Opinion
D041409.
7-8-2003
In re ANTHONY H., et. al, Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. JAMIE A., Defendant and Appellant.
Jaime A., the mother of Anthony H. and Juan H., appeals the termination of her parental rights pursuant to Welfare and Institutions Code section 366.26. Jaime contends the adoption assessment report on her sons prepared by the San Diego County Health and Human Resources Agency (Agency) was inadequate and the juvenile court should have granted her request to continue the trial for a new assessment report. Jamie also contends the juvenile court erred by failing to apply the beneficial relationship ( § 366.26, subd. (c)(1) (A)) and/or the sibling relationship (id., subd. (c)(1)(E)) exceptions to adoption. Additionally, Jamie attacks the judgment by arguing adoption is not in the best interests of the children and claims once the court identified adoption as the permanent plan for Anthony and Juan, it should have found the children were difficult to place for adoption.
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Jamie and Pedro H. are the parents of Anthony, who was born in September, 1998, and Juan, who was born in January, 2000. Jamie is also the mother of Joseph A., who was born in October, 1994, and Nicholas H., who was born in April, 1997.
Pedro, who also is the father of Nicholas, is not a party to this appeal. Joseph and Nicholas are not subjects of the appeal, but are relevant to Jamies assignment of error regarding the sibling relationship exception to adoption. Agency filed dependency petitions on behalf of Joseph and Nicholas concurrently with the petitions filed on behalf of Anthony and Juan. Prior to the termination of Jamies parental rights to Anthony and Juan, the juvenile court had selected guardianship as the permanent plan for the two older boys and appointed their maternal aunt as their guardian.
In August 2000, Jamie, Pedro and the four boys were living with the maternal grandparents, Lynda A. and Richard A. Over the previous nine months, National City police officers had received more than 20 reports of domestic violence at the residence concerning physical confrontations between Lynda and Richard or Lynda and Jamie. On August 14, when police responded to a call, they found Lynda and Jamie both had scratches. No arrest was made, but the police made a referral to Agency because they were concerned that the children could be left alone with Lynda, who was often drunk.
On August 18, Agency filed petitions pursuant to section 300, subdivision (b) on behalf of the four children. The petitions alleged the children were at risk because Jamie and Lynda engaged in domestic violence in the presence of the children, and the children were often left with Lynda, who was a chronic alcoholic and unable to properly supervise the children. On August 31, Jamie and Pedro submitted to the section 300, subdivision (b) allegation in the petitions. The juvenile court took jurisdiction, finding the allegations to be true by clear and convincing evidence.
Jamie and Pedro visited the children on a weekly basis while they were at Polinsky Childrens Center. Initially, the parents were cooperative with Agency, which recommended the children be placed with the parents on a 60-day trial basis after they moved into their own apartment. On October 6 the court placed the children with the parents, ordered Agency to provide services and ordered the parents to comply with their reunification plans. In January 2001 the court added domestic violence treatment services to the reunification plans.
Jamie and Pedro did not follow through with the domestic violence component of their plan and were unresponsive to the support services worker. The social worker expressed concern about a lack of interaction between Jamie and the children and recommended an interactive parenting class for her. In the spring, Pedro moved out. On April 17, the court removed custody of the children from Pedro and ordered the children to be continued in their placement with Jamie.
In July and August, Agency received reports that Jamie had had altercations with her roommate and was neglecting the children. On one occasion, Jamie had left the children with Richard, the maternal grandfather, for more than a week without calling or leaving clean clothes or food for them. The agency detained Joseph and Nicholas with their maternal aunt, Carolyn D., and detained Anthony with his grandparents, Richard and Lynda A. An order was issued to pick up Juan, who was reportedly with Jamie whose whereabouts were unknown. On August 24, Agency filed petitions pursuant to section 387, alleging Jamie was no longer able to provide proper care for the children because she assaulted her roommate, did not provide adequate food for the children and disappeared after leaving the children with a relative without providing any support or clothing for them. Jamie did not attend the hearing, but was represented by counsel. On September 7 Richard informed Agency that Jamie had brought Juan to his residence on August 23, but did not give him a contact address or telephone number.
Agency believed Lynda had stopped drinking and Richard could handle the situation.
On September 12 the court sustained the section 387 petitions and removed custody from Jamie. The court ordered that the children be placed with relatives and Anthony and Juan remained with the grandparents.
At the next review hearing the following month, Agency reported the children were doing well. Jamie was regularly visiting Anthony and Juan at Richards residence. Anthony and Juan also were regularly visiting their older brothers, who continued to be placed with Carolyn, who lived three blocks from Richard. The court continued placement of the children with relatives and ordered Jamie to continue with her reunification plan.
In March 2002 Agency recommended terminating services to Jamie and setting a hearing pursuant to section 366.26. Agency reported Jamie had not done anything to comply with her reunification plan except completing a psychological evaluation; the social worker scheduled the evaluation and provided Jamie with transportation. Jamie was visiting Anthony and Juan once a week when she was not working.
On May 16, after a contested hearing, the court found that return of custody to Jamie would be detrimental to the children and reasonable services had been provided. The court continued placement with Jamies relatives, terminated services to Jamie and set a section 366.26 hearing for September 11.
The social worker opined Anthony and Juan were adoptable because of their young age, good health and sociable personalities. Agency reported Richard very much wanted to adopt Anthony and Juan and was undergoing an adoptive home study evaluation. Agency also noted that if the grandparents could not adopt there were approximately 30 approved families that would be interested in adopting two boys.
Jamie did not appear in court on September 11, and her attorney set the section 366.26 matter for trial.
On September 18 a social worker made an unannounced visit to the grandparents residence and found Jamie sleeping on the floor of the childrens room and her boyfriend trying to hide in a closet. The grandparents previously had been warned not to allow Jamie to spend the night, but they said she just needed a place to stay. The social worker reported Jamies interactions with the children that morning were strained. Jamie asked the children to come to her but they refused. When she would reach out and try to hold them, they arched their backs and tried to get away. Anthony refused to hug Jamie even when she promised to let him go, and Juan hid under a table and kicked Jamie on her feet. Neither child had a reaction when Jamie left the room.
On October 1 police removed Anthony and Juan from the grandparents residence after finding the children were left alone with Lynda, who was distraught and unable to care for them. Agency filed petitions pursuant to section 387, alleging the grandparents were no longer able to provide adequate care and supervision.
Richard had left the children alone with Lynda after his doctor instructed him to go to the hospital because of a possible bleeding ulcer.
At the close of a contested hearing on November 18, the court found the section 387 petition was true, placed the children in licensed foster care and directed the social worker to facilitate visits for Anthony and Juan with their older siblings.
At a December 5 supervised family visit at a McDonalds restaurant, Anthony and Juan were expressionless when they saw Jamie and did not go up to greet her. They showed little interest in Jamie. Anthony had be tricked in order for Jamie to hug him and he struggled to get away. When Joseph and Nicholas arrived 15 minutes later, Anthony approached them, said "hi" and showed them his toy. But later Anthony played by himself. Juan did not interact with Joseph and Nicholas at all during visit; instead, he stayed near relatives to eat. Anthony said goodbye to his mother and brothers and looked sad to leave. Juan readily grabbed the social workers hand and left with no concerns.
On December 10 Agency placed Anthony and Juan in a prospective adoptive foster home.
Before the contested section 366.26 hearing on December 17 and 20, Jamie, Richard and Carolyn filed section 388 petitions seeking to express their disagreement with adoption. Over objection, the court ruled the petitions could be heard at the contested section 366.26 hearing. The court also granted Richards request for de facto parent status. The court denied Jamies request for a continuance of the section 366.26 hearing based on purported deficiencies of Agencys adoption assessment report, which was prepared four months earlier.
Carolyn, who has known Anthony and Juan their entire lives, testified they would be distraught if they were permanently separated from their older brothers. Carolyn said the brothers visited at least once during the week and often twice, and all of them were close.
Social worker Deborah Keck opined Anthony and Juan were bonded to each other and it would be detrimental to separate them. She would not consider separating them and placing them in different adoptive homes.
The social worker opined Anthony and Juan were bonded with Richard and it was in the boys best interests to continue that relationship as long as Richard acted appropriately. Keck thought the boys would experience sadness if they were placed in an adoptive home that did not allow contact, but the sadness would be short term.
Keck opined Anthony would initially be sad and Juan would be too but to a lesser extent if their relationship with Joseph and Nicholas were severed. However, Keck did not believe severance of the sibling relationship with the older brothers would cause Anthony and Juan to have emotional problems or otherwise be detrimental to them. Keck pointed out the foster mother reported that Anthony and Juan did not act out after the visits and did not mention their birth family between visits.
Keck also testified the prospective adoptive family with whom Anthony and Juan had been placed was open to the boys having continued contact with their birth relatives. Also, there were 26 other approved prospective families interested in adopting two children like Anthony and Juan, and these families had indicated they were open to the boys having ongoing contact with their relatives.
Keck did not consider Anthonys and Juans language developmental delays an impediment to their being adopted and noted that they were using words.
DISCUSSION
I. Adequacy of Adoption Assessment Report
Jamie contends Agencys adoption assessment report, which was prepared four months before the contested section 366.26 hearing, was inadequate and the court erred in relying upon the deficient report in terminating her parental rights. Specifically, Jamie claims the report was deficient for not including information regarding her contact with Anthony and Juan and the boys contact with other maternal relatives. The contention is without merit.
In ordering a section 366.26 hearing, the juvenile court must also direct the social services agency to prepare an adoption assessment report, which, among other things, includes the amount of contact the child has had with his or her parents and other relatives. (§ 366.21, subd. (i); see also §§ 361.5, subd. (g), 366.22, sub. (b).)
Section 366.21, subdivision (i) provides: "Whenever a court orders that a hearing pursuant to Section 366.26 shall be held, it shall direct the agency supervising the child . . . to prepare an assessment that shall include: [P] (1) Current search efforts for an absent parent or parents . . . . [P] (2) A review of the amount and nature of any contact between the child and his or her parents . . . and other members of his or her extended family since time of placement. Although the extended family of each child shall be reviewed on a case-by-case basis, extended family for the purpose of this paragraph shall include, but not be limited to, the childs siblings, grandparents, aunts, and uncles. [P] (3) An evaluation of the childs medical, developmental, scholastic, mental, and emotional status. [P] (4) A preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent or guardian, particularly the caretaker, to include a social history including screening for criminal records and prior referrals for child abuse or neglect, the capability to meet the childs needs, and the understanding of the legal and financial rights and responsibilities of adoption and guardianship. . . . [P] (5) The relationship of the child to any identified prospective adoptive parent or legal guardian, the duration and character of the relationship, the motivation for seeking adoption or guardianship, and a statement from the child concerning placement and the adoption or guardianship, unless the childs age or physical, emotional, or other condition precludes his or her meaningful response, and if so, a description of the condition. [P] (6) An analysis of the likelihood that the child will be adopted if parental rights are terminated." (See also §§ 361.5, subd. (g), 366.22, subd. (b).)
Agency prepared only one formal adoption assessment report, which was filed on August 26 in anticipation of a section 366.26 hearing on September 11, the original scheduled date for the hearing. Social worker Keck prepared the report and signed it on August 21. At that time, Anthony and Juan had been placed with their grandparents for more than a year, were in good health and looked to the grandparents to meet their daily needs as well as for structure, nurturing, support and protection. The grandfather was meeting the childrens needs and wanted to adopt them.
The events of the ensuing months obviously made the assessment report partially out-of-date as Anthony and Juan were removed from the grandparents residence and eventually placed in a nonrelative prospective adoptive home. Agency supplemented the original report with addendum reports on September 31, October 8, November 7, and December 11. Agency also supplied the court with new information in an extensive detention report filed October 4 and a 15-day review report filed December 18.
Additionally, social worker Keck testified at length during the section 366.26 hearing on the relationships Anthony and Juan had with other members of their family.
We find no error. The purpose of the assessment report is to provide the juvenile court with the information necessary to determine whether adoption is in a childs best interests. (See In re Dakota S. (2000) 85 Cal.App.4th 494, 496 [guardianship].) Agency satisfied this purpose when it supplied the addendum and other reports to be considered in conjunction with the original assessment report. The law does not require the information to be packaged in a single report when later events change the underlying circumstances of the childs situation. Agency substantially complied with the statutory requirement of sections 361.5, subdivision (g), 366.21, subdivision (i), and 366.22, subdivision (b). That is all that is required. (In re Diana G. (1992) 10 Cal.App.4th 1468, 1481; In re John F. (1994) 27 Cal.App.4th 1365, 1378.)
We reject the claim Agency did not adequately report the contacts Anthony and Juan had with their mother and other relatives. The assessment report sufficiently related the history of the case, including the fact Jamie had custody of all four children for almost one year in the early period of the dependency (Oct. 2000 — Aug. 2001). The report also discussed the amount and nature of Jamies visitation with Anthony and Juan since then, Richards relationship to Anthony and Juan, and Anthonys and Juans relationship with their older siblings. Updated information about Jamies contact with her sons and the boys contact with their older siblings was supplied in addendum reports.
Even if we were to find the assessment report and supplemental reports inadequate, Jamie cannot prevail because she cannot show prejudice. The reports, coupled with the testimony by Keck, the maternal grandparent and the maternal aunt, constituted substantial evidence supporting the trial courts findings that Anthony and Juan were likely to be adopted and adoption was in their best interests. Where there is other evidence to support the finding the child is likely to be adopted, deficiencies in a permanency assessment constitute harmless error. (In re Dakota S., supra, 85 Cal.App.4th at p. 496.) "Even if the assessment is incomplete in some respects, the court will look to the totality of the evidence; deficiencies will go to the weight of the evidence . . . ." (In re John F., supra, 27 Cal.App.4th at p.1378.) Even where the responsible agency failed altogether to provide the juvenile court with the preliminary adoption assessment, no reversible error was found because the juvenile court received, in other forms, the information that should have been contained in the preliminary assessment. (In re Dakota S., at pp. 496, 503.)
The court did not abuse its discretion in denying Jamies request for a continuance so that a new assessment report could be prepared. There was no need for a new report since the court had been supplied with all the necessary information in the various reports.
II. Court Properly Found No Exception to Adoption
Jamie contends the juvenile court erred by not finding two of the statutory exceptions to adoption — the beneficial relationship exception ( § 366.26, subd. (c)(1)(A)) and the sibling relationship exception ( § 366.26, subd. (c)(1)(E)). She also urges us to adopt a nonstatutory best interests exception in this case. We find no error and decline to create a new exception to adoption.
On appeal, we determine if there is any substantial evidence, contradicted or uncontradicted, to support the conclusions of the juvenile court. All conflicts are resolved in favor of the prevailing party and all legitimate inferences are drawn to uphold the lower courts ruling. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379.)
Adoption is the permanent plan preferred by the Legislature. (In re Derek W. (1999) 73 Cal.App.4th 823, 826.) At the selection and implementation hearing, the court must terminate parental rights if the child is found likely to be adopted. (§ 366.26, subd. (c)(1).)
The parent bears the burden to establish by a preponderance of the evidence that an exception to the statutory preference for adoption applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345; § 366.26, subd. (c)(1); Evid. Code, § 115.)
Beneficial Relationship Exception
The beneficial relationship exception is codified at section 366.26, subdivision (c)(1)(A), which provides that once the court finds the child is likely to be adopted, the court shall not terminate parental rights if it finds termination would be detrimental to the child because "the parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship."
Section 366.26, subdivision (c)(1)(A) applies only if both prongs are met namely, the parent has maintained regular visitation and contact, and continuing the relationship between parent and child will benefit the child.
In discussing the beneficial relationship exception to adoption in In re Autumn H. (1994) 27 Cal.App.4th 567, 575, this court explained that to come within this exception, a parent must show the "relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents." (Italics added.) The court must balance "the strength and quality of the . . . parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer." (Ibid.) In balancing these interests, relevant factors include "the age of the child, the portion of the childs life spent in the parents custody, the positive or negative effect of interaction between parent and child, and the childs particular needs . . . ." (Id . at p. 576.) Further, the parent must show the benefit arises from a parental rather than caretaker or friendly visitor relationship. We reaffirmed this balancing test, explaining the standard "reflects the legislative intent that adoption should be ordered unless exceptional circumstances exist." (In re Casey D. (1999) 70 Cal.App.4th 38, 51, italics added; see also In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1420 [exception does not apply when a parent "has frequent contact with [dependent child] but does not stand in a parental role to the child"]; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324 [frequently visiting mother occupied pleasant place in minors life, but did not have parental role].)
Agency concedes Jaime maintained "fairly regular contact" with Anthony and Juan during the months preceding the section 366.26 hearing. However, the record contains substantial evidence Jamie did not meet the second prong of section 366.26, subdivision (c)(1)(A) — namely, that the benefit from continuing the relationship between her and the two young boys would outweigh the benefit they would gain by being in a permanent adoptive home.
The juvenile court had ample basis to find that Jamie did not have a parental relationship with the boys but rather was more like a friendly visitor to them. Anthony and Juan were shy and hesitant around the mother and did not rely on her to have their needs met. The boys sometimes had to be coaxed to say hello to Jamie, showed little or no affection toward her, and appeared not to want to interact with her. Eventually, Anthony and Juan became more responsive to Jamie and even appeared to enjoy the visits, but that was the extent of it. Anthony and Juan did not look to Jamie to meet their needs. The relationship between Jamie and the boys fell far short of the beneficial (to the child) relationship that section 366.26, subdivision (c)(1)(A) envisions. The juvenile court applied the correct balancing analysis to conclude whatever benefit Anthony and Juan would gain from continuing their relationship with Jamie would be outweighed by the stability, security and sense of belonging that would be conveyed to them by a permanent adoptive home. Substantial evidence supported the courts finding that the beneficial relationship exception to adoption did not apply.
Sibling Relationship Exception
Asserting that Anthony and Juan had a strong emotional bond with their older brothers and ongoing contact with them was in Anthonys and Juans best interests, Jamie contends the sibling relationship of section 366.26, subdivision (c)(1)(E) also applied to compel a permanent plan other than adoption. We disagree.
Subdivision (c)(1)(E) was added to section 366.26 effective January 2002 to include a fifth enumerated exception to adoption relating to sibling relations. "Thus, adoption shall now be ordered unless the court finds a compelling reason for determining that termination [of parental rights] would be detrimental to the child because there would be substantial interference with a childs sibling relationship . . . . (§ 366.26, subd. (c)(1)(E).)" (In re Daniel H. (2002) 99 Cal.App.4th 804, 811; see also In re L. Y. L. (2002) 101 Cal.App.4th 942, 947-948; Carroll v. Superior Court (2002) 101 Cal.App.4th 1423, 1426, fn. 4.) Factors to be considered include the nature and extent of the relationship, whether the child was raised with a sibling in the same home, and whether the child has strong bonds with a sibling. ( § 366.26, subd. (c)(1)(E).) The court must also consider whether ongoing contact is in the childs best interest, including the childs long-term emotional interest, as compared to the benefit of legal permanence through adoption. (Ibid.)
The purpose of this exception is to preserve long— standing sibling relationships that serve as "anchors for dependent children whose lives are in turmoil." (In re Erik P. (2002) 104 Cal.App.4th 395, 404.) The sibling relationship exception contains "strong language creating a heavy burden for the party opposing adoption." (In re Daniel H., supra, 99 Cal.App.4th at p. 813.) It focuses exclusively on the benefits and burdens to the child being considered for adoption, not the other siblings. (Ibid.)
The threshold showing for the exception is that, with termination of parental rights, "there would be substantial interference with a childs sibling relationship . . . ." (§ 366.26, subd. (c)(1)(E); see also In re L. Y. L., supra, 101 Cal.App.4th at pp. 951-952.) The evidence in the record was that the prospective adoptive parents had expressed a willingness to continue contact with the birth family. Also, at that time Agency had identified 26 other approved adoptive families who indicated they were willing to maintain sibling contact. Thus, the adoption of Anthony and Juan by a single family — Agency represented that would be the only type of adoption it would attempt — would not substantially impair the maintenance or further development of the sibling relationship between Anthony and Juan on one hand and Joseph and Nicholas on the other. It was reasonable for the court to take Agency on its word not to split up Anthony and Juan in the adoptive process given the large number of available prospective adoptive families. As to the commitment by the identified adoptive families to facilitate sibling contact with the older boys, we acknowledge that an informal promise does not possess the force of a binding legal contract. However, evidence showing that all of the interested parties are willing to protect this sibling relationship carries weight in determining whether a substantial interference will result within the meaning of section 366.26, subdivision (c)(1)(E). Jamie did not meet her burden to show the sibling relationship between the younger boys and the older boys was threatened by the adoption order. (Id. at p. 952.)
We also conclude that even if Jamie had shown that termination of parental rights would substantially interfere with Anthonys and Juans relationship with the older brothers, she did not satisfy the next requirement — namely, showing the sibling relationship is so strong that its severance would be detrimental to Anthony and Juan. (In re L. Y. L., supra, 101 Cal.App.4th at p. 952.)
Once these requirements are met, the court must undertake a balancing analysis and decide whether the benefit to the child of continuing the sibling relationship outweighs the benefit of adoption. (In re L. Y. L., supra, 101 Cal.App.4th at pp. 952-953.)
By the time of the contested section 366.26 hearing, Anthony and Juan had lived apart from Joseph and Nicholas for 16 months. For the last two of those months, the visits between the two sets of brothers were sporadic. Anthony would interact with the older boys for part of the time, but Juan did not interact at all with them. Anthony and Juan separated easily from their older brothers when the visit was over. Although Carolyn testified Anthony and Juan would be distraught if the sibling relationship with the older brothers was terminated, there was substantial evidence that the benefits of adoption clearly outweighed any detriment in interfering with a sibling relationship, where the bond was not as strong as it once was.
While fostering sibling relationships is a desirable goal when siblings have been removed from parental custody, that goal must be viewed in the context of the overarching preference for permanency and stability for each child. "Some" benefit from the relationship does not outweigh the preference for adoption and the childs need for a parent. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1347-1348, 1350.)
Best Interests Exception
Because of Anthonys and Juans relationships with their grandfather and other maternal relatives, Jamie contends the juvenile court erred in failing to find that a permanent plan of adoption was not in the childrens best interests. The contention is without merit.
To the extent that Jamie is claiming that adoption was not in Anthonys and Juans best interest because they will lose all contact with their birth family, she is mistaken. As indicated above, the adoptive parents with whom the boys were placed indicated they would maintain contact with the birth family, and 26 other approved adoptive families indicated they would facilitate Anthony and Juan having contact with their older siblings. No contrary evidence was presented.
To the extent that Jamie is advocating a generalized "best interests" exception to adoption, she cannot prevail. The statutory mandate is that once the court finds by clear and convincing evidence that it is likely the minor will be adopted, the court must terminate parental rights unless one of the five exceptions applies. (See § 366.26, subd. (c)(1)(A)-(E).) There is no generalized "best interests" exception under section 366.26, subdivision (c)(1). (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164-1165.) As one court has stated, a parent may not prevent termination by showing "that in some general way the "interests" of the child will be fostered by an order based on some consideration not set forth in section 366.26." (In re Jasmine J. (1996) 46 Cal.App.4th 1802, 1808.)
Jamie claims in her reply brief that she is not seeking a generalized best interests exception, but rather is urging that a court must be required to consider whether termination of parental rights is in the childrens best interests. This is a distinction without a difference. Under our statutory scheme, adoption is the preferred permanent plan at this stage of the proceedings. Once the juvenile court has found, by clear and convincing evidence, the child is likely to be adopted, the court must select adoption unless it finds one of five specific exceptions applies. It is up to the Legislature to specify an additional exception — either a generalized best interests exception, or, as Jaime contends is warranted in this case, a grandparent or extended family relationship exception. This is something the Legislature, not we, can do.
III. Anthony and Juan Were Not "Difficult to Place"
Jamie contends the juvenile court, after identifying adoption as the permanent plan, erred in not finding Anthony and Juan difficult to place for adoption under section 366.26, subdivision (c)(3) because of their developmental delay and their sibling relationship. The contention is without merit.
Section 366.26, subdivision (c)(3) provides that a child who has a diagnosed medical, physical or mental handicap may be found by the court to be difficult to place for adoption, but only if there is no identified or available prospective adoptive parent. That is clearly not the situation here. Anthony and Juan had already been placed with an approved adoptive parents who not only wanted to adopt the boys, but also said they were open to continuing contact between the boys and their maternal relatives. Furthermore, Agency had identified 26 other approved prospective adoptive families who wanted to adopt two children like Anthony and Juan and would consider ongoing contact with birth relatives.
Section 366.26, subdivision (c)(3) provides: "If the court finds that termination of parental rights would not be detrimental to the child pursuant to paragraph (1) and that the child has a probability for adoption but is difficult to place for adoption and there is no identified or available prospective adoptive parent, the court may identify adoption as the permanent placement goal and without terminating parental rights, order that efforts be made to locate an appropriate adoptive family for the child within a period not to exceed 180 days. . . . For purposes of this section, a child may only be found to be difficult to place for adoption if there is no identified or available prospective adoptive parent for the child because of the childs membership in a sibling group, or the presence of a diagnosed medical, physical, or mental handicap, or the child is the age of seven years or more."
DISPOSITION
Affirmed.
CONCUR: NKE, Acting P.J. and AARON, J.