In re Alejandra

Filed 3/3/06 In re Alejandra B. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Stanislaus County. Joseph R. Distaso, Judge.

Carolyn S. Hurley, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance by Plaintiff and Respondent.

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Agatha B. appeals from orders terminating her parental rights to her three young children (Welf. & Inst. Code, § 366.26).^[1] Appellant's appointed appellate counsel submitted a letter dated January 23, 2006, advising that no brief would be forthcoming (In re Sade C. (1996) 13 Cal.4th 952). By order dated January 27, 2006, we extended time for appellant to personally file a letter brief.

On February 22, 2006, appellant filed such a letter brief with this court. In it, she urges reversal of the termination order on the following grounds: (1) her children share a strong bond with her and to sever that bond by terminating parental rights would be detrimental to the children; (2) appellant's family was never given the opportunity to seek relative placement; (3) she did not receive reasonable reunification services; (4) information about the prospective adoptive parents raised questions about their suitability to adopt; (5) the use of the same attorney to represent appellant in the underlying dependency proceeding as well as in criminal proceedings created a conflict of interest; and (6) she deserves another chance to parent her children upon her release from state prison.

The juvenile court's decision is presumed correct unless appellant can establish that the trial court committed prejudicial error. (In re Sade C., supra, 13 Cal.4th at p. 994.) Having reviewed her letter brief and the record herein, we conclude appellant raises no arguable issue regarding the court's decision.

Of all the issues appellant raises, only one -- regarding whether termination of parental rights would be detrimental to the children -- was even raised in the juvenile court at the termination hearing. However, appellant was not entitled to a finding of detriment based on a beneficial parent/child relationship given that she failed to maintain regular visitation and contact with them when the children were out of her custody. (§ 366.26, subd. (c)(1)(A).)

Of the remaining issues she raises, appellant appears to have forfeited her claims regarding relative placement, reasonable services and conflict of interest. Whether relative placement would have been appropriate or whether there was substantial evidence to support the court's reasonable services findings were issues which arose at earlier stages of the proceedings. Notably, in the case of relative placement, the statutory scheme and particularly section 361.3 assures interested relatives that, when a child is taken from the parents and placed outside the home pending the determination whether reunification is possible, the relative's application will be considered before a stranger's application. (In re Sarah S. (1996) 43 Cal.App.4th 274, 285.) Here the children had been in out of home placement for some time and appellant fails to point to any record evidence that her siblings had expressed interest in placement. At the very latest, appellant should have raised these issues when the juvenile court terminated reunification services by filing a writ petition with this court. (§ 366.26, subd. (l); see Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 811.)

As for her attorney's alleged conflict of interest, appellant's argument fails because it is conclusory and finds no support in the appellate record. (Calhoun v. Hildebrandt (1964) 230 Cal.App.2d 70, 72 [appellant has a burden to affirmatively show error on the record].)

To the extent appellant questions respondent Stanislaus County Community Services Agency's preliminary assessment of the prospective adoptive parents, this is not a proper subject for review. If, as in this case, the children are generally adoptable, the parent is not entitled to question the suitability of the prospective adoptive parents. (In re Scott M. (1993) 13 Cal.App.4th 839, 844.) Such questions are irrelevant to the issue of whether a child is likely to be adopted (ibid.), a point which appellant does not dispute.

Last, while we might commend appellant's continued efforts while in prison to deal with her substance abuse, it is not this court's role to substitute our judgment for that of the trial court and now preserve her rights. Our appellate authority begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379.) On this record, we find no error.

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