Opinion
D059497
09-27-2011
In re S.L., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. S.C. et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 516851B)
APPEAL from orders of the Superior Court of San Diego County, Carol Isaacson and Ana L. Espana, Judges. Affirmed.
S.C. and Bobby L. (together, the parents) appeal juvenile court orders denying their Welfare and Institutions Code section 388 petitions for modification and terminating their parental rights to their minor daughter, S.L., under section 366.26. The parents contend that: (1) the court erred by summarily denying S.C.'s section 388 modification petition; (2) the court had a sua sponte duty to assess the request by S.L.'s adult half sister that S.L. be placed with her; and (3) there was no substantial evidence to support the court's finding that S.L. was likely to be adopted if parental rights were terminated. We affirm the orders.
Statutory references are to the Welfare and Institutions Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
The parents have a history of domestic violence and marijuana use. Although S.C. had a restraining order against Bobby, she continued to have contact with him. In January 2008, 23-month-old S.L. became a dependent of the juvenile court under section 300, subdivisions (a) and (b) based on findings that S.C. and Bobby engaged in domestic violence that involved a physical struggle over S.L. The court placed S.L. with S.C. and ordered S.C. to comply with her case plan.
The court also declared S.L.'s four-year-old brother T.W. a dependent. T.W. is not a subject of this appeal.
Bobby did not appear in court until the 12-month review hearing.
One month later, the San Diego County Health and Human Services Agency (Agency) filed a supplemental petition under section 387 because S.C. tested positive for marijuana and methamphetamine, and there was another incident of domestic violence between the parents. The court sustained the allegations of the petition, removed S.L. from parental custody, placed her in foster care and ordered S.C. to participate in services.
During the next six months, S.C. participated in services and visited S.L. regularly. S.L. exhibited behavior problems, including screaming and being aggressive with other children. S.L.'s pediatrician believed that S.L. had no mental or emotional problems, and that her aggressive behaviors were learned. Between February and May 2008, S.L. had been in three different foster care placements. In May 2008, she was again moved to a new foster home. The court ordered six more months of services for S.C.
In January 2009, S.L.'s foster mother, who operated a day care with 12 children in her home, asked that S.L. be removed from the foster home because the foster mother was tired and overwhelmed and could no longer care for S.L. The social worker reported that S.L. refused to follow directions. Agency moved S.L. to a foster home where a higher level of care and services would be provided to meet her emotional and behavior needs. The maternal grandmother was excluded as a placement option because she had a criminal record and a history with child protective services. No other relatives asked that S.L. be placed with them.
Paternity tests confirmed that Bobby is S.L.'s biological father. The court ordered Bobby to have visits with S.L., which he sometimes canceled or failed to attend. At a 12-month review hearing, the court terminated S.C.'s reunification services, but ordered services for Bobby. Bobby failed to maintain contact with Agency or enroll in a parenting class.
The social worker reported that S.L. was generally healthy and that she was meeting developmental milestones. S.L. was described as happy, loving and outgoing, and she played well with others. However, she was unable to manage her feelings, and sometimes had tantrums and failed to follow directions. She was participating in individual therapy and conjoint therapy with the foster mother to address these issues. The foster mother noted that S.L.'s behavior was negatively affected by visits with her parents. According to a report written by the Walden Family Services Foster Family Agency (FFA), S.L. sometimes lied to get what she wanted, but overall, her behavior had improved. She was described as insecure and needing reassurance and attention from the entire foster family.
In June 2009, S.L. was discovered engaging in sexualized behavior with her brother. She was asked to leave her daycare due to her ongoing temper tantrums and aggression, and had to attend a different daycare facility. She continued to receive weekly therapy to address these behaviors. The FFA social worker believed that S.L. needed more structure, which she would get when she started preschool in the fall. S.L. was moved to her sixth placement in September 2009. This foster family was not interested in adopting S.L., but wanted her to remain in their home until an adoptive placement for S.L. was found.
In October 2009, Bobby requested that S.L.'s 20-year-old half sister, Sh.L. (the sister), be evaluated for placement of S.L. The sister and her 21-year-old fiance, James, lived in a studio apartment with the sister's two-year-old daughter and James's three-month-old niece, whom they were in the process of adopting. The sister had never met S.L., despite having known about her for a year. Neither the sister nor James had any criminal record or child welfare services history.
Agency's social worker was not in favor of placing S.L. with the sister because the sister was already caring for two small children and might not be able to give S.L. the structure and attention that she needed. The sister still had not met S.L. The social worker told the sister that she would need to contact and visit S.L. to develop a relationship before Agency could consider placing S.L. with her.
As of January 2010, the sister had visited S.L. only twice. The sister told the social worker that she would not have room in her apartment for S.L. until the family moved, but that the family was "not ready to move right now" because the sister was not working.
Mental health clinician April Barker had been treating S.L. in therapy for about five months, and reported that S.L. had made significant gains since her placement in her current foster home. Although S.L. continued to require a high level of supervision, she thrived when in a "highly structured, consistent environment with caregivers who follow-through using appropriate behavioral interventions." In Barker's opinion, a permanent placement for S.L. with a consistent caregiver would help her develop the attachments necessary for her well-being and development.
An incident report was filed because S.L. had been physically aggressive with her foster mother and had engaged in an incident of sexual acting out.
At an 18-month review hearing, the court terminated Bobby's reunification services and set a hearing under section 366.26 to select and implement a permanent plan for S.L.
Agency social worker Jaime Hills assessed S.L. as adoptable because she was healthy, bright, attractive and affectionate. According to Hills, eight families in San Diego County with approved home studies had expressed an interest in adopting a child with S.L.'s characteristics.
S.L.'s emotional and behavioral problems consistently improved until January 2010. At that time, S.C. had resumed visiting S.L. after a five-month lapse in visitation, and Bobby's visits had become less consistent. S.L.'s inappropriate behavior, which included smearing feces on the wall at her daycare facility and sexually acting out, tended to occur after her parents visited or when they missed visits.
Hills recommended that the court terminate parental rights and select adoption as S.L.'s permanent plan. Hills asked for a continuance to locate the best adoptive placement for S.L. Agency was evaluating the home of a maternal relative who was reportedly interested in adopting S.L. Although the sister had previously requested that S.L. be placed with her, she had not maintained contact with S.L. nor moved into a larger home. When Hills was unable to find an adoptive match for S.L. among the families with approved home studies, the court authorized Agency to seek additional prospective adoptive families through advertising and other recruitment efforts.
This relative later withdrew her request to be considered as an adoptive placement for S.L.
According to a November 2010 addendum report, Agency was again evaluating the sister's home for placement of S.L. After the first two visits with S.L., the sister had not had any contact with her for a period of eight months. The sister admitted that she had come forward because Bobby had asked her to do so. The sister did not want S.L. to be adopted by a family that was not biologically related to her. The sister said that she still planned to move from her studio apartment to a larger home that would accommodate S.L.
In the meantime, Hills continued to evaluate prospective adoptive families to locate the best match for S.L. Hills said that there were an additional 12 families in San Diego County and 32 families outside San Diego County, all with approved home studies, that were interested in adopting a child with S.L.'s characteristics. Two families seemed particularly well-suited to care for S.L. One of these families had contacted Hills several times asking to be matched with S.L.
Agency continued to evaluate the sister as a placement for S.L., but Hills believed that the sister's belated request for placement should not cause S.L. to have to wait for a permanent home. Moreover, there was no guarantee that the sister's home would be approved, or that the sister would in fact remain interested in caring for S.L. The court granted Agency's request for a continuance of the selection and implementation hearing so that S.L. could be placed in a prospective adoptive home.
In February 2011, Agency began transitioning S.L. into a prospective adoptive home. The family had an approved home study and had been provided information about S.L. and her challenging behaviors. S.L. met the family on February 17, after which they had visits or telephone contact every day. Although S.L. tested limits at times, she was doing well with this family. Hills requested a 30-day continuance of the selection and implementation hearing so that S.L. could be gradually transitioned into this home. Agency was continuing with its evaluation of the sister's home, and Hills had explained to the sister that Agency would be pursuing other adoptive placements while the evaluation was proceeding.
As of February 23, the sister's home had not yet been approved for S.L.'s placement. When the sister moved to a larger home in early December 2010, she did not immediately inform Agency of her new address. She waited more than a month after moving to contact Agency to arrange a home inspection, explaining that her telephone was broken. At the home inspection on January 14, 2011, the sister's possessions were still in boxes. Her children were sharing an air mattress as a bed in one of the bedrooms, and she and James were sleeping on the couch. The sister was informed that the home could not be approved and licensed until beds were set up for all household members. Hills and her supervisor determined that S.L.'s needs and behaviors required that she have her own bedroom. The sister agreed to this sleeping arrangement. She was told that Agency would again inspect the home once the sister confirmed that the rooms had been rearranged. Hills reported that if the sister's home was approved, it would be a back-up placement for S.L.
At a hearing on February 24, the court continued the matter, and directed Agency to submit an addendum report no later than March 28, with a full assessment of the sister's request for placement, including whether her home was appropriate for S.L. The court ordered Agency to inform the sister that the evaluation, which depended on her cooperation, had a strict timeline. The court also ordered Agency to reassess its recommendation for a permanent plan of adoption for S.L. in light of the number of placements she had been in and the difficulties she had experienced.
On February 28, Agency notified the court and all the parties that it intended to move S.L. to the home of the family that was interested in adopting her. Following a two-week transition period, S.L. moved into that home on March 4, 2011. That same day, the parents filed section 388 modification petitions, seeking to have the court place S.L. with the sister. As changed circumstances, the petitions alleged that since the time that S.L. was first placed in foster care in February 2008, the sister had come forward and was in the process of having her home evaluated and approved for S.L.'s placement; Agency intended to move S.L. to a nonrelative placement before completing the sister's home evaluation; and given S.L.'s significant behavioral concerns, an additional change in placement would create a potential detriment to S.L. The petitions further alleged that it was in S.L.'s best interests to obtain permanency and to be raised by a biological family member, particularly because S.L. was not bonded with the prospective adoptive family.
On March 22, 2011, Agency submitted an addendum report that contained the details of Agency's contacts and conversations with the sister from November 2009 to March 2011. The report noted that the sister had been slow in completing her home evaluation, even though she knew that Agency was looking to place S.L. with a prospective adoptive family. Approval of the sister's home evaluation was still pending because she had not yet complied with the requirements necessary to get her home approved for S.L.'s placement. Further, the sister had not visited or telephoned S.L. for four months. Consequently, Agency recommended that the court deny the parents' modification petitions on the grounds that the sister's pending home evaluation was not a changed circumstance; the sister lacked motivation to have S.L. in her home; the sister had not requested visits with S.L. in the past several months; and the sister did not understand S.L.'s special needs. In Hills's view, S.L.'s best interests would not be served by disrupting her current placement and placing her with the sister, whom she barely knew.
In support of their section 388 petitions, the parents submitted a home evaluation report, prepared at the request of S.C.'s counsel, by Dependency Legal Group of San Diego (DLG) investigator Giselle Papa-Lewis. The sister told Papa-Lewis that the Agency had not informed her as to what she would have to do in order to have her home approved and said the social worker had not maintained contact with her. The sister admitted that she had not yet obtained beds for her two children. The sister maintained that she understood S.L.'s challenging behaviors and said that she was willing and motivated to learn how to handle them when they occurred. The sister also said that she did not have a car, which made it difficult to schedule visits with S.L.
In ruling on the parents' section 388 modification petitions, the court found that the parents had not made a prima facie showing of changed circumstances or that placement with the sister would be in S.L.'s best interests. Accordingly, the court denied the petitions without an evidentiary hearing.
In an April 2011 addendum report, Hills continued to recommend adoption as S.L.'s permanent plan. S.L.'s caregivers wanted to adopt her. Additionally, there were now six families with approved home studies in San Diego County and 14 families outside San Diego County that were interested in adopting a child with S.L.'s characteristics.
S.L.'s caregivers reported to Hills that S.L. was doing well in their home. Although S.L. sometimes had tantrums and tested the rules of her new home, she responded well to redirection and discipline such as timeouts or loss of privileges. Hills noted that S.L. probably did not yet relate to her caregivers as parents, but she understood that they were the adults who ensured that her daily needs were met. S.L. said that she missed her previous foster parents, but that she wanted to stay with her "new Mommy and Daddy."
In Hills's opinion, the parents did not visit S.L. consistently and did not play a parental role in her life. Hills view was that any detriment in terminating parental rights was far outweighed by the benefits of permanency, stability and security that adoption would give S.L.
At a contested selection and implementation hearing, the court received the various reports in evidence. The parents testified that they loved S.L. and did not want to have their parental rights terminated.
Hills testified that she was extremely confident that S.L. would be adopted. S.L. was doing well in the prospective adoptive home, where she had been living for four weeks. Her caregivers, who had an approved home study, were well aware of S.L.'s challenging behaviors and remained committed to adopting her. S.L. and her caregivers had recently begun conjoint therapy, and there were support services available to help the placement succeed.
After considering the evidence and arguments of counsel, the court found by clear and convincing evidence that S.L. was likely to be adopted and that none of the statutory exceptions to adoption applied. The court terminated parental rights and referred S.L. for adoptive placement.
DISCUSSION
I
THE COURT DID NOT ERR IN DENYING S.C.'S MODIFICATION PETITION
WITHOUT A HEARING
The parents contend that the court erred by summarily denying S.C.'s section 388 petition to modify the court's previous order placing S.L. in foster care. They assert that S.C. made a prima facie showing that circumstances had changed and that the proposed modification—placing S.L. with the sister—may be in S.L.'s best interests.
Bobby does not raise an argument with respect to the denial of his section 388 petition, but instead joins in S.C.'s argument.
A
A party may petition the court under section 388 to change, modify or set aside a previous court order. The petitioning party has the burden of showing, by a preponderance of the evidence, that (1) there is a change of circumstances or new evidence, and (2) the proposed change is in the child's best interests. (§ 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The petition must be liberally construed in favor of its sufficiency. (Cal. Rules of Court, rule 5.570(a); In re Marilyn H. (1993) 5 Cal.4th 295, 309.) "The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing." (In re Marilyn H., supra, at p. 310.) " '[I]f the petition presents any evidence that a hearing would promote the best interests of the child, the court will order the hearing.' [Citation.]" (In re Jasmon O., supra, at p. 415.) If, however, "the liberally construed allegations of the petition do not make a prima facie showing of changed circumstances and that the proposed change would promote the best interests of the child, the court need not order a hearing on the petition. [Citations.] The prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition." (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.) In determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case. (In re Justice P. (2004) 123 Cal.App.4th 181, 188-189.)
In reviewing the summary denial of a section 388 petition, we need not accord deference to the court's finding that the petitioner failed to make a prima facie showing of changed circumstances or best interests. Instead, because we are reviewing the sufficiency of the liberally construed allegations of the petition, we apply our independent judgment to determine whether the petition presents facts which, if believed, will result in a favorable decision for the petitions. (See Slauson Partnership v. Ochoa (2003) 112 Cal.App.4th 1005, 1020 [de novo standard of review applied in reviewing trial court's ruling granting motion to strike in anti-SLAPP motion to strike, where plaintiff must present prima facie evidence to show probability of prevailing]; California Logistics, Inc. v. State of California (2008) 161 Cal.App.4th 242, 247 [where demurrer is sustained without leave to amend, appellate court assumes truth of allegations in complaint and applies de novo standard of review].)
B
S.C.'s modification petition sought to have S.L. placed with the sister. The petition alleged that S.L.'s circumstances had changed since she was first placed in foster care in February 2008 because the sister now wanted S.L. placed with her, and the sister had made every effort to have her home evaluated and approved for placement. As to best interests, the petition alleged that S.L. should be raised by her biological family, which would allow her to maintain contact with her parents. The petition further alleged that moving S.L. to a prospective adoptive home before placing her with a relative was potentially detrimental to her, given her significant behavioral concerns that resulted in multiple placements.
S.C. did not make a prima facie showing of changed circumstances with respect to having S.L. placed with the sister. The sister's request that S.L. be placed with her was neither new evidence nor a changed circumstance. The factual and procedural history of the case shows that when the sister first asked to be considered for placement of S.L. in October 2009, Agency initiated an evaluation of the sister's home. Two months later, the sister said that she was not ready to move to a home large enough to meet licensing requirements for S.L.'s placement. Nearly a year later, in November 2010, the sister resumed her efforts to comply with the home evaluation process by agreeing to move to a bigger home. However, she never followed through with the necessary steps to have her home approved. Specifically, she delayed in arranging physical inspections of her home, obtaining beds for herself and her children, unpacking her belongings, changing the sleeping arrangements, and calling Agency to arrange for a follow-up inspection. Through no fault of Agency, the sister remained "in the process" of being evaluated. As a result, Agency was precluded from placing S.L. with her. The sister's belated efforts to have her home approved for S.L.'s placement and offering a home that was "almost ready" do not constitute changed circumstances, but merely changing ones, and are not legally sufficient to warrant a hearing on S.C.'s section 388 petition. (In re Casey D., supra, 70 Cal.App.4th at p. 47; In re Angel B. (2002) 97 Cal.App.4th 454, 465.)
In her reply brief, S.C. argues that Agency failed to comply with the court's order to submit "a full assessment of the relative currently under evaluation. " ' She implies that Agency acted inappropriately when it moved S.L. to a prospective adoptive home before completing the evaluation of the sister's home. However, S.C. did not allege these facts in her section 388 modification petition or otherwise make this argument in the juvenile court. She has thus forfeited the right to raise this issue on appeal. (In re S.B. (2004) 32 Cal.4th 1287, 1293 [reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court].)
In any event, the record shows that completion of the sister's home evaluation was contingent on the sister complying with certain requirements, which she failed to do. Further, at a hearing on November 30, 2010, the court ordered Agency to continue searching for an adoptive home for S.L. and to assess other families so that an appropriate placement would be in place before the next hearing. Agency then identified a prospective adoptive family and began transitioning S.L. to that home before the court ordered completion of the sister's home evaluation at the February 24, 2011, hearing. Thus, any implication that Agency circumvented the court's order to complete the evaluation of the sister's home is unfounded.
C
Even if S.C. made a prima facie showing of changed circumstances in her section 388 petition, she did not make a prima facie showing that placing S.L. with the sister may be in S.L.'s best interests. Before the sister identified herself as a possible placement option, she had never met S.L. For more than a year, the sister knew that S.L. was a dependent child living in foster care, yet after visiting S.L. only twice, the sister had no further contact with her for eight months. The sister thus failed to take advantage of the opportunity to develop a relationship with S.L. Further, neither the facts alleged in the petition, nor the home evaluation report submitted by S.C. in support of her petition, showed that the sister was ready and able to care for a child who presented the challenges that S.L. did.
Indeed, S.L. had more of a relationship with her current caregivers after living with them for only two weeks.
Although S.C. claims that S.L. would benefit from being raised by her biological family, including the fact that this would allow her to maintain contact with her parents, neither the relative placement preference nor the presumption favoring natural parents, without more, is sufficient to satisfy the best interests prong of section 388. (In re Justice P., supra, 123 Cal.App.4th at p. 192; In re Antonio G. (2007) 159 Cal.App.4th 369, 376 [relative placement preference of section 361.3 does not create an evidentiary presumption in favor of placement with a relative].) S.C.'s section 388 petition made no prima facie showing that S.L.'s best interests would be served by depriving S.L. of the opportunity to be placed in a prospective adoptive home instead of with the sister, who did not yet have an approved home and had not yet established a relationship with S.L. (In re C.J.W. (2007) 157 Cal.App.4th 1075, 1081; see also In re Anthony W. (2001) 87 Cal.App.4th 246, 252 [juvenile court properly denied section 388 petition without a hearing where there was no showing it was in minor's best interests to return to parents' custody].) As previously discussed, the sister and her fiancé were already caring for two young children, and might not be able to give S.L. the structure and attention that she needs.
S.L. has been in the dependency system for more than three years. The proper focus of this case was on her need for stability, continuity and permanency, regardless of S.C.'s preference that S.L. be placed with the sister. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) Because the facts alleged, even liberally construed, would not have sustained a favorable decision on the section 388 petition, S.C. was not entitled to an evidentiary hearing. (In re Zachary G., supra, 77 Cal.App.4th at pp. 806, 808; In re Mary G. (2007) 151 Cal.App.4th 184, 205-206.)
II
THE COURT DID NOT HAVE A SUA SPONTE DUTY TO HOLD AN EVIDENTIARY
HEARING TO CONSIDER A RELATIVE PLACEMENT
WITH THE SISTER
The parents contend that the court erred by failing to: (1) evaluate the sister as a relative placement according to the criteria of section 361.3; and (2) require Agency to comply with the court's prior order to submit a full assessment of the sister as a relative placement. They assert that in light of the legislative mandate giving preference to relative placements and the social worker's failure to more actively pursue that placement, the court should have held an evidentiary hearing to determine whether placement with the sister would be in S.L.'s best interests.
A
Under section 361.3, certain relatives, including an adult sibling, may seek and receive preferential consideration for placement of a dependent minor at disposition or when a new placement for the minor is necessary. (§ 361.3, subds. (a), (c)(2) & (d); In re Joseph T. (2008) 163 Cal.App.4th 787, 794-795.) "The relative placement preference, however, is not a relative placement guarantee . . . ." (In re Joseph T., supra, at p. 798.) Although the relative seeking placement is entitled to be the first placement considered and investigated, he or she is not entitled to a presumption of placement. (§ 361.3, subd. (c)(1); Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 862-863.) Instead, the court must consider various factors, including the best interests of the child, in determining whether that placement is appropriate. (§ 361.3, subd. (a)(1)-(8); In re Luke L. (1996) 44 Cal.App.4th 670, 677-681.)
We review the court's placement orders for abuse of discretion. (Alicia B. v. Superior Court, supra, 116 Cal.App.4th at p. 863.) Broad deference is given to the juvenile court, and we interfere with the court's decision only if we conclude that under all the evidence, viewed favorably to the court's order, no reasonable judge would have made that decision. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.)
B
The parents cite no authority, and we have found none, that would support the proposition that the court must hold an evidentiary hearing when determining the propriety of a relative placement under section 361.3. Instead, the statute requires the court to give preferential consideration to a relative's request for placement of a dependent child, and to state reasons that the placement with the relative was denied. (§ 361.3, subds. (a), (e).) The court here considered the relative placement in the context of denying the parents' requests, raised in their section 388 modification petitions, to have S.L. placed with the sister. (See In re Joseph T., supra, 163 Cal.App.4th at p. 798 [reasons for denying relative placement were clear from the evidence and discussion at six-month review hearing].)
The evidence on which the court relied showed that Agency initiated an evaluation of the sister's home once she belatedly came forward as a placement option for S.L. For two years, the sister had been a potential caregiver for S.L., but had not established and maintained a relationship with her. (§ 361.3, subds. (a)(6), (d).) Through no fault of Agency, the sister's home could not be approved. The sister initially was unable to move to a larger home to meet licensing requirements; once she did move, she failed to follow through to get her home approved for S.L.'s placement. In the meantime, S.L. was languishing in foster care and was in dire need of a permanent home. A prospective adoptive family had been identified, and Agency pursued this placement for S.L. while it waited for the sister to confirm that she was ready to have her home inspected. At the time the parents filed their section 388 modification petitions, the sister's home was still not ready for inspection and approval. "For a relative to be considered appropriate to receive placement of a child under [section 361.3], the relative's home shall first be approved" according to the standards set forth in the regulations for licensing of foster family homes. (§§ 309, 361.3, subd. (a)(8).) Without an approved home, the sister was not a viable placement option for S.L. The record thus supports a finding that the relative placement preference of section 361.3 "was overridden in this case." (In re Joseph T., supra, 163 Cal.App.4th at p. 798.)
Moreover, as we previously discussed, there was no prima facie showing that it would be in S.L.'s best interests to be placed with the sister, particularly in light of S.L.'s special emotional needs. (See § 361.3, subd. (a)(1); In re Robert L., supra, 21 Cal.App.4th at p. 1068 [best interests of the child is the "linchpin of the analysis"].) At this stage of the proceedings, S.L.'s preferred placement shifted to the prospective adoptive parents, who had an approved home study and wanted to adopt S.L., because the overriding concern "is to provide a stable, permanent home in which [S.L.] can develop a lasting emotional attachment to [her caregivers]." (In re Baby Girl D. (1989) 208 Cal.App.3d 1489, 1493-1494 [applying previous version of section 361.3].) Although it is important to afford relatives a "fair chance" to obtain custody (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1033), the court here fulfilled its fundamental duty to provide for S.L.'s best interests when it declined to place S.L. with the sister. (See In re Stephanie M., supra, 7 Cal.4th at p. 321; Alicia B. v. Superior Court, supra, 116 Cal.App.4th at p. 864.)
C
The record does not support the parents' suggestion that Agency failed to comply with the court's order to evaluate the sister or to give good faith consideration to the sister as a placement option. At a hearing on February 24, 2011, the court ordered Agency to submit an addendum report by March 28, which was to include a full assessment of the sister and an indication as to whether her home was appropriate as a placement option for S.L. The court directed Agency to advise the sister that March 28 was the deadline and that the evaluation "hinges upon her cooperation as well as the [A]gency moving things quickly . . . ." On March 22, Agency submitted an addendum report that contained the details of Agency's contacts and conversations with the sister from November 2009 to March 2011. The report stated: "[The sister] has been very slow to complete her [relative home] evaluation, despite knowing that the Agency would be looking at placing S.L. with waiting families in the meantime. As of this writing, the [relative home evaluation] is still pending because [the sister] has not complied with the requirements necessary to approve the home." Moreover, the sister had not visited or called S.L. for four months. Although Agency's report was prepared in opposition to the parents' section 388 petitions, it contained an assessment of the sister and concluded that her home was not an appropriate placement for S.L. This was precisely the information that the court required Agency to provide.
The parents blame the social worker for not offering financial aid or other resources to help the sister move into, or furnish, a larger home more quickly, or to facilitate visits between S.L. and the sister. However, the record shows that social worker Hills informed the sister that Agency could help with moving expenses if the sister was willing to move to a larger home for purposes of having S.L. placed with her. Further, Agency cannot be faulted for not facilitating visits where the record shows that the sister did not request visits with S.L. The sister explained that she had been very busy during the holidays and "had not really been available" for visits. Given the sister's many delays in obtaining approval of her home and her excuses for her failure to maintain contact with S.L., the social worker was not required to more actively pursue this relative placement. (In re Casey D., supra, 70 Cal.App.4th at p. 54 [Agency fulfilled its obligations to investigate relatives before placing minor in foster care].)
III
THERE IS SUBSTANTIAL EVIDENCE TO SUPPORT A FINDING THAT S.L.
IS LIKELY TO BE ADOPTED
The parents challenge the sufficiency of the evidence to support the court's finding that S.L. is likely to be adopted. They contend that S.L. is not generally adoptable because: (1) she has severe and long-standing behavioral problems; and (2) Agency had difficulty finding a prospective adoptive home for her. They further contend that S.L. is not specifically adoptable because: (1) her placement with the prospective adoptive parents was too recent to have withstood the test of time, given S.L.'s significant problems; and (2) Agency failed to comply with statutory requirements to provide an adequate assessment of the prospective adoptive parents or a current evaluation of S.L.'s mental and emotional status.
A
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).) The statute requires clear and convincing evidence of the likelihood that adoption will be realized within a reasonable time. (In re Zeth S. (2003) 31 Cal.4th 396, 406; In re Amelia S. (1991) 229 Cal.App.3d 1060, 1065.) In determining adoptability, the focus ordinarily is on whether a child's age, physical condition and emotional state will create difficulty in locating a family willing to adopt. (§ 366.22, subd. (b); In re David H. (1995) 33 Cal.App.4th 368, 378.) If the child is generally adoptable, we do not examine the suitability of the prospective adoptive home. (In re Scott M. (1993) 13 Cal.App.4th 839, 844.) However, "[w]hen a child is deemed adoptable only because a particular caretaker is willing to adopt, the analysis shifts from evaluating the characteristics of the child to 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, 1061.)
We review a court's finding that a minor is adoptable for substantial evidence. (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 uphold those findings. We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or reweigh the evidence. 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 finding. (In re Casey D., supra, 70 Cal.App.4th at pp. 52-53.) The appellant has the burden of showing that 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.)
B
The evidence shows that although S.L. has many positive characteristics, she also has many serious behavioral and emotional problems that made it difficult for Agency to find an adoptive home for her, and required Agency to seek several continuances while it tried to find an appropriate home. Some of S.L.'s behavior problems were so severe that several caregivers asked that she be removed from their homes. Although some of S.L.'s problem behaviors had improved over time with the help of therapy, structure and consistency, S.L. continued to be physically aggressive, having tantrums, refusing to follow directions and lying, even after being placed with the prospective adoptive parents. There is no evidence that any of the families that Agency identified as interested in adopting a child with S.L.'s characteristics were made aware of the serious nature of S.L.'s behavior problems, or that they were told that these problems would require that S.L. receive committed and constant supervision. The court recognized the difficulty of finding an appropriate adoptive home for S.L. when it ordered Agency to reassess its recommendation for adoption as S.L.'s permanent plan. Based on the record in this case, we cannot conclude that at the time of the section 366.26 hearing, there was clear and convincing evidence to support a finding that S.L. is generally adoptable.
However, the record does support a finding that S.L. is likely to be adopted because she has been placed with caregivers who are fully aware of her needs and are excited about the prospect of adopting her. (See In re Brandon T. (2008) 164 Cal.App.4th 1400, 1408-1409.) Where, as here, a child's adoptability is based on a particular caregiver's willingness to adopt, "the analysis shifts from evaluating the characteristics of the child to 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., supra, 150 Cal.App.4th at p. 80; see also In re Carl R., supra, 128 Cal.App.4th at pp. 1061-1062.) There was no indication in the assessment report, and no evidence presented at the selection and implementation hearing, that the prospective adoptive parents faced any legal impediment to adoption. Further, the evidence showed that S.L. is doing well in the prospective adoptive home and wants to stay with her new mommy and daddy. Even after having experienced S.L.'s difficult behaviors, the prospective adoptive parents have not wavered in their commitment to adopt her. Contrary to the parents' suggestion, the court was not required to defer an adoptability finding until the passage of time could ensure that S.L.'s "new and untested placement" would succeed. There was substantial evidence to support the court's finding that S.L. is likely to be adopted.
In a letter brief dated July 28, 2011, minor's counsel on appeal has informed this court that S.L. remains placed with the prospective adoptive family. Minor's counsel argues that affirming the juvenile court's orders is in S.L.'s best interests.
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C
The parents assert that Agency's assessment reports were deficient because they did not contain current information about S.L.'s "medical, developmental, scholastic, mental, and emotional status" as required by section 366.22, subdivision (c)(1)(C). However, the parents have forfeited any challenge to the adequacy of the assessment report by failing to raise this claim in the juvenile court. (In re A.A. (2008) 167 Cal.App.4th 1292, 1317; In re Brian P. (2002) 99 Cal.App.4th 616, 623; see also In re Brandon T., supra, 164 Cal.App.4th at p. 1411 [appellant failed to question witnesses at the selection and implementation hearing regarding impediments to adoption by minor's prospective adoptive parents].)
Even if this claim had not been forfeited, evidence of S.L.'s mental and emotional status was sufficiently complete and unambiguous to support the court's adoptability finding. Social worker Hills provided an assessment of adoption as S.L.'s permanent plan, explaining the reasons for being confident that S.L. would be adopted. Although the original assessment report was prepared in June 2010, and the last update on S.L. from a therapist was submitted in January 2010, the age of those reports goes to the weight of the evidence of adoptability, but does not negate a finding of adoptability. (Cf. In re Valerie W. (2008) 162 Cal.App.4th 1, 14 [deficiencies in assessment report were significantly egregious to undermine basis of court's decision].) Any deficiency was remedied by the information contained in Hills' addendum reports, including a report dated April 1, 2011, and the delivered service logs, and by Hills's testimony at the selection and implementation hearing. The most recent information showed that S.L. was reenrolled in therapy and was doing very well in her prospective adoptive home. The totality of evidence before the juvenile court supported a finding of adoptability notwithstanding the lack of a more recent professional evaluation of S.L.'s mental and emotional status.
D
The parents assert that Agency's assessment report failed to include information about the prospective adoptive parents as required by section 366.22, subdivision (c)(1)(D). Again, the parents have forfeited their right to challenge the sufficiency of the assessment report by failing to raise this claim in the juvenile court. (In re A.A., supra, 167 Cal.App.4th at p. 1317; In re Brian P., supra, 99 Cal.App.4th at p. 623.) Moreover, to the extent the parents challenge the suitability of the current caregivers to adopt, this is not a proper subject of inquiry at a selection and implementation hearing. (In re A.A., supra, at p. 1315.)
In any event, there was sufficient evidence of the suitability of the prospective adoptive parents and their ability to meet S.L.'s needs, as required by section 366.22, subdivision (c)(1)(D), to support the court's adoptability finding. That provision requires "[a] preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent . . . , to include a social history including screening for criminal records and prior referrals for child abuse or neglect, the capability to meet the child's needs, and the understanding of the legal and financial rights and responsibilities of adoption . . . ." (§ 366.22, subd. (c)(1)(D).) The prospective adoptive parents had an approved home study. A home study is meant to assess the suitability of a prospective adoptive applicant's home by requiring: results of a screening for any criminal background and referrals for child abuse or neglect; a determination of the applicant's commitment and capability to meet the needs of a child to be adopted; a determination that the applicant's home is safe; and the applicant's understanding of the legal and financial rights and responsibilities of adoption. (Cal. Code Regs., tit. 22, § 35180; see also Fam. Code, § 8811.5 [Agency may certify prospective adoptive parents by a preplacement evaluation that contains a finding that an individual is suited to be an adoptive parent].) In her addendum reports, social worker Hills specifically discussed the capability of the prospective adoptive parents to meet S.L.'s particular needs. S.L. had successfully transitioned to their home, referred to them as mommy and daddy, and was excited about living with them. The prospective adoptive parents were familiar with S.L.'s behavior problems and placement history, yet remained committed to adopting her. They consulted with S.L.'s former foster parents and daycare providers. When S.L. tested limits, the prospective adoptive parents provided her with consistency, structure and appropriate discipline, to which S.L. positively responded. The prospective adoptive parents were attending therapy with S.L., and they had access to case management, in-home services and respite care. Thus, in assessing S.L. as adoptable, Agency substantially complied with the requirements of section 366.22, subdivision (c)(1)(D).
DISPOSITION
The orders are affirmed.
AARON, J. WE CONCUR:
MCCONNELL, P. J.
IRION, J.