Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County Nos. J209163 & J209164, Marsha Slough, Judge.
Melanie Waltz, under appointment by the Court of Appeal, for Defendant and Appellant Latoya C.
Lori A. Fields, under appointment by the Court of Appeal, for Defendant and Appellant S.J.
Ruth E. Stringer, County Counsel, and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.
Michael D. Randall, under appointment by the Court of Appeal, for Minors D.J. and D.G.
OPINION
HOLLENHORST, Acting P. J.
L.C. (Mother) has two children, D.J. (born September 2005) and D.G. (born May 2003). S.J. (Father) is the father of D.J. Both parents appeal from the juvenile court’s ruling terminating their parental rights at a hearing held pursuant to section 366.26 of the Welfare and Institutions Code. Mother challenges the court’s finding that D.G. was adoptable. Father challenges the court’s finding that he received reasonable reunification services and notice. For the reasons described below, we affirm the juvenile court’s ruling.
Although D.J. was initially identified as D.C., the Department and the court corrected its records on June 15, 2007. The alleged father of D.G. is not a party to this appeal.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
I. PROCEDURAL BACKGROUND AND FACTS
D.J. was removed from Mother’s care on June 30, 2006, after the Department of Children’s Services (the “Department”) received a referral from the emergency room physician at St. Bernardine Medical Center stating the child had suffered a nonaccidental burn to her buttocks and genitals, most probably the result of child abuse. D.G. was removed from Mother on July 1, 2006, after Mother was questioned by the San Bernardino Police Department.
The child’s skin was raw, peeling and oozing pus.
On July 5, 2006, the Department filed dependency petitions on behalf of the children, alleging that they came within section 300, subdivisions (a), (b), and (g). Specifically, the petitions alleged that (1) while in Mother’s care, D.J. sustained burns to her genitals, requiring hospitalization; (2) Mother suffered from a substance abuse problem which interfered with her ability to parent; (3) both fathers knew or should have known the children were at risk for abuse by Mother; (4) both fathers suffered from substance abuse problems; and, (5) both fathers engaged in domestic violence placing the children at risk. On July 6, 2006, at the detention hearing, the court found a prima facie case established for detention out of parental custody.
As to D.J., there was an additional allegation under section 300, subdivision (e).
In the jurisdiction/disposition report, the Department recommended that the allegations in the petitions be sustained and no reunification services be offered to either parent. According to the report, the burns on the child were the result of someone pouring scalding liquid onto the child’s buttocks and genitals. Mother had no explanation for the injury. Father’s whereabouts were unknown. On July 27, 2006, the social worker filed a Declaration of Due Diligence indicating the search efforts to locate Father.
On August 18, 2006, the court granted the request to bifurcate the jurisdiction and disposition hearings and set the matter contested. Mediation was also ordered. As a result of mediation negotiations, Mother agreed, in essence, to plead “no contest” to the allegations of the petitions, and the Department would offer reunification services to all parents. At the pretrial conference on September 6, 2006, Father’s counsel requested new dates in order to transport Father from state prison. Further hearings were held and the children were placed with their maternal great aunt on November 14, 2006.
In the addendum report to the contested jurisdiction hearing, the Department recommended that the allegations in the petitions be found to be true and that neither parent receive reunification services. At the contested jurisdiction/disposition hearing on December 11, 2006, both parents were present. The court ordered that reunification services be provided. The social worker prepared a case plan for Father with the following objectives: Show an ability and willingness to have custody of his child; attend and demonstrate progress in a domestic violence program; comply with all court orders; maintain a relationship with child through visitation; maintain drug-free lifestyle; do not break the law; follow conditions of probation/parole; show age-appropriate and nurturing behavior toward children, consistently and adequately parent his child, and do not behave in an abusive or threatening manner. Father was required to attend general counseling, a parenting education program, substance abuse testing, and participate in outpatient substance abuse services. Father signed the plan on January 9, 2007. Attached to the case plan were referrals to agencies where Father would be able to complete his services.
On February 16, 2007, the children were moved to the home of a maternal cousin. The six-month review report filed on May 24, 2007, recommended that reunification services be continued for parents. The social worker had met with Father in January 2007 and again on May 16, 2007, to discuss the fact that Father had not yet begun any part of the plan. Father said that he had done nothing because it was too hard. The same day, Father was asked, but failed, to drug test. Father’s visitation with his child was sporadic. The children were healthy and were meeting their developmental milestones. Mother was described as “difficult and argumentative,” claiming that all she needs to do is provide a certificate of completion to the judge and show some changes and she will be fine. She entered into counseling and an outpatient substance abuse treatment program; however, she continued to test positive. Thus, she was referred to an inpatient program. Her attitude in counseling was poor. Although Mother visited the children, she demonstrated some difficulties in attending to them.
At the six-month review hearing on June 11, 2007, the social worker reported that Father was residing in Las Vegas and needed new referrals. The court instructed the Department to provide new referrals to Father; however, it also noted that Father’s progress towards mitigating causes of removal had been minimal and that reasonable services had been provided. Reunification services were extended for another six months, but the 12-month review was set for August 29, 2007.
In the 12-month review report, the Department recommended that services to Mother be continued but that services to Father be terminated due to lack of participation. Father had called the social worker on June 13, 2007, requesting referrals. The social worker said she would mail them to him when he provided her with an address. A copy of his service plan and referrals were mailed to him on June 20. On June 25, Father was arrested on a parole violation. The social worker’s correspondence was returned as undeliverable. Although Mother was continuing to participate in her service plan, her progress was problematic. She was terminated from her inpatient drug treatment program on July 9 due to her behavioral problems. She was recommended for Cedar House drug treatment program. She enrolled and participated in drug court. She continued to attend counseling, completed a 12-part training course entitled, “Framework for Recovery” and a six-week anger management class. In August a warrant was issued for Mother’s arrest for assault with a deadly weapon, and her arraignment was set for August 28. Mother had assaulted another woman with a knife, inflicting wounds that required stitches. Mother was attending supervised visitation and she engaged the children more appropriately with the assistance of the social worker. The children continued to do well.
The 12-month review was set for a contested hearing. In the addendum report filed September 13, 2007, the Department recommended that all services be terminated and the court set a section 366.26 hearing. A police report noted Mother’s charge of assault was pending and that she was due for a preliminary hearing set for October 22, 2007, as well as a probation revocation hearing for the same date for the prior misdemeanor conviction for willful cruelty to a child. Father was in state prison.
A second addendum to the 12-month review noted that Mother had pleaded no contest and was on supervised probation for 36 months, and that Father was in state prison. Mother did not like the current placement of the children and complained. The social worker investigated the children’s caretaker to address Mother’s concerns. At the hearing on November 16, 2007, neither parent was present in court because they were both in custody. Over the objections of Mother’s counsel, the court proceeded with the hearing.
In Mother’s absence, her counsel had no affirmative evidence to present and objected that his only affirmative evidence would have been through Mother. No testimony was given, and Father presented no affirmative evidence or argument. The court accepted without objection the Department’s 12-month report with addendums and attachments. The court found by clear and convincing evidence that parents had failed to complete their court-ordered reunification plan. The court terminated services and set the matter for a section 366.26 hearing. Notice was sent to both parents, but Father’s notice came back as undeliverable. Mother filed her writ petition in case No. E044603, which was denied on March 18, 2008. Following the trial court’s termination of reunification services and the setting of a section 366.26 hearing, Mother filed a writ petition pursuant to California Rules of Court, rule 8.452(a). This court denied the petition in our opinion in case No. E044603 filed on March 18, 2008.
In the March 25, 2008, section 366.26 report, the Department recommended that all parental rights be terminated and that adoption be selected as the permanent plan. The children were doing well and were developmentally on track. The children had been with their current caretaker for over a year and she was willing to adopt them. Visitation with Mother continued. Father contacted the Department in February 2008, and visits with the children began thereafter. According to the adoption assessment, it was recommended that the children be freed for adoption. The report indicated it was likely they would be adopted due to their young age and their caretaker’s willingness to adopt. The children were comfortable in the caretaker’s home and sought her out for security and comfort. The caretaker was able to address the children’s needs. She was a stay-at-home mother and foster parent for medically fragile children. Her home (seven bedrooms and three bathrooms in a nice area) was approved. She had one adult biological child and had adopted five children after their foster placement with her. The caretaker was willing to maintain contact with Mother as long as Mother was appropriate.
Both parents appeared at the section 366.26 hearing on May 8, 2008. The adoption assessment and the social worker’s report were admitted into evidence without objection. Neither parent presented any affirmative evidence. The court found the children to be adoptable, terminated parental rights, and selected adoption as the permanent plan.
II. FINDING OF ADOPTABILITY
Mother contends the evidence is insufficient to support the juvenile court’s finding that D.G. is adoptable and that the prospective adoptive mother was not available to adopt.
“The juvenile court may terminate parental rights only if it determines by clear and convincing evidence that it is likely the child will be adopted within a reasonable time. [Citations.] ‘“‘“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. [Citations]’” [Citations.]’ [Citation.] Review of a determination of adoptability is limited to whether those findings are supported by substantial evidence. [Citation.]” (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.]” (In re Carl R., supra, 128 Cal.App.4th at p. 1061.) However, where the child is deemed adoptable based solely on the fact that a particular family is willing to adopt him or her, “the analysis shifts from evaluating the characteristics of the child to whether there is any legal impediment to the prospective adoptive parent[s’] adoption and whether [they are] able to meet the needs of the child. [Citation.]” (In re Helen W. (2007) 150 Cal.App.4th 71, 80.)
Mother challenges the sufficiency of the evidence to support the juvenile court’s finding of adoptability by noting that D.G. “exhibited behaviors that would make him generally not adoptable.” She also questions whether psychological tests were performed, a diagnosis made, and the prognosis and treatment plan for the child were available. She cites In re Ramone R. (2005) 132 Cal.App.4th 1339 (Ramone) and In re Valerie W. (2008) 162 Cal.App.4th 1 (Valerie) in support of her challenge. In response, the Department points out that Mother’s sole focus is on the negative information and she overlooks the positive attributes described by the social worker. We agree with the Department.
The current caretaker had been caring for the children for 15 months by the time the parental rights were terminated. During that time, it was noted the children were doing well, they were developmentally on track, and their language skills had increased. Although there was a report that D.G. was exhibiting some inappropriate sexual behaviors, the caretaker moved him into his own bedroom. There was no indication these behaviors were so severe they would undermine a finding of adoptability. The section 366.26 report and the adoption assessment both noted D.G. was doing well and that he was engaged in counseling to address his behavioral issues. There was nothing in either report noting that his behavior would compromise his placement. Rather, the caretaker remained committed to adopting D.G. and noted he “has rough days less often than before.” Given the information provided in the reports, there was sufficient evidence to find that D.G. was adoptable.
Mother’s reliance on Ramone and Valerie is misplaced. The child in Ramone exhibited severe behavioral problems such as anger tantrums, banging his head against the wall all night long, kicking, screaming, and removing his clothes and bedding and throwing them on the floor. (Ramone, supra, 132 Cal.App.4th at p. 1345.) The appellate court overturned the juvenile court’s finding of adoptability because the child had had two short-lived placements with family members and there was no indication another adoptive placement had been found. (Id. at p. 1351.) Likewise, in Valerie the two children had emotional or physical issues, and the reports failed to discuss the issues, prognosis, or the level of care required. (Valerie, supra, 162 Cal.App.4th at pp. 5-6.) Moreover, the reports were unclear as to who would be the adoptive parent. On appeal, the court found insufficient evidence to support a finding of adoptability. (Id. at p. 15.) Unlike those cases, here (1) D.G. did not suffer from the same severe emotional or physical issues, (2) there was substantial evidence to support a finding that he was adoptable, and (3) D.G.’s current caretaker was identified as the adoptive parent.
Alternatively, Mother contends the prospective adoptive mother is not legally available to adopt because it is unclear whether she is divorced from her husband. Without evidence of a divorce, Mother argues that the prospective adoptive mother is unable to adopt the children without her husband’s consent. (Fam. Code, § 8603.)
Turning to the record, we note the adoption assessment dated March 25, 2008, indicates the prospective adoptive mother is divorced. Even if this is inaccurate, there is nothing in the record suggesting her husband would refuse to consent to the adoption. Rather, the prior reports indicate he has been supportive of her other adoptive children and would frequently help out with them and the house. More importantly, Mother failed to challenge the adequacy of the adoption assessment report at the trial level. In our view, because the adoption assessment was presented to the court at the section 366.26 hearing, any deficiency should have been brought to the court’s attention at that time. (In re Urayna L. (1999) 75 Cal.App.4th 883, 886.) Thus, this issue is forfeited. (In re Crystal J. (1993) 12 Cal.App.4th 407, 411-412, and In re Aaron B. (1996) 46 Cal.App.4th 843, 846.)
III. REASONABLENESS OF REUNIFICATION SERVICES
Ordinarily, Father would not be able to appeal the juvenile court’s finding that reasonable reunification services were provided to him, because that finding was made at a hearing at which a section 366.26 hearing was set and Father did not file a petition for writ of mandate. (§ 366.26, subd. (l)(2), Cal. Rules of Court, rule 8.450.) However, notice of his right to file a writ was not mailed to him at his last known address, as required by California Rules of Court, rules 5.585(e) and 5.600(b). Consequently, Father has the right to contest his claims of error occurring at the setting hearing in this appeal. (In re Harmony B. (2005) 125 Cal.App.4th 831, 838-839.)
Nonetheless, the Department argues that Father is precluded from raising this issue on appeal because he failed to raise it at the section 366.26 hearing. We agree. “Many dependency cases have held that a parent’s failure to object or raise certain issues in the juvenile court prevents the parent from presenting the issue to the appellate court. [Citations.] As some of these courts have noted, any other rule would permit a party to trifle with the courts. The party could deliberately stand by in silence and thereby permit the proceedings to reach a conclusion in which the party could acquiesce if favorable and avoid if unfavorable. [Citations.]” (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338-1339, and cases cited therein; see also In re Jesse W. (2001) 93 Cal.App.4th 349, 355.) This policy applies full force to the instant case, as neither the juvenile court nor the Department was put on notice that reunification services were inadequate even though Father had ample opportunity to raise the issue. Thus, Father’s attempt to challenge the adequacy of reunification services is an attempt to raise a new issue, which was not presented to the juvenile court. We find the issue waived and we need not consider it further. (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 [juvenile] court’”].) In any event, we would find that reunification services to Father were reasonable.
It is axiomatic that if the Department does not provide reasonable reunification services to a parent, the court must order that services be continued. (§ 361.5, subd. (a)(3); In re Maria S. (2000) 82 Cal.App.4th 1032, 1039.) We review a trial court’s finding that services were adequate under the “substantial evidence” standard. (Katie V. v. Superior Court (2005) 130 Cal.App.4th 586, 598.)
Father contends that reasonable reunification services were not provided to him during the majority of the reunification period, and particularly during the two periods of time he was incarcerated. We disagree. The social worker continually reminded Father of his reunification timelines and the importance of participating in the required services. Father initially declined to participate because it was “too hard.” He moved to Las Vegas during the dependency and was arrested for a parole violation which resulted in his second incarceration. He failed to keep the social worker or his attorney informed of his location.
The social worker presented a case plan to Father on January 9, 2007, within the time frame required by the court. Father was required to participate in services directly related to the issues involved in his child’s removal from his care. He was expected to attend general counseling to address issues regarding substance abuse, domestic violence and anger management. He was to attend a parenting program and drug test. The plan was explained to Father, who initialed it. When Father moved to Las Vegas, the social worker located referrals in Las Vegas and provided them to him. Nonetheless, Father suggests that the social worker should have done more to get him to participate in his case plan. Not so. Reunification services are voluntary. (In re Christina L. (1992) 3 Cal.App.4th 404, 414-415.) Father’s failure to participate is his own fault, not the social worker’s. As the Department notes, “Father exhibited his lack of interest in reunification by his failure to consistently visit with [his child].” Likewise, during his incarceration, Father was obligated to maintain contact with the Department and his counsel. Having failed to do so, he may not now blame the Department.
Father concedes “the social worker does not have to take him by the hand to help him . . . .”
The Department notes Father had stated at the section 366.26 hearing that he had been participating in services and was going to file a section 388 petition with the court. No petition was filed.
IV. NOTICE OF 12-MONTH HEARING
Father claims he is entitled to a reversal of the order terminating his parental rights because he was not notified of the 12-month hearing wherein his reunification services were terminated and the section 366.26 hearing was set. We disagree.
First, we note that the Department was diligent in its efforts to locate Father once the dependency was initiated. He was located prior to the contested jurisdiction/disposition hearing and he was permitted to participate. Father was present at the six-month review hearing, at which time reunification services were extended and the 12-month review hearing was set for August 29, 2007. Thus, Father received notice of the 12-month review hearing in person. Nonetheless, Father failed to appear. Even if we assume error in notifying Father of the hearing, such error would be harmless. (In re Sabrina H. (2007) 149 Cal.App.4th 1403, 1419 [“[e]rrors in notice of dependency proceedings do not automatically require reversal; instead, we assess such errors to
Father’s reliance on In re DeJohn B. (2000) 84 Cal.App.4th 100, is misplaced. In that case, the appellate court found reversible error upon concluding that the social services agency was not diligent in locating the mother, made only perfunctory efforts to give her notice of the dependency proceedings, and failed to give any notice of the jurisdictional/dispositional or the review hearings. (Id. at pp. 103-104, 107.) The record also showed that the father had hid the location of the children from the mother, and thus it was not her fault that she belatedly took part in the proceedings. (Id. at pp. 104-105.) Here, Father was aware of the dependency proceedings and the need for him to timely complete his case plan. Moreover, he was represented by counsel.
determine whether they are harmless beyond a reasonable doubt”].) As discussed above, Father attended the section 366.26 hearing and had every opportunity to address this issue, but failed to do so.
V. DISPOSITION
The order terminating parental rights is affirmed.
We concur: GAUT, J. KING, J.