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Name: In re Brian P.
Case #: A096306
Court: CA Court of Appeal
District 1 DCA
Division: 3
Opinion Date: 06/21/2002
Subsequent History: Rehg. denied 7/17/02

The minor’s father, a homeless, undocumented alien, did not participate in the proceedings until the last minute, primarily, he said, because the mother threatened him with deportation if he tried to contact his son. He was appointed counsel after reunification services for the mother had ended and a Welfare and Institutions Code section 366.26 hearing set for August 24, 2001. The Social Services Agency report recommended long term foster care. The father, but not the mother, appeared at the section 366.26 hearing in August. The Social Services Agency worker reported that the father’s paternity had been established just before the hearing and requested a continuance to explore placement with his family. The court denied the continuance, stating that placement issues were not before it and were not grounds for a continuance. At the hearing the worker testified the minor was adoptable and the recommendation for long term foster care in the written report was an error and the Agency’s recommendation was for adoption. Appellant did not contest the Agency’s opinion that the child was adoptable. The court terminated both parents’ rights to the child and prohibited visitation. On appeal, the father challenged the sufficiency of the evidence of adoptability. The Agency disputed that claim and argued the issue had been waived. The appellate court agreed with the father that there was insufficient substantial evidence to support the trial court finding of adoptability and held that while a parent may waive the objection that an adoption assessment does not comply with the requirements of Welfare and Institutions Code section 366.21, subdivision (i), a claim of insufficient evidence of adoptability at a contested hearing is not waived by failure to argue the issue in the juvenile court. The court held that a social worker’s opinion, by itself, was insufficient to support an adoptability finding and reversed the termination order. The appellate court refused to address the father’s claim that the order setting the section 366.26 hearing was defective because the court failed to find he had been given reasonable reunification services because the time to challenge that order had passed. The father’s recourse was a petition under Welfare and Institutions Code section 388.