Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK22878, Albert J. Garcia, Commissioner.
Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Timothy M. O’Crowley, Senior Deputy County Counsel, for Plaintiff and Respondent.
MALLANO, P. J.
M.G. (Mother) appeals from a November 8, 2007 order terminating parental rights to Juanita F. (born in 1993), Mi.F. (born in 1994), Soledad G. (born in 1998), and Jose G. (born in August 2002), contending that the juvenile court did not consider the wishes of the youngest child, Jose, as required by Welfare and Institutions Code section 366.26, subdivision (h)(1). We affirm the order because the record shows that the Los Angeles County Department of Children and Family Services (DCFS) reported Jose’s wishes to the court on numerous occasions before the section 366.26 hearing.
Unspecified statutory references are to the Welfare and Institutions Code. Section 366.26, subdivision (h)(1) provides: “At all proceedings under this section, the court shall consider the wishes of the child and shall act in the best interests of the child.”
BACKGROUND
In October 2004, Mother and her six children were living in a hotel room, from which Mother was selling drugs. After Mother was arrested for possession of methamphetamine, the children were detained and placed with the maternal aunt and her husband. The four children involved in this appeal remain with the maternal aunt and her husband, their prospective adoptive parents.
L.G. turned 18 in January 2005 and juvenile court jurisdiction was terminated as to her in June 2005. Gerardo G., Jr. (born in 1997), was removed from the maternal aunt’s home due to behavioral problems and placed in foster care with nonrelatives in August 2006. The permanent plan for Gerardo G., Jr., was legal guardianship.
In December 2004, the children were declared dependents of the juvenile court pursuant to section 300, subdivisions (b) (failure to protect) and (c) (serious emotional damage), based on Mother’s sale of drugs in the children’s home and Mother’s failure to ensure Juanita’s regular school attendance, which placed Juanita at risk of severe anxiety and depression. Mother was granted reunification services and monitored visitation.
Throughout the pendency of the proceeding, Mother had difficulty maintaining consistent visits. In June 2006, the court found that Mother was not in compliance with the case plan and terminated reunification services. The maternal aunt’s adoptive home study was approved in February 2007.
In June 2005, when Jose was two years old, DCFS reported that he was too young to provide a statement regarding his placement wishes, but Juanita, Mi., and Soledad reported that they were happy living with the maternal aunt. In December 2005, DCFS reported that it discussed permanency options with the children and that all of them reported being happy about their placement with the maternal aunt. At that time, Juanita and Mi. preferred adoption and did not want to return to Mother even if she completed all her programs. Soledad expressed confusion as to what she wanted, and Jose was too young to make a statement about his preference.
In May 2006, DCFS reported that Soledad stated that she wanted to remain in the maternal aunt’s home and Jose “also stated that he wanted to remain with his aunt and uncle.” According to a June 2007 status review report, “Jose [then age four] also stated that he was doing well. CSW has observed that minor is an overall content child. He was unable to provide a significant statement due to his young age. However, he informed CSW that he loved living in his new home with his aunt and uncle, whom he calls ‘mommy’ and ‘daddy.’”
In August 2007, when the social worker interviewed the children during her regular monthly visit, Soledad and Jose “became very emotional during this visit as a result of CSW inquiring about their desire to live with their father.” Jose told the social worker, “‘No, I want to go with my mommy (aunt) and nobody else.’” According to DCFS’s November 8, 2007 interim review report, Jose again told the social worker, “‘I want to be with my mommy (maternal aunt), not [Mother], because she is not very nice sometimes.’”
At a hearing in July 2007, Mother testified that her children call her “Mom” and that during her last Sunday’s visit with Jose, he told her, “‘Mommy, take me home.’” At the section 366.26 hearing in November 2007, Mother testified that Jose refers to her as “Mom” and runs to hug her at his visits. But Jose did not tell her that he loved her, and “[i]f he said it, he said it once or twice because for him everything is play.” In connection with a section 388 petition filed by Father, which was heard on the same day as the section 366.26 hearing, a social worker testified that the children, including Jose, requested to remain in the care of the maternal aunt, and she discussed the issue with them on a monthly basis.
At the conclusion of the section 366.26 hearing, Mother’s attorney argued, “[W]hile I think that it’s clear that the children wish to remain with the aunt, I don’t think it’s clear that they would choose adoption as the plan, and I think that there’s an important difference between [adoption and legal guardianship]. [¶] I would ask the court to find that it is more beneficial to go to a legal guardianship plan in these circumstances.” The attorney for Soledad and Jose argued, “I am in agreement with the Department’s recommendation [of adoption]. We have children that are old enough actually to make their own statements regarding what their desires are and their desire[s] are very clear. I believe that they have a relationship with their mother, and I believe that relationship will continue. I believe that the relationship with the father . . . will continue too. [¶] However, I believe that it’s in their best interests, and I don’t believe any exception has been shown today, and I would ask that the court terminate parental rights.”
The court found it likely that the children would be adopted and terminated parental rights, determining that no exception to adoption was shown. Mother appealed from the order terminating parental rights. Her only contention is that DCFS “failed to properly advise the court of [Jose’s] views regarding placement and adoption . . . .”
DISCUSSION
“Section 366.26, subdivision (h) requires the court at the selection and implementation hearing to ‘consider the wishes of the child.’ This evidence may be presented by direct formal testimony in court, informal direct communication with the court in chambers, reports prepared for the hearing, letters, telephone calls to the court, or electronic recordings. [Citation.] However, the court must only consider the child’s wishes to the extent those wishes are ascertainable. [Citation.] A child may not be able to understand the concept of adoption.” (In re Joshua G. (2005) 129 Cal.App.4th 189, 201.) If a parent fails to challenge the adequacy of an adoption assessment report below, she has waived that argument on appeal; but the parent may still challenge the sufficiency of the evidence supporting the juvenile court’s finding of adoptability. (Id. at p. 200, fn. 12.) As Mother failed below to challenge the adequacy of DCFS’s adoption assessments, Mother has waived that contention. We construe Mother’s contention regarding violation of section 366.26, subdivision (h)(1) to be tantamount to a challenge to the sufficiency of the evidence of the juvenile court’s adoptability finding. We thus address the merits of her claim that Jose’s wishes were not considered.
“The issue of sufficiency of the evidence in dependency cases is governed by the same rules that apply to all appeals. If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings. [Citation.] 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.” (In re Christopher L. (2006) 143 Cal.App.4th 1326, 1333.)
DCFS’s reports afforded the juvenile court a reasonable basis for ascertaining Jose’s wishes regarding placement with, and adoption by, the maternal aunt. DCFS’s reports in June, August, and November 2007 (which were admitted into evidence at the section 366.26 hearing) contained information about Jose’s feelings about living with his maternal aunt, and he consistently expressed a preference to remain with her. The record thus shows that DCFS provided the juvenile court with information about Jose’s wishes and that such information was considered by the juvenile court in making its findings. We therefore reject Mother’s characterization of the instant record as being “pretty much silent about what [Jose] thought about these matters.” Mother fails to show any reversible error.
DISPOSITION
The order is affirmed.
We concur: ROTHSCHILD, J., NEIDORF, J.
Retired Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
The whereabouts of the alleged father of Juanita and Mi., Vicente F., were unknown to DCFS, and he never appeared in this action.
The father of Soledad, Gerardo G., Jr., and Jose is Gerardo G., Sr. (Father), who appeared in court for the first time in June 2005 and was afforded reunification services. Father did not appeal from the order terminating parental rights.