IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
April 13, 2011
IN RE ERIC C. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
E.C. ET AL., DEFENDANTS AND APPELLANTS.
(Super. Ct. Nos. JD229554 & JD229555)
The opinion of the court was delivered by: Duarte, J.
In re Eric C.
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
The mother and father of minors Eric and Kevin appeal from the juvenile court's order terminating their parental rights. (Welf. & Inst. Code,*fn1 §§ 366.26, 395.) They first contend there was no substantial evidence Kevin was adoptable. They then contend that even had the juvenile court properly found both children generally adoptable, it should have continued the case 180 days for home finding. Concluding the contentions lack merit, we shall affirm the juvenile court's order terminating appellants' parental rights.
In April 2009, Sacramento County Department of Health and Human Services (DHHS) filed section 300 petitions on behalf of Eric (then 16 months of age) and Kevin (then four months of age) pursuant to subdivisions (a) [nonaccidental serious physical harm], (b) [failure to protect from serious physical harm], [¶] . . . [¶] (e) [severe physical abuse, as to Kevin], [¶] . . . [¶] and (j) [abuse of sibling, as to Eric]. The petitions, as subsequently amended, alleged appellants had used excessive corporal punishment, and that father had instructed appellants' 11-year-old son to physically abuse the minors. Kevin had been brought to the hospital with a broken arm, 15 to 20 rib fractures in different stages of healing, a skull fracture, oral ulcers and thrush, cuts on his ear caused by a sharp object, and kidney and liver lacerations consistent with blunt force trauma. Appellants had no coherent explanation for these injuries. Kevin did not swallow or feed for several weeks after detention. His arm, which had been completely broken, had not healed properly.
Eric was placed in a foster home, along with his older brother and sister, who are not subjects of this appeal. The older brother was removed due to his overly aggressive behavior toward the siblings, and Eric and his sister were subsequently placed with the paternal grandparents. After several weeks of hospitalization, Kevin was placed in a specialized foster home for medically fragile infants. By December, however, Kevin had been placed with his siblings in the paternal grandparents' home. Kevin was still seeing five specialists, continued to have some difficulty swallowing, was struggling with the arm that had been broken, and was developmentally behind.*fn2
The juvenile court sustained the section 300 petitions, denied reunification services pursuant to section 361.5, subdivisions (b)(5), (6), and (7), and set the matter for a permanency planning hearing for April 2010.
The month before the scheduled permanency planning hearing, the minors were removed from the paternal grandparents' home and placed in emergency foster care. The grandparents had been permitting teenagers and young adults who had not been cleared by DHHS to baby-sit the minors and the minors' older sister had revealed that the paternal grandfather had been practicing corporal punishment on Eric.
At the time of the April 2010 hearing, the minors were still in the emergency foster care placement. DHHS was assessing several relatives who had come forward stating they were willing to adopt the minors, including the maternal grandfather, the paternal grandmother and step-grandfather who lived in Louisiana, and a maternal aunt also in Louisiana. The juvenile court ordered Interstate Compact on Placement of Children (ICPC) requests be made.
The social worker assessed that, even if no relatives were approved, it would not be difficult to locate an adoptive home. Both minors were young and neither had behavioral or emotional problems. Although Kevin still required the services of medical specialists,*fn3 he was continuing to progress, had no new health concerns, was no longer considered medically fragile, and did not need specialized care in the home. His earlier injuries had resulted in some developmental delays, which were being monitored and addressed. Eric had no health or developmental concerns. Kevin presented as a happy and easygoing child, and was reported to cry only when he was hungry. Eric presented as a happy, independent, and active toddler.
The permanency planning was continued for a contested hearing and was held on June 1, 2010. The ICPC responses had not yet been received at the time of the hearing. The juvenile court found that, even if the anticipated relative placements fell through, the evidence clearly and convincingly established that the minors were likely to be adopted within a reasonable time, based on their ages, physical condition and emotional state. Finding termination of parental rights would not be detrimental to the minors, the juvenile court terminated appellants' parental rights.
At a section 366.26 hearing, adoption is the preferred permanent plan. (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.) "In order for the court to select and implement adoption as the permanent plan, it must find, by clear and convincing evidence, the minor will likely be adopted if parental rights are terminated." (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164.) Where the minor "has a probability for adoption but is difficult to place for adoption and there is no identified or available prospective adoptive parent, the court may identify adoption as the permanent placement goal and without terminating parental rights, order that efforts be made to locate an appropriate adoptive family for the child, . . . within a period not to exceed 180 days" (§ 366.26, subd. (c)(3)), at which subsequent hearing the court can determine by clear and convincing evidence that it is likely that the minor will be adopted and terminate parental rights. (§ 366.26, subds. (b)(1), (c)(1), (c)(3).)
"We review the factual basis of a termination order to determine whether the record contains substantial evidence from which a reasonable trier of fact could find a factual basis for termination by clear and convincing evidence." (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) "'All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the [order], if possible. Where there is more than one inference which can reasonably be deduced from the facts, the appellate court is without power to substitute its deductions for those of the trier of fact. . . .'" (In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.)
Appellants first contend there is insufficient evidence to support the juvenile court's finding that Kevin was adoptable. They argue that lingering physical difficulties resulting from the severe abuse Kevin suffered while in their care render him generally unadoptable. We disagree.
"The issue of adoptability posed in a section 366.26 hearing focuses on the minor, e.g., whether the minor's age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor. [Citations.] Hence, it is not necessary that the minor already be in a potential adoptive home or that there be a proposed adoptive parent 'waiting in the wings.'" (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) However, "a prospective adoptive parent's 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, 22 Cal.App.4th at p. 1650.)
Here, the juvenile court found both minors were likely to be adopted within a reasonable time. They were both young and neither had emotional or behavioral problems. Although Kevin displayed residual physical and concomitant developmental challenges which required the service of specialists, by the time of the hearing he had substantially progressed, was no longer considered medically fragile, and did not require any specialized care in the home. Moreover, he was a happy, easygoing child, whom the paternal grandparents described as "definitely a joy" to have in the home. Although the minors had not yet been placed in a prospective adoptive home, several relatives had come forward to express their willingness to adopt the minors. Furthermore, considering the characteristics of the minors, the social worker was confident that, even if none of those relatives were approved for placement, it would not be difficult to find a non-relative adoptive home for both Eric and Kevin.*fn4
Appellants do not dispute that Eric is generally adoptable. Instead, appellants focus on Kevin's physical challenges and argue that they render Kevin unlikely to be adopted. In doing so, they ignore the significant progress Kevin had made in the months preceding the hearing, as well as his positive attributes such as disposition. Moreover, the fact that several relatives had expressed interest in adopting both minors was evidence that other prospective adoptive homes would not likely be dissuaded from providing permanency should no relative homes be approved for placement. (See In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650; see also In re Lukas B., supra, 79 Cal.App.4th at p. 1154.) Under these circumstances, the fact that Kevin still required the services of several specialists at the time of the hearing did not render him generally unadoptable.
The juvenile court's finding of Kevin's adoptability was supported by substantial evidence.
Continuance For Home Finding
Section 366.26, subdivision (c)(3),*fn5 allows a court to find that a child has a "probability for adoption but is difficult to place for adoption" and to continue the hearing for home finding without terminating parental rights.
Appellants contend that, due to Kevin's health issues and his presence in the sibling group, the juvenile court was required to continue the matter for home finding under this section. This contention fails. The juvenile court expressly found this statutory provision did not apply, stating: ". . . given the information in [the social worker's report] about their age and physical condition and emotional state, I do not find it would be difficult to find an adoptive home. They are likely to be adopted in a reasonable time."
As previously stated, the juvenile court's finding that both minors were likely to be adopted within a reasonable time is supported by substantial evidence. Thus, the juvenile court was not required to continue the matter for home finding and did not err when it declined to do so.
We note respondent's assertion that appellants forfeited their claim that the juvenile court erred in failing to continue the hearing 180 days for home finding, however, we reject the assertion. Respondent argues that because appellants failed to object below, they failed to provide the juvenile court with the opportunity to consider the applicability of subdivision (c)(3), thus triggering the application of the forfeiture doctrine. (See People v. Gibson (1994) 27 Cal.App.4th 1466, 1468 [purpose of forfeiture doctrine is to bring errors to attention of trial court so they may be corrected or avoided].)
It is clear that the juvenile court's finding that the minors were likely to be adopted pursuant to section 366.26, subdivision (c)(1), precluded application of subdivision (c)(3). Thus there is no point in the record where appellants logically could and should have entered objections. Simply put, the time to object was never reached. Moreover, the juvenile court did, in fact, implicitly consider and reject the application of subdivision (c)(3), when it expressly found it would not be difficult to find a home for the minors and continuing the hearing "wouldn't be appropriate." Thus, given the particular facts and findings contained in the record of this case, the forfeiture doctrine does not apply.
The order of the juvenile court is affirmed.
I concur: BUTZ, J.
I fully concur in this opinion. I only write separately to comment that the arguments of appellants are absurd. I consider this appeal frivolous.
ROBIE, Acting P. J.