Further, we note appellate courts citing the "based only" language of Sarah M., have addressed under what circumstances the trial court must consider whether a legal impediment to adoption by the prospective adoptive parent exists in deciding a dependent child's likelihood of being adopted. (See In re R.C. (2008) 169 Cal.App.4th 486, 494 [ 86 Cal.Rptr.3d 776]; In re Brandon T. (2008) 164 Cal.App.4th 1400, 1408-1410 [ 80 Cal.Rptr.3d 287]; In re Valerie W. (2008) 162 Cal.App.4th 1, 15 [ 75 Cal.Rptr.3d 86]; In re Helen W. (2007) 150 Cal.App.4th 71, 80 [ 57 Cal.Rptr.3d 914]; In re Carl R. (2005) 128 Cal.App.4th 1051, 1062 [ 27 Cal.Rptr.3d 612].) In these cases, the appellate courts have held the trial court must consider, in evaluating whether a child is likely to be adopted, any legal impediments to adoption when the child is adoptable only because a particular family is willing to adopt.
A. The Evidence at the Time of the Permanency Planning Hearing Supported Adoption as I.T.'s Permanent Plan "' "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.] 'In order for the court to select and implement adoption as the permanent plan, it must find, by clear and convincing evidence, the minor will likely be adopted if parental rights are terminated.' [Citations.]" (In re Brandon T. (2008) 164 Cal.App.4th 1400, 1408 (Brandon T.).) "Usually, the issue of adoptability focuses on the minor, 'e.g., whether the minor's age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor.' [Citation.] However, 'in some cases a minor who ordinarily might be considered unadoptable due to age, poor physical health, physical disability, or emotional instability is nonetheless likely to be adopted because a prospective adoptive family has been identified as willing to adopt the child.'
(Id. at p. 1650.)" (In re Brandon T. (2008) 164 Cal.App.4th 1400, 1408.) In such cases, where the finding of adoptability is based on the existence of a prospective adoptive parent, "an inquiry may be made into whether there is any legal impediment to adoption by that parent."
The Legislature's preferred permanent plan, moreover, is adoption. (In re Brandon T. (2008) 164 Cal.App.4th 1400, 1408.) "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.
"However, 'in some cases a minor who ordinarily might be considered unadoptable due to age, poor physical health, physical disability, or emotional instability is nonetheless likely to be adopted because a prospective adoptive family has been identified as willing to adopt the child.' " (In re Brandon T. (2008) 164 Cal.App.4th 1400, 1408 (Brandon T.).) "It is well established that if a child has special-needs which render the child not generally adoptable, a finding of adoptability can nevertheless be upheld if a prospective adoptive family has been identified as willing to adopt the child and the evidence supports the conclusion that it is reasonably likely that the child will in fact be adopted within a reasonable time."
When a child is not considered to be generally adoptable because of his or her age, poor physical health, physical disability, or emotional instability, he or she may be found to be specifically adoptable if a person has been identified who is willing to adopt the child. (Sarah M., supra, 22 Cal.App.4th at p. 1650; In re Brandon T. (2008) 164 Cal.App.4th 1400, 1408 (Brandon T.).) In specific adoptability situations, "'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.'"
We disagree. "'In order for the court to select and implement adoption as the permanent plan, it must find, by clear and convincing evidence, the minor will likely be adopted if parental rights are terminated.'" (In re Brandon T. (2008) 164 Cal.App.4th 1400, 1408.) Mother notes that at the hearing the trial court said, "[T]he court will sign the 366.26 report and adopt the attachments, also."
Although mother did not object in the juvenile court that she could not be required to present an offer of proof (People v. Champion (1995) 9 Cal.4th 879, 918 [failure to object in the trial court on due process grounds forfeits the issue on appeal]), the Department has not claimed in its respondent’s brief that mother has forfeited the issue (see Moore v. Shaw (2004) 116 Cal.App.4th 182, 200, fn. 10 [“Ordinarily, an appellant’s failure to raise an issue in its opening brief waives the issue on appeal”]; Garlington v. O’Leary (7th Cir. 1989) 879 F.2d 277, 282 [“a defense of waiver can itself be waived by not being raised”].) Adoption is the preferred permanent plan for a dependent child at a section 366.26 hearing. (In re Brandon T. (2008) 164 Cal.App.4th 1400, 1408.) To select adoption as the permanent plan and terminate parental rights, the juvenile court must find by clear and convincing evidence that the child is likely to be adopted within a reasonable time.
(In re E.W., supra, 170 Cal.App.4th at p. 402; see also, e.g., In re Cheyanne F., supra, 164 Cal.App.4th at p. 576; In re Brandon T. (2008) 164 Cal.App.4th 1400, 1414.) “An ICWA notice violation may be held harmless... when, even if notice had been given, the child would not have been found to be an Indian child, and hence the substantive provisions would not have applied [citations].”
(Guidelines, 44 Fed. Reg. at p. 67592, D.3(b), Standards of Evidence, italics added.) At least one California court has deferred to the Secretary’s interpretation of the ICWA and held the statute does not require the testimony of more than one qualified expert witness. (In re Brandon T. (2008) 164 Cal.App.4th 1400, 1411-1412.) This prohibition is not found in either the ICWA itself or the Guidelines.