In re J.M.
Filed 8/1/13 In re J.M. CA1/5
NOT TO BE
PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIRST APPELLATE
DISTRICT
DIVISION FIVE
In re J.M., a Person
Coming Under the Juvenile Court Law.
CONTRA
CHILDREN &
FAMILY SERVICES
BUREAU,
Plaintiff and
Respondent,
v.
JAMES M. et al.,
Defendants and Appellants.
A137248
(
Super.
James
M. (Father)
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and Marilyn L. (Mother) appeal from the juvenile court’s order terminating
following a hearing held pursuant to Welfare and Institutions Code section
366.26.
of the possibility that her parental rights could be terminated at the hearing,
and both parents contend there was an insufficient showing that Minor is
adoptable. We affirm.
Background
In
January 2011, the
County Children & Family Services Bureau (Bureau) filed a section 300
dependency petition alleging that Minor (born in June 2006) is within the
jurisdiction of the juvenile court. The
January petition and subsequent amended petitions alleged as the bases for
jurisdiction, among other things, Minor’s parents’ drug abuse,
extensive sexual abuse of Minor by parents.
At
the July 2011 contested jurisdictional hearing, the juvenile court sustained
the allegations in the section 300 petition, as amended. At the November dispositional hearing, the
court adjudged Minor a dependent of the court and denied both parents
visitation. The court also scheduled the
section 366.26 permanency planning hearing.
The
Bureau’s report for the March 2012 section 366.26 hearing indicated Minor was
healthy and developmentally on target.
She was in her fourth placement, which began on November 1, 2011.
The report stated that Minor is adoptable, explaining “[Minor] is a
young child who has been seriously damaged by the actions of her mother and the
presumed father. [Minor] has had many
behaviors that show how she is processing this abuse, and trying to heal from
it and form positive, healthy relationships.
[Minor] is getting a lot of support in this process, and she has
responded well to this support. [Minor]
is a young child who has many strengths, not the least of which is her bright,
engaging personality. [Minor] desires to
connect and receive love, and she is eager to be a part of a family. In this respect, [Minor] is a highly
adoptable child.†The Bureau recommended
a 180-day continuance of the hearing to provide the Bureau an opportunity to
locate an adoptive home. The juvenile court continued the hearing to August
2012.
In
an August 2012 addendum report, the Bureau recommended another continuance of
90 days. Minor was healthy, performing
at grade level, and there were no reported behavioral problems at school or
home. Minor was participating in
“Intensive Therapeutic Foster Care Services†to address self-esteem and
personal boundary issues, as well as symptoms of anxiety and hyper
vigilance. Minor had begun overnight
visits with a prospective adoptive parent in June 2012, but the prospective
adoptive parent declined to proceed further because of Minor’s hyperactivity,
need for constant attention, defiance, and tantrums. Thereafter, Minor’s behavior regressed,
including in regard to “sexually acting out.â€
The Bureau reported that Minor’s current caretakers had expressed interest
in the possibility of adopting Minor, and the Bureau indicated it needed additional
time to explore that possibility.
The
court continued the hearing to November
28, 2012. The Bureau’s
September notice to Mother regarding the hearing had a box checked indicating
the recommended plan was “Long Term Foster Care.†The notice also included the following in
boldface print: “IMPORTANT NOTICE [¶] A hearing under Welfare and
Institutions Code section 366.26 has been set for the date and time below. At the hearing the court may terminate
parental rights and free the child for adoption . . . .â€
In
a November 1, 2012 memo, the Bureau reported Minor’s foster parents had made a
commitment to adopt her and “[t]he Bureau plans to recommend that parental
rights be terminated at the continued 366.26 hearing on 11/28/2012.â€
In
a third addendum report prepared for the section 366.26 hearing, filed on the
day of the hearing, the Bureau stated Minor had been in the same foster home
since November 1, 2011, and the foster parents had made a commitment to adopt
her. The Bureau recommended that the
juvenile court find Minor adoptable and terminate parental rights. Mother was not present at the November 28,
2012 hearing. The parents’ attorneys
argued Minor was not adoptable and objected to the order terminating parental
rights. Minor’s counsel agreed with the
Bureau’s recommendation to terminate parental rights.
The
juvenile court found by clear and
convincing evidence that it is likely Minor will be adopted, stating “And
practically by definition [Minor] is an adoptable child. [¶] Not only because of the description
of her and her disposition and her progress, in general, but also because I
think there is a specific family in mind who is committed to adopting her and
she’s been with them for over a year now.â€
The court terminated parental rights.
This
appeal followed.
Discussion
I. Mother
Forfeited Her Claim Based on the Adequacy of Notice
Mother
contends the order terminating her parental rights must be reversed because she
was not given notice that adoption was the Bureau’s recommendation for the
section 366.26 hearing.
Section
294 obligated the Bureau to give Mother notice of the section 366.26 hearing,
including the nature of the proceedings, the recommendation of the supervising
agency, and a statement that the court is required at the hearing to select a
permanent plan of adoption, legal guardianship, or long-term foster care. (§ 294, subds. (a), (e).) In the present case, the Bureau’s notice
failed to inform Mother that its recommended plan was adoption. Also, the Bureau provided notice by regular
mail, but Mother argues it was obligated to provide notice by certified mail,
because its recommended plan was adoption.
(§ 294, subd. (f)(2) & (6).)
Even
assuming Mother did not receive notice comporting with section 294, she has, as
the Bureau argues, forfeited her claim because she did not object on that basis
below. Although Mother was not present
at the November 28, 2012 hearing, she was represented by counsel at the
hearing. Her counsel raised no objection
based on the failure to provide Mother adequate notice. As explained by the Second District in
742: “An appellate court ordinarily will
not consider challenges based on procedural defects or erroneous rulings where
an objection could have been but was not made in the trial court. [Citation.]
Dependency cases are not exempt from this forfeiture doctrine. [Citations.]
The purpose of the forfeiture rule is to encourage parties to bring
errors to the attention of the juvenile court so that they may be
corrected. [Citation.] Although forfeiture is not automatic, and the
appellate court has discretion to excuse a party’s failure to properly raise an
issue in a timely fashion [citation], in dependency
proceedings, where the well-being of the child and stability of placement
is of paramount importance, that discretion ‘should be exercised rarely and
only in cases presenting an important legal issue.’ [Citation.]â€
(Id. at p. 754.) In re
Wilford J. continued, “A defect in notice, as we have discussed, is a most
serious issue, potentially jeopardizing the integrity of the entire
present that issue to the juvenile court and failed to do so, appellate courts
routinely refuse to exercise their limited discretion to consider the matter on
appeal. This is precisely because
defective notice and the consequences flowing from it may easily be corrected
if promptly raised in the juvenile court.
[Citation.]†(
Mother’s
reply brief argues in passing that counsel’s failure to object constituted
ineffective assistance of counsel.
However, assuming counsel’s representation fell below an objective
standard of reasonableness in that regard, there is no reasonable probability
that, but for counsel’s deficient performance, the result of the section 366.26
hearing would have been different. (
668, 686-687; People v. Williams
(1997) 16 Cal.4th 153, 215.) Although
the Bureau’s notice contained inaccurate information about its ultimate
recommendation, Mother had actual notice of the possibility of adoption and
termination of parental rights, and constructive notice through her counsel
that the Bureau was seeking a plan of adoption.
Nevertheless, Mother failed to attend the November 28, 2012
hearing. She has not shown she would
have conducted herself differently had the Bureau provided accurate information
about its recommendation in the September notice.
More
fundamentally, there is no reasonable likelihood Mother could have done
anything to prevent termination of parental rights, in light of the egregious
history of sexual abuse of Minor and because Mother had not even had
reunification services or recent visitation with Minor. Once a juvenile court finds a likelihood of
adoption (see, post, part II.),
termination of parental rights is required unless one of several specified
exceptions applies. (§ 366.26,
subd. (c)(1).) Mother does not contend
that any of the exceptions were applicable.
Counsel’s failure to object on the basis of the inadequacy of the notice
was harmless.
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II. The
Juvenile Court’s Adoptability Finding Is Supported by Substantial Evidence
Father,
joined by Mother, contends there was no clear and convincing evidence that
Minor is likely to be adopted.
(§ 366.26, subd. (c)(1).) We
review the juvenile court’s determination for substantial evidence. (In re
Gregory A. (2005) 126 Cal.App.4th 1554, 1561-1562.) “We give the court’s finding of adoptability
the benefit of every reasonable inference and resolve any evidentiary conflicts
in favor of affirming. [Citation.]†(Id.,
at p. 1562.)
In
the present case, the Bureau’s disposition report, filed in November 2011,
indicated that Minor had exhibited aggressive and sexualized behavior with
other children. Minor had been through
several placements before being placed with her current caretakers in November
2011, and there was an unsuccessful attempt in summer 2012 to connect Minor
with a different adoptive family.
Afterward, according to the Bureau’s August 2012 addendum report, Minor
“regressed in some areas, including the sexual acting out.†Nevertheless, the same addendum stated,
“There were no reported behavior problems at school or at home.†Minor was in good physical health,
developmentally normal, social, and doing well in school. Thus, the evidence supported an inference
that Minor’s emotional and behavioral problems were not so severe as to render
her unadoptable.
Moreover,
Minor had been with her current caretakers for over a year by the time of the
section 366.26 hearing, and they had committed to adopting her. “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
(In re Sarah M. (1994) 22
Cal.App.4th 1642, 1649-1650.)
Father
points out that the Bureau failed to present expert evidence supporting its
claim that Minor is adoptable, but he cites no authority any such evidence is
required. The juvenile court’s
adoptability finding is supported by substantial evidence.
Disposition
The
juvenile court’s orders are affirmed.
SIMONS,
J.
We concur.
JONES, P.J.
NEEDHAM, J.
but the juvenile court granted James M. presumed father status.
the Welfare and Institutions Code.
