In re S.P.

Filed 7/14/09 In re S.P. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Sutter)

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K.P. (appellant), the mother of S.P. (the minor), appeals from the juvenile courts order terminating her parental rights. (Welf. & Inst. Code,  366.26, 395; further unspecified section references are to this code.) Proceeding in propria persona, appellant makes multiple contentions of alleged prejudicial error. For the reasons that follow, we shall affirm the order.

Facts and Proceedings

On October 28, 2002, Sutter County Department of Human Services (the Department) filed an amended juvenile dependency petition on behalf of the then nine-year-old minor. That petition alleged in part the minor had come to school with a black eye and several bruises on his back. The amended petition also alleged appellants home was in deplorable condition, and that appellant had failed to supervise the minor properly.

The juvenile court sustained the amended petition and adjudged the minor a dependent child. The court also ordered appellant to participate in a reunification plan. The minor was diagnosed as autistic, for which he received services.

In its March 2008 report, the Department recommended a permanent plan of adoption for the minor. According to that report, the minor was doing well in the home of his prospective adoptive parents, and told the social worker he wanted to be adopted. A report prepared by the State Department of Social Services noted the prospective adoptive parents were very committed to the minor. That report also stated the minor had a good relationship with the caretakers and would benefit from the establishment of a permanent parent/child relationship. . . . [The minor] appears to have substantial emotional ties to the prospective adoptive parents. Removal from the current home would be seriously detrimental to the childs well being.

At the May 22, 2008, section 366.26 hearing, appellant was represented by counsel. Appellants counsel argued the Department failed to sustain its burden of proving the minor was likely to be adopted, and cited evidence suggesting the minor preferred to live with appellant. At the conclusion of that hearing, the juvenile court found it likely the minor would be adopted and terminated appellants parental rights.

Discussion

I

Rules on Appeal

Appellants opening brief consists primarily of a lengthy narrative containing numerous factual assertions and some legal contentions, but with only general headings. Moreover, the opening brief contains no citation to authority in support of its claims or to the record. We have reviewed appellants reply brief, including various documents attached to it. Other than containing several legal and factual citations, the reply brief does not adduce arguments that require any additional discussion. Appellant states in part that she is appealing for a reversal of judgment and to return the minor child to [appellant], to fully restore the full parental and sole full custodial rights to [appellant] without any restrictions.

Appellants self-representation does not excuse noncompliance with the rules on appeal. A party in propria persona is held to the standard of an attorney. (Cf. Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.) Appellants brief violates California Rules of Court, rule 8.204(a)(1)(B), which requires not only separate statements of facts and argument, but also appropriate headings for the arguments made. Appellant also fails to cite to the record for the factual assertions she makes. (Cal. Rules of Court, rule 8.204(a)(1)(C).)

We cannot presume error on appeal. (Cf. Lynch v. Birdwell (1955) 44 Cal.2d 839, 846.) The party challenging an order has the burden to show error by an adequate record. (Cf. Ballard v. Uribe (1986) 41 Cal.3d 564, 574.) We presume that any orders complained of are correct on matters as to which the record is silent. (Cf. Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) In this case, appellant makes several apparent claims relating to factual matters, legal issues, and hearings occurring at various times before the section 366.26 hearing was conducted.

Appellants claims as to previous matters are not cognizable in this appeal. An appeal from the most recent order entered in a dependency matter may not challenge prior orders, for which the statutory time for filing an appeal has passed. (In re Elizabeth M. (1991) 232 Cal.App.3d 553, 563.) Thus, appellant should have made the claims she states here, which relate to prior orders, in appeals following the disposition and review hearings. ( 360, 395.)

II

Witnesses

Appellant argues at least five eyewitnesses, appellants physicians, and appellant herself were not permitted to testify for appellant.

The record reflects appellants counsel called two witnesses to testify on appellants behalf during the section 366.26 hearing. Counsel then rested without calling any additional witnesses. The difficulty with appellants claim is that the record does not reveal counsel or appellant raised any issue pertaining to testimony sought of other witnesses. The record reflects appellant had ample opportunities to bring the matter to the attention of the juvenile court if she had wished to do so. Yet she failed to avail herself of the opportunity.

The California Supreme Court has stated: An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been, but was not, presented to the lower court by some appropriate method . . . . The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver . . . . Often, however, the explanation is simply that it is unfairto the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1, italics in Doers.) The purpose of the general doctrine of waiver is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had . . . . (People v. Walker (1991) 54 Cal.3d 1013, 1023.) [] No procedural principle is more familiar to this Court than that a constitutional right, or a right of any other sort, may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it. [Citation.] [Citation.] (People v. Saunders (1993) 5 Cal.4th 580, 589-590, fns. omitted; cf. In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2 [stating that the correct legal term for loss of right based on failure to assert it in a timely fashion is forfeiture, not waiver].)

Here, as the record shows, at no time did appellant raise the matter she complains about now. Thus, appellant is precluded from raising the claim here. (In re Eric P. (2002) 104 Cal.App.4th 395, 403; In re Dakota S. (2000) 85 Cal.App.4th 494, 501-502; In re Gilberto M. (1992) 6 Cal.App.4th 1194, 1198-1200.) Appellant has forfeited her claim. (In re S.B., supra, 32 Cal.4th at p. 1293, fn. 2.)

III

The Minors Best Interests

Appellant claims adoption is not in the best interests of the minor, the minor is not doing well in foster care, and the minor should be returned to her.

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).) Usually, the issue of adoptability 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.)

In this case, the record reflects the minor has bonded with his foster care family. He is doing well and favors adoption. Appellant, however, opposes adoption because she argues adoption was unreasonable, unlawful, and certainly not in the best interest of the child.

The record in this case reflects that, contrary to appellants claim, the minors best interests point to adoption as the most appropriate permanent plan for the minor. Moreover, the evidence is overwhelming that the minor is likely to be adopted. This evidence provides ample support for the juvenile courts proper determination that the minor was likely to be adopted within a reasonable time. (Cf. In re Scott M. (1993) 13 Cal.App.4th 839, 843-844.)

IV

Relative Placement

Appellant claims the Department failed to consider relatives for placement of the minor.

Section 361.3 contains the relative placement preference. As subdivision (a) of section 361.3 makes clear, the agency and juvenile court are charged only with according preferential consideration to the request of a relative for placement; there is no obligation simply to grant such a request on a specified showing. (In re Luke L. (1996) 44 Cal.App.4th 670, 679-680.)

Subdivision (a) of section 361.3 provides in part: In any case in which a child is removed from the physical custody of his or her parents pursuant to Section 361, preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative. In determining whether placement with a relative is appropriate, the county social worker and court shall consider, but shall not be limited to, consideration of all the following factors: [] (1) The best interest of the child, including special physical, psychological, educational, medical, or emotional needs. [] (2) The wishes of the parent, the relative, and child, if appropriate. [] (3) The provisions of Part 6 (commencing with Section 7950) of Division 12 of the Family Code regarding relative placement. [] (4) Placement of siblings and half siblings in the same home, if that placement is found to be in the best interest of each of the children as provided in Section 16002. [] (5) The good moral character of the relative and any other adult living in the home, including whether any individual residing in the home has a prior history of violent criminal acts or has been responsible for acts of child abuse or neglect. [] (6) The nature and duration of the relationship between the child and the relative, and the relatives desire to care for, and to provide legal permanency for, the child if reunification is unsuccessful. [] (7) The ability of the relative to do the following: [] (A) Provide a safe, secure, and stable environment for the child. [] (B) Exercise proper and effective care and control of the child. [] (C) Provide a home and the necessities of life for the child. [] (D) Protect the child from his or her parents. [] (E) Facilitate court-ordered reunification efforts with the parents. [] (F) Facilitate visitation with the childs other relatives. [] (G) Facilitate implementation of all elements of the case plan. [] (H) Provide legal permanence for the child if reunification fails. [] . . . [] (8) . . . The court shall order the parent to disclose to the county social worker the names, residences, and any other known identifying information of any maternal or paternal relatives of the child. This inquiry shall not be construed, however, to guarantee that the child will be placed with any person so identified. The county social worker shall initially contact the relatives given preferential consideration for placement to determine if they desire the child to be placed with them. Those desiring placement shall be assessed according to the factors enumerated in this subdivision. The county social worker shall document these efforts in the social study prepared pursuant to Section 358.1.

The juvenile courts decision in this matter is reviewed for an abuse of discretion standard. (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108-1109.) The linchpin of the analysis is whether placement with a relative is in the best interests of the minor. (In re Stephanie M. (1994) 7 Cal.4th 295, 321.) By statute, the social worker must document in social study reports efforts made to place a minor with a relative. ( 361.3, subd. (a)(8).)

The issue for the juvenile court in this case was whether, considering the suitability of the homes of any relatives and the best interests of the minor, a placement with any interested relatives was appropriate. ( 361.3, subd. (a); In re Stephanie M., supra, 7 Cal.4th at p. 321.)

Appellant claims the Department failed to interview all eligible adult family relatives and to recommend placement . . . with family first. Appellant does not identify any such relatives, nor does she support her assertion with any citation to the record. Moreover, the record reflects that, although the minors maternal grandparents expressed an interest in placement, they failed to cooperate with appointments scheduled on their behalf by the Department.

Appellant has failed to show error.

Disposition

The order of the juvenile court terminating appellants parental rights is affirmed.

HULL, J.

We concur:

SIMS , Acting P. J.

BUTZ , J.

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