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In Re J.L. et al., Persons Coming Under the Juvenile Court Law. v. J.L. et al

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)


August 30, 2011

IN RE J.L. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
v.
J.L. ET AL., DEFENDANTS AND APPELLANTS.

(Super. Ct. No. JD225080, JD227442)

The opinion of the court was delivered by: Mauro , J.

In re J.L.

CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Parents of two minor children appeal juvenile court orders terminating their parental rights. (Welf. & Inst. Code, §§ 366.26, 395.)*fn1 Parents contend the juvenile court abused its discretion by failing to apply the "relative guardian" exception to adoption. (§ 366.26, subd. (c)(1)(A).)

Parents forfeited their contention because they did not assert it in the juvenile court. In any event, the exception applies only if the children live with relatives who are unable or unwilling to adopt them. The record in this case establishes that the maternal great-grandparents are willing and able to adopt the children. The juvenile court did not abuse its discretion and we will affirm the orders terminating parental rights.

BACKGROUND

As a result of father's substance abuse and the domestic violence between father and mother, the children were taken into protective custody in May 2008 and placed in the home of their maternal great-grandparents. The children were declared dependents and parents were offered reunification services. Parents made minimal progress addressing the problems which led to removal of the children and in August 2009 reunification services were terminated.

Great-grandparents expressed their willingness to adopt the children as early as May 2008, and they maintained that commitment throughout the proceedings. In December 2009 they reiterated their desire to provide permanency for the children, but they were both unemployed at that time and they were financially unable to meet the children's needs without assistance. Great-grandfather was looking for a job and great-grandmother was enrolling in a trade school. Financial instability was the only identified barrier to their ability to pass an adoption assessment. Based on these facts, the juvenile court applied the relative guardian exception to adoption set forth in section 366.26, subdivision (c)(1)(A) and determined that termination of parental rights would be detrimental to the children. Nonetheless, the children's permanent plan was placement with the great-grandparents with a specific goal of adoption.

At the six-month post permanency review hearing, great-grandparents' financial status remained uncertain. Again, this financial instability was the only barrier to adoption identified by the social worker.

The juvenile court subsequently ordered that the great-grandparents be referred for an adoption homestudy. The homestudy social worker reported that great-grandparents now had "sufficient financial supports in place to meet the needs of the children both now and in the future." There were no longer concerns about their finances or ability to meet the children's needs. No other barriers to adoption were identified. The social worker was awaiting receipt of certain documents, and when she received them expected to recommend the great-grandparents for adoption. This recommendation was expected to occur within two to three months.

A few months later, the section 366.26 report was filed. In that report, the social worker noted that great-grandparents understood and accepted the legal and financial responsibilities associated with adoption and remained strongly committed to adopting the children. They had been "diligent about the process" leading towards permanency and worked to ensure the children's needs were met. They took the initiative to begin working toward permanency with the adoption social worker even before receiving the referral from the Department of Health and Human Services (DHHS). There were only two documents needed to complete the homestudy process. At the April 2011 section 366.26 hearing, the juvenile court found that termination of parental rights would not be detrimental to the children. The juvenile court terminated parental rights and adoption was selected as the permanent plan.

STANDARD OF REVIEW

We will affirm the juvenile court's ruling if it is supported by substantial evidence. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) We consider the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)

DISCUSSION

Parents contend that at the second section 366.26 hearing, the juvenile court should have again applied the relative guardian exception to adoption as set forth in section 366.26, subdivision (c)(1)(A). Specifically, they contend there was no evidence in the later reports that great-grandparents' financial situation had changed.

Parents did not assert the relative guardian exception at the section 366.26 hearing. Parents' generalized objection to the termination of parental rights does not constitute an assertion that the exception applied. Because parents did not present argument and evidence supporting the exception in the second 366.26 hearing, the juvenile court did not have an opportunity to address parents' concerns or to make an adequate record. (In re Erik P. (2002) 104 Cal.App.4th 395, 403.) Parents' failure to assert section 366.26, subdivision (c)(1)(A) as a basis for precluding termination of parental rights forfeits the issue on appeal. (In re Erik P., supra, 104 Cal.App.4th at p. 403; see also In re Dakota S. (2000) 85 Cal.App.4th 494, 501.)

In any event, the exception is clearly inapplicable on this record. The exception applies only when the child is living with a relative who is unable or unwilling to adopt the child. (§ 366.26, subd. (c)(1)(A).) The parents presented no evidence that the maternal great-grandparents were unable or unwilling to adopt the children. Instead, the evidence established that by December 2010, the homestudy social worker had no concerns regarding great-grandparents' finances. The social worker determined that great-grandparents had "sufficient financial supports in place to meet the needs of the children both now and in the future." No barriers to adoption were identified and no further concerns were raised regarding great-grandparents' financial stability.

Great-grandparents were diligent regarding the adoption process and demonstrated a "strong commitment" to adopting the children. They began the homestudy process even before DHHS discussed permanency options with them. They understood the legal and financial responsibilities of adoption. There was no evidence to support application of the relative guardian exception.

Substantial evidence supports the juvenile court's ruling, and the juvenile court did not abuse its discretion.

DISPOSITION

The orders terminating parental rights are affirmed.

We concur: BLEASE , Acting P. J. HULL , J.


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