Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JD223073
DAVIS, Acting P.J.
Paula R. (appellant), the mother of B.R. (the minor), appeals from the juvenile court’s order terminating appellant’s parental rights. (Welf. & Inst. Code, §§ 366.26, 395.) Appellant makes several claims of alleged prejudicial error in the proceedings. For the reasons that follow, we affirm the order.
Hereafter, undesignated section references are to the Welfare and Institutions Code.
Facts and Procedural History
In November 2005, the juvenile court assumed jurisdiction over the minor based on a finding that appellant was unable to provide regular care for the minor as a result of appellant’s mental illness. According to the court, the minor also was at a substantial risk of suffering serious physical harm because appellant’s home posed various dangers to the minor. The court ordered the minor removed from appellant’s custody.
On August 15, 2006, this court affirmed the juvenile court’s dispositional order in In re B.R. (C051395 [nonpub. opn.]). We take judicial notice of that opinion. (Evid. Code, §§ 452, subd. (d), 459.)
On August 3, 2006, the juvenile court found appellant had received reasonable reunification services and terminated those services. Thereafter, appellant filed a petition for extraordinary writ, which this court denied summarily on September 27, 2006. We take judicial notice of the record in that matter (C053418). (Evid. Code, §§ 452, subd. (d), 459.)
On August 30, 2006, appellant filed a petition for modification pursuant to section 388, requesting the juvenile court to order preparation of an attachment assessment between appellant and the minor. The juvenile court denied the petition. Appellant appealed from the order denying her petition, and this court affirmed the juvenile court’s order in an opinion filed April 12, 2007 (C053643 [nonpub. opn.]). We take judicial notice of that opinion as well. (Evid. Code, §§ 452, subd. (d), 459.)
In its November 2006 report prepared for the section 366.26 hearing, the Sacramento County Department of Health and Human Services (DHHS) noted a history of problems occurring during visits between appellant and the minor. For example, appellant arrived late for some visits, and sometimes brought inappropriate or unclean items to visits. Moreover, personnel supervising the visits noticed the minor appeared reluctant to approach appellant, and did not interact readily with appellant or show affection to appellant on her own.
The minor had been in the home of her caregiver since October 2005, and that caregiver was committed to adopting the minor. The caregiver reported no concerns regarding emotional or behavioral issues pertaining to the minor. However, according to the DHHS report, the minor’s language development was “borderline,” her motor development was “low average,” and her cognitive development was “average.”
The report noted the minor had developed significant adult relationships in her placement. However, the report noted that speech therapy was indicated for the minor due to her “speech delay and swallowing problems.” “[A]typical social interaction, feeding problems probably related to [the minor’s] low tone, and possible oral/motor problems” also were noted. The minor received a referral to a regional center for an evaluation.
DHHS opined it was likely the minor would be adopted. It proffered that opinion despite the failure by the minor’s caregiver to complete the required adoption application. DHHS suggested it believed the minor would be adopted by another party if necessary.
An addendum report informed the juvenile court of an incident occurring during a November 22, 2006, visit between appellant and the minor. According to the report, appellant engaged in an altercation with personnel supervising the visit, resulting in termination of the visit and restraint of appellant by law enforcement. During the incident, appellant allegedly grabbed the minor and attempted to pull off the minor’s clothes. Thereafter, DHHS requested an end to appellant’s visitation, which was granted by the juvenile court.
At the December 20, 2006, section 366.26 hearing, appellant testified she believed her visits with the minor went well. Appellant opposed the recommendation by DHHS that her parental rights be terminated. Adoptions social worker Jocelyn Luistro acknowledged that visitation logs indicated the visits had gone well. Notes reflected the minor enjoyed the visits, and that appellant and the minor had a “good” relationship. On the other hand, there were other indications that appellant continued to have problems during her visits with the minor, as appellant had difficulties in giving her full attention to the minor, understanding the minor’s needs, and avoiding the sharing of personal information with the minor.
At the conclusion of the section 366.26 hearing, counsel for appellant argued appellant had visited regularly with the minor, and that the minor would benefit from a continued relationship with appellant. According to appellant’s counsel, “it would be in the minor’s best interests to not terminate [appellant’s] parental rights and implement a more permanent plan of either guardianship and/or foster care.” Finally, although acknowledging that the minor was “adoptable,” counsel asked the juvenile court to instead order a continuation of the relationship existing between the minor and appellant.
The juvenile court found it likely the minor would be adopted and terminated appellant’s parental rights. The court stated in part as follows: “The issue raised by [appellant’s] counsel is that termination of parental rights would be detrimental and relies on the exception based on [appellant’s] regular and consistent visitation or contact with the [minor]. [¶] The Court does find at this time that while [appellant] has maintained regular and consistent visitation with [the minor], at times during the last few months her contact at said visitation, however, has been highly irregular. [¶] Next, the Court must address whether or not the [minor] would benefit from continuing the relationship with [appellant], and the Court cannot find that such is the case based on the fact of the evidence presented. Nor does the Court find that [the] benefit of continuing the relationship with [appellant] would outweigh the [minor’s] needs for an entitlement to legal permanence.”
Discussion
A. Reasonableness of Reunification Services
Appellant contends the juvenile court abused its discretion in terminating her reunification services because DHHS had failed to provide reasonable services to her. According to appellant, DHHS failed to refer her to a therapist specializing in obsessive compulsive disorder, failed to provide her with additional parenting classes, failed to provide her with housing assistance, and failed to refer her for a medication evaluation. Appellant also argues that both the court and DHHS failed to consider her special needs. Accordingly, appellant claims she should be offered an additional six months of services, tailored specifically to her needs.
Appellant’s claim is cognizable in this appeal because she challenged the order terminating her reunification services in her petition for extraordinary writ. (§ 366.26, subd. (l)(1) (A)-(C); Joyce G. v. Superior Court (1995) 38 Cal.App.4th 1501, 1513-1514.)
“The strong preference of the law in dependency matters, expressed both judicially and legislatively, is reuniting children with their natural families whenever possible.” (In re Joanna Y. (1992) 8 Cal.App.4th 433, 438.) “To effectuate this paramount goal of reunification, the law requires that reasonable reunification services, tailored to the parents’ individual needs be offered . . . . [Citations.] The agency supervising the children must identify the problems leading to the loss of custody, offer services designed to remedy these problems, and maintain reasonable contact with the parents to assist in areas where compliance proves difficult, such as transportation. [Citation.]” (Ibid.) A “reunification service plan should be well defined, specific, and tailored to provide services that will lead to the resumption of a family relationship.” (In re Mario C. (1990) 226 Cal.App.3d 599, 603-604.)
We must determine whether there is substantial evidence supporting the juvenile court’s finding that reasonable services were provided. (In re Joanna Y., supra, 8 Cal.App.4th at p. 439.)
In this case, appellant’s reunification plan required her to take parenting classes and receive counseling services. Appellant received a psychological evaluation, which concluded that appellant suffered from compulsive hoarding, an obsessive compulsive disorder. The evaluating psychologist also concluded that appellant had a dependent personality disorder. However, according to the examiner, appellant did not have a developmental delay or learning disability, nor was she clinically depressed.
Compulsive hoarding is not listed in clinical psychology literature as a separate diagnostic category or specific “‘subtype’” of obsessive compulsive disorder.
The psychological evaluation noted that, when the psychologist asked appellant if the latter would agree to treatment by a specialist and described the details of a treatment program, appellant indicated she did not want such assistance. The psychologist recommended a medication evaluation, but noted appellant’s concern about taking medication because she was breastfeeding the minor. As for specialized treatment, the psychologist suggested a referral to a specialist, but also opined that “it will first be important for [appellant] to recognize the need to participate in such a program.” Finally, the psychologist named an anxiety treatment center as a resource for appellant. Unfortunately, DHHS learned that that facility had closed.
Medication was not a component of appellant’s reunification plan. If appellant wanted medication, she should have requested it at the disposition hearing. (Cf. John F. v. Superior Court (1996) 43 Cal.App.4th 400, 404-405.)
Appellant participated in all 13 scheduled counseling sessions with a therapist. However, according to the therapist, appellant appeared unable to understand treatment goals, and minimized reports pertaining to the condition of her home. The therapist recommended another evaluation “for continuance of services.”
Clinical psychologist Jayson Wilkenfield evaluated appellant in May 2006. In his report, Wilkenfield diagnosed appellant as suffering from adjustment and schizoid personality disorders. However, Wilkenfield also opined that it was not “altogether clear” that appellant was a “‘compulsive hoarder.’” The psychologist recommended referral to a therapist.
Appellant completed her parenting education classes and achieved a high score. Moreover, appellant’s counseling sessions included parenting skills as one component. Unfortunately, as we have seen, she was unable to benefit from that therapy. DHHS also met with appellant to discuss various matters, including parenting issues, but the social worker reported that appellant did not understand basic instructions. Finally, DHHS referred appellant to other service programs, which led to further referrals, but appellant admitted she did not pursue those referrals.
The social worker must make “a good faith effort” to provide reasonable services responding to the unique needs of each family. (In re Kristin W. (1990) 222 Cal.App.3d 234, 254; In re Dino E. (1992) 6 Cal.App.4th 1768, 1777.) The question is not whether more or better services could have been provided, but “whether the services were reasonable under the circumstances.” (In re Misako R. (1991) 2 Cal.App.4th 538, 547.) Moreover, an unwilling parent cannot be forced to participate in services. (In re Joanna Y., supra, 8 Cal.App.4th at p. 442.)
The record reflects that appellant received a panoply of services designed to address the grounds underlying the dependency proceeding. Unfortunately, in most respects appellant failed to benefit from the services she received, and was unwilling to participate in other services. Appellant’s therapist opined that appellant attempted to blame others “to take the pressure off of herself.”
DHHS concluded that appellant was unable to recognize potential dangers to the minor. The record reflects a consensus did not exist among examiners whether appellant had a hoarding disorder; however, in any event, she had received therapy designed in part to address her difficulties, and at least at one point in time expressed an unwillingness to receive more specialized assistance. On this record, it is difficult to discern how an additional period of services would be beneficial to appellant.
Appellant’s reliance on In re Victoria M. (1989) 207 Cal.App.3d 1317 is misplaced. That case involved a parent who was developmentally disabled and eligible for services from a regional center. (Id. at pp. 1320, 1324.) The mother’s service plan was not tailored to her limitations. (Id. at pp. 1327-1328.) Accordingly, the Court of Appeal concluded that she had not received reasonable reunification services. (Id. at p. 1333.)
Here, appellant did not suffer from developmental delays. Moreover, as we have seen, no consensus existed among experts as to whether appellant had a hoarding disorder. The record reflects DHHS made efforts to provide appellant with suitable services, but that appellant either refused them or failed to benefit from therapy.
One problematical aspect of appellant’s situation was her residence in a two-bedroom apartment with the minor’s maternal grandmother and maternal uncle, both of whom reportedly were developmentally delayed. One psychologist who examined appellant noted this circumstance, stating that appellant lived with “two other people who are, at the very least, wil[l]ing to tolerate the excessive clutter and who, at worst, might be unwilling to remove it themselves. If [appellant] becomes willing to participate in treatment but her family members are unwilling to facilitate the removal of the clutter, then alternative living arrangements must be considered.” When a social worker previously had suggested a large townhouse for appellant and for the minor, appellant indicated she was “unwilling and unable to consider this option because [the maternal grandmother] cannot walk upstairs.” Finally, psychologist Wilkenfield suggested appellant move, but also noted that appellant had “adamantly resisted” such a suggestion.
In this case, the record establishes that appellant’s services were reasonable, but that she failed to make progress in ameliorating the conditions that led to the filing of the dependency petition. Substantial evidence supports the juvenile court’s order terminating appellant’s reunification services. There was no abuse of discretion.
B. Likelihood of Adoptability Finding
Relying primarily on evidence of the minor’s developmental difficulties, appellant contends the juvenile court’s order terminating her parental rights must be reversed because the finding by the court that it was likely the minor would be adopted was not supported by substantial evidence.
When the sufficiency of the evidence to support a finding is challenged on appeal, even where the standard of proof in the juvenile court is clear and convincing evidence, we must determine if there is any substantial evidence--that is, evidence that is reasonable, credible, and of solid value--to support the conclusion of the trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) In making this determination, we resolve all conflicts in favor of the prevailing party. Issues of fact and credibility are questions for the trier of fact, and we do not reweigh the evidence when assessing its sufficiency. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; In re Jason L., supra, at p. 1214; In re Steve W. (1990) 217 Cal.App.3d 10, 16.)
The goal of dependency proceedings is protection of the child. (In re Kerry O. (1989) 210 Cal.App.3d 326, 333.) An important aspect of this goal “is to provide children with stable, permanent homes.” (In re Heather P. (1989) 209 Cal.App.3d 886, 890.) A preference for permanent placement, as afforded by adoption, is a vital component of the statutory scheme. (In re Brian R. (1991) 2 Cal.App.4th 904, 923-924; cf. In re Mark V. (1986) 177 Cal.App.3d 754, 760-762.)
The issue of adoptability “focuses on the minor, e.g., whether the minor’s age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor.” (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) It is not necessary that the minor already be in a potential adoptive home, or that there even be a prospective adoptive parent. (Ibid.)
The difficulty with the claim of appellant in this case is that the record does not reveal that counsel for appellant, or appellant herself, ever tendered any issue pertaining to the likely adoptability of the minor. The record reflects appellant had ample opportunities to bring that issue to the attention of the juvenile court, if she had wished to do so. Instead, appellant objected only to termination of parental rights based on her relationship with the minor.
Although ordinarily waiver constitutes the “intentional relinquishment of a known right,” traditionally waiver also was found from conduct that reasonably could be construed as the equivalent of an abandonment of that right. (Cf. Rubin v. Los Angeles Fed. Sav. & Loan Assn. (1984) 159 Cal.App.3d 292, 298.) Alternatively, “[u]nder the doctrine of invited error, where a party, by his conduct, induces the commission of an error, he is estopped from asserting it as grounds for reversal.” (Redevelopment Agency v. City of Berkeley (1978) 80 Cal.App.3d 158, 166.)
As has been noted in dependency decisions, if waiver of invited error were not found, a party could “trifle with the courts by standing silently by, thus permitting the proceedings to reach a conclusion in which the party could acquiesce if favorable and avoid if unfavorable.” (In re Urayna L. (1999) 75 Cal.App.4th 883, 886.)
The California Supreme Court has stated the rule this way: “‘An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been but was not presented to the lower court by some appropriate method . . . . The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver . . . . Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial.’ [Citation.]” (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1, italics omitted.) “‘The purpose of the general doctrine of waiver is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had. . . .’” (People v. Walker (1991) 54 Cal.3d 1013, 1023.) “‘“No procedural principle is more familiar to this Court than that a constitutional right,” or a right of any other sort, “may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.” [Citation.]’ [Citation].” (People v. Saunders (1993) 5 Cal.4th 580, 590; cf. In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2 [holding that correct legal term for loss of right based on failure to assert it in a timely fashion is forfeiture, not waiver].)
Here, as we have seen, appellant tendered no challenge to the likelihood of adoptability of the minor. In fact, appellant’s counsel expressly conceded the minor was “adoptable.” Whether denominated estoppel, waiver, or forfeiture, appellant’s conduct in the juvenile court should preclude her from raising the issue here. (In re Erik P. (2002) 104 Cal.App.4th 395, 403; In re Dakota S. (2000) 85 Cal.App.4th 494, 501-502; In re Gilberto M. (1992) 6 Cal.App.4th 1194, 1198-1200.) In any event, even if no estoppel, forfeiture or waiver could be found under the circumstances presented (cf. In re Hochberg (1970) 2 Cal.3d 870, 878-879), the record does not support the claim of appellant.
The record in this case reflects the minor’s cognitive development was average. Although the minor had speech delay and swallowing difficulties, her caregiver had not reported any emotional or behavioral problems manifested by the minor. Moreover, the minor has demonstrated the capacity to develop significant adult relationships. Based on this evidence, the juvenile court reasonably could find, as it did, that although the record suggests the minor may continue to present some challenges to her caregiver, she was likely to be adopted. (Cf. In re Roderick U. (1993) 14 Cal.App.4th 1543, 1550.)
In In re Tamneisha S. (1997) 58 Cal.App.4th 798, the social services agency was unable, after a 10-month search, to find an adoptive home for the child. (Id. at pp. 802-803.) Ultimately, the juvenile court granted a guardianship after finding the agency had failed to show the minor was likely to be adopted. (Id. at p. 803.) The Court of Appeal affirmed the order of guardianship. (Id. at p. 808.)
This case is different from the circumstances found in In re Tamneisha S., supra, 58 Cal.App.4th 798. Here, as we have seen, the minor appeared to be developing a relationship with her prospective adoptive caregiver and other adults. Moreover, despite reports about her social interaction skills, the record suggests the minor has the ability to form attachments with future caregivers.
It is true that sometimes “special needs” children are more difficult to place than those without such needs. For example, in In re Michael G. (1983) 147 Cal.App.3d 56, the minor was developmentally disabled and suffered from serious emotional problems. According to the record in that case, the seven-year-old minor functioned below his age level, was not completely toilet-trained, and possessed limited language abilities. On that record, the court noted that all parties had conceded adoptive placement would be difficult. (Id. at pp. 58-59.)
The situation here is different. Although the minor arguably has some special needs, the evidence before the juvenile court suggested the minor was doing well in foster care. Moreover, as the evidence also showed, the health of the minor was good and the minor was capable of developing close attachments to new adults in her life.
In re Asia L. (2003) 107 Cal.App.4th 498, relied on by appellant, involved siblings who exhibited significant emotional and behavioral problems and who needed specialized placement. Although the social worker reported her agency was confident an adoptive home could be located, the minors’ current foster parents were not committed to adoption, and there was no evidence of other approved families willing to adopt children with the problems faced by the siblings. (Id. at pp. 511-512.) Under those circumstances, the appellate court reversed the juvenile court’s finding of adoptability. (Id. at pp. 503, 515.)
Here, there was no evidence the minor’s difficulties would necessitate specialized placement or that her difficulties were so severe as to pose an obstacle to adoption. Nor, contrary to the suggestion of appellant, was there anything else about “the minor’s age, physical condition, and emotional state [that would] make it difficult to find a person willing to adopt [her].” (In re Sarah M., supra, 22 Cal.App.4th at p. 1649.) Finally, although the minor’s caregiver had failed to attend a meeting and had not completed an adoption application as of the time of the preparation of the section 366.26 hearing report, the caregiver had been screened by DHHS and the social worker noted the caregiver was committed to adoption.
It is true the minor comes from a family with a history of “dysmorphic features and cognitive impairment.” However, in general, the minor was doing well in the home of her prospective adoptive caregiver. On this record, we reject as speculative appellant’s suggestion that, if the minor’s current placement fails, DHHS may have a difficult time securing another prospective adoptive family for the minor. In sum, substantial evidence supports the juvenile court’s determination that the minor was likely to be adopted. (Cf. In re Scott M. (1993) 13 Cal.App.4th 839, 843-844.)
C. The Beneficial Relationship Exception
Citing evidence of regular visitation with the minor and the existence of a parent-child relationship, appellant contends the juvenile court abused its discretion in failing to apply the statutory exception to adoption contained in subdivision (c)(1)(A) of section 366.26. According to appellant, the record reflects that she acted in a parental role toward the minor.
“‘At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must make one of four possible alternative permanent plans for a minor child. . . . The permanent plan preferred by the Legislature is adoption. [Citation.]’ [Citations.] If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which it would be detrimental to the child.” (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368, quoting In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1416, italics added by Ronell A.)
One of the circumstances under which termination of parental rights would be detrimental to the minor is: “The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(A).) The benefit to the child must promote “the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
The parent has the burden of establishing the existence of any circumstances that constitute an exception to termination of parental rights. (In re Cristella C. (1992) 6 Cal.App.4th 1363, 1372-1373.) The juvenile court is not required to find that termination of parental rights will not be detrimental due to specified circumstances. (Ibid.) Even “‘frequent and loving’” contact is not sufficient to establish the benefit exception absent significant, positive, emotional attachment between parent and child. (In re Teneka W. (1995) 37 Cal.App.4th 721, 728; In re Beatrice M., supra, 29 Cal.App.4th at pp. 1418-1419.)
In this case, it is true that appellant made substantial efforts to visit the minor regularly and it also is true that a relationship existed between them. In fact, in its ruling, the juvenile court recognized appellant’s efforts. However, the court also found that the minor’s need for permanence outweighed the benefit of continuing her relationship with appellant. In her brief, appellant has failed to show how the minor would benefit from continuing their relationship. In fact, evidence adduced from observations at visits reflects the minor’s reticence at interacting with or displaying affection toward appellant.
Section 366.26 requires both a showing of regular contact and a separate showing that the child actually would benefit from continuing the relationship. In re Autumn H., supra, 27 Cal.App.4th 567, interprets the statutory exception to involve a balancing test (id. at p. 575), and both In re Autumn H. and In re Beatrice M., supra, 29 Cal.App.4th 1411, posit a high level of parental involvement and attachment. Even assuming those decisions overemphasized the importance of the parental role, the record here does not support appellant’s suggestion that the minor would benefit from continuing a relationship with appellant simply because the minor knows who appellant is and enjoys a parental relationship with her. (Cf. In re Amanda D. (1997) 55 Cal.App.4th 813, 821-822.)
Here, the issue was as follows: In light of the minor’s adoptability, would a continued relationship with appellant benefit the minor to such a degree that it would outweigh the benefits the minor would gain in a permanent adoptive home? Substantial evidence in the record supports the juvenile court’s answer in the negative. On the record before it, the juvenile court could conclude, as it did, that only adoption, which is the preferred disposition (In re Ronell A., supra, 44 Cal.App.4th at p. 1368), would promote the best interests of the minor.
After it became apparent that appellant would not reunify with the minor, the juvenile court had to find an “exceptional situation existed to forego adoption.” (In re Autumn H. supra, 27 Cal.App.4th at p. 576.) In this case, to the contrary, in its decision the court determined that the minor would not benefit from continuing a relationship with appellant to such a degree that termination of parental rights would be detrimental to the minor. Appellant had the burden to demonstrate the statutory exception applied. We conclude that appellant failed to make such a showing. Therefore, the court did not err in terminating appellant’s parental rights based on its failure to apply the section 366.26, subdivision (c)(1)(A), exception. (In re Amanda D., supra, 55 Cal.App.4th at pp. 821-822.)
Disposition
The order terminating the parental rights of appellant is affirmed.
We concur: RAYE , J., MORRISON , J.