Filed 4/17/13 In re Dario M. CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

In re DARIO M., et al., Persons Coming Under
the Juvenile Court Law.

TULARE COUNTY HEALTH AND HUMAN                                                             F065465
SERVICES AGENCY,
                                                                              (Super. Ct. No. JJV063289)
         Plaintiff and Respondent,

                   v.                                                                    OPINION
CYNTHIA M.,

         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from an order of the Superior Court of Tulare County. Jennifer Shirk,
Judge.
         Mary R. Williams, under appointment by the Court of Appeal, for Defendant and
Appellant.




         *   Before Levy, Acting P.J., Cornell, J. and Gomes, J.
       Kathleen Bales-Lange, County Counsel, John A. Rozum, and Amy-Marie Costa,
Deputy County Counsel, for Plaintiff and Respondent.
                                           -ooOoo-
       Cynthia M. (mother) appeals from an order terminating parental rights to her five
children. (Welf. & Inst. Code, § 366.26.)1 Mother contends the juvenile court’s finding
that the children were likely to be adopted was not supported by substantial evidence.
We disagree and affirm the court’s order.
                      FACTUAL AND PROCEDURAL HISTORIES
       The First Dependency Case
       Dependency jurisdiction first was taken over mother’s oldest four children, then
seven-year-old Dario, three-year-old Angelica, two-year-old Daniel, and 18-month-old
Julissa, in 2008. The Tulare County Health and Human Services Agency (Agency) filed
a juvenile dependency petition in September of that year, after police were called when
mother’s neighbor saw Daniel wandering in the street wearing only a very soiled diaper.
The responding officer found two other children, Angelica and Julissa, walking down the
middle of the road; Angelica was wearing only panties, while Julissa was wearing only a
soiled diaper. Mother eventually came out of the home and said the children were hers.
The officer, who recognized mother from previous arrests for being under the influence
of methamphetamine, believed mother was under the influence.
       Mother and the children were living in the paternal grandparents’ garage. The
children’s father, Dario A. (father), left them the month before. Mother told the social
worker she began using methamphetamine at the age of 13 and she wanted help for her
substance abuse problem. Dario reported that when he was in trouble he was hit a lot
with an open hand. He also described domestic violence between his parents, and stated
that both mother and father slept during the day.
       1   All statutory references are to the Welfare and Institutions Code.



                                               2.
       The juvenile court found true the petition’s allegations that both parents non-
accidentally inflicted serious physical harm on Dario, which placed the other children at
risk of harm (§ 300, subd. (a)), and mother and father failed to protect the children and
their substance abuse placed the children at risk (§ 300, subd. (b)). The children were
removed from their parents’ custody and placed together in a foster home. Dario and
Angelica were assessed for mental health services; Dario was diagnosed with adjustment
disorder with mixed anxiety and depressed mood, while Angelica was diagnosed with
adjustment disorder with mixed disturbance of emotions and conduct. They began
receiving therapy.
       At the March 2009 review hearing, the juvenile court terminated father’s services,
continued mother’s services, and kept the children in out-of-home placement. In June
2009, the Agency returned the children to mother’s care and custody; the juvenile court
ordered the children returned to mother on family maintenance in September 2009. The
next month, mother gave birth to her fifth child, Andrew, whose father is also Dario A.
       Mother received family maintenance services until April 2011, when the juvenile
court granted mother custody of the children and terminated dependency jurisdiction. At
each family maintenance review, the social worker reported the children were happy,
well-adjusted, doing fine in mother’s care, enjoyed playing with each other, and did not
have significant medical or emotional/behavioral problems, except for a need to follow-
up on dental work that began while they were in foster care. Mother had difficulty
getting Dario to school on time, and ensuring that Dario and Angelica attended their
therapy appointments.
       By the February 2011 review hearing, when the Agency recommended dismissal
of dependency, Dario was to be discharged from therapy in March, as he was doing well
and did not need continuous services. Angelica was discharged from therapy after being
reassessed for mental health services in November 2010, as services were not medically
necessary; Angelica was doing well and was no longer aggressive.

                                             3.
       The February review hearing was continued because mother, who had been living
with her boyfriend and the children at his parents’ house, unexpectedly had to move. The
family moved to the maternal grandmother’s home, which was too small for all of them.
Mother said the move was temporary, as she and her boyfriend were looking for a place
to live. The court ordered that four-year-old Daniel be referred to the Central Valley
Regional Center (CVRC) for evaluation, as he was not talking much and did not like to
be touched or hugged.
       By April 2011, mother and her boyfriend were still living with the maternal
grandmother and looking for housing. The Agency continued to recommend dismissal.
On April 26, 2011, the juvenile court granted mother sole legal and physical custody of
the children, and terminated dependency jurisdiction.
       The Current Dependency Case
       Less than a month later, on May 20, 2011, mother was arrested for child
endangerment and being under the influence of a controlled substance. She left all five
children at home without adult supervision for about 30 minutes while she went to
purchase methamphetamine. When the maternal grandmother, Flora M., came home, she
found the children alone. To teach mother a lesson, Flora left the house with the
children. When mother returned home, the children were missing. Mother called the
police. Flora returned with the children after the responding officer called her. Mother
tested positive for methamphetamine.
       On May 24, 2011, a juvenile dependency petition was filed alleging that mother’s
substance abuse and failure or inability to supervise or protect the children placed them at
substantial risk of harm (§ 300, subd. (b)); the children were left without provision for
support, as father’s whereabouts were unknown (§ 300, subd. (g)); and the children were
at risk of suffering the same abuse or neglect as in the prior dependency case (§ 300,
subd. (j)).



                                             4.
       The next day, the juvenile court ordered the children detained. The Agency could
not locate a foster home that would take all of the children, so it placed Dario and Daniel
together in one foster home, and Angelica, Julissa and Andrew in another. On June 17,
2011, the social worker moved Angelica, Julissa and Andrew to their maternal great-
aunt’s home after the foster parent asked that Julissa be removed due to her aggressive
behaviors.
       A Court Appointed Special Advocate (CASA) appointed for the children visited
them in their foster homes. Dario and Daniel’s foster mother reported that the boys were
sharing a room. They played rough with each other; sometimes she worried that Dario
was too rough with Daniel. Nine-year-old Dario was in the fourth grade; he was below
basic in reading and writing, and progressing in language conventions and math. In a
written note, his teacher stated he had a long way to go in order to do well, and that many
things prevented him from learning, such as immaturity, behavior and effort. The foster
mother suspected both boys had cavities and would need dental treatment. Five-year-old
Daniel had trouble following directions; he had a temper and often would throw tantrums,
in which he would throw himself down on the floor. Daniel was a picky eater and ate
very little. Daniel was difficult to understand, but he talked more than when the CASA
previously saw him while he was in mother’s custody. Daniel did well on the “Social
Emotional ASQ,” but struggled on the fine motor and problem solving skills of the
“Developmental ASQ.”
       The CASA saw six-year-old Angelica, four-year-old Julissa and one-year-old
Andrew in their first foster home. Angelica, who was in kindergarten, was protective of
her siblings and usually well behaved. Angelica and Julissa shared a room, but the foster
mother often found them sleeping in the same bed. Julissa would cry when hungry
instead of asking for food. She did well on the “Developmental and Social Emotional
ASQ.” The foster mother reported that Julissa was aggressive with Angelica, who would
hit her back, but the girls were not aggressive with Andrew or the foster mother’s

                                             5.
daughter. Julissa was quiet, did not like to share, and rarely laughed. The foster mother
was concerned about Julissa’s tantrums, in which Julissa could scream up to 20 minutes
and throw anything she could grab, as the tantrums were negatively impacting the foster
mother’s daughter. Andrew was a good baby, who was generally quiet and rarely got
upset. He could not feed himself, so the foster mother would feed him. The CASA
recommended a concurrent plan of adoption as a sibling group should mother fail to
reunify.
       In a jurisdiction/disposition report filed on June 29, 2011, the Agency
recommended that (1) the children be declared dependents of the court, (2) mother not be
offered reunification services pursuant to section 361.5, subdivision (b)(13),2 (3) father
not be offered reunification services pursuant to section 361.5, subdivision (b)(10),3 and
(4) a section 366.26 hearing be calendared within 120 days to determine a permanent
plan for the children.
       The report described the children’s current status. At the time of detention, all of
the children were upset and crying at the thought of being removed from their home.
Dario, Angelica and Julissa were not CVRC clients, did not exhibit behaviors that would
warrant a CVRC referral, and appeared to be meeting developmental milestones. Julissa
could walk, talk, verbally express her wants and needs, and communicate her feelings.


       2 Section  361.5, subdivision (b)(13), authorizes a juvenile court to deny a parent
reunification services when it finds, by clear and convincing evidence, that the parent has
a history of extensive, abusive, and chronic use of drugs or alcohol and has resisted prior
court-ordered treatment for this problem during a three-year period immediately prior to
the filing of the petition that brought the child to the court’s attention.
       3  Section 361.5, subdivision (b)(10) authorizes a juvenile court to deny
reunification services when it finds, by clear and convincing evidence, that the juvenile
court ordered termination of reunification services for a sibling because the parent failed
to reunify with the sibling, and the parent has not subsequently made a reasonable effort
to treat the problems that led to removal of the sibling from that parent.



                                             6.
While Andrew was not a CVRC client and the great-aunt did not believe he needed a
referral, an Agency nurse arranged to have him assessed to determine whether a referral
was needed. Mother had not followed through with the CVRC referral for Daniel, so the
social worker rescheduled an intake appointment. While in mother’s care, Dario moved
schools twice. During the 2009-2010 school year, Dario frequently missed or was late to
school, his grades suffered and he had difficulty completing assignments.
       Dario, Angelica, Daniel and Julissa were being evaluated for mental health
counseling. Andrew was too young for mental health intervention and did not exhibit
behaviors warranting therapeutic intervention. The great-aunt reported that Angelica was
extremely quiet and withdrawn, while Julissa was exhibiting behaviors beyond her
control, such as being aggressive, hitting, biting, screaming, breaking things, and not
following directions. It appeared to the social worker that Julissa was having a difficult
time adjusting and coping. Andrew was adjusting well to the great-aunt’s home and she
was not experiencing any major issues with him. Dario and Daniel enjoyed their foster
home and, with the exception of sibling rivalry, appeared to be doing well.
       The social worker had not found a home that was willing or able to take all five
children. The social worker had not been successful in her efforts to find a relative
willing to take Dario and Daniel. The Agency wanted to find relatives for them so the
five children could be connected even if they did not live together in one home.
       An adoptions assessment for all five children was completed on June 29, 2011.
The assessment deemed the children adoptable, but since this was a sibling set and the
children were not placed together, the Agency wanted to continue to seek other relatives
to take Dario and Daniel to allow ongoing contact with the other three siblings. If other
relatives could not be located, the Agency would try to locate a non-relative adoptive
family who would be open to ongoing sibling contact. The great-aunt was willing to
adopt the three siblings in her care. She was also willing to take Dario and Daniel, but
she did not have room for them in her home.

                                             7.
       A jurisdictional hearing was held on July 12, 2011. After mother submitted on the
social worker’s reports, the juvenile court found the petition’s allegations true and set a
contested dispositional hearing. At the August 17, 2011 dispositional hearing, the
juvenile court found section 361.5, subdivision (b)(13) applied to mother, section 361.5,
subdivision (b)(10) applied to father, and denied them both reunification services. A
section 366.26 hearing was set for December 9, 2011.
       The Agency filed a section 366.26 report on December 1, 2011, which
recommended adoption with termination of parental rights. The children were in the
same placements. Dario was in the fifth grade, enjoyed school and was participating in
an afterschool program that helped him complete his homework. He was getting a C- in
language conventions, a D+ in math, a C+ in reading, and an A- in spelling.
       Dario was participating in counseling services with therapist Noushafarin
Tabatabi. He was diagnosed with adjustment disorder, unspecified. When first assessed
in May 2011, the foster mother reported Dario had temper tantrums, nightmares, and
difficulty following redirection, and bit his nails. He and Daniel argued often. The foster
mother also reported Dario demonstrated highly competitive behaviors with his siblings,
which often resulted in sibling arguments and caused Dario to act aggressively towards
them. He refused to take responsibility for his part in sibling conflicts. Dario sometimes
acted out in public settings, such as arguing with siblings or acting impulsively, where it
was difficult to redirect him. Dario’s self-soothing and anxious behaviors had decreased.
During therapy, Dario expressed concern about whether he would live with mother in the
future. Tabatabi believed Dario might take on the roll of a “surrogate” spouse, which is a
typical parent-child dynamic when substance abuse issues are present in the home, and
that he would continue to take on an adult role with his siblings. Tabatabi reported Dario
was making some progress toward reaching the overall therapeutic goals and would
benefit from ongoing mental health services to help him continue to work toward
engaging positively with his siblings, responding to redirection by adults, and increasing

                                             8.
his insight regarding how his controlling behaviors may be attributed to mother’s
substance abuse and overall neglect.
       Angelica, who was in the first grade, was also in the afterschool program that
helped her complete her homework. She enjoyed school and was doing well there
without any concerns. Angelica was participating in counseling services; her therapist
was Michelle Forsyth. She had been diagnosed with adjustment order, unspecified, but
as treatment progressed, Forsyth saw Angelica demonstrate many symptoms and
behaviors consistent with reactive attachment disorder of infancy or early childhood
(RAD). The great-aunt was participating in family and collateral parenting support
sessions, while Angelica was attending weekly individual therapy, as well as a weekly
school based social skills group. Angelica was beginning to identify and verbalize her
feelings related to the previous home situation. Angelica’s defiant behaviors toward the
great-aunt and aggression toward a same aged peer in the home had increased some.
Angelica struggled to accept responsibility for her actions and often blamed others. The
great-aunt was learning and implementing RAD parenting techniques; it was important
for Angelica to remain in a structured environment where she would receive supervision,
consistency and affection, and to begin to learn to reattach and bond with caregivers.
       Daniel completed his CVRC assessment on September 26, 2011, but the results
were still pending. He was in kindergarten and participated in an afterschool program.
He recently was awarded a certificate “for always doing his best.” He was participating
in counseling services with therapist Noushafarin Tabatabi. He was diagnosed with
adjustment disorder, nonspecified. Daniel continued to struggle with speech articulation.
He had little difficulty adjusting to starting school and was progressing academically.
His anxious reactions to new settings were decreasing. The foster parent reported Daniel
was able to verbalize his needs, and was more compliant to redirection when away from
Dario. He continued to exhibit self-soothing behaviors that appeared to be anxiety based.
Tabatabi noted Daniel was demonstrating an increased level of functioning at his foster

                                            9.
home and a decreased level of anxiety in new settings. Tabatabi opined that continued
mental health services would allow Daniel to work toward the development of
appropriate social skills, decrease anxiety symptoms and increase the ability to sustain
attention for a significant amount of time.
       Julissa was participating in counseling services with Michelle Forsyth. She was
diagnosed with RAD and physical abuse. Julissa had made progress in decreasing the
duration and severity of her tantrums as a direct result of the great-aunt’s consistent
efforts and modeling of acceptable behavior. Julissa struggled to comply with directives
without arguing. During therapy sessions, she struggled to respect personal boundaries
and limits set in session, and was defiant when redirected. She was responsive to her
great-aunt during therapy sessions and appeared to seek out affirmation. With
consistency in the home environment and RAD parenting, Forsyth was hopeful Julissa
would continue to decrease her negative behaviors and increase compliance, eventually
securing attachment to a primary caregiver. Forsyth opined that, due to the severity of
the reported abuse and intensity of Julissa’s symptoms and behaviors, it was important
for her to continue in therapy, with an emphasis on the care provider’s parenting
techniques. Forsyth further opined it was important for Julissa to live in a structured
environment where she could receive supervision, consistency and affection, and begin to
learn to reattach and bond with caregivers.
       The great-aunt had been identified as a prospective adoptive parent for Angelica,
Julissa and Andrew. The great-aunt had seen mother struggle with her past addictions
and wanted to provide stability for the three children, who she loved and was willing to
adopt. She was capable of meeting their needs, as she had successfully cared for them
since June 2011.
       The social worker explained that the children were deemed adoptable, as they
were healthy and happy, with no significant medical or developmental problems. The
Agency identified adoption as the best permanent plan for the sibling group. The social

                                              10.
worker opined that given the children’s characteristics, including their ages, mental
health status, and general good health, there were many foster-adopt families who would
be willing to adopt the children aside from the current prospective adoptive parent. The
social worker further opined adoption was likely. The Agency, however, had not found a
home that was willing to take all five children. The social worker believed removing
Angelica, Julissa and Andrew from their current placement would be detrimental, as they
had transitioned comfortably to the placement and begun to form a bond with the
maternal great-aunt. The Agency wanted to find an adoptive home willing to take Dario
and Daniel that would be open to sibling contact.
       In a report filed on December 7, 2011, the CASA reported the results of
assessments of the children in their placements. The foster mother of Dario and Daniel
stated that therapy had helped to reduce the acting out and aggression Dario exhibited
toward Daniel, and Dario was doing much better. The CASA observed positive
interactions between the two boys. Daniel was well-behaved. The CASA observed that
Daniel did not make much eye contact and his speech was somewhat unclear. Therapy
had reduced his anxious behaviors. He scored well on his social-emotional “ASQ,” and
was well on track to meeting his developmental milestones. Dario was wearing glasses
and appeared well-behaved as he shared toys with Daniel.
       Andrew had been diagnosed with a heart murmur, but according to the great-aunt,
the doctor said it was not serious. She, however, was concerned about Andrew, as it was
hard to get his attention, he stuffed food in his mouth until he gagged, and put non-food
items in his mouth even after eating. The great-aunt also reported Andrew had trouble
sleeping at night and often rocked back and forth while sitting on the couch. Andrew
scored far above the cutoff score for his social-emotional “ASQ,” which was a concern,
and scored low on the communication portion of the developmental “ASQ,” although he
scored very well on the remaining sections. Four-year-old Julissa was not enrolled in
school at her therapist’s recommendation because she was deemed to be a threat to others

                                            11.
and to society. The great-aunt had observed slight improvement with Julissa’s tantrums,
which were less frequent and intense, but she still became aggressive when she got mad.
Julissa’s score on her social-emotional ASQ was two times the cutoff score, which was a
concern, and was mostly inattentive during the developmental ASQ. She scored low on
most sections, with the exception of the problem solving section, in which she scored
well. The great-aunt was willing to adopt all of the children, including Dario and Daniel.
The foster mother was not sure if they would be willing to adopt.
       On December 7, 2011, mother filed a request to change the juvenile court’s order
from denying her reunification services to granting her services. (§ 388.) The juvenile
court denied the request without a hearing, as the request did not state new evidence or a
change of circumstances.
       On January 5, 2012,4 the juvenile court held a contested section 366.26 hearing.
The Agency submitted on its reports and the juvenile court took judicial notice of the
case file. Mother testified that the children had always resided together as a sibling group,
they played together during visits, and Julissa, Andrew and Daniel were very close and
had a bond with each other. Mother testified the children had special bonds with each
other, but Daniel and Julissa’s bond was deeper because they are so close in age. Dario
had a very deep bond with his siblings.
       County counsel asked the juvenile court to find the children adoptable despite their
behavior problems and terminate parental rights. The attorney for Angelica, Julissa, and
Andrew, also argued for termination of parental rights. The attorney for Dario and
Daniel argued adoption at that time was not appropriate because the children were
strongly bonded to each other, and asked the juvenile court to apply the sibling exception
to termination of parental rights. Mother’s attorney argued that parental rights should not


       4   Subsequent references to dates are to dates in 2012.



                                              12.
be terminated because of mother’s relationship with the children and because the sibling
exception applied.
       The juvenile court found that mother had not met her burden of establishing the
parent/child relationship exception to termination of parental rights applied. The juvenile
court asked the parties to consider the application of section 366.26, subdivision (c)(3),
which allows the court to identify adoption as the permanent placement goal without
terminating parental rights and order the Agency to make efforts to locate an appropriate
adoptive family within a maximum of 180 days, where (1) termination of parental rights
would not be detrimental to the children, and (2) the children have a probability for
adoption, but were difficult to place for adoption because there was no identified or
available prospective adoptive parent due to the children’s membership in a sibling
group. The parties all submitted on that issue. In explaining that the permanent plan goal
would be adoption, the juvenile court stated it was finding at that time that the sibling
exception to termination of parental rights contained in section 366.26, subdivision
(c)(1)(B)(v) was applicable, as that section would not preclude adoption if an adoptive
placement could be found for all of the children.
       The juvenile court thereafter specifically found that termination of parental rights
would not be detrimental to the children, and the children had a probability for adoption
but were difficult to place due to the sibling relationship. The court continued the matter
for 180 days and ordered that efforts be made to locate an appropriate adoptive family.
The court ordered that if a placement were found that could accommodate all five
children, the children’s attorneys must be notified before any move. The court also stated
it was not precluding the possibility of the children being placed in separate adoptive
families as long as the adoptive placements included essentially open adoptions that
would allow for continued sibling contact.
       On May 29, the Agency filed a section 366.26 report, in which it recommended
termination of parental rights and adoption for the children. The report contained updates

                                             13.
on the children. They were deemed adoptable. The children presented as healthy and
happy, with no significant medical or developmental problems. Daniel’s CVRC
evaluation had been received; he did not meet the criteria to receive CVRC services. He
was referred to speech therapy at school. He received the student of the month award in
March, for having a perfect score on addition and subtraction.
       The social worker opined that adoption was the best permanent plan and given the
children’s characteristics, including their age, mental health status, and general good
health, there were foster-adopt families willing to adopt them. The Agency had found an
adoptive home for all the children together. The prospective adoptive parents were
willing and able to adopt all of the children. On May 4, Julissa and Andrew were placed
with the prospective adoptive parents. The Agency was waiting until the three older
children, Dario, Angelica and Daniel completed their school years before placing them
with the prospective adoptive parents. The prospective adoptive parents were a married
couple in their early 30’s, who had always wanted children of their own but had not been
successful in having any, and adopting the children provided a perfect opportunity for
them to have the big family they desired. They met the children for the first time on
April 5, and transitional visits began thereafter. The prospective adoptive parents were
committed to the children and to a plan of adoption.
       Dario and Daniel’s therapist, Tabatabi, reported on their progress in therapy as of
May. Dario appeared to be decompensating in his overall functioning; he had become
increasingly antagonistic toward Daniel, refused to take responsibility for his choices and
blamed others for his negative choices. He recently required crisis intervention services
as he made comments of being unhappy and “wanting to jump out of [a] car.” Tabatabi
believed the symptoms were a possible reaction to ongoing visits with the prospective
adoptive parents. While Dario “liked” the visits, he was exhibiting ambivalence and
anxiety-based symptoms as visits with mother were decreasing concurrently. Tabatabi
assumed Dario had come to a conclusion regarding his future placement, and noted that

                                            14.
as Dario had not been informed of any pending placement changes, he had begun to
retreat from his current placement by engaging in defiant and oppositional behaviors. In
contrast, Daniel had demonstrated areas of significant progress, as his level of
antagonistic and defiant behaviors and symptoms had decreased overall. Tabatabi
reported that Daniel had formed a stable and consistent bond with his current caregiver.
Tabatabi cautioned that Daniel’s behaviors may increase as placement progresses and he
transitions from his current, secured attachment. Tabatabi wanted to be included in
planning a time to meet with Dario and Daniel, and their social worker, to discuss
placement, and stated he would continue to assess and monitor any ongoing and new
suicidal ideations Dario might have.
       In a report filed on June 7, the CASA reported that Julissa and Andrew remained
placed in the prospective adoptive home, while Angelica was with the great-aunt, and
Dario and Daniel remained in their foster home. Dario, Angelica and Daniel were
visiting the prospective adoptive parents on the weekends. The CASA completed an
assessment at the prospective adoptive home where Julissa and Andrew were placed.
       Dario’s prospective adoptive father told the CASA that when Dario was in their
home on weekends, he tended to be aggressive with his siblings and often provoked
them, particularly Daniel. The prospective adoptive father believed Dario had a lot of
anger; Dario said he missed his family and became very upset and acted out when mother
told him he would not be seeing her. Dario did open up to the prospective adoptive
parents a few weeks before and told them he wanted to go home; he ended up having a
good weekend with his siblings. The prospective adoptive mother reported that Daniel
was a humble child, followed directions well, and while he had trouble eating certain
foods, he was trying new things. Angelica was reported to be an overall good child; she
was timid, liked to draw, and would shut down when upset. Angelica had normal
relationships with her siblings. Julissa’s behavior had greatly improved since she moved
in with the prospective adoptive parents; she had not engaged in any behaviors previously

                                            15.
reported, such as throwing tantrums, having outbursts, and having inappropriate
interactions with males. Julissa scored well in the developmental and social/emotional
ASQ. The prospective adoptive parents were told that Andrew’s heart murmur was
closing up. While Andrew had a temper and could be stubborn, he was generally a sweet
and funny child. He had become used to timeouts and did not scratch himself. Andrew
interacted appropriately with his siblings.
       The CASA further reported that while scheduling the assessment, the prospective
adoptive mother stated they might not be able to adopt the children after all, as her
husband was going through a career change. They were in the process of informing the
social worker about this. Their “major concern” was in regards to Dario, who had been
aggressive and upset due to not being able to go back home. The four oldest children
were demonstrating better behavior in the home. The CASA further reported that
Angelica was excelling in school, reading above grade level and had no discipline record.
Dario was reading at grade level and progressing in all of his subjects.
       In an addendum report filed on June 8, the Agency changed its recommendation
from adoption to a permanent planned living arrangement (PPLA) with the goal of
reunifying the siblings. The Agency reported that on June 5, the prospective adoptive
parents informed the social worker they would not be able to continue with the adoption
due to personal issues, namely that they were moving back east, and they were devastated
about the current situation. The children’s therapists were informed of this information
that same day.
       On June 7, Julissa and Andrew were returned to their great-aunt’s care, where
Angelica remained placed. Dario’s foster mother called the social worker that day and
said that, while cleaning Dario’s room, she found “various pornographic material.” She
was highly concerned. The social worker relayed this information to Dario’s therapist,
who told the social worker Dario was having emotional difficulties. The therapist related
that on one occasion, when a visit with the prospective adoptive parents was cancelled,

                                              16.
Dario was very distraught and made comments during therapy that he wanted to jump out
of the car. A crisis team evaluated him and he appeared to be fine. The social worker
was highly concerned about the children’s emotional wellbeing and therefore
recommended the children receive psychiatric evaluations before the Agency
recommended a permanent plan. The social worker was working on scheduling a team
decision meeting to discuss placement. A new adoption assessment was completed
which concluded that termination of parental rights would be detrimental to the children
because the current caretakers were unable or unwilling to adopt, and adoption would
substantially interfere with the sibling relationship.
       In an addendum report filed on July 3, the Agency changed its recommendation
from PPLA to adoption with termination of parental rights, as the Agency had identified
new prospective adoptive parents for the children. The couple was highly interested in,
and able to provide, a permanent plan of adoption. The social worker stated that the first
prospective adoptive couple was located in April, but that placement failed; the social
worker noted that the children, especially Julissa and Dario, “have exhibited increase[d]
behaviors of defiance. Their behaviors are placing their current placement at risk of
removal.” As of the writing of the report on June 29, physical contact between the
children and prospective adoptive parents had not occurred, with the initial contact
scheduled for July 3. The children and prospective adoptive parents had viewed
photographs of each other and been provided with each other’s personal information.
       The social worker explained in the addendum report the sequence of events after
the first prospective adoptive couple backed out of the adoption. On June 12, the Agency
received a letter from Angelica and Julissa’s therapist, Forsyth. Forsyth stated she was
“unable to attend today” due to a previously scheduled training, but she wanted to share
her concerns about the girls. Forsyth requested they not be moved from their current
placement due to their mental health diagnoses, previous treatment progress and recently
failed adoptive placement, which had been especially difficult on Angelica, who did not

                                              17.
want to leave her current placement, as well as on Julissa. In Forsyth’s opinion, being in
a stable and nurturing environment where attachment to a healthy adult could occur was
more important than adoption or maintaining sibling relationships. Forsyth noted that the
great-aunt had worked very hard to understand and incorporate RAD parenting
interventions, and the girls were making slow and steady progress. Forsyth
recommended that the Agency focus on the girls’ individual needs when determining
placement.
       On June 14, a team decision meeting (TDM) was held regarding placement of the
children. Mother, the current caretakers, the children’s attorneys, and the “children’s
therapist” were all invited. Dario and Daniel’s foster mother said she was willing and
able to adopt Daniel, but not Dario, and she did not know how long she would be able to
care for Dario due to his acting out. The great-aunt stated she would not be able to adopt
Angelica, Julissa and Andrew, but said she would consider guardianship of the three.
The social worker had informed both of the attending therapists of the children’s
behaviors; therapeutic behavior services (TBS) were going to be implemented in the
upcoming weeks.
       On June 20, the Agency received a call from a couple who was highly interested
and motivated in adopting the five children together. They had gone through an
assessment, their home study had been completed, and they were licensed to take five
children. The children’s current behaviors and needs had been disclosed to the couple.
The prospective adoptive parents were “fully aware of the needs of the children” and
were willing and able to adopt the sibling set.
       On June 26, the social worker advised the children’s attorneys of the current
situation. The attorney for Dario and Daniel did not respond. The attorney for Angelica,
Julissa and Andrew electronically advised the social worker on June 27 that she agreed
with the children being together in the new prospective adoptive home. The great-aunt
called the social worker on June 26 and expressed her concerns and frustrations. The day

                                            18.
after the TDM, the maternal grandmother called the great-aunt and told her it was her
fault the children had not been returned to mother, that mother’s parental rights would not
be terminated and mother could make decisions about the children. The maternal
grandmother also said that once court was completed, she and mother would be able to
visit and take the children at any time. The great-aunt was tired and frustrated with
dealing with the family’s behaviors, and was concerned that if she provided a permanent
plan for the children, mother and grandmother would intervene constantly with the way
she was raising the children.
       The Agency deemed the children to be adoptable. The social worker reiterated the
prospective adoptive parents were clear in their desire to adopt all five of the siblings
together. The prospective adoptive parents, a retired couple in their mid-50’s, had been
married for 33 years and were parents to three adult children who do not live with them.
They had always wanted a large family and felt this was the perfect time to expand their
family through adoption. They were interested in adopting a sibling group because they
felt strongly about not splitting children up from their siblings, and were looking forward
to providing the support and experiences each child needed. An adoption assessment was
completed which stated the children were adoptable.
       In an addendum report filed on July 17, the social worker stated that the children
were expected to be placed with the prospective adoptive parents within the next couple
of weeks. The children and prospective adoptive parents had been together on three
separate occasions. The interaction between the children and prospective adoptive
parents appeared appropriate and the parents were attentive to the children’s needs. On
the first contact, which took place in an observation room, the parents brought various
activities and crafts for the children. On the second contact, they all played at a local
park and the parents brought a family picnic; the children appeared to enjoy the time
together. The children and parents had also enjoyed swimming together; during
swimming, Andrew, Julissa and Daniel sought the parents for support and reassurance

                                             19.
while in the pool. The children appeared calm during visits, and asked their current
caretakers, as well as the social worker, when they would see the prospective adoptive
parents again.
       On July 12, the social worker asked the children if they wanted to spend the night
at the prospective adoptive parents’ home; the children stated yes. On July 13, the
children went for an extended visit; they were going to return on July 17, but the visit was
extended to later in the week after Dario said he felt safe and wanted to stay a little
longer. The social worker spoke with Dario by telephone on July 16 to see if he wanted
to attend the court hearing; Dario declined, but told the social worker “to ask the court if
we can stay here forever,” referring to the prospective adoptive parents’ home. The
prospective adoptive parents do not live in Tulare County. When they came to Visalia to
visit the children, they also “become educated with the needs of the children, by
communicating with the service providers to the children.” The prospective adoptive
parents were “fully aware” of the children’s needs and were clear in their desire to adopt
the children.
       The prospective adoptive parents attended REACH Tulare County, which provides
pre- and post-adoption services to families adopting through Tulare County foster care.
The REACH program supervisor reported she had observed a pre-adoptive visit between
the parents and children. She also met with the parents on July 12 for two and a half
hours, when she provided education on the psychological effects of adoption on children.
She assessed the parents to have superior parenting skills, including the flexibility to meet
the children’s individual needs, an open communication style, and experience with large
families and positive disciplinary measures. The parents also had an established support
system prepared to nurture the family. While the parents did not have experience
parenting children with histories of maltreatment, they appeared to be a warm and loving
couple with solid parenting skills and a willingness to provide permanency. They were



                                             20.
also invested in ongoing training and ready to access the adoption resources and support
they would need to meet the needs of a large adopted sibling set.
       The contested section 366.26 hearing was held on July 18. The Agency submitted
on its reports and the juvenile court took judicial notice of the entire case file. The other
parties also submitted on the reports. Mother’s attorney argued that mother wanted to see
the children remain in their current placements and the Agency pursue the placement of
all the children with relatives, rather than with an unknown placement. The attorney for
Angelica, Julissa and Andrew asserted that the sibling exception did not apply, as the
children were to be placed with the prospective adoptive family within the next two
weeks. County counsel confirmed that was the plan, as the children already had extended
overnight visits, as well as a week-long visit, visits were going very well, and Dario had
indicated he did not want to leave the prospective adoptive home. County counsel further
explained that when the prospective adoptive parents had been in the area, they had taken
time to learn about each child and his or her issues, and also had been set up with
services, which are available to assist them if there were problems. The attorney for
Dario and Daniel joined in the remarks of the other children’s attorney and County
counsel. The juvenile court took the matter under submission and set July 20 as the
hearing date for the ruling.
       On July 20, the juvenile court adopted the social worker’s findings and orders.
The juvenile court found there was clear and convincing evidence that the children were
likely to be adopted, ordered termination of parental rights, and referred them to the
county adoption agency for adoptive placement.
                                       DISCUSSION




                                             21.
       Mother’s appeal challenges the termination of her parental rights on the ground the
juvenile court’s finding of adoptability is not supported by sufficient evidence.5 Both the
evidentiary standard that applies to this issue in the juvenile court and our standard of
review on appeal are well settled. At a section 366.26 hearing, the court must determine
by clear and convincing evidence whether it is likely the minor will be adopted.
(§ 366.26, subd. (c)(1).) If the court finds a likelihood of adoption, the court must
terminate parental rights, in the absence of statutory exceptions that mother does not
argue are applicable here. (In re Celine R. (2003) 31 Cal.4th 45, 53 [if evidence at
section 366.26 hearing shows child is likely to be adopted, juvenile court “must order
adoption and its necessary consequence, termination of parental rights, unless one of the
[statutorily] specified circumstances provides a compelling reason for finding that
termination of parental rights would be detrimental to the child.”]; In re A.A. (2008) 167
Cal.App.4th 1292, 1320 (A.A.).)
       “Although a finding of adoptability must be supported by clear and convincing
evidence, it is nevertheless a low threshold: The court must merely determine that it is
‘likely’ that the child will be adopted within a reasonable time. [Citations.] We review
that finding only to determine whether there is evidence, contested or uncontested, from
which a reasonable court could reach that conclusion. It is irrelevant that there may be
evidence which would support a contrary conclusion.” (In re K.B. (2009) 173
Cal.App.4th 1275, 1292.) In other words, on appeal, “the clear and convincing test

       5  In her reply brief, mother argues this court should strike the respondent’s brief
for failing to comply with California Rule of Court, rule 8.204, by presenting an
“inaccurate, slanted account of the evidence in its statement of the case and facts, and in
its argument fails nearly totally to cite to the record to support the statements of fact upon
which its argument is based.” We decline the request, as mother has not filed a separate
motion requesting such a sanction. (Cal. Rules of Court, rules 8.54(a), 8.204(e)(2)(B);
SCC Acquisitions Inc. v. Central Pacific Bank (2012) 207 Cal.App.4th 859, 863.) In
addition, we elect to forego our option to order the brief returned for correction or to
strike the brief. (Cal. Rules of Court, rule 8.204(e)(2)(C).)



                                             22.
disappears and ‘the usual rule of conflicting evidence is applied, giving full effect to the
respondent’s evidence, however slight, and disregarding the appellant’s evidence,
however strong.’” (In re I.W. (2009) 180 Cal.App.4th 1517, 1526.) Moreover, we
review the record in the light most favorable to the juvenile court’s findings, and draw all
inferences from the evidence that support the court’s determination. (In re Nada R.
(2001) 89 Cal.App.4th 1166, 1177.)
       “The adoptability issue at a section 366.26 hearing focuses on the dependent child,
e.g., whether his or her age, physical condition, and emotional state make it difficult to
find a person willing to adopt.” (A.A., supra, 167 Cal.App.4th at p. 1311.) “It is not
necessary that the child already be in a potential adoptive home or that there be a
proposed adoptive parent ‘waiting in the wings.’ [Citation.] [¶] Conversely, the
existence of a prospective adoptive parent, who has expressed interest in adopting a
dependent child, constitutes evidence that the child’s age, physical condition, mental
state, and other relevant factors are not likely to dissuade individuals from adopting the
child. In other words, a prospective adoptive parent’s willingness to adopt generally
indicates the child is likely to be adopted within a reasonable time either by the
prospective adoptive parent or by some other family.” (A.A., supra, 167 Cal.App.4th at
pp. 1311–1312.)
       Having reviewed the record as summarized above, we conclude there was
substantial evidence to support the juvenile court’s adoptability finding. The children
were physically healthy, with no developmental delays, and they are attractive. None of
the children received services from CVRC. They were doing well in school. The
children shared close relationships with each other. While Dario could be aggressive
with his siblings, he was able to engage in appropriate behavior with them and the other
children interacted appropriately with each other.
       Although Angelica and Julissa had been diagnosed with an attachment disorder,
and Dario and Daniel had been diagnosed with adjustment disorders, they all were

                                             23.
receiving therapy. In spite of the girls’ disorder, they had made significant psychological
progress in their placement with the great-aunt, as well as important strides in their
attachment potential. We recognize that their therapist was concerned about the effect
another change of placement would have on their mental health; however, the therapist
did not opine on what difficulties another family might have with the girls should a
second adoptive placement be attempted. Notably, when Julissa was placed with the first
adoptive family, she did not engage in any of the behaviors previously reported, such as
throwing tantrums or having outbursts. Moreover, the first adoptive family did not have
any concerns about the other children’s behaviors, with the exception of Dario, who was
having difficulty accepting the loss of his relationship with mother. But even Dario’s
behavior improved during visits with them.
       Finally, two sets of caregivers had been interested in adopting the children.
Although the first prospective adoptive parents had to back out of the adoption for
personal reasons, namely a move to the east due to a career change, until that occurred
they remained committed to adopting the children despite their behavioral problems.
While the children had not yet been placed with the second prospective adoptive parents,
the parents were apprised of the children’s issues, had educated themselves on the
services the children required and were fully aware of the children’s needs. The children
had participated in an extended visit with them and there were no reported problems.
Significantly, the children were all excited to visit them and Dario wanted to be placed
with them.
       Given the children’s positive attributes, the progress they were making in
overcoming their behavioral and emotional problems, as well as the current and former
caregivers’ willingness to adopt them, the juvenile court properly could find it was likely
the children would be adopted. (§ 366.26, subd. (c)(1).)
       Mother claims that where a child has characteristics that make him or her less
“adoptable,” such as being seven-years-old or older, being part of a sibling group, having

                                             24.
physical or mental deficits, or having serious emotional/behavioral problems, there
“generally” must be evidence of persons who, after becoming aware of those
characteristics, intend to, or are interested in, adopting the child. Citing the cases which
found children adoptable despite severe behavior problems, namely In re I.I. (2008) 168
Cal.App.4th 857, A.A., supra, 167 Cal.App.4th 1292, and In re Brandon T. (2008) 164
Cal.App.4th 1400, she asserts that when dealing with children who have a “high level of
‘difficult to adopt’ characteristics,” the evidence must establish more than that families
are interested in adopting the children or that a family intends to adopt them after being
advised of their characteristics. In such situations, she asserts there must be evidence that
the prospective adoptive parents actually cared for the children in their home, so the
juvenile court may be assured the children’s characteristics will not cause them to back
out.
       Applying this “rule” to this case, mother argues that the children had most of the
characteristics that make a child difficult to place for adoption, as two of the children are
seven-years-old or older, and one is nearly seven; the children are a large sibling group of
five who are closely bonded; and the children have “major psychological/emotional
issues” that threaten their ability to form healthy parent-child bonds and become more
behaviorally adjusted. Mother reasons that since the children are highly difficult to place
for adoption, that two families were willing to adopt them is insufficient evidence to
support the adoptability finding. She argues the failed adoptive placement demonstrates
that the children are difficult to adopt, and actually exacerbated the children’s attachment
issues and needs, which led the Agency to recommend a PPLA and that the children
receive psychiatric evaluations before changing placements. She further argues there was
no guarantee the prospective adoptive parents would follow through with the adoption, as
they had only recently been identified, did not have substantial experience caring for the
children, it was unclear how much they had been told about the children’s difficulties,
and they had not yet developed a bond with the children. She contends the Agency’s

                                             25.
change of recommendation from PPLA to adoption was irrational, as the only thing that
had changed between the two recommendations was the appearance of the new
prospective adoptive couple who, as of June 29, the date of the Agency’s report, had not
yet seen the children.
       Notably, mother raised none of these concerns in the juvenile court where her
points and their legal significance, if any, could have been litigated. By arguing them
now, mother essentially asks this court to reweigh the evidence and draw questionable
inferences on conflicting evidence. This, however, is not within our appellate purview.
Our power, when asked to assess the sufficiency of the evidence, whether or not
contradicted, which will support the trier of fact’s conclusion. All conflicts must be
resolved in respondent’s favor and all legitimate inferences indulged in to uphold the
decision, if possible. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379.) On this
record, we conclude there was substantial evidence to support the juvenile court’s
finding.
       Moreover, mother’s argument centers on the children’s behaviors, which she
believes are so egregious that they likely would cause the second prospective adoptive
family to back out of the adoption. The children’s behaviors, however, are not as bad as
she portrays. As discussed above, while Angelica and Julissa had been diagnosed with
attachment disorders, they did not demonstrate any significant behavioral problems with
the first prospective adoptive couple, and there was no evidence of behavioral problems
with the second prospective adoptive couple. The girls’ therapist was concerned about
the effect a change in placement would have on them and commended the great-aunt for
applying RAD parenting techniques, but did not opine on what behavioral difficulties the
girls might experience if another adoptive placement were attempted. While mother
emphasizes the therapist’s recommendation to leave the girls with the great-aunt, she
ignores that the great-aunt was reconsidering providing a permanent plan for them, since
mother and her family were threatening to interfere. There were absolutely no problems

                                            26.
reported with Daniel’s behavior. And while Dario was having the most problems
adjusting to the idea of being adopted, and his foster parents were unwilling to adopt him
because of problems he was displaying in their home, his behavior apparently improved
when visits with the second prospective adoptive couple began. Viewing the evidence in
the light most favorable to the juvenile court’s decision, the juvenile court reasonably
could find that the children’s behaviors were not so severe as to require the court to
question whether the second couple would back out of the adoption.
       Mother asserts the first adoptive family backed out in part because of the
children’s behaviors. Reading the record in a light most favorable to the juvenile court’s
findings, as we must, we conclude there is no evidence the children’s behaviors
influenced their decision to back out. Mother cites to a section 366.26 report, in which
the social worker stated the prospective adoptive parents intended to adopt the children,
and to the May reports from Dario’s and Daniel’s therapist. She then points to the CASA
report, which states that the foster mother told the CASA “they might not be able to
provide permanency after all, the foster mother stated her husband will be going through
a career change. The foster parents reported they were in the process of informing the
county social worker about the latest information. On 05-30-2012, CASA contacted the
social worker but she was out, so this information was given to the supervisor Kathleen
Trevino. The foster parents[’] major concern is in regards to Dario who has
demonstrated to be aggressive and upset due to not being able to go back home. The four
oldest children receive counseling, and are demonstrating better behavior at the home.”
She also cites to the social worker’s addendum report, which states that the social worker
“was informed that the prospective adoptive parents to the children would not be able to
continue with the adoption process, for personal issues aro[]se in which they will be
moving back east. The prospective adoptive parents stated that they are devastated on the
current situation, however would not be able to adopt the children.”



                                            27.
       In our view, this evidence shows that the first family backed out because they
were moving back east, not because of the children’s behaviors. In fact, they reported
that the children’s behaviors were improving and Julissa did not act out as reported to
them. While they were concerned about Dario, that they expressed this concern does not
mean that they backed out because of his behavior. In fact, they reported an ability to
discuss Dario’s problems with him, and after that discussion, he had an enjoyable
weekend with his siblings. That the children were labeled “difficult to place” does not
mean that the first couple was not nevertheless committed to adopting them.
       Mother would like us to adopt a rule that requires the children, who have been
found to be difficult to place, to have been living with the second prospective adoptive
couple for an extended period of time before an adoptability finding may be made. We
decline to do so. None of the cases she cites require such a finding. Moreover, as we
explained in In re G.M. (2010) 181 Cal.App.4th 552, 562, not all dependency cases fall
neatly into one of two scenarios: One, in which the availability of a prospective adoptive
parent is not a factor whatsoever in a social worker’s assessment that a child is like to be
adopted (generally adoptable); or two, where a child is likely to be adopted based solely
on the existence of a prospective adoptive parent (specifically adoptable). “These
scenarios represent opposite ends on the continuum of when a child is likely to be
adopted. However, many adoption assessments that recommend an adoptability finding
fall somewhere in the middle. They consist of a combination of factors warranting an
adoptability finding, including, as in this case, the availability of a prospective adoptive
parent. This is the reality we confront, notwithstanding appellate arguments that assume
a child is either generally adoptable without regard to a prospective adoptive parent or
specifically adoptable based solely on the availability of a prospective adoptive parent.”
(Id. at p. 562.)




                                             28.
       Here, as we have already explained, there was a combination of factors which
supported the juvenile court’s adoptability finding. For all the reasons stated above, we
conclude the juvenile court properly could find it likely the children would be adopted.
                                     DISPOSITION
       The order terminating parental rights is affirmed.




                                            29.
