Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Nos. J210211, J210212 & J210213, Wilfred J. Schneider, Jr., Judge.
Niccol Kording, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruth E. Stringer, County Counsel, and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.
Neil R. Trop, under appointment by the Court of Appeal, for Minors.
OPINION
MILLER, J.
S.R. (born September 2006) and S.Z.R. (born September 2002) are the children of D.M. (mother) and R.R. D.S. (born April 1994) is the child of mother and M.S. S.R., S.Z.R., and D.S. (minors) came to the attention of San Bernardino County Children and Family Services (CFS) when mother tested positive for methamphetamines while at the hospital for the delivery of S.R. Minors were removed from mother’s custody and her reunification services were terminated more than 18 months later. Thereafter, mother filed a Welfare and Institutions Code section 388 petition requesting custody of D.S. and reinstatement of services as to S.R. and S.Z.R. After a joint hearing, the court denied mother’s section 388 petition, found S.R. and S.Z.R. adoptable, terminated mother’s parental rights as to S.R. and S.Z.R., and ordered legal guardianship as the permanent plan for D.S.
Neither father is a party to this appeal.
Formerly the Department of Children’s Services.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
On appeal, mother contends that the court erred in denying her section 388 petition, in finding S.R. and S.Z.R. adoptable, and in failing to make a finding of detriment in returning minors to mother’s custody at the section 366.26 hearing. We find mother’s arguments unavailing and, therefore, affirm the judgment in full.
FACTUAL AND PROCEDURAL HISTORY
In September 2006, a social worker responded to a referral at the hospital where mother had given birth to S.R. Mother had shown objective signs of being under the influence of drugs when she was admitted to the hospital and both mother and S.R. tested positive for methamphetamine. During her entire pregnancy, mother had received only three prenatal doctor visits, all within one week, in her third trimester. Mother also reported testing positive for methamphetamines when she gave birth to S.Z.R. S.Z.R. was living with her paternal grandmother. D.S. was living with his maternal uncle. Mother admitted a history of drug use, but denied any current use. However, mother admitted to packaging methamphetamine at home. Mother admitted not having the means to support S.R.: the gas had recently been shut off at mother’s home. Mother had been the subject of numerous prior referrals to CFS and had previously been offered counseling and substance abuse services.
CFS filed section 300 petitions as to minors alleging failure to protect S.R. by knowingly using methamphetamine while pregnant and receiving limited prenatal care, failure to protect minors by suffering from a substance abuse problem rendering her incapable of caring appropriately for them, and having no provision for their support. Minors were subsequently detained and placed with S.R. and S.Z.R.’s paternal grandmother.
In a jurisdictional/dispositional report filed September 27, 2006, mother denied any drug use. Mother specifically claimed she had never used methamphetamines. She stated that her prior positive result for methamphetamine when she gave birth to S.Z.R. must have been due to someone slipping it in her drink. Mother alleged she had been unable to attend prenatal appointments due to her mother’s death in August 2005 and car problems. Mother requested that minors be placed with her sister. D.S. and S.Z.R. admitted that they would rather be in the custody of mother.
In an initial screening for drug court dated October 5, 2006, mother reported that she had used methamphetamine for nine years, the last time occurring on the date of S.R.’s birth in September 2006. Mother missed an appointment with her treatment provider. She tested positive for methamphetamine on September 15, 2006. Mother had also tested positive for methamphetamine in September 2002, when she was admitted to the hospital for delivery of S.Z.R. Mother tested negative for drugs on September 22, 2006.
In an addendum report filed November 27, 2006, the social worker noted that mother had again failed to show for an intake appointment with a treatment provider. Mother reportedly had missed one visit with minors, but had been present for all others. Mother was observed to have interacted appropriately with minors. An addendum report filed December 13, 2006, noted that mother continued to deny any drug use despite having positive drug tests. At a subsequent hearing, mother’s counsel requested appointment of a guardian ad litem due to mother’s apparent inability to understand the proceedings. That request was granted at a later hearing.
In an addendum report filed January 23, 2007, the social worker noted that mother had failed to arrive for three consecutive intake appointments for admission to an outpatient substance abuse treatment center. The center intended to terminate mother from the program unless she appeared at her next appointment. Mother failed to show for drug tests ordered on December 15, 2006, January 4 and 17, 2007, which were, therefore, deemed positive. Minors were placed with their maternal aunt on December 7, 2006. Mother failed to show for two scheduled visits with minors in January 2007, having last visited with minors in December 2006. The foster mother requested that future visits be held at CFS under its supervision. She alleged mother made threats, behaved inappropriately with minors, brought friends to visits, and asked that visits be scheduled at her friends’ homes. Mother indicated that the visits would have to occur on weekends because she was working every day. The social worker offered to arrange the visits to occur during mother’s lunch hour or after she got off work; however, mother refused the offer and failed subsequently to arrange for visitation.
At the dispositional/jurisdictional hearing held on the amended petitions on January 30, 2007, the court found true the allegation that mother suffered from a substance abuse problem rendering her incapable of caring for minors. It dismissed the remaining allegations. At a special hearing on March 21, 2007, the social worker reported that mother had not visited minors since December 15, 2006. Mother had scheduled visits twice but failed to show either time. Mother reported having difficulty attending the visits due to her work schedule yet failed to provide CFS with evidence that she was working and that her job interfered with visitation.
In a status review report filed July 16, 2007, the social worker reported that mother contacted her on March 22, 2007, indicating she would be unable to participate in her service plan because she had just been released from the hospital and was placed on “bed rest.” The social worker scheduled an appointment with mother on March 27, 2007; however, when she arrived mother was not home. The social worker never received documentation from mother regarding her alleged hospitalization or ordered bed rest.
Mother had positive drugs tests on October 24, 2006, and January 10, 2007. Mother failed to show for drug tests on September 11, 21, and 26, 2006; October 2, 2006; December 15, 2006; January 4, 17, and 25, 2007; and March 26 and 28, 2007, all of which were, therefore, deemed positive. Mother tested negative for drugs on February 15, 2007, and June 27, 2007. Mother was terminated from a drug treatment program on February 2, 2007, for poor attendance. Nevertheless, she began attending an inpatient drug treatment program on April 11, 2007, and completed it on June 9, 2007; however, she declined the aftercare program.
During a psychological evaluation, mother admitted to using methamphetamine “‘on and off’” between the ages of 17 and 34. The counselor recommended mother receive intensive outpatient drug treatment at least two to three days per week, indicating that “[t]ermination of [department] case supervision should take place only after the patient had demonstrated a consistent history of psychiatric stability and sobriety. All drug counseling, drug testing, psychiatric, and NA [Narcotics Anonymous] sessions should be documented so as to ensure that [mother] is consistently participating in treatment.”
D.S. reported that mother had previously sold food stamps and returned minors’ gifts to obtain money to buy drugs. He reported having to steal food from school in order to eat. He also reported smoking marijuana for the two years prior to removal. Nevertheless, D.S. consistently reported that he would like to return to mother’s custody as long as she could remain clean and sober. May 3, 2007, was mother’s first visit with minors since December 15, 2006. On June 22, 2007, D.S. was admitted to the hospital after having reported suicidal thoughts. He was reportedly depressed because the next court date was approaching and mother told him that he and his sisters would be returning home. While he stated he would like to go home someday, he did not believe mother was currently ready. He also related that the recent death of some of his family members accounted for some degree of his depression. During a visit on July 5, 2007, mother interrogated D.S. and became hostile, compelling the social worker to intervene and cut the visit short. Mother initially refused to leave, but eventually attempted to depart by picking up S.Z.R. and taking her with her. D.S. apologized for mother’s behavior and determined that he no longer wished to attend the next court date.
S.R. appeared to have adjusted to her new placement and did not appear to suffer any emotional difficulties. S.Z.R. struggled with enuresis and frequent nightmares when originally placed. She reportedly mimicked getting high and the sounds of people having sexual intercourse. S.Z.R. stated that she would like to go home to mother, but that she did enjoy living at her current placement. At the six-month review hearing on July 23, 2007, the juvenile court found mother continued to pose a detriment to minors. The court ordered mother to continue attending therapy and NA meetings.
In the status review report filed January 16, 2008, the social worker noted that S.Z.R.’s enuresis and nightmares initially subsided with counseling, but increased after visitation with mother began to occur on a regular basis. Her counselor opined that she was “‘ambivalent in her relationship with mother. This [could] likely be attributed to past abandonment and irregular visitation patterns with mother.’” The counselor concluded that visitation with mother might be agitating minors and recommended continued custody in foster care because mother had failed to complete her court ordered drug treatment. Mother missed a visit on July 31, 2007, due to conflicts with work, although she still failed to provide CFS with evidence that she was working. As of October 10, 2007, mother had missed three of four visits. Despite being advised otherwise, mother continued to discuss the case with minors and told them to be prepared to come home. The caretaker informed the social worker that minors missed a visit with mother scheduled for December 6, 2007, because D.S. had run away after learning that CFS was recommending six more months of services; mother had informed him he would be home for Christmas.
Mother was referred to an outpatient drug program on August 6, 2007, but was placed on a verbal attendance contract on August 29, 2007, due to poor attendance. The program had few random drug tests from mother because of her poor attendance. On November 9, 2007, the social worker was informed that mother had been absent from the program since October 30, 2007. On January 7, 2008, the social worker received a report that mother’s attendance continued to be a problem and that she would have to repeat phase one of the two-phase program. Mother tested negative in all nine of the drug tests to which she had submitted. Mother participated in five counseling sessions and was described as making progress toward her treatment goals. Mother failed to show for drug tests on July 23, 2007; August 23 and 24, 2007; and December 3, 10, 13, and 20, 2007. At a pretrial settlement conference on January 23, 2008, the court instructed mother “[Y]ou’re going to need to make a substantial turn around within the next month and a half.”
In an addendum report filed March 12, 2008, the social worker noted that S.R. had pulled away from mother at one visit. During another visit, S.Z.R. burst into tears and requested to go home. At a visit in January, D.S. told his mother “‘I love you, but you are not making me and my sister a priority in your life! I don’t want to do this anymore!’” D.S. elected not to visit with mother during the ensuing two months. A visit scheduled on February 13, 2008, was cancelled due to mother not receiving a gas voucher, and a visit scheduled on February 20, 2008, was cancelled due to mother calling too late. S.Z.R. was noted to interact appropriately with mother on at least one visit.
The caregiver reported that S.R. would scream for long periods of time for no apparent reason and at times would bang her head on the floor; S.Z.R. had poor academic performance. The social worker requested that S.R. and S.Z.R. be referred to the START program for services. Meanwhile, mother failed to show for two appointments scheduled for psychological evaluations on January 31, 2008, and March 3, 2008; thus, therapists had been unable to properly diagnosis her.
In a psychological assessment dated April 3, 2008, mother’s therapist reported that mother denied ever being employed other than working briefly at a bakery for a family member and performing some childcare. Mother reported that she had been raising and caring for her two children until she gave birth to S.R. At that point she reported having used methamphetamine for five years. Mother reported attending NA meetings three times a week since completion of her two-month inpatient drug program. The therapist diagnosed her as “mildly mentally retarded.” The therapist concluded that there was no reasonable basis to preclude return of minors to her custody: “[I]t is evident she has been very willing to complete any and all interventions required of her. Further, it is evident she is quite committed to maintaining her sobriety. While she does have certain intellectual limitations, there is no indication that she had any undue difficulty caring for the children absent her use of methamphetamines.”
On April 3, 2008, mother’s perinatal substance treatment program reported that she began treatment on August 3, 2007. Mother would be entering phase two of the program on March 31, 2008, wherein she would be required to attend three meetings a week and comply with random, on-site drug tests. Mother had negative test results for 16 of the 16 times she was drug tested. She was in good standing and predicted to be eligible to graduate in late June. Mother’s last negative drug test was on March 18, 2008. On May 13, 2008, another psychological treatment provider noted that mother’s efforts were initially good, but that she had missed two evaluation appointments and regularly failed to notify the clinic when she was unable to attend appointments. Mother had not received treatment from the clinic since February 8, 2008.
In an interim review report filed May 13, 2008, the social worker noted that mother would complete her perinatal program on June 22, 2008, and had a psychological assessment appointment scheduled for June 6, 2008. The social worker noted that mother did not understand her case plan and that her comprehension difficulties would prove to be a substantial roadblock in her ability to care for minors. A therapist observed that “[i]t appears the mother would have great difficulty meeting the needs of her children due to limited mental functioning that may have been exacerbated by chronic long-term substance abuse.”
A therapist stated that S.R. and S.Z.R. might have neurological damage from their exposure to drugs. S.R. continued to scream for hours at a time with no way to comfort her. S.Z.R.’s enuresis continued and she was observed to be depressed for three days after visiting with mother. The therapist observed that D.S. and S.Z.R. were “manifesting signs of stress regarding the possibility of reunifying with mother.” Mother tested negative for drugs on February 25 and April 3, 2008.
At the combined, contested 12-month review and termination of reunification services hearing on May 19, 2008, mother testified that although she had not completed a parenting class, she had completed the drug portion of her perinatal program, had tested negative for drugs 16 times, and had stopped using drugs on May 9, 2007. She had most recently tested negative for drugs on May 16, 2008. Mother averred she now had a three-bedroom house and if the children were returned to her she would support them by getting a job.
Mother admitted she stopped taking her prescribed medication two months previously because someone told her she was not bipolar; however, no professional ever told her to stop taking her medication. She was receiving social security benefits and had not started working because she was attending classes which made it too difficult to do both. She attended classes three times a week; however, she missed the last two weeks of classes because she was depressed due to D.S.’s suicidal ideation and the fact that he ran away from his placement. The court found custody by mother continued to be detrimental to minors, terminated reunification services, and ordered that S.R. and S.Z.R. be enrolled in the START program.
In an adoption assessment report dated September 11, 2008, the social worker described S.R. as a cute two-year-old Black female who was happy, engaging, playful, and healthy. S.Z.R. was described as a cute, quiet, reserved, yet friendly five-year-old Black female. S.Z.R. had academic problems and continued to suffer from enuresis, though there had been improvements while she was in therapy. The caretakers described chronic problems with S.Z.R. masturbating in public and displaying aggression towards S.R., including smashing a baby bottle in S.R.’s face and attempting to feed her a cup of boiling water. The caretakers could not leave S.R. and S.Z.R. in the same room alone together. D.S. did not wish to be adopted, but would like to take care of mother when he grew up. The prospective adoptive parents had frequently provided for D.S. prior to his detention whenever mother was unable due to her drug use. They had been involved with minors most of their lives, felt they have a good relationship with them, and wanted to provide them a safe and stable environment. The prospective adoptive parents wanted minors to remain in their home and understood the legal and financial obligations of adoption.
The section 366.26 report filed September 11, 2008, indicated that S.R. continued to cry inconsolably for hours. S.Z.R. reportedly had negative reactions to visits with mother, including acting out sexually—allegedly because mother had told her to do so. On October 6, 2008, mother filed a section 388 petition requesting custody of D.S., unsupervised visits with S.Z.R., supervised visits with S.R., and reunification services as to all minors. Mother had enrolled in the Vista Recovery program on May 8, 2008 (though the attached documentation reflected a start date of September 2, 2008), had a three-bedroom house, was receiving social security benefits, and had been free from drugs since June 9, 2007. Mother had tested negative for drugs on March 20, 2008, by hair follicle test. She alleged she had not discovered her learning disability until the therapist’s report dated May 19, 2008. She attended four clinical therapist sessions between June 25, 2008, and August 4, 2008. She claimed that D.S. wished to come live with her and that his suicidal thoughts and attempt to run away were motivated by his discovery that he would not be returned to her care. Moreover, mother alleged that S.Z.R.’s problems demonstrated that she was “a failed adoption waiting to happen....”
The social worker filed an interim review report in response to mother’s section 388 petition on October 16, 2008. In it she noted that mother had been living in subsidized housing for 14 years. She observed that S.R. would not go to mother at all during one visit. S.Z.R. had suffered from encopresis (uncontrolled bowel movements) after a visit with R.R. whom she alleged had sexually abused her. D.S. desired to reunite with mother when she was prepared, but he did not believe she was ready at this time. The social worker noted that mother had completed her service plan, but believed that separating the children from the caretakers with whom they had been placed for the past 22 months would prove detrimental to them. She concluded that minors required a lot of attention which would prove overwhelming to mother.
At the combined, contested sections 366.26 and 388 hearing, mother, paternal grandmother and great-grandmother all testified that mother had made substantial changes in her life. Mother testified that she had finished parenting classes, finished drug treatment, and had enrolled in the Vista Recovery program with two weeks left in that program. Mother attended NA meetings twice a week and had been drug free for nearly two years. She had a three-bedroom house and received social security income.
The social worker testified that D.S. did not want to be adopted and wanted to live with mother, but realized that would not be reasonable at that time. The prospective adoptive parents were committed to adopting S.R. and S.Z.R. despite their problems and were even more dedicated and committed to D.S. because of his problems. S.R. “really doesn’t know [mother], doesn’t have any bond with her.” Both S.R. and S.Z.R. displayed negative behaviors after visitation with mother. S.Z.R.’s encopresis occurred immediately after a visit with R.R. The prospective adoptive parents wished to suspend all visitation with mother for a short period of time in order to stabilize minors’ situation. D.S. no longer wished to visit with mother. S.R. and S.Z.R. would be admitted, within the next 30 days to the START program, which “specifically deals with children who were born drug addicted and are displaying the kind of problems these two children have.”
The juvenile court found that mother’s circumstances were changing, but not changed; that the best interests of minors would not be served by granting mother’s petition and, therefore, denied the petition. The court found that S.R. and S.Z.R. were adoptable, terminated mother’s parental rights as to S.R. and S.Z.R., and set adoption as their permanent plan. As to D.S., the juvenile court determined that termination of mother’s parental rights would be detrimental to him because he objected. The court, therefore, ordered legal guardianship as D.S.’s permanent plan.
DISCUSSION
A. Section 388 Petition
Mother claims that her circumstances had changed in that she had remained drug free for 18 months, had acquired adequate housing for minors, was working, was receiving social security benefits, had completed an inpatient drug treatment program, enrolled in an outpatient treatment program, continued to attend NA meetings, and completed an anger management program. In addition, mother contends that it was in the best interests of minors to reunify with her. CFS responds that mother failed to show that her circumstances had changed sufficiently to justify return of D.S. to her custody and reinstatement of reunification services. Moreover, CFS alleges the best interests of minors compelled their continued placement and control with the prospective adoptive parents. We agree with CFS.
“The juvenile court may modify an order if a parent shows, by a preponderance of the evidence, changed circumstance or new evidence and that modification would promote the child’s best interests. [Citations.] This is determined by the seriousness of the problem leading to the dependency and the reason for its continuation; the strength of the parent-child and child-caretaker bonds and the time the child has been in the system; and the nature of the change of circumstance, the ease by which it could be achieved, and the reason it did not occur sooner. [Citation.] After termination of services, the focus shifts from the parent’s custodial interest to the child’s need for permanency and stability. [Citation.] ‘Whether a previously made order should be modified rests within the dependency court’s discretion, and its determination will not be disturbed on appeal unless an abuse of discretion is clearly established.’ [Citation.] The denial of a section 388 motion rarely merits reversal as an abuse of discretion. [Citation.]” (In re Amber M. (2002) 103 Cal.App.4th 681, 685-686.)
Section 388 can provide “an ‘escape mechanism’ when parents complete a reformation in the short, final period after the termination of reunification services but before the actual termination of parental rights.” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 528.) “Even after the focus has shifted from reunification, the scheme provides a means for the court to address a legitimate change of circumstances while protecting the child’s need for prompt resolution of his custody status.” (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) However, the best interests of the child are of paramount consideration when a petition for modification is brought after termination of reunification services. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) Substance abuse is generally considered a more serious problem and, therefore, is less likely to be satisfactorily ameliorated in the brief time between termination of services and the section 366.26 hearing. (Kimberly F., at p. 531, fn. 9.)
Here, mother failed to meet her burden of showing that her circumstances had changed sufficiently to demonstrate that the return of D.S. to her custody and reimplementation of reunification services as to all the minors was in their best interests. Mother failed to prove by any affirmative evidence, other than her own testimony, that she was currently drug free and had been so for the entirety of the alleged 18-month period. The hearing on mother’s section 388 petition occurred on November 4, 2008, yet mother’s most recent documented negative drug test occurred on April 3, 2008, seven months earlier and prior to the termination of her reunification services. Mother testified that she tested negative for drugs on May 16, 2008, yet she provided no evidence of this. While mother’s last positive drug test occurred on January 10, 2007, mother failed to show up to an ordered drug test as late as December 20, 2007, which, as the court repeatedly warned her, counted as a positive result. In fact, mother had missed numerous, earlier ordered drug tests. Thus, she had a documented drug-free history of, at best, less than a year.
Mother testified at the hearing that she started the Vista Recovery drug treatment program in September 2008; however, she admitted that she had not been drug tested in that program. Moreover, she still had two weeks left before she completed the program. The court had before it evidence that mother had been enrolled in previous programs and failed to complete them. No explanation was given as to why mother waited four months after her reunification services were terminated before enrolling in the current program. Moreover, while mother alleged she attended NA meetings twice a week, she submitted no attendance sheet or other documentary evidence of this. Mother had, at various times, averred that (1) she had never used drugs, (2) had used drugs only for the five-year interval preceding detention of minors, and (3) had a 17-year history of drug use. As one therapist noted, because of mother’s drug history, termination of supervision should take place only after mother had demonstrated a consistent, documented history of drug treatment. Thus, despite the social worker’s assertion that mother had completed her case plan, the juvenile court could well have determined on this record that mother’s loosely documented sobriety over the past year was simply not sufficient to show changed circumstances when evaluated against her extensive history of drug abuse. (In re Amber M., supra, 103 Cal.App.4th at p. 686; In re C.J.W. (2007) 157 Cal.App.4th 1075, 1081.)
Moreover, mother’s other alleged changed circumstances were revealed not to have been changes at all. Mother had obtained a subsidized three-bedroom home in May 2008, prior to the hearing resulting in the termination of reunification services. She had been a beneficiary of subsidized housing for the past 14 years. Her previous housing situation was considered suitable for the children. Thus, the new home was not a changed circumstance supporting her petition. Contrary to appellate counsel’s assertion, mother provided no evidence below that she was currently working. Rather, mother testified that she had been receiving social security income of $860 for 10 months, and that was sufficient to cover her $333 monthly portion of the subsidized rent. While mother had previously alleged that she had a job that interfered with her visitation with minors, mother never provided evidence of such work. In fact, mother informed a therapist that she had never had a job other than briefly helping out at a family member’s bakery and providing some childcare. Furthermore, mother had testified at one point that she could not get a job because of the difficulty of juggling work and the three meetings a week she was attending for treatment. This, despite the fact that mother had not been attending those meetings for the previous two weeks due to depression brought on because of D.S.’s suicidal ideation and running away from his placement; events which had occurred respectively nearly 18 months earlier.
Likewise, mother failed to show that minors’ best interests supported granting her petition. The social worker testified that while D.S. did not want to be adopted and eventually wished to go home to mother, he realized that it was not reasonable to return to her custody at that time. Minors consistently manifested negative symptomology after visitation with mother; thus, it was reasonable to deduce that the instability resulting from the dependency process was at least one of the causative factors contributing to their problems. Indeed, the prospective adoptive parents planned to suspend visitation for a short time in an effort to stabilize minors’ situation and ameliorate those problems. S.R. and S.Z.R. would be beginning the START program, which would be directed at alleviating some of the suspected neurological problems they incurred as a result of being born addicted to drugs. Minors were placed with the prospective adoptive family on December 7, 2006; thus, minors had resided with them for nearly 23 months. S.R. had never lived with mother and their bond was described as minimal. S.Z.R.’s bond with mother had been described as “‘ambivalent.’” Even prior to minors’ detention, they were reportedly living with other family members. The prospective adoptive family was dedicated to minors and wished to adopt them despite their problems. Any benefit derived from continued visits with mother would be incidental compared with the security provided by the prospective adoptive parents, particularly as many of minors’ problems appeared to derive from continued visitation with her. Moreover, the prospective adoptive parents were not opposed to eventually allowing visitation with mother once minors’ situation stabilized. Thus, the juvenile court acted within its discretion in determining that minors’ best interests would be served by the stability and permanency engendered by remaining in the prospective adoptive parents’ custody and control.
B. Detriment
Mother contends that reversal is required because there was no showing of current detriment in returning the children to her care at the time of the section 366.26 hearing. CFS argues that the court was not required to make a detriment finding at the section 366.26 hearing. We agree with CFS.
At review hearings in juvenile dependency proceedings when a child has been removed from a parent, the court must return the child to the parent unless it finds that doing so “would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child.” (§§ 366.21, subds. (e) & (f), 366.22, subd. (a).) If the child cannot be returned to the parent within the time required, the court may terminate reunification services and set a hearing to be held pursuant to section 366.26. (§ 366.21, subds. (e), (g)(2) & (h).) Thus, “[b]y the time dependency proceedings have reached the stage of a section 366.26 hearing, there have been multiple specific findings of parental unfitness.” (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 253.) At the section 366.26 hearing, the sole issue “‘is whether there is clear and convincing evidence that the child is adoptable. [Citations.]’” (In re Josue G. (2003) 106 Cal.App.4th 725, 733; see § 366.26, subd. (c).) Reunification with the parent need not be considered. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) As our state Supreme Court has explained, “[i]t is not the purpose of the section 366.26 hearing to show parental inadequacy, which had to have been previously established, and there is no burden on the petitioning agency to show at the section 366.26 hearing that the parents are ‘at fault.’” (Cynthia D., at p. 254.) “By the time of the section 366.26 hearing, no state interest requires further evidence of the consequences to the child of parental unfitness....” (Id. at p. 256.) Nor does the failure to require such a finding at the section 366.26 hearing violate a parent’s right to due process. (In re Brittany M. (1993) 19 Cal.App.4th 1396, 1403; In re Amanda D. (1997) 55 Cal.App.4th 813, 819.) Because the court was not required to make a finding of current detriment at the section 366.26 hearing, we reject mother’s argument that the court erred in failing to make such a finding.
Mother relies entirely upon the decision in In re P.C. (2008) 165 Cal.App.4th 98 (P.C.). In that case, the mother had completed all services required by her case plan prior to the termination of reunification services and the only reason for preventing the return of the children to the mother’s care was her “housing situation.” (Id. at pp. 101-102.) The mother’s failure to find adequate housing was due in part to CFS’s failure “to do its part in helping mother find [suitable] housing.” (Id. at p. 106.) The juvenile court nevertheless terminated services and set a section 366.26 hearing. (P.C., at p. 102.) At the section 366.26 hearing, the court terminated the mother’s parental rights. (P.C., at p. 103.) On appeal, the court held that, under the circumstances presented in that case, the mother’s failure to find housing acceptable to CFS was a legally insufficient basis to support a detriment finding. (Id. at pp. 106-107.) CFS argued that no further detriment finding was necessary to terminate parental rights. (Id. at p. 106.) The Court of Appeal rejected this argument because the basis for the prior detriment findings, that the mother did not obtain acceptable housing, was legally improper. (Ibid.)
Contrary to mother’s argument here, we do not read P.C. as holding that the juvenile court must make a finding at the section 366.26 hearing that return of minors to the parent would be detrimental. P.C. appears to create a narrow exception to the otherwise settled rule that no such findings are required at the section 366.26 hearing unless the prior findings of detriment were legally insufficient because they were founded solely on the parent’s lack of suitable housing: “[P]overty alone, even abject poverty resulting in homelessness, is not a valid basis for assertion of juvenile court jurisdiction.... Put differently, indigency, by itself, does not make one an unfit parent and ‘judges [and] social workers... have an obligation to guard against the influence of class and life style biases.” (P.C., supra, 165 Cal.App.4th at p. 104.) Thus, because the court determined that the prior findings of detriment were improperly based on the parent’s lack of suitable housing, it concluded mother’s parental rights could not be terminated at the section 366.26 hearing. (P.C., at p. 106.)
In contrast to the situation in P.C., mother does not challenge the validity of the order terminating reunification services and setting the section 366.26 hearing. Moreover, the evidence supporting a finding of detriment at that hearing included mother’s failure to complete a required parenting class, her failure to show for psychological assessments, her failure to complete her perinatal treatment program, and her failure to continue taking her prescribed medication. At no time did the court determine that mother’s failure to provide minors with suitable housing was a basis for a finding of detriment. Indeed, mother apparently had housing deemed suitable to CFS prior to the hearing at which her reunification services were terminated. Furthermore, the parent in P.C. had completed her case plan and corrected her offending behavior when the juvenile court made its later findings of detriment. (P.C., supra, 165 Cal.App.4th at p. at 106.) The court noted that if the parent had not done so, it “would agree that the court’s continued findings of detriment were tantamount to a finding of parental unfitness.” (Ibid.) Here, however, mother had not completed her case plan and failed to document that her offending behavior had been corrected when the court made its last finding of detriment. Thus, because there was substantial evidence to support the termination of services at the May 2008 hearing, P.C. is distinguishable and inapposite. The juvenile court was not required to make a further finding of detriment at the section 366.26 hearing.
C. Adoptability
Mother challenges the juvenile court’s determination that S.R. and S.Z.R. are adoptable. Specifically she contends that their continuing physical and emotional problems rendered them likely to become “legal orphans.” We disagree.
The juvenile court cannot terminate parental rights unless it finds by clear and convincing evidence “that it is likely the child will be adopted....” (§ 366.26, subd. (c)(1).) “Review of a determination of adoptability is limited to whether those findings are supported by substantial evidence. [Citation.]” (In re Carl R. (2005) 128 Cal.App.4th 1051, 1061.) “[W]e view the evidence in the light most favorable to the trial court’s order, drawing every reasonable inference and resolving all conflicts in support of the judgment. [Citation.] An appellate court does not reweigh the evidence. [Citation.]” (In re Marina S. (2005) 132 Cal.App.4th 158, 165.)
“‘The issue of adoptability... focuses on the minor, e.g., whether the minor’s age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor. [Citations.]’ [Citation.]” (In re Zeth S. (2003) 31 Cal.4th 396, 406, quoting In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) “‘“Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor’s age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parent’s willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family.”’ [Citation.]” (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1562.)
Here, the prospective adoptive parents have been involved with minors most of their lives. At the time of the hearing, minors had been placed with them for nearly 23 months. The prospective adoptive parents expressed their wish that minors would remain in their home and they intended to continue providing them with a safe and stable environment. They understood the legal and financial responsibilities of adoption. Despite S.R. and S.Z.R.’s problems, the commitment to adopt them was described as “Very firm.” The prospective adoptive mother never wavered in her commitment to minors and informed the social worker how much she loved them and could not imagine being apart from them. This is substantial evidence that S.R. and S.Z.R. were adoptable.
Mother cites In re Jerome D. (2000) 84 Cal.App.4th 1200 (Jerome D.) and In re Amelia S. (1991) 229 Cal.App.3d 1060 (Amelia S.), for the proposition that the current caretaker’s willingness to adopt constitutes insufficient evidence of adoptability. These cases are distinguishable from the instant case. In Jerome D., the adoption assessment report did not state whether there were any approved families willing to adopt the child. (Jerome D., at p. 1205.) The report also failed to mention that the child had a close relationship with his mother and had a prosthetic eye, which required special treatment. (Ibid.) In addition, the report did not address the prospective adoptive parent’s criminal and child abuse history. (Ibid.) The court in Jerome D. concluded it was clear that the finding of adoptability was based only on the caretaker’s willingness to adopt. (Ibid.) Therefore, there was insufficient evidence of general adoptability to support the adoptability finding. (Ibid.)
Here, the adoption assessment report did not omit any significant information regarding S.R. and S.Z.R.’s problems and there were factors apart from the prospective parents’ willingness to adopt S.R. and S.Z.R. that supported a finding of adoptability. S.R. and S.Z.R. were young, whereas in Jerome D., the child was almost 13; a less desirable age to adopt. (§ 366.22, subd. (c)(3).) In addition, S.R. and S.Z.R.’s problems in the instant case appeared to be related to visitation with mother and/or R.R. Indeed, some of the problems which manifested immediately upon placement dissipated with counseling during the period in which mother did not visit. They only reappeared when mother began regular visitation again. S.Z.R.’s encopresis occurred immediately after a visit with R.R. The prospective adoptive parents intended to suspend all visitation until minors’ situations stabilized; thus, there was substantial evidence that S.R. and S.Z.R.’s problems would improve by remaining in their adoptive placement. There also was evidence that S.R. was a cute, happy, engaging, playful, and healthy child and that S.Z.R. was a cute, quiet, reserved, yet friendly child.
Amelia S., supra, 229 Cal.App.3d 1060, is also distinguishable. In Amelia S., the court reversed a finding of adoptability of a sibling set of nine out of 10 children who had developmental, emotional, and physical problems. (Id. at pp. 1062-1063, 1065.) The children were described as “‘hard to place.’” (Id. at p. 1063.) None of the foster parents had agreed to adopt them; although, the foster parents of five of the children were “considering adoption.” (Id. at pp. 1062, 1065.) The remaining foster parents expressed no interest in adopting the remaining children. (Id. at pp. 1062-1063) The appellate court thus concluded there was insufficient evidence of adoptability. (Id. at p. 1065.)
Here, there were only two children in the sibling set and their caretaker expressly wanted to adopt them. In addition, unlike in Amelia S., the young ages of S.R. and S.Z.R. make them easier to place. As noted in Amelia S., supra, 229 Cal.App.3d at page 1065, “it is not necessary pursuant to section 366.26, subdivision (c)(1) that the child, at the time of the termination hearing, already be in a potential adoptive home. Rather, what is required is clear and convincing evidence of the likelihood that adoption will be realized within a reasonable time.” Not only were the children in a potential adoptive home, but in addition, even if they were not ultimately adopted by the current caregiver, there was sufficient evidence of the likelihood that they would be adopted within a reasonable time.
Similarly, mother’s citation to In Asia L. (2003)107 Cal.App.4th 498 (Asia L.), is inapposite. The minors were observed to have extreme emotional and psychological problems requiring specialized placement. (Id. at pp. 510-512.) A report initially noted that one of the minors was considered “difficult to place” as there was no prospective adoptive parent identified for him. (Id. at p. 511.) A subsequent report observed that the foster parents were “‘willing to explore adoption of the children, [but] it is too soon for [the foster parents] to make such a permanent and life changing decision.’” (Ibid.) Nevertheless, CFS opined that a prospective adoptive family could be found for minors. (Ibid.) The appellate court concluded that “the foster parents’ willingness to explore the option of adopting [minors] [was] too vague to be considered evidence that some family, if not this foster family, would be willing to adopt these children.” (Id. at p. 512.) “[T]he social worker’s conclusion alone is insufficient to support a finding of adoptability.” (Ibid.)
Asia L., supra, 107 Cal.App.4th 498 was decided under a former version of section 366.26; the statute was amended in 2005, adding subdivision (i)(2), which provided that if, after three years following the termination of parental rights, a child had not been adopted, the child could petition the juvenile court to reinstate parental rights. (In re I.I. (2008) 168 Cal.App.4th 857, 871.)
Here, like the foster family in In re Jeremy S. (2001) 89 Cal.App.4th 514, 525), S.R. and S.Z.R.’s prospective adoptive parents indicated that they strongly wished to adopt them. Likewise, “the prospective adoptive home was sufficiently evaluated so as to allow the trial court to consider it when assessing [minors’] adoptability.” (Id. at p. 525.) Similarly, in In re Sarah M. (1994) 22 Cal.App.4th 1642, the prospective adoptive parent expressed her intent to adopt the minors and understood the issues involved in raising them. (Id. at p. 1647.) “Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor’s age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor.” (Id. at 1649-1650.)
DISPOSITION
The judgment is affirmed.
We concur: RICHLI, Acting P. J., KING, J.