IN RE AARON B

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Docket Number

Docket No. A071634.

Attorney(S)

COUNSEL P. Cecilia Storr for Defendant and Appellant. Tamara C. Falor, County Counsel, and Nancy B. Woodward, Deputy County Counsel, for Plaintiff and Respondent.

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Smart Summary

Factual and Procedural Background

In October 1993, petitions were filed under Welfare and Institutions Code section 300, subdivision (b), alleging failure to protect the minors Aaron and Dustin. The Humboldt County Department of Social Services sought to terminate parental rights and establish a permanent plan for the children. In June 1995, the trial court terminated reunification services and set a permanency planning hearing under section 366.26, a decision upheld by this court in a prior writ petition, barring further challenges to that order.

In early March 1995, appellant James B. filed a petition seeking guardianship of the children by his stepdaughter. The respondent opposed this petition, citing concerns over the stepdaughter’s home environment and the pending permanency hearing. The stepdaughter refused a home study, and observations by a social worker noted adults appearing under the influence and unsanitary conditions.

Appellant failed to appear at multiple hearings, including the April 1995 guardianship hearing and the June and July 1995 permanency hearings, though he was represented by counsel. The social worker’s report recommended termination of parental rights and adoption by the children’s paternal uncle, describing the children as adoptable. The guardianship petition was denied due to the stepdaughter’s inability to follow through.

Ultimately, the court found the children adoptable, denied the guardianship petition, and terminated the parental rights of both parents.

Legal Issues Presented

Whether the court erred by failing to consider less detrimental alternatives to termination of parental rights, such as long-term foster care or guardianship.
Whether there was sufficient evidence that the minors were adoptable.
Whether the adoption assessment report was adequate to support termination of parental rights.

Arguments of the Parties

Appellant's Arguments

The court failed to consider less detrimental alternatives, including long-term foster care and guardianship.
The evidence was insufficient to establish the minors’ adoptability.
The adoption assessment report was inadequate in multiple respects, undermining the basis for terminating parental rights.

Respondent's Arguments

Appellant waived the issue of the adoption assessment’s adequacy by failing to raise it in the trial court.
Guardianship was appropriately not considered at the permanency hearing stage, pending determination of adoptability.
The trial court’s findings were supported by substantial evidence, including the social worker’s observations and reports.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
James B. v. Superior Court (1995) 35 Cal.App.4th 1014	Upheld termination of reunification services and setting of permanency planning hearing; barred further challenges to that order.	The court relied on this precedent to preclude appellant from re-litigating the termination of reunification services and to affirm the permanency planning process.
In re Crystal J. (1993) 12 Cal.App.4th 407	Failure to object to assessment reports in trial court waives appellate review of their adequacy.	Used to conclude appellant waived the challenge to the adoption assessment by not raising objections below.
In re Riva M. (1991) 235 Cal.App.3d 403	A party may not raise on appeal issues not raised in the trial court; prevents unfair manipulation of judicial process.	Supported the court’s refusal to consider appellant’s arguments that were not presented or preserved in the trial court due to appellant’s nonappearance and lack of objection.

Court's Reasoning and Analysis

The court analyzed appellant’s contentions in light of the procedural history and evidentiary record. It emphasized that appellant failed to appear at critical hearings, did not maintain contact with counsel, and did not object to the adoption assessment report in the trial court, thereby waiving these issues on appeal. The court underscored the principle that appellate courts generally do not consider arguments not presented below to avoid unfairness and manipulation of the judicial process.

The court found the social worker’s report and adoption assessment credible and supported by substantial evidence, including the suitability of the paternal uncle’s home and the unsuitability of the stepdaughter’s home for guardianship. The court determined that the children were adoptable and that termination of parental rights was proper under Welfare and Institutions Code section 366.26. It also found no error in denying the guardianship petition at this stage since adoptability had not yet been determined.

Holding and Implications

The court’s final decision was to affirm the order terminating appellant’s parental rights to his sons Aaron and Dustin.

This decision directly affects the parties by finalizing the termination of parental rights and permitting adoption by the paternal uncle’s family. The court did not establish new legal precedent but applied existing principles regarding waiver of appellate issues and the standards for termination of parental rights under the juvenile court law.

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In re AARON B. et al., Persons Coming Under the Ju v. nile Court Law. HUMBOLDT COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent,

OPINION

HANING, J.

James "Terry" B. appeals a July 26, 1995, order terminating his parental rights to his sons Aaron, born September 23, 1987, and Dustin, born November 24, 1989. (Welf. Inst. Code, § 366.26.) He contends the court failed to consider the less detrimental alternatives of long-term foster care and guardianship, that there is insufficient evidence that the minors are adoptable, and that the adoption assessment report was inadequate. The mother's parental rights were also terminated, but she does not appeal. We affirm.

Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.

BACKGROUND

In October 1993 petitions were filed under section 300, subdivision (b) for failure to protect. In June 1995 this court denied appellant's writ petition seeking review of the trial court's order at the 12-month review hearing terminating reunification services and setting a permanency planning hearing pursuant to section 366.26, after determining the court's findings were supported by substantial evidence. ( James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1016, 1021 [ 41 Cal.Rptr.2d 762].) The decision expressly barred appellant "from making further challenges to the order terminating reunification services and setting a hearing under section 366.26." ( Id. at p. 1021.)

In early March 1995, appellant filed a petition seeking the appointment of his stepdaughter as guardian of the minors. In late March respondent opposed the petition on the grounds that a hearing had been set to develop a permanent plan, that guardianship should not be considered until a determination was made about the adoptability of the children, and that guardianship was one of the options for the permanent plan. Social worker Leslie Cooper's declaration submitted with the opposition stated that when she went to the stepdaughter's home to attempt a home study, the stepdaughter refused to let her in, stating she was not prepared and the house was a mess. Cooper observed four adults and three babies on the porch. All the adults, with the exception of the stepdaughter, appeared to be under the influence, and the babies were dirty.

Appellant failed to appear at the April 1995 hearing on the guardianship petition, but he was represented by counsel. The hearing on the petition was combined with the section 366.26 hearing. Appellant failed to appear at the June 1995 section 366.26 hearing, but was again represented by counsel.

Appellant failed to appear at the July 1995 section 366.26 hearing and his counsel noted she had had no contact with him since the hearing was set. When the court asked if everyone was ready to proceed, appellant's counsel stated, "This is not our contest." Appellant's counsel also noted that appellant had been served with all of the relevant documents, and that she had filed the guardianship petition at his request and he had not been in contact with her despite her request that he contact her before each court hearing.

The social worker's section 366.26 report noted that on May 31, 1995, the children had moved to the home of their paternal uncle as a "fos-adopt" placement. Attached to it was an adoption assessment which concluded the children were adoptable and recommended termination of parental rights and adoption by their uncle and his family. A guardianship home evaluation of appellant's stepdaughter recommended denial of the guardianship petition based upon her demonstrated inability to "follow through."

At the conclusion of the hearing the court denied the guardianship petition, found the children were adoptable and terminated the parental rights of both parents.

DISCUSSION I

(1) Appellant contends the adoption assessment was inadequate in several respects. He concludes that due to the assessment's inadequacy, the court erred in terminating his parental rights and finding the children adoptable.

Respondent rejoins that appellant waived the issue of the adequacy of the adoption assessment by failing to raise it below. (See In re Crystal J. (1993) 12 Cal.App.4th 407, 411-412 [ 15 Cal.Rptr.2d 613] [by failing to object to the assessment reports at the section 366.26 hearing, appellant waived the issue of inadequacy of the reports on appeal].)

We recently have been deluged with similar cases in which the appellant raises issues on appeal without having appeared or made a record in the trial court. At the risk of sounding like a broken record, we again cite the general rule: "[A] party is precluded from urging on appeal any point not raised in the trial court. [Citation.] Any other rule would `"`permit a party to play fast and loose with the administration of justice by deliberately standing by without making an objection of which he is aware and thereby permitting the proceedings to go to a conclusion which he may acquiesce in, if favorable, and which he may avoid, if not.'" [Citations.]' [Citation.]" ( In re Riva M. (1991) 235 Cal.App.3d 403, 411-412 [286 Cal.Rptr. 592].) Appellant failed to make court appearances below, failed to keep in contact with his attorney, failed to object to the challenged reports below, and failed to provide the trial court with evidence supporting his position. Consequently, he cannot raise the issue on appeal.

See footnote 1, ante, page 843.

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DISPOSITION

Affirmed.

Peterson, P.J., and King, J., concurred.