Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 53-002011, 53-002012
NICHOLSON, J.
Appellant K.E., mother of the minors, appeals from the juvenile court’s orders terminating her parental rights. (Welf. & Inst. Code, §§ 366.26, 395.) She contends there was insufficient evidence for the juvenile court to find the minors were adoptable. We affirm.
Hereafter, undesignated statutory references are to the Welfare and Institutions Code.
BACKGROUND
Placer County Department of Health and Human Services (“the Department”) filed a section 300 petition on September 29, 2005, on behalf of minors D. and S., who were then 11 and six years old. The petition alleged that both minors suffer from a disease requiring ongoing medical treatment, one of the minors had been sexually abused by appellant’s boyfriend, appellant was abusing controlled substances, and appellant had failed to care for and protect the minors. The petition also alleged appellant had failed to provide adequate care for the minors’ older sibling, who suffered from the same disease, and that the sibling had been adjudged a dependent of the juvenile court in 1998 due to appellant’s neglect.
Both minors were born with Barth Syndrome, a terminal illness that is characterized by cardiomyopathy, weak muscles, and a suppressed immune system.
The Cherokee Nation was notified of the action and the tribe intervened and became a party to the action. The juvenile court assumed jurisdiction over the minors. The minors were detained and, on July 27, 2006, ordered placed with their maternal aunt in Hawaii. Appellant’s reunification services were terminated on August 1, 2007.
A section 366.26 hearing was held on March 25, 2008. The minors were still placed with the maternal aunt. The maternal aunt was the preferred placement of the Cherokee Nation and she and her husband had expressed the desire to adopt the minors. The aunt and her husband were licensed foster care parents and their home had been monitored throughout the previous two-year placement.
At the hearing, appellant’s counsel stated that the minors’ adoptability and the suitability of their placement were not contested matters. Instead, appellant’s counsel presented argument on the issue of whether the beneficial relationship exception to adoption applied. Counsel for the Department, the minors, and the Cherokee Nation, all argued against a plan of guardianship and requested parental rights be terminated and the minors be placed for adoption.
The juvenile court found the minors were likely to be adopted and terminated parental rights.
DISCUSSION
Appellant contends the juvenile court’s order terminating her parental rights must be reversed because the finding by the court that it was likely the minors would be adopted was not supported by substantial evidence. Having conceded the issue of adoptability in the juvenile court, she cannot now raise it on appeal.
Appellant also filed a request for judicial notice, asking this court to take notice of subsequent August 2008 minute orders of the juvenile court continuing the permanent goal of adoption but placing the minors in a foster/group home. We deny appellant’s request for judicial notice, as the subsequent orders of the juvenile court are irrelevant to our review of the juvenile court’s ruling. We review an order terminating parental rights for substantial evidence at the time of the section 366.26 hearing. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154; In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)
“‘At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must make one of four possible alternative permanent plans for a minor child. . . . The permanent plan preferred by the Legislature is adoption.’” (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368, italics omitted.) “In order for the court to select and implement adoption as the permanent plan, it must find, by clear and convincing evidence, the minor will likely be adopted if parental rights are terminated.” (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164; § 366.26, subd. (c)(1).)
“The issue of adoptability posed in a section 366.26 hearing 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.] Hence, it is not necessary that the minors already be in a potential adoptive home or that there be a proposed adoptive parent ‘waiting in the wings.’” (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649, original italics.)
The social service agency has the burden of presenting evidence to support allegations and requested orders, including the burden of proof on the question of adoptability. (In re Chantal S. (1996) 13 Cal.4th 196, 210; In re Brian P. (2002) 99 Cal.App.4th 616, 623.) Generally, a claim of insufficient evidence of the minor’s adoptability is not waived by failure to raise the issue in the juvenile court. (In re Brian P., supra, 99 Cal.App.4th at p. 623.)
On the other hand, “‘“[t]he doctrine of judicial estoppel, sometimes referred to as the doctrine of preclusion of inconsistent positions, is invoked to prevent a party from changing its position over the course of judicial proceedings when such positional changes have an adverse impact on the judicial process. [Citation.] ‘The policies underlying preclusion of inconsistent positions are “general consideration[s] of the orderly administration of justice and regard for the dignity of judicial proceedings.”’ [Citation.]”’” (International Engine Parts, Inc. v. Feddersen & Co. (1998) 64 Cal.App.4th 345, 350.) A party is not permitted to play fast and loose with the administration of justice by deliberately conceding a fact in the trial court and then challenging the evidence supporting that fact on appeal. (See e.g., Porter v. Golden Eagle Ins. Co. (1996) 43 Cal.App.4th 1282, 1291 [party may not deliberately stand by without making objection of which he is aware, thereby permitting the proceedings to go to a conclusion which he may acquiesce in, if favorable, or avoid, if not].)
Likewise, “[u]nder the doctrine of invited error, where a party, by his conduct, induces the commission of an error, he is estopped from asserting it as grounds for reversal.” (Redevelopment Agency v. City of Berkeley (1978) 80 Cal.App.3d 158, 166.) As the California Supreme Court has explained: “‘An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been but was not presented to the lower court by some appropriate method . . . . The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver . . . . Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial.’ [Citation.]” (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1, italics omitted.)
Here, appellant went far beyond simply failing to tender a challenge to the likelihood of adoptability of the minors. Appellant’s counsel affirmatively conceded the minors were adoptable. Whether denominated estoppel, waiver, forfeiture, or invited error, appellant’s conduct in the juvenile court precludes her from raising the issue here. (In re Erik P. (2002) 104 Cal.App.4th 395, 403; In re Dakota S. (2000) 85 Cal.App.4th 494, 501-502; In re Gilberto M. (1992) 6 Cal.App.4th 1194, 1198-1200.)
DISPOSITION
The order terminating the parental rights of appellant is affirmed.
We concur: DAVIS, Acting P. J., MORRISON, J.