In re Gregory A.

• Decision Date: 23 February 2005
• Docket Number: No. G034454.,G034454.
• Citation: 25 Cal.Rptr.3d 134,126 Cal.App.4th 1554
• Court: California Court of Appeals Court of Appeals
• Parties: In re GREGORY A., a Person Coming Under the Juvenile Court Law. Orange County Social Services Agency, Plaintiff and Respondent, v. Nakia A., Defendant and Appellant.

25 Cal.Rptr.3d 134

126 Cal.App.4th 1554

In re GREGORY A., a Person Coming Under the Juvenile Court Law.

Orange County Social Services Agency, Plaintiff and Respondent, v. Nakia A., Defendant and Appellant.

No. G034454.

Court of Appeal, Fourth District, Division 3.

February 23, 2005.

Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant.

Benjamin P. de Mayo, County Counsel, and Ward Brady, Deputy County Counsel, for Plaintiff and Respondent.

No appearance for the minor.

OPINION

FYBEL, J.

INTRODUCTION

Nakia A. challenges the juvenile court's order terminating her parental rights to Gregory A., now nine years old. Nakia argues there was not substantial evidence supporting the juvenile court's finding that Gregory would be adopted within a reasonable time.

Because adoptability is an issue on which the social services agency bears the burden of proof, we hold Nakia may challenge the sufficiency of the evidence supporting the juvenile court's finding of Gregory's adoptability for the first time on appeal. Three Court of Appeal decisions concluded the failure to object to admissibility of social service agency reports recommending adoption waives the right to challenge the sufficiency of the evidence of adoptability on appeal; two other more recent decisions concluded no such waiver occurs. The California Supreme Court has since cited one of the latter two cases with approval. We publish this opinion because we conclude these two later cases are soundly decided and we follow them.

As to the merits of Nakia's appeal, we conclude there was sufficient evidence showing it was likely Gregory would be adopted within a reasonable time. Therefore, we affirm.

STATEMENT OF FACTS AND PROCEEDINGS IN THE TRIAL COURT

Because of the narrow issue on appeal, we recite only those facts relevant to the finding of adoptability.

Gregory, then seven years old, was taken into protective custody on February 3, 2003. His mother, Nakia, had been hospitalized because she was a danger to herself and others as a result of a mental disorder. (Welf. & Inst.Code, § 5150.) (All further statutory references are to the Welfare and Institutions Code.)

In a petition filed February 6, 2003, the Orange County Social Services Agency (SSA) alleged Gregory should be adjudicated a dependent of the juvenile court under section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), (c) (serious emotional damage), and (g) (no provision for support). Gregory was placed in the care of his maternal grandmother and maternal aunt.

At a joint jurisdiction and disposition hearing, the court found true by a preponderance of the evidence the allegations under section 300, subdivisions (a), (b) and (c). The section 300, subdivision (g) allegations were dismissed. The court ordered Gregory declared a dependent child of the juvenile court, and vested custody in SSA. The court also found by clear and convincing evidence that placement with Nakia would pose a substantial danger to Gregory's physical or emotional well-being. Gregory remained placed with his maternal grandmother and maternal aunt.

In a status review report dated August 20, 2003, SSA reported Gregory was medically well, and "appears to be developing on target." SSA also noted, "He has many interests, including Superheroes and Pokemon. He is also very active and energetic and seems to thrive on playful interaction. Gregory has good gross motor skills, frequently creates games to play using his surrounding environment, and exhibits good hand-eye coordination through his ability to play catch and numerous types of video games." In school, Gregory was performing at grade level, but did not excel in any particular area. He showed no signs of mental or emotional problems. "Overall, the child is personable, friendly and easy to talk to, maintaining good eye contact." SSA also reported that a permanent plan assessment determined Gregory would be difficult to place for adoption because of his age, but that he would probably be adopted.

In November 2003, Gregory was diagnosed with attention deficit hyperactivity disorder (ADHD). He attended therapy sessions to address and correct the ADHD problems, and his school psychologist recommended he be given psychotropic medication to address his attention problems.

At the 12-month review hearing, the court terminated Nakia's reunification services, and set a permanency hearing. (§ 366.26.)

In a report dated July 21, 2004, prepared in advance of the permanency hearing, SSA reported: "On December 23, 2003, a Permanent Placement Assessment was completed by the undersigned.... It was determined that the child will likely be adopted because he displays no significant behavioral, medical or developmental difficulties which would disrupt placement. Additionally, the child is already placed in a home which is committed to providing him with permanency. Gregory is noted to suffer from symptoms of [ADHD], but its impact on the child is isolated to school. Gregory is also not part of a sibling set." The permanency hearing report also noted, "[Gregory] is a healthy, happy, energetic child with exceptional social skills. In general, the child is engaging and fun, often smiling and laughing. It is probable that Gregory will be adopted because he experiences no significant behavioral, developmental, or medical problems. The child is noted to suffer from symptoms of ADHD, in particular distractibility and hyperactivity. This impacts his school behavior as he has difficulty staying on task and completing in-class assignments. Fortunately, these symptoms only impact his academic progress and are not disruptive to the stability of his placement."

Nakia's visits with Gregory through the dependency period were sporadic, and her interaction with him was limited. Gregory did not exhibit any desire to reunify with Nakia, and did not seek any emotional support from her during their visits. The permanency hearing report concluded SSA "d[id] not believe that the child has a strong positive significant relationship with his mother, that would outweigh the benefits of a permanent, stable home."

Gregory's maternal grandmother and maternal aunt were committed to adopting him. However, they had not completed the necessary steps to begin the adoption process, and SSA expressed some reservations about their ability to deal with Gregory's ADHD.

SSA recommended Nakia's parental rights be terminated and asked the juvenile court to find "there is clear and convincing evidence that it is likely the child will be adopted."

At the permanency hearing on July 21, 2004, the juvenile court admitted SSA's permanency hearing report. The court found it was likely Gregory would be adopted, the exceptions to termination of parental rights under section 366.26, subdivision (c)(1) did not apply, and termination of parental rights was in Gregory's best interests. The court therefore terminated Nakia's parental rights and ordered a permanent plan of adoption. Nakia timely appealed. (The court also terminated the parental rights of Gregory's father; the father is not a party to this appeal.)

DISCUSSION

I.

NAKIA DID NOT WAIVE HER RIGHT TO CHALLENGE THE JUVENILE COURT'S FINDING OF ADOPTABILITY.

SSA argues "the issue of adoptability was waived because [Nakia] never raised it at the trial level." Three cases support this contention. In In re Crystal J. (1993) 12 Cal.App.4th 407, 411-412, 15 Cal.Rptr.2d 613, the appellate court concluded the mother had waived her right to challenge the assessment reports' recommendations regarding adoptability and the insufficiency of the juvenile court's finding of adoptability, by failing to object to the assessment reports at trial. To reach this conclusion, the court principally relied on the general proposition that an appellate court will ordinarily not consider erroneous rulings where an objection could have been, but was not, presented to the trial court. (9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 311, p. 321; see also 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 394, p. 444; id. (2004 supp.) § 394, pp. 112-113.) In In re Crystal J., supra, 12 Cal.App.4th at page 412, footnote 2, 15 Cal.Rptr.2d 613, the court also noted that trial counsel "as much as conceded the substance of the case."

In In re Aaron B. (1996) 46 Cal.App.4th 843, 846, 54 Cal.Rptr.2d 27, the appellate court, relying on In re Crystal J., supra, 12 Cal.App.4th at pages 411-412, 15 Cal. Rptr.2d 613, concluded the father had waived his right to challenge the adequacy of the adoption assessment or the finding of adoptability because he failed to object to the assessment report and provide the trial court with evidence supporting his position. The court also cited other repeated failures by the father, including the failure to appear in court. (In re Aaron B., supra, at p. 846, 54 Cal.Rptr.2d 27.)

In In re Urayna L. (1999) 75 Cal. App.4th 883, 886, 89 Cal.Rptr.2d 437, the mother argued she had not waived the right to challenge adoptability because the social services agency had the burden of proving adoptability but had failed to provide a complete assessment of adoptability. The appellate court concluded the mother waived the right to challenge the trial court's termination of her parental rights based on an inadequate assessment report because she never argued the inadequacy of the report to the trial court or introduced evidence in that regard. (Id. at p. 887, 89 Cal.Rptr.2d 437.)

But in In re Brian P. (2002) 99 Cal.App.4th 616, 623, 121 Cal.Rptr.2d 326, the court reached a contrary conclusion: "[W]hile a parent may waive the objection that an adoption assessment does not comply with the requirements provided in section 366.21, subdivision (i), a claim that there was insufficient evidence of the child's adoptability at a contested hearing is not waived by failure to argue the issue in the juvenile court." The court reasoned that because the...