Opinion
D048973
12-6-2006
In re MARIAH L., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. MIGUEL L., Defendant and Appellant.
Miguel L. appeals a judgment terminating his parental rights to his daughter, Mariah L. He contends the juvenile court lacked sufficient evidence of his contact with Mariah and of her developmental status to support the judgment. He also asserts he was erroneously deprived of visitation, unfairly impeding his ability to maintain a relationship with her. We determine his claims to be without merit and, accordingly, affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On July 5, 2005, the San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of six-month-old Mariah under Welfare and Institutions Code section 300, subdivision (b), alleging she periodically had been exposed to violent confrontations between her mother, Mallory N., and Miguel. Miguel was living with the paternal grandmother. The paternal grandmother said Miguel left to enter a detoxification program and then residential treatment. She said he receives SSI benefits and had been classified as having bipolar disorder. Miguel was on parole for possession of a controlled substance. The court ordered Mariah would remain with Mallory, on the condition Mallory maintain and enforce a restraining order that was to be served against Miguel. The court ordered Miguel would have reasonable supervised visitation. At a special hearing on July 25, the court appointed counsel for Miguel.
Miguel and Mallory violated the restraining order by being together. On July 27, 2005, they submitted to the allegation of the petition, the court sustained the petition, declared Mariah a dependent child and ordered her placed with the maternal grandmother. The court issued a restraining order set to expire on July 27, 2006, to protect Mariah and Mallory against Miguel. It ordered both parents to comply with services.
Miguel was arrested in August for violating conditions of his parole. In January 2006 the social worker reported Miguel had written to her from prison, requesting visits with Mariah. The social worker informed him visitation with Mariah would not be advisable because of the restraining order. She suggested he write letters to Mariah, which he did, and pictures of her were sent to him. Miguels parole officer reported Miguel had not been released from custody as scheduled because he had not complied with law enforcement requirements.
Miguel was produced from custody for the six-month review hearing on February 17, 2006. The court found returning Mariah to her parents would create a substantial risk of detriment, the parents had not participated regularly or made substantial progress in their treatment plans and there was not a substantial probability Mariah could be returned to them within the next six months. The court terminated services, continued Mariahs placement and set a section 366.26 hearing. The court stated because there was an order in place for supervised visitation, the restraining order did not preclude Miguels visitation with Mariah.
Miguel was paroled in April 2006, but did not contact the social worker. By the time of a June 14 hearing, he had been returned to custody. Miguel was produced from custody for the July 3 section 366.26 hearing.
The social worker reported Mariah was 18 months old and highly adoptable. Her caretakers wanted to adopt her and there were 47 other approved adoptive families who wanted to adopt a child like her.
At the section 366.26 hearing, the court found it was likely Mariah would be adopted if parental rights were terminated and none of the exceptions to adoption of section 366.26, subdivision (c)(1) applied. The court terminated parental rights and ordered adoption as the permanent plan.
DISCUSSION
I
Assessment of Miguels Contacts with Mariah and her Developmental Status
Miguel contends the juvenile court did not have sufficient information about his contacts with Mariah or her developmental status to support a permanent plan of adoption. Agency counters to the extent Miguels claims are based on the adequacy of the assessment report, they are forfeited and that, in any event, the assessment report, taken together with the social workers other reports to the court, provide substantial support for the courts findings.
Assuming, without deciding, that Miguel did not forfeit his claims as to the adequacy of the assessment report, we nevertheless determine substantial evidence supports the trial courts findings that Mariah was likely to be adopted within a reasonable time and that the beneficial parent-child relationship exception to adoption of section 366.26, subdivision (c)(1)(A) did not apply.
When a case is referred to a section 366.26 hearing, section 366.21, subdivision (i) requires the social service agency to prepare an assessment detailing such things as search efforts for absent parents, a review of the contact between the child and the parents, and an evaluation of the childs medical, developmental, scholastic, mental and emotional status. Where the Agency fails to prepare such an assessment, the due process rights of the parties may be implicated because a cornerstone of the evidentiary structure upon which the court and parties are entitled to rely has been omitted. Where, however, the assessment is prepared, addresses the principal questions at issue in the particular proceeding and is made available to the parties in advance of a noticed hearing, errors or omissions in the assessment cannot be characterized in terms of a denial of due process. (In re Crystal J. (1993) 12 Cal.App.4th 407, 413.) Rather, such purported deficiencies go to the weight of evidence and ultimately may prove insignificant in light of other evidence presented to the court. (Ibid.;In re John F. (1994) 27 Cal.App.4th 1365, 1378.)
A. Miguels Challenge to the Sufficiency of the Contacts Evidence
Miguel first challenges the sufficiency of the evidence to support the courts finding Mariah was adoptable, contending the assessment report did not discuss his contacts with Mariah. Agency agrees the report did not discuss such contacts because there were none, but contends the assessment report, considered in conjunction with the social workers other reports to the court, contained sufficient evidence for the court to have determined there was no relationship between Miguel and Mariah that would have triggered application of the beneficial relationship exception to adoption of section 366.26, subdivision (c)(1)(A). We agree.
The evidence before the court established that before Mariah, then age six months, was removed from the parents, Miguel and Mallory did not live together. Mallory had taken Mariah to visit Miguel on occasion and it was reported his interactions with Mariah were appropriate. The social worker reported Miguel loved Mariah and he wrote four letters to her from prison. Miguel was in prison at the time of the six-month review hearing in February 2006 and had not had visits. He was later paroled, then rearrested. He did not contact the Agency during the time he was not incarcerated or ask for visits with Mariah. Under the totality of the evidence, we cannot say the court erred in finding no beneficial parent-child relationship that precluded adoption.
B. Miguels Challenge to the Sufficiency of the Evidence of Mariahs Developmental Status
Miguel next argues the evidence before the court of Mariahs developmental status was insufficient to support a finding of adoptability, because no formal developmental evaluation had been conducted. Section 366.21, subdivision (i)(3) requires the licensed county adoption agency to evaluate the childs developmental status in order to provide the court with information on whether the child is likely to be adopted within a reasonable time. No formal developmental report need be conducted to fulfill the statutory mandate.
Here, the totality of information available to the court amply attested to Mariahs developmental state. Mariahs social worker reported:
"Mariah appears to be developing in her language and motor skills. She is able to walk alone but does crawl occasionally if unsure of herself. She is a bright child, interacting well with others and is learning speech rapidly. She has not had a formal developmental evaluation but one will be scheduled in the coming months."
The social workers other reports indicated there were no concerns about Mariahs growth and progress, and described her relationship to adults, her speech and physical development. The information provided sufficient evidence for the court to conclude Mariah was likely to be adopted within a reasonable time.
II
Visitation
Miguel asserts he was deprived of visitation, impeding his ability to maintain a relationship with Mariah and making it virtually impossible for him to establish the exception to adoption of section 366.26, subdivision (c)(1)(A). He argues the Agencys denial of visitation violated his due process right to preserve his family and have a parent-child relationship. On this record, we disagree.
"The essence of due process is fairness in the procedure employed . . . ." (Ingrid E. v. Superior Court (1999) 75 Cal.App.4th 751, 757.) Throughout the dependency proceedings, Miguel had the assistance of counsel. Yet, before the six month hearing, Miguel failed to bring the issue of his lack of visitation with Mariah to the attention of the court. When the issue was raised, the court immediately rectified the situation and reordered supervised visitation between Miguel and Mariah. We fail to perceive a due process violation on these facts.
Further, on this record, the Agencys error in not facilitating visitation was harmless under any standard. About two months after the court reordered supervised visitation between Miguel and Mariah, the social worker learned Miguel had been paroled. During the time Miguel was out of custody, he did not contact the social worker to request visitation. The social worker did not know Miguels whereabouts until she discovered he had been returned to custody. Thus, Miguel bears a major share of the blame for his lack of a parent-child relationship with Mariah because of the behavior that caused him to be repeatedly incarcerated and his lack of effort to remain in contact with the Agency when he was out of custody. The Agencys error in not facilitating visitation between Miguel and Mariah for a brief period of time did not prejudice Miguels ability to establish a beneficial parent-child relationship within the meaning of section 366.26, subdivision (c)(1)(A).
DISPOSITION
The judgment is affirmed.
WE CONCUR:
OROURKE, Acting P. J.
AARON, J.
All statutory references are to the Welfare and Institutions Code.