In re Allan S.

Filed 7/16/07 In re Allan S. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. William A. Anderson, Jr., Temporary Judge. (Pursuant to Cal. Const., art. VI,  21.) Affirmed.

Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant Deanna W.

Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant Allan S.

Joe S. Rank, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.

Jennifer Mack, under appointment by the Court of Appeal, for Minors Allan S., Kimberly S., and Christopher S.

Leslie A. Barry, under appointment by the Court of Appeal, for Minor Adriana S.

I. INTRODUCTION

Appellants Deanna W. (mother) and Allan S. (father) are the parents of minors Allan, Adriana, Kimberly, and Christopher. At a hearing held pursuant to Welfare and Institutions Code section 366.26,^[1]the juvenile court terminated the parents parental rights as to the children. The parents contend: (1) the court erred in finding that the so-called beneficial relationship exception to adoption under section 366.26, subdivision (c)(1)(A), did not apply; (2) limitations on visitation violated their right to substantive due process; and (3) the court abused its discretion when it terminated parental rights without receiving information from the children about their wishes.^[2] We affirm.

II. SUMMARY OF FACTS AND PROCEDURAL HISTORY

A. Detention, Jurisdiction, and Disposition

The children were detained by DPSS on February 27, 2003, because mother had delayed seeking medical attention for Adriana after the child fell in a bathtub and dislocated her hip. Allan, Adriana, Kimberly, and Christopher were ages six, five, one, and two weeks, respectively.

At the time of the detention, mother was living with the children in a motel. Father was incarcerated for parole violations.

Mother told the social worker that she and father have used speed, but that she has been clean and sober for two years. She also reported that father was incarcerated in 1998 for domestic violence against her.

On March 3, 2003, DPSS filed a petition alleging that the children were within the juvenile court jurisdiction pursuant to section 300, subdivisions (b) (failure to protect) and (g) (no provision for support). The petition alleged that mother failed to seek medical treatment for Adriana for three weeks after Adriana dislocated her hip, failed to keep the childrens immunizations current, and allowed them to continuously suffer with head lice. The petition further alleged that father was incarcerated and has failed to provide for the children.

In the jurisdictional/dispositional report, the social worker stated that mother and her children appear very bonded. [Mother] stated that she loves them and is lost without them. The two older children, Allan and Adriana, told the social worker that they want to return to mother.

The jurisdictional/dispositional hearing was held on June 19, 2003. By this time, father was released from prison and was participating in case plan activities. Mother completed a parenting class, was enrolled in a substance abuse counseling program, and regularly attended counseling sessions. She tested negative for alcohol and drugs. Supervised weekly visits attended by both parents took place without any problems.

The court struck the allegation under section 300, subdivision (g), that father was incarcerated, and found the other allegations true. The children were adjudged dependents. The court found that placement outside the parents home was appropriate, and ordered reunification services.

B. Return of the Children to the Parents Under Family Maintenance

By the time of the six-month review hearing in December 2003, the parents were employed and living with the maternal grandmother in a hotel room. Supervised visits between the parents and the children continued to take place.^[3]

Although Adriana was in good general health, her foster parents reported that her behavior is out of control, as well as hyper. She argues with Allan and does not follow instructions well. She is, according to the social worker, an angry little girl. The social worker attributed her behavior problems to physical abuse and the domestic violence atmosphere of the home.

The social worker reported that the family wants to be reunified. However, [n]either parent has completed their reunification plan and have not fully addressed the issues which led to the removal of the children initially. They have also not acquired housing suitable for themselves and their children. The social worker reported: [E]ach parent is in denial regarding the unsafe conditions which exist in their home and their relationship. Domestic violence was accepted as a life-style in their home and this issue has not been addressed. Adriana, in particular, may never feel safe again. She has referred to her mother as the mean mommy and is afraid to be in a room alone with her father. She concluded that the prognosis for reunification is poor.

At the six-month review hearing held in December 2003, the court found that the parents progress toward alleviating the causes that necessitated placement was inadequate. The court ordered continued reunification services.

In a status review report filed in May 2004, DPSS recommended that reunification services be terminated and that the court set a hearing pursuant to section 366.26. Mother was no longer employed, and the couple were constantly moving between hotels and a friends house.

Adrianas disruptive behavior resulted in her being placed in a series of foster homes separated from her siblings. She was diagnosed with attention deficit hyperactivity disorder (ADHD), and prescribed psychotropic medication.

Regarding visits, the social worker reported that the parents are appropriate with the children most of the time, although the father is sometimes harsh with his verbal corrections. Adriana does not look forward to the visits, and still refers to her mother as the mean mommy, or Mommy Deanna. Before one visit in May 2004, she cried in the car on the way to the visit and said she did not want to see father.

The social worker expressed concerns about the stability of the relationship between mother and father, mothers failure to address issues concerning domestic violence in the relationship, mothers failure to complete a substance abuse program, and the lack of housing for the children. She also indicated that father has difficulty controlling his anger. The social worker concluded: [A]lthough the parents clearly love their children, they are not ready to reunify with their children. The extent of progress that has been made by the parents to alleviate or mitigate the causes necessitating out of home placement has been inadequate, in that the parents either failed to make substantive progress and/or, in the mothers case, to complete the Court ordered case plan. . . . In addition, the parents have failed to locate housing during those 12 months, and there is no home for me to return the children to.

On June 17, 2004, the court authorized overnight, weekend visits between the parents and children, and liberalized day visits. (Capitalization omitted.) By July 22, 2004, the parents and children had two weekend visits.

In August 2004, the social worker asked Allan if he had to choose between living with his parents in the hotel or staying in his foster home, which he would choose. Allan said the two alternatives seem[ed] about equal in his mind.

In a September 2004 report, the social worker stated that both parents have completed and have benefited from [r]eunification [s]ervices. She continued to express concerns about the difficulty of having a family of seven (including maternal grandmother) live in a hotel room.

At a hearing in September 2004, the court authorized placement of the children with the parents for an extended visit for one month.

In an October 2004 report to the court, the social worker described a meeting with Allan and Adriana. The social worker asked Allan which he liked more, his foster care home or living with his parents. He told her that he felt they were better off with their parents. He said he feels safe with his parents and that his fathers anger is much better. The social worker tried to speak with Adriana, but she acted silly and would not talk with her. The social worker also reported that the family, while still living in a hotel, now had two rooms with a refrigerator and a microwave oven. As a result of these and other facts, the social worker changed her recommendation to reunification on family maintenance status.

At a hearing on October 28, 2004, the court ordered the children returned to the parents custody, subject to DPSS supervision. The children remained dependents of the court. The court ordered family maintenance services for the parents.

C. Parents Test Positive for Drugs and DPSS Files a Section 387 Petition

The social worker asked the parents to drug test on December 8 and 18. They did not show for either test. The social worker requested that they drug test on December 30 and informed them that if they failed to drug test they would be out of compliance with their case plan, which could result in removal of the children. The parents complied. Both of them tested positive for amphetamine and methamphetamine. When confronted with the test results, the parents denied drug use and said they were taking pain medications. Based upon these facts, DPSS detained the children and placed them in foster homes.

On January 7, 2005, DPSS filed a supplemental juvenile dependency petition under section 387. The petition alleged that mother and father failed their case plan when they tested positive for methamphetamine, thereby limiting their ability to provide the children with adequate care, endangering the childrens safety and well-being, and creating a detrimental home environment. DPSS sought removal of the children, termination of services, and the setting of a section 366.26 hearing. According to the social worker, the positive drug test shows that the parents have not benefited from the eighteen months of services that have been provided to them due to the fact once the children were returned back to their care the parents reverted back to the same habits that caused their children to come to the attention of [DPSS].

On January 10, 2005, the court ordered the children removed from the parents custody, that DPSS provide reunification services, and that visits take place as directed by DPSS.

On January 24 and 25, 2005, a social worker met separately with Allan and Adriana. Allan said he missed his mother, father, and sister, and wanted to return to the care of his parents. Adriana said that her parents take pills for no reason to try to get us taken away. She told the social worker that during an argument between the parents, father grabbed mother around the neck while mother was holding Christopher. Adriana said that the parents would hit the children on the butt with their hands to discipline them. Adriana had also stated (apparently on a different occasion) that she wanted to return to the care of her parents because they miss me.

In a jurisdictional/dispositional report, the social worker noted that the parents have expressed their love and devotion for their children. However, she concluded that the children would be at risk if they were returned to the parents because the parents have not benefited from services provided by DPSS, they did not show up for two drug tests in December 2004 and failed a third, Adrianas comments indicate that there remain concerns of domestic violence, the stress of raising four children while maintaining their sobriety, and the difficulty of finding stable and affordable housing.

In February 2005, the parents admitted to the social worker that they had used drugs around the time they tested positive on December 30, 2004. They tested negative for drugs in January and February 2005.

Adriana told a social worker in February 2005, I like staying with Deanna. I like playing with my brothers [sic], sister, mom, dad, Auntie Jennifer and my cousins.

The social worker met with Allan in March 2005. She asked Allan how he felt about staying with the foster parents or returning home to his parents. Allan told her that he wanted to go back home with [h]is parents because he misses and loves his parents and he believes that kids should be with their parents.

A jurisdictional/dispositional hearing and family maintenance review hearing were held concurrently on March 22, 2005. The court terminated reunification services and set a section 366.26 hearing for July 20, 2005. The court selected adoption as the permanent plan.

D. Post-termination of Services and the Reduction of Visitation

In July 2005, DPSS requested a continuance of the section 366.26 hearing to allow time to find adoptive families for the children. The social worker reported at that time that the children no longer asked about returning to their parents care.

A review hearing was held on September 22, 2005. Until that date, the parents had been having weekly supervised visits with the children. At the review hearing, DPSS recommended that visitation between the children and parents be limited to once per month. The recommendation was based on reports from social workers that due to the frequency of the visits, Adriana is confused and is under the impression that she is returning back to the care of her parents. According to the social worker, it is very imperative that the visitation order between the children and parents be changed to convene once per month so the children and the parents can begin to prepare for the major changes that are in the process of taking place as the children will soon be transitioning to their adoptive homes/families.

At the hearing, counsel for mother and father objected to the request to reduce visitation to once per month. Instead, counsel asked that visits occur twice per month. The court ordered that visits take place once per month. Neither parent appealed from this order.

In October 2005, a social worker spoke to Adriana about the meaning of adoption and the adoption process. She explained to Adriana that there was a couple who was interested in meeting her. Adriana appeared apprehensive at first, but then became excited.

Although the record is not clear, it appears that sometime between September 2005 and March 2006, mother and father separated, and mother moved into an apartment with the maternal grandmother. Also around this time, father was incarcerated for parole violations. He was released in February 2006.

Mother visited the children on February 2, 2006. The social worker reported that Adriana was more attentive to the mother than the other children. Towards the end of the visit, the mother became tearful. Adriana tried to comfort her mother and hug her[,] however[,] the other children continue[d] to play with their toys.

A few days after the February visit, Adriana was placed with prospective adoptive parents. She threw tantrums, screamed, and hit, bit, and verbally abused the prospective adoptive parents. When she would get upset, she would tell them that she wants Deanna, and, on some occasions, said that she is going to kill them or herself.

Adriana did not attend a scheduled visit on March 3, 2006, due (according to the social worker) to the emotional and behavioral issues she has been displaying in regards to dealing with the fact that she will not be returning to the care of her parents.

Because of Adrianas behavioral problems, the social worker requested that visitation between Adriana [and] her mother and father be suspended at this time until it is deemed appropriate by her therapist. The social worker explained: Adriana is developing a bond and is becoming attached to her perspective [sic] adoptive parents but appears to be torn between developing a bond with her prospective adoptive parents and coming to terms with the fact that she will not be returning to the care of her mother. At this time, it is in Adrianas best interest that she be able to address her issues of not returning to the care of her mother and releasing herself to fully bond with her prospective parents in a therapeutic setting. The perspective [sic] adoptive parents have expressed their commitment to Adriana and it is vital that measures be taken to support maintaining Adriana in the home of her perspective [sic] adoptive parents who have expressed a commitment to providing Adriana a permanent, nurturing and loving home.

At a hearing in March 2006, the parents objected to the suspension of visitation and suggested, through their counsel, that visits take place in a therapeutic setting. DPSS agreed with this suggestion. The court ordered that visitation between Adriana and the parents take place in a therapeutic setting at the recommendation of the therapist. Neither parent appealed from this order.

No further visits with Adriana took place. The record does not disclose any reason for the lack of visits and, despite numerous subsequent court appearances, none of the parties raised any issue concerning the absence of visitation.

In May 2006, a social worker reported that Adriana has made significant progress since [earlier in the year when she had frequent and violent tantrums]. She is responsive to the limits and consequences that the Prospective Adoptive Parents set for her and she appears to crave the structure and consistency that is provided. . . . Adriana initially struggled to form a bond with the Prospective Adoptive Mother, but currently the attachment is strong and reciprocal. Aldrianna [sic] also continues to develop a strong bond with the Prospective Adoptive Father. The report included a letter from Adrianas therapist stating that Adriana initially exhibited symptoms typical of a child who has experienced loss, abandonment, and abuse. The therapist stated further that she anticipated that Adriannas [sic] behavior and mental health will continue to improve with living in a stable and appropriate environment.

Allan, Kimberly, and Christopher were placed together in a preadoptive home and appeared to be bonding well to their prospective adoptive family. In the adoption assessment concerning the prospective adoptive parents of these children, the social worker stated that the visits with the parents have caused confusion for the children and behavioral outbursts.

During the mothers June 5 visit with these children, mother told them that the visit would probably be the last. According to the social worker, the visit was very emotional for the parents and Allan.

The June 5 visit was indeed the last visit. It is not clear from the record why no further visits occurred. There is no record of any order suspending or precluding visits.^[4] At a hearing on June 21, 2006, Allan was present. Mothers counsel asked for a brief after-court visit with Allan if he consents to that. DPSSs counsel informed the court that Allan has apparently been refusing to go to the visits. Mothers counsel stated that [Allans counsel] will talk to him. The proceeding then concluded with the court indicating that the visit can occur [s]o long as [DPSS] believes its feasible and appropriate. An after-court visit did not take place. The record does not disclose whether the visit did not occur because Allan refused to visit, because DPSS believed it was not feasible or appropriate, or for some other reason.

The parties were in court again the next day. Visitation, or the lack of visitation, was not mentioned. Counsel for Allan expressed concern about the delays in holding the section 366.26 hearing, and stated that Allan is very anxious to move forward with his life, to establish that permanency. At least two more hearings occurred before the section 366.26 hearing on September 25, 2006, without anyone raising an issue about visitation.

In the adoption assessment prepared for the prospective adoptive parents of Allan, Kimberly, and Christopher, the social worker reported that Kimberly and Christopher are too young to make a meaningful statement about adoption. When Allan was asked about being adopted, he said, I feel good and it feels good to have a new family.

Although an adoption assessment was prepared regarding Adrianas prospective adoptive parents, it does not include any express statement from Adriana regarding her feelings concerning adoption.

In a status report filed in September 2006, the social worker reported that when Adriana gets upset with her preadoptive mother, she tells her you are not my real mother, and asks for mother. However, the prospective adoptive parents also reported that Adrianas behavior has greatly improved, and that the number of incidences and the severity of her tantrums have greatly decreased.

Father was arrested for violating parole on June 5, 2006. He was released on September 11, 2006.

E. Section 366.26 Hearing

The section 366.26 hearing was held, after numerous continuances, on September 25, 2006. Mother testified to the following: she initially visited the children once per week; later, visits occurred once per month; she did not agree to the decision to decrease the frequency of visits; the children called her mom or mommy, although Adriana would call her Deanna when Adriana was mad; the last visit with Adriana took place in February 2006; her last visit with the other children was on June 5, 2006; DPSS did not respond to her complaints about not seeing her children; she has a good relationship with her children; there is no doubt in her mind that she still has a bond with them; Allan told her all the time that he wanted to live with her; Adriana was having problems in foster care because she wanted to return to mothers home; the children always expressed a desire to return home; the children would hug her during visits and cried when they learned they would not be coming home; and she did not want the children to be adopted.

Counsel for Allan, Kimberly, and Christopher represented that these children were in favor of adoption. Counsel for Adriana asked the court to follow DPSSs recommendation, stating that adoption was in her best interest. Mother and father requested that the court order legal guardianship, rather than adoption, based upon the bond between the parents and children.

The court found that the children would likely be adopted and that adoption was in their best interests. The court ordered that parental rights be terminated, finding that none of the statutory exceptions to terminating parental rights applied.

Mother filed a notice of appeal on September 28, 2006. The notice states that she is appealing the order terminating parental rights made at the section 366.26 hearing on September 26, 2006. Father joined in mothers appeal.

III. DISCUSSION

A. Beneficial Relationship Exception to Adoption

Mother and father contend that the court erred in failing to apply the beneficial relationship exception to terminating parental rights provided in section 366.26, subdivision (c)(1)(A). We disagree.

1. Applicable Law

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 Autumn H. (1994) 27 Cal.App.4th 567, 573.) 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). ( 366.26, subd. (c)(1); In re Celine R. (2003) 31 Cal.4th 45, 53.) One such exception is the so-called beneficial relationship exception set forth in section 366.26, subdivision (c)(1)(A). (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206.) The exception applies where termination of parental rights would be detrimental to the child because [t]he parents . . . have maintained regular visitation and contact with the minor and the minor would benefit from continuing the relationship. (In re Derek W. (1999) 73 Cal.App.4th 823, 826.)

The parent has the burden of proving that the beneficial relationship exception applies. (In re Derek W., supra, 73 Cal.App.4th at p. 826.) To satisfy this burden, the parent must show that his or her relationship with the child 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. (Id. at p. 827, quoting In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

The balancing of competing considerations must be performed on a case-by-case basis and take into account many variables, including the age of the child, the portion of the childs life spent in the parents custody, the positive or negative effect of interaction between parent and child, and the childs particular needs. [Citation.] When the benefits from a stable and permanent home provided by adoption outweigh the benefits from a continued parent/child relationship, the court should order adoption. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1349-1350.) Alternatively, 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 parents rights are not terminated. (In re Derek W., supra, 73 Cal.App.4th at p. 827, quoting In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

There must be a compelling reason for applying the parental benefit exception. ( 366.26, subd. (c)(1); In re Jasmine D., supra, 78 Cal.App.4th at p. 1349.) This is a quintessentially discretionary determination. The juvenile courts opportunity to observe the witnesses and generally get the feel of the case warrants a high degree of appellate court deference.^[5] (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) When two or more inferences can reasonably be deduced from the facts, we have no authority to substitute our decision for that of the trial court. (In re Stephanie M. (1994) 7 Cal.4th 295, 319.) The courts discretion, however, is not a capricious or arbitrary discretion, but an impartial discretion, guided and controlled in its exercise by fixed legal principles. It is not a mental discretion, to be exercised ex gratia, but a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. [Citations.] (In re Robert L. (1993) 21 Cal.App.4th 1057, 1066.) In reviewing for an abuse of such discretion, we will reverse only if we conclude that the trial court exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination. (In re Jasmine D., supra, at p. 1351.) The appellants have the burden on appeal to establish an abuse of discretion. (Ramos v. Countrywide Home Loans, Inc. (2000) 82 Cal.App.4th 615, 624; see generally In re Stephanie M., supra, at pp. 318-319.)^[6]

2. Analysis

A threshold issue with respect to the beneficial relationship exception is whether the parents maintained regular visitation with the children. (See  366.26, subd. (c)(1)(A).) Here, mother (and father when he was not in custody) visited the children consistently throughout the three and one-half year dependency case until a point when visits ceased. For Adriana, that point was in February 2006; the last visit with the other children occurred in June 2006. As set forth above, the reasons for the cessation of visits is not apparent from the record. We need not decide, however, whether the cessation of visits precludes application of the beneficial relationship exception on the basis that the parents did not maintain regular visitation because DPSS does not dispute that regular visitation took place for purposes of section 366.26, subdivision (c)(1)(A).^[7]

There appears to be little, if any, evidence of a parent-child bond between the parents and the two younger children, Kimberly and Christopher. (Indeed, the parents make no substantial argument with regard to these children in their briefs on appeal, focusing instead on the older children.) Christopher was two weeks old when he was removed from the parents care; Kimberly was 19 months old. At the time of the section 366.26 hearing, Christopher was three years seven months old, and had spent nearly his entire life in foster care. Kimberly had been in foster care for more than three and one-half of her five years. The childrens foster mother reported that they do not ask about the parents. The social worker reported that Allan and mother were emotional when mother announced that the June 5, 2006, visit would probably be the last; but there is no mention of any reaction by the younger children. Nor is there any evidence that these children had any interest in further contact with either parent. The court could easily conclude that whatever benefit there might be from maintaining a relationship between the parents and the younger children was outweighed by the benefits of adoption.

The analysis of Adrianas relationship with her parents is more complex. According to the social worker, in 2003 and 2004 Adriana did not look forward to visits with the parents and sometimes referred to mother as the mean mommy. She cried in the car on the way to a visit in May 2004 and said she did not want to see father. However, there was also evidence that in late 2005 and early 2006 Adriana was happy to see mother during visits, would ask for Deanna when she was upset with her foster parents, and would pray at night to be returned to Deanna. During what turned out to be their last visit together, Adriana tried to comfort mother when mother began crying. Months later, when Adriana got upset, she would tell her prospective adoptive mother that she is not her real mother, and would ask for mother.

Even if such evidence shows that mother and Adriana shared a strong parent-child bond, the court could reasonably conclude that maintaining their relationship would not promote Adrianas well-being as much as a permanent home with an adoptive family. The social worker indicated that the visits with mother after placement with a prospective adoptive family were detrimental to Adriana and contributed to her behavioral problems. The trial court apparently agreed when it ordered that visits take place only in a therapeutic setting at the recommendation of Adrians therapist. Indeed, following the cessation of visits with mother, Adrianas behavior improved greatly, and the severity of her tantrums decreased. Her therapist anticipated that her behavior and mental health would continue to improve while living in a stable environment. Thus, even if the court adopted the parents view that Adrianas tantrums, behavior problems, and her threats to kill herself and the prospective adoptive parents constitute compelling evidence of a strong bond between mother and Adriana, Adrianas unfortunate manner of expressing this bond ‑‑ through tantrums and threats ‑‑ is also strong evidence that maintaining contact with mother was detrimental to Adrianas well-being. The trial court could thus reasonably conclude that any benefit from maintaining Adrianas relationship with mother was outweighed by the benefits of terminating that relationship and the permanency of adoption. The courts decision to terminate parental rights as to Adriana, therefore, was not an abuse of discretion.

We now turn to Allan. Prior to the termination of reunification services, Allan indicated that he wanted to return to his parents because he missed them and loved them, and believed that kids should be with their parents. After the termination of reunification services and his placement with a prospective adoptive family, Allan told the social worker that he felt good about being adopted and having a new family. Following the very emotional visit on June 5, 2006, it appears that Allan refused any more visits with mother. (Father was in jail between June 5, 2006 and September 11, 2006.) Allan was, according to his counsel, very anxious to move forward with his life, to establish that permanency. He would not speak of his parents unless the social worker initiated a conversation about them. The prospective adoptive mother reported that delays in the process resulting from repeated continuances of the section 366.26 hearing caused Allan consternation. When the hearing did occur, his counsel represented to the court that Allan was in favor of adoption. These facts reveal a boy who undoubtedly loved his mother, but who had rationally decided to sever his emotional relationship with her once reunification was no longer possible; this decision was apparently made several months before the courts decision to termination their legal relationship. The parent-child bond, though once strong, was effectively broken by Allan himself. Under these circumstances, the courts decision to terminate the parents rights with respect to Allan was not an abuse of discretion.

The parents contend that DPSS has unclean hands because the social worker allegedly impermissibly shaped the facts of this case by seeking to decrease visits with the children from weekly to monthly and, later, to suspend visits with Adriana. The limitations on the visits, they argue, deprived them of the opportunity to have the kind of relationship necessary to come within the beneficial relationship exception. Thus, they assert, DPSS was estopped from arguing that the beneficial relationship exception did not apply.

The doctrine of unclean hands prevents a party from obtaining either legal or equitable relief when that party has acted inequitably or with bad faith relative to the matter for which relief is sought. (Camp v. Jeffer, Mangels, Butler & Marmaro (1995) 35 Cal.App.4th 620, 638-639.) Initially, we note that it is not clear that the doctrine of unclean hands would apply in this situation as DPSS was not seeking legal or equitable relief relative to the application of the beneficial relationship exception. Rather, as pointed out above, the burden was on the parents to establish the facts necessary for the exception to apply. (In re Derek W., supra, 73 Cal.App.4th at p. 826; In re Tamika T.(2002) 97 Cal.App.4th 1114, 1119-1120.)

Even if the doctrine of unclean hands might apply in this situation, neither parent asserted this argument at the section 366.26 hearing. They have thus forfeited the argument on appeal. (See In re Dakota S. (2000) 85 Cal.App.4th 494, 502.)

Even if the argument has not been forfeited, it is without merit. The argument is based upon the assertion that the social workers requests to reduce visitation were made in bad faith: The wrongful requests to reduce visitation led the court to improperly order reduced visitation, which caused the reduction of visits, which prevented the parents from maintaining their bond with the children, which resulted in the courts finding that the beneficial relationship exception did not apply.^[8] An essential link in this chain of causation is that the courts visitation orders are erroneous. However, the parents did not appeal from the visitation orders, and their correctness cannot be challenged in this appeal. (See Sara M. v. Superior Court (2005) 36 Cal.4th 998, 1018; Melinda K. v. Superior Court (2004) 116 Cal.App.4th 1147, 1156.) Thus, regardless of the social workers intent in requesting reduced visitation, the propriety of the courts orders to reduce visitation is res judicata. (See In re Cicely L. (1994) 28 Cal.App.4th 1697, 1705.) Because the correctness of the orders reducing visits has been finally determined, there can be no causal connection between the social workers alleged bad faith and the courts ultimate finding on the beneficial relationship exception.

Moreover, the reduction and cessation of visits do not appear to have played a part in the courts decision. As set forth above, there is no substantial evidence of a strong bond with the younger children even before the reduction of visits; the court could reasonably conclude that Adrianas ongoing contact with mother had a detrimental, rather than beneficial, effect upon the child; and Allan apparently took the initiative in discontinuing visits with mother. Thus, even if the parents argument was not forfeited (by failing to raise it below) or waived (by failing to appeal from the visitation orders), the parents have failed to establish that the reduction or cessation of visits caused the court to abuse its discretion when it found that the beneficial relationship exception did not apply.

The parents also make a more direct challenge to the visitation orders. They argue that the termination of parental rights was error because the decision was premised on the allegedly wrongful orders limiting visitation rights. The visitation orders, they contend, violate California statutory requirements (see  362.1, subd. (a)(1)(A), 366.21, subd. (h), 366.22, subd. (a)), and their right to substantive due process under the federal Constitution. Even more clearly than their unclean hands argument, these arguments are based squarely upon the assertion that the visitation orders were wrongly decided. As explained above, however, the validity of these orders cannot be challenged in this appeal. Furthermore, the parents forfeited these arguments by failing to raise them below.

B. Consideration of the Childrens Wishes

The parents contend that the court abused its discretion in terminating parental rights without receiving information from Allan, Adriana, and Kimberly about their wishes.

Section 366.26, subdivision (h) requires the court at the selection and implementation hearing to consider the wishes of the child. This evidence may be presented by direct formal testimony in court, informal direct communication with the court in chambers, reports prepared for the hearing, letters, telephone calls to the court, or electronic recordings. [Citation.] However, the court must only consider the childs wishes to the extent those wishes are ascertainable. [Citation.] (In re Joshua G. (2005) 129 Cal.App.4th 189, 201.)

Here, the social worker reported that Kimberly and Christopher were too young to make a meaningful statement about adoption. Kimberly was five years old at the time of the section 366.26 hearing; Christopher was three and one-half years old. There was no objection to this statement, nor any contention below that more was required from these children. The court could reasonably conclude that the social workers perception of the younger childrens inability to make a meaningful statement about adoption was accurate, and that their wishes were thus not ascertainable for purposes of section 366.26, subdivision (h). (See In re Joshua G., supra, 129 Cal.App.4th at p. 201.)

One year before the section 366.26 hearing, the social worker talked to Allan about the adoption process. Allan indicated that he understood the process and that there was a strong likelihood that he and his siblings would not be returning to the care of their parents. He said that if he is adopted, he would like to be placed together with his sister Kimberly. Months later, in a preliminary assessment of the prospective adoptive parents, the social worker reported that Allan, who was nine years old at the time, was specifically asked about being adopted, and told the social worker: I feel good and it feels good to have a new family. After Allan refused to have further visits with mother, his counsel represented to the court that Allan was very anxious to move forward with his life, to establish that permanency. His counsel also informed the court at the section 366.26 hearing that Allan was in favor of adoption. Based on these facts, the court was adequately informed of Allans wishes, and presumably considered them in making its decision.

There is no direct evidence of Adrianas wishes regarding adoption. Adrianas behavioral problems with her foster parents is, at best, ambiguous circumstantial evidence of her wishes. Even the social workers comment that she became excited when told about meeting prospective adoptive parents is ambiguous. Nevertheless, any failure to adequately present Adrianas wishes regarding adoption is harmless. The court need not follow the childs wishes unless the child is over the age of 12. (In re Joshua G., supra, 129 Cal.App.4th at p. 201,  366.26, subd. (c)(1)(B).) Adriana was eight years old at the time of the section 366.26 hearing. Indeed, her counsel at the section 366.26 hearing argued that adoption was in her best interest, and her counsel on appeal requests that the order terminating parental rights be affirmed. Thus, even if Adriana expressed a desire not to be adopted, the court likely would have concluded that it was in her best interest to be adopted.

IV. DISPOSITION

The order terminating parental rights is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King

J.

We concur:

/s/ Richli

Acting P.J.

/s/ Gaut

J.

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^[1] All further statutory references will be to the Welfare and Institutions Code unless otherwise indicated.

^[2] Counsel on appeal was appointed for Allan, Kimberly, and Christopher. Separate counsel was appointed for Adriana. Both counsel filed briefs joining in Riverside County Department of Public Social Servicess (DPSS) brief, and request that the order terminating parental rights be affirmed.

^[3] For reasons not relevant here, Adriana was not transported to the visits approximately 50 percent of the time.

^[4] At the section 366.26 hearing more than three months later, mother testified that she complained to DPSS about the lack of visits, but received no response.

^[5] The parents and DPSS assert that the correct standard of review is substantial evidence. The practical differences between the substantial evidence standard and the abuse of discretion standard in this situation is insignificant. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) As the Jasmine D. court stated, [E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. . . . Broad deference must be shown to the trial judge. The reviewing court should interfere only if [it] find[s] that under all the evidence, viewed most favorably in support of the trial courts action, no judge could reasonably have made the order that he did. . . . [Citations.] (Ibid.)

^[6] Mother contends that DPSS has failed on appeal to demonstrate that the juvenile court was correct in finding the beneficial relationship exception did not apply. This turns the burden on appeal on its head. DPSS does not have a burden to demonstrate that the juvenile court was correct; rather, the parents, as the appellants, have the burden on appeal to prove that the courts decision was an abuse of discretion.

^[7] Mother asserts that the courts ruling implies that her monthly visits with the children did not constitute regular visitation. Mother does not cite to any facts in the record to support such an implication, and we do not draw such an inference from the courts ruling.

^[8] The parents also rely upon the alleged fact that the social worker did not discuss with the children their feelings about adoption. They argue that the social worker did not ask them because she did not want to report what they would have said to the court. The argument is not supported by citation to the record and is based on speculation about the social workers intentions. We therefore disregard it. (Warren-Guthrie v. Health Net (2000) 84 Cal.App.4th 804, 808, fn. 4, overruled on another point in Cronus Investments, Inc. v. Concierge Services (2005) 35 Cal.4th 376, 393, fn. 8.)