Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK60350, Steven Berman, Referee Presiding
Sharon S. Rollo, under appointment by the Court of Appeal, for Defendant and Appellant C.V.
Andre F. F. Toscano, under appointment by the Court of Appeal, for Appellant D.V.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Judith A. Luby, Principal Deputy County Counsel, for Plaintiff and Respondent.
KITCHING, J.
INTRODUCTION
A father and a minor child appeal a juvenile court’s orders in a dependency proceeding denying a request to continue the matter to the next year so that an amended statute could take effect, and finding that the exception in Welfare and Institutions Code section 366.26, subdivision (c)(1)(D)[ did not apply. We find that the juvenile court’s denial of the request for a continuance was not an abuse of discretion, and that the juvenile court correctly applied the statute in effect at the time of the section 366.26 hearing. We conclude that no “exceptional circumstances” caused the relative with whom the minor child was living to be unable or unwilling to adopt that child, and therefore the juvenile court correctly found that section 366.26, subdivision (c)(1)(D) did not apply. We affirm the order terminating parental rights.
Unless otherwise specified, statutes in this opinion will refer to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL HISTORY
Detention:
On August 23, 2005, four-year-old D.V. was detained from his parents, V.J. (Mother) and C.V. (Father) and placed with his maternal grandmother, H.J. (Maternal Grandmother). Mother and Father were not married. D.V. had witnessed or was involved during five previous incidents of domestic violence between Mother and Father.
On August 22, 2005, Father entered Mother’s home without permission, and took D.V. Mother and a friend found two males, one armed with a gun, and went to Father’s house, where the armed male fired several shots at Father’s vehicle. D.V. was inside the vehicle and suffered minor cuts to the face from shattered glass. Mother was arrested and charged with attempted murder; Father was arrested and charged with child endangerment. Father’s sister-in-law stated that Mother, Father, and D.V. had lived in her home, but Mother moved out two months earlier and left D.V. with Father. D.V. was detained and placed with Maternal Grandmother. D.V. knew his grandparents, wanted to go to their home, and was comfortable there.
Maternal Grandmother reported that Mother and Father had ongoing problems. Mother had arrived at Maternal Grandmother’s home with bruises on her body. Mother had left Father and taken D.V. with her, but later returned to Father. Maternal Grandmother suspected Mother used drugs. Father’s extensive criminal history dated back to 1997, and included drug arrests and arrests for violent crimes. Mother was previously arrested for attempted robbery.
On August 26, 2005, the Department of Children and Family Services (DCFS) filed a section 300 petition, alleging that D.V. was a person described by section 300, subdivisions (a) [child suffered serious physical harm inflicted nonaccidentally by a parent] and (b) [child suffered or was at risk for suffering serious physical harm or illness as a result of parent’s failure or inability to supervise or protect the child].
On August 26, 2005, the juvenile court found that a prima facie case for detaining D.V. and showing that he was described by section 300, subdivisions (a) and (b) was established, ordered D.V. detained in shelter care, and ordered the DCFS to provide reunification services to D.V., Mother, and Father.
The DCFS September 19, 2005, jurisdiction/disposition report stated that Mother was incarcerated. D.V. stated that his parents fought, and Father hit Mother, cut her with a knife on her forehead, and had guns and bullets. D.V. was present when Mother’s friend, whom D.V. called “K-9,” shot up Father’s car. Mother stated that Father became physically abusive when she was seven months pregnant and backslapped her lip. Mother stated that their arguments mostly stemmed from Father’s friends drinking and using cocaine inside their house. Twice the friends left cocaine within D.V.’s reach, which made Mother angry. Mother stated that Father was violent in front of D.V., and fights occurred because Mother would not let Father hit D.V. Mother said Father beat her, pulled her hair, dragged her on the floor, put a knife to her head and threatened to kill her, and hit her hard. Once when Father beat Mother, D.V. saw blood on the walls and carpet and started screaming.
Mother stated that the day Father took D.V. away, she and her friend left the house doors open for the children to play in the back yard while Mother was in the shower. Father entered the house and took Mother’s car, car keys, cell phone, and D.V. Mother then took her friend’s car, found K-9, and drove to a house where Mother’s car was in the driveway. Mother wanted to grab D.V. and get him out of the car. Father left in the car so fast he almost hit Mother. K-9 pulled out a gun; Mother admitted taking K-9 to help her get D.V. and to assault Father, but denied taking K-9 to use a gun while D.V. was in the car and said it was not her intent for K-9 to use a gun.
Father admitted that he and Mother argued often but said their arguments did not get violent, except that one time, by accident, he hit her lip with a ring on and it cut her. Father stated that Mother used drugs (“crystal,” marijuana, and probably cocaine), almost overdosed one time, and sometimes came home from work drunk. Father admitted drinking, selling marijuana and crack, and being arrested for cocaine and ecstasy. Father admitted that D.V. witnessed Father and Mother’s arguments.
Maternal Grandmother knew about domestic violence between Mother and Father, and said Mother many times wanted to come to her but Father, who is possessive and controlling and threatened to kill her, would not let her get away. D.V. told Maternal Grandmother that Father once put a gun to Mother’s head. Mother had a scar on her forehead because Father cut her with a knife. On September 14, 2005, a DCFS dependency investigator explained family reunification services to Maternal Grandmother, and asked if she was willing to provide a permanent home for D.V. if his parents failed to reunify with him. She said she had always wanted to adopt D.V., was more than willing to keep him, and that if family reunification services were terminated, she did not want legal guardianship and would only consider adoption.
Adjudication and Disposition:
As of November 3, 2005, D.V. continued to live with Maternal Grandmother. Mother and Father submitted to the petition on the basis of the social worker’s report and a mediated agreement. The juvenile court sustained the following allegation of the petition, pursuant to section 300, subdivisions (a) and (b): “The child [D.V.]’s mother [V.J.] and father [C.V.] have a 5 year history of severe domestic violence, which has included engaging in violent physical altercations, in the presence of the child [D.V.], the making of threats and presence of weapons. Further on a number of occasions the police had to respond. Such history and ongoing domestic violence in the presence of the child [D.V.] place the child [D.V.] at risk of serious physical and emotional harm and damage.” The juvenile court declared D.V. a dependent child of the court under section 300, subdivision (a) and (b), removed custody from the parents and placed it with the DCFS, which had discretion to release D.V. to Maternal Grandmother, and ordered separate monitored visits of at least three hours per week for Mother and for Father. The juvenile court ordered the DCFS to provide family reunification services, to include parenting classes, a domestic violence group program, and individual counseling to address case issues including domestic violence and child protection. The individual counseling was to address gang issues if needed, or the parents were to participate in a separate gang awareness program. The juvenile court ordered the parents to complete 12 consecutive clean random drug tests, and if either parent missed a test or tested positive, that parent was to complete a drug program with testing.
Six-Month Review Hearing, May 4, 2006:
In this period the DCFS reported that Father showed minimal interest in D.V., visiting him for minutes instead of the court-ordered three-hour minimum. Father had not complied with court orders and had not enrolled in therapy. Mother tested positive for methamphetamines on March 6, 2006, and had complied with only one out of six court orders, by completing a parenting class on March 22, 2006. Maternal Grandmother reported that both parents visited D.V. sporadically, did not stay for the full visit, and sometimes cancelled at the last minute. D.V. adjusted well to Maternal Grandmother’s home, and said he was happy to be with her. Maternal Grandmother stated she was willing to adopt D.V. if the parents failed to complete court-ordered programs.
On April 22, 2006, Father was arrested, charged with a felony, and incarcerated.
In the May 4, 2006, hearing, the juvenile court found Mother in partial compliance with the case plan, but Father did not comply with the case plan. The juvenile court ordered the DCFS to provide family reunification services, ordered Mother to continue to drug test and that the court be informed of a positive test, and ordered Father’s visits to occur at a DCFS office.
12-month Review Hearing:
On May 30, 2006, Mother tested positive for methamphetamines and marijuana, and on June 5, 2006, tested positive for marijuana. Mother missed a drug test on May 3 and June 26, 2006, but tested negative on nine other dates between June 16 and October 18, 2006. As of July 6, 2006, Mother had failed to enroll in individual counseling, a drug counseling program, a gang awareness program, or a domestic violence group. Mother did make efforts to reunify with D.V., maintained her visits, and was appropriate during those visits. As of November 2, 2006, Mother needed two sessions to complete a drug counseling program, had completed an 8-hour gang awareness program and an anger management program, was enrolled in a domestic violence batterers’ program, and was on a waiting list for individual counseling. Mother visited D.V. regularly on Sunday afternoons at Maternal Grandmother’s home; D.V. looked forward to visits with Mother and there were no problems with Mother’s visitation. Maternal Grandmother stated that there was a bond between D.V. and Mother and she would like for Mother and D.V. to reunify and for her daughter to move into her home. Maternal Grandmother stated on numerous occasions that should Mother fail to reunify with D.V., Maternal Grandmother would adopt D.V.
Father, released from jail on June 12, 2006, did not comply with court orders and had no contact with D.V. On October 6, 2006, Father was again arrested and incarcerated.
On November 2, 2006, the juvenile court proceeded on Mother’s portion of the case. The juvenile court ordered the DCFS to provide family reunification services for Mother, gave the DCFS discretion to allow unmonitored visits with Mother, found Mother in partial compliance with the case plan, and found a substantial probability that the child would be returned to Mother.
On January 16, 2007, the juvenile court held a review hearing as to Father, who was present in custody. The juvenile court found that Father had not complied with the case plan and ordered family reunification services terminated for him.
Status Review Hearing as to Mother (February 22, 2007):
As of February 22, 2007, the DCFS reported that Mother had unstable housing and employment, stopped attending community college, and did not have job or income security. Mother drug tested positive on November 1, 2006, although she tested negative on five other dates between November 13, 2006 and February 8, 2007. Mother re-enrolled in her substance abuse program on December 4, 2006. Mother participated in individual counseling, but the DCFS had not yet received a progress report requested from her therapist. Mother had enrolled in a Domestic Violence Batterers’ Program on July 13, 2006, but had missed 7 sessions, only two of which were excused absences. Mother visited regularly and successfully with D.V.
Father had no contact with D.V. He last reported to the DCFS on October 27, 2006, that he was incarcerated and did not know his release date. Father had not enrolled in counseling or parenting class, and failed to random drug test.
On March 26, 2007, the juvenile court ordered reunification services terminated for Mother, ordered the permanent plan of permanent placement of D.V. with Maternal Grandmother and a specific goal of adoption, and set the matter for a section 366.26 termination of parental rights hearing on July 24, 2007.
On May 18, 2007, and on July 24, 2007, the DCFS reported that the adoption home study was not yet completed. As of July 24, 2007, D.V. lived with Maternal Grandmother. The DCFS reported that it was likely that once parental rights were terminated, Maternal Grandmother would adopt D.V. The prospective adoptive parents, Mr. B. and Maternal Grandmother, had a six-year-old daughter, were employed as medical assistants, and wanted to provide a stable home for D.V. through adoption. The prospective adoptive parents understood the differences between long-term foster care, legal guardianship, and adoption, and indicated that they wanted to adopt. They understood the legal rights, responsibilities, and financial obligations of adoption, and welcomed this commitment of adoption.
On July 24, 2007, the juvenile court set the matter for a contested section 366.26 hearing on September 24, 2007.
On September 24, 2007, the DCFS reported that Mother’s therapist reported that Mother had not attended therapy since June 21, 2007. Mother was discharged from a 6-month outpatient substance abuse program for missing too many classes. Mother drug tested negative 23 times between June 16, 2006 and August 10, 2007, but missed six drug tests between April 5 and August 3, 2007, and tested positive for cannabinoids on June 21, 2007.
On August 8, 2007, Maternal Grandmother again stated to the CSW that it was in D.V.’s best interest for her to adopt him. Maternal Grandmother realized that Mother could not provide for D.V.’s basic physical and emotional needs, and stated that D.V. had adjusted to Maternal Grandmother’s home, parenting style, and community, and had established relationships at school. The home study of the prospective adoptive parents was completed on August 16, 2007.
At the September 24, 2007, hearing, Mother’s attorney stated that he was told that Maternal Grandmother had not been consulted about permanent plans other than adoption and there was no discussion of legal guardianship. Father’s attorney stated his understanding that Maternal Grandmother desired to keep the parents involved because they had a good relationship with D.V. and Maternal Grandmother did not desire to take away the parents’ right to become involved in D.V.’s life in the future. According to Father’s attorney, Maternal Grandmother believed that if the parents did not obtain custody of the child now, adoption by Maternal Grandmother was the only option. D.V.’s attorney stated that she discussed what Maternal Grandmother could allow through a post-adoption contract, and that the adoption process, “continued medical AFTF,” and legal guardianship were explained to Maternal Grandmother, who stated she wanted to adopt D.V. Maternal Grandmother expressed no change in her commitment to adopt to the adoption worker who completed the home study.
The juvenile court elicited Maternal Grandmother’s understanding that the DCFS recommendation was to terminate parental rights and to free D.V. for adoption. She also confirmed that she received and read papers describing guardianship and adoption, but stated: “The only thing is that I didn’t understand quite well, the difference between legal guardianship and adoption.” The juvenile court explained the differences between adoption and legal guardianship, and Maternal Grandmother said that she understood this difference. She also confirmed that she was willing to adopt D.V., and understood that if Mother and Father’s parental rights were terminated, they would no longer be legally D.V.’s parents and there would be an adoption hearing for Maternal Grandmother to adopt D.V. and become his parent. Asked if that is what she wanted to do, Maternal Grandmother stated: “[I]f the child cannot go back to his parents, then I want him to remain with me. If you recommend that, adoption yes.”
The juvenile court stated that it made no recommendation, and emphasized that if Maternal Grandmother adopted, there was no possibility of returning D.V. to his parents. If Maternal Grandmother took legal guardianship, the parents could make a motion to have D.V. taken from her and returned to them, with the juvenile court’s approval. This could happen when the parents thought they were ready to take D.V. back and they could ask the juvenile court to return D.V. to them. The juvenile court would then decide whether the parents were ready and fit to take D.V. back. Maternal Grandmother stated: “Okay. So then I will take legal guardianship.”
The juvenile court then continued the matter to November 5, 2007, for a new adoption report. The juvenile court ordered the CSW to discuss all options regarding a permanent plan for D.V., and include an updated recommendation in a supplemental report.
The DCFS reported that on October 9, 2007, two CSW’s interviewed Maternal Grandmother about her options regarding permanency. Maternal Grandmother stated that Mother told her she was doing better and refraining from using illicit substances, and was telling Maternal Grandmother not to adopt D.V. because she was getting better. A CSW informed Maternal Grandmother that Mother continued to test positive for illicit substances and had two “no shows,” which placed D.V. at risk and further delayed his permanency status. Furthermore, Mother had recently been laid off from her employment. Maternal Grandmother indicated that in D.V.’s best interest, she would move forward with adopting him. Since the September 24, 2007, hearing, Mother tested positive for marijuana on September 28, 2007, and missed drug tests on October 17 and 26, 2007.
On November 5, 2007, the juvenile court continued the matter to November 21, 2007, for a contested hearing.
On November 21, 2007, Mother and Father appeared for the hearing. Mother called Maternal Grandmother to testify. Maternal Grandmother testified that she had D.V. in her home for two years. She desired that D.V. remain in her custody, and was committed to having D.V. with her until he is an adult.
Maternal Grandmother spoke to a social worker about the permanent plans for keeping D.V. until he became an adult, and understood adoption and legal guardianship, whose legal differences had been explained to her. She testified: “I would like to have legal custody. I don’t want for the parents to lose their parental rights.”
Maternal Grandmother understood that a legal guardianship ended when a child turned 18 years of age, while adoption never ended and D.V. would always be Maternal Grandmother’s child and could inherit from her when she passed away. Maternal Grandmother also understood that if she adopted, she could decide to allow Mother and Father to visit D.V. Maternal Grandmother testified that it was explained to her that if she adopted D.V., Mother or Father could not come back later and try to take D.V. from her. Asked what her choice was, knowing these things, Maternal Grandmother stated that whether she adopted or became his legal guardian, D.V. would be with her until he was of age. Maternal Grandmother stated that D.V. had a good relationship with his mother, and Maternal Grandmother felt it was important for D.V. to maintain that relationship with Mother.
Maternal Grandmother testified that she previously told the social worker that she would adopt D.V. because the social worker made her think that if she did not adopt him, they would look for a different family to adopt him.
The juvenile court observed that a new section 366.26, subdivision (c)(1) exception, “the grandparents exception,” would not take effect until January 1, 2008. The juvenile court found that the current section 366.26, subdivision (c)(1)(A) exception to terminating parental rights did not apply.
D.V.’s attorney argued that the juvenile court should honor the legislature’s intent, which was to establish legal guardianship when a relative had taken a dependent child into her home and preferred legal guardianship instead of adoption. The DCFS attorney argued that it would be error for the juvenile court to rule based on a bill that had not yet taken effect. The DCFS attorney argued that D.V. was adoptable, with an approved home study, and no exceptions applied. Maternal Grandmother had never asked to rescind the home study, and she had informed the court that she would arrange for Mother to have contact with the child and for D.V. to be returned to Mother’s custody at some future time. The DCFS attorney argued that it would be error to rule based on laws not yet in effect.
The juvenile court observed that Maternal Grandmother believed that legal guardianship for D.V. was in Mother’s best interest, not in D.V.’s best interest. The juvenile court ruled that the amended section 366.26, subdivision (c)(1)(A) was not yet in effect, Maternal Grandmother was ready, willing, and able to adopt, there was an approved home study, and D.V. was clearly adoptable. Mother’s attorney requested a continuance to brief the issue.
Mother admitted she was not ready to take D.V., and stated that the issue was what is best for D.V. The juvenile court asked: “Grandmother, are you willing to adopt the child?” Maternal Grandmother answered: “Yes.” The juvenile court stated that it was “bound by today’s law. I don’t find a [section 366.26](c)(1)(A) exception. I don’t find that waiting for the mother to stop smoking marijuana and get her act together [is] an exceptional circumstance. [¶] . . . [¶] This clearly is not an exceptional circumstance that the caretaker is not willing to adopt because she wants to wait for her daughter to stop smoking pot and take her drug class and do what she’s supposed to do for 18 months of reunification.”
The juvenile court found clear and convincing evidence that D.V. was adoptable and that it would be detrimental for him to be returned to the parents, and ordered parental rights terminated and the care, custody, and control of D.V. transferred to the DCFS for adoptive planning and placement.
Father and D.V. filed timely notices of appeal.
ISSUES
D.V. and Father argue that:
1. The juvenile court abused its discretion by not continuing the section 366.26 hearing;
2. There was good cause to continue the section 366.26 hearing and continuance was not contrary to D.V.’s interest; and
3. The relative caretaker exception must be applied retroactively in this case.
DISCUSSION
1. Denial of a Continuance Was Not an Abuse of Discretion
D.V. and Father first claim that the trial court abused its discretion by not continuing the November 21, 2007, hearing so that an amended statute, effective January 1, 2008, could be applied.
Section 352, subdivision (a) states: “Upon request of counsel for the parent, guardian, minor, or petitioner, the court may continue any hearing under this chapter beyond the time limit within which the hearing is otherwise required to be held, provided that no continuance shall be granted that is contrary to the interest of the minor. In considering the minor’s interest, the court shall give substantial weight to a minor’s need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements.
“Continuances shall be granted only upon a showing of good cause and only for that period of time shown to be necessary by the evidence presented at the hearing on the motion for the continuance. Neither a stipulation between counsel nor the convenience of the parties is in and of itself a good cause. Further, neither a pending criminal prosecution nor family law matter shall be considered in and of itself as good cause. . . . “In order to obtain a motion for a continuance of the hearing, written notice shall be filed at least two court days prior to the date set for hearing, together with affidavits or declarations detailing specific facts showing that a continuance is necessary, unless the court for good cause entertains an oral motion for continuance.”
Courts have interpreted the requirement of good cause for a grant of a continuance as an express discouragement of continuances. (In re Elijah V. (2005) 127 Cal.App.4th 576, 585.) A denial of a request for a continuance will not be reversed on appeal absent an abuse of discretion. (Ibid.; In re Ninfa S. (1998) 62 Cal.App.4th 808, 810-811.)
D.V.’s attorney, the party moving for a continuance, provided no showing of specific facts showing that a continuance was necessary and made no showing of good cause in the hearing.
A juvenile court’s discretion in granting continuance is limited by general time constraints governing dependency hearings. (Renee S. v. Superior Court (1999) 76 Cal.App.4th 187, 193.) Specifically, “[t]he court must not continue a hearing beyond the time set by statute unless the court determines the continuance is not contrary to the interests of the child.” (Cal. Rules of Court, rule 5.550(a)(1).)
The juvenile court in the permanency review hearing, having ordered reunification services terminated for Father on January 16, 2007, and for Mother on March 26, 2007, was required to set the matter for a section 366.26 hearing within 120 days. (Section 366.22, subd. (a); Cal. Rules of Court, rule 5.720(c)(3)(B).) The juvenile court did so, setting the section 366.26 hearing for July 24, 2007. That hearing was continued three times, however, first to September 24, 2007; then to November 5, 2007; and then to November 21, 2007. This was considerably after the 120-day period, and more than two years after the adjudication and dispositional order. The child’s need for prompt resolution of his custody status supported denial of the continuance. The juvenile court acted well within its discretion by denying a request to continue the motion.
2. No “Exceptional Circumstances” Caused the Custodial Relative, Maternal Grandmother, to Be Unwilling or Unable to Adopt, and Therefore the Section 366.26, Subdivision (c)(1)(D) Exception Did Not Apply
D.V. and Father argue that the juvenile court should have applied amended section 366.26, subdivision (c)(1)(A), effective January 1, 2008.
i. The Juvenile Court Correctly Applied Former Section 366.26, Subdivision (c)(1)(D), the Statute in Effect at the Time of the Hearing
A statute has no force until its effective date. (Southern Cal. Gas Co. v. Public Utilities Com. (1985) 38 Cal.3d 64, 67.) Therefore the juvenile court correctly applied former section 366.26, subdivision (c)(1)(D), the law existing at the time of the November 21, 2007, hearing.
ii. The Two Versions of the Statute
Both statutes provide an exception to the section 366.26, subdivision (c)(1) requirement that if the juvenile court determines that it is likely the child will be adopted, the juvenile court shall terminate parental rights and order the child placed for adoption.
Section 366.26, subdivision (c)(1)(D), effective at the time of the November 21, 2007, hearing, states, in relevant part: “The child is living with a relative . . . who is unable or unwilling to adopt the child because of exceptional circumstances, that do not include an unwillingness to accept legal or financial responsibility of the child, but who is willing and capable of providing the child with a stable and permanent environment and the removal of the child from the physical custody of his or her relative . . . would be detrimental to the emotional well-being of the child.”
Section 366.26, subdivision (c)(1)(A), which became effective on January 1, 2008, states, in relevant part: “The child is living with a relative who is unable or unwilling to adopt the child because of circumstances that do not include an unwillingness to accept legal or financial responsibility for the child, but who is willing and capable of providing the child with a stable and permanent environment through legal guardianship, and the removal of the child from the custody of his or her relative would be detrimental to the emotional well-being of the child.”
Former section 366.26, subdivision (c)(1)(D) concerns a relative who is unable or unwilling to adopt the child “because of exceptional circumstances.” Section 366.26 subdivision (c)(1)(A) deletes the word “exceptional” and concerns a relative who is unable or unwilling to adopt the child “because of circumstances[.]” Consequently amended subdivision (c)(1)(A) requires a lower threshold to invoke the exception.
iii. Substantial Evidence Supports the Juvenile Court’s Finding That No Exceptional Circumstances Made Maternal Grandmother Unable or Unwilling to Adopt
The juvenile court, applying former section 366.26, subdivision (c)(1)(D), found that the possibility Mother might be able to resume custody with D.V. at some future time did not constitute an “exceptional circumstance” that caused Maternal Grandmother to be unable or unwilling to adopt D.V. That finding was a correct interpretation of the statute. Because Maternal Grandmother’s interest in someday returning custody of D.V. to Mother was not an exceptional circumstance which made Maternal Grandmother unwilling or unable to adopt the child, the former section 366.26 subdivision (c)(1)(D) exception did not apply. (In re Zachary G. (1999) 77 Cal.App.4th 799, 810.)
We apply the substantial evidence test to the juvenile court’s conclusion concerning whether the section 366.26, subdivision (c)(1)(D) exception applied. (In re Xavier G. (2007) 157 Cal.App.4th 208, 213.) Even though there was some evidence that Maternal Grandmother hoped or expected that Mother would continue to have contact with D.V., Maternal Grandmother also testified that she was committed to having D.V. with her until he was an adult, and that whether she adopted D.V. or became his legal guardian he would be with Maternal Grandmother until he became of age. There is authority holding that a custodial relative’s personal preference for guardianship over adoption is irrelevant to the juvenile court’s selection of the plan that best serves the child’s interests at a section 366.26 hearing. (Id. at p. 214; In re Jose V. (1996) 50 Cal.App.4th 1792, 1801.) Moreover, a custodial relative’s personal preference for guardianship over adoption does not constitute “exceptional circumstances” for purposes of section 366.26, subdivision (c)(1)(D). (In re Rachel M. (2003) 113 Cal.App4th 1289, 1298.) In response to the juvenile court’s question, Maternal Grandmother stated that she was willing to adopt D.V. Combined with Maternal Grandmother’s numerous statements in DCFS reports that she was willing to adopt D.V., this constituted substantial evidence that Maternal Grandmother was willing to adopt D.V. (In re Xavier G., supra, 157 Cal.App.4th at p. 213.) There were no “exceptional circumstances” which made the custodial relative unwilling or unable to adopt; therefore the former section 366.26, subdivision (c)(1)(D) exception did not apply. (In re Xavier G., at p. 214; In re Zachary G., supra, 77 Cal.App.4th at p. 810.)
We affirm the order.
DISPOSITION
The order is affirmed.
We concur: CROSKEY, Acting P. J., ALDRICH, J.