Opinion
B206994
9-19-2008
In re J.M., et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. NICHOLE H., Defendant and Appellant.
Deborah Dentler, under appointment by the Court of Appeal, for Defendant and Appellant. Raymond G. Fortner, Jr., Los Angeles County Counsel, James M. Owens, Assistant County Counsel, and Jeanette Cauble, Deputy County Counsel for Plaintiff and Respondent.
Not to be Published
I. INTRODUCTION
Nichole H. (the mother), appeals from a juvenile court order terminating her parental rights as to her three children, J.M., P.C., and K.W., pursuant to Welfare and Institutions Code section 366.26. The mother argues the juvenile court erred in applying exceptions to termination of parental rights because: the evidence showed the potential adoptive parent was unwilling to adopt and had been pressured by the Los Angeles County Department of Children and Family Services (the department) contrary to standards set forth in current section 366.26, subdivision (c)(1), effective January 1, 2008; the evidence was insufficient to show that 14-year-old J.M. did not object to termination of parental rights (§ 366.26, subd. (c)(1)(B)(ii)); and the evidence was insufficient to show that the wishes of J.M. and P.C. were considered as required by section 366.26, subdivision (h). We affirm.
II. BACKGROUND
On March 29, 2006, the department filed a section 300 petition on behalf of the children. As sustained, the petition contained the following allegations. The children were exposed to violent physical confrontations between the mother and K.W.s father. K.W.s father physically assaulted the mother in the childrens presence endangering their physical and emotional health and safety. K.W.s father sexually abused J.M. by: exposing his penis to her; forcing her to touch and fondle his penis; and touching and fondling the childs breasts. The mother knew of the sexual abuse but failed to take action to protect J.M. and continued to allow K.W.s father to have unlimited access to the children. The mother also instructed J.M. not to disclose the sexual abuse.
The detention report stated that, on March 26, 2006, the department responded to a referral about the children being left home alone and that K.W.s father was currently in the residence. The report stated that K.W.s father had been investigated in the past for allegedly molesting J.M. Also on March 26, 2006, a Pomona police officer arrived at the family residence to verify K.W.s fathers presence in the home at around 1:30 a.m. Officer Ewald broke a window to enter the home after he knocked on the door several times but received no response. J.M. did not know where the mother was. According to J.M. the mother had been leaving the children home alone in the afternoon until the early morning. Officer Ewald stated the apartments are narcotics infested and people have been shot because of drug sales.
On March 26, 2006, K.W.s father arrived at the home at around 2:30 a.m. and used his own personal key to enter the residence. J.M. told Officer Ewald that K.W.s father has lived in the home for two years although he was not supposed to be there. J.M. said that, about three months prior to March 2006, K.W.s father got into bed with her while he was naked. K.W.s father started to fondle her breasts and asked her to touch his penis. The report stated that the department had responded to a referral on November 28, 2005, about the allegations. The mother had stated that she put K.W.s father out of the home at that time. The mother also stated that she allowed K.W.s father to come to the home to visit his child and to bring her money. But the mother said K.W.s father did not spend the night. On January 20, 2005, the department responded to a referral that J.M. awakened to find K.W.s father naked in her bed. K.W.s father had a condom on and said he wanted her to rub his penis but did not want to mess up the bed. K.W.s father was holding her hand and trying to get her to hold his penis. J.M. stated that K.W.s father had been drinking earlier in the evening and walking around naked. K.W.s father left the bedroom when P.C. woke up. J.M. told the mother about the incident the following day. The mother told J.M. not to tell anyone else. The mother had contacted the police for domestic violence by K.W.s father on two occasions.
K.W.s father informed the police that he lived in the home. He had lived there for two years. K.W.s father denied ever inappropriately touching J.M. K.W.s father indicated that he could not understand why J.M. would lie. K.W.s father suggested that the mothers family disliked him and told J.M. to say that he sexually abused her. K.W.s father stated he had always been a good parent for all three children. He also stated that he had gone to prison for four years for something he did not do. K.W.s father informed the police that the mother was three minutes away but stated he did not know how to contact her.
The mother arrived at the home three hours later. The mother stated that she had only left the children home alone twice within two months. The mother was only three minutes away and J.M. was a responsible child. The mother denied that K.W.s father lived in the home. The mother was told that he used a key to enter the home. The mother responded that she gave K.W.s father a key to check on the children when she was away from home. The mother stated that K.W.s father had never touched any of her children inappropriately and he had never sexually abused J.M. The mother stated that J.M. was telling lies because she was afraid. According to the mother, K.W.s father could no longer live in the home because of the domestic violence. She stated that she has a history of attracting criminals who had served time in prison. All three of her children had different fathers each of whom had served time in prison. The mother stated that J.M.s father was serving a life sentence in prison and P.C.s biological fathers whereabouts were unknown. None of the fathers are parties to this appeal.
J.M. told a social worker, "`I just want to go back with my mom." But J.M. did not understand why the mother would say not to tell anyone about K.W.s father. J.M. told an uncle and aunt who contacted law enforcement. J.M. stated that she had a difficult time going to sleep because she was afraid of K.W.s father. She would not have a problem sleeping if the mother would stop coming home early in the morning and leaving K.W.s father to supervise the three youngsters. P.C. stated that the mother always left him and his sisters home alone for long periods of time. P.C. was afraid to stay at home because the people who live in the apartments are bad as they sell drugs and shoot at people. P.C. had never been touched by K.W.s father. However, P.C. was afraid of K.W.s father. This was because K.W.s father was always hitting the mother. The children had originally been placed with a maternal aunt by the department. At the detention hearing, the juvenile court ordered the children placed with the maternal aunt. The mother was given monitored visits. The fathers were not given visits until ordered by the juvenile court.
On May 2, 2006, the department reported that the mother stated J.M.s father was serving a life prison term. The mother stated K.W.s father lived in one of two Lodge Motels in Pomona. However, the department was unable to locate K.W.s father at either motel.
J.M. explained that when she was 11 years old, K.W.s father came into her room at 3 a.m. and made her touch his private part. J.M. stated that she woke up and her hand was on it. Her hand was wet. K.W.s father told her that when she turned 13 he was going to be the first person to go out with her. He then left and washed his hands. J.M. said K.W.s father only touched her once. J.M. told the mother about the incident. The mother told J. M to go back to bed.
The mother related that J.M. said that K.W.s father had come into the room naked. K.W.s father explained that she was crying. K.W.s father said that he thought J.M. was asleep. Because it was dark, he thought could just run in the room and give K.W. her cup. He did not think J.M. would see him. The mother told him not to go into the room with no clothes on or at all. K.W.s father apologized. According to the mother: "`In 2005 . . . the police told me [J.M.] told them that he made her hold his penis. She never told me about the penis. [J.M.] told me he put his pee pee in her hand, but he said he didnt do it. He said he was sorry she saw him naked." The mother said she believed both versions of what had occurred, "`I mean, I believe both sides." The mother claimed to believe J.M. But the mother also did not want to believe J.M. This was because J.M. did not like K.W.s father. The mother admitted that K.W.s father came around after the prior dependency case was closed. The mother admitted that she was "`still in a relationship" with K.W.s father.
J.M. said that she had seen K.W.s father hit the mother. J.M. saw K.W.s father throw the mother on the ground. This occurred while the mother was pregnant with K.W. P.C. denied ever seeing K.W.s father hit the mother. P.C. also denied fearing K.W.s father. The mother stated that she had obtained a restraining order against K.W.s father in 2005 but she was unable to enforce it because he was using her address. According to the mother, K.W.s father had not hit her since 2005. The mother explained that she thought the age to leave children home unsupervised was 12. The mother only planned to go to a club for two hours from 12 to 2 a.m. The children were asleep when she left them. She did not tell them to be quiet so no one would know they were home alone.
The mother was in school and planned to complete medical assistant school in June 2006. The mother wanted the children to remain in the maternal aunts home. This would allow the mother to provide a stable environment for children. J.M. and P.C. both stated that they wanted to return to the mother.
On May 2, 2006, the mother pled no contest to the allegations in the petition. At the jurisdiction disposition hearing, the juvenile court sustained the petition under section 300, subdivisions (a), (b), and (d) as to all three of the children and subdivision (j) as to P.C. and K.W. The department was ordered to provide family reunification services and counseling referrals. The mother was ordered to attend and complete parenting classes and individual counseling. The mother was given monitored visits twice a week. K.W.s father was given visitation with his own child but ordered not to have any contact with J.M. or P.C. The juvenile court ordered no family reunification services be provided to any of the fathers.
In a status review report on October 31, 2006, the department reported the children were living with a maternal aunt and uncle who were not interested in adoption or becoming legal guardians. The department social worker related that the children were doing well. The mother consistently visited the children. The mother would be receiving unsupervised day visits. The mother, who was residing with her brother, was in partial compliance with court orders. She had started her: parenting classes; domestic violence counseling; and sexual abuse treatment program. The mother had earned her medical assistant certificate and was seeking employment. The department requested family reunification services be extended for six more months. The department recommended that the children, who were very bonded with each other, remain as a sibling group.
At the review hearing on October 31, 2006, the juvenile court found the mother was in compliance with the case plan. The juvenile court further found it was likely the children could be returned home by May 1, 2007. The department was ordered to provide family reunification services for the mother and to assist her in locating housing.
On March 23, 2007, the department filed a section 387 supplemental petition to remove the children from the maternal aunts home. The petition alleged that the maternal aunt had allowed the mother to reside with the children. The maternal aunt asked that the children be removed from her home. The department reported that the children had been placed in the home of a maternal uncle. On March 15, 2007, the mother advised the department the maternal aunt had dropped the children and their belongings off on August 29, 2006. The maternal aunt continued to receive payments and signed the vouchers as if the children lived in the home for six months. The juvenile court deemed the section 387 petition to be a notification of change of placement advisement and dismissed it.
On April 23, 2007, the department filed a second section 387 supplemental petition in which it was alleged the maternal uncle refused to cooperate with the department in arranging evaluations for other adults living in the home. The department discovered that the children and the mother were sleeping on an inflated mattress in the uncles living room. Three other adults lived in the home. The department reported that the children had been placed in foster care. At the detention hearing, the juvenile court ordered the department to investigate Beverly M. for possible placement of the children. Beverly is the paternal grandmother of J.M. The paternal grandmother has two adopted daughters.
On May 1, 2007, the department reported that the paternal grandmother was very interested in being a part of the childrens lives and would consider legal guardianship to help the mother. The paternal grandmother was preparing her home for the children. At that time, the children were in a foster home. The department reported that the mother was in compliance with her case plan and was attempting to obtain employment. The mother completed 10: parenting classes; anger management classes; domestic violence classes; and empowerment and enrichment classes. The social worker had driven the mother to interviews. The department recommended an additional six months of reunification services be provided to allow the mother to pass her General Educational Development test in order to increase her chances of obtaining employment. The mother was planning to take the test on May 8 and 9, 2007. The 12-month review was continued from May 1, to May 15, 2007.
On May 15, 2007, the department reported that the mother had taken her General Educational Development test but had no income. Beverlys home had been approved for placement on May 12, 2007. All three of the children were residing with Beverly J.M. stated that she is happy to reside with Beverly. This was because Beverly had more room and J.M. could sleep in her own bed. P.C. stated that he was happy to live with his grandmother. Beverly stated that she was happy to have the children placed with her and wanted to care for them until they could reunify with the mother. Beverly was very interested in being a part of the youngsters lives and would consider legal guardianship for the three children to help the mother. Beverly was familiar with department procedures because she had previously adopted two children.
The three children were very close and got along well together. The mother visited twice a week, did grocery shopping, and helped with the childrens homework. She also watched television and played board games with them. The mother took the children to the museum. The children had fun with her and said they were glad to see her.
On May 15, 2007, the juvenile court dismissed the second section 387 the petition. The mother was given additional reunifications services and the matter was continued to September 24, 2007. On July 17, 2007, the department filed a section 388 petition to change the mothers visitation to monitored. The department reported that J.M. and P.C. refused to go on a day visit with the mother on July 14, 2007. Beverly told the department that the mother had put the children at risk during unmonitored visits. According to Beverly, the mother allowed K.W.s father to have access to the children. J.M. stated that K.W.s father had a cellular telephone with pictures of his penis. K.W.s father shared the photographs with J.M. K.W.s father, J.M., and the mother were in a park together. J.M. asked the mother to leave the park. This was because J.M. did not like to be with K.W.s father. The mother refused to leave the park.
J.M. and P.C. told the department that K.W.s father had shown up at the park on two different occasions before July 4th. P.C. stated that K.W.s father always followed J.M. around and whispered in her ear. J.M. told K.W.s father to get away from her. P.C. stated that the mother did not do anything. As a result, P.C. did not like K.W.s father that much. J.M. thought the mother and K.W.s father were still in a relationship because she observed the two of them hugging and kissing.
When the mother was interviewed about the cellular telephone incident, she stated she did not know K.W.s father would be in the park. The mother said it was a coincidence. The mother was advised that K.W.s father had to contact the department about monitored visits with his daughter. A department report described the mothers explanation for remaining in the park after J.M. requested they leave: "This worker asked [the mother] why didnt she leave the park once [K.W.s father] was present and . . . [J.M.] requested to leave the park. [The mother] states she doesnt know why . . . ." Then the mother added that he is K.W.s father. The mother started to cry and stated that it would be "o.k." to have monitored visits. On August 1, 2007, the mother told the department that she did not believe the incident about the photographs of K.W.s father penis. The mother did believe that K.W.s father had sexually assaulted J.M. in the past. When speaking with a social worker about K.W.s father and J.M., the mother began to weep. The social worker explained the discussion with the mother, "[The mother] went on to say while crying that she thought it might be best if she did have monitored visits because she isnt sure if she can protect her daughter from [K.W.s father]." At the hearing on the section 388 petition, the mother submitted on the report. The juvenile court ordered the mothers visits to be monitored. J.M. told the social worker not to bother telling the mother about the photographs. In response to the monitored visitation order, the social worker related the reactions of J. W. and P.C., "Once this worker informed [J.M.] and [P.C.] that the visits will be monitored [J.M.] stated `thank you, and [P.C.] stated `that would be good."
On September 24, 2007, the department reported that the children resided with Beverly who found a large three bedroom home with a gated backyard. J.M. and P.C. were in individual counseling. The home was near Beverlys daughter, who would assist in transporting the children to and from school and to counseling sessions. J.M. was doing better in school and was less truant after being placed with Beverly. P.C. excelled in school receiving straight As and winning awards for academic achievement. K.W., who was in daycare, was described as advanced in her studies for a three-year-old child.
A May 14, 2007 Child Sexual Abuse Treatment Program report stated that the mother showed some insight and loved her children. However, there was a concern about the mothers ability to apply the skills and tools learned to protect the children. The mother struggled with her role in being an authority figure and in setting boundaries. The mother had stopped attending the program indicating that she could not afford to go hours before her class because she needed to focus on getting a job. The department spoke with the coordinator of the program, who stated the mother could come earlier and work off the fee. The mother refused, saying she already had to take the bus two hours early just to be on time for her appointment. The mother did not pass the May 2007 General Educational Developmental test. The mother had to complete a class to reschedule the test and stated she would retake it in September.
The mother consistently visited the children. Beverly acted as the monitor for the visits. The mother interacted with the children with homework, preparations for bed, and cooking. The children stated that they liked seeing the mother. The children were glad the mother could visit at Beverlys home. On August 15, 2007, J.M. stated that she wanted to be adopted. P.C. stated that he wanted the mother to do what she needed so he could live with her again. However, he understood the reason why the department wanted to pursue an adoption plan. Beverly said that she was willing and able to adopt the three children. The department described Beverlys attitude towards the mother, "[Beverly] states that she is not trying to replace the childrens mother and the mother is always welcome to her children." Beverly stated she just wanted to give the children a stable home in a good environment. The mother and her family wanted to know why the legal guardianship could not be the permanent plan. The department explained that K.W.s age made adoption the best plan for all three of the children.
The department recommended that family reunification services be terminated and a permanent plan of adoption for all three children. The department noted the mother had: not found employment; no stable housing for her and the children; not demonstrated an ability to protect the children and keep them safe; allowed K.W.s father at unsupervised visits; and stated that she was unsure if she could protect the children from K.W.s father. The matter was set for a contest by the mother.
On August 2, 2007, the department discussed the permanent plans of the three children with Beverly. Beverly understood the concurrent planning of adoption and legal guardianship. She stated that she thought about legal guardianship for all three children. However, Beverly thought K.W. was too young to be in legal guardianship. A department report related a conversation between Beverly and an adoptions worker: "[Beverly] stated that [J.M.] is her paternal granddaughter and [J.M.s] two younger siblings are not blood related to her, but she loves all three children. Therefore, she decided to adopt all three siblings."
J.M. spoke to the adoptions social worker on the telephone on August 3, 2007. J.M. wanted to return to the mother. If that wasnt possible, J.M. wanted to be adopted by Beverly. J.M. also wanted her two siblings to be adopted. P.C. was unavailable to talk on the telephone but J.M. said that he wanted to go back to the mother. But J.M. said P.C. was willing to be adopted by Beverly. After a contested hearing on October 2, 2007, the juvenile court terminated reunification services and set a section 366.26 permanent plan hearing.
On January 31, 2008, the department reported that J.M. was doing well in school. She received all As and Bs in her classes. She wanted to attend college and be a doctor or veterinarian. On December 14, 2007, J.M. said that she was happy in the prospective adoptive home and would like to stay there. J.M. wanted to know if there was a possibility of being returned to the mother at the next court date. J.M. was told that due to the mothers failure to complete court ordered services, it was unlikely. J.M. stated that she was confused about where she wanted to live. However, J.M. loved Beverly. J.M. was happy and felt safe in Beverlys care. P.C. stated that he loved his grandmother, meaning Beverly and liked to stay in her home. As far as P.C. was concerned, it was "o.k." to be adopted by Beverly. P.C. said: "`I want to be adopted because now I know what real family is. Its good because I can still see my mom. I feel safe here with my grandma."
Beverly stated that she has some concerns about anger, sadness, and trust issues exhibited by the three children. Beverly explained the children had experienced unusual situations in their lives. As a result, for example, J.M. hoarded food on occasion. Beverly explained to J.M. that it was no longer necessary to hoard food. Beverly stated that overall all three children were adjusting well to their prospective adoptive home. Beverly became a registered pediatrics nurse during the proceedings and was committed to a permanent plan of adoption. Beverly wanted all three children to grow up in a safe, loving, and permanent environment. Beverly encouraged the mother to remain in the childrens lives. Beverly intended to continue to allow the mother and the maternal family to have appropriate visitation with the children after adoption. After family reunification services were terminated, the mothers visits became sporadic. The department recommended that parental rights be terminated and the children be placed for adoption.
On March 27, 2008, the mother filed a section 388 petition requesting the children be placed in her home with an additional six months of reunification services. The section 388 petition was denied without a hearing. Also on March 27, 2008, the juvenile court conducted a contested section 366.26 hearing. J.M. and P.C. were present outside the courtroom. The department reported that the mothers status had not improved. The mothers visits with the children remained sporadic. The mother had only visited with the children two times since January 31, 2008. The mother refused to provide the department with a new telephone contact for her place of employment. It was reported to the department that the mother was still involved with K.W.s father.
Beverly testified that she "originally" had wanted guardianship of all three children. But Beverly was told that because of K W.s age, guardianship was not a viable option. Beverly then decided to adopt all three children. Her first choice was guardianship but she was willing to adopt. The juvenile court inquired of Beverly as to her willingness to adopt as follows, "Let me ask you another question, when you say youre willing to adopt, I know you said youre adopting kind of because they said you couldnt do guardianship, now—but at the time you said youre willing to adopt?" Beverly responded: "Yes." The juvenile court further inquired, "If you could do guardianship, and even though that is your first choice, if you could do guardianship, that was your first choice, would you still be willing to adopt?" To which Beverly replied, "I would still be willing to adopt, yes."
Beverly was asked if she was feeling "pressured" to adopt the children. Beverly responded: "No, not now." She further explained: "At the beginning, I wanted to do—if the children were not going to be returned to their mother, I wanted to do guardianship so that she could get them back at a later time. When . . . it was explained to me that because of [K.W.s] age, I couldnt do that. Then I said I will adopt and this is what I said from the very beginning that I will adopt, all three of these children, you know, not just my granddaughter. I consider them all my grandchildren. I love them all."
The following colloquy then ensued in which the juvenile court, Beverly, and Donna Bernstein, the mothers counsel, participated: "The Court: Now, at some point, when you were told that you couldnt do guardianship, you couldnt adopt [K.W.], were you told that if you didnt adopt they would be removed? [¶] The witness: No one told me they would be taken away from me, no. [¶] The Court: She said you couldnt adopt. They didnt say you cant, you couldnt do guardianship. [¶] The witness: I dont— [¶] The Court: The children would go up for adoption. [¶] The witness: I was told that they would go up for adoption. [¶] . . . [¶] The Court: If you didnt take guardianship, they would go up for adoption? [¶] The witness: No. [¶] Q By Ms. Bernstein: What did they explain to you today if you didnt want to adopt? [¶] The witness: You told me that if I didnt want to adopt, that you were not sure . . . because [J.M.] is by biological grandchild, that I could do guardianship . . . concerning [P.C. and K.W.]. [¶] Q [by Ms. Bernstein]: Nobody wants to pressure you into doing anything and — [¶] The Court: Miss Bernstein, what is your question? [¶] Q By Ms. Bernstein: If the court terminates your parental rights and you agree to adopt all of the children, would you feel that you still had been pressured to adopt when your first choice is to go for legal guardianship? A: No. [¶] Q. Do you have any hesitation going for guardianship of although you would prefer to go for guardianship for the two older ones? [¶] The Court: Are you asking guardianship or adoption? [¶] Q By Ms. Bernstein: Guardianship for the older two and go for adoption for the younger ones, maintaining all three children in your home? [¶] A. No, because I think the same thing should happen for all three children."
Beverly discussed what it means to be adopted with J.M. Beverly described that conversation: "What I have explained to [J.M.], first of all, I have two adoptive daughters and what . . . I explained to [J.M.] is that her mother will always be her mother. Her mother will always be her mother and . . . if I adopt . . . they will know me as Grandma. Im not going to change that." Beverly believed J.M. understood adoption and wanted to be adopted. The children called her grandma. The children could refer to her as grandma if they want but it would be their decision after adoption if they wanted to call her mom. Beverly was willing to let the children visit with the mother if the adoption went forward. J.M.s father wanted Beverly to adopt his daughter. J.M.s father thanked Beverly for taking the child.
K.W. knew who the mother is and Beverly encouraged that knowledge. K.W. was very happy to see the mother. K.W. talked about the mother. K.W. loved the mother. Beverly described the relationship between J.M. and the mother was a "little" strained. J.M. had a "lot" of trust issues. The mothers family blamed J.M. for what was happening to all of the children. On the day of the hearing, a maternal aunt made a telephone call to J.M. The maternal aunt screamed at J.M. While they were in the court, the mothers family blamed J.M. for what was happening. The mothers brother talked to J.M. thereby upsetting the youngster.
The mother testified that she had a "buddy system" with the children when they were with her. They did chores and interacted as a family. Since the section 366.26 hearing was set, the mother had visited the children every other week for about two hours. In response to the juvenile courts inquiry, the mother admitted that K.W.s father was present during two unmonitored visits in the park. The mother testified that she had not seen K.W.s father since the last visit in the park. During the visits with the children, the mother talked to J.M. and caressed and hugged K.W. The mother bought J.M. some jeans. In terms of J.M., the mother testified, "[S]he is not going to trust me." The mother testified she: talked to the children on the telephone if not everyday, every other day; visited sporadically because of work and school; had attended her parenting classes and sexual abuse treatment program; and had the support of her family and friends. The mother was present earlier in the day when J.M. was questioned and became upset. J.M. was questioned by the mothers brother. The maternal uncle asked J.M. why everyone was saying that she wanted to be adopted. The mother initially testified that she was present when the maternal aunt had called J.M. on the telephone. This too caused J.M. to become upset. The mother subsequently testified that she heard about it. The mother testified that: she had "made a mistake"; she was their mother; and the courses she took helped her grow up in the preceding two years.
On cross-examination, the mother admitted that she told the children to lie and not disclose that K.W.s father was present at some of the visits. According to the mother, she was afraid. K.W.s father just came around but she did not want him around her or her kids. The mother thought she was safe because there were other people in the park. If K.W.s father came around now, the mother would summon the police. Although the mother was aware of them, the mother had not participated in any of the childrens school activities or gone to any medical appointments. The mother planned to keep living with her brother until she became settled.
The juvenile court ruled that no exception to adoption existed. The juvenile court explained: "The court cannot find that the [section 366.26, subdivision (c)(1)(A)] exception applies, even if I consider the paternal grandmother to be a relative as to all three children and therefore only needed an unwillingness because of reasons that are not financial or financially responsible. Even if I found that with the two younger children, if she were a relative, without a lesser standard as opposed to the foster parent under [section 366.26, subdivision (c)(1)(B)(4)] which has to have exceptional circumstances. [¶] I cant find that she is unwilling or unable to adopt. She is willing to adopt. Its not her first choice, but she also does not feel pressured at this time and [is] willing to adopt the children. The [section 366.26, subdivision (c)(1)(B(1)] exception does not apply. The mother has had regular and somewhat consistent visits. According to her testimony, and somewhat has had a parental role before the children were removed. [¶] [J.M.] and [P.C.] were old enough, that has been a big parental role in their lives. She continues to have a relationship with the two of them and [K.W.], but even with that parental relationship, I cant find that it outweighs the benefit of permanence and adoption, especially in light of the fact that the mother was continuing to expose [J.M.] to the perpetrator, that the mother was continuing to maintain contact with him., basically chose him over the children. That other relatives are appearing to be blaming the children and to continue those relationships does not seem to outweigh—seems to continue, those relationships seem to show exactly why adoption is necessary in the case. . . . [¶] . . . [¶] The court finds by clear and convincing evidence and I do want to say that while the mother today has testified to a little more of an understanding regarding [K.W.s father] and sex abuse, the ongoing blame of [J.M.] by family member and/or pressure by family members on behalf of the mother, whether at her direction or not, . . . really adds to my concern about the detriment of maintaining the parental rights as to allowing the children to move on with their lives."
The juvenile court also noted that it did not have any information that J.M. was objecting to adoption such that section 366.26 subdivision (c)(1)(B)(ii) should apply. The court then discussed and found that no exceptions to adoption existed under section 366.26, subdivisions (c)(1)(A), (c)(1)(B)(iv), or (c)(1)(B)(v). Samyra Chequer, counsel for the children, stated that she was aligned with the departments position as to the appropriate permanent plan. The juvenile court identified the children as a sibling unit, found them adoptable, and terminated parental rights. This timely appeal followed.
III. DISCUSSION
A. Exceptions to Termination of Parental Rights
At a section 366.26 hearing, the trial court is required to select and implement a permanent plan for the dependent child. If the child is likely to be adopted, adoption is the Legislatures preferred permanent plan. (In re Derek W. (1999) 73 Cal.App.4th 823, 826; In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164; In re Edward R. (1993) 12 Cal.App.4th 116, 122; In re Heather B. (1992) 9 Cal.App.4th 535, 546.) Accordingly, the juvenile court must terminate parental rights if the child is likely to be adopted unless a statutory exception applies. (§ 366.26, subd. (c)(1); In re Jamie R. (2001) 90 Cal.App.4th 766, 773; In re Derek W., supra, 73 Cal.App.4th at p. 826.) The parent has the burden of proving that an exception applies. (In re Derek W., supra, 73 Cal.App.4th at p. 826; In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345.) The juvenile courts determination that an exception does not apply is reviewed for substantial evidence in which all conflicting evidence is resolved in favor of the order. (In re Xavier G. (2007) 157 Cal.App.4th 208, 213; In re Dakota H. (2005) 132 Cal.App.4th 212, 228; In re Derek W., supra, 73 Cal.App.4th at p. 827.)
B. Neither The Relative Nor Caregiver Exceptions Are Applicable.
The mother argues that the juvenile court erred in terminating parental rights because the evidence showed that Beverly was unwilling to adopt. Further, the mother asserts the department pressured Beverly into adopting. The mothers claim is predicated on amendments to section 366.26, subdivision (c)(1) effective January 1, 2008, which currently provides in part: "(c)(1) If the court determines, based on the assessment provided as ordered under subdivision (i) of Section 366.21 or subdivision (b) of Section 366.22, and any other relevant evidence, by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption. The fact that the child is not yet placed in a preadoptive home nor with a relative or foster family who is prepared to adopt the child, shall not constitute a basis for the court to conclude that it is not likely the child will be adopted. . . . Under these circumstances, the court shall terminate parental rights unless either of the following applies: [¶] (A) The child is living with a relative who is unable or unwilling to adopt the child because of circumstances that do not include an unwillingness to accept legal or financial responsibility for the child, but who is willing and capable of providing the child with a stable and permanent environment through legal guardianship, and the removal of the child from the custody of his or her relative would be detrimental to the emotional well-being of the child. . . . [¶] (B) The 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. [¶] (ii) A child 12 years of age or older objects to termination of parental rights. . . . [¶] (iv) The child is living with a foster parent . . . who is unable or unwilling to adopt the child because of exceptional circumstances, that do not include an unwillingness to accept legal or financial responsibility for the child, but who is willing and capable of providing the child with a stable and permanent environment and the removal of the child from the physical custody of his or her foster parent or Indian custodian would be detrimental to the emotional well-being of the child. This clause does not apply to any child who is either (I) under six years of age or (II) a member of a sibling group where at least one child is under six years of age and the siblings are, or should be, permanently placed together. [¶] (v) There would be substantial interference with a childs sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the childs best interest, including the childs long-term emotional interest, as compared to the benefit of legal permanence through adoption."
The mother argues the juvenile court should have ruled that the exceptions to adoption existed under section 366.26, subdivision (c)(1)(A) as to J.M. (a child living with a relative unwilling to adopt). The mother further asserts the section 366.26, subdivision (c)(1)(B)(iv) exception is present as to P.C. and K.W. (children living with a foster caregiver unwilling to adopt). We disagree because the juvenile courts determination that no exception applied is supported by substantial evidence.
During the section 366.26 hearing, the juvenile court dedicated a considerable amount of time to developing the record prior to resolving the issue in favor of adoption. The juvenile court questioned Beverly extensively about not only her preferences but her willingness to adopt the children. The juvenile courts inquiries clarified that Beverly had not been pressured and was willing to adopt the children. Beverly indicated that she wanted to adopt the children as a sibling unit because she loved them all and thought they should all be treated the same. Thus, the undisputed evidence was that Beverly was willing to adopt all three children such that neither subdivision (c)(1)(A) (for J.M.) nor subdivision (c)(1)(B)(iv) (for P.C. and K.W.) applied.
The mother nevertheless asserts that the case must be resolved differently because the evidence established Beverly was pressured to adopt despite her belief that legal guardianship would be best for the children. But the mother concedes, the juvenile courts factual determinations are supported by Beverlys sworn testimony that she was willing to adopt and had not been pressured by the department. For similar reasons, we reject the mothers claim Beverlys testimony should not be believed because undue pressure was applied by the department to adopt the children. (In re Baby Girl M. (2006) 135 Cal.App.4th 1528, 1536; In re Casey D. (1999) 70 Cal.App.4th 38, 52-53; In re Heather A. (1996) 52 Cal.App.4th 183, 193.)
Nor can the parental termination rights order be set aside because Beverly testified that she originally preferred legal guardianship rather than adoption. The Courts of Appeal have consistently concluded that a family preference for legal guardianship is insufficient as a matter of law to trigger the application of the caretaker exception. (See In re Xavier G., supra, 157 Cal.App.4th at p. 214 [concluding former § 366.26, subd. (c)(1)(D), which is currently subd. (c)(1)(B)(iv), was not triggered by a grandmothers preference for legal guardianship to adoption when the evidence established she was able and willing to adopt]; In re Rachel M. (2003) 113 Cal.App.4th 1289, 1298 [determining former § 366.26, subd. (c)(1)(D) "mere family preference" for legal guardianship is insufficient to satisfy language in former statute that relative or foster parent is unable or unwilling to adopt because of "exceptional circumstances"]; In re Zachary G. (1999) 77 Cal.App.4th 799, 809-810 [former § 366.26, subd. (c)(1)(D) exception was inapplicable even though the parent produced evidence the grandparent preferred to have mother and child reunited]; In re Jose V. (1996) 50 Cal.App.4th 1792, 1797 [concluding the caretakers preference for guardianship over adoption is irrelevant to hearing under former § 366.26, subd. (c)(1)(D) when the juvenile courts task was to select a plan that is in the childs best interest]; compare In re Fernando M. (2006) 138 Cal.App.4th 529, 535-538 [finding former § 366.26, subd. (c)(1)(D) applied in case under de novo interpretation "exceptional circumstances" language when evidence disclosed grandmother was unwilling or unable to adopt a special needs child and a spouse who objected to adoption].) Moreover, a potential adoptive parents preference is not controlling in terms of the juvenile courts determination as to what was in the childrens best interests. (See In re Xavier G., supra, 157 Cal.App.4th at p. 214; In re Jose V., supra, 50 Cal.App.4th at p. 1801.) The juvenile court is required to make the disposition that is in childs best interest at a section 366.26 hearing. (See § 366.26, subd. (h)(1) [juvenile court must act in the best interests of the child at the § 366.26 hearing]; In re Joshua S. (2003) 106 Cal.App.4th 1341, 1350 disapproved on a different point in In re Joshue S. (2007) 41 Cal.4th 261, 274, fn 7; see also In re Lauren R. (2007) 148 Cal.App.4th 841, 855 [overriding concern in dependency proceeding is best interest of child].) At a section 366.26 hearing, the trial court is required to select and implement a permanent plan for the dependent child. As previously noted, if the child is likely to be adopted, adoption is the preferred permanent plan. (In re Tabatha G., supra, 45 Cal.App.4th at p. 1164; In re Edward R., supra, 12 Cal.App.4th at p. 122; In re Heather B., supra, 9 Cal.App.4th at p. 546.) In sum, the mother failed to establish that the juvenile court erroneously failed to apply the exceptions for a relative or foster care. Rather, the juvenile courts determination the exceptions did not apply is supported by substantial evidence and must be upheld.
C. There Was Sufficient Evidence That J.M. Did Not Object To Adoption.
Section 366.26, subdivision (c)(1)(B)(ii) provides an exception for a child 12 years of age or older who objects to termination of parental rights. Here, the mother claims there was insufficient evidence to support the juvenile courts finding that J.M. did not object to termination of parental rights. According to the mother, the finding is not supported by the evidence because: J.M. was not present in the courtroom; counsel for the child did not inform the juvenile court of J.M.s views; the only sources of evidence about the childs adoption view were in a department report and Beverlys testimony which suggested that J.M. may have been misled about the consequences of terminating the mothers parental rights; J.M. expressed confusion and ambivalence about the adoption process; and J.M. was 14 years old at the time of the hearing such that a "much clearer record" of her wishes should have been made.
The mother introduced no evidence that J.M. did not want to be adopted. In fact, J.M. indicated on more than one occasion that she wanted to be adopted by Beverly if reunification with the mother was impractical. In a telephone call to the adoption social worker on August 3, 2007, J.M. expressed the desire to be adopted by Beverly if it was impossible to be returned to the mothers custody. During a family meeting on August 15, 2007, J.M. stated that she wanted to be adopted. On December 14, 2007, J.M. said she wanted to be adopted. J.M. knew that Beverly would be the adoptive parent. However, if possible, J.M. would like to live with the mother. In addition, Beverly testified that J.M. wanted to be adopted. Under the circumstances substantial evidence supports the conclusion the section 366.26, subdivision (c)(1)(B)(ii) exception does not apply.
D. Consideration of the Childrens Wishes
Relying on section 366.26, subdivision (h), the mother also claims that the juvenile court did not comply with the statutory requirement that it consider direct evidence of the wishes of J.M. and P.C. Both J.M. and P.C. had both been ordered to appear but were not in the courtroom. The mother challenges: the absence of questions to the children; the lack of information by the childrens attorney as to her clients wishes; and the lack of inquiry by the court as to the childrens knowledge of their right to be present. The department has correctly argued that the mother waived any error by failing to object or raise the issue of the childrens testimony in the juvenile court. (In re Amanda D. (1997) 55 Cal.App.4th 813, 819-820; see also In re Lukas B. (2000) 79 Cal.App.4th 1145, 1152.) In any event, oral testimony is not the only means to satisfy the courts inquiry duty. Rather, their wishes may be conveyed in other ways such as in reports prepared for the hearing. (In re Amanda D., supra, 55 Cal.App.4th at p. 820 [evidence of childs wishes need not be in form of direct testimony but can be found in court reports prepared for the hearing]; In re Leo M. (1993) 19 Cal.App.4th 1583, 1591 & fn. 6 [oral testimony is not required]; In re Juan H. (1992) 11 Cal.App.4th 169, 172-173 [same]; In re Diana G. (1992) 10 Cal.App.4th 1468, 1480 [same].) Moreover, the children were represented by counsel at the hearing. The juvenile court inquired about the childrens position through their attorney who supported termination of parental rights. It can be presumed that the childrens counsel complied with her duty to determine her clients wishes, before advocating termination of parental rights. (§ 317, subd. (c); In re Juan H., supra, 11 Cal.App.4th at pp. 172-173; In re Jesse B. (1992) 8 Cal.Appp.4th 845, 853.) As a result, the inquiry to counsel and their argument in favor of termination satisfied the requirements that the childrens wishes be adequately presented to the juvenile court.
IV. DISPOSITION
The order terminating parental rights is affirmed.
We concur:
MOSK, J.
KRIEGLER, J. --------------- Notes: All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.