Dependency Case Law

In re Brian P. (June 21, 2002) 99 Cal.App.4th 616 [ 121 Cal.Rptr.2d 326]. Court of Appeal, Fifth District, Division 3.

The juvenile court terminated a father's parental rights and found his child likely to be adopted.

A child was declared a dependent of the court, and the mother's reunification services were terminated. A Welfare and Institutions Code section 366.26 hearing was set. No services had been set for the father, because the Social Services Agency had been unable to locate him and his paternity had not been established. The section 366.26 hearing was continued when the father came forward by contacting the child welfare worker. The father, who said he was an undocumented alien, had been kept away from the child. He told the social worker that he would like his relatives who were legal residents to adopt the child. At the section 366.26 hearing, the court found that, although the father's paternity had been established, there was clear and convincing evidence that the child was adoptable. The parental rights were terminated and visitation was prohibited. The father appealed the decision, arguing that the order was not supported by substantial evidence.

The Court of Appeal reversed the lower court's holding, finding a lack of substantial evidence to support the juvenile court's finding of adoptability. The agency disputed the father's claim that there was not substantial evidence, and asserted that the father had waived the right to make that claim by failing to preserve the claim below. The father argued that although defects in the adoption assessment can be waived, no objection is necessary to preserve a claim of failure of proof. The appellate court agreed. When the merits are contested, a parent is not required, in order to raise the issue on appeal to object to the social service agency's failure to carry its burden of proof on the question of adoptability. On the issue of whether there was substantial evidence to support the adoptability finding, the appellate court also disagreed with the lower court. There must be clear and convincing evidence of the likelihood that adoption will take place within a reasonable time. The evidence must be so clear as to leave no substantial doubt. The appellate court held that in this case, the juvenile court did not have the benefit of an adoption assessment report, which would have contained the facts needed to support a finding of adoptability. The reports that did exist said nothing of the likelihood of the child's adoptability, merely noting that the child was approved for adoptive services. The juvenile court erred when it made its finding of adoptability on such scant evidence. The Court of Appeal reversed the lower court's finding.