Filed 7/15/15 In re F.R. CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                    (San Joaquin)
                                                            ----



In re F.R. et al., Persons Coming Under the Juvenile                                         C076107
Court Law.

SAN JOAQUIN COUNTY HUMAN SERVICES                                                  (Super. Ct. No. J06154)
AGENCY,

                   Plaintiff and Respondent,

         v.

F.R., Sr.,

                   Defendant and Appellant.




         F.R., Sr., the father of minors F.R., N.R., and I.R., appeals from the juvenile
court’s orders terminating his parental rights. (Welf. & Inst. Code, §§ 366.26, 395.)1 He
contends the juvenile court violated his right to due process by terminating parental rights
without a finding of unfitness by clear and convincing evidence. Father also contends the



1   Undesignated statutory references are to the Welfare and Institutions Code.

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juvenile court erred in finding the minors adoptable, trial counsel was ineffective, and
cumulative error warrants reversing the juvenile court’s orders. We shall affirm.
                                     BACKGROUND
       In November 2012 the San Joaquin County Human Services Agency (Agency)
filed a dependency petition (§ 300) on behalf of 10-year-old F.R., eight-year-old N.R.,
and six-year-old I.R. after their mother, S.C., gave birth to their half sibling, A.Q., who
tested positive for amphetamine. Mother tested positive for marijuana and amphetamine
and admitted using amphetamine the day before giving birth.
       Mother and the minors were living in the home of the maternal grandmother, J.R.
A home inspection found plenty of food in the home and no hazards. Asked by the social
worker whether she would be willing to file for guardianship of the minors, J.R. said yes,
but she was limited in what she could do because she had hepatitis C, water retention and
swelling, high blood pressure, and arthritis.
       In November 2012 the minors were detained to the maternal grandmother’s home
in the care of the maternal great-aunt, and mother was ordered out of the home. Later
that month, an “Absent Parent Locator” was submitted for father and notice was sent to
him at the identified address.
       The juvenile court sustained the petition with respect to mother in December 2012.
       The February 2013 disposition report recommended denying services for father
pursuant to section 361.5, subdivision (b)(12), as he had a prior conviction for a violent
felony, robbery, and was only an alleged father at the time. Father’s criminal history
included a juvenile conviction for robbery in 1991 and adult convictions for petty theft in
1995, burglary in 1995, second degree burglary in 2008, petty theft with a prior theft
conviction in 2008, and another burglary conviction in 2008.
       Mother said she had a good relationship with father, living with him in Long
Beach until they separated in 2007. She described him as “a good provider and a good
dad to the kids.” After their separation, mother and the minors moved to the Stockton

                                                2
area to be closer to mother’s family. Mother said the minors visited their father during
their summer breaks. Father had yet to make contact with the Agency.
       The minors were in good physical health and had no mental problems except for
F.R., who took Adderall for attention deficit hyperactivity disorder (ADHD) and was in
counseling after witnessing acts of violence in his former apartment, including a shooting
where a man was killed. The minors remained in the care of the maternal great-aunt, who
resided in the maternal grandmother’s home. The home had not been approved: the
entire family, including the maternal grandmother’s 16-year-old daughter, lived in a one-
bedroom apartment, and the maternal grandmother had a criminal history that required
exemption.
       Father did not appear at his jurisdiction hearing in January 2013, so the matter was
continued to February 2013. Father did not show up at the continued hearing, and the
juvenile court sustained the petition. The juvenile court also found father was the
minors’ presumed father and denied him reunification services pursuant to section 361.5,
subdivision (b)(12).
       At a May 2013 hearing the juvenile court noted that father had called a social
worker and provided a new address. The Agency asked the juvenile court to find notice
was proper and default father, which the court did.
       The July 2013 six-month report recommended terminating the services of mother
and A.Q.’s father. F.R.’s mental health assessment concluded he did not need additional
mental health services as he was taking his ADHD medication, was seeing a counselor at
school, and had completed an anger management class at school. N.R. and I.R. did not
qualify for mental health services. The minors were closely bonded to each other and
remained together with their half sibling A.Q. in the maternal grandmother’s home. The
minors were deemed adoptable in a June 2013 adoption assessment.
       In August 2013 father filed a motion to set aside the jurisdictional and
dispositional findings for lack of notice. Also in August 2013 the juvenile court

                                             3
terminated mother’s services and ultimately set a December 2013 date for the hearing on
father’s motion. The juvenile court denied father’s motion and set a section 366.26
hearing at the December 2013 hearing. Father filed a writ petition regarding the denial of
his motion, which a panel of this court denied pursuant to Joyce G. v. Superior Court
(1995) 38 Cal.App.4th 1501, 1513-1514. (F.R. v. Superior Court (Feb. 6, 2014,
C075432) [petn. den. by order].)
       The February 2014 section 366.26 report recommended terminating parental rights
with a permanent plan of adoption. The maternal great-aunt was approved for potential
adoptive placement, but after the great-aunt disclosed that she was in a relationship and
was moving to Southern California in February 2014, the maternal grandmother was then
referred for an adoptive home study. The grandmother completed the initial paperwork
for the home study in January 2014.
       By this time, the maternal grandmother resided in a four-bedroom home in
Stockton with the maternal great-aunt, the minors, and the grandmother’s 17-year-old
daughter. She was 49 years old, single, and a stay-at-home mother/caretaker. The
maternal grandmother had three prior criminal convictions, for which she received an
exemption in February 2013. She also had a child welfare history of eight referrals, two
of which became voluntary family maintenance cases in Southern California.
       The report found the maternal grandmother had cared for the minors for a
significant period of time prior to the dependency case, and they were closely bonded to
her. The Agency assessed the maternal grandmother as very capable of meeting the
minors’ needs. In addition, she understood the legal and financial rights and
responsibilities of adoption, and was very committed to the permanent plan of adoption.
       The minors were doing well in the maternal grandmother’s home. Their needs
were being met by the maternal grandmother, who loved them as if they were her own
children. The minors expressed excitement about being adopted by the maternal
grandmother. They had been “in a place of uncertainty when the parents failed

                                             4
reunification,” but they gained a sense of belonging and security once the adoption
process started.
       F.R., now in the sixth grade, continued to struggle academically. He received a
mental health referral in November 2013 due to a high number of school suspensions and
the anger he displayed toward others at school. A January 2014 assessment concluded
that his mental condition did not cause problems serious enough to make him eligible for
specialty mental health services. A “SMART referral” for F.R. was pending at the time
of the section 366.26 report. The other minors had no physical or mental health
problems.
       Father was not present at the March 2014 section 366.26 hearing, where his
counsel entered general objections. The juvenile court found by clear and convincing
evidence the minors were likely to be adopted, terminating parental rights was in the
minors’ best interests, termination was not detrimental to the minors, and none of the
exceptions to termination of parental rights applied. Accordingly, the juvenile court
terminated parental rights with a permanent plan of adoption.
                                       DISCUSSION
                                               I
       Father contends the juvenile court violated his right to due process by terminating
his parental rights without a finding of unfitness or detriment to the minors by clear and
convincing evidence. We disagree.
       “ ‘Parents have a fundamental interest in the care, companionship, and custody of
their children. (Santosky v. Kramer (1982) 455 U.S. 745, 758 [71 L.Ed.2d 599, 102 S.Ct.
1388] . . . .) Santosky establishes minimal due process requirements in the context of
state dependency proceedings. “Before a State may sever completely and irrevocably the
rights of parents in their natural child, due process requires that the State support its
allegations by at least clear and convincing evidence.” [Citation.] “After the State has
established parental unfitness at that initial proceeding, the court may assume at the

                                               5
dispositional stage that the interests of the child and the natural parents do diverge.”
[Citation.] “But until the State proves parental unfitness, the child and his parents share a
vital interest in preventing erroneous termination of their natural relationship.”
[Citation.]
       “ ‘California’s dependency system comports with Santosky’s requirements
because, by the time parental rights are terminated at a section 366.26 hearing, the
juvenile court must have made prior findings that the parent was unfit. [Citation.] “The
number and quality of the judicial findings that are necessary preconditions to
termination convey very powerfully to the fact finder the subjective certainty about
parental unfitness and detriment required before the court may even consider ending the
relationship between natural parent and child.” [Citation.] The linchpin to the
constitutionality of the section 366.26 hearing is that prior determinations ensure “the
evidence of detriment is already so clear and convincing that more cannot be required
without prejudice to the interests of the adoptable child, with which the state must align
itself.” [Citation.]’ [Citations.]” (In re Frank R. (2011) 192 Cal.App.4th 532, 537.)
       California’s dependency scheme does not use the term “parental unfitness,”
requiring instead that the juvenile court find that awarding custody of a dependent child
to a parent would be detrimental to the child. (In re Dakota H. (2005) 132 Cal.App.4th
212, 224, fn. 3 (Dakota H.).) This finding can be made in various ways, e.g., denial of
services, abandonment, conviction of a felony showing parental unfitness, or continued
removal from parental custody coupled with termination of reunification services.2


2 Section 366.26 provides in part: “. . . A finding under subdivision (b) or paragraph (1)
of subdivision (e) of Section 361.5 that reunification services shall not be offered, under
subdivision (e) of Section 366.21 that the whereabouts of a parent have been unknown
for six months or that the parent has failed to visit or contact the child for six months, or
that the parent has been convicted of a felony indicating parental unfitness, or, under
Section 366.21 or 366.22, that the court has continued to remove the child from the
custody of the parent or guardian and has terminated reunification services, shall

                                              6
       Where any of these findings have been made during the reunification period, no
further finding of detriment is required at the section 366.26 hearing. To comport with
due process, it is only necessary that such a finding is made at some point in the
dependency prior to termination of parental rights. (In re Gladys L. (2006)
141 Cal.App.4th 845, 848-849.)
       The juvenile court denied father reunification services pursuant to section 361.5,
subdivision (b)(12) on the basis of his prior juvenile conviction in 1991 for robbery, a
violent felony. (Pen. Code, § 667.5, subd. (c)(9).) Father argues “[t]his 20-year-old
juvenile court ‘true finding’ of a robbery should not be used to bootstrap a denial of
services to a father that lived with his children for eight years subsequently; was
described as a good father and provider; exercised summer visitation; and had no child
protective history.”
       Father’s argument is too late. He did not appear at the disposition hearing where
the juvenile court denied services to him and did not appeal that ruling. The rulings at
that hearing are therefore final, and father has forfeited any claims of error relating to
those rulings, including ineffective assistance of counsel. (In re S.B. (2004) 32 Cal.4th
1287, 1293, fn. 2; In re Daniel K. (1998) 61 Cal.App.4th 661, 667; In re Meranda P.
(1997) 56 Cal.App.4th 1143, 1159-1160.) We accordingly conclude that the juvenile
court’s ruling that services would be denied based on father’s prior violent felony
conviction constitutes a sufficient finding of detriment to satisfy due process.
                                               II
       Father claims there is insufficient evidence to support the juvenile court’s finding
that the minors were adoptable. We disagree.




constitute a sufficient basis for termination of parental rights. . . .” (§ 366.26,
subd. (c)(1).)

                                               7
       A court must find, by clear and convincing evidence, that a child is likely to be
adopted before terminating parental rights and selecting adoption as the permanent plan
for the child. (§ 366.26, subd. (c)(1); In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.)
We review this finding for substantial evidence. (In re Lukas B. (2000) 79 Cal.App.4th
1145, 1154.) “[W]e presume in favor of the order, considering the evidence in the light
most favorable to the prevailing party, giving the prevailing party the benefit of every
reasonable inference and resolving all conflicts in support of the order. [Citations.]”
(In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)
       “The issue of adoptability . . . focuses on the minor, e.g., whether the minor’s age,
physical condition, and emotional state make it difficult to find a person willing to adopt
the minor. [Citations.]” (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649 (Sarah M.).)
It is not necessary that the minor already be in a potential adoptive home, or even that
there be a prospective adoptive parent. (Ibid.; see also § 366.26, subd. (c)(1) [“The fact
that the child is not yet placed in a preadoptive home . . . shall not constitute a basis for
the court to conclude that it is not likely the child will be adopted”].) And the prospect
that the minor may have some continuing behavioral problems does not foreclose a
finding of adoptability. (See In re Jennilee T. (1992) 3 Cal.App.4th 212, 224-225.)
However, “[t]here must be convincing evidence of the likelihood that adoption will take
place within a reasonable time. [Citation.]” (In re Brian P. (2002) 99 Cal.App.4th 616,
624 (Brian P.).)
       Father argues “the Agency claimed that the children were adoptable because the
maternal grandmother was willing to adopt the children.” According to him, “[t]hese
children might possibly be specifically adoptable, because the maternal grandmother
wishes to adopt them. But the concerns about this very grandmother’s health and
functioning formed part of the basis for the juvenile court’s jurisdictional findings, and
the children were not even placed in her custody and control up to the termination of
rights hearing.” Father notes the maternal great-aunt was originally approved for

                                               8
adoption, and it was only when she told the Agency she was moving to Southern
California to be with her boyfriend that the Agency began assessing the maternal
grandmother as a prospective adoptive parent. In light of the maternal grandmother’s
“significant child welfare and criminal history,” father contends she may face an
“insurmountable legal impediment” to adoption. He concludes that the juvenile court
“should have deferred an adoptability finding until it was clear that the maternal
grandmother is capable of providing care on her own and that she will be approved for
adoption.”
       While the issue of adoptability usually focuses on the minor, “in some cases a
minor who ordinarily might be considered unadoptable due to age, poor physical health,
physical disability, or emotional instability is nonetheless likely to be adopted because a
prospective adoptive family has been identified as willing to adopt the child.” (Sarah M.,
supra, 22 Cal.App.4th at p. 1650.) “Where 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 [citations]. In such cases, the existence of one of
these legal impediments to adoption is relevant because the legal impediment would
preclude the very basis upon which the social worker formed the opinion that the minor is
likely to be adopted. [Citation.]” (Ibid.)
       The term “specifically adoptable,” therefore, denotes a child who but for the
existence of a prospective adoptive parent would not be adoptable. The suitability of the
prospective adoptive parent is not an issue when the child is generally adoptable; it may
be placed in issue when the child is specifically adoptable.
       Father’s argument is based on a mistaken premise, that the Agency found the
minors adoptable based solely on the maternal grandmother’s willingness to adopt them.
The minors were found adoptable in a June 2013 adoption assessment, as was first noted
in the July 2013 six-month report. The six-month report also recommended changing the

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permanent plan to adoption and terminating parental rights. This report does not indicate
that adoption had been discussed with either the maternal grandmother or the maternal
great-aunt. While the February 2014 section 366.26 report focused on the maternal
grandmother’s willingness to adopt the minors, the Agency considered the minors
adoptable well before determining that any specific person was willing to adopt them.
       In this case, neither the social worker nor the Agency opined that the minors were
likely to be adopted solely on the basis of the existence of a prospective adoptive parent.
Nor is this a case in which the parties agreed that the children were adoptable only
because there was someone willing to adopt them. (In re Carl R. (2005) 128 Cal.App.4th
1051, 1061.) In fact, at the section 366.26 hearing, the issue of specific adoptability was
never raised or discussed. Father did not contest the issue of adoptability, let alone argue
that the children were only specifically adoptable. He did not challenge the maternal
grandmother’s suitability to adopt the minors or argue that there might be any legal
impediment to the adoption. He therefore forfeited the right to claim on appeal that the
minors were only specifically adoptable. (Dakota H., supra, (2005) 132 Cal.App.4th at
pp. 221-222.)
       Although a party need not object below to a factual determination made by the
court in order to challenge the sufficiency of the evidence supporting that particular
determination on appeal (Brian P., supra, 99 Cal.App.4th at p. 623), the issue of specific
adoptability was never raised and the court did not find the minors to be specifically
adoptable. Here, the social worker rendered an unqualified opinion that the minors were
adoptable. Consistent with this opinion, the court made an unqualified finding that the
minors were likely to be adopted. We construe the court’s finding as to adoptability to
mean adoptability in the general sense, a finding that is supported by substantial
evidence, namely the June 2013 adoption assessment and the maternal grandmother’s
willingness to adopt the minors. We accordingly reject father’s attempt, under the guise
of a sufficiency of the evidence argument, to inject into this appeal the issue of specific

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adoptability. All issues pertaining to the suitability of the prospective adoptive parent to
adopt are reserved for the subsequent adoption proceeding. (In re T.S. (2003)
113 Cal.App.4th 1323, 1326.)
                                              III
         Father next contends that trial counsel was ineffective for failing to challenge the
lack of a detriment finding, failing to request custody pursuant to section 361.2, and
failing to file a section 388 petition seeking immediate custody.3 The claim is without
merit.
         A parent claiming ineffective assistance of counsel has the burden of showing that
counsel failed to act in a manner to be expected of reasonably competent counsel and
“counsel’s representation fell below an objective standard of reasonableness.”
(Strickland v. Washington (1984) 466 U.S. 668, 688; [80 L.Ed.2d 674, 693]; see
In re Emilye A. (1992) 9 Cal.App.4th 1695, 1711.) The parent must also show prejudice,
that is, “a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” (Strickland, at p. 694 [80 L.Ed.2d at
p. 698].)
         As we have already found, the juvenile court made the required finding of
detriment at the disposition hearing when it denied father’s reunification services based
on his prior violent felony conviction. Any contrary contention at the section 366.26



3  The caption of the section in father’s opening brief raising this claim reads, in pertinent
part, that he was denied effective assistance of counsel where “ no challenge was made to
the erroneous denial of reunification services.” The text of this section contends only that
counsel was deficient for failing to challenge termination of parental rights without a
finding of detriment and for not filing a section 361.2 request for custody finding or not
filing a section 388 petition requesting custody. We conclude the reference to the alleged
ineffectiveness at the disposition hearing is either inadvertent or forfeited by failing to
support the contention in the body of the brief.

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hearing would have been rejected. Trial counsel need not raise futile objections to
forestall ineffective assistance claims. (People v. Memro (1995) 11 Cal.4th 786, 834.)
         Father’s other contentions of ineffective assistance are likewise without merit.
         “[W]hen a nonoffending noncustodial parent requests custody under section 361.2,
subdivision (a), he or she is requesting sole legal and physical custody of a child.
However, the court may not immediately grant that parent sole legal and physical
custody. The court must first determine whether it would be detrimental to the child to
temporarily place the child in that parent’s physical custody. If there is no showing of
detriment, the court must order the Agency to temporarily place the child with the
nonoffending noncustodial parent. The court then decides whether there is a need for
ongoing supervision. If there is no such need, the court terminates jurisdiction and grants
that parent sole legal and physical custody. If there is a need for ongoing supervision, the
court is to continue its jurisdiction.” (In re Austin P. (2004) 118 Cal.App.4th 1124, 1134-
1135.)
         The record is almost devoid of any evidence that father could obtain placement of
the minors under this provision. Father has an extensive criminal record and was never
assessed as a possible placement by the Agency. The only evidence supporting his
fitness as a parent was mother’s bare statement that he was a good parent and provider
when she last lived with him, and the fact that the minors had spent summers with him.
During the dependency, the minors were living with the maternal grandmother, with
whom they had closely bonded. Granting a section 361.2 motion would have removed
them from the home they had known and placed them in Southern California with a man
about whom the juvenile court knew very little. Based on this record, a section 361.2
motion would have been futile, and counsel’s failure to file one did not constitute
ineffective assistance.
         The party filing a section 388 petition has the burden of establishing that
modifying the juvenile court’s order would be in the minor’s best interests.

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(In re Stephanie M. (1994) 7 Cal.4th 295, 317.) In assessing the best interests of the
child, the juvenile court looks not to the parent’s interests in reunification but to the needs
of the child for permanence and stability. (Ibid.) A section 388 petition seeking
placement of the minors with father would fail on this record, as there is no evidence that
removing them from the maternal grandmother, who cared well for them and with whom
they were bonded, and placing them with father was in their best interests. Once again,
based on the record before us, counsel was not ineffective for failing to file what would
have been a futile motion.
                                              IV
       Father’s final contention is that cumulative error warrants reversing the juvenile
court’s orders. Finding no error, we necessarily reject this contention.
                                      DISPOSITION
       The juvenile court’s orders are affirmed.



                                                             RAYE               , P. J.



We concur:



         BLEASE              , J.



         MAURO               , J.




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