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In re G.M.

January 27, 2010

IN RE G.M. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW.
FRESNO COUNTY DEPARTMENT OF CHILDREN & FAMILY SERVICES, PLAINTIFF AND RESPONDENT,
v.
M.R., DEFENDANT AND APPELLANT.



APPEAL from orders of the Superior Court of Fresno County. Martin Suits, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) (Super. Ct. No.04CEJ300142-3,4).

The opinion of the court was delivered by: Levy, Acting P.J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

OPINION

M.R. (mother) appeals from an order terminating parental rights (Welf. & Inst. Code, § 366.26) to two of her children, G. and L.*fn2 She contends the court erroneously barred evidence on whether the children's prospective adoptive parent was eligible to adopt and improperly failed to consider whether there was a legal impediment to adoption by the prospective adoptive parent. Mother also argues the court erred by rejecting her claim that termination would be detrimental to the children. On review, we disagree with each of mother's contentions and affirm.

In the published portion of our opinion, we hold evidence of a legal impediment to adoption (Fam. Code, §§ 8601-8603) by an identified prospective adoptive parent is relevant and therefore admissible when a social worker's opinion that a child is likely to be adopted is based in part on the prospective adoptive parent's willingness to adopt. On the record before us, however, we conclude the trial court neither barred such evidence nor was compelled to consider whether there was or could be a legal impediment to adoption by the children's prospective adoptive parent in evaluating whether it was likely the children would be adopted.

PROCEDURAL AND FACTUAL HISTORY

G. and L. have been in and out of foster care since 2004, due in large part to mother's substance abuse and resulting inability to provide adequate and appropriate care. Most recently, in August 2007, the Fresno County Superior Court adjudged eight-year-old G., six-year- old L., and their other siblings juvenile dependents and removed them from parental custody. Because reunification was not possible, the court in January 2008 conducted its first section 366.26 hearing for the children and their siblings.

Respondent Fresno County Department of Children and Family Services (department) offered no assessment of the likelihood of any of the children's adoption. Instead, it determined long-term foster care was the most appropriate plan at the time because, in relevant part, G. and L.'s care provider was able to commit to long-term foster care. G. and L.'s care provider was their great-aunt (aunt). They had been placed with her since August 2007. The court ordered long-term foster care as the appropriate plan for all of mother's children. As the court explained, there was a compelling reason that termination of parental rights would be detrimental.

"Mother [h]as maintained regular visitation and contact with the children and at this point the children do benefit from continuing that relationship. [¶] Additionally, the older children object to the termination of parental rights, and additionally... termination of parental rights would interfere with the children's relationship with each other."

Months later, the department petitioned (§ 388) to set a new section 366.26 hearing for G. and L. A department panel determined it would be in the children's best interest to assess them for a more permanent plan of adoption with their aunt because the children wished to be adopted by her and she wished to adopt them. In late 2008, the court granted the department's petition and set a second section 366.26 hearing for G. and L.

In advance of the hearing, the department prepared a new "366.26 WIC Report" for G. and L. In its report, the department recommended adoption with termination of parental rights as the most appropriate permanent plan for G. and L., who were nine and eight years old respectively. It no longer appeared mother had a strong relationship or a parent/child bond with the children. In addition, G. and L. had unremarkable visits with their siblings twice a month. Only their oldest sibling objected to G. and L. being adopted.

Under a heading of "Analysis of the Likelihood of Adoption and Proposed Permanent Plan" department social worker, Manuel Alcaraz, wrote:

"[L.] and [G.] are generally adoptable in that they are both healthy, happy and have a strong attachment to the prospective adoptive parent. They do not have developmental or physical concern; they are healthy children who appear to be developmentally on target. The prospective adoptive parent has had a placement of the children for almost two years and is very committed to providing [L.] and [G.] with the most appropriate permanent plan through adoption, with termination of parental rights. The prospective adoptive parent has adequate support system of family and friends. It would not be detrimental to [L.] and [G.] to terminate parental rights due to the positive relationship [L.] and [G.] share with their prospective adoptive parent. The children have a strong and loving parent/child bond with the current care provider. The children are eight and nine years of age and have expressed that they want to be adopted by their current care provider and already feel that they are part of the family. Both [L.] and [G.] have a strong attachment to their care provider and the children would benefit from continuing the parent/child relationship that has been established with the current care provider. It is in the children's best interest to have a stable and permanent home through adoption with their current care provider.

"Furthermore, while in assessment this social worker has observed one visit between the children and their mother.... [Father] has not made himself available to the department to request visits. It does not appear that it would be detrimental to [L.] and [G.] to terminate parental rights because the lack of parent/child relationship they have with their biological parents."

Alcaraz also included an assessment of the aunt as the children's prospective adoptive parent as required by statute (§§ 361.5, subd. (g)(1)(D), 366.21, subd. (i)(1)(D), 366.22, subd. (c)(1)(D)). Relevant to this appeal, Alcaraz reported "[the aunt] explained that she has been married once and is now separated."

Mother filed a written statement of contested issues prior to the section 366.26 hearing. In it, she objected to adoption as a permanent plan and asked the court to continue long-term foster care as the children's permanent plan. She cited as a contested issue that "the Department has not properly evaluated the prospective adoptive parent's lifestyle, and the Department should not have recommended adoption by this care provider."

At the start of the section 366.26 hearing, the department argued mother's contest over the aunt's lifestyle was not a proper issue for trial. The court agreed. The department in turn asked that no questions on the issue be permitted. The court again agreed.

Mother's counsel called social worker Alcaraz as her first witness. Relevant to this appeal, counsel asked had the aunt "been married but then got divorced during the time that she was the care provider for the children." The children's attorney objected on relevance grounds and the department's counsel joined. The court overruled the objection.

Alcaraz testified in turn that the aunt separated from her husband. The witness was unsure whether the separation occurred while the aunt cared for the children. She told Alcaraz she was separated from her husband but not legally divorced. Alcaraz believed the aunt was married in the Catholic Church and she was not divorced. He relied on what she told him ...


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