Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County No. CK60478, Donna Levin, Referee. Order
Christopher R. Booth, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Melinda White-Svec, Deputy County Counsel for Plaintiff and Respondent.
EPSTEIN, P. J.
Jerome C. (father) appeals from the order terminating his parental rights over his sons O.C. and J.C. Father contends the court’s finding that the boys are adoptable is not supported by sufficient evidence. We do not agree.
FACTUAL AND PROCEDURAL SUMMARY
In 2005, the Department of Children and Family Services (DCFS) filed a petition on behalf of nine-month-old O.C. and three-day-old J.C. The petition also included J.C.’s twin brother and another child, neither of whom is a subject of this appeal. The twins tested positive for cocaine at birth. Mother and father each had a history of substance abuse. All four children were detained, and the petition was partially sustained.
Father was incarcerated in 2006. Reunification services to both parents were terminated in January 2007. In July 2007, DCFS reported that O.C. and the twins were adoptable and requested more time to find an adoptive placement since the foster parents were not interested in adoption. Mother filed a petition under Welfare and Institutions Code section 388, which the court granted in July 2007, returning all children to her custody.
All statutory references are to the Welfare and Institutions Code.
In December 2007, DCFS filed a supplemental petition, alleging that mother had relapsed and was arrested for violating her parole. The children were detained, and the supplemental petition sustained. The court did not order reunification services and instead scheduled a section 366.26 hearing. A maternal aunt and uncle from South Carolina expressed interest in adopting O.C. and the twins. The South Carolina relatives were evaluated over the next year, but in July 2009 DCFS reported that their case was either denied or withdrawn. The court continued the section 366.26 hearing for DCFS to locate an adoptive home for the three boys. J.C. and O.C. were developmentally on target for their ages. J.C.’s twin brother, who had been receiving Regional Center services, was diagnosed with cerebral palsy and seizure disorder and was placed at a medical facility.
In September 2009, mother, who had completed several programs, filed a section 388 petition requesting that the children be placed with her, or that she receive additional reunification services. In February 2010, the court granted mother additional services and took the section 366.26 hearing off calendar.
Also in February 2010, a maternal aunt of the boys, who resides in New York, contacted DCFS and expressed interest in adopting O.C. and J.C. She had wanted to adopt the children as far back as 2005, but did not go forward with adoption at the time because of a problem with space in her home. That problem had been resolved. The New York aunt and uncle received consistently positive evaluations over the next year. DCFS reported that they had two children of their own and a steady middle-class income, and could afford to take care of two more children. They had no criminal or child welfare referral history. They kept in touch with DCFS, sent family pictures and holiday presents for the boys, and remained cooperative and committed to the adoption process. A relative and foster parent home study was approved for their home in February 2011, but DCFS reported that New York state would not undertake an adoptive home study until parental rights were terminated.
Meanwhile, the court terminated mother’s reunification services. Father remained incarcerated, but he occasionally contacted DCFS to express his opposition to placing the children outside California or to suggest that someone in his own family was interested in adopting O.C. and J.C. After investigation, DCFS concluded that no paternal relatives were appropriate or willing to adopt the children.
At the section 366.26 hearing in May 2011, DCFS recommended terminating parental rights and proceeding with O.C.’s and J.C.’s adoption by their New York aunt and uncle. Father’s counsel objected to placing the children out of state with relatives they did not know and terminating father’s parental rights before an adoptive home study was approved. The court found O.C. and J.C. adoptable by clear and convincing evidence. It terminated the parents’ rights with respect to the two boys, and ordered them placed with the New York aunt and uncle.
Father filed a timely notice of appeal.
DISCUSSION
Father challenges only the court’s finding that O.C. and J.C. are adoptable.
Before a court may terminate parental rights, it must find by clear and convincing evidence that it is likely the child will be adopted within a reasonable time. (§ 366.26, subd. (c)(1); In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205.) On appeal, we review the record for substantial evidence supporting the court’s finding that the children are adoptable. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.)
Generally, whether a child is adoptable depends on the child’s age, physical condition, and emotional state. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) To be adoptable, the child need not be in an adoptive home, or have an adoptive parent waiting even though such a person’s expressed willingness to adopt indicates that the child is generally likely to be adopted. (Id. at pp. 1649-1650.) When a prospective adoptive parent is willing to adopt a child otherwise considered unadoptable because of age or physical or emotional problems, the court must consider whether there is any legal impediment to that specific adoption. (Id. at p. 1650.)
The record supports a finding that J.C. and O.C. are generally adoptable. Both boys are under seven years old, so their age does not render them difficult to place for purposes of section 366.26, subdivision (c)(3). DCFS has consistently reported that these children are adoptable, healthy, and developmentally on target. The interest of the New York relatives in adopting the boys is further evidence that they are generally adoptable. (In re Sarah M., supra, 22 Cal.App.4th at p. 1649-1650.)
Father cites DCFS’s three-year unsuccessful search for an adoptive home for the boys as evidence that they are not likely to be adopted within a reasonable time. The record does not indicate that the delay in this case was due to the boys’ characteristics as opposed to other factors, such as the juvenile court’s accommodation of the mother’s efforts at rehabilitation, DCFS’s initial search for an adoptive home for all three boys rather than only O.C. and J.C., and the aborted adoption (for reasons unknown) after more than a year of evaluation of the South Carolina aunt and uncle.
Even assuming that the juvenile court’s adoptability finding was specifically based on the New York relatives’ interest in adopting the boys, rather than on the boys’ general adoptability, father points to no legal impediment to that adoption. He acknowledges that the absence of a completed adoptive home study is not such an impediment. (See In re Marina S. (2005) 132 Cal.App.4th 158, 166; see also In re Brandon T. (2008) 164 Cal.App.4th 1400, 1410.) He argues only that DCFS presented little information about the New York relatives, and that none of it was verified.
Father fails to acknowledge the significance of the social worker’s report that the New York relatives have no criminal or child welfare history, are financially capable of providing for the boys, and are committed to adopting them. He also ignores the presence in the record of the New York relatives’ approved relative and foster parent home study. In re Jerome D., supra, 84 Cal.App.4th at p. 1205, on which father relies, is distinguishable precisely because the adoptability assessment in that case did not address the prospective adoptive father’s “criminal and CPS history” and thus was solely based on his desire to adopt. In contrast, the record in this case contains substantial evidence that the New York relatives had already gone through a background check and had been approved as foster parents.
Father claims that the social worker’s report contains unverified information, but section 281 authorizes the juvenile court to consider a social worker’s report in determining “any matter involving the custody, status, or welfare of a minor.” A social worker’s report, even when based on hearsay, “is competent and admissible proof in a dependency proceeding [citation]....” (In re Jonique W. (1994) 26 Cal.App.4th 685, 698.) A parent has a due process right to object to the contents in a social worker’s report, examine the social worker or any hearsay declarant, and provide rebuttal evidence. (Ibid.) Here, mother requested a contested section 366.26 hearing because of her relationship with the children. Father joined in mother’s request, but his only objections to the children’s removal to New York were on the grounds that the boys did not know their New York relatives, and there was no approved adoptive home study. The court denied the request for a contested hearing. On appeal, father does not argue that he sought to and was not allowed to contest information contained in the social worker’s report.
We conclude that the court’s adoptability finding is supported by substantial evidence.
DISPOSITION
The order is affirmed.
We concur: WILLHITE, J. SUZUKAWA, J.