Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. Nos. JD16808 & JD16809
RUSHING, P.J.
Appellant R.S. appeals an order of the juvenile court terminating his parental rights as to his daughters, Ad. S. and Al. S., and freeing them for adoption. (Wel. & Inst. Code, § 366.26, subd. (c)(1).) Appellant asserts the court erred in terminating parental rights as to Ad. S, because it lacked clear and convincing evidence of her adoptability, and it failed to apply the exception for residential treatment. (§ 366.26, subd. (c)(1)(B)(iii).) In addition, appellant asserts if this court finds the juvenile court erred in terminating his parental rights as to Ad. S., we must also find the termination as to Al. S. was in error under the sibling exception. (§ 366.26, subd. (c)(1)(B)(v).)
All further statutory references are to the Welfare and Institutions Code.
STATEMENT OF THE FACTS AND CASE
In February 2006, the Santa Clara County Department of Family & Children’s Services (the Department) filed a juvenile dependency petition under Welfare and Institutions Code, section 300 on behalf of two sisters, Ad. S. and Al. S., and their half brother N., because of drug use in the home and domestic abuse. After both parents tested positive for methamphetamine use, the children were removed from the home, and the juvenile court ordered the children detained in March 2006. At the jurisdiction/disposition hearing in April 2006, the court found the petitions true, adjudged the children dependents of the court, and ordered the parents to participate in family reunification services.
Ad. S. and Al. S. are the subjects of this appeal.
At the six-month review hearing, social worker Sharon Jenkins, who had been assigned to the case, recommended continued reunification services for the parents who had not made much progress in their case plans. Both parents acknowledged at the hearing that they needed to stop using methamphetamine. At the time, the sisters were living in a foster home in Santa Cruz, and were receiving therapy at Eastfield Ming Quong (EMQ).
At the next six-month hearing in November 2006, the court continued reunification services. At the 12-month review, Jenkins recommended that the court terminate services for the parents. The parents requested a contested hearing in August 2007.
At the contested hearing, the court adopted the social worker’s recommendations, terminated reunification services, and set a hearing to determine a permanent plan for the girls. The court also approved the social worker’s request to place Ad. S. in residential placement at EMQ. Al. S. stayed with fost-adopt parents, Tom and Rita D. Tom and Rita agreed to participate in Ad. S.’s treatment at EMQ with the goal of having her live in their home permanently.
The hearing on the girls’ permanent plan started on May 28, 2008. During the time immediately prior to the hearing, the social worker submitted an assessment report summarizing the girls’ medical, developmental, educational and mental conditions. Jenkins reported both girls were in good health, Al. S. was experiencing some speech delays, but was progressing in speech therapy. Ad. S. was in residential treatment at EMQ, where she was also participating in weekly family therapy with fost-adopt parents, Tom and Rita. The plan was that Ad. S. would return to Tom and Rita’s home after her treatment at EMQ was completed. Ad. S.’s therapist estimated that she would be discharged from treatment at EMQ in August 2008.
Jenkins testified at the hearing regarding the permanent plan for the girls. She stated that both girls had made tremendous progress in their therapy, and that they were bright, resilient and beautiful. Jenkins testified that both were likely to be adopted by the fost-adopt parents, who were experienced and who had special training to meet their needs. Jenkins also stated that the girls’ characteristics were such that they were adoptable by other parents as well.
Appellant testified at the hearing that he did not agree with Jenkins’s recommendation to terminate his parental rights, and that he wanted to continue to be the girls’ father. Appellant stated that he visited the girls every weekend during reunification services, except during the time he was incarcerated for drug charges. He last saw the girls in December 2007 before he went into custody, but continued to communicate with them via cards and letters.
At the conclusion of the hearing, the court took the matter under submission. On July 21, 2008, the court approved the request that Ad. S. be discharged from EMQ, and be placed in Tom and Rita’s home, effective July 19, 2008.
On July 29, 2008, the court terminated parental rights, and selected adoption as the permanent plan. Appellant filed a notice of appeal on August 6, 2008.
DISCUSSION
Appellant claims that there was insufficient evidence before the juvenile court to support its determination that Ad. S. was adoptable, and that the trial court erred in failing to apply the residential treatment exception pursuant to section 366.26, subdivision (c)(1)(B)(iii).
Finding of Adoptability
The juvenile court was required to find by clear and convincing evidence that the children were likely to be adopted in order to terminate parental rights. (§ 366.26, subd. (c)(1).) Our role is to decide whether the record contains substantial evidence from which the lower court could find clear and convincing evidence requiring the termination of parental rights. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1153-1154.)
“ ‘Thus, on appeal from a judgment required to be based upon clear and convincing evidence, “the clear and convincing test disappears . . . [and] the usual rule of conflicting evidence is applied, giving full effect to the respondent’s evidence, however slight, and disregarding the appellant’s evidence, however strong.” [Citation.]’ ” (In re J. I. (2003) 108 Cal.App.4th 903, 911.)
A determination of adoptability is the result of the juvenile court’s focus on Ad. S., including whether her “age, physical condition, and emotional state may make it difficult to find an adoptive family.” (In re Erik P. (2002) 104 Cal.App.4th 395, 400.) The identification of a prospective adoptive family is not determinative of a child’s adoptability, though it is a factor to be considered. “ ‘[I]t is not necessary that the minor already be in a potential adoptive home or that there be a proposed adoptive parent “waiting in the wings.” ’ ” (In re David H. (1995) 33 Cal.App.4th 368, 378.)
Appellant emphasizes that Ad. S. had been removed from “at least two prior failed foster placements because of their special emotional and mental health needs.” Appellant asserts the social worker’s opinion that Ad. S.’s placement in another identified therapeutic fost-adopt home would be successful is without merit, essentially because she had been wrong before. However, the fact that Ad. S. did not succeed in the previous placements does not show a predilection for future failure. Indeed, the social worker testified that the prospective adoptive parents, Tom and Rita, were much better equipped to handle Ad. S.’s special needs than those previous placements.
Moreover, there was substantial evidence before the juvenile court that Ad. S. was adoptable. Jenkins testified that Ad. S. was physically healthy, with no development delays. Ad. S. was emotionally resilient and bright. According to Jenkins, Ad. S. was progressing well in school, and was achieving her treatment goals in her residential treatment program at EMQ.
In addition, there was a family interested in adopting Ad. S. and her sister. During the time Ad. S. was in residential treatment, her sister, Al. S. was living in the fost-adopt home of Tom and Rita D.. According to Jenkins, the prospective foster parents were committed to Ad. S., and participated in family therapy with her twice a month. Both Ad. S. and Al. S were comfortable and affectionate with their foster parents
While a finding of adoptability does not require a family ready to adopt the child (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.), “the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor’s age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parent’s willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family.’ [Citation.]” (In re Lukas B., supra, 79 Cal.App.4th 1145, 1154; In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.)
Here, in light of prospective adoptive parents’ willingness to adopt Ad. S., coupled with the positive evidence of her development, progress in treatment and personality, we find substantial evidence exists to support the court’s determination of adoptability.
Residential Treatment Exception under section 366.26, subdivision (c)(1)(B)(iii)
Appellant argues that Ad.S. came within the exception to termination of parental rights found in section 366.26, subdivision (c)(1)(B)(iii) because the minor was in a residential treatment facility and not adoptable.
“ ‘At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must make one of four possible alternative permanent plans for a minor child. . . . The permanent plan preferred by the Legislature is adoption.’ [Citation.] [Citations.] If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which it would be detrimental to the child.” (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.) There are only limited circumstances which permit the court to find a “compelling reason for determining that termination would be detrimental to the child . . . .” (§ 366.26, subd. (c)(1)(B).) The party claiming the exception has the burden of establishing the existence of any circumstances which constitute an exception to termination of parental rights. (In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373; Cal. Rules of Court, rule 5.725(e)(3); Evid. Code, § 500.)
One of the circumstances in which termination of parental rights would be detrimental to the minor is: “The child is placed in a residential treatment facility, adoption is unlikely or undesirable, and continuation of parental rights will not prevent finding the child a permanent family placement if the parents cannot resume custody when residential care is no longer needed.” (§ 366.26, subd . (c)(1)(B)(iii).)
Here, the court specifically found that Ad. S. was likely to be adopted, and commented that adoptability in the current case was “desirable.” Under these circumstances, appellant cannot establish the second part of the three-part requirement for the residential treatment exception, that adoption is unlikely or undesirable. In addition, by the time the court ordered the termination of parental rights on July 29, 2008, Ad. S. was already discharged from the residential treatment facility, and was placed in the prospective adoptive home. Therefore, the residential treatment requirement for the exception was also not met in this case. Thus, two of the key conditions for application of the exception did not exist and the court could not employ it to avoid termination of parent rights in this case.
We find the court did not err in terminating appellant’s parental rights as to Ad. S. As such, we need not consider appellant’s alternative argument regarding his parental rights to Al. S., and her adoptability under the sibling exception. (§ 366.26, subd. (c)(1)(B)(v).)
DISPOSITION
The judgment is affirmed
WE CONCUR, PREMO, J, ELIA, J.