In re David R. CA5 ( 2013 )

Filed 10/15/13 In re David R. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
In re DAVID R. et al., Persons Coming Under
the Juvenile Court Law.
STANISLAUS COUNTY COMMUNITY F066461
SERVICES AGENCY,
(Super. Ct. Nos. 516095 & 516096)
Plaintiff and Respondent,
v. OPINION
CHARLES R.,
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Stanislaus County. Ann Q.
Ameral, Judge.
Hassan Gorguinpour, under appointment by the Court of Appeal, for Defendant
and Appellant.
John P. Doering, County Counsel, Carrie M. Stephens, Deputy County Counsel,
for Plaintiff and Respondent.
-ooOoo-
* Before Wiseman, Acting P.J., Levy, J., and Kane, J.
Charles R. (father) appeals from the juvenile court’s order terminating his parental
rights. (Welf. & Inst. Code, § 366.26.)1 Father contends that the trial court erred in
determining that his two children were adoptable because there was evidence that one of
the prospective adoptive parents had an unidentified, unexplained criminal conviction on
her record.
We disagree and affirm the court’s order.
FACTUAL AND PROCEDURAL HISTORIES
Father and Samantha M. (mother) are the parents of David R. and Madison R.
When this case began, father lived in Fresno, and mother lived in Modesto with David,
Madison, and mother’s two younger children, Shawna R. and John R. III.2
On May 6, 2011, the Stanislaus County Community Services Agency (Agency)
received a referral that mother had been arrested on a School Attendance Review Board
warrant related to David not attending school regularly. It was reported that mother
appeared to be under the influence of drugs and was homeless. A social worker
investigated the referral and learned that the previous day, mother had left David to watch
his two-year-old half-sibling John in a motel room where the family was staying for the
night. Mother left the motel at 8:00 a.m. with Madison and Shawna and did not return.
At 11:00 a.m., a motel employee contacted a relative who picked David and John up
from the motel.
On May 10, 2011, the Agency initiated this case by filing a juvenile dependency
petition on behalf of the minors. Two days later, it filed an amended petition alleging
failure to protect by both parents. (§ 300, subd. (b).) Mother had a history of substance
1Subsequent statutory references are to the Welfare and Institutions Code unless
otherwise stated.
2Shawna R. and John R. III are not father’s children and are not involved in this
appeal. They were part of mother’s juvenile dependency case, and we will sometimes
refer to mother’s four children collectively as the minors.
2.
abuse, including a 10-to-11 year history of methamphetamine use. She also had a history
with the Agency, including five substantiated reports of neglect. Father had a history of
substance abuse and domestic violence.
The juvenile court found a prima facie showing that the minors were persons
described in section 300 and ordered them temporarily detained. Father was ordered to
undergo a mental health assessment.
David, Madison, and their two half-siblings were placed with their maternal aunt,
Jennifer M. and her partner of many years, Julie S. The minors began living with their
aunt on May 6, 2011. According to a jurisdiction/disposition report prepared by the
Agency, David told a social worker, “I’m being treated good in Aunt Jennifer and Julie’s
home,” and Madison said, “I like living in Aunt Jennifer’s house and we have not had
any problems.”
The jurisdiction/disposition report incorporated many supporting documents,
which were provided to the court as attachments to the report. Among these supporting
documents was attachment L, a “delivered service log,” with entries from social workers
regarding work they had done on the case. In one entry, social worker Maria Pasillas
wrote about a home visit to the aunt’s house that occurred on May 23, 2011. She wrote
the home “appeared clean and organized.” Pasillas also logged the following: “I met
with Julie and discussed her live scan[3] results. I asked that she provide me [with] an
exemption request, 3 reference letters, letter of explanation and a police report. I granted
her 2 weeks to turn in all the above documents.”
3“Live Scan” refers to an electronic fingerprinting system used to check an
individual’s criminal background. (In re M.L. (2012) 205 Cal. App. 4th 210, 215, fn. 3;
see Health & Saf. Code, § 1522.04.) Prior to placing a child in the home of a relative, a
social worker must visit the home to ascertain the appropriateness of the placement.
(§ 361.4, subd. (a).) A criminal records check of all persons over 18 years of age living
in the home is also required. (Id., subd. (b).) This notation appears to document Pasillas
conducting the required home visit and discussing the results of Jennifer’s criminal
background check with her.
3.
The Agency recommended that the juvenile court adjudge the minors dependents
of the court and order reunification services for father and mother.
At the hearing on jurisdiction, the juvenile court found the allegations of the
amended petition true. In a subsequent hearing on disposition, the court found that
returning David and Madison to the custody of either mother or father would create a
substantial risk of detriment to their physical and emotional well-being and continued
placement outside the home was necessary and appropriate. The court found father’s
progress toward alleviating or mitigating the causes necessitating placement had been
“fair” and mother’s progress had been “limited.” Reunification services were provided
for father and mother.
In April 2012, at a six-month review hearing, David told the court that he did not
wish to be placed with his father. David said, “I still think he has a lot to work on. And I
believe that he should be required to go through his drug counselings, because I have
seen him use and abuse … various forms of drugs and alcohol, and a lot of mental,
physical, and sexual abuse has come to me and my sister during the years that I have
spent with him.” Madison told the court that father did “a lot of bad things” when she
and David stayed at his house and “a lot of times he kicked [them] out when he was on
drugs.” The juvenile court found that the minors’ current placement was necessary and
appropriate. It found father’s progress toward alleviating or mitigating the causes
necessitating placement had been “fair” and mother’s progress had been “minimal.”
Continued reunification services were provided for both parents.
The Agency prepared a status review report for the 12-month review hearing. In
this report, the Agency recommended terminating family reunification services for father
and mother and setting a section 366.26 hearing to establish a permanent plan of adoption
for David and Madison. Mother had weekly visits with the minors, which were described
as “chaotic,” as mother’s “lack of parenting skills [became] apparent fairly quickly.”
Father had one visit on April 9, 2012, and had not completed any visits since then. He
4.
was not participating in his court-ordered treatment programs. The report noted that the
minors had been placed “in the approved AB 1695 Relative Placement Home of their
Maternal Aunt, Ms. Jennifer M.” since May 6, 2011.4
A contested 12-month review hearing was held on August 2, 2012. Father’s
attorney made an offer of proof that father would testify that he had not been
participating in his case plan because it was his belief that nobody ever helped him, the
caregivers (Jennifer and Julie) had “brainwashed David and Madison into saying untrue
things about him,” and when the case began, the children had wanted to be with him.
Mother testified that, at her visit with the minors the previous day, Madison told her that
she did not want to live with mother and she was happy with Aunt Jennifer. Mother told
David, “if they wanted to stay and live with Jennifer and Julie, I will help them, if I can
sign papers, you know, to where Jennifer and Julie get legal, temporary guardianship or
whatever until they turn 18, if that’s truly what they wanted.”
At the end of the hearing, the juvenile court terminated family reunification
services and set a section 366.26 hearing. Father’s progress toward alleviating or
mitigating the causes necessitating placement was found to be “minimal” and mother’s
progress was found to be “poor.”
The Agency prepared a “366.26 WIC Report” for the permanency planning
hearing, recommending that the court terminate parental rights and establish a permanent
4Assembly Bill No. 1695 added section 362.7 and amended various other statutes
relating to foster homes. The bill was intended “to clarify that California’s relative
caregiver approval process employs the same standards used to license foster care homes
in accordance with the federal Adoption and Safe Families Act of 1997 (P.L.
105-89) .…” (Stats. 2001, ch. 653, § 1, p. 4111.) For example, the bill amended
section 309, subdivision (d), to add: “The standards used to evaluate and grant or deny
approval of the home of a relative or a nonrelative extended family member … shall be
the same standards set forth in regulations for licensing foster family homes.” (Stats.
2001, ch. 653, § 8, p. 4116.) Thus, “approved AB 1695 Relative Placement” refers to a
home that has met these statutory requirements for placement of a foster child.
5.
plan of adoption for the minors. David was developing within average range for his age.
He was diagnosed with extreme nearsightedness and it was recommended that he avoid
activities that could damage his fragile retinas. David was currently in the eighth grade.
He had become much more confident over the prior year, and he was enjoying school and
had a lot of friends. The caregivers reported that he had a 3.99 grade point average.
Madison was developing within average range for her age. She reported feelings of
depression and was receiving individual counseling services. Madison was in the third
grade. She also had a lot of friends, enjoyed school, and was earning above-average
grades. The report again noted that the minors were placed in “the approved AB 1695
Relative Placement Home of the Maternal Aunt.”
The Agency addressed the likelihood of adoption by the minors’ current
caregivers:
“It is extremely likely the children will be adopted if the Court terminates
the parental rights. As reported above, the children are currently placed
with their maternal aunt and her family, Ms. Jennifer M. Ms. Jennifer M.
has expressed her commitment to both social workers Croom and Mincey.
She loves all the children and is willing to do whatever necessary to ensure
they are safe and happy. The children have already integrated themselves
in the family and are very comfortable with their life.”
The report provided the following information on the prospective adoptive
parents:
“Social History:
“The prospective adoptive parents for these children are [Jennifer] and
[Julie]. [Jennifer] is the children’s maternal aunt. She is a forty-year-old
Hispanic female. [Julie], her partner of many years, is a forty-one year old
Hispanic female. [Jennifer] has three biological children, two of whom are
adults and one of whom is a 17-year-old. Her 20-year-old son and 17-year-
old son live in the family home. [Jennifer] is employed full time as an
equipment operator for a major local industry, and [Julie] is employed by
the same company in a part-time capacity. [Jennifer] and [Julie] reside in a
well-established neighborhood in Stanislaus County. Their home is clean,
well-organized and appropriate for raising children. Both prospective
6.
adoptive parents are in good health and enjoy an active, child-centered
lifestyle.
“Results of Criminal History Clearance:
“[Jennifer], her 20-year-old son, and [Julie] completed livescan
fingerprinting for adoption purposes on November 20, 2012. All the above
mentioned adults completed livescan fingerprinting at the time the children
were taken into Protective Custody and prior to the children being placed in
their home. Although, the results are not currently available as of the filing
date of this report, since they have already submitted fingerprinting without
any concerns, the undersigned is confident the livescan fingerprint results
would not prohibit them from taking placement of the children.
“Results of CWS History Clearance:
“[Jennifer], her 20-year-old son, and [Julie] completed livescan
fingerprinting for adoption purposes on November 20, 2012. The results of
the Child Abuse Index search had not yet been received at the time of the
filing of this report. However, all the adults completed livescan
fingerprinting prior to placement and the Child Abuse Index results did not
prevent the prospective adoptive parents from taking placement of the
children. A review of CWS/CMS indicates that [Jennifer] was the subject
of two referrals, one in 2009 and one 2010, for general neglect of one of her
children. In both instances, the referrals resulted in a finding of
‘Unfounded.’”
The report also noted that Jennifer and Julie “wish to adopt these children because
they have known them since birth and cared for them off and on their entire lives,” and
they “have been meeting the children’s needs since May of 2011, a period of over
eighteen months.”
On December 6, 2012, the juvenile court held a contested section 366.26 hearing.
Mother testified that it would be harmful to her children to be adopted by Jennifer and
Julie. She said the children “are manipulated a lot verbally and threatened a lot by the
both of them.” Asked what would be in her children’s best interests, mother responded,
“Not to be living with Jennifer. I think Julie would [be an] okay sole caregiver for my
kids, but not Jennifer. Jennifer—you guys don’t know my sister.” Father testified that
David and Madison could not be telling the truth when they said they wanted to be
7.
adopted. He agreed with mother’s testimony and further said “Jennifer is an abusive
woman.” He explained that he stopped visiting his children because he became
discouraged; it was hurtful to go all the way to see them and they did not even
acknowledge him.
David testified that he wanted to be adopted by Jennifer and Julie. They were
providing him a better home than his previous living conditions. He also said mother’s
and father’s testimony was untrue. Madison testified that she wanted to be adopted by
Jennifer and Julie. She was asked if she knew that may mean she would never see her
mother and father again, and Madison responded, yes, and she still wanted to be adopted.
Father’s attorney repeated father’s concern that the current caregivers were
manipulating, coercing, and coaching David and Madison. She urged the court to
consider providing different caregivers for the children.
The Agency’s attorney argued that parents had not raised any relevant issues:
“The issue for the Court is not to determine whether their foster care
situation is the perfect situation. In fact, there is a bevy of case law that
says the only argument that counsel for the parents can raise for a child,
who is only adoptable because [there] is a specific placement, concerns
legal impediments to adoption, and there has been no legal impediment to
adoption. It is an emotional flurry of inconsistent and erroneous
information that the parents have.
“I know the Court gave them latitude because of the nature of this
hearing, but really the law says we must focus on the children, whether they
are by clear and convincing evidence adoptable and whether the parents
have demonstrated an exception to that.…
“So those are the concerns the Court has to address in this hearing.
Not whether or not these parents disagree with the placement in these
particular caretakers. The only thing that can be addressed appropriately is
whether there is a legal impediment to the adoption when the children are
adoptable because of a specific placement. That may be the case for the
two older children because of their age and their connection to their
placement. That certainly is not the case for the two younger kids.
8.
“And I would also point out to counsel, that while these children
have always been conflicted about their parents, it was Madison and David
that also testified at these very early proceedings that they were afraid of
their father. So, while they were at times afraid of him, they at the same
time could love him, because that is what conflict in a dysfunctional family
oftentimes results in. That’s what this has been for these children, and we
ask that the madness end and these children have the stability that they
deserve .…”
After hearing the parties’ evidence and arguments, the juvenile court issued its
ruling, terminating parental rights for father and mother. The court found that it was very
likely that David, Madison, and their half-siblings would be adopted and that the parents
had not met their burden of proving that termination of parental rights would be
detrimental to the minors. The court also observed that David and Madison had begun to
thrive since the start of the case.
Father filed a notice of appeal on January 11, 2013.
DISCUSSION
The purpose of a section 366.26 hearing is to select and implement a permanent
plan for the dependent child. (In re S.B. (2009) 46 Cal. 4th 529, 532.) The Legislature’s
preferred permanent plan is adoption. (In re D.M. (2012) 205 Cal. App. 4th 283, 290.)
“At a section 366.26 hearing, the court must terminate parental rights and free the child
for adoption if it determines by clear and convincing evidence the child is adoptable
within a reasonable time, and the parents have not shown that termination of parental
rights would be detrimental to the child under any of the statutory exceptions to adoption
found in section 366.26, subdivision (c)(1)(B)(i) through (vi). (§ 366.26, subd. (c)(1).)”
(Id. at p. 290.)
In this case, father does not claim that he established a statutory exception to
adoption. He contends only that the juvenile court erred in determining that David and
Madison were adoptable within a reasonable time.
9.
We review the juvenile court’s order terminating parental rights for substantial
evidence. This means we determine whether there is substantial evidence from which a
reasonable trier of fact could find, by clear and convincing evidence, a factual basis for
termination. (In re Lukas B. (2000) 79 Cal. App. 4th 1145, 1154.) In making this
determination, we must “presume in favor of the order, considering 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.) We may not reweigh the evidence or
substitute our judgment for that of the juvenile court. (In re Jamie R. (2001) 90
Cal. App. 4th 766, 774.)
“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.” (In re Sarah M. (1994) 22 Cal. App. 4th 1642,
1649 (Sarah M.).) “Usually, the fact that a prospective adoptive parent has expressed
interest in adopting the minor is evidence that the minor’s 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 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.” (Id. at pp. 1649-1650.)
However, “in some cases a minor who ordinarily might be considered unadoptable due to
age, poor physical health, physical disability, or emotional instability is nonetheless
likely to be adopted because a prospective adoptive family has been identified as willing
to adopt the child.” (Id. at p. 1650.) In the latter cases, courts may determine the minor
is “specifically adoptable” because of the existence of identified prospective adoptive
parents; this is in contrast to the determination that a minor is “generally adoptable.”
(E.g., In re Brandon T. (2008) 164 Cal. App. 4th 1400, 1408 [evidence did not support
determination that minor was generally adoptable but supported finding he was
10.
specifically adoptable]; In re Jerome D. (2000) 84 Cal. App. 4th 1200, 1205 [after
concluding evidence did not support finding of “general adoptability,” appellate court
addressed whether existence of identified prospective adoptive father would support
adoptability finding]; but see In re G.M. (2010) 181 Cal. App. 4th 552, 562 [“Not all
dependency cases fall neatly into one of two scenarios: one, the availability of a
prospective adoptive parent is not a factor whatsoever in the social worker’s adoptability
assessment; or two, the child is likely to be adopted based solely on the existence of a
prospective adoptive parent”] (G.M.).)
Father contends that the Agency did not meet its burden to prove the children were
likely to be adopted within a reasonable time because it failed to provide any information
about an unidentified criminal conviction on the record of one of the prospective
adoptive parents. He relies on a notation in the record suggesting that Julie had a
criminal conviction for which an exemption could be obtained. From this notation, father
speculates that the criminal conviction may be a legal impediment to Julie’s adoption of
David and Madison. We conclude, however, that substantial evidence supports the
juvenile court’s determination that David and Madison were adoptable. Father has
forfeited the issue of possible legal impediment to adoption, and even if he had preserved
the issue for appeal, his contention would fail on the merits.
“Once a court sets a hearing pursuant to section 366.26 to select and implement a
permanent plan for a dependent child, the department must prepare an assessment
(§§ 361.5, subd. (g)(1), 366.21, subd. (i)(1), 366.22, subd. (c)(1)), frequently referred to
as an adoption assessment. Such an adoption assessment provides the information
necessary for the juvenile court to determine whether it is likely the child will be adopted
[citation] and to consequently order termination of parental rights.” (G.M., supra, 181
Cal.App.4th at p. 559.) Courts have recognized that “‘[t]he assessment report is “a
cornerstone of the evidentiary structure” upon which the court, the parents and the child
are entitled to rely.’” (In re Michael G. (2012) 203 Cal. App. 4th 580, 590.)
11.
“The assessment report must address the child’s medical, developmental,
scholastic, mental and emotional status; analyze the likelihood the child will be adopted
if parental rights are terminated; describe the efforts made to identify a prospective
adoptive parent or legal guardian for the child; and provide a preliminary assessment of
the eligibility and commitment of any identified prospective adoptive parent or legal
guardian.” (In re Michael G., supra, 203 Cal.App.4th at p. 590.) Relevant to this appeal,
the preliminary assessment of identified prospective adoptive parents must “include a
social history, including screening for criminal records and prior referrals for child abuse
or neglect, the capability to meet the child’s needs, and the understanding of the legal and
financial rights and responsibilities of adoption .…” (§§ 361.5, subd. (g)(1)(D), 366.21,
subd. (i)(1)(D), 366.22, subd. (c)(1)(D).) “A child’s current caretaker may be designated
as a prospective adoptive parent if the child has lived with the caretaker for at least six
months, the caretaker currently expresses a commitment to adopt the child, and the
caretaker has taken at least one step to facilitate the adoption process. (§ 366.26,
subd. (n)(1).)” (G.M., supra, 181 Cal.App.4th at p. 559.)
Here, the Agency’s “366.26 WIC Report” contained a preliminary assessment of
the prospective adoptive parents, Jennifer and Julie. The preliminary assessment
properly considered their social history, including criminal and child welfare service
history. Jennifer, Julie, and Jennifer’s adult son had submitted fingerprints to Live Scan
for adoption purposes in November 2012, but the results were not available. It was noted
that they had completed Live Scan fingerprinting at the time David and Madison were
taken into protective custody, and “since they have already submitted fingerprinting
without any concerns, the undersigned is confident the livescan fingerprint results would
not prohibit them from taking placement of the children.” The Agency also reported that
Jennifer’s home was an “approved AB 1695 Relative Placement.” Considered together
with other evidence in the record—including evidence that Jennifer and Julie wished to
adopt the children, David and Madison wanted to be adopted by them, and David and
12.
Madison had thrived in their care over the previous 18 months—there was substantial
evidence to support the juvenile court’s determination that David and Madison were
likely to be adopted within a reasonable time.
For his contention that the Agency failed to prove David and Madison were
adoptable, father relies on the following statement in Sarah M., supra, 22 Cal.App.4th at
page 1650: “Where the social worker opines that the minor is likely to be adopted based
solely on the existence of a prospective adoptive parent who is willing to adopt the
minor, an inquiry may be made into whether there is any legal impediment to adoption by
that parent .…”5 Father then points to social worker Pasillas’s log entry from May 2011
(which can be found in attachment L to the Agency’s jurisdiction/disposition report, filed
on June 3, 2011). Documenting her home visit with the prospective relative placement,
Pasillas wrote that she met with Julie and discussed her criminal background check.
Pasillas asked that Julie provide her with an exemption request, three reference letters, a
letter of explanation, and a police report. Julie was given two weeks to provide the
documents.
If a criminal records check of the adults in a prospective relative placement
indicates that a person living in the home has been convicted of a crime for which an
exemption is possible, then a child cannot be placed in the home until a criminal records
exemption is granted by the county. (§ 361.4, subd. (d)(2).) An exemption must be
5The Sarah M. court went on to identify three requirements that could pose legal
impediments to adoption: (1) the prospective adoptive parent must be at least 10 years
older than the child (unless the adoption is by a stepparent, or by a sister, brother, aunt,
uncle, or first cousin, and the court is satisfied the adoption by the relative and any
spouse would be in the best interests of the parties) (Fam. Code, § 8601); (2) the consent
of a child over age 12 is necessary for the child’s adoption (Fam. Code, § 8602); and
(3) a married person, not lawfully separated from the person’s spouse, may not adopt a
child without the consent of the spouse, provided that the spouse is capable of giving that
consent (Fam. Code, § 8603). (Sarah M., supra, 22 Cal.App.4th at p. 1650.) Father does
not argue that any of these potential legal impediments may apply in this case.
13.
“based on substantial and convincing evidence to support a reasonable belief that the
person with the criminal conviction is of such good character as to justify the placement
and not present a risk of harm to the child .…” (Ibid.)
Father asserts the record contains no information at all about the nature of Julie’s
presumed criminal conviction. In our own review of the administrative record, we did
not find any further mention of Julie’s Live Scan report or any exemption request.
Nonetheless, since a child may not be placed in a home unless a criminal records
exemption has been granted and, in this case, the children were placed in Jennifer and
Julie’s home and remained for 18 months, we presume that, if it was necessary, Julie was
granted a criminal records exemption. (§ 361.4, subd. (d)(2); Evid. Code, § 664.) In
addition, the Agency reported to the court on at least two occasions that Jennifer and
Julie’s home was an “approved AB 1695 Relative Placement,” implying that the home
met all statutory requirements.
Now, for the first time, father speculates that Julie’s criminal conviction may be a
legal impediment to adoption because it may fall within the list of criminal convictions
that would disqualify her from adopting. (Fam. Code, § 8712.)6 If father had sought to
introduce evidence regarding a potential legal impediment to adoption, the juvenile court
would have been obligated to admit it. (G.M., supra, 181 Cal.App.4th at p. 561.) But
father did not raise the issue that Julie’s prior criminal conviction might preclude her
from adopting.
In G.M., supra, 181 Cal.App.4th at page 560, the mother raised, for the first time
on appeal, the issue of whether there was a legal impediment to the prospective adoptive
6Family Code section 8712, subdivision (b), provides that “the criminal record, if
any, shall be taken into consideration when evaluating the prospective adoptive
parent .…” In addition, certain listed felonies preclude approval for adoptive placement.
These include felony convictions for child abuse or neglect, spouse abuse, crimes against
a child, crimes involving violence, including rape, sexual assault, or homicide, but not
including other physical assault and battery. (Fam. Code, § 8712, subd. (c)(1)(A).)
14.
parent’s adoption of mother’s two children. Family Code section 8603 provides that a
married person who is not lawfully separated cannot adopt without the spouse’s consent.
In G.M, the mother argued that the prospective adoptive parent, the minors’ great-aunt,
might not be eligible to adopt because there was evidence that she had been married and
there was no documentation showing a lawful separation. Therefore, it was possible that
the great-aunt was not lawfully separated from her husband and could not get his consent.
(G.M., supra, at p. 560.) Our court recognized that, whether the great-aunt was eligible
to adopt would have been relevant at trial; mother could have, for example, asked either
the social worker or the great-aunt about whether she was lawfully separated or could
obtain her husband’s consent to an adoption. (Id. at pp. 562-563.) The mother, however,
made no such effort at trial. As a result, the “mother failed to properly preserve for
appellate purposes her claim of trial court error.” (Id. at pp. 563-564.) Likewise, in this
case, father failed to raise the legal-impediment question in the juvenile court.
Consequently, he may not raise it for the first time on appeal.
Father tries to get around his failure to raise the issue of possible legal impediment
by framing his appellate claim as a challenge to the sufficiency of the evidence. We have
concluded, however, that substantial evidence in the record supports the determination
that David and Madison were adoptable. We observe that the Agency prepared an
adequate adoption assessment, addressing the statutorily required considerations and
providing facts to support adoptability. This case is therefore unlike In re Brian P.
(2002) 99 Cal. App. 4th 616, on which father relies. In Brian P., the “juvenile court did
not have the benefit of an adoption assessment report, which would have presented the
kind of facts needed to support a finding of adoptability.” (Id. at p. 624.)
Finally, even if father had preserved the issue on appeal, it would fail. As the
Agency points out, the list of crimes that are a legal impediment to adoption under
Family Code section 8712 is almost identical to the list of crimes that preclude foster
child placement. (§ 361.4; Health & Saf. Code, § 1522, subd. (g)(1).) Since Julie
15.
presumably was able to obtain a criminal background exemption for placement, her
criminal conviction would most likely not bar her from adopting either. There are some
crimes for which an exemption is possible under Health and Safety Code section 1522
(for foster care licensing), but no exemption is provided in Family Code section 8712 (for
adoption). These crimes are mayhem, any felony punishable by death or imprisonment in
the state prison for life, and any felony in which the defendant inflicts great bodily injury.
(Health & Saf. Code, § 1522, subd. (g)(1)(A)(ii); Pen. Code, § 667.5, subd (c)(2), (7),
(8).) To obtain an exemption for conviction of one of these crimes requires a showing
that the person seeking the exemption “has been rehabilitated as provided in
Section 4852.03 of the Penal Code, has maintained the conduct required in
Section 4852.05 of the Penal Code for at least 10 years, and has the recommendation of
the district attorney representing the employee’s county of residence, or if the employee
or prospective employee has received a certificate of rehabilitation pursuant to
Chapter 3.5 (commencing with Section 4852.01) of Title 6 of Part 3 of the Penal Code.”
(Health & Saf. Code, § 1522, subd. (g)(1)(A)(ii).)
Father suggests that Julie may have been convicted of one of these crimes, i.e,
mayhem, a felony punishable by death or life imprisonment, or a felony inflicting great
bodily injury. But if that were the case, the social worker would have asked Julie for
evidence supporting this type of exemption. Here, however, the social worker did not
ask Julie for a recommendation from the district attorney or any other documents
indicating that Julie’s criminal conviction was the type that would require such extensive
evidence of rehabilitation. In other words, the record does not support an inference that
Julie has a criminal conviction that would be a legal impediment to adoption.
DISPOSITION
The juvenile court order is affirmed.
16.