Opinion
NOT TO BE PUBLISHED
Appeal from a post judgment order of the Superior Court of Orange County Super. Ct. Nos. DP013024, DP013025, DP013026, Maureen Aplin, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Michelle L. Jarvis, under appointment by the Court of Appeal, for Appellant Jaime L.
Karen J. Dodd, under appointment by the Court of Appeal, for Appellant Rachelle R.
Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Alexandra G. Morgan, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
IKOLA, J.
Jaime L. (father) and Rachelle R. (mother), parents of Jaime L. (Jaime), Devin, and E. (ages 3, 3, and 1, respectively), appeal from the termination of their parental rights after a Welfare and Institutions Code section 366.26 selection and implementation hearing (.26 hearing). The parents challenge the sufficiency of the evidence to support the court’s finding the children were likely to be adopted. We affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise stated. On appeal mother joins in and adopts father’s arguments.
FACTS
In a February 2006 petition, the Orange County Social Services Agency (SSA) alleged Jaime, Devin, and E. came within the provisions of section 300, subdivision (a) (serious physical harm), subdivision (b) (failure to protect), subdivision (g) (no provision for support), and subdivision (j) (abuse of sibling). The petition alleged, inter alia, that mother had twice left the children with unrelated caretakers without any means of support; the parents’ whereabouts were unknown; mother had substance abuse problems and a history of mental illness; father had committed domestic violence; and mother had another child previously declared a dependent who was adopted after mother’s parental rights to the child were terminated. In May and June of 2006, the court found the allegations true, declared the children dependents, and vested custody with SSA for placement.
On July 8, 2006, the children’s first foster care placement was terminated because of alleged physical abuse by the foster parent. The children returned to Orangewood Children’s Home where they resided while SSA sought suitable foster placement for them. Potential foster parents at three homes declined the placement, believing they could not manage three young children. Another home was ruled out due to its distant location. The social worker stated, “Three children under the age of three will require a highly organized energetic caretaker. There must be at least two adults in the household in order to adequately care for three young children.”
On August 28, 2006, the children moved to a new foster home. The October 3, 2006 six-month-review report indicated the whereabouts of the parents were still unknown, although mother had provided the social worker with a phone number. Jamie was described as “a bright and healthy nearly three-year-old” with no identifiable medical, developmental or behavioral concerns. Devin was a curious, shy nearly two-year-old with no identifiable medical or developmental concerns. Although he had “been noted to be aggressive with peers [while] at Orangewood Children’s Home, having had several special incident reports in which he bit or mildly injured other children,” the caregiver reported “that since the child [had] lived with her, this behavior ha[d] diminished.” E. was “a happy, healthy affectionate nine-month-old” with no medical, developmental, or behavioral concerns. The children were “adjusting well to their [foster] home” and did not “have any behavioral problems.” Mother and father had not enrolled in any reunification services and had visited the children four times since May 2006, with each visit lasting 30 minutes. The social worker recommended that a .26 hearing be scheduled for February 2007.
But on October 6, 2006, the foster parent returned the children to Orangewood Children’s Home, stating “that the children’s behavior was out of control and she did not feel equipped to deal with their behavior.” The “foster mother had been having problems with the children, especially at night when the rest of the household was asleep.” “Jaime and Devin had been getting up in the middle of the night and would ‘stuff’ various items in the toilet, causing the toilet to overflow and back up.” The “children were emptying items out of kitchen and hall cabinets, defecating on these items, and then smearing [feces] on the carpet and each other.” “This allegedly happened on at least two occasions.” The “children would also urinate on the carpet after removing their diapers. These behaviors were all occurring in the middle of the night. . . .”
On October 12, 2006, E. was placed back in the previous foster home, while Jaime and Devin remained at Orangewood Children’s Home. On October 22, Jaime and Devin were placed in a new foster home.
In November 2006, a new baby was born to mother and father. The baby was taken into protective custody.
On January 17, 2007, the court terminated the parents’ reunifications services and scheduled a .26 hearing for May 8, 2007.
SSA’s April 2007 report indicated mother’s whereabouts were unknown and father was incarcerated. E. had been moved to the same foster home as his brothers after his caregiver asked that E. be removed because of the caregiver’s own family problems. (The caregiver had “reported no difficulties with” E.) The parents had visited the children seven times since April 2006 and had not visited at all after August 3, 2006. The children had no major medical problems, and the medical issues they had “are being addressed and will likely not be ongoing.” As to the likelihood of adoption, SSA reported “‘it is probable that the child[ren] will be adopted, but the child[renare] difficult to place for adoption and there is no adoptive family because the child[ren are members of] a sibling group.’ [¶] The children . . . are cute little active boys. They all appear to be meeting developmental milestones. They are bright little affectionate boys. At this time, no family has been identified to adopt the children . . . . The children’s current caregivers . . . do not want to adopt the children because of [the caregivers’] own ages and the young age of the children. They wish to care for the children until an adoptive home can be identified. [¶] The undersigned is not recommending that parental rights be terminated at this time as no adoptive family has been identified.” The social worker recommended the court “identify adoption as the permanent plan for these children and continue the permanency hearing for 180 days to allow for further efforts to be made to locate a permanent home for the children.”
An adoption worker assigned to the children determined they were adoptable; she was “currently working on identifying an adoptive placement for [them].” She reported the children “are adorable African American siblings with big brown eyes, brown hair and wishful smiles. The boys have mild to moderate medical, developmental and behavioral problems that appear to be resolvable issues. Jamie, 3, the eldest of the siblings is described as a follower and a gentle little boy. He is very loving and affectionate but is easily influenced by his younger brother, Devin, and will often get into trouble due to defiance and failing to listen. Jamie is a big helper and likes to help out whenever he can and has great manners. He is potty-trained but wears pull-ups to bed. He does not know his colors, numbers or ABC’s and would benefit from 1:1 attention to help him catch up to his age-level. Devin, 2, is described as a ‘whirlwind, thrill seeker, charmer and very smart.’ He is a very loving and affectionate little boy although he is often very aggressive and overactive in his play and bullies his older brother. Devin is able to identify colors and numbers and knows the ABC song. Devin has been known to play with and smear his feces on several occasions. The foster mother reported that he is now trying to take care of it himself by trying to dump it into the toilet. E. is an active and playful little toddler. He is described as ‘sweet and a joy’ and ‘very happy and loving.’ He appears to be developmentally on target and is able to wave and speak a few one and two-syllable words. He is a good eater and when put down will go to sleep within 2 minutes. He is indiscriminate of people and will go with anyone. The boys are reported to be very loving and affectionate with one another and readily give and receive love to/from those they know. [¶] The boys . . . can often be into everything and need to be supervised at all times. The foster parents describe them as ‘a handful.’ [T]hey would do well in a family with a lot of energy to care for three young toddlers and with a stay at home parent. [¶] The boys have made great strides in their current foster/adoptive placement which can be attributed to the consistency and structure provided by the foster parents.” “Due to the fact that they are three African-American boys, close in age with mild to moderate medical, developmental and behavioral issues the process of finding an adoptive home is going to be more tedious.”
At the .26 hearing in May 2007, the court found the children were likely to be adopted, ordered adoption as the permanent plan, and terminated the parents’ parental rights. The court found the “fact that the child[ren are] not placed in a preadoptive home or with a person or family prepared to adopt [them] is not a basis for concluding that the child[ren are] unlikely to be adopted.”
DISCUSSION
Substantial Evidence Supports the Court’s Finding the Children are Likely to Be Adopted
The parents challenge the court’s finding the children are likely to be adopted, arguing the boys are “very active and have serious behavioral issues, including an unresolved issue with Devin, who is known to smear his feces in the home.” They assert that two prior placements failed and the current caregivers are unwilling to adopt the boys. The parents conclude there “is a serious risk that these three young boys will become legal orphans due to their behavior and the inability to find an adoptive home.”
“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.” (In re Carl R. (2005) 128 Cal.App.4th 1051, 1060.) “The question of adoptability posed at a section 366.26 hearing usually focuses on whether the child’s age, physical condition, and emotional state make it difficult to find a person willing to adopt that child.” (Id. at p. 1061.) “[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 Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) Indeed, under section 366.26, subdivision (c)(1), “[t]he fact that the child is not yet placed in a preadoptive home nor with a relative or foster family who is prepared to adopt the child, shall not constitute a basis for the court to conclude that it is not likely the child will be adopted.”
Section 366.26, subdivision (c)(1) provides in part: “If the court determines . . . by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption.”
“Review of a determination of adoptability is limited to whether those findings are supported by substantial evidence.” (In re Carl R., supra, 128 Cal.App.4th at p. 1061 .) “In reviewing the juvenile court’s order, we determine whether the record contains substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that [the child] was likely to be adopted within a reasonable time.” (In re Erik P. (2002) 104 Cal.App.4th 395, 400.) “On review of the sufficiency of the evidence, we 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.)
The parents cite several cases where appellate courts reversed orders terminating parental rights, but those cases involved minors with serious problems. (In re Brian P. (2002) 99 Cal.App.4th 616, 619, 624 [“juvenile court did not have the benefit of an adoption assessment report” regarding four-and-one-half-year-old “‘almost able to dress himself, and . . . now toilet trained’” who had “begun to speak and [whose] gait ha[d] improved”]; In re Jayson T. (2002) 97 Cal.App.4th 75, 82; disapproved on another ground in In re Zeth S. (2003) 31 Cal.4th 396, 414 [adopted parents believed child suffered from “‘[r]eactive attachment disorder,’ . . . a psychological condition that means an inability to form loving attachments”]; In re Asia L.(2003) 107 Cal.App.4th 498, 511, 512 [“specialized placements” were required for seven-year-old who was “‘extremely hyperactive and in need of medication,’” four-and-one-half-year-old who was “hyperactive, steals, lies, hoards material items not food, aggravates other children, and pulls her braids out of her head when upset”; “evidence regarding . . . adoptability [of two-and-one-half-year-old was] similarly weak”].)
The parents also rely on In re Tamneisha S. (1997) 58 Cal.App.4th 798, but that case did not involve a court’s finding a child was adoptable; rather, the juvenile court ordered legal guardianship for the minor.
Here, substantial evidence underlies the court’s finding the boys are likely to be adopted. Their respective ages, physical conditions, and emotional health support that finding. The boys are very young, have no major medical or physical problems, and were described by the adoptions worker as “adorable” and “loving.” Any developmental or behavioral problems are mild to moderate “and appear to be resolvable.” For example, Devin is learning to put his feces in the toilet and Jaime is now potty trained. The parents’ assertion that two prior foster placements failed is misleading: the cause of the first failure was the caregiver’s alleged physical abuse of the children. And although the parents are correct the current caregivers are unwilling to adopt the boys, part of their unwillingness stems from the caregivers’ own ages. Finally, the parents emphasize that the children form a sibling set of three active young boys. But the existence of a youthful sibling group, in and of itself, does not prevent a finding of adoptability. Indeed, the Legislature has directed that siblings detained simultaneously be placed together if possible and that sibling groups with a member under age three be accorded expedited finality. (§§ 306.5, 361.5, subd. (a)(3).)
The Court Did Not Abuse Its Discretion by Terminating Parental Rights Rather Than Deferring Its Decision for 180 Days
The parents argue the court, pursuant to section 366.26, subdivision (c)(3), “should have identified adoption as the permanent plan, without terminating parental rights and order efforts be made to find an adoptive home within 180 days.” Both SSA reports prepared for the .26 hearing recommended this course of action. The parents conclude the court abused its discretion by terminating their parental rights.
Section 366.26, subdivision (c)(3) provides: “If the court finds that termination of parental rights would not be detrimental to the child pursuant to paragraph (1) and that the child has a probability for adoption but is difficult to place for adoption and there is no identified or available prospective adoptive parent, the court may identify adoption as the permanent placement goal and without terminating parental rights, order that efforts be made to locate an appropriate adoptive family for the child within a period not to exceed 180 days. . . . For purposes of this section, a child may only be found to be difficult to place for adoption if there is no identified or available prospective adoptive parent for the child because of the child’s membership in a sibling group, or the presence of a diagnosed medical, physical, or mental handicap, or the child is the age of seven years or more.”
Here, the court found under section 366.26, subdivision (c)(1), the boys are likely to be adopted. “Under section 366.26, subdivision (c)(1), when the juvenile court concludes the child is ‘likely’ to be adopted the court must terminate parental rights so the child can be placed for adoption and ‘get on with the task of growing up . . . .’” (In re Y.R. (2007) 152 Cal.App.4th 99, 109.) “In contrast, under section 366.26, subdivision (c)(3), the court may continue the matter 180 days if there are obstacles making the child ‘difficult to place for adoption’ and therefore there exists only ‘a probability’ the child will be adopted.” (Ibid.) Thus, “a finding that there exists, under section 366.26, subdivision (c)(3), ‘a probability’ a child may be adopted is not the same as finding, under subdivision (c)(1), that it is ‘likely’ adoption will occur.” (Id. at p. 108.)
Here the court found the siblings were likely to be adopted, a finding based on substantial evidence; therefore, termination of parental rights was mandatory under section 366.26, subdivision (c)(1). Accordingly, the court did not abuse its discretion by failing to continue the hearing pursuant to section 366.26, subdivision (c)(3).
DISPOSITION
The order is affirmed.
WE CONCUR: BEDSWORTH, ACTING P. J., ARONSON, J.