Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from orders of the Superior Court of Los Angeles County Super. Ct. No. CK55496, Sherri Sobel, Juvenile Court Referee.
Jesse F. Rodriguez, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Judith A. Luby, Principal Deputy County Counsel, for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Defendant R.J. appeals from orders made after a hearing pursuant to Welfare and Institutions Code section 366.26 terminating her parental rights as mother of her daughter, M.P. We affirm the orders.
All further section references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Prior to M.P.’s birth, defendant R.J. (Mother) had another child, Anthony. In May 2004, the Department of Children and Family Services (DCFS) detained eight-month-old Anthony on the basis that Mother and Anthony’s father, Pedro P. (Father), medically neglected Anthony and engaged in domestic violence. Mother and Father failed to comply with court orders regarding reunification. In due course, their parental rights were terminated and Anthony was freed for adoption. Prospective adoptive parents, Mr. and Mrs. H., were in the process of adopting him at the time the section 366.26 permanency hearing for M.P. was conducted.
The instant case pertains only to M.P., and not to Anthony. However, some facts concerning Anthony are relevant with respect to M.P.’s case.
Father is not a party to this appeal.
While Anthony’s dependency case was pending, Mother reported to DCFS that she had given birth to M.P. Mother was uncooperative and evasive in response to DCFS’s efforts to determine M.P.’s residence. DCFS determined that M.P. was residing in the home of her maternal grandmother (grandmother). On August 25, 2005, the social worker met with Mother and M.P. at the grandmother’s home. Mother did not have most of the basic necessities for M.P.’s care. Mother was transient, had a history of unresolved domestic violence, had failed to provide medical care for M.P. and had failed to comply with the court’s orders in Anthony’s case. Father had an extensive history of criminal convictions, including domestic violence. He had failed to comply with the court’s orders in Anthony’s case. Accordingly, DCFS detained M.P. at the conclusion of the social worker’s meeting with Mother and M.P. At the August 30, 2005 detention hearing, the court found that a prima facie case for detention had been established and ordered that M.P. be detained and placed with her brother, Anthony.
In the jurisdiction/disposition report, the social worker noted that M.P. did not suffer from any chronic illness. Her foster mother reported that she was doing well, had a healthy appetite and usually slept through the night. M.P. appeared to be developing age appropriately in all areas of physical development.
At the jurisdiction/disposition hearing held on September 30, 2005, following Mother’s voluntary waiver of rights and consideration of evidence, including the social worker’s jurisdiction/disposition report, the juvenile court declared M.P. to be a ward of the court under section 300, subdivisions (b) and (j), ordered that DCFS provide family reunification services to Mother only, not to Father, and set a hearing for March 30, 2006. The court found M.P. to be a child described by section 300, subdivision (j), based on the parents’ history of domestic violence, medically neglecting Anthony, and failure to comply with the case plan in Anthony’s case, as well as on Father’s history of drug and alcohol abuse. Father was denied reunification services pursuant to section 361.5, subdivision (b)(10), having had his services terminated in Anthony’s case due to his noncompliance. Anthony and M.P. were in the same placement. Mother had maintained consistent visitation with M.P.
In the interim review report prepared for the December 5, 2005 special/interim hearing (§ 366.22), the social worker indicated that M.P. had been under the care and supervision of her paternal aunt (aunt) for the past three months. She was always smiling, and her growth and infant development were progressing well. M.P.’s medical and vaccination appointments were up to date. Her aunt stated that she and her husband were strongly interested in adopting Anthony and M.P. in the event the children did not reunify with Mother. Mother’s visits were sporadic, not demonstrating that she cared for and wanted to nurture M.P. Mother had only partially complied with her counseling required under the case plan. At the hearing, the juvenile court ordered that Mother’s reunification services as to Anthony be terminated based on her failure to comply, set a section 366.26 permanent plan hearing for Anthony, and ordered DCFS to provide Mother and M.P. permanent placement services for the hearing to be held March 30, 2006.
The social worker’s status review report for the six-month family reunification review hearing (§ 366.21, subd. (e)) on March 30, 2006 indicated that M.P. and Anthony remained placed with their aunt. M.P. had completed an annual physical exam and was reported to be in good health. She appeared happy and was developing appropriately. M.P.’s aunt again indicated that she would like to adopt M.P. if she was not reunified with Mother. Mother’s visits with M.P. remained sporadic, and Mother had not been fully compliant with the case plan as to counseling. Father had no contact with M.P. At the close of the six-month review hearing, the juvenile court continued its prior order with respect to M.P.
The social worker’s interim review report for the supplemental hearing on May 3, 2006 indicated that M.P. and Anthony remained placed with their aunt and an adoption homestudy for Anthony had been completed. At the hearing, the juvenile court made no change in its orders related to M.P.
In the status review report prepared for the section 366.21, subdivision (f), 12-month review hearing held on November 1, 2006, the social worker indicated that M.P. had completed an update to her annual physical exam. She appeared happy and was developing age appropriately. M.P. was living with her aunt, together with Anthony. She appeared to be attached to her aunt and her aunt reported that M.P. was attached to her brother. M.P.’s aunt and her husband were in the process of adopting Anthony, as to whom parental rights had been terminated. They also were willing to provide a permanent home for M.P. Mother’s visits with M.P. remained sporadic, with only three confirmed visits during the prior six months, and she had not bonded with M.P. She continued not to comply fully with the court orders regarding family reunification. DCFS recommended that a permanent plan be determined for M.P. at the section 366.26 hearing, and that she not be returned to Mother’s home. At the hearing, the juvenile court continued the matter and made no change in its prior orders regarding M.P.’s status and placement.
In the interim review report for the proceedings to be held on December 19, 2006, the social worker indicated that M.P. continued to reside with her aunt and Mother continued to miss scheduled visits with M.P. Although Mother’s attorney indicated that Mother had been present earlier in the day, when the case was heard, she was not available. The juvenile court found that Mother and Father had failed to comply with the case plan and ordered termination of reunification services for Mother.
On January 8, 2007, DCFS removed M.P. and Anthony from their aunt’s home and placed them together in a foster home. The removal was based upon the fact that the aunt had allowed her adult son, who had an extensive criminal history, to live in the home, rendering the aunt’s home unsafe for the children and unable to comply with applicable licensing standards. Additionally, the aunt had financial difficulties which had resulted in utilities and heating being disrupted in the home. At the January 8, 2007 detention hearing, the juvenile court ordered the children’s removal and detention in foster care. It ordered DCFS to search for another adoptive home for M.P. and Anthony and provide permanent placement services to M.P. and Mother. Mother was not present at the hearing.
On January 31, 2007, the juvenile court sustained a section 387 petition filed January 8, 2007 as to M.P., finding that her aunt was unable to provide stable housing. The court ordered DCFS to look for a home where both M.P. and Anthony could be placed together and set M.P.’s permanent plan hearing for April 19, 2007.
On April 19, 2007, DCFS submitted a last minute report to inform the juvenile court that M.P. and Anthony were currently placed in a licensed foster home with a homestudy that had been approved in November 2006. The report indicated that the prospective adoptive parents were committed to providing the children a home and had facilitated contact between the children and their aunt, who was supportive of the prospective adoption.
At M.P.’s section 366.26 permanent plan hearing, the court also considered the DCFS section 366.26 report. The report indicated that M.P. had been placed in the home of prospective adoptive parents, Mr. and Mrs. H. They had visited with M.P. and Anthony in their home prior to the children’s placement there on March 15, 2007. At the time of placement, DCFS social workers noted that Mr. and Mrs. H. had already integrated photographs of M.P. and Anthony in their home, M.P. and Anthony were already acquainted with Mr. and Mrs. H. and their two children and did not cry upon the departure of the social workers. The section 366.26 report stated: “Prospective adoptive parents, Mr. and Mrs. H. have expressed an interest in adopting the child, [M.P.]. Mr. and Mrs. H. are committed to providing [M.P.] and her brother, Anthony [], with a permanent and stable home.” They are in their mid-thirties, college graduates, actively involved in church and the parents of two biological children, ages five and seven. No criminal history was found for either of them. A social worker met with M.P. and Anthony and their prospective adoptive parents about two weeks after the placement. He observed that each child sought out the prospective adoptive parents when he or she needed something. At a different time, a social worker informed the prospective adoptive parents about the responsibilities of adoption, and the report indicated that “Mr. and Mrs. H are committed to providing M.P. with a permanent stable loving home and are aware of the financial and legal responsibilities that come with adoption.”
The report also indicated that M.P. had completed another update to her annual physical examination and appeared to be developing age appropriately. In the past few months, Mother had visited M.P. and Anthony once and cancelled two subsequent scheduled visits. The social worker recommended the juvenile court make findings that clear and convincing evidence showed that it is likely that M.P. would be adopted (§ 366.26, subd. (c)(1)) and that adoption is the permanent placement goal for M.P. (id., subd. (c)(3)). The social worker also recommended that the parental rights of Mother and Father be terminated and that M.P. be placed for adoption.
Mother and Father were not present at the April 19, 2007 section 366.26 hearing. The juvenile court stated that it had read and considered the DCFS section 366.26 report. The juvenile court found by clear and convincing evidence that M.P. was adoptable and that no exceptions to adoption applied. The court ordered that all parental rights were terminated, and that M.P. be referred for adoptive planning.
DISCUSSION
Mother contends that the juvenile court erred in finding that M.P. was adoptable and, on that basis, terminating Mother’s parental rights. We disagree.
When, as in this case, a parent is unsuccessful in completing reunification with her child, a permanent plan for the child’s future must be made (§§ 366.21, subd. (g), 366.22, subd. (a)) and the juvenile court selects and implements the permanent plan at a hearing (§ 366.26). As a matter of public policy, adoption is given first priority as the most desirable permanent plan. (§ 366.26, subd. (b); In re Edward R. (1993) 12 Cal.App.4th 116, 122.) In order to select adoption, the juvenile court must determine by clear and convincing evidence that it is likely the child will be adopted within a reasonable time. (§ 366.26, subd. (c)(1); In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164.) To be “clear and convincing,” the evidence must show a high probability of such adoption. (In re Amelia S. (1991) 229 Cal.App.3d 1060, 1065.) If the juvenile court makes such a determination, the burden then shifts to the parent to show termination would be detrimental to the child under one of four statutory exceptions. (§ 366.26, subd. (c)(1)(A)-(D).) If the parent fails to meet the burden, the juvenile court must terminate parental rights. (§ 366.26, subd. (c)(1).)
We review a juvenile court’s termination order based upon a finding of adoptability to 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 Brian P. (2002) 99 Cal.App.4th 616, 623-624.) Substantial evidence must be of ponderable legal significance, reasonable in nature, credible and of solid value. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) We do not reweigh evidence, evaluate credibility or resolve evidentiary conflicts. (Ibid.) Rather, we view the evidence and reasonable inferences based upon it in the light most favorable to the juvenile court’s order. (Gananian v. Zolin (1995) 33 Cal.App.4th 634, 638.)
If substantial evidence supports the juvenile court’s order, we must affirm it. (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) The question on review is not whether the record contains substantial evidence to support a different order, but whether substantial evidence supports the order actually made. (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 207.)
Mother contends that the social worker’s determinations in regard to M.P. did not constitute substantial evidence supporting a finding of adoptability. The social worker’s determinations were part of the DCFS assessment report required by section 366.26, which was submitted to the court for the permanent placement hearing. Specifically, the social worker determined that M.P. was likely to be adopted based on her one-month placement with a family with an approved home study that expressed an interest in adopting M.P., that she had bonded with the prospective adoptive parents and that she was developing age appropriately and mentally and emotionally stable.
To find that a child is adoptable, a juvenile court focuses on the child. (In re Asia L. (2003) 107 Cal.App.4th 498, 510.) The initial inquiry is whether there is clear and convincing evidence that the child’s age, physical condition and emotional state are likely to make it difficult to find an individual willing to adopt the child. (Ibid.) The second question is whether there is clear and convincing evidence that adoption is likely to take place within a reasonable time. (Ibid.) It is not necessary that an approved prospective adoptive parent has already taken the child into the parent’s home or even expressed an interest in adopting. (Ibid.) However, that a prospective adoptive parent has expressed interest in adopting the child is evidence that the child’s age, physical condition and emotional state are not likely to dissuade persons interested in adoption generally from adopting the child. (Ibid.) “In other words, a prospective adoptive parent’s willingness to adopt generally indicates the [child] is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family.” (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1650.)
In the instant case, Mother makes no contention that M.P. is of an age, physical condition or emotional state that is likely to dissuade anyone from adopting her. Yet, these factors are the focus of the juvenile court’s determination of M.P.’s adoptability. (In re Sarah M., supra, 22 Cal.App.4th at p. 1649.) Mother focuses instead on the prospective adoptive parents. She asserts that a one-month placement in the home of the prospective adoptive parents is too short a time to evaluate whether they will consider adopting M.P. Evidence that M.P. was already in a potential adoptive home for any length of time or at all, however, is not necessary to find adoptability. (Ibid.)
Further, Mother argues that the fact that the foster parents “expressed an interest in adopting [M.P.]” is far short of the commitment necessary for a finding of adoptability. Mother’s contention lacks merit. There is no requirement to show that anyone expressed a commitment to, or even an interest in, adopting M.P. (In re Brian P., supra, 99 Cal.App.4th at p. 624.)
Mother also contends that the fact that M.P. and Anthony were considered a sibling group by DCFS was sufficient to negate any finding that it was likely that M.P. would be adopted. Membership in a sibling group is one of three bases upon which a child may be considered difficult to place for adoption. (§ 366.26, subd. (c)(3).)
Mother relies on In re Amelia S., supra, 229 Cal.App.3d 1060 as support for her argument that because M.P. is a child in a sibling group and her foster parents had done no more than expressed an interest in adopting her, she is not likely to be adopted. The Amelia S. case is distinguishable on its facts from the instant case. In Amelia S., ten siblings had been placed in various foster homes and were considered a sibling group. The section 366.26 permanency hearing report indicated that foster parents with whom some of the children were placed “were considering adoption.” (Id. at p. 1065.) The Amelia S. appellate court concluded that “[t]his is a far cry, however, from the clear and convincing evidence required to establish the likelihood of adoption,” and that the juvenile court erred in finding that the children were adoptable and in terminating parental rights. (Ibid.)
There were additional facts, however, that supported the Amelia S. court’s conclusion that the juvenile court erred in finding that the children in the sibling group were adoptable. The permanency hearing report indicated that the children “had various developmental, emotional and physical problems, some of a serious nature.” (In re Amelia S., supra, 229 Cal.App.3d at p. 1063.) Each of the children had been determined by the responsible county agency to be “a special needs child in that the [child] is part of a sibling set of ten [and] . . . suffers from social delays as well” and as a result, was considered to be “a hard to place child.” (Ibid.) Thus, the evidence did not support the fundamental criterion for adoptability—that given the age, physical condition and emotional state of the child, it is likely the child will be adopted within a reasonable time. (In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.)
All of the DCFS reports submitted in the instant case, by contrast, show that at the time of her section 366.26 hearing, M.P. was very young, only two years old, was happy, healthy and exhibited age-appropriate developmental traits. Thus, substantial evidence supports a finding by clear and convincing evidence that M.P.’s age, physical condition and emotional state will not make it difficult to find a person willing to adopt her. (In re Sarah M., supra, 22 Cal.App.4th at p. 1649.)
Additionally, two prospective adoptive families had indicated a desire to adopt M.P.—first, her paternal aunt and then Mr. and Mrs. H., her foster parents. This is evidence that M.P. is likely to be adopted within a reasonable time either by her foster parents or by some other family. (In re Tabatha G., supra, 45 Cal.App.4th at p. 1164; In re Sarah M., supra, 22 Cal.App.4th at p. 1650.) M.P.’s foster parents are already in the process of adopting her brother Anthony. This indicates that the fact that she and Anthony have been designated as a sibling group is not likely to be an impediment to her adoption within reasonable time. (See In re Sarah M., supra, at p. 1651.) Even if her status as part of a sibling group were considered a factor making it difficult to achieve adoption, there is countervailing evidence that M.P.’s foster parents desire to adopt her and have met the qualification of having an approved home study. Thus, there is substantial evidence to support a finding by clear and convincing evidence that M.P. is likely to be adopted within a reasonable time. (In re Tabatha G., supra, at p. 1164.)
Accordingly, we conclude that the record contains substantial evidence to support a finding by clear and convincing evidence that M.P. is likely to be adopted within a reasonable time. (§ 366.26, subd. (c)(1); In re Brian P. (2002) 99 Cal.App.4th 616, 623-624.) The juvenile court properly terminated Mother’s parental rights. (§ 366.26, subd. (c)(1).)
The orders are affirmed.
We concur: VOGEL, Acting P. J., ROTHSCHILD, J.