Filed 8/7/13 In re Roberto C. CA4/1 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT 

DIVISION ONE 

STATE OF CALIFORNIA 

In re ROBERTO C. et al., Persons Coming 

Under the Juvenile Court Law. 

SAN DIEGO COUNTY HEALTH AND 

HUMAN SERVICES AGENCY, 

 Plaintiff and Respondent, 

 v. 

ALBERTO C., 

 Defendant and Appellant. 

 D063641 

 (Super. Ct. No. J514294C-D) 

 APPEAL from an order of the Superior Court of San Diego County, Kenneth J. 

Medel, Judge. Affirmed. 

 Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and 

Appellant. 

 Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County 

Counsel and Erica R. Cortez, Deputy County Counsel, for Plaintiff and Respondent. 
2 

 Alberto C. appeals a juvenile court order terminating parental rights to his minor 

son, Roberto C., pursuant to Welfare and Institutions Code section 366.26.1 Alberto 

challenges the sufficiency of the evidence to support the court's finding that Roberto was 

adoptable. Alberto further argues that if this challenge is successful, the termination of 

his parental rights as to Roberto's sister, Victoria C., should also be reversed so the 

juvenile court can determine whether the sibling exception to adoption applies. We 

affirm the order. 

FACTUAL AND PROCEDURAL BACKGROUND 

 The record in this case shows an extensive history of involvement by the San 

Diego County Health and Human Services Agency (Agency) with Alberto and the 

mother, Mary P., concerning Roberto and his older brother Alexander C., as well as 

children by other partners.2 Roberto was the subject of an earlier dependency that began 

at his birth in 2008 while Mary was incarcerated. During the 18-month dependency, 

Roberto lived with foster parents who were also the adopted parents of Alexander and 

 

1 Statutory references are to the Welfare and Institutions Code unless otherwise 

specified. 

2 Alexander was removed from Alberto and Mary's custody in 2007 as a result of 

being born with amphetamines in his system and Mary's admission to drug use during the 

pregnancy. Alberto and Mary failed to reunify with Alexander and their parental rights 

were terminated in September 2008. Mary's parental rights were terminated with respect 

to another daughter, Darlene D., in 2004. Mary also has two older children who live with 

their paternal grandparents and have never resided with her. Alberto's parental rights 

were terminated with respect to two additional children, A.D. and Karly D., who tested 

positive for amphetamines or methamphetamines at their births. A.D. became a 

dependant of the juvenile court due to neglect and substance abuse and, in 2003, parental 

rights were terminated as to both parents. Alberto and Karly's mother voluntarily 

relinquished their parental rights to Karly in July 2004. 
3 

their older half sibling Darlene. Alberto and Mary successfully reunited with Roberto in 

October 2010. In 2012, three-year-old Roberto was living with Alberto, Mary and 

Victoria, who was born in late 2011. Roberto's former foster mother, Dora J., however, 

continued to care for Roberto regularly. In fact, Mary left Roberto with Dora almost 

every weekend. 

 On June 8, 2012, Mary called Dora and asked her to pick up Roberto. They 

arranged to meet at a nearby trolley station. When Dora arrived, Mary was intoxicated 

and told Dora the family had been kicked out of the apartment where they were staying. 

Dora took Roberto with her and, at Mary's insistence, left Victoria with Mary. A few 

days later, the Agency received a referral alleging emotional abuse to Roberto and 

Victoria stemming from a domestic violence incident that occurred the day Mary left 

Roberto with Dora. The police report alleged Alberto and Mary were fighting with their 

roommate over money and the roommate's loud music, and that Mary pulled a knife on 

the roommate. 

 On June 15, 2012, an Agency social worker contacted Alberto and Mary. They 

told the social worker Victoria was with them and, although they were homeless, they 

were staying with relatives and planned to pick up Roberto soon. Because of their history 

with drug abuse and crime, Alberto and Mary were asked to submit to a drug test. 

Alberto tested positive for marijuana and Mary refused to test. That same day, Mary 

called Dora. During the call, Alberto took the phone and told Dora he would contact her 

when they were able to pick up Roberto. Dora called Alberto the following evening and 
4 

arranged to meet him the next morning to drop off Roberto. Alberto did not show up at 

the arranged time and place, and Dora contacted the Agency. 

 On June 20, 2012, the Agency's social worker again contacted Alberto and Mary. 

They refused to come to the Agency's office or provide their address. Mary told Dora she 

and Alberto were purposefully avoiding contact with the Agency. On July 11, 2012, the 

Agency filed a petition in the juvenile court on behalf of Roberto under section 300, 

subdivision (b). The petition alleged Roberto suffered, or was at substantial risk of, harm 

by the willful or negligent failure of his parents to provide him with the necessities of 

life, including adequate food and shelter. 

 On August 1, 2012, the Agency finally made contact with Alberto and Mary. 

They signed a safety plan concerning Victoria requiring them to stay with Alberto's niece 

or to notify the Agency if they were staying somewhere else. Alberto and Mary left the 

niece's home without notifying the Agency. After weeks of again evading the Agency, 

on August 26, 2012, Mary contacted Dora. Dora met both parents at a local park and 

found Mary intoxicated. Mary told Dora that Victoria had spent the night in Alberto's 

care under a bridge and that he had sexually abused Victoria. Dora took Victoria with 

her and contacted the Agency. On August 29, 2012, the Agency filed a petition in the 

juvenile court on behalf of Victoria under section 300, subdivision (b) alleging she 

suffered, or was at substantial risk of, harm by the parents' inability to provide regular 

care due to their substance abuse. 

 Contested jurisdiction and disposition hearings were held on September 6, 2012, 

for Roberto and October 31, 2012, for Victoria. At the hearings, the court assumed 
5 

jurisdiction, declared each child a dependant of the court and removed each from parental 

care. The court placed Roberto in Dora's home and Victoria in a different foster home.3 

On the Agency's recommendation in light of the parents' history of failing to reunify with 

their older children, the court did not provide services for them. The court ordered 

section 366.26 selection and implementation hearings for both children to be set within 

120 days. 

 Contested section 366.26 hearings for Roberto and Victoria were held 

simultaneously on March 11, 2013. The Agency's report, submitted into evidence at the 

hearing, assessed Roberto as adoptable because he was young and healthy with no severe 

behavioral issues. The Agency's social worker reported Dora and her husband wanted to 

adopt both Roberto and Victoria and were committed to providing them with a safe and 

secure home. They also wanted Roberto and Victoria to be raised together and with their 

older siblings. The social worker reported Roberto had known Dora and her husband his 

whole life and called them mom and dad. The social worker believed Dora and her 

husband were capable of meeting Roberto's needs. They were proactive in "scheduling 

appointments with the doctor, dentist, school, and other special evaluations for 

developmental and behavioral concerns." The social worker who authored the report also 

 

3 After Dora took Victoria from Mary, the nine month old was fussy and hard to 

calm. A day later Dora noticed that Victoria's leg was swollen and took her to the 

hospital. There it was discovered Victoria had a fractured femur. Because the fracture 

was suspicious of nonaccidental injury and Victoria was under Dora's care at the time it 

was discovered, Victoria was placed in another foster home. The fracture was ultimately 

deemed to have occurred while she was in Mary's and Alberto's care, and Victoria was 

placed with Dora in January 2013. 
6 

testified at the hearing that both children were adoptable. She stated in addition to Dora 

and her husband there were 79 families in San Diego County willing to adopt a child with 

Roberto's characteristics, 102 families seeking to adopt a child like Victoria and 33 

families seeking to adopt a sibling group like Roberto and Victoria. 

 At the hearing, Alberto submitted stipulated testimony that he loved Roberto and 

Victoria and shared an attachment with them. Alberto's counsel argued Roberto and 

Victoria were not likely to be adopted if parental rights were terminated, pointing to 

behavioral and developmental concerns set forth in the Agency's assessment of Roberto. 

Alberto's counsel contended the Agency's conclusion about how many families would be 

willing to adopt a child with Roberto's characteristics was premature because his 

behavioral and developmental issues had only been recently identified and had not been 

included into the Agency's assessment. Alberto sought guardianship or long-term foster 

care for Roberto and Victoria, rather than termination of parental rights. 

 After consideration of evidence and the arguments of counsel, the juvenile court 

found Roberto and Victoria were adoptable, the benefits of adoption outweighed the 

benefits of maintaining the parent-child relationship and terminated the parental rights of 

Alberto and Mary. The court also made a finding that Roberto was specifically, but not 

generally adoptable. The court explained it did not find clear and convincing evidence 

the 79 families identified by the Agency as willing to adopt Roberto would actually do so 

because his recently identified behavioral issues were not included in the Agency's 

assessment. 
7 

DISCUSSION 

 The focus of a dependency proceeding is to promote the best interests of the child, 

particularly the child's interest in a stable, permanent placement that allows the caregiver 

to make a full emotional commitment to the child. (In re Fernando M. (2006) 138 

Cal.App.4th 529, 534.) "Adoption, where possible, is the permanent plan preferred by 

the Legislature." (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) 

 Section 366.26 sets forth the procedure for permanently terminating parental rights 

with regard to a minor who has been removed from parental custody and declared a 

dependent child of the juvenile court. The statute provides "[i]f the court determines . . . 

by a clear and convincing standard, that is likely the child will be adopted, the court shall 

terminate parental rights . . . ." (§ 366.26, subd. (c)(1).) The court must select adoption 

as the permanent plan unless it finds termination of parental rights would be detrimental 

to the child under a specified statutory exception. (Id., subd. (c)(1)(A) & (B)(i)-(vi); In re 

Erik P. (2002) 104 Cal.App.4th 395, 401.) Alberto does not urge any statutory exception, 

but rather contends substantial evidence did not support the court's finding that Roberto 

was adoptable. 

 On review, we determine whether the record contains substantial evidence from 

which the juvenile court could find clear and convincing evidence the child was likely to 

be adopted within a reasonable time. (In re Gregory A. (2005) 126 Cal.App.4th 1554, 

1561-1562.) We give the court's adoptability finding the benefit of every reasonable 
8 

inference and resolve any evidentiary conflicts in favor of that finding. (In re Y.R. (2007) 

152 Cal.App.4th 99, 112.) 

 The focus of the adoptability issue is the dependent child—that is, whether his or 

her age, physical condition and emotional state make it difficult to find a person willing 

to adopt. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) It is not necessary that the 

child already be in a potential adoptive home or "that there be a proposed adoptive parent 

'waiting in the wings.' " (Ibid.) Usually, the fact that a prospective adoptive parent has 

expressed interest in adopting a dependent child is evidence that the child's age, physical 

condition, mental state and other relevant factors are not likely to deter individuals from 

adopting the child. (Id. at pp. 1649-1650.) In other words, a prospective adoptive 

parent's willingness to adopt generally indicates the child is likely to be adopted within a 

reasonable time either by the prospective adoptive parent or by some other family. (Id. at 

p. 1650.) 

 Additionally, "a section 366.26 hearing does not provide a forum for the minors' 

parent to contest the 'suitability' of a prospective adoptive family. Rather, what is 

required is clear and convincing evidence of the likelihood that the children will be 

adopted within a reasonable time either by the prospective adoptive family or some other 

family." (In re Scott M. (1993) 13 Cal.App.4th 839, 844.) However, "[w]here the social 

worker opines that the minor is likely to be adopted based solely on the existence of a 

prospective adoptive parent who is willing to adopt the minor, an inquiry may be made 

into whether there is any legal impediment to adoption by that parent . . . ." (In re Sarah 
9 

M., supra, 22 Cal.App.4th at p. 1650.) Legal impediments to adoption are found in 

Family Code sections 8601, 8602 and 8603.4 (In re Sarah M., at p. 1650.) 

 Here, substantial evidence supported the juvenile court's finding that Roberto was 

likely to be adopted by his foster parents. Dora and her husband were committed to 

adopting Roberto and Victoria, and were already experienced adoptive parents who 

understood the responsibilities of adoption. They also expressed their desire for Roberto 

to have a safe and secure home and for him to be raised with his siblings. Further, during 

his prior 18-month dependency, Roberto thrived in the care of Dora and her husband. 

They provided appropriate care for Roberto and met his developmental, mental and 

emotional needs. Dora and her husband ensured Roberto was seen regularly by a doctor 

and worked with the San Diego Regional Center to obtain developmental assistance for 

Roberto. 

 During the current dependency, Roberto continued to thrive in his prospective 

adoptive parents' home. Dora and her husband again provided appropriate care for 

Roberto. Although Roberto displayed some concerning behaviors after his return to 

Dora's home in June 2012, she and her husband were "proactive in scheduling 

appointments with the doctor, dentist, school, and other special evaluations" to address 

those developmental and behavioral concerns. Indeed, Alberto concedes Dora and her 

husband "have been meeting Roberto's needs since June when [Mary] left him with 

 

4 These statutes provide that a prospective adoptive parent must be at least 10 years 

older than a child unless certain exceptions apply, a child older than 12 must consent to 

adoption and a prospective married adoptive parent must obtain his or her spouse's 

consent to the adoption. (Family Code, §§ 8601, 8602 & 8603.) 
10 

them." Further, there was no evidence in the record of any legal impediments to 

adoption. Roberto's prospective adoptive parents had been foster and adoptive parents 

(including to two of Roberto's siblings) for many years and had an active foster home 

license in good standing. As part of the foster home licensing process, Dora and her 

husband had received criminal and child welfare history clearances.5 

 We reject Alberto's contention that because Dora and her husband had not yet 

been approved to adopt Roberto and Victoria, the court was precluded from finding 

Roberto adoptable. (See In re Marina S. (2005) 132 Cal.App.4th 158, 166 ["there is no 

requirement that an adoptive home study be completed before a court can terminate 

parental rights"].) The statutory scheme requires the Agency to provide the court with 

information to allow it to make a preliminary evaluation of the eligibility and 

commitment of the prospective adoptive parents to adoption. (§§ 361.5, subd. (g)(1)(D), 

366.21, subd. (i)(1)(D) & 366.22, subd. (c)(1)(D).) This assessment includes a social 

history, screening for criminal records and prior referrals for child abuse or neglect, and 

an appraisal of the prospective adoptive parents' capability to meet the child's needs and 

whether they understand the legal and financial rights and responsibilities of adoption. 

(§§ 361.5, subd. (g)(1)(D), 366.21, subd. (i)(1)(D) & 366.22, subd. (c)(1)(D).) The 

information provided by the Agency in this case met the statutory requirements and, as 

described, supported the court's finding that Roberto was adoptable. 

 

5 Alberto points out that Dora had six referrals to the agency for neglect, inferring 

this calls into question her ability to meet Roberto's needs. All six referrals, however, 

were closed as unfounded. This evidence does not undermine the ample evidence 

supporting the court's finding of adoptability. 
11 

 Finally, Alberto contends a reversal of the order terminating parental rights as to 

Roberto requires reversal of the court's termination order with respect to Victoria. This 

issue is moot in light of our affirmance of the juvenile court's order with respect to 

Roberto and, therefore, we decline to address it. 

DISPOSITION 

 The order is affirmed. 

 

O'ROURKE, J. 

WE CONCUR: 

 

BENKE, Acting P. J. 

 

AARON, J.