In re J.D.
Filed 5/27/08 In re J.D. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 J.D. et al., Persons Coming Under the Juvenile Court Law. | |
SAN BERNARDINO COUNTY DEPARTMENT OF CHILDRENS SERVICES, Plaintiff and Respondent, v. WILLIE D., Defendant and Appellant. | E044153 (Super.Ct.Nos. J204062 & J204063) OPINION |
APPEAL from the Superior Court of San Bernardino County. Marsha Slough, Judge. Affirmed.
Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruth E. Stringer, County Counsel, and Jacqueline Carey-Wilson, Deputy County Counsel, for Plaintiff and Respondent.
Jennifer Mack, under appointment by the Court of Appeal, for Minors.
Willie D., the father of A.D. and J.D., appeals from an order terminating his parental rights and referring his daughters for adoptive planning. He contends that there is insufficient evidence to support the finding that the girls are adoptable. We conclude that the courts order is supported by substantial evidence, and we therefore affirm the order.
FACTUAL AND PROCEDURAL HISTORY
Willie and Alice D. are the parents of J.D., aged 13 at time of the hearing below, A.D., then aged 16, and L.D., then aged 17. Alice resides in Mississippi. Her parental rights were terminated on September 20, 2007, along with Willies. She is not a party to this appeal.
A petition pursuant to Welfare and Institutions Code section 300[1]was filed by the Department of Childrens Services (DCS) as to all three girls in September 2005, alleging that they were at risk of physical abuse. At that time, all three girls lived with Willie and their stepmother, Mary D. The initial investigation resulted from a referral following an incident in which Willie had assaulted Mary in their home. The girls told the social worker about numerous acts of violence Willie had committed against them. He hit them, threatened them with chairs, tables and other objects, and had threatened A.D. and the girls older brother with a knife. Willie had been convicted of child abuse against an unrelated child when the family lived in Arizona, and the girls had been placed in protective custody in Arizona on two occasions. Willie had forced the girls to lie for him in criminal proceedings, and ordered them to lie for him during the juvenile court proceedings. Willie had also been violent toward the girls mother, Alice, during their marriage. The girls were afraid he would kill them.
Although Willie completed a parenting class and an anger management class and participated in counseling, he utterly failed to benefit from reunification services. He accepted no responsibility for his actions and continued to bully his daughters. He threatened to beat J.D. with a shovel and skin her alive because he was displeased with her haircut. He remained remarkably unattuned [sic] to the feelings of his children. He continued to display a callous disregard for their feelings and for the trauma he caused them.
The court terminated services and set a section 366.26 hearing for A.D. and J.D. to consider termination of parental rights and a permanent plan not limited to a planned permanent living arrangement or guardianship. The court found compelling reasons not to terminate parental rights as to L.D. because she was going to turn 18 within a few months. In a writ proceeding (Willie D. v. Superior Court (Sept. 28, 2007, E042852) [nonpub. opn.]), we held that reasonable services had been offered or provided, and affirmed the order setting the section 366.26 hearing.
Mary separated from Willie in September 2005 and initiated dissolution proceedings in September 2007.[2] Marys home was approved as a nonrelative extended family member home. A.D. was placed in Marys home in January 2007, and L.D. and J.D. were placed with Mary in April 2007.
In the reports prepared for the section 366.26 hearing, the social worker recommended termination of parental rights and adoption of a permanent plan of adoption for A.D. and J.D. Both girls wanted to be adopted by Mary, and Mary wished to adopt them. Both girls were assessed as adoptable, and the worker concluded that Mary has demonstrated that she can meet all of their medical, psychological, education and emotional needs. After a contested selection and implementation hearing, the court terminated parental rights and ordered adoption as the permanent plan.
Willie filed a timely notice of appeal.
LEGAL ANALYSIS
SUBSTANTIAL EVIDENCE SUPPORTS THE FINDING OF ADOPTABILITY
In order to find a child adoptable, the juvenile court must find, by clear and convincing evidence, that the child is likely to be adopted and that the adoption will take place within a reasonable time. ( 366.26, subd. (c)(1); In re Brian P. (2002) 99 Cal.App.4th 616, 624.) We review a finding of adoptability under the deferential substantial evidence standard. (In re Asia L. (2003) 107 Cal.App.4th 498, 509-510.)
Willie contends that there is insufficient evidence to support the finding that A.D. and J.D. are adoptable. He contends that A.D. and J.D. are not generally adoptable because of their ages and their documented behavioral and emotional problems. He contends that there is insufficient evidence to support a finding that Mary is a suitable prospective adoptive parent. Therefore, in the absence of any evidence that there are any other prospective adoptive families for these girls, he contends, there is insufficient evidence to support a finding that the girls are likely to be adopted within a reasonable time.
DCS contends that because Willie did not raise this issue below, he has not preserved it for appellate review. Although points not urged in the trial court generally cannot be asserted on appeal, the contention that a judgment is not supported by substantial evidence is an obvious exception to that rule. (Tahoe National Bank v. Phillips (1971) 4 Cal.3d 11, 23, fn. 17.) The social services department has the burden of producing evidence to support allegations and requested orders. The parent is not required to object to the agencys failure to carry its burden of proof in order to preserve the issue for appellate review. (In re Brian P., supra, 99 Cal.App.4th at p. 623.)
Willies contention is primarily based on his assertion that the adoption assessment raises questions about Marys suitability to adopt. He acknowledges that the determination of adoptability normally focuses on the child and not on the prospective adoptive familys suitability. (In re Scott M. (1993) 13 Cal.App.4th 839, 844.) However, if the child is not generally adoptable because of health issues or other concerns, a finding of adoptability can be reversed if there is insufficient evidence to show that the prospective adoptive parent would be approved, particularly if there are no other identified prospective adoptive homes. (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205-1206; see also In re Asia L., supra, 107 Cal.App.4th at p. 510.)
Even if we assume that A.D. and J.D. are not generally adoptable because of their ages or other factors,[3]however, we conclude that there is substantial evidence that Mary will be approved to adopt the girls. Willie first argues that Marys marriage to him is a legal impediment to adoption. Family Code section 8603 provides that a married person who is not lawfully separated from his or her spouse, may not adopt a child without the spouses consent. Willie points out that it is unlikely that he would give his consent to the adoption. However, we have taken judicial notice of the fact that Mary has filed for dissolution of the marriage and has served Willie. The record also reflects that Mary had filed for dissolution. There is no evidence in the record which suggests that Mary will not proceed to terminate the marriage as quickly as possible. Thus, the evidence supports the conclusion that this impediment will be removed within a reasonable time.
Willie next argues that Marys health is questionable and that she has a history of drug addiction and a minor criminal record. However, Mary disclosed all of those facts to DCS and was nevertheless approved as a nonrelative placement for the girls and as a prospective adoptive parent. This constitutes substantial evidence that Mary will be approved to adopt the girls.
DISPOSITION
The order terminating parental rights and referring A.D. and J.D. for adoptive planning is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
/s/ McKinster
Acting P.J.
We concur:
/s/ Richli
J.
/s/ King
J.
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[1]All further statutory references will be to the Welfare and Institutions Code unless otherwise indicated.
[2]We grant DCSs request that we take judicial notice of the petition for dissolution of marriage filed by Mary on September 11, 2007, and of the proof of service of the petition on Willie, filed October 11, 2007, in the Superior Court of San Bernardino County.
[3]Willie refers to the girls emotional and behavioral problems. However, the selection and implementation report states that the girls had largely overcome those problems and that Mary was continuing to address them appropriately. A.D. was still in counseling but had shown great improvement. There is no evidence that either girl still demonstrated any significant emotional or behavioral problems.
