Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, Cynthia Bashant, Judge. Super. Ct. No. J516106A, B, C.
BENKE, J.
Maria O. and G.S. (together, the parents) appeal a juvenile court judgment terminating their parental rights to their minor children Cristian O., Ricardo O. and G.O. (collectively, the minors) under Welfare and Institutions Code section 366.26. The parents contend: (1) the court erred by finding the minors were adoptable; (2) the beneficial parent-child relationship and beneficial sibling relationship exceptions to adoption applied to preclude terminating parental rights; and (3) the court could not terminate parental rights because 13-year-old Cristian objected to being adopted by anyone other than a relative. We conclude no substantial evidence supports the court's finding the minors are adoptable. Accordingly, we reverse the judgment.
Statutory references are to the Welfare and Institutions Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2006 11-year-old Cristian, seven-year-old Ricardo and four-year-old G.O. became dependents of the juvenile court under section 300, subdivisions (a) and (j) and were removed from parental custody after the court found Maria inflicted serious physical harm on Cristian while disciplining him. The minors came to the attention of the San Diego County Health and Human Services Agency (Agency) when Maria threw a can at Cristian, hitting him in the head and causing bruising and swelling. Cristian and Ricardo told the social worker that Maria often used physical discipline on them. G.S.'s whereabouts were initially unknown, but he was eventually located in prison. The court found he was the minors' presumed father.
Maria had been a dependent of the juvenile court in Santa Clara County from 1996 to 1997. She gave birth to Cristian when she was 14 years old.
The minors were placed at Polinsky Children's Center. Cristian and Ricardo were then moved to a group home. Several months later, Cristian and G.O. were placed together in a foster home and Ricardo was placed in a separate foster home. Cristian and Ricardo had behavior problems and the caregivers in both foster homes asked Agency to remove them. Ricardo and G.O. were placed together in another foster home but that placement also failed. By October 2007 all three minors were living together in foster care.
Maria's participation in court-ordered services, including visiting the minors, was inconsistent. At a 12-month review hearing, the court terminated services and set a section 366.26 selection and implementation hearing.
The social worker assessed the minors as adoptable. Cristian was described as physically healthy, developmentally on target and adaptable to change. He was smart, outgoing and able to develop new relationships. However, because he was 12 years old and part of a sibling group, his potential adoptive placements were limited. Further, the social worker noted Cristian's age, his behavior problems and his belief he would reunify with his parents presented a challenge to adoption. Several relatives were willing to adopt Cristian and his brothers, and three families outside of San Diego County were interested in adopting a sibling group like the minors. There was also one family in San Diego willing to adopt a child with Cristian's characteristics. Cristian told the social worker he did not want to be adopted by anyone other than a relative.
The social worker described Ricardo and G.O. as healthy and developing normally. Ricardo had a pleasant personality and was performing well academically. However, his adoption presented a challenge because he was part of a sibling group. In addition to one family in San Diego County willing to adopt a sibling group like these minors, there were 16 families interested in adopting Ricardo alone and 16 families interested in adopting G.O. alone. Ricardo preferred to be adopted by relatives. Both Ricardo and G.O. did not want to be separated from their brothers. The social worker believed the minors should remain together.
Maria was visiting the minors once a week, but her relationship with them was not parental. In the social worker's opinion, terminating parental rights would not be detrimental to the minors.
Cristian was removed from the home of his caregivers because of his behavior problems. The caregivers reported that Cristian was encouraging his brothers to misbehave so they could be returned to Maria's custody. Consequently, the caregivers asked to have Ricardo and G.O. moved to another placement.
The maternal grandmother, who lived in San Jose, expressed her willingness and commitment to adopt the minors. Cristian said he wanted to be adopted by her. If the maternal grandmother could not adopt, there were 11 out-of-county families willing to adopt all three minors, but none in San Diego County.
The maternal grandmother moved to San Diego, and on May 14, 2008, Cristian was placed with her. Ricardo and G.O. were placed with her a week later.
A contested selection and implementation hearing was held on May 30, 2008. Sonia Carbonell, Psy.D., testified about the results of a bonding study she conducted between Maria and the minors. Dr. Carbonell reported the minors were very attached to Maria and sought her attention and affection. In Dr. Carbonell's opinion, the minors would benefit from continuing their relationship with Maria in a therapeutic setting. Dr. Carbonell stated the minors were clearly attached to each other and wanted to be together. They had behavior problems, symptoms of depression and anxiety, and were "clearly in need of psychological services." Dr. Carbonell reported the minors were fearful of being adopted separately and they would be emotionally harmed if they did not have ongoing contact with each other.
Dr. Carbonell testified Maria had not made adequate progress in therapy, and she did not have the tools to provide discipline and structure for the minors. Although Maria loved her children, her feelings of inadequacy prevented her from believing she could provide for them. Dr. Carbonell stated Maria had not taken full responsibility for regaining custody of the minors.
Social worker Ernesto Escobar testified he was recommending adoption as the minors' permanent plans. He believed the minors were adoptable based on their individual characteristics. Escobar admitted the minors' behavior problems could impact their ability to be adopted. He also acknowledged the minors love Maria, recognize her as their mother and have a relationship with her. Nevertheless, Escobar believed the minors needed the permanence and security of adoption. The minors were living with the maternal grandmother, who wanted to adopt them. Although the maternal grandmother had not yet applied for a home study, Escobar had no concerns about her home being approved for adoptive placement. Cristian and Ricardo said they wanted to be adopted by the maternal grandmother. G.O. said he wants to stay with his grandmother. Escobar agreed with Dr. Carbonell's conclusion that the minors have a strong sibling bond.
In Escobar's opinion, terminating parental rights would cause some detriment to the minors, but the benefits of adoption outweighed that detriment. The minors did not look to Maria to meet their daily needs. They did not have a parent-child relationship with G.S. because he had been absent from their lives for a long time.
After considering the evidence and hearing argument of counsel, the court found the minors were adoptable and none of the exceptions of section 366.26, subdivision (c)(1) applied to preclude terminating parental rights.
DISCUSSION
I
The parents challenge the sufficiency of the evidence to support the court's finding the minors were likely to be adopted within a reasonable time. They assert the minors are not generally adoptable because they are part of a bonded sibling group, their negative behaviors have caused several placements to fail, and Cristian opposes adoption by anyone other than the maternal grandmother. The parents further assert that although the minors may be specifically adoptable by the maternal grandmother, Agency's assessment report contained insufficient information about the appropriateness of the grandmother's home for adoptive placement and there may be legal impediments to her ability to adopt.
A
When reviewing a court's finding a minor is adoptable, we apply the substantial evidence test. (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 must uphold those findings. We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or weigh the evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 52.) Rather, we view the record favorably to the juvenile court's order and affirm the order even if there is substantial evidence supporting a contrary conclusion. (Id. at pp. 52-53.) The appellant has the burden of showing 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.)
The court can terminate parental rights only if it determines by clear and convincing evidence the minor is likely to be adopted. (§ 366. 26, subd. (c)(1).) The statute requires clear and convincing evidence of the likelihood 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; In re Valerie W. (2008) 162 Cal.App.4th 1, 13.)
B
Here, the uncontradicted evidence showed the minors are a bonded sibling set and will be emotionally harmed if separated. Thus, they are generally adoptable only to the extent each of them, as part of this sibling set, is generally adoptable. Although the social worker reported there were between three and 11 out-of-county families interested in adopting a sibling set like these minors, this evidence ignores the fact Cristian consistently objected to adoption by anyone other than a family member. (See § 366.26, subd. (c)(1)(B)(ii) [exception to terminating parental rights applies if minor at least 12 years old objects]; § 366.26, subd. (h)(1) [court must consider wishes of child at selection and implementation hearing]; Fam. Code, § 8602 [consent of a child over the age of 12 is necessary to the child's adoption].) At the time of the hearing, Cristian was 13 years old and had been in seven placements. Despite his positive traits, he was anxious and depressed, "and clearly in need of psychological services." When placed with nonrelatives, Cristian was argumentative and defiant, manifesting his utmost desire to live with family. He successfully encouraged his brothers to misbehave in their placements so they could all be together. As the social worker acknowledged, potential adoptive placements for the minors were limited and the minors' behavior could impact their adoptability. The social worker also admitted that successfully placing the minors in a nonrelative adoptive home was "difficult" given their numerous failed placements, their negative behaviors and their willingness to sabotage any placement in order to remain together and be with family. The record supports an inference that permanence and stability for these minors can only be achieved if they are adopted together by a relative. Clear and convincing evidence does not support a finding the minors, as a sibling set, are generally adoptable.
Minors' counsel on appeal informs us the minors "strenuously object to being separated into nonrelative adoptive placements," and are concerned that if the grandmother cannot adopt them, "they have no legal means to protect their interest in maintaining their familial relationships."
C
The minors' wish to be with family was realized when, one week before the selection and implementation hearing, all three were living with the maternal grandmother, who is committed to adopting them. Because the minors are specifically adoptable, the analysis shifts from evaluating their characteristics to determining whether there is any legal impediment to the grandmother's adoption and whether she is able to meet their needs. (In re Helen W., supra, 150 Cal.App.4th at p. 80.) In this regard, a complete and proper assessment report is essential because any legal or other impediment to adoption would preclude the very basis on which a proper finding of adoptability is premised. (In re Brandon T. (2008) 164 Cal.App.4th 1400, 1409.)
At the time the court made its adoptability finding, no home study had been initiated. The grandmother had recently moved to San Diego and was living with the maternal aunt and uncle. The social worker was unsure whether the grandmother would "stay there or move out of the home." The assessment of the grandmother consisted of the social worker's testimony that "[b]ased on the information we have today, I will say that nothing will indicate that she will not get an approved home study." However, no screening had occurred regarding prior referrals for child abuse or neglect (§§ 366.21, subd. (i)(1)(D), 366.22, subd. (c)(1)(D)), information that was especially crucial given Maria's prior status as a dependent of the court. Further, the minors had lived with the grandmother for less than two weeks, providing no basis on which to assess her capability to meet their needs. (Ibid.) Under these circumstances, the social worker's testimony that the grandmother would be approved to adopt was "speculation," thus undermining the court's adoptability finding. (See In re Salvador M. (2005) 133 Cal.App.4th 1415, 1422 [in the absence of home study, social worker could not predict grandparents would be approved to adopt]; In re Valerie W., supra, 162 Cal.App.4th at p. 15 [deficiencies in assessment report were significantly egregious to undermine basis of court's decision as to minors' adoptability].) Because no substantial evidence supports a finding the minors are likely to be adopted by the grandmother within a reasonable time, the judgment terminating parental rights must be reversed.
We agree with the position of minors' counsel on appeal that it is critically important for the minors to remain together in their placement with the grandmother. Adoption by another family, particularly one out of San Diego County and away from relatives, would be contrary to the minors' best interests. On remand, the court must determine whether the minors are adoptable by the grandmother based on an assessment report that fully complies with statutory requirements, and any other evidence the parties may present. If the grandmother is unable to adopt, the court will then have the opportunity to consider permanent plans other than adoption.
In light of our disposition reversing the judgment, we need not address the parents' other contentions.
DISPOSITION
The judgment is reversed. The court is directed to order Agency to prepare a complete assessment report. The court is further directed to hold a new hearing under section 366.26 to select and implement a permanent plan for the minors.
WE CONCUR: McCONNELL, P.J., AARON, J.