Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Marin County Super. Ct. No. 24125A
RIVERA, J.
L.F. (Mother) appeals after the juvenile court terminated her parental rights to her son, I.F., at a hearing pursuant to Welfare and Institutions Code section 366.26 (.26 hearing). Her primary contention on appeal is that the juvenile court should not have terminated her parental rights because she had maintained regular visitation with I.F. and he would benefit from continuing his relationship with her. (§ 366.26. subd. (c)(1)(B)(i).) We affirm.
All statutory references are to the Welfare and Institutions Code.
We are familiar with the background of this case through our review in L.F. v. Superior Court (Jan. 29, 2008, A119487) [nonpub. opn.] (L.F. I) [Mother’s petition for extraordinary review of the order setting the .26 hearing (Cal. Rules of Court, rules 8.450, 8.452)]. We have granted Mother’s request for judicial notice of our opinion in L.F. I. The record appellant provided on appeal consists only of documents and transcripts from the period after the juvenile court set the .26 hearing. It lacks the petition and the reports for the earlier hearings. For the sake of clarity, we shall briefly summarize the events that occurred up to the time the juvenile court set the .26 hearing, based on our opinion in L.F. I and the report prepared for the .26 hearing. Neither party challenges L.F. I’s discussion of the relevant facts; and indeed, each party relies on that opinion in reciting the facts on appeal.
The Marin County Department of Health and Human Services (the department) filed a petition pursuant to section 300 on June 11, 2007, alleging that I.F.’s father, F.F. (Father), was unable to care for I.F. and that Mother’s chronic substance abuse impaired her ability to care for I.F. (L.F. I, supra, A119487, pp. 1-2.) The petition also alleged that Mother had not complied with a voluntary family maintenance plan. According to the detention report, the plan had been offered after an incident in January 2007, when Mother was found driving with methamphetamine, marijuana, a “roach clip,” and several hypodermic needles, two with blood on them, in her purse. The car had a strong foul odor, and garbage and other property were piled high in the vehicle. I.F. was in the car, soaked with urine and not wearing a diaper. (Id. at p. 2.) Mother did not comply with the plan, which required her to obtain a restraining order against Father, participate in random drug testing, address her health issues, seek out a therapist, and follow up with services to protect herself against abusive relationships with men. (Id. at pp. 2-3.)
Father is not a party to this appeal.
Father reported that he had seen Mother using drugs in early June 2007, and he provided photographs that he testified he had taken of Mother in her home on June 9, 2007. According to Father, the photographs showed Mother sleeping on a sofa at a time that I.F. was in the home. Hypodermic needles and syringes were visible in the photographs. (L.F. I, supra, A119487, at p. 3.)
A jurisdictional hearing took place in September 2007. (L.F. I, supra, A119487, at p. 4.) Two social workers testified at the hearing that they had visited Mother, one in January 2007 and one in April 2007, and found no signs of drug use in the home. A friend of Mother’s, who was pursuing a graduate degree in psychology and who had stayed with Mother in the summer of 2005, testified that Mother was a loving parent and had a close relationship with I.F., and that she was not abusing drugs. (Id. at pp. 4-5.) The juvenile court found it had jurisdiction over I.F. (Id. at p. 6.)
In the September 2007 report prepared for the disposition hearing, the department recommended that the court bypass reunification services pursuant to section 361.5, subdivision (b)(10) because a permanent plan had been ordered for a sibling and the parents had not made reasonable efforts to treat the problems leading to the removal, and pursuant to subdivision (b)(13) because the parents had a history of chronic abuse of drugs and had resisted or failed to comply with treatment. (L.F. I, supra, A119487, at p. 6.) The report also indicated that after I.F. was detained, Mother had refused to discuss available services with I.F.’s social worker. After a visit with I.F. in July 2007, she became agitated, and yelled and cursed at the social worker. She said she would not accept the services the department offered, and said she intended to go court and “ ‘tell off the judge.’ ” Three days later, Mother told the social worker she did not trust the system and accused the worker of trying to sell I.F. on the Internet. In August 2007, she said she would not work with the department, even if it meant permanently losing her son. She frequently said the department was a terrorist organization, and said she would spend her life “ ‘trying to take it down.’ ” (Id. at pp. 8-9.)
Mother was allowed two supervised visits with I.F. a week. The disposition report indicated that she had attended 12 of 21 scheduled visits, and that on August 20, 2007, she had repeatedly said during her visit that she might not come back again and that it might be the last time she would see I.F. However, her behavior during visits was otherwise appropriate. She would bring art supplies and engage in age-appropriate activities during the visit. I.F. was happy to see his mother and would at times be unhappy when the visit ended. (L.F. I, supra, A119487, at p. 9.)
At the dispositional hearing, a social worker, Kristin Shore, testified that since her first meeting with Mother in July 2007, Mother had told her she was not interested in services and that she would not speak with Shore about services. She also testified that I.F.’s brother, J.F., had been removed from his home in 2003 because of domestic violence between Mother and Father, chronic substance abuse on the part of both parents, and Father’s serious health issues. He had been adopted in 2006. A social worker who had supervised several visits between Mother and I.F. testified that Mother’s behavior was generally appropriate during visits. She would help I.F. do art projects, talk with him about the art and about what he was doing in his foster home, and occasionally show him how to pronounce words accurately. (L.F. I, supra, A119487, at p. 10.) On at least three occasions, I.F. asked about Mother coming with him at the end of a visit. (Id. at p. 11.)
Mother testified at the dispositional hearing. However, after she had testified on two court dates, the juvenile court expressed concern that she was “impaired by some substance [she had] ingested,” and ordered her to submit to a urine test immediately. Mother promised to do so within an hour, but did not submit until more than four hours after the hearing had ended. After Shore testified about the delay at the continued hearing, Mother declined to testify further, and the court struck all her testimony. (L.F. I, supra, A119487, at p. 11.)
The juvenile court found that Mother and Father had a history of domestic violence, that Mother’s history of substance abuse impaired her ability to care for I.F., that I.F. must be removed from the custody of his parents, that no other means existed to protect his physical health, and that reunification services should be denied and the matter set for a .26 hearing. (L.F. I, supra, A119487, at p. 12.) As we have noted, Mother petitioned for extraordinary review of this order, and we denied the petition on the merits on January 29, 2008. (Id. at p. 1.)
The .26 hearing was originally set for February 5, 2008. The report the department prepared for the hearing indicated that I.F. lived with his foster parents, who had adopted his older brother. He had been placed with them for almost seven months, and appeared to be bonding with them. He had had speech delays when he was detained, but his speech had improved greatly and had become intelligible. The foster parents wished to adopt I.F. as well.
The report summarized Mother’s history of visiting I.F. after he was detained. Mother visited I.F. twice during June. She was 15 minutes late to the first visit, and missed visits on June 20, 22, and 27. During July and August, Mother visited I.F. nine times, although she was late to four of the visits. She missed seven visits during that time, usually because she did not call to confirm her attendance by the required time.
Mother’s behavior at the visits was generally appropriate. She brought I.F. toys and activities. When I.F. said at the end of one visit that he wanted Mother to come with him, she explained that she could not. During several of the visits in August, Mother became upset during the visit about the status of her case, and said at least four times that she wanted department staff fired. During an August 2007 visit, Mother became so upset that the staff had to warn her that they would end the visit if she did not stop her inappropriate talk. She returned her attention to I.F., but told him at the end of the visit that she might not see him again. She missed the next three visits.
I.F.’s foster parents reported in August 2007 that I.F. cried for up to an hour after returning from visits with Mother, that he could be withdrawn and had difficulty falling asleep, and that he was clingy and kept his foster parents within sight at all times. They also said that I.F. often did not want to get into the car to be taken to his visits, and had started saying he did not want to go.
During September, Mother attended four visits, and was late for one of those; she missed three visits, once because she needed to attend a court hearing. I.F. transitioned well back into his foster home after these visits.
When the juvenile court bypassed reunification services on October 2, 2007, it granted Mother two visits a month with I.F. Mother visited I.F. twice during October, but was 30 minutes late to one visit and 15 minutes late to the other. A visit in November was cancelled because Mother was 25 minutes late to the visit. When she was told the visit had been cancelled, Mother became upset and used “explicit language” toward the department’s receptionist. She refused to leave the office, and the receptionist called the police. I.F. was taken back to his foster home without seeing his mother, and said he was glad he could come back from the visit because he wanted to spend time with his foster parents. Mother visited I.F. again in late November. The visit began well, but Mother became very emotional by the end of the visit, telling the visit supervisor that it was the department’s fault that her life was a mess, that now that I.F. was no longer living with her, she had no job and no place to stay, and she felt like “going back to drugs.” The supervisor tried unsuccessfully to redirect Mother’s attention to I.F., but she kept discussing her problems until the supervisor placed I.F. in the car. Two days later, the foster parents reported that I.F. was no longer inconsolable after visits with Mother. They also said that on one of the visit days in November, I.F. asked if he had to go to the visit.
Mother visited I.F. twice during December, and both visits went well. Mother attended to I.F.’s needs and was engaged and affectionate with I.F. He enjoyed doing art projects with Mother, returned her hugs and kisses, and told her he missed her. I.F. seemed content on his way back from the visit and transitioned well to the foster home.
The department concluded that Mother’s behavior toward I.F. during visits was for the most part appropriate and affectionate, and I.F. appeared to enjoy the visits with her. They had an “obvious positive relationship.”
The report indicated that I.F. was an “adorable and engaging child” with a sweet disposition, that he was healthy and developing well, and that his foster parents, who had adopted I.F.’s older brother, had bonded with I.F. and were committed to adopting him. The department also concluded that it was likely that other adoptive parents could be easily located if I.F.’s foster parents could not complete the adoption. I.F. was doing well and appeared secure in his foster home.
The report concluded: “Both Mr. and Mrs. [F.] have long-standing issues that have severely compromised their ability to provide a safe and stable home for their son, [I.F.] At such a young age, [I.F.] needs caregivers who can protect him and provide him with the consistent care that he needs. [I.F.] is currently placed with caregivers who are committed to providing him with the permanency afforded by adoption. The benefits that [I.F.] will experience as a result of being adopted by his current caregivers outweigh the benefits of continuing his legal relationship with his parents. Based on the above information, the [department] recommends that the parental rights of [Father and Mother] be terminated, and that this termination is not detrimental to [I.F.] and is in his best interest.”
A memo from the court-appointed special advocate, prepared for the February 26, 2008, .26 hearing, indicated that the foster parents had an affectionate and appropriate relationship with I.F., and that their home was “more than adequate” for him and his older brother. He appeared to be happy there. Staff at I.F.’s daycare reported that I.F. was adjusting well and seemed “happy, healthy and developmentally on task.”
At the .26 hearing, Bree Marchman, the social worker who had prepared the report, testified that Mother had visited I.F. twice in January. She was 20 minutes late to one of the visits, although she called to say she was running late. Based on her conversations with the visit supervisors, she testified that Mother and I.F. were affectionate toward each other during visits, hugging and kissing each other.
Jeannie Damazio, who had supervised 11 of Mother’s visits with I.F. at the department’s office between July 2007 and February 2008, testified that Mother brought art supplies and video games to play with I.F. Mother would show I.F. how to do the activities and praise him for his efforts, and help him clean his hands afterwards. She would also help him pronounce words properly. Their interaction was positive when they were focusing on the activity. Mother would hug and kiss I.F. at the beginning and end of the visits and he would return the affection and sit on her lap. I.F. appeared happy to be with Mother. On at least three visits during the summer of 2007, he seemed to want Mother to come with him when the visit was over.
Royce McLemore, who had served on a resident council with Mother, testified that Mother was a loving and nurturing mother to I.F. She attended to his needs, and he saw her as his mother and went to her for comfort.
Megan Mahoney, a family physician who was both Mother’s and I.F.’s doctor, testified that she had seen Mother and I.F. about 20 times over the previous three years. Mother had taken I.F. for all of his well-baby and well-child visits. She testified that there were objective signs of bonding between Mother and I.F. When I.F. was an infant, there was good eye contact between him and Mother. He was well groomed. Mother arranged her schedule to accommodate him. She used a kind, nurturing voice when she spoke with him, and he responded to her directions. If he fell, he would look to her for reassurance. Mother was responsive to his needs, and her behavior was appropriate. They were affectionate toward each other. He responded to her cuddling and liked to be on her lap. She supported him appropriately in his toilet training, read with him, and helped in his language development. Mahoney’s observations indicated Mother had a healthy mother-child relationship with I.F.
The juvenile court found by clear and convincing evidence that I.F. was likely to be adopted, and terminated the parental rights of both Mother and Father.
II. DISCUSSION
A. The Beneficial Relationship Exception
Mother contends the juvenile court erred when it terminated her parental rights because she met her burden to show that she regularly visited I.F. and had a beneficial parental relationship with him that outweighed the benefits of a potential adoption.
At a .26 hearing, “the court may order one of three alternatives: adoption, guardianship or long-term foster care. [Citation.] If the dependent child is adoptable, there is a strong preference for adoption over the alternative permanency plans. [Citations.] [¶] Once the court determines the child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1).” (In re S.B. (2008) 164 Cal.App.4th 289, 296-297 (S.B.).) One of those exceptions applies if “[t]he court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [¶] (i) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).)
The court in In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.), interpreted the term “benefit from continuing the relationship” to mean “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. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated.” The court went on to explain: “Interaction between natural parent and child will always confer some incidental benefit to the child. The significant attachment from child to parent results from the adult’s attention to the child’s needs for physical care, nourishment, comfort, affection and stimulation. [Citation.] The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.] The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent.” (Ibid.)
There is a conflict in the case law as to whether we should review the trial court’s finding on the beneficial relationship exception for substantial evidence (see S.B., supra, 164 Cal.App.4th at pp. 297-298, see also In re Cliffton B. (2000) 81 Cal.App.4th 415, 425) or for abuse of discretion (see In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 (Jasmine D.)). Under the substantial evidence standard, “we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order.” (Autumn H., supra, 27 Cal.App.4th at p. 576.) To make our determination, we review the whole record to determine whether it contains substantial evidence from which a reasonable trier of fact could have made the challenged ruling. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393-1394.) Under the abuse of discretion standard, we do not disturb the trial court’s decision unless it exceeded the bounds of reason, and do not substitute our decision for that of the trial court if two or more inferences can reasonably be deduced from the facts. (Jasmine D., supra, 78 Cal.App.4th at p. 1351.) The practical differences between these two standards are not significant. (Ibid.)
At the .26 hearing, Mother contended the beneficial relationship exception applied, and asked the court to order a plan of guardianship or long-term foster care. The department argued that Mother had not established either that she had maintained regular visitation or that the benefit of maintaining the parent/child relationship outweighed the benefit of adoption. In rejecting Mother’s contention, the juvenile court stated: “[T]he need for removal has already been determined. And the question now is whether or not the parent/child relationship is so beneficial to [I.F.] in a tenuous placement to outweigh the advantages of permanency and security in an adoptive home. [¶] I simply cannot make that finding. . . . [¶] I simply cannot find that the beneficial relationship exception has been established by a preponderance of the evidence.”
The beneficial relationship exception has two prongs. The first is that the parents “have maintained regular visitation and contact with the child.” (§ 366.26, subd. (c)(1)(B)(i).) Between the time I.F. was removed from Mother and the .26 hearing, it appears that Mother had attended 23 visits with I.F., and had missed 13. She had been late to 9 of the visits she attended. Thus, she attended approximately 64 percent of the scheduled visits, missed 36 percent of them, and was late to 25 percent of them. We question whether this sporadic record demonstrates that Mother maintained regular visitation and contact with I.F.
We do not include in this count the September visit Mother missed in order to attend a court hearing.
In any case, even if Mother’s visitation was regular, the record supports a determination that the second prong of the beneficial relationship exception—that the benefit to I.F. from continuing the relationship outweighed the well-being he would gain from a permanent adoptive home—was not met. (§ 366.26., subd. (c)(1)(B)(i); Autumn H., supra, 27 Cal.App.4th at p. 575.) We recognize the evidence that there was a bond between Mother and I.F., that she behaved appropriately toward him during visits, that he appeared to enjoy the visits and to miss her, and that they were affectionate toward each other. At this stage of the proceedings, however, the court focuses on “the interests of the particular child or children before it, and whether there is a compelling reason not to terminate parental rights.” (Jasmine D., supra, 78 Cal.App.4th at p. 1350.) The parent’s rights should not be terminated if severing the relationship would “greatly harm” the child. (Autumn H., supra, 27 Cal.App.4th at p. 575.)
On the record before us, the trial court could reasonably conclude that severing the parental relationship would not greatly harm I.F. I.F. had adjusted well to the home of his foster parents, who wished to adopt him. Although Mother had visited I.F. on more than half the scheduled dates, she was often late for the visits. Although her behavior was generally good, she made inappropriate comments to department staff about her case status in I.F.’s presence, and she once told I.F. she would not be able to visit him any more. As a result of her long-standing history of substance abuse and domestic violence, which we discussed in detail in L.F. I (L.F. I, supra, A119487, at pp. 2-12), the juvenile court had bypassed reunification services. We cannot say the juvenile court was obliged to find that I.F. would be greatly harmed from termination of Mother’s rights so as to outweigh the benefit to him of a stable, secure adoptive home.
We are not persuaded otherwise by Mother’s reliance on the recent case of S.B., supra, 164 Cal.App.4th 289. The Court of Appeal there concluded that the beneficial relationship exception does not require the parent to prove that the child has a “ ‘primary attachment’ ” to the parent or that they have maintained day-to-day contact; instead, the exception may apply when the child has a “ ‘substantial, positive emotional attachment’ ” to the parent. (Id. at p. 299.) The father in S.B. had loving, “regular, consistent and appropriate visits” with the child, and consistently put her needs ahead of his own. When the child was removed from his care, he started services, maintained his sobriety, sought services, and complied with every aspect of his case plan. (Id. at p. 298.) On the record before it, the Court of Appeal concluded that the “only reasonable inference” was that the child “would be greatly harmed by the loss of her significant, positive relationship” with the father. (Id. at p. 301.) The same cannot be said here. While we recognize that Mother’s visits with I.F. often went well and she behaved lovingly toward I.F., she was not consistent and responsible in attending the visits, and she at times used the visits to confront department staff. Moreover, as we have noted, the juvenile court had denied reunification services due to Mother’s unresolved history of substance abuse and domestic violence. (L.F. I, supra, A119487, at p. 12.) On the entire record, the juvenile court could reasonably conclude I.F. would not be greatly harmed by the severance of his relationship with Mother.
In reaching this conclusion, we also reject Mother’s contention that the juvenile court wrongly relied on Mother’s antagonism as an obstacle to reunification. Before making its ruling, the court stated that Mother’s “antagonistic posture” from the beginning of the dependency had been a “princip[al] obstacle to any efforts [at] reunification or maintenance of the parent/child relationship”; that although visits went well, Mother did not visit regularly until her visitation was reduced to twice a month; and that she “refused to help herself in the course of this case.” The court also pointed to the incident in which Mother was stopped while driving, “with [I.F.] in the back seat with dirty clothing and a pile of debris with a variety of drugs and paraphernalia in the car.” The court went on to rule: “The court is required now to focus on the child. . . . And the question now is whether or not the parent/child relationship is so beneficial to [I.F.] in a tenuous placement to outweigh the advantages of permanency and security in an adoptive home. [¶] I simply cannot make that finding. I can’t go beyond that and say, gee, if we don’t terminate parental rights now maybe [Mother] will become the person who has been portrayed by the witnesses who testified on her behalf and be able to reunify with [I.F.] I’m not asked to do that. The law doesn’t want the Court to do that. . . . [¶] I simply cannot find that the beneficial relationship exception has been established by a preponderance of the evidence.”
Mother contends that in making this ruling, the court improperly relied on the problems that led to the dependency and her failure to reunify, rather than whether severing parental rights would be detrimental to I.F. Not so. As shown by S.B., among the factors a court may look to in determining whether a child would be harmed by the termination of parental rights are the consistency of visitation and the extent to which the parent has shown devotion to the child by complying with a case plan. (S.B., supra, 164 Cal.App.4th at pp. 300-301; see also In re Amber M. (2002) 103 Cal.App.4th 681, 690 [mother visited children regularly and “was devoted to them and did virtually all that was asked of her to regain custody”].) In any case, the court here made clear that it based its ruling on whether the benefit of continuing the relationship with Mother would outweigh the advantage of a secure adoptive home. We see no use of improper factors.
B. I.F.’s Wishes
In making its ruling, the juvenile court stated that it had “considered the wishes of the child consistent with his age and all findings and orders the Court made are in the best interest of the child.” Mother contends it was improper for the court to take I.F.’s wishes into account because he was too young.
Section 366.26, subdivision (h)(1) provides: “At all proceedings under this section, the court shall consider the wishes of the child and act in the best interests of the child.” This section requires the court to “ ‘consider the child’s wishes to the extent ascertainable’ prior to entering an order terminating parental rights under section 366.26, subdivision (c).” (In re Leo M. (1993) 19 Cal.App.4th 1583, 1591 (Leo M.), quoting In re Juan H. (1992) 11 Cal.App.4th 169, 173.) The expression of these wishes “ ‘may take the form of direct formal testimony in court; informal direct communication with the court in chambers, on or off the record; reports prepared for the hearing; letters; telephone calls to the court; or electronic recordings.’ ” (Leo M., supra, 19 Cal.App.4th at p. 1591, quoting In re Diana G. (1992) 10 Cal.App.4th 1468, 1480 (Diana G.).)
There is a disagreement in the case law as to whether the child’s statement must reflect an awareness that the proceeding involves the termination of parental rights. The court in Diana G. stated that the child’s statement must show such awareness. (Diana G., supra, 10 Cal.App.4th at p. 1480.) The court in Leo M., on the other hand, disagreed, noting that “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,” and that even if it is not possible for the child to express an opinion on termination of parental rights directly, “it may still be possible to explore the minor’s feelings regarding his/her biological parents, foster parents, and prospective adoptive parents, if any, as well as his/her current living arrangements.” (Leo M., supra, 19 Cal.App.4th at p. 1592.) Thus, the court in Leo M. noted that although there was no direct evidence of the five-year-old child’s specific preferences or his views on being adopted, there was “ample evidence from which his feelings could be inferred,” including the bond he had formed with his foster parents and the limited contact he had had with his mother during the reunification period. (Id. at p. 1593.)
As Mother points out, I.F. was less than four years old at the time of the .26 hearing. Recognizing his young age, the department’s report for the .26 hearing stated, “[I.F.] is too young to directly comment on his feeling regarding adoption,” but noted that a social worker had observed him at his foster home with his brother and foster parents, that he played nicely with his brother, that the foster parents handled him well, that I.F. enjoyed his foster father’s attention and turned to his foster mother for affection, and that he appeared relaxed and secure in the home. There was also evidence that I.F. wanted Mother to come home with him after certain visits, that he enjoyed visits with her and told her he missed her, and that on other occasions he expressed reluctance to visit with Mother. In the case of a child as young as I.F., we agree with Leo M. that it is appropriate for the juvenile court to look to this type of evidence to infer the child’s preferences.
As we have noted, the Court of Appeal in Diana G. indicated that the evidence of the child’s wishes must reflect the child’s awareness that the proceeding involves the termination of parental rights. (Diana G., supra, 10 Cal.4th at p. 1480.) The children in Diana G. were older than I.F.; at the time they were detained, they ranged in age from nine years to four years old, and parental rights were terminated nearly two years later. (Id. at pp. 1473, 1476.)
Mother argues, however, that pursuant to section 317, subdivision (e), the juvenile court should not have considered the wishes of a child as young as I.F. Section 317, subdivision (e) provides in part that counsel appointed to represent the child is charged with representing the child’s interests, and that “[i]n any case in which 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.” Mother argues that this provision indicates that the Legislature has determined that a child of four years of age or older is able to inform counsel of his wishes, and suggests that therefore a child under that age cannot understand the proceedings and express his wishes. We reject this contention. Whatever the duties the Legislature has imposed on counsel through section 317, subdivision (e), they do not abrogate the juvenile court’s duty, imposed by section 366.26, subdivision (h)(1), to consider the child’s wishes to the extent ascertainable.
C. Post-adoption Contact
Mother’s final contention is that despite the evidence that the foster parents were willing to participate in an agreement to allow some contact between I.F. and Mother after they adopted I.F., such an agreement would be subject to the foster parents’ discretion and would not alleviate the harm I.F. would suffer from termination of parental rights. (See In re S.B., supra, 164 Cal.App.4th at p. 300 [parent should not be deprived of legal relationship with child based on adoptive parents’ unenforceable promise of future visitation].) This contention fails. There is no indication that the juvenile court relied on the adoptive parent’s willingness to allow contact between Mother and I.F. in concluding the beneficial relationship exception did not apply. As we have discussed, the juvenile court’s findings are reasonable and supported by the record, and we will not disturb them on appeal.
III. DISPOSITION
The orders appealed from are affirmed.
We concur: REARDON, Acting P. J., SEPULVEDA, J.