Opinion
NOT TO BE PUBLISHED
Superior Court County No. J1252225 of Santa Barbara, James E. Herman, Judge
Deborah Dentler, under appointment by the Court of Appeal, for Defendant and Appellant.
Karen B. Stalter, under appointment by the Court of Appeal, for Minors Adrienne L. and Alexander L.
Dennis A. Marshall, County Counsel, Sarah A. McElhinney and Toni Lorien, Deputies, for Plaintiff and Respondent.
COFFEE, J.
I.C. (mother) appeals from the order terminating her parental rights to her son, Anthony. (Welf. & Inst.Code, § 366.26.) Two of Anthony's siblings, Adrienne and Alexander, appeared in the section 366.26 proceedings below and filed a brief in support of mother in this court. Anthony's father is not a party to this appeal. Mother contends that the juvenile court lacked clear and convincing evidence to find that Anthony was likely to be adopted and that the sibling relationship exception of section 366.26, subdivision (c)(1)(B)(v), bars a termination of her parental rights. We affirm.
All further statutory references are to the Welfare and Institutions Code.
BACKGROUND
Anthony is mother's youngest child and the half-brother of her three older children, Angel, Adrienne and Alexander. They lived together in King City until August 2006, when mother moved to Santa Maria, to live with her boyfriend, Miguel R. Mother took three-year-old Anthony with her. Her older children remained in King City with their maternal grandmother, and joined mother in Santa Maria in June 2007.
On October 1, 2007, police authorities confirmed a report that mother wished to hurt herself with a knife. A police officer removed the knife from her home and arranged for mother to be sent to a hospital. The Santa Barbara County Department of Social Services, Child Welfare Services (CWS) detained Anthony, Alexander and Adrienne, who were then four, twelve and fourteen years of age, respectively.
On October 3, 2007, CWS filed a dependency petition for failure to protect and support Angel, Adrienne, Anthony and Alexander. (§ 300, subds. (b) & (g).) According to the October 4, 2007, detention report, the whereabouts of Anthony's alleged father were unknown, and the father of her other children was in state prison.
On October 4, 2007, the juvenile court issued a warrant for mother's oldest son, Angel, whose whereabouts were unknown. It ordered that Anthony, Adrienne and Alexander be detained.
On October 15, 2007, the juvenile court found that Francisco F. B. was Anthony's alleged father. His whereabouts remained unknown for the duration of the dependency proceedings.
CWS placed Anthony in a long-term foster care home. It placed Adrienne and Alexander in separate shelter homes. Angel was a section 602 ward of the juvenile court. On November 15, 2007, the court dismissed the petition as to Angel and found its allegations to be true as to Anthony, Adrienne and Alexander.
Anthony, Adrienne and Alexander lived apart throughout the dependency proceedings and visited each other, to the extent possible. Sometimes visiting was not feasible. For example, when the children were placed relatively far apart, Anthony's propensity for violent "carsick[ness]" made "the ride too difficult for him to endure."
In its November 3, 2008, status review report, CWS recommended that the juvenile court terminate mother's reunification services. On January 22, 2009, mother submitted to that recommendation, and the court terminated reunification services and set a section 366.26 hearing for May 18, 2009.
In the May 18, 2009, section 366.26 report, CWS recommended the termination of mother's parental rights. The section 366.26 hearing was continued several times.
Adrienne and Alexander asked the juvenile court to permit them to participate in the section 366.26 hearing. On October 26, 2009, the court granted their request.
Maternal grandmother requested that Anthony and his siblings be placed with her. CWS did not approve her request because she did not enforce boundaries necessary to provide a safe home. For example, she allowed her daughter's boyfriend to live in her home although he had a significant criminal history.
On September 2, 2010, after several more continuances, the juvenile court conducted a contested section 366.26 hearing and received several reports from CWS. The reports recognized that "the siblings have a close bond, and it is in their best interest... to continue contact with each other." Consequently, the parameters for an adoptive family for Anthony were that "he be allowed to have continued contact with his siblings as long as it is appropriate." (Italics added.) CWS expressed its commitment to "continuing and promoting contact between the children as long as it [was] in their best interests." (Italics added.) It further stated that adoption for Anthony need not be detrimental to his sibling relationship with Adrienne and Alexander if contact is promoted and is appropriate between the siblings." (Italics added.)
The September 2, 2010, addendum report indicated that the search for an adoptive home had identified multiple families who expressed an interest in adopting Anthony. CWS selected a family in Fresno with a history of supporting visits between its foster children and their birth families. The family stated that it was "very open to Anthony [having] continuing contact with his siblings." Anthony had several overnight visits with the family in early August. On one visit, he told their five-year-old son, "I'm going to tell my social worker to bring me back here, so I can live here and be part of the family." On the ride home from a visit, Anthony asked CSW social worker Dawn Manalo if he could come back to live with the family. Manalo said he could, and Anthony "raised his clenched fists in the air with happiness and said, 'YES!!!'" On August 18, 2010, CWS placed Anthony with the Fresno family. When he arrived at their home, Anthony ran to the family's mother and said, "This is the last home I'm gonna live in. I been in six homes."
During the September 2, 2010, section 366.26 hearing, counsel for mother and counsel for Adrienne and Alexander both argued that the sibling bond exception barred the termination of mother's parental rights, and the selection of adoption as the permanent plan for Anthony. Manalo testified about Anthony's articulated wish to stay in one home and his ongoing concern about where he would be living.
The juvenile court observed that Anthony's statements concerning his adoptive home reflected his happiness "to be in a place that finally looks like an adoptive home." It found that Anthony was adoptable and "that his need for permanency and stability [outweighed] the sibling bond in the sense of establishing a sibling exception to prevent adoption as the preferred plan."
DISCUSSION
Adoptability
Mother contends that the juvenile court erred when it found that Anthony was adoptable. We disagree.
"Although a finding of adoptability must be supported by clear and convincing evidence, it is nevertheless a low threshold: the court must merely determine that it is 'likely' that the child will be adopted within a reasonable time. [Citations.] We review that finding only to determine whether there is evidence, contested or uncontested, from which a reasonable court could reach that conclusion. It is irrelevant that there may be evidence which would support a contrary conclusion. [Citation.]" (In re K.B. (2009) 173 Cal.App.4th 1275, 1292.)
In challenging the adoptability finding, mother argues that Anthony was a "hard-to-place special needs child because he was seven years old, he was a member of a minority ethnic group, and he had three older siblings under court supervision (who all had severe behavioral and emotional issues as well as some physical challenges)." In so arguing, mother relies in large part upon a Social Security Act provision that defines children in out-of-home placement as special needs children, for purposes of determining eligibility for certain entitlement benefits. Eligibility for such benefits, does not, however, determine whether the children are adoptable. Moreover, the record does not suggest that Anthony had any special needs that rendered him unadoptable. The cited behavioral and emotional problems of his siblings do not render Anthony an unadoptable child.
In the September 2, 2010, addendum report, CWS social worker Manalo reported that Anthony was a "kind child, who demonstrates no evidence of physical or cognitive developmental delays" and generally presented as "happy and well adjusted." Throughout the period of his dependency, Anthony's foster parents, social worker, teachers, and other professionals described him as happy, bright, well-adjusted, developmentally on track, and a quick learner.
Before entering the dependency system, Anthony's excess weight impaired his mobility, and his ability to breathe and sleep. While in foster care, Anthony exercised and ate a healthy diet, and his clothing decreased considerably. As a result, his mobility, breathing and sleeping problems subsided substantially. Anthony's emotional issues were minimal under the circumstances facing him. He felt sad, but was not depressed, about missing his birth family. Because Anthony sometimes smashed toys when he became angry, his social worker requested that he receive therapy. Ordinarily, Anthony played well with other children, made new friends, and established bonds with foster family members. Social worker Manalo stated that Anthony was "eminently adoptable."
Mother further claims that there is not clear and convincing evidence to support the finding that there was a high probability that Anthony would be adopted within a reasonable time. We disagree. In making her claim, mother stresses that Anthony had "been moved six times" during his dependency; that he moved into his adoptive home shortly before the time of the section 366.26 hearing and his "proposed adoptive parents" were "never present in court" and barely knew Anthony and "had never met [his] siblings." She further cites the long time period between the termination of reunification services and the identification of his adoptive home.
The factors mother cites do not undermine the juvenile court's finding that Anthony would be adopted within a reasonable time. It is not even necessary that a child be placed in a prospective adoptive home, or has additional adoptive placements waiting in the wings, to be considered adoptable. (In re I.I. (2008) 168 Cal.App.4th 857, 870.) The identification of a prospective adoptive home "indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parents or by some other family. [Citation.]" (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1650; In re I.I., supra, at p. 870.)
The issue of adoptability focuses on whether the child's age, physical condition and emotional state make it difficult to find a person willing to adopt. (In re Sarah M., supra, 22 Cal.App.4th at p. 1649.) Applying those factors, there is more than clear and convincing evidence of the likelihood that Anthony would be adopted within a reasonable time. (In re Jennilee T. (1992) 3 Cal.App.4th 212, 223.)
Sibling Bond Exception
Mother also contends that the juvenile court erred by finding that the sibling bond exception does not preclude the termination of her parental rights. We disagree.
The purpose of the section 366.26 hearing is to "provide stable, permanent homes" for dependent children. (§ 366.26, subd. (b).) Adoption is the preferred permanent plan for dependent children. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1416.) A parent may avoid termination of parental rights by showing that a significant sibling relationship existed or exists, and that continued sibling contact may be of greater long-term emotional interest to the child than adoption. (In re Valerie A. (2007) 152 Cal.App.4th 987, 998.) Here the juvenile court concluded that Anthony's need for permanency and stability outweighed the sibling bond in the sense of establishing a sibling exception to prevent adoption as the preferred plan. (See In re Naomi P. (2005) 132 Cal.App.4th 808, 823.)
In challenging the finding regarding the sibling bond exception, mother asks this court to "hold that the [juvenile] court did not reasonably infer from the minimal (and altogether indirect) evidence about the prospective adoptive family that adoption by them would offer Anthony the kind of legal permanency that all parties agreed his best interest required: permanency with a guarantee (or virtual guarantee) of sibling contact." Mother's request focuses on what she and Anthony's siblings were trying to provide Anthony. CWS recognized that ideally Anthony would be placed and remain in a permanent home and maintain sibling contact. They did not agree that it was vital to "guarantee" or "virtually guarantee" permanency and ongoing sibling contact, or claim that it could be guaranteed. The court acknowledged that it was not possible to know with certainty that an adoptive family would allow such contact. (Compare In re C.B. (2010) 190 Cal.App.4th 102, 124-127 [juvenile court based decision to terminate parental rights in part by relying upon an unenforceable expectation that adoptive parents would permit birth parents to visit child].)
Mother stresses statements in CWS reports regarding Anthony's bond with his siblings and the importance of maintaining their contact, without acknowledging that CWS consistently qualified those statements by stating that such contact should be maintained as long as it was appropriate. She also emphasizes the court's discussion with parties during the hearing about supporting ongoing contact. Like the other factors mother cites, the court's encouragement of such contact does not establish that it erred by finding that the sibling bond exception did not preclude termination of mother's parental rights.
Mother's reply brief refers to her unsuccessful motion for consideration of post-judgment evidence and the possibility that "Anthony's last placement disrupted." She asserts that if that placement did disrupt, Anthony will "become a legal orphan who has been stripped of all the emotional and legal benefits of having a relationship with his siblings." Mother's motion offered inadmissible hearsay material concerning events that occurred, if at all, after the juvenile court made the findings that mother challenges.
Anthony made several statements to his social worker and his adoptive family that conveyed his strong desire to be placed with a family and remain with them permanently. Those statements and other evidence in the record support the juvenile court's finding that Anthony's need for permanency and stability outweighed the sibling bond in the sense of establishing a sibling exception to prevent adoption as the preferred plan.
DISPOSITION
The judgment is affirmed.
We concur: GILBERT, P.J., YEGAN, J.