In re Mark R.

Filed 10/5/06 In re Mark R. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from an order of the Superior Court of Los Angeles County.

Valerie Lynn Skeba, Juvenile Court Referee. Reversed and remanded.

Lori A. Fields, under appointment by the Court of Appeal, for Defendant and Appellant Ernie R.

Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Defendant and Appellant Dorena C.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel and Joanne E. Romero, Deputy County Counsel, for Plaintiff and Respondent.

Mother and Father each appeal from the termination of parental rights to Mark R., who is now six years old. We previously reviewed this matter on Mother’s petition for extraordinary writ challenging the juvenile court’s order of August 25, 2005, terminating family reunification services and referring the matter to a Welfare and Institutions Code section 366.26 hearing, then scheduled for December 22, 2005.[1] In a decision on the merits, we denied the petition in an unpublished decision filed December 15, 2005.

The section 366.26 hearing has since been held, and the juvenile court terminated parental rights after a contested hearing. Respondent (the Department) acknowledges that improper notice was given under the Indian Child Welfare Act (25 U.S.C. § 1902 et seq.; “ICWA”) so concedes the matter must be reversed and remanded for proper notice and then, if Mark is found not to be an Indian child, the order terminating parental rights should be reinstated. We agree.

PROCEDURAL HISTORY AND STATEMENT OF FACTS[2]

Following termination of family reunification services, in September 2005 a person considering the adoption of Mark attended a permanent planning presentation; within weeks, she decided to become a prospective adoptive parent for Mark. By October 29, 2005, the prospective adoptive parent completed all of the medical training necessary to treat Mark’s Type I diabetes. There was some transition between Mark’s foster caregiver and his prospective adoptive parent, with visitations starting gradually on November 3, 2005, and graduating to overnight weekend visits. Mark was placed with the prospective adoptive parent on December 10, 2005. Later that month, Mark reportedly wanted to cancel his regular visit with Mother, who was adamant that he visit with her. He relaxed when his maternal grandmother started playing with him and relented about the next visit when Mother reportedly kept bribing him with the offer of “many Christmas presents.” Mark, who reportedly experienced a high level of stress and anxiety in facing his biological family and wanted to “live with his current caregiver forever,” then cancelled the visit two days later.[3]

In the report prepared for the December 22 hearing, which was admitted in evidence, the Department stated that Mother came to every scheduled visit, though was always 15 to 20 minutes late for the two-hour visits on Mondays and Wednesdays. She forgot about Mark’s Christmas program at school in early December and did not attend, which disappointed the child. Father continued to have sporadic visits with his son and to do nothing to comply with the case plan. Mother reportedly minimized the seriousness of Mark’s diabetes and believed the Department was making the child’s illness more serious than it actually is.

In contrast, Mark enjoyed his new home and experienced stress in visits with his mother, needing assurance he would return to the home of the prospective adoptive parent. The permanent plan was adoption with the current caregiver. The Department recommended termination of parental rights.

On December 22, 2005, new counsel appeared for Mother, who was also present in court. Minor’s counsel asked for a section 730 evaluation to do a bonding study between Mark and his mother, who joined the motion; the court denied the motion, stating it had not found them to be particularly enlightening in these issues.[4] The court also denied the Department’s motion to terminate parents’ visits with Mark. The matter was continued to February 2, 2006, for a section 366.26 permanent plan contested hearing.

On December 28, 2005, the Department filed a section 388 petition, seeking to terminate Mother’s visits with Mark. On January 6, 2006, the court reduced the visits to once a week for two hours pending the hearing scheduled for February 2, 2006. Mother’s application for rehearing was denied.

The status review report for February 2, 2006, which does not appear to have been admitted in evidence, reported Mother continued to attend all her scheduled visits, though still not on time. Mark reportedly refused to go to the visits and had to be convinced to do so by his prospective adoptive parent. The Department recommended individual counseling for Mark, who was displaying oppositional behaviors and at times refused to comply with requests made by adults. At a visit in late January, Mark enjoyed playing in the park and had no difficulty separating from his biological family after the visit. On the same date, Mother reported she now saw the importance of monitoring Mark’s blood sugar level. Mark’s sister Jessica told the CSW that she would like to speak to Mark’s judge.

Mark reported he no longer wanted to visit with his biological family. Even Mother admitted that “he likes where he’s at.” The prospective adoptive parent, who was “highly motivated and committed to adopting Mark,” was doing well in monitoring Mark’s blood sugar. The Department again asked that the parents’ visitation be terminated in order to allow a less stressful transition for the child. Adoption was the recommended plan.

When the matter was called on February 2, 2006, Mother’s new counsel asked for a continuance because she had been engaged in trial for the past two weeks. Mark’s counsel agreed “because it won’t be in [Mark’s] best interests if the mother’s counsel is not adequately prepared for this hearing.” The court denied the continuance, stating it was not a timely request and that Mother’s counsel did not say she was unprepared, which Mother’s counsel denied.

The CSW, who was assigned to the medical placement unit, had been on this case for about seven months and testified the Department’s recommendation was adoption and it was the Department’s belief that Mark was adoptive; he is living with his prospective adoptive parent, who knows how to care for him. Even if this parent were to decide not to adopt Mark, the worker did not believe the Department would have any difficulty in locating another adoptive home. Mark is a smart boy, and his medical condition does not fall into the medical needs that might be difficult to place in an adoptive home. He is young enough that age is not a problem.[5]

According to the CSW, who had been on the case since July 2005, after family reunification services were terminated, whenever they talk about visits, Mark has told her he no longer wants to visit with the parents, or his sister or grandparents, saying “I just don’t want to.” She did not believe he was coached to make those statements. The first time, he went into a fetal position and banged his head on the couch; she let the child cancel the next visit, saying she would not force him to go. Once encouraged to visit, he continued the court-ordered visitation but also continued to express that he did not want to go. His aversion to family visits started in December, which was within a month of his moving to the prospective adoptive placement and after such visits had moved from the home of his previous caregiver to the Department’s office. By January, Mark told the worker he did not want to live with Mother. In explaining adoption to Mark, she did not tell him he would not see his mother or father again even though she thinks the prospective adoptive parent would not continue the visits.

The CSW acknowledged some sort of relationship between Mark and his mother and father, but she did not think Mark would “lose out” by not continuing the relationship with his parents if he was adopted. Based on watching two monitored visits as well as speaking with the caregivers, the CSW opined that the mother-son bond was “not that strong because he is able to transition to different places.” She thought an ongoing relationship with his parents would just “make it difficult for him” and make it hard “to move on.” Mark had been in the prospective adoptive placement about eight weeks at the time of the hearing and liked his cat, bed, and caregiver; he told the CSW he wanted to stay there.

The court conducted a hearing in chambers with Mark regarding the section 388 petition. Mark testified he liked seeing his mother, father, and Jessica. But he would not visit with his mom because “you have to drive far” and “[i]t’s not fun,” then conceding “It’s a little fun.”[6] When asked how it would feel not to see Mother any more, he replied “I don’t know.” He feels “scared” if his prospective parent does not like him; his stated desire not to visit his parents was not in order to make the prospective adoptive parent like him.[7]

The court denied the Department’s section 388 petition to terminate visitation and ordered visits be once a week for a minimum of three hours, at a place other than the Department’s office. Moreover, the visit had to be at a place where Mark can run around. The court also asked the Department to arrange a visit for Mother and Father around the time of Mark’s birthday in February. The matter was continued to February 28, 2006.

Mother filed a section 388 petition to reinstate reunification services for an additional six months and order unmonitored visitation. Mother alleged the social workers were biased against her and that the Department and prospective parent “have cooperated in manipulating the minor” to refuse to visit with and maintain ties to his biological family. Mother believed that the advances in the care and treatment of diabetes along with Mark’s greater maturity create a situation where Mother should be given the opportunity to show she can manage his condition. Moreover, Mother had been diagnosed with and was being treated for hypothyroidism, which account for the depressive episodes that were a problem earlier in the proceedings. The court found no significant change in circumstances except for Mother’s hypothyroidism, which it deemed not a significant enough change to warrant reunification services. The court noted, “I frankly believe that Mark does have loving feelings towards his mother.”

The addendum report for the February 28, 2006, meeting, not entered in evidence, stated Mark’s reported verbalized preference for his current caregiver even if it meant he could not see his biological family any more.

The contested hearing continued on February 28, 2006. Both Mother and Father testified. Mother testified to the “very tight bond” between her, Mark, and his sister. During every visit, Mark comes running to her with open arms, tells her he loves her, and does not want to leave. They play together, and Mark runs to her when he is hurt, asking her to hug and kiss him. Mother believed it would affect Mark “tremendously,” now and for the rest of his life, if he were not to have any further contact with Mother and her family.

Moreover, Mother testified she has recently never missed a visit with Mark and had missed only three in the past eighteen months.[8] She scheduled as many visits as the prior caregiver would allow, usually four times a week, sometimes all day on Saturdays. When that caregiver broke her hip, Mother took Mark to school and picked him up each day. Mother was able to test his diabetes and give him insulin or juice if needed under his current regimen.[9] The monitor from the Department, who Mother thinks is “really nice,” watches but does not know how to do the testing or injections. Before Mark moved into the adoptive home, Mother always went to his medical appointments with him. Mark is no longer attending counseling, although Mother thinks “he needs it the most” at that point.

Mark had a “great” time at his birthday party; photographs were introduced of Mark and family members. At her visit on Mark’s birthday, Mother saw a big bruise of the side of his cheek and two deep gouges in the side of his head. After prying the information out of him, Mark said he “tripped over his shoelace” at the mall parking lot. He would not give any information about the injury to the monitor. Mother called the caregiver, but she would not give any information. When Mother calls, no one ever answers or returns her calls. Mark has never answered on the cell phone given to him by the prospective adoptive parent and does not reply to the messages left by Mother; Mark told her the battery was dead. According to Mother, Mark and his 13-year-old sister love each other and are very close.

Father corroborated Mother’s affectionate involvement with Mark.[10] The juvenile court asked Father to limit his testimony about visits to the past six months. Father testified he has visited consistently, almost always at the same time as Mother, and missed “maybe two” visits, probably because of work. Mark hoped the visits would last longer.

Mark called him “Dad,” would hug Father and have him carry Mark like Superman. Father felt that had a close bond and that he is a loving father. Father took two or three diabetes training sessions at Children’s Hospital the year before and gave Mark injections in the past. Father noted Mark had a “weary look” but seems to be “growing up” in his new placement.

The court observed “It’s a close call” and all thought earlier in these proceedings that either “Mark would go home with his mother or that it was unlikely that we would find a prospective adoptive parent, given his medical problems.” However, given the “great commitment” of the prospective adoptive parent, the court could not make a finding that the child is not adoptable.[11]

Regarding the section 366.26, subdivision (c)(1)(A) (“section 366.26 (c)(1)(A)”) exception, the court stated “it really doesn’t apply to the father,” whose testimony was not found “to be very credible.” The exception was “a closer question” regarding Mother, who does love her child but has been negligent in his care. The court found Mark would like to continue the relationship with his parents but is also happy where he is and is “finally in a stable relationship.” As the court stated “we tried very, very hard to return Mark to his mother,” but “the same problems kept happening over and over and over again.” Mother’s tardiness regarding meetings and the child’s diabetes regimen “showed a lack of concern for Mark.” She was not testing him appropriately, not monitoring his blood sugar, and not properly giving his insulin.

The court found Mark to be adoptable, ordered adoption as the permanent plan, terminated appellants’ parental rights, and continued the matter to August 29, 2006. Mother and Father both appeal from the termination of parental rights.

CONTENTIONS ON APPEAL

Father contends: 1. Substantial evidence does not support the court’s finding that Mark is generally adoptable, apart from the existence of the prospective adoptive mother with whom he had been placed for only eight weeks. 2. Mark shared a strong parent-child bond with his father, and Father established that a plan short of adoption should have been selected because the exception set forth in section 366.26(c)(1)(a) applied to Mark. 3. Father joins in Mother’s argument regarding notice under the Indian Child Welfare Act (“ICWA.”)

Mother joins Father’s argument regarding whether or not Mark was adoptable and contends: 1. The order terminating Mother’s parental rights to Mark must be reversed because the Department failed to comply with the notice requirements of the ICWA and because the juvenile court failed to secure compliance with the requirements and failed to make the required ICWA findings. 2. The juvenile court committed reversible error by terminating Mother’s parental rights to Mark because substantial evidence did not support the court’s finding that the section 366.26(c)(1)(A) exception did not apply.

DISCUSSION

1. The matter must be remanded for proper notice.

Appellants contend and respondent concedes that there was a failure to comply with the ICWA notice requirements and that the matter must therefore be reversed to permit proper notice to be given. Respondent acknowledges that the notices sent were “both incomplete and incorrect, thus rendering meaningless the safeguard of notice.” (Mississippi Choctwaw Indian Band v. Holyfield (1989) 490 U.S. 30, 36.) Respondent’s proposed remedy is to require proper notice be sent but if, after receiving proper notice, neither the Crow nor the Cherokee indicate that Mark has Indian heritage, the juvenile court should reinstate the order terminating parental rights.

2. Sufficiency of the evidence regarding Mark’s adoptability and the (c)(1)(A) exception to section 366.26.

a. Standard of review.

We reiterate from the writ decision: “‘”’In juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact.’”’ [Citations.] Even if there is no substantial conflict in the evidence, we must nevertheless draw all legitimate inferences in support of the findings of the juvenile court. [Citation.])” (Melinda K. v. Superior Court (2004) 116 Cal.App.4th 1147, 1158.)

b. The statutory scheme and section 366.26, subdivision (c)(1).

“Adoption has long been the preferred permanent plan if the parents are unable to reunify. (In re Autumn H. (1994) 27 Cal.App.4th 567 [573, 32 Cal.Rptr.2d 535].) Under section 366.26, once the court determines a child is adoptable, it must terminate parental rights unless it finds one of the section 366.26, subdivision (c)(1) exceptions applies. [Citation.] The only exceptions to terminating parental rights are those prescribed by section 366.26, subdivision (c)(1). [Citation.] . . . The purpose of the specified exceptions is to ensure that termination of parental rights is in the child's best interests and is the least detrimental alternative. [Citation.] If no exception applies, it is in the child's best interests to terminate parental rights. [Citation.]” (In re Carl R. (2005) 128 Cal.App.4th 1051, 1070, fn. omitted.)

Section 366.26, subdivision (c)(1), provides in pertinent part regarding the process for termination of parental rights:

“(c)(1) If the court determines, based on the assessment provided as ordered under subdivision (i) of Section 366.21 or subdivision (b) of Section 366.22, and any other relevant evidence, by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption. The fact that the child is not yet placed in a preadoptive home nor with a relative or foster family who is prepared to adopt the child, shall not constitute a basis for the court to conclude that it is not likely the child will be adopted. A finding under subdivision (b) or paragraph (1) of subdivision (e) of Section 361.5 that reunification services shall not be offered, under subdivision (e) of Section 366.21 that the whereabouts of a parent have been unknown for six months or that the parent has failed to visit or contact the child for six months or that the parent has been convicted of a felony indicating parental unfitness, or, under Section 366.21 or 366.22, that the court has continued to remove the child from the custody of the parent or guardian and has terminated reunification services, shall constitute a sufficient basis for termination of parental rights unless the court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: (A) The parents or guardians have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (Italics added.)

Father and Mother argue both that there is insufficient evidence of Mark’s adoptability and that the subdivision (c)(1)(A) exception exists and precludes termination of their parental rights. c. Substantial evidence supports the juvenile court’s decision that Mark is adoptable.

As explained above, following a section 366.21 hearing, section 366.26 provides that where as here the juvenile court determines “by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption.” (Italics added.) Father and Mother argue that, considering Mark’s medical and behavioral problems and strong relationships with members of his biological family, his placement in a prospective adoptive home by itself is not sufficient evidence of adoptability to satisfy the statutory requirement.^[12] The remedy, they argue, is to reverse and remand to select a plan short of adoption for Mark.

An adoptive parent need not be “waiting in the wings” for the court to find the child likely to be adopted. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649; In re T.S. (2003) 113 Cal.App.4th 1323, 1329 [same]; accord In re Brian P. (2002) 99 Cal.App.4th 616, 624, [but reversing termination for lack of evidence of adoptability].)[13] Effective January 1, 1999, an amendment added the following pertinent language to section 366.26: “The fact that the child is not yet placed in a pre-adoptive home nor with a relative or foster family who is prepared to adopt the child, shall not constitute a basis for the court to conclude that it is not likely the child will be adopted.”

But when a prospective adoptive parent has expressed interest in adopting the minor, that is “evidence that the minor’s age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parent’s willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family. [Citation.]” (In re Sarah M., supra, 22 Cal.App.4th 1642, 1649-1650; compare with In re Asia L. (2003) 107 Cal.App.4th 498, 512 [“unlike the situation in In re Sarah M., supra, the foster parents’ willingness to explore the option of adopting James and Asia is too vague to be considered evidence that some family, if not this foster family, would be willing to adopt these children”]; see also In re Amelia S.(1991) 229 Cal.App.3d 1060, 1065 [reversing based on insufficient evidence where a few foster parents were merely considering adoption; court does not want to leave a child without any parents]).[14] In In re Tamneisha S. (1997) 58 Cal.App.4th 798, 804, the Court of Appeal affirmed the juvenile court’s denial of termination of parental rights and its selection of legal guardianship as the plan, where adoptability was not proved.

“The issue of adoptability posed in a section 366.26 hearing focuses on the minor, e.g., whether the minor’s age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor.” (In re Sarah M., supra, 22 Cal.App.4th 1642, 1649.) Certainly, it is simpler for the juvenile court to find “generally adoptable" children who are “in good health, young, well behaved, socially doing well ..., and happy.” (In re T.S. (2003) 113 Cal.App.4th 1323, 1329.) But a child like Mark, with a significant but treatable medical condition, can also be considered adoptable.

A committed adoptive parent was “waiting in the wings.” Even if she were not, the CSW did not believe the Department would have any difficulty in locating another adoptive home. Mark is a smart boy, young enough that age is not a problem; and his medical condition does not fall into the medical needs that might be difficult to place in an adoptive home. There is substantial evidence of his adoptability, so that element of section 366.26, subdivision (c)(1), has been satisfied.

d. The section 366.26(c)(1)(A) exception.

Mother and Father both contend that they fit within the exception from termination of parental rights set forth in section 366.26(c)(1)(A) in that there was “a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: (A) The parents or guardians have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.”

“[T]he party claiming an exception to adoption has the burden of proof of establishing by a preponderance of evidence that the exception applies. [Citations.] We review the juvenile court's decision whether to apply the parental relationship exception to termination of parental rights for abuse of discretion. [Citation.]” (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449.)[15] The statutory exceptions “merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption.” (In re Celine R. (2003) 31 Cal.4th 45, 53.)

As the juvenile court noted, Father’s relationship with Mark was more attenuated than his relationship with Mother. Mother’s regular visitation, accompanied by her tardiness, is uncontradicted. The real issue is whether substantial evidence supports the juvenile court’s decision that termination would not be “detrimental” to Mark, as that term is used in this context, and that he would not “benefit from continuing the relationship.” As the juvenile court recognized, this is a close case. Mark had spent a large part of his life with his parents. Mother was able to care for her daughter, who has no medical problems; the daughter, Mark’s sister, was living at home. Mother’s only neglect of Mark at this point was her inability to perform the procedures necessary for Mark’s Type I diabetes. (Compare with In re Aaliyah R., supra, 136 Cal.App.4th 437, 450, where, although there was an “affectionate closeness“ between mother and child, the mother’s visits were inconsistent and three-year-old Aaliyah had spent more time living in foster care than with her mother, who was only 15 years old at the time of detention. Moreover, Aaliyah had developed a very strong bond with her caregiver, an extended family member who wished to adopt the child.)

The juvenile court recognized the love between Mark and his mother. Despite the maximum time given for reunification efforts and the court’s recognition that all involved expected Mark would be returned to his parents, the court also recognized Mother’s apparent inability to place a priority on Mark’s medical needs, which in his case could be life-threatening. “[W]hen reunification efforts cease, the scale tips away from the parent’s interest in maintaining family ties and towards the child’s interest in permanence and stability” (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1344.) Given the legislative preference for adoption and the stability it provides to children, the balancing of factors in favor of adoption in the case at bench does not constitute an abuse of discretion. DISPOSITION

The order terminating parental rights is reversed and the matter is remanded so that proper notice can be given under the Indian Child Welfare Act. After receiving proper notice, if no tribe indicates Mark is an Indian child within the meaning of the ICWA, the court is directed to reinstate the order terminating parental rights. If a tribe determines Mark is an Indian child, the court is ordered to conduct a new selection and implementation hearing. In all other respects, the order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COOPER, P.J.

We concur:

BOLAND, J.

FLIER, J.

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[1] Unless otherwise indicated, all statutory references are to the Welfare and Institutions Code.

[2] We set forth the procedural history in great detail in the earlier opinion and will add only events that occurred after the decision terminating reunification services. To summarize, the family received one year of voluntary family reunification services and a year of family preservation services before Mark was detained in January 2004; the principal problem was the parents’ inability to comply with the regimen that addressed Mark’s Type I Diabetes. Mark’s sister, who was without medical problems, was left in the care of Mother and Father, who is not her biological father.

[3] The CSW was clearly concerned about Mother’s history of aggression toward the social workers and others and asked the court to order Mother and other family members not to follow Mark, who was then in a confidential placement. In November 2005, when Mother was not allowed to interrupt a meeting between Mark’s foster mother and the social worker, Mother screamed and screeched her tires as she left.

[4] Instead, the court ordered that Mark be present at the hearing.

[5] The CSW conceded it is easier to find an adoptive home when the biological parents “are totally out of the picture.” In addition, anyone who adopts Mark would have to learn about diabetes and be committed to testing him eight or nine times a day, as the prospective adoptive mother had done.

[6] Mark thought it was not fun when the visit was in the office and would want to visit with his parents if the visit was at a park.

[7] Mark’s attorney renewed her request for a bonding study after Mark’s in-chambers testimony on February 2; the request was denied.

[8] Mother admitted being late for visits. She missed the Christmas program; the date she had been given was incorrect, but she could not have made it because of her daughter’s conflicting schedule. Mother felt “very guilty” when Mark asked why she had not come to the Christmas show.

[9] She called UCLA for advice before giving him a two-by-two inch piece of cake with no icing for his birthday.

[10] At the time of the hearing, Father was living in a recovery home and not with Mother.

[11] Mark’s own counsel questioned his adoptability in light of his diabetes and his long-standing relationship with his parents, sister, and extended family. Explaining Mark’s parent-child relationship and bond with Mother, counsel was concerned about how Mark will react when he realizes he will not see his natural parents.

[12] Mark’s counsel expressed concern about that very issue, particularly where the placement with the prospective adoptive mother had been for a matter of weeks.

[13] In In re Brian P., supra, 99 Cal.App.4th 616, 620-621, “The child welfare worker who prepared the section 366.26 hearing report testified briefly. She said she had intended to recommend continued foster care when she wrote the report, but realized she had made an error after speaking to counsel, who informed her that ‘[w]e were recommending termination of parental rights.’ The worker also retracted, with some confusion, her proposed finding on the lack of clear and convincing evidence of adoptability.”

[14] Ten siblings were involved in Amelia S., supra, and the children “various developmental, emotional and physical problems, some of a serious nature.” (In re Amelia S., supra, 229 Cal.App.3d 1060, 1063.)

[15] As explained in In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351, courts “have routinely applied the substantial evidence test to the juvenile court’s finding under section 366.26, subdivision (c)(1)(A).” While recognizing “practical differences between the two standards of review are not significant,” the Jasmine D. court concluded “the abuse of discretion standard is in order,” a standard of review adopted by this court in In re Aaliyah R., supra, 136 Cal.App.4th 437, 449. (In re Jasmine D., at p. 1351.) In the case at bench, the application of either standard of review does not alter the result.