Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County No. SWJ001313. Bradley O. Snell, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.).
Cristina Gabrielidis Lechman, under appointment by the Court of Appeal, for Defendant and Appellant.
Joe S. Rank, County Counsel, and Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
Jacquelyn E. Gentry, under appointment by the Court of Appeal, for Minors.
OPINION
Gaut, J.
Joshua D., the biological father of J.A., appeals from a judgment terminating his parental rights. (Welf. & Inst. Code, § 366.26.) J.A. has four half-siblings, all of whom were placed together at the time of the hearing at which parental rights were terminated. The father asserts the juvenile court erred in finding his child adoptable because J.A. and his half-siblings were “likely exposed to drugs in utero,” displayed behavioral and psychological problems, and only one family was interested in adopting the sibling group. We affirm.
To distinguish him from the fathers of J.A.’s half-siblings, we refer to Joshua by name in the background section. However, because he is the only parent involved in the appeal, we will refer to him as “father” in the discussion.
Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.
BACKGROUND
J.A., the minor, was one year of age when he and his half-siblings came to the attention of the Department of Public Social Services (DPSS). The referral to DPSS indicated that J.A.’s mother and B.A., the father of J.A.’s half-siblings, had been using methamphetamines, that the home was filthy, and that J.A. was permitted to wear only a diaper. All the children except for J.A. had been declared dependents more than once previously due to the mother’s and B.A.’s drug use, and the half-siblings had been returned to the mother’s and B.A.’s custody only six months earlier. Mother and B.A. had been provided with reunification services as part of three separate case plans.
A detective who accompanied the social worker to investigate the complaint conducted a search of the premises. The detective found a glass pipe and a baggie containing methamphetamine in the tank of the toilet in the bathroom. All five children were detained. Initially, J.A. and one half-brother were placed in one home, and his three half-siblings were placed in another foster home.
The juvenile court ordered the children “removed;” however, prior to the adjudicatory hearing where jurisdiction is established, a juvenile court lacks authority to “remove” a child from a parent’s custody. A child may be taken into temporary custody by a peace officer or social worker (§§ 305, 306), and at the detention hearing, the court is empowered to determine whether the minor shall be “further detained.” (§ 315.) It is only after the jurisdictional hearing that a court may consider whether it should “limit the control to be exercised over the dependent child” at the disposition phase. (§ 361, subd. (a).) Because “removal” is a milestone in juvenile court proceedings, it is important to accurately reflect the court’s actions in the minutes.
A dependency petition was filed alleging neglect and failure to protect (§ 300, subd. (b)), based on mother’s and B.A.’s chronic drug abuse, their failure to benefit from services provided between 2002-2006, the children’s exposure to drugs and deplorable living conditions, mother’s bipolar disorder, and Joshua’s failure to protect J.A. against mother’s neglect, and his lack of provision for support for J.A. (§ 300, subd. (g).)
At the time the children were detained, Joshua D.’s whereabouts were unknown; however, it was known that he had an extensive criminal history. Nevertheless, Joshua D. appeared in court on the date originally set for the jurisdiction hearing and requested designation as the presumed father of J.A. At the contested jurisdiction hearing of July 25, 2007, mother and B.A. submitted on the reports. Joshua D. renewed his request for presumed father status, and indicated the mother knew of his whereabouts when J.A. was detained, but lied to the social worker. The court found that Joshua D. was the biological father of J.A., but that he was not entitled to presumed father status, declaring B.A. to be the presumed father of J.A., instead.
The court found the allegations of the petition true as to the neglect and failure to protect allegations (§ 300, subd. (b)), dismissed the allegation that Joshua D. failed to provide for J.A. (§ 300, subd. (g)), and removed the children from the custody of mother and B.A. The court denied reunification services for mother and B.A. because of their history of extensive, abusive, and chronic use of drugs and their resistance to treatment for the problem. (§ 361.5, subd. (b)(13).) As for Joshua D., the court denied reunification services because he was a biological father only. The court ordered a permanency planning hearing to select and implement a permanent plan for the children. (§ 366.26.)
Joshua D. filed a notice of intent to file a petition for extraordinary relief from the order setting the selection and implementation hearing, and requested an order that reunification services be provided. This court denied that petition in an unpublished opinion.
Prior to the permanent plan hearing, DPSS continued efforts to locate a home that would take J.A. and all his half-siblings, eventually placing all five children in the same adoptive home. There were several other families who indicated they were willing to adopt all the siblings. After visits between the children and B.A.’s father, the paternal grandfather of two of J.A.’s half-siblings, the older half-siblings experienced bedwetting problems and sleep disturbance. It was later learned that this grandparent had touched one of the half-siblings inappropriately. By March 28, 2008, the social worker reported the children were emotionally stable and bonding in their adoptive home.
The adoption assessment showed that although J.A. and one half-brother were developing normally, one half-sibling was having difficulty in school, one half-sibling could hear voices, and another suffered from hearing loss. A month later, DPSS reported the children were adapting well to their placement, had made a wonderful adjustment, and continued to bond and thrive in their placement. The contested permanency planning hearing took place on May 6, 2008. The court found the children were adoptable and terminated parental rights of all parents. Joshua D. appealed the termination of his parental rights to J.A.
DISCUSSION
Father claims his parental rights to J.A. must be reversed because the finding that J.A. and his siblings were adoptable was not supported by substantial evidence. We disagree.
We review the juvenile court’s adoptability determination for substantial evidence. (In re Y.R. (2007) 152 Cal.App.4th 99, 112.) In assessing the sufficiency of the evidence, we must “presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) We do not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts. (Ibid.) The judgment will be upheld if it is supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)
The juvenile court may terminate parental rights only if it determines by clear and convincing evidence that it is likely the child will be adopted within a reasonable time. (§ 366.25, subd. (c)(1); In re Valerie W. (2008) 162 Cal.App.4th 1, 13.) The question of adoptability focuses on the minor, to determine whether the child’s age, physical condition and emotional health make it difficult to find a person willing to adopt the child. (In re Zeth S. (2003) 31 Cal.4th 396, 406.) 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.)
Father points to factors relating to the emotional and behavioral problems attributed to J.A.’s half-siblings (M.A. hears voices; T.A. has difficulty in school; both M.A. and T.A. suffered from enuresis), and the fact J.A. was part of a five-sibling group to show that J.A. was not adoptable. He asserts it is inferable that J.A. was born drug exposed because one of his half-siblings was born with a positive drug screen. However, he points to no evidence, other than speculation, that J.A. was born with drugs in his system, or suffered from any problem related to his age, physical condition or emotional health that would make it difficult to find a person willing to adopt the child. Indeed, he submitted the issue of adoptability to the court for decision based on the reports. In any event, the reports admitted into evidence showed J.A. exhibited no psychological, developmental, or behavioral problems that would affect his adoptability.
Father also focuses on J.A.’s siblings’ “psychological and behavioral problems” to support an inference it would be difficult to find a person willing to adopt the minor. Father lacks standing to challenge the determination that J.A.’s half-siblings were adoptable, because he was not aggrieved by the termination of the parental rights of mother and B.A. (See In re Gary P. (1995) 40 Cal.App.4th 875, 877.) We therefore treat this issue as an attempt to argue that J.A.’s membership in a bonded sibling group constituted an exception to adoptability, given the potential difficulty of finding adoptive placements for siblings with behavior or emotional problems, and the risk of detriment that might arise from any substantial interference with his child’s sibling relationship to his half-siblings. (§ 366.26, subd. (c)(1)(v).)
This argument must fail for two reasons: (1) All five siblings were in the same adoptive home, the home had been assessed, and the reports demonstrated the family was committed to adopting all the siblings. (2) Father did not carry his burden of proving that adoption would interfere with the sibling relationship by raising this challenge in the trial court.
The parent has the burden of raising any relevant exception to adoptability at the hearing to select and implement the permanent plan. (In re Jacob S. (2002) 104 Cal.App.4th 1011, 1017.) Failure to raise the exception at the hearing results in forfeiture. (In re Erik P. (2002) 104 Cal.App.4th 395, 402-403.) Even if the issue had been raised in the trial court, there is no evidence in the record to support an inference that adoption would interfere with the sibling relationship because all the siblings were placed for adoption in the same adoptive home. (See In re B.D. (2008) 159 Cal.App.4th 1218, 1236-1237.)
Father points to the fact that in January 2008, the adoptive family had seemed overwhelmed with all five children in the home, raising the concern the adoptive parents would not adopt them. However, the May 2008 adoption assessment, admitted into evidence at the permanent plan hearing without objection, indicated the adoptive parents were fully committed to adopting all five children, and the children were adjusting to their placement. In this respect, father’s reliance on In re Asia L. (2003) 107 Cal.App.4th 498, is misplaced. In that case, the children were not in an adoptive home at the time of the hearing, there was no identified prospective adoptive parent at the time of the hearing, and the foster parent’s willingness to explore the option of adopting the children was deemed too vague to be considered evidence of adoptability. (Id. at pp. 511-512.)
The record here shows that J.A. was two years old at the time of the permanency planning hearing, had no physical health problems, physical disability, behavioral problems or emotional instability, and was placed with adoptive parents who were committed to adopting all five siblings. Contrary to father’s assertion, there is substantial evidence that J.A. is adoptable, both generally and specifically, to support the judgment.
DISPOSITION
The judgment is affirmed.
We concur: Ramirez, P. J., Miller, J.