In re Cristobal V.

Filed 3/19/07 In re Cristobal V. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from orders of the Superior Court of Los Angeles County, Emily A. Stevens, Judge. Affirmed.

Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Defendant and Appellant Jose V.

Donna B. Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant Maricela O.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel and William D. Thetford, Senior Deputy County Counsel, for Plaintiff and Respondent.

Jose V. and M.O., parents of Cristobal V., challenge the juvenile court order denying fathers Welfare and Institutions Code^[1]section 388 motion seeking to have Cristobal placed with his paternal grandmother in Mexico, and the order terminating parental rights and selecting adoption as his permanent plan. We affirm the orders.

FACTUAL AND PROCEDURAL SUMMARY

Cristobal was born in October 1999. In May 2001, he and his older siblings were detained by the Los Angeles Department of Children and Family Services (the Department) when his parents were arrested and incarcerated for violation of federal drug trafficking laws. Cristobal was declared a dependent child under section 300, and placed in foster care. Mother was denied reunification services, and fathers services were terminated in January 2002.

In December 2002, Cristobal and siblings Jesse and Sandra^[2]were placed together in a foster home. The foster parents initially expressed interest in adopting the children, but in February 2003, they asked that the children be removed from their home because they felt unable to parent three children who have significant special needs. Both Jesse and Cristobal had exhibited serious behavioral problems.

Jesse was moved to a different foster home, but Sandra and Cristobal remained with these foster parents. Cristobals behavior continued to be problematic. He was diagnosed with attention deficit hyperactivity disorder (ADHD) and began taking medication. Although they were concerned about Cristobals behavior, the foster parents continued to express an interest in adopting Cristobal and Sandra.

In September and October 2003, Cristobal received a psychological evaluation, and was found to demonstrate numerous symptoms associated with Childhood Autism Spectrum Disorder, specifically Aspergers Syndrome. He was referred for an assessment by the regional center and for an Individual Education Plan (IEP). The foster parents remained interested in adoption, but wanted to know the results of the assessment and IEP before making a final decision as they would like to be sure that they are able to continue to meet the childs special needs if any are specified. The case was continued to March for the foster parents to receive the results of Cristobals evaluation.

Meanwhile, in November 2003, Cristobals paternal grandmother in Mexico sent a letter to the Department expressing her interest in obtaining legal custody of her grandchildren, Cristobal and Jose, Jr.; Sandra and Cristobals other half siblings were not related to her. According to her letter, the grandmother had made several telephone calls to the Department expressing her interest. She explained that she was unable to attend the court hearings because she did not have the necessary documents to enter the United States.

Before the March 2004 permanency planning hearing, the prospective adoptive parents indicated they intended to adopt Cristobal, even though he had a lot of problems. Despite their assertion that they would definitely keep Cristobal, the prospective adoptive parents refused to put their intentions in writing. The hearing was continued because of a notice problem. The prospective adoptive parents did not attend the rescheduled hearing, and thus never testified regarding their intentions with regard to adoption. Even without such evidence, the trial court found it was likely Cristobal would be adopted, and terminated parental rights.

Father appealed the order terminating parental rights, claiming there was insufficient evidence to support the finding that Cristobal was adoptable. While his appeal was pending, the prospective adoptive parents vacillated about their decision to adopt, at one point wishing to adopt only Sandra, and at another point wishing to adopt only Cristobal. The Department explained that the children were a sibling unit and should not be separated, and the prospective adoptive parents chose to have them both removed. The children were moved to a new foster home, and the Department reopened the search for an adoptive home.

On March 4, 2005, in case No. B174180, we concluded there was insufficient evidence to support the trial courts finding that Cristobal was likely to be adopted. We reversed the order terminating parental rights, and remanded for further proceedings. After the remittitur issued, the court vacated its order terminating parental rights and set a new section 366.26 hearing.

In June 2005, Cristobal met with a different psychologist, who concluded that the former diagnosis of autism or Aspergers syndrome was not appropriate. He was scheduled for further evaluation by his psychiatrist.

Cristobal and Sandra were matched with a prospective adoptive family, and a pre-placement conference was held in April 2005. The family was interested in adopting, but was awaiting the results of Cristobals testing. The Department sent a contact letter to Cristobals paternal grandmother to inquire about her interest in providing care for him. It did not recommend placement with the grandmother because she had not had any contact with Cristobal and had not asked the Department about his well-being. In addition, she spoke only Spanish, while Cristobals primary language is English, she was not related to Cristobals sister, Sandra, and the Department did not believe the children should be separated. The court ordered the Department to evaluate the paternal grandmother for placement of Cristobal.

Cristobal and Sandra visited with the prospective adoptive parents in October, November and December, and moved in with them on January 6, 2006, just before the January review hearing. The court set a section 366.26 hearing for May 2006, and ordered a thorough adoption assessment so that the court can determine if minor is adoptable.

In March 2006, the social worker reported that Cristobal had received further testing in October 2005, which showed he had no neurological dysfunction, and that he had ADHD with staring spells, not Aspergers syndrome. His psychiatrist reported Cristobal had no major psychiatric problems or behavioral disorders. He was doing well in school and in his current placement, and was benefiting from ongoing counseling and psychiatric services. The social worker noted there had been an incident report alleging one of Cristobals prospective adoptive parents hit him on the bottom with a shoe after he bit his sister Sandra. An emergency response social worker investigated and concluded the report was unfounded. The prospective adoptive parents adamantly denied hitting Cristobal, but agreed to participate in parenting education, support group, and conjoint therapy. Cristobal and Sandra told the social worker they want very much to be adopted by the family and to stay in their current placement indefinitely.

Father brought a section 388 petition, seeking to have the children placed with the paternal grandmother in Mexico. The social worker contacted the Mexican Consulate in Los Angeles to obtain information about the paternal grandmother. The grandmother had two evaluations by Mexican child protection authorities, in February 2004 and January 2006. Both reports stated that she is a person of good moral character, has a stable home environment, and is financially self-sufficient. She has the ability to pay for any psychiatric or other special needs the children might have. The grandmother was not concerned about the language problem, and believed the children would pick up Spanish quickly. In a telephone interview, the grandmother told the social worker she was willing to take care of Cristobal and Sandra for however long it was necessary. Even though Sandra is not biologically related to her, she considers the child a granddaughter.

The social worker told the children about the paternal grandmothers request for their custody, and asked if they would like to live with her or get more information about her before making a decision. The children said they did not know her. Cristobal insisted he wanted to stay in his present placement, but Sandra said she would think about the grandmothers request and then tell her social worker her decision. The Department recommended that the childrens current placement for adoption would be in their best interest, but that the paternal grandmother could be considered as an alternative placement.

The adoption assessment prepared in May 2006 reflected that Cristobal was doing very well in school, was continuing to benefit from medication, and was generally behaving well. He was very happy in his placement and wants to stay forever. Sandra was already in adoptive planning in the same home, and the prospective adoptive parents continued to indicate their interest in adopting Cristobal. At the May hearing, the prospective adoptive parents told the court they were definitely interested in adopting the children, were very happy to have the children in their house, and hoped everything will go through. The court continued the hearing to July for notice to the mother.

On July 10, 2006, the court first conducted a hearing on fathers section 388 petition. The court denied the petition, finding that it would not be in Sandras best interest to be placed in Mexico with a stranger to whom she was not related, and it would not be in Cristobals best interest to be separated from Sandra and placed in Mexico with a relative he did not know.

The court then conducted the section 366.26 hearing for Cristobal. The prospective adoptive parents informed the court they were committed to adopting the children. They said they were just waiting for Cristobal. Sandra is already in the process. Their only concern was that the process was taking so long. The court found by clear and convincing evidence that it was likely Cristobal would be adopted, and terminated parental rights. Father filed timely appeals from the order denying his section 388 petition and from the order terminating parental rights. In her appeal, mother joins in these arguments.

DISCUSSION

I

The Department claims mother has no standing to appeal, since she did not file a timely appeal from the original order terminating her parental rights, and thus did not benefit from our reversal of that order. We disagree.

After the juvenile court terminated parental rights in March 2004, father appealed. We reversed the order based on insufficient evidence to support a finding that Cristobal was adoptable, a finding necessary before parental rights are terminated. ( 366.26, subd. (c)(1).) Whether or not mother appealed, the error required Cristobal to be placed back in the legal position he held before the court found him to be adoptable; thus the order terminating parental rights was necessarily reversed as to both parents.

This is consistent with former California Rules of Court, rule 1463,^[3]in effect at the time of the order, which requires that termination of both parents rights occur in a single proceeding. Where this is done, a successful appeal by one parent will not redound to the benefit of a non-appealing parent, if there has been no error in the termination of his or her rights. (In re Caitlin B. (2000) 78 Cal.App.4th 1190, 1194.) In Caitlin B., there was improper notice to the father. The court held mother had no right to urge an error in terminating fathers rights precluded termination of her rights. (Ibid.) In Los Angeles County Dept. of Children & Fam. Services v. Superior Court (2000) 83 Cal.App.4th 947, 949, the father appealed from the order terminating parental rights based on lack of notice. Reversal was on that ground; there was neither an appeal nor a finding of error with regard to termination of mothers parental rights. The court held mothers parental rights should not have been reinstated on remand, because mother was not entitled to benefit from the error in terminating fathers parental rights.

In this case, the basis for reversal was an unsupported finding with regard to Cristobal, not an error with respect to either parent. Without sufficient evidence of adoptability, neither parent should have had parental rights terminated. As the court explained in In re Thomas R. (2006) 145 Cal.App.4th 726, 734, testing the validity of evidence on adoptability before terminating parental rights serves the interest of all parties in increasing the likelihood that no child is left a legal orphan because an anticipated adoption does not occur. The parental rights of both parents having been reinstated by our reversal in case No. B174180, they both have standing in this appeal.

The Department next argues that neither parent was aggrieved by the courts refusal to place Cristobal with his paternal grandmother, and therefore they cannot appeal from that order. The right of appeal extends by statute only to a party aggrieved by the order appealed from. (In re Aaron R. (2005) 130 Cal.App.4th 697, 703; Code Civ. Proc., 902.) Whether an individual is aggrieved, and thus has standing in a particular case, generally revolves around the question whether that person has rights that may suffer injury, be it actual or threatened. (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1034.)

In this case, although reunification services have been terminated, denial of placement with the grandmother potentially affected the ability of the parents to maintain a long-term relationship with Cristobal. The Department took the position during these proceedings that Mexican law does not provide for adoption by grandparents, but instead contemplates a guardianship arrangement. If this is correct, Cristobal could have been permanently placed with the grandmother without termination of parental rights. In addition, it is likely that Cristobals connection to his father would have been preserved if he were placed with fathers family. And since mother has been deported to Mexico, she might have been able to visit Cristobal if he were placed in Mexico. We will assume for purposes of this appeal that the parents were sufficiently aggrieved by the courts denial of the section 388 motion to have standing to appeal. We turn to the merits.

II

Father claims the court erred in denying his section 388 motion seeking to permanently place Cristobal with his paternal grandmother in Mexico; mother joins in the argument. A juvenile court order may be modified under section 388 if the petitioner establishes by a preponderance of the evidence that (1) new evidence or changed circumstances exist and (2) the proposed change would promote the best interests of the child. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.)

Given the delay in obtaining information about the paternal grandmother and the results of her child protective services reports, we shall, for purposes of discussion, deem the first prongnew evidence or changed circumstancesadequately satisfied by the information which was finally obtained. It appears the juvenile court denied the motion on the basis of the second prong, the best interests of the child. There is strong evidence to support this decision.

Cristobal was thriving in a pre-adoptive placement, and he wanted to stay with this family. He did not know his paternal grandmother at all. He spoke only English, and his paternal grandmother spoke only Spanish. He and his sister Sandra were a sibling unit, who had been placed together since the time they were first detained. Sandra was not related to the paternal grandmother and did not know her; they had spoken once on the telephone. On this evidence, the court found it was not in Sandras best interest to send her out of the country to live with someone she does not know and to whom she is not related, and it was not in Cristobals best interest to be separated from Sandra to live with relatives he does not know. This was not an abuse of discretion.

III

The parents claim the finding that Cristobal was likely to be adopted was not supported by substantial evidence.

Under section 366.26, subdivision (c)(1), if the juvenile court determines by clear and convincing evidence that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption. The issue of adoptability posed in a section 366.26 hearing focuses on the minor, e.g., whether the minors 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 minors 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 parents 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., supra, at pp. 1649-1650.)

The court took great pains in this case to ascertain that Cristobals pre-adoptive family was committed to adopting him. The prospective parents answers to the court were unequivocalthey were ready to adopt Cristobal, and their only concern was that it was taking too long. They were already in the process of adopting Cristobals sister Sandra, and they had an approved home study. The evidence was undisputed that there was a family ready and willing to adopt the child.

The problems which had concerned this court during the earlier appeal appear to be resolved. Cristobal is not suffering from autism or Aspergers syndrome. His ADHD appears well controlled by medication. He no longer exhibits serious behavior or psychiatric problems, and he is doing so well in school that the school wants him tested for the gifted program.

The court also found it significant that when the previous prospective adoptive parents decided they would not adopt Cristobal and Sandra, the Department was quickly able to find another adoptive home for the children. And while the court did not place Cristobal with the paternal grandmother, she, too, expressed willingness to adopt him.

Substantial evidence supports the courts determination that Cristobal is likely to be adopted.

DISPOSITION

The orders are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

EPSTEIN, P. J.

We concur:

WILLHITE, J.

SUZUKAWA, J.

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^[1] All statutory references are to this code.

^[2] Jesse was born in 1994, Sandra was born in 1995. Only Cristobal is the subject of this appeal.

^[3] The California Rules of Court have been revised and renumbered. The subject of former rule 1463 is now contained in rule 5.725(h).