In re Devon M.

Filed 9/12/07 In re Devon M. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

I. INTRODUCTION

James M. (Father) appeals from the juvenile courts order identifying adoption as the permanent placement goal for his son, Devon, and directing the Napa County Department of Health and Human Services (Department) to attempt to locate an appropriate adoptive family for Devon. (Welf. & Inst. Code, 366.26, subds. (b)(2), (c)(3).)[1] Father argues that there is insufficient evidence to support the juvenile courts finding that Devon was probably adoptable. Father also contends that the court erred in finding that termination of parental rights would not be detrimental to Devon. We will affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

Devon M. is the child of Father and Kelly N. (Mother).[2] On November 10, 2004, the Department filed a petition pursuant to section 300, subdivisions (a), (b), and (d), alleging that five-year-old Devon was being sexually abused by his nine-year-old half-brother, S.N. The Emergency Response Worker for Child Protective Services (CPS) interviewed Devon, who reported several instances of inappropriate touching. Devon stated that S.N. touches my private parts, and said that when he went to the bathroom his brother touched (his) private parts. Devon also stated that sometimes he touches me with his hand, he touches my weenie and squishes it and it hurts. He also said that S.N. touched my butt, and that he put his finger in it when he sneaked up behind me when I was going pee. Devon said that when he told his parents what S.N. had done, they told S.N. to stop doing that. Father and Mother denied any knowledge of abuse. When CPS tried to explain to the parents that the boys should be separated temporarily because of the seriousness of the allegations and the familys prior CPS history, the parents became increasingly hostile, angry, and uncooperative. CPS arranged for law enforcement to be present when CPS informed the parents that Devon and S.N. would both be removed if the family did not agree to remove S.N. for Devons safety. Father attempted to block the CPS worker from leaving the interview room until the police officers intervened. Father continued to yell obscenities, including that he wanted CPS to lock up his [S.N.s] fucking ass, hes the one who did it. Based on Fathers behavior, CPS decided to also detain S.N. for his safety. Both boys were placed in foster care.

The detention hearing for Devon was held on November 12, 2004. Mother attended the hearing; Father did not. The court ordered Devon detained and reunification services provided to the family.

The jurisdiction report filed on December 2, 2004, recommended that the court establish jurisdiction over Devon and S.N. A search of the statewide Child Welfare database indicated there were eight prior referrals for the family, one of which resulted in an open Family Maintenance Dependency case from March 1998 until January 1999 with substantiated neglect of S.N. and older half-sister, T.J. Another referral from December 1999 involved a police report that Mother was accelerating down the street with her children in the car and then slammed on the brakes. A neighbor intervened and took the keys from her when the car stalled. She was admitted to the hospital pursuant to section 5150. Father told the police that Mother had been having mental problems since Devon was born. The remaining six referrals included five allegations of general neglect and one allegation of physical abuse, none of which was substantiated.

The report also indicated that both parents had criminal histories. Father has two potential felony strikes, second degree burglary and embezzlement. Father also has three misdemeanor convictions for possession of a device to tamper with a vending machine, possession of a controlled substance, and receiving stolen property. At the time of the jurisdiction report, he was on probation. Mother had one potential felony strike for arson.

CPS worker Sandra Maggioli interviewed the children and parents. She met Devon at his foster familys home. He was friendly and cooperative and said he missed his family. He also said that he was not afraid to go to the bathroom in his foster home, but did not discuss the sexual abuse. Maggioli interviewed S.N. at his foster placement. He also presented himself as friendly and cooperative and stated several times with conviction that he did not touch Devons private parts. Maggioli interviewed T.J., who stated that the day of the CPS intervention was the first time she had ever heard about [S.N.] sexually molesting Devon. She said that both boys tell on each other and that she does not believe that what Devon alleged against S.N. is true.

Maggioli also met with the parents at CPS. Father stated that he had no idea about the abuse: I never heard or saw it with either boy. Father said Devon never reported that S.N. had sexually molested him, and that Devon would have told him because Devon tells on [S.N.] for everything. Mother said she had no idea this (sexual molestation) was happening, I had no inkling. She talked at length about Devons behavioral problems, which included difficulty transitioning from one activity to another, a tendency to become extremely angry, acting out to get attention, lying to get S.N. in trouble, and that Devon was always afraid.

A contested jurisdictional hearing was set for January 7, 2005. In the meantime, on December 7, 2004, the court held a hearing and ordered that Devon be returned home and that S.N. reside with his maternal grandmother.

At the contested jurisdictional hearing, the court found jurisdiction over Devon pursuant to section 300, subdivision (b). The court dismissed the allegations pursuant to section 300, subdivisions (a) and (d).

The dispositional report was filed on February 3, 2005. The report recommended that the court establish dependency over Devon and order a plan of family maintenance for the parents. Both Devon and S.N. were back at home with their parents and two other siblings. The youngest child was 15-month-old Ian, who had been born without an esophagus and required a lot of individualized attention. The report indicated that Father had not been able to find full-time work since being laid off the previous year due to a permanent physical disability. Father was participating in a retraining program and hoped to receive tuition assistance to attend a culinary institute for training in food preparation. Mother had not worked since becoming pregnant with Ian.

The report also contained a summary of an interview with Devons resource teacher. She stated that Devons behavior and school performance were drastically improved in the first week after returning from foster care. His acting out behaviors then returned little by little, and escalated when S.N. returned to the home. Devon curses like a sailor, and was in special education classes because he could not function in a regular classroom. The teacher described Devons home life as pretty chaotic most of the time. She also said that Mother is overwhelmed by the childrens needs, and that the parents lack follow-through with services. She said that Devons teacher talks with his parents on a daily basis, and that Devons problems have been going on for two to three years. She was afraid that S.N. was threatening Devon in some manner, telling him not to tell certain things.

The social worker observed in the report that the detention of Devon and S.N. and their separate out-of-home placements were very difficult for the whole family. The parents appeared genuinely bereaved at their sons absence from their home and cooperated fully with the Department during that time, never missing a chance to visit their children, including bringing their children clothes, games, books, and snacks, and meeting with the undersigned to discuss the case. Family interactions were observed to be warm and happy, and the parents were appropriate with the children. Nevertheless, and although the court had dismissed the case against S.N. for sexual abuse of Devon, the Department recommended continuing jurisdiction in light of the specific nature of Devons allegations. The juvenile court agreed and, on February 3, 2005, continued jurisdiction.

A status review report filed on August 4, 2005, recommended that the family maintenance plan be continued. The social worker stated that the parents were doing the best they could to maintain a stable environment for themselves and the four children. It was particularly challenging with all four children out of school for the summer. The social worker opined that this was a family in trouble, unable to do more th[a]n damage control. The report noted that each of the children had a unique set of problems and that [a]ny parent would be hard pressed to care for these children on a full-time basis. The family would need every bit of help and support that can be found for them in order to succeed. The court continued services for an additional six months.

On January 25, 2006, the Department placed Devon into protective custody. On January 27, 2006, the Department filed a subsequent petition pursuant to section 342 alleging that the parents had failed to supervise and protect Devon, now age six. The petition stated that the parents had failed to fully utilize the intensive family preservation services that were offered. It also stated that since the disposition hearing on January 27, 2005, there had been 15 subsequent referrals for the family, primarily regarding the parents failure to supervise the children and physical abuse of the children. In September 2005, Mother reported to the social worker that she could not take her family anymore; that she was planning to move to Hawaii and leave the minors with the father. The previous social worker observed the three boys, S.N., Devon, and Ian, physically rough-housing with each other with no intervention by the parents. Mother reported during that visit that when things are chaotic with the children, she and Father lock themselves in their room. In October 2005, Mother reported that she felt like she could not deal with her family and was afraid she was going to lose her mind. During a visit to the maternal grandmothers residence with Mother, the social worker observed Devon arrive alone and without adult supervision. Mother telephoned Father to let him know that Devon had arrived at his grandmothers house; Father was unaware that Devon had left home. Another incident in which Devon wandered off unsupervised occurred in December 2005 during a visit by the social worker at the familys home. The social worker observed Devon outside riding his bike, unsupervised. Mother and Father lied about Devons whereabouts. On several occasions, the social worker observed Ian hitting, kicking, and yelling at Devon in front of Mother or both parents, and the parents did not intervene. Mother reported multiple times that she could not handle her children and wanted to move away or put the children into foster care.

The petition also contained allegations that Devon was suffering, or was at risk of suffering, serious emotional damage. Mother reported to the social worker that in October 2005, Devon punched several other children who were attending S.N.s football game. In the same telephone call, Mother reported an incident in which Devons older half-sister, T.J., became upset and threw food into Mothers bedroom. Mother told Devon to pick it up and throw it in T.J.s bedroom, which he did. T.J. became angry and instructed Devon to go into her room and pick up the food, which he did. T.J. also punched Devon in the back. On January 10, 2006, Devons school reported that Devon continued to exhibit severe behavior problems at school including use of profanity, name calling, running away from school staff, refusing teacher requests, throwing objects, threatening harm to others, breaking and/or attempting to break objects, hitting and/or attempting to hit others, and kicking and/or attempting to kick others.

On January 20, 2006, Devons school called the Department to report that Devon had stated repeatedly that he did not want parents anymore, he hated himself, and he wanted to kill himself with a knife. That same day, a mental health assessment was conducted on Devon, and he was placed on an involuntary hold in a psychiatric hospital. Two days later, on January 22, Mother, Father, and two year-old Ian came to visit Devon in the hospital. The staff expressed concern at the minors behavior and the failure of the parents to intervene and/or give guidance to their children. The staff also reported that Devon continued to state that he wanted to kill himself and continued to exhibit problem behavior. On the day of the familys visit, Devon was restrained because he was jumping off his bed and slamming his body into the wall while stating that he wanted to die. On January 23, Devons hold was changed to keep him in the hospital for an additional 14 days.

The detention report dated January 30, 2006, stated that the parents attendance in counseling and therapy was inconsistent. It also noted that on or about December 31, 2005, the police arrested Father after he hit Devon in the face.[3] At the detention hearing on January 30, the court detained Devon under sections 300, subdivisions (b) and (c), and removed him from his parents custody. The court ordered supervised visitation between Devon and his parents twice a week, and sibling visitation at the discretion of the social worker.

On February 28, 2006, the court ordered the parties to participate in mediation and continued the jurisdiction/disposition hearing. The court also authorized the administration of certain psychotropic medications for Devon.

The Departments jurisdiction/disposition report dated February 21, 2006, was prepared by social worker Shana Allen. The Department recommended a family reunification plan for the remainder of the allowable time remaining under the law, a total of 18 months from the date of the original petition. Devon had been placed in foster care, and the Department recommended that a psychological evaluation for him be completed.

The report stated that during a meeting with social workers on January 25, 2006, Mother and Father did not deny the events that led to Devons being taken into protective custody. Mother stated that it was difficult to handle Devon because he has a mood disorder. Father expressed concern that Devons removal from the home would not look good for Fathers criminal case.

The report stated that, in January 2006, the hospital treatment team expressed concern about the effect that visitation with his family was having on Devon. Devon and his brother Ian would scream, yell, and exhibit inappropriate behavior with no intervention or redirection from the parents. Mother and Father were unable to enforce basic hospital rules. After a very chaotic visit on January 22, 2006, Devon was talking about dying/killing himself, yelling obscenities, and screaming. On February 2, 2006, a hospital social worker reported that the addition of a CPS staff person to supervise the visits and removing Ian from visitation appeared to have greatly benefited Devon. The visit that day was much more calm and appropriate, and Devon did not exhibit concerning behavior afterwards. On February 9, 2006, the social worker reported that Devon appeared to be becoming more stable.

The report stated that Mother and Father reported that they had been together for 11 years and that they had been residing in a home owned by the maternal grandmother. Devons siblings, S.N. and Ian, were living with the parents; T.J. was placed outside the home through Napa County Juvenile Probation. Mother and Father stated that they had been unable to pay their rent for the past year; the maternal grandmother evicted them; and, to date, the parents had not moved out of the house. Mother and Father reported that they would be moving to an apartment with two bedrooms and one bathroom. On February 15, 2006, Mother informed the social worker that the family is no longer moving to that apartment and that she and Father are in the process of looking for housing.

The report also described the parents health and medical challenges. Father reported that he was hospitalized for over a year in 2000 following a serious accident. He continues to have chronic pain and limited mobility in his right foot, and was considering having the foot amputated. He reported that the pain limits his employment options and his ability to be actively involved with his children. He had not been employed since Chevron laid him off about three years ago. Mother had been working as a delivery driver, with her hours fluctuating depending on her health issues. She reported a hypothyroid condition and tumors in her neck; she cannot have the tumors biopsied until her thyroid condition is stabilized, but she had not yet begun to take the thyroid medication. Mother and Father attribute Fathers anger management problem to his medication, particularly methadone. Father reports becoming irritable and easily angered when he is not able to take methadone. During both recent times when Father was incarcerated, he detoxed from all medications, including methadone. Upon release, he began taking morphine and methadone for pain management. Father reported he also takes Ampatripaline as a sleeping aid. Father also reported that, after he had been released from jail in January 2006, he was sent back to jail for violating his probation by testing positive for marijuana.

Mother and Father stated that they love Devon and all of their children very much. They have ensured that Devon consistently attends school. They both report that they need parenting education and to learn how to communicate effectively without yelling. They also agree that Father would benefit from anger management classes. They acknowledge that financial difficulties cause a lot of stress and that it will be hard for them to pay rent after moving out of the house owned by the maternal grandmother. They reported believing that Devon was already showing signs of improvement while in the hospital, and believe that he would further benefit from continued therapy and psychotropic medication. The parents stated that they were willing to do whatever it takes to help Devon.

The Family Preservation Worker, Darcy Taylor, who worked with the family from July 2005 until January 2006 providing intensive in-home services, reported that she is concerned about the parents lies and deceptions which are detrimental to their children, and that despite the number of referrals to CPS in the past year, the parents continue to be unable to provide a high level of supervision for their children. She was concerned about Mothers physical and emotional state, referring to occasions when Mother stated that she was depressed, that she was going to have a nervous breakdown, that she did not want her children and wanted to give them away. She was also concerned about Fathers anger management problems and her observations of Fathers anger being directed at Devon and S.N. She was also concerned about the medications Father takes, which could affect his ability to be coherent.

Devons physical health was described as good, and he appeared to be developmentally on target. He was in first grade and had an active Individualized Education Program (IEP). A trained behavioral assistant had been assigned to him the previous year to address the behaviors of noncompliance and aggression/tantrumming. He had trouble transitioning into the first grade classroom after the summer break, and currently had a behavioral aide in the classroom as well as a behavioral specialist who worked with him. Devon was making improvements, and was reportedly now able to stay in the classroom for periods lasting approximately one hour. Behaviors Devon still exhibited included the use of profanity, name-calling, running away from school staff, refusing teacher requests, throwing objects, threatening to harm other, breaking and/or attempting to break objects, hitting and/or attempting to hit others, and kicking and/or attempting to kick others.

Devon continued to have difficulty dealing with frustration, quickly turning those feelings into anger. He frequently coped with these feelings by engaging in various negative behaviors. During the last six months that Devon had been living with Mother and Father, there were continued reports to CPS regarding incidents in which Devon was outside without supervision, yelling, cursing, throwing rocks, and hitting cars with sticks. Devon had expressed a high level of fear of foster care, stating that foster parents will hurt and try to kill him. Through statements to Devon, Mother and Father had created and perpetuated this fear.

The report stated that Mother attended visits with Devon on February 1, 6, and 15, 2006. She declined the Departments offer to arrange a visit during the weekend of February 4-5. She arrived at the hospital after the visit on February 8 was over because she was shopping for gifts. Father attended visits with Devon on February 6, 8, and 15. He was unable to attend visits during the week of January 30 until February 3 because he was incarcerated.

The parents had not fully utilized the intensive Family Preservation services that had been offered to them. They began therapy in July 2005, but had problems attending consistently. Because of the high level of chaos in the home, the parents therapy sessions were increased from once per week to twice per week, but the parents failed to utilize this service. The parents reported completing Positive Discipline, but COPE staff reported that Mother and Father only attended two sessions. Father is court-ordered through both Dependency Court and Probation to attend anger management. He attended his first group on January 24, 2006. Mother and Father have not utilized out-of-home respite care, and Mother has not followed through on referrals for a psychotropic medication evaluation.

The social worker opined that the parents were unable to provide Devon with the structured and consistent environment that he critically needed. There continued to be a high level of chaos in the home, which had been having an increasingly negative effect on Devon. The parents had been offered numerous intensive services, but had failed to fully utilize them. Although the parents expressed an understanding of the importance of supervising their children, providing guidance and structure, and how to utilize the non-physical discipline alternatives they had been taught, they had failed to follow through on any of these basic and fundamental parenting skills. The social worker found it particularly troubling that a child as young as Devon had stated a desire to end his own life and a plan by which to do so. It was imperative, the worker continued, that Devon be provided with a safe, structured, and positive environment to begin to stabilize his mental health and overcome his various challenges. The Department recommended out of home placement and family reunification services for the parents.

At the jurisdiction/disposition hearing on April 11, 2006, the parties reached an agreement under which the court modified the report and the petition. The parents submitted on the section 300, subdivision (b), allegations, and the court dismissed the section 300, subdivision (c), allegations. The court set the permanency review hearing for May 4, 2006.

On May 4, 2006, the Court Appointed Special Advocate (CASA) filed her report and recommendation for the 18-month hearing. After being released from the hospital on February 14, 2006, Devon was placed in a foster home. On February 27, 2006, he was moved to a group home. CASA noted that supervised visits once a week had been ordered by the court. The social worker had reported the following visits cancelled: February 13; February 24; March 24 (mother only); March 31 visit was cancelled by mother and father showed up 35 minutes late so visit was cancelled; April 7 no visit due to communication mix-up; April 14 visit occurred with both parents for four hours. The social worker reported that although Devon enjoys spending time with his family, four hours appeared to be difficult for him. It was also stated that he becomes sad on days when his parents miss their visits.

CASA expressed concern at Devons ongoing sexualized behavior and his parents continued denial of any molestation. Another area of concern was his use of racial slurs when referring to someone of color. The social worker told CASA that during a conversation with Devon, when she told him that his use of the word nigger was mean and hurtful, Devon looked down at his feet, told her that he did not know that, and appeared to be remorseful. He said it was the only word he had been taught to use when referring to African Americans, and he thought that everyone used it. CASA felt that individual therapy could help Devon deal with his anger, separation from his family, and the molestation. CASA also agreed that a complete psychological evaluation should be performed as soon as possible. CASA stated that it was critical that Devon remain in a safe and consistent environment. In the 18 months since he was originally detained, the parents had not made the progress required for him to return home. Many professionals had spent a great deal of time trying to show them better parenting skills. The parents had been provided with many resources, but chose not to take advantage of them. CASA recommended that services for both parents be terminated and that a section 366.26 hearing be set. CASA also recommended that Devon remain in his current placement, begin individual therapy, and undergo a thorough psychological evaluation, that concurrent planning with state adoptions be commenced, and that supervised visits continue.

In a status review report filed on May 4, 2006, the Department recommended that reunification services for the parents be terminated and that a section 366.26 hearing be set. At the time of the report, the parents, S.N., and Ian were living in a two bedroom apartment; T.J. was in out-of-home placement. The social worker stated that Devons behavior had improved since his placement in the group home. The school staff reported that he had not run away, had not destroyed any property, and had not exhibited violence toward others. He continued to take psychotropic medication. The two main areas of concern were Devons frequent use of racial slurs and his sexualized behavior. Devon appeared to feel safe in his placement and told the social worker that he likes where he is living. He responded well to frequent praise and guidance in making positive choices. He had also responded well to the structure and stability of the group home. A thorough psychological evaluation had not yet been completed.

The social worker reported that Devons prior foster placement had terminated because of his behavior. During the two weeks he was in that foster home, Devon had threatened to kill the foster mothers three year-old son, tried to run away, urinated in the garage, used excessive profanity, injured two of the other children in the house, and attempted to injure himself. On February 27, 2006, Devon was moved to a group home. The program there focused on learning how to take responsibility for ones own behavior and make changes accordingly. The two incident reports involving Devon concerned his inappropriately touching another resident at the group home.

The social worker also reported that since moving to his current placement in the group home, Devon had begun to speak more openly about being sexually abused. He had spoken with several staff in an appropriate manner about incidents in which his brother, S.N., inserted a finger in his anus and pulled on his penis. Devons disclosures remained consistent.

The social worker stated that, despite having received 18 months of services, Devons parents had not demonstrated that they could provide the structure, consistency, and supervision necessary to keep Devon safe. They had failed to participate regularly in services and to make substantive progress. They had failed to utilize therapy services and had failed to complete a parenting course; there was no follow-through on various services and information that had been provided. Father had just begun to attend anger management classes at the end of January 2006, but had missed sessions due to incarceration. Mother had not followed through on referrals for a psychotropic medication evaluation. In addition, the parents were aware that they did not have adequate space for Devon and that they would have to obtain housing with a separate bedroom for Devon to ensure his safety from S.N. Returning Devon to his parents would create a substantial risk of detriment to Devons physical and emotional well-being.

On May 4, 2006, at the permanency planning hearing, Mother was not present but had instructed her attorney on how to proceed. Father was present. Counsel for Mother submitted on the report, but asked that Devon be moved closer to Napa and that the Department help pay for gas so she could attend visits. The court requested briefing and set a hearing date of May 18 on issues regarding responsibility for the cost of visitation. Without objection, the court signed the order after hearing terminating reunification services, with the understanding that the issues regarding visitation would be addressed after briefing. The court calendared the section 366.26 hearing for September 7, 2006. The court provided Father with a written advisement of rights and gave him one to give Mother. On May 5, 2006, the court clerk mailed, via certified mail with return receipt, the advisement of rights to Mother and Father.

At the hearing on May 18, 2006, Mother indicated that she had not briefed the issue of assistance for paying for visitation because she could find no case law. The court suggested that the Department pay $25 in gas money twice a month to help the parents attend visits. Father suggested longer visits less often, but the social worker testified that longer visits were hard on Devon. During the four-hour visit, Devons behavior deteriorated during the last two hours and he had a very hard night that night at the group home. By contrast, [h]es sad when his parents leave on the two hour visits, and he doesnt have melt downs on the two-hour visits. The matter was continued to June 8, 2006, so that the social worker could discuss with the Department whether or not the county would agree to the courts suggestion of financial assistance.

On June 8, after a hearing, the court found that the visits were for Devons benefit and not that of the parents, and ordered the Department to reimburse the parents for transportation costs for one visit every two weeks. The parents would need to provide proof of mileage and gas receipts, and they would be responsible for the cost of other visits.

On July 20, 2006, the Department filed an application requesting that the court authorize the administration of the psychotropic medication Abilify for Devon. The symptoms to be addressed were described as assaultive, highly combative, explosive, defiant, out of control. At the hearing on July 20, there were no objections and the court granted the application.

On August 29, 2006, at the six-month review of the psychotropic medications Seroquel and Remeron, the court did not extend the administration of those medications.

On July 25, 2006, the notice of hearing on selection of a permanent plan pursuant to section 366.26 for Devon was filed. At the September 7 hearing, the Department recommended identifying adoption as the permanent plan and that efforts be made to locate an appropriate adoptive family within 180 days. The matter was continued to September 14, at which time the parents requested a contested hearing on the issue of adoptability. The court set the contested section 366.26 hearing for October 11, 2006.

On September 18, 2006, Mothers counsel requested a hearing on September 19 to discuss visitation issues. On September 19, the parents were not present and the court continued the matter to September 26. On September 26, the parents again were not present, and Mothers counsel requested another continuance to September 28. On September 28, the parents were not present and the court ordered the issue dropped from the calendar.

The Departments report for the section 366.26 hearing was filed on September 14, 2006. Seven-year-old Devon continued to reside in the group home. The Departments evaluation for permanency planning included that Devons physical examination, including a hearing screening and a developmental assessment, were normal, as was his vision examination. Devon had a dental exam in March 2006; his soft tissue was within normal limits and he had cavities in three teeth. At the time of the report, he was in second grade at Atkinson Youth Services School and had an active Individualized Education Program (IEP) which was focused on reading, writing, and behavior. Devons school reported that he was a bright child, was progressing in reading, and had made significant improvements during the time he had attended the school.

He was in weekly individual therapy and was under the care of a psychiatrist. His current diagnosis was Dysthymic/Depressive Disorder, Intermittent Explosive Disorder and Oppositional Defiant Disorder, and he was taking the psychotropic medication Abilify. Devon was still struggling with dealing with frustration and anger, but was learning new ways to cope. His behavior was improving both at school and the group home. The number of incidents involving Devon was decreasing, as was the severity of the behavior. He was able to engage appropriately with peers and had identified some peers as his friends. He could be personable and polite, and appeared to truly enjoy attention given to him by staff, social workers, and teachers. He loved animals, would become excited and animated when speaking about them, and was gentle when interacting with them. In addition, the Department was making efforts to obtain a psychological evaluation of Devon to provide insight into his emotional issues and guidance to caregivers.

The current visitation order was for supervised visits of a minimum of two hours per week. During the reporting period, there had been seven visits that the parents canceled or did not attend. At first, Devons younger brother Ian was attending visits, but this was problematic due to Ians aggressiveness, acting out behavior, and the parents inability to redirect Ian and their difficulty in focusing on Devon during the visits. Ians participation in the visits caused anxiety and stress for Devon, and the group home reported concern about the effects of these visits on Devon. The Department restricted Ians participation in visits, but the parents continued to bring him to the visits because they did not have childcare. Each parent would visit with Devon while the other parent was with Ian.

The Department had referred Devon to state adoptions in February 2006. The state adoptions report concluded that Devon was likely to be an adoptable child who would benefit from a plan of adoption, although a specific adoptive family had not yet been identified. The adoption specialist noted that Devon was a difficult child to place because of his special emotional needs as well as his age of seven years. The adoption specialist had met with Devon at school and at the group home, but due to Devons young age and emotional fragility, the subject of adoption had not been discussed with him. Devon was described as an engaging child who frequently enjoys interactions with adults and other children. He is making progress in his ability to understand and control his emotions. He needs the benefit of therapy to assist him in this progress and stability in the group home and school to solidify the gains he has accomplished so far. State adoptions recommended that the court, without termination of parental rights, order a permanent plan of adoption and order additional efforts be made to locate an appropriate adoptive family. State adoptions supported the Departments request for a court order that would allow child-specific recruitment in locating a suitable adoptive home.

The contested section 366.26 hearing took place on October 11, 2006. The parents were not present, but were represented by counsel, who were prepared to proceed. Fathers counsel objected to any findings that Devon was adoptable and that termination of parental rights would not be detrimental prior to the completion of a psychological evaluation of Devon. Mothers counsel indicated that she would argue that Devon was not adoptable.

In support of meeting its burden to prove that Devon was adoptable, the Department called the social worker for his case, Shana Allen. Allen had been the assigned social worker for the past year and had prepared the section 366.26 report. She stated that visitation between Devon and his parents had remained supervised because there was a lot of chaos during the visits unless structure was imposed by an outside party. There were problems with Ian at the visits; the parents missed a lot of visits; and inappropriate conversations during visits needed to be redirected. Since April 2006, of 28 visits arranged between the parents and Devon, the parents had missed 12. The most recent visit they had missed was the prior day, October 10. With respect to that visit, Allen testified that the parents called the Department at about 12:30 to say that they were in Fairfield and did not have enough gas to make it back home to Napa if they were to go to the visit at the group home in Citrus Heights, near Sacramento. Allen knew this was not true because she had seen the parents on the Departments premises 10 to 15 minutes before they called. She said that Devon was indifferent when his parents missed visits and did not ask her about them. Allen said Devon was insecurely attached to his parents and did not trust a lot of what they told him

Allen said Devon was doing well at the group home. He had good peer relationships and good relationships with most of the staff. He had not run away, and the number of incident reports she had received was greatly reduced in the last two and a half months. He still had issues with racial slurs, and sometimes struggled with impulse control, but had made a lot of progress. His behavior at school had also drastically improved. Devon was able to spend the entire day at school without the assistance of an aid, whereas, when he was living with his parents, the longest he was able to maintain himself in a classroom setting was one hour. He was also progressing academically. The treatment team at the group home believed that Devon would be ready to transition to a lower level of care in a month or two. The social worker told Devon that he would not be living at the group home forever and asked him what he would like to see happen. Devon told her that he wanted to live with a family that was nice to him, that fed him dinner every night, had rules, and either owned an animal or would let him visit animals. Devon did not state that he wanted to return to his parents. Allen opined that Devon would benefit from adoption because having stability and permanency would help with his emotional and behavioral health.

On cross-examination, Allen testified that she had not discussed adoption with Devon. In May 2006, after a visit with his parents, Devon told his parents he missed them and wanted to know when he could come home. In April 2006, Devon cried at the end of a visit. Allen testified that Devon was not currently acting out sexually, but still had issues from the sexual abuse. Devon was still taking the drug Abilify; his 12:00 dose was prior to visits with his parents. At times, Devon had a flat affect after a visit.

Allen testified that the parents had difficulty with transportation to get to visits. The Department had changed the visits to accommodate their schedules, and would reimburse the parents for the cost of gas for one visit every two weeks, but the parents had never requested reimbursement. The parents currently had three children living with them S.N., Ian, and D.M., who was Fathers older boy from a previous relationship who had recently returned to live with the parents. T.J. was on probation, and probation had elected not to return her to the home because of the parents poor parenting. The two older boys, D.M. and S.N., were in school. Ian had a lot of medical and behavioral issues. Mother had a paper route in the morning; Father was not working. The family had been evicted from the apartment where they had been living; Mother had not provided the case worker with a new address.

Allen further testified that Devons section 342 removal from the home was the result of the parents not being able to handle Devons behavior and not supervising him, the high level of chaos in the home, and Mothers emotional instability, including her making threats in front of Devon to harm herself.

Allen opined that, given the right family, Devon could be adopted. She conceded that, if parental rights were terminated and he was not adopted, Devon would be an orphan. No prospective guardian had been identified. Allen attributed Devons indifference toward his parents to their own behavioral changes, inconsistencies, failures to attend visits, and lack of follow-through. She recommended adoption for Devon because it would give him permanency, stability, and a sense of belonging. He had demonstrated that he could thrive with structure, make changes in his behavior, and progress academically.

The Department also called as a witness Alane McCrea, a senior adoption specialist with the State Department of Social Services, who had prepared the adoption assessment dated August 14, 2006. McCrea had met with Devon four times, but had met the parents only once because they failed to attend a scheduled appointment with her or to call to reschedule.

McCrea testified that she looks for specific qualities in a child to determine whether the child is likely to be adopted: the ability to seek out adults as helpers, to make good eye contact, developing insight, the childs peer relationships and interactions with other professionals, compassion, empathy and general kindness, and treatment of animals. McCrea described playing a game with Devon that was designed to reveal Devons emotions and choice-making. He was able to identify positive courses of action and to look to an adult to help him. She stated that Devon had very good eye contact and that he was not uncomfortable talking with adults and other children. She felt that he had a basic understanding of his situation, i.e., not being able to return home and needing to be in the group home so he could learn to control his behavior. Devon was making good progress and would continue to progress. Devon told McCrea that he had two friends, one at school and one at the home. He described age-appropriate things he liked to do and his affect seemed appropriate. McCrea had spoken with social worker, Shana Allen, the group home provider, Devons therapist, and his teacher about their interactions with Devon. Devon was very interested in animals, really cared for them, and was kind to them.

McCrea stated that Devon was difficult to place for adoption because he was living in a group home and taking medication. She testified that the medication really seemed to be helping him, and he was making good progress at the group home. He had demonstrated that with continued care and consistency, he could make improvements in his behavior. McCrea testified that she was trying to find a two-parent, experienced adoptive home for Devon, if possible. She was hoping to find a family with experience helping a child come from a chaotic background to a home with more stability, and one not easily frightened by anger or upset, since Devon had learned to handle being upset with anger. She wanted a family that would be very open to participating regularly in therapy, could outline clear and consistent rules, and could provide a supportive environment. She had not yet found a home like that, but was hopeful that she could do so within the next six months. She had not spoken with Devon about being adopted because he was an anxious child, and the anxiety could be exacerbated by raising the issue of adoption before a prospective adoptive home is located. It would be appropriate to discuss adoption with Devon when a prospective adoptive family was identified.

It was McCreas opinion that Devon would benefit from adoption. She felt that it would provide stability and solidify some of the strengths he was beginning to develop. She believed that Devon did care for his birth parents and missed them when they did not show up for visits, but she also believed that their parenting had caused some of Devons problems.

During cross-examination, McCrea said she believed it was likely that a prospective adoptive family could be found within the next six months. Devon would miss his parents, but would see the benefit of having strong parents and would be able to transfer his love to his adoptive family. She felt that Devon should continue to see his parents for the time being, but that once a prospective adoptive family was identified the visits might have to cease if they undermined forming a bond with the new family.

She testified that once a prospective adoptive family was identified, she would introduce the family as one that is interested in adopting children by showing Devon photographs, hoping that this would lead Devon to ask questions. McCrea testified that a psychological evaluation of Devon would be helpful, and should be conducted before terminating parental rights. In addition, state adoptions was required to provide a psychological evaluation to prospective adoptive parents. However, the psychological evaluation was not necessary for her to make the determination that Devon was probably adoptable.

The Department moved the social workers section 366.26 report and the attached adoption assessment into evidence, and submitted. Mothers counsel did not present any witnesses or evidence. Fathers counsel did not present any witnesses or evidence. The minors counsel did not present any witnesses or evidence.

In closing, counsel for the Department argued that the Department had met its burdens under section 366.26, subdivision (c)(3), to prove that Devon had a probability for adoption but was difficult to place for adoption, and that there was no identified or available prospective adoptive parent at that time. The Department also argued that the parents had failed to carry their burden to prove that termination of parental rights would be detrimental to Devon by establishing that they had maintained regular visitation and contact with him and that Devon would benefit from continuing the relationship pursuant to section 366.26, subdivision (c)(1)(A).

Mothers counsel contested the proposed finding that Devon was adoptable, arguing that there was not enough information about his fragile mental state for the court to make that finding. She disputed that it was the parents burden to prove that it would not be detrimental to terminate parental rights since that is a necessary component of the Departments recommendation that adoption be identified as the permanent placement goal under section 366.26, subdivision (c)(3). She agreed that because of Devons age and mental diagnosis, finding an adoptive home would be difficult. She urged long-term foster care as the permanent plan.

Fathers counsel argued that a psychological evaluation was necessary before there could be any finding of adoptability, and it was not probable that an adoptive family would be found. There also was not enough information to conclude that termination of parental rights would not be detrimental. Father also was concerned about Devons medication--whether his improved behavior and school performance were due to being drugged and what would happen if he were weaned off of it. He asked the court to identify guardianship or long term foster care as the permanent plan and to find that, at least for the time being, there was not enough information to order adoption.

Counsel for Devon was concerned about whether he really was adoptable. She cited the facts that he was medicated, living in a group home, and knew nothing about the potential for being adopted. She wanted to see a psychological evaluation completed. She also thought it would be premature to terminate parental rights, and did not think adoption should be the permanent plan at that time. Rather, she thought it would be better for Devon to keep him in foster care to continue his progress and see how far we can get him.

After hearing closing arguments, the court found that the Department had established a probability that Devon would be adopted, that Devon was difficult to place because of his age and mental diagnosis, and that a prospective adoptive home had not yet been identified. The court found that the parents had not met their burden of establishing that it would be detrimental to Devon to terminate their parental rights. Based on their having missed 12 of the 28 visits, the court concluded that the parents had not maintained regular visitation and contact with Devon. In addition, there was no recent evidence regarding Devons relationship with his parents, and no basis for finding that Devon would benefit from continuing the relationship within the meaning of section 366.26, subdivision (c)(1)(A). The court identified adoption as the permanent placement goal, and continued the matter for 180 days to allow state adoptions to find an adoptive home for Devon.

On December 11, 2006, Father filed a timely notice of appeal.

III. DISCUSSION

A. The Appeal Is Not Barred

As a preliminary matter, we will address respondents argument that Father is barred from seeking relief because he failed to file a writ petition challenging the order setting the section 366.26 permanency planning hearing. Section 366.26, subdivision (l), bars review of an order setting a section 366.26 hearing unless the parent sought timely review by extraordinary writ,[4] and applies to all issues arising out of the contemporaneous findings and orders made by a juvenile court in setting a section 366.26 hearing. (Wanda B. v. Superior Court (1996) 41 Cal.App.4th 1391, 1396.) Subdivision (l) of section 366.26 has no bearing on this appeal, however, because Father is not challenging the order setting the section 366.26 hearing or an order collateral thereto. Rather, he is challenging the courts findings and orders issued subsequently at the permanency planning hearing.

B. The Minor Had a Probability for Adoption

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 that is preferred by the Legislature. Section 366.26, subdivision (b) establishes the order of preference for permanent placement orders: (1) termination of parental rights and placement for adoption; (2) identification of adoption as the permanent placement goal, but an extension of no more than 180 days for location of an appropriate adoptive family; (3) appointment of a legal guardian for the child; and (4) placement in long-term foster care, with further periodic review hearings. The option provided in subdivision (b)(2) depends on a finding under section 366.26, subdivision (c)(3) that termination of parental rights would not be detrimental to the child . . . and that the child has a probability for adoption but is difficult to place for adoption and there is no identified or available prospective adoptive parent. (In re Ramone R. (2005) 132 Cal.App.4th 1339, 1349 (Ramone R.).)

Upon making such findings, the court may identify adoption as the permanent placement goal and without terminating parental rights, order that efforts be made to locate an appropriate adoptive family for the child within a period not to exceed 180 days. . . . At the expiration of this period, another hearing shall be held and the court shall proceed pursuant to paragraph (1) or (3) of subdivision (b).[5] For purposes of this section, a child may only be found to be difficult to place for adoption if there is no identified or available prospective adoptive parent for the child because of the childs membership in a sibling group, or the presence of a diagnosed medical, physical, or mental handicap, or the child is the age of seven years or more. ( 366.26, subd. (c)(3).) The trial courts findings that Devon was difficult to place for adoption and that there was no identified or available prospective adoptive parent, pursuant to section 366.26, subdivision (c)(3), are not in dispute.

Father argues that the juvenile court erroneously applied the preponderance of the evidence standard of proof rather than the clear and convincing evidence standard[6] in making the finding that Devon had a probability for adoption under section 366.26, subdivision (c)(3). However, Father did not raise this issue below and should have to provide a proper basis for raising it on appeal. (See, e.g., In re Riva M. (1991) 235 Cal.App.3d 403, 411-412 [father waived any error by the court in using incorrect standard of proof in terminating parental rights under ICWA]; In re Aaron B. (1996) 46 Cal.App.4th 843, 847 [father waived the adequacy of the adoption assessment by failing to raise it below].)

Further, even if Father did not waive the issue, Father has not carried his burden of demonstrating error. It is a fundamental rule of appellate review that a judgment or order is presumed to be correct. (In re Sade C. (1996) 13 Cal.4th 952, 994.) We are required to resolve all ambiguities in favor of affirmance and to presume that an official duty has been regularly performed. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Evid. Code, 664.) These rules [encompass] a presumption that the trial court applied the proper burden of proof in matters tried to the court. (Ross v. SuperiorCourt (1977) 19 Cal.3d 899, 914, citations omitted.) Fathers argument is based entirely on the Departments trial brief which stated that the preponderance of the evidence is the applicable standard. No other party filed a trial brief; there was no argument regarding the appropriate standard of proof; and the transcript and minutes of the hearing and the courts written order after hearing are silent with respect to the standard applied by the court. There is no indication that the juvenile court relied on the statement in the Departments trial brief. Accordingly, in the absence of evidence rebutting the presumption that the juvenile court applied the proper standard of proof, we find no error.

Father next contends that there was insufficient evidence to support the juvenile courts finding that Devon was probably adoptable. Our review is for substantial evidence,[7] that is, whether the record contains substantial evidence from which a reasonable trier of fact could find clear and convincing evidence of the probability of the childs adoption. (In re Asia L. (2003) 107 Cal.App.4th 498, 509 (Asia L.).) When the sufficiency of the evidence to support a finding or order is challenged on appeal, even where the standard of proof in the trial court is clear and convincing evidence, the reviewing court must determine if there is any substantial evidence--that is, evidence which is reasonable, credible and of solid value--to support the conclusion of the trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) In making this determination, we recognize that all conflicts are to be resolved in favor of the prevailing party and that issues of fact and credibility are questions for the trier of fact. (In re Jason L., supra, at p. 1214; In re Steve W. (1990) 217 Cal.App.3d 10, 16.) The reviewing court may not reweigh the evidence when assessing the sufficiency of the evidence. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)

In determining whether a child is likely to be adopted, the juvenile court must focus on the child, and whether the childs 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.) Under subdivision (c)(3) [of section 366.26], the court merely needs to find that, under the circumstances, the [child has] a probability of adoption. (In reGabriel G. (2005) 134 Cal.App.4th 1428, 1438 (Gabriel G.), emphasis added.)

Here, there is ample evidence that Devon had a probability for adoption. Shana Allen, the social worker on Devons case for the past year, recommended adoption as the goal, noting that Devons behavior at the group home and at school had significantly improved during the time he had been in residential treatment. He was in weekly therapy, and was learning new ways of coping with frustration and anger. He had made friends at school and at the group home, and enjoyed the attention he got from staff at the group home, teachers, and social workers. He loved and was gentle with animals, and enjoyed age-appropriate outdoor activities like swimming, playing tag, basketball, and soccer. Allen described Devon as a charming young boy who engages easily with peers and adults.

At the hearing, Allen testified that Devon had made significant progress at the group home, citing the facts that the number of incident reports she had r