Opinion
B201279
4-16-2008
In re HAYLEE M., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. RONA W. et al., Defendants and Appellants.
Michael A. Salazar, under appointment by the Court of Appeal, for James M. Kimberly A. Knill, under appointment by the Court of Appeal, for Rona W. Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Tracey F. Dodds, Principal Deputy County Counsel, for Los Angeles County Department of Children and Family Services.
NOT TO BE PUBLISHED
Rona W. and James M., the parents of Haylee M., April M. and Gabriel M., appeal from the juvenile courts orders summarily denying Jamess petition for modification pursuant to Welfare and Institutions Code section 388 and terminating their parental rights (§ 366.26). We affirm.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
1. Dependency Proceedings for Haylee and April
April was born in 2005 with a positive toxicology screen for cocaine. Several days after her birth, the Los Angeles County Department of Children and Family Services (Department) petitioned under section 300 to have both April and her five-year-old sister Haylee declared dependent children of the juvenile court, alleging Rona had a history of illicit drug use and was a current abuser of cocaine and marijuana, which rendered her incapable of providing the children with regular care and supervision. An amended petition added the allegation James, the presumed father of the two children, was also a current user of cocaine and marijuana, making him incapable of providing regular care for the children. The amended petition also alleged James had recently left three of Haylee and Aprils siblings at a police station without making provisions for their ongoing care and supervision.
Ronas two older children, Marcus and J. W., were already dependents of the juvenile court and were receiving permanency planning services. James is not the father of these children.
Rona is not the mother of these children, James IV, T. M. and M. M. The three children were detained by the Department and are the subject of juvenile court orders in a companion dependency case. They are not parties to this appeal.
Following Ronas and Jamess waivers of rights and agreement to submit the matter on the social workers reports and other documents (§ 355; see In re Malinda S. (1990) 51 Cal.3d 368), on May 2, 2005 the court sustained the amended petition, declared the children to be dependents of the court and ordered the Department to provide family reunification services. Both Rona and James were ordered to participate in parenting classes, individual counseling and drug rehabilitation programs with random testing; and Rona was also ordered to attend domestic violence counseling.
In its report for the six-month review hearing (§ 366.21, subd. (e)) the Department indicated neither Rona nor James had contacted the Departments social worker or the childrens caretaker, visited the children or completed any of the court-ordered programs during the previous six months, and recommended termination of reunification services. The hearing was initially continued for Ronas contest and continued again on several occasions due to the illness of Jamess counsel. On January 31, 2006 the parties stipulated to a further continuance of the hearing to April 24, 2006 and agreed that hearing would constitute the 12-month review hearing (§ 366.21, subd. (f)).
The Departments report for the 12-month hearing indicated James had contacted the social worker just once during the previous six months to request a bus pass, but then did not show up to pick up the pass. James had not enrolled in any of the court-ordered programs, had consistently missed drug tests and had not visited the children. However, because Rona had recently enrolled in programs and showed a commitment to regain custody of the children, the Department recommended additional reunification services. The court continued the 12-month hearing to May 30, 2006 for a supplemental report on Jamess compliance with court-ordered programs and to obtain his drug test results.
In a report submitted May 30, 2006 the Department stated James had indicated he was enrolled in an outpatient substance abuse program, but had not identified the program; the social worker had been unable to confirm Jamess participation in any program. In addition, James continued to miss drug tests. The Department also reported Rona had given birth to another child (Gabriel) in April 2006 and a voluntary family maintenance contract had been initiated as to him. On May 30, 2006 the court ordered reunification services continued for both Rona and James as to Haylee and April pending their permanency planning review hearing, which had been scheduled for October 24, 2006 (§ 366.22).
2. Dependency Proceedings as to Gabriel
On July 19, 2006 Rona tested positive for cocaine. On July 26, 2006 the Department petitioned to have Gabriel declared a court dependent and advised Rona and James it may seek an order denying them reunification services. The juvenile court found James to be Gabriels presumed father, ordered Gabriel detained, once again ordered Rona and James to participate in parenting classes, individual counseling and drug counseling with testing, and set the jurisdiction hearing for August 21, 2006.
In its report for the jurisdiction hearing on the new petition, the Department explained James had six children who had been made court dependents and stated he had not visited Haylee and April in five or six months and had not addressed his substance abuse problems. James told the social worker he had ended his relationship with Rona when April was born and had not been around her very much because he was married to another woman during the entire time of their relationship. Jamess current girlfriend, who had five children of her own, told the social worker she is a minister, she had been praying for James and "it was working" because James was sober and enrolled in counseling. The social worker reported James had enrolled in a program at the Childrens Institute in March 2006, where he had not submitted any dirty drug tests, and had recently started the parenting portion of his court-ordered reunification program. The Department was unable to provide any direct information on Rona because she had not been in contact with her social workers. However, the facilitator at Vista Del Mar, one of the agencies attempting to work with Rona, reported she had refused to participate in their programs, while a counselor at Shields for Families Treatment Center stated Rona had enrolled in various programs, but noted she had done so before but had never completed treatment.
Reunification services for James with respect to James IV, T. M. and M. M., the three children he had abandoned in April 2005, had been terminated on April 24, 2006. At that point James had not visited with those children in nearly six months, and he had told the social worker he did not mind if they were put up for adoption.
Neither Rona nor James appeared on August 21, 2006. The court sustained the new petition as to Rona only and set a contested disposition hearing as to her and a new jurisdiction hearing date for James. On October 2, 2006, following Jamess waiver of rights and agreement to submit on the Departments reports, the court sustained the new petition as to James and set a contested disposition hearing for October 24, 2006, the same date as the permanency planning review hearing for Haylee and April. Reunification services were ordered for both parents.
3. Termination of Reunification Services for Haylee and April; Denial of Services for Gabriel
In a report submitted for Haylee and Aprils October 24, 2006 permanency planning review hearing, the Department stated James was making good progress in his court-ordered programs, had consistently tested negative for drugs, had a stable relationship with his girlfriend and was anxious to regain custody of Haylee, April and Gabriel. Nonetheless, the Department recommended termination of reunification services because the case had reached the 18-month statutory limit for reunification services, James had participated in programs only during the previous six months and the children could not be returned to his care without a risk of detriment to their well-being. As to Rona, she again had not contacted her social worker or the Department. According to Haylee and Aprils foster mother, Rona had not seen the children for more than three months.
In its supplemental report for the disposition hearing as to Gabriel, the Department stated James had contacted the social worker for Gabriel for the first time in September 2006 to ask about visitation and placement of his children. The social worker had concerns about Jamess ability to care for Gabriel because he lacked employment and appropriate housing and had only recently started to comply with his case plan and to visit his children. The Department recommended denial of reunification services. The hearings for all three children were continued to January 9, 2007.
The Department submitted a supplemental report regarding Haylee and April for the continued hearing. According to the report, Jamess counselor at the Childrens Institute told the social worker James had failed to participate in programs between December 2005 and February 2006, but had participated consistently since March 2006, had submitted clean drug tests and was taking responsibility for his drug addiction problem. The Department further reported James had missed four of his six scheduled visits with his children between October and December 2006. When the social worker attempted to interview him, James refused to discuss the case.
On January 9, 2007 the case was continued once again, to January 25, 2007 for a contested permanency planning review hearing as to Haylee and April and a contested disposition hearing as to Gabriel. For the new hearing date the Department reported Jamess visitation with all three children continued to be problematic. His visits with the two older children "remain inconsistent." As to Gabriel, although James clearly showed an interest in reunifying with him, the Department believed his interest was principally due to the assertiveness and influence of his girlfriend and expressed concern that interest might wane if the relationship were to end. The report noted on several occasions Jamess girlfriend had taken the telephone when the social worker was speaking with him, stating she "is better" at discussing the issues than he is. The Department recommended reunification services not be granted as to Gabriel, once again emphasizing James had failed to reunify not only with Haylee and April but also with his other children, who had all been made dependents of the juvenile court.
The contested section 366.22 hearing for Haylee and April and disposition hearing for Gabriel began on January 25, 2007. With regard to Haylee and April, James testified he had missed just one visit with the children in 18 months, the visits had gone well and he wanted the children returned to his custody. James further testified he was participating in a drug program at the Childrens Institute, would graduate in March 2007 and had tested positive for drugs just once since he began testing. During cross-examination, James acknowledged he was not sure how old Haylee and April were, when they were detained or what grade Haylee was in. James also did not know if April had any medical condition or what either childs favorite toy was.
The hearing resumed on January 29, 2007; and the court received evidence concerning Gabriel, as well as additional evidence pertaining to the permanency planning review hearing for Haylee and April, including a letter dated January 24, 2007 from the Childrens Institute indicating James had just resumed attending a fatherhood program after a lapse of several months. The Departments social worker testified, although as of October 2006 James was participating and making progress in his programs, his visits with the children had not been liberalized because he had just started to visit the children, he had missed four of his first seven scheduled visits and the visits had never gone well. The social worker further testified, based on her conversations with the foster parents, it was apparent James was more interested in regaining custody of Gabriel than Haylee and April. She recommended reunification services for James be terminated as to Haylee and April and services not be provided as to Gabriel, citing Jamess inconsistent visitation record and the time limits imposed by law. When he was recalled as a witness, James explained his failure to visit with Haylee and April for six months in 2006 was due to problems he had with the prior social worker, who gave him "the run around all the time."
Jamess counsel requested that Haylee and April be returned to him and that Gabriel also be released to him or, in the alternative, James be granted family reunification services. Counsel for the three children asked the court to terminate reunification services as to Haylee and April and to deny any services as to Gabriel, citing Jamess poor visitation record, lack of a relationship with the children and failure to comply with his court-ordered case plan until very late in the proceedings. Counsel for the Department joined in the childrens request.
The court terminated reunification services as to Haylee and April, denied services as to Gabriel and set a section 366.26 hearing to consider termination of parental rights and implementation of a permanent plan for all three children after finding it would be detrimental to the safety and well-being of Haylee and April to return to Jamess custody and providing reunification services as to Gabriel would create a substantial risk of detriment to him (§ 361.5, subd. (b)(10)). The court explained, "[T]he major problem with this entire case ... is [Jamess] lack of involvement with his children and that lack of involvement would pose [a] substantial risk of harm to the children such that the court cannot return the children to his care or custody." The court specifically found, although James had complied with those components of the case plan that helped him with his own issues, he did not comply with the components designed to address parental awareness and to assist him in developing a relationship with his children. The court noted James had failed to reunify with other siblings of Gabriel and found his inconsistent visitation record and poor attendance in a fatherhood program showed he had not made reasonable efforts to deal with the critical issue of lack of responsibility for his children.
Rona had not attended the last several court hearings and, as noted in the Department reports, had not contacted the Department or spoken to the social workers for a number of months. The court denied Rona reunification services as to Gabriel based on both her unresolved substance abuse problem (see § 361.5, subd. (b)(10)) and the fact her whereabouts was then unknown (§ 361.5, subd. (b)(1)).
James filed a petition for extraordinary writ relief seeking review of the order setting the section 366.26 hearing. (§ 366.26, subd. (l); Cal. Rules of Court, rule 8.452.) The Department and all three children opposed the petition. We denied the petition on the merits (James M. v. Superior Court (May 30, 2007, B196728) [nonpub. opn.]), holding the juvenile courts finding that the return of Haylee and April to James would create a substantial risk of detriment to their well-being was supported by substantial evidence: "The record shows that after 21 months of reunification, principally as a result of his failure to visit them, James M. had not established any relationship with Haylee and April and was not even aware of their age or grade in school. Additionally, James M.s failure to participate regularly in a fatherhood program left unresolved his problem of lack of responsibility and commitment to Haylee and April." (Id. at p. 9.) As to Gabriel, we held the evidence in the record "fully supports the juvenile courts findings that reunification with Gabriels siblings had failed previously and James M. did not thereafter make a reasonable effort to treat the problems that led to the siblings removal from his custody." (Id. at p. 10.)
4. Termination of Ronas Visitation
On April 26, 2007, a date set for a review of the permanent plan as to her two older children and for progress reports on visitation as to Haylee, April and Gabriel, Rona filed a petition for modification under section 388, asserting she was in a residential treatment program and seeking further reunification services. Addressing the court, Rona stated she had 45 days of sobriety, to which the court responded, "45 days of finally realizing what was necessary at the beginning of this case." The court summarily denied the petition for modification. At the same hearing the court granted the Departments request to terminate Ronas visitation with Haylee, April and Gabriel. Haylee and Aprils foster mother did not want to adopt the children, and the girls were to be moved to a new home with potential adoptive parents. The Department expressed concern that Ronas inconsistent visitation with the children would disrupt the transition.
5. Denial of Jamess Petition for Modification; Termination of Parental Rights
The section 366.26 hearing for Haylee, April and Gabriel was continued from May 17, 2007 to July 30, 2007 at the Departments request to permit final approval of the home study for the prospective adoptive parents. On June 22, 2007 the court ordered Haylee, April and Gabriel placed with the prospective adoptive parents.
The Department asked the juvenile court to terminate Jamess and Ronas parental rights with respect to Haylee, April and Gabriel at the July 30, 2007 hearing. In its report for the hearing the Department noted Haylee had exhibited some negative behaviors, became emotional with the social worker and stated she did not want to be adopted. The social worker believed her emotional stress was caused by overhearing a conversation and learning she would neither be reunited with James and Rona nor be allowed to remain with the foster mother with whom she had been living, as well as by her distress at Jamess inconsistent visitation. Nonetheless, her grades were excellent, and her health good except for eczema associated with stress. When the social worker later visited the children in the home of the prospective adoptive parents, all of them, including Haylee, appeared extremely happy and well-cared for. They seemed attached to, and bonded with, the new family: April called them Mom and Dad, and Haylee was beginning to do so as well. Neither April nor Gabriel was reported to have any problems.
James filed a petition for modification on the morning of the section 366.26 hearing, seeking further reunification services. He alleged he was now in compliance with the courts orders and had visited his children regularly. Attached to the petition was a letter dated July 23, 2007 from the Childrens Institute listing the sessions James had attended in 2007, noting his "attendance remains consistent" and stating "[h]e has reached a comfort level that allows him to become more verbal and provide feedback with increased content." The petition also attached an April 24, 2007 letter from the Childrens Institute confirming James had completed its alcohol and drug treatment program, which he began on March 16, 2006, and reporting 26 out of 26 random urinalysis alcohol and drug tests had been negative.
Following the Departments introduction of several social workers reports with attachments as its case-in-chief on the section 366.26 issues, Jamess counsel brought the section 388 petition, filed earlier that day, to the attention of the court. The court denied the petition, explaining the only new information since the contested permanency planning hearing on January 29, 2007 was that James had continued to participate regularly in sessions at the Childrens Institute and finding that, although a change of circumstances, it was "not one that rises to the level of granting this 388": "[A]dditional time in the fatherhood group and fathers improved communication in that group is a change of circumstances, but does not rise to the level of showing that this change or any other change occurred and that [it] would be in the best interest of the child or children for [an] order [for additional] reunification services."
Although the clerks minute order following the hearing does not clearly indicate the court denied Jamess section 388 petition on July 30, 2007, the final page of the Judicial Council form request for modification filed by James (form JV-180) contains the courts order denying the petition signed by Commissioner Mackel and dated July 30, 2007.
Returning to the section 366.26 hearing, the court heard from both James and Rona. James testified Haylee had said she wanted to come home with him at their last visit. He also testified he had learned a lot by attending the fatherhood group at the Childrens Institute and he believed it would be in the best interest of the children to be returned to him. Rona introduced into evidence an April 2007 letter from her drug rehabilitation program, but admitted she was no longer in the program.
The court continued the hearing to August 8, 2007 to obtain a supplemental report on Jamess visitation and the childrens adjustment to the home of the prospective adoptive parents. The addendum report stated, according to information provided by the foster family agency, "the quality of [Jamess] visits with his children are [sic] fairly poor." The social worker also reported, "Haylee has a lot of anger towards her father and she no longer wants to visit with him." That anger had resulted in acting out behavior in her new placement, which, if it continued, could jeopardize the placement. The addendum report also indicated James paid far more attention to Gabriel than to Haylee and April during his visits.
At the hearing on August 8, 2007 the court received the supplemental report and heard closing argument from all counsel. Counsel for the children argued in favor of terminating parental rights, asserting the parents had not met their burden of proving any of the statutory exceptions to termination applied and "my clients are adoptable and are in an adoptive placement." Counsel for the Department echoed that argument, asserting, "The court has no choice but to terminate parental rights; and, in addition, its in the childrens best interest. They are all placed together in a pre-adoptive home and doing extremely well there." At the conclusion of the continued hearing the court terminated Jamess and Ronas parental rights and ordered the children placed for adoption, finding by clear and convincing evidence it is likely each of them will be adopted.
At the outset of the hearing on August 8, 2007, the court indicated it believed Jamess petition for modification under section 388 was still pending. However, following a discussion off the record, there was no further mention of the petition; and the minute order for August 8, 2007 does not reflect any ruling on the petition.
Rona filed a timely notice of appeal from the order terminating parental rights. James filed a timely notice and an amended notice of appeal from the orders denying his petition for modification and terminating parental rights.
CONTENTIONS
James contends the juvenile court erred when it summarily denied his petition for modification under section 388. Rona contends the court erred in finding by clear and convincing evidence the three children are adoptable.
James and Rona each adopt by reference the other parents argument on appeal. (See Cal. Rules of Court, rule 8.200(a)(5).)
DISCUSSION
1. The Juvenile Court Did Not Abuse Its Discretion in Denying Jamess Section 388 Petition
Section 388 provides that, if circumstances have changed such that it would be in the childs best interest for an order to be modified, the juvenile court should modify the order. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 446; In re Kimberly F. (1997) 56 Cal.App.4th 519, 526.) "The parent seeking modification must `make a prima facie showing to trigger the right to proceed by way of a full hearing." (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.)
Section 388 provides that a parent or other interested party "may, upon grounds of change of circumstance or new evidence, petition the court ... for a hearing to change, modify, or set aside any order of court previously made .... [¶] ... [¶] If it appears that the best interests of the child may be promoted by the proposed change of order,.... the court shall order that a hearing be held ...."
The prima facie showing includes two factors: The parent must demonstrate (1) a genuine, significant and substantial change of circumstances or new evidence, and (2) revoking the previous order would be in the best interests of the child. (In re Anthony W., supra, 87 Cal.App.4th at p. 250.) That is, "the petition must allege a change of circumstance or new evidence that requires changing the existing order." (In re Daijah T. (2000) 83 Cal.App.4th 666, 672.) "It is not enough for a parent to show just a genuine change of circumstances under the statute. The parent must show that the undoing of the prior order would be in the best interests of the child." (In re Kimberly F., supra, 56 Cal.App.4th at p. 529.)
"The petition [is] liberally construed in favor of its sufficiency." (In re Daijah T., supra, 83 Cal.App.4th at p. 672.) To be entitled to a hearing, the petitioner "need[] only ... show `probable cause; [the petitioner is] not required to establish a probability of prevailing on [the] petition." (In re Aljamie D. (2000) 84 Cal.App.4th 424, 432-433.) However, if the allegations fail to show changed circumstances such that the childs best interests will be promoted by the proposed change of order, the dependency court need not order a hearing. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806-807 ["the hearing is only to be held if it appears that the best interests of the child may be promoted by the proposed change of order"]; cf. In re Edward H. (1996) 43 Cal.App.4th 584, 593 ["`prima facie showing refers to those facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited"].) We review the juvenile courts summary denial of a section 388 petition for abuse of discretion. (In re Angel B. (2002) 97 Cal.App.4th 454, 460; In re Anthony W., supra, 87 Cal.App.4th at p. 250.)
Although the courts written order denying Jamess section 388 petition recited three grounds for summarily rejecting the request for modification — "[t]he facts do not support what is requested"; "[t]he request does not state new evidence or a change of circumstances"; and "[t]he request does not show that it will be in the best interest of the child to change the order" — the courts comments at the July 30, 2007 hearing clearly reflect its conclusion James had failed to proffer any evidence to support his conclusory assertion that providing further reunification services would promote his childrens best interests. That conclusion was not an abuse of discretion. (See In re Angel B., supra, 97 Cal.App.4th at p. 465 [evidence mother had remained sober, completed programs, obtained employment and visited regularly with child, although change of circumstances, is not legally sufficient to require a hearing on § 388 petition absent "some factual showing that the best interests of the child would be served by modification"].)
With respect to the best interest prong of the required prima facie showing, Jamess petition asserted only, "I have completed and complied with court order[ed] [rehabilitation] program fatherhood still attend for life. Teaching me how [to] love my kids more th[r]ough bad & good times. Im [a] better parent, sober & clean drug free for life. I love my kids with my heart and soul." That statement, devoid of any factual content with respect to the childrens interests, is simply insufficient. (In re Angel B., supra, 97 Cal.App.4th at pp. 464-465.)
By the time James belatedly filed his section 388 petition (on the day of the continued section 366.26 hearing), April and Haylee had been in foster care for more than two years; Gabriel had been placed away from his parents since birth. Reunification services had been terminated as to James largely because he had failed to establish any meaningful parental relationship with his children, a finding we expressly affirmed in denying Jamess petition for extraordinary writ relief. Against that backdrop, the juvenile court quite properly considered the childrens need for permanency and stability, as well as the social workers report concerning the poor quality of Jamess visits and Haylees continuing anger toward him, in summarily denying the petition for modification. (See In re Stephanie M. (1994) 7 Cal.4th 295, 317 [court considering § 388 petition after termination of reunification services must recognize shift in focus from parents interest in care, custody and companionship of child to need of child for permanency and stability]; In re Marilyn H. (1993) 5 Cal.4th 295, 310 [after termination of reunification services rebuttable presumption arises that continued foster care is in the best interests of child].)
2. Substantial Evidence Supports the Finding the Children Are Adoptable
Section 366.26 directs the juvenile court in selecting and implementing a permanent placement plan for a dependent child. The express purpose of a section 366.26 hearing is "to provide stable, permanent homes" for dependent children. (§ 366.26, subd. (b).) If the court has decided to end parent-child reunification services, the legislative preference is for adoption. (§ 366.26, subd. (b)(1); In re Celine R. (2003) 31 Cal.4th 45, 53 ["[I]f the child is adoptable ... adoption is the norm. Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances provides a compelling reason for finding that termination of parental rights would be detrimental to the child."]; see In re Marilyn H., supra, 5 Cal.4th at p. 307 [once reunification efforts have been found unsuccessful, the state has a "compelling" interest in "providing stable, permanent homes for children who have been removed from parental custody" and the court then must "concentrate its efforts ... on the childs placement and well-being, rather than on a parents challenge to a custody order"].)
A juvenile court may terminate parental rights under section 366.26, however, only if it determines by clear and convincing evidence the child will likely be adopted within a reasonable time. (§ 366.26, subd. (c)(1); In re Asia L. (2003) 107 Cal.App.4th 498, 509; In re Jerome D. (2000) 84 Cal.App.4th 1200, 1204.) "`"`Clear and convincing evidence requires a finding of high probability. The evidence must be so clear as to leave no substantial doubt. It must be sufficiently strong to command the unhesitating assent of every reasonable mind."" (Jerome D., at pp. 1205-1206.) Review of the juvenile courts determination of adoptability is limited to whether those findings are supported by substantial evidence. (In re Carl R. (2005) 128 Cal.App.4th 1051, 1061; In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.)
"The issue of adoptability posed in a section 366.26 hearing focuses on the minor, e.g., whether the minors age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor. [Citations.] Hence, it 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 Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) Nevertheless, "the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minors 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 parents 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." (Id., at pp. 1649-1650; see In re Asia L., supra, 107 Cal.App.4th at p. 510.)
Although recognizing all three children have been placed together with a prospective adoptive family, Rona argues there is insufficient evidence of general adoptability to support the juvenile courts findings. She points to the evidence in the record of Haylees on-going emotional instability and negative behavior and notes the adoption assessment stated only "[t]here are no known impediments to adoption."
Rona does not assert the court erred in finding April and Gabriel adoptable. Rather, she contends in a single sentence unsupported by any citation to authority, because Haylee is not adoptable, the court erred in terminating parental rights over the "sibling set." (See § 366.26, subd. (c)(1)(B)(v) [court shall not terminate parental rights if termination would be detrimental to the child because there would be substantial interference with childs sibling relationships].) Because we conclude substantial evidence supports the courts determination of adoptability as to Haylee, we need not consider whether Rona properly raised the sibling exception to termination of parental rights in the juvenile court or on appeal or, if the point were preserved, the validity of her argument.
Ronas argument drastically understates the significance of the potential adoptive family in this case. The prospective adoptive parents are licensed foster parents and by the time of the section 366.26 hearing had an approved home study. They had a number of pre-placement visits (including overnights) with Haylee, April and Gabriel, providing respite care for the previous foster parents on most weekends for five months while their home study was being completed. All three children had been living full time in their home for six weeks when the determination of adoptability was made. The social worker reported the children appeared bonded and attached to the adoptive parents; April was calling them Mom and Dad; and Haylee was beginning to do so, as well. In addition, although the social worker suggested Haylees difficult behavior might jeopardize the placement were it to continue, the Departments report for the section 366.26 hearing confirmed there were no known legal impediments to adoption by these prospective adoptive parents. (See In re Sarah M., supra, 22 Cal.App.4th at p. 1650 [even if child ordinarily might be considered unadoptable due to age, poor physical health, physical disability or emotional instability, if prospective adoptive family is willing to adopt the child, juvenile court properly determines child is likely to be adopted absent legal impediment to adoption].) Moreover, Haylees problem behavior was attributed by all parties to the past instability in her life (in particular, leaving her prior foster mother) and her distress at Ronas and Jamess inconsistent visitation, neither factor suggesting any emotional condition that would make it difficult to find a person willing to adopt Haylee. Under these circumstances the court did not err in finding by clear and convincing evidence the children are adoptable.
DISPOSITION
The orders of the juvenile court are affirmed.
We Concur:
WOODS, J.
ZELON, J.