The juvenile court selected a permanent plan of legal guardianship based on its finding that the child was not likely to be adopted.

A few days after birth, the child was placed in a foster home where his sister had been living for nearly two years. The Los Angeles Department of Children and Family Services (the department) alleged endangerment of the child's physical and emotional safety due to the parent's previous failure to reunify with the child's sibling, who had been declared a dependent under Welfare and Institutions Code section 300(b). The juvenile court sustained the petition under section 300(j) [abuse of a sibling]. Several months later, the juvenile court terminated parental rights to the sibling.

Over the next 18 months, the mother received reunification services. The father's parental rights were terminated. At the 18-month review hearing, the mother acknowledged that she was not in a position to have the child returned to her care and agreed to have the matter set for a permanency plan hearing. The juvenile court found that the parents had failed to comply with the case plan, terminated family reunification services, and set the matter for a section 366.26 hearing.

At the initial section 366.26 hearing, the department identified adoption as the preferred permanent plan for the child. Although the foster parents, who were in their seventies, did not wish to adopt him, the child's paternal grandmother expressed an interest in adopting both him and his sister. The matter was continued several times to find other prospective adoptive parents or legal guardians. The department hoped to find an adoptive home where the siblings could be placed together, believing that it would detrimental to the siblings' emotional well-being to be separated.

By the time of the contested hearing, the foster parents had a change of heart and announced that they were ready and willing to adopt both children. The social worker testified that the child was adoptable, but would only support the foster parents as a suitable adoptive family. The child's attorney, joined by counsel for both parents, asked the court to find that the child was not likely to be adopted due to his bond with his foster parents and their advanced age, and asked the court to order a permanent plan of legal guardianship. Counsel for the department argued that the evidence supported a finding that the child was likely to be adopted and that the age of the prospective adoptive parents was irrelevant. Pursuant to section 366.26(c)(1)(D) [termination of parental rights would be detrimental because the child is living with a relative who is unwilling or unable to adopt because of exceptional circumstances], the juvenile court concluded that the child was not likely to be adopted. Although it noted that section 366.26 (c)(1)(D) did not "technically apply," it concluded that the advanced age of the foster parents affected the child's adoptability. Therefore, the juvenile court held that it was in the child's best interest to remain with the foster parents under a plan of legal guardianship. On appeal, the department argued that the evidence was insufficient to support a finding that the child was not adoptable.

The Court of Appeal concluded that there was not substantial evidence supporting the juvenile court's conclusion that the child was not adoptable. It noted that adoption is the permanent plan preferred by the Legislature. It further noted that guardianship is not considered by the Legislature to be in the best interests of children who cannot be returned to their parents. In weighing the evidence, the appellate court found that it was undisputed that the child had no medical problems, no physical limitations, and no emotional or behavioral problems. In regard to the juvenile court's explanation that the child was unadoptable due to the age of the foster parents, the appellate court emphasized that the inquiry about whether a child is likely to be adopted does not focus on the adoptive parents, but on the child. In resolving whether there is clear and convincing evidence that a child is adoptable, the court must focus on whether the child's age, physical condition, and emotional state make it difficult to find anyone willing to adopt them. Moreover, 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. The appellate court noted that the evidence showed a healthy, developmentally normal two-year-old. It further noted that several prospective adoptive parents had expressed an interest in adopting both siblings. Therefore, the appellate court was unpersuaded that guardianship, rather than adoption, was in the child's best interest.