Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of San Diego County No. NJ12979 A-B. Michael Imhoff, Commissioner.
HUFFMAN, P. J.
Cassandra W. and David R., the parents of E.R. and Hannah R., appeal the judgments terminating their parental rights under Welfare and Institutions Code section 366.26. Cassandra contends the juvenile court erred by (1) denying her request for substitute counsel, (2) not continuing the trial on a supplemental petition (§ 387) to obtain further information, (3) elevating the level of the children's placement to foster care, and (4) finding the beneficial parent-child relationship exception to adoption did not apply. David contends the court erred by not applying the statutory preference for placement of dependent children with relatives (§ 361.3). Each parent joins in the arguments presented by the other parent. (Cal. Rules of Court, rule 8.200 (a)(5).)
All statutory references are to the Welfare and Institutions Code.
FACTS
In December 2004 the San Diego County Health and Human Services Agency (Agency) took E., then five years old, and Hannah, then three years old, into protective custody after Cassandra was arrested. Cassandra had left the children, who were hungry and scantily dressed, huddled together outside the door to the Sears store as she looked into cars in the mall parking lot. When a security officer approached Cassandra, she was belligerent and assaulted him. Subsequently, police arrested her. Cassandra was under the influence of methamphetamine and had stolen property in her possession. At the time, David was incarcerated in connection with a homicide.
Agency filed dependency petitions on behalf of the children under section 300, subdivision (b). The juvenile court ordered Agency to evaluate the paternal grandfather and the maternal grandmother for placement and the social worker was given discretion to detain the children with an appropriate relative.
On January 26, 2005, Cassandra and David submitted on the petitions, which were sustained by the court.
On February 22 the court removed the children from their parents' custody, declared them dependents and placed them with the paternal grandfather and stepgrandmother, who lived in Orange County. The court ordered Agency to provide reunification services, as well as liberal supervised visitation, to Cassandra. The court denied services to David because of his long-term incarceration. (§ 361.5, subd. (e)(1).)
Cassandra had weekly supervised telephone contact with E. and Hannah. The calls had not gone well. The stepgrandmother claimed Cassandra made inappropriate comments, and Cassandra said the stepgrandmother made the children afraid to freely converse with her. The children had bi-weekly supervised visits with the maternal grandmother, which had gone fairly well. The paternal stepgrandmother and the maternal grandmother did not get along. The maternal grandmother frequently complained to the social worker that the children were not well cared for and that E. had bruises.
On July 13 the paternal grandfather and stepgrandmother filed an application for de facto parent status.
On September 12 the court granted the de facto parent application. The court also continued services for Cassandra, who had completed a prison parenting packet.
On February 27, 2006, the court ordered Cassandra, who had been released from prison earlier in the month, to enroll in the Substance Abuse Recovery Management System (SARMS) program.
On March 23 the court ordered additional reunification services for Cassandra.
Cassandra had weekly supervised visits with the children, and the maternal grandmother had monthly unsupervised visits. These visits had gone well. However, by the end of April, Cassandra was not in compliance with SARMS. On May 26 Cassandra was arrested on drug and theft charges.
On July 25 at the 18-month review hearing, the court terminated Cassandra's reunification services and set a section 366.26 hearing.
In its original adoption assessment report, Agency reported that E. and Hannah were likely to be adopted, noting that the paternal grandfather and stepgrandmother, with whom the children had lived for 19 months, wanted to adopt them. In addition, between seven to 10 families were interested in adopting a sibling pair with similar characteristics.
On January 17, 2007, Agency received a hotline referral which indicated E. and Hannah had been physically abused by the paternal grandfather and his wife. On several occasions during the course of the dependencies, Agency had received complaints about the paternal grandfather and stepgrandmother using corporal punishment on the children, but they could not be substantiated. An Agency supervisor had met with the grandfather and his wife 15 months earlier about the complaints and had discussed appropriate disciplinary techniques.
On January 27 after Agency concluded the children had to be removed, the social worker and her supervisor met with the paternal grandfather and his wife at a Team Decision Meeting to determine if there were other available relatives interested in taking the children. The maternal grandmother participated by telephone. Neither the paternal grandfather nor the maternal grandmother mentioned any potential relatives. Both agreed it was important to keep E. and Hannah in the same school because the children received a lot of services and support from the teachers and staff at the school.
On January 29 Agency filed section 387 petitions on behalf of E. and Hannah because the paternal grandfather and stepgrandmother subjected the children to corporal punishment despite repeated instructions not to do so. The petitions alleged the stepgrandmother hit Hannah with a wooden stick and the grandfather hit the children on the head. Agency also alleged the paternal grandfather and stepgrandmother had traveled outside the country, took the children out of school and left them in a non-approved home for about two weeks without informing Agency.
On January 30 Agency detained E. and Hannah with a nonrelative extended family member (NREFM) who lived near the children's school to eliminate the need for them to switch schools. The NREFM was a teaching assistant at the school, who had worked in E.'s classroom the previous year. The social worker detained the children with this caregiver because it was the least disruptive move for the children, allowing them to remain in the same school.
The children did well in their new home; they referred to their new caregivers as "Mommy" and "Daddy." E. said he would never leave the home. Their teachers also noted a positive difference at school.
On March 12 the court ordered the maternal grandmother's home in Arizona be evaluated for placement under the Interstate Compact on the Placement of Children (ICPC). Agency also requested an ICPC home study for the paternal great-grandmother and great-grandfather in Arizona. Arizona authorities approved the ICPC for the paternal great-grandmother and great-grandfather, but denied it for the maternal grandmother. The children did not remember the paternal great-grandparents; E. said, "They must be people trying to steal us away."
On March 12 David filed a section 388 motion, seeking placement of the children with relatives. David alleged there were available relatives for evaluation and placement─the maternal grandmother and the paternal great-grandparents. The court denied the motion without prejudice since it ordered the ICPC.
Later, Agency requested an ICPC home study for a paternal great-aunt in Georgia, but had not heard from Georgia authorities by the time of trial. When the social worker discussed the possibility of living with the great-aunt in Georgia, E. began to cry and remained upset for several hours; Hannah wet her pants.
The paternal great-grandmother and great-grandfather were 72 and 75 years old, respectively. They raised seven biological children and one adopted child. They were foster parents in California for 10 years and had 30 children placed with them. The paternal great-grandparents were reportedly in good health, and their adult children said they would help the great-grandmother with the children. The paternal great-grandparents had met E. and Hannah three times. The children received cards from the maternal great-grandmother, but did not know who she was.
By May the caretakers, who had an approved adoptive home study, decided they wanted to adopt E. and Hannah. The social worker also reported that Cassandra and David each had weekly telephone calls with the children. Cassandra had sent many letters and pictures to the children.
On May 3 the court granted Cassandra's section 388 petition to revoke the de facto parent status of the paternal grandfather and his wife.
Both children underwent psychological evaluations. Hannah was diagnosed with Attention Deficit Hyperactivity Disorder and Adjustment Disorder with Anxiety. She suffered from nightmares and fears that she would be "stolen or taken away." The psychologist opined Hannah's fears would subside if she remained in her current placement where she appeared to have bonded with her caregivers. Hannah told the psychologist that she wanted to remain with the caregivers. E. was diagnosed with Adjustment Disorder with Mixed Anxiety and Depressed Mood. E. said he did not remember living with his parents and wanted to remain in his current home. E. was "very enthusiastic" about his caregivers. The psychologist opined that adoption would most likely improve E.'s emotional difficulties.
The children's therapist opined the children were bonding well with their caregivers and it would be detrimental to move them.
On June 26 after a two-day trial, the court sustained the section 387 petition and placed E. and Hannah in the home of the caregivers. The court concluded "the best interest of the children would be served by placement with a non-related extended family member."
The court proceeded to the section 366.26 hearing and found E. and Hannah were likely to be adopted and none of the statutory exceptions to adoption applied. The court terminated parental rights and referred the children to Agency for adoptive placement.
DISCUSSION
I. Denial of Cassandra's Motion to Substitute Counsel
Cassandra contends the juvenile court erred by denying her Marsden (People v. Marsden (1970) 2 Cal.3d 118) motion. The contention is without merit.
Factual Background
On June 25, 2007─the trial date for the section 387 petition and the permanency planning hearing─Cassandra requested a Marsden hearing because she wanted new counsel appointed. The court granted her request for a hearing.
Cassandra complained her attorney did not (1) telephone her while she was incarcerated, (2) subpoena records she wanted to see (3) supply her with other documents she requested, and (4) timely comply with her requests. Cassandra also said she did not understand what was going on in the proceedings.
Cassandra told the court she was dissatisfied with her representation at a hearing held on May 10; she wanted to be produced for the hearing, but was not. Nonetheless, her attorney went ahead and represented her at the hearing. The court informed Cassandra that she was present on May 10, but not at the May 3 hearing. The court noted that on May 3 the court granted her section 388 petition to revoke the paternal grandfather's de facto parent status.
Both Cassandra and her attorney told the court they communicated largely by e-mail.
The court denied Cassandra's request for new counsel. The court found the attorney had represented Cassandra's position and there was not a breakdown in their relationship that would make it impossible for the attorney to properly represent her. The court further noted that the documents Cassandra brought up were either prepared by her or Agency, and there was no showing that the attorney would not present the information contained in those documents at trial.
Legal Principles & Analysis
In a criminal case, when a defendant requests substitute counsel, the trial court must permit the defendant to explain the specific reasons why the defendant believes current counsel is not adequately representing him. (Marsden, supra, 2 Cal.3d at pp. 123-124.) The court need not grant the request for substitution of counsel absent a showing that denial would substantially impair the defendant's right to the assistance of counsel. (Id. at p. 123; People v. Turner (1992) 7 Cal.App.4th 913, 917.) A denial of a Marsden motion is reviewed under an abuse of discretion standard. (People v. Barnett (1998) 17 Cal.4th 1044, 1085.) "Denial 'is not an abuse of discretion unless the defendant has shown that a failure to replace the appointed attorney would "substantially impair" the defendant's right to assistance of counsel. [Citations.]' " (Ibid.)
In a dependency proceeding, the parents have a statutory and a due process right to competent counsel. (§ 317.5; In re Meranda P. (1997) 56 Cal.App.4th 1143, 1153 & fn. 6.) Juvenile courts, relying on the Marsden model, have permitted parents to air their complaints about current counsel and request appointment of new counsel. When counsel is appointed, the parents must have a mechanism for challenging the representation when they perceive inadequacy or the right to counsel is meaningless. (In re James S. (1991) 227 Cal.App.3d 930, 935, fn. 13.) An exhaustive Marsden hearing is not required in a dependency action; it is only necessary that the juvenile court "make some inquiry into the nature of the complaints against the attorney." (Ibid.)
The court did not abuse its discretion in denying Cassandra's Marsden motion. Cassandra failed to show that her attorney was not providing adequate representation or that she and counsel had " 'become embroiled in such an irreconcilable conflict that ineffective representation is likely to result . . . .' " (People v. Fierro (1991) 1 Cal.4th 173, 204.) Cassandra was unhappy that counsel did not have more time for her, but counsel had brought an appropriate motion and was prepared to go forward with the contested section 366.26 hearing. " ' "[T]he number of times one sees his attorney, and the way in which one relates with his attorney, does not sufficiently establish incompetence." [Citation.]' " (People v. Valdez (2004) 32 Cal.4th 73, 96.) The court did not err in denying appellant's Marsden motion.
To the extent Cassandra argues counsel conceded there had "been a breakdown in communication between myself and my client," we reject the argument. Cassandra has taken counsel's comments out of context. Counsel submitted the matter to the court and then asked that if the court ordered her removal, the court find there had been a breakdown in communication.
II. Denial of Continuance Request
Cassandra contends the court abused its discretion by denying her request for a continuance of the section 387 hearing until the Georgia ICPC home study for the paternal great-aunt was received. The contention is without merit.
Under section 352, the juvenile court may grant a continuance of any hearing only on a showing of good cause and only if the continuance is not contrary to a child's best interests. In considering the child's interests, "the court shall give substantial weight to a [child'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." (§ 352, subd. (a); In re Ninfa S. (1998) 62 Cal.App.4th 808, 810.) Continuances in juvenile cases are discouraged. (Jeff M. v. Superior Court (1997) 56 Cal.App.4th 1238, 1242.) We reverse an order denying a continuance only on a showing of an abuse of discretion. (In re Gerald J. (1991) 1 Cal.App.4th 1180, 1187.)
There was no abuse of discretion. These dependency proceedings began in December 2004, when E. and Hannah were taken into protective custody. The section 387 petition was filed on January 29, 2007, after the children had lived almost two years in a physically and emotionally abusive placement. The court had received a positive ICPC home study for the paternal great-grandparents; hence, the denial of the continuance for the great-aunt's ICPC home study did not leave the court without the option to place the children with a relative. Cassandra's continuance motion was made on the first day of a trial that already had been delayed several times; almost five months had passed since the filing of the section 387 petition.
Noting that E. and Hannah were entitled to have their placement resolved, the court denied the continuance request "without prejudice." The court said if the evidence at the trial showed there was a "reasonable probability of placement with relatives," the continuance motion for the Georgia ICPC could be renewed.
Cassandra's reliance on In re Michael R. (1992) 5 Cal.App.4th 687 is misplaced. In that case, we reversed because the lower court erroneously determined it lacked the discretion to grant a continuance. (Id. at pp. 694, 695-696.) Here, the court knew it had the discretion to grant the continuance request, but did not find good cause to grant it.
III. Disposition Finding at Section 387 Hearing
Cassandra and David contend the court erred by placing E. and Hannah with the nonrelative extended family member at the conclusion of the section 387 hearing rather than placing the children with a relative. Their contentions are without merit.
Section 387Once dependency jurisdiction is established, section 387 allows the juvenile court to remove a child from the physical custody of a parent, guardian, relative or friend, and order foster placement after the social services agency files a supplemental petition. (§ 387, subds. (a) & (b).) The petition "shall contain a concise statement of facts sufficient to support the conclusion that the previous disposition has not been effective in the rehabilitation or protection of the child or, in the case of a placement with a relative, sufficient to show that the placement is not appropriate in view of the criteria in Section 361.3." (§ 387, subd. (b).)
Section 361.3 provides that if a child cannot remain or be placed with either parent, preferential consideration must be given to specific relatives seeking placement. (§ 361.3, subds. (a), (c)(2).)
Under section 387, the court conducts a bifurcated hearing to determine the truth of the factual allegations of the petition as well as the allegation that the previous disposition has not been effective in rehabilitating or protecting the child. (In re Javier G. (2005) 130 Cal.App.4th 1195.) If both allegations are found to be true, the court then determines whether removal is required at a disposition hearing. (In re Miguel E. (2004) 120 Cal.App.4th 521, 524; In re Jonique W. (1994) 26 Cal.App.4th 685, 691.)
On appeal, "we are limited to whether the order is supported by substantial evidence. We view the record in the light most favorable to the order and decide if the evidence is reasonable, credible and of solid value." (Kimberly R. v. Superior Court (2002) 96 Cal.App.4th 1067, 1078.) "[W]e note that issues of fact and credibility are the province of the trial court." (In re Heather A. (1996) 52 Cal.App.4th 183, 193.)
The factual allegations of the supplemental petitions─that the paternal grandfather and step-grandmother continued to use corporal punishment for discipline despite instructions to use other discipline methods and the children were afraid of them─were not in dispute.
Further, given E.'s and Hannah's extensive emotional and behavioral problems and their fear of the paternal grandfather and stepgrandmother, there was substantial evidence that the previous disposition had not been effective in protecting the children. Removal was necessary because the paternal grandfather's home was no longer an appropriate placement for them.
Cassandra misses the point with her argument that there was insufficient evidence that the children could not remain at a relative level of placement and the more restrictive level of foster care placement was needed. The issue before the court was not the level of placement; rather the trial was about (1) whether removal of the children from the paternal grandfather's home and placement was necessary, and (2) if so, where the children should be placed in light of section 361.3.
At issue is whether in light of the statutory preference for placing dependent children with relatives in section 361.3, the court erred in placing the children with the NREFM rather than with a relative.
Relatives who request placement of a dependent child are given preferential consideration. (§ 361.3, subd. (a).) " 'Preferential consideration' means that the relative seeking placement shall be the first placement to be considered and investigated." (§ 361.3, subd. (c)(1).) Preferential consideration "does not create an evidentiary presumption in favor of a relative, but merely places the relative at the head of the line when the court is determining which placement is in the child's best interests." (In re Sarah S. (1996) 43 Cal.App.4th 274, 286.)
In determining whether to place the child with the requesting relative, the court and social worker consider the factors enumerated in section 361.3, subdivision (a).
Those factors are: "(1) The best interest of the child, including special physical, psychological, educational, medical, or emotional needs. [¶] (2) The wishes of the parent, the relative, and child, if appropriate. [¶] (3) The provisions of Part 6 (commencing with Section 7950) of Division 12 of the Family Code regarding relative placement. [¶] (4) Placement of siblings and half-siblings in the same home, if that placement is found to be in the best interest of each of the children as provided in Section 16002. [¶] (5) The good moral character of the relative and any other adult living in the home, including whether any individual residing in the home has a prior history of violent criminal acts or has been responsible for acts of child abuse or neglect. [¶] (6) The nature and duration of the relationship between the child and the relative, and the relative's desire to care for, and to provide legal permanency for, the child if reunification is unsuccessful. [¶] (7) The ability of the relative to do the following: [¶] (A) Provide a safe, secure, and stable environment for the child. [¶] (B) Exercise proper and effective care and control of the child. [¶] (C) Provide a home and the necessities of life for the child. [¶] (D) Protect the child from his or her parents. [¶] (E) Facilitate court-ordered reunification efforts with the parents. [¶] (F) Facilitate visitation with the child's other relatives. [¶] (G) Facilitate implementation of all elements of the case plan. [¶] (H) Provide legal permanence for the child if reunification fails. [¶] . . . [¶] (I) Arrange for appropriate and safe child care, as necessary. [¶] (8) The safety of the relative's home. . . ." (§ 361.3, subd. (a).)
We review a juvenile court's custody placement orders under the abuse of discretion standard of review; the court is given wide discretion and its determination will not be disturbed absent a manifest showing of abuse. (In re Sabrina H. (2007) 149 Cal.App.4th 1403, 1420-1421.) " 'Broad deference must be shown to the trial judge. The reviewing court should interfere only " 'if we find that under all the evidence, viewed most favorably in support of the trial court's action, no judge could reasonably have made the order that he did.' " ' " (Id. at p. 1421.)
From our review of the record, we are persuaded that the juvenile court's decision placing the children with the NREFM rather than the interested relatives was well within its discretion. "Balancing the benefits of maintaining extended family relationships against the best interests of the child is a critical element in the placement decision. (§ 361.3, subd. (a)(1)-(8).)" (Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 864.) The linchpin of a section 361.3 analysis is whether placement with a relative is in the best interests of the minor. (In re Stephanie M. (1994) 7 Cal.4th 295, 321.) "[T]he court is not to presume that a child should be placed with a relative, but is to determine whether such a placement is appropriate, taking into account the suitability of the relative's home and the best interest of the child. [Citation.]" (Ibid.)
Moreover, an important factor for the court to consider is the nature and duration of the relationship between the child and the relative. (§ 361.3, subd. (a)(6).) E. and Hannah had met the paternal great-grandparents only three times; the first time was when Hannah was born. The children said they did not remember the great-grandparents and did not want to live with them. On the other hand, E. and Hannah very much wanted to remain with the NREFM, who wanted to adopt them and in whose home the children had thrived. All the professionals who had reviewed the case believed the children should remain with the foster parents. Even when the relative preference applies, "the fundamental duty of the court is to assure the best interests of the child, whose bond with a foster parent may require that placement with a relative be rejected." (In re Stephanie M., supra, 7 Cal.4th at p. 321.)
Under these circumstances, we cannot say the court abused its discretion in placing E. and Hannah with the foster parents and denying the great-grandparents' request to have the children placed with them.
We are not persuaded otherwise by the parents' arguments. The parents argue that Agency was not diligent in locating relatives to consider for placement. To the contrary, before E. and Hannah were removed, Agency met with the paternal grandfather and contacted the maternal grandmother in part to learn about relatives who might want to be considered for placement. These relatives did not offer any suggestions. However, both the paternal grandfather and maternal grandmother agreed that it was best for the children to remain in their school, which had been providing them with services and support. When the name of relatives who wanted to be considered surfaced later, none of them were California residents and therefore required ICPC evaluations. Agency submitted requests for three ICPC evaluations. The juvenile court specifically found Agency was diligent. Substantial evidence supports this finding.
We reject the notion that Agency was biased in favor of the foster parents as a placement choice. The children were detained with the foster parents because of the emergency nature of the removal, no relatives were identified at the team decision meeting, and the consensus was that the children should remain in the same school.
Also unpersuasive is the argument that the court did not consider all the criteria set forth in section 361.3, subdivision (a) because it specifically referred to only four of the criteria. The court's reference to only four of the criteria does not mean it did not consider the other criteria. We are satisfied the court carefully balanced the relevant criteria of section 361.3, subdivision (a) in determining that placing E. and Hannah with the NREFM rather than the paternal great-grandfather was in the children's best interests.
IV. Beneficial Parent-Child Relationship Exception to Adoption
Cassandra contends the court erred by not applying the beneficial parent-child relationship exception to adoption (§ 366.26, subd. (c)(1)(A)). The contention is without merit.
Adoption is the permanent plan preferred by the Legislature. (In re Derek W. (1999) 73 Cal.App.4th 823, 826.) At the selection and implementation hearing, the court must terminate parental rights if the child is likely to be adopted within a reasonable time unless one of the six statutory exceptions applies. (§ 366.26, subd. (c)(1)(A)-(F).) The parent bears the burden to establish by a preponderance of the evidence that an exception to the statutory preference for adoption applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345.)
Section 366.26, subdivision (c)(1)(A) provides that once the court finds the child is likely to be adopted, the court shall not terminate parental rights if it finds termination would be detrimental to the child because "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (Italics added.) The exception applies only if both prongs are met.
On appeal, we review the juvenile court's findings for substantial evidence; we do not reweigh the evidence and substitute our judgment for that of the juvenile court. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) The judgment will be upheld if supported by substantial evidence, "even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence." (Ibid.)
To a large extent, Cassandra's efforts to maintain regular visitation and telephone contact throughout the dependency proceedings were thwarted by the lack of cooperation from the paternal grandfather and his wife, and by her incarceration. We need not determine whether Cassandra maintained regular visitation and contact within the meaning of section 366.26, subdivision (c)(1)(A) because, even assuming she did, she has failed to demonstrate that E. and Hannah would benefit from continuing their relationship with her to such an extent as to outweigh the benefits of a stable and secure adoptive home.
In In re Autumn H. (1994) 27 Cal.App.4th 567, 575, this court explained that to come within the beneficial relationship exception to adoption, a parent must show the "relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents." (Italics added.) "To meet the burden of proof, the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits." (In re Dakota H., supra, 132 Cal.App.4th at p. 229.) "To overcome the preference for adoption and avoid termination of the natural parent's rights, the parent must show that severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed." (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) "A biological parent who has failed to reunify with an adoptable child may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent." (Ibid.)
The juvenile court must balance "the strength and quality of the . . . parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) In balancing these interests, relevant factors include the "age of the child, the portion of the child's life spent in the parent's custody, the 'positive' or 'negative' effect of interaction between parent and child, and the child's particular needs . . . ." (Id. at p. 576.) We affirmed this balancing test, explaining that the standard "reflects the legislative intent that adoption should be ordered unless exceptional circumstances exist . . . ." (In re Casey D. (1999) 70 Cal.App.4th 38, 51, italics added.)
Substantial evidence supported the court's finding that the benefits of continuing the relationship between Cassandra and the children were outweighed by the benefits and stability the children would gain from permanent adoptive homes.
Cassandra exposed E. and Hannah to a drug and crime lifestyle. The children were homeless, hungry and unsuitably dressed for cold weather when they were taken into protective custody in December 2004. Cassandra was under the influence of methamphetamine. By the time of the contested section 366.26 hearing, E. and Hannah had been in the dependency system for two and one-half years. For almost two of those years, the children were placed with their paternal grandfather and his wife, whose domineering control and disciplinary methods left the children physically and emotionally abused. Once E. and Hannah were placed with the NREFM, the children's behavior at home and at school improved, they performed better at school and their anxiety and distress eased tremendously. The children's therapist and the psychologist who evaluated them opined that E. and Hannah were bonded with the NREFM and her husband; both recommended the children be adopted by the couple.
Significantly, E. and Hannah repeatedly made it clear they wanted to be adopted by the NREFM and her husband. Moreover, when the children had the opportunity to have contact with Cassandra, they often declined. On other occasions when they did have contact with Cassandra, they exhibited negative behavior afterward.
The evidence showed E.'s and Hannah's need for permanence and stability through adoption outweighed any interest in preserving their parental ties to Cassandra. Where, as here, the biological parent does not fulfill the parental role, "the child should be given every opportunity to bond with an individual who will assume the role of a parent. . . . To hold otherwise would deprive children of the protection that the Legislature seeks to provide." (In re Brittany C. (1999) 76 Cal.App.4th 847, 854.)
Substantial evidence supported the court's finding that section 366.26, subdivision (c)(1)(A) did not apply. There was no error.
DISPOSITION
Judgments affirmed.
WE CONCUR: NARES, J., HALLER, J.