In re A.G. CA4/2

• Court: California Court of Appeal
• Decided: November 9, 2020
• Docket: E075280
• Status: Unpublished

Opinion

Filed 11/9/20 In re A.G. CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re A.G., a Person Coming Under the Juvenile Court Law.

SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E075280

Plaintiff and Respondent, (Super.Ct.No. J278323)

v. OPINION

A.M.,

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes,

Judge. Affirmed.

William Hook, under appointment by the Court of Appeal, for Defendant and

Appellant.

Michelle D. Blakemore, County Counsel, and David Guardado, Deputy County

Counsel, for Plaintiff and Respondent.

1 I.

INTRODUCTION

Antonio M. (Father) appeals the juvenile court’s order terminating his parental

rights to two-year-old A.G. and freeing A.G. for adoption. Father contends substantial

evidence does not support the juvenile court’s finding that A.G. was adoptable. We

disagree and affirm.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A.G.’s mother S.G. (Mother) gave birth to a child, A., who tested positive for

methamphetamines. Mother informed the San Bernardino Department of Family and

Child Services (the Department) that Father was not A.’s father, but he was A.G.’s father.

Father confirmed that he was A.G.’s father, but that A.G. was not in his care. A.G. and

A. were removed from Mother’s care and A.G. was placed with Father.

In October 2018, the Department filed a petition under Welfare and Institutions 1 Code section 300, subdivision (b), stating that Father had a history of substance abuse.

At a detention hearing, the juvenile court ordered A.G. and A. removed from Mother’s

care and that A.G. remain in Father’s care. The juvenile court set a combined

jurisdiction/disposition hearing for November 26, 2018.

1 Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.

2 In preparation for the hearing, the Department prepared a report. The Department

reported, among other things, that A.G. had no behavioral issues.

The juvenile court held a jurisdiction/disposition hearing on November 26, 2018,

which only Mother attended. Mother reported that Father was not making A.G. available

for scheduled visits. The juvenile court continued the hearing to January 14, 2019, so

Mother could obtain a paternity test for A.

On January 10, 2019, the Department filed an amended section 300, subdivision

(b) petition in which the Department sought to detain A.G. from Father’s care. The

Department reported that Father failed to drug tests on three separate occasions. Father

also frequently failed to bring A.G. to Mother’s scheduled visits on time.

On January 11, 2019, the juvenile court held a detention hearing on the amended

petition. The juvenile court made temporary detention findings and orders and continued

the detention hearing to the date of the combined jurisdiction/disposition hearing on

January 14, 2019.

On January 14, 2019, the juvenile court held a combined jurisdiction/disposition

hearing and a detention hearing on the amended petition. The juvenile court again

continued the combined jurisdiction/disposition hearing to February 11, 2019, but

ordered A.G. detained with the caretakers where A. had been placed.

On February 11, 2019, the juvenile court held a combined jurisdiction/disposition

hearing. Father requested that A.G. be returned to his care, which the juvenile court

denied. The juvenile continued the matter to March 21, 2019.

3 On March 21, 2019, the juvenile court held a combined jurisdiction/disposition

hearing, which neither Father nor Mother attended. The Department reported that Father

failed to participate in services, returned a positive drug test, and subsequently failed to

drug test twice. The juvenile court continued the matter to May 6, 2019.

On May 6, 2019, the juvenile court held a combined jurisdiction/disposition

hearing. Again, neither Father nor Mother were present for the hearing. The Department

again reported that Father failed to participate in services, and failed to drug test. The

juvenile court found the allegations in the amended petition true and ordered A.G.

removed from Father and Mother. A.G. was placed in foster care.

In November 2019, the juvenile court held a section 366.21, subdivision (e) six-

month status review hearing, which Mother and Father attended. The Department

recommended that reunification services be terminated and that the trial court set a

section 366.26 hearing to establish a permanent plan of adoption for A.G. and A.

The Department reported that A.G. had issues regulating his emotions, threw

tantrums, and sometimes acted aggressively toward A., who had been placed in the same

foster home as A.G. A.G. had bonded with his foster parents, who he called “mom” and

“dad.” The Department also reported that the foster parents were committed to adopting

A.G. and A.

At Mother’s request, the juvenile court set the hearing for a contest, which was

scheduled for January 22, 2020. Father did not show up to the hearing. The Department

reported that Father continually failed to visit A.G. The juvenile court terminated

4 reunification services and set the matter for a section 366.26 hearing to determine A.G.’s

permanent plan.

In preparation for the section 366.26 hearing, the Department submitted a report

recommending that the juvenile court terminate Father’s parental rights to A.G. and free

A.G. for adoption. The Department reported that A.G.’s foster parents had difficulty with

his aggressive behavior toward A., but that he had been receiving therapy to improve his

behavior. A.G.’s foster mother reported that she was pregnant and feared that A.G. might

be aggressive toward her expected child. Because of his behavior, A.G.’s therapist

recommended that A.G. be placed in intensive foster care.

In response, A.G.’s social worker called his foster mother, who stated that she

could not meet A.G.’s needs and asked that he be placed elsewhere. The social worker

told A.G.’s foster mother that doing so could jeopardize A.’s placement. To address

A.G.’s foster mother’s concerns, the social worker held a Children and Family Team

(CFT) meeting. After the meeting, the social worker had “no doubt that [A.G.’s foster

parents] are committed to adopting both [A.G. and A.].”

In June 2020, the juvenile court held a contested section 366.26 hearing, which

Father attended. At the contested hearing, the juvenile court found that A.G. was

adoptable and no exception to adoption had been established. The juvenile court

therefore terminated Father’s parental rights and freed A.G. for adoption. Father timely

appealed.

5 III.

DISCUSSION

Father’s only argument on appeal is that the juvenile court erroneously found that

A.G. was adoptable. He contends A.G. was not adoptable because of his behavioral

issues. We conclude substantial evidence supports the juvenile court’s finding that A.G.

was adoptable given that his foster parents were “committed” to adopting him.

At a section 366.26 hearing, the juvenile court selects and implements a permanent

plan for the dependent child. (In re K.P. (2012) 203 Cal.App.4th 614, 620.) These

include (1) adoption, necessitating termination of parental rights, (2) guardianship, or (3)

long-term foster care. (§ 366.26, subds. (c)(1), (4)(A); In re J.C. (2014) 226 Cal.App.4th

503, 528.) If the court finds the child is adoptable, it “‘shall terminate parental rights’”

and select adoption as the child’s permanent plan, unless it finds that one or more

exceptions to the statutory adoption preference applies. (In re K.P., supra, at p. 620; see

§ 366.26, subd. (c)(1)(A)-(B).) We review the record to determine if there is substantial

evidence from which a reasonable trier of fact could find by clear and convincing

evidence that the child was likely to be adopted within a reasonable time. (In re J.W.

(2018) 26 Cal.App.5th 263, 267.)

Father contends there was no such substantial evidence because A.G.’s foster

parents expressed reservations about adopting him because of his behavioral issues. In

Father’s view, A.G.’s “serious behavioral issues . . . make it difficult to find a family

willing to adopt him.” We disagree.

6 Father notes that A.G.’s foster mother told the Department that she could not meet

A.G.’s needs and asked him to be placed with another foster family. But after holding a

CFT meeting with A.G.’s foster mother, the social worker indicated in a section 366.26

report that she had “no doubt that [A.G.’s foster parents] are committed to adopting [A.G.

and A.].” The social worker further stated that A.G. and A. “are appropriate children to

be adopted due to their ages . . . and due to their current caregivers’ willingness to pursue

legalizing the parental relationship to the child through adoption. Adoption by their

caregivers will provide the children with a stable permanent home.” The social worker

therefore recommended that A.G. and A. “be freed from their birth parents in order to be

placed for adoption” with their foster parents, who are “committed to [A.G. and A.’s]

long-term care.”

There is no evidence in the record that the social worker’s assessment changed

between the time of the CFT meeting and when Father’s parental rights were terminated a

few months later. There is likewise no evidence to suggest that A.G.’s foster parents

were not “committed to adopting [A.G.]” at the time of the section 366.26 hearing

because of A.G.s behavioral issues, as Father contends. Rather, the social worker

explicitly recommended that A.G. and A. be freed for adoption because their foster

parents were “committed to adopting” A.G. and A. and “committed to their long-term

care.”

Moreover, “there is no indication [A.G.’s] behavioral problems were so severe as

to make the court’s finding of adoptability unsupported,” as Father argues. (In re Lukas

7 B. (2000) 79 Cal.App.4th 1145, 1154.) Despite A.G.’s behavioral issues, which have

improved, his foster parents are still “committed” to adopting him, which shows that he is

likely to be adopted within a reasonable time. (See In re R.C. (2008) 169 Cal.App.4th

486, 492 [“R.C.’s caregivers are aware of his challenges and nevertheless remain

committed to adopting him. From this, a reasonable inference can be drawn that R.C.’s

age, physical and emotional condition and other personal attributes are not likely to

dissuade individuals from adopting him.”].) Accordingly, there was substantial evidence

to support the trial court’s finding by clear and convincing evidence that A.G. was likely

to be adopted within a reasonable time. (See In re Sarah M. (1994) 22 Cal.App.4th 1642,

1650 [“[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 Marina S. (2005) 132 Cal.App.4th 158, 165

[“[T]he fact that [minor’s grandparents] were interested in adopting [her] by itself

constitutes evidence that she was likely to be adopted.”].)

Father nonetheless contends the juvenile court erred in finding A.G. was

adoptable. In support, he relies on In re Asia L. (2003) 107 Cal.App.4th 498, which he

argues is “analogous.” We disagree. In Asia L., the child’s foster parents stated they

were only “willing to explore adoption of the children,” but thought it was “too soon for

them to make such a permanent and life changing decision” at the time parental rights

were terminated. (Id. at p. 511.) Thus, there was “‘no identified prospective adoptive

parent’” when the juvenile court terminated parental rights and freed the child for

8 adoption. (Ibid.) Because the child’s “foster parents’ willingness to explore the option of

adopting [her] [was] too vague to be considered evidence that some family, if not this

foster family, would be willing to adopt [her],” the Asia L. court held that the juvenile

court erred in finding that she was likely to be adopted within a reasonable time. (Id. at

p. 512, italics added.) Here, unlike the foster parents in Asia L., A.G.’s foster parents

were not simply willing to explore the option of adopting A.G. They are “committed” to

adopting him and “committed to [his] long-term care.”

Father also relies on In re Amelia S. (1991) 229 Cal.App.3d 1060, to support his

argument that A.G. was not adoptable. Amelia S. does not support Father’s position.

There, the juvenile court terminated parental rights to nine of the father’s 10 children, all

of whom had “various developmental, emotional and physical problems, some of a

serious nature.” (Id. at p. 1063.) The children were in five different foster homes, and

two sets of foster parents were “considering ” adoption, while the three other sets of

foster parents did not want to adopt the children. (Id. at pp. 1062-1063.) The Amelia S.

court thus held there was insufficient evidence to support the juvenile court’s finding that

it was likely the children would be adopted within a reasonable time. (Id. at p. 1065.) By

contrast, here, A.G.’s foster parents not only expressed a desire to adopt him, but a social

worker had “no doubt” that they were “committed” to doing so and “committed” to his

long-term care.

Relying on In re Valerie W. (2008) 162 Cal.App.4th 1, Father also claims the

juvenile court erred because the Department’s section 366.26 report was insufficient.

9 Valerie W. is distinguishable. In that case, Vera and her adult daughter, Juana, sought to

adopt two siblings. (Id. at p. 4.) The juvenile court terminated parental rights the

children and freed them for adoption by Vera only, even though “neither the [San Diego

County Health and Human Services Agency] nor Vera and Juana intended to proceed

with Vera as the children’s sole adoptive parent.” (Id. at p. 15.)

The Valerie W. court held the juvenile court erred in doing so because it lacked

critical information, including: (1) whether Juana would qualify as an adoptive parent;

(2) whether Vera would adopt the children if Juana could not do so; (3) whether Vera or

Juana would adopt the children if their proposed joint adoption were not approved; (4)

information about one of the children’s medical needs; and (5) evidence about Vera and

Juana’s social history, their relationship with the children, and their motivations for

adopting the children. (In re Valerie W., supra, 162 Cal.App.4th at pp. 13-15.) Further,

the juvenile court failed to consider whether Vera and Juana could legally adopt the

children as mother and daughter, which the Valerie W. court questioned and directed the

trial court to consider in the first instance on remand. (Id. at p. 16.)

Father contends that, as in In re Valerie W., supra, 162 Cal.App.4th 1, the

Department’s section 366.26 report was insufficient. He argues the report “did not

contain information about the eligibility and commitment of the foster parents, a

description of the relationship between the child and the foster parents, the foster parents’

motivation for seeking adoption, the capability of the foster family to meet the child’s

10 needs, as well as whether the department made other efforts to identify additional

prospective adoptive families.” We disagree.

As we noted, the Department explained in its section 366.26 report that A.G.’s

foster parents represented that they are “committed” to adopting him, and there is no

indication they are unqualified to adopt the children. In fact, the Department stated in the

report that A.G.’s foster parents have cared for him for over a year, have always met his

needs, and are capable of doing so in the future. The Department also stated that A.G.’s

foster parents have cared for him and A. because they “have always had a heart to care

for children in the foster care system and have a desire ‘to be open arms for other kids.’”

Finally, we reject Father’s contention that the juvenile court prejudicially erred

because the Department’s section 366.26 report did not identify “whether the

[D]epartment made other efforts to identify additional prospective adoptive families.”

For one thing, the Department was not required to do so. (See In re I.I. (2008) 168

Cal.App.4th 857, 870 [“Here, the willingness of M.A. and J.C. to adopt supports the

finding of adoptability. Since it is not even necessary that one prospective adoptive home

be identified before a child may be found adoptable, a fortiori, it is not necessary that

backup families be identified.”].)

But even if the Department were required to consider additional prospective

adoptive families, we conclude the error, if any, was harmless. “Deficiencies in an

assessment report surely 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 Crystal J.

11 (1993) 12 Cal.App.4th 407, 413.) As we explained, the juvenile court’s finding that A.G.

is adoptable is supported by substantial evidence given that his foster parents are

“committed” to adopting him. As a result, the Department’s error, if any, in failing to

identify additional prospective adoptive families for A.G. is not so sufficiently egregious

as to undermine the juvenile court’s decision to terminate Father’s parental rights to A.G.

or its finding that A.G. was adoptable. (See In re Michael G. (2012) 203 Cal.App.4th

580, 591 [error in section 366.26 report was harmless because substantial evidence

supported juvenile court’s finding that minor was adoptable].)

We therefore affirm the juvenile court’s order terminating Father’s parental rights

to A.G. and freeing A.G. for adoption.

IV.

DISPOSITION

The juvenile court’s order terminating Father’s parental rights to A.G. and freeing

A.G. for adoption is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON Acting P. J. We concur:

SLOUGH J.

FIELDS J.