitis C virus and has exhibited some developmental delays. Nonetheless, she has received regular medical care, secured by the prospective adoptive family, and there is no indication in the record this care was inadequate. Coupled with the record of the prospective adoptive family’s ongoing commitment to A. H. in the face of her health and developmental challenges, the court had ample evidence to support its finding of adoptability.
DISPOSITION
The orders of the juvenile court are affirmed.
We concur: WOODS, J. ZELON, J.