Filed 4/13/17 In re T.D. CA4/2


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO



In re T.D., a Person Coming Under the Juvenile Court Law.

SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

B.D.,

Defendant and Appellant.


E067237

(Super.Ct.No. J262034)

OPINION


APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes, Judge. Affirmed.
William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant.
Jean-Rene Basle, County Counsel, and Danielle E. Wuchenich, Deputy County Counsel, for Plaintiff and Respondent.
B.D. (father) appeals from an order terminating his parental rights to his son, T.D., contending the record does not contain substantial evidence to support the juvenile court’s finding that T.D. will likely be adopted by his prospective adoptive parents within a reasonable amount of time. According to father, the prospective adoptive parents were not screened for criminal records and prior referrals for child abuse or neglect, and there is no evidence the prospective adoptive parents are capable of caring for T.D., who is developmentally delayed and suffers from various physical ailments. Father did not object to the adequacy of the social worker’s preliminary assessment report or argue potential legal impediments to adoption precluded a finding of adoptability, so father forfeited those claims on appeal. We conclude there is substantial evidence to support the juvenile court’s finding of adoptability and, therefore, we affirm the order.
I.
FACTS AND PROCEDURAL BACKGROUND
San Bernardino County Department of Children and Family Services (DCFS) received a referral when R.K. (mother, not a party to this appeal) gave birth to T.D. Mother tested positive for opiates and cannabis. Mother informed hospital personnel that for most of her pregnancy she had been treated at a methadone clinic, but said her transportation “fell through.” Mother tried to quit “cold turkey,” but she relapsed after experiencing painful withdrawals and used heroin during the last month of her pregnancy, including the day before she gave birth. Mother also admitted to using cannabis a month before giving birth. T.D. also tested positive for opiates and was being monitored for withdrawals. Father was incarcerated at the time and, during an interview with social workers, admitted that he too used heroin, but said he had been clean for a month before he was arrested.
DCFS filed a petition with the juvenile court alleging mother and father’s substance abuse, homelessness, and unstable lifestyles placed T.D. at risk of harm, neglect, and abuse (Welf. & Inst. Code, § 300, subd. (b)), and that father could not care for and provide support for T.D. because father was incarcerated (§ 300, subd. (g)). The juvenile court made a prima facie finding that T.D. was a dependent child, and he should be detained and remain in the care and custody of DCFS.
In a report filed for the jurisdictional/dispositional hearing, DCFS reported T.D. was still in the hospital and being weaned off the drugs in his system. After the detention hearing, mother was arrested on outstanding warrants and spent 10 days in custody. Father was released from custody and, since that time, both he and mother had visited T.D. daily in the hospital. Mother and father filed waivers of rights. After an uncontested hearing, the juvenile court declared T.D. to be a dependent of the court, and ordered the child to remain in the custody of DCFS and to be placed in foster care upon his release from the hospital. T.D. was placed with his foster parents 10 days later.
In a report for the six-month status review hearing, DCFS reported that T.D. was developmentally delayed and, at five months of age, he did not roll over or sit independently. T.D. was receiving services from SART (a screening, assessment, referral, and treatment program) and the Inland Regional Center (IRC). T.D. suffered from recurrent urinary tract infections and was treated with antibiotics, and his pediatrician requested authorization from the juvenile court to have T.D. circumcised to correct phimosis and penile adhesions. T.D. also suffered from constipation and gastroesophageal reflux. T.D. was adjusting well to his placement and was bonding with his foster parents, and the foster parents expressed an interest in adopting T.D. Mother and father’s progress on their case plans was minimal, so DCFS recommended the juvenile court terminate reunification services and set a hearing for termination of parental rights and selection of a permanent plan.
At the six-month status review hearing, mother and father objected to termination of reunification services. The juvenile court found by clear and convincing evidence that, although mother and father regularly visited the child, they made only minimal progress on their case plans. The juvenile court also found there was no substantial probability the child would be returned to mother and father within the statutory time frames. The court therefore terminated reunification services and set a hearing under section 366.26 for termination of parental rights and selection of a permanent plan.
Mother and father filed notices of intent to challenge the setting order by petition for writ of mandate. When mother failed to timely file her petition, this court gave her notice that she had 10 days to move for relief from her default. Father’s attorney filed a no-issue letter writ, and this court dismissed father’s petition. Mother did not timely move for relief from her default, so this court dismissed her petition as well.
In a report for the section 366.26 hearing, the social worker reported T.D. was still receiving services through SART and IRC, including physical therapy for stiffness. Although T.D. was eating well, he still suffered from constipation and had trouble swallowing his food. The foster parents asked T.D.’s doctor to refer him to a swallowing study. The social worker opined the child was appropriate for adoption, and the foster parents, who had cared for T.D. since his release from the hospital, had the desire and capacity to care for him. However, the foster parents expressed some reluctance to adopt T.D. because they were considering adopting another special needs child and because T.D.’s “biological parents kept insisting that they were trying to get [T.D.] back.” Nonetheless, the social worker reported the foster parents were “committed to the child[’s] long-term care,” T.D. and the foster family had “developed a mutual attachment,” and the foster parents took T.D. to all of his doctor’s appointments and “constantly advocat[ed] for [T.D.] to get the best and necessary health care that he needs.” Indeed, mother and father developed a good relationship with the foster family and said “that if the child would not be returned to them, they would prefer that the current caregivers adopt [T.D.]” DCFS requested the hearing be continued 180 days to complete an adoption home study. The juvenile court continued the hearing for 90 days.
In an addendum report, DCFS again opined T.D. was appropriate for adoption, and recommended T.D. receive permanency planning services from “Children’s Adoptive Services,” mother and father’s parental rights be terminated, and the permanent plan of adoption be implemented. The social worker reported that, despite his multiple health issues, T.D. was a happy 15-month-old child. T.D. continued to be treated by specialists for urological, gastroenterological, and ear, nose, and throat issues. T.D. was also diagnosed with Hirschsprung’s disease (most likely the cause of his constipation), and he underwent surgery to resection his colon and was fitted with a colostomy bag. Doctors also concluded T.D. required surgery to correct congenital ankyloglossia (which was likely the cause of his trouble swallowing and his reflux). The medically necessary circumcision and tongue surgery were postponed until T.D. could heal from his colon surgery.
The social worker reported T.D. continued to bond with his foster parents, and the foster parents “desir[ed] to legalize their parental relationship with him through adoption.” The foster parents were assessed and were found to have a loving home where they were raising two biological children (three other adult children lived outside the home), two foster children, including T.D., and were permanent guardians of another
 
child. The social worker reported neither foster parent had a criminal record or history of child abuse or neglect. The social worker concluded the foster parents were “committed to raising [T.D.] to adulthood,” and recommended T.D. be freed for adoption by his foster parents.
At the section 366.26 hearing, father’s attorney introduced no evidence, but orally requested that the juvenile court continue the hearing so father could file a petition under section 388 demonstrating changed circumstances. The juvenile court denied the request as untimely. Counsel for the child argued adoption by the foster family was appropriate because T.D. had been in the foster home “since almost birth,” the foster family “worked very hard” to care for T.D. and his medical conditions, and it was the only home T.D. had ever known. Father’s attorney objected to the termination of parental rights and to a finding that T.D. was generally adoptable. Although father agreed T.D. was “in a good home,” he asked for “another opportunity to reunify with his child” and recommended “a lesser permanent plan, such as guardianship” if the court were to terminate his parental rights. Finally, counsel for DCFS argued T.D. was generally or specifically adoptable. The child had been placed with the foster family since his release from the hospital and, although the child had “many medical concerns,” the foster family were meeting all of his needs and were committed to providing the child with permanence.
The juvenile court found by clear and convincing evidence that T.D. was specifically adoptable, terminated parental rights, selected adoption as the permanent plan for the child, and referred the child to the California Department of Social Services or a local licensed adoption agency for adoptive placement.
Father timely appealed.
II.
DISCUSSION
Father contends the juvenile court’s finding that T.D. was specifically adoptable was not supported by substantial evidence because: (1) the record does not establish DCFS complied with its statutory duty to screen the prospective adoptive parents for criminal records and for prior referrals for child abuse or neglect; and (2) the record does not contain evidence that the prospective adoptive parents are capable of caring for T.D. We disagree. Father forfeited his claim regarding the inadequacy of the social worker’s report and potential legal impediments to adoption and, in any event, we must presume the social worker complied with its duty to properly screen the prospective adoptive parents. And we conclude the record does support the juvenile court’s implied finding that the prospective adoptive parents are capable of caring for T.D.
A. Applicable Law
Prior to a permanency hearing, the social worker must prepare a report which assesses, inter alia, “the likelihood that the child will be adopted if parental rights are terminated.” (§§ 361.5, subd. (g)(1)(F), 366.21, subd. (i)(1)(G), 366.22, subd. (c)(1)(F).) The juvenile court may only terminate parental rights if it finds by clear and convincing evidence that the child was likely to be adopted within a reasonable amount of time.
(§ 366.26, subd. (c)(1); In re Zeth S. (2003) 31 Cal.4th 396, 406.) “The question of adoptability usually focuses on whether the child’s age, physical condition and emotional health make it difficult to find a person willing to adopt that child.” (In re B.D. (2008) 159 Cal.App.4th 1218, 1231, citing In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) If a child is found to be generally adoptable, the court does not examine the suitability of a prospective adoptive home. (In re Carl R. (2005) 128 Cal.App.4th 1051, 1061; In re Scott M. (1993) 13 Cal.App.4th 839, 844.)
In some cases, a child who was not generally adoptable because of age, poor physical health, or physical, emotional, or development disability, may still be specifically adoptable because a willing prospective adoptive family has been identified. (In re R.C. (2008) 169 Cal.App.4th 486, 494.) In that situation, the juvenile court must inquire whether there are any legal impediments to the prospective adoptive parents adopting the child. (In re Brandon T. (2008) 164 Cal.App.4th 1400, 1408-1409; In re Sarah M., supra, 22 Cal.App.4th at p. 1650.) The most common legal impediment to adoption addressed in the published decisions is whether a prospective adoptive parent will be able to obtain consent to an adoption from an estranged spouse. (Fam. Code, § 8603, subd. (a); In re G.M. (2010) 181 Cal.App.4th 552, 561-563; In re Sarah M., at p. 1650.) Other relevant legal impediments to adoption are a prospective adoptive parent’s prior felony convictions or referrals for child abuse or neglect. (Fam. Code, § 8712, subd. (c)(1); see In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205.) In addition, when the child will require total care for their entire life, the court’s assessment of adoptability must include consideration of the prospective adoptive parents’ ability to meet the child’s needs. (In re Carl R., supra, 128 Cal.App.4th at p. 1062.)
“On review, we determine whether the record contains substantial evidence from which the court could find clear and convincing evidence that the child was likely to be adopted within a reasonable time. [Citations.] The evidence must be sufficiently strong to command the unhesitating assent of every reasonable mind. [Citation.] We give the court’s adoptability finding the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of the judgment of the trial court. [Citation.]” (In re B.D., supra, 159 Cal.App.4th at p. 1232.) The juvenile court’s implied findings are also reviewed for substantial evidence. (See In re Aurora P. (2015) 241 Cal.App.4th 1142, 1166; see also In re Albert B. (1989) 215 Cal.App.3d 361, 375 [adoptability findings need not always be expressed].)
B. Adequacy of Assessment and Legal Impediments to Adoption
Father contends the juvenile court did not properly consider legal impediments to the prospective adoptive parents adopting T.D. Specifically, father argues the record does not establish DCFS properly screened the prospective adoptive parents for criminal records and for past referrals for child abuse or neglect. When the juvenile court sets a permanency hearing, the social worker must prepare a preliminary assessment of the prospective adoptive parents. (Cal. Rules of Court, rule 5.725(c).) The preliminary assessment must include “a social history [of the prospective adoptive parents], including screening for criminal records and prior referrals for child abuse or neglect . . . .” (§§ 361.5, subd. (g)(1)(D), 366.21, subd. (i)(1)(D), 366.22, subd. (c)(1)(D); see In re Carl R., supra, 128 Cal.App.4th at pp. 1062-1063.)
As father contends, the addendum report filed for the permanency hearing indicates T.D.’s foster mother “reports that she has no criminal or child abuse history,” and that T.D.’s foster father “does not have a criminal record or a child abuse history.” The report does not state one way or the other that DCFS actually screened the foster family as required by statute. However, father did not object to the adequacy of the social worker’s report when the reports were admitted into evidence at the permanency hearing, and he did not argue that his parental rights could not be terminated because potential legal impediments to adoption by the foster family had not been ruled out.
“‘“An appellate court will ordinarily not consider procedural defects or erroneous rulings in connection with relief sought or defenses asserted, where an objection could have been, but was not, presented to the lower court by some appropriate method.” [Citations.]’” (In re G.C. (2013) 216 Cal.App.4th 1391, 1398.) Dependency proceedings are not exempt from the rule of forfeiture. (In re S.B. (2004) 32 Cal.4th 1287, 1293; In re Wilford J. (2005) 131 Cal.App.4th 742, 754.) Relevant for our purposes, the courts have found forfeiture when a parent fails to (1) raise in the juvenile court a legal impediment to adoption (In re R.C., supra, 169 Cal.App.4th at p. 493, fn. 2), (2) object to the complete absence of a statutorily required preliminary assessment of a foster family as prospective guardians (In re Dakota S. (2000) 85 Cal.App.4th 494, 501-502), and (3) object to the adequacy of assessment reports (In re I.P. (2014) 226 Cal.App.4th 1516, 1526; In re G.C., at p. 1399; In re Urayna L. (1999) 75 Cal.App.4th 883, 886-887; In re Crystal J. (1993) 12 Cal.App.4th 407, 411-412).
In In re G.M., supra, 181 Cal.App.4th 552, the social worker identified a married great-aunt as a prospective adoptive parent for the children. (Id. at pp. 556-558.) In the report for the permanency hearing, the social worker indicated the great-aunt was married but separated. (Id. at p. 558.) The appellate court noted the record was silent whether the great-aunt was legally separated from her husband or whether she had secured or could secure her husband’s consent to an adoption. Although the great-aunt appeared for the permanency hearing, “no one called her as a witness to resolve this potential issue one way or the other.” (Id. at p. 560.)
On appeal, the mother in In re G.M. argued the juvenile court erred by not considering the potential legal impediment under Family Code section 8603 to adoption by the great-aunt before terminating parental rights and freeing the children for adoption. (In re G.M., supra, 181 Cal.App.4th at pp. 560-561.) The appellate court acknowledged that potential legal impediments to adoption are relevant in a permanency hearing when the social worker’s opinion that a child was likely to be adopted is based in part on the willingness or commitment of an identified prospective adoptive parent. (Id. at p. 562.) For that reason, the mother could have examined the social worker and/or the great-aunt at the permanency hearing and asked about the great-aunt’s marital status and whether the great-aunt had obtained or could obtain her estranged husband’s consent to an adoption. The juvenile court could then have considered such evidence when evaluating the likelihood that the children would be adopted within a reasonable period of time. (Id. at p. 563.) However, the mother made no such effort. (Ibid.) Therefore, the appellate court concluded the mother failed to properly preserve for appeal her claim of a legal impediment to adoption. (Id. at pp. 562-563, citing In re S.B., supra, 32 Cal.4th at p. 1293 & In re R.C., supra, 169 Cal.App.4th at p. 493, fn. 2.) Moreover, because the mother did not object to the adequacy of the department’s preliminary assessment, she “forfeited the opportunity to now place the blame for the silent record on the department.” (Id. at pp. 563-564, citing In re Crystal J., supra, 12 Cal.App.4th at pp. 411-412.)
Like the mother in In re G.M., father did not object during the permanency hearing that the social worker’s report was inadequate because it did not state whether the foster parents were properly screened for criminal records and prior referrals for child abuse or neglect. Nor did father argue that potential, undisclosed criminal records or prior referrals for child abuse or neglect might constitute a legal impediment to adoption, and that the juvenile court could not make a finding of adoptability and, consequently, could not terminate parental rights until a proper screening was conducted. Therefore, father forfeited his argument on appeal. (In re G.M., supra, 181 Cal.App.4th at pp. 563-564.)
Moreover, DCFS was entitled to the presumption under Evidence Code section 664 that it complied with its official duty to screen the foster family when preparing the preliminary assessment. (Evid. Code, § 664 [“It is presumed that official duty has been regularly performed.”]; D.M. v. Superior Court (2009) 173 Cal.App.4th 1117, 1125 [social services agency entitled to presumption under Evid. Code, § 664 that it regularly performed its duty when preparing reports].) That presumption “‘effectuates the policy of relieving governmental officials from having to justify their conduct whenever it is called into question.’” (Arthur v. Department of Motor Vehicles (2010) 184 Cal.App.4th 1199, 1206, fn. 3, quoting Jackson v. City of Los Angeles (1999) 69 Cal.App.4th 769, 782; see Evid. Code, § 605 [presumptions affecting burden of proof “implement some public policy”].)
The presumption of regularity is rebuttable and affects the burden of proof (Evid. Code, §§ 601, 660), meaning it “impose[s] upon the party against whom it operates the burden of proof as to the nonexistence of the presumed fact.” (Evid. Code, § 606; see In re Levi H. (2011) 197 Cal.App.4th 1279, 1288, fn. 5.) Because father did not affirmatively prove in the juvenile court that DFCS failed to comply with its duty to screen the foster family, the presumed fact—that DCFS did screen the foster family as mandated by law—is now conclusive on appeal. (Page v. City of Santa Rosa (1937) 8 Cal.2d 311, 314 [“the legal presumption that official duty has been regularly performed is conclusive in the absence of contrary proof”]; In re Angelina E. (2015) 233 Cal.App.4th 583, 588 [“In the absence of evidence that the official duty was not performed, the presumption is conclusive.”].)
C. Ability to Care for T.D.
Last, father contends there was no evidence in the record that the prospective adoptive parents were capable of caring for T.D.’s multiple health issues. The social worker’s report for the permanency hearing must include “[a]n evaluation of the child’s medical, developmental, scholastic, mental, and emotional status,” and the preliminary assessment must address the prospective adoptive parents’ “capability to meet the child’s needs” and their “understanding of the legal and financial rights and responsibilities of adoption . . . .” (§§ 361.5, subd. (g)(1)(C)-(D), 366.21, subd. (i)(1)(C)-(D), 366.22, subd. (c)(1)(C)-(D).)
To the extent father claims the social worker’s reports inadequately addressed T.D.’s medical needs and the prospective adoptive parents’ capability to care for T.D., father did not object to the adequacy of the reports, so such a claim is forfeited. (In re G.M., supra, 181 Cal.App.4th at p. 564.) In any event, there is ample, substantial evidence in the record to support the juvenile court’s implied finding that the prospective adoptive parents are capable of caring for T.D.
T.D. was placed with his foster family 10 days after the jurisdictional hearing when he was released from the hospital, and he has remained in their care for the entirety of this case. The report and evidence submitted for the six-month status review hearing indicated the foster family secured services for T.D. through SART and IRC, and they diligently provided for T.D.’s medical needs by taking him to his doctor’s appointments. The foster parents informed the juvenile court that they wished to adopt T.D.
In the report for the permanency hearing, the social worker reported T.D. was still receiving services through SART and IRC. The foster family continued to provide for the child’s medical needs, and the social worker opined the family had the desire and capacity to care for him. Although the foster family expressed some understandable reluctance to adopt T.D. because they were considering adopting another special needs child and because T.D.’s biological parents insisted they wanted to get the child back, the social worker reported the foster parents were “committed to the child[’s] long-term care,” the foster family and the child had bonded, and the foster parents “constantly advocat[ed] for [T.D.] to get the best and necessary health care that he needs.” The social worker also reported that mother and father had a good relationship with the foster family and said “that if the child would not be returned to them, they would prefer that the current caregivers would adopt [T.D.]”
The addendum report reported T.D. was happy and bonding with his foster family, who wished to “legalize” their relationship with the child through adoption. The social worker reported the foster parents continued to provide T.D. with the medical care he needed by taking him to his physician and to specialists. The social worker also reported T.D. had been diagnosed with Hirschsprung’s disease, the probable cause of his constipation, and had undergone surgery to correct it. The social worker opined the foster family were “committed to raising [T.D.] to adulthood.” Counsel for T.D. and for DCFS echoed the addendum report at the permanency hearing by arguing the foster family had provided for the child’s medical needs. Father did not argue otherwise and conceded T.D. was “in a good home.” That T.D.’s prospective adoptive family were committed to and capable of caring for the child and had provided for his medical needs during the dependency was strong evidence they would remain committed and capable of doing so in the future.
Notwithstanding the highly probative evidence that the prospective adoptive family were capable of caring for T.D. in the future, Father contends there was no evidence in the record about possible long-term complications the child may experience from Hirschsprung’s disease, and no evidence that the prospective adoptive parents were capable of handling such complications. We are not persuaded. It was enough for the social worker to report that T.D. was diagnosed with and treated for Hirschsprung’s disease, and to report the foster parents’ continued commitment to caring for the child and providing him with the medical care he needed. The social worker was not required to provide the juvenile court with a detailed prognosis and list of possible complications and long-term side effects associated with the disease.
III.
DISPOSITION
The order terminating parental rights is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER
Acting P. J.
We concur:



MILLER
J.



FIELDS
J.