Filed 3/23/18 In re D.C. CA1/1
Received for posting 3/26/18
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE


In re D.C., et al., Persons Coming Under the Juvenile Court Law.
CONTRA COSTA COUNTY CHILDREN & FAMILY SERVICES BUREAU,
Plaintiff and Respondent,
v.
K.S.,
Defendant and Appellant. A152582

(Contra Costa County
Super. Ct. Nos. J16-00345 & J16-
00346)


K.S. (Mother), the mother of D.C. and L.C., appeals from the juvenile court’s order terminating her parental rights under Welfare and Institutions Code section 366.26. Mother contends the juvenile court erred because (1) there was no substantial evidence D.C., a child over age 12, consented to adoption; (2) the court’s denial of a continuance of the section 366.26 hearing was an abuse of discretion; (3) the court failed to ascertain the wishes of D.C. and L.C. with respect to their placement; and (4) the court’s denial of Mother’s section 388 petition was an abuse of discretion. We reject each of these contentions and affirm.
I. BACKGROUND
The underlying facts of this dependency are familiar to this court from Mother’s prior appeal of the juvenile court’s jurisdictional and dispositional orders, and except as briefly summarized below or directly relevant to the current orders, will not be repeated here. Our prior opinion is incorporated by reference.
A. Jurisdiction and Disposition
Following a contested jurisdiction hearing, the juvenile court sustained allegations D.C., L.C., and their brother, N.C., were dependent children within the meaning of section 300 based on domestic violence between the parents and Mother’s physical abuse of her mother (grandmother) in the children’s presence, Mother’s substance abuse, and the unsafe condition of the commercial space in which the family was living. The juvenile court removed the children from Mother’s custody and ordered reunification services.
B. Six-month Review
In preparation for the six-month review hearing, the Contra Costa County Children & Family Services Bureau (Bureau) filed a status report noting D.C. and L.C. had been placed together in a foster home since March 2016. The report noted D.C. is “angry at his mother who he says ‘is unpredictable, abused her own mom, and abused us.’ ” D.C. said Mother was “ ‘not a fit parent’ ” and expressed apathy about missing a visit with her. He stated he would like to reunify with his father but if that was not possible, he would like to be adopted by the foster mother. The report described L.C. as a “very sweet, loving, and happy child.” L.C. said she “really want[ed]” to visit with her mother, but wanted to stay where she is and be adopted by her foster mother.
The report stated during the review period Mother had missed several scheduled appointments at the Bureau, was currently homeless, had many different phone numbers, was difficult to reach by phone, and missed several planned visitations with her children despite receiving transportation assistance from the Bureau. The Bureau also reported Mother was provided with referrals for counseling, domestic violence programs, and parenting education, but refused to follow through. Mother tested positive for marijuana twice in May 2016, and since that time, “no-showed” for drug testing 33 times. Mother refused to do further drug testing or participate in substance abuse treatment, stating she only used marijuana and it did not affect her parenting. At the hearing, the court ordered further reunification services and supervised visitation for Mother.
C. Twelve-month Review
For the 12-month review hearing in June 2017, the Bureau filed a memorandum and status report indicating L.C. was concerned about Mother and mentioned Mother had failed to come to an arranged visit. L.C. said she would like to see Mother, but was “unwavering in her desire to stay where she is and be adopted by the foster mother.” D.C. told his therapist he did not want to see Mother or have visits with her. He was “open to reunification with his father,” but if that was not possible, he wanted to be adopted by the foster mother.
The Bureau also reported Mother entered a drug treatment program on May 31, 2017, but denied having a drug problem. By this point, Mother had missed 42 drug tests. The status report noted Mother “has not been able to make even minimal progress in nearly fourteen months since these children were detained” and had managed to attend only three visits with the children during the same period.
At the 12-month hearing, Mother testified about the residential drug treatment program and recent efforts to engage in her case plan. A social worker also testified. At the end of the hearing, the court set the section 366.26 hearing for a permanent plan as to D.C. and L.C., and terminated reunification services for both parents.
D. Section 388 Petition and Hearing
On September 5, 2017, Mother filed a section 388 petition seeking further reunification and visitation services. Mother’s petition stated she had completed the substance abuse treatment program and a mental health evaluation, had attended parenting classes, domestic violence counseling, individual and group counseling, and was drug testing, with all tests being negative for drugs. The court ordered a hearing on the section 388 petition to coincide with the section 366.26 hearing.
At the hearing, Mother testified she completed the residential drug treatment program on September 2, 2017. She was currently living in a sober living environment provided through the program, and was taking domestic violence and parenting classes. After considering the petition, evidence, Mother’s testimony, and arguments from counsel, the juvenile court denied Mother’s section 388 petition.
E. Section 366.26 Report and Hearing
The status report prepared by the Bureau for the section 366.26 hearing stated D.C. had been visiting with a maternal second cousin and his wife for the past three weeks. D.C. enjoyed the visits, and the maternal relatives expressed an interest in adopting him. They were participating in a county “resource family approval program” in hopes of having D.C. placed in their care. The report noted D.C.’s first preference was to be returned to his father, but he understood that was not an option at the time and his second preference was to be placed with a relative. It also stated: “Though he says that he is fine with being adopted by the current foster mother, he wavers on that possibility.” The prospective adoptive mother was willing to adopt D.C. but wanted him to be happy “and would only adopt if that is what he wants.”
As to L.C., the report noted she enjoyed visits with Mother, but said her favorite place to be is her current home and that she would like to be with her foster mother but is afraid she will hurt Mother’s and other relatives’ feelings for feeling that way. At a home visit, L.C. stated if she had three wishes, she would wish to live with her foster mother forever, live in a castle, and become a princess. The report further noted the prospective adoptive mother loved L.C. very much, provided her with a stable and nurturing home, and was committed to providing her with a permanent home.
The Bureau’s assessment sought termination of parental rights for L.C., but requested a continuance of the section 366.26 hearing as to D.C. to allow further time to assess whether placement with his maternal relatives was possible and “to develop the most appropriate permanent plan.”
At the beginning of the section 366.26 hearing, the Bureau reiterated its request for a continuance. Counsel for D.C. initially agreed a continuance was appropriate under the circumstances of the case. Mother’s counsel also requested a continuance “so that there would be some more certainty as well as some certainty regarding the sibling issues.” The juvenile court, however, noted D.C. had “two people now that want to adopt.” Commenting he was “clearly adoptable,” the court further stated, “I don’t think delaying this is going to help him any. It just makes it more uncertain for him.” After the court stated its intention to deny the continuance, minor’s counsel concurred, remarking, “In talking out loud about it, I have to agree with the Court. I think it would be appropriate to proceed with [D.C.] today.”
After listening to further arguments from counsel, the juvenile court found by clear and convincing evidence both children were likely to be adopted, return to parental custody would be detrimental, and the termination of parental rights was in the best interests of the children. The court then terminated parental rights as to both children.
II. DISCUSSION
A. Adoptability and Consent to Adoption by Minor over Age 12
Mother first contends the order terminating her parental rights must be reversed because there is insufficient evidence to support the juvenile court’s finding D.C. was likely to be adopted. Specifically, she asserts the juvenile court erred because under Family Code section 8602, a child over 12 years old must consent to his or her adoption, and there is no clear and convincing evidence D.C. consented to adoption by his foster parent or the relative with whom the Bureau considered placing him. For several reasons, we reject Mother’s argument.
1. Forfeiture
First, Mother failed to argue below there was any impediment to D.C.’s adoption based on his lack of consent, and accordingly, she is precluded from raising the issue on appeal. (See In re G.M. (2010) 181 Cal.App.4th 552, 563–564 [mother’s failure to raise aunt’s eligibility to adopt under Fam. Code, § 8603 as legal impediment to adoption at trial forfeited her right to raise issue on appeal].)
2. Family Code Section 8602
Even assuming Mother did not forfeit her claim, however, she has not shown reversal is warranted here. At a section 366.26 hearing, the juvenile court shall terminate parental rights if it finds a dependent child is likely to be adopted, unless an exception applies. One such exception is where a child over 12 years of age objects to the termination of parental rights. (§ 366.26, subd. (c)(1)(B)(ii).) Under a different statute, Family Code section 8602, a child over 12 years of age must consent to his or her own adoption. Relying on Family Code section 8602, Mother argues the juvenile court erred in terminating parental rights in this case because there was no clear and convincing evidence D.C. consented to his adoption.
We first note Mother cites no authority, and we have found none, suggesting the juvenile court must consider whether a child over age 12 consents to adoption under Family Code section 8602 in a section 366.26 hearing, where, as here, the child is deemed generally adoptable. (See, e.g., In re Sarah M. (1994) 22 Cal.App.4th 1642, 1650 [juvenile court in a § 366.26 proceeding may inquire whether there is any legal impediment to adoption under Fam. Code, §§ 8601, 8602, or 8603, where a social worker opines a child is likely to be adopted based solely on the existence of a prospective adoptive parent who is willing to adopt]; In re G.M., supra, 181 Cal.App.4th at p. 562 [evidence of legal impediment to adoption by identified prospective adoptive parent is relevant and admissible when social worker’s opinion is dependent in part on willingness or commitment of prospective adoptive parent]; In re Christopher L. (2006) 143 Cal.App.4th 1326, 1333, fn. 3 [noting in dicta “there is no provision under section 366.26 adopting Family Code section 8602 for juvenile dependency court proceedings” and stating Fam. Code, § 8602 would be applicable later, at the adoption proceeding, when minor’s consent would be required]; see also Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2017) § 2.171[5][b][iii], p. 2-602 [noting Fam. Code, § 8602 applies at adoption proceeding where child determines whether to consent to adoption, but in § 366.26 proceeding, court determines whether termination of parental rights would be detrimental to child].)
In any event, even assuming the court was required to consider evidence of a legal impediment to adoption under Family Code section 8602, there was no evidence D.C. did not consent to adoption. At least twice, D.C. affirmatively stated he would like to be adopted by the foster mother if he could not live with his father. The only ambiguous evidence on this point was the excerpt from the section 366.26 report which stated, “Though he says that he is fine with being adopted by the current foster mother, he wavers on that possibility.” Such a statement hardly establishes an affirmative lack of consent. At most it reveals he may have had doubts or been equivocal about adoption, which is not surprising given the difficulty children face in making such decisions. (See In re Leo M. (1993) 19 Cal.App.4th 1583, 1593 (Leo M.) [“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.”]; see also Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure, supra, at § 2.171[5][b][iii], p. 2-602 [“A child can consent to adoption and yet have reservations about it. A child can consent to adoption and still have some objections.”].) Construing the evidence in the light most favorable to the court’s findings, as we must, there is no evidence D.C.’s “wavering” amounted to a lack to consent to adoption.
3. Substantial Evidence of Adoptability
Mother also argues there was no clear and convincing evidence of adoptability. A finding of adoptability requires clear and convincing evidence the child will likely be adopted within a reasonable amount of time. (§ 366.26, subd. (c)(1); In re Zeth S. (2003) 31 Cal.4th 396, 406.) The question of adoptability generally focuses on whether the child’s age, physical condition, and emotional state make it difficult to find a person willing to adopt that child. (In re Erik P. (2002) 104 Cal.App.4th 395, 400.) We review the juvenile court’s determination the child was likely to be adopted within a reasonable time for substantial evidence, construing the evidence in the light most favorable to the court’s order and resolving all conflicts in support of the order. (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1562.)
Here, there was ample evidence to support a finding D.C. was likely to be adopted within a reasonable time. The assessment prepared for the section 366.26 hearing discussed D.C.’s medical, developmental, educational, mental, and emotional status as required by section 366.21, subdivision (i)(1)(C)(i). The content of the report affirms that D.C. had no medical concerns, was “developmentally on target,” had significantly improved his grade point average from the prior year, “responds well to his peers/teachers,” and noted no educational concerns at the time. The report reflects he was attending weekly therapy sessions and was coping with depression, but lately had been more “upbeat and has a more positive spirit about things.” The section 366.26 report noted the prospective adoptive mother was willing to adopt D.C., and a maternal second cousin and his wife had expressed an interest in being a placement option, with the possibility of adoption in the future. The fact one prospective adoptive parent was willing to adopt D.C. and another relative was interested in placement with a possibility of adoption further supported a finding he was adoptable. (See In re Gregory A., supra, 126 Cal.App.4th at p. 1562 [“ ‘ “[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 family or by some other family.” ’ ”].)
Mother argues other evidence contradicted a finding of adoptability, including evidence D.C. suffered depression, wrote a suicidal note on the back of a notebook in February 2017, and had difficulties in school. Our review does not permit us to reweigh the evidence, however, and we are not permitted to indulge in inferences contrary to the juvenile court’s findings. (In re Michael G. (2012) 203 Cal.App.4th 580, 589.) We conclude the record contains substantial evidence supporting the juvenile court’s determination D.C. was likely to be adopted within a reasonable time.
B. No Abuse of Discretion in Denying Continuance
Mother next asserts the juvenile court abused its discretion in denying a continuance of the section 366.26 hearing as to D.C.
Under section 352, subdivision (a), a juvenile court may continue a hearing in a dependency proceeding only upon a showing of good cause. In considering whether a continuance is in the interests of the minor, “the court shall give substantial weight to a minor’s need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements.” (Ibid.) Continuances are generally disfavored in dependency matters, and we evaluate a juvenile court’s decision to deny a continuance for abuse of discretion. (In re Giovanni F. (2010) 184 Cal.App.4th 594, 604–605.)
Mother argues under the “unique circumstances” of this case, the juvenile court’s order was an abuse of discretion because (1) the court lacked substantial information D.C. would be adopted and consented to his adoption; (2) the court lacked the assessment of adoptability required by section 366.21; (3) the court failed to interview D.C. to determine his preferences as to termination of parental rights and adoption; (4) the court’s order risked disrupting the possibility of placement with his cousins; and (5) the amount of contact D.C. would have with his sibling, L.C., was uncertain because a permanent plan for D.C. had not been finalized.
As we have already discussed above, the court’s determination D.C. was likely to be adopted within a reasonable time was supported by substantial evidence, the record does not show D.C. opposed adoption, and Mother waived any claim of error regarding the section 366.21 assessment by failing to object below. As to the court’s failure to directly interview D.C. to ascertain his wishes, we likewise find Mother’s argument unpersuasive for reasons discussed in the next section of this opinion.
Mother’s arguments regarding D.C.’s potential placement with his cousins and the desirability of maintaining his sibling relationship were factors for the juvenile court to consider in analyzing whether a continuance was in the child’s best interest. We presume the court weighed those considerations—along with the interest in prompt resolution of the case and D.C.’s need for permanency and stability. (§ 352, subd. (a).) At the end of the section 366.26 hearing, the court stated, “I read the report . . . and I listened to counsel and their arguments.” As to the sibling relationship specifically, the record is abundantly clear the court evaluated its importance. Indicating it had “really thought a lot about this,” the court said it was “weighing the benefit of the child and the relationship between the siblings.” The court found: “[I]t’s far more important that each one of these children, [D.C. and L.C.], be in a home that is stable and loving and supportive. I think it far outweighs the benefit of a sibling relationship, although I’m quite assured that there will still be one and it certainly appears to be so, but even if that were not to be so, I certainly would find the need for these children finally to find a loving, stable home outweighs any benefit of a sibling relationship.”
While Mother emphasizes the Bureau, Mother’s counsel, and minor’s counsel (initially) all urged the court to continue the hearing, the juvenile court was not required to follow their recommendations. The court’s duty was to determine whether a continuance was warranted in the best interests of the child—and after considering the evidence, arguments, and discussing the issue on the record, the court found it was not. We perceive no abuse of discretion.
C. Ascertaining Children’s Wishes
Mother next argues the juvenile court’s order must be reversed because the court erred in failing to obtain information about the children’s preferences with respect to termination of parental rights, and failed to explore why D.C. was not present at the hearing. We disagree.
At all permanency planning hearings, the juvenile court shall consider the wishes of the child in determining whether to terminate parental rights. (§ 366.26, subd. (h)(1).) Under section 366.26, subdivision (h)(2), a child over the age of 10 must be provided notice of the hearing, and if the child is absent, the court must inquire as to the reason for his or her absence. Mother argues the juvenile court erred because it failed to consider the wishes of both children as required by section 366.26, subdivision (h)(1), and failed to determine why D.C. was not at the hearing under subdivision (h)(2).
Once again, we find Mother’s challenge to the juvenile court’s orders is barred by her failure to object below. (See In re Amanda D. (1997) 55 Cal.App.4th 813, 819–820 (Amanda D.) [father forfeited right to argue juvenile court should have obtained minors’ testimony regarding their wishes for a permanent plan by failing to object below].)
Regardless, even if the issue were not forfeited, the record contains ample evidence of the children’s feelings, thoughts, and wishes with respect to their relationships with their parents, foster parents, relatives, and prospective adoptive parents. L.C. told a social worker she wanted to visit with Mother, but “made it clear on more than one occasion that she wants to stay with the foster mother and not go back to her mother.” She clearly expressed she wanted to be adopted by the foster mother. L.C. also wrote a note in January 2017, stating that she wanted “to be with [foster mother] be cus I no this is the rite home for me and my bruthrs.” In a memo to the court for the section 366.26 hearing, a social worker reported L.C. was happy in her current placement and wished to remain there, “even though she knows that it may hurt her mom and relatives’ feelings.”
D.C.’s feelings are also clearly reflected in the record. He attended a visit with Mother in December 2016 only because a social worker told him he had to go, and he did not interact with or respond to her during the visit. He referred to his family as a “ ‘train wreck’ ” and told both a social worker and his therapist he did not even want to visit with Mother. Though he was open to reunification with his father, he wanted to be adopted by his foster mother if that could not happen. He also wrote a note to the judge, asking “to exclude me from visits with [Mother].” A memo provided to the court for the September 14 hearing reiterated D.C. did not want to visit Mother and had not attended visits with her for several months.
Despite the abundance of evidence regarding the children’s preferences in the record, Mother cites In re Diana G. (1992) 10 Cal.App.4th 1468, 1480 (Diana G.), and argues the juvenile court erred because it did not obtain “direct evidence” of the children’s wishes and assure itself the children knew the termination of parental rights was at stake. A number of courts, however, have refused to require such evidence. (See Leo M., supra, 19 Cal.App.4th at pp. 1591–1593; Amanda D., supra, 55 Cal.App.4th 813, 820–821; In re Christopher L., supra, 143 Cal.App.4th 1326, 1334.) Leo M. expressly disagreed with Diana G., concluding “that 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., at p. 1593.) Further, in Leo M., there was no direct evidence in the record of the five-year-old child’s preferences, but the court found “ample evidence from which his feelings can be inferred.” (Ibid.) The appellate court observed the juvenile court should “explore the minor’s feelings regarding his/her biological parents, foster parents, and prospective adoptive parents, if any, as well as his/her current living arrangements. . . . so that the court will have before it some evidence of the minor’s feelings from which it can then infer his/her wishes regarding the issue confronting the court.” (Id. at p. 1592, italics added.) Amanda D. followed Leo M., finding the statutory requirement had been complied with when “there was a reasonable basis for inferring the minors’ wishes” even though the minors did not testify at the termination hearing. (Amanda D., at pp. 820–821.)
Here, the record contains sufficient evidence of the children’s feelings toward Mother and their desires regarding their future living arrangements for the juvenile court to infer their wishes. Accordingly, we will not disturb its decision.
D. Denial of Section 388 Petition
Mother also contends the juvenile court erred in denying her section 388 petition for continuation of visitation and services as to L.C., at least until D.C.’s prospective relative placement and permanent plan was resolved.
Under section 388, a juvenile court order may be changed or set aside if the petitioner establishes by “a preponderance of the evidence that there is new evidence or that there are changed circumstances that make a change of placement in the best interests of the child.” (In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).) We review the denial of a section 388 petition for abuse of discretion. (Stephanie M., at p. 318.)
Though we commend Mother’s recent efforts to engage in substance abuse treatment and counseling programs, we do not find the juvenile court abused its discretion in denying her section 388 petition. As her own counsel acknowledged, Mother got “an extremely late start in this case.” The children were first removed from Mother’s custody in March 2016, but Mother did not have any visits with them until December 2016. From that point, Mother attended scheduled visits with her children inconsistently until May 2017, seeing the children once in December 2016, twice in April 2017, and once in May 2017, and missing scheduled visits or failing to timely confirm visits in December 2016, and January, February, March, April, and May 2017. As the social worker noted in a memo to the court, during the 17 months Mother was failing to engage in reunification services, D.C. and L.C. were stabilizing in their current placements.
Further, while Mother made recent progress on her case plan, she did not demonstrate insight into the problems that led to the removal. When her children were first removed, Mother had been living with them and grandmother in a commercial building deemed unsafe and unsanitary. Social workers reported, among other things, that both grandmother and D.C. said Mother was physically abusive to grandmother, and D.C. had not been to school in over a year. At the evidentiary hearing on the section 388 petition, however, Mother denied her prior living conditions were unsafe for her children, denied she had been violent with or hit grandmother, and denied D.C. missed a year of school. She also gave evasive and inconsistent answers to questions. For example, Mother admitted she smoked marijuana “[e]very day” until she found out in March 2017 that she was pregnant, but testified both (1) D.C. had seen her smoke marijuana only “[o]ne or two times,” and (2) she had “never, ever smoken [sic] pot around [her] children, ever.” When asked if she thought D.C.’s unwillingness to visit her had anything to do with her, Mother responded she thought it had to do with the fact she did not have much money left.
The juvenile court found Mother was not a credible witness and had failed to take responsibility for what she had done to her children. “I think she’s in denial—complete denial—and complete denial makes her a very unsafe mother, because whatever went on before, I’m sure, would go on again—because she doesn’t believe anything bad went on.” As the court recognized, Mother’s testimony reflects a profound failure to understand and appreciate, let alone address, the serious problems that led to the removal in the first place. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 530–531 [court must take into account gravity of problem leading to dependency and reason that problem was not overcome].)
Even if Mother had shown changed circumstances, however, she offered no evidence further visitation or reunification services would be in the best interests of L.C. Mother emphasizes the importance of the sibling relationship, and argues the court’s denial of the section 388 petition, at least until D.C.’s permanent plan had been developed, put the sibling relationship at risk. It is clear, however, from the court’s explicit comments at the hearing that it considered the value of the sibling relationship and concluded L.C.’s need for a stable, loving home was more important than maintaining her relationship with D.C.
Finally, Mother argues L.C. loved, cared for, and enjoyed visiting with her. We have no doubt that is true. It is also true, however, that L.C. said her favorite place to be is in her current home, she wanted to be adopted and live with her foster mother forever, and she did not want to return to Mother, even though she knew it would hurt Mother’s feelings.
After the termination of reunification services, the parent’s interest in the care, custody, and companionship of the child are no longer paramount. Rather, at this point, the focus shifts to permanency and stability for the child. (Stephanie M., supra, 7 Cal.4th at p. 317.) “[D]elaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child’s best interests. [Citation.] ‘ “[C]hildhood does not wait for the parent to become adequate.” ’ ” (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The juvenile court did not abuse its discretion in denying Mother’s section 388 petition.
III. DISPOSITION
The orders appealed from are affirmed.









_________________________
Margulies, J.



We concur:


_________________________
Humes, P.J.


_________________________
Dondero, J.