Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK22872. Anthony A. Trendacosta, Referee.
Grace Clark, under appointment by the Court of Appeal, for Defendant and Appellant T.H.
Catherine C. Czar, under appointment by the Court of Appeal, for Defendant and Appellant V.B.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Tracey F. Dodds, Deputy County Counsel, for Plaintiff and Respondent.
RUBIN, J.
Father T.H. and mother V.B. appeal from the dependency court’s order terminating their parental rights and placing minors J.H. and Y.H. for adoption. The sole ground for challenging the court’s termination order is that the children are purportedly unadoptable. We affirm.
FACTS AND PROCEEDINGS
Minor J.H. was born in September 2002. In August 2006, respondent Los Angeles County Department of Children and Family Services (DCFS) filed a petition under Welfare and Institutions Code section 300 alleging J.H.’s parents, father T.H. and mother V.B. (whom we refer to collectively as “appellants”), failed to protect him from physical and emotional harm. The petition also alleged that J.H. had six siblings who were dependents of the court and with whom appellants had not reunified. DCFS detained J.H. and placed him in foster care.
All further undesignated section references in this part of our discussion are to the Welfare and Institutions Code.
About one month later in September 2006, mother gave birth to J.H.’s sister, Y.H. Y.H. tested positive for cocaine at birth, and remained hospitalized for two weeks after her delivery for pneumonia and other medical conditions. DCFS filed a section 300 petition alleging appellants had failed to protect Y.H. from physical harm. DCFS detained Y.H. and placed her with J.H.’s foster family.
In February 2007, the dependency court sustained the allegations that appellants had failed to protect J.H. and Y.H. from harm. The court ordered no reunification services and set a hearing for a permanent plan of legal guardianship for the children. The children’s maternal aunt C. thereafter volunteered to take custody of the children, and in December 2007 the court appointed her their guardian. About one and a half years later, police arrested maternal aunt C. for inflicting corporal punishment on her 16-year-old daughter. DCFS detained J.H. and Y.H., and the court terminated aunt C.’s guardianship of them.
The parents had failed to reunify with six of their prior children and under section 361.5, subdivision (b)(10), the court denied reunification as to J.H. and Y.H. because the parents had not made a reasonable effort to remedy the problems that led to the earlier denial of reunification services.
Following termination of their aunt’s guardianship, DCFS placed J.H. and Y.H. with foster parents L.D. and P.D., who expressed an interest in adopting the children, but the D’s economic circumstances prevented an adoption. In April 2010, DCFS placed the children with a second prospective adoptive family, Mr. and Mrs. H. While investigating the H’s suitability, DCFS noted its “serious concerns” about the Hs’ experiences “with regard to the many traumatic and disruptive aspects of [their] history, ” the nature of which DCFS did not specify and the appellate record does not reveal. DCFS directed the adoption agency investigating the Hs’ suitability as adoptive parents to investigate those “concerns.” The agency’s subsequent adoptive home study reported the Hs had “been able to process their experiences and believe that they can draw upon their personal history to better address and meet the needs of children placed in their home.” The court thereafter found the children were generally and specifically adoptable, and terminated mother’s and father’s parental rights in August 2010. This appeal followed.
DISCUSSION
1. General Principles Concerning Adoptability
Termination of parental rights requires clear and convincing evidence that a child is likely to be adopted within a reasonable time. (In re Angelia P. (1981) 28 Cal.3d 908, 919; see also § 366.26, subd. (c)(1).) Here, the court found that J.H. and Y.H. were “generally” and “specifically” adoptable. Mother and father contend the court erred in terminating their parental rights because insufficient evidence exists that J.H. and Y.H. are adoptable. As we explain below, we disagree because the threshold for adoptability is low. “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. [Citations.] We review that finding only to determine whether there is evidence, contested or uncontested, from which a reasonable court could reach that conclusion. It is irrelevant that there may be evidence which would support a contrary conclusion.” (In re K.B. (2009) 173 Cal.App.4th 1275, 1292; but see In re Asia L. (2003) 107 Cal.App.4th 498, 510 [“ ‘Clear and convincing’ evidence requires a finding of high probability. The evidence must be so clear as to leave no substantial doubt”].) We review the court’s finding of adoptability for substantial evidence without regard to the trial court’s obligation to find clear and convincing evidence. (In re E.B. (2010) 184 Cal.App.4th 568, 578 [on appeal... the clear and convincing test disappears].)
2. Generally Adoptable
A child is generally adoptable when the child’s health, age, development, personality, and personal characteristics make the child a likely candidate for adoption. (In re Cory M. (1992) 2 Cal.App.4th 935, 951.) A prospective adoptive family need not be waiting in the wings for a child to be generally adoptable. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649; see also § 366.26, subd. (c)(1).) On the other hand, a child’s placement with prospective adoptive parents is evidence of general adoptability. (In re A.A. (2008) 167 Cal.App.4th 1292, 1313.) Here, two families expressed interest in adopting J.H. and Y.H.: the Ds, who could not carry out their wish because of their economic circumstances, and the Hs, with whom J.H. and Y.H. reside and who stand ready to adopt the children. The existence of two families who wanted to adopt J.H. and Y.H. is substantial evidence of their general adoptability. (Ibid.)
Appellants contend Y.H.’s physical, emotional, and behavioral challenges make her unadoptable. They note she tested positive for cocaine at birth and suffers from poor vision and asthma. She suffers temper tantrums, sleeps fitfully, and has reported hearing imaginary voices. Additionally, her intelligence is in the low average range and her articulation is poor, making her speech hard to understand. On the other hand, two families wanted to adopt Y.H. and her brother, J.H. Moreover, Y.H.’s health and behavior have been improving as she has matured. Y.H.’s challenges, and their effect on her adoptability, at most create a conflict in the record, which the dependency court resolved in favor of finding she was nevertheless adoptable. “We review that finding [of adoptability] only to determine whether there is evidence, contested or uncontested, from which a reasonable court could reach that conclusion. It is irrelevant that there may be evidence which would support a contrary conclusion.” (In re K.B., supra, 173 Cal.App.4th at p. 1292.)
Appellants’ citation to cases describing unadoptable children are inapt because the cases are distinguishable. In In re Brandon T. (2008) 164 Cal.App.4th 1400, for example, the unadoptable child suffered “global delays” and “some autistic-like features” for which he was receiving “social services;” Y.H., in contrast, suffers no developmental disability and requires no social services. (Id. at pp. 1405, 1407, 1409.) And in In re Asia L., supra, 107 Cal.App.4th 498, the unadoptable child, unlike Y.H., required “specialized placement.” There, the child’s therapist “reported that [the child] is hyperactive, steals, lies, hoards material items not food, aggravates other children, and pulls her braids out of her head when upset. The report states that the department ‘believes an ideal home for Asia would be a specialized placement’.” (Id. at p. 511.)
3. Specifically Adoptable
Appellants also contend insufficient evidence supported the dependency court’s finding that J.H. and Y.H. were “specifically” adoptable. The Welfare and Institutions Code establishes three circumstances that render a child “difficult to place for adoption, ” and thus not “generally” adoptable: (1) membership in a sibling group that must be kept intact; (2) older than seven years in age; or (3) medical, physical, or mental handicaps. (§ 366.26, subd. (c)(3).) Here, J.H. and Y.H. have lived together since a few weeks after Y.H.’s birth, making them a sibling group; J.H. was one month shy of his eighth birthday when the dependency court terminated appellant’s parental rights in August 2010; and, Y.H. suffered from challenges that some arguably might deem to be handicaps. When, as here, children meet criteria that make them difficult to place for adoption, the dependency court may terminate parental rights only if the court finds they are specifically adoptable. To find a child specifically adoptable, the court must identify prospective adoptive parents who intend to adopt the children once the court frees the children for adoption, and the court must ensure the prospective adoptive parents suffer no legal impediment to adopting the children. If a legal impediment exists that bars the prospective adoptive parents from adopting the children, the court must not terminate parental rights, for to do so risks making the children legal orphans if no other adoptive parents step forward. (In re Helen W. (2007) 150 Cal.App.4th 71, 80; In re Carl R. (2005) 128 Cal.App.4th 1051, 1061-1062; In re Scott M. (1993) 13 Cal.App.4th 839, 844.)
Section 366.26, subdivision (c)(3) speaks of “the presence of a diagnosed... handicap.” We assume solely for the sake of argument that Y.H.’s recognized challenges satisfy the statutory requirement of a “diagnosed handicap.”
Here, the court identified the Hs as prospective adoptive parents. “Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor’s 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 parent’s 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.” (In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650; accord, § 366.26, subd. (c)(1) [“The 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”].)
Appellants contend identification of the Hs as prospective adoptive parents was only the first step; according to appellants, the court also needed to find that no legal impediment existed to the Hs’ adoption of J.H. and Y.H. In support of their assertion, appellants cite a handful of decisions finding prospective adoptive parents unsuitable for adopting children. (See In re Carl R., supra, 128 Cal.App.4th at p. 1062 [prospective adoptive parents’ inability to care for child who will require total care for life amounts to what may be deemed a legal impediment]; In re Helen W., supra, 150 Cal.App.4th at p. 80 [court must consider ability of prospective adoptive parents to care for the child’s needs]; In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205 [prospective adoptive parents’ criminal past and child protective services referral record is impediment to adoption]; In re Brandon T., supra, 164 Cal.App.4th at p. 1410 [prospective adoptive parents’ lack of foster care license is impediment].) Appellants note DCFS had “serious concerns” about the Hs’ past, the nature of which the record does not reveal. However, the adoptive agency satisfied DCFS and the court that whatever those concerns, the Hs had overcome them. Appellants correctly note that the record does not describe the nature of DCFS’s concerns, nor does the record describe in detail what the Hs did to overcome them. The silent record redounds to appellants’ detriment, however. “Having not raised the legal impediment question in the trial court, mother failed to properly preserve for appellate purposes her claim of trial court error. [Citations.] She also did not object to the department’s preliminary assessment as inadequate in this regard and thus forfeited the opportunity to now place the blame for the silent record on the department.” (In re G.M. (2010) 181 Cal.App.4th 552, 563-564.) Having not raised the point below, appellants cannot raise it for the first time on appeal.
The Family Code also sets forth three statutory legal impediments to adoption, but they do not apply here. (See Fam. Code, §§ 8601 [adoptive parent must be at least 10 years older than adopted child], 8602 [child older than 12 must consent to adoption] & 8603 [married prospective parent not legally separated from spouse must obtain spouse’s consent].)
DISPOSITION
The court’s order terminating appellants’ parental rights and placing minors J.H. and Y.H. for adoption is affirmed.
WE CONCUR: BIGELOW, P. J., GRIMES, J.