Opinion
E052806
10-05-2011
In re J.W. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. J.S. et al., Defendants and Appellants.
Teri A. Kanefield, under appointment by the Court of Appeal, for Defendant and Appellant J.S. Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and Appellant J.C.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.Nos. J225370, J225371,
J225372, J229561)
OPINION
APPEAL from the Superior Court of San Bernardino County. Barbara A. Buchholz, Judge. Affirmed.
Teri A. Kanefield, under appointment by the Court of Appeal, for Defendant and Appellant J.S.
Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and Appellant J.C.
Jean-Rene Basle, County Counsel, Jeffrey L. Bryson, Deputy County Counsel, for Plaintiff and Respondent.
Appellant J.S. (mother) appeals from the juvenile court's orders terminating her parental rights as to her children, J.W., K.M.H., K.L.H., and S.C. She argues that the orders should be reversed because: 1) the beneficial parental relationship exception applied (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i)); 2) the juvenile court erred in finding J.W. and K.M.H. adoptable; 3) the court failed to consider the wishes of J.W. and K.M.H. regarding adoption (§ 366.26, subd. (h)(1)); and 4) the San Bernardino County Children and Family Services (CFS) failed to comply with the requirements under the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA).
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Appellant J.C., who is the presumed father of S.C. only, appeals the termination of his parental rights; he joins mother's appeal, with regard to the ICWA issue and the beneficial parental relationship issue, to the extent it inures to his benefit. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On January 22, 2009, CFS filed section 300 petitions on behalf of J.W., K.M.H., and K.L.H. J.W. was four years old at the time; K.M.H. was two years old; and K.L.H. was one year old. The petitions alleged that the children came within section 300, subdivisions (b) (failure to protect) and (g) (no provision for support). The petitions specifically alleged mother had a criminal history that compromised her ability to parent the children appropriately, and that mother's home was unsafe for them, since it was roach infested and had debris scattered throughout it. There was insufficient food in the home, the children slept on the tile floor, and there was no heat in the home. Furthermore, the petitions alleged that mother was currently incarcerated. In the detention reports, the social worker indicated that, on January 16, 2009, she asked mother if she had any Native American ancestry. Mother said no.
S.C. was not born yet.
The alleged father of J.W. is D.F., and the alleged father of K.M.H. and K.L.H. is K.H. Neither of these alleged fathers are a party to this appeal.
On August 3, 2010, mother filed a notice of intent to file a writ petition under section 8.452 (case No. E051448). The petition was subsequently dismissed, at her request. The record in that case was incorporated with the record in this case.
The juvenile court detained the three children in foster care on January 23, 2009. That same day, mother filed a Parental Notification of Indian Status form (JV-020 form) indicating that she had no Indian ancestry, as far as she knew.
Jurisdiction/disposition
The social worker filed a jurisdiction/disposition report on February 11, 2009, recommending that no reunification services be offered to mother because she was suffering from a mental illness (§ 361.5, subd. (b)(2)), and because she had an extensive history of abusive and chronic drug use (§ 361.5, subd. (b)(13)). The social worker reported that J.W. was previously removed from mother's care from April 26, 2006 to August 23, 2007, during which time mother received services. K.M.H. was removed from mother's care from July 13, 2006 to August 23, 2007. K.L.H. was in mother's care under a voluntary family maintenance plan from June 30, 2007 to August 23, 2007. The social worker further noted that mother suffered from symptoms related to bipolar and schizophrenic disorders, and she was not willing to participate in mental health treatment or take medication.
It is unclear whether K.M.H. was removed from mother's care in 2006 or 2007. The record reflects both July 13, 2006, and July 13, 2007, as the removal date.
The social worker described J.W. as "a loving, nurturing child," although she tended to become aggressive when defending herself against her brothers. The social worker described K.M.H. as an aggressive child, who could become angry in an explosive manner. K.L.H. was a well-adjusted, loving child.
The social worker filed amended section 300 petitions on February 13, 2009, which added an allegation that mother had a mental health issue preventing her from being able to provide adequate care consistently.
A hearing was held on February 17, 2009. Mother objected to the detention and asked the juvenile court to return the children to her home immediately. The juvenile court adopted the original detention findings from January 26, 2009. Counsel for CFS wanted to clarify that, at the last hearing, mother had submitted a JV-020 form, claiming that she had no Indian heritage, but there was no date on it. The juvenile court then asked mother if she had any American Indian heritage. Mother said, "No, I don't."
The social worker filed an addendum report on April 9, 2009. She reported that, on January 26, 2009, the juvenile court ordered supervised visits for mother twice a week, with a minimum of one hour a week. The social worker reported that, from January 27 through April 3, 2009, mother had 10 visits, and did not show up for five visits. In addition, the social worker stated that there was "no visit" on six other scheduled dates, for reasons such as the foster parent's failure to show up and mother's erratic behavior. The social worker further reported that mother's behavior had been hostile and unpredictable. She had become angry and aggressive on occasion. Once, when a visit was cancelled because mother was late, she yelled and cursed at the social worker, in front of her children, and sped away in her car.
On April 15, 2009, the juvenile court found that all the children came within section 300, subdivision (b), and that J.W. also came within subdivision (g). The juvenile court declared all the children dependents of the juvenile court, and ordered mother to participate in services.
Six-month Status Review and Section 300 Petition Regarding S.C.
The social worker filed a six-month review report on October 13, 2009. She reported that mother gave birth to another child, S.C., in June 2009. Mother had been able to provide for S.C., so there were no current concerns about her. Although mother was offered voluntary family maintenance services, she declined. The social worker noted that mother maintained contact with J.W., K.M.H., and K.L.H. through weekly supervised visits and phone calls.
As to J.W., the social worker reported that there were no major issues or concerns, although she did suffer from asthma. She was meeting her developmental milestones and doing very well in kindergarten. The social worker described her as a "beautiful, bright, little girl who loves her family very much and is a good big sister to her brothers."
K.M.H. was relatively healthy, and there were no major concerns with him. The social worker described him as "an adorable, active, bright little boy who loves his family." However, she noted that he was very aggressive with his siblings and other children. She referred him to Wraparound services, and he was accepted.
There were no major concerns with K.L.H. either. According to mother, he was born deaf. However, the social worker noted that he appeared to hear fine. He was also described as bright, active, and adorable.
The three children were currently placed together in the same foster home, and were adjusting well. Regarding this dependency, K.M.H. had been placed there since August 13, 2009, and J.W. and K.L.H. were placed there on October 1, 2009.
A six-month review hearing was held on October 15, 2009, and mother set the matter for contest.
On October 22, 2009, CFS filed a section 300 petition on behalf of S.C. The petition alleged that S.C. came within subdivisions (b) (failure to protect), (g) (no provision for support), and (j) (abuse of sibling). It included the allegation that the alleged father, J.C., failed to ensure the safety of S.C. in that he knew or reasonably should have known that mother had a mental illness or substance abuse issues that put S.C. at risk. In the detention report, the social worker stated that, at the six-month review held on October 15, 2009, the juvenile court ordered mother to drug test, but she refused. When the social worker spoke to mother a few days later, mother said she "did not care," and that she was not going to participate in a substance abuse program. It was determined that a detention warrant should be issued. The social worker attempted to locate S.C. at the last known address, but mother and S.C. were not living there. The social worker spoke to mother on the phone on October 21, 2009, and mother refused to reveal S.C.'s location.
The record refers to S.C.'s alleged father as both G.C. and J.C. We will refer to him as J.C.
A detention hearing was held on October 23, 2009. Counsel for CFS informed the juvenile court that the social worker had been unable to locate mother. The juvenile court ordered S.C. to be detained when found. The proceedings were concluded, but then recalled later that day, with mother present. The juvenile court asked mother if she had any American Indian heritage, and, this time, mother said her grandmother was Cherokee. The juvenile court then asked mother to disclose S.C.'s location. Mother gave an address, but then expressed that she did not know what the "ordeal" was with S.C. The juvenile court explained that it was gravely concerned about S.C.'s safety, since mother refused to follow a simple request to drug test. The juvenile court said it wanted S.C. to be picked up. Later that day, the matter was recalled again. CFS reported that the address mother had provided for S.C. was a vacant house.
The juvenile court held a hearing on November 13, 2009, and mother informed the court that S.C. was with her father, J.C. The juvenile court continued the matter regarding S.C. for a further jurisdiction/disposition hearing on December 2, 2009, and set a pretrial settlement conference and trial settlement conference regarding J.W., K.M.H., and K.L.H. for the same day.
On November 16, 2009, the social worker sent out ICWA notices regarding S.C. to the Cherokee Nation, Eastern Band of Cherokee Indians, and the United Keetoowah Band of Cherokee. The Cherokee Nation and Eastern Band of Cherokee Indians subsequently responded that S.C. was not an Indian child, and they would not intervene in the proceedings. The United Keetoowah Bank of Cherokee failed to respond within the given time frame.
On December 2, 2009, the matter regarding S.W., K.M.H., and K.L.H. was continued for a contested six-month review hearing. As to S.C., J.C. appeared in court and set the matter for contest.
On January 6, 2010, the social worker informed the court that on December 9, 2009, S.C. had been placed in the same foster home with her siblings.
On January 8, 2010, the juvenile court found that S.C. came within section 300, subdivisions (b), (g), and (j), and declared her a dependent of the juvenile court. The juvenile court declared J.C. the presumed father of S.C. The juvenile court also ordered reunification services for mother and J.C., and supervised visitation once a week. As to the three other children, the juvenile court set a 12-month review hearing.
12-month Status Review
The social worker filed a 12-month status review report on June 28, 2010, and recommended that mother's services be terminated as to J.W., K.M.H., and K.L.H. The social worker reported that mother had failed to engage in the services outlined in her case plan. The social worker also reported that J.W. was progressing well, and she was on medication to help her decrease her aggression. K.M.H. was also progressing well. He struggled with aggressive behavior, but was improving. He had a hard time going to sleep and staying asleep, but he was under the care of a doctor for this problem. The social worker had no major concerns about any of the three children. They were all comfortable in their foster home. J.W. said she wanted to live with the foster mother and visit mother. The social worker opined that J.W., K.M.H., and K.L.H. were "very adoptable." The foster mother had demonstrated her ability to provide for all their specific needs. She voiced her desire to adopt all four children and provide them with a permanent home. The foster mother said that, even with "their behaviors," she was willing to pursue adoption to keep them all together.
The social worker further reported that mother was late for visits the majority of the time, and several visits had to be cancelled because she either arrived after the grace period, or not at all. The social worker cited 11 dates on which the visits were cancelled. The children were happy to see mother when visits did occur. However, the social worker noted that mother would often talk about her case in front of the children, even though the social worker told her not to. Mother also yelled when the boys fought over toys, and she threatened to spank them. On two occasions, she hit K.M.H. on the back of the leg. When the social worker explained to her that she was not to discipline the children that way, mother would argue with her. Mother would also yell and use profanity in front of the children. The social worker described mother's behavior as explosive, erratic, and argumentative.
A report filed on July 23, 2010, indicated that J.W. had been seen by a psychiatrist in order to reevaluate the psychotropic medication she was taking. The psychiatrist noted that J.W. was calm and "generally happy," but opined that she had "Mood Disorder, Oppositional Defiant Disorder and Phonological Disorder," and possibly "Attention- Deficit/Hyperactivity Disorder." The psychiatrist said that J.W. appeared to be doing significantly better on Abilify, which was helping her "stabilize her mood and control her behavior." The psychiatrist recommended that she continue taking Abilify, continue participating in counseling, and continue in her current placement.
A contested 12-month review hearing as to J.W., K.M.H., and K.L.H. was held on July 29, 2010. The juvenile court found that CFS had provided mother with reasonable services, but she failed to complete her case plan. The juvenile court terminated reunification services and set a section 366.26 hearing. The juvenile court held a six-month review hearing as to S.C. immediately thereafter and found that mother and J.C. had failed to participate regularly or make substantive progress in the case plan. The juvenile court also terminated services as to S.C. and set a section 366.26 hearing.
Section 366.26 Report and Hearing
The social worker filed two section 366.26 reports on November 16, 2010—one regarding J.W., K.M.H., and K.L.H., and the other regarding S.C. Both reports recommended the termination of parental rights and adoption as the permanent plan. In the adoption assessment portion of the report, the social worker stated that J.W., K.M.H., and K.L.H. were all relatively healthy, with no major concerns. They were all progressing well and meeting their developmental milestones. K.M.H. struggled with feelings of anger and frustration, but was bonded with the foster mother. J.W. was the only child of school age, and she had made excellent progress in kindergarten. J.W. and K.M.H. were both receiving "Screening, Assessment, Referral, Treatment" (SART) services through Victor Community Support Services. J.W. participated in individual therapy twice a week, and the foster mother participated in every other session. J.W. was responding well to her medication to decrease her aggression. She was referred to the Juvenile Court Behavioral Health Services.
The social worker reported that the foster mother and her mother had known J.W., K.M.H., and K.L.H. since July 10, 2006, when they were first placed with them in foster care in a previous dependency case. All four children had adjusted very well to the placement. The children recognized the foster mother and her mother, who also lived in the home, as parental figures. The social worker stated that all four children were appropriate for adoption. The foster mother and her mother wanted to adopt them and keep them together.
J.W. made statements to the social worker and to the foster mother that she would like to live with the foster mother, and visit mother. However, when the social worker asked J.W. where she wanted to live, she said "with her family," which included the foster mother and the foster mother's mother. Thus, the social worker was uncertain if J.W. understood what she was saying. At another point, however, the social worker spoke with J.W. about adoption. J.W. understood that, if adopted, she would remain with the foster mother and the foster mother's mother, until she was an adult. J.W. stated that if she was not able to return to live with mother, she wanted to live with the foster mother. As to K.L.H. and K.M.H., the social worker opined that they were too young (at three and four years old, respectively) to understand the concept of adoption.
Regarding visitation, the social worker reported that, since the last hearing on July 29, 2010, the visits were changed to twice a month, and mother improved on her ability to arrive on time. Her behavior at visits also improved. The children appeared to enjoy the time spent with her.
A contested section 366.26 hearing was held on January 19, 2011. Mother did not have any affirmative evidence to present. She simply asserted that nobody had ever questioned her love and attachment to her children, and the love they had for her. She then objected to the termination of her parental rights. The juvenile court found that all of the children were adoptable, terminated the parental rights of mother and all the fathers, and ordered adoption as the permanent plan.
DISCUSSION
I. The Beneficial Parental Relationship Exception Did Not Apply
Mother contends that the juvenile court erred in not applying the beneficial parental relationship exception under section 366.26, subdivision (c)(1)(B)(i). We disagree.
J.C. joins this argument, asserting that mother had a parental bond with S.C. He does not assert that he had a bond with S.C.
At a section 366.26 hearing, the court determines a permanent plan of care for a dependent child. (In re Casey D. (1999) 70 Cal.App.4th 38, 50.) Adoption is the permanent plan preferred by the Legislature. (In re Celine R. (2003) 31 Cal.4th 45, 53.) If the court finds that a child may not be returned to his or her parents and is likely to be adopted, it must select adoption as the permanent plan, unless it finds a compelling reason for determining that termination of parental rights would be detrimental to the child under one of the exceptions set forth in section 366.26, subdivision (c)(1). One such exception is the beneficial parental relationship exception set forth in section 366.26, subdivision (c)(1)(B)(i). (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206.) This exception applies when the parents "have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) The phrase "'benefit from continuing the [parent/child] relationship'" refers to a relationship that "promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child 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." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H).) It is the parent's burden to show the beneficial parental relationship exception applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1345.)
Here, mother declares that the beneficial parental relationship exception applied because she visited the children regularly, they looked forward to the visits and were upset when the visits could not occur, she "interacted appropriately with [them], they responded to her as a child would respond to a parent, and the visits were positive experiences for the children, which was why they looked forward to the visits." Mother also asserted that J.W. said she wanted to live with her. Mother's argument is weak, at best. First, mother did not visit regularly. The record shows that, at the beginning of the dependency, she did not show up for several visits. The social worker further reported that mother was late for visits the majority of the time, and several visits had to be cancelled because she either arrived after the grace period or not at all. During the reporting period for the 12-month review, the social worker cited 11 dates on which the visits were cancelled. Second, mother's assertions about her interactions with the children do not even begin to demonstrate that her relationship with them promoted their well-being "to such a degree as to outweigh the well-being the child[ren] would gain in a permanent home with new, adoptive parents." (Autumn H., supra, 27 Cal.App.4th at p. 575.) She has proffered no evidence to support a finding that the children had a "substantial, positive emotional attachment [with her] such that [they] would be greatly harmed" if the relationship was severed. (Ibid.)To the contrary, the record shows that all four children had adjusted very well and were comfortable in their prospective adoptive home, where they had lived for over a year. All four children were appropriate for adoption. The foster mother and her mother wanted to adopt all of them and keep them together. The children recognized them as parental figures. Thus, mother's sporadic visits with the children did not outweigh the benefits of a permanent home with adoptive parents.
We conclude that the beneficial parental relationship exception under section 366.26, subdivision (c)(1)(B)(i) did not apply here.
II. The Juvenile Court Properly Found That J.W. and K.M.H. Were Adoptable
Mother argues that there was insufficient evidence to support the finding that J.W. and K.M.H. were generally adoptable. We disagree.
A. There Was Substantial Evidence to Find That J.W. and K.M.H. Were Adoptable
"The juvenile court may terminate parental rights only if it determines by clear and convincing evidence that it is likely the child will be adopted within a reasonable time. [Citations.] In making this determination, the juvenile court must focus on the child, and whether the child's age, physical condition, and emotional state may make it difficult to find an adoptive family." (In re Erik P. (2002) 104 Cal.App.4th 395, 400 (Erik P.).) "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." (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650.) "It should be remembered, at this point, that adoptability under section 366.26 is relatively easy for social service agencies to establish. (The exact language from the statute is whether 'it is likely the child will be adopted.') . . . [I]t is only common sense that when there is a prospective adoptive home in which the child is already living, and the only indications are that, if matters continue, the child will be adopted into that home, adoptability is established. In such a case, the literal language of the statute is satisfied, because 'it is likely' that that particular child will be adopted." (In re Jayson T. (2002) 97 Cal.App.4th 75, 84-85 (Jayson T.), overruled in part on other grounds as stated in In re Zeth S. (2003) 31 Cal.4th 396, 413-414.)
"In reviewing the juvenile court's order, we determine whether the record contains substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that [the child] was likely to be adopted within a reasonable time. [Citations.]" (Erik P., supra, 104 Cal.App.4th at p. 400.)
Here, there was substantial evidence to support the juvenile court's finding of J.W.'s and K.M.H.'s adoptability. At the time of the section 366.26 hearing, they were both young. J.W. was six years old, and K.M.H. was four years old. The social worker opined that they were appropriate for adoption. They were both meeting their developmental milestones. J.W. was described as a "beautiful, bright, little girl who loves her family very much and is a good big sister to her brothers." Although she suffered from asthma, she was relatively healthy, with no major concerns. She made excellent progress in kindergarten, and she was reading well. At the beginning of the dependency, J.W. was described as having the tendency to become aggressive when defending herself against her brothers. One psychiatrist opined that she had "Mood Disorder, Oppositional Defiant Disorder and Phonological Disorder," and possibly "Attention-Deficit/Hyperactivity Disorder." However, J.W. was put on medication, which helped stabilize her mood and control her behavior. The psychiatrist opined that J.W. was doing significantly better on the medication. J.W. was also receiving SART services and individual therapy.
K.M.H. was relatively healthy, and there were no major concerns with him. The social worker described him as "an adorable, active, bright little boy who loves his family." She noted that he was very aggressive with his siblings and other children. She referred him to Wraparound services, and he was accepted. He also had a hard time going to sleep and staying asleep, but he was under the care of a doctor to help him.
Mother argues that J.W. and K.M.H. were not generally adoptable, and she cites portions of the record stating the different problems they were having. She further asserts that their behavior had "worsened" in their prospective adoptive home. She particularly emphasizes a doctor's report dated October 21, 2010, which prescribed psychotropic medication and noted that K.M.H. was "at risk of losing placement." She similarly notes a doctor's report prescribing medication for J.W., dated November 11, 2010, which noted that J.W. was "in danger of losing home and school placement." Mother then claims that CFS failed to investigate these statements, in that there was "no evidence that anyone asked the doctor what he meant" by those statements. She further argues that, in failing to investigate the doctor's statements, CFS "failed in its duty to investigate all matters," and, as a result, the juvenile court did not have sufficient evidence to make a finding that the children's placement "was not likely to fall apart." Mother additionally claims that "[f]urther investigation must be done to determine whether this prospective adoptive mother will have the ability and resources to cope with these children, should their mental and emotional conditions continue to worsen."
Mother's claims have no bearing on the juvenile court's finding of adoptability. First, the statements in the doctors' reports were based on information provided to the doctors by the "psychotropic medication court desk PHN," who was a child welfare services staff person. Thus, these statements were not the doctors' own opinions, and there was no need to question them. Second, mother has not cited any relevant legal authority for the propositions that CFS had a duty to investigate the matters cited, or that the juvenile court was required to make a finding that the placement "was not likely to fall apart."
Essentially, mother's claim that J.W. and K.M.H. were not generally adoptable ignores the fact that a prospective adoptive placement had been found for them. "[W]hen there is a prospective adoptive home in which the child is already living, and the only indications are that, if matters continue, the child will be adopted into that home, adoptability is established." (Jayson T., supra, 97 Cal.App.4th at p. 85.) By the time of the section 366.26 hearing, J.W. and K.M.H. had lived with the foster mother and her mother (the prospective adoptive parents) for over one year. The prospective adoptive parents were fully aware of their problems, and had demonstrated their dedication to the developmental, physical, and emotional growth of all the children. J.W. and K.M.H. were emotionally attached to the prospective adoptive parents and recognized them as parental figures. The prospective adoptive parents loved J.W. and K.M.H., as well as the other children, and were anxious to adopt them. The prospective adoptive parents are not likely to be dissuaded.
Furthermore, since the determination of adoptability focuses on the child and not the prospective adoptive parents, there was no requirement that CFS should investigate the prospective adoptive parents' ability to handle J.W.'s and K.M.H.'s problems in the future, as mother claims. (See Erik P., supra, 104 Cal.App.4th at p. 400.)
We conclude that the juvenile court properly found clear and convincing evidence that J.W. and K.M.H. were adoptable.
III. The Juvenile Court Complied with Its Duty to Consider the Wishes
of J.W. and K.M.H.
Mother contends that the juvenile court failed to comply with its duty to consider the wishes of J.W. and K.M.H. regarding adoption, pursuant to section 366.26, subdivision (h)(1). We disagree.
Section 366.26, subdivision (h)(1), provides that, at a section 366.26 hearing, "the court shall consider the wishes of the child and shall act in the best interests of the child." "The purpose of the statutory injunction that the court 'consider the wishes of the child' simply requires the court to consider what the child's preferences are." (In re Leo M. (1993) 19 Cal.App.4th 1583, 1592 (Leo M.).) The statute has been construed as "directing the court to consider the child's wishes to the extent ascertainable." (In re Juan H. (1992) 11 Cal.App.4th 169, 173.)
Mother specifically argues that there was no evidence that adoption was explained to J.W. "in a way she could understand." She then asserts that there was no evidence that J.W. was not capable of understanding the concept of adoption. She additionally claims that "[b]ecause nobody investigated a possible connection between the children's mental states and their feelings about being cut off from their mother, the court was unable to determine the extent of the children's feelings, and hence was unable to follow the requirements of section 366.26[, subdivision] (h)(1)." Mother claims that the orders terminating parental rights must be reversed with orders for the trial court to "explore the children's feelings in greater depth and determine whether there is any connection between their psychological decline and the fact that the[y] were heading toward adoption."
Mother is complicating what appears to be a simple requirement. According to the statute, the court is simply required to consider the wishes of the child, and act in the child's best interests. (§ 366.26, subd. (h)(1).) Here, at the section 366.26 hearing, the juvenile court accepted into evidence the section 366.26 report, and stated that it read and considered the adoption assessment report. The section 366.26 report stated that J.W. had inquired about going home, but also made statements to the prospective adoptive mother and the social worker that she wanted to live with the prospective adoptive mother and visit mother. The social worker opined that "it is uncertain if [J.W.] understands what she is saying." When J.W. was asked directly about where she wanted to live, she said, "with her family." However, this reference to her family included the prospective adoptive parents. The social worker opined that, when she specifically spoke with J.W. regarding adoption, J.W. appeared to have "a limited understanding of the concept," but did understand that, if adopted, she would remain with her current caretakers until she reached adulthood. J.W. said that if she could not return to live with mother, she wanted to live with the prospective adoptive mother. J.W. was six years old at the time. The social worker commented that K.L.H. and K.M.H., at three and four years old respectively, were too young to understand the concept of adoption. At the section 366.26 hearing, the juvenile court expressly stated that it had considered the wishes of the minors, consistent with their ages, and that it was making all findings and orders in the best interests of the children.
Mother asserts that J.W. "clearly believed that adoption meant living with her caretakers but continuing to visit her mother." She further claims that J.W. "had a right to know ahead of time that adoption meant never again seeing her mother." However, "in considering the child's expression of preferences, it is not required that the child specifically understand the proceeding is in the nature of a termination of parental rights." (Leo M., supra, 19 Cal.App.4th at p. 1593.)
Mother next argues that the juvenile court abused its discretion by not acting in the best interests of J.W. and K.M.H. She claims that, because of her bond with them, and because they were not thriving in their placement, there was insufficient evidence to support a finding that adoption was in their best interests. We find no abuse of discretion. "'[C]onsideration of the child's best interests is inherent in the legislative procedure for selecting and implementing a permanent plan.' [Citation.] The purpose of the specified exceptions to adoption provided in section 366.26, subdivision (c)(1) is to ensure termination of parental rights is in the minor's best interests and is the least detrimental alternative. [Citations.] Accordingly, the court should consider the minor's best interests when making its determination in a section 366.26 hearing. [Citation.] If no exceptions apply, it is in the minor's best interests to terminate parental rights. [Citation.]" (In re Christopher L. (2006) 143 Cal.App.4th 1326, 1336.) Here, none of the exceptions to the termination of parental rights, under section 366.26, subdivision (c)(1)(B) applied. "Having made the necessary findings under the statutory scheme to terminate [mother's] parental rights, it was inherent in the legislative scheme for the court to find it in [J.W.'s and K.M.H.'s] best interests to pursue a permanent plan of adoption." (Ibid.) By the time of the section 366.26 hearing, J.W. and K.M.H. had been subjected to dependency proceedings for nearly two years. They were in a stable, nurturing environment with caregivers who were committed to adopting them. "The Legislature has decreed that a permanent plan other than adoption 'is not in the best interests of children who cannot be returned to their parents. These children can be afforded the best possible opportunity to get on with the task of growing up by placing them in the most permanent and secure alternative that can be afforded them.' [Citation.]" (Ibid.) Therefore, the juvenile court acted in the best interests of J.W. and K.M.H. in selecting adoption as the permanent plan.
IV. Mother Concedes That She Has No Indian Heritage
In her opening brief, mother contends that the ICWA notices sent to the tribes were deficient and that the matter should be remanded with instructions for CFS to send new notices. Mother's ICWA argument is based on her statement at S.C.'s detention hearing in October 2009 that her grandmother was Cherokee.
In the most recent dependency case involving mother and another one of her children, C.M. (case no. E053059), the juvenile court conducted an ICWA inquiry. On or around December 14, 2010, mother told the juvenile court, both orally and in writing, that she had no Indian heritage.
On May 31, 2011, CFS filed a request for judicial notice of the records in case Nos. E041291, E042864, and E053059. On June 21, 2011, we reserved ruling for consideration with the appeal. We grant the request for judicial notice as to case No. E053059, but deny the request as to case Nos. E041291 and E042864.
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In mother's reply brief, she agrees that the record in case no. E053059 demonstrates that the ICWA notice issue in her opening brief is moot. We, thus, consider the ICWA issue withdrawn by both mother and J.C.
DISPOSITION
The orders terminating parental rights are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
J.
We concur:
RAMIREZ
P. J.
RICHLI
J.