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In re Layla

Court of Appeals of California, Third District, (Yalo).
Nov 6, 2003
No. C044056 (Cal. Ct. App. Nov. 6, 2003)

Opinion

C044056.

11-6-2003

In re LAYLA B. et al., Persons Coming Under the Juvenile Court Law. YOLO COUNTY DEPARTMENT OF EMPLOYMENT AND SOCIAL SERVICES, Plaintiff and Respondent, v. SHELLEY E., Defendant and Appellant.


Shelly E., mother of the minors, appeals from orders of the juvenile court terminating her parental rights and freeing the minors for adoption by the maternal grandparents. (Welf. & Inst. Code, § 366.26.[]) Appellant contends substantial evidence does not support the courts finding the minors were adoptable because they were adoptable only by their maternal grandparents who, due to their "advanced" age, were unable to provide them a stable home. We affirm.

All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

FACTS

The four minors, Layla, 13, Jacob, 11, Samantha, 9, and Justine, 7, were removed from parental custody in August 2000 and placed with the maternal grandparents. Appellant failed to reunify and the court terminated reunification services in June 2002.

The October 2002 report for the section 366.26 hearing stated the minors, now 15, 13, 12 and 9, were doing well in the maternal grandparents care and recommended adoption by them as the appropriate permanent plan. The maternal grandparents, ages 71 and 72, were generally healthy, committed to the minors and wanted to adopt them, having provided for them for the last two years. The state Department of Social Services assessment attached to the report also concluded the minors were adoptable and recommended termination of parental rights with a permanent plan of adoption by the maternal grandparents. All four minors wanted to be adopted.

At the hearing, appellant presented evidence attempting to show that termination of her parental rights would be detrimental to the minors because they would benefit from continued contact with her. (§ 366.26, subd. (c)(1)(A).) No one addressed the question of the minors adoptability. The court found the minors were likely to be adopted, terminated parental rights, and selected adoption as the appropriate permanent plan.

DISCUSSION

Appellant now contends the courts finding the minors were adoptable is not supported by substantial evidence because the prospective adoptive parents are 71 and 72 years old and cannot be expected to provide the stable home envisioned by the permanent plan of adoption.[]

Respondent contends the issue is waived for failing to raise it in the trial court. Because the issue is fundamentally one of substantial evidence, it is not subject to waiver. (In re Brian P. (2002) 99 Cal.App.4th 616, 622-623.)

Determination of whether a child is likely to be adopted focuses first upon the characteristics of the child. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) The existence or suitability of the prospective adoptive family, if any, is not relevant to this issue. (Ibid.; In re Scott M. (1993) 13 Cal.App.4th 839, 844.) "[T]here must be convincing evidence of the likelihood that the adoption will take place within a reasonable time." (In re Brian P., supra, 99 Cal.App.4th at p. 624.) The fact that a prospective adoptive family is willing to adopt the minor is evidence that the minor is likely to be adopted by that family or some other family in a reasonable time. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.)

It is only if the characteristics of the child make it so difficult to find a family willing to adopt the child that the child is likely to be adopted only if the prospective adoptive parents are willing to do so that any inquiry into the existence of a legal impediment to adoption by the prospective adoptive parents may be relevant at the section 366.26 hearing. (In re Sarah M., supra, 22 Cal.App.4th at p. 1650; In re Scott M, supra, 13 Cal.App.4th at p. 844; Fam. Code §§ 8600-8622, 8730-8736.)

There was substantial evidence the minors were likely to be adopted in a reasonable time by the maternal grandparents. The minors were doing well in the care of the maternal grandparents, consented to be adopted and the maternal grandparents, based upon preliminary assessments, were found to be suitable prospective adoptive parents.

Assuming the sibling group was adoptable only because the maternal grandparents were willing to do so, appellant was entitled to explore legal impediments to their adoption of the minors. However, age of the prospective adoptive parent does not constitute a legal impediment so long as the prospective adoptive parent is "at least 10 years older than the child." (Fam. Code, § 8601.) Clearly that criteria was met in this case.

Appellants concerns about the age of the prospective adoptive parents relate only to suitability. "General suitability to adopt is a subjective matter which does not constitute a legal impediment to adoption." (In re Scott M., supra, 13 Cal.App.4th at p. 844.) Moreover, appellants apprehensions about long-term stability of the placement are based on speculation that not only will the maternal grandparents not survive to parent the minors to their majority but also that they will not make adequate provisions, as would any responsible parent, for guardianship and continued caretaking by other relatives or friends. Such speculation cannot undermine the findings and orders of the juvenile court which are firmly based upon substantial evidence in the record.

DISPOSITION

The orders of the juvenile court are affirmed.

We concur: SCOTLAND, P.J. and NICHOLSON, J.


Summaries of

In re Layla

Court of Appeals of California, Third District, (Yalo).
Nov 6, 2003
No. C044056 (Cal. Ct. App. Nov. 6, 2003)
Case details for

In re Layla

Case Details

Full title:In re LAYLA B. et al., Persons Coming Under the Juvenile Court Law. YOLO…

Court:Court of Appeals of California, Third District, (Yalo).

Date published: Nov 6, 2003

Citations

No. C044056 (Cal. Ct. App. Nov. 6, 2003)