In re R.C.

Filed 10/12/07 In re R.C. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Siskiyou)

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Raymond C., father of the minor R.C., appeals from an order of the juvenile court terminating his parental rights. (Welf. & Inst. Code, 366.26, 395; all unspecified section references are to the Welfare and Institutions Code.) Appellant contends (1) the evidence does not support the juvenile courts finding the minor is generally adoptable, and (2) the juvenile court erred in failing to consider the suitability of the prospective adoptive family in determining whether the minor is adoptable. We shall affirm.

Factual And Procedural Background

In June 2005, the Siskiyou County Human Services Department filed a section 300 petition on behalf of the eight-year-old minor, alleging she had been left without any provision for support and was at substantial risk of suffering serious physical harm or illness because (1) appellant and the minor were homeless, (2) the minor was not attending school and appeared pale and unhealthy, (3) appellant, who had physical custody of the minor, had been arrested for check forgery, and (4) appellant reportedly was using methamphetamine. ( 300, subds. (b), (g).)

Appellant was released from custody sometime prior to July 18, 2005.

In August 2005, the juvenile court sustained the petition and adjudged the minor a dependent child. The minor was placed in foster care, and reunification services were ordered. During the reunification period, appellant failed to show up for a number of scheduled visits, and in December 2005, moved to Eureka. His last in-person visit with the minor was on December 20, 2005.

In August 2006, the juvenile court found returning the minor to parental custody would be detrimental to her, determined there was no substantial probability she would be returned to parental custody within six months, terminated reunification services, ordered legal guardianship or adoption with the current caretaker as the permanent plan, and set a section 366.26 hearing.

The social workers report prepared for the section 366.26 hearing states the minor, then 10 years old, appears to be in good health and on track in every respect. She does not exhibit any developmental delays, and is right on task and within normal limits for her age group. She is in the fifth grade . . . . She is an excellent student, and her report card shows straight As for this quarter. She has been diagnosed with Post-Traumatic Stress Disorder and Anxiety Disorder, sees a therapist once a week, and has made amazing progress in a short time. She also meets with a Therapeutic Equine Instructor once a week where she works on maintaining boundaries.

The minor has been with her current foster family since November 2005. She feels very comfortable in this placement and the foster mother indicates that she fits in very well with the family. [She] has also become close with the extended foster family members.

In October 2006, the minor told the adoptions specialist that she didnt have a very happy life with her natural parents and that she wants her foster family to be her forever family. The foster mother likewise advised the adoptions specialist that she wants to adopt the minor. The adoption specialist concluded the minor is adoptable and recommended parental rights be terminated.

Sometime after the minor and the foster mother spoke to the adoptions specialist, they received a threatening telephone call from appellant. Following that telephone call, the minor and the foster mother told the social worker that they may need more time to prepare for adoption.

The minors last contact with appellant was by telephone on December 29, 2006.

In February 2007, the minor told the social worker she would like to reinitiate visits with appellant.

Appellant was not present at the section 366.26 hearing in March 2007, and his counsels request for a continuance was denied. The parties submitted on the section 366.26 report, and the juvenile court found by clear and convincing evidence that the minor is generally adoptable, terminated parental rights, and ordered the minor be placed for adoption.

Discussion

I

Defendant contends [t]he finding of general adoptability [i]s not supported by substantial evidence. We disagree.

Initially, we note that, while a parent need not object to preserve the issue of adoptability on appeal [w]hen the merits are contested [at a section 366.26 hearing] (In re Brian P. (2002) 99 Cal.App.4th 616, 623), here, appellant merely submitted on the social workers report. Thus, a persuasive argument could be made that appellant has forfeited the issue of adoptability for purposes of appeal.

In any event, there is ample evidence the minor is generally adoptable.

At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must make one of four possible alternative permanent plans for a minor child. . . . The permanent plan preferred by the Legislature is adoption. (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.) In order for the court to select and implement adoption as the permanent plan, it must find, by clear and convincing evidence, the minor will likely be adopted if parental rights are terminated. (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164; 366.26, subd. (c)(1).)

The issue of adoptability posed in a section 366.26 hearing focuses on the minor, e.g., whether the minors 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.) The existence or suitability of the prospective adoptive family, if any, is not relevant to this issue. (Id. at pp. 1649-1650; In re Scott M. (1993) 13 Cal.App.4th 839, 844.) [T]here must be convincing evidence of the likelihood that adoption will take place within a reasonable time. (In re Brian P.,supra, 99 Cal.App.4th at p. 624.) [I]t 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. (In re Sarah M., supra, at p. 1649.) However, a prospective adoptive parents 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 p. 1650.)

When the sufficiency of the evidence to support a finding is challenged on appeal, even where the standard of proof in the juvenile court is clear and convincing evidence, we must determine if there is any substantial evidence--that is, evidence that is reasonable, credible, and of solid value--to support the conclusion of the trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924.) In making this determination, we resolve all conflicts in favor of the prevailing party. Issues of fact and credibility are questions for the trier of fact, and we do not reweigh the evidence when assessing its sufficiency. (In re S.C. (2006) 138 Cal.App.4th 396, 415.)

At the section 366.26 hearing on the proposed termination of appellants parental rights, the juvenile court received into evidence the social workers report which states the minor is in good health, developmentally on track, and excelling academically and socially. Although she has been diagnosed with Post-Traumatic Stress Disorder and Anxiety Disorder, nothing in the social workers report indicates these diagnoses might pose an obstacle to adoption. To the contrary, the report reflects the minor is in therapy and has made amazing progress in a short time.

Appellant maintains the minors ongoing desire for contact with him poses an obstacle to her adoption. Section 366.26, subdivision (c)(1), sets forth exceptions to the termination of parental rights. One such exception is where [t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. ( 366.26, subd. (c)(1)(A).) But the party claiming the exception has the burden of establishing it applies. (In re Rachel M. (2003) 113 Cal.App.4th 1289, 1295.) Appellant did not claim that an exception to adoption applied at the section 366.26 hearing and may not do so for the first time on appeal. (See In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252.)

Appellant also argues the juvenile courts adoptability finding was premature because a permanent home for [the minor] was not etched in stone. Where, as here, a minor is found to be generally adoptable, 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. (In re Sarah M., supra, 22 Cal.App.4th at pp. 1649.) Accordingly, the adoptability finding was not premature.

Appellants reliance on the foster mothers hesitation to proceed with adoption following appellants threatening telephone call is misplaced. The issue of adoptability focuses on the minor, not the prospective adoptive family. (In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.) Because the minor is generally adoptable, the prospective adoptive parents willingness to proceed with the adoption is irrelevant. (Ibid.) Moreover, appellant is estopped from relying on the uncertainty of the prospective adoptive placement insofar as the uncertainty was caused by his misconduct.

Finally, contrary to appellants suggestion, the minors age alone--10 years old--does not render her unadoptable.

II

Appellant claims that [w]hen a child is specifically rather than generally adoptable, inquiry into the ability of the prospective adoptive parents to meet the childs needs is a necessary factor to be considered before deciding the adoptability issue.

Because the minor is generally adoptable, the prospective adoptive parents ability to meet the minors needs is irrelevant to the adoptability issue. Accordingly, the juvenile court did not err in failing to consider it. (In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.)

Disposition

The judgment (order terminating parental rights) is affirmed.

HULL, J.

We concur:

NICHOLSON , Acting P.J.

CANTIL-SAKAUYE , J.

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