In re Gerardo A.

Filed 10/11/07 In re Gerardo A. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

A. D. (mother) appeals from an order by the juvenile court terminating her parental rights over her son Gerardo A. (Welf. & Inst. Code,  366.26.)[1]She contends the judgment must be reversed because the evidence did not establish that it was likely Gerardo would be adopted. We affirm.

BACKGROUND

In 1999, Gerardo (born November 1998) and his older sister Brittany (born October 1992) were declared dependents of the juvenile court and placed in the home of a relative due to mothers drug use, homelessness and criminal history. ( 300.) Mother complied with a court-approved reunification plan and regained custody of the children under a family maintenance program in May 2000. In November 2000, mother brought Gerardo to the offices of respondent Contra Costa County Department of Children & Family Services (Department) and told them she could no longer care for him. Mother had resumed using drugs and was again homeless.

Mother pled no contest to a supplemental petition alleging she had failed to comply with her family maintenance plan. ( 387.) Gerardo was placed in the home of his paternal grandmother and his sister Brittany was placed with a maternal aunt.[2]Additional services were provided to mother under a reunification plan, but at a review hearing held in September 2001, the court terminated services. In January 2002, the court held a selection and implementation hearing under section 366.26, ordered that a guardianship be established for each child, and appointed the grandmother and aunt as the respective guardians.

In March 2006, the Department filed a petition for modification under section 388 requesting that the court reinstate juvenile proceedings as to Gerardo and hold a new selection and implementation hearing under section 366.26. The petition alleged that the maternal grandmother had asked to adopt Gerardo and that Gerardo wanted the adoption to take place. The court granted the petition and set the case for a hearing under section 366.26, which was ultimately held in January 2007.

At the section 366.26 hearing, the court considered the testimony of the social worker assigned to the case as well as reports prepared by the Department in anticipation of the hearing. According to the primary report, Gerardo was adoptable in light of the grandmothers request for adoption. He was a bright, friendly and healthy child who was developmentally on target, and although he had shown some signs of attention deficit hyperactivity disorder, he had not been diagnosed with that condition. Gerardo was happy and well-cared-for in his grandmothers home. The grandmother had wanted to give mother a chance to reunify, and she had allowed visits and other contact, but now she did not believe that mother could assume Gerardos care. Mother was currently serving a four-year prison sentence for evading a peace office, a conviction that arose when she fled from police in 2003 while Gerardo was in her car.

At the time of the section 366.26 hearing, an adoptive home study was nearly complete. The Department reported that the grandmother was very motivated and the process had been uncomplicated. The Department had no concern about the care she was giving Gerardo or her ability to qualify as an adoptive parent. Mothers counsel did not argue at the section 366.26 hearing that Gerardo was unadoptable or that grandmother was an unsuitable caregiver. Rather, he argued that mothers bond with Gerardo triggered the beneficial relationship exception to the statutory preference for adoption, making guardianship a preferable permanent plan. ( 366.26, subd. (c)(1)(A).)

The court terminated parental rights after finding clear and convincing evidence that Gerardo was adoptable, that returning him to mothers care would be detrimental to him, and that terminating parental rights was in his best interests. Mother appeals.

DISCUSSION

A juvenile court may terminate parental rights only when clear and convincing evidence demonstrates that it is likely the child will be adopted. ( 366.26, subd. (c)(1).) Mother contends the order terminating her parental rights must be reversed because the Department did not make an adequate showing that Gerardo was adoptable. Although she did not raise the issue of adoptability in the court below, her argument is a challenge to the sufficiency of the evidence that may be raised even in the absence of an objection. (In re Brian P. (2002) 99 Cal.App.4th 616, 622-623.) Having reviewed the issue on its merits, we conclude the evidence was more than adequate to support the termination order.

We review the juvenile courts order to determine whether the record contains substantial evidence from which a reasonable trier of fact could determine adoptability. (In re Christiano S. (1997) 58 Cal.App.4th 1424, 1431.) As with other challenges to the sufficiency of the evidence, we must consider the record in the light most favorable to the trial courts decision and must draw all reasonable inferences from the evidence in support of its findings of fact. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1177.)

When determining adoptability, the focus is on the characteristics of the dependent child, e.g., whether his or her age, physical condition, and emotional state will make it difficult to find a person willing to adopt. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649 (Sarah M).) Even a minor who would ordinarily be unlikely to be adopted due to age, poor health or disability may be found adoptable when there is evidence of a suitable prospective family. (Id. at p. 1650.)

Gerardo was described in the social workers report as a healthy boy with no physical, cognitive, emotional or social delays, who does well academically and who enjoys sports and other physical activities. He had lived in his grandmothers home under a guardianship for over four years, and was thriving in that placement. Gerardo wanted to be adopted by his grandmother and she was committed to adopting him and raising him to adulthood. From these facts, the juvenile court readily inferred that Gerardo was likely to be adopted by his grandmother, and would be adopted by others within a reasonable time if for some reason the grandmother was unavailable. (See Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.)

Mother argues that because Gerardo is so closely bonded to his grandmother, it would be detrimental to place him with another family if the grandmother could not adopt. Mother complains the evidence was inadequate to show that Gerardos grandmother would be approved as an adoptive parent because a home study had not been completed when the hearing under section 366.26 was held in January 2007. We disagree. There is no requirement that an adoptive home study be completed before a court can terminate parental rights, so long as substantial evidence supports a finding that the adoption will go forward. (See In re Marina S. (2005) 132 Cal.App.4th 158, 166 (Marina S.).) When the grandmother was appointed Gerardos guardian four years earlier, she cleared a background check and her home was approved after an assessment. There was no suggestion her circumstances had materially changed since that time. (See id. at pp. 165-166; contrast In re Jerome D. (2000) 84 Cal.App.4th 1200, 1203-1205 [insufficient evidence of adoptability where prospective adoptive parent was stepfather who had history of domestic violence and child abuse and adoption assessment did not address his contacts with the criminal justice system or child protective services].)

In any event, we have granted the Departments request that we take judicial notice of a minute order dated July 16, 2007, which indicates that the home study has been completed and that adoption remains the permanent plan. (Evid. Code,  452, subd. (d), 459.) We may consider this postjudgment order to forestall mothers argument that the lack of an assessment at the time of the hearing under section 366.26 requires reversal of the order terminating parental rights. (In re Salvador M. (2005) 133 Cal.App.4th 1415, 1422; Marina S., supra, 132 Cal.App.4th at p. 166; In re Louis S. (2004) 117 Cal.App.4th 622, 627, fn. 2.)

DISPOSITION

The judgment is affirmed.

NEEDHAM, J.

We concur.

SIMONS, Acting P. J.

GEMELLO, J.

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[1] Further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

[2] Brittany, whose case is not at issue here, has a different father than Gerardo. Gerardos father is not a party to this appeal.