In re Sabrina M.

Filed 2/5/07  In re Sabrina M. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

            APPEAL from a judgment of the Superior Court of San Diego County, Joe O. Littlejohn, Judge.  (Retired Judge of the San Diego Sup. Ct. assigned by the Chief Justice pursuant to art.  VI, §  6 of the Cal. Const.)  Affirmed.

            Gabriel R., the father of Sabrina M., appeals the judgment terminating his parental rights under Welfare and Institutions Code section 366.26.^[1]  Gabriel contends the juvenile court erred by finding that Sabrina was likely to be adopted because the adoption assessment report did not include an adequate evaluation of Sabrina's developmental status.

FACTS

            Sabrina was born in June 2005 while her mother was in custody in the Las Colinas Detention Facility.^[2]  The mother, whose release date was October 13, appointed the maternal grandmother as Sabrina's temporary guardian.  On July 15, the San Diego County Health and Human Services Agency (Agency) filed a dependency petition on behalf of Sabrina after the grandmother was arrested for selling stolen checks and Sabrina was taken into protective custody.  The petition alleged Sabrina was at substantial risk of harm (§  300, subd. (b)) and had been left without adequate care or support (§  300, subd.  (g)).^[3]  The mother identified Gabriel, who was incarcerated at the time, as Sabrina's father.

            On November 16, the court found Gabriel to be Sabrina's biological father and entered a judgment of paternity.  The court also made true findings on the amended petition and ordered both parents to undergo psychological evaluations and to comply with their case plans.  The court ordered Gabriel to report to the Substance Abuse Recovery Management System (SARMS) program on his release.

            Gabriel was released from jail in December 2005.  In addition to writing Gabriel at the jail, the social worker sent him a contact letter with referrals for therapy, parenting and SARMS to the address he had provided to the previous social worker.  Both letters were returned.  On January 5, 2006, Gabriel failed to appear at the SARMS hearing.  The court issued a bench warrant for his arrest.

            In the status review report for the six-month review hearing, the social worker wrote that Sabrina had several well-child examinations during the reporting period and was up to date with her immunizations.  Sabrina, then eight months old, was able to roll from her back to her front, lift her head and trunk off the ground, and jump up and down when being held in a standing position.  The social worker reported no developmental delays had been diagnosed.

            The social worker also reported that Gabriel had not contacted her since his release from jail, had not provided any verification that he participated in any services and had not contacted Sabrina's foster parents to arrange visitation.  The social worker considered Gabriel's whereabouts unknown.  The social worker recommended Gabriel's reunification serves be terminated and a selection and implementation hearing be set.

            On April 10, at the contested six-month review hearing, the court found Agency had offered both parents reasonable services and neither parent had made any progress with their case plans.  The court also found there was no substantial probability that Sabrina would be returned to parental custody within six months.  The court terminated both parents' services and scheduled a section 366.26 hearing.

            In its adoption assessment, Agency reported Sabrina was adoptable because she was  in good health and did not have any serious developmental delays.  Agency noted that Sabrina's caretakers, who had an approved home study, wanted to adopt her.  An additional 23 other approved families were willing to adopt a child with Sabrina's characteristics.

            The adoption assessment social worker reported that Sabrina's medical examinations indicated no developmental problems were suspected.  However, the adoption social worker noted that when she first observed Sabrina in May 2006, the child, then 11 months old, was not crawling.^[4]  This led the social worker to request a Denver II Developmental Screening.  The screening was completed on June 28 and disclosed that Sabrina was behind on her motor skills.  The public health nurse opined that Sabrina's development, other than her gross motor skills, was normal.  The nurse further stated that Sabrina had consistently made progress with her motor skills and was continuing to do so.  The nurse referred Sabrina to the HOPE Infant Family Support Program (HOPE) for further evaluation to determine if there were other undetected delays that could benefit from treatment.^[5]

            At the section 366.26 hearing on August 31, the court found Sabrina likely to be adopted within a reasonable time, and none of the statutory exceptions to adoption applied.  The court terminated parental rights and selected adoption as Sabrina's permanent plan.

DISCUSSION

            Gabriel challenges the juvenile court's finding that Sabrina was likely to be adopted because Agency's adoption assessment report, which did not include information about the HOPE evaluation (see fn. 5, ante), inadequately addressed Sabrina's developmental status.  The contention is without merit.

            When services are terminated and a section 366.26 hearing is set, the juvenile court must direct the social services agency to prepare an adoption assessment report that, among other things, evaluates the child's medical, developmental, scholastic, mental and

emotional status, and includes a statement from the child concerning adoption unless the child is too young to give a meaningful response.  (§§  366.21, subd. (i)(3), (5) & 366.22, subd. (b)(3), (5); In re Crystal J. (1993) 12 Cal.App.4th 407, 411.)

            The purpose of the assessment report is to provide the juvenile court with information necessary to determine whether adoption is in a child's best interests.  (See In re Dakota S. (2000) 85 Cal.App.4th 494, 496.)  An assessment report need not be entirely complete as long as it is in substantial compliance with statutory requirements.  (In re John F. (1994) 27 Cal.App.4th 1365, 1378.)  Where an assessment is deemed incomplete, the reviewing court looks at the totality of the evidence before it; deficiencies go to the weight of the evidence and may prove insignificant.  (Ibid.)

            Gabriel did not object to the adoption assessment report at the section 366.26 hearing.  Agency urges us to therefore consider the issue of the report's purported deficiencies waived or forfeited.  (See, e.g., In re Crystal J., supra, 12 Cal.App.4th at pp.  411-412 [failure to object to assessment report at section 366.26 hearing waived the issue of the report's inadequacy].)  We see no reason why the general rule of waiver should not apply here.  " Any other rule would '  "   'permit a party to play fast and loose .  .  . by deliberately standing by without making an objection of which he is aware and thereby permitting the proceedings to go to a conclusion which he may acquiesce in, if favorable, and which he may avoid, if not.'  "   '  [Citations.]"  (In re Riva M. (1991) 235 Cal.App.3d 403, 411-412.)^[6] 

            In any event, aside from the waiver issue, the assessment report substantially complied with the statutory requirements, and the deficiencies, if any, did not constitute prejudicial error.  The report described Sabrina's current medical, developmental, and mental/emotional status.  The report noted the adoption social worker's concern with Sabrina's motor skills, which led her to request a Denver II Developmental Screening despite the fact that Sabrina's physician had not suspected any developmental problem.  According to the assessment report, the public health nurse who performed the developmental screening confirmed that Sabrina was behind in her gross motor skills; however, the nurse also observed that Sabrina had consistently shown progress with her motor skills and the progress was continuing.  Except for the motor skills delay, the nurse opined that Sabrina's developmental status was normal.  The assessment report also noted that the nurse intended to refer Sabrina to HOPE for further evaluation " to make sure that there are no other serious or other undetected delays that could benefit from treatment."

            Gabriel complains that the assessment report did not include the results of the HOPE evaluation, which found Sabrina to be developmentally delayed in language/communication, self-help and coping skills.  We do not fault Agency for the omission.  The assessment report was prepared in the beginning of July.  The HOPE evaluation did not take place until the end of July.  We know that from an August letter to Agency from HOPE seeking the assistance of the court in obtaining Sabrina's medical records.  The letter also stated Sabrina was eligible for HOPE because she had delays in language/communication, self-help and coping skills.  Agency promptly presented the letter to the court in an ex parte application for an order authorizing the release of Sabrina's medical records to HOPE.  Given these circumstances, it cannot be said Agency was " hiding the ball" with respect to the HOPE evaluation or Sabrina's developmental status.

            Even if we were to fault Agency for failing to file an addendum to the adoption assessment report addressing the HOPE evaluation results, Gabriel could not prevail.  First, the court was aware ¾ from the adoption assessment report ¾ that Sabrina was going to be undergoing further developmental testing by HOPE.  The foster parents also knew there was an evaluation by HOPE, and they continued to want to adopt Sabrina.  An additional 23 approved families would be willing to adopt a child " with characteristics and risk factors similar to Sabrina's."   (Italics added.)

            Given the totality of the evidence before the court, the assessment report provided an adequate basis for selecting and implementing adoption as Sabrina's permanent plan. (See In re Heidi T. (1978) 87 Cal.App.4th 865, 876.)

            To the extent Gabriel is contending there was insufficient evidence that Sabrina was likely to be adopted within a reasonable time, he also cannot prevail.  Gabriel's failure to object below does not constitute a waiver or forfeiture of his right to challenge the sufficiency of the evidence on appeal.  (In re Brian P., supra, 99 Cal.App.4th at pp.  622-623; see fn. 6, ante.)

            Whether a child is likely to be adopted is the " pivotal question" at the section 366.26 hearing.  (In re Tamneisha S. (1997) 58 Cal.App.4th 798, 804.)  Parental rights may be terminated only after a finding by clear and convincing evidence that a child will be adopted within a reasonable amount of time.  (§  366.26, subd. (c)(1); In re Jerome D. (2000) 84 Cal.App.4th 1200, 1204.)  "   '  "   'Clear and convincing' evidence requires a finding of high probability.  The evidence must be so clear as to leave no substantial doubt.  It must be sufficiently strong to command the unhesitating assent of every reasonable mind."   [Citations.]'  "   (Id. at p. 1205.)  We review the juvenile court's finding for substantial evidence, viewing the evidence favorably to the judgment and drawing all legitimate inferences that support the finding.  (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.)

            " [T]he issue whether a dependent child is likely to be adopted focuses on the child rather than on the prospective adoptive family."   (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1650.)  Pertinent factors are whether the child's age, physical condition and emotional state make it difficult to find a person or family willing to adopt the child.  (Id. at p.  1649.) 

            A finding that a child is likely to be adopted does not require the child's placement in the home of a prospective adoptive parent, or even that one be " waiting in the wings."   (In re Jennilee T. (1992) 3 Cal.App.4th 212, 223, fn.  11; §  366.26, subd. (c)(1).)  However, the fact that prospective adoptive parents express a willingness to adopt a child is evidence the child's age, physical and mental state, and other characteristics are not likely to dissuade others from adopting if the anticipated placement fails.  (In re Sarah  M., supra, 22 Cal.App.4th at pp. 1649-1650.)

            The possibility a child may have future problems does not mean the child is not likely to be adopted.  (In re Jennilee T., supra, 3 Cal.App.4th at pp. 223, 225.)  Further, the court may find a child with problematic characteristics is likely to be adopted if there is an identified family willing to adopt.  (See In re Sarah M., supra, 22 Cal.App.4th at pp.  1649-1650.)  That is the situation here.  By the time of the section 366.26 hearing, Sabrina had lived in the foster parents' home for one year.  The foster parents, who had an approved home study, were aware that Sabrina had developmental delays, but they also saw Sabrina had made progress and was continuing to do so.  They remained committed to adopting her.

            Under these circumstances, we find substantial evidence supported the court's finding that Sabrina was likely to be adopted.

DISPOSITION

            Judgment affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

                                McDONALD, J.

                                   McINTYRE, J.

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^[1]           All statutory references are to the Welfare and Institutions Code.

^[2]           The mother is not a party to this appeal.

^[3]           The petition was later amended to include an allegation that Sabrina was at risk of harm because of her mother's history of substance abuse.  (§  300, subd. (b).)

^[4]           However, in June Sabrina began crawling and was pulling herself up by her first birthday.

^[5]           The record on appeal does not contain the HOPE evaluation of Sabrina.  However, the record on appeal contains an ex parte application for a court order releasing Sabrina's medical records to HOPE.  Attached to the application was a letter from the program to Agency requesting the court sign medical releases so that it could better provide services to Sabrina.  The letter noted that HOPE had evaluated Sabrina on July  28 and found her eligible for its Early Start program because of delays in language/communication, self-help and coping skills.  The letter further stated Sabrina would be receiving special educational services from HOPE.  Although the letter was in the superior court file, it was not introduced at trial.

^[6]           In re Brian P. (2002) 99 Cal.App.4th 616 is not contra.  In In re Brian P., supra, at pages 622 to 623, the Court of Appeal held an objection below was not necessary to preserve a claim on appeal that substantial evidence did not support the juvenile court's adoptability finding.  However, at the same time, the Court of Appeal noted that defects in the adoption assessment report are subject to waiver or forfeiture on appeal by a parent's failure to object below.  (Id. at p. 622.)