Opinion
G054503
05-17-2017
In re B.F., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. JULIUS J., Defendant and Appellant.
Clare M. Lemon, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minor.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. DP026607-001) OPINION Appeal from an order of the Superior Court of Orange County, Gary G. Bischoff, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed. Clare M. Lemon, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent. No appearance for the Minor.
* * *
Julius J. (the father) appeals the termination of his parental rights to his son, B.F. He contends the juvenile court erred by finding B.F. was adoptable. Because his contention has no merit, we affirm the order.
The Orange County Social Services Agency (SSA) raises the issue as to whether father has standing. As discussed in more detail below, another man, R.G., was granted presumed father status before the father came forward. Even though the father did not seek presumed father status, parents may appeal from the termination of parental rights if they are parties of record. (In re Joseph G. (2000) 83 Cal.App.4th 712, 715.) The father was a party of record and was granted biological father status. The father has standing to appeal. The mother and R.G. are not parties to this appeal.
Following submission of this matter, SSA requested we vacate submission and allow it to file a motion to take additional evidence on appeal, augment the record on appeal, and dismiss the appeal as moot. In view of our conclusion, we deny that request.
I
FACTS
In September 2015, the hospital placed a hold on then three-day-old B.F. after he exhibited withdrawal symptoms at birth. SSA filed a petition alleging substance abuse issues and criminal histories as to both S.F. (the mother) and mother's live-in boyfriend, R.G., the mother's history of mental health issues, and her abuse of B.F.'s siblings.
Detention Hearing
At the hearing, the juvenile court detained B.F. from parental custody and granted presumed father status to R.G. The mother and R.G. denied Indian ancestry at the detention hearing, and the court found the Indian Child Welfare Act did not apply. B.F. was placed with his maternal aunt.
Jurisdiction Hearing
The jurisdiction/disposition report recommended sustaining the petition and releasing B.F. to R.G. under intensive supervision. The juvenile court authorized B.F.'s release to R.G. Shortly thereafter, B.F. was removed from R.G.'s custody after he allowed the mother to have unauthorized contact with the baby. B.F. was ultimately placed with his maternal grandmother (the grandmother). At the dispositional hearing, the court declared B.F. a dependent child and removed him from parental custody.
Six-Month Review
At the six-month review, SSA recommended terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing. The mother and R.G. participated only minimally in their case plans and neither were regularly visiting B.F. B.F. remained in the grandmother's custody. He was determined to be very healthy and developing appropriately. The grandmother remained committed to adopting B.F. if reunification efforts failed. The juvenile court terminated services and set a section 366.26 hearing. Section 366.26 Hearing
All further statutory references are to the Welfare and Institutions Code.
Before the section 366.26 hearing, SSA reported another man, appellant father, claimed paternity of B.F. The father contacted a social worker seeking to gain custody of B.F. after he was released from prison. The mother informed the father of her pregnancy two months into his prison sentence, and he was sure of his biological paternity. The juvenile court authorized funding for a paternity test and ordered SSA to provide the father with service referrals. The father was appointed counsel. Paternity testing showed he shared genetic markers with B.F.
SSA's report for the section 366.26 hearing recommended terminating parental rights and finding B.F. adoptable. B.F. remained bonded with the grandmother, but had no known medical, developmental, or behavioral concerns. The grandmother's home study was incomplete. Potential issues affecting grandmother's ability to adopt included her pending divorce and prior criminal convictions (one for second-degree burglary in 2003 for depositing a fraudulent check and two misdemeanor vehicular convictions that same year). The grandmother also had multiple child abuse reports filed on her, a 2001 report deemed inconclusive for general neglect and a 2007 report based upon the grandmother striking her daughter multiple times in apparent discipline. The 2007 incident resulted in the removal of the grandmother's daughter for six months.
The father was the only parent to appear at the section 366.26 hearing. The juvenile court found the father to be B.F.'s biological father. The father reported having phone and video contact with B.F. The father argued against terminating parental rights, citing B.F.'s bond to the grandmother and the possibility the grandmother's home study might not be approved. SSA contended there was no indication the grandmother's home study would not be approved. SSA also argued that while the child was bonded to the grandmother, there was no "evidence that it would be detrimental to remove him should she not be able to adopt."
The juvenile court found "pursuant to . . . [s]ection 366.26[, subdivision] (c)(1) it is likely the child will be adopted. The fact that the child is not placed in a pre-adoptive home or with a person or family prepared to adopt the child is not a basis for concluding that the child is unlikely to be adopted." The court further determined the father failed to carry his burden on the relative caretaker exception under section 366.26, subdivision (c)(1)(A). The father's speculation as to impediments to the grandmother's adoption, and speculation that B.F.'s relationship with the grandmother would make removal detrimental, were unsupported by the evidence. The court found B.F. adoptable, determined no exceptions to adoption applied, and terminated parental rights as to the father, the mother, and R.G.
II
DISCUSSION
"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.]" (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1204 (Jerome D.).) "'"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.]'" (In re Amelia S. (1991) 229 Cal.App.3d 1060, 1065.) On appeal, we review the juvenile court's decision for substantial evidence. (In re Jennilee T. (1992) 3 Cal.App.4th 212, 223-224.) B.F. Was Generally Adoptable
The issue of general adoptability focuses on the child, whether the child's age, as well as physical and emotional condition are likely to make it difficult to find an adoptive placement. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) In cases where a minor may be considered unadoptable due to age, health, or mental or physical disability, the juvenile court may find the child specifically adoptable based solely on the existence of a prospective adoptive parent. (Id. at pp. 1649-1650.) Under such circumstances, the court may look to any legal impediments to adoption by that particular adoptive parent. (Ibid.) SSA reported B.F. was healthy and had no known medical, developmental, or behavioral concerns. Based on this evidence, the court determined the child was generally adoptable.
The father analogizes this case to Jerome D., supra, 84 Cal.App.4th 1200. In that case, the Court of Appeal reversed the judgment terminating parental rights. (Id. at p. 1203.) There, the child had a close relationship with his mother, and a prosthetic eye that required care and treatment. (Id. at p. 1205.) The prospective adoptive parent expressed a willingness to adopt the child, but had a history of domestic violence with the child's mother, and had not yet completed an application for adoption or undergone an initial assessment. (Id. at pp. 1203, 1205.) The juvenile court found a lack of adoptability based on the assessment's failure to consider the child's relationship with his mother, but only considered the prospective adoptive parent's willingness to adopt. The court found insufficient evidence of general adoptability. (Id. at p. 1205.)
B.F., unlike the child in Jerome D., has neither a medical problem nor a strong bond with a parent. The father complains that the grandmother, although willing to adopt B.F., has not completed her home study and may not be approved as an adoptive parent. But that is not required. (In re Sarah M., supra, 22 Cal.App.4th at p. 1649.) "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. [Citation.]" (Id. at pp. 1649-1650.) Furthermore, the juvenile court's determination that B.F. was adoptable was not based solely on the grandmother's willingness to adopt, as in Jermone D. Here, the court determined B.F. was likely to be adopted, and "[t]he fact that the child is not placed in a pre-adoptive home or with a person or family prepared to adopt the child is not a basis for concluding that the child is unlikely to be adopted."
The record showed B.F. was healthy and reaching age-appropriate developmental milestones. Nothing in the record indicated B.F. could not be adopted by another family if the grandmother was ultimately unable to adopt him. Her willingness to adopt B.F. is further evidence supporting the finding that B.F. would be placed with an approved adoptive family within a reasonable time. There Were No Legal Impediments To B.F.'s Adoption
The father styles his argument as a legal impediment to adoption, but the juvenile court interpreted this argument as a claim under the relative caretaker exception under section 366.26, subdivision (c)(1)(A). However it is styled, the father has failed to demonstrated either the grandmother's inability to adopt or the detriment to removing B.F. from the home. (§ 366.26, subd. (c)(1)(A).) --------
The father misconstrues the standards for general, versus specific, adoptability. He claims B.F. "is only specifically, and not generally, adoptable" due to the child's bond to the grandmother. The father is not arguing that B.F. would not be adoptable in another home, but rather that he should not be. Thus, with respect to the father's claim that the grandmother faces impediments to adoption, they are not especially relevant because B.F. is generally adoptable. In any event, those arguments are not particularly persuasive.
While the grandmother may face some hurdles to adoption, the father's argument that her criminal record, history of child abuse issues, and her marital status are serious impediments to adoption is pure speculation. In any event, the juvenile court made clear that while the grandmother's willingness to adopt B.F. was considered, the child was generally adoptable. The fact that SSA may not ultimately place B.F. with the grandmother was not a basis for finding the child was not adoptable. In any event, SSA had documented the grandmother's criminal and child welfare history, deemed her fit for placement, and her home study was continuing with no impediments. SSA's assessment also noted the grandmother's marital status, a long separation from her husband and a more than 10-year-old divorce proceeding, but stated the grandmother expected the divorce to be finalized in 2017. Under these conditions, the court had sufficient evidence to determine the grandmother was likely to adopt B.F. within a reasonable amount of time.
Furthermore, the father failed to articulate the detriment B.F. would suffer from being removed from the grandmother's home. There was no direct evidence presented that B.F.'s bond with the grandmother would make removal detrimental to the child. The father merely recites testimony and evidence that the grandmother provided a successful and bonded placement for B.F. SSA's own reports documented B.F. was well cared for, playful, and developing appropriately. The fact that B.F. was doing well in the grandmother's care does not prove he would detrimentally suffer from an alternate placement, indeed the fact that he is a healthy, happy child tends to suggest he would do well in a variety of settings. The juvenile court properly found there was clear and convincing evidence of B.F.'s adoptability, and there is substantial evidence to support that finding.
III
DISPOSITION
The order is affirmed.
MOORE, J. WE CONCUR: O'LEARY, P. J. IKOLA, J.