Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. J32090, J32091
SCOTLAND, P.J.
Susan M. (appellant), the mother of Scott E. and Jennifer E. (the minors) appeals from orders of the juvenile court terminating her parental rights and selecting a permanent plan of adoption for the minors. (Welf. & Inst. Code, §§ 366.26, 395; further section references are to the Welfare and Institutions Code.) On appeal, she contends that the juvenile court’s finding of adoptability is not supported by clear and convincing evidence and that the court erred in failing to find she established an exception to adoption. We disagree and shall affirm the orders.
BACKGROUND
On August 8, 2005, a search warrant was executed at the home of appellant, her husband, and the minors. Five-year-old Scott was crying and had a noticeable red mark on his back. He later told a social worker that appellant had pulled his hair, pushed him down, and kicked him.
The minors’ father has abandoned all contact with them and is not a party to the appeal.
Appellant, who was in her bedroom naked, mumbling, and raving, went into the hallway and picked up a syringe filled with heroin. In a threatening manner, she told the officer to “stay back” or she would lunge at him with the needle.
Appellant ultimately plunged the needle into her thigh and then injected heroin into her stomach before allowing herself to be arrested. She had previously told a social worker that she was a heroin addict who, along with her husband, used proceeds from the sale of a house to spend $50,000 on heroin between February and April 2005.
The minors said that they had access to hypodermic needles with heroin, and seven-year-old Jennifer was able to draw a very detailed picture of a syringe. Five-year-old Scott said that he had been recently injured when his father pushed appellant down during an argument, causing her to fall on Scott.
Jennifer said that although their current residence had pills lying on the floor, ground, and table, it was better than their old home, where there were needles throughout the residence except for the room she shared with Scott. Jennifer also stated she sometimes cooked for Scott and herself when they were unable to awaken their “sleeping” mother. Jennifer believed that appellant put the needles in her legs because “that’s where the owies are.”
The detention report related that both parents had numerous prior referrals since 2000 for drug use, appellant had threatened to kill herself and the minors, appellant was breastfeeding both children while using various narcotic substances, and the minors were subjected to general neglect. The report noted that appellant had convictions for resisting arrest, possessing drug paraphernalia, possessing a hypodermic needle, and burglary.
The juvenile court sustained the jurisdictional allegations of the dependency petition filed on August 10, 2005, based on the August 8 incident and numerous other allegations of neglect. (§ 300, subd. (b).) On October 3, 2005, the minors were removed from the custody of their parents, having already been placed in foster care since the detention hearing on August 11, 2007.
In March 2006, a status review report noted that appellant had been convicted and was sentenced to state prison for six years and eight months for residential burglary and resisting arrest and, thus, she had been incarcerated during the dependency proceeding. The minors were thriving and doing well academically and socially in their placement with their maternal aunt, uncle, and cousin. Pending her sentencing to prison, appellant had visited the minors twice a month, as arranged by Butte County Children’s Services. Because the minors’ father had not seen the minors for over six months and appellant’s prison term would extend beyond the 18-month reunification period, the social worker recommended that parental rights be terminated.
The report prepared for the section 366.26 hearing noted that Jennifer was in good health, on track developmentally, and doing well academically, but was “emotionally fragile.” Following her removal from parental custody, Jennifer struggled to let others take care of her and wanted to be in charge more than appropriate for her age. Scott was in good health and doing well in the first grade. He was “an active, engaging little boy, who is well liked by his peers,” displayed no significant behavioral concerns, was on target developmentally, and was doing well in placement.
The maternal aunt and uncle cared deeply for the minors, but did not feel secure enough to provide a permanent home for them. Appellant had sent a letter expressing her intention to gain access to the minors once she was released from prison, and the aunt and uncle felt they could not protect the minors from appellant.
An adoption assessment reported the following:
In addition to her apparent emotional fragility, Jennifer was manipulative and controlling of those about her. She was doing well in school but had “difficulty with peer relationships.” Scott had a strong bond to his sister, was a good student, and got along well with his peers. The report recommended counseling for both minors after placement.
Appellant was adamant that she could care for her children, and she threatened to take them once she got out of prison. In a letter to the court, appellant expressed her “deepest desire to be reunified with [the minors],” stating: “I promised my children that wild horses cannot stop me from getting them back.”
The minors received telephone calls and letters from appellant but did not actively pursue further contact. Although they were sad at being separated from their mother, the minors felt much safer in their new home. Due to the “chaotic, drug involved environment” that they had experienced while in their parents’ custody, the minors had “a warped sense of what is ‘normal’ in a family.”
The adoptions assessment noted that the minors would be “difficult to place . . . because they are a sibling group and they are six and eight years old,” and that a “specific family suitable for adoption of these children” had not yet been identified. Nevertheless, both the adoptions specialist and adoptions supervisor were “confident that an appropriate adoptive family will be found,” and that the minors would benefit from adoption.
A later addendum to the assessment noted that a prospective adoptive parent had been identified. The person was an unmarried 48-year-old woman, had over 18 years of education, was employed “in the legal field,” was in good health, and wanted to accept the responsibilities of parenthood. “Jennifer and Scott [had] spent a considerable amount of time with the prospective adoptive parent and appear[ed] excited to have the opportunity to be adopted.”
At the section 366.26 hearing, Scott and Jennifer testified.
Scott said he had received five or six letters from appellant and would like to keep getting them. He knew appellant was in a place where she could not visit him, and said he wanted to see his mother when she got out of custody. If he had one wish, he would like to see his parents. Scott did not know where he wanted to live. Four or five times he was with the woman who was interested in adopting the minors. She was “nice,” and Scott believed that she would be his new mother. When asked whether he “want[ed] that to happen,” he said, “Yes.”
Jennifer remembered talking to her mother on the telephone on her birthday, which she enjoyed. She liked getting the calls and letters from appellant and would like to talk to her more. She thought it had been three times she was with the woman interested in adopting the minors, including a visit to her house. When asked how she felt “about the idea that this person might be your new mother,” Jennifer replied: “I don’t really know.”
A social worker testified the minors were with the prospective adoptive mother three times, each over a three-day period with four overnight visits.
The parties stipulated that the maternal aunt and uncle had rejected adopting the minors. They felt a confidential adoption would be best for the children given appellant’s propensity for violence and unpredictable behavior. Appellant’s sister testified that she recalled appellant’s attacks on another maternal aunt, the minors’ father, the maternal grandmother, the maternal great-grandmother, and appellant’s boyfriend.
Appellant testified as follows: Her sister never exhibited any fear the several times they had met between 1998 and 2003. Appellant fought her mother in self defense because her mother constantly beat her. Her sister’s claims that appellant assaulted others were not true. Appellant went to prayer meetings and Narcotics Anonymous in prison and had reserved a bed in a treatment facility upon her release. If a person had guardianship over the minors, appellant will leave them alone until the court allowed her to have contact with them.
The juvenile court found by clear and convincing evidence that the minors were “clearly adoptable” and that their visitation with appellant would not outweigh the benefits of a permanency plan of adoption.
DISCUSSION
I
Appellant contends that the finding of adoptability is not supported by substantial evidence because of the following: (1) the minors’ status as a sibling group; (2) their ages; (3) Jennifer’s emotional state; (4) their close relationship with appellant’s sister and her husband; (5) the temporary stress the minors would experience when moving to a new home; (6) their fantasies about living with appellant in the future; (7) the fact they had never lived with the prospective adoptive parent and were “only in the beginning stages” of developing a relationship with her; and (8)-(11) the minors’ bond with appellant and sadness if they would not see her again. We are mot persuaded.
To terminate parental rights, “the [juvenile] court must find by clear and convincing evidence that it is likely that the child will be adopted.” (In re Asia L. (2003) 107 Cal.App.4th 498, 509; § 366.26, subd. (c)(1).) There must be “convincing evidence of the likelihood that adoption will take place within a reasonable time.” (In re Brian P. (2002) 99 Cal.App.4th 616, 624.)
On appeal, we must uphold the finding of adoptability and termination of parental rights if they are supported by substantial evidence. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) 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.) “In selecting a permanent plan for an adoptable child, there is a strong preference for adoption over nonpermanent forms of placement. [Citation.]” (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)
The issue of adoptability “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.” (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649; orig. italics.) Suitability of the prospective adoptive family, if any, is not relevant to the issue of adoptability. (In re Scott M. (1993) 13 Cal.App.4th 839, 844.)
A prospective adoptive parent’s willingness to adopt a child is evidence that the child is likely to be adopted by that family or some other family in a reasonable time. (In re Lukas B., supra, 79 Cal.App.4th at p. 1154.) The prospect that a child may have some continuing behavioral problems does not foreclose a finding of adoptability. (In re Jennilee T. (1992) 3 Cal.App.4th 212, 224.)
Here, the minors thrived once placed outside their parents’ drug-infested, chaotic home. The close bond that their aunt and uncle formed with them, and the prompt identification of a woman interested in adopting the minors, is substantial evidence of their adoptability.
As appellant points out, the potential adoptive parent had not lived with the minors for six months, nor had she satisfied other statutory requirements for being considered a prospective adopted parent. (See § 366.26.) However, it was unnecessary for her to have satisfied that hurdle at this stage of the proceedings. (In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1651.) That she appeared to be a suitable adoptive parent, expressed interest in the minors, and was making progress towards the goal of adoption support 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. (Ibid.)
Nor do the minors’ ages (seven and eight) at the time of the hearing and their status as a sibling group undermine the juvenile court’s finding of adoptability. A child may be found to be “difficult to place for adoption” only “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.” (§ 366.26, subd. (c)(3).) Here, neither minor had a handicap, and the rapid identification of a potential adoptive parent supports the finding that they were not difficult to place due to their ages and status as a sibling group.
That Jennifer was identified as emotionally fragile, unwilling to let others help her, and “parentified” is understandable given the extreme circumstances of her former home life with appellant. On the other hand, the adoption assessment noted that Jennifer “is an engaging, talkative, take charge little girl, who with a stable adoptive home and supportive therapy, should be able to overcome many of the issues related to the instability and trauma of her childhood.” Indeed, the juvenile court judge, recognized the minors’ resilience: “[I] had the opportunity to meet these two lovely children. I’m impressed with them. They’re beautiful kids, and I’m impressed with how they managed to progress this far in their life, considering all the difficulties that they have had.” Thus, the court reasonably concluded that the manner in which Jennifer was dealing with the emotional harm inflicted by appellant supported, rather than undermined, a finding that she was adoptable.
Appellant cites her bond with the minors, and the disruption caused by their separation from their aunt and uncle. Nonetheless, the minors understood the ramifications of adoption and were not opposed to it; in fact, Scott wanted to be adopted. Although permanent placement with the aunt and uncle might have been less traumatic for the minors, this was foreclosed by the legitimate fear that the aunt and uncle could not protect the minors from appellant upon her release from prison.
In sum, substantial evidence supports the juvenile court’s finding that the minors were adoptable.
II
Appellant next claims that the juvenile court abused its discretion by failing to apply the exception to adoption contained in subdivision (c)(1)(A) of section 366.26. We disagree.
There are only limited circumstances which permit the court to find a “compelling reason for determining that termination [of parental rights] would be detrimental to the child . . . .” (§ 366.26, subd. (c)(1).) The party claiming the exception has the burden of establishing the existence of any circumstances which constitute an exception to termination of parental rights. (In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252.)
One circumstance under which termination of parental rights would be detrimental to a minor is: “The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(A).) The relationship must promote “the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents.” (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)
Here, appellant tried to maintain contact with the minors during her incarceration. The minors enjoyed those contacts but did not actively pursue more. While they wanted to see their mother again, this did not make them hostile to adoption.
Balanced against the possible benefits of contact was the significant threat to the minors’ welfare that would result from continued exposure to appellant, who had physically abused Scott and subjected both children to a chaotic and dangerous home life. In light of appellant’s repeatedly expressed intent to take her children from their caregiver once she is released from prison, the juvenile court reasonably could conclude that allowing their continued contact with appellant would create an unacceptable risk to their well-being. In other words, possible detriment to the minors was not so significant as to outweigh the benefits to them of a stable, permanent home.
DISPOSITION
The orders are affirmed.
We concur: BLEASE , J., DAVIS , J.