Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. CK73294. Donna Levin, Referee.
Jamie A. Moran, under appointment by the Court of Appeal, for Appellant D. B.
Andre F. F. Toscano, under appointment by the Court of Appeal, for Appellant C. D.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and William D. Thetford, Principal Deputy County Counsel, for Respondent.
CHANEY, J.
D.B., now age four, has lived with her paternal grandparents continuously since her mother, C.D. (Mother), was arrested for drug possession when D.B. was three months old. The Los Angeles County Department of Children and Family Services (DCFS or the department) offered Mother and D.B.’s father (Father), family maintenance and reunification services for three years unsuccessfully. Pursuant to Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(i), the juvenile court terminated parental rights in favor of adoption by the paternal grandparents. Father contends the court lacked evidence to terminate his parental rights because the prospective adoptive parents were not adequately informed about the possibility of legal guardianship rather than adoption. Mother joins in the contention. We affirm.
Unspecified section references will be to the Welfare and Institutions Code.
BACKGROUND
DCFS received a referral regarding three-month-old D.B. on June 8, 2007, when Mother was arrested for drug possession. Father was incarcerated at the time for possession for sale of a controlled substance. He would not be released until June 10, 2009. Mother agreed to place D.B. with Father’s parents, with whom the child had lived off and on since she was three days old.
On June 26, 2007, Mother pleaded no contest to charges she violated Health and Safety Code section 11350, subdivision (a), and Penal Code section 148, subdivision (a)(1). She was sentenced to serve 180 days in county jail and spend three years on probation. DCFS began providing voluntary family maintenance services to Mother when she was released in August 2007, Mother agreeing to enroll in substance abuse and random drug testing programs and take parenting classes.
Mother’s probation was revoked on November 5, 2007 and she was incarcerated from December 2007 to January 2008. Family preservation services began March 10, 2008. In March and April 2008 she missed two drug tests and once tested positive for marijuana and methylenedioxymethamphetamine (ecstasy). She admitted using the drugs. On April 8, 2008, DCFS terminated voluntary family preservation services due to Mother’s noncompliance and began providing voluntary family reunification services.
Mother did not comply with the voluntary reunification plan: She missed drug tests, tested positive once, failed to enroll in parenting classes, failed to attend substance abuse classes, and failed to visit D.B. on a consistent basis. In a June 13, 2008 report, DCFS recommended that D.B. be declared to be a child described by section 300 and removed from Mother’s custody. The department reported that D.B.’s paternal grandmother stated, “‘We want to keep D[.B.] and if the department feels parents are not capable of getting her back we would like to adopt D[.B.]’”
On June 13, 2008, the juvenile court ordered that D.B. be detained with her paternal grandparents and that family reunification services be provided to Mother and Father.
On July 7, 2008, the paternal grandparents told social workers they were willing to provide a permanent home to D.B.
On July 24, 2008, Mother pleaded guilty to a violation of Health and Safety Code section 11352, subdivision (a), sale or transportation of a controlled substance, and was sentenced to three years in prison.
On November 14, 2008, the juvenile court declared D.B. to be a dependent under section 300, subdivision (b), and ordered DCFS (over its objection) to continue to provide family reunification services to Mother and Father while they were incarcerated. The court ordered Mother and Father to complete drug rehabilitation and testing programs, an “after care” drug rehabilitation program, and parenting and individual counseling programs.
According to a permanent planning adoption assessment conducted by DCFS in June 2009, D.B.’s paternal grandmother “did not hesitate to say that she would be willing to adopt” D.B. in the event reunification with Father failed. She said she and the paternal grandfather had been caring for the child since birth and had devoted their lives to her and wanted to ensure she had a safe, secure home that meets her developmental needs. The paternal grandmother was provided information about legal guardianship but chose adoption as the permanent plan in the event D.B. did not reunify with Mother and Father. The paternal grandparents’ adoption home study was approved on October 20, 2009.
On November 10, 2009, DCFS reported that D.B.’s paternal grandparents were “committed to the plan of adoption when parental rights are terminated....” DCFS reported, “It is evident that the toddler is bonded with the caregivers and has developed a healthy attachment. D[.B.] will freely hug the applicants or bring different toys and ask for them to play with her. The prospective adoptive parents are very engaging with D[.B.] and always do what is recommended by San Gabriel Valley Regional Center. For example, the applicants were told to purchase shoe laces and beads. D[.B.] is working on her fine motor skills by placing the bead through the shoe laces. (Sic.) The prospective adoptive parents have also re-arranged their furniture to make different activity stations, which was again recommended by Regional Center. This will assist D[.B.] in staying focused on the different activities and not feel overly stimulated. The prospective adoptive parents continue to go above and beyond to ensure D[.B.] reaches all her developmental milestones.” In contrast, DCFS reported, “Father demonstrate[d] lack of patien[ce] to cope with his child’s limitations due to her developmental[] delays” and on one occasion “refused to cooperate with the Regional Center Services Worker.”
By February 2010, Mother was on parole and resided in a sober living program. Father was on parole and had completed drug tests in November and December 2009, but missed the next four tests and failed to enroll in the court-ordered after care drug rehabilitation program.
On February 19, 2010, the juvenile court terminated Father’s reunification services. Mother dropped out of her sober living program the next day, leaving no forwarding address.
By June 2010, Mother had completed only three random drug tests, missing at least four. Though she had participated in counseling and parenting programs, she did not complete them. Mother and Father only sporadically kept their appointments with DCFS or visited D.B. Their visits were of poor quality, Mother and Father spending more time with each other than with the child. Neither parent accepted the diagnosis that D.B. was mildly developmentally delayed and showed signs of autism.
On June 17, 2010 Father filed a section 388 petition seeking reinstatement of reunification services and placement of D.B. in his home or, alternatively, weekend and overnight visitation. He argued he had completed a substance abuse program, continued to test clean on a weekly basis, was in the process of completing a parenting program, visited D.B. two or three times per week, and was prepared to receive her into his home. He supported the petition with a certificate of completion of the substance abuse program, a letter indicating satisfactory progress in the parenting program, and some two dozen clean drug reports going back to June 2009. But although the drug reports were negative on a weekly basis from June to August 2009, there were several month-long gaps—and several more three-week gaps—in testing from September 2009 to May 2010, and DCFS reported Father failed to submit to testing on seven occasions from December 2009 to April 2010.
On July 8, 2010, the juvenile court denied Father’s section 388 petition without a hearing and terminated family reunification services for Mother.
Father was arrested on August 25, 2010 and released by October 28, 2010.
On October 1, 2010, the prospective adoptive parents expressed their desire to move forward with adoption. The legal and financial rights and obligations of adoption were explained to them and they reported they understood them and the lifelong commitment adoption required. They said they had cared for D.B. since she was born and considered her to be their daughter. Social workers found them to be affectionate and attentive toward the child, who was emotionally bonded with them. DCFS reported the paternal grandparents were “very anxious for the adoption to move forward and they reported they are very much committed in giving D[.B.] a loving home.”
The juvenile court held a permanency hearing on November 4, 2010. Other than announcing his presence, Father’s attorney remained silent. The court found D.B. to be adoptable and terminated Mother’s and Father’s parental rights.
DISCUSSION
Though Father appeals from the orders denying his section 388 petition and terminating his parental rights, his appellate brief discusses only the latter order. His challenge to the section 388 order is abandoned. (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700 [“When an issue is unsupported by pertinent or cognizable legal argument it may be deemed abandoned and discussion by the reviewing court is unnecessary.”].)
Father contends an adequate permanency assessment was not made because the paternal grandparents were not given enough information about legal guardianship. Because the permanency assessment was inadequate, he contends, the juvenile court had insufficient evidence to terminate his parental rights. We reject the contentions.
Under section 366.26, subdivision (c)(1), “If the court determines, based on the assessment provided as ordered under subdivision (i) of Section 366.21... or subdivision (b) of Section 366.25, and any other relevant evidence, 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....” (Italics added; see In re Carl R. (2005) 128 Cal.App.4th 1051, 1060–1061.) “The question of adoptability posed at a section 366.26 hearing usually focuses on whether the child’s age, physical condition, and emotional state make it difficult to find a person willing to adopt that child. [Citation.] If the child is considered generally adoptable, we do not examine the suitability of the prospective adoptive home. [Citation.] However, where the child is deemed adoptable based solely on the fact that a particular family is willing to adopt him or her, the trial court must determine whether there is a legal impediment to adoption.” (In re Carl R., at p. 1061.)
“‘Clear and convincing’ evidence requires a finding of high probability. The evidence must be so clear as to leave no substantial doubt. It must be sufficiently strong to command the unhesitating assent of every reasonable mind.” (In re David C. (1984) 152 Cal.App.3d 1189, 1208.) Our review is to determine whether the record contains substantial evidence supporting the juvenile court’s conclusion that the child will be adopted. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.)
The juvenile court’s determination that D.B. would likely be adopted was supported by overwhelming evidence. On July 7, 2008, the paternal grandparents told social workers they were willing to provide a permanent home to D.B. In June 2009, D.B.’s paternal grandmother said she and the paternal grandfather had been caring for the child since birth, had devoted their lives to her, and wanted to adopt her. The paternal grandparents held this position throughout the dependency proceedings, reaffirming it in November 2009 and again on October 1, 2010. They were “very anxious” to move forward with adoption.
Father argues the juvenile court’s finding that D.B. would likely be adopted was not based on substantial evidence because the permanency assessment upon which the court relied was flawed. The argument is without merit. A juvenile court bases its determination of adoptability not only on the permanency assessment but also on “any other relevant evidence.” (§ 366.26, subdivision (c)(1).) Here, the paternal grandparents’ repeated statements to DCFS that they wanted to adopt D.B. would have justified the court’s adoptability finding even without a permanency assessment. At any rate, the permanency assessment was not flawed.
Under either subdivision (i) of section 366.21 or subdivision (b) of section 366.25, when a court orders that a hearing pursuant to Section 366.26 shall be held it must “direct the agency supervising the child and the licensed county adoption agency... to prepare an assessment that shall include: [¶]... [¶] An analysis of the likelihood that the child will be adopted if parental rights are terminated.” Along with such an assessment, the agency must give a relative caregiver “information regarding the permanency options of guardianship and adoption, including the long-term benefits and consequences of each option, prior to establishing legal guardianship or pursuing adoption.” (§§ 366.21, subd. (i)(2)(B), 366.25, subd. (b)(2)(B).)
Here, DCFS gave information about legal guardianship to the paternal grandmother and explained the legal and financial rights and obligations of adoption to both paternal grandparents. The grandparents understood their rights and the lifelong commitment adoption required and knowingly chose adoption over guardianship. This was sufficient.
Father has several complaints about how much information DCFS provided to the paternal grandparents on guardianship. He notes that several DCFS reports made no mention of the guardianship option, we do not know exactly what information was given to the paternal grandmother, and there is no indication the paternal grandfather received any guardianship information. Father argues DCFS should have obtained and reported the paternal grandfather’s views on his right to select guardianship over adoption, and in the absence of such a report, the juvenile court was underinformed. These might have been good arguments to raise below, but because Father made no objection to the sufficiency of the assessment report below, he waived his right to object to it here. (In re Crystal J. (1993) 12 Cal.App.4th 407, 411–412.)
Finally, Father argues guardianship was a viable option, one it would have been “logical” for the trial court to pursue. We disagree.
“The avowed goal of dependency law is to protect children who are physically, sexually or emotionally abused, neglected or exploited. (§ 300.) Although the protection must focus on the preservation of the family whenever possible, the child who cannot be returned to his or her parent must be provided a stable, permanent home. (§ 366.25, subd. (a); § 366.26, subd. (b).) That child must be placed for adoption, in guardianship, or in long-term foster care. (§ 366.26, subd. (b).)” (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) Adoption is the permanent plan strongly preferred by the Legislature. (San Diego County Dept. of Social Services v. Superior Court (1996) 13 Cal.4th 882, 884–885; In re S.B. (2008) 164 Cal.App.4th 289, 297; In re Heather B. (1992) 9 Cal.App.4th 535, 546, citing Sen. Select Com. on Children and Youth Rep. on Child Abuse Reporting Laws, Juvenile Court Dependency Statutes and Child Welfare Services (1987–1988 Reg. Sess.) p. 11.)
Father argues the legislative preference for adoption over guardianship has recently weakened. He finds evidence for such weakening in a recent amendment to subdivision (c)(1)(A) of section 366.26, which previously provided that a trial court need not terminate parental rights over an adoptable child when “exceptional circumstances” rendered a relative with whom the child was living unable or unwilling to adopt the child. In 2008 the word “exceptional” was deleted. Now, a court need not terminate parental rights if it finds that “circumstances” render a relative unable or unwilling to adopt the child. Father suggests that deletion of the word “exceptional” rendered it easier for a juvenile court to order a minor into guardianship, which means the Legislature no longer prefers adoption over guardianship.
We are unpersuaded. Not only are both versions of 366.26, subdivision (c)(1)(A) inapplicable here—D.B.’s paternal grandparents do want to adopt her—but the latest version still evinces a preference for adoption over guardianship.
Once the juvenile court determines a child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental to the child under section 366.26, subdivision (c)(1)(A) or (c)(1)(B). (In re S.B., supra, 164 Cal.App.4th at p. 297.) Father attempts no such showing. Nor could he. D.B. was placed with her paternal grandparents when she was three months old, if not earlier. The paternal grandparents have at all times seen to the child’s special needs and provided her with a secure, loving home. In contrast, Father was incarcerated for much of D.B.’s young life, visited her only sporadically and half-heartedly, has an unresolved drug problem, and has done nothing to address D.B.’s special needs, denying she has any. The child is now four years old and is to be adopted by the only parents she has ever known. Given these circumstances, the court had more than sufficient evidence on which to base its order.
Mother’s only argument on appeal is that if Father’s parental rights are reinstated hers should be too. Her appeal fails with his.
DISPOSITION
The juvenile court’s orders are affirmed.
We concur: ROTHSCHILD, Acting P. J.JOHNSON, J.