In re Orlando A. CA2/3

Filed 9/5/13 In re Orlando A. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115(a).

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

In re ORLANDO A., et al., Persons B243807
Coming Under the Juvenile Court Law.
(Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. CK84195)
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

Plaintiff and Respondent,

v.

ELIZABETH G.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County,
Marilyn Kading Martinez, Judge. Affirmed.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the County Counsel, John F. Krattli, County Counsel,
James M. Owens, Assistant County Counsel, and Kim Nemoy, Principal Deputy County
Counsel, for Plaintiff and Respondent.
___________________________________________
 INTRODUCTION

Appellant mother seeks to reverse the dependency court’s order terminating her

parental rights with respect to her three children. She contends that there was

insufficient evidence that her children were adoptable, and the court abused its

discretion by not placing the children with maternal aunt. We disagree and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Elizabeth G. (mother) is the mother of Orlando A. (Orlando), born in July 2008,

Roxana A. (Roxana), born in September 2010, and Sonia A. (Sonia), born in

September 2011.1 This case began in September 2010, the day Roxana was born and

had a positive toxicology report for Benzodiazepine. Mother also tested positive for

Benzodiazepine but denied taking any drugs other than prescribed medication. Roxana

exhibited withdrawal symptoms and was in respiratory distress immediately after birth.

She was placed in the neonatal intensive care unit.

Mother disclosed that father, Jose A. (father), had a history of domestic violence.

She said that she continued to have contact with him because she needed him to support

his children financially. The Department of Children and Family Services (Department)

detained Orlando and Roxana and filed a petition alleging that the parents’ history of

domestic violence and mother’s unresolved history of substance abuse placed the

children at risk of harm.

On September 24, 2010, the court sustained the petition’s allegations, and

ordered that the home of maternal aunt, Sonia G. (maternal aunt), be evaluated for

1
Mother also has two older children who are not at issue in this appeal.

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placement.2 The Department reported that it could not complete a background check for

maternal aunt because she did not have proper identification. In addition, the

Department found that there was insufficient space for Orlando and Roxana at maternal

aunt’s two-bedroom apartment because two adults and four children already lived there.

Therefore, the Department did not recommend that the children be placed with maternal

aunt.

In November 2010, the Department submitted its Jurisdiction/ Disposition Report

in which it reported that Orlando was in foster care and Roxana remained hospitalized.

The Department noted that mother and father did not regularly visit the children and

concluded that neither parent was “very interested in maintaining regular contact” with

the children. In January 2011, the Department reported that Roxana has been released

from the hospital and was placed in foster care. Pursuant to a mediation agreement, the

court declared the children dependents under Welfare and Institutions Code3

section 300, subdivisions (b)4 and (j),5 placed Orlando and Roxana in Department

custody, and ordered that reunification services be provided to mother and father.

2
The court misidentified Sonia G. as “paternal” aunt in the minute order, however,
Sonia G. is actually mother’s sister.
3
All further statutory references are to the Welfare and Institutions Code.
4
Section 300, subdivision (b), provides a basis for juvenile court jurisdiction if the
child has suffered, or there is a substantial risk the child will suffer, serious physical
harm or illness as a result of the parent's failure to adequately supervise or protect the
child.
5
Section 300, subdivision (j), provides that the juvenile court may assert
jurisdiction over a child when “[t]he child’s sibling has been abused or neglected, as

3
 In June 2011, the Department social worker spoke with maternal aunt again

about adopting Orlando and Roxana. Maternal aunt reported that she would love for the

children to be placed with her and that she hoped to move to a larger apartment that

would accommodate them. However, she still did not have proper identification and,

therefore, the Department was unable to complete her background check.

At the six-month review hearing in July 2011, the court found that father had not

complied with the case plan and terminated his reunification services. The Department

reported that mother was in partial compliance with her case plan, often arrived late to

her visits with Orlando, and did not consistently visit Roxana.

On September 16, 2011, mother gave birth to Sonia. Sonia was hospitalized for

withdrawal symptoms from Benzodiazepine. The Department filed a petition alleging

that mother’s substance abuse, the parents’ history of domestic violence, and the

parents’ failure to participate in court-ordered programs placed Sonia at risk of harm.

At the 12-month review hearing in November 2011, the Department reported that

Orlando and Roxana remained in their respective foster homes and had bonded with

their caregivers. Mother was reported to be in partial compliance with her case plan and

had visited Orlando and Roxana at least 2-3 times a month. The court ordered the

Department to evaluate maternal aunt for placement once she obtained proper

identification.

defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that the child
will be abused or neglected as defined in those subdivisions.”

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 In December 2011, the Department reported that Sonia was doing well in foster

care and there were no “serious problems” to report. She was receiving all necessary

medical care, was beginning to overcome the effects of her prenatal exposure to

Benzodiazepine, and her long-term outlook was good.

In January 2012, the court terminated reunification services as to mother with

respect to Orlando and Roxana. Sonia was declared a dependent under section 300,

subdivisions (b) and (j), and the court ordered that no reunification services be provided

to either parent. A permanent plan hearing for the three children was set for May 18,

2012.

The Department completed an adoption assessment for each child prior to the

permanent plan hearing and found that each child was likely to be adopted. Orlando

was described to be physically healthy, personable and developing normally for his age.

Roxana “relate[d] well to [her] caregivers” and was “personable.” The assessment also

noted that Roxana required medication, showed delays in developing motor skills, and

had been diagnosed with “failure to thrive.” Sonia’s assessment reported that she had

been placed in a foster home and recommended that she be adopted with her siblings.

Roxana’s foster mother was interested in adopting Roxana and Orlando but said

that her home could not accommodate both of them. Orlando’s foster mother said she

was not able to adopt Orlando because her husband had a stroke. Another couple was

identified as prospective adoptive parents, and they met the children in April 2012. On

May 16, 2012, the children were placed in the home of their prospective adoptive

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parents who were reported to be “providing a safe, caring and nurturing environment for

the children.”

At the permanent placement hearing on May 18, 2012, maternal aunt indicated

that she had obtained proper identification such that the Department could now

complete her background check. The court ordered that the hearing be continued to

allow the Department to complete an evaluation of maternal aunt. The children

remained placed in their prospective adoptive parents’ home and were reported to be

“thriving in the[ir] care.” The Department had completed an assessment of maternal

aunt and reported that maternal aunt said that she could not care for all three children

but that she felt “pressured” by mother to tell the court that she could provide

a placement for the children. At the permanent plan hearing, maternal aunt was asked

whether she wanted all three children and she responded: “I don’t want the three to be

lost. I prefer just to have Orlando, but if it comes to that, I will take all three.” Maternal

aunt also stated that she had not yet moved to a larger apartment.

The court found that the children’s “current caretakers do very much desire to

adopt all three children,” that “[t]he children do not have special needs that would pose

a barrier to becoming adopted,” and that “[w]hatever [] these children’s needs, they are

well-known to the caretakers, who are meeting their needs on a daily basis.” On these

grounds, the court found that it was likely the children would be adopted and terminated

parental rights. Mother timely appealed.

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 CONTENTIONS

Mother contends that substantial evidence does not support the court’s finding

that the children were adoptable, and the court abused its discretion by not placing the

children with maternal aunt.

DISCUSSION

1. The Court Properly Found That the Children Were Generally Adoptable

The juvenile court may terminate parental rights only if it determines by clear

and convincing evidence that it is likely the child will be adopted. (Section 366.26,

subd. (c)(1).) “ ‘In reviewing the juvenile court’s order, we determine whether the

record contains substantial evidence from which a reasonable trier of fact could find

clear and convincing evidence that [the child] was likely to be adopted within

a reasonable time. [Citations.]’ We give the court’s finding of adoptability the benefit

of every reasonable inference and resolve any evidentiary conflicts in favor of

affirming. [Citation.]” (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1561-1562.)

The question of adoptability posed at a permanent plan hearing usually focuses

on “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.) “If the child is considered generally adoptable, we do not examine the suitability

of the prospective adoptive home. [Citation.]” (In re Carl R. (2005) 128 Cal.App.4th

1051, 1061.) “[T]he fact that a prospective adoptive family has been identified is an

indication that the child is likely to be adopted within a reasonable time.” (In re I.I.

(2008) 168 Cal.App.4th 857, 870.)

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 Here, mother contends that there is insufficient evidence to support the court’s

finding that the children were generally adoptable because the children were part of

a sibling set that is difficult to place for adoption. However, a child’s membership in

a sibling set is not a relevant consideration in determining a child’s adoptability. (In re

I.I., supra, 168 Cal.App.4th at p. 872.) “ ‘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. [Citations.]’ ” (Id. at p. 870

[emphasis added].) Accordingly, a finding of adoptability in the context of a sibling

group does not require a finding that the children are likely to be adopted as a sibling

group within a reasonable time.6 (Id., p. 872 at fn. 3.)

Mother also argues that there was insufficient evidence of the children’s

adoptability because Roxana exhibited numerous physical and developmental problems

and her medical issues were not adequately documented in the record. Mother’s

argument is, in essence, a challenge to the court’s finding that Roxana was adoptable.

Here, the evidence indicated that the prospective adoptive parents were informed about

Roxana’s current physical and developmental state as she had been living with them for

almost two months. The prospective adoptive parents’ continued interest in adopting

6
We disagree with In re B.D. (2008) 159 Cal.App.4th 1218 to the extent it held
that a finding of adoptability in the context of a bonded sibling group requires a finding
that the children are likely to be adopted as a sibling group within a reasonable time.
However, even if we were to follow the court’s holding in In re B.D., there was
substantial evidence here that the sibling group was likely to be adopted: a prospective
adoptive family had been identified for the sibling group, the children were young, the
two older children were personable, and the infant was assessed to have no long-term
health issues.

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Roxana despite her problems constituted evidence that her physical and developmental

condition was not likely to dissuade individuals from adopting her. (In re Sarah M.,

supra, 22 Cal.App.4th at p. 1649.) Roxana’s foster mother was also familiar with

Roxana’s needs and had wanted to adopt her as well. Furthermore, the evidence

showed that Roxana was an engaging one-year-old girl who was able to relate well to

her caregivers. Accordingly, Roxana’s physical and developmental issues were not

a significant bar to her adoption. Mother has, therefore, not shown that insufficient

evidence supported the court’s finding that the children were adoptable.7

2. The Court Properly Exercised Its Discretion When It Declined
to Place the Children With Maternal Aunt

Mother contends that the court abused its discretion by not placing the children

with maternal aunt at the permanent plan hearing because maternal aunt was a suitable

placement and was entitled to preference over the prospective adoptive parents.8

“A juvenile court’s placement orders are reviewed under the abuse of discretion

standard; the court is given wide discretion and its determination will not be disturbed

absent a manifest showing of abuse. [Citation.]” (In re Sabrina H. (2007)

7
Because substantial evidence supported a finding that the children were generally
adoptable, we need not address mother’s argument that the children were not
specifically adoptable. (In re Carl R., supra, 128 Cal.App.4th at p. 1061.)
8
The Department argues that mother lacked standing to challenge the children’s
placement because a reversal of the placement decision would not affect mother’s
parental rights. However, “[t]he placement of a dependent child with relatives can,
under certain circumstances, make the termination of parental rights unnecessary.
[Citation.]” (In re K.C. (2011) 52 Cal.4th 231, 237 [citing to section 366.26,
subd. (c)(1)(A) which provides an exception to the termination of parental rights when
the child is living with a relative and other circumstances are present.].) Accordingly,
mother does have standing to challenge the children’s placement.

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149 Cal.App.4th 1403, 1420.) Although mother argues that the evidence established

that maternal aunt was a suitable placement, in fact, maternal aunt had told the

Department that she could not adopt all three children, and that she felt “pressured” by

mother to tell the court that she could. In addition, maternal aunt lived in an apartment

that could not accommodate the children. By contrast, the children’s prospective

adoptive parents “very much desire[d] to adopt all three children” and their home study

had been approved. Accordingly, the court did not abuse its discretion in declining to

place the children with maternal aunt.

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 DISPOSITION

The order terminating mother’s parental rights is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CROSKEY, J.

WE CONCUR:

KLEIN, P. J.

KITCHING, J.

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