Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. JD217945, JD220501
DAVIS, J.
Tr.B., father of T.B. and Tr.B., Jr. (Tr.), appeals from the denial of his Welfare and Institutions Code section 388 motion. He contends the court abused its discretion in denying his section 388 petition by improperly relying on the children’s bond with their prospective adoptive parents as the sole factor to assess the children’s best interests.
Hereafter, undesignated section references are to the Welfare and Institutions Code.
The juvenile court did not advise father of his right to appeal the denial of his section 388 petition. He was not advised of his appellate right until his parental rights were terminated. Father timely appealed the latter. Because of the lack of notice on the section 388 petition, we will review it as well.
Father also appeals the juvenile court order terminating his parental rights. (§ 366.26.) He contends: 1) the trial court and the social worker violated his due process rights by failing to provide for sibling visitation with the children’s half sibling, E.P.; 2) the social worker violated his due process rights by reducing his visitation with the children after his reunification services had been terminated; and 3) the court abused its discretion in terminating his parental rights, as there was insufficient evidence to find the children adoptable, the court improperly failed to find an exception to adoption based on the bond between father and the children and the court failed to ascertain the wishes of the children. Mother, Juanita R., joins father’s appeal as to this last contention. We shall affirm.
Facts and Procedural History
In March 2002, when T.B. was 10 months old, she and her half siblings were detained by the Sacramento County Department of Health and Human Services (DHHS) when her mother stabbed her father. On May 3, 2002, the children were returned to the custody of their mother and reunification services were provided. Reunification services were terminated for father on November 22, 2002, because he had not completed any services. The court also found father had not had any contact with T.B. for the prior six months. In January 2003, the dependency case was dismissed and sole legal and physical custody was awarded to mother.
On May 9, 2004, now three-year-old T.B. and her seven-month-old brother, Tr., were detained. Mother was in jail for having stabbed and seriously injured father in October 2003, and father was in jail as a result of a charge of driving under the influence (DUI). Father had left the children with an inappropriate caretaker during his incarceration. The children’s 12-year-old half sibling, E.P., was also detained, although he was placed separately.
The police were originally called to the home on an allegation of domestic violence between father and his girlfriend. He was retained in custody because of an outstanding warrant on a DUI case. There is no indication he was ever charged or convicted on the domestic violence allegations.
Father was offered reunification services and was making fair progress by the time of the contested jurisdictional/dispositional hearing on September 20, 2004. Mother was denied reunification services.
The children were placed together in a foster home. Tr. was doing well. T.B. was reported to be having some difficulty following directions and would have sustained temper tantrums.
By December 2004, DHHS was recommending termination of reunification services for father based on his noncompliance. Specifically, he had been making good progress until August 2004. However, he had essentially dropped out of services from September to November 2004, and DHHS noted that he had “failed to significantly comply with his case plan.” Accordingly, on January 25, 2005, reunification services were terminated. A permanent plan of adoption was recommended.
A bonding assessment was scheduled for March 2005, but had to be rescheduled because father was in jail due to a physical altercation with one of his neighbors.
On May 25, 2005, father filed a petition for modification under section 388. The petition was denied without a hearing.
A bonding assessment was completed on July 12, 2005. The assessment found that the children interacted freely with father, showing no fear or reluctance. T.B. was spontaneous and affectionate with father. It was clear she desired his attention and was bonded with him. Tr. was generally aloof toward father. He did not seek out affectionate contact with father and played independently. He was familiar with father, but not bonded with him. Neither child was distressed or concerned when father left the visit. The assessor concluded that, because T.B. was bonded with father, she would benefit from “some type of continued contact” with him.
On August 23, 2005, the children were moved from their previous foster home to a prospective adoptive home. They were moved because of allegations of licensing violations and corporal punishment in the foster home.
On September 29, 2005, father filed another section 388 petition. This petition was also denied without a hearing. The court found there had been a prima facie showing of changed circumstances, but no showing that a change was in the children’s best interests.
Father was placed on house arrest from September 2005 to November 2005. During this period, the children became visibly more reserved in their interactions with father during visits. T.B. was uncomfortable for the first 20 minutes of one visit and clung to the social worker. Her bond with father had “significantly lessened.”
There is no indication in the record why specifically father was on house arrest at this point.
The children were adjusting well to their new foster home and were establishing appropriate bonds with their prospective adoptive parents. T.B. liked her new house and wanted to live there, but was sad her father could not have a nice house like theirs. T.B. also stated she loved her “new mommy and daddy.” Her behavior was improving. Previously, she had been aggressive with other children and defiant with authority figures. In her new home, T.B. was accepting limits and boundaries. Tr. was very attached to his prospective adoptive father.
On November 14, 2005, father filed another section 388 petition. The court granted a hearing on this petition, which was set to be heard at the same time as the section 366.26 hearing.
Ultimately, the hearing on the section 388 petition and the section 366.26 hearing began on March 2, 2006. The parties agreed the evidence adduced at the hearing could be utilized for both the section 388 petition and the section 366.26 hearing.
Father presented evidence he had completed a variety of services, including outpatient drug treatment, parenting classes, and individual counseling. Father acknowledged he was not currently attending any counseling services and had not had any domestic violence counseling. He testified the children are bonded to him and ask “all the time” when they can come home. Since the reduction in visitation, he noticed T.B. would act out when visits did not go as planned.
He testified the adoption social worker would not let E.P. (their half sibling) visit the children with him. E.P. was there when T.B. and Tr. were each born and had lived with them for a very long time. Before the termination of reunification services, E.P. had visited regularly with T.B. and Tr. The children love E.P. and were very focused on him during visits.
Father believed a change in orders was in the children’s best interests because he loves his children and because of their relationship with E.P. He also had developed the tools to become a better parent.
The adoption social worker, Cindy Clark, also testified. She opined the children were adoptable. Although she acknowledged there were some challenges given T.B.’s sickle cell anemia, the children were currently placed in a prospective adoptive home that was meeting their needs. Clark was unaware of a visitation order between E.P., T.B. and Tr. She did not allow E.P. to visit because she felt other people being involved in the visits was “disruptive and inappropriate.” She also never received a request from E.P.’s social worker regarding visitation. After she received the bonding assessment, she reduced father’s visits from weekly to monthly. She implemented this reduction in part to help ease the transition to a new home.
Clark reported T.B. had had two medical crises related to her sickle cell anemia since being placed in the prospective adoptive home. With respect to the first incident, T.B. was likely in crisis when she was originally placed with the prospective adoptive parents. However, T.B.’s condition had been stable since December 2004. Tr. has asthma, a condition that is common among children in foster care.
Clark spoke with T.B. regarding her father. T.B. stated she liked living in her new home and wanted to know why her father could not live with them there. The last time T.B. spoke of wanting her father to join her at her foster home was in October 2005.
The court found father had not met his burden of establishing that a modification was in the children’s best interests. The section 366.26 portion of the hearing was continued and eventually held on July 21, 2006.
The court found the children were both generally and specifically adoptable. Parental rights were terminated.
Discussion
I
The Trial Court Did Not Abuse Its Discretion
Denying the Section 388 Petition
Under section 388, the juvenile court may modify an order if the proponent of modification shows changed circumstances or new evidence and that the modification would be in the child’s best interests. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526 (Kimberly F.).)
When a petition for modification is brought after the termination of reunification services, the best interests of the child are the paramount consideration. (In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).) In assessing the best interests of the child at this stage of the proceedings, the juvenile court’s focus is the child’s need for permanence and stability. (Ibid.) Some of the factors a court may consider in making this determination include the seriousness of the problem that led to the dependency in the first place and the reason for continuation of the problem; the strength of the existing bond between parent and child and the strength of the child’s bond to his or her present caretakers; and the degree to which the problem may be easily removed or actually has been. (Kimberley F., supra, 56 Cal.App.4th at p. 532.)
The party petitioning for modification has the burden of proof by a preponderance of the evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 48; In re Jasmon O. (1994) 8 Cal.4th 398, 415.) A modification petition “is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion.” (Jasmon O., supra, 8 Cal.4th at p. 415.)
Father contends the court abused its discretion in denying his section 388 petition because he had demonstrated changed circumstances and the change would be in the children’s best interests because they were still bonded to him. We disagree.
It is clear father had significantly changed his circumstances. After the reunification period ended, he made commendable efforts to overcome his substance abuse problem and his anger management issues and to improve his parenting skills.
The court properly recognized father had done a great deal to turn his life around and change his circumstances. However, at this stage of the proceedings, the court was required to focus on the minor children’s best interests. The court properly did this. The juvenile court found it did “not have sufficient evidence to satisfy [the court] that it would be in [the children’s] best interest to remove them from where they are or to delay in their having the opportunity for permanence. . . . [¶] [The court was] not able to make a finding that [the children] would be best served by either reopening services or returning them to [father’s] custody.”
Father contends the juvenile court committed reversible error by relying solely on the bond between the foster parents and the children in denying the section 388 petition. He bases this contention on the following statements by the court: “[Y]ou could be the ultimate in the parent who has seen the light and has done absolutely everything that you can possibly do to be the best parent on this planet. But if the children have moved on in another direction such that they are closely bonded with somebody who might be a lesser parent than you, such that it would be detrimental to them, it would be painful for them, traumatic for them to be moved out of that placement to be returned to you, then I’m required to deny the motion.”
We disagree with father’s conclusion that this soliloquy indicated the court looked only to the bond between the children and the foster parents in assessing the best interests of the children. Rather, we believe this was an effort to edify some aspects of dependency law for father, and perhaps an attempt to ease the sting of its decision. It was clear the court liked father, was impressed with his efforts and wanted to encourage him. It was, however, equally clear that the court’s actual ruling on the motion was based on the children’s best interests and their need for permanence.
Father also argues the factors delineated in Kimberley F. support returning the children to him. We disagree.
The minors were declared dependents under section 300 because of a history of domestic violence between the parents in front of the children and the parents’ history of substance abuse. The problems that led to dependency were serious and long-standing.
Father’s bond with Tr. was virtually nonexistent. Tr. was removed from the home when he was seven months old. The July 12, 2005, bonding assessment indicated Tr. was generally aloof from father, did not seek out contact with father and played independently. While Tr. was familiar with father, he was not bonded with him. T.B., on the other hand, was clearly bonded with father and was repeatedly and spontaneously affectionate with him.
By the time of the October 27, 2005, addendum report, the children’s interactions with father were visibly more reserved. During one visit, T.B. clung tightly to the social worker for the first 20 minutes of the visit before warming up to father and being happy to see him. By that time, the children had been placed in a prospective adoptive home for approximately two months. They were “flourish[ing]” in their placement and “establishing appropriate bonds.” Tr. was adjusting very well and was very attached to his prospective adoptive father. T.B.’s behavior was improving and she was responding well to the prospective adoptive parents. She told the social worker she “loves her new mommy and daddy.”
At the March 2006 hearing on the section 388 petition, the social worker testified the children had been in the prospective adoptive home for almost seven months. They were thriving in this home, and were bonded and attached to their foster parents. Because of their bond with the foster parents, the social worker did not feel it was in the children’s best interests to remove them from that home. She believed there was “enormous” potential detriment in removing the children from “the people they now consider to be their mother and father.”
The social worker testified it was six months. However, the children were placed in the home on August 23, 2005, and the social worker’s testimony occurred on March 14, 2006. That is almost seven months.
Lastly, issues of substance abuse and domestic violence are problems which are not easily ameliorated. While father has made great progress in completing a wide range of programs, he still faces significant challenges. His battle with substance abuse, domestic violence and anger management have been long-standing. He began using alcohol when he was six or seven years old and was using it regularly by the time he was 14. He began using marijuana at 10, cocaine at 20, and had experimented with methamphetamine.
Father was initially offered services in May 2004. While he was pursuing reunification, he tested positive for cocaine on two occasions, October 5, 2004, and October 18, 2004. He was participating in services and was doing well until August 2004, when he essentially dropped out of contact with all the service providers for three months. He reenrolled in the programs in November 2004 and did well.
Father completed phase 1 of an outpatient drug treatment program on March 2, 2005, and phase 2 on August 9, 2005. Between January 15, 2005, and July 31, 2005, he was requested to submit 63 drug tests. He had one positive result on February 4, 2005, and was noncompliant between March 1, 2005, and March 14, 2005, because he was in jail. All other tests were negative. He received his 90-day certificate from the Juvenile Dependency Drug Court on August 31, 2005. Despite this substantial progress, because of the longevity of his problems, father is still relatively early in his recovery.
In addition, father has been involved in relationships in which he was both the victim and the perpetrator of domestic violence. In March 2002, mother was arrested for stabbing father. This was done in the presence of T.B. and her half siblings. There was a history of domestic violence and fighting between the parents in front of the children. Father was stabbed by mother again in October 2003. He was involved in a domestic violence dispute with his girlfriend on May 5, 2004, in which he struck the girlfriend several times in the face, pulled braids out of her hair and slammed her head into the wall. He had a heated argument with his girlfriend on November 25, 2004, during which she grabbed him by the throat. The bonding assessment scheduled for March 2005 had to be rescheduled because father was incarcerated due to a physical altercation with a neighbor. The record does not show that father completed any domestic violence counseling.
Tr. was not yet born.
Where there is a long-standing history of substance abuse, relapses are not uncommon. (See In re Cliffton B. (2000) 81 Cal.App.4th 415, 423; Kimberly F., supra, 56 Cal.App.4th at p. 531, fn. 9.) Domestic violence issues can be equally difficult to address and conquer. The record in this case demonstrates that reality quite dramatically.
Thus, although the court did not discuss the factors analyzed in Kimberly F., the record contained evidence relevant to all the critical factors in Kimberly F., including the basis of the dependency action, the relationships between father and the children, the relationships between the children and their prospective adoptive parents and the nature of the changed circumstances. Based on the record before it, the juvenile court concluded it was not in the children’s best interests to either grant father additional reunification services or return them to his custody. We see no abuse of discretion in this decision.
II
The Court Provided for Sibling Visitation
Father contends the social worker and the court violated his rights by failing to provide sibling visitation between the children and their half brother, E.P., after reunification services were terminated. We disagree.
Following the detention hearing, the court provided that sibling visitation would be arranged and directed by DHHS. At the jurisdictional/dispositional hearing, the court extended visitation to “grandparent(s) or any other relative or non-relative extended family member who comes forward.” At the permanency hearing, the court found the children had an appropriate visitation schedule with their siblings. Visitation continued to be extended to “grandparent(s) or any other relative or non-relative extended family member who comes forward.” Pursuant to those orders, E.P. visited his half siblings regularly. Prior to the termination of parental rights, there is nothing in the record which indicates that order was modified or rescinded. Accordingly, the record does not support the factual assertion that “the court never ordered visitation between [E.P.] and [T.B.] and [Tr.].”
With respect to father’s contention that the social worker violated his rights by failing to permit E.P. to visit his half siblings, we find that issue forfeited by father’s failure to raise the issue at any point during the proceedings.
Following the termination of reunification services, E.P. was permitted to visit with his half siblings on at least two occasions. The adoption social worker testified she was not aware of the visitation order between T.B., Tr. and E.P. Nor did she ever get a phone call from E.P.’s social worker requesting visitation. She did not allow E.P. to be included in visits because she believed having others at the visits was “disruptive and inappropriate.”
Father filed section 388 petitions on May 25, 2005, September 29, 2005, and November 14, 2005. In none of these petitions did he complain to the court that the social worker was inappropriately interfering with E.P.’s visitation. In addition, father was present in court six times between the termination of reunification services and the hearing on his last section 388 petition. At no time did he voice any concerns about the denial of visitation between E.P. and T.B. and Tr. His pretrial statement did raise the factual issue of whether the children being adopted would create a substantial interference with the children’s sibling relationship, but again did not raise the issue of the social worker’s refusal to allow visitation with E.P.
“[T]he role of the agency and its agent is subject to the juvenile court’s supervision and control. Accordingly, if the agency is abusing its responsibility in managing the details of visitation, the parent or guardian may bring that matter to the attention of the juvenile court.” (In re Moriah T. (1994) 23 Cal.App.4th 1367, 1377.) If father was dissatisfied with the details of visitation as administered by the agency, he was free to address his concerns to the juvenile court. He did not do so and may not complain now. (In re Christopher B. (1996) 43 Cal.App.4th 551, 558; In re Dakota S. (2000) 85 Cal.App.4th 494, 501-502 (Dakota S.).)
III
Father’s Rights were not Violated by the Reduction in his Visits from Weekly to Monthly Upon Termination of Reunification Services
Father next contends that his due process rights were violated when the social worker reduced his visits from weekly to monthly with the express purpose of “reducing [T.B.]’s bond to [] father.” We find this issue also was forfeited by the failure to raise it in the juvenile court.
Even if the issue were not forfeited, we would find this claim without merit.
“After the termination of reunification services, the parents’ interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point ‘the focus shifts to the needs of the child for permanency and stability.”’ [Citation.]” (Stephanie M., supra, 7 Cal.4th at p. 317.) Reduction of visitation by DHHS after the adoption social worker received the bonding assessment is justified by the need to reduce potential confusion of the children when attempts to place the children in a prospective adoptive home are being planned and carried out. Here, the social worker assessed the visitation schedule in the light of the children’s best interests. In so doing, she believed it was “appropriate to transition the children into a new adoptive home, and once they were moved into that home it was appropriate to reduce the visitation.” At this stage of the proceedings, the children’s need for permanence and stability was furthered by seeking to strengthen the bond with the prospective adoptive parents and minimize confusion in the minds of the children about where they ought to be. Reducing visitation to start reducing the bond with father was an appropriate means to accomplish this goal.
IV
The Court Did Not Abuse its Discretion by Terminating Father’s Parental Rights
Father’s last contention is that the court abused its discretion in finding the children adoptable. In father’s view, there was insufficient evidence the children were adoptable and the court failed to find an exception based on the children’s bond with father and failed to ascertain the wishes of the children. Mother joins in this argument.
A. Substantial Evidence of Adoptability
Father contends the adoption assessment was stale, as the most recent report on that point was filed 10 months prior to the hearing. Thus, he contends the court should have continued the case and ordered an additional addendum report to be filed. He argues that relying on an adoption assessment which was stale resulted in a lack of substantial evidence to find the children adoptable. We disagree.
When the sufficiency of the evidence to support a finding is challenged on appeal, even where the standard of proof in the juvenile court is clear and convincing evidence, we must determine if there is any substantial evidence--that is, evidence that is reasonable, credible, and of solid value--to support the conclusion of the trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924.) In making this determination, we resolve all conflicts in favor of the prevailing party. Issues of fact and credibility are questions for the trier of fact, and we do not reweigh the evidence when assessing its sufficiency. (Stephanie M., supra, 7 Cal.4th at pp. 318-319.)
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.” (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649 (Sarah M.).)
In Sarah M., this court recognized that even where the minor otherwise might be regarded as not adoptable due to such factors as age or instability, the minor would be considered likely to be adopted if a prospective adoptive family was identified as willing to adopt the minor. In such a situation, the juvenile court could inquire whether any legal impediment to adoption by that family existed. (Sarah M., supra, 22 Cal.App.4th at p. 1650.)
Here, the court found the children both generally and specifically adoptable. Substantial evidence supports those findings.
The original adoption assessment was prepared on May 10, 2005. This report requested additional time so a bonding assessment could be prepared and to assess prospective homes for the children. An addendum report was prepared on July 25, 2005. At that time, a prospective adoptive home for the children had been identified.
A second addendum report was prepared on October 25, 2005. At this point, the children had been in a prospective adoptive home for nearly two months. They were adjusting well and establishing appropriate bonds. T.B. had had two medical crises related to her sickle cell anemia. Despite the challenge of T.B.’s health issues, the prospective adoptive parents were “very committed to the children.”
In addition, the adoption social worker testified regarding the children’s adoptability at the section 388/366.26 hearing on March 14, 2006. She testified that the children were members of a sibling group and one of them had a medical condition; nonetheless she concluded they were adoptable in that a specific home had been found for them that could meet their needs.
The children were quite young, only three and five years old at the time of the section 366.26 hearing. Tr. had no behavioral problems. He “has a delightful personality and a wonderful sense of humor.” T.B. had exhibited some behavioral problems, such as temper tantrums, aggression toward other children and defiance, but was responding well to the limits and boundaries set by the prospective adoptive parents. The biggest challenge to these children’s general adoptability was T.B.’s sickle cell anemia.
It appears some of her behavioral problems may have been related to the foster home in which she was placed previously, where she received “whippings” and where the former foster mother was perhaps too traditional in her child-rearing methods.
However, a prospective adoptive home had been found for the children. While this, in and of itself, is not dispositive of the issue of general adoptability, “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.” (Sarah M., supra, 22 Cal.App.4th at p. 1650, italics in original.) Accordingly, we find there was substantial evidence to support the finding the children were generally adoptable.
The children were also specifically adoptable. The children were placed in an approved home study home, the family was familiar with T.B.’s specific medical needs, and had successfully managed her condition for seven months. The family had no history with Child Protective Services nor any criminal history. They were financially able to support the children, and had stable relationships and housing. The children were placed together and were thriving, their needs were being met and they were bonded and attached to their prospective adoptive parents. The prospective adoptive family was committed to the children and willing to do “whatever they needed to do.” There was no evidence of any legal impediment to these parents adopting the children.
The social worker testified in March 2006 that T.B.’s condition had been successfully managed for approximately four months prior to the hearing. There was no indication in the record of T.B. having any additional crises related to her sickle cell anemia.
There was no evidence in the record that between March 2006 when the social worker testified, and July 2006, when the section 366.26 determination was made, that there had been any change in conditions which would have inured to father’s benefit. Absent any evidence that there had been a change relative to the children’s adoptability, the evidence of adoptability was not so stale as to render the reports no longer credible evidence of adoptability. (See, e.g., In re Barbara R. (2006) 137 Cal.App.4th 941, 949-952 [absent any evidence of changed circumstances, ICWA detriment finding made at the 12-month review was not stale even though more than 11 months had passed between the 12-month review setting the permanency planning hearing].)
B. No Parental Bond Exception
Under section 366.26, subdivision (c)(1)(A), if the court finds by clear and convincing evidence that a minor is likely to be adopted, the court must terminate parental rights and order the minor placed for adoption unless the court determines that termination would be detrimental to the minor because “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” The parent has the burden of establishing an exception to termination of parental rights. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809; In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373.)
“When determining whether the exception applies to bar termination of parental rights, the court balances the strength and quality of the parent-child relationship in a tenuous placement against the security and sense of belonging that a stable family would confer on the child. However, if severing the existing parental relationship would deprive the child of ‘a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent’s rights are not terminated.’ [Citation.] In other words, if an adoptable child will not suffer great detriment by terminating parental rights, the court must select adoption as the permanency plan. (See § 366.26, subd. (c)(1).)” (In re Dakota H. (2005) 132 Cal.App.4th 212, 229 (Dakota H.).)
We review for substantial evidence the juvenile court’s ruling declining to find an exception to termination of parental rights. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576 (Autumn H.); In re Derek W. (1999) 73 Cal.App.4th 823, 827.) “On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order.” (Autumn H., supra, 27 Cal.App.4th at p. 576.)
Here, father did not meet his burden. The evidence showed father had maintained consistent visitation with T.B. and Tr. The record demonstrated T.B. was bonded with father. She was affectionate with him during visits, called him “daddy” and said she loved him. She also expressed her wish that he could come live with them at her new foster home. The bonding assessment indicated T.B. would benefit from some continued contact with father. In contrast, the evidence showed that Tr. was not bonded to father. Although he was not afraid of father, he remained aloof during visits.
Evidence of a bond to one of the children is not enough to overcome the presumption for adoption. It is not enough to simply demonstrate “some benefit to the child from a continued relationship with the parent, or some detriment from termination of parental rights.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1349.) The “[i]nteraction between natural parent and child will always confer some incidental benefit to the child.” (Autumn H., supra, 27 Cal.App.4th at p. 575.) “The parent must demonstrate more than incidental benefit to the child. In order to overcome the statutory preference for adoption, the parent must prove he or she occupies a parental role in the child’s life, resulting in a significant, positive emotional attachment of the child to the parent. [Citations.]” (Dakota H., supra, 132 Cal.App.4th at p. 229.) This, father did not do.
At the time of the termination hearing, the children had been out of father’s custody and care for over two years, a good portion of their young lives. Having a “pleasant and emotionally significant” relationship is not equivalent to the consistent daily nurturing that parenting requires. (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) During the two years of these proceedings, father had not consistently parented these children, nor had he provided them with the daily nurturing of a parent. The children had been in their prospective adoptive home for almost a year and were thriving there. We do not doubt father loves his children very much. However, father has not shown how the children would benefit from continuing their relationship with him.
C. The Children’s Wishes were Considered
Father’s final contention is that the court erred in failing to consider the children’s wishes before terminating his parental rights.
The record does not reflect that father raised the matter in the juvenile court. Accordingly, it is forfeited. (Dakota S., supra, 85 Cal.App.4th at pp. 501-502.)
However, even if the issue were not forfeited, father could not prevail. “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.” (§ 366.26, subd. (h)(1).) The statute imposes “a mandatory duty on the courts to ‘consider the child’s wishes to the extent ascertainable’ prior to entering an order terminating parental rights.” (In re Leo M. (1993) 19 Cal.App.4th 1583, 1591 (Leo M.).) “Where practicable and consistent with the best interests of the minor, an attempt should be made to obtain this information so that the court will have before it some evidence of the minor’s feelings from which it can then infer his/her wishes regarding the issue confronting the court.” (Id. at p. 1592.) However, some children are too young or immature to understand the concept of termination of parental rights or express their feelings on the subject. (Ibid.) A statement from the minor need not be testimony in court; informal communication on or off the record, reports prepared for the hearing or other methods may suffice. (In re Diana G. (1992) 10 Cal.App.4th 1468, 1480.)
Tr. was three years old at the time of the section 366.26 hearing. He was too young to understand the concepts of adoption and termination of parental rights or to express any wishes on the issues. The juvenile court was not required to consider his wishes.
T.B. was only five years old at the time of the section 366.26 hearing. T.B. stated she “love[d] her new mommy and daddy” and told the social worker she liked her new home and wanted to live there. She also stated she wanted her father to join her at her new home because she was sad he did not have a nice place to live.
Although there was no direct evidence of T.B.’s specific preferences, the record does include evidence from which her feelings can be inferred. She had lived with her prospective adoptive parents for nearly a year. She “love[d] her new mommy and daddy,” had a significant bond with them and wanted to stay with them. Her bond with her father was decreasing. At one visit, she was uncomfortable with father for the first 20 minutes of the visit.From the evidence in the record, the court could reasonably infer the wishes of T.B. to live with her prospective adoptive parents in their home. In the absence of evidence to the contrary, we presume the court performed its statutory obligation (Evid. Code, § 664) on behalf of the children. (See Leo M., supra, 19 Cal.App.4th at pp. 1593-1594.)
Disposition
The orders of the juvenile court are affirmed.
We concur: SCOTLAND, P.J., CANTIL-SAKAUYE, J.