Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK58228, Jacqueline H. Lewis, Temporary Judge.
Michael A. Salazar, under appointment by the Court of Appeal, for Defendant and Appellant Ruben S.
Sharon S. Rollo, under appointment by the Court of Appeal, for Defendant and Appellant Heather L.
Raymond G. Fortner, Jr., Los Angeles County Counsel, Larry Cory, Assistant County Counsel and Aileen Wong for Plaintiff and Respondent.
TURNER, P. J.
I. Introduction
Heather L., the mother, and Ruben S., the father (collectively the parents), separately appeal from an order terminating their parental rights to Manuel S. pursuant to Welfare and Institutions Code section 366.26. In their opening briefs, the parents challenge the juvenile court’s ruling that Manuel was adoptable. Because the ruling is supported by substantial evidence, it must be upheld.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
II. Background
On March 2, 2005, the Los Angeles County Department of Children and Family Services (“the department”) filed a section 300 petition on behalf of newborn Manuel and three older siblings: Alexis L. (who was born in May 2000); Stone S., (who was born in August 2001); and Ruben S., Jr. (who was born in April 2003). The older siblings are not the subject of this appeal but are referred to only as they are pertinent to the issues raised on appeal.
The March 2, 2005 petition alleged: the 19-year-old mother has a history of substance abuse and drug related criminal activity which periodically rendered her incapable of providing regular care for the children; Ruben S., the 31-year-old father of Stone, Ruben, Jr., and Manuel, has a history of substance abuse and drug related criminal activity; the drug activity periodically rendered Ruben S. incapable of providing regular care for the children; Manuel, who was born in January 2005, is medically fragile and has special and unique medical problems including but not limited to a cleft palate and severe feeding problems; and the parents had failed to submit to necessary and specialized training to feed Manuel adequately. The petition further alleged that the children were endangered by Ruben S., who had created a detrimental lifestyle. The detrimental lifestyle included, among other things, convictions for: vandalism; inflicting corporal injury to a spouse/cohabitant; making annoying phone calls; battery; assault; disorderly conduct (intoxication by drugs/alcohol); and assault with a deadly weapon.
The detention report stated that the children were detained after the mother failed to comply with the provisions of a Voluntary Family Preservation contract. The contract was entered into after the department responded to a January 25, 2005, referral alleging general neglect of Manuel. Social worker Alexandra Lee told the department that Manuel had been in neonatal intensive care unit of Beverly Hospital since his premature birth. The hospital wanted to insure the mother knew how to feed the baby because he was born with a cleft palate which would cause poor feeding habits and would eventually require surgery. The mother was asked to come to the hospital and feed Manuel three times a day but made excuses and did not come. The mother stated she did not have transportation. However, the hospital arranged to have the mother picked up and provided her with a taxi voucher. The mother also stated that she had childcare issues. The caller told the social worker the mother and the father do not have a place to live and had moved three times within the past three weeks. The mother had to be reached through the maternal grandmother, Nikki L.
On February 3, 2005, Manuel was admitted to the cleft palate clinic at White Memorial Hospital, where his condition worsened. Manuel’s feedings became more difficult and his breathing was hampered further by his small jaw, which forced his tongue to the back of his mouth. Manuel was subsequently diagnosed as having an extra chromosome, which the hospital indicated could cause behavior problems in the future. The mother called regularly but had not visited Manuel.
The family was forced from the temporary home of the paternal grandparents, who were being evicted. On February 11, 2005, the social worker went to the paternal grandparents’ home and found personal belongings in the driveway being rain soaked. The family had been staying in a hotel but was being forced out because of the small children.
On February 14, 2005, a White Memorial Hospital employee called the department and stated Manuel was improving but the mother could not be located to come in for feeding. On February 16, 2005, the mother came into the department and signed a contract. The mother stated she was now residing in the home of the maternal great-grandmother, Ronnie P. The mother agreed to take a drug test. The mother’s drug test was negative. The mother stated that the father had left for Arizona. The maternal grandmother stated that the father would never be allowed in the home. On February 25, 2005, the maternal great grandmother stated that the mother and children were moving from one hotel to another with the father, who had never left town. The parents had not visited Manuel in the hospital for 10 days. The mother had called the hospital on February 2, 3, 5, 7, 9, and 10, 2005. On February 25, 2005, a case social worker, Sharon Smith, called the maternal grandmother at work. According to the maternal grandmother, the family was outside in a car waiting for her to leave work. Ms. Smith went to the parking lot described by the maternal grandmother and found the children playing inside the car while the mother and the father slept. The children were subsequently detained.
The mother was arrested for narcotics paraphernalia possession on August 27, 2003 and a bench warrant was issued for her arrest on September 7, 2004. On February 16, 2005, the mother was asked to explain the 2003 drug incident. The mother denied that the drugs belonged to her but later admitted that she used methamphetamine in 2003. The mother was given a referral form to submit to a random drug test. The mother stated that she was taking a prescription drug for back spasms. The mother was asked to produce the bottle of medicine she was taking. The mother returned with a bottle of medicine which had been prescribed for a sister.
On March 2, 2005, the department notified the court that Manuel needed to be moved to Children’s Hospital because of a chromosomal defect called Pierre Robin Syndrome. Manuel also needed surgery to correct his jaw which was obstructing his airway. The deformity in his jaw was affecting Manuel’s ability to swallow.
At the detention hearing on March 2, 2005, the mother indicated she had Cherokee heritage. The juvenile court ordered the department to investigate whether the matter would fall under the Indian Child Welfare Act and to notify the Bureau of Indian Affairs and the Cherokee Tribes. The juvenile court subsequently found that notice had been provided as required by law and that the Indian Child Welfare Act did not apply to this case.
Also at the March 2, 2005 detention hearing, the court found that Ruben S. was the presumed father of Stone, Ruben, Jr., and Manuel. Alexis, Stone, and Ruben, Jr. were released to the parents. The department was ordered to provide family maintenance services for these three children. The juvenile court found Manuel was a child described by section 300, subdivision (b) and ordered him detained. The department was ordered to provide family reunification services for Manuel. On March 9, 2005, the department applied for a rehearing. The rehearing application was denied on March 24, 2005.
On March 21, 2005, the department filed a section 385 ex parte application requesting a change of order on the ground the father had tested positive for amphetamines and methamphetamines on March 9, 2005. The department reported that the maternal grandmother said about the father, “‘He’s still with us.’” The maternal grandmother also stated that the parents and children were residing in the home of the maternal great grandparents but had caused some havoc and stress. The maternal great grandparents wanted the parents to move out of the home. The maternal great grandfather was terminally ill. On March 17, 2005, the father denied drug use saying he had nosebleeds and was taking Sudafed as prescribed by a doctor. The father “guessed” that the Sudafed contained “‘meth.’” The department requested that the juvenile court modify the existing order to remove the children from the father’s care and require that he should not reside in the home with the youngsters. The juvenile court granted the department’s request and removed Stone and Ruben from the father’s custody and released them to the mother. The father was ordered to leave the home. He was given monitored visits on condition that the mother was not to act as the monitor.
On March 29, 2005, the department reported that on March 17, 2005, the mother denied that the father used drugs within the last year. In response to the father’s March 9, 2005 positive test, the mother stated she would have a problem with him moving out because he has no place to go. The father stated that he began using methamphetamines because of an accumulation of problems.
On March 24, 2005, Marisha Madrigal, a social worker at Children’s Hospital, stated that the parents have transportation issues. She had only seen the parents once after Manuel was transferred on March 3, 2005. They came to the hospital on March 7 and 13, 2005. The mother visited briefly on March 11, 2005. The mother called on March 15, 16, 18, 19, and 20, 2005. Ms. Madrigal described the mother as flighty. Ms. Madrigal noted the mother changed Manuel’s diaper. Ms. Madrigal described the father as serious but very genuine and tender with Manuel. According to Ms. Madrigal, the parents did a lot better than some families in similar situations. On March 29, 2005, the juvenile court set the matter for adjudication on May 3, 2005.
On April 1, 2005, the department filed an ex parte application and request for order modifying the existing order to place the children in shelter care. The department reported that the father had been arrested on March 31, 2005, for corporal injury on the mother. The maternal grandmother called the Sheriff’s Department after the parents became involved in an argument. The maternal grandmother heard “‘things knocked around in the room’” and saw the father with his hands around the mother’s neck. The father was choking the mother. The maternal grandmother pulled the father off the mother. The mother then went downstairs and the father followed. The parents continued to argue in the garage. The maternal grandmother saw the father holding the mother in a headlock and threatening to snap her neck. When the maternal grandmother tried to intervene, the father swore at her and threatened to kill her. The maternal aunt told investigating deputies sheriffs she saw the father punch the mother in the back. According to the maternal grandmother, the father was angry about how long the mother was taking to get his belongings out of a vehicle.
The mother did not cooperate with the sheriff’s deputies. The mother claimed the father never touched her. The mother was also observed to appear to be in pain and holding her lower back while walking. It was noted that there was a “‘fist size red mark on the right side’” of the mother’s lower back. The mother refused to explain how the injury was incurred. The mother also refused to pursue a protective order and accept a domestic violence handout from the deputies. The father was arrested but released after the mother refused to “press charges” and testify against him. The maternal great-grandmother stated that the mother and children could not stay in her home because her husband was terminally ill. The maternal great-grandmother also stated that she was afraid of the father.
On April 1, 2005, the mother denied she fought with the father. On April 12, 2005, the mother denied being in contact with the father. The mother told the department that she was living at a Motel 6 in Baldwin Park. The social worker called the Motel 6 and was transferred to the mother’s room. The father answered the telephone. The department detained the children after finding them alone in the Motel 6 with the father. The children were unkempt and stated that they had only eaten soup even though it was 5 p.m. Alexis said the parents fought with each other. According to Alexis, the father punches the mother who then would scratch him.
On April 15, 2005, the juvenile court ordered Alexis, Stone, and Ruben, Jr. detained and placed in shelter care. The mother stated that Manuel had been discharged from the hospital on April 12, 2005, and she wanted the children returned to her. The department recommended that the children be placed in foster care. On April 18, 2005, the juvenile court ordered the department to file a first amended petition.
On April 25, 2005, the department filed a first amended petition which alleged that the father had been arrested and charged with corporal injury to a spouse. The juvenile court dismissed the March 2, 2005 petition. On May 3, 2005, the juvenile court sustained the April 25, 2005 petition as amended. The April 25, 2005 sustained petition alleged: the mother and father have a history of engaging in violent altercations; the father had been arrested and charged with corporal injury to a spouse; the children were found in the father’s care despite a court order to the contrary; the mother had a history of substance abuse; and the father had a history of substance abuse and was a current methamphetamine user; and the mother has a history of substance abuse. The children were found to be dependents within the meaning of section 300, subdivisions (a), (b), and (j). The parents were ordered to participate in: individual counseling; domestic abuse counseling; drug counseling; and random drug testing. The children were given sibling visits of no less than once a month. Alexis was placed with her father, Carlos G., on August 30, 2005. He appeared in court at a progress hearing on August 2, 2005.
On October 3, 2005, for the six-month review, the department reported that Manuel resided in a facility, G. E. Pediatrics. At the time of the six-month hearing, Alexis remained placed with her father. The placements for Stone and Ruben, Jr. were changed on September 16, 2005. The department provided both parents with referrals on March 2, April 22, and May 10, 2005. Neither parent had complied with court orders despite repeated referrals to and requests for the parents to enroll in counseling and drug programs and participate in drug testing. The mother had tested four times, once in February 2005, twice in March 2005, and once in April 2005. The tests were negative. However, she had not tested since April 12, 2005; nearly six months earlier. The father had not tested since March 9, 2005, when he tested positive. The parents’ failures to appear for testing were considered to be positive results. The parents were given monthly bus passes for visitation with the children and completion of programs. The parents visited Manuel on a weekly basis and the visits had gone well. However, neither parent had attempted to comply with any juvenile court counseling and drug testing orders.
The department recommended a permanent plan for Manuel because of his young age. The department explained Manuel is medically fragile and has the following special and unique medical needs: Pierre Robin Syndrome; cleft palate; micrognathia; upper airway congestion; holosystolic murmur; and reflux obstructive apnea. Manuel also required nebulizer treatments on an as needed basis. Manuel was scheduled for a follow-up surgery of the cleft palate on September 30, 2005.
The department also reported that, on May 27, 2005, the mother appeared for a foster family agency visit with Alexis, Stone, and Ruben, Jr. The mother appeared to be under the influence of a drug. She was unable to walk without stumbling, her speech was slurred, and her movements were slow. The visit was cancelled but she refused to leave the office. The mother began making inappropriate comments and threw a cup of water across the floor as she left the building cursing. During visits in June 2005, the father was very aggressive with the social workers and tried to intimidate them. The security guard had to be called before the father would cooperate during the June 9, 2005 visit. On June 19, 2005, the father was very upset and angry. A security guard was called because the social worker was afraid as a result of the father’s outburst. She also reported the incident to the police. On September 8, 2005, the mother informed the department that she and the father were living with friends. She did not provide an address or telephone number where she could be contacted.
The contested six-month review hearing began on February 16, 2006. The department reported that the foster parents of Stone and Ruben, Jr. wanted to adopt the two youngsters. The department recommended adoption for Stone and Ruben, Jr. The department recommended giving Carlos G. sole physical and legal custody of Alexis and the termination of jurisdiction over her. The juvenile court found: the parents had not complied with the case plan; the parents had not consistently and regularly visited the children; and the parents had not made significant progress in resolving the problems that led to the children’s removal. The juvenile court terminated family reunification services as to Stone, Ruben, Jr., and Manuel and set the matter for a section 366.26 hearing. The court terminated jurisdiction over Alexis and gave her father, Carlos G., sole physical and legal custody.
On March 16, 2006, the department reported that no prospective adoptive family had been found for Manuel. Stone and Ruben, Jr. had been moved to new placements on January 13, 2006. On April 7, 2006, the juvenile court granted medical authorization to Children’s Hospital to remove a jaw distraction device and scar revision for Manuel. The surgery required general anesthesia.
For the June 15, 2006 section 366.26 hearing, the department reported that the parents had consistently visited Manuel in placement twice each month. Adoption was identified as in the best interests of Manuel but no prospective adoptive family had been identified. A relative had recently come to the department’s attention that may be interested in adopting Manuel. The juvenile court found the report unsatisfactory as to Manuel and continued the hearing to August 1, 2006.
On August 1, 2006 the department reported that Manuel had undergone surgery on April 20, 2006 to remove a jaw distracter due to upper airway obstruction. The surgery was successful and Manuel had completely recovered from the surgery. He was able to eat table foods. Follow-up surgery of the cleft palate with the craniofacial team at Children’s Hospital was pending. The parents were notified and agreed to consent to the surgery. The paternal grandmother was identified as the prospective adoptive mother for Manuel. The paternal grandmother stated that she was unaware until recently that Manuel was in foster care and was interested in raising her grandson. She began visiting with him in May 2006 and wanted to adopt Manuel. Manuel remained in the facility, G. E. Pediatrics.
On August 1, 2006, the court terminated parental rights as to Stone and Ruben, Jr. and continued the matter for Manuel. The juvenile court set forth its tentative ruling: “Court’s tentative as to Manuel is to put this matter over. He is still in acute care facility. . . . I don’t believe the situation is stable enough for this court to proceed on termination of parental rights.” The parties then submitted on the tentative ruling. The August 1, 2006 minute order states that permanent placement services were ordered for Stone, Ruben, Jr., and Manuel. The minute order also states that parental rights were terminated as to Stone and Ruben, Jr. The minute order, in accord with the oral pronouncement of the juvenile court, does not state that parental rights are terminated with respect to Manuel. Rather, the minute order states the section 366.26 hearing regarding Manuel was continued to January 2, 2007. Notwithstanding the juvenile court’s oral ruling on August 1, 2006, the clerk’s transcript contains a signed court order dated August 4, 2006, terminating parental rights as to Manuel. It should be noted that the juvenile court also signed similar orders concerning Stone and Ruben, Jr. These written orders are consistent with the juvenile court’s oral rulings on August 1, 2006.
On August 23, 2006, the department reported a prospective adoptive parent, Teresa S., continued to visit Manual on a weekly basis in the medical facility. A home assessment was pending for potential placement of Manual in the home. An adoption worker had been assigned to prepare a home study.
On September 6, 2006, the department reported that the paternal grandmother’s home was not approved for placement. The home had no beds, mattresses, safety plugs for outlets, or storage space. On October 17, 2006, the department reported that no adoptive match had been found for Manuel. A search continued because the department social worker felt the child was very adoptable because there were two other families interested in Manuel before the paternal grandmother was identified.
On December 26, 2006, the juvenile court authorized Children’s Hospital to perform a palateplosty under general anesthesia for Manuel’s cleft palate. The authorization form indicates that the parents were homeless and their whereabouts unknown. The juvenile court also authorized tube placement under anesthesia because Manuel had acute otitis media in his ears which is a persistent ear infection.
On January 2, 2007, the department reported that Manuel remained in the intermediate care facility, G. E. Pediatrics. Both parents were notified of and consented to Manuel’s surgeries which were scheduled for January 5, 2007. Manuel was receiving occupational, speech, and physical therapies twice monthly. A prospective adoptive family had been identified for Manuel. The family home study was completed and approved. The family recently adopted another child. The prospective adoptive family visited Manuel on December 26, 2006. They planned to attend medical appointments about his upcoming surgeries. The parents continued to visit.
The mother did not appear at the January 2, 2007 hearing. The father appeared and requested a contested hearing. The paternal grandmother also appeared at the hearing. The juvenile court ordered the department to reassess the paternal grandmother for Manuel’s potential placement with her. The juvenile court continued the matter to February 22, 2007. The juvenile court terminated jurisdiction of Stone and Ruben, Jr. on January 22, 2007, and the children were released to their adoptive parents.
On February 22, 2007, the department reported that Manuel was residing in the home of his prospective adoptive parents. Manuel was placed in the home on January 25, 2007. The department telephoned the last known number for the paternal grandmother on January 8, 2007. The number was disconnected. No one answered the door on home calls to the paternal grandmother’s home on January 9 and 18, 2007. Although business cards were left at the front door, no one responded to attempts to reach the paternal grandmother. The facility indicated that the paternal grandmother’s last visit with Manuel was on December 1, 2006.
At the section 366.26 hearing on February 22, 2007, the parties stipulated that the mother would testify that she visited Manuel about once every two weeks. The mother would also testify that she was working and had started but not completed a program. The court found by clear and convincing evidence that Manuel was adoptable and terminated the parents’ parental rights. The parents filed separate notices of appeal on February 22, 2007.
III. discussion
Initially, the parties discuss the effect of the juvenile court which was entered in an order on August 4, 2006 and purported to terminate parental rights as to Manuel. The father argues and the department concedes that the August 4, 2006, written order was most likely the result of error. The August 4, 2006 written order directly conflicts with the August 1, 2006 minute order. The August 4, 2006 written order also conflicts with the juvenile court’s August 1, 2006 oral pronouncement. The Supreme Court has explained: “‘It may be said . . . as a general rule that when . . . the record is in conflict it will be harmonized if possible; but where this is not possible that part of the record will prevail, which, because of its origin and nature or otherwise, is entitled to greater credence [citation]. Therefore whether the recitals in the clerk’s minutes should prevail as against contrary statements in the reporter’s transcript, must depend upon the circumstances of each particular case.’” (People v. Smith (1983) 33 Cal.3d 596, 599; accord In re Merrick V. (2004) 122 Cal.App.4th 235, 249; In re Maribel T. (2002) 96 Cal.App.4th 82, 86.) A signed order or judgment that does not reflect the express judicial intention of the court is a type of clerical error. (Estate of Goldberg (1938) 10 Cal.2d 709, 717 [court’s inadvertent entry of order can be clerical in nature]; In re Marriage of Kaufman (1980) 101 Cal.App.3d 147, 151 [signing a judgment that does not reflect actual judicial intention is clerical and subject to correction].) The court has inherent and statutory power to correct clerical mistakes and orders in judgments to reflect the true decision at any time. (Code Civ. Proc., § 473; In re Candelario (1970) 3 Cal.3d 702, 705 [inherent power]; Estate of Goldberg, supra, 10 Cal.2d at p. 717; Conservatorship of Tobias (1989) 208 Cal.App.3d 1031, 1034-1035 [inherent and statutory power].) Under the circumstances, it is clear that the August 1, 2006 minute order and oral pronouncement are the controlling rulings.
The father argues the juvenile court finding that Manuel was adoptable is not supported by substantial evidence. The mother has joined the father’s arguments. The juvenile court may only terminate parental rights based on clear and convincing evidence of the likelihood the child will be adopted within a reasonable time. (§ 366.26, subd. (c)(1); In re Erik P. (2002) 104 Cal.App.4th 395, 400; In re Jennilee T. (1992) 3 Cal.App.4th 212, 223; In re Amelia S. (1991) 229 Cal.App.3d 1060, 1065.) The adoptability finding is reviewed for substantial evidence. (In re Helen W. (2007) 150 Cal.App.4th 71, 79-80; In re J. I. (2003) 108 Cal.App.4th 903, 911.)
In this case, the parents challenge the finding Manuel was adoptable because no prospective adoptive family had been identified in March 2006 and the youngster had many medical problems. However, the adoptability finding was based in part on the evidence that Manuel had been placed in the home of a prospective adoptive family on January 25, 2007. Although Manuel had several surgeries over his lifetime, two of which occurred in January 2007, the prospective adoptive family was aware of the youngster’s medical problems. The family also attended medical appointments for the surgeries. Manuel was placed with the family after the surgeries. There was also evidence that the paternal grandmother had expressed interest in adopting Manuel. Two other families were interested in adopting Manuel prior to the court’s order to assess the paternal grandmother’s home. The fact that Manuel has found prospective parents willing to adopt him is sufficient evidence that there is a likelihood that he will be adopted. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154; In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650.) Under the circumstances, there was substantial evidence to support the finding Manuel was adoptable.
IV. disposition
The order terminating parental rights is affirmed.
We concur: ARMSTRONG, J. MOSK, J.