Opinion
A131609
10-25-2011
In re N.P., a Person Coming Under the Juvenile Court Law. SAN FRANCISCO HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. R.P., et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(City and County of San Francisco Super. Ct. No. JD08-3283)
The father and mother, respectively, of three-year-old N.P. appeal from an order of the juvenile court finding that N.P. is adoptable and terminating their parental rights. Father challenges the sufficiency of the evidence that N.P. is adoptable, and mother argues that she was denied counsel in the termination proceedings. We find no merit in these contentions and therefore shall affirm.
Since we affirm the order terminating mother's rights, we do not reach father's separate contention that reversal of that order would mandate reversal of the order terminating his rights as well.
BACKGROUND
In A129827 and A129882 (Dec. 16, 2010 [nonpub. opn.]), this court denied a petition challenging the order of the juvenile court terminating reunification services for both parents and setting a permanency planning hearing under Welfare and Institutions Code section 366.26. The extended history of the dependency proceedings leading to the entry of that order are set forth in that opinion and need not be repeated here. In short, the dependency petition was filed on October 10, 2008, three days after N.P. was born, alleging that N.P. was "at a substantial risk for serious physical harm inflicted nonaccidentally by the mother or the father who are currently involved in a relationship that is characterized by violence." At the 18-month review, held on September 22, 2010, the court found that "both parents have made efforts to reunify with the child and, in some respects, have satisfied those requirements," but emphasized that the 18-month reunification period had lapsed and that "the domestic violence that has arisen is the central focus of the court's concern with respect to the child being returned to the mother and the volatile relationship between both parents." The court found that both parents had made minimal progress in their reunification services and set a permanency planning hearing under section 366.26 for January 26, 2011. Both parents filed writ petitions challenging that order and, on December 16, 2010, this court denied the petitions.
All statutory references are to the Welfare and Institutions Code unless otherwise noted.
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On December 7, 2010, the department filed a report in advance of the termination hearing recommending termination of parental rights and adoption as the permanent plan for N.P. The report states that "During this dependency, the minor has been residing in the relative caregiver placement of her maternal cousin, [A.H.], where she was placed November 18, 2008. The minor is adoptable and Ms. [H.] has expressed her wishes to adopt the minor and to provide a safe and stable environment for the minor until adulthood. The parents failed reunification and the court terminated these services on September 22, 2010." "This will be an open adoption and the minor will be able to visit her parents on a regular basis in the future as arranged between the parents and caregiver, [A.H.] It is hopeful that the parents will continue to play a vital role in the minor's life and have continued contact with the minor on an ongoing basis."
The termination hearing was continued to March 28. At the hearing, the social worker testified that N.P. had been placed with A.H. since N.P. was six weeks old and that A.H. wanted to adopt N.P. She testified that her recommendation was to terminate parental rights and approve adoption as the permanent plan. N.P. calls A.H. "mommy." A.H. has three other children and has support from her family in caring for the children. The other children "are like . . . big siblings" to N.P. N.P. is considered part of the family, which has been responsible for N.P.'s every day needs, including taking her to medical appointments. The social worker expressed "no concerns whatsoever" about A.H. being willing to adopt N.P. She also testified that N.P. had no special needs that would preclude adoption. A.H.'s home had been assessed yearly since the child was placed there and the social worker testified that there was no reason why it could not be an adoptive home for N.P.
DISCUSSION
Substantial evidence
Father argues that the court's order finding that N.P. would likely be adopted was not supported by substantial evidence.
Section 366.26, subdivision (c)(1) provides in part that "[i]f the court determines . . . by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption." "On appeal, we review the factual basis for the trial court's finding of adoptability and termination of parental rights for substantial evidence. [Citation.] We therefore 'presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order.' " (In re Josue G. (2003) 106 Cal.App.4th 725, 732.)
"The issue of adoptability posed in a section 366.26 hearing focuses on the minor, e.g., whether the minor's age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor." (In re Sarah M. (1994) 22 Cal.App.4th 1642, 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." (Id. at pp. 1649-1650, italics omitted.)
N.P.'s placement with A.H. from six weeks after her birth until the hearing some three years later, and A.H.'s unequivocal statement that she wished to adopt N.P. provide substantial evidence that N.P. is adoptable. Father's argument that A.H.'s willingness to adopt N.P. is insufficient is incorrect. Father argues that the evidence was insufficient because there was evidence of only one prospective adoptive home. He relies on In re Carl R. (2005) 128 Cal.App.4th 1051, 1061, where the court held that "where the child is deemed adoptable based solely on the fact that a particular family is willing to adopt him or her, the trial court must determine whether there is a legal impediment to adoption." In that case, the child had cerebral palsy, a seizure disorder, and "severe psychomotor delay." (Id. at p. 1058.) The court observed that "all parties agree Carl is adoptable only because the M. family is willing to adopt him." (Id. at p. 1061.)
Father argues that because the home study for A.H. was incomplete at the time of the termination hearing, it may be that A.H. cannot adopt N.P., in which case there may not be a suitable adoptive home available. But "[c]ase law does not require evidence of additional approved families who are available and willing to adopt the children." (In re A.A. (2008) 167 Cal.App.4th 1292, 1313.) The evidence is that N.P. is a healthy, well-adjusted toddler and father concedes as much. She has no special needs that might prevent someone other than A.H. from adopting her. He suggests that N.P. is not "generally adoptable" by virtue of her strong bond with A.H. Father cites neither evidentiary support nor legal authority to support this novel proposition and we are aware of none. Substantial evidence supports the juvenile court's finding that N.P. is generally adoptable even should A.H. for some reason not adopt her. Right to counsel
Mother argues that although she had an attorney appointed to represent her, she was denied her right to counsel at the termination hearing because the attorney was not present the final day when the court announced its decision. Section 317, subdivision (a)(1) provides that "[w]hen it appears to the court that a parent or guardian of the child desires counsel but is presently financially unable to afford and cannot for that reason employ counsel, the court may appoint counsel as provided in this section." Subdivision (d) of that section provides that "[t]he counsel appointed by the court shall represent the parent, guardian, or child at the detention hearing and all subsequent proceedings before the juvenile court. . . . The representation shall include representing the parent . . . in termination proceedings . . . ."
Mother's attorney was present throughout the termination hearing and cross-examined the social worker at length. He made a closing argument on her behalf. At the conclusion of the hearing on March 28, 2009, the court stated, "I will announce my decision tomorrow morning at 9:00 o'clock. That will give me time to read the [home study] in its entirety. I will waive the parents' appearance." The next day the court orally announced its ruling without receiving any additional evidence or hearing any further argument. Mother's attorney was not present, the only hearing that he did not attend.
Mother argues that because her counsel did not appear on the day the court made its order, there was a structural error in the proceedings requiring reversal of the order. "In Arizona v. Fulminante [1991] 499 U.S. 279, a criminal case in which the erroneous admission into evidence of a defendant's coerced confession was at issue, the United States Supreme Court distinguished constitutional errors called ' "trial errors" ' that ' "occur[] during the presentation of the case to the jury' and the effect of which can 'be quantitatively assessed in the context of other evidence presented in order to determine whether [they were] harmless beyond a reasonable doubt' (id. at pp. 307-308), from other, less common constitutional errors that are 'structural defect[s] affecting the framework within which the trial proceeds' so that they 'defy analysis by "harmless-error" standards' and can never be harmless (id. at pp. 309-310). Structural defects requiring automatic reversal of a criminal conviction typically involve basic protections without which ' "a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair." ' [Citations.] These include total deprivation of the right to counsel, denial of the right of self-representation, trial before a judge who is not impartial, unlawful exclusion of members of the defendant's race from a grand jury, and denial of the right to a public trial." (In re James F. (2008) 42 Cal.4th 901, 914.)
In James F., the court observed "that juvenile dependency proceedings differ from criminal proceedings in ways that affect the determination of whether an error requires automatic reversal of the resulting judgment. The rights and protections afforded parents in a dependency proceeding are not the same as those afforded to the accused in a criminal proceeding. For example, a juvenile court may rely on hearsay contained in a social worker's report to support a jurisdictional finding in a dependency case, although such evidence could not be used to establish guilt in a criminal proceeding. [Citation.] Also, unlike a defendant in a criminal proceeding, '[a] parent at a dependency hearing cannot assert the Fourth Amendment exclusionary rule, since "the potential harm to children in allowing them to remain in an unhealthy environment outweighs any deterrent effect which would result from suppressing evidence" unlawfully seized.' " (In re James F., supra, 42 Cal.4th at p. 915.)
Mother argues that the failure of her counsel to appear on the day the court announced its order was a structural error requiring automatic reversal. Failure of counsel to appear at a hearing at which the court heard no argument and no new evidence was submitted did not affect the structure or framework of the proceedings. There is no suggestion that any rights or objections mother might have asserted were forfeited as a result of the attorney's absence. Thus, harmless error analysis is appropriate. In the absence of structural error, a clear and convincing standard is applied to errors in a juvenile dependency case. (Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 1514-1515.) Mother does not suggest how the outcome of the termination hearing might have been different had her attorney been present when the court announced its decision and we can see no possible difference counsel could have made. The failure of mother's attorney to appear plainly was harmless.
DISPOSITION
The judgment is affirmed.
Pollak, Acting P. J. We concur: Siggins, J. Jenkins, J.