Opinion
NOT TO BE PUBLISHED
San Francisco Superior Court Nos. JD083016, JD083017.
Lambden, J.
J.M., mother of minor children K.M. and B.A., and C.A., the alleged father of B.A., appeal from the juvenile court’s orders terminating their parental rights and setting adoption as the permanent plan for the children. Appellants argue the orders must be reversed because there was not clear and convincing evidence that the children were likely to be adopted within a reasonable time and the assessment report by the San Francisco Human Services Agency (Agency) was insufficient. C.A. also argues for reversal of the order regarding B.A. because the court erroneously failed to rule on his request for a judgment of parentage and denied him the opportunity to cross-examine a testifying social worker regarding the children’s adoptability, and requests certain orders should we reverse and remand. We affirm the orders.
BACKGROUND
We review the events in some detail, particularly regarding the children’s physical, emotional, and mental development, in order to evaluate whether substantial evidence supports the court’s finding by clear and convincing evidence that the children were likely to be adopted within a reasonable time.
The Children’s Detention and the Initial Dependency Petitions
On January 23, 2008, the Agency filed a detention report and separate dependency petitions for K.M., a 21-month-old boy, and his sibling, B.A., a five-month-old girl. The Agency indicated their mother, J.M., was incarcerated (B.A. having been born during J.M.’s incarceration), and the children were in the care of J.M.’s sister, Karen N. After K.M. was admitted to a hospital for respiratory problems and altered mental status, the doctors were reluctant to release him to Karen because hospital personnel had found B.A. unattended and crying in a baby stroller in a hospital room, soaked in urine, with an inappropriate bottle of juice, filthy, and with fungal rashes. At the detention hearing, the court appointed counsel for J.M. and C.A., and the children were ordered detained.
In its dependency petitions, the Agency alleged each child came within Welfare and Institutions Code section 300, subdivisions (b) and (g). The Agency alleged the children’s mother, J.M., and B.A.’s alleged father, C.A., were incarcerated and unable to care for them (B.A. in C.A.’s case) and had failed to ensure they received adequate medical care, and the children’s present caregiver was inappropriate, having had her own six children removed from her care due to substantiated allegations of neglect and physical abuse and having failed to seek appropriate medical care for the children. The Agency alleged K.M. had not had his asthma medication prescription refilled for months, was admitted to the hospital due to respiratory problems and an altered mental status, was at risk of emotional harm, and was being evaluated for depression due to neglect.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
The Court’s Ruling on Jurisdiction and Disposition
In a February 2008 disposition report, the Agency reported J.M. was 28 years old and had not seen B.A. since giving birth to her in jail. Her mother was a neglected child diagnosed as a schizoid who had at least eight children, and her father died when she was 16. J.M. had graduated from Bryman College and worked as an in-home caretaker, and did not have prior child welfare involvement. She had been convicted twice of drug-related felonies and of a misdemeanor for having a false identification. She was open and motivated to receiving help and services, and expressed a “strong love for her children.”
The Agency reported that neither C.A. nor J.M. questioned C.A.’s paternity regarding B.A. He had been incarcerated since April 2007 for possession and sales of drugs. He was a high school graduate, had worked in construction, had seven children, and had been incarcerated various times, mostly for drug-related charges. He expressed a desire to be involved in B.A.’s life. The Agency had various concerns about placing the children with C.A. The Agency also reported that K.M.’s father appeared to be dead.
The Agency reported that both children were in the process of adjusting to their new caregiver. K.M. has been somewhat quite and withdrawn. The new caregiver reported that [K.M.] has started to be “more expressive and sometimes gives him a hug.” K.M. was “a 23-month-old boy who has asthma and uses an inhaler two times a day for ‘reactive airway disease.’ He is not yet talking, although he does make sounds and noises. Caregiver reports that K.M. has grown more expressive and is able to return affection. He walks well and understands what people tell him and follows instructions. A referral will be made to Golden Gate Regional Center to request an assessment for possible speech delays.”
The Agency stated that B.A. was “an adorable, healthy five-month-old baby who smiles and enjoys being held.” According to caregiver, “she appear[ed] to be adjusting, as well.”
The Agency recommended the mother and C.A. complete service plans before any reunification, and the children be made dependents of the court.
In an early April 2008 addendum report, the Agency reported J.M. had pleaded guilty to possession for sale, been placed on probation and released from jail, and was expected to enter a residential treatment program shortly. C.A. remained incarcerated and was expected to soon have a paternity test to determine if he was B.A.’s biological father. He was interested in receiving services and being involved in B.A.’s life.
The Agency reported the children were receiving “excellent care” with a new caregiver. A childcare center reported K.M. was “blossoming” after first being shy and crying throughout the day. He was socializing and playing with other children, participating in activities such as music, blocks, and art projects, and enjoyed playing outdoors on tricycles. He had a “healthy appetite” and was gaining some weight. He had begun to say some words, and was being assessed to see if he would benefit from early intervention services for speech development. Despite the initial child protective services referral that he be considered for psychological evaluation, “[u]pon further consideration, [K.M.] will not be referred for a psychological evaluation. The emergency response worker noted K.M.’s lack of energy was likely due to the lack of nutrition and his respiratory problems at the time. Now that he is receiving excellent care, he is no longer lethargic and withdrawn.”
According to the Agency, a doctor found B.A. to be a healthy baby. She ate well, held her own bottle, sat up by herself and had started crawling, and smiled and responded when spoken to by others. She was “a happy and easy-going baby” who “is able to entertain herself with toys.”
In a late April 2008 addendum report, the Agency reported C.A. remained incarcerated and J.M. was at a residential treatment program, where the children visited her on two weekends. K.M. initially had trouble adjusting to J.M. and was quiet and withdrawn at first before gradually responding, and B.A. adjusted quickly. His foster parent said K.M. had difficulty returning to her care after the visits, but adjusted and began playing. K.M. “has often displayed difficulty adjusting to new environments and new people, ” but he was “able to adjust to new surroundings and people once he spends time with them.” A referral had been made for him to an early intervention program to assist his speech development. The Agency recommended the court order that the children reside with J.M. at the residential treatment program under supervision, J.M. complete certain service plan requirements before reunification, and supportive services be provided to C.A., not for reunification purposes, but to improve his parenting skills.
A combined hearing on jurisdiction and disposition was held in May 2008. The parents submitted and the court adopted modified versions of the amended petitions filed in April 2008, finding the children’s circumstances came within section 300, subdivisions (b) and (g). It ordered the children to live with J.M. at the residential treatment program under the Agency’s supervision while J.M. worked on her plan. The court did not order services for C.A., who was waiting for the results of a paternity test.
C.A.’s Paternity Regarding B.A.
On January 30, 2008, C.A. filed a form JV-505 Statement Regarding Paternity about B.A. in the action regarding K.M.’s petition, apparently by mistake. C.A. stated he believed he was B.A.’s father and was incarcerated but expected release in March 2008, and requested presumed father status. The court subsequently ordered that C.A. undergo a paternity test. In June 2008, a genetic test report was filed with the court stating the probability that C.A. was B.A.’s father as 99.87 percent. Another paternity test for C.A. was ordered in October 2008.
J.M. and the Children at the Residential Treatment Program
In an October 2008 status review report, the Agency indicated the children were living with J.M. at the residential treatment program, which reported that J.M. was doing well but needed to bond more with the children. J.M. had not participated in individual therapy required by her plan, and told the Agency she did not need it. K.M. was developmentally delayed in his speech and received speech therapy twice a week. B.A. was developmentally on target. Both children were happy and were cared for well. The Agency recommended against dismissal of the dependency.
The juvenile court continued the status review hearing several times and set mediation regarding J.M.’s refusal to engage in individual therapy. The record does not indicate the mediation occurred.
The First Supplemental Petition
In March 2009, the Agency filed a supplemental petition pursuant to section 387 seeking a more restrictive placement of the children because J.M.’s whereabouts were unknown. The Agency reported J.M. and the children were supposed to have moved into the home of an extended family member and caregiver on January 21, 2009. The caregiver said J.M. had left the children with her since that date. The social worker writing the report, Pernita Brown, reported the children “looked extremely happy and seemed to be garnering exceptional care” from the caregiver. The Agency requested they be placed with the caregiver, which the court ordered. The mother did not appear at the detention hearing and her absence was deemed willful.
In an April 2009 addendum report, Brown reported that J.M. blamed the caregiver for her absence, but said she had nowhere to go with the children and was staying with a friend in Walnut Creek. The caregiver felt J.M. “wanted to do her own thing and couldn’t take care of the children.”
Brown visited the children in early April 2009, and they “looked happy and were engaging. [K.M.] talked often asking for what he wanted and [B.A.] was active and playful.” The caregiver thought K.M. had behavioral problems “such as it is hard to put him to sleep, he needed special attention, in public he is insecure and because of his speech she needed to spend more time with him, ” and she “felt at times he goes into a depression.” She also thought he needed dental work and his asthma machine. The owner of the children’s day care center said K.M. recently was “cooperating more and following instructions, ” “whining less, ” and “listens more.” She had not noticed any signs of depression or sadness, he was mingling with other children, and was expressing himself more using his words.
B.A. was “going through the same eating pattern as [K.M.] did in the past.” She “will want to continue eating even though she is full;... throws tantrums when she does not get her way, ... knows her body parts, will speak a few words and [her] most pronounced word [is] ‘no.’ ” The day care center owner thought B.A. “had an eating disorder because she goes crazy for food throwing tantrums, eats constantly which makes her happy and eats fast without chewing.” She had worked with B.A. for a couple of weeks and “things” were getting “better.”
The Agency recommended the court order J.M. to complete a service plan before reunification was considered, and not provide reunification services to C.A. because he had previously failed reunification with two minors.
The court subsequently vacated its order placing the children with J.M., placed them with their then-current caregiver, and ordered reunification services for J.M.
The Second Supplemental Petition and Termination of Services
In August 2009, the Agency informed the court that the children had been removed from the caregiver’s home for a number of reasons, including because the caregiver had allowed the children to have unsupervised, unapproved overnight visits with J.M. The Agency filed a supplemental petition based on the information in its report and recommended removal of the children from the caregiver’s home.
At the subsequent detention hearing, J.M. again did not appear and her absence was again deemed willful. The court ordered the children placed in foster care.
Brown informed the court in an October 2009 status review report that the children were now placed with an experienced foster parent. J.M. had not participated in all aspects of her service plan, and had engaged in unapproved, unsupervised overnight weekend visits with the children from April to August 2009. Brown had attempted to meet with her several times between April and June 2009 without success, and had met with her once a month since then. J.M. had not attended regular therapy sessions, had not started a parent education program, and had visited the children only once, for an hour, over the last few months. C.A. remained incarcerated.
Brown reported K.M. “needs services for his speech and cognitive development.” He “is delayed with his speech and is receiving services from the Golden Gate Regional Center.” Since his removal from the previous caregiver’s home, Brown had “attempted to get [K.M.] stabilized before beginning services again.” K.M. “presents as a happy, active and well cared for young boy, however, his current caregiver reports that when [K.M.] gets upset he slaps himself in the face and scratches himself.” The caregiver also indicated K.M. was “afraid to take baths stating there are monkeys on his legs.” Brown had made a referral to the Child Trauma Project for services.
Brown reported B.A. was “articulate” and “able to use a lot of words.” She “appear[ed] to be developmentally on target, ” and “presents as a happy and active young girl. Her caregiver reports that she will cry for hours without stopping and that she also slaps her face and scratches herself when she does not get her way. The caregiver believes that the minor is imitating her brother. A referral to the Child Trauma Project has also been made for the minor.”
The Agency recommended termination of services and the setting of a hearing pursuant to section 366.26 to select and implement a permanent plan, stating that the children were adoptable.
The court subsequently sustained the supplemental petition. It terminated services, denied a petition filed by C.A. pursuant to section 388, and scheduled a section 366.26 hearing.
The Agency’s May 2010 Section 366.26 Report
In a May 2010 “366.26 WIC Report” (section 366.26 report), Brown indicated J.M. had last visited the children in December 2009, had visited only sporadically before then, and did not have an ongoing relationship with them. C.A. remained incarcerated.
Brown reported the caregiver’s told her that a pediatrician who examined K.M. in April 2010 “believes [he] has signs of autism and will make a referral for testing, ” as well as for blood work for possible anemia. K.M. was tested for special education services with the Pacifica Unified School District, but did not qualify for services, and was starting a Headstart program shortly. He “appear[ed] developmentally on target, ” and presented “as a happy, active and well cared for young boy.” He had “adjusted well to” his caregiver’s home, “and is now able to follow established routines.”
Brown reported B.A. also “appear[ed] developmentally on target, ” and a doctor had assessed her development as normal at a February 2009 exam. She presented “as a happy and active young girl” who had “adjusted to the daily routines of her placement, ” enjoyed having books read to her and looking at pictures, and was observed counting and playing with blocks.
Brown further reported the children had moved six times during the dependency, and “[t]he only thing that has been consistent in the minor’s life is each other. [¶] The undersigned observed that the minors were very anxious. They did not sleep well, were inconsolable at times and appeared unreasonably scared. [K.M.] had trouble at bath time. It appears to have taken approximately four months for the minors to have adjusted to the home and form positive attachments. [¶] The minors are close siblings.... They are attached to each other and enjoy being around one another. Maintaining both minors in the same placement is a priority and is certainly in their best interests.”
Brown and her supervisor, on behalf of the Agency, concluded, “The minors are adoptable because of their good physical and mental health; an adoptive home can be recruited.... The undersigned has been receiving telephone calls from maternal and paternal relatives expressing an interest in adopting the minors. The undersigned is in the process of assessing those relatives for placement and potential adoption.” They concluded, “Adoption is recommended at this time because the minors are adoptable and an adoptive home can be recruited.”
Termination of Parental Rights and Finding of Adoptability
The section 366.26 hearing took place in July 2010. J.M.’s counsel, but not J.M., was present, as were C.A. and his counsel. Brown was the only witness. Her May 2010 report was admitted into evidence, and she testified that her adoption recommendation remained the same.
When C.A.’s counsel attempted to cross-examine Brown, the Agency objected on the ground that C.A. had not achieved presumed father status. C.A.’s counsel sought “as a matter of due process” the right to cross-examine Brown. The court allowed cross-examination for the limited purpose of elevating C.A.’s status, and C.A.’s counsel declined to ask any questions.
J.M.’s counsel cross-examined Brown on several matters. Asked about her report of the pediatrician’s belief that K.M. had signs of autism, Brown said the belief was based on information from the caregiver and that the pediatrician was “not quite sure, but she suggested it should be ruled out.” Asked if “the best information” was that, according to the pediatrician, K.M. had signs of autism, Brown answered, “No. She doesn’t think he has signs of autism. She was just basing, just trying to rule it out based on what she learned from [the caregiver]. She said she couldn’t determine whether he had it or not.” Brown said she talked to the pediatrician, who “didn’t say she thought [K.M.] had signs of autism, but she would like to rule it out.” It had not yet been ruled out.
Regarding K.M.’s possible asthma, Brown said she knew he “did suffer from asthma in the past, but he hasn’t had any problems for awhile now.” It had not been confirmed that he had asthma, nor ruled out, and Brown “never heard anything or another mention of him having asthma” based on reports from doctors.
Regarding K.M.’s special education testing, Brown said he was tested with the Hayward Unified School District, and that the Pacifica School District said he did not have special education needs. Asked about the basis for the Hayward request, Brown said K.M. “played with himself for long periods of time. He had difficulty in areas of imitation, and matching and sorting. He had a mal delay in receptive skills.”
Brown also said one relative had come forward expressing an interest in adopting the children. The Agency was in the process of completing an assessment.
Brown further testified that when K.M. came home from school, B.A. was very happy to see him and greeted him with hugs. They played together, and B.A. imitated K.M.
The children’s counsel argued for a permanent plan of adoption. She contended K.M. had been asymptomatic regarding autism for at least a year and that the possibility of autism, while it should be further investigated, was insufficient to find him unadoptable. She noted K.M. was verbal and responded to others, and had been engaged in school since he was two years old.
J.M.’s counsel disagreed that the children were likely to be adopted because K.M. had medical issues that needed assessment, had asthma, and had behavioral issues that had resulted in two referrals for special education that were denied. He contended K.M. had “a lot of, potentially, ” medical, mental health, and behavioral needs, and argued that the matter should be continued for 180 days for the Agency to determine if it could find an appropriate adoptive parent.
C.A.’s counsel contended that in January 2008, C.A. had filed a form JV-505 statement of paternity but had been denied that status, and that a paternity test had established that C.A. was the biological father.
The Agency argued the court should terminate parental rights and order a permanent plan of adoption without delay. Counsel argued K.M. had been tested for special education services, which were determined to be not warranted. Also, there was no diagnosed medical, physical, or mental handicap that required an extension.
The juvenile court found clear and convincing evidence that the children would be adopted. It ordered termination of all parental rights, and set adoption as the permanent plan.
The Court’s Written Orders
The court issued written orders regarding each child in August 2010. The order regarding B.A terminated parental rights of “all unknown fathers.” The court subsequently issued an amended order referring to C.A. by name and terminating the parental rights of the “alleged father.”
C.A. filed a timely notice of appeal in B.A.’s case, and J.M. filed timely notices of appeal in both K.M.’s and B.A.’s cases. The Agency filed a motion to dismiss J.M.’s appeal, claiming it was untimely, which this court denied by order dated March 2, 2011.
During the pendency of this appeal, we granted requests by both C.A. and the Agency to augment the record. The Agency also filed a motion to consider additional evidence. We took this motion under submission by order dated February 17, 2011.
DISCUSSION
I. Substantial Evidence
C.A. and J.M. first argue there is not substantial evidence to support the court’s finding by clear and convincing evidence that B.A. and K.M. are likely to be adopted within a reasonable time. Before addressing their arguments, we decide the Agency’s motion to consider additional evidence because the Agency claims it moots the issue.
In his opening brief, C.A. argues that he has standing to bring his appellate claims, anticipating a challenge by the Agency. The Agency does not raise the issue, however. Therefore we do not address it further.
A. The Agency’s Motion to Consider Additional Evidence
The Agency requests, with minors’ support, that we consider its postjudgment addendum report to the juvenile court, filed on December 27, 2010, in which a social worker reported that a prospective adoptive family wanted to adopt K.M. and B.A., arguing that it moots appellants’ substantial evidence claim. Appellants argue the report should not be considered pursuant to In re Zeth S. (2003) 31 Cal.4th 396, 405 (Zeth S.). We agree with appellants.
Social Worker Jack Prendergast wrote in the addendum report that a prospective adoptive family had recently “stated that they unequivocally desire to have these children placed with them for adoption” based on the family’s review of the children’s profiles, photographs, and redacted medical and development reports, and information provided at a disclosure meeting with the Agency. The parents had “an approved adoptive home study and their home has been cleared for placement of the children in their home. They are a mature couple and have no illusions about the challenges involved in adopting two special needs children.” The family’s pre-placement visits with the children were expected to begin the week of January 10, 2011, followed by overnight visits, with placement in the home projected for the second week of February. Developmental and psychological assessments for both children were scheduled for the end of January.
An appellate court may consider postjudgment evidence under the present circumstances pursuant to Code of Civil Procedure section 909, which states in relevant part that we “may for the purpose of making the factual determinations or for any other purpose in the interests of justice, take additional evidence of or concerning facts occurring at any time prior to the decision of the appeal.... This section shall be liberally construed to the end among others that, where feasible, causes may be finally disposed of by a single appeal and without further proceedings in the trial court except where in the interests of justice a new trial is required on some or all of the issues.” (Code Civ. Proc., § 909.)
Our Supreme Court has instructed that this appellate authority “should be exercised sparingly, ” as “[i]t has long been the general rule and understanding that ‘an 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.’ ” (Zeth S., supra, 31 Cal.4th at p. 405.) “ ‘Absent exceptional circumstances, no such findings should be made.’” (Ibid.)
Accordingly, in Zeth S., supra, 31 Cal.4th 396, the Supreme Court concluded the appellate court should not have considered counsel’s unsworn statement, submitted to challenge the juvenile court’s ruling, that the parent was currently interacting with the child and a relative caretaker felt pressured to agree to adopt. (Id. at pp. 403-404, 413- 414.) The court found “[t]he facts of this case are tragic but unexceptional, ” (id. at p. 406) and consideration of the statement would contravene important purposes in the juvenile law, they being the expediting of proceedings and the promoting of the finality of the juvenile court’s orders and judgment. (Id. at p. 413.) It concluded, “consideration of postjudgment evidence of changed circumstances in an appeal of an order terminating parental rights, and the liberal use of such evidence to reverse juvenile court judgments and remand cases for new hearings, would violate both the generally applicable rules of appellate procedure, and the express provisions of section 366.26.” (Id. at p. 413.) It did not determine “whether any particular circumstances may give rise to an exception to the general rule that postjudgment evidence is inadmissible in a juvenile dependency appeal from an order terminating parental rights.” (Id. at pp. 413-414, fn. 11.)
The Agency relies heavily on two cases decided after Zeth S, In re Salvador M. (2005) 133 Cal.App.4th 1415 (Salvador M.) and In re B.D. (2008) 159 Cal.App.4th 1218, that considered postjudgment evidence of changed circumstances to affirm the termination of parental rights and adoptability findings. In Salvador M., two minors were placed with their maternal grandparents for two years before the juvenile court terminated parental rights and found the children were adoptable. (Salvador M., at pp. 1418-1419.) On appeal, the children’s mother argued the juvenile court erred because the children’s grandmother did not have an approved home study on file, and might not be allowed to adopt the children. (Id. at p. 1419.) The respondent social services agency moved to augment the record with a postjudgment addendum report indicating the grandmother’s adoption home study was completed and approved. (Id. at p. 1420.) The appellate court considered this evidence because it “removed any uncertainty” about the grandparents’ ability to adopt and rendered the mother’s appellate claim moot. (Id. at pp. 1421-1422.) The court noted that, unlike in Zeth S., it was considering an addendum report that would not have been irrelevant or excludable by the juvenile court, and that consideration of the report did not stand in the way of expediting proceedings and promoting the finality of the juvenile court’s order and judgment. (Salvador M., at pp. 1420-1421.)
In In re B.D., supra, 159 Cal.App.4th 1218, parental rights were terminated regarding five siblings, who were found likely to be adopted. (Id. at pp. 1226-1227.) The attorney for one sibling, B.D., asked the juvenile court to continue the section 366.26 hearing for 180 days pursuant to section 366.26, subdivision (c)(3) to see if the social services agency would be able to place him with his siblings in an adoptive home. (Id. at p. 1237.) B.D. argued initially on appeal that the juvenile court erred by refusing to continue the hearing. (In re B.D., pp. 1238-1239.) The appellate court agreed, but concluded the error was harmless because postjudgment addendum reports and juvenile court orders showed the agency had located a family that could meet the children’s special needs, the children’s placement in the adoptive home had been approved, and 10 other families eligible to adopt the children had been identified. (Id. at p. 1240, & fn. 8.) The court acknowledging that it was unusual to consider this evidence, did so in part because it saw “no reason to further delay the proceedings.” (Id. at p. 1241.) It concluded the children’s placement mooted the issue of adoptability and rendered any error harmless. (Id. at p. 1240.)
The Agency argues the rationale behind these two cases applies equally here. It contends its postjudgment addendum report would be relevant and admissible below, moots appellants’ substantial evidence arguments, and does not interfere with the expediting of dependency proceedings and the promoting of finality of the court’s orders and judgment.
The Agency’s argument is unpersuasive. It does not sufficiently take into account the Supreme Court’s caution in Zeth S. that we exercise our authority to make findings based on postjudgment evidence only in exceptional circumstances. (Zeth S., supra, 31 Cal.4th at p. 405.) It is not particularly unusual that families will express interest in adopting children during the pendency of appeals from section 366.26 proceedings in which the parties debate whether substantial evidence supports the juvenile court’s rulings. Furthermore, unlike the evidence discussed in the two cases relied on by the Agency, its addendum report does not moot appellants’ substantial evidence but, rather, goes to the weight of the evidence overall. To consider the Agency’s addendum report would be to risk opening the door to consideration of such material on a regular basis in direct contradiction of the Supreme Court’s caution.
It is true that “[u]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 re Sarah M. (1994) 22 Cal.App.4th 1642, 1649; see also In re Jennilee T. (1992) 3 Cal.App.4th 212, 224-225 [finding a likelihood of adoption where the social worker had identified a family and a relative interested in adopting a child with potential neurological problems that did not interfere with her acquisition of developmental skills.) However, an indication of interest by one family is not necessarily conclusive evidence of adoptability. (In re Asia L. (2003) 107 Cal.App.4th 498, 510, 511, 512 (Asia L.).)
Also, as appellants contend, the Agency’s addendum report is a social worker’s characterization of the interest expressed by a family of strangers to the children, after their review of only the children’s profiles, redacted medical and development reports, and unidentified other information. The report leaves unclear whether the prospective family was made aware of all the issues referred to in the record about the children’s development, such as Brown’s report of a pediatrician’s concern that K.M. should be tested for autism. As the moving party, it is the Agency’s burden to establish this was the case, but it does not. This was not an issue in either Salvador M. or In re B.D. Without knowing better what the family was informed about the children, we cannot conclude their interest, however unequivocally expressed, was conclusive evidence of adoptability.
Other factors weigh against consideration of the Agency’s addendum report. As appellants argue, it amounts to Prendergast’s recounting of third parties’ hearsay statements, considered without appellants having the opportunity to cross-examine him. Also, the Agency’s failure to submit anything further regarding the children’s visits with the family or their February 2011 developmental and psychological assessments leave us with arguably pertinent questions unanswered. The absence of cross-examination and these remaining questions demonstrate the wisdom of the Supreme Court’s caution.
We conclude the addendum report does not involve exceptional circumstances and does not contain conclusive evidence that moots the parties’ substantial evidence debate, unlike the evidence considered in the two cases cited by the Agency. Accordingly, we deny the Agency’s motion pursuant to Zeth S.
B. Standard of Review
“Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability.” (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) If the court determines “by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption. The fact that the child is not yet placed in a preadoptive home nor with a relative or foster family who is prepared to adopt the child, shall not constitute a basis for the court to conclude that it is not likely the child will be adopted.” (§ 366.26, subd. (c)(1); see Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249-250; In re Ronald V. (1993) 13 Cal.App.4th 1803, 1806). As one court has put it, “what is required is clear and convincing evidence of the likelihood that the children will be adopted within a reasonable time either by the prospective adoptive family or some other family.” (In re Scott M. (1993) 13 Cal.App.4th 839, 844.) “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.) “A child’s young age, good physical and emotional health, intellectual growth and ability to develop interpersonal relationships are all attributes indicating adoptability.” (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1562.)
We “ ‘review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find [that termination of parental rights is appropriate based on clear and convincing evidence].’ ” (In re Angelia P. (1981) 28 Cal.3d 908, 924.) “ ‘In juvenile cases... the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible.’ [Citation.] ‘ “If the evidence so viewed is sufficient as a matter of law, the judgment must be affirmed[.]’ ” ’ ” (In re Rocco M. (1991) 1 Cal.App.4th 814, 820; accord In re David H. (2008) 165 Cal.App.4th 1626, 1633.) We “ ‘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.’ ” (In re Josue G. (2003) 106 Cal.App.4th 725, 732; accord, In re Gregory A., supra, 126 Cal.App.4th at p. 1562.) Of course, “a deferential standard of review is not appropriate when the trial court misapplies the law.” (In re Matthew F. (2005) 132 Cal.App.4th 883, 886.)
“[W]e employ the substantial evidence test... bearing in mind the heightened burden of proof.” (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654 [commenting on the clear and convincing evidence standard applied at a dispositional hearing].) “ ‘Clear and convincing’ evidence requires a finding of high probability. The evidence must be so clear as to leave no substantial doubt” (Asia L., supra, 107 Cal.App.4th at p. 510) and “must be sufficiently strong to command the unhesitating assent of every reasonable mind.” (In re B.D., supra, 159 Cal.App.4th at p. 1232.) We also bear in mind that, “[a]lthough a finding of adoptability must be supported by clear and convincing evidence, it is nevertheless a low threshold: The court must merely determine that it is ‘likely’ that the child will be adopted within a reasonable time.” (In re K.B. (2009)173 Cal.App.4th 1275, 1292.) When a court rules that multiple siblings are adoptable, we evaluate the court’s findings regarding each child separately. (See, e.g., Asia L. supra, 107 Cal.App.4th at pp. 510-512 [discussing the characteristics of each of three siblings separately].)
C. Substantial Evidence of Adoptability
1. Substantial Evidence of B.A.’s Adoptability
The Agency and minors contend B.A.’s general characteristics, as well as the interest expressed by at least one relative in adopting the children, provide substantial evidence that she was likely to be adopted within a reasonable time. We agree.
B.A. was approximately three years old at the time of the section 366.26 hearing. Her personality and development were described very positively throughout the dependency. As a baby, she was described as being “adorable, ” smiling and enjoying being held, and as a “healthy, ” “happy and easy-going baby” who adjusted quickly when placed in her mother’s care. Later, she was described as looking “extremely happy, ” “active and playful, ” “articulate, ” “capable of using a lot of words, ” “developmentally on target, ” presenting “as a happy and active young girl, ” having been assessed as developing normally, “a happy and active young girl” who enjoyed having books read to her and playing with blocks, and having adjusted to this placement and formed positive attachments after four months.
In addition, Brown, on behalf of the Agency, opined in the May 2010 section 366.26 report that “[t]he minors are adoptable because of their good physical and mental health; an adoptive home can be recruited[.]” This is further evidence in support of the court’s finding. Appellants argue that Brown’s opinion was an insufficient basis for the court’s adoptability finding, relying on In re Brian P. (2002) 99 Cal.App.4th 616, 623, In re Kristin W. (1990) 222 Cal.App.3d 234, 253, and Asia L., at pp. 511-512.) As appellants also indicate, however, these cases only establish that such an opinion “alone is insufficient to support a finding of adoptability.” (Asia L., supra, 107 Cal.App.4th at p. 512, italics added.) Appellants do not cite, and we are not aware of any authority stating, that such an opinion is of no evidentiary weight; to the contrary, courts regularly consider such opinions as a part of a social service agency’s assessment, which is required to include “[a]n analysis of the likelihood that the child will be adopted if parental rights are terminated.” (§ 366.21, subd. (i)(1)(G).)
Furthermore, there was evidence that at least one relative was interested in adopting the children at the time of the section 366.26 hearing, and others who had previously expressed an interest. Such interest is further evidence of adoptability. (See In re Jennilee T, supra, 3 Cal.App.4th at pp. 224-225 [referring to the interest in adoption expressed by families yet to be investigated by the social services agency].) In her section 366.26 report, Brown stated she was in the process of assessing maternal and paternal relatives who had called her and expressed an interest in adopting the children. When she was asked at the section 366.26 hearing if any relatives were interested in adoption, she replied that one relative had come forward, indicated “they” were “paternal relatives, ” and said she was trying to complete an assessment.
Appellants argue Brown’s testimony that an unidentified relative was interested in adopting the children “did not constitute clear and convincing evidence that it was likely that the children would be adopted, citing as support Asia L., supra, 107 Cal.App.4th at page 512 [“the foster parents’ willingness to explore the option of adopting James and Asia is too vague to be considered evidence that some family... would be willing to adopt these children”] and In re Amelia S., supra, 229 Cal.App.3d at page 1065 (referring to foster parents “considering” adoption as being a “far cry” from the clear and convincing evidence neither). There is no indication that the juvenile court relied on Brown’s testimony about this interest alone for its adoptability finding, nor do we. However, Brown’s testimony indicated the relative’s interest was sufficient to prompt the Agency to begin an assessment, and was not, as was the case in Asia L. and In re Amelia S., that the relative was merely considering the option. Also, the children involved in Asia L. and In re Amelia S. were determined to have special needs (Asia L., at pp. 511-512) or “various developmental, emotional and physical problems, some of a serious nature” (In re Amelia S., at p. 1063). which was not the case here. Therefore, Brown’s statements about the interest in adoption expressed by family is a part of our conclusion that substantial evidence supports the juvenile court’s adoptability finding.
As appellants point out, the record does include observations of some behavioral issues regarding B.A. This includes Brown’s statements in her May 2010 section 366.26 report that she “observed that the minors were very anxious. They did not sleep well, were inconsolable at times and appeared unreasonably scared. [K.M.] had trouble at bath time.” Appellants contend that the “most reasonable inference” from Brown’s statements is that the issues were continuing. However, Brown made these statements immediately after referring to the entire dependency period, she used the past tense in her statements, and she followed them with the positive report that after four months, the children “have adjusted to the [caregiver’s] home and form[ed] positive attachments.” This, combined with the numerous positive reports regarding B.A. throughout the dependency and the disruption that could reasonably be inferred by the mere fact that the children were moved numerous times during the dependency, indicate the juvenile court could reasonably conclude that B.A.’s behavioral issues were transitory and/or minimal.
Brown also stated in a 2009 report that a caregiver said that B.A. had appeared to imitate her brother by crying for hours without stopping and slapped her face and scratched herself, leading to Brown to make a referral to the Child Trauma Project. There is no indication that Child Trauma Project services were necessary. There was also some indication from the owner of a day care center in 2009 that B.A., when she was about two, ate too much and threw tantrums when she did not get her way. Again, given the numerous positive reports about B.A. and the disruption that could reasonably be inferred by the mere fact that the children were moved numerous times, indicate the juvenile court could reasonable conclude that B.A.’s behavioral issues were transitory and/or minimal.
We reach our conclusions mindful that, while we review the record as a whole, we are to “ ‘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.’ ” (In re Josue G., supra, 106 Cal.App.4th at p. 732.) Furthermore, under our substantial evidence standard of review, “[i]t is not our function... to reweigh the evidence or express our independent judgment on the issues before the trial court.” (In re Jasman O. (1994) 8 Cal.4th 398, 423.) In the face of the numerous reports of B.A.’s happy personality, good health when under proper care, and satisfactory development, we would be reweighing the evidence to rely on these matters to reverse the juvenile court, which we will not do. (See In re Helen W. (2007) 150 Cal.App.4th 71, 79-80 [although the children suffered from conditions that required further investigation to determine their severity, the agency’s report “included details of the children’s appealing characteristics... that made adoption likely, ” along with the foster mother’s intent to adopt].)
In short, we find substantial evidence supports the trial court’s finding by clear and convincing evidence that B.A. was likely to be adopted within a reasonable time.
2. Substantial Evidence Regarding K.M.’s Adoptability
The Agency and minors also contend that K.M.’s general characteristics, as well as the interest expressed by at least one relative in adopting the children, provide the requisite substantial evidence that he is likely to be adopted within a reasonable period of time. We agree.
K.M. was a little more than four years old at the time of the section 366.26 hearing. Although the record indicates that K.M. had some developmental and physical issues, he also was described very positively throughout the dependency. A little more than two months after his initial January 2008 detention, K.M. was described as “blossoming” after being initially shy and crying throughout the day. He was socializing and playing with other children and participating in numerous play activities, and had a healthy appetite. Although there were initial concerns that he suffered from depression, he was not referred for a psychological evaluation because his lethargy and withdrawn personality had disappeared as a result of excellent care. In October 2008, he was reported to be happy. In March 2009, he was reported to be “extremely happy, ” and his day care provider indicated he was cooperating and listening more, whining less, showed no signs of depression or sadness, was mingling with other children, and expressed himself more with words. In October 2009, Brown stated he presented as a “happy, active... young boy.” In May 2010, Brown reported that K.M. “appear[ed] developmentally on target, ” and presented “as a happy, active and well cared for young boy.” He had “adjusted well” to his caregiver’s home, “and is now able to follow established routines.” As with B.A., Brown reported that after four months in his last placement, K.M. had adjusted to the home and formed positive attachments, and that his development was on target.
Furthermore, as we have already discussed, there was evidence that at least one relative was interested in adopting both children at the time of the section 366.26 hearing, and that others had previously expressed an interest. Such interest is further evidence of adoptability. (See In re Jennilee T., supra, 3 Cal.App.4th at pp. 224-225.)
As appellants emphasize, the record contains indications that K.M. had some physical, developmental, and emotional issues during the dependency. However, contrary to appellants’ characterizations, the record indicates these issues were transitory, resolved, minimal, and/or not sufficient to render him difficult to adopt.
In 2008 and 2009, reports indicated that he had asthma and respiratory issues. However, Brown testified at the section 366.26 hearing in 2010 that, while any asthma had not been confirmed nor ruled out, she understood K.M. “did suffer from asthma in the past, but he hasn’t had any problems for awhile now, ” and that she “never heard anything or another mention of him having asthma” based on reports from doctors. Brown also indicated in her section 366.26 report that the doctor wanted to test K.M. for “possible anemia, ” but there is no indication this was a significant health issue.
The reports about K.M. during the dependency also referred to developmental issues. A 2008 referral was made to assess possible speech delays, he was referred to an early intervention program to assist his speech development, and he was receiving speech therapy twice a week by October 2008. He was receiving services for his speech and cognitive development in October 2009. Brown testified at the 366.26 hearing that K.M. played with himself for long periods of time, and had difficulty in areas of imitation, and matching and sorting. She also stated that he had a “mal delay in receptive skills” without further explanation. Brown reported prior to the section 366.26 hearing that K.M.’s caregiver told her that in the course of an April 2010 examination, a pediatrician stated the belief that K.M. had signs of autism and should be tested for it.
On the other hand, in May 2010, Brown reported that K.M. was tested, and found not to qualify for, special education services, and she stated that he appeared to be developmentally on target. At the section 366.26 hearing, Brown repeated that he was found not to have special education needs. Thus, the juvenile court could reasonable infer that, whatever Brown intended by her reference to “mal delay in receptive skills, ” it did not interfere with his learning significantly, and there is no indication it had any impact on his behavior or relationships. (See In re Gregory A., supra, 126 Cal.App.4th at p. 1563 [child’s ADHD was not a significant obstacle to adoption because it was addressed through therapy and medication, “and had no effect on his personal relationships or his behavior outside school”].) Therefore, the record as a whole is such that the juvenile court could reasonably conclude that K.M.’s development issues were not significant.
Appellants also argue that the mere expression of “concerns about autism would certainly be likely to cause hesitation on the part of any person who might otherwise be considering adoption.” C.A.’s counsel goes so far as to offer a medical analysis, based on an excerpt from an article in a law review describing the symptoms of autism, concluding that the facts are “highly suggestive” of autism. We reject counsel’s medical analysis as speculation and disagree that the mere expression of concerns about autism under these circumstances renders K.M. difficult to adopt. Indeed, Brown’s hearing testimony about the pediatrician’s autism comment clarified and minimized the issue. Brown testified that the pediatrician based the comment on information from the caregiver, rather than any medical examination, “didn’t think [K.M.] has signs of autism, ” and “couldn’t determine whether he had it or not. Brown said she spoke to the pediatrician, who “didn’t say she thought [K.M.] had signs of autism, but she would like to rule it out, ” and that no testing had occurred. It also could be reasonably inferred from the pediatrician’s comment that she would “like to rule it out” that the pediatrician doubted that K.M. was autistic. Appellants contend it is “common knowledge” that this phrase is used by doctors “when signs of a problem indicate that further testing should be done, ” and cite to a webpage outside the record and without formally requesting judicial notice in support of this contention. Appellants fail to establish the basis for their request that we review this webpage, or the reliability of the information therein, and we will not consider it further. (Ross v. Creel Printing & Publishing Co. (2002) 100 Cal.App.4th 736, 744 [“[t]he burden is on the party seeking judicial notice to provide sufficient information to allow the court to take judicial notice”].)
Based on Brown’s testimony, that K.M. was found not to qualify for special educational services, the positive reports about K.M.’s behavior and his learning, play, social and bonding abilities, and that no one else had raised the issue of autism, the juvenile court could reasonably conclude the pediatrician’s comment was not so significant as to foreclose a finding of general adoptability. Moreover, “[t]he possibility [the minor] may have future problems does not preclude a finding he is likely to be adopted.” (See In re R.C. (2008) 169 Cal.App.4th 486, 492 [minor’s positive characteristics make him adoptable despite his in utero exposure to heroin, slight speech delays, and the absence of an identified father].)
Also, the record indicates that K.M. at times had emotional issues. When first detained, there was a concern that he needed a referral to a psychological evaluation because he was lethargic and withdrawn. In April 2009, Brown reported that a caregiver thought K.M. had a hard time going to sleep, needed special attention, and was insecure because of his speech, and she felt that at times he would go into a depression. In October 2009, Brown made a referral to the Child Trauma Project for services because the caregiver told her K.M. slapped himself in the face and scratched himself when he was upset, and was afraid to take baths because, he said, there were monkeys on his legs, which appellants describe as “either a psychotic event or some other form of traumatic event[.]” Brown reported in May 2010, apparently discussing the dependency period, that she observed that the minors were very anxious and had other issues, as we have discussed.
On the other hand, there are many positive reports in the record about K.M.’s emotional state throughout the dependency that indicated he improved emotionally, bonded with caregivers, and became a more sociable and happy child when he had proper care and an opportunity to adjust, which was understandably more difficult at times, given that the children were moved repeatedly during the dependency. The referral for psychological evaluation was not made because he improved dramatically after receiving proper nutrition and care, and there is no indication that Child Trauma Project services were necessary. K.M.’s reference to monkeys on his legs was recounted after the fact by his caregiver when he was about three years old, and is the only such statement reported by him anywhere in the record; under these circumstances, appellants’ contention that it is evidence of a psychotic event is hyperbolic, to say the least. The juvenile court could reasonably conclude it did not merit significant consideration.
Appellants emphasize Brown’s statements in her May 2010 report that the children were anxious and had other problems. Again, these statements were phrased in the past tense, and were followed by Brown’s positive report that “[i]t appears to have taken approximately four months for the minors to have adjusted to the [caregiver’s] home and form positive attachments.” This, combined with the numerous positive reports regarding K.M.’s emotional state, lead us to conclude that the trial court had good reason to conclude that any emotional issues were relatively transitory or minimal.
As with B.A., we conclude that, in the face of the consistent reports of K.M.’s happy personality, good health when under proper care, and satisfactory development, we would be reweighing the evidence to rely on the matters asserted by appellants to reverse the juvenile court. As appellants acknowledge, children with a variety of medical, emotional and behavioral issues can properly be found to be generally adoptable. (See, e.g., In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154 [finding no indication the behavioral problems identified “were so severe as to make the court’s finding of adoptability unsupported”]; In re Helen W., supra, 150 Cal.App.4th at pp. 79-80 [noting that, along with a foster mother’s intention to adopt, the children’s positive characteristics were evidence of adoptability, even though they suffered from certain conditions still to be examined].) Under our substantial evidence standard of review, “[i]t is not our function... to reweigh the evidence or express our independent judgment on the issues before the trial court.” (In re Jasman O., supra, 8 Cal.4th at p. 423.) Therefore, we do not do so. Also, we are again mindful that, while we review the record as a whole, we are to “ ‘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.’ ” (In re Josue G., supra, 106 Cal.App.4th at p. 732.)
In short, based on our standard of review and our review of the record as a whole, we conclude substantial evidence supports the trial court’s ruling that there is clear and convincing evidence that K.M. is likely to be adopted within a reasonable time.
3. Appellants’ Other Arguments
a. The Interest of Prospective Adoptive Parents or Other Families
Appellants also argue that “section 366.26, subdivision (c)(e) indicates that a child who has ‘no identified or available prospective adoptive parent’ is ‘difficult to place.’ ” Appellants’ citation is in error; they appear to be citing to section 366.26, subdivision (c)(3), which makes no such declaration, merely referring to circumstances when the court finds “that the child has a probability for adoption but is difficult to place for adoption and there is no identified or available prospective adoptive parent....” (§366.26, subd. (c)(3), italics added.) As we have indicated, the Agency did not need to prove that there is a prospective adoptive parent “ ‘ waiting in the wings’ ” in order to establish that a child is generally adoptable based on his or her age, physical condition, and emotional state. (In re Sarah M., supra, 22 Cal.App.4th at p. 1649.) Appellants’ argument is without merit.
Second, appellants argue error because, in the absence of an available prospective adoptive parent willing to adopt the children, there was not evidence of other approved families willing to adopt children with their characteristics, relying on cases such as Asia L., supra, 107 Cal.App.4th 498, In re Jerome D. (2000) 84 Cal.App.4th 1200, and In re Jullian B. (2000) 82 Cal.App.4th 1337. However, Asia L. and In re Jerome D. do not require the existence of such interest as a matter of law, but found that adoptability was not established in the absence of such an interest given the circumstances involved, and In re Julian B. involved questions under the Indian Child Welfare Act that are far afield from the circumstances of the present case.
For example, in Asia L., the social service agency found that two of the three children involved, James and Asia, required special placement because of significant emotional and psychological problems. (Asia L, supra, 107 Cal.App.4th at p. 511.) James’s first-grade teacher said he needed “ ‘constant supervision’ ” and was “ ‘often out of control in the classroom’ ” (id. at p. 510), and his therapist said he was “ ‘the most hyperactive child she has ever seen’ ” and in need of medication. (Id. at p. 511.) Asia, a year and a half younger than James (id. at p. 503), was found to be healthy and developmentally on target, and “ ‘super bright, ’ ” (id. at p. 511), but was reported to have problems in school sitting still and with stealing, and her therapist reported that she “ ‘is hyperactive, steals, lies, hoards material items not food, aggravates other children, and pulls her braids out of her head when upset.’ ” (Ibid.) The appellate court relied heavily on the agency’s conclusion that both children needed special placement in finding there was not clear and convincing evidence of the likelihood of their adoptability in the absence of evidence of approved families interested in adopting them. (Id. at p. 512.) The third child, Joel, approximately two and a half at the time of the section 366.26 hearing (Asia L., at p. 512), was generally healthy and happy, and described as “cute” and “smart, ” but also was hyperactive, tested positive for drug exposure at birth, had asthma, and had a temper and angered when he did not get his way. (Id. at p. 512.) Although current foster parents expressed an interest in having Joel placed in their care, and were said to be “[willing] to explore adoption of the children” (id. at pp. 505, 512), this was too vague and speculative to support a finding of adoptability. (Id. at p. 512.) The court reversed the judgment regarding Joel because there was no evidence of approved families interested in adopting him either. (Ibid.)
Appellants claim that B.A. and K.M. were difficult to place in part because of the behavioral issues referred to in reports about them. As we have already discussed, the evidence supporting this claim was weak, particularly in the face of the substantial evidence of the children’s good emotional health. There was no evidence that B.A. or K.M. had significant emotional, physical, psychological, or developmental problems at the time of the section 366.26 hearing(unlike Joel in Asia L.) or needed specialized placement (unlike James and Asia in Asia L.) Also, at least one relative expressed an interest in adopting K.M. and B.A.. Therefore, we conclude that Asia L. does not control here.
b. Bonding Issues
Appellants also argue the evidence “suggests” that the children had “bonding difficulties, ” making it difficult for them to be adopted. They contend that Brown’s May 2010 section 366.26 report reference to the children having formed “positive attachments” meant with each other and not with the caregiver, suggesting “they had bonding issues with respect to adults.” However, Brown stated in full that “[i]t appears to have taken approximately four months for the minors to have adjusted to the home and form positive attachments.” It is reasonable to infer from this statement that Brown was referring to positive attachments with their placement, including their caregiver. Appellants’ argument is not a basis for reversal.
c. The Sibling Group
Appellants further contend that the children would be difficult to place because they constituted a sibling group that needed to remain intact. The Agency argues waiver, and we agree.
As the Agency argues, appellants in effect argue the sibling interference exception contained in section 366.26, subdivision (c)(1)(B)(v), which appellants waived by failing to raise first below. (See In re Rachel M. (2003) 113 Cal.App.4th 1289, 1295 [failure to object below waived appellate claim based on a statutory exception to adoption, since the juvenile court does not have a sua sponte duty to determine if it applied].) Appellants point out that the Agency acknowledged the importance of placing the children in the same placement and argue that, therefore, there was no need to raise the exception. We disagree, as appellants do not establish that the Agency referred or stipulated to the exception. Therefore, they have waived their claim.
Also, even if we were to consider the issue, nothing in the record indicates that either child would be difficult to place for adoption by themselves, regardless of the evidence that the children were well-bonded. As we have discussed, there was evidence that each child bonded with caregivers. Therefore, the argument is unpersuasive.
d. Special Needs
Next, appellants argue that the children qualify in effect as “special needs” children based on the criteria discussed in Family Code section 8545, subdivision (b)(1). Appellants acknowledge Family Code section 8545 is not controlling here. Nonetheless, they argue “it should have been readily apparent to the juvenile court that once it terminated parental rights, these children would immediately become ‘special needs’ children under Family Code section 8545. As a result it had been obligated to consider the factors [in section 8545].)” We disagree.
Family Code section 8545’s terms make plain that it is not relevant to the questions of adoptability here. It provides in relevant part that a “special needs” child includes a child who should not be returned to the home of his parents because of a court order terminating parental rights, and has at least one of the following characteristics that is a barrier to his or her adoption: “[a]doptive placement without financial assistance is unlikely because of membership in a sibling group that should remain intact, or by virtue of race, ethnic, color, language, age of three years or older.... (Fam. Code, § 8545, subds. (a), (b)(1).) Thus, it does not amount to a statutory definition of an unadoptable child. It does not state that adoptive placement is unlikely because of certain factors, but rather that “[a]doptive placement without financial assistance is unlikely because” of one of those factors. (Fam. Code, § 8545, subd. (b)(1), italics added.) Nothing indicates the Legislature intended this provision to relate to a child’s adoptability in section 366.26 proceedings. We conclude it does not.
Furthermore, none of the characteristics identified in the provision were raised in the proceedings below as barriers to the children’s adoption, there was no evidence that they were barriers, and the juvenile court did not find that they constituted barriers. Therefore, appellants’ argument is unpersuasive.
e. The Sufficiency of the Agency’s Assessment Report
Finally, J.M. argues, joined by C.A., that the Agency’s section 366.26 report did not meet the Agency’s obligation to assess the children’s medical, developmental, scholastic, mental and emotional status pursuant to section 366.21, subdivision (i)(1)(c), which requires the agency to prepare an assessment in advance of a section 366.26 hearing that evaluates these matters. Also, appellants argue that the juvenile court could not accurately determine whether the children were adoptable based on the purportedly limited information about their physical, behavioral, and developmental problems provided in the Agency’s section 366.26 report. Appellants do not establish that the report was insufficient and, as we have already indicated, substantial evidence supports the juvenile court’s findings regarding both children.
The argument in this section was initially made by J.M., but C.A. filed a joinder, which although entitled “Appellant Father’s Joinder with Appellant Mother’s Reply to the Minor’s Brief, ” refers to the right to “join in any brief in the same case” and states that C.A. “hereby joins in the briefs filed by co-appellant mother.” We take this to be a joinder by C.A. in all the briefs filed by J.M. in this appeal. C.A. also argued in his reply brief that the evidence in the report was not sufficient to support the court’s finding.
The Agency, while disputing appellants’ contentions about the sufficiency of the assessment, first argues that J.M. (who raised the issue in her opening brief) waived any appellate claim about the insufficiency of the Agency’s section 366.26 report by failing to object to it before the juvenile court. Objections to the sufficiency of such a report are waived if not first raised before the juvenile court. (In re Brian P., supra, 99 Cal.App.4th at p. 623.) J.M. contends she objected sufficiently below when her counsel stated, “I would object to the adoptability assessment. I believe that [K.M.] has medical issues that require further assessment.... He has asthma; he has behavioral issues that have warranted two referrals, both in Hayward and Pacifica for special education. I understand that right now that has been denied. But given the fact he has a lot of, potentially, a medical/mental health and behavioral needs, I would argue that the adoptability assessment is inappropriate.” We conclude this objection is sufficient to preserve the appellate claim.
Nonetheless, appellants do not establish that the Agency’s assessment of the children was insufficient or, as appellants also argue, that the Agency did not establish that the children were adoptable regardless of the sufficiency of the report. According to appellants, “the lack of specific, updated information about the minor’s previously reported problems undermined the adoptability finding generally by making it impossible for the court to accurately evaluate how the minors’ historic problems would affect their chances of being adopted.” Appellants base this argument on In re Valerie W. (2008) 162 Cal.App.4th 1 (Valerie W.) There, the social service agency indicated in its section 366.26 report that one of the children involved, three-year-old Gregory was small for his age, suffered from asthma and speech delays, had had an unexplained seizure the year before, had fallen below pediatric growth charts, had gastrointestinal problems, and had anemia. (Valerie W., at pp. 5-6.) The agency stated in addendum reports that the child had undergone several tests to attempt to identify the causes of his problems, and was scheduled to undergo more, but did not provide information about the results or status of the tests. (Ibid.)
The appellate court indicated that these included tests for “a serious genetic or neurological disorder.” (Valerie W., supra, 162 Cal.App.4th at p. 14.) It found that the section 366.26 assessment report contained significant deficiencies under the circumstances, and did not meet the requirements stated in section 366.21. (Valerie W., at pp. 13-14) Furthermore, “the incomplete assessment of Gregory’s condition undermine[d] the court’s determination that Gregory is adoptable.” (Id. at p. 15.) Under the circumstances, the juvenile court “was foreclosed from assessing whether each prospective adoptive parent had ‘the capability to meet [Gregory’s] needs, and the understanding of the legal and financial rights and responsibilities of adoption.’ ” (Ibid.)
Appellants’ argument is unpersuasive in light of the fact that the Agency’s report does contain a discussion of each child’s medical, educational, developmental, mental and emotional status, albeit in somewhat sparse terms. Brown reported that B.A. had been medically examined in February 2010 and K.M. in April 2010, and referred to a concern about autism and possible anemia regarding K.M. Appellants criticize Brown’s report for failing to state that the children were found by the doctors to be healthy. However, Brown stated elsewhere in her report that the children were adoptable because of their “good physical and mental health, ” from which it reasonably can be inferred that she received positive medical assessments from the children’s doctors. Also, when Brown was asked at the hearing about past reports of K.M.’s asthma, she stated that she had not heard about the issue from doctors for some time, indicating the pediatrician did not raise any concerns about it in her recent examination.
Brown also indicated that both children appeared developmentally on target, that K.M. had been found not qualified for special educational services, and that the children presented as happy and active children. Appellants contend Brown should have reported further on the present status of behavioral and emotional issues that had been raised in previous reports. Again, the section 366.26 report does so, albeit in somewhat sparse terms. Brown refers to her observations regarding the children’s anxiousness and other problems, but indicates the children have bonded with their new placement and formed positive attachments there. Regarding K.M.’s developmental issues, she reports that he had been tested, and found not to qualify for, special educational services.
Appellants’ argument amounts to the contention that the report does not include information about “the minors’ previously-reported problems, ” making it purportedly impossible for the court to “accurately evaluate how the minors’ historic problems would affect their chances of being adopted.” (Italics added.) As the Agency points out, and as we have already discussed, the record establishes that these “historic problems” could reasonably be found to be transitory, resolved, and/or minimal, and the issues existing at the time of the section 366.26 hearing about autism and anemia regarding K.M., are not sufficient to be a basis for reversal. This is in sharp contrast to the serious, unresolved issues discussed in Valerie W., supra, 162 Cal.App.4th 1, and the failure of the assessment report to consider them. Accordingly, we find the Agency’s assessment report, and the evidence regarding the children’s status at the time of the hearing, was sufficient to support the court’s findings.
4. C.A.’s Arguments in the Event of Remand
Finally, C.A. argues that, should we reverse the court’s order regarding B.A. for lack of substantial evidence and remand her case to the juvenile court, we should order the juvenile court to enter a judgment of parentage stating that C.A. is B.A.’s biological father and exercise its discretion to determine whether to provide him with supportive or discretionary reunification services. C.A. bases his request on his claim that his counsel failed to follow through on C.A.’s request for a judgment that he is B.A.’s biological and presumed parent, and to request that the court order supportive or discretionary reunification services. C.A. acknowledges these arguments are not a basis for reversal, however. Accordingly, we do not address them further because of our affirmance of the juvenile court’s order.
II. Determination of C.A.’s Parentage
C.A. claims the juvenile court erred by not ruling on his request for a judgment of parentage, which also requires reversal. The Agency and minors disagree on a number of grounds. We conclude that the juvenile court did not err under the circumstances, and, assuming error, that it was harmless.
C.A. filed a form JV-505 Statement of Parentage on January 30, 2008, a week after the children were first detained. He requested the court rule regarding his parentage, including that he was B.A.’s presumed parent. In the form, C.A. did not indicate he was married to B.A.’s mother, indicated he was incarcerated at the time of B.A.’s birth and remained so, indicated he did not sign her birth certificate and was not able to participate in any activities with B.A., and did not indicate that he gave B.A. any money or things.
California Rules of Court, rule 5.635(h) provides that, if a person requests a judgment of parentage on form JV-505, “the court must determine” whether that person “is the biological parent of the child” and “[w]hether that person is the presumed parent of the child, if that finding is requested.” (Cal. Rules of Ct., rule 5.635(h)(1) & (2), italics added.) However, as the Agency notes, C.A. filed his statement in case No. JD08-3016, which was the case number for K.M., not B.A. None of the parties indicate that this error was pointed out to the juvenile court, nor that C.A. submitted a JV-505 form in the right case. We are not aware of any obligation of the juvenile court to rule on his request under these circumstances, and appellant does not address the issue. Although the Agency and minors do not argue that this apparent filing error was consequential, we conclude C.A. has not met his burden of affirmatively showing that the trial court erred in light of it. (Lennane v. Franchise Tax Bd. (1996) 51 Cal.App.4th 1180, 1189 [noting that appellants have the burden of affirmatively showing error].)
Furthermore, assuming for the sake of argument that the juvenile court did err, we review the error to determine whether it was prejudicial. (See In re Paul H. (2003) 111 Cal.App.4th 753, 762 [reviewing the court’s failure to serve appellant with a JV-505 form for prejudicial error].) Appellant argues the juvenile court’s failure to rule on his request, combined with the court’s order terminating parental rights of all “unknown fathers” in its written order following the section 366.26 hearing, gave the Agency “the potentially persuasive argument” in this appeal and in ongoing proceedings before the juvenile court, should we remand B.A.’s case, that C.A. has no standing because his parental rights were not terminated. This argument has no merit because, as the Agency points out, the juvenile court subsequently corrected its clerical error by an amended order filed on December 3, 2010, which terminated C.A.’s parental rights as an alleged parent. Also, given our affirmance of the trial court’s order, we have no need to discuss any possible prejudice to C.A.’s rights upon reversal and remand. Therefore, any error was harmless.
III. C.A.’s Right to Cross-Examination of Brown
C.A. also argues that the juvenile court committed reversible error when it denied his counsel the opportunity to cross-examine Brown regarding the children’s adoptability because it violated his constitutional right to due process. The Agency and minors argue C.A.’s rights were limited and, therefore, the court’s limiting of his right to question Brown was proper. The Agency and minors are correct.
At the section 366.26 hearing, the Agency objected to C.A.’s counsel’s cross-examination of Brown on the ground that C.A. was only “a biological father” who had “not achieved presumed status” and, therefore, did not have the “right to question the witness.” C.A.’s counsel objected that he “should be able to question and cross-examine the witness as a matter of due process” because his parental rights were at stake. The court limited his cross-examination to questions regarding C.A.’s efforts to elevate his status to that of a presumed father, and C.A.’s counsel declined to ask any questions.
C.A. did not attain biological or presumed father status. Therefore, he did not have any right to cross-examine Brown as he argues in this appeal. “ ‘The extent to which a father may participate in dependency proceedings and his rights in those proceedings are dependent on his paternal status.’ ” (In re Christopher M. (2003) 113 Cal.App.4th 155, 159 [determining that an alleged father’s due process rights were not violated when the trial court allowed him to attend, but not contest, a section 366.26 hearing].) An alleged father “ ‘does not have a current interest in a child because his paternity has not yet been established.’ ” (In re Christopher M., at p. 159.)
C.A. does not challenge the validity of this case law. Instead, he argues that, because the Agency objected to his counsel’s cross-examination of Brown based on the argument that he was a biological father, it cannot argue on appeal that he had no right to cross-examination as an alleged father. (See, e.g., In re Aaron B. (1996) 46 Cal.App.4th 843, 846 [“ ‘[a] party is precluded from urging on appeal any point not raised in the trial court’ ”].)
We need not determine whether C.A. is correct in this proposition because, as the Agency and minors point out, “a biological father’s rights are limited to establishing his right to ‘presumed’ father status.” (In re Ninfa S. (1998) 62 Cal.App.4th 808, 811.) In In re Ninfa S., a father argued that, because the juvenile court denied him a continuance of a section 366.26 hearing so that he could try to establish his biological paternity via a paternity test, his denied standing to contest the termination of parental rights was a violation of his due process rights. (In re Ninfa S., at pp. 811-812.) The appellate court rejected the argument because, even if he had attained “biological” father status, it “was not germane to any issue decided at the.26 hearing and would not have conferred on [him] any additional rights to notice of or opportunity for a hearing.” (Id. at p. 812.) Therefore, the court did not deprive him of any due process right. (Ibid.)
C.A. does not address In re Ninfa S. We conclude it is directly applicable here. Presuming C.A. has the right to argue in this appeal that he must be considered the “biological” father for the purposes of this claim, he had no further right to cross-examination than that granted by the juvenile court because he had no additional right to a hearing. (In re Ninfa S., supra, 62 Cal.App.4th at pp. 811-812.) His due process claim is without merit.
Finally, C.A. argues that if we decide sua sponte to dismiss his appeal because of our conclusion that the juvenile court did not terminate his parental rights, we should reverse the termination of J.M.’s parental rights and remand the matter for a new hearing because he was a known biological father. He also asks that, should we remand this matter, we order that all further proceedings be heard before a trial judge other than those who heard this case. Given our conclusions herein, we do not need to address these arguments.
DISPOSITION
All of the juvenile court orders appealed from are affirmed.
We concur: Haerle, Acting P.J., Richman, J.