In re Mary C. ( 2020 )

Filed 5/4/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
In re MARY C., A Person Coming
Under the Juvenile Court Law.
___________________________________
SONOMA COUNTY HUMAN
SERVICES DEPARTMENT, A157256
Plaintiff and Respondent, (Sonoma County
v. Super. Ct. No. DEP-4910)
J.C.,
Defendant and Appellant.
___________________________________
In re MARY C. et al.,
Persons Coming Under the Juvenile
Court Law.
___________________________________
SONOMA COUNTY HUMAN
SERVICES DEPARTMENT, A157444
Plaintiff and Respondent,
(Sonoma County
v. Super. Ct. Nos. DEP-4910,
J.C. et al., DEP-5365)
Defendants and Appellants.
J.C. (Father) and N.E. (Mother) appeal from the termination of their
parental rights to their daughters, Mary C. (age five) and Aurora C. (age
three) on May 24, 2019. They contend the judge erred in finding the children
1
adoptable because the report prepared by the Sonoma County Human
Services Department (Department) for the hearing under Welfare and
Institutions Code1 section 366.26 (section 366.26 report) failed to contain
substantial evidence supporting those findings. They claim the children have
too many special needs to be generally adoptable and should not have been
deemed specifically adoptable because the Department’s section 366.26 report
failed to contain all the statutorily required detail about the prospective
adoptive mother and failed to report at all on her longtime partner who
resides with her. Father also appeals from an order on April 2, 2019,
terminating both parents’ visitation with Mary, but he has made no
arguments in support of that appeal. We shall affirm the judgment in the
parents’ appeal (A157444) and dismiss Father’s separate appeal (A157256) as
abandoned.
I. BACKGROUND
Mary and Aurora have already been involved in the dependency system
for most of their young lives. Mary was first removed from her parents in
June 2016, when she was 18 months old, due to both parents’ drug abuse,
which had led to their chronic unemployment and homelessness.2 With the
exception of 9 or 10 months spent with them in 2017, Mary has been out of
her parents’ custody ever since—by the time parental rights were terminated
she had been in foster care for “almost half of her life.” Aurora was only eight
1 Undesignated statutory references are to the Welfare and Institutions
Code.
Even before the Sonoma County dependency petition, Mother had
2
tested positive for marijuana and methamphetamine or amphetamine twice
during hospital visits in Lake County in 2014 and 2015, including when
Brother was born. The parents also came to the attention of the child welfare
authorities in Arizona in February 2016 due to a loud argument and
unsanitary and potentially dangerous conditions in their home.
2
months old when she was first removed. Mary and Aurora have one full
sibling (Brother, age four) and an older paternal half-sister, neither of whom
lives with them.
Mary and Aurora live together in the concurrent foster-adoptive home
of Shawn D., a single woman in her forties who formerly had a career in early
childhood development but now stays at home with the children. Shawn lives
with her partner and their 16-year-old daughter. She also has two adult sons
(ages 24 and 26), who live independently. Both Mary and Aurora have lived
there since December 2017. Shawn has lived in the same home in Lake
County for 13 years. Shawn and her partner appear to have a stable
relationship, having raised their 16-year-old daughter together.
In June 2016 Mother and Father were found living in a tent with Mary
(age 18 months) and Brother (8 months), with marijuana and a bong within
easy reach of the children. Mother and Father both tested positive for
methamphetamine and marijuana. Mary and Brother were removed and
declared dependents under section 300, subdivision (b).
Mother managed to find work, the couple found transitional housing for
six months, and they regained custody of Mary on a trial basis in March
2017. In April 2017, Aurora was born. Aurora was not detained, and Mary
remained in her parents’ care. When their time in transitional housing ran
out at the end of July 2017, they moved in with the maternal grandmother in
Lake County, which caused Mother to lose her job. A couple months later the
grandmother decided to move out of state and the parents were homeless
again. They were, in fact, still homeless and living in their car when Mary’s
dependency case was dismissed on November 20, 2017.
At the same hearing, reunification services were terminated for Mother
and Father with respect to Brother, who had severe health problems,
3
including fetal alcohol spectrum disorder, related to his premature birth and
exposure to substances in utero. In May 2018 parental rights were
terminated and Brother was freed for adoption. He was adopted, and Mary
and Aurora have contact with him and with their half-sister through Shawn’s
efforts.
The family was still homeless when, less than a month after Mary’s
dependency was dismissed, the police found them in a car parked at a gas
station just after midnight with the engine running and Father slumped over
in the driver’s seat. Mother was passed out in the passenger seat, and Mary
was strapped into her car seat in the back seat of the car. (Aurora was not
mentioned in the police report.) The parents were difficult to rouse and
appeared to be under the influence. Marijuana and paraphernalia were
found throughout the car. Mother had a methamphetamine pipe in her
jacket pocket and was cited for possession of drug paraphernalia.
Mary and Aurora were taken into protective custody on December 22,
2017, and later were declared dependents under section 300, subdivisions (b)
and (j). Aurora had a flat, bald spot on the back of her head, apparently from
being left in her car seat for prolonged periods, so that her head appeared to
be deformed. She also had deteriorated muscle mass. She did not move
much or make many sounds. During the dependency, her development
improved markedly, as did Mary’s. By March 20, 2018, Shawn had indicated
her desire to adopt Mary and Aurora.
Meanwhile, the parents remained homeless, struggling daily just to get
their basic needs met for food and shelter. They were looking for work, but
apparently found none. They engaged in services half-heartedly, but they did
participate regularly in visitation. Suffice it to say reunification efforts
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failed, and the court terminated reunification services on January 4, 2019
and set a hearing under section 366.26.
Before the section 366.26 hearing was held, the maternal grandmother
petitioned under section 388 to adopt Mary, but her petition was denied
because Mary was already placed in a concurrent foster-adoptive home. The
section 366.26 hearing was then delayed by the Department’s request under
section 388 for termination of visits between Mary and her parents. After a
hearing, at which Mary’s therapist testified that the visits were detrimental
to Mary, the court terminated Mary’s visitation with her parents. Father
alone appealed that order.
On April 26, 2019, the Department filed its section 366.26 report, which
recommended termination of parental rights and a permanent plan of
adoption. The section 366.26 report described Mary as a generally healthy
child who had certain medical and behavioral problems, which we shall
discuss in more detail in part II.D., below. In an assessment by the regional
center, Mary’s cognitive and academic skills were in an age-appropriate
range. She had attended preschool for a few months and was scheduled to
begin a transitional kindergarten in September 2019.
The social worker wrote that Aurora was in general good health but
had asthma and other medical and developmental issues we shall discuss in
part II.D., below. The regional center had assessed Aurora as suffering
global developmental delays. She had been referred for occupational therapy,
physical therapy, and she had an early childhood educator who worked with
her on cognitive, social, emotional, and adaptive skills.
The section 366.26 report reminded the court that the children had
lived with Shawn and her family for 16 months, and assured it that Shawn
was committed to providing a permanent home for them. Shawn’s partner
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was also potentially interested in adopting the girls. Nevertheless,
throughout the record, Shawn is identified as the sole prospective adoptive
parent.
The social worker had observed Mary and Aurora’s connection to their
foster-adoptive family, including Shawn’s other children. Both children went
to Shawn for physical comfort and appeared safe and secure in the foster-
adoptive home. Both children had strong emotional ties to Shawn. The
social worker opined that the children were generally adoptable, “as there are
many potential adoptive families who would want to adopt them.” She noted
that although they have special needs, they are “young, sweet and engaging
children.”
On May 24, 2019, the court held the section 366.26 hearing. The court
took judicial notice of its file, including the social workers’ reports. Mother
and Father testified in support of their claim of a beneficial parental
relationship as an exception to termination of parental rights. (§ 366.26,
subd. (c)(1)(B)(i).) After hearing testimony and argument, the court found the
exception did not apply, found it was likely the children would be adopted,
and selected adoption as the permanent plan. It terminated both parents’
rights in the children.
Both parents appealed. They claim the termination of their parental
rights should be reversed because the court’s findings of adoptability for both
children were unsupported by substantial evidence.
II. DISCUSSION
A. The Department’s Duty To Assess Adoptability
Prior to the section 366.26 hearing, the Department was required to
prepare and provide to the court a section 366.26 report, to include, among
other things: (1) An evaluation of each child’s medical, developmental,
scholastic, mental, and emotional status (§§ 366.21, subd. (i)(1)(C)(i), 366.22,
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subd. (c)(1)(C)(i)); (2) a preliminary assessment of the eligibility and
commitment of any identified prospective adoptive parent, including a social
history with screening for criminal history or prior referrals for child abuse or
neglect, the prospective adoptive parent’s capability to meet the child’s needs,
and his or her understanding of the legal and financial rights and
responsibilities of adoption (§§ 366.21, subd. (i)(1)(D), 366.22, subd. (c)(1)(D));
(3) the relationship of the child to any identified prospective adoptive parent,
the duration and character of the relationship, the degree of attachment of
the child to the prospective adoptive parent, the adoptive parent’s strong
commitment to caring permanently for the child, the motivation for seeking
adoption, a statement from the child concerning the placement and adoption
(§§ 366.21, subd. (i)(1)(E), 366.22, subd. (c)(1)(E)); and (4) an analysis of the
likelihood that the child will be adopted if parental rights are terminated
(§§ 366.21, subd. (i)(1)(G), 366.22, subd. (c)(1)(F)). The purpose of the section
366.26 report is to provide the juvenile court with the information necessary
to determine the permanent plan for the children. (See In re B.D. (2019)
35 Cal. App. 5th 803, 821 (B.D.).)
Four components of the section 366.26 report were devoted to
discussion of Shawn and her relationship with the girls.3 These
components—which we shall call the “adoptive family assessment”—covered
the content designated in items (2), (3), and (4) in the preceding paragraph.
3 These components are “Children’s Attitude Toward Placement and
Adoption,” “Preliminary Assessment of Eligibility and Commitment of
Potential Adoptive Parent,” “Relationship of the Children to the Identified
Prospective Adoptive Parents,” and “Analysis of the Likelihood of Adoption”
(collectively, adoptive family assessment) and reflect content required by law.
(See §§ 366.21, subd. (i)(1)(D), (E) & (G), 366.22, subd. (c)(1)(D), (E) & (F).)
7
B. Any Arguments Based Solely on Omissions from or Deficiencies in
the Section 366.26 Report Have Been Forfeited
Parents specifically complain of omissions of information statutorily
required to be included in the adoptive family assessment and generally
criticize the thoroughness of the Department’s investigation of Shawn and
her partner as potential adoptive parents. They claim the adoptive family
assessment “omitted essential information,” thereby depriving the court of
substantial evidence for its findings of adoptability. Because section 366.26
reports are “designed to make sure the court has the evidence before it to
make the necessary findings at each stage of the proceeding” (B.D., supra,
35 Cal.App.5th at p. 821), the parents conclude the juvenile court did not
have “sufficient evidence” before it to find Mary and Aurora adoptable.
To the extent parents base their argument on the omission from the
report of statutorily required information, they have forfeited their claim by
failing to assert it in the juvenile court. (In re Crystal J. (1993)
12 Cal. App. 4th 407, 411–412.) They rely on In re Brian P. (2002)
99 Cal. App. 4th 616 to argue they did not waive their rights to contest the
sufficiency of the section 366.26 report. Brian P. held that challenges to
defects in the section 366.26 report may be waived, while the sufficiency of
the evidence of adoptability may not. (Id. at pp. 622–623.) Thus, while the
parents may question whether substantial evidence supports the juvenile
court’s findings of adoptability, by failing to object in juvenile court they have
forfeited any challenge to specific defects in the report, such as omission of
required content or insufficient discussion of required topics.
We do not say such omissions or deficiencies count for nothing.
“ ‘Deficiencies in an assessment report . . . go to the weight of the evidence,
and if sufficiently egregious may impair the basis of a court’s decision to
terminate parental rights.’ ” (In re Valerie W. (2008) 162 Cal. App. 4th 1, 14,
8
quoting In re Crystal J., supra, 12 Cal.App.4th at p. 413.) But we consider
the evidence in the whole record in determining whether substantial evidence
supports the termination of parental rights, and specifically the finding of
adoptability. (In re Angelia P. (1981) 28 Cal. 3d 908, 924; In re Brittany H.
(1988) 198 Cal. App. 3d 533, 549.) The defects in the section 366.26 report in
this case were not egregious, and will not by themselves support reversal.
C. Parents’ Contentions
Mother claims there was no substantial evidence to support the
juvenile court’s finding of general or specific adoptability, and Father joins in
her arguments.4 Parents claim Mary and Aurora are not generally adoptable
because they have too many medical and behavioral issues. Parents also
argue the girls are not specifically adoptable because Shawn and her partner
have not been sufficiently vetted.
The first of these claims implicates the Department’s “evaluation of the
child’s medical, developmental, scholastic, mental, and emotional status”
(§§ 366.21, subd. (i)(1)(C)(i), 366.22, subd. (c)(1)(C)(i)), and the second
implicates the Department’s “preliminary assessment of the eligibility and
commitment of any identified prospective adoptive parent” (§§ 366.21, subd.
(i)(1)(D), 366.22, subd. (c)(1)(D)). On the first point, the parents do not
complain that the section 366.26 report failed to contain an evaluation of the
children’s status; rather, they complain about the weight given (or not given)
by the juvenile court to the children’s identified problem areas. On the
4 Father filed a separate opening brief, including an integrated
statement of facts and procedure, but he joins in Mother’s arguments in lieu
of briefing his own. When we describe a position taken by Mother in the
appeal, it reflects Father’s position as well.
9
second point, they claim the discussion in the adoptive family assessment
was missing or insufficient.
D. Substantial Evidence Supports the Findings that the Children
Were “Likely To Be Adopted,” or Were “Generally Adoptable”
The court was not required to find the children “generally” or
“specifically” adoptable.5 (In re A.A. (2008) 167 Cal. App. 4th 1292, 1313.) It
was required only to find by clear and convincing evidence that the children
were “likely” to be adopted within a reasonable time (ibid.; In re K.B. (2009)
173 Cal. App. 4th 1275, 1292; In re Gregory A. (2005) 126 Cal. App. 4th 1554,
1561–1562; § 366.26, subd. (c)(1)), which it did. Parents contend the girls’
significant medical and behavioral issues should have prevented such a
finding.
In 2016, during the first dependency, Mary was diagnosed with fetal
alcohol spectrum disorder, but her development improved while in foster
care. She came into the current dependency with “global delays,” needing
“speech therapy and a behavioral specialist.” At the six-month review, the
social worker did report that Mary, then three years old, displayed
“significant” behavioral issues, such as throwing tantrums, behaving
aggressively with others, and self-harming by biting herself and banging her
head. In that same time period, the court-appointed special advocate (CASA)
for Mary filed a report in which she repeated Shawn’s claim that, after seeing
5 There are unusual cases where a child, due to severe physical or
mental needs, may be deemed adoptable based solely on the fact that a
particular family wants to adopt the child (specific adoptability). (See In re
Carl R. (2005) 128 Cal. App. 4th 1051, 1058, 1061.) In those circumstances,
instead of focusing on the child’s characteristics, the court must determine
whether there is a legal impediment to adoption. (Id. at p. 1061; In re J.W.
(2018) 26 Cal. App. 5th 263, 267–268.) The present case is not one involving
specific adoptability.
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her birth parents, Mary reverted to infantile behavior, such as wanting to
wear diapers or suck on a pacifier. Mary was nearsighted and had
ophthalmologic needs. She sometimes had encopresis and enuresis and at
least once engaged in scatolia (fecal smearing). She had a chronic rash. She
was scheduled to undergo genetic testing. Because she walked on her tip
toes, she had also been referred for orthopedic care. Mary participated
weekly in individual therapy and parent-child interaction therapy (which
helped Shawn develop strategies for coping with Mary’s challenging
behaviors). A pediatrician recommended a special education preschool for
her due to behavior issues and global delays but the parents declined to
enroll her.
Aurora “progressed significantly” during the first two months of foster
care. Still, the CASA reported at the six-month review that Aurora did not
walk until she was 15 months old, was not stable on her feet, choked easily,
and did not vocalize at 17 months. By the time parental rights were
terminated, Aurora, according to her parents, had “global developmental
delays, vision problems, facial twitching, choking, hand flapping, daily
tantrums, aggression to herself and others, obsessive behaviors, and she was
being watched as potentially on the autism scale,” but was considered too
young to diagnose. Aurora was “scheduled for genetic testing in the summer
of 2019.” She also walked on her toes and had some anxiety and tantrums,
but did well with structure.
Mother and Father contend these physical, behavioral and emotional
difficulties should have made their daughters ineligible for a finding of
adoptability. Our review is for substantial evidence to support the court’s
findings, by clear and convincing evidence, that Mary and Aurora are “ ‘likely
to be adopted’ ” within a reasonable time (In re J.W., supra, 26 Cal.App.5th at
11
p. 267; In re Gregory A., supra, 126 Cal.App.4th at pp. 1561–1562), which is a
“low threshold.” (In re K.B., supra, 173 Cal.App.4th at p. 1292.)
“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.” (In re Sarah M. (1994)
22 Cal. App. 4th 1642, 1649–1650, italics omitted (Sarah M.); see also In re
K.B., supra, 173 Cal.App.4th at p. 1293 [“ ‘[I]t is only common sense that
when there is a prospective adoptive home in which the child is already
living, and the only indications are that, if matters continue, the child will be
adopted into that home, adoptability is established. In such a case, the literal
language of the statute is satisfied, because “it is likely” that that particular
child will be adopted’ ”].)
Mother disputes this point, citing cases in which an appellate court has
reversed a termination of parental rights for insufficient evidence based on
deficient evidence of adoptability in the section 366.26 report. In re Asia L.
(2003) 107 Cal. App. 4th 498 involved two extremely hyperactive children who
needed “specialized placement,” where a prospective adoptive family had not
been identified. (Id. at p. 511.) In re Jerome D. (2000) 84 Cal. App. 4th 1200
involved a child with a prosthetic eye whose prospective adoptive parent had
a criminal history of domestic violence and was listed as a perpetrator by
Child Protective Services for emotionally abusing his nephews and niece. (Id.
at p. 1203.) The case also involved the beneficial parental relationship
exception to termination of parental rights, where the child’s attorney agreed
12
with the mother that parental rights should not be terminated. (Id. at
pp. 1206–1207.) Neither case supports an argument that unobjected-to
deficiencies in the section 366.26 report may routinely be grounds for
reversing a finding of adoptability.
In re Valerie W., supra, 162 Cal. App. 4th 1 involved one child who was
“emotionally fragile,” whose “behaviors were deteriorating” (id. at p. 10), and
a sibling who had yet to undergo testing for a serious neurological or genetic
disorder (id. at pp. 6, 10). The prospective adoptive parent was the foster
mother, who wanted to adopt the children jointly with her adult daughter.
(Id. at p. 4.) It was not even clear whether such an adoption would be legal,
and none of the information required in the section 366.26 report had been
provided for the adult daughter. (Id. at pp. 7–8, 10–11, 13–16.) We believe it
was the combination of the children’s difficulty in being placed, the one
sibling’s unsettled health status, plus the request for an unusual form of joint
adoption, that convinced the court to reverse. Parents fail to persuade us
that the alleged omissions or deficiencies in the section 366.26 report in this
case will, by themselves, justify reversal of the adoptability findings or the
termination of parental rights.
Finally, Mother argues the opinion of the social worker that the
children were adoptable is not alone sufficient to constitute substantial
evidence of adoptability. (In re Brian P., supra, 99 Cal.App.4th at p. 624; In
re Kristin W. (1990) 222 Cal. App. 3d 234, 253.) The social worker opined that
the children were adoptable, despite their medical and behavioral issues,
because they were “young, sweet and engaging children.” Mother uses this
one sentence as evidence that the judge based his decisions on the social
worker’s opinion alone.
13
There is no reason to suspect the judge made the findings of
adoptability based solely on the social worker’s opinion. On the contrary,
Judge Lawrence Ornell had presided over the family’s two dependency cases
for almost three years and had a wealth of information about these children.
The presence of a foster-adoptive family was evidence of adoptability.
(Sarah M., supra, 22 Cal.App.4th at pp. 1649–1650; see also In re K.B.,
supra, 173 Cal.App.4th at p. 1293.) The fact that Brother, who had more
severe health problems, had been adopted was evidence of adoptability. The
fact that the two little girls could form loving, trusting relationships with
Shawn was evidence of adoptability. To suggest there was nothing in the
record but the opinion of a social worker to support the judge’s findings of
adoptability is to ignore the evidence of the children’s positive qualities and
their close bonding with the prospective adoptive family, which speak
volumes about their adoptability.
E. Any Suggestion that Shawn D. Does Not Understand the
Responsibilities of Adoption Is Speculative
A section 366.26 report’s “preliminary assessment” of the “identified
prospective adoptive parent,” must include discussion of his or her
“understanding of the legal and financial rights and responsibilities of
adoption and guardianship.” (§§ 366.21, subd. (i)(1)(D), 366.22, subd.
(c)(1)(D).) The section 366.26 report in this case contained a general
evaluation of Shawn as a prospective adoptive parent, but did not specifically
recite her understanding of the responsibilities of adoption. Mother seeks to
use this absence of information to suggest that Shawn lacks an appreciation
of all she would be taking on by adopting Mary and Aurora. This, too,
Mother claims as a basis for attacking the judge’s adoptability findings and
ultimately the termination of parental rights.
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Mother’s challenge, besides being forfeited (see ante, part II.B.), is far
off-the-mark. Her supporting evidence is all but nonexistent. The adoptive
family assessment noted that Shawn demonstrated good parenting practices
and had the capacity to meet the children’s needs. She provided a safe,
secure and comfortable routine in a warm, child-friendly home. Shawn and
the other family members gave the two girls an “abundance of love and
positive regard” and encouraged their educational, recreational, and social
opportunities.
Shawn had been caring for these two children for 17 months when the
court terminated parental rights. We cannot credit Mother’s speculation that
Shawn might not realize what responsibilities she would be undertaking in
adopting them. There is every indication in the record that Shawn knows
exactly what is required to care for the girls and is up to the task.
Mother points out that, at the time the section 366.26 report was filed,
Shawn was requesting continuing behavioral health services for Mary, and
the Department was looking into arranging for such services in Lake County.
Because Shawn used to work in early child development but was no longer
employed, Mother also asks us to infer that she was “not bringing in income.”
Mother uses these two bits of information to construct a theory that Shawn is
ill-equipped, emotionally and financially, to handle Mary and Aurora on her
own, without government help. The implication is that she is a poor choice as
an adoptive parent. Yet, Mother argues, the children are at risk of becoming
“legal orphans” if the adoption does not go through, because no one else
would want to adopt them due to their special needs.
We refuse to draw such negative conclusions or make such dire
predictions based on Shawn’s simple inquiry about available services. That
she is proactive about seeking professional help for the children is to her
15
credit, and seeking government help when available is neither shameful nor
disqualifying. We know of no requirement that a person must be prepared to
go it entirely alone with a special-needs child before he or she may be eligible
to adopt. And more importantly, such a consideration is irrelevant to
whether the children are likely to be adopted. (See Sarah M., supra,
22 Cal.App.4th at p. 1651; In re Scott M. (1993) 13 Cal. App. 4th 839, 844
(Scott M.).)
As for Shawn’s financial preparedness, we presume official duty has
been performed or will be performed as required by law. (Evid. Code, § 664.)
We presume the social worker or the adoption social worker undertook or will
undertake any necessary and appropriate financial inquiry. Parents have
pointed to nothing in the record and presented no evidence to the contrary.
F. Suitability of the Prospective Adoptive Mother Is Not at Issue
We emphasize that the statutory scheme requires only a “preliminary
assessment of the eligibility and commitment of any identified prospective
adoptive parent.” (§§ 366.21, subd. (i)(1)(D), 366.22, subd. (c)(1)(D), italics
added.) Parents here essentially challenge the suitability of the prospective
adoptive family, which is not relevant at a section 366.26 hearing. In
Scott M., supra, 13 Cal. App. 4th 839, the parents sought to inquire at a
contested section 366.26 hearing whether the foster parents had appropriate
childcare arrangements in place for times when the prospective adoptive
mother planned to attend college classes, and whether the prospective
adoptive family would receive special funding to care for the children. (Id. at
pp. 842–843.) The trial court sustained relevancy objections, which the Court
of Appeal upheld, holding that “a section 366.26 hearing does not provide a
forum for the minors’ parent to contest the ‘suitability’ of a prospective
adoptive family.” (Id. at p. 844.) The issue of suitability is reserved for the
subsequent adoption proceeding. (Ibid.)
16
“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.’ ”
(Sarah M., supra, 22 Cal.App.4th at p. 1649.) There being no requirement of
a potential adoptive parent at all to establish general adoptability, parents
correspondingly have no right to challenge Shawn’s suitability (id. at
pp. 1649–1650; Scott M., supra, 13 Cal.App.4th at p. 844), for even if Shawn
should prove to be unsuitable, the finding that Mary and Aurora are “likely to
be adopted” incorporates a finding that another willing adoptive parent is
likely to be found.
G. Shawn D.’s Partner Presumably Was Screened Before
Foster Placement
For the “prospective adoptive parent. . . , particularly the caretaker, . . .
[a section 366.26 report must provide] a social history including screening for
criminal records and prior referrals for child abuse or neglect . . . .”
(§§ 366.21, subd. (i)(1)(D), 366.22, subd. (c)(1)(D).) Parents contend Shawn’s
partner had not been so screened. The statutes do not, on their face, require
a screening of all members of the adoptive parent’s household.
Moreover, since Shawn was also the foster mother, we may presume
the required background and child welfare checks on her partner were
performed before the children were placed in the foster home. California law
requires all adults residing in a foster home to be screened for criminal
history and prior child abuse referrals. (Cal. Code Regs., tit. 22, §§ 88019
[Criminal Record Clearance], 88019.2 [Child Abuse Central Index review].)
Absent evidence to the contrary—and parents offer none—we presume the
17
appropriate public personnel ensured that the screens were performed.
(Evid. Code, § 664.)
Mother relies extensively on B.D., supra, 35 Cal. App. 5th 803 in
questioning the partner’s safety with the children. Her aim is off-target.
B.D. does not stand for the proposition that appellate courts should
micromanage the preparation of section 366.26 reports. Though B.D. found
an “incomplete” section 366.26 report so thoroughly undermined the
evidentiary basis for the termination of parental rights that it constituted
reversible error (B.D., supra, at pp. 812, 821–824), parents whose rights have
been terminated who then seek to attack the termination order by simply
pointing to omissions in the section 366.26 report will find nothing in B.D.—
properly read—to support that line of attack.
The holding of B.D. cannot be unmoored from its unique procedural
posture. In B.D., the birth parents, whose rights had been terminated,
brought to this court’s attention evidence that had not been produced to the
juvenile court, revealing that the adoptive father’s parental rights to his own
children had been terminated years earlier, that he had served time in prison
for a home-invasion burglary, and that he had recently been accused of
physical abuse of B.D. and neglect of another child living in the adoptive
home. He also allowed his adult son and his adult nephew to live in the
house, though the son had been found to have committed sexual offenses
against his peers as a juvenile and the nephew (who had been sexually
abused as a child) was allowed to share a bedroom with eight-year-old B.D.
(B.D., supra, 35 Cal.App.5th at pp. 809–812.)
Unlike in B.D., there is no evidence in this case of prior or current
misconduct by Shawn’s partner. B.D. involved what was either a gross
oversight or unfortunate unwillingness to disclose full information to the
18
court. (B.D., supra, 35 Cal.App.5th at pp. 811–813.) There is no basis for
believing the same kind of irregularity occurred here. The facts in B.D. were
so egregious that we took postjudgment evidence on appeal (id. at pp. 809,
815–818), another irregular aspect of the case. In B.D. we reversed the order
terminating parental rights because the omission of crucial information from
the section 366.26 report (id. at pp. 821–824) put the child at risk and
amounted to a violation of B.D.’s due process rights. (Id. at pp. 810, 824–
828.) We do not perceive a similar situation here.
Parents here have alleged nothing even approaching the showing made
by B.D.’s parents. They cannot, merely by pointing to an omission in the
section 366.26 report, gin up a case of reversible error. Shawn and her
partner had been co-parenting Mary and Aurora for 17 months before the
section 366.26 hearing took place. The partner was not completely unknown
to the Department—or to the court—as Mother suggests. If any concern had
arisen about him during the dependency, one would expect to see it reflected
in the periodic social workers’ reports and in the section 366.26 report, and it
is not. (See B.D., supra, 35 Cal.App.5th at p. 812.)
We see nothing in the record suggesting that Shawn’s partner
constitutes a threat to Mary or Aurora or that he puts the adoption at risk,
and parents have offered no such evidence under Code of Civil Procedure
section 909. We are confident all of the matters about which they express
concern will be thoroughly investigated in connection with the adoption. (See
Fam. Code, §§ 8712, subd. (c), 8730; Evid. Code, § 664.) These are not
matters of consequence to the adoptability finding at a hearing under section
366.26. (Sarah M., supra, 22 Cal.App.4th at pp. 1648–1651; Scott M., supra,
13 Cal.App.4th at p. 844.)
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H. Father’s Appeal in A157256 Must Be Dismissed as Abandoned
A hearing was held on April 2, 2019, on the Department’s section 388
petition to terminate the parents’ visitation with Mary. Mary’s therapist
testified to her opinion that visits with the parents were retraumatizing
Mary. The therapist observed both aggression and regression in Mary, which
she characterized as a symptom of post-traumatic stress disorder. The
behaviors reportedly worsened before and after visits with her parents. The
court terminated parental visitation with Mary after the hearing.
On May 9, 2019, Father filed a notice of appeal (A157256) specifying
that he was appealing from the April 2, 2019 order terminating visitation
with Mary. Parental rights were not terminated until May 24, 2019. Father
also filed a notice of appeal (A157444) on June 10, 2019, challenging the
termination of parental rights.
In October 2019, we consolidated the two appeals at Father’s request.
Father filed a separate opening brief in the consolidated appeal, which
included a full statement of facts and procedure, but simply joined in
Mother’s arguments in lieu of briefing his own. He indicated he was
challenging the order terminating parental rights and did not raise any
arguments concerning the order terminating visitation. Likewise, he filed a
letter in lieu of a reply brief, simply joining in Mother’s reply.
When an appellant’s briefs fail “to make any arguments to support any
theory of error,” but there is no basis to conclude the appeal is frivolous, the
appeal is deemed abandoned. (Berger v. Godden (1985) 163 Cal. App. 3d 1113,
1120.) “In this circumstance, dismissal of the appeal, with no consideration
on the merits as to the correctness of the judgment or order from which the
appeal is taken, is the proper disposition.” (Ibid.)
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III. DISPOSITION
In appeal A157444, the orders of the juvenile court on May 24, 2019 are
affirmed. Father’s appeal in A157256 is dismissed.
STREETER, Acting P. J.
WE CONCUR:
TUCHER, J.
BROWN, J.
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A157256 / A157444
In re Mary C./Sonoma County Human Services Department v. J.C.
In re Mary C. et al./Sonoma County Human Services Department v. J.C. et al.
Trial Court: Sonoma County Superior Court
Nos. DEP-4910, DEP-5365
Trial Judge: Hon. Lawrence E. Ornell
Counsel for Appellant J.C.: Matthew I. Thue,
by appointment of the Court of Appeal
under the First District Appellate Project’s
Independent Case System
Counsel for Appellant N.E.: Linda S. Votaw,
by appointment of the Court of Appeal
under the First District Appellate Project’s
Independent Case System
Counsel for Respondent: Bruce D. Goldstein, County Counsel (Sonoma);
Amy S. Ackerson, Deputy County Counsel
22