Opinion
Appeal from a judgment of the Superior Court of Orange County Nos. DP012857, DP012858, Gary G. Bischoff, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.).
Michael D. Randall, under appointment by the Court of Appeal, for Defendant and Appellant.
Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minors.
OPINION
MOORE, J.
E.M. (mother) appeals from a judgment terminating her parental rights as to her daughters Jasmine R. and Jennifer R. She relies on the Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(ii) exception, claiming the court erred in failing to ascertain the wishes of Jasmine, who was 12 years old at the time of the section 366.26 hearing. Substantial evidence supports the court’s implied finding that the section 366.26, subdivision (c)(1)(B)(ii) exception was inapplicable. Mother has failed to meet her burden to show that exception applies. We affirm.
All subsequent statutory references are to the Welfare and Institutions Code, unless otherwise specifically noted.
I
FACTS
On January 25, 2006, Jasmine R., then age 10, and Jennifer R., then age eight, were placed in protective custody. The juvenile dependency petition alleged that on January 24, 2006, mother had struck Jasmine with a belt twice on the left leg and twice on the left arm. Jasmine suffered two red abrasions, approximately three inches long and one to one and one-half inches wide, across her left leg, and two red abrasions, of similar size, across her left arm. The petition also alleged that this was not the first time mother had struck Jasmine with a belt. It said that mother had, on or about April 12, 2005, struck Jasmine with a belt, leaving an oval shaped red mark approximately one-half inch in diameter on her left leg. The petition noted that the children lived with mother and their maternal grandmother, and that their father was deceased. Mother had been arrested for child endangerment.
The March 2006 jurisdiction/disposition report informed that “mother has been diagnosed with mental retardation, moderate and seizure disorder and is currently taking medication for the seizures. The mother is currently receiving services from Orange County [R]egional Community Center.” It also stated that the grandmother appeared to be the care provider for both the children and mother. According to the report, Jennifer stated that her sister had suffered marks on her legs, arms and eye, from her mother’s belt. Jennifer further stated that mother had “smacked her sister about twenty times.” In addition, Jennifer stated that her grandmother would hit Jasmine on her hand with a sandal, and once “rolled up a newspaper, lit it on fire, and hit Jasmine on her hand.”
On April 12, 2006, the court ordered the children declared dependent children of the Orange County Juvenile Court, under section 360, subdivision (d). They were placed in a foster home.
By the 18-month review, mother had made minimal progress on her parenting skills. The social worker, in her status review report, stated that “as of June 15, 2007, the mother told the child that she would rather see the child dead than to go through what they [were then] going through with Social Services Agency.” The social worker also stated that when mother was asked whether she would hit her child if the child did not listen to her, mother replied, “‘I don’t know.’” She also reported that mother could not identify proper parenting techniques despite extensive parenting sessions. Given the continued risk of detriment to the physical and emotional well-being of the children, the social worker recommended the termination of reunification services and the scheduling of a section 366.26 hearing. The foster parents were willing to adopt both children.
At the 18-month review hearing on July 16, 2007, the court found that returning the children to mother would create a substantial risk of detriment to them. (§ 366.22, subd. (a).) It terminated reunification services and set a section 366.26 hearing for November 7, 2007.
In the October 2007 section 366.26 report, the social worker stated that, on June 15, 2007, the children called their foster parents and asked to be picked up from an unmonitored visit with mother. Jasmine was upset because when she expressed a desire not to attend Bible study with the grandmother, “mother told the girls that they would die if they did not go to Bible study. She also told Jasmine that she had thought about killing [her], but her ‘heart told [her] not to do it.’” The social worker also stated: “The children have remained in their current foster home since March 2006. The caretakers have indicated that they are willing to adopt the children. They currently provide for the children’s needs. The children are also bonded to the caretakers and are very open about their feelings regarding adoption. At this time, the children indicate a willingness to remain placed in their current foster home and be adopted.” In addition, she said: “The children are excited about the prospective adoption. They want to feel the security of permanence and know that they will remain in the care of the prospective adoptive parents, whom they love very much.” The report recommended termination of parental rights
On January 15, 2008, the court terminated the parental rights of mother. Mother appeals.
II
DISCUSSION
“‘Adoption, where possible, is the permanent plan preferred by the Legislature.’ [Citation.] After a minor is found to be adoptable, ‘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. The specified statutory circumstances—actually, exceptions to the general rule that the court must choose adoption where possible—“must be considered in view of the legislative preference for adoption when reunification efforts have failed.” [Citation.] At this stage of the dependency proceedings, “it becomes inimical to the interests of the minor to heavily burden efforts to place the child in a permanent alternative home.” [Citation.] The statutory exceptions merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption.’ [Citation.]” (In re Christopher L. (2006) 143 Cal.App.4th 1326, 1334.)
As mother points out, “[s]ection 366.26, subdivision (c)(1)(B)[(ii)] is an exception to the Legislature’s preference for adoption. It permits the court to find termination of parental rights detrimental to a child if ‘[a] child 12 years of age or older objects to termination of parental rights.’” (In re Christopher L., supra, 143 Cal.App.4th at p. 1334.) Jasmine was 12 years old at the time of the contested section 366.26 hearing. Mother contends the section 366.26, subdivision (c)(1)(B)(ii) exception applies in this case, so the judgment terminating her parental rights must be reversed.
The court’s implied finding that the section 366.26, subdivision (c)(1)(B)(ii) exception was inapplicable is reviewed for substantial evidence. (In re Christopher L., supra, 143 Cal.App.4th at p. 1333.) “We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. Rather, we draw all reasonable inferences in support of the findings, view the record most favorably to the juvenile court’s order, and affirm the order even if other evidence supports a contrary conclusion. [Citations.] The appellant has the burden of showing the finding or order is not supported by substantial evidence. [Citation.]” (Id. at pp. 1333-1334.) As we shall show, mother has not met her burden.
The October 2007 section 366.26 report, signed by social worker Lorena Minton, stated that the children were bonded to their foster parents and “indicate[d] a willingness to remain placed in their current foster home and be adopted.” In addition, the report said: “The children are excited about the prospective adoption. They want to feel the security of permanence and know that they will remain in the care of the prospective adoptive parents, whom they love very much.”
However, mother draws our attention to the portion of Minton’s testimony at the January 15, 2008 contested section 366.26 hearing to the effect that the children at some point vacillated a bit in their feelings about adoption. Minton stated that the last time she addressed the issue of adoption with Jasmine was in the fall of 2007. Minton testified that at that time, “Jasmine was—she, actually, said that she wanted to be adopted. I think it was Jennifer that was a little bit more ambivalent, but both girls went back and forth at that time.”
On cross-examination by counsel for Jasmine and Jennifer, the following question was posed to Minton: “As far as you know, the last time you spoke to Jasmine and Jennifer, they wanted to be adopted; is that correct?” Minton replied: “Yes.”
On redirect examination, Minton was asked: “When you said that the children wanted to be adopted, isn’t it true that they were, actually, excited about being adopted?” Minton responded: “Yes.” She was further asked: “And why was it that they were excited about being adopted?” In reply, Minton said: “Well, they talked about having the foster parents’ last names changed [sic] and they were excited about that. Excited about being part of the foster parents’ family and just overall happy to, actually, feel like they have a set of parents that they look up to.” Minton also testified that, at one point, the children were concerned about being taken out of the foster home. As a follow-up question, Minton was asked: “So when they were told that adoption would allow them to remain, was that something that excited them or upset them?” Minton said in response: “Oh, it excited them.”
Mother acknowledges that there was some evidence that the children did not object to adoption. However, she emphasizes that Minton did not have current information at the time of the contested hearing. Indeed, Minton admitted that she did not have current information as of the date of the hearing, explaining that the case was no longer assigned to her.
The January 2008 addendum report was signed by social worker Sara Tehranchi. It did not contain any express information regarding the desires of the children with respect to adoption.
Mother insists that the court had an obligation to explore the children’s feelings about the proposed adoption and that it failed to do so, not having obtained current information at the time of the hearing and not having had them testify. She also contends that the court did not ascertain whether Jasmine made a knowing and intelligent waiver of her right to object to the adoption. Mother’s arguments are unavailing.
“Before terminating parental rights, the juvenile court must consider the child’s wishes, to the extent that they are ascertainable. (§ 366.26, subd. (h); [citation].) The juvenile court should explore a child’s feelings toward his or her parents, foster parents, and prospective adoptive family. [Citations.] Evidence of a child’s wishes may, but need not, be in the form of direct testimony at the parental rights termination hearing; such evidence may also appear in the Agency’s reports. [Citations.]” (In re Christopher L., supra, 143 Cal.App.4th at p. 1334; accord, In re Amanda D. (1997) 55 Cal.App.4th 813, 820.)
Here, evidence of the children’s wishes appeared in the October 2007 section 366.26 report and in the testimony of Minton. While the January 2008 addendum report did not expressly address the wishes of the children in terms of adoption, it did reflect that the children continued to have positive relationships with their foster parents and to complain about the visits with mother. Mother could have cross-examined Tehranchi at the contested hearing, in order to elicit further information, but she expressly waived her right to do so.
The direct testimony of the children was not required for the court to make its determination. (In re Christopher L., supra, 143 Cal.App.4th at p. 1334; In re Amanda D., supra, 55 Cal.App.4th at p. 820.) To the extent mother desired the direct testimony of the children, she herself could have called them to testify. However, she did not. Furthermore, her “assertion the court must specifically ask how the child feels about ending the parental relationship is just plain wrong.” (In re Amanda D., supra, 55 Cal.App.4th at p. 820.) “‘[I]n considering the child’s expression of preferences, it is not required that the child specifically understand the proceeding is in the nature of a termination of parental rights.’ [Citation.]” (Ibid.) Mother cites no case supporting the assertion that Jasmine should have been called into court and/or informed that she had a right to make an objection to the proposed adoption.
Substantial evidence supports the court’s implied finding that the section 366.26, subdivision (c)(1)(B)(ii) exception did not apply. Mother has failed to meet her burden to demonstrate to the contrary.
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: BEDSWORTH, ACTING P. J., O’LEARY, J.