Opinion
D071280
05-31-2017
In re K.B., et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. P.J., Defendant and Appellant.
Suzanne M. Davidson, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Daniella Davidian, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CJ1112A-C) APPEAL from orders of the Superior Court of San Diego County, Laura J. Birkmeyer, Judge. Affirmed. Suzanne M. Davidson, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Daniella Davidian, Deputy County Counsel, for Plaintiff and Respondent.
In this juvenile dependency appeal, the mother (Mother) of three minors (Minor 1, Minor 2 and Minor 3; collectively, the Siblings) appeals from orders of the juvenile court (Orders) following a contested selection and implementation hearing at which the court terminated Mother's parental rights as to Minor 1 and Minor 3 and ordered adoption as their permanent plan. (Welf. & Inst. Code, § 366.26, subd. (b)(1); further statutory references are to this code.) Mother contends the juvenile court erred in ruling both that Minor 1 and Minor 3 (together, the Minors) were likely to be adopted and that the sibling relationship exception to termination of parental rights did not apply. (§ 366.26, subd. (c)(1) & (c)(1)(B)(v).)
As we explain, Mother did not meet her burden in establishing either that the record on appeal lacks substantial evidence that Minors were likely to be adopted or that the juvenile court abused its discretion in ruling that the benefits of adoption for Minor 1 and Minor 3 outweighed the benefits of the sibling relationship between either of the Minors and Minor 2. Accordingly we affirm the Orders.
I.
FACTUAL AND PROCEDURAL BACKGROUND
"In accord with the usual rules on appeal, we state the facts in the manner most favorable to the dependency court's order." (In re Janee W. (2006) 140 Cal.App.4th 1444, 1448, fn. 1.)
This is the second time the juvenile court's selection of adoption as the appropriate placement for the Minors is before the court.
In a May 2016 opinion, we affirmed the juvenile court's orders from an initial contested section 366.26 selection and implementation hearing involving the Siblings. (In re K.B. (May 23, 2016, D068879 [nonpub. opn.]) (D068879).) The juvenile court had ruled that there was a probability of adoption for each of the Siblings and that neither the parent-child relationship nor the sibling relationship applied as an exception to the potential termination of parental rights. (§ 366.26, subd. (c)(1), (c)(1)(B)(i) & (c)(1)(B)(v).) More specifically, the court had ruled that each of the Siblings had a probability for adoption, but was difficult to place, and ordered that, although parental rights would not be terminated at that time, the San Diego County Health and Human Services Agency (Agency) would be given 180 days in which to locate appropriate adoptive placements for each of the Siblings. (§ 366.26, subd. (c)(3).)
The Orders on review in the present appeal are from the continued section 366.26 hearing more than 180 days later. To understand and appreciate what had been and was currently before the juvenile court at the continued hearing, we summarize almost four years of proceedings. A. Section 300, Subdivision (b) Petitions
In December 2012, the Agency filed three petitions, one on behalf of each of the Siblings, alleging that each needed the protection of the juvenile court. At the time, Minor 1 was six years old, Minor 2 was five years old, and Minor 3 was three years old.
Substantively, the Agency alleged both parents had failed to protect the Siblings and failed to provide for their support in violation of section 300, former subdivisions (b) and (g), respectively. In particular, the Agency alleged: Mother had left the Siblings with a custodian who was unable to care for them and locked them out of his home (as a means of discipline) without adequate clothing; Mother had exposed the Siblings to domestic violence between her and her boyfriend; and since Mother was incarcerated and the father could not be located, the Siblings had been left without appropriate or adequate care. B. Proceedings Following the December 2012 Petitions
Former section 300, subdivision (b) has since been amended, and the pertinent language is unchanged and now found in subdivision (b)(1) of section 300. (Stats. 2014, ch. 29, § 64.) Subdivision (g) has remained unchanged.
Leading up to the section 366.26 selection and implementation hearing in August 2015, the juvenile court presided over a number of hearings, including: a detention hearing, at which the Siblings were detained; a contested adjudication and disposition hearing, at which the court dismissed a count in the petition, took jurisdiction, declared the Siblings to be dependents of the court, removed the Siblings from Mother's custody, placed the Siblings in confidential foster homes, and ordered reunification services for the parents; and six-, 12- and 18-month review hearings, at which the court closely monitored the well-being of the Siblings and the substantive progress of the case plans for each of the parents, ultimately terminating services for the father at the 12-month review hearing and for Mother at the 18-month review hearing.
At the time the Siblings were detained in December 2012, they were unruly, hyperactive and disobedient. Each had scratches, bruises and injuries, and reported physically fighting on a regular basis. Minor 1, who was then six years old, had never attended school. Mother and her boyfriend were in custody, charged with drug-related crimes and awaiting further proceedings, and the Siblings' father was on probation and participating in a substance abuse program. The father had been in prison for three years for possession of drugs. The Siblings' parents had not seen each other since May 2012.
By the time of the jurisdiction and disposition hearing in late January 2013, the Agency updated its earlier report. The father had been raised by his grandmother and was living at an in-patient drug rehabilitation center. Mother had been raised by her grandparents and was incarcerated. Minor 1 and Minor 2 were aggressive and bit, fought and swore. In addition, Minor 2 had difficulty with communication, fine motor, problem solving and personal/social skills. Minor 3 was described as "very sweet," with difficulties in communication and gross motor skills. The Siblings were living at Polinsky Children's Center.
In preparation for the adjudication and disposition hearing in mid-March 2013, the Agency reported that Mother was still incarcerated and the father's whereabouts were unknown after having been " 'kicked out' " of his residential treatment facility. The Siblings were detained in separate foster care placements. Minor 1 was adjusting well to school, although the child did not listen and had difficulty sitting still. Minor 2 was doing poorly at school, exhibiting inappropriate " 'sexualized behavior,' " and overall displaying the most trauma of the three Siblings. Minor 3's educational needs were still being assessed, and the child had begun to display " 'sexualized behaviors' " at home. All three Siblings had poor social skills and knew no boundaries.
During the reunification phase — i.e., from the adjudication and disposition hearing in March 2013 through the permanency review hearing in August 2014 — the Siblings were moved from their separate foster home placements to the care of their paternal great-grandmother. Minor 1 was receiving psychotropic medication for symptoms that included inattention, hyperactivity, impulsivity, anger, aggression and defiance. Minor 2 was receiving psychotropic medication for symptoms that included severe hyperactivity, impulsivity, poor attention, distractibility, aggression and self-injury. In school, Minor 1's academics had improved, although the child continued to have problems with constant movement, interruption and aggression. Minor 2 was suspended from school for biting and hitting staff. Minor 3 behaved aggressively at times. Mother, who was required to register as a sex offender as a condition of parol, had been released from prison. At different times during this period, the father was incarcerated, on parole, tested positive for methamphetamine, not in contact with the Agency, living in Kansas, and homeless with his whereabouts unknown. Neither parent had made much progress with his or her respective case plan. C. August 2015 Initial Section 366 .26 Selection and Implementation Hearing
In a chambers conference prior to the initial contested section 366.26 selection and implementation hearing in August 2015, at the request of Siblings' counsel, the court ordered that the hearing proceed under section 366.26, subdivisions (b)(4) and (c)(3).
Section 366.26, subdivision (b) statutorily prioritizes seven options for the juvenile court at the selection and implementation hearing. Subdivision (c) provides the court with direction in choosing among the seven alternatives in subdivision (b).
Section 366.26, subdivision (c)(3) states in part: "If the court finds that termination of parental rights would not be detrimental to the child pursuant to [section 366.26, subdivision (c)(1)] 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, 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 the state or out of the state, within a period not to exceed 180 days. . . ."
Section 366.26, subdivision (b)(4) provides in part that, where the juvenile court makes a finding under subdivision (c)(3), the court is required to "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."
At the time of the hearing, the Siblings were between six and almost nine years old. All three of the Siblings were happier in their current placement with a relative than in their prior foster placements. That said, all three of the Siblings were also physically fighting with other children in the apartment complex where they lived.
Minor 1, who was abused as a younger child, suffered from attention deficit hyperactivity disorder and oppositional defiant disorder. The child was still taking psychotropic medication and receiving individual therapy. Although the therapist and the caregiver continued to report hyperactivity and defiance issues at home, they both reported an improvement in Minor 1's behavior. In school (second grade), Minor 1 had made significant progress both academically and behaviorally, and the child had begun participating in after-school sports.
Minor 2 also suffered from attention deficit hyperactivity disorder and oppositional defiant disorder, as well as posttraumatic stress disorder and certain physical ailments. This child, too, was still taking psychotropic medication and had been receiving individual therapy and behavioral coaching, but had exhausted all of the therapeutic behavior services. Minor 2 continued to have difficulty with boundaries and had regressed in terms of coping and exhibiting sexualized behaviors, although the incidents of unacceptable behavior had "significantly decreased" since the initial placement in foster care. The child required constant supervision and redirection. In school (first grade), Minor 2 continued with both academic and behavioral issues, showing no signs of improvement; indeed, the inappropriate sexualized behavior had increased. By early 2015, Minor 2 had been sent home from school several times as a result of aggression to students and staff, and by mid-2015, the child had been expelled for five days. Shortly thereafter, for the safety of Minor 2 and others, Minor 2 was moved to a new school where the child was placed in a smaller class with better supervision and special education services. Additional security precautions, including locked windows and a harness during transportation, were taken to keep Minor 2 from running away.
The results of Minor 3's initial testing for behavioral services indicated strong development skills with average to below average functioning in attention and emotional skills. In school (kindergarten), Minor 3 started out doing well, but recently had suffered "a 'major slide' " according to the teacher. In particular, the child inappropriately touched school peers. Academically, Minor 3 performed below average.
In early 2015, the father went to the caretaker's home high on methamphetamine; Mother was there for a visit with the Siblings, and the father threatened her with a knife in the presence of the Siblings. In an unrelated incident, the father was convicted of rape by force or fear, and by April 2015 he had been sentenced to five years in prison. The father never progressed past supervised visitation.
By mid-2015, Mother was homeless and unemployed with allegations that she continued to be involved in criminal activity. She had not kept in contact with the Agency.
In its initial section 366.26 report in December 2014, the Agency advised in part: "We feel confident we would be able to place these children for adoption, if they ended up needing an adoptive family"; and "it is likely [each of] the child[ren] will be adopted, and none of the exceptions set forth in [section] 366.26, subdivision (c)(1)(B) appl[ies]." This recommendation remained constant in all five addenda that the Agency filed during the eight months between the initial report in December 2014 and the hearing in August 2015. Consistently, the report of the court appointed special advocate recommended adoption for all three Siblings.
Based on the foregoing, at the conclusion of the initial selection and implementation hearing, the juvenile court found that, for purposes of section 366.26, subdivision (c)(3), there was a probability of adoption for each of the Siblings. In addition, the court ruled that neither the parent-child relationship nor the sibling relationship provided a sufficient benefit to any of the Siblings to outweigh the benefit of adoption for each of the Siblings. (§ 366.26, subd. (c)(1)(B)(i) & (v).) Consistent with section 366.26, subdivision (c)(3), the juvenile court ordered in part as follows: parental rights were not terminated; for a period of time up to 180 days, the Agency was to conduct search efforts for adoptive parents within and outside the state; the Agency was to notify the court and counsel of updated information regarding prospective adoptive home; and the section 366.26 hearing was continued for approximately 180 days.
The father appealed; and, as introduced ante, we affirmed in May 2016. (D068879, supra.) D. Proceedings Following the August 2015 Initial Section 366 .26 Selection and Implementation Hearing
In a September 2015 report, the Agency updated the juvenile court on the psychological and developmental evaluations of the Siblings.
Minor 1 had average intellect and had been diagnosed with attention-deficit/hyperactivity disorder, which likely interfered with the child's cognitive functioning. Although Minor 1 experienced sadness and anxiety — at times exhibiting anger and frustration — staff at the after-school program the child had attended for three years described him as " 'doing well' " and " 'very positive.' "
Minor 2 had " 'an extremely concerning evaluation' " as a result of " 'a long term pattern of profound acting out,' " resulting in a diagnosis of "Conduct Disorder." More specifically, the examining psychologist found Minor 2's emotional and psychological functioning to be " 'profoundly impaired,' " describing the child as " 'extremely physically aggressive, sexually aggressive and preoccupied, oppositional defiant, markedly hyperactive, poorly focused, resistant to redirection, and willing to run away with little to no provocation.' " At school, Minor 2 demonstrated physical aggression toward others, including incidents of kicking, stabbing with a pencil, poking with scissors and breaking eye glasses. The psychologist opined that Minor 2 likely would not become a "functional adult" and recommended an "intensive intervention" like a full-time day program.
Minor 3 tested average or normal in areas of verbal, nonverbal and spatial abilities; language development; communication; fine motor skills; and social development. The child was vulnerable in emotional/behavioral and attention/executive functioning. At school, Minor 3 was easily distracted, often did not complete work and performed " 'very low academically.' " In addition, the child was frequently untruthful, often lying to avoid getting in trouble.
In December 2015, the Agency filed a petition on behalf of each of the Siblings, advising the court that each child's existing placement with a family member caretaker was no longer appropriate in view of the criteria in section 361.3. (§ 387.) The Siblings were removed from the caretaker — after which Minor 1 was detained in a licensed foster home; Minor 2 was initially detained at Polinsky Children's Center and later relocated to a licensed group home after attempting suicide and being part of many incidents involving aggression; and Minor 3 was initially detained at Polinsky Children's Center, later relocated to a licensed foster home and, after showing signs of aggression, moved to the same licensed foster home as Minor 1.
Minor 1 adjusted well, behaved appropriately, got along with others and seemed happy at the new foster home. Minor 2 enjoyed some positive interactions and activities at the group home, although the child still suffered daily incidents of aggression, destruction of property, assault and suicidal ideation. Minor 3 was doing better since the move to the foster home with Minor 1, although the child suffered hallucinations that required medical attention. All three Siblings were taking psychotropic drugs and receiving regular therapy.
In February 2016, at the Agency's request (§ 387), the juvenile court approved a confidential placement in a licensed foster home for Minor 1 and Minor 3 and a confidential placement in a licensed group home for Minor 2.
In an April 2016 addendum, the Agency continued to recommend adoption as a permanent plan for Minor 1 and Minor 3, but changed its recommended placement for Minor 2. Minor 2 had continued threats of suicide and injury to staff and residents, and for the safety of the child and all others, Minor 2 had been averaging five to seven physical holds a week. As a result, the Agency strongly recommended Minor 2's continued need for a licensed group home setting, suggesting a permanent plan of out-of-home care with the goal of finding a plan of adoption, guardianship, placement with an appropriate relative or return to a parent.
At a hearing in August 2016, based on findings that adoption was no longer a proper placement for Minor 2 and that no one was willing to accept legal guardianship of the child, the juvenile court concluded that the continuation of a section 366.26 hearing for Minor 2 was not in the child's best interest. Meanwhile, the juvenile court had previously approved Minor 2's section 388 petition to participate in the Minors' continued section 366.26 hearing, expressly authorizing Minor 2's standing to raise the sibling exception to the termination of parental rights.
A few weeks prior to this ruling by the juvenile court, we filed our opinion in D068879, supra.
By July 2016, the Agency had identified a potential adoptive home for the Minors. The home, which had a foster care license, was in the process of completing the adoption of another child from the Agency and already had an approved adoption home study for that child. The Agency described the potential new family as follows:
"[The potential new caregivers previously] adopted two African American . . . young children, now in their teens, and recently signed adoptive papers to adopt an African American [young child]. Their three children were adopted through this Agency and [the potential caregivers] have over a decade of experience, providing placement for dozens of children as foster parents. The placement of [Minor 1] and [Minor 3] completed their family." (Italics added.)In early September 2016, the Minors were both placed in this foster home — as a permanent placement with the goal of completing an adoption of the Minors once the adoption of the other child became final.
From the very start, the Minors did well in their new placement, calling their new foster parents " 'Mom' " and " 'Dad' " and including themselves when talking about "the family." The Minors enrolled in school, easily making new friends and planning to participate in youth sports and YMCA activities. The adults and the children were " 'always doing something' " as a family.
The new caregivers were willing and able to provide a permanent adoptive placement for the Minors. Based on the approved home study related to the other child whom the caregivers were adopting, the Agency was in the process of obtaining an updated home study that would include the Minors — a study the Agency "expected to be approved."
In preparation for the October 2016 continued section 366.26 hearing, the Agency confirmed its earlier recommendation that adoption was the best permanent plan for both Minor 1 and Minor 3. E. October 2016 Continued Section 366 .26 Selection and Implementation Hearing
At the Minors' continued section 366.26 hearing in October 2016, the juvenile court received in evidence 14 Agency reports, one court appointed special advocate report, the social worker's curriculum vitae, and stipulated testimony from Minor 1 and Minor 3.
The social worker testified in more detail than in the written report as to the Minors' new foster placement. Importantly, by the time of trial — which was past the time counsel described as "the honeymoon period" of the new placement — each of the Minors had transitioned well into the new home. Minor 1's prior behavioral issues were "minimal," and Minor 3 had suffered only one "extreme anxiety episode" since moving to the new placement.
The social worker also presented evidence that each of the Minors was both generally adoptable and specifically adoptable. Indeed, the current caregivers were interested, willing and able to adopt both of the Minors, and there were no legal impediments that would preclude this placement from obtaining an approved adoptive home study for the Minors.
The evidence of general adoptability included testimony that, within San Diego County, the Agency had approved adoptive home studies for: four adoptive homes willing to adopt a child with Minor 1's characteristics, five adoptive homes willing to adopt a child with Minor 3's characteristics, and two homes willing to adopt a sibling set with the characteristics of Minor 1 and Minor 3. The evidence of specific adoptability included a written report and testimony regarding the Minors' September 2016 placement with and reception by the current caregivers.
According to the social worker, the Minors' current caretakers were committed to regular visitation between the Minors and Minor 2. Likewise, once Minor 2 was able to leave the group home, the family member being considered for a potential relative placement for the child was willing to facilitate sibling contact with the Minors.
The stipulated testimony from Minor 1 was that Minor 1 wanted to live in a " 'forever home' " with Minor 2, but that if Minor 2 could only visit and not live with Minor 1, Minor 1 still wanted a " 'forever home.' " The stipulated testimony from Minor 3 was that Minor 3 wanted to live in a " 'forever home' " with Minor 2, but not if Minor 2 could not also live there.
Minor 1 described a " 'forever home' " as " 'safety, love and forever.' "
The social worker opined that the benefits of adoption for Minor 1 and Minor 3 outweighed any potential detriment they would experience if the Minors' adoption interfered with their sibling relationship with Minor 2.
In the Orders, the juvenile court found by clear and convincing evidence that Minor 1 and Minor 3 were likely to be adopted and that the sibling relationship exception to termination of parental rights did not apply. Based on these findings, the court terminated the parental rights of Mother (and the father) to, and ordered a permanent plan of adoption for, Minor 1 and Minor 3. Mother timely appealed from the Orders.
Mother's notice of appeal references case numbers and orders dealing with all three Siblings, indicating that the appeal pertains to Minor 1 (Super. Ct. No. CJ1112A), Minor 2 (Super. Ct. No. CJ1112B) and Minor 3 (Super. Ct. No. CJ1112C). In her briefing, however, Mother only raises issues as to the Orders, which terminated Mother's parental rights and directed adoption as a permanent plan as to Minor 1 and Minor 3. Accordingly, we deem Mother to have abandoned her appeal as to Minor 2 (Super. Ct. No. CJ1112B), and we hereby dismiss it.
II.
DISCUSSION
Where, as here, reunification efforts have been unsuccessful, "if an appropriate adoptive family is or likely will be available, the Legislature has made adoption the preferred choice." (In re Celine R. (2003) 31 Cal.4th 45, 49 (Celine R.); see In re D.O. (2016) 247 Cal.App.4th 166, 173 (D.O.) [" 'Adoption, where possible, is the permanent plan preferred by the Legislature.' "]; § 366.26, subds. (b), (c)(1).) "If it is likely the child will be adopted, the court must choose that option — and as a result terminate the natural parents' parental rights — unless it 'finds a compelling reason for determining that termination would be detrimental to the child due to one or more' of specified circumstances." (Celine R., at p. 49, quoting § 366.26, subd. (c)(1)(B); see D.O., at p. 173 [discussing § 366.26, subd. (c)(1)(B)(v)'s sibling relationship exception to termination of parental rights].)
Here, Mother argues that the juvenile court erred in ruling both that the Minors were likely to be adopted and that the sibling relationship that Minor 1 or Minor 3 had with Minor 2 was not a compelling reason to avoid termination of parental rights. The Agency opposes Mother's contentions, and Minor 1 and Minor 3 join in the arguments raised by the Agency. A. The Record Contains Substantial Evidence to Support the Juvenile Court's Finding That the Minors Are Likely to be Adopted
Citing specific portions of Mother's opening brief, the Agency contends that Mother forfeited her argument that the Agency's December 2014 section 366.26 assessment report fails to comply with section 366.21, subdivision (i). We do not read the opening brief as raising such an argument; in reply, Mother confirms that she is not challenging the sufficiency of the December 2014 report; and we express no opinion on the sufficiency of the Agency's report.
Mother refers to the position taken by counsel for Minor 2 at the section 366.26 hearing in the juvenile court and argues on appeal: "Minor's counsel is charged with representing the child's interests and has a duty to investigate the facts. (§ 317, subd. (e).) '["C]ounsel is required to make a factual investigation and may 'make recommendations to the court concerning the child's welfare[.' "] (In re Kristen B. (2008) 163 Cal.App.4th 1535, 1541.)' " We agree with these authorities and expressly note that counsel for Minor 1 and Minor 3 supported adoption as the permanent plan in the juvenile court and "continue[s] to support adoption as the permanent plan for [Minor 1 and Minor 3]."
We apply the substantial evidence test when reviewing the juvenile court's finding that a minor is likely to be adopted. (In re R.C. (2008) 169 Cal.App.4th 486, 491 (R.C.).) Because the juvenile court's finding of likelihood of adoptability must be made by clear and convincing evidence (§ 366.26, subd. (c)(1); In re Zeth S. (2003) 31 Cal.4th 396, 406 (Zeth S.)), the appellate court determines "whether the record contains substantial evidence from which a reasonable trier of fact could find clear and convincing evidence" that the child is likely to be adopted (In re Brian P. (2002) 99 Cal.App.4th 616, 623-624). In making this determination, we are mindful that " ' "on appeal from a judgment required to be based upon clear and convincing evidence, 'the clear and convincing test disappears[,]' " ' " and the usual rules applicable to appellate review of evidence apply. (In re A.S. (2011) 202 Cal.App.4th 237, 247 (A.S.).)
Our determination of the sufficiency of the evidence in dependency cases is governed by the same standards that apply to other appeals. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 947 [termination of parental rights and the sibling relationship exception thereto].) All presumptions are in favor of the Orders, and Mother (as the appellant) has the burden of establishing reversible error. (In re Sade C. (1996) 13 Cal.4th 952, 994; R.C., supra, 169 Cal.App.4th at p. 491 [likelihood of adoption].) We consider the evidence in the light most favorable to the Agency (as respondent), giving it the benefit of every reasonable inference and resolving all conflicts in support of the Orders. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576 (Autumn H.).) We do not reweigh evidence, evaluate credibility of witnesses or consider inferences contrary to the juvenile court's findings. (R.C., at p. 491.) Evidence from a single document may be sufficient (Evid. Code, § 411), whereas even uncontradicted evidence in favor of Mother (as appellant) does not establish the fact for which the evidence was submitted (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 890). All evidence favorable to the Agency (as respondent) " 'must be accepted as true and that which is unfavorable discarded as not having sufficient verity to be accepted by the trier of fact.' " (In re Brittany H. (1988) 198 Cal.App.3d 533, 549 (Brittany H.).)
As particularly applicable here, we must affirm the Orders if the challenged findings are supported by substantial evidence, "even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence." (In re Dakota H. (2005) 132 Cal.App.4th 212, 228 (Dakota H.); accord, K.F. v. Superior Court (2014) 224 Cal.App.4th 1369, 1383, fn. 7 ["The fact that contrary evidence exists which could support a different finding is not the test."]; A.S., supra, 202 Cal.App.4th at p. 247 [We " ' " 'giv[e] full effect to the respondent's evidence, however slight, and disregard[] the appellant's evidence, however strong.' " ' "].) The issue is not whether there is evidence in the record to support a finding Mother wishes had been made, but whether there is evidence that, if believed, would support the finding actually made. (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 872-873.)
In determining adoptability, the focus is on whether the minor's age, physical condition and emotional state will create difficulty in locating a family willing to adopt. (Zeth S., supra, 31 Cal.4th at p. 406, quoting In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649 (Sarah M.); R.C., supra, 169 Cal.App.4th at p. 491.) Based on this standard, Mother argues that, due to the Minors "severe behavioral issues," the record lacks substantial evidence that they were likely to be adopted within a reasonable time. In the very next sentence of her brief, however, Mother expressly acknowledges that the current caregivers are "interested in adopting th[e Minors]." (Italics added.) We disagree with Mother's suggestion that because the Minors had been living with the prospective adoptive family for only a month, evidence of this placement is insubstantial.
To be considered adoptable, there is a requirement that "adoption will be realized within a reasonable time." (Zeth S., supra, 31 Cal.4th at p. 406.) As applicable here, evidence of a prospective 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.' " (R.C., supra, 169 Cal.App.at p. 491, quoting Sarah M., supra, 22 Cal.App.4th at p. 1650.) Although Mother acknowledges this standard, she argues that it does not apply here, because "no reasonable trier of fact would find [Minor 1] and [Minor 3] were adoptable given their emotional and behavioral needs." There are at least two problems with Mother's approach.
Contrary to Mother's implication, there is no requirement either that the minor "be in a prospective adoptive home" or that there "be a prospective adoptive parent ' "waiting in the wings." ' " (R.C., supra, 169 Cal.App.4th at p. 491; see Sarah M., supra, 22 Cal.App.4th at p. 1649; see id. at p. 1651 ["availability as a prospective adoptive parent is not essential" to the finding that the minor is likely to be adopted within a reasonable time].)
First, to take such a position assumes that the prospective adoptive parents here did not know about the Minors' "emotional and behavioral needs." The record contains no such evidence, and given the standard of review, we do not infer any such finding. (R.C., supra, 169 Cal.App.4th at p. 491; Autumn H., supra, 27 Cal.App.4th at p. 576.) Indeed, the uncontroverted evidence is that the Minors' current caregivers are willing and able to provide a permanent adoptive placement for the Minors — without qualification or limitation based on the Minors' emotional or behavioral needs.
Moreover, to accept Mother's position would require that we weigh the evidence of the Minors' emotional and behavioral difficulties over a period of years — evidence on which Mother relies to support a finding contrary to the finding actually made by the juvenile court — which we may not do. (A.S., supra, 202 Cal.App.4th at p. 247 [we " ' " 'disregard[] the appellant's evidence, however strong' " ' "]; Dakota H., supra, 132 Cal.App.4th at p. 228 [we do not take into account substantial evidence contrary to the juvenile court's ruling]; Brittany H., supra, 198 Cal.App.3d at p. 549 [we " 'discard[]' " unfavorable evidence].) Rather, when considering only the evidence in support of the juvenile court's ruling, as we must, we have no difficulty concluding that it was substantial. As we explain, the record contains substantial evidence that the Minors are both generally adoptable and specifically adoptable — either one of which is sufficient to sustain a finding of adoptability. For purposes of this analysis, a minor is generally adoptable "based on his characteristics" and specifically adoptable "because his caregivers want to adopt him." (R.C., supra, 169 Cal.App.4th at p. 493.)
The evidence of the Minors' general adoptability includes testimony that, within San Diego County, the Agency had approved adoptive home studies for: four adoptive homes willing to adopt a child with Minor 1's characteristics, five adoptive homes willing to adopt a child with Minor 3's characteristics, and two homes willing to adopt a sibling set with the characteristics of Minor 1 and Minor 3. In compiling this information, the Agency screened potential placements based on the individual characteristics of each of the Minors.
The social worker explained that, in considering an adoptive placement for Minor 1 and Minor 3, the screening process included information about each of them (e.g., whether the child tested positive for drugs at birth, physical and mental health diagnoses, medications, behaviors, exposures and dangerous tendencies), as well as their parents (e.g., mental health diagnoses).
The evidence of specific adoptability included a report that the Minors' current caregivers were willing and able to provide a permanent adoptive placement for the Minors. The caregivers previously adopted and were raising two teenagers and recently signed papers to adopt a third young child — all through the Agency. In addition, the caregivers had more than 10 years' experience in providing foster care placement for dozens of children. Where, as here, a child is specifically adoptable based on a particular adult's willingness to adopt the child, the juvenile court's only consideration is " 'whether there is any legal impediment to the prospective adoptive parent's adoption and whether he or she is able to meet the needs of the child.' " (R.C., supra, 169 Cal.App.4th at p. 494.) Mother does not contend there is a legal impediment to the current caregivers' adoption of either of the Minors. She argues only that because there had been no "prospective caregiver assessment," the record lacks substantial evidence that the current caretakers are able to meet the needs of each of the Minors. We disagree; the evidence concerning the current caregivers' background as an adoptive family and a foster care family, plus their current foster care of the Minors, sufficiently establishes that the caregivers are able to meet the needs of the Minors.
The required home study had been approved for the adoption of this third child, and the Agency was in the process of obtaining an updated home study that would include the Minors — a study the Agency "expected to be approved."
In fact, the uncontradicted evidence is that, by the time of trial, the Agency already had ensured there were no legal impediments to the ability of the current caretakers to obtain an approved adoptive home study for the Minors. Given the home study related to the caretakers' pending adoption of the other child, to proceed with the adoption of the Minors the Agency only had to submit a two- to three-page addendum (as opposed to a 30- to 40-page original study), which could be accomplished in 30 to 90 days.
Based on the foregoing, the record contains substantial evidence that each of the Minors is both generally adoptable and specifically adoptable. Accordingly, Mother did not meet her burden of establishing that the record lacks substantial evidence to support the juvenile court's finding that Minor 1 and Minor 3 are likely to be adopted. B. The Juvenile Court Did Not Abuse Its Discretion in Ruling That the Sibling Relationship Exception to Termination of Parental Rights Did Not Apply
Once the juvenile court determines a child is likely to be adopted, the burden shifts to any party opposing adoption to show that termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1). (D.O., supra, 247 Cal.App.4th at p. 173; In re C.F. (2011) 193 Cal.App.4th 549, 553.) As applicable here, section 366.26, subdivision (c)(1)(B)(v) provides an exception to termination of parental rights based on a sibling relationship, upon a sufficient showing that "[t]here would be substantial interference with a child's sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child's best interest, including the child's long-term emotional interest, as compared to the benefit of legal permanence through adoption." (§ 366.26, subd. (c)(1)(B)(v), italics added; see D.O., at p. 173.)
Our Supreme Court has cautioned that, as an "exception[] to the general rule that the court must choose adoption where possible," application of section 366.26, subdivision (c)(1)(B)(v), " 'must be considered in view of the legislative preference for adoption when reunification efforts have failed.' " (Celine R., supra, 31 Cal.4th at p. 53.) Stated differently, this "statutory exception[] merely permit[s] the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption." (Ibid.) " 'The author of the legislation adding the sibling relationship exception anticipated that "use of the new exception 'will likely be rare,' " meaning "that the child's relationship with his or her siblings would rarely be sufficiently strong to outweigh the benefits of adoption." ' " (D.O., supra, 247 Cal.App.4th at p. 174.)
Under section 366.26, subdivision (c)(1)(B)(v), the juvenile court first must " 'determine whether terminating parental rights would substantially interfere with the sibling relationship.' " (D.O., supra, 247 Cal.App.4th at p. 173.) " 'If the court determines terminating parental rights would substantially interfere with the sibling relationship, the court is then directed to weigh the child's best interest in continuing that sibling relationship against the benefit the child would receive by the permanency of adoption.' " (Id. at pp. 173-174.) These determinations are analyzed from the perspective of the child being considered for adoption, not from the perspective of that child's sibling(s). (Celine R., supra, 31 Cal.4th at pp. 54-55.)
We disagree with Mother's contention that we review for substantial evidence the juvenile court's decision not to apply the sibling relationship exception to the termination of parental rights. Rather, we first apply the substantial evidence standard of review to the factual issue of the existence of a beneficial sibling relationship; then, if the record contains such substantial evidence, we apply the abuse of discretion standard of review to the juvenile court's balancing of competing interests — namely, whether the benefits of adoption outweigh the benefits of the sibling relationship. (D.O., supra, 247 Cal.App.4th at p. 174.)
In order for a beneficial sibling relationship to override the legislative preference for adoption (Celine R., supra, 31 Cal.4th at p. 53), the juvenile court must determine whether "the existence of that relationship constitutes a 'compelling reason for determining that termination [of parental rights] would be detrimental' " to the child. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1315 (Bailey J.), quoting § 366.26, subd. (c)(1)(B).) Determining whether the sibling relationship is a " 'compelling reason' " for finding detriment to the child is "a 'quintessentially' discretionary decision, which calls for the juvenile court to determine the importance of the relationship in terms of the detrimental impact that its severance can be expected to have on the child and to weigh that against the benefit to the child of adoption." (Bailey J., at p. 1315.)
We will assume without deciding that substantial evidence supports findings that both Minor 1 and Minor 3 had a beneficial sibling relationship with Minor 2 that would be adversely affected by a termination of parental rights.
Although the juvenile court did not expressly find a beneficial sibling relationship, the juvenile court found that Minor 1 and Minor 3 "do articulate wanting to live together [with Minor 2]" and that all three Siblings "were primarily raised in the same home or homes," "have had shared common experiences" (both good and bad), and "do have a bond" — all of which are the appropriate considerations in deciding whether to apply the sibling relationship exception to the termination of parental rights. (§ 366.26, subd. (c)(1)(B)(v); see D.O., supra, 247 Cal.App.4th at p. 173.) --------
Turning to whether the juvenile court abused its discretion in determining that the benefits of adoption outweighed the benefits of the two sibling relationships, we apply the following standard: " ' "whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court." ' " (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) Notably, under the abuse of discretion standard following the application of one of section 366.26, subdivision (c)(1)(B)'s exceptions to the termination of parental rights, a challenge to a juvenile court's finding that the exception does not apply "amounts to a contention that the 'undisputed facts lead to only one conclusion.' " (Bailey J., supra, 189 Cal.App.4th at p. 1314.)
Here, the undisputed facts include the Minors' smooth transition and current well-being with the caretakers. These facts do not support, let alone compel, a conclusion that the benefit of the relationship between either of the Minors and Minor 2 outweighed the benefit of adoption for each of the Minors. Under the Bailey J. standard, therefore, the juvenile court did not abuse its discretion. (Bailey J., supra, 189 Cal.App.4th at p. 1314.) In any event, in emphasizing the Minors' "long-term emotional interests . . . and long-term emotional needs," the juvenile court explained the basis of its exercise of discretion as follows: The benefit of adoption for each of the Minors outweighed the benefit of each of the Minors' relationships with Minor 2 on the basis that the Minors' "primary needs" are "for stability and a secure, stable, and safe environment that can focus on their needs without any concern by them for changes in their lives, moves, or disruptions."
This decision of the juvenile court did not approach, let alone exceed, the bounds of reason. Accordingly, Mother did not meet her burden of establishing that the court erred in ruling that the sibling relationship exception to the termination of parental rights did not apply to Minor 1 or Minor 3.
DISPOSITION
The Orders are affirmed.
McCONNELL, P. J. WE CONCUR: NARES, J. DATO, J.