Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. OJ08008796.
RUVOLO, P.J.
I.
Introduction
S.R. (mother) appeals from an order of the Alameda County Superior Court terminating parental rights to her daughter, T.R (minor) and selecting adoption as the permanent plan. (Welf.& Inst. Code, § 366.26.) On appeal mother claims: (1) the juvenile court abused its discretion when it continued the minor’s placement in foster care rather than placing the minor with mother’s cousin, Doris S.; and (2) there was a lack of substantial evidence that the minor was adoptable. After considering these arguments, we find no basis to reverse the order terminating parental rights.
All further statutory references are to the Welfare and Institutions Code.
II.
Facts and Procedural History
Given that mother does not challenge the sufficiency of the evidence supporting the termination of her parental rights, we provide an abbreviated set of facts.
The minor was taken into protective custody in December 2007, one day after her birth, while still in the hospital. She was born prematurely at 32-33 weeks after being exposed prenatally to cocaine.
On January 2, 2008, the Alameda County Social Services Agency (the Department) filed a petition alleging that the minor came within the provisions of section 300, subdivision (b) (failure to protect) and subdivision (g) (no provision for support). The petition alleged the minor had suffered, or there was a substantial risk that she would suffer, serious physical harm or illness because of mother’s inability to provide regular care for the minor due to mother’s mental illness, developmental disability, or substance abuse. The petition also alleged that the identity, whereabouts, and ability of the alleged father to provide care and support for the minor was unknown. On January 17, 2008, the juvenile court took jurisdiction over the minor.
The minor remained in foster care through the 6-month review period. On September 2, 2008, Mother entered Center Point Inc. Residential Women and Children’s Program (Center Point). Mother’s older daughter, who was four years old at the time, went to live with mother at Center Point. Prior to that time, the daughter had been living with Doris S., mother’s cousin. The minor was placed with mother and sister at Center Point for a 30-day trial visit on October 7, 2008. The minor adjusted well to Center Point. According to mother, the minor was especially alert and interactive when she was with her sister. It was noted that the siblings shared a bond, and that their placement together was “essential and appropriate.”
At the 12-month review hearing held on November 7, 2008, the court found that the extent of progress made by Mother toward alleviating or mitigating the causes necessitating placement had been substantial. In considering the permanency planning options for the minor, the court concluded the minor should be returned to mother’s custody. Family maintenance services were ordered.
After mother was discharged from residential treatment on January 20, 2009, she sometimes left the minor and her sister with Doris S. Mother continued to struggle with drug addiction, and she entered a residential drug treatment program, La Casa Ujima, on March 2, 2009, with the minor only, leaving her older daughter with Doris S. Mother left La Casa Ujima on the evening of March 14, 2009, leaving the minor at the program.
The minor was taken into protective custody on March 14, 2009, and placed in foster care. The minor’s sister remained with Doris S. and has been in her care and custody throughout these proceedings. The Department filed a supplemental petition on behalf of the minor on March 17, 2009. The petition was based on the allegations that mother had tested positive for cocaine on or about January 29, 2009, February 2, 2009, and February 4, 2009; that she had entered three residential treatment programs but was discharged from each of them for parenting concerns and failure to comply with the rules; and that she had entered three outpatient treatment programs but failed to complete any of them.
Mother’s reunification services were terminated on May 15, 2009, and a section 366.26 hearing was set. Mother’s parental rights were terminated at the section 366.26 hearing held on April 29, 2010. The minor was two years four months old at the time of the section 366.26 hearing. Mother did not attend the hearing, except by counsel, and her whereabouts were unknown. The court found by clear and convincing evidence that it was likely that the minor will be adopted, and that adoption was the appropriate permanent plan.
III.
Discussion
A. Relative Placement
Mother’s primary claim of error is that the court erred in failing to place the minor with mother’s cousin, Doris S., as mother desired and repeatedly requested through her counsel. Initially, the Department contends mother lacks standing to raise the issue of relative placement in an appeal from an order terminating her parental rights. The Department also claims that this issue was either waived or forfeited. We prefer to meet mother’s arguments on their merits. (In re S.B. (2004) 32 Cal.4th 1287, 1293 [urging caution in applying waiver or forfeiture rule in dependency proceedings, particularly where child’s interests are involved].)
The issue of whether a parent has standing to contest a juvenile court’s relative placement decision after family reunification services have been terminated, but before parental rights have been terminated, is currently before our Supreme Court in In re K.C. (2010) 184 Cal.App.4th 120, review granted July 14, 2010, S183320.
All parties agree that a trial court’s order regarding placement with a relative is reviewed under the abuse of discretion standard. (Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 863.) In applying this standard, “ ‘[b]road deference must be shown to the trial judge. The reviewing court should interfere only “ ‘if we find that under all the evidence, viewed most favorably in support of the trial court’s action, no judge could reasonably have made the order that he did.’ [Citations.]” [Citation.]’ [Citation.] ” (Ibid.)
When a child is removed from the physical custody of her parents, “preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative.” (§ 361.3, subd. (a).) As used in this statute, “ ‘[p]referential consideration’ means that the relative seeking placement shall be the first placement to be considered and investigated.” (§ 361.3, subd. (c)(1).) However, the only relatives entitled to such preferential consideration are grandparents, aunts, uncles, or siblings. (§ 361.3, subd. (c)(2).) Adult second cousins of the child, like Doris S., are not entitled to preferential consideration. (See, e.g., In re Luke L. (1996) 44 Cal.App.4th 670, 680; In re Baby Girl D. (1989) 208 Cal.App.3d 1489, 1494.)
Although Mother concedes Doris S. was not entitled to placement preference under section 361.3, subdivision (c)(2), she contends Doris S. nevertheless qualifies as a “nonrelative extended family member” adult caregiver. (§ 362.7.) A “nonrelative extended family member” is defined as “any adult caregiver who has an established familial or mentoring relationship with the child.” (§ 362.7.) It is the responsibility of the county welfare department to “verify the existence of a relationship through interviews with the parent and child or with one or more third parties, ” including “relatives of the child, teachers, medical professionals, clergy, neighbors, and family friends.” (Ibid.)
We first note that while section 361.3, subdivision (a) grants preferential consideration to a request for placement of the child with a close relative, no such preference appears in the “nonrelative extended family member” statute, section 362.7. Section 362.7 merely sets forth standards governing the evaluation and approval of an extended family member’s home when such a home is being considered for placement of a child.
Section 362.7 states, in relevant part: “When the home of a nonrelative extended family member is being considered for placement of a child, the home shall be evaluated, and approval of that home shall be granted or denied, pursuant to the same standards set forth in the regulations for the licensing of foster family homes which prescribe standards of safety and sanitation for the physical plant and standards for basic personal care, supervision, and services provided by the caregiver.”
The information before the court regarding Doris S.’s qualifications as a “nonrelative extended family member” included the following: After the minor was taken into protective custody, 25-year-old Doris S. came forward and offered her home as a placement for the minor. Originally, the request was not approved because Doris S. has a criminal history, requiring an exemption be obtained, which would take time. There were also concerns that she lacked space in her home for another child since she was caring for her two young children as well as for the minor’s older sibling.
Doris S. later moved to a larger home and appealed the decision. Despite her move to a larger home, there remained other concerns about placing the minor with her. Although Doris S. had some contact with the minor when the minor was in mother’s custody, Doris S. had failed to maintain and strengthen her relationship with the minor after the minor was placed in foster care.
On April 29, 2010, the caseworker reported that she had spoken to Doris S. at length several times encouraging her to visit with the minor. Doris S. said that she would love to, but she never called the foster mother or the caseworker to arrange for visits. The caseworker indicated that Doris S. had recently arranged to pick up the minor so that the minor and her sibling could spend time together, but Doris S. did not follow through with the visit as planned, and had not contacted the caregiver since then. Another indicia of Doris S.’s failure to maintain a reasonable degree of interest in establishing a familial relationship with the minor is the prolonged delay in providing the Department the requested information and documents for her home to be assessed as a possible placement for the minor.
Taking this evidence into consideration, the guardian ad litem appointed to represent the minor’s interests argued there was insufficient evidence to demonstrate that an ongoing familial relationship existed between Doris S. and the minor. The guardian ad litem stressed that the minor had never really lived with Doris S.; and although the minor knows her sibling and Doris S., the minor does not have a close relationship with them and has only visited with them a few times over the previous few months. Considering the nature and duration of the relationship between Doris S. and the minor, the record supports the conclusion that Doris S. did not qualify as a “nonrelative extended family member” under the definition in section 362.7.
Notwithstanding Doris S.’s failure to meet the designated statutory criteria for a relative (§ 361.3, subd. (a)) or a nonrelative extended family member (§ 362.7), mother emphasizes that the minor’s best interests have to prevail over all other considerations. (See Fam. Code, § 7950, subd. (a)(1); In re Stephanie M. (1994) 7 Cal.4th 295, 320.) When distilled, Mother’s arguments boil down to the assertion that it was in the minor’s best interests to be placed with members of her biological family because the law generally favors relative placements over foster care placements so that the minor can maintain her family ties.
However, it is important to keep in mind that “[t]he overriding concern... is not the interest of extended family members but the interest of the child. ‘[R]egardless of the relative placement preference, the fundamental duty of the court is to assure the best interests of the child....’ ” (In re Lauren R. (2007) 148 Cal.App.4th 841, 855.) In preparation for the section 366.26 hearing, the Department provided an assessment indicating that the Department was unwilling to recommend placement of the minor with Doris S., even though a home study had been completed and her home had been found to be “minimally sufficient.” Instead, the Department recommended adoption as the most appropriate permanent plan for the minor.
The Department’s report included several reasons that it believed placement with Doris S. was not in the minor’s best interests. First, as already mentioned, Doris S. has a criminal record which requires an exemption. Nothing in the record indicates that the necessary exemption had been granted, and in such a case “the court cannot disregard the necessity for an exemption.” (In re Esperanza C. (2008)165 Cal.App.4th 1042, 1058; In re S.W. (2005) 131 Cal.App.4th 838, 848.) Furthermore, Doris S. had previous referrals to child protective services for her own children, alleging general neglect. A referral was also received on the minor’s sibling for severe dental neglect, because she had a large number of cavities visible in her teeth. This referral ultimately resulted in the sibling having to have a root canal. In addition, Doris S. appeared to have difficulties setting boundaries with mother, and allegedly allowed unauthorized contact while the minor was visiting with her.
The record reveals that the minor’s guardian ad litem shared the Department’s concerns and vehemently opposed placement with Doris S. She conducted her own investigation and had grave concerns regarding the minor’s potential placement in Doris S.’s home.
Although Mother claims that many of the concerns about Doris S.’s suitability were blown out of proportion, we cannot reweigh the evidence or substitute our judgment for that of the trial court. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53; In re Zachary G. (1999) 77 Cal.App.4th 799, 812.) Under all these circumstances, it was not an abuse of discretion for the court to conclude, in effect, that placement with Doris S. was simply not in the minor’s best interests.
B. Adoptability Finding
Before terminating parental rights under section 366.26, the juvenile court must find by clear and convincing evidence that the child is likely to be adopted within a reasonable time. (§ 366.26, subd. (c)(1).) Mother separately challenges the juvenile court’s finding that it was likely the minor would be adopted on the ground that substantial evidence did not support this conclusion. Mother argues there was “no approved family willing to adopt her at this stage in the proceedings. Therefore, as there was a lack of substantial evidence to support the finding that [the minor] was adoptable, the order terminating parental rights must be reversed....”
The question of adoptability focuses on whether the child’s age, physical condition and emotional state make it difficult to find a person willing to adopt that child. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) A “child’s young age, good physical and emotional health, intellectual growth and ability to develop interpersonal relationships are all attributes indicating adoptability. [Citation.]” (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1562.) On the other hand, factors that might make it difficult to find a person willing to adopt a child include “membership in a sibling group, ” “diagnosed medical, physical, or mental handicap[s], ” or a child’s age of “seven years or more.” (§ 366.26, subd. (c)(3).) The fact that a prospective adoptive parent has expressed interest in adopting a dependent child is evidence that the child’s attributes are not likely to deter individuals from adopting the child. (In re Sarah M., supra, at pp. 1649-1650.)
We review the juvenile court’s adoptability finding for substantial evidence, viewing the evidence in the light most favorable to the judgment, drawing every reasonable inference and resolving all conflicts in the evidence in favor of the juvenile court’s order. (In re Josue G. (2003) 106 Cal.App.4th 725, 732.)
The most recent information available before the April 29, 2010 hearing contained nothing to indicate that the minor exhibited characteristics which would make her adoption unlikely. The Department’s report indicated that the minor “is a healthy two year old child with no significant developmental or emotional issues that would preclude adoption” and “[g]iven [the minor’s] age and good health, it is expected that an adoptive home can easily be found.” The minor is described as “adorable” and “engaging and bright.” Here, substantial evidence supports the juvenile court’s finding that the minor was adoptable. (See, e.g., In re Josue G., supra, 106 Cal.App.4th at p. 734.)
In addition, shortly before the April 29, 2010 hearing, a placement specialist and Department caseworker met with a prospective caregiver who was interested in adopting the minor. The prospective caregiver is described as being a widowed 47-year-old, who is employed as an instructional assistant for the school district, with a 19-year-old adopted daughter who is in college. Placement visits were in the process of being arranged. If this placement failed, the Department had identified at least five other possible adoptive families for the minor.
Because the minor was generally adoptable, it is immaterial that an adoption home study had not been completed by the time of the section 366.26 hearing. The fact that a prospective adoptive parent had been identified and had expressed an interest in adopting the minor indicates the minor will be adopted within a reasonable time by either that person or by another family. (See In re Sarah M., supra, 22 Cal.App.4th at p. 1650.) Accordingly, we conclude there is substantial evidence in the record to support the juvenile court’s finding it is likely the minor will be adopted within a reasonable time.
IV.
Disposition
The judgment is affirmed.
We concur: REARDON, J., RIVERA, J.