In re Emma R.




Filed 4/15/11 In re Emma R. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re EMMA R., a Person Coming Under the Juvenile Court Law.
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. JUSTIN R., Defendant and Appellant.	D058177 (Super. Ct. No. NJ14024C)

APPEAL from an order of the Superior Court of San Diego County, Blaine K. Bowman, Judge. Affirmed.

Justin R. appeals a juvenile court order terminating his parental rights to his minor daughter, Emma R., under Welfare and Institutions Code section 366.26.[1] Justin challenges the sufficiency of the evidence to support the court's finding that Emma was likely to be adopted within a reasonable time. We affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2008, one-year-old Emma became a dependent of the juvenile court under section 300, subdivision (a) and was removed from parental custody based on findings that Emma's parents, Justin[2] and Jolene P., engaged in acts of domestic violence in her presence. Emma's half brothers, then nine-year-old Dylan and then four-year-old Gavin, who are not subjects of this appeal, were also declared dependents of the court and removed from parental custody.
The court placed Emma, Dylan and Gavin (collectively, the children) in the home of Emma's paternal grandmother. The parents were participating in reunification services to address their domestic violence and substance abuse issues. At a six-month review hearing, the court ordered further services for the parents, including unsupervised visits with the children.
By the 12-month review hearing, the children were stable in their placement with the paternal grandmother, who was able to manage the negative behaviors of Dylan and Gavin. The parents were having overnight visits with the children, and the San Diego County Health and Human Services Agency (the Agency) was contemplating a 60-day trial visit. The court ordered six more months of services for the parents.
When the parents continued to abuse alcohol and drugs, the court ordered that their visits with the children revert to supervised status. Additionally, the court removed the children from the home of the paternal grandmother based on allegations of physical abuse and placed them in a licensed foster home.
By the 18-month review hearing, the parents had not participated in substance abuse treatment. Dylan and Gavin were struggling with behavior issues. The court terminated reunification services and set a hearing under section 366.26 to select and implement permanent plans for the children.
Social worker D. Dannielle Moores recommended adoption as the children's permanent plans. The children remained together in licensed foster care where they had lived for eight months. Moores assessed the children as adoptable, both individually and as a sibling group.
According to Moores, the children were generally adoptable because they were healthy and developing normally. Three-year-old Emma was described as cute, lively and affectionate. She was "a generally friendly and cheerful child who enjoys playing and laughing" and interacting with adults. Dylan was a likeable and attractive 11-year-old, who had attention deficit hyperactivity disorder (ADHD) and disruptive behavior disorder. According to a psychological evaluation, Dylan's negative behaviors were caused by his feelings of rejection by his birth parents and his resulting sense of uncertainty about his life. The evaluator concluded that Dylan needed stability and security in his life. The evaluator also reported that six-year-old Gavin had ADHD and that his negative behaviors were a function of his sense of abandonment and betrayal by his parents. He was described as attractive, charming and affectionate. Gavin and Dylan were both receiving counseling services to address their behavior problems. Moores believed that these problems would resolve when Gavin and Dylan achieved a sense of permanence and security in their placement.
Moores also expressed her view that the children were specifically adoptable. The children's caregivers wanted to adopt them and were in the process of completing an adoptive home study. The caregivers were aware of the importance of keeping the children together because of the losses that the children had already experienced. Moores believed that the caregivers' home would be approved as an adoptive home in the "very near future." Dylan and Gavin wanted to be adopted by their caregivers, and although Emma was too young to express her wishes, she had a strong bond with her caregivers. If the caregivers could not adopt the children, there were 59 approved families in San Diego County that were willing to adopt a child with Emma's characteristics. There were between seven and 33 approved families in San Diego County interested in adopting a child like Gavin,[3] and nine approved families in San Diego County interested in adopting a child like Dylan. As a sibling group, two approved adoptive families in San Diego County and eight approved adoptive families elsewhere had been identified for these children.
Moores further reported that the children and their parents did not have a beneficial parent-child relationship. She stated that the children needed the security and stability of a permanent, loving home as quickly as possible to ensure their future mental and emotional health.
At a selection and implementation hearing, the parties agreed to proceed to trial by submitting on the various documents rather than presenting testimony. The court found that the children were both generally and specifically adoptable. The court found that if the children's current caregivers could not adopt them, there were other families willing to adopt this strongly bonded sibling group, which the court did not want to separate. Finding that none of the exceptions to adoption applied, the court terminated parental rights and referred the children for adoptive placement.
DISCUSSION
Justin contends that the court erred by terminating his parental rights to Emma because there was no substantial evidence to support a finding that Emma and her brothers, who are a strongly bonded sibling group, would be adopted together within a reasonable time. Justin asserts that the sibling group is not generally adoptable because Dylan and Gavin have too many significant problems. He further asserts that the court did not properly determine that the sibling group is specifically adoptable, because the court failed to address whether there are any legal impediments to adoption by the children's current caregivers.
A
When reviewing a court's finding that a minor is adoptable, we apply the substantial evidence test. (In re Josue G. (2003) 106 Cal.App.4th 725, 732; In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we must uphold those findings. We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or weigh the evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) Instead, we view the record favorably to the juvenile court's order and affirm the order even if there is substantial evidence supporting a contrary conclusion. (Id. at pp. 52-53.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
The court may terminate parental rights only if it determines by clear and convincing evidence that the minor is likely to be adopted. (§ 366.26, subd. (c)(1).) An adoptability finding requires "a low threshold: The court must merely determine that it is 'likely' that the child will be adopted within a reasonable time." (In re K.B. (2009) 173 Cal.App.4th 1275, 1292; accord In re Zeth S. (2003) 31 Cal.4th 396, 406; In re B.D. (2008) 159 Cal.App.4th 1218, 1231.) The issue of adoptability focuses on whether a child's age, physical condition and emotional state will create difficulty in locating a family willing to adopt. (In re David H. (1995) 33 Cal.App.4th 368, 378.) A minor who is considered to be adoptable need not be in a prospective adoptive home, and there need not be a prospective adoptive parent " 'waiting in the wings.' " (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) Nevertheless, "the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor's age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parent's willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family." (Id. at pp. 1649-1650.)
If the child is generally adoptable, we do not examine the suitability of the prospective adoptive home. (In re R.C. (2008) 169 Cal.App.4th 486, 493-494.) Only when the child is not generally adoptable because of age, physical condition or emotional state does the analysis shift from evaluating the child's characteristics to determining "whether there is any legal impediment to the prospective adoptive parent's adoption and whether he or she is able to meet the needs of the child." (In re Helen W. (2007) 150 Cal.App.4th 71, 80; In re Carl R. (2005) 128 Cal.App.4th 1051, 1062; In re Valerie W. (2008) 162 Cal.App.4th 1, 13.) As long as the child is generally adoptable, the issue of a family's suitability to adopt is reserved for the subsequent adoption proceeding. (In re R.C., supra, at p. 494.)
B
Social worker Moores assessed three-year-old Emma as generally adoptable, individually (i.e., independent of the sibling group), because of her young age, good health, normal development, sociable personality and happy disposition. Moores also assessed Emma as specifically adoptable (again, individually) because, at the time of the selection and implementation hearing, Emma's caregivers wanted to adopt her and were in the process of completing their adoption home study. According to Moores, even if the caregivers could not adopt Emma, there were 59 other approved adoptive families who were interested in adopting a child with Emma's characteristics. Evidence of "approved families willing to adopt a child of [this] 'age, physical condition, and emotional state' " is relevant to evaluating the likelihood of the child's adoption. (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205.)
Justin asserts that Emma's individual adoptability is irrelevant because the court based its findings only on the adoptability of the children as a sibling group. The record shows that the court did not discuss Emma's individual adoptability, but instead, focused its analysis on the adoptability of this "strongly-bonded sibling group," and found that the children were both generally and specifically adoptable. The court stated that it did not want to separate the children, in part because the parents wanted them to remain together.
Although the court's concerns about the children maintaining their sibling ties are valid, in its findings and analysis, the court should have addressed the possibility that Emma might not be adopted as part of a sibling group. "[T]he statutory scheme and case law require a determination of the adoptability of a child as an individual" because the proper inquiry is on the particular characteristics of that child. (In re I.I. (2008) 168 Cal.App.4th 857, 872; In re Erik P. (2002) 104 Cal.App.4th 395, 401, fn. 2 [sibling relationship has no bearing on question of adoptability].)[4] On this record, there is substantial evidence to support a finding that Emma, as an individual, is generally adoptable; Emma's age, physical condition and emotional state are such that it would not be difficult to find a person willing to adopt her even if she cannot be adopted with her brothers. (In re Zeth S., supra, 31 Cal.4th at p. 406.) Although it was error for the court to address Emma's adoptability only as a member of the sibling group and not address her individual adoptability, the error does not require reversal.[5] (See In re B.D., supra, 159 Cal.App.4th at p. 1240 [error in finding that siblings were adoptable was harmless].)
C
Even when Emma's adoptability is considered as part of a bonded sibling group, there is substantial evidence to support the court's finding that she is generally adoptable.[6] Dylan and Gavin have no significant medical or developmental challenges, and their behavioral issues do not require specialized placement. (Cf. In re Carl R. (2005) 128 Cal.App.4th 1051, 1058, 1061 [eight-year-old boy with cerebral palsy, seizure disorders and other disabilities requiring intensive care for life was not generally adoptable].) Dylan and Gavin have many positive traits. Dylan is a likeable and attractive boy who is in good health, and whose intellectual achievement is in the average range. Gavin is an attractive, charming and affectionate boy who is in good health. He has normal development, average intellect and average to above average achievement. Dylan's and Gavin's ADHD and emotional problems were being addressed in therapy, and the social worker expressed the view that their negative behaviors were likely to improve once the boys were in a stable and permanent placement. Although the boys may require significant assistance in overcoming the abuse and neglect that they suffered in their early childhood, this does not render them unadoptable. Contrary to Justin's contention, the boys' problems do not preclude the sibling group from being considered adoptable.
Further, the evidence supported a finding that the sibling group is likely to be adopted within a reasonable time. There were 10 approved families—two in San Diego County and eight outside the county or state—who had expressed interest in adopting a sibling group with the characteristics of these children. (In re Jerome D., supra, 84 Cal.App.4th at p. 1205; cf. In re Amelia S. (1991) 229 Cal.App.3d 1060, 1065 [evidence was insufficient to support court's finding of adoptability where 10 siblings were mentally disabled, needed to remain together and no prospective adoptive homes had been identified]; In re Asia L. (2003) 107 Cal.App.4th 498, 512 [sibling set of three was not adoptable because the minors had emotional and psychological problems and there were no approved families willing to adopt children with similar problems].)
Justin argues that evidence of the existence of 10 families interested in adopting a sibling group like these children does not show that the children are generally adoptable because, he maintains, the sibling profiles that were used in generating this data base were incomplete, and those families were selected by applying extremely general, boilerplate descriptions of the children. However, by failing to object in the juvenile court to the efforts undertaken to identify adoptive homes for the sibling group, Justin has forfeited this claim on appeal. (In re R.C., supra, 169 Cal.App.4th at p. 493.) Even if Justin could now raise this claim, the court was entitled to consider evidence of the existence of potential adoptive families in finding that Emma, as part of the sibling group, was likely to be adopted within a reasonable time. (Ibid.) There is substantial evidence to support the court's finding that the children—even as a bonded sibling group—are adoptable.
D
In a letter brief filed on behalf of Emma, minors' counsel informs us that as of February 23, 2011 the children were living at Polinsky Children's Center awaiting placement in an approved adoptive home. On our own motion, we take judicial notice of the most recent status review report and juvenile court minute order, both dated March 9, 2011, which indicate that the children are no longer placed with the caregivers due to the pending dissolution of the caregivers' marriage and resulting issues.[7] Emma is in a licensed foster home and the boys are in another licensed foster home. The social worker is "doing her best to reunite" the children.
These subsequent events do not compel us to conclude that Emma is not adoptable, or to reverse the court's order terminating parental rights. The fact that the children's placement with their caregivers fell through does not defeat a finding that they are adoptable. As we previously discussed, the evidence in the record shows that Emma is highly adoptable independent of her brothers, and that, even as a sibling group, the children are generally adoptable.
DISPOSITION
The order is affirmed.

AARON, J.

WE CONCUR:



HUFFMAN, Acting P. J.



McDONALD, J.

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