Opinion
C043177.
11-19-2003
In re B.S. et al., Persons Coming Under the Juvenile Court Law. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. SARAH S., Defendant and Appellant.
Sarah S., mother of the minors (appellant), appeals from the orders of the juvenile court terminating her parental rights and freeing the minors for adoption. (Welf. & Inst. Code, § 366.26 [further undesignated statutory references are to this code].) Appellant contends the court erred in failing to consider the minors wishes. We affirm.
FACTS
The one-year-old twins were removed from appellants care in April 2000, following appellants arrest on drug charges. The court sustained the petitions and ordered reunification services. The minors were placed with the maternal great-aunt.
After more than 18 months of services, appellant was able briefly to reunify with the minors. Four months later, the three-year-old twins were again detained due to appellants continued methamphetamine use. The court terminated reunification services in August 2002.
The assessment for the section 366.26 hearing stated appellant visited monthly with the minors. The minors were attached to the maternal great-aunt and were doing well in her care. The report stated there was no detriment to the minors in terminating parental rights because they did not have a positive relationship with either parent. The report did not address the minors wishes.
At the section 366.26 hearing, appellants counsel entered a general objection to the proceeding and the recommendations on her behalf. The court adopted the social workers recommendations and terminated parental rights.
DISCUSSION
Appellant contends the court failed to consider the minors wishes before terminating her parental rights.
The record does not reflect that appellant raised the matter in the juvenile court. Accordingly, it is waived. (In re Dakota S. (2000) 85 Cal.App.4th 494, 501-502.)
However, even if the issue were not waived, appellant could not prevail. "At all proceedings under this section, the court shall consider the wishes of the child and shall act in the best interests of the child." (Welf. & Inst. Code, § 366.26, subd. (h).) The statute imposes "a mandatory duty on the courts to `consider the childs wishes to the extent ascertainable prior to entering an order terminating parental rights." (In re Leo M. (1993) 19 Cal.App.4th 1583, 1591.) A statement from the minor need not be testimony in court; informal communication on or off the record, reports prepared for the hearing or other methods may suffice. (In re Diana G. (1992) 10 Cal.App.4th 1468, 1480.) However, some children are too young or immature to understand the concept of termination of parental rights or express their feelings on the subject. (In re Leo M., supra, at p. 1592.) Even minors counsel has no duty to inquire of the wishes of a minor under the age of four. (§ 317, subd. (e).)
The minors in this case were three years old at the time of the section 366.26 hearing. They were too young to understand the concepts of adoption and termination of parental rights or to express any wishes on the issues. Under the circumstances, the juvenile court was not required to consider the minors wishes.
DISPOSITION
The orders of the juvenile court are affirmed.
We concur: SCOTLAND, P.J. & BUTZ, J.