In re Miguel C.

Filed 2/14/08 In re Miguel C. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

Appeal from an order of the Superior Court of Orange County, James Patrick Marion, Judge. Affirmed.

Michael D. Randall, under appointment by the Court of Appeal, for Defendant and Appellant.

Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent.

No appearance for the Minors.

* * *

INTRODUCTION

Miguel C., Sr. (Father), appeals from the juvenile courts order terminating his parental rights as to now 16‑year‑old Miguel C. and 13‑year‑old Rodrigo C. The juvenile court previously found Father had fatally shot Miguel and Rodrigos mother. This is the third time this case has come before this court.

Father challenges the order terminating his parental rights on the grounds (1) substantial evidence does not show by clear and convincing evidence that Miguel and Rodrigo were adoptable, and (2) the juvenile court erred by requiring Father to share a Spanish language interpreter with Miguel and Rodrigos maternal grandparents (the grandparents) during a portion of the permanency hearing. We affirm.

Substantial evidence supports the juvenile courts finding by clear and convincing evidence that it is likely Miguel and Rodrigo will be adopted. The record shows both children are healthy and are making progress in the weekly therapy provided to help them address the psychological injury they suffered from the loss of their mother. In addition, the grandparents, with whom Miguel and Rodrigo had been placed for almost a year preceding the permanency hearing, stand ready and eager to adopt them; Miguel and Rodrigo wish to be adopted by the grandparents.

The record is insufficient to show when, for how long, or even if Father and the grandparents used the Spanish language interpreter on a shared basis during the permanency hearing. We find no error.

We have reviewed the record and we must commend the grandparents for uprooting their lives to come to the rescue of the children under these tragic circumstances. Miguel and Rodrigo are properly grateful for all that the grandparents have done for them.

BACKGROUND

In November 2005, the Orange County Social Services Agency (SSA) filed a juvenile dependency petition under Welfare and Institutions Code section 300, subdivisions (b) (failure to protect) and (g) (no provision for support) as to Miguel and Rodrigo. (All further statutory references are to the Welfare and Institutions Code.) The petition, as later amended, alleged that on October 27, 2005, Father shot the mother of Miguel and Rodrigo in the head and that she did not survive. Father and the mother had been separated for approximately three years. Miguel and Rodrigo had resided in the care of the mother.

SSAs jurisdiction and disposition report stated that in November 2005, Father was incarcerated at Orange County jail. The juvenile court ordered Father to have no direct or indirect contact of any kind with either Miguel or Rodrigo. Miguel and Rodrigo were placed in the home of Miguels former girlfriend on November 3, 2005. The grandparents traveled from Mexico to the United States in order to try to take custody of the children. Miguel and Rodrigo began having monitored visits with the grandparents.

At the jurisdiction and disposition hearing, Miguel and Rodrigo stated they did not want to have any contact with Father. The juvenile court found the allegations of the amended petition as to both counts true by a preponderance of the evidence, and declared Miguel and Rodrigo dependent children of the court under section 360, subdivision (d). The court vested custody in SSA and stated the children were to remain placed with the caretaker. The court further stated that eventual placement of the children with the grandparents was a good long term plan and ordered increased visitation with the grandparents. The juvenile court found it was detrimental for the children to visit Father at that time, but approved a service plan for Father.

In April 2006, Father appealed from the courts jurisdiction and disposition orders, contending (1) substantial evidence did not support the juvenile courts finding Father shot the mother; (2) the juvenile court abused its discretion by ordering the childrens continued placement with the caretaker; and (3) the juvenile court abused its discretion by denying visitation contacts. This court rejected Fathers arguments and affirmed the orders of the juvenile court. (In re Miguel C. (Nov. 8, 2006, G036920) [nonpub. opn.].)

In January 2007, the juvenile court terminated reunification services and set the matter for a permanency hearing. Father filed a petition for a writ of mandate challenging the courts orders terminating reunification services and setting the matter for a permanency hearing as to Rodrigo only. Father argued the juvenile court erred by finding that he had received reasonable reunification services as to Rodrigo and further erred by setting the permanency hearing. This court rejected Fathers arguments and denied Fathers petition. (Miguel C. v. Superior Court (Apr. 5, 2007, G038117) [nonpub. opn.].)

In the permanency hearing report filed April 30, 2007, the assigned social worker, Paul Sanchez, recommended the juvenile court find that Miguel and Rodrigo will likely be adopted and order Fathers parental rights terminated. With regard to the childrens adoptability, the permanency hearing report stated that neither Miguel nor Rodrigo had medical, dental, or developmental concerns. Both children were receiving therapeutic services and have made some progress in developing coping skills to deal with their mothers death. Rodrigos grades in school reflect above average accomplishment, and satisfactory to outstanding skill level on progress, although Rodrigo has had some behavioral problems at school. The grandparents were working with Miguels school to help Miguel improve academically.

The permanency hearing report further stated the grandparents wished to adopt Miguel and Rodrigo, and provide a permanent, stable and loving home for them. Sanchez observed the grandparents high regard for the children and noted the grandparents had provided a nurturing, loving and stable home for them since Miguel was placed in their care in August 2006 and Rodrigo was placed in their care in September 2006. Both Miguel and Rodrigo appeared to be very comfortable in their prospective adoptive parents home and engage with [the grandparents] in a healthy and appropriate manner. They appear to be securely attached to [the grandparents].

In an addendum report, Sanchez reported the grandparents had received assistance from various sources in the process of applying for a visa that would permit them to continue to legally reside in the United States to care for the children here. The grandparents visa application was pending as of the date of the report.

At the permanency hearing, the juvenile court admitted the permanency hearing report and addendum reports into evidence. At the hearing, social worker supervisor Charles Griffin, who performs adoption assessments, testified that even if the grandparents were not interested in adoption, Rodrigo exhibits characteristics that might be appealing to a family. For example, he seems to be highly intelligent, does well in school; he seems to socially do okay. I didnt see any really strong behaviors that might interfere. It may take us longer to find a home. Griffin testified an older age does not preclude adoptability. With regard to Miguel, Griffin testified he might be harder to find a placement for. He is older, and that does play a factor. Griffin also said, theres a broad span of families that look for different types of children. So its difficult to pin down all the time whether someones not adoptable.

Miguel and Rodrigo each testified that they wish to be adopted by the grandparents. Rodrigo stated he would like to be adopted because he can be in full custody of my grandparents. Miguel explained, Im comfortable where Im at. I feel supported. I feel the support from my family. It truly feels like family. Ive really never experienced that feeling, having a family there for you because of the fact Ive never had anybody here in this country because of the fact my blood family is all in Mexico. Theyre the only connection I have, and to me thats one of the closest connections that I have to my mom now.

The juvenile court found by clear and convincing evidence it is likely Miguel and Rodrigo will be adopted, and did not find any exceptions contained in section 366.26, former subdivision (c)(1)(A), (B), (C), (D), (E) or (F) applied. The court terminated Fathers parental rights as to Miguel and Rodrigo, and placed them for adoption.

Father appealed from the juvenile courts order terminating his parental rights.

DISCUSSION

I.

Substantial Evidence Supports the Juvenile Courts Finding by Clear and Convincing Evidence That Miguel and Rodrigo Were Adoptable.

The juvenile court may terminate parental rights only if it determines by clear and convincing evidence that it is likely the child will be adopted within a reasonable time. [Citations.] In making this determination, the juvenile court must focus on the child, and whether the childs age, physical condition, and emotional state may make it difficult to find an adoptive family. [Citations.] In reviewing the juvenile courts order, we determine whether the record contains substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that [the child] was likely to be adopted within a reasonable time. [Citations.] [Citations.] We give the courts finding of adoptability the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of affirming. [Citation.] (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1561‑1562.)

Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minors age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. (In re Gregory A., supra, 126 Cal.App.4th at p. 1562.)

The juvenile court found Miguel and Rodrigo adoptable by clear and convincing evidence, stating: First off, would the minors appear likely to be adoptable even without the grandparents? . . . I think so. I agree with [minors counsel]. Theyre smart. Theyre articulate. Theyre good looking. Problems, if any, they had, which were serious obviously given the nature of the situation, have been worked out probably because of the people theyve been living with. [] There would be tremendous sympathy for these boys based on their attributes. I think theyd be adoptable by a lot of different people just based on looking at them and seeing their circumstances. [] Now, you couple that with the fact that they have the grandparents who came to the United States since their daughter was murdered. They left their home, work and family to come to the U.S. to care for their grandchildren, Miguel and Rodrigo, and thats in the report. Theyll never have the commitment they have from these people probably for the rest [of] their lives. So theres no problem with that. I think they are adoptable by overwhelming evidence.

Substantial evidence supports the juvenile courts finding by clear and convincing evidence that Miguel and Rodrigo will likely be adopted within a reasonable time. The record shows Miguel and Rodrigo are healthy and making progress in weekly therapy sessions in dealing with the loss of their mother at Fathers hand. Although, at the time of the permanency hearing, Miguel and Rodrigo were older (16 years old and 12 years old, respectively), Griffins testimony established that an older age does not render a child unadoptable. Instead, more time might be required to find an appropriate placement. Furthermore, Miguel and Rodrigo have prospective adoptive parents. The grandparents have expressed their desire to adopt Miguel and Rodrigo, and Miguel and Rodrigo have expressed their desire to be adopted by the grandparents.

Citing Griffins testimony that Miguel and Rodrigo might be adoptable, Father contends Miguel and Rodrigo were adoptableif at allsolely because the[] . . . grandparents had expressed a desire to adopt them. He argues the grandparents pending visa application and uncertain future residency status constituted a legal impediment to their adoption of the boys, and thus their desire to adopt Miguel and Rodrigo cannot support the juvenile courts adoptability finding. (See In re Carl R. (2005) 128 Cal.App.4th 1051, 1061 [where the child is deemed adoptable based solely on the fact that a particular family is willing to adopt him or her, the trial court must determine whether there is a legal impediment to adoption].)

But the juvenile court was free to disregard Griffins opinion testimony that Miguel and Rodrigo might be adoptable, and instead rely on Sanchezs reports showing Miguel and Rodrigo were without medical, dental, or developmental concerns, showing they were progressing in therapy in dealing with the circumstances surrounding their mothers death and the aftermath of that event, and recommending the juvenile court find Miguel and Rodrigo adoptable based on the reported facts. As discussed ante, there is no evidence Miguels and Rodrigos ages would have rendered them unlikely to be adopted within a reasonable time. This is not a case, therefore, where adoptability is based solely on the fact there are prospective adoptive parents who wish to adopt. Furthermore, the willingness of the grandparents to adopt Miguel and Rodrigo supports a finding of adoptability. (See In re Gregory A., supra, 126 Cal.App.4th 1554, 1562 [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].)

In addition, Fathers argument hinges on speculation the grandparents visa application will be denied, and that such a denial would constitute a legal impediment to their ability to adopt Miguel and Rodrigo. The record shows the grandparents legally entered this country to take care of Miguel and Rodrigo. The record also shows the grandparents had assistance from multiple sources in their efforts in applying for a visa to legally remain in this country to continue to care for Miguel and Rodrigo. Father does not cite any legal authority showing that the grandparents would be precluded from adopting Miguel and Rodrigo under these circumstances.

Father further challenges the juvenile courts adoptability finding on the ground the preliminary adoption assessment did not show the results of any screens for child abuse referrals as required by law with regard to the grandparents. He argues, [j]ust like the [In re] Jerome D. [(2000) 84 Cal.App.4th 1200] case, the adoptability of the boys in the instant case rested solely on the grandparents willingness to adopt. As [Father] pointed out, the preliminary adoption assessment in the instant case did not indicate whether the grandparents had any child abuse referrals here or anywhere else. [Citation.] Just like the Jerome D. case, this deficiency cannot be excused by the boys reported attachment to the grandparents or the length of their residency in the grandparents home.

In In re Jerome D., supra, 84 Cal.App.4th 1200, the appellate court concluded there was insufficient evidence of adoptability to support the juvenile courts order terminating parental rights. The assessment report, on which the court relied, briefly stated Jerome was adoptable based on his good mental health, physical health, and sociability, and [h]e appears to be doing well in school, and currently requires no special treatment. (Id. at pp. 1204‑1205.) The assessment was incomplete as it said nothing more about Jeromes physical or emotional state, omitting any references to his prosthetic eye, which required care and treatment, and to his close relationship with Mother. (Ibid.) The assessment report relied heavily on the mothers former boyfriends desire to adopt Jerome. (Id. at p. 1205.) A home study had not been initiated and the report did not address the former boyfriends criminal history involving domestic violence or his listing as a perpetrator with child protective services for emotionally abusing his niece and nephews. (Id. at pp. 1203, 1205.)

The facts of In re Jerome D. are significantly distinguishable from the facts of this case. Miguels and Rodrigos physical health and progress in therapy throughout the dependency period has been well documented. Miguel and Rodrigos mother is deceased and Father is incarcerated. SSA had received results from the Department of Justice that the grandparents had no criminal history. The grandparents underwent an adoptive home study in order to adopt Miguel and Rodrigo.

While the grandparents might not have completed every step of the process involved in adopting Miguel and Rodrigo, they are engaged in the process and have continually expressed their desire to adopt the children. Even if we were to refrain from characterizing the grandparents as prospective adoptive parents for purposes of the adoptability finding because they had not completed the process, such a fact does not undermine the juvenile courts finding that Miguel and Rodrigo were likely to be adopted within a reasonable time. Even when a child is not placed with prospective adoptive parents at the time of the permanency hearing, the focus remains on the childs physical and emotional state. The fact that the child is not yet placed in a preadoptive home nor with a relative or foster family who is prepared to adopt the child, shall not constitute a basis for the court to conclude that it is not likely the child will be adopted. [Citation.] [I]t is not necessary . . . that the child, at the time of the termination hearing, already be in a potential adoptive home. Rather, what is required is clear and convincing evidence of the likelihood that adoption will be realized within a reasonable time. [Citation.] [Citation.] (In re Gregory A., supra, 126 Cal.App.4th 1554, 1563.)

Substantial evidence amply supports the juvenile courts finding Miguel and Rodrigo were likely to be adopted.

II.

The Record Does Not Show Father Was Forced to Share a Spanish Language Interpreter with the Grandparents.

Father contends, [i]t was reversible error to require [him] to share the Spanish language interpreter with the grandparents at the section 366.26 hearing. Fathers argument is without merit because the record is insufficient to show he actually shared the interpreter with the grandparents during the hearing.

The permanency hearing was held on June 28 and July 2, 2007. The record shows the grandparents did not attend the first day of the permanency hearing on which date Sanchez testified. The juvenile courts minute order from the first day of the permanency hearing identifies a Spanish language interpreter as present for father.

The reporters transcript shows the grandparents were not present at the beginning of the second day of the permanency hearing on July 2. The grandparents attorney confirmed that they were due in court pretty soon and with Miguel and Rodrigo. Fathers counsel stated on the record that Father was present in custody and was aided by the Spanish language interpreter. Fathers counsel called Griffin as a witness. The reporters transcript shows the grandparents had still not arrived by the time Griffin had completed his testimony as it recorded the courts statement, [t]heres a motion. We have all the attorneys, and [Father] is present.

After the parties counsel and the court discussed the children testifying outside the presence of Father, Rodrigo and Miguel testified. Following Rodrigos and Miguels testimony and a 15- or 20‑minute break taken so that their testimony could be read back to Father, proceedings resumed and the juvenile court stated Father and the grandparents were both present. The parties counsel presented their arguments to the court and the juvenile court ordered, inter alia, that Fathers parental rights are terminated.

The juvenile courts minute order from the second day of the permanency hearing identifies the Spanish language interpreter as attending the hearing for father and defacto parents. It is this single reference in the record that Father seizes upon as the basis for his argument the juvenile court erred by requiring him to share the services of the interpreter with the grandparents during the hearing.

The record does not show Father ever objected to sharing the Spanish language interpreter. Father argues he has not waived this argument because the right to a separate interpreter is not deemed waived unless the parent has made a knowing and intelligent waiver.

The parties have not cited any legal authority, and we have found none, which requires a juvenile court to provide sua sponte a separate interpreter for each party requiring the assistance of an interpreter in a dependency proceeding. Father argues that because he had a fundamental liberty interest at stake at the permanency hearing, legal authority establishing a criminal defendants right to his or her own interpreter during trial should apply here by analogy. He cites People v. Rodriguez (1986) 42 Cal.3d 1005 (Rodriguez), in which the California Supreme Court held the harmless beyond a reasonable doubt standard enunciated in Chapman v. California (1967) 386 U.S. 18 applies to determine whether a violation of a criminal defendants right to an interpreter constituted reversible error.

In Rodriguez, supra, 42 Cal.3d 1005, the defendant shared an interpreter with his codefendant, which sharing he later argued was reversible error. The defendants argued, the situation of the shared interpreter should be analogized to that where joint counsel is appointed. (Id. at p. 1014.) The Supreme Court stated, [h]owever, where no objection is made to shared counsel, reversal is appropriate only if an actual conflict is demonstrated or if a potential conflict exists and the record supports an informed speculation that appellants right to effective representation was prejudicially affected. [Citation.] In other words, some grounds to believe that prejudice occurred must be discernible. In light of the failure to point to any potential or actual conflict, we decline to find that the use of a shared interpreter was in this case error on grounds analogous to those used in analyzing issues involving joint representation. (Ibid.) Father argues that because his interests were adverse to those of the grandparents during the permanency hearing, an actual conflict existed between them, thereby rendering their sharing of an interpreter reversible error.

We question the premise of Fathers argument that the legal principles pertaining to shared interpreters among adverse parties in the criminal context as discussed in Rodriguez, supra, 42 Cal.3d 1005 apply in the dependency context, especially in light of the California Supreme Courts recent discussion in In re James F. (Jan. 17, 2008, S150316) __ Cal.4th __ [2008 Cal. Lexis 476] (James F.). In that case, the Supreme Court stated, we observe that juvenile dependency proceedings differ from criminal proceedings in ways that affect the determination of whether an error requires automatic reversal of the resulting judgment. The rights and protections afforded parents in a dependency proceeding are not the same as those afforded to the accused in a criminal proceeding. For example, a juvenile court may rely on hearsay contained in a social workers report to support a jurisdictional finding in a dependency case, although such evidence could not be used to establish guilt in a criminal proceeding. [Citation.] Also, unlike a defendant in a criminal proceeding, [a] parent at a dependency hearing cannot assert the Fourth Amendment exclusionary rule, since the potential harm to children in allowing them to remain in an unhealthy environment outweighs any deterrent effect which would result from suppressing evidence unlawfully seized. [Citation.] [] Plea bargaining and other negotiated dispositions play a significant role in criminal proceedings, but not in dependency proceedings. A defendant in a criminal proceeding has a constitutional right to trial by jury [citation], but in a dependency proceeding the juvenile court makes all factual and legal determinations. The prosecution in a criminal proceeding must prove the defendants guilt beyond a reasonable doubt; in dependency proceedings, the burden of proof is proof by clear and convincing evidence. [Citation.] In a criminal prosecution, the contested issues normally involve historical facts (what precisely occurred, and where and when), whereas in a dependency proceeding the issues normally involve evaluations of the parents present willingness and ability to provide appropriate care for the child and the existence and suitability of alternative placements. Finally, the ultimate consideration in a dependency proceeding is the welfare of the child [citations], a factor having no clear analogy in a criminal proceeding. (James F., supra, __ Cal.4th at p. __ [2008 Cal. Lexis 476, at pp. *26‑*28].)

The Supreme Court further stated, [t]hese significant differences between criminal proceedings and dependency proceedings provide reason to question whether the structural error doctrine that has been established for certain errors in criminal proceedings should be imported wholesale, or unthinkingly, into the quite different context of dependency cases. (See In re Celine R. [(2003)] 31 Cal.4th [45,] 58‑59 [rejecting analogy to criminal cases and applying harmless error analysis to improper joint representation of children in dependency case]; In re Sade C. (1996) 13 Cal.4th 952, 991 . . . [stating that criminal defendants and parents in dependency proceedings are not similarly situated].) (James F., supra, __ Cal.4th at p. __ [2008 Cal. Lexis 476, at p. *28], fourth and fifth brackets in original.)

In James F., the Supreme Court reversed the appellate courts holding that a juvenile courts error in the procedure used to appoint a guardian ad litem for a parent in a dependency proceeding required automatic reversal of an order terminating parental rights. (James F., supra, __ Cal.4th at p. __ [2008 Cal. Lexis 476, at pp. *2, *26].) The Supreme Court found that although the procedure by which the juvenile court appointed a guardian ad litem did not comport with due process, the error was harmless. (Id. at p. __ [2008 Cal. Lexis 476, at pp. *16‑*17].)

Even assuming, however, that the same legal principles set forth in Rodriguez, supra, 42 Cal.3d 1005 apply equally to criminal and dependency cases, the record here is insufficient to show Father actually shared the interpreter with the grandparents during the permanency hearing. The record merely reflects by the courts minute order that an interpreter was present for Father and the grandparents at the second day of the hearing on July 2. The reporters transcript reflects the interpreter was solely aiding Father as of the beginning of that day. No such reference was made on the record with regard to the grandparents after they arrived at the hearing later that day. We do not know when or for how long, or even if, the interpreter was used on a shared basis. Father has therefore failed to carry his burden of demonstrating error.

DISPOSITION

The order is affirmed.

FYBEL, J.

WE CONCUR:

SILLS, P. J.

RYLAARSDAM, J.

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