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In re Roy L.

California Court of Appeals, Fourth District, First Division
Mar 11, 2008
No. D051662 (Cal. Ct. App. Mar. 11, 2008)

Opinion


In re ROY L., JR., et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. ROY L., SR., Defendant and Appellant. D051662 California Court of Appeal, Fourth District, First Division March 11, 2008

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. SJ11403A-C Gary M. Bubis, Judge.

McDONALD, J.

Roy L., Sr., (Father) appeals a judgment terminating his parental rights to his minor sons, Andrew, Elijah and Roy, Jr., (together the minors) under Welfare and Institutions Code section 366.26. Father challenges the sufficiency of the evidence to support the court's findings that the minors are adoptable.

Because appellant Roy L., Sr., and minor Roy L., Jr., share the same name, for purposes of this opinion, we refer to Roy L., Sr., as Father and the minor as Roy.

Statutory references are to the Welfare and Institutions Code unless otherwise specified.

The San Diego County Health and Human Services Agency (Agency) filed a motion to augment the record along with its respondent's brief. The Agency seeks to introduce an interim review report it alleges contains new evidence showing Father's challenge to adaptability is moot. Father filed an opposition to the motion. We affirm the judgment and deny the motion to augment.

FACTUAL AND PROCEDURAL BACKGROUND

In December 2004 the Agency filed a petition on behalf of then three-year-old Roy, two-year-old Andrew and one-year-old Elijah under section 300, subdivision (b). The petition alleged Father's whereabouts were unknown and the minors were in need of the court's protection. Father was not able to provide the minors with an adequate home or necessities of life, including food and water.

The detention report revealed a prior history with child welfare services including allegations of emotional abuse and general neglect. In addition, the minors' parents had a history of domestic violence and they had engaged in physical altercations in the presence of the minors. Father admitted to social workers he had a history of methamphetamine use. The court detained the minors in out-of-home care and subsequently declared them dependents of the court. The court ordered Father to receive services, including treatment for drug abuse.

During the next 12 months of reunification services, Father participated in substance abuse services. He initially tested positive for drug use but later made progress. He completed an outpatient treatment program and participated in domestic violence classes. At the 18-month review hearing, the Agency reported Father had relapsed, he had not participated in therapy or secured a stable home. The court terminated all reunification services for the parents and scheduled a selection and implementation hearing under section 366.26.

During the reunification period, the minors lived together in foster care until December 2006 when they were placed with their maternal grandmother. The grandmother wanted to adopt the minors. The grandmother had no criminal history or child welfare referrals.

In a section 366.26 assessment report, the social worker assessed the minors as adoptable. The minors were in good health and developmentally on target. Their grandmother wanted to adopt them and numerous other families were willing to adopt a sibling set like this one should the grandmother be unable to adopt.

The social worker noted the grandmother did not disclose to the Agency she moved to a new home in January 2007 after receiving an eviction notice at her previous home. This caused some concern regarding the grandmother's ability to be honest with the Agency. The Agency learned the grandmother was the legal guardian of another grandson who had been arrested and charged with assault. The grandmother had not disclosed that this grandson was living with her. She informed the Agency this grandson would not live with her again while she had custody of the minors. The social worker did not believe these circumstances made the grandmother an inappropriate caregiver and instead reported it was in the minors' best interests to remain with their grandmother. The minors were bonded to her. Roy and Andrew indicated they were happy living with their grandmother and the grandmother remained committed to the boys. The social worker visited the grandmother's home and observed she was providing the boys with a safe, nurturing and clean home.

At the section 366.26 selection and implementation hearing, the trial court received the assessment report in evidence without objection and counsel for Father did not cross-examine the social worker concerning the report's contents. The court found by clear and convincing evidence the minors were adoptable and that none of the exceptions to adoption in section 366.26, subdivision (c)(1) applied to preclude termination of parental rights. The court terminated Father's parental rights and referred the minors for adoptive placement.

Effective January 1, 2008, the Legislature amended and renumbered section 366.26, subdivision (c)(1). (Stats. 2006, ch. 838, § 52.) Because the proceedings at issue here occurred before the statutory change, we refer to the earlier version of the statute.

DISCUSSION

Father challenges the sufficiency of the evidence to support the court's finding the minors were adoptable. Father contends: 1) the minors' grandmother did not have an approved home study or a criminal background check, bringing her ability to be approved as an adoptive parent into question; and 2) if the grandmother is unable to adopt the minors, there is no evidence suggesting the minors would be adopted within a reasonable time.

A

Initially, the Agency sought to augment the record to include an addendum report setting forth new evidence pertaining to the grandmother's approved adoptive home study and criminal background check. The Agency argues the new evidence renders the challenge to the court's finding of adaptability moot. Alternatively, Agency asserts the record before the court contains sufficient evidence to support the court's finding of adaptability. We deny Agency's motion to augment the record. Appellate courts rarely accept post judgment evidence or evidence developed after the challenged ruling is made. (See In re Zeth S. (2003) 31 Cal.4th 396, 405, 413-414.) Ordinarily an appellate court reviews the correctness of a record that was before the trial court at the time it made its ruling. (Id. at p. 405.) Because Agency's addendum report was not before the juvenile court at the time of the proceedings in question or part of the juvenile court case file, it is inappropriate to augment the record at this time. (See In re Jennifer A. (2002) 103 Cal.App.4th 692, 703-704.) "Making the appellate court the trier of fact is not the solution." (Id. at p. 703.)

B

In any event, a review of the record before the juvenile court at the time it terminated parental rights shows sufficient evidence to support a finding of adaptability. When reviewing a court's finding that a minor is adoptable, we apply the substantial evidence test. (In re Josue G. (2003) 106 Cal.App.4th 725, 732; In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings. We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 52.) Rather, we "accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact." (Id. at p. 53.) The appellant has the burden of showing that there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

The court can terminate parental rights only if it determines by clear and convincing evidence the minor is likely to be adopted. (§ 366. 26, subd. (c)(1).) The statute requires clear and convincing evidence of the likelihood adoption will be realized within a reasonable time. (In re Zeth S., supra, 31 Cal.4th at p. 406; In re Amelia S. (1991) 229 Cal.App.3d 1060, 1065.) In determining adaptability, the focus is on whether a child's age, physical condition and emotional state will create difficulty in locating a family willing to adopt. (§ 366.22, subd. (b)(3); In re David H. (1995) 33 Cal.App.4th 368, 379.) "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 other words, a prospective adoptive parent's willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family." (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650.) We review the court's finding of adaptability for substantial evidence. (In re Josue G., supra, 106 Cal.App.4th at p. 732; In re Lukas B., supra, 79 Cal.App.4th at p. 1154.)

C

Father contends the court erred by finding the minors were likely to be adopted by their grandmother if parental rights were terminated. Father asserts the minors' placement with her was inappropriate because she did not have an approved home study or a completed criminal background check. We first note Father did not present evidence at trial showing the grandmother would not be an appropriate adoptive parent. Second, although the social worker acknowledged in the assessment report that an adoptive home study had not yet been completed, there was no information in the record that the grandmother had a criminal or Child Protective Services history. The assessment report instead showed the grandmother did not have a history with Child Protective Services. Based on this reference, it can reasonably be inferred the Agency previously conducted a criminal and child welfare assessment of the home under section 361.4 before placing the minors in the grandmother's home. Father never challenged the appropriateness of the minors' placement in the grandmother's home during the course of the dependency proceedings. The minors had known their grandmother their entire lives, they had been living with her for several months and she was committed to adopting them. A prospective adoptive parent's suitability to adopt does not constitute a legal impediment to a finding of a child's adaptability. (In re Scott M. (1993) 13 Cal.App.4th 839, 844; see also In re Sarah M., supra, 22 Cal.App.4th at p. 1649 [the issue of adaptability does not require "that the minor already be in a potential adoptive home or that there be a proposed adoptive parent 'waiting in the wings' "].) Further, the section 366.26 hearing is merely the first step to adoption. Under the adoption process to follow, the prospective adoptive parent must undergo additional evaluation, making any initial error by the court harmless. (See In re Diana G. (1992) 10 Cal.App.4th 1468, 1481-1482.)

Section 361.4 states in part: "(a) Prior to placing a child in the home of a relative, or the home of any prospective guardian or other person who is not a licensed or certified foster parent, the county social worker shall visit the home to ascertain the appropriateness of the placement. [¶] (b) Whenever a child may be placed in the home of a relative . . . who is not a licensed or certified foster parent, the court or county social worker placing the child shall cause a state level criminal records check to be conducted by an appropriate governmental agency through the California Law Enforcement Telecommunications System . . . . [¶] (c) Whenever a child may be placed in the home of a relative . . . who is not a licensed or certified foster parent, the county social worker shall cause a check of the Child Abuse Index pursuant to subdivision (a) of Section 11170 of the Penal Code . . . ."

C

Father also asserts the court did not have sufficient evidence to support its finding that the minors were adoptable because there was no evidence showing they would be adopted within a reasonable amount of time. The social worker reported the minors were adoptable because of their good health and loving personalities. The minors do not suffer from cognitive delays and the grandmother wanted to adopt the sibling set. The grandmother has shown her ability to care for the minors and provide them with a stable and nurturing home. In the event the grandmother is unable to adopt, there are 27 other adoptive families willing to adopt a sibling set like this one and numerous other families interested in adopting the boys as individuals. Where, as here, "evidence of a minor's adaptability is not based solely on the existence of a prospective adoptive parent who is willing to adopt the child, the potential adoptive parent's suitability to adopt is irrelevant to the issue of whether the minor is likely to be adopted." (In re Sarah M., supra, 22 Cal.App.4th at p. 1651.) Substantial evidence supports the court's finding of adaptability.

DISPOSITION

The judgment is affirmed.

WE CONCUR: McCONNELL, P. J., AARON, J.


Summaries of

In re Roy L.

California Court of Appeals, Fourth District, First Division
Mar 11, 2008
No. D051662 (Cal. Ct. App. Mar. 11, 2008)
Case details for

In re Roy L.

Case Details

Full title:SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and…

Court:California Court of Appeals, Fourth District, First Division

Date published: Mar 11, 2008

Citations

No. D051662 (Cal. Ct. App. Mar. 11, 2008)