In re Dustin R.
Filed 4/6/07 In re Dustin R. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
In re DUSTIN R., a Person Coming Under the Juvenile Court Law. | |
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. DAVID R., Defendant and Appellant. | D049555 (Super. Ct. No. EJ2564) |
APPEAL from a judgment of the Superior Court of San Diego County, Gary M. Bubis, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.
David R. appeals a judgment terminating his parental rights to his minor son Dustin R. under Welfare and Institutions Code section 366.26.[1] David contends the court erred by finding Dustin adoptable on the basis of an inadequate adoption assessment report. He also contends the court lacked sufficient evidence to support its finding that Dustin was adoptable. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Dustin was born in January 2005. About five months before he was born, police officers responded to a call after a witness saw Tiffany C.,[2]Dustin's mother, being "thrown" out of a car. According to the police report, David was driving a car at a high rate of speed. Tiffany was in the car and pleaded with David to stop because she feared for her life. She claimed David threatened to kill her and he had punched her in the stomach. Shortly after Dustin was born, David and Tiffany agreed to participate in voluntary services. Services included drug testing, domestic violence classes, and counseling.
In March 2005 police officers responded to a domestic disturbance incident at David and Tiffany's home. Tiffany claimed that David had hit, pushed, and choked her. After David's arrest, Tiffany claimed the incident was a misunderstanding and minimized the violence committed against her. The San Diego County Health and Human Services Agency (the Agency) filed a petition in the juvenile court on behalf of Dustin under section 300, subdivision (b). The petition alleged Dustin was exposed to violent confrontations in the home. David and Tiffany minimized the seriousness of the incidents which placed Dustin at risk of serious physical harm.
At the detention hearing, the court ordered Dustin detained and granted the social worker discretion to detain Dustin with relatives following an evaluation. The court ordered supervised visits for David and Tiffany and set a jurisdiction and disposition hearing.
In its jurisdiction and disposition report, the Agency noted Dustin had been placed in the approved home of his maternal great aunt and uncle. The social worker recommended Dustin remain placed with his relative caregivers. David initially separated from Tiffany but later resumed living with her against the recommendations of the social workers. David did not believe his relationship with Tiffany was a domestic violence relationship. He also did not understand the effects that violence in the home could have on children. David continued to deny responsibility for his actions and Tiffany continued to minimize the incidents and at times blamed herself for David's actions.
At the contested jurisdiction and disposition hearing, David appeared in court and was represented by counsel. The court declared Dustin a dependent under section 300, subdivision (b) and ordered he remain in the care of his relatives. The court ordered David to comply with the provisions of the case plan.
In August 2005 the Agency placed Dustin with his maternal grandparents. In the subsequent months, David made little progress with services. According to the six and 12-month review reports, David enrolled in a 52-week domestic violence course but did not attend a single class. He told social workers that he did not want services. David also did not attend individual counseling sessions and did not complete a parenting class. Although the court ordered David to attend a Substance Abuse and Recovery Management Systems program, he was terminated for lack of participation and had tested positive for methamphetamine use. The social worker assessed David as having a severe drug addiction and as not being able to safely parent Dustin because he never engaged in services to address domestic violence.
At the 12-month review hearing, the court found returning Dustin to David's custody would create a substantial risk of detriment to Dustin. The court found Dustin had not made substantive progress with his case plan, terminated services, and set a section 366.26 selection and implementation hearing. Dustin remained placed with his maternal grandparents.
At the selection and implementation hearing, the court received in evidence the
Agency's section 366.26 report. The report indicated adoption as Dustin's permanent plan. The social worker described Dustin as an adorable child. He was in excellent health, developmentally on target, and happy. Dustin had been living with his maternal grandparents for more than one year by the time of the section 366.26 hearing. Dustin was thriving and very bonded to his grandparents and the grandparents met all of Dustin's needs. The social worker noted the Agency initiated a home study that would include a social and criminal assessment. In the event the caregivers are unable to adopt Dustin, there are 35 families with approved home studies interested in a child like Dustin.
After hearing arguments and considering the evidence, the court found by clear and convincing evidence that Dustin was adoptable and none of the exceptions to adoption in section 366.26, subdivision (c)(1) applied to preclude terminating parental rights. The court terminated David's parental rights and referred Dustin for adoptive placement.
DISCUSSION
I
David contends the court erred by relying on the Agency's section 366.26 report to support terminating his parental rights. Specifically, he asserts the Agency: (1) did not submit an adoption assessment report; and (2) had not yet conducted a home study including the criminal and social assessment of the grandparents as required under section 366.21, subdivision (i).
A
To the extent David is challenging the sufficiency of the Agency's section 366.26 report to qualify as an adoption assessment report, he has forfeited the issue by not raising it in the trial court. (In re Crystal J. (1993) 12 Cal.App.4th 407, 411; In re Aaron B. (1996) 46 Cal.App.4th 843, 846; In re Urayna L. (1999) 75 Cal.App.4th 883, 886.) The agency filed its section 366.26 report in September 2006, in anticipation of the section 366.26 hearing. The report included a permanency planning assessment, a prospective caregiver assessment, and an analysis of the likelihood of adoption. Thus, David was aware the Agency was recommending terminating his parental rights based on its assessment of Dustin's adoptability and best interests. At the section 366.26 hearing, David's counsel did not object to the submission of the Agency's report and gave no indication that David considered the report to be deficient in any way. David has forfeited this argument on appeal. (See In re Crystal J., supra, 12 Cal.App.4th at p. 411.)
B
Even had David not forfeited this issue, an assessment report need only substantially comply with the statutory requirements. (In re John F. (1994) 27 Cal.App.4th 1365, 1378; In re Diana G. (1992) 10 Cal.App.4th 1468, 1481.) Section 366.21, subdivision (i) requires the Agency to prepare an adoption assessment report that includes an evaluation of the minor's medical, developmental and emotional status. ( 366.21, subd. (i)(3), 366.22, subd. (b)(3).) The purpose of the assessment report is to provide the juvenile court with information necessary to determine whether adoption is in a child's best interests. (See In re Dakota S. (2000) 85 Cal.App.4th 494, 496.) Where an assessment is challenged as incomplete, the reviewing court looks at the totality of the evidence before it; deficiencies go to the weight of the evidence and may prove insignificant. (In re John F., supra, 27 Cal.App.4th at p. 1378; In re Crystal J., supra, 12 Cal.App.4th at p. 413.)
Here, the Agency's section 366.26 report substantially complied with statutory requirements and sufficiently addressed Dustin's adoptability. In the report, the social worker opined Dustin was adoptable because he was physically and emotionally healthy. The social worker described Dustin as attractive, sociable and developmentally on target. The social worker believed Dustin deserved a permanent home with his grandparents.
In addition, although the social worker acknowledged an adoptive home study had not yet been completed, there is no indication in the record that the grandparents have a criminal or Child Protective Services history. Instead, the court, in its orders, consistently referred to the grandparents' home as an "approved home of a relative." Based on the court's references to the grandparents' home as an "approved home," it can reasonably be inferred the Agency previously conducted a criminal and child welfare assessment of the home under section 361.4[3]before placing Dustin. Further, David never challenged the appropriateness of Dustin's placement in the grandparents' home during the course of the dependency proceedings. The social worker also had no
concerns about the grandparents' ability to adopt. Dustin had been living with his grandparents for more than one year and they are committed to adopting him. There are also 35 other families willing to adopt a child like Dustin. Where, as here, "evidence of a minor's adoptability 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. (1994) 22 Cal.App.4th 1642, 1651.)
In spite of any deficiencies, the section 366.26 report contained substantial evidence of Dustin's adoptability, including his general characteristics and the interest of several prospective adoptive families. The totality of the circumstances shows the court had sufficient information to determine there were no impediments to Dustin being adopted. Adoption was the appropriate permanent plan for Dustin.
II
To the extent David challenges the sufficiency of the evidence to support the court's finding Dustin was adoptable, his argument has no merit. 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, 52-53.) 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 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); 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 re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650, italics omitted.)
The social worker reported Dustin as adoptable because of his age, attractiveness, and good health. Dustin does not suffer from cognitive delays and the grandparents want to adopt him. They have shown their ability to care for Dustin and provide him with a stable and nurturing home. In the event the grandparents are unable to adopt, there are 35 other adoptive families willing to adopt a child with Dustin's characteristics. Substantial evidence supports the court's finding of adoptability.
DISPOSITION
The judgment is affirmed.
O'ROURKE, J.
WE CONCUR:
BENKE, Acting P. J.
NARES, J.
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[1] All statutory references are to the Welfare and Institutions Code.
[2] Tiffany is not a party to this appeal.
[3] Section 361.4 states, in relevant 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 . . . ."
