In re Charly G.

Filed 3/7/07 In re Charly G. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Gary M. Bubis, Referee. Affirmed.

Florentina G. and Carlos G. appeal a judgment of the juvenile court terminating their parental rights to their minor son Charly G. under Welfare and Institutions Code section 366.26.^[1] Carlos challenges the sufficiency of the evidence to support the court's finding that Charly was likely to be adopted within a reasonable time.^[2] Florentina joins in Carlos's contention.

The San Diego County Health and Human Services Agency (Agency) filed a motion to augment the record along with its Respondent's brief.^[3] The Agency seeks to introduce an interim review report it alleges contains new evidence showing the parents' challenge to adoptability is moot. Carlos filed an opposition to the motion. We affirm the judgment and deny the motion to augment.

FACTUAL AND PROCEDURAL BACKGROUND

Charly was born in November 2005. Agency filed a petition in juvenile court on behalf of newborn Charly under section 300, subdivision (b). The petition alleged Charly was born with a positive toxicology for methamphetamines. Charly was at risk of suffering serious physical harm or illness because of Florentina's long history of drug use. The petition further alleged Carlos was unable to protect and supervise Charly. The Agency's detention report revealed Florentina had an extensive history with child protective services with referrals alleging neglect, substance abuse, and sexual abuse. She had seven or eight other children, five of which had been in the dependency system. At the detention hearing, the court found a prima facie showing had been made on the allegations of the petition. The court ordered Charly detained in out-of-home care and granted supervised visitation.

According to the jurisdiction/disposition report, the social worker recommended that under section 361.5, subdivision (b)(10) and (11)^[4]no reunification services be provided to Florentina. Florentina admitted that she was "battling a strong addiction" and regularly used drugs during the past three years. She further admitted to using drugs about one week before Charly was born. She did not have stable housing, had recently engaged in criminal activity, and was on probation. In addition, the juvenile court had terminated her parental rights to two of her children. The social worker inquired as to Charly's paternity and Florentina stated that Carlos was Charly's father and she had no doubts as to the paternity.

In an interview with social workers, Carlos said he used methamphetamines and marijuana and had used drugs as recently as two days before his interview. However, Carlos expressed his desire to reunify with Charly and showed his willingness to comply with reunification services. The social worker recommended that the court order Carlos to participate in services and the Substance Abuse Recovery and Management Services (SARMS) program once his paternity was established.

The court held an initial jurisdiction hearing in December 2005. Carlos appeared at the hearing with counsel. The court continued the hearing because of a conflict and a contested jurisdiction and disposition hearing was held in January 2006. Carlos and Florentina did not appear at the contested hearing but were represented by counsel. The court received in evidence the Agency's reports and found the allegations of the petition to be true by clear and convincing evidence. The court declared Charly a dependent and placed him in licensed foster home. Under section 361.5, subdivision (b)(10) and (11), no reunification services were provided to Florentina. In addition, the court found Carlos was not entitled to reunification services because of his alleged father status. The court scheduled a section 366.26 selection and implementation hearing.

In a section 366.26 assessment report, social worker Rebecka Tolson recommended parental rights be terminated. Carlos's whereabouts had become unknown and Florentina was in immigration detention awaiting a deportation hearing. The Agency arranged for Florentina to have visitation with Charly while she was in detention. Tolson observed Florentina's interactions with Charly and noted Florentina was affectionate with Charly and acted appropriately. She fed Charly, held him, and Charly appeared comfortable during their interactions together. However, Tolson believed Charly was eager to return to the caregiver's arms and was readily soothed by the caregiver's voice.

Tolson assessed Charly as an adoptable child because of his age, good health, and his easygoing personality. Although a petite baby, he did not suffer from any severe medical problems. Tolson reported that because Charly had been exposed to drugs before birth, he received an in-home developmental assessment. The assessment indicated Charly exhibited minor developmental delays relating to motor and cognitive skills. These concerns led to Charly's acceptance into the Early Start Program. As a participant in the program, Charly would receive biweekly in-home visits and participate in 45-minute sessions to address the delays. Despite the delays, Charly's caregivers remain committed to adopting him. In addition, Charly's two sisters had been placed in the same home and the caregivers expressed a desire to become their foster parents. Tolson noted a home study analysis had been initiated by the Agency. In addition to the caregivers, the Agency had identified 29 other families with approved home studies interested in adopting a child like Charly.

The court held an initial section 366.26 hearing in May 2006. Carlos appeared at the hearing with his attorney, filed his paternity questionnaire, and requested that the court order a paternity test. The court issued the order and continued the hearing.

Before the contested section 366.26 hearing took place, the Agency filed an ex parte application and an addendum report. The application requested that the court authorize Charly to undergo an MRI as prescribed by Charly's pediatrician. Charly's pediatrician determined Charly has a sacral dimple on his lower back and that an MRI would determine whether the dimple is tethered to the spinal cord.^[5] If the sacral dimple is tethered, it could necessitate surgery in order to correct the condition. In the addendum report, Tolson emphasized that Carlos and Florentina had not addressed the risk factors that led to the dependency, namely their long history of drug abuse. In addition, both parents had been deported to Mexico after attempting to unlawfully enter the United States. Tolson believed Charly did not have a relationship with Florentina and Carlos and recommended that parental rights be terminated.

Tolson testified at the section 366.26 hearing that Carlos did not submit to a paternity test. He had traveled to Mexico before the test was scheduled to take place and had yet to return to the United States. After considering the Agency's reports, Tolson's testimony, and arguments of counsel, the court found by clear and convincing evidence that Charly was likely to be adopted within a reasonable time if parental rights were terminated. The court terminated Carlos's and Florentina's parental rights.

DISCUSSION

I

Florentina and Carlos challenge the sufficiency of the evidence to support the juvenile court's finding that Charly was adoptable. They contend Charly suffers from developmental delays and a sacral dimple thereby rendering him unadoptable.

A

Initially, Agency argues that Carlos lacks standing to appeal because of his status as an alleged father. An alleged biological father who appears at the earliest practical point and attempts to join the dependency proceeding has standing to appeal. (In re Baby Boy V. (2006) 140 Cal.App.4th 1108, 1115-1117.) The alleged father may attempt to join the proceeding by promptly asking the dependency court "for a finding of paternity, blood testing, reunification, or any other relief." (In re Joseph G. (2000) 83 Cal.App.4th 712, 714.) Here, Florentina identified Carlos as Charly's father at the start of the proceedings. Carlos met with social workers before the jurisdiction and disposition hearing and conveyed his willingness to reunify with Charly. He appeared at the initial jurisdiction hearing and when he did not appear at subsequent hearings, he was represented by counsel. After appearing at an initial section 366.26 hearing, Carlos requested a paternity test. The court ordered the test and continued the hearing. However, Carlos did not appear for the test because he traveled to Mexico and was unable to legally reenter the United States. The court terminated Carlos's parental rights at the section 366.26 hearing. Under such circumstances, Carlos has standing on appeal to raise issues concerning his parental interests.

B

Second, Agency filed a motion to augment the record to include an interim review report setting forth new evidence pertaining to Charly's development and MRI. Agency argues the new evidence renders the challenge to the court's finding of adoptability is moot. Alternatively, Agency asserts the record before the court contains sufficient evidence to support the court's finding of adoptability. We deny Agency's motion to augment the record. Appellate courts rarely accept postjudgment evidence or evidence that is developed after the challenged ruling is made. (See In re Zeth S. (2003) 31 Cal.4th 396, 405, 413-414.) This is so in part because 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 interim review report was not before the juvenile court at the time of the proceedings in question nor part of the juvenile court case file, it is inappropriate to augment the record with them. (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.)

C

In any event, a review of the record that was before the juvenile court at the time it terminated parental rights shows sufficient evidence to support a finding of adoptability. When reviewing a court's finding a child 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 the 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 view the record favorably to the juvenile court's order and affirm the order even if substantial evidence supports a contrary conclusion. (Id. at pp. 52-53.) The parent has the burden of showing 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 within a reasonable time. ( 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 adoptability, 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, italics omitted.)

Carlos and Florentina claim Charly was not adoptable because he was developmentally delayed and might have a sacral dimple in his lower back. About four months before the section 366.26 hearing, Charly received a developmental assessment to address concerns stemming from his prenatal drug exposure. The assessment clearly noted the delays were minor. Since the evaluation, Charly has been participating in the Early Start Program that addresses and closely monitors his delays. No grave concerns have been reported concerning Charly's developmental health during this time period. Further, the possibility a child may have future problems does not indicate the child will likely not be adopted. (In re Jennilee T. (1992) 3 Cal.App.4th 212, 223-225.) Nothing in the record suggests a future surgery to correct the sacral dimple renders him unadoptable. The record shows Charly has remained in the same foster home since he was three days old. His caregivers are aware of the sacral dimple and possible surgery yet the record does not show their ongoing commitment to adopt him has weakened. In the event the caregivers could not adopt Charly, the Agency identified 29 approved adoptive families willing and able to adopt a child like Charly. The evidence of these families "willing to adopt a child of [this] 'age, physical condition, and emotional state' " is relevant to evaluating the likelihood of a child's adoption. (In re Jerome D. (2000)84 Cal.App.4th 1200, 1205.) In addition, it is the social worker's expert opinion, Charly's young age, pleasant disposition, good physical health, and lack of serious developmental issues favored his being adopted. The court was entitled to find the social worker's opinion credible and give great weight to her assessment. We cannot reweigh the evidence or substitute our judgment for that of the trial court. (In re Casey D., supra, 70 Cal.App.4th at pp. 52-53.) Substantial evidence supports the court's finding of adoptability.

DISPOSITION

The judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

HALLER, J.

IRION, J.

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^[1] All statutory references are to the Welfare and Institutions Code.

^[2] In Florentina's opening brief, she alleged violations of notice and inquiry under the Indian Child Welfare Act. She subsequently filed a motion to strike the argument asserting the record does not support the argument. On December 11, 2006, this court granted the motion. Therefore, we will not consider her argument as it relates to this issue on appeal.

^[3] The Agency filed a motion to augment the record when it filed its respondent's brief. Carlos subsequently filed an opposition to the motion. On December 20, 2006, this court ordered that the motion to augment the record be considered concurrently with the appeal.

^[4] Section 361.5, subdivision (b) provide in part: "Reunification services need not be provided to a parent . . . described in this subdivision when the court finds, by clear and convincing evidence, any of the following: [] (10) That the court ordered termination of reunification services for any siblings or half-siblings of the child because the parent . . . failed to reunify with the sibling or half-sibling after the sibling or half-sibling had been removed from that parent . . . pursuant to Section 361 . . . and that, according to the findings of the court, this parent . . . has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half-sibling of that child from that parent . . . . [] (11) That the parental rights of a parent over any sibling or half-sibling of the child had been permanently severed, and this parent is the same parent described in subdivision (a), and that, according to the findings of the court, this parent has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half-sibling of that child from the parent."

^[5] "A sacral dimple is an indentation, present at birth, in the skin on the lower back. In the vast majority of cases, sacral dimples are harmless and don't require treatment. Rarely, a sacral dimple may indicate a serious underlying abnormality of the spine. . . . In the rare occasion that an abnormality is discovered, treatment depends on its underlying cause and may include surgery." (See [as of Mar. 5, 2006].)