Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Kern County Nos. JD115672 & JD115673. Peter A. Warmerdam, Referee.
Elaine Forrester, under appointment by the Court of Appeal, for Defendant and Appellant.
Theresa A. Goldner, County Counsel, and Jennifer L. Thurston, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Levy, J., and Hill, J.
M.G. (mother) appeals from orders terminating parental rights (Welf. & Inst. Code, § 366.26) to her two- and three-year old sons, P. and V. She contends there was insufficient evidence to support the trial court’s finding that it was likely these children would be adopted. She also joins in an argument made by the children’s father in his pending appeal from the termination order, In re P.G., et al., case No. F056982, regarding the denial of a section 388 modification request brought by the father. On review, we affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
In our opinion on the father’s appeal, we conclude the court properly denied the request without a hearing.
PROCEDURAL AND FACTUAL HISTORY
Mother’s severe neglect of her young sons and her seven older children, as well as the neglect exhibited by the children’s respective fathers, led to all of the children’s dependency in 2007. In November 2007, the Kern County Superior Court adjudged the children juvenile dependents and removed them from parental custody.
Having removed the children from parental custody, the court ordered reunification services for both parents. Despite reasonable services, mother failed to regularly participate in services and made minimal progress. The father of P. and V. participated in some services but respondent, Kern County Department of Human Services (department), discovered that prior to the children’s dependency, he engaged in sexual intercourse with one of P. and V.’s half siblings and hit his sons and several of their half siblings with a fist, wire, cable and belt.
Consequently, at a June 2008 hearing for P. and V., the trial court set aside its original order for services for their father and denied him further services. Based on mother’s noncompliance and given P. and V.’s very young ages (see § 361.5, subd. (a)), the court also terminated mother’s reunification services and set an October 2008 hearing pursuant to section 366.26 to select and implement a permanent plan for P. and V.
In advance of the October 2008 hearing, an adoption social worker with the department prepared an adoption assessment of P. and V. The assessment described both boys as “happy, playful and adorable... with no known major medical or behavior problems.” At most, the older of the two, three-year-old P., had minor speech problems. Both were considered good candidates for adoption because they were well-socialized children who did not manifest major emotional, physical or behavioral problems.
Each boy’s relationship with the parents seemed to be more of a “friendly relationship” rather than that of a parent/child relationship. These relationships were not significant enough that the boys would suffer severe emotional trauma if parental rights were terminated.
To this point in their dependency, the two boys had been placed in separate foster homes and neither of their current caretakers had expressed a desire to adopt. As a later report revealed, P.’s caretaker indicated she was too old to adopt him and V.’s caretaker indicated that although she loved him, she was not in a position to adopt him.
The adoption social worker wanted a 90-day continuance in order to find one adoptive home for both P. and V. who were close in age and played well together. The adoption social worker was also interested in finding an adoptive home possibly open to continuing contact with their siblings after adoption. Although neither boy would suffer severe emotional trauma from a lack of contact with their older siblings, continued sibling contact might be beneficial to the boys.
In its recommendations to the court, the department requested the court: find termination of parental rights would not be detrimental to the children and they had a probability for adoption but were difficult to place for adoption and there were no prospective adoptive homes available; identify adoption as the permanent placement goal for the children; order efforts be made to locate an adoptive family for the children within the next 90 days; and calendar a further section 366.26 hearing for a date in January 2009. The department apparently based its recommendation on section 366.26, subdivisions (b)(3) and (c)(3).
According to section 366.26, subdivision (b), the court at a selection and implementation hearing must “make findings and orders in the following order of preference: [¶] (1) Terminate the rights of the parent or parents and order that the child be placed for adoption …. [¶] (2) Appoint a relative or relatives with whom the child is currently residing as legal guardian or guardians for the child, and order that letters of guardianship issue. [¶] (3) On making a finding under paragraph (3) of subdivision (c), identify adoption as the permanent placement goal and order that efforts be made to locate an appropriate adoptive family for the child within a period not to exceed 180 days. [¶] (4) Appoint a nonrelative legal guardian for the child and order that letters of guardianship issue. [¶] (5) Order that the child be placed in long-term foster care, subject to the periodic review of the juvenile court under Section 366.3” (Emphasis added.)
The October 2008 hearing was uncontested and the court adopted, as its own, the department’s recommended findings and orders.
According to a status review report filed in December 2008, the children were placed together earlier that month with foster parents committed to adopting them. In January 2009, the department submitted an addendum to P. and V.’s adoption assessment. In it, the adoption social worker reported the children remained placed together in a “licensed pre-approved to adopt home.” She reiterated P. and V. were good candidates for adoption due to their young ages and the fact that they were well-socialized children who did not manifest major emotional, physical or behavioral problems. The addendum also included a favorable preliminary assessment of the adoptive family and its commitment to the children.
The court did not hold its further section 366.26 hearing until February 2, 2009. In the meanwhile, the court summarily denied a section 388 request by P. and V.’s father for family maintenance services.
Mother’s trial attorney was unavailable on the January 2009 hearing date.
At the February 2009 hearing, county counsel on behalf of the department reported:
“I received a call from the social worker, and it is my understanding that the children are being moved today, along with two siblings... [T]hey are all going to be moved into a home together, but these children are generally adoptable.”
The attorney then reiterated the department’s recommendation that the court terminate the parents’ rights as to P. and V. The court responded “the factual situation has changed” and inquired if the other attorneys had any evidence or argument to present. Mother’s attorney “objected” but had no evidence or argument to offer.
Having read and considered the department’s original adoption assessment and the addendum, the court found by clear and convincing evidence that P. and V. were likely to be adopted. It then terminated parental rights to the children.
DISCUSSION
Relying on county counsel’s statement to the court at the February 2009 hearing, mother contends there was insufficient evidence to support the court’s adoptability finding. As mother sees it, the family with whom her sons had been placed were no longer willing to adopt them. Therefore, it was incumbent on the department to introduce evidence that there were families interested in adopting the children. Without such proof, mother concludes, the court’s adoptability finding was erroneous. As discussed below, we disagree.
A.
Preliminarily, the parties debate whether a recent decision from the California Supreme Court precludes mother from challenging the court’s adoptability finding. In In re S.B. (2009) 46 Cal.4th 529, 530, the court addressed the single question of whether an order under section 366.26, subdivisions (b)(3) and (c)(3) -- to locate an appropriate adoptive family for a child who has a probability for adoption but is difficult to place -- is appealable. The courts of appeal were divided on the question. The S.B. court held the order was appealable. (In re S.B., supra, 46 Cal.4th at p. 530.) It found no persuasive reason for excepting section 366.26, subdivision (c)(3) orders from the usual rule of appealability in dependency proceedings. (In re S.B., supra, 46 Cal.4th at p. 537.)
See footnote 2, ante.
Here, mother did not challenge the trial court’s October 2008 finding that the children had a probability for adoption by appealing its order to locate an adoptive family and conduct a further section 366.26 hearing. Because a consequence of the appealability rule (§ 395) is that an unappealed postdisposition order is final and binding and may not be attacked on an appeal from a later appealable order (In re S.B., supra, 46 Cal.4th at p. 532), the department argues mother may not now attack the court’s subsequent finding that it is likely the children will be adopted.
Mother asks that we not retroactively apply In re S.B., supra, to her. She, however, overlooks this court’s previous opinions regarding such issue preclusion. (In re A.G. (2008) 161 Cal.App.4th 664, 671; In re Edward H. (1996) 43 Cal.App.4th 584, 590-591.) The children’s father, who joined in his appeal any arguments raised by mother, argues there is no issue preclusion, citing to In re Y.R. (2007) 152 Cal.App.4th 99, 108-110. The father argues a “probability of adoption” as used in section 366.26, subdivision (c)(3) is a lower standard than “it is likely the child will be adopted,” the finding required to terminate parental rights.
The S.B. court disapproved the opinion in In re Y.R., supra, to the extent it conflicted with the holding in In re S.B., supra. (In re S.B., supra, 46 Cal.4th at p. 537, fn. 5.)
We need not resolve these issues here. Assuming arguendo the mother can challenge the court’s finding of the children’s likelihood of adoption on this appeal, we would nevertheless affirm.
B.
The issue of adoptability focuses on the child, e.g., whether the child’s age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor. All that is required is clear and convincing evidence of the likelihood that adoption will be realized within a reasonable time. (In re Zeth S. (2003) 31 Cal.4th 396, 406.) There need not be a prospective adoptive family figuratively waiting in the wings. (§ 366.26, subd. (c)(1); In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.)
Here, there was clear and convincing evidence even in October 2008 that P. and V. were likely to be adopted. Both were considered good candidates for adoption because they were well-socialized children who did not manifest major emotional, physical or behavioral problems.
We question the department’s and the trial court’s reliance on section 366.26, subdivisions (b)(3) and (c)(3) at the original section 366.26 hearing. These provisions only apply to a child who is difficult to place for adoption. However, according to section 366.26, subdivision (c)(3), a child “may only be found to be difficult to place for adoption 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 seven years of age or more.” (Emphasis added.) That was not the case with P. and Y. Neither child had a prospective adoptive parent at that point because each child’s respective foster parent could not commit to adopt. In other words, the evidence did not satisfy the statutory definition of “difficult to place for adoption.” The fact that the adoption social worker wanted a continuance in order to place the two children in the same adoptive home did not constitute a basis, standing alone, to warrant the procedure outlined in section 366.26, subdivisions (b)(3) and (c)(3).
In any event, mother’s substantial evidence argument fails. Not only was there the evidence of the children’s adoptability contained in the October 2008 assessment, there was the evidence in the addendum that an adoptive family committed to adopting the children had been found. Mother’s reliance on the attorney’s statement at the February 2009 hearing does not change the state of the evidence. This is because the attorney’s remark is not evidence. (In re Zeth S., supra, 31 Cal.4th at p. 413, fn. 11.) Also, her interpretation of it is speculative. This court frankly does not know what to make of the attorney’s remark. However, we do note that it is susceptible to multiple interpretations. Counsel may have meant: the children and their two siblings were being placed in a home where the adults were interested in adopting all four of them; or that the children nonetheless were generally adoptable. In the end, the attorney’s unsworn statement does not detract from the evidence that the children were likely to be adopted.
DISPOSITION
The orders terminating parental rights are affirmed.
A finding under section 366.26, subdivision (c)(3) refers to “[i]f the court finds that termination of parental rights would not be detrimental to the child … and that the child has a probability for adoption but is difficult to place for adoption and there is no identified or available prospective adoptive parent.” In that case, “the court may identify adoption as the permanent placement goal and without terminating parental rights, order that efforts be made to locate an appropriate adoptive family for the child … within a period not to exceed 180 days.” (Ibid.) “At the expiration of this period, another hearing shall be held and the court shall proceed pursuant to paragraph (1) [adoption] or (4) [guardianship] of subdivision (b).” (Ibid.) A child “may only be found to be difficult to place for adoption 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 seven years of age or more.” (Ibid.)