Opinion
A152229
05-22-2018
In re L.O. et al., Persons Coming Under the Juvenile Court Law. MENDOCINO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. T.O. et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. Nos. SCUK-JVSQ-17-17182-02, SCUK-JVSQ-17-17183-02, SCUK-JVSQ-17-17184-02)
Appellants B.O. (Mother) and T.O. (Father) challenge the termination of their parental rights to their three sons. Because there is substantial evidence that the three boys were adoptable, exceptions to adoption were both not established and not raised, and the juvenile court had sufficient information about the boys' wishes before making its decision, we affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
Mother and Father have three sons together who are the subject of these proceedings, and who we shall refer to as the older, the middle, and the younger brother. Mother had three other children who are not the subject of these proceedings: one who died in her care, a second who was freed for adoption after Mother's parental rights were terminated, and a third (this one, with Father) who also was freed for adoption after Mother and Father's parental rights were terminated.
The three brothers in this case first came to the attention of respondent Mendocino County Department of Social Services (Department) in March 2015 when Michigan child-welfare officials notified the Department that Mother had fled Michigan after being notified of the intent to file a petition to have the children removed from her care and had returned to Mendocino County, where she had previously lived. About a week later, Mother behaved in a threatening manner when she appeared at an "[e]ligibility unit" in Ukiah seeking food and financial support. Father was in jail in Mendocino County.
The Department filed a dependency petition on March 23, and the juvenile court ordered that the boys—then a four-year-old, a 21-month-old, and a newborn—be detained. The older and middle brothers were placed in a shelter home, and the younger brother was placed separately in a foster home.
From his first placement following detention, the older brother struggled with behavioral issues. He engaged in screaming fits, kicked and bit others, hit himself in the face, and said daily that he missed Mother.
At the jurisdictional hearing in April 2015, the juvenile court noted that it could bypass reunification services for Mother because of the petition's allegations that Mother previously had a child die in her care and that she had two older children who previously were freed for adoption. (Welf. & Inst. Code, §§ 300, subds. (f), (h), 361.5, subd. (b)(4) & (11).) The Department nonetheless recommended that Mother receive reunification services because of her boys' positive bond with her.
All statutory references are to the Welfare and Institutions Code.
Both parents waived their rights to a contested hearing. The juvenile court sustained allegations under section 300, subdivision (b) (failure to protect) that Mother had a substance-abuse problem; had failed to provide her newborn (the younger brother) with adequate medical attention; had a mental illness that affected her ability to care for her children; had failed to provide her three boys with adequate food, shelter and medical treatment; had been involved in relationships with "significant episodes of domestic violence"; and that Father had an "extensive criminal history involving possession[] and manufacturing of illegal substances, domestic violence, stalking, aggravated assault, resisting arrest and obstructing justice, money laundering, and operating motor vehicles under the influence." The juvenile court also sustained an allegation under section 300, subdivision (f) (death of another child) that mother had a child die in her care in October 2007 when her son was found dead in his crib due to acute intoxication with the ingredients of Benadryl (the child also had medications in his system for which he did not have a prescription). The court further sustained allegations under section 300, subdivision (h) (freed for adoption) that Mother's parental rights were terminated as to her older daughter and that both parents' parental rights were terminated as to another older daughter. Finally, the juvenile court sustained corresponding allegations under section 300, subdivision (j) (abuse of sibling) that the brothers' older sibling died in Mother's care and that two other siblings were freed for adoption after parental rights were terminated.
At a dispositional hearing the following month as to Mother, the juvenile court adjudged the three boys as dependent minors, ordered reunification services for Mother, and also ordered that the boys remain in out-of-home placement. At a separate dispositional hearing for Father, where he appeared telephonically from prison, the juvenile court ordered that Father receive services and that he be permitted visits with the boys while incarcerated.
Efforts to reunify the three boys with their parents continued for more than a year. During that time, the older brother had "extreme behavioral difficulties" that led to placement disruptions, including nine placements within just the first seven months of out-of-home care. He suffered severe emotional tantrums that lasted up to 90 minutes. The middle brother also presented "intensive behavioral concerns" and likewise was moved several times. The younger two brothers ultimately were placed together with a foster mother.
Mother at first did well in her case plan, and Father worked to comply with his case plan while in prison. The juvenile court continued reunification services for the parents at a six-month review hearing in October 2015. Father was released from prison the following month and requested continued services and visitation with his sons.
The Department struggled to find a stable placement for the older brother. It sought court approval to expand Mother's visitation beyond the then-current maximum of three nights a week to having the older brother placed in Mother's care. In November 2015 the juvenile court approved a trial home visit between Mother and the older brother, and the older brother was placed with Mother in December and provided with intensive services. The placement went well, and the juvenile court ordered that the older brother remain with Mother and that they be provided with family-maintenance services. Meanwhile, the middle brother was in a placement where he received "Intensive Treatment Foster Care," and his behavioral challenges decreased.
Father was arrested on January 1, 2016, for public intoxication. Then in March, the Department received an anonymous report that Father had assaulted Mother, and the parents gave conflicting information about the incident. The Department recommended that both parents continue to receive reunification services, and the juvenile court agreed to the recommendation at a 12-month review hearing in April.
By the end of April, concerns had arisen about Father's sobriety after he missed sessions at his substance-abuse program and tested positive for marijuana. Further investigation revealed that Father was not regularly attending his domestic-violence classes and was having unauthorized contact with the older brother.
In a June 2016 status-review report, the Department described an incident where the older brother was found outside at night unsupervised and crying after he woke up and let himself out, not knowing Mother was at home. Social workers met with Mother to develop a safety plan. The Department still considered the older brother's placement with Mother appropriate, and the June report noted that the older brother's behavior had improved while in Mother's care. Mother visited with the other two brothers and eventually transitioned to overnight visits with them. The juvenile court continued family-maintenance services for Mother and the older brother at a hearing on June 22.
Mother sought a restraining order against Father in July 2016 after she reported verbal abuse and harassment. The juvenile court granted a temporary restraining order on July 14, then entered a permanent restraining order following a hearing in August.
Mother continued to comply with her case plan, whereas Father struggled and "appear[ed] to be . . . unaware of the impact and reality of his behaviors." A social worker reported that although Mother sometimes struggled with the older brother's challenging behaviors and the Department had received anonymous reports that Mother was verbally abusive to the boys, personal observations of Mother indicated that she parented appropriately. The Department recommended in August 2016 that Mother be granted custody of all three children and be provided with intensive family-maintenance services. The Department recommended in the same report that reunification services be terminated for Father.
Concerns soon arose, however, over whether mother was ready to regain custody of all three children, after the Department received reports that Mother had spanked the older two boys with a belt. The Department recommended "intense oversight" and continued services for Mother to help her when she had all three boys in her care.
At an 18-month review hearing in September 2016, a social worker testified that she investigated the report of Mother spanking the two older brothers with a belt and considered the report to be true after she spoke with both boys. The social worker also ran a risk assessment and found the risk to the two younger brothers if they were returned to Mother's care to be "very high," even before the spanking incident. The worker was concerned about the possibility of the younger children being returned to Mother because although she "seemingly [had] made great strides as far as parenting," the older brother had behavior issues and the worker was "not sure that the mother [wa]s able to manage his behavior toward the younger siblings." The social worker also was concerned that Mother was either in denial or being untruthful about the continuing risk of domestic violence, and she (the social worker) did not believe the younger children would be safe with Mother. By contrast, a different social worker testified that the Department still recommended that the three boys be returned to Mother, because there were several services in place, and Mother had made a lot of progress. The juvenile court returned the younger two boys to Mother's care, with family-maintenance services, and terminated Father's reunification services.
After the boys were in Mother's custody for around three months, the Department first reported positively on Mother's ability to care for her children. The Department noted, however, that on November 9, 2016, Father entered Mother's home and physically assaulted Mother in the children's presence. Father was arrested and charged with corporal injury and other charges. The Department recommended that visitation between Father and the three boys be terminated but that family-maintenance services continue for Mother.
While Father was incarcerated in the county jail, the jail recorded 104 telephone conversations between Mother and Father totaling nearly 25 hours from November 12 to January 5. During those calls, Mother "engage[d] in severe domestic violence in front of her children" and was "noted to be mentally unstable." The parents' conversations often would "escalate into an extremely volatile argument with both parties yelling, cussing, name calling, and . . . talking [over] one another. The children were generally noted to be present during these conversations as you could hear them saying, 'Mommy' to get her attention and [Mother] would often yell at the children to get off of her and to leave her alone as she only had 15 minute to talk." The Department ultimately concluded that "[t]he number of phone calls clearly establishe[d] that [Father and Mother] ha[d] continued their extremely volatile relationship without regard to the negative emotional impact it has on their children." The Department was not, however, aware of the phone calls when it filed an addendum report in mid-December. The report did state that Mother had "struggled to comply with her case plan goals" in November but had re-engaged with services in December. On December 15, the juvenile court continued family-maintenance services for Mother and terminated visitation for Father.
Less than a month later, on January 3, 2017, the Department filed a supplemental juvenile-dependency petition, after social workers learned that Mother had continued her relationship with Father despite the reports of domestic violence and her previous statements that she did not want a relationship with Father, and the Department also learned that she had visited Father in jail on December 29. Social workers further learned that the middle brother's aggressive behavior had escalated after he was returned to Mother's care. The boys were ordered detained after a lengthy contested detention hearing. The middle and younger brothers were placed together in their previous foster home, and the foster mother expressed a desire to adopt the boys. The older brother was placed in "an Intensive Treatment Foster Care Facility," because he was "identified as needing a higher level of care to best address his emotional and behavioral concerns."
The Department recommended in a jurisdiction/disposition report that the juvenile court not provide further services. When a social worker met with Mother in early February 2017, Mother identified a paternal relative as a possible placement, and a paternal aunt later expressed interest in having the children placed with her.
A contested jurisdictional/dispositional hearing began on March 8, 2017. A therapist who had provided parent-child interaction therapy to Mother and the older brother testified that the older brother's behaviors improved during the time when he was in Mother's care. Mother was cooperative during their therapy process. The therapist also testified that the older brother was "very, very attached to his mom," and she (the therapist) observed "some very special and emotionally wonderful little moments between mother and child" during their sessions. Mother's individual therapist for the previous year also testified at the hearing about her work with Mother on domestic-violence issues. Two people who provided rehabilitation services for Mother and the brothers testified that Mother was usually cooperative and agreeable to suggestions about her parenting skills. The older brother's kindergarten teacher testified that the child's behavior improved during the school year and that Mother was receptive during conversations about how to improve the child's behavior. A school counselor who worked with the older brother testified that the older brother was "very successful in kindergarten," that his good behavior "decreased a little bit" in first grade around the time Mother regained custody of the two younger brothers, but that he was "still a pretty typical first grader." A social worker testified about the recent reports of domestic violence between Mother and Father. Finally, Mother briefly testified about a few of her interactions with Father. She explained that she was "in a different place" and wanted the Department to provide additional services so she could address her domestic-violence and codependency issues.
The juvenile court sustained the supplemental dependency petition. It acknowledged that the children had "in many respects" done well with Mother, but that Mother was "still very much" in the cycle of domestic violence with Father, even though he was currently in prison. The court further found that there was clear and convincing evidence that returning the children to Mother's care would pose a potential threat to their safety, terminated Mother's services, and scheduled a selection-and-implementation hearing. Toward the end of the hearing, Mother's attorney noted that a paternal aunt had come forward as a possible placement for the boys, and the social worker said she would follow up with the relative.
Mother filed a petition for extraordinary writ relief that this court dismissed as untimely. (B.O. v. Superior Court of Mendocino County (May 18, 2017, A150956 [petn. dismissed].)
The Department submitted a report in advance of the selection-and-implementation hearing and recommended termination of parental rights and adoption for the brothers, who were then seven, almost four, and two years old. Included with the report was an adoption assessment prepared by the state Department of Social Services, which likewise recommended termination of parental rights and adoption as the permanent plan.
The older brother was currently placed "in a group home located in Sonoma County." He was placed there because of his "challenging behaviors which include tantrums that last for approximately one hour." The Department reported that he had experienced anxiety over reduced visits with Mother and also had expressed concern that the decrease was "his fault." According to the report, Mother was supposed to talk with the older brother affirming he was not at fault as the social worker had told him, but Mother "failed to address this issue with her son." The older brother's first-grade teacher reported that the older brother was "a nice but challenging addition to the class," that he did "what he wants" when not watched closely, but that his reading and writing skills had improved with the support of a reading group. A cognitive assessment revealed that the older brother did not qualify for an individualized education plan (IEP), but it was suspected he had attention deficit hyperactivity disorder (ADHD). The adoption assessment report described the older brother as "outgoing, positive, and friendly," and noted that he interacted well with peers and adults. He was "not a client of the regional center nor d[id] he appear to require those services." The report concluded that the older brother's "mental and emotional status appears to be stable." He did, however, exhibit tantrums "on a regular basis and [wa]s working on understanding and handling difficult feelings," and he missed Mother and was "dealing with strong feelings of loss." The report stated that the older brother was progressing and would "soon be ready to transition into a family setting." Social workers had not yet discussed adoption with the older brother, but he had been told that he would no longer be living with his parents.
The middle and younger brothers were placed together in a foster home. The middle brother's daycare center reported challenging behaviors, including hurting his younger brother and other children. A teaching assistant was assigned to provide the middle brother with one-on-one support, which helped the middle brother improve his behavior. The adoption assessment described the middle brother as "smart, energetic and active." He was developmentally on target, though he had exhibited "a significant amount of difficult behaviors at school and at home," including "kicking, hitting, biting, and pushing other children and adults." Although the middle child did well "one-on-one," he was "not currently stable mentally and emotionally" and would benefit from participating in therapy.
The younger brother, meanwhile, was developmentally on target, though he did throw screaming temper tantrums when he did not get his way. He appeared to have developed a secure attachment to his foster mother, and he sought her out for "comfort, care, and emotional support." Because of their young ages, adoption was not discussed with either of the younger brothers.
The Department was assessing two family members as well as the two younger brothers' foster mother as potential adoptive placements. The two younger brothers' foster mother previously had expressed an interest in adopting the two boys, and the Department found her to be "suitable and committed to the adoption." The report also noted, however, that the foster mother had said "she would need the boys['] challenging behaviors to stabilize before completing the adoption," and she would be unable to adopt the older brother because she could not handle all three children because of their severe behaviors. The report stated that it was "likely that these behaviors will stabilize with continued support, counseling and consistent care." One paternal aunt in the state of Washington had expressed interest in adopting the older brother, and a different paternal aunt and her husband (also in Washington) had expressed interest in the placement of all three children or just the younger two brothers. The Department reported that the relatives would be assessed using an Interstate Compact on the Placement of Children, and that if they were not approved the Department would work to find an adoptive family for the older brother near the younger two brothers. As for whether the boys were adoptable, the report stated that although "the children['s] behaviors can be challenging as [a] result of the trauma they have endured, [the three boys] are young and with supportive interventions are adoptable."
At the beginning of the selection-and-implementation hearing on July 19, 2017, Mother's attorney stated that Mother wanted to relieve her counsel under People v. Marsden (1970) 2 Cal.3d 118, and Mother confirmed this was true. The juvenile court denied Mother's Marsden motion following a hearing, at which point Mother said she wanted to represent herself. The court proposed continuing the matter for 60 days so that Mother could confer with her attorney about whether the attorney could still help her, and advised Mother that the court was uncomfortable with Mother proceeding without an attorney. After further discussion with the parties, the court continued the matter for about two weeks, until August 1, so that Mother could speak with her attorney about whether it was a good idea to represent herself.
At the continued hearing on August 1, Mother's attorney was present, but Mother was not. Mother's attorney requested a continuance so that she could contact Mother to "determine what her desires are moving forward," and Father's attorney joined in the request. The juvenile court denied the request for lack of good cause and then proceeded with the selection-and-implementation hearing.
A social worker briefly testified that the older brother was doing well in his group home and that she had not received any reports about his behavior in the previous three weeks, and there were no recent reports that he had been violent. He did experience a tantrum with yelling and screaming in June after another child "ratted him out about some behavior," but the older brother was able to "de-escalate" with support from the staff. The Department continued to evaluate Father's relatives for possible placement, and one aunt was planning to visit.
An adoptions specialist with the state Department of Social Services testified that she was working with the two younger brothers' foster mother about the boys' difficult behaviors. The specialist stated that she knew the foster mother had considered adoption and was "possibly interested," but she acknowledged that the foster mother "ha[d] not given a clear answer as to whether she is or isn't interested in adopting." The specialist further testified that she was looking for a possible placement for the older brother and continued to investigate the paternal relatives from Washington. She reported that the older brother had been "making a lot of improvements in his behavior and he's starting to process things verbally," and he was "becoming more ready for a lower level of care." The specialist testified the older brother was "a wonderful child," and she considered him to be adoptable because "I've done many, many adoptions with kids that have been in group homes and I absolutely think that adoption is an option" for the older brother.
After the close of evidence, the minor's counsel said she wanted "to state some of [the older brother's] preferences for the court," and told the juvenile court that the older brother "wants to live with his brothers. He continues to make statements that he wants to be placed with his mother. Those are the most important points that he wanted the court to know. [¶] Most importantly he wanted to know if he could live with his brothers."
Father's counsel objected to the termination of parental rights as to the younger two brothers. Counsel offered a more specific objection as to the older brother, arguing that he was not adoptable under section 366.26, subdivision (c)(1)(b)(iii), which provides an exception to the termination of parental rights where "[t]he child is placed in a residential treatment facility, adoption is unlikely or undesirable, and continuation of parental rights will not prevent finding the child a permanent family placement if the parents cannot resume custody when residential care is no longer needed." Mother's counsel likewise briefly argued that Mother opposed the termination of parental rights. The minors' counsel said she supported termination of parental rights as to the younger two brothers, but stated that she was "a bit conflicted" as to the older brother, because the Department was "asking the court to take a leap of faith that he'll be adoptable by a family in the future."
County counsel countered that there was no evidence that adoption was unlikely or undesirable, as required for the exception to apply. On appeal, Mother points to this argument and claims that county counsel "reversed the evidentiary burden" and "nullified the [Department's] statutory burden of having to establish adoptability by the very high clear and convincing standard." Not true. As we discuss below, after a social-service agency establishes adoptability, the burden shifts to a parent to establish an exception to adoption, which is what county counsel was addressing.
The court acknowledged that it was a "close call as to all three boys" but found by clear and convincing evidence that they were adoptable. The court terminated the parental rights of Mother and Father and selected adoption as the boys' permanent plan. Both parents appealed.
II.
DISCUSSION
A. Substantial Evidence Supports the Finding that the Three Boys Were Adoptable, and No Exception to Termination of Parental Rights Was Established.
1. The Law Governing Termination of Parental Rights and the Standard of Review.
"Before terminating parental rights, the court must find by clear and convincing evidence that it is likely that the child will be adopted within a reasonable amount of time. (§ 366.26, subd. (c)(1); [citation].) The finding of adoptability is reviewed under the substantial evidence test." (In re K.B. (2009) 173 Cal.App.4th 1275, 1290.) "Although a finding of adoptability must be supported by clear and convincing evidence, it is nevertheless a low threshold: The court must merely determine that it is 'likely' that the child will be adopted within a reasonable time. (§ 366.26, subd. (c)(1); [citations].) We review that finding only to determine whether there is evidence, contested or uncontested, from which a reasonable court could reach that conclusion. It is irrelevant that there may be evidence which would support a contrary conclusion." (Id. at p. 1292.) Also irrelevant is whether the child has been placed with a family that is ready to adopt the child, because this factor "shall not constitute a basis for the court to conclude that it is not likely the child will be adopted." (§ 366.26, subd. (c)(1).) "However, there must be convincing evidence of the likelihood that adoption will take place within a reasonable time." (In re Brian P. (2002) 99 Cal.App.4th 616, 624.) Once a juvenile court determines that a child is adoptable, it shall terminate parental rights and order the child placed for adoption, unless exceptions to adoption exist. (§ 366.26, subd. (c)(1).)
2. Substantial Evidence Supports the Finding that the Three Brothers Are Adoptable.
Mother, joined by Father, argues that there was "no evidence" that the older brother was adoptable, but they are mistaken. True enough, there was evidence, which Mother and Father point to on appeal, that the older brother presented with challenging behaviors, that he was bonded to Mother and his brothers, and that no specific placement had been identified for him. But there also was evidence presented that the older brother was "outgoing, positive, and friendly," interacted well with peers and adults, was improving in first grade, and that he was progressing in other areas and would soon be ready to transition into a family setting. It is not this court's role, when presented with this substantial evidence of adoptability, to reweigh evidence because contrary evidence was presented below. (In re K.B., supra, 173 Cal.App.4th at p. 1292.)
The same is true for the two younger brothers. True, they both likewise had challenging behaviors, and it was unclear whether their current foster mother would adopt them. But there also was evidence presented that they had strengths, had improved while in the care of their foster mother, and would continue to improve with support.
Mother complains that the Department had not identified people who would definitely adopt each of the three boys. But it is settled that "[t]he issue of adoptability posed in a section 366.26 hearing 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.] Hence, it is not necessary that the minor already be in a potential adoptive home or that there be a proposed adoptive parent 'waiting in the wings.' " (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649; see also In re I.I. (2008) 168 Cal.App.4th 857, 870 [unnecessary that a specific adoptive home be identified before a child may be found to be adoptable].) To the extent that the parents argue that the boys will be rendered legal orphans as a result of terminating parental rights without a specific adoptive placement, the argument is misplaced. Previous cases discussing this issue were "decided under a former version of section 366.26. In 2005, the statute was amended to add subdivision (i)([3]), which provides that if a child has not been adopted after three years following the termination of parental rights, the child may petition the juvenile court to reinstate parental rights. (Stats. 2005, ch. 640, § 6.5.) Thus, under the current statute, there is no danger of the children becoming legal orphans." (In re I.I., supra, at p. 871.)
Substantial evidence supports the juvenile court's finding that the three boys are adoptable.
3. The Exception to Adoption for Children in Residential-treatment Facilities Does Not Apply to the Older Brother.
Once a court determines that a child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental to the child under one of the exceptions to adoption listed in section 366.26, subdivision (c)(1). (In re S.B. (2008) 164 Cal.App.4th 289, 297.) Father renews his claim that he established an exception for the older brother under section 366.26, subdivision (c)(1)(B)(iii), which provides an exception where "[t]he child is placed in a residential treatment facility, adoption is unlikely or undesirable, and continuation of parental rights will not prevent finding the child a permanent family placement if the parents cannot resume custody when residential care is no longer needed."
One treatise notes that courts will never reach the exception because under the statute as it is written, the court first has to find that a child is adoptable under section 366.26, subdivision (c)(1), and it is therefore unclear why the court would next conclude that adoption is "unlikely." (Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2017) § 2.171[5][b][iv], p. 2-622.) "This exception is the least utilized exception, if indeed it has ever been utilized." (Ibid.) Unsurprisingly, there is little published authority on this exception to adoption. (In re Jeremy S. (2001) 89 Cal.App.4th 514, 520, 528 [only published case to have analyzed the exception concluded it was inapplicable where child currently was placed in a special-needs home only because his disabled older brother lived there, and he would be adopted by people who ran the home], disapproved on another ground in In re Zeth S. (2003) 31 Cal.4th 396, 413-414.)
But even if the exception has some vitality, we cannot conclude that it applies here. To begin with, the record contains little information about the group home where the older brother was placed, and it was far from established that it qualifies as a residential-treatment facility within the meaning of the exception. And even if we assume that the home qualifies as a residential-treatment facility, we conclude the exception is nonetheless inapplicable because the parents failed to establish the other two elements of this exception: that adoption for the older brother would be "unlikely or undesirable" or that "continuation of parental rights w[ould] not prevent finding the child a permanent family placement if the parents cannot resume custody when residential care is no longer needed." (Cf. § 366.26, subd. (c)(1)(B)(iii).) In arguing that it was unlikely the older brother would be adopted, Father simply repeats all the evidence that the older brother was not adoptable, arguments we already have rejected. The exception to adoption for children in residential-treatment facilities did not apply.
4. Mother Forfeited the Issue of Whether the Beneficial-relationship Exception to Adoption Applied.
Mother argues for the first time on appeal that the beneficial-relationship exception to adoption applied because Mother maintained regular visitation with her sons and her sons would benefit from continuing their relationship with her. (§ 366.26, subd. (c)(1)(B)(i); In re S.B., supra, 164 Cal.App.4th at p. 297.) She forfeited this argument because neither parent raised it below. "The application of any of the exceptions enumerated in section 366.26, subdivision (c)(1) depends entirely on a detailed analysis of the relevant facts by the juvenile court. [Citations.] If a parent fails to raise one of the exceptions at the hearing, not only does this deprive the juvenile court of the ability to evaluate the critical facts and make the necessary findings, but it also deprives this court of a sufficient factual record from which to conclude whether the [juvenile] court's determination is supported by substantial evidence. [Citation.] Allowing [Mother] to raise the exception for the first time on appeal would be inconsistent with this court's role of reviewing orders terminating parental rights for the sufficiency of the evidence. Therefore, [Mother] has waived [her] right to raise the exception." (In re Erik P. (2002) 104 Cal.App.4th 395, 403; see also In re Rachel M. (2003) 113 Cal.App.4th 1289, 1295 ["The juvenile court does not have a sua sponte duty to determine whether an exception to adoption applies."].)
B. The Juvenile Court Had Sufficient Information About the Boys' Wishes.
Finally, Mother argues that the order terminating parental rights should be reversed because the adoptions worker did not present the boys with the opportunity to express their wishes regarding adoption as required by statute, which meant the juvenile court lacked sufficient information to make an informed decision about the boys' permanency. Mother is mistaken.
Before a selection-and-implementation hearing is held, the social-services agency shall prepare an assessment that includes, among other things, a description of the relationship between a child and any prospective adoptive parents along with "a statement from the child concerning placement and the adoption . . . and whether the child, if over 12 years of age, has been consulted about the proposed relative guardianship arrangements, unless the child's age or physical, emotional, or other condition precludes his or her meaningful response, and if so, a description of the condition." (§ 366.22, subd. (c)(1)(E).) When selecting a permanent plan for a child, "the court shall consider the wishes of the child." (§ 366.26, subd. (h)(1).) "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.) And "although the court is obligated to consider a child's best interests at the section 366.26 hearing, the court need not follow the child's wishes unless he or she is over the age of 12. (§ 366.26, subds. (c)(1)(B)[ii], (h).)" (Ibid.) While neither party raised this issue in the juvenile court, they did not waive it to the extent they now argue that substantial evidence does not support the court's finding of adoptability. (Id. at p. 200, fn. 12.)
The three boys were seven, four, and two at the time of the selection-and-implementation hearing. Mother faults the Department for not specifically informing the older brother "about the proposed plan of adoption or its likely repercussions to him in his relationship with his parents." But far from omitting why the Department did not ask the older brother for input on the specific plan of adoption, the report prepared for the selection-and-implementation hearing made clear that the older brother was having difficulty processing his separation from Mother and was experiencing a sense of loss. Pressing him for more information, especially before a specific adoptive home was identified, would run counter to a court's responsibility to "be mindful that we should not carelessly impose upon [dependent children] decisions which are heavy burdens even for those given the ultimate responsibility to decide. To ask children with whom they prefer to live or to ascertain what they wish through other evidence is one thing. To ask those children to choose whether they ever see their natural parent again or to give voice to approving that termination is a significantly different prospect. We must have regard for the possible and readily conceivable anguish that such confrontational choices could create in a short lifetime already filled with trauma." (In re Leo M. (1993) 19 Cal.App.4th 1583, 1593.)
Moreover, mother cites abundant evidence before the juvenile court about the older brother's views: he was bonded to Mother, he missed her, and he experienced loss without her. This was sufficient evidence from which the older brother's wishes could be inferred. (In re Leo M., supra, 19 Cal.App.4th at p. 1593.) Even assuming the Department's report submitted before the selection-and-implementation hearing was somehow lacking, the minors' counsel spoke at the hearing about the older brother's desire to live near his siblings. The juvenile court had sufficient information about the older brother's wishes. The same was true of the two younger brothers, who were young but were described as bonded with their foster mother.
III.
DISPOSITION
The order terminating parental rights is affirmed.
/s/_________
Humes, P.J. We concur: /s/_________
Margulies, J. /s/_________
Banke, J.