Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. DP013732, Gary Bischoff, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Niccol Kording, under appointment by the Court of Appeal, for Defendant and Appellant.
Benjamin P. de Mayo, County Counsel, Karen L. Christensen, Senior Deputy County Counsel, and Alexandra G. Morgan, Deputy County Counsel, for Plaintiff and Respondent.
Neil R. Trop, under appointment by the Court of Appeal, for the Minors.
OPINION
SILLS, P. J.
Alanna M. appeals from the termination of her parental rights to her three children. She contends the juvenile court committed reversible error by failing to consider the older two children’s wishes regarding adoption. She also contends there is insufficient evidence to support the finding that the children are adoptable. We find no error and affirm.
FACTS
Seven-year-old Lila, two-year-old Luke, and two-month old Gage were removed from their mother’s custody in July 2006 due to the mother’s mental health issues, including a suicide attempt, which resulted in the children’s general neglect. The parents had a history of domestic violence, and the father had moved out of the home shortly after Gage’s birth. He had a history of criminal activity and substance abuse, as well as untreated mental health issues. The juvenile court sustained a dependency petition on the children’s behalf under Welfare and Institutions Code section 300, subdivision (b) [failure to protect].
All statutory references are to the Welfare and Institutions Code.
The children were placed with their maternal aunt, Hope Q., and her husband, Pablo Q., who had three children of their own. “Adjustment was quick because the children are familiar with their aunt, uncle and three cousins. They play well together with their cousins. The parents are in agreement with the placement and the caregiver is willing to care for the children as long as necessary.” After about six weeks, however, Hope reported Luke had engaged in some sexual behavior with her four-year-old son and asked that he be removed from her home. Luke was subsequently placed with his maternal grandfather and step-grandmother, Mr. and Mrs. C.
At the six-month review hearing in February 2007, the Orange County Social Services Agency (SSA) reported that neither the mother nor the father had made any progress on their case plans. The mother had not contacted the social worker since August 2006. Although the parents were authorized to have weekly visits with the children, they had only visited “approximately two times” in six months.
The children were doing well in their respective placements; they saw each other “on a regular basis.” Both Luke and Lila told the social worker they enjoyed their visits with each other. Lila was described as “an adorable, mature seven-year-old girl who appears to be developing at a normal rate in all areas.” She told the social worker she had learned to ride a skateboard and a bicycle, and she “like[d] her room.” She also said she liked living with her aunt and uncle and “wants to ‘stay there if I can’t go back to my mom and dad.’” Luke was also developmentally on target, and there were “no concerns” about his progress at preschool. The grandfather reported Luke “needs a great deal of redirection[] and prompting” and “exhibit[ed] tantrums when not given whet he wants.” He was enrolled in “play therapy,” which seemed to be helping. The social worker told the grandparents that Luke’s behavior was “age appropriate.” Gage was a normal, “happy baby” who was “developing a relationship with his family as well as his siblings . . . .” The juvenile court terminated reunification services and set a permanent plan selection hearing pursuant to section 366.26.
SSA submitted a report to the court in June 2007. The mother had not contacted the social worker since the last hearing. The social worker opined that the “children are considered adoptable primarily because of their age. Most prospective adoptive families desire to adopt a child in the five years and younger range[;] Gage and Luke fall into this category. As for Lila, the child is likely to be adopted by her current caretakers, her maternal aunt . . . . All of the children are extremely adorable, outgoing, and well mannered.” Lila was asked “if she wants to live with the prospective adoptive parents until she is old enough to have a family of her own. She replied, “‘Yes, that would be good.’”
Both the grandparents and the aunt and uncle were “slow” in submitting the extensive paper work required to complete their home study processes. Hope was pregnant and expecting another child in October 2007, but she and her husband were committed to adopting Lila and Gage. The grandparents were initially hesitant about adopting Luke, but ultimately decided to do so. In August 2007, the social worker met with the grandfather and Luke, and the grandfather “reaffirmed his commitment to providing [him] with a permanent, loving home through the course of adoption. Mr. C[.] stated that “Luke is his family, and that he and his wife love Luke.” The social worker observed appropriate interaction between Luke and his grandfather.
The permanent plan selection hearing was held on August 21, 2007. Neither the mother nor the father appeared but both were represented by counsel. Arguments were presented by counsel for the father, the children, and SSA; mother’s counsel said nothing. The court found by clear and convincing evidence that the children were adoptable and terminated parental rights.
DISCUSSION
The mother argues there is insufficient evidence to support the finding that the children are adoptable. She claims they are adoptable only because they are placed with their particular prospective adoptive families – the aunt and uncle for Lila and Gage, and the grandparents for Luke – who presumably will raise the children together. Absent this unique arrangement, the strong bonds among the siblings would make them difficult to adopt. The mother claims there is insufficient evidence that either of these two families had the ability to adopt because SSA had not completed all the background paperwork on them. We find the children were adoptable without reference to the specific prospective adoptive families.
Before it can terminate parental rights, the juvenile court must find, by clear and convincing evidence, that it is likely a child will be adopted within a reasonable time. (§ 366.26, subd. (c)(1); In re Brian P. (2002) 99 Cal.App.4th 616, 624.) “The issue of adoptability requires the court to focus on the child, and whether the child’s age, physical condition, and emotional state make it difficult to find a person willing to adopt. [Citation.] It is not necessary that the child already be placed in a preadoptive home, or that a proposed adoptive parent be waiting. [Citations.] However, there must be convincing evidence of the likelihood that adoption will take place within a reasonable time. [Citation.]” (Ibid.)
Here, the evidence of the children’s age, physical condition, and emotional state was positive. The children were all normal, healthy, and attractive; two of them were under the age of five. The only negatives in the record were several incidents of Luke’s misbehavior, which had occurred more than six months before the permanent plan selection hearing. His participation in play therapy and the consistency he experienced with his grandparents apparently helped him resolve his issues, because SSA reported he was doing well in his current placement by July 2007.
The situation here is unlike In re Brian P., supra, 99 Cal.App.4th 616, where the court reversed the juvenile court’s finding of adoptability. There, the social services agency submitted “fragmentary and ambiguous evidence” of adoptability: The four and one-half year old child was described as “healthy,” but “he had only recently learned to dress himself. His speech and gait were still in the process of improving. He was unable to make a statement to his child welfare worker, who relied on facial expressions and gestures to infer that he was happy in his foster placement.” (Id. at p. 625.)
Furthermore, the fact that a family is willing to adopt a child generally indicates that child will be adopted within a reasonable time either by that family or some other family. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1650.) There is sufficient evidence to support the juvenile court’s determination.
The mother obliquely argues the sibling bond renders the children unadoptable. A sibling bond can prevent termination of parental rights to an adoptable child if the juvenile court finds a compelling reason to conclude that termination would be detrimental to the child because it would substantially interfere with his sibling relationship. (§ 366.26, subd. (c)(1)(B)(v).) This was not raised below and is forfeited on appeal. (In re S.B., supra, 32 Cal.4th at p. 1293.)
The mother next contends the termination of parental rights must be reversed because the juvenile court failed to consider the wishes of the children before selecting adoption as the permanent plan. She claims the juvenile court should have “ask[ed] Lila and Luke whether they would want to be adopted if it meant they could not maintain a parent-child relationship with Mother or Father. . . . If the children expressed a desire to maintain those relationships, legal guardianship could be considered.” The mother cites section 366.26, subdivision (h)(1), which provides: “At all proceedings under this section, the court shall consider the wishes of the child and shall act in the best interests of the child.”
Mother faults at the first hurdle. She failed to raise this objection before the juvenile court, thus she has forfeited her right to raise it now. (In re S.B. (2004) 32 Cal.4th 1287, 1293.) The mother did not appear at the hearing, and her counsel made no objection. “The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected. [Citation]” (Ibid.)
Even if the claim were not forfeited, the mother’s argument would not prevail. The juvenile court is mandated by statute to explore the children’s preferences before terminating parental rights. (In re Leo M. (1993) 19 Cal.App.4th 1583, 1591.) The statute is “a reminder to all, but particularly those weighted with the decisionmaking responsibility, that the child is not a cipher in the process. While we are both statutorily mandated and morally constrained to act in the best interests of the child, to the extent possible children should have some voice.” (Id. at pp. 1592-1593.)
The statutory requirement, however, does not mean the juvenile court must directly ask the children if they want to sever their relationships with their biological parents. “[W]e must be mindful that we should not carelessly impose upon [children] decisions which are heavy burdens even for those given the ultimate responsibility to decide. To ask children with whom they prefer to live or to ascertain what they wish through other evidence is one thing. To ask those children to choose whether they ever see their natural parent again or to give voice to approving that termination is a significantly different prospect.” (In re Leo M., supra, 19 Cal.App.4th at p. 1593.)
Luke turned four years old the day before the permanent plan selection hearing; Lila had turned eight years old the month before. Both children were thriving in their prospective adoptive homes. Luke had been with his grandparents for almost one year, and the social worker observed him responding positively to the grandfather’s attention and boundary setting. Although SSA did not report that Luke said he wanted to live with his grandparents, the court could infer his wish to do so from the indirect evidence that he was happy and progressing well. (In re Amanda D. (1997) 55 Cal.App.4th 813, 820.) Lila provided more direct evidence of her wish to stay with the Q.’s when she agreed she would like to stay there throughout her childhood.
Finally, there was no realistic alternative to the termination of parental rights. The mother had failed to visit her children regularly, she had lost contact with the social worker, and she had done virtually nothing on her case plan. Even if the children had indicated a desire to live with their mother, the juvenile court was compelled to act in their best interests. The Legislature had declared the best interests of an adoptable child are served by establishing permanency and stability through adoption. (In re Megan S. (2002) 104 Cal.App.4th 247, 251.)
DISPOSITION
The judgment terminating parental rights is affirmed.
WE CONCUR: RYLAARSDAM, J., O’LEARY, J.