Persons Coming Under the Juvenile Court Law. Kern Cnty. Dep't of Human Servs.
v.
D.Z. (In re A.Z.)

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICTSep 12, 2018
F077034 (Cal. Ct. App. Sep. 12, 2018)

F077034

09-12-2018

In re A.Z., et al., Persons Coming Under the Juvenile Court Law. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. D.Z., Defendant and Appellant.

Jessica M. Ronco, under appointment by the Court of Appeal, for Defendant and Appellant. Mark L. Nations, County Counsel, and Bryan C. Walters, Deputy County Counsel, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. JD133560-01, JD133561-01, JD133562-01)

OPINION

APPEAL from an order of the Superior Court of Kern County. Raymonda B. Marquez, Judge. Jessica M. Ronco, under appointment by the Court of Appeal, for Defendant and Appellant. Mark L. Nations, County Counsel, and Bryan C. Walters, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

In this juvenile dependency case, three siblings, two girls and a boy, were removed from the custody of their mother, Q.J. (mother) and father, D.Z. (father). After reunification efforts failed, the juvenile court found the siblings likely to be adopted and entered an order terminating parental rights. (Welf. & Inst. Code, § 366.26.) Father appeals, challenging the termination of parental rights as to the girls. Father asserts insufficient evidence supported the juvenile court's finding the girls were likely to be adopted. We agree, and since the girls are part of a sibling group with their brother, we reverse the juvenile court's order as to all of the siblings and remand for the juvenile court to hold a new hearing under section 366.26 to select and implement a permanent plan for all three children.

Undesignated statutory references are to the Welfare and Institutions Code.

FACTUAL AND PROCEDURAL BACKGROUND

Father and mother have three children: two daughters, A.Z. (born in 2011) and E.Z. (born in 2012), and a son, T.Z. (born in 2013). As the sole issue on appeal is whether there was substantial evidence of the girls' adoptability as of the date father's parental rights were terminated, we recite only briefly the facts regarding the children's removal from their parents and the unsuccessful reunification that ensued.

Mother has an older son who lived with maternal grandmother. He is not a subject of these proceedings. Mother is not a party to this appeal.

Father and mother had an extensive domestic violence history in Los Angeles County, where dependency jurisdiction was taken over the children in June 2013 based in part on the children's exposure to their parents' violent altercations. The children were removed from parental custody and reunification services were provided to the parents. In April 2014, the children were returned to mother with family maintenance services, while father's services were terminated. The case was later transferred to Kern County after mother moved there with the children. In April 2015, the Kern County juvenile court ordered mother to have sole legal and physical custody of the children and terminated jurisdiction.

Just four months later the Kern County Department of Human Services (Department) received a referral alleging mother had not fed the children in days, and the children were walking up and down the streets because the home had no lights, gas, or food. The home appeared abandoned with minimal furniture; trash and debris were strewn throughout the residence. There was an inadequate supply of children's clothing and food, and no working electricity or utilities. Mother had applied for a restraining order against father, alleging she was in fear for the lives of herself and her children, but continued to allow father into their home. The children were taken into protective custody and a dependency petition was filed alleging the children came within the provisions of section 300, subdivision (b) (failure to protect).

At the November 2015 jurisdiction hearing, the juvenile court found the petition's allegations true. The disposition hearing was continued numerous times and ultimately held in June 2016. The juvenile court declared the children dependents, removed them from parental custody, and ordered reunification services for mother. Father was denied reunification services under section 361.5, subdivision (b)(10), based on his failure to reunify with the children in the prior dependency case. Both parents were given two-hour supervised visits twice a week.

The juvenile court terminated mother's reunification services at the November 2016 combined six- and 12-month review hearing, and set a section 366.26 hearing for March 2017.

In the Department's initial report prepared for the section 366.26 hearing, the social worker recommended termination of parental rights and adoption as the children's permanent plan. An adoption assessment was completed in December 2016. The children had been in numerous placements since they were taken into protective custody in August 2015. Five-year-old A. had been in seven placements, while four-year-old E. and three-year-old T. had been in nine.

The children were first placed together at Jamison Children's Center, but were quickly separated, with the girls moved to one emergency foster home and T. to another. Within a month, the children were placed in the same foster home, where they remained for seven months until their removal because the foster parent's adult daughter became frustrated with A. and hit her on the mouth. The children were moved to separate foster homes, with A. in one home and E. and T. in another. A's placement ended after a month due to her negative behaviors, while E. and T.'s first placement ended after three days at the foster mother's request and their second ended after a month due to their negative behaviors. The children were then moved to the same home. That placement lasted 28 days and ended due to the girls' negative behaviors. A. and T. were placed together in one home, and E. in another. E.'s placement ended after 17 days due to E.'s negative behavior, while her next placement lasted nearly three months. In July 2016, A. and T. were placed with the prospective adoptive mother (PAM), after allegations of physical abuse were made against their prior foster parent; E. was moved to the home the following month.

The social worker reported that E. was very aggressive, and hit and threw things at her foster parents and siblings. A foster mother reported that E. hit, bit, and pinched her, E.'s siblings, and the foster siblings.

A later report revealed that, due to the children's negative behaviors, the Department waited to place E. in the home to allow time for A. and T. to adjust to PAM and each other.

The children had no medical problems or developmental concerns. The girls were receiving mental health services. They attended biweekly sessions for behavior modification, and were receiving wraparound services that included biweekly child and family team (CFT) meetings to address their emotional needs. During CFT meetings, the team shared goals and suggestions to help improve the girls' behavior to maintain and stabilize their placement. A. was making satisfactory progress in kindergarten.

In February 2017, the adoption social worker spoke with the girls regarding a permanent plan. The social worker individually asked the girls where they wanted to stay if they could live anywhere. A. responded that if her parents did not get her "out [of] the system," she would continue to live with PAM. E. only smiled. The girls felt safe in PAM's care. The social worker opined the children were very happy with PAM and thriving with her. While the children enjoyed visiting their parents, father and mother had not maintained consistent contact with them. The adoption social worker opined the benefits of adoption outweighed the benefits of maintaining parental rights, as the children looked to PAM as their primary parental figure, they felt safe in her home, and PAM wanted to adopt the children and keep them together.

Subsequent references to dates are to dates in 2017 unless otherwise stated.

A supplemental report detailed the social worker's interview. The social worker noted the children did not display any indication of abuse or neglect. When the social worker asked A. if she felt safe in the home, she said she did. A. said that she got "time out" when she got into trouble. When asked where she wanted to live if she could not return to her parents, A. said with PAM. PAM told the social worker that the children were doing better, but she still struggled with the girls' temper tantrums, which sometimes resulted in PAM being scratched or hit. PAM, who wanted to adopt the children, wanted to see the children stabilize.

The adoption social worker recommended a plan of adoption. The children were happy and loving. While it appeared that T. was generally adoptable, as he did not have any physical or mental problems, the social worker did not consider the girls generally adoptable, as they were affected more by the emotional abuse and trauma caused by their parents' ongoing domestic violence and were receiving wraparound services. All three children, however, were placed with a caregiver who was willing to provide them with a permanent home through adoption. While the children knew and acknowledged their parents, PAM would provide them with the love and support they needed to flourish as adults, and would keep the siblings together.

PAM was a single, 34-year-old woman with no criminal or child protective services history. PAM had a bachelor's degree. She had been laid off from her job, which allowed her to assist the children with meeting their ongoing emotional and physical needs on a full-time basis, and was appealing to receive unemployment benefits. PAM said she loved the children very much, she wanted to keep them together, and she was committed to adopting them. The adoption social worker had observed PAM with the children and saw that she was very loving, patient and attentive toward them. PAM had demonstrated she was capable of meeting the children's needs. She provided age-appropriate supervision, promoted age-appropriate interaction and engagement, exposed the children to social activities, ensured their physical and emotional needs were met, and provided a safe and suitable home. PAM understood the legal and financial responsibilities of adoption, and was willing and able to assume full responsibility for the children.

The section 366.26 hearing was continued several times for various reasons, and ultimately held on January 29, 2018. Mother and father each filed section 388 petitions. Father sought a grant of reunification services, while mother sought to either have the children returned to her with family maintenance services or to be granted additional reunification services. The juvenile court granted a hearing on the petitions, to be held with the section 366.26 hearing.

During a March 29, 2017 visit between father and the children, A. revealed to father that PAM "spank[ed] her on the butt" when she did not listen. The social worker spoke with A., who said she could not remember when PAM spanked her. A. said PAM only spanked her and her siblings with her hand or a belt on their butts when they were bad. E. also said that PAM spanked them.

On March 30, the emergency response social worker received a referral alleging general neglect of the children. The allegations against PAM were substantiated. A social worker interviewed PAM, who admitted she had used a belt on the children to stop their hitting and destruction. PAM understood it was wrong and began to cry. PAM was not sure when she last used the belt, as it had been awhile, but she used it no more than five times. PAM asked if the children would be removed. The social worker was unsure of the outcome or what PAM's agency would do. The social worker made sure PAM understood she was not to use a belt on the children.

Originally, the emergency response social worker reported that a referral alleging the children were victims of physical abuse was received on March 14 and stated the allegations were unfounded, as the children denied any physical abuse. In a later report, however, a social worker explained the emergency response social worker inadvertently reported the incorrect date and conclusion because she confused this referral with the referral in another case. The referral actually was received on March 30 and was for general neglect, not physical abuse.

Social workers contacted PAM and the children on April 19. A social worker spoke with A. and E. independently. They both appeared clean, physically healthy, and appropriately dressed, with no visible marks and bruising. The girls confirmed they had not received any more spankings. The social workers spoke with PAM, who explained the history of the placement and the children's behaviors. PAM said the children were doing much better. The social worker made sure PAM understood it was not acceptable to spank the children. PAM, who was teary eyed during the conversation, said she understood. PAM's foster family agency advised Community Care Licensing (CCL) about the allegations. As of April 28, CCL had not made a decision as to PAM's certification.

In an April 26 supplemental report, the social worker reported that PAM had shown outstanding commitment to the children's behavioral needs. With the assistance of the "WRAP team," PAM had worked with the children daily on their emotional, behavioral, and academic needs. The children's difficult behaviors had decreased significantly and their academic improvements were astounding. PAM had an approved home study and continued to be committed to the plan of adoption. The social worker admitted that if PAM was not able to adopt the children, it would be difficult to locate another adoptive home due to the children's behaviors and because they were a sibling set.

The April 26 supplemental report documented the March 29 visit where A. told father PAM had spanked her, but did not contain any discussion of how that allegation affected PAM's ability to adopt the children.

In supplemental reports dated April 28 and May 2, the social worker stated that while it was concerning that PAM admitted to using corporal punishment and the referral for general neglect would be substantiated, the Department felt the children would be safe in the home with a corrective action plan in place, as PAM was honest and remorseful for her actions. The Department recognized the children had difficult behaviors. PAM had been counseled on how to appropriately cope with the children's assaultive behaviors. The children continued to report feeling safe in PAM's care and were making major gains in their behavior and academics. The Department decided to keep the children in PAM's care, with a corrective action plan in place, and continue with the plan of adoption, as it would be difficult to find another adoptive home for A. and E. due to their negative behaviors, PAM remained committed to adoption, PAM would provide the children with the love and support they needed to flourish, and the Department wished to keep the children together.

The May 2 social worker's report originally stated it was "concerning that the referral of physical abuse" would be substantiated, as PAM admitted to using corporal punishment. County counsel, however, asked the juvenile court to amend the statement at the August 21 hearing to read that the referral was for "general neglect." County counsel understood the matter had been resolved and there was no reason to believe PAM could not adopt the children.

In August, the Department received another referral of general neglect regarding PAM. The emergency response social worker investigated the referral and determined it was unfounded. The social worker spoke with the children. The girls said they were punished through timeouts. A. reported PAM hit her and E. with a belt a long time ago because they were throwing a fit. A., who was in first grade, did not remember when this happened, but said she was not in school yet. A. said it only happened once. A. did not know how many times PAM hit E. A. said that PAM never hit T., as he was too young. A. liked living with PAM and felt safe with her. When asked where she would live if she could live anywhere in the world, A. responded that she wanted to live with "my mommy, daddy, and [PAM][,]" but "[i]t would be good" if she continued to live with PAM. T. told the social worker he felt safe in PAM's house. T. confirmed he was punished through timeouts. T. said he loved PAM, and she was nice to him. T. wanted to live with PAM.

PAM told the social worker she learned from her mistake and she had not hit or spanked the children since November 2016. PAM was applying the behavioral modification techniques the girls' behavior therapist had given to her. E. was receiving weekly counseling and therapeutic behavioral services (TBS), while A. was receiving counseling every other week. PAM believed she spanked A. once and E. twice. PAM's voice began to crack; she explained she was very emotional about the situation because she loved the children very much and would never want to jeopardize their placement with her or her adopting them. PAM said she had an upcoming hearing with CCL regarding the substantiated March referral and her certification as a foster parent. PAM had learned a lot through classes and supportive services, but noted the girls' behaviors were challenging. PAM felt confident in her ability to effectively parent the children and keep them safe under the guidelines and restrictions she had as a certified foster parent, and repeatedly stated her commitment to adopting the children.

The emergency social worker inspected PAM's home and observed the children with PAM. The children freely approached PAM to ask questions and express their needs. PAM responded to the children in a calm and even tone. The children all sought physical proximity, verbal recognition, and eye contact with PAM, and they appeared comfortable and relaxed in the home. The social worker told PAM she did not have any concerns about the home or her care of the children, and she would be determining the referral was unfounded. PAM again expressed her commitment to the children and her hope that the adoption process could proceed.

On November 9, CCL vacated the scheduled hearing, as PAM agreed to be on probation for three years. PAM was not delicensed, but she would be closely monitored and would have to adhere to strict guidelines. According to the Department, PAM would be able to continue with the adoption process since she was not delicensed. A mental health treatment plan was developed for T. in November. He was going to see a therapist every two weeks and attend a weekly "rehab group" to learn skills to address his regressed toileting behaviors and tantrums. TBS services and monthly family therapy also were recommended. In October, the juvenile court granted the Department's request for E. to undergo an assessment for mental health treatment and services for E.'s aggression, fighting and hitting her siblings. The services were requested to help support and maintain E.'s placement. In November, it was decided to increase E.'s TBS services to three contacts per week at school.

The social worker stated in a January 12, 2018 report that PAM remained fully committed to adopting the children. The Department continued to feel the children would remain safe with PAM, as PAM was honest and remorseful, she had been counseled on how to appropriately cope with the children's assaultive behaviors, and the children were receiving counseling to address their behavioral difficulties. The Department continued to acknowledge that if PAM was not able to adopt the children, it would be difficult to find another adoptive home for all three children due to their negative behaviors. The Department again recommended the juvenile court find there was clear and convincing evidence the children were likely to be adopted, terminate parental rights, and refer the children to the county adoption agency for adoptive placement of the children.

At the January 29, 2018 hearing, the juvenile court first addressed the parents' section 388 petitions. Mother was not present at the hearing and her attorney submitted on the reports and recommendations. Father testified on his own behalf. He was living alone in a one-bedroom apartment in Las Vegas. He said he was self-employed and had provisions to take care of the children. He claimed he had completed "everything that you guys have asked me to do." Father believed the children knew he was a good father and they were comfortable with him; the children looked to him for love and affection during their visits and they would often smile and laugh together. Father thought the children were receiving good care with PAM; he said she was the best foster parent he had seen since the children had been in foster care. Father did not remember hearing that PAM spanked the children.

Father's attorney argued father's circumstances had changed and it would be in the children's best interest to give father reunification services. Father's attorney asserted father was not concerned about the care the children were receiving or the allegation of corporal punishment, as father believed age-appropriate spanking could be an appropriate teaching tool. The juvenile court denied mother's and father's section 388 petitions, as they had not met their burdens of showing changed circumstances or best interest.

As for the section 366.26 hearing, the juvenile court found the children adoptable, as PAM, with whom the children had been placed since July and August 2016, was committed to adopting them. The court further explained: "There was at a point a referral as to the caretaker relative to the abuse of spanking of the girls, that she openly acknowledged with the Department[,] that called into question whether or not the caretaker would be available to proceed as an adopt[ive] parent. That referral has been deemed unfounded. There has been remedial counseling done by the Department with the caretaker, and the caretaker's license has not been affected, and she is able to proceed as a caretaker for the children." The court rejected the parents' argument that the beneficial relationship exception to termination of parental rights applied, found there was clear and convincing evidence the children were likely to be adopted, terminated parental rights, and referred the children to the county adoption agency for adoptive placement.

DISCUSSION

As already noted, father's appeal challenges the termination of his parental rights as to the girls only, on the ground the juvenile court's finding of adoptability is not supported by sufficient evidence. Father asserts that because the girls were not generally adoptable, as shown by their severe behavior problems, adoptability was based on a prospective adoptive family's willingness to adopt. He argues there is insufficient evidence the girls would be adopted by PAM, or any other family, within a reasonable time. Father claims PAM may not be approved to adopt the children if she uses corporal punishment again and it was unlikely another family would step in to adopt the girls if the current placement fell through.

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 father 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 (K.B.).) 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.) Since it is the Department's burden to establish a dependent child's adoptability, sufficiency of the evidence to support an adoptability finding may be raised for the first time on appeal. (A.A., supra, 167 Cal.App.4th at p. 1316.)

"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.)

In assessing adoptability, some courts distinguish between the "generally adoptable" and "specifically adoptable" child. A child is "generally adoptable" if the child's traits, e.g., age, physical condition, mental state and other relevant factors do not make it difficult to find an adoptive parent. A child is "specifically adoptable" if the child is adoptable only because of a specific caregiver's willingness to adopt. (In re R.C. (2008) 169 Cal.App.4th 486, 492-494.) " 'When a child is deemed adoptable only because a particular caregiver is willing to adopt, the analysis shifts from evaluating the characteristics of the child to 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.' " (Id. at p. 494.) In our view, general versus specific adoptability is unnecessary as those terms are not mentioned in section 366.26 and the juvenile court is not required to assess adoptability in those terms. Instead, section 366.26 merely requires the juvenile court to determine if the child is likely to be adopted within a reasonable time.

Here, the girls were described as happy and loving, and they did not have any medical problems or developmental concerns. However, they had behavioral problems that interfered with many of their placements and which, in the eyes of the Department, made them difficult to place. While their behavior had improved while in PAM's care and they were no longer receiving wraparound services, they continued to require counseling, and E. was receiving TBS. The Department did not state that there were approved families willing to adopt the girls. Instead, the Department continually stated it would be difficult to find an adoptive home for the children due to their negative behaviors and because they were a sibling set.

Although PAM wanted to adopt the children and was committed to doing so, her desire was insufficient to support a finding it was likely the girls would be adopted. PAM admitted to spanking the girls with a belt, which resulted in the substantiation of a referral for general neglect. There was concern during the course of the proceedings that PAM could lose her license as a foster parent, which would disqualify her from being able to adopt the children. PAM, however did not lose her license; instead she agreed to be placed on three years' probation, which would require her to be "closely monitored" and "to adhere to strict guidelines." The Department does not explain, either below or on appeal, how the adoption could proceed while PAM was on probation, since a probation violation presumably could result in the loss of PAM's license, thereby disqualifying PAM from adopting the children. Neither does the Department explain what close monitoring entails or the strict guidelines to which PAM must adhere. Without such evidence, it is impossible to tell whether PAM ultimately will be approved to adopt the children.

The case father relies on, In re Jerome D. (2000) 84 Cal.App.4th 1200 (Jerome D.), is instructive. There, the appellate court reversed an adoptability finding that it determined was based on the willingness of a child's stepfather, whose home study had not been completed, to adopt him. (Id. at p. 1205.) The Jerome D. court held such evidence did not suffice to support an adoptability finding because the adoption assessment failed to address the stepfather's substantial criminal and Child Protective Services history, as required by section 366.22, subdivision (c)(1)(D) (formerly § 366.22, subd. (b)(4)). (Jerome D., supra, 85 Cal.App.4th at pp. 1205-1206.) The Jerome D. court reversed because there were serious impediments to the stepfather ever being approved to adopt the child. (K.B., supra, 173 Cal.App.4th at p. 1293.)

Here, there is a question as to whether PAM will be able to adopt, as the existence of the probationary period could present an impediment to adoption. Although PAM had an approved home study, unlike the stepfather in Jerome D., the home study appears to have been completed prior to the substantiated referral for general neglect and CCL's decision to place PAM on probation with close monitoring and strict guidelines. While the Department stated PAM would be able to continue the adoption process since she was not delicensed, the Department failed to consider the impact of her probationary status on her ability to adopt. Without further information, there is insufficient evidence the girls were likely to be adopted within a reasonable time.

This is different than a legal impediment to adoption, which may be an appropriate inquiry at a section 366.26 hearing when a child's likelihood of adoption is based solely on a prospective adoptive parent's willingness to adopt, as a legal impediment would preclude the very basis of the social worker's opinion the child is likely to be adopted. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1650.) Legal, i.e., statutory, impediments to adoption are contained in Family Code section 8601 et seq. (Fam. Code, § 8601 [a prospective adoptive parent must be at least 10 years older than the child, unless the adoption is by a stepparent, sister, brother, aunt, uncle, or first cousin and the court is satisfied that adoption by the parent and, if married, by the parent's spouse, is in the parties' best interests and the public interest regardless of the ages of the child and the prospective adoptive parent], Fam. Code, § 8602 [consent of a child over the age of 12 is necessary to the child's adoption], Fam. Code, § 8603 [a married person, not lawfully separated, may not adopt a child without the consent of the spouse, provided the spouse is capable of giving consent].) Father does not contend there is a legal impediment to adoption. For this reason, the Departments' appellate arguments that father has forfeited any claim of legal impediment, invited any error on that issue, and that father failed to show a legal impediment are irrelevant. --------

The Department's reliance on K.B., supra, 173 Cal.App.4th 1275 is misplaced. There, the appellate court found there was sufficient evidence to support the conclusion that children with developmental delays and educational problems would be adopted within a reasonable time where the prospective adoptive parents wished to adopt the children and remained committed to them, and there was no evidence the adoption would not take place as soon as the legal process permitted. (K.B., supra, 173 Cal.App.4th at p. 1293.) In so holding, the court cited the proposition that it was " 'only common sense that when there is a prospective adoptive home in which the child is already living, and the only indications are that, if matters continue, the child will be adopted into that home, adoptability is established. In such a case, the literal language of the statute is satisfied, because "it is likely" that that particular child will be adopted.' " (Ibid.) In contrast to K.B., where there was no evidence the adoption would not take place, here there is evidence that calls into question whether the adoption will take place should PAM fail in her probationary period.

In sum, we conclude there is insufficient evidence to support the juvenile court's adoptability finding as to the girls. It is clear from the record that the Department, in selecting a permanent plan for the children, intended to place them in the same home with PAM. This is consistent with the Legislature's intent to have siblings remain together. (§ 16002, subd. (a).) Since the juvenile court did not consider the impact of a finding that two members of the sibling group were not adoptable on the selection of a permanent plan for all three children, the juvenile court must be given the opportunity to reconsider its termination order as to all of the children.

Accordingly, we reverse the order terminating parental rights as to all three children, and remand the case to the juvenile court to hold a new section 366.26 hearing to select and implement a permanent plan for the children in light of their current circumstances. We do not mean to suggest that PAM may not be reconsidered for adoptive placement of the children at the new hearing, but conclude only that, on this record, we cannot find the girls are likely to be adopted absent evidence regarding the impact of the probationary status of PAM's foster care license on her ability to adopt. Although only father appealed, the parental rights termination order must be reversed as to both father and mother. (In re Mary G. (2007) 151 Cal.App.4th 184, 208, citing Cal. Rules of Court, rule 5.725.)

DISPOSITION

The order terminating parental rights as to A.Z., E.Z. and T.Z. is reversed as to both parents. The juvenile court is directed to hold a new hearing under Welfare and Institutions Code section 366.26 to select and implement a permanent plan for the children.

/s/_________


SNAUFFER, J. WE CONCUR: /s/_________
POOCHIGIAN, Acting P.J. /s/_________
MEEHAN, J.