Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. JD224648, JD225686
BUTZ, J.
Mother, Lisa O., appeals from the order terminating her parental rights. She contends there was insufficient evidence supporting the finding that the children, Raymond S. and Alex S., were adoptable. We shall affirm.
PROCEDURAL HISTORY AND FACTUAL BACKGROUND
In February 2005, mother gave birth to Raymond, tested positive for amphetamine, and admitted using methamphetamine. Dependency proceedings commenced relative to both Raymond and mother’s older child, Eric O. Mother participated in a variety of services, including a drug treatment program. In 2006, Eric’s case was dismissed, and Eric’s father retained primary legal custody of Eric. On March 16, 2007, dependency was terminated as to Raymond.
Eric is not a subject of this appeal.
On March 18, 2007, mother tested positive for methamphetamine. A few days later mother gave birth to Alex, and both Alex and Raymond were taken into protective custody. On March 27, 2007, Welfare and Institutions Code section 300 petitions were filed for both Alex and Raymond and they were placed in a foster home on March 28, 2007. They remained in that same home throughout the proceedings.
Undesignated statutory references are to the Welfare and Institutions Code.
Mother was ordered to participate in drug treatment programs and drug dependency court as part of her reunification plan. Mother did not actively engage in a drug treatment program until 11 months after the children had been declared dependents and removed from her custody. Finding mother’s efforts were “way too little and way too late,” that she continued to be involved with men who abused her, that she had not addressed her substance abuse problems, and that the boys deserved permanence, on February 22, 2008, the juvenile court terminated reunification services and selected a permanent plan of adoption.
The children were doing well in their foster placement and their foster mother wanted to adopt them.
Alex, who at this point was 14 months old, appeared slightly delayed intellectually and was not developmentally on target. He was not yet walking and had “few words.” Alex had been referred to Alta California Regional Center (Alta Regional) for assessment for the Early Intervention Program and to the University of California M.I.N.D. Institute. These reports were pending.
Raymond, then three years and three months old, also appeared to be slightly delayed intellectually and not developmentally on target. His speech and language skills were delayed, however, his gross motor skills were intact. During the previous dependency proceedings, Raymond had been referred to Alta Regional for assessment. He did not qualify for Alta services. It was noted at that time, Raymond was slow to walk and talk. However, in March 2007, when he was two years old, he was developmentally on target. In these proceedings, Raymond was assessed by the University of California M.I.N.D. Institute and the report was pending. He was also referred for a speech and language evaluation.
Both children were physically healthy. The only behavioral problem noted for either child was that Raymond was working on “anger and tantrums when he does not get his way.”
The social worker noted both children appeared to have special needs due to their developmental delays.
Foster mother was a prospective adoptive parent, as she wished to adopt both children. The children were emotionally bonded and significantly attached to their prospective adoptive mother, with whom they had been placed for over a year. The prospective adoptive mother had been screened for child abuse and neglect; advised of the emotional, legal, and financial responsibilities of adoption; had attended an adoption orientation; and submitted an adoption application packet and home study to the social worker.
On September 17, 2008, the court found by clear and convincing evidence that the children were likely to be adopted, and the parental rights of father and mother were terminated.
DISCUSSION
Mother now contends there was insufficient evidence to find Raymond or Alex adoptable. We disagree.
An order terminating parental rights must be affirmed if it is supported by substantial evidence. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) “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.)
“‘At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must make one of four possible alternative permanent plans for a minor child.... The permanent plan preferred by the Legislature is adoption.’” (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368, italics omitted.) “In order for the court to select and implement adoption as the permanent plan, it must find, by clear and convincing evidence, the minor will likely be adopted if parental rights are terminated.” (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164; § 366.26, subd. (c)(1).)
“The issue of adoptability posed in a section 366.26 hearing focuses on the minor, e.g., whether the minor’s age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor. [Citations.] Hence, it 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.) On the other hand, “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.” (Id. at pp. 1649-1650.)
Here, the children are young, part of a small sibling group, and are both physically healthy. They have lived for over a year with the prospective adoptive parent, virtually all of Alex’s life and much of Raymond’s. Short of an occasional temper tantrum from Raymond, they have no emotional or behavioral problems. The only potential obstruction to the children being adopted is that they may have developmental delays. However, these delays are not so significant or severe that they are likely to dissuade individuals from adopting them.
We note earlier testing of Raymond indicated he was not eligible for the Alta Regional program, and that although he was slow to develop certain language skills, he ultimately was on target. Further, the fact that the woman who has been raising these children for well over a year wants to adopt them demonstrates, whatever their developmental delays, they are not likely to hinder them from being adopted in a reasonable time. Each minor was individually generally adoptable and the sibling set of two was not so large as to present a significant bar to adoption. (See, e.g., In re B.D. (2008) 159 Cal.App.4th 1218, 1222, 1227.)
The fact that the current foster mother expressed interest in the minors, and was making progress towards the goal of adoption supports a determination that the minors were likely to be adopted within a reasonable time either by this prospective adoptive parent or by another suitable adoptive family. (In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1651.)
Accordingly, substantial evidence supports the court’s determination that the children were likely to be adopted in a reasonable time.
Mother also challenges the suitability of the prospective adoptive mother. “[Q]uestions concerning the ‘suitability’ of a prospective adoptive family are irrelevant to the issue whether the minors are likely to be adopted. General suitability to adopt is a subjective matter which does not constitute a legal impediment to adoption. If inquiry into the suitability of prospective adoptive parents were permitted in section 366.26 hearings, we envision that many hearings would degenerate into subjective attacks on all prospective adoptive families in efforts to avoid termination of parental rights. Such a result is not envisioned by the statutory scheme. Rather, the question of a family’s suitability to adopt is an issue which is reserved for the subsequent adoption proceeding.” (In re Scott M. (1993) 13 Cal.App.4th 839, 844; accord, In re T.S. (2003) 113 Cal.App.4th 1323, 1326.)
There are, however, “some cases [in which] 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. Where the social worker opines that the minor is likely to be adopted based solely on the existence of a prospective adoptive parent who is willing to adopt the minor, an inquiry may be made into whether there is any legal impediment to adoption by that parent. [Citations.] In such cases, the existence of one of these legal impediments to adoption is relevant because the legal impediment would preclude the very basis upon which the social worker formed the opinion that the minor is likely to be adopted.” (In re Sarah M., supra, 22 Cal.App.4th at p. 1650, italics added.)
The term “specifically adoptable,” therefore, denotes a child who but for the existence of a prospective adoptive parent would not be adoptable. The suitability of the prospective adoptive parent is not an issue when the child is generally adoptable; it may be placed in issue when the child is specifically adoptable.
In this case, the social worker did not opine that the children were likely to be adopted solely on the basis of the existence of a prospective adoptive parent. Nor is this a case in which the parties agreed that the children were adoptable only because there was someone willing to adopt them. (In re Carl R. (2005) 128 Cal.App.4th 1051, 1061.) In fact, at the section 366.26 hearing, the issue of specific adoptability was never raised or discussed. Mother did not contest the issue of adoptability, let alone argue that the children were only specifically adoptable. She did not challenge the prospective adoptive mother’s suitability to adopt the boys or argue that there might be any legal impediment to the adoption. Mother therefore forfeited the right to claim on appeal that Raymond and Alex are specifically adoptable. “A party forfeits the right to claim error as grounds for reversal on appeal when he or she fails to raise the objection in the trial court. [Citations.] Forfeiture, also referred to as ‘waiver,’ applies in juvenile dependency litigation and is intended to prevent a party from standing by silently until the conclusion of the proceedings.” (In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222.)
Although a party need not object below to a factual determination made by the court in order to challenge the sufficiency of the evidence supporting that particular determination on appeal (In re Brian P. (2002) 99 Cal.App.4th 616, 623), the issue of specific adoptability was never raised and the court did not find Raymond and Alex specifically adoptable. Here, the social worker rendered an unqualified opinion that Raymond and Alex were adoptable. Consistent with this opinion, the court made an unqualified finding that the children were likely to be adopted. We construe the court’s finding as to adoptability to mean adoptability in the general sense, a finding which is supported by substantial evidence. We therefore reject mother’s attempt, under the guise of a sufficiency of the evidence argument, to inject into this appeal the issue of specific adoptability. All issues pertaining to the suitability of the prospective adoptive parent to adopt are reserved for the subsequent adoption proceeding. (In re Scott M., supra, 13 Cal.App.4th at p. 844; accord, In re T.S., supra, 113 Cal.App.4th at p. 1326.)
DISPOSITION
The order of the juvenile court is affirmed.
We concur: RAYE, Acting P. J., CANTIL-SAKAUYE, J.