Opinion
NOT TO BE PUBLISHED
Before Harris, A.P.J., Gomes, J., and Dawson, J.
APPEAL from a judgment of the Superior Court of Madera County. Nos. BJP015705, BJP015706, BJP015707, BJP015708 Nancy C. Staggs, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Janet G. Sherwood, under appointment by the Court of Appeal, for Defendant and Appellant.
David A. Prentice, County Counsel, and Miranda P. Neal, Deputy County Counsel, for Plaintiff and Respondent.
Yolanda A. appeals from May 2007 orders denying her effort to regain custody of her four sons, ranging from six to two years of age, as well as July 2007 orders terminating her parental rights (Welf. & Inst. Code, § 366.26) to them. She contends, on a number of grounds, that the court should have either returned the children to her care or stopped short of terminating her rights by selecting a permanent plan other than adoption. On review, we will affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
Respondent Madera County Department of Social Services/Child Welfare Services formerly Madera County Department of Public Welfare (department) initiated dependency proceedings in July 2005 after appellant and newborn I. tested positive for methamphetamine. The department detained I., along with his brothers, then four-year-old F., two-year-old A., and 17-month-old S., and placed them in foster care.
Thereafter, the juvenile court sustained allegations the parents’ drug abuse placed the boys at risk of serious harm, formally removed them from their parents’ care, and ordered appropriate reunification services for both parents. However, the parents continued to use drugs. In addition, the father disappeared after arrests for domestic violence and drug possession. Consequently, at a contested six-month review hearing in March 2006, the juvenile court terminated reunification services, having found the children constituted a sibling group, and set a section 366.26 hearing to select and implement permanent plans for the children.
Appellant initiated extraordinary writ proceedings from the juvenile court’s setting order, claiming she did not receive reasonable services and the court erred in terminating her services after six months. This court upheld the juvenile court’s reasonable services finding but granted relief on other grounds. (Yolanda A. v. Superior Court;F049929.) In April 2006, while those writ proceedings were pending, appellant relocated to the state of Washington and entered outpatient drug treatment.
Upon receipt of this court’s opinion, the juvenile court conducted a hearing in June 2006 and reinstated reunification services for appellant. Appellant’s new reunification plan required her, in part, to demonstrate an ability to remain drug free. To that end, the plan allowed her to continue drug treatment in Washington. It further provided for visitation twice a month and the transportation appellant would need.
Appellant remained in Washington until August 2006. During that time, she tested positive for marijuana and was terminated from two drug treatment programs for noncompliance. She also declined visitation with her children, even once when she was in Madera for a court appearance.
In mid-August 2006, appellant returned to Madera. That same month, she tested positive for methamphetamine and entered her third treatment program. Though her drug screens after August were negative, her attendance at individual therapy and group sessions was marginal. She did not make progress in her recovery and was suspected of falsifying her attendance at NA meetings. In November 2006, appellant entered her fourth drug treatment program.
By the next status review of appellant’s new service plan, she began to show signs of progress. She had leased an apartment, completed domestic violence counseling, nearly completed her parenting class, and regularly visited the children following her return to Madera. However, in the department’s opinion, she had not demonstrated an ability to remain drug free. In addition, all four children were placed together with foster parents who wanted to adopt them. Consequently, the department recommended the court terminate reunification services and proceed to permanency planning.
Following a January 2007 contested review hearing, the court found appellant received reasonable services but failed to make significant progress in completing her reunification plan. Consequently, the court terminated reunification services in January 2007 and set the section 366.26 hearing. Appellant once again challenged the court’s setting order by writ petition. This court concluded her arguments were unavailing and denied her petition. (Yolanda A. v. Superior Court; F052094.) Notably, we determined:
“there is no evidence the best interests of petitioner’s children would be best served by continuing reunification beyond 18 months. After 18 months of reunification, petitioner had only begun her recovery process. Meanwhile, her children were placed together in an adoptive home to which they were adjusting well.”
Appellant’s Section 388 Request for Return of Custody
Nevertheless, in March 2007, appellant petitioned the trial court (§ 388) to vacate its setting order and return the children to her custody subject to family maintenance services. She alleged her circumstances had changed because she was scheduled to complete her outpatient treatment program in the end of March. Attached to her request was a letter from the outpatient treatment supervisor which characterized appellant as in compliance with all that was required of her while in treatment. Upon completion of the program, appellant would be ready to move on to the “Termination Phase.” In that phase, according to the letter, she would intensively work on her recovery by developing a relapse prevention plan as well as a recovery plan.
Appellant also alleged she had stable housing in the form of a three-bedroom apartment she shared with her 18-year-old sister and her sister’s 1-year-old child. Appellant further claimed an order returning custody would be better for her children because they were bonded to her and would suffer lasting psychological harm if the relationship were terminated. She also alleged her renewed contact with her eldest son had significantly improved his mental health.
Although the court set the request for hearing in early April, the parties were not ready to proceed until May 30, 2007. Appellant’s delivery of a fifth child led to one of the continuances. This resulted in a continuance of the section 366.26 hearing as well.
March 2006 Adoption Assessment
Meanwhile, in late March, an adoption specialist with the California Department of Social Services (CDSS) prepared a “366.26 WIC Report” (CDSS report) which assessed the children as adoptable and recommended that the court terminate parental rights. The children’s foster parents wished to adopt them. The three older children had been in the home since the end of September 2006. Their youngest brother, I., joined them approximately a month later. The children had adjusted well to the family and the home environment.
To evaluate the children, CDSS staff conducted a joint review with the department. The CDSS adoption specialist also held adoption assessment interviews with the children and the caregiver, observed the children in three separate settings, and reviewed available records concerning the children’s medical, psychological, and scholastic background.
The CDSS report described the eldest child, F. as a healthy six-and-a-half-year-old, Hispanic child. He was an energetic child who enjoyed playing with his brothers. He was sometimes shy around strangers but was friendly after he gained trust. He reportedly ate well and usually slept through the night, though he had a history of night terrors. His current caregiver could comfort him during times of stress. F. also had been opening up emotionally with her. He often smiled and would hold a long conversation with his foster mother. He also appeared to be developmentally on target and was doing very well in school. When the adoption specialist observed him, F. was happy, engaged in games and was involved in arts and crafts. He followed commands and assisted his younger brothers.
The CDSS report further disclosed F. had been seeing a therapist since early 2006. In a November 2006 update, the therapist described F. as an emotionally fragile child who needed a great deal of support in the coming years. A month later, the therapist stated F. recently had been very talkative, doing the best he had seen him and was a very bright child. According to a March 2007 update, the therapist reported his current working diagnosis for F. was oppositional defiant disorder. The update also noted recent, multiple improvements on F.’s part. “‘He is no longer withdrawn or depress[ed]. He no longer cries for long periods of time for no obvious reason. . . . His major depressive symptoms have significantly been reduced.’”
At the time of the CDSS report, F. appeared mentally and emotionally stable. His prior disruptive behaviors such as night terrors, wandering, hoarding, stealing, and lying appeared to be lessening in his current placement. He had bonded well with his foster parents. His foster mother had arranged special time to spend with F. to allow one-on-one interaction and nurturing.
The CDSS report next discussed A. He was a healthy, active, four-year-old, Hispanic child. He appeared to be developmentally on target. He had a large vocabulary and a creative imagination. The adoption specialist observed A. to be a happy, playful child. He enjoyed playing with his brothers; occasionally he was physically aggressive with them. He was too young to be enrolled in kindergarten but his foster mother had enrolled him in the Head Start preschool program to expose him to his peers and develop his English language skills. He reportedly enjoyed it. His foster mother also supplied him with interaction that contributed to early learning of vocabulary and motor skills. He had developed appropriate relationships with his foster family and was reportedly affectionate with his foster mother.
Moving on to the third child, S., the CDSS report described him as a healthy, active, three-year-old, Hispanic child. He appeared to be progressing developmentally. He could use the bathroom unassisted and feed himself. The adoption specialist observed that S. enjoyed playing with his siblings and spoke in Spanish. He had learned to play well especially with his younger brother I. S. did have a history of waking up crying twice a week. However, his foster mother could soothe him until he returned to sleep. Other than his sleeping pattern, S. appeared comfortable in his current home environment and secure in the presence of his foster family.
Last, the CDSS report described I. He was a healthy, happy, active, one-and-a-half-year-old, Hispanic child. Other than his prenatal exposure to methamphetamine and a history of mild anemia, the report noted no medical concerns. He appeared to be progressing developmentally. The adoption specialist observed him walk and run without assistance as well as feed himself with his fingers.
On the other hand, she also observed that I. rarely used words to communicate. He appeared to understand language and responded to commands in both English and Spanish. However, he babbled, grunted or gestured to communicate. Social workers reportedly had assessed and addressed the language development issue. His social worker and caregiver reported to the adoption specialist that his speech was developing and he was talking quite a bit more. He appeared to be a child of average intelligence without any major cognitive deficits.
During her observation of I., the adoption specialist noted he enjoyed attention from his brothers and had learned to play well with his brother, S. According to a January 2007 foster family agency report, I. had bonded with his foster family and siblings. He enjoyed being held and receiving attention from his foster family. He constantly smiled and seemed happy. He clearly felt comfortable in the foster home and trusted his foster mother.
The CDSS report also described the children’s placement history. The three eldest children had always resided together although this was their fourth placement. The first placement lasted only a week; the children frequently cried causing the foster parents to request their removal. The next placement ended for “lack of capacity” after S. turned two. Their third placement terminated when first, questions arose about the care the children received and later, their current placement became available. I. meanwhile had been in the same foster home for roughly 15 months following his birth. He was moved from that placement to the current foster home in order to be reunified with his brothers.
The meaning of “lack of capacity” is unclear from this portion of the record.
Under a heading, “Analysis of the Likelihood of Adoption and Proposed Permanent Plan,” the CDSS report stated:
“The sibling group of F[.], A[.], S[.], D[.], and I[.] will be seven, four, three, and years-old this year respectively. The three older children were originally placed with their prospective adoptive parents on September 28, 2006, with their youngest brother joining them on November 1, 2006. Warm and nurturing relationships have developed and appear to be meeting the needs of the children. The children appear to have established strong bonds with both of these current caregivers and would clearly benefit from the establishment of permanent placement through adoption.”
Having identified the foster parents as the children’s prospective adoptive parents, the CDSS reported it was in the process of completing the couple’s adoption home study. In the meantime, the CDSS preliminary assessment of the couple was favorable. Relevant to one of appellant’s arguments in this appeal, the assessment noted the following. Each of the foster parents had a six grade education. They had 21-year-old twin sons who lived in the home and attended college nearby. The couple was currently certified by Golden State Family Services. They admitted to no criminal record or child abuse history. They had no Child Welfare Service referral history.
The CDSS preliminary assessment also described the couple as very family-oriented and experienced parents, as they had successfully parented their own children to adulthood. The couple had decided to adopt the boys and their adult children were reportedly supportive of their parents’ decision.
Based on the adoption specialist’s observation, the children appeared to listen to the prospective adoptive mother and go to her to seek comfort and reassurance. The children appeared excited when their prospective adoptive father came home from work. S. and A. ran to him, saying “Papa” and shared hugs with him. The adult sons appeared to get along very well with the children.
In the adoption specialist’s view, the prospective adoptive parents demonstrated a clear capability to meet the children’s needs. The couple provided excellent care and the children appeared to be healthy and happy in their home. According to the department’s social worker, “‘[o]verall, the home seems perfect for these boys. Ms. [L. (the foster mother)] has a lot of patience with [the children’s] energy and individual issues.’” She consistently attended monthly trainings offered through her foster family agency as well as expressed appropriate concern for understanding the children’s needs. She also demonstrated an ability to access necessary resources.
May 30, 2007 Hearing on Appellant’s Section 388 Request
At the May 30th hearing on appellant’s request to vacate the setting order, the parties, at county counsel’s suggestion, agreed the court could consider the CDSS report on the issue of the mother’s request as well as for permanency planning purposes. The court then heard testimony from a number of witnesses.
Appellant’s Testimony
Appellant was the first witness called. She testified she was living with “just me and my sister.” When asked “[t]here’s no other adults or children residing there?” appellant added first her sister’s son and then her own newborn baby whom she described as healthy. Later on cross-examination, she admitted her boyfriend also lived with her. Thus, if the court returned the boys to her care, there would be nine people, three adults and six children, living together. Asked if she intended to stay in Madera, appellant replied to the effect that she was thinking of moving back to Washington.
Appellant also testified she was in the third phase of her substance abuse recovery. According to appellant, the purpose of the third phase was to learn how to live without counseling “like every day.” Initially, she testified she did random drug tests approximately four times a month. However, on cross-examination, she testified she was tested at the same time she came in for her weekly and regularly scheduled drug counseling session. Her last positive test was in August 2006. In appellant’s view, she had learned her lesson and knew she would not relapse.
Appellant further described her weekly visits with her sons. During the visits, she did homework with six-year-old F. and colored with four-year-old A. According to appellant, F. is “really anxious to get his homework done” and complains “they don’t help him at home.” With her two younger sons, S. and I., she plays with toys that the visitation center has. All four children seemed happy and excited to see her. In her opinion, the boys are “still bonded” with her. At the end of their visits, only A. cries. Meanwhile, F. asks her if she will come the following week. S. and I. are “okay.”
As appellant’s testimony concluded, her counsel offered into evidence the March 2007 letter from the substance abuse program supervisor which had been attached to appellant’s request. Appellant was not aware of any more recent correspondence regarding her participation or progress. The court admitted the March 2007 letter into evidence, but twice observed the letter was two months old and it (the court) did not know what had been happening within the last 60 days. Nonetheless, appellant’s trial counsel did not offer any such evidence over the balance of the hearing.
Bonding and Attachment Assessment
Next, appellant’s trial counsel called a licensed mental health clinician, Julia Garcia, to the stand. Garcia had approximately ten years’ experience in the area of attachment bonding between children and their parents. Appellant’s substance abuse therapist had called on Garcia to assess appellant and her sons. Garcia conducted the evaluation in late April 2007 over the space of one hour. Her evaluation looked both at bonding, which she described as the process of what the caregiver does or “the parent’s participation,” and attachment, which is what the child does in that reciprocal relationship or “the child’s participation.”
In her report which the court later admitted into evidence, Garcia described the assessment exercise she used to rate appellant’s and her children’s interaction.
“The “‘Parent-Child Early Relational Assessment; Rating Exercise’” ® was used as the tool in which Ms. A[.] and her child’s interaction was rated. The Parent Variable uses 7 indicators to assess the parent; Expressed Positive Affect; Enthusiastic, Animated and Cheerful Mood; Amount of Verbalization; Quality of Verbalizations; Mirroring and Connectedness. Each in turn is rated on a scale of 1-6, with #6 always being N/R (not rated). The Child Variable uses 4 indicators; Sober/serious Mood; Alertness/Interest; Assertion/Aggressivity and Communications Competence. Each is also rated on a scale of 1-6 with 6 being N/R. Along with these two variables there is also 3 Dyadic Variables rate; Flat, Empty. Constructed; Joint Attention Activity and Reciprocity and these also use the 1-6 scale for rating. The highest rating a parent can achieve is 35 with the highest for a child being 20 and the highest for the Dyadic relationship is 15.”
In the case of appellant and F., appellant scored 24 out of 35 which meant for the most part she was quite attuned to him. She could read his cues and appropriately respond to them. F. on the other hand scored very low or 7 out of 20. Garcia read into F.’s low score some anxiety. She observed that he was anxious about homework that he apparently claimed needed to get done. He showed some resistance to appellant which Garcia attributed to his anxiety.
In her April report, Garcia went into additional detail on this point.
“F[.] display[ed] some anxiety around his homework, insisting that mother complete it for him. This anxiety caused his rating score to be affected as evidenced of very low ‘Sober/Serious Mood’ rating (2), he also scored 1 on ‘Alertness/Interest’ due to his focus on mother doing his homework for him. The variable ‘Assertion/Aggressivity’ also was rated as low (2) due to his whiney, disruptive manner in which he attempted to gain her attention, ‘Communication Competence’ was rated also low (2) due to his whiney behavior (more than 5 times during visit). In the Dyadic Variable Section of this assessment, mother demonstrated good strengths despite some constriction from F[.] regarding his engagement towards mother (4), mother showed considerable reciprocity (4) with F[.] as she encouraged him to work towards completion of his homework on his own.”
Asked if it would be detrimental to F. for the relationship between appellant and him to be terminated, Garcia testified it would be detrimental simply because he looked to her quite significantly to calm him, so he sought her out and he responded to that. Appellant’s score reflected that she could meet his needs. If F. did not think she was significant in his life, he would not have sought her out. So, Garcia concluded, it would be detrimental to F. for their relationship to end unless someone else was meeting that need for him.
Garcia acknowledged she had no information regarding the history of this case, the foster care placement or any treatment F. was receiving. She had only been asked to “do this observation.”
With regard to her sons, A. and S., appellant scored “significantly high.” She responded to their cues. The two boys scored within the medium range so far as their response to appellant. In other words, they sought her out, they responded to her and she to them. At one point, A. had what Garcia described as a “meltdown” and appellant responded absolutely perfectly to his meltdown.
Garcia was unable to rate the youngest son, I. I. who was approximately 22 months old at the time showed a significant lack of developmental engagement with either his brothers or appellant. In addition, Garcia did not observe I. to have any expressive language or to demonstrate any play. Once again, Garcia was unaware of the child’s history. She nonetheless speculated there could be some trauma-based issues in I.’s first year of development. If he had experienced a change in placement, it would significantly factor in as to why he neither responded to his siblings or appellant.
Asked by appellant’s counsel, whether termination of parental rights would be detrimental to F., A., and S. in terms of attachment bonding, Garcia replied, “I might say that based on what I evaluated for that day.” In her written report, Garcia did not address the issue of detriment. Instead, she limited her finding regarding the relationship between appellant and the children to the following:
“The overall interaction between Ms. A[.] with her children was observed to be without significant concern. She spoke both English and Spanish to each of her children and they responded in kind to her (except I[.]). There appeared to be a significant display of mutual engagement, shared interests, simple imitation, and attuned exchanges from Ms. A[.] and her children (again except I[.]). While any one individual would have some minor difficulty with four children together in a small room and be expected to engage as if this would be a neuro-typical interaction, Ms. A[.] did demonstrate, to the best of her ability, to make this work, despite the confines of the room and the environment of the overall visit. She was appropriate in setting limits when she needed to and able to demonstrate kind and nurturing comfort as well.”
The children’s attorney cross-examined Garcia on whether the detriment she predicted would be short or long-term. Garcia replied time would only tell and it would depend on what services the children received if parental rights were terminated. She recommended “some kind of mental health treatment with the [] care provider” based on the scores she had assigned to appellant’s and the children’s interaction.
On cross-examination by county counsel, Garcia testified she was only asked to assess whether appellant was bonded to her children and were they attached to her. Having observed them, she “would say that overall the three [older] children are attached to Ms. [A.].” Garcia agreed that meant the three older children had the ability to attach and could attach to some other figure. She had not observed the children and their attachment in their current placement.
Department Social Worker’s Testimony
The last witness called by appellant’s counsel was the current social worker. She had been assigned the case apparently from the time the court issued its setting order. Counsel sought to question the social worker about F.’s mental health treatment. Counsel later claimed she had been unsuccessful in subpoenaing the child’s therapist. However, the social worker did not have her file with her and could not supply specific answers to some of counsel’s inquiries.
The social worker did recall from what she had learned that before F. entered treatment, he was experiencing behavioral problems, including night terrors, crying for extended periods of time for no apparent reason, bed wetting, and food hoarding. F. remained in treatment as of that date and had weekly visits with his therapist. She had requested, received, and reviewed an update from the therapist in March 2007. From what she had learned, F. seemed to be doing much better.
Appellant’s counsel also inquired whether the social worker had the opportunity to observe any visits between appellant and her children. The social worker attended one visit shortly after she was assigned the case in order to become acquainted with appellant and the children. Asked how the visit went, the social worker replied the children appeared to be a “handful.” They were four very young children, difficult to control, and seemed to be whiny in an effort to get appellant’s attention. This was particularly so in the case of F. with regards to his homework. The social worker did not witness any particular bonding activities. Most of the time the children were preoccupied with eating snacks appellant provided. They did not appear sad when the visit concluded.
On cross-examination, county counsel inquired further into the updated information the social worker had received from F.’s therapist. The social worker testified that the therapist’s working diagnosis for F. was oppositional defiant disorder. While there had been issues with his behaviors at school and home regarding his responses to directives, those behaviors or symptoms had lessened or improved in the time since she had the case. From what the witness had learned from the therapist, F. appeared to be stabilizing.
County counsel also asked about her and the department’s opposition to appellant’s section 388 petition. She disagreed with appellant’s effort to regain custody based on everything she read and worked on in the file. Also, in the time since her assignment to the case, she had seen all four boys become acclimated to their placement and interact with their foster mother. The witness observed the children to be very comfortable and very affectionate with the foster mother. The social worker had seen the children become very attached. In her view, they were doing “tremendously well” and were “very stable.” They seemed to be thriving in the foster home. She believed it was in the children’s best interests to remain in their current placement.
On cross-examination by the children’s counsel, the social worker testified she did not doubt appellant cared a great deal for the children and loved them. Nevertheless, she had the following concerns about placing the children with appellant: (1) removing them from another home where they have become bonded to a primary care figure; (2) unknowns regarding the stability of appellant’s living situation; and (3) would she be able to care for four very young boys as well as the baby she had just had.
Foster Mother’s Testimony
The last witness to take the stand was the foster mother, Victoria L., who testified through a Spanish language interpreter. When asked about how F. was doing in the last month, Victoria L. replied he was behaving very well at home and doing very well at school. She added in the last month he was able to sleep through the night. As for I., the foster mother had no concerns about his ability to interact with his siblings. They played very well together and loved one another. On the other hand, she was concerned that I. did not talk; according to her, he only said four words.
On cross-examination, Victoria L. testified she speaks “a little bit of English.” Her husband and the children speak English. Asked if she had sought services for I.’s limited speaking skills, Victoria L. responded she “really [had not] looked for any other ways.” She did talk to him and tried to repeat words to him. She added, “[t]hey’re thinking of providing us service in the house.”
Denial of Section 388 Request
This concluded the evidentiary phase of the section 388 hearing. Following argument in the matter, the court denied appellant’s request. It also continued the section 366.26 hearing and its permanency planning review for a later date. With regard to the status review report to be prepared before the next hearing, the court asked the department to provide a current update on F.’s mental health counseling and report on the plan for I.’s developmental evaluation. Because Garcia had mentioned in her report that S. had a limp the day she met him, the court also wanted to know the cause of the limp.
Status Review Report
Soon thereafter, the department filed its status review report. In it, the department provided the following new information about the boys.
F. continued to see his therapist on a weekly basis. The therapist reported F. “is making great progress, that he is no longer withdrawn or depressed and that he no longer cries for long periods of time for no apparent reason. F[.] no longer wakes up crying from nightmares [and his] hoarding behaviors have improved.”
A. was currently attending a head start program and was reportedly doing well. The department had scheduled a new developmental assessment for him and his younger brothers. A.’s assessment had yet to occur at the time the status review report was written. The foster mother currently was helping him with his vocabulary and fine motor skills on a daily basis.
A recent “Denver II assessment” by a public health nurse showed S. was behind in speech and fine motor skills. As a result, S. had been referred to an early start program and one of the foster parents continued to work with him to improve his speech and motor skills. As for the limp Garcia had noticed in April 2007, the department learned S. was wearing newly purchased sandals then which did not correctly fit and caused a sore spot along with a temporary limp. The public health nurse who performed the developmental assessment in early June did not detect any sign of a limp with S.
Finally, I. was also evaluated through a “Denver II assessment.” The results showed I. was also behind in speech and fine motor skills. A referral was made to the same early start program for I. One of the foster parents continued to work with I. to improve his speech and motor skills.
Section 366.26 Hearing and Order Terminating Parental Rights
On the continued permanency planning review and section 366.26 hearing date in June 2007, it appeared the parties were prepared to argue the matter based on the evidence already before the court until appellant’s trial counsel asked to submit “a few social work notes” she had obtained through discovery. Over county counsel’s objection, the court admitted the notes into evidence. The “few social worker notes” were selected pages from two sets of the department’s delivered services logs regarding the children. The first set, printed in early December 2006, was apparently 178 pages in length. Of those 178 pages, trial counsel had submitted four pages to the court covering contacts which occurred in October 2005, January 2006, and November 2006. The second set, printed in April 2007, was apparently 40 pages in length. Of those 40 pages, trial counsel again submitted four pages to the court, this time covering contacts in mid-December 2006 as well as January through March 2007. In her closing argument, trial counsel claimed that the social worker’s notes noted a strong bond between appellant and F. and urged the court not to terminate parental rights.
Because the court had not had the chance to read the selected social worker’s notes, it continued the matter again for a hearing. Finally, in July 2007, the court found clear and convincing evidence that the children would be adopted and terminated parental rights.
DISCUSSION
I. Section 388 Petition
Appellant contends the court erroneously applied a “simple best interest” test in denying her section 388 request. According to appellant, she had overcome the problems that led to the children’s dependency and was capable of adequately raising her own children. However, the court purportedly gave no consideration to her showing and instead focused on her prior failure to reunify. She also criticizes the court for discounting the evidence of her sons’ positive attachment to her. In her view, the court speculated she lacked the stability to care for the children. Appellant concludes that the trial court deprived her of her due process right to the “‘escape mechanism’” provided by section 388 (In re Marilyn H. (1993) 5 Cal.4th 295, 309) to consider new evidence before parental rights are terminated.
By way of background, any party may petition the court to modify or set aside a prior order on grounds of changed circumstance or new evidence. (§ 388, subd. (a).) The petitioning party, however, must also show the proposed change is in the best interests of the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) Whether the juvenile court should modify a previously made order rests within its discretion and its determination may not be disturbed unless there has been a clear abuse of discretion. (Id. at p. 318.) Having reviewed the record as summarized above, we conclude the court did not abuse its discretion by denying appellant’s section 388 request. Although appellant’s argument is creative, it is not persuasive, as discussed below.
To begin, although appellant’s argument assumes she established a legitimate change of circumstances (In re Marilyn H., supra, 5 Cal.4that p.309), we conclude the court reasonably could have found otherwise. She did complete in late March 2007, at roughly the six-month mark, the intensive phase of her substance abuse treatment. However, there was no evidence regarding how she was doing in the so-called “Termination Phase.” According to the outpatient treatment supervisor’s March 2007 letter, that phase would require appellant to intensively work on her recovery by developing a relapse prevention plan as well as a recovery plan. However, at the May hearing two months later, appellant offered no updated evidence in this regard. At most, there was appellant’s testimony that she continued to drug test with negative results. However, those were hardly random tests, as she tested when she arrived for her weekly counseling session.
In addition, appellant mischaracterizes the trial court’s concerns as improperly focused on her previous failure to reunify. Although the court did refer in its ruling to the 18-month reunification period, appellant distorts that reference. One, it appears the court was struck by how long it took appellant to become concerned about her children and to pursue drug treatment. Almost 23 months had elapsed since the children were detained while her last positive drug test was only nine months ago. We note in this regard the court specifically refrained from finding appellant had been sober in those nine months. The record supported the court in that although appellant testified she continued to randomly drug test with negative results, the tests by her own admission were not random. Two, the court mentioned our prior decision confirming there was no evidence the best interest of the children would be served by continuing services after 18 months. By noting it was now almost 23 months since the children were detained, the court could have reasonably questioned what had changed in the intervening five months such that now the children’s best interests would be served, not by reopening services but by an order returning custody.
In any event, a trial court’s reasoning is not a matter for this court’s review. (Davey v. Southern Pac. Co. (1897) 116 Cal. 325, 329.) It is judicial action and not judicial reasoning which is the proper subject of appellate review. (El Centro Grain Co. v. Bank of Italy Etc. (1932) 123 Cal.App. 564, 567.)
To the extent appellant criticizes the court for speculating about her ability to provide stability for her sons, she overlooks the law. One, it was appellant’s evidentiary burden to persuade the court to grant her the relief she sought. (In re Audrey D. (1979) 100 Cal.App.3d 34, 43.) Two, given the timing of her section 388 petition, it was incumbent on her to show the children’s need for permanency and stability would be advanced by an order returning custody to her. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) The court in this case did not speculate about appellant’s ability to provide stability. Rather, it found she had not shown she could provide her sons with any significant stability, a finding which the record amply supports. Also, the court expressed appropriate concern about appellant’s ability to deal with the demands of her four sons all of whom were under the age of seven, plus her newborn child, along with appellant’s boyfriend, her sister, and the sister’s young son, all under the same roof.
“You know, that is a lot for someone who doesn’t have drug problems, let alone someone who hasn’t even been sober for a year.”
Finally, we regard appellant’s argument over what evidence the court did or did not consider to be little more than an invitation for this court to reweigh her showing. However, the weight to be afforded evidence is an issue solely for the trier of fact. (In re Laura F. (1983) 33 Cal.3d 826, 833; In re Heather P. (1988) 203 Cal.App.3d 1214, 1226-1227.)
II. ICWA
At the outset of this case, the children’s father reported that he believed appellant had Indian heritage. A social worker later interviewed appellant and reported back to the court that “According to [appellant], neither she nor her parents were registered members of an Indian Tribe.” At a July 19, 2005, detention hearing, the court made a finding that the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.; ICWA) did not apply. For the first time, appellant now contends the court’s finding was erroneous and notice pursuant to ICWA should have been served because ICWA does not require registered membership in a tribe for the act to be applicable.
The problem for appellant is that the court’s July 2005 finding eventually became part of the court’s disposition and, as such, was appealable. (§ 395; Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 811-812.) However, she did not appeal from the disposition. Although she twice sought writ relief from the trial court’s orders, even then she did not raise any issue of ICWA compliance.
As a consequence, the court’s 2005 finding has long been final. Thus, the time to raise her ICWA compliance issues has passed. (In re Pedro N. (1995) 35 Cal.App.4th 183, 185 (Pedro N.).) In Pedro N., this court held a parent who fails to timely challenge a juvenile court’s action regarding ICWA is foreclosed from raising ICWA notice issues once the court’s ruling is final in a subsequent appeal. In so ruling, we specifically held we were only addressing the rights of the parent, not those of a tribe.
In her reply brief, appellant attempts to distinguish the Pedro N. facts from those here. We disagree. The salient fact in both Pedro N. and this case is the same, namely a parent failed to timely challenge a juvenile court’s action regarding ICWA.
Also, she argues the law has changed since our Pedro N. decision so as to render our opinion no longer applicable. She cites state statutes incorporating ICWA notice requirements and interpretative California Rules of Court into the code, effective January 2007. (See §§ 224.2, 224.3.) However, neither of these statutes address directly or otherwise the issue of appellate waiver.
Section 224.2, subdivision (b) states:
“Notice shall be sent whenever it is known or there is reason to know that an Indian child is involved, and for every hearing thereafter, including, but not limited to, the hearing at which a final adoption order is to be granted, unless it is determined that the Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.) does not apply to the case in accordance with Section 224.3.”
Subdivision (e) of section 224.3 goes on to describe three different ICWA determinations. First, there can be an Indian tribe’s determination that a child is or is not a member of or eligible for membership in that tribe. (§ 224.3, subd. (e)(1).) Second, in the absence of a contrary determination by the tribe, the Bureau of Indian Affairs may determine whether a child is or is not a member of or eligible for membership in that tribe. (§ 224.3, subd. (e)(2).) Third, a court may determine ICWA does not apply if proper and adequate notice was provided and neither a tribe nor the Bureau of Indian Affairs provided a determinative response within 60 days of receiving that notice. (§ 224.3, subd. (e)(3).)
According to appellant’s reading of these provisions, the trial court should have given notice pursuant to ICWA of the section 366.26 hearing because no ICWA determination had ever been made in accordance with section 224.3, subdivision (e). However, these determinations have as their premise situations in which “it is known or there is reason to know that an Indian child is involved.” (§ 224.2, subd. (b); see also §§ 224.2, subd. (a) & 224.3, subd. (d).) Given the court’s 2005 finding which appellant never challenged and the absence of any new information regarding Indian heritage, we fail to see how it was known or there was reason to know that an Indian child was involved in this dependency so as to trigger the continuing duty of the court to give notice in advance of the 2007 hearing.
III. Adoptability
Next, appellant contends the court erred in finding the children were likely to be adopted. According to appellant, there was no evidence the children were generally adoptable and CDSS’s analysis of the likelihood of their adoption solely relied on their foster parents’ desire to adopt them. Under these circumstances, appellant argues the trial court was foreclosed from making its adoptability finding because there was a legal impediment to their adoption. The legal impediment, in appellant’s view, was the foster family had not even begun the process for an adoption home study and CDSS had not run a criminal records check on the foster parents or their adult children living in the home.
The adoptability issue at a section 366.26 hearing focuses on the dependent child, e.g., whether his or her age, physical condition, and emotional state make it difficult to find a person willing to adopt. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) It is not necessary that the child already be in a potential adoptive home or that there be a proposed adoptive parent “waiting in the wings.” (In re Jennilee T. (1992) 3 Cal.App.4th 212, 223, fn. 11.)
Usually, the fact that a prospective adoptive parent has expressed interest in adopting a dependent child is evidence that the child’s age, physical condition, mental state, and other relevant factors are not likely to dissuade individuals from adopting the child. In other words, a prospective adoptive parent’s willingness to adopt generally indicates the child is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family. (In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.)
Having reviewed the record as summarized above, we disagree with appellant and conclude there was substantial evidence to support the court’s adoptability findings. All of the children were under the age of seven and appeared healthy, active, and happy. They enjoyed one another’s company, were able to form appropriate relationships and did not pose problems in their current placement.
The eldest child, F., who was also described as very bright, was in therapy with a working diagnosis of oppositional defiant disorder. However, his prior behavioral problems had significantly lessened. The second eldest, A., was a playful child with a large vocabulary and a creative imagination. Three-year-old S. did have a history of waking up at night in tears but he could be consoled. He apparently was behind in speech and fine motor skills according to the most recent developmental assessment but he was on the waiting list for an early start program. The youngest child, I. was also behind in speech and fine motor skills. While appellant describes these as serious problems, there was no such evidence before the court.
In addition, the four children had been placed for many months with foster parents who had grown attached to the children and wished to adopt them. We note in this regard appellant’s criticism – that the couple had not even begun the process for an adoption home study – is baseless. As of late March 2007, CDSS was in the process of completing the couple’s adoption home study. Further, appellant’s speculation that the couple or their children might have a criminal history which would foreclose them from adoption is equally meritless. Mr. and Mrs. L. were licensed foster parents. To become licensed, they and their household must undergo a records screening. (Health & Saf. Code, §§ 1520, subds. (b), (c); 1521.5, subd. (a); 1522, subd. (d); 1525.1; see also In re Diana G. (1992) 10 Cal.App.4th 1468, 1481 [proof that prospective adoptive parents were also licensed foster parents could satisfy the requirement for a records screening].) The cases appellant cites to the contrary are factually distinguishable. In Los Angeles Dept. of Children and Family Services v. Superior Court (2005) 126 Cal.App.4th 144, the grandmother with whom the children had been placed had since moved to a different home in which the residents had felony convictions. In In re Hanna S. (2004) 118 Cal.App.4th 1087, the children had never been placed with the relatives who wished to adopt them, but had prior convictions. In Los Angeles Dept. of Children and Family Services v. Superior Court (2001) 87 Cal.App.4th 1161, a court wrongfully placed dependent children in a relative’s home over the department’s objection that the relative’s husband had a considerable criminal record.
Health and Safety Code section 1522 provides that the state licensing agency shall determine whether the foster care license applicant has a criminal history. With limited exception not applicable here, Health and Safety Code section 1522.05 mandates that a criminal record clearance be obtained before placement of a child is made.
Moreover, there was evidence the couple did meet the children’s needs. In this regard, appellant essentially and inappropriately asks us once again to reweigh the evidence before the trial court.
Returning to appellant’s argument over generally adoptable versus specially adoptable children, we frankly do not see the point. The law does not compel a greater showing if a child is adoptable solely because a particular individual wishes to adopt him or her. We recognize that the appellate court in In re Carl R. (2005) 128 Cal.App.4th 1051, 1061, did observe:
“[W]here the child is deemed adoptable based solely on the fact that a particular family is willing to adopt him or her, the trial court must determine whether there is a legal impediment to adoption.”
However, In re Carl R., supra, involved such a unique set of circumstances that it is of little precedential value to this case. As even that court observed, the issue in In re Carl R., supra, was “very narrow – what is the proper scope of the inquiry by the juvenile court in determining the adoptability of a child who will require intensive care for life?” (In re Carl R., supra, 128 Cal.App.4th at p. 1062.) Also, we question the imperative of In re Carl R., supra, -- that is the trial court must determine whether there is a legal impediment -- given its reliance on In re Sarah M., supra, wherein the appellate court stated an inquiry at the trial court level into legal impediments may be made (In re Sarah M., supra, 22 Cal.App.4th at p. 1650). In yet another case, In re Scott M. (1993) 13 Cal.App.4th 839, 844, an appellate court reasoned if a parent sought to introduce evidence of some legal impediment to adoption, such evidence would be relevant when a social worker’s opinion regarding adoptability was based at least in part on the existence of a prospective adoptive parent willing to adopt. Notably, here, appellant did not seek to introduce any evidence of legal impediment.
The child in In re Carl R., supra, suffered severe disabilities such that he would always require total care. Indeed, he had lived for most of his life in a convalescent hospital and, although almost eight years old, had the emotional maturity of an eight-month-old child. (In re Carl R., supra, 22 Cal.App.4th at p. 1058.)
Moreover, California law does not require preapproval of a prospective adoptive family home study in order for the court to find a child adoptable. What the statutory scheme does require in this regard is a preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent. (§ 366.21, subd. (i)(4); § 366.22, subd. (b)(4).) The appellate record contains such a favorable assessment of their eligibility and commitment.
Further, although appellant claims the absence of an approved home study at this stage of the proceedings constitutes a legal impediment to adoption, she fails to cite any persuasive authority. The cases she cites in this regard, In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205 and In re Asia L. (2003) 107 Cal.App.4th 498, 509-510, make no such pronouncement. At most, in In re Asia L., supra, 107 Cal.App.4th at page 512 and In re Jerome D., supra, 84 Cal.App.4th at page 1205, the appellate courts noted there was no evidence of any approved families willing to adopt children, such as those in each case. However, appellant ignores the lack of any holding in either opinion to require such proof as well as the underlying circumstances in each of those cases and their dissimilarity to the present case.
In In re Asia L., supra, 107 Cal.App.4th 498, the dependent children had emotional and behavioral problems serious enough to make them difficult to place for adoption (§ 366.26, subd. (c)(3)). Notably, they were not in an adoptive placement. At best, their foster parents were willing to “explore the option of adopt[ion].” (In re Asia L., supra, 107 Cal.App.4th at p. 512.) The Asia L. court considered such evidence “too vague” to support an adoptability finding. (Ibid.)
In In re Jerome D., supra, 84 Cal.App.4th at page 1205, the appellate court reversed an adoptability finding that it determined was based on the willingness of a child’s stepfather to adopt him. The Jerome D. court held such evidence would not suffice because the adoption assessment failed to address the stepfather’s criminal and Child Protective Services history, which was not insubstantial, as required by section 366.22, subdivision (b)(4).
Finally, appellant’s attempt to debate the foster parents’ education level and what they had done to help the children is, in our view, nothing more than an attack on the couple’s suitability to adopt. However, a prospective adoptive family’s suitability is irrelevant to whether a dependent child is likely to be adopted. (In re Scott M., supra, 13 Cal.App.4th 839, 844.) General suitability to adopt is a subjective matter which does not constitute a legal impediment to adoption. (Ibid.)
IV. Children’s Wishes
According to section 366.26, subdivision (h) and In re Juan H. (1992) 11 Cal.App.4th 169, 173, the juvenile court shall “consider the wishes of the child” to the extent ascertainable in all section 366.26 termination proceedings. To that end, the code also requires that an assessment prepared for a section 366.26 hearing include a “statement from the child concerning placement and the adoption or guardianship, unless the child’s age or physical, emotional or other condition precluded his or her meaningful response, and if so, a description of the condition.” (§§ 366.21, subd. (i)(5), 366.22, subd. (b)(5).) Further, section 317, subdivision (e) regarding the responsibilities of a dependent child’s counsel, states if the child is four years of age or older, counsel shall interview the child to determine the child’s wishes and to assess the child’s well-being, and shall advise the court of the child’s wishes.
Appellant contends the court could not have considered the children’s statements given that CDSS offered no such evidence nor could it have considered their wishes via their counsel because he never so advised the court. Absent this evidence, appellant urges us to reverse.
We agree with appellant that the CDSS report did not include any statements from the children and the children’s counsel did not advise the court of his four and six-year-old clients’ wishes. We certainly do not condone the lax effort by CDSS in this regard. The code does not impose a difficult requirement; it merely requires a statement from the child or a description of the condition preventing such a statement. Why the department did not satisfy this requirement as to all four children is beyond us. At least in the case of the two youngest boys, the court could have properly inferred they were too young to give a meaningful statement or to otherwise express their wishes. As for the children’s counsel’s obligation under section 317, we cannot say on this record that he failed to interview his young clients or that counsel, in urging termination, argued against his clients’ wishes. (Calhoun v. Hildebrandt (1964) 230 Cal.App.2d 70, 72 [appellant has a burden to affirmatively show error on the record].) Still, counsel did fail to comply with his statutory duty to report to the court on the wishes of F. and A. Nonetheless, as discussed below, we disagree that reversal is required.
We begin by observing that appellant raises these complaints for the first time on appeal. Certainly, there was nothing to prevent her from either objecting to or otherwise questioning the evidentiary absence or offering her own evidence on the subject, if she believed F.’s and A.’s wishes conflicted with CDSS and the department’s recommendations. Arguably, appellant has forfeited her complaints over the lack of evidence by her failure to object below. (In re S.B. (2004) 32 Cal.4th 1287, 1293; In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338-1339.) However, even were we to conclude appellant did not forfeit her challenge at least to the court’s consideration, we are not persuaded that the court erred or, in any event, that reversal is warranted.
As this court held in In re Leo M. (1993) 19 Cal.App.4th 1583, 1592, there is no requirement in section 366.26 that evidence indicating a child’s wishes be direct or there be proof the child was aware of the nature of the proceeding is a termination action for purposes of assessing the child’s preferences. Although a direct statement of a child’s feelings regarding termination is certainly the most dispositive of the child’s wishes, it will not always be possible or in the child’s best interest to obtain such a statement. For example, some children are simply too young or too immature to understand the concept of termination of parental rights, let alone express their feelings about such a prospect, while others may be permanently and severely traumatized if asked to grapple with the possibility of severing all ties to their biological parents. (In re Leo M., supra, 19 Cal.App.4th at p. 1592.)
Nevertheless, we noted in In re Leo M., supra, 19 Cal.App.4th at pages 1592 and 1593, the juvenile court may be able to draw inferences of a child’s wishes from the available evidence. It may remain possible to explore a child’s feelings regarding the adults in his or her life as well as the child’s current living arrangements.
Here, there was indirect evidence of F.’s and A.’s feelings, as even appellant perhaps unintentionally acknowledges. Both children had experienced tearfulness at the end of some visits. Also, according to appellant’s testimony, F. made a point of asking her at the end of their visits whether he would see her the following week. Regardless of whether these children understood the concept of adoption, there was indirect evidence that they would want to see appellant in the future. There was also indirect evidence of their feelings towards their prospective adoptive parents. The children were comforted by the couple and had adjusted well. A. was reportedly affectionate with both foster parents and excitedly called the foster father “Papa.” The court could reasonably draw inferences from such evidence in order to fulfill its responsibility to consider the children’s wishes to the extent ascertainable.
V. Parent/Child Relationship
Last, appellant contends the court impliedly found the parent/child relationship exception to adoption (§ 366.26, subd. (c)(1)(A)) did not apply. In appellant’s view, that finding was not supported by substantial evidence. Urging reversal, appellant largely focuses on Garcia’s testimony regarding her observation of the children with appellant and her detriment opinion. Once again, we are not persuaded by appellant’s argument.
Once reunification services are ordered terminated, the focus shifts to the needs of the children for permanency and stability. (In re Marilyn H., supra, 5 Cal.4th 295, 309.) If, as in this case, the children are likely to be adopted, adoption is the norm. Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances provides a compelling reason for finding that termination of parental rights would be detrimental to the child. (In re Celine R. (2003) 31 Cal.4th 45, 53.)
Although section 366.26, subdivision (c)(1) acknowledges that termination may be detrimental under specifically designated circumstances, it is the parent’s burden to show that termination would be detrimental under one of the exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)
In addition, when a juvenile court rejects a detriment claim and terminates parental rights, the appellate issue is not one of substantial evidence, as appellant argues, but whether the juvenile court abused its discretion. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) Further, we may not reweigh or express an independent judgment on the evidence (In re Laura F., supra, 33 Cal.3d 826, 833), as appellant would have us do by focusing largely on Garcia’s opinion and ignoring other evidence before the court.
Upon our review of the record, as summarized above, we conclude the court did not abuse its discretion. Although there was evidence that the children were attached to appellant and there was Garcia’s opinion that termination could be detrimental, it was insufficient to compel a finding of detriment. The law requires that the parent maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. (§ 366.26, subd. (c)(1)(A).)
Much as appellant would like to minimize it, she did not maintain regular visitation and contact with her four sons over the course of their dependency. For at least four months of their dependency and by her own actions, she had no contact with these very young children.
In any event, there was conflicting evidence on the issue of detriment. True, there was Garcia’s opinion. Notably, however, she did not set forth the basis for her opinion. If she meant to base her opinion on the attachment scores she assigned, we note she also testified the attachment she observed meant each child had the ability to attach and could attach to some other figure. As the record also discloses, Garcia only saw the children and appellant for one hour and did not have the benefit of any reports regarding the children and their backgrounds or regarding appellant for that matter. Further, Garcia qualified her detriment opinion. In the case of F., she testified it would be detrimental unless someone else was meeting his needs. Here, there was evidence the foster parents filled that role. Garcia later testified she “might say” termination would be detrimental. The court properly may have taken these factors into account in assigning what weight it did to Garcia’s opinion. (See Evid. Code, §§ 400 et seq., 413.)
In addition, there was social worker testimony doubting the benefit of a continued relationship between the children and appellant.
Under these circumstances, we conclude the court did not abuse its discretion by rejecting appellant’s argument for a permanent plan other than adoption.
DISPOSITION
The orders terminating parental rights are affirmed.
Appellant filed separate notices of appeal from each order. Although this court consolidated her appeals, two appellate records were prepared and appellant approaches her issues by challenging first the May 2007 denial.