Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEALS from an order and judgment of the Superior Court of San Diego County, Hideo Chino, Referee. Affirmed. Super. Ct. No. J509887E
McDONALD, J.
Justin V.'s father, L.F., appeals an order summarily denying his Welfare and Institutions Code section 388 petition seeking custody of Justin and an earlier declination of the juvenile court to place Justin with him. Angela R., Justin's mother, joins in L.F.'s appeal and appeals the termination of her parental rights to Justin, arguing the evidence is insufficient to support the court's finding that Justin was adoptable. L.F. joins in Angela's appeal. We affirm the judgment and order.
All statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2005, the San Diego County Health and Human Services Agency filed a petition on behalf of one-month-old Justin under section 300, subdivision (b). The petition alleged Angela suffered from a mental illness and was unable to provide Justin proper care. The petition further alleged she had been unable to successfully reunify with her other four children.
Angela met with social workers and admitted to a history of drug use and use of drugs during a prior pregnancy. Angela's four other children had been removed from her custody and were placed for adoption after she unsuccessfully attempted to reunify with them during dependency proceedings. Angela identified L.F. as Justin's biological father but she did not know his whereabouts. She last saw L.F. when she was about four months pregnant with Justin. She told L.F. to leave her home after he cheated on her. Angela also obtained a restraining order against L.F. because he threatened to physically harm her. The court held a detention hearing, ordered Justin detained in out-of-home care, granted supervised visitation, and ordered Angela to comply with her case plan.
During the next six months, Angela underwent a psychological evaluation. The evaluation concluded Angela suffered from impaired neurological functioning and was not a viable candidate for therapy because of her intellectual and cognitive limitations. Before the six-month hearing, the Agency located L.F. in Arizona where he lived with his wife Christina and her two children. The court appointed L.F. counsel and ordered him to submit to a paternity test. At an initial six-month review hearing, the court ordered supervised visits between L.F. and Justin and continued the hearing.
Justin and his caregiver traveled to Arizona to visit L.F. and his family. L.F. and Christina were happy to see Justin and enjoyed spending time with him. The foster mother reported her concerns regarding the cleanliness of L.F.'s home and discussed the matter with Christina. Christina did not appear to have concerns about her home's dirty condition. The Agency received L.F.'s paternity results that confirmed he was Justin's biological father. The Agency requested an Interstate Compact on Placement of Children (ICPC) be initiated for L.F. in the state of Arizona and that a home evaluation be conducted.
In May 2006, the Agency recommended the court terminate reunification services and schedule a selection and implementation hearing. Angela continued to struggle with her mental illness and made little progress with services. The social worker interviewed L.F. and Christina and found their home to meet the minimum standards of safety. L.F., however, was employed and worked 10 to 14 hours a day while Christina attended high school. Christina's brother provided childcare for her children while she was away at school. Christina represented she would love to have Justin be a part of her family but wanted Angela to pay for child support. The social worker believed L.F. required parenting and domestic violence classes before placing Justin in the home. L.F. had a criminal record, including one incident of domestic violence. The social worker observed L.F. experience difficulty answering questions posed to him and, as a result, Christina frequently spoke on his behalf.
At the contested six-month review hearing, the Agency represented that a criminal history and a child protective services history report had been initiated for L.F. and Christina. An ICPC home evaluation had also been initiated. The court believed that because of the pending ICPC home evaluation, the issue of whether or not it would be detrimental to place Justin with L.F. was not ripe for adjudication. The Agency argued, however, that the ICPC was not necessary to adjudicate the issue. The court proceeded to hear testimony presented by the Agency in support of its assertion that it would be detrimental to place Justin with L.F.
Justin's caregiver testified about Justin's current medical condition. Justin suffered from asthma, had tubes in his ears and had a sensitive immune system. He received treatment for these conditions, including steroid medications for his immune system and used a nebulizer for the asthma. The caregiver took Justin to visit L.F. in Arizona. She stayed with Justin overnight in the home and described it as being very dirty. The sink was full of dirty dishes, laundry was all over the floor and a dirty cat litter box was next to the stove. The caregiver noticed the two other children in the home were dirty and L.F. and Christina did not make any efforts to wash the children. L.F. admitted the children's daycare provider complained the children were dirty and could not attend daycare in that condition. Six animals lived in the home, including several cats and a Rottweiler puppy. In addition to the animals, there were uncovered electric plugs, no locks on cabinets, and electronic equipment was within the children's reach. The caregiver spoke with Christina and learned she had been sexually abused. Christina also mentioned she had used a male babysitter who may have shown her older child pornography because the child started exhibiting "strange" behaviors.
The court found clear and convincing evidence that it would be detrimental to place Justin with L.F. The court cited the caregiver's testimony concerning the condition of the home, the fact Justin had no relationship with L.F. or Christina and L.F. needed to participate in services. The court terminated reunification services and scheduled a section 366.26 hearing.
L.F. filed a notice of intent to challenge the court's finding of detriment. No timely writ petition was filed. The notice of intent was deemed abandoned and the case was dismissed on July 21, 2006. [D048788].
At the beginning of the section 366.26 hearing, L.F. filed a section 388 modification petition seeking custody of Justin. L.F. alleged that as changed circumstances, this court's case of In re John M., (2006) 141 Cal.App.4th 1564 (In re John M.)held a positive ICPC home evaluation was not required before the minor could be placed with a noncustodial parent who lived out of state. L.F. also alleged that he is Justin's biological father and it was in Justin's best interests to be raised by him and to also live with his half-siblings.
The court considered the assertions and summarily denied the section 388 petition. It found L.F. had not shown changed circumstances and disagreed that In re John M. was applicable in this case. The court stated its previous finding of detriment was not based
on the denial of the ICPC but on all the evidence concerning L.F.'s circumstances.
When the court made its finding of detriment, an ICPC home evaluation was pending. The evaluation eventually was denied, citing the home was not appropriate for placement because L.F. lacked health insurance, the home had insufficient bedroom space, and the presence of animals posed a risk to Justin's health.
The court proceeded with the section 366.26 hearing. The social worker prepared an assessment report and recommended parental rights be terminated. Justin did not appear to have a primary bond with Angela and he showed no distress when leaving Angela at the end of visits. The social worker assessed Justin as highly adoptable because of his young age and friendly disposition. Justin did suffer from asthma and a weakened immune system but his conditions were controlled. His developmental evaluation showed him to be on target for his age. Justin had been living with his current caregiver since shortly after his birth. The caregiver was unable to adopt Justin but the Agency had identified 15 other families willing and able to adopt a child like Justin.
Social worker Catherine McAdams testified at the section 366.26 hearing that she recently found an approved adoptive home for Justin. Justin had a strong attachment to his current caregiver and therefore there would be a slow transition into the new adoptive home. Ms. McAdams testified that if this placement was not successful, there were several other approved adoptive homes interested in adopting a child like Justin. Ms. McAdams also testified L.F. saw Justin once in Arizona and a second time at a court hearing. Other than these two visits, L.F. did not contact the Agency to schedule additional visits with Justin.
The court found by clear and convincing evidence that Justin was likely to be adopted within a reasonable time if parental rights were terminated. The court found none of the exceptions to section 366.26, subdivision (c)(1) applied to preclude terminating parental rights. The court terminated parental rights and referred Justin for adoptive placement.
DISCUSSION
I
L.F. contends he was a nonoffending, noncustodial parent entitled to custody of Justin under section 361.2, subdivision (a), and there was no evidence to support the court's finding at the six-month hearing that placing Justin with him would be detrimental to Justin.
The Agency asserts this court does not have jurisdiction to consider this contention because it should have been, but was not, asserted by writ petition or timely appeal. The court made a finding of detriment at the six-month review hearing. The record shows no writ petition or appeal was filed. 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. (See In re Tabitha W. (2006) 143 Cal.App.4th 811, 816-817.) This order could have been immediately appealed but L.F. did not do so and, therefore, the trial court's finding placement with L.F. as of the six-month hearing would be detrimental to Justin is final.
II
L.F. contends that the court erred by summarily denying his section 388 petition. He asserts he made a prima facie showing that circumstances had changed and the proposed modification to return Justin to his custody was in Justin's best interests because he is Justin's biological father.
A
Under section 388, a party may petition the court to change, modify or set aside a previous court order. The petitioning party has the burden of showing, by a preponderance of the evidence, that (1) there is a change of circumstances or new evidence, and (2) the proposed change is in the child's best interests. (§ 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The petition must be liberally construed in favor of its sufficiency. (Cal. Rules of Court, rule 5.570(a); In re Marilyn H. (1993) 5 Cal.4th 295, 309.) "The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing." (Id. at p. 310.) " '[I]f the petition presents any evidence that a hearing would promote the best interests of the child, the court will order the hearing.' [Citation.]" (In re Jasmon O., supra, 8 Cal.4th at p. 415; see also In re Hashem H. (1996) 45 Cal.App.4th 1791, 1798-1799.) "However, if the liberally construed allegations of the petition do not make a prima facie showing of changed circumstances and that the proposed change would promote the best interests of the child, the court need not order a hearing on the petition. [Citations.] The prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition." (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.)
B
L.F. did not show it was in Justin's best interests to have Justin placed in his custody. In his petition, L.F. asserts it would be in Justin's best interests to be placed with his biological father. However, after termination of reunification services, the focus of dependency proceedings is to provide the child with permanency and stability. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 254-256; In re Marilyn H. (1993) 5 Cal.4th 295, 310.) At the time of the hearing on the section 388 petition, Justin had been a dependent of the court his entire life and had a tenuous relationship with L.F. Angela ended her relationship with L.F. before Justin's birth. L.F. moved to Arizona and did not make efforts to contact Angela or Justin. The Agency located L.F. in Arizona after Justin became a dependent. One visit took place between L.F. and Justin when Justin traveled to Arizona with his caregiver. A second visit took place when L.F. traveled to San Diego for a court hearing, where he saw Justin one more time. The social worker testified L.F. never contacted her to schedule additional visits. Further, the record does not show L.F. participated in parenting classes or services to address his history of domestic violence that the social worker believed would be necessary before placing Justin in L.F.'s home.
Even had L.F. shown it was in Justin's best interests to be placed in his custody, L.F. did not make a prima facie showing of a change in circumstances. The absence of any showing of a change in circumstances obviated the requirement the court hold a hearing on L.F.'s section 388 petition. (See In re Angel B. (2002) 97 Cal.App.4th 454, 465.) As changed circumstances, L.F. asserts the court's decision in In re John M. required a finding of change in circumstances. He further asserts he has access to health insurance and accommodations in his home and it should be reassessed.
In re John M. held ICPC approval was not required for placement of a child with an out-of-state parent. (In re John M., supra, 141 Cal.App.4th at pp. 1573-1575.) Rather, an ICPC evaluation is but one factor to consider when an out-of-state parent requests custody of a minor child. (Id. at p. 1572.) Here, the court did not have a completed ICPC home evaluation when it made its detriment finding and, following the reasoning in In re John M., the ICPC approval was not necessary. Further, there was evidence here to support the detriment finding based on the Agency's reports and caregiver's testimony that L.F. needed services and his home's condition was suspect. In any event, L.F. did not timely challenge that finding. The holding in In re John M. did not constitute a change in circumstances.
Even if L.F.'s conclusory assertion that he had access to health insurance was substantiated by the record, there is no evidence L.F. had addressed other concerns raised by the Agency and in the ICPC home evaluation. L.F. had not removed the animals in his home or made efforts to curtail any health risk they might pose to Justin's sensitive immune system. L.F. also had been offered reunification services to address allegations of domestic violence but he had made little or no progress. Because the facts alleged would not have sustained a favorable decision on the section 388 petition, L.F. was not entitled to an evidentiary hearing. (In re Zachary G., supra, 77 Cal.App.4th at p. 808; In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451.)
III
Angela contends the court erred by finding Justin was likely to be adopted within a reasonable amount of time. She asserts Justin is not adoptable because he had a history of unsuccessful placements and had yet to be placed in a prospective adoptive home. L.F. joins in Angela's argument.
A
When reviewing a court's finding that a minor is adoptable, we apply the substantial evidence test. (In re Josue G. (2003) 106 Cal.App.4th 725, 732; In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold the findings. We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 52.) Rather, we view the record favorably to the juvenile court's finding and affirm even if some evidence supports a contrary conclusion. (Id. at pp. 52-53.) The parent has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
The court can terminate parental rights only if it determines by clear and convincing evidence the minor is likely to be adopted within a reasonable time. (§ 366.26, subd. (c)(1).) The statute requires clear and convincing evidence of the likelihood adoption will be realized within a reasonable time. (In re Zeth S. (2003) 31 Cal.4th 396, 406; In re Amelia S. (1991) 229 Cal.App.3d 1060, 1065.) In determining adoptability, the focus is on whether a child's age, physical condition, and emotional state will create difficulty in locating a family willing to adopt. (§ 366.22, subd. (b)(2); In re Erik P. (2002) 104 Cal.App.4th 395, 400; In re David H. (1995) 33 Cal.App.4th 368, 379.) The possibility a minor may have future problems does not preclude a finding the child is likely to be adopted. (In re Jennilee T. (1992) 3 Cal.App.4th 212, 223-225.) "Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor's age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parent's 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 re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650, italics omitted.)
B
The evidence showed Justin is likely to be adopted within a reasonable time. The social worker's assessment report and testimony concluded Justin was highly adoptable. Justin is a happy and an active 20-month old child with no developmental concerns. The evidence shows Justin suffers from asthma, has tubes in his ears, and has a depressed immune system. These conditions are not significant health concerns and are being closely monitored. The social worker's testimony gave no suggestion that Justin's asthma and ear problems would preclude a finding of adoptability. Contrary to Angela's assertions, Justin did not have a history of unsuccessful adoptive placements. The evidence instead showed Justin was placed with his caregiver immediately following his birth and remained in the same home throughout the entire dependency. Nothing in the record supports an inference Justin was difficult to place for adoption. Further, although Justin was not in a prospective adoptive home when the court made its adoptability finding, the social worker testified at the selection and implementation hearing that a family was ready to take Justin and the transition into his new home was scheduled to begin immediately. Should this prospective adoptive family become unable to adopt, about 15 other approved families remain willing to adopt a child with Justin's characteristics. (See In re Sarah M., supra, 22 Cal.App.4th at p. 1649.) Where "evidence of a minor's adoptability is not based solely on the existence of a prospective adoptive parent who is willing to adopt the child, the potential adoptive parent's suitability to adopt is irrelevant to the issue whether the minor is likely to be adopted." (In re Sarah M., supra, at p. 1651.) Substantial evidence supports the court's finding of adoptability.
DISPOSITION
The order denying L.F.'s section 388 petition and the judgment terminating parental rights are affirmed.
WE CONCUR: McCONNELL, P. J., HUFFMAN, J.