IN RE: A.Q. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Appellant Y.Q. (mother) appeals from a juvenile court terminating her parental rights to A.Q. (the minor, born May 2004).   Mother contends that:  (1) there was insufficient evidence to support the juvenile court's finding that the minor was likely to be adopted;  and (2) the juvenile court erred in refusing to apply the beneficial parental exception to the termination of parental rights (Welf. & Inst.Code, § 366.26, subd. (c)(1)(B)(i)).¹  We conclude that substantial evidence supports the juvenile court's findings and order.   Accordingly, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Section 300 Petition and Detention

On October 15, 2008, the Los Angeles County Department of Children and Family Services (DCFS) filed a section 300 petition on behalf of the then four-year-old minor, pursuant to subdivisions (a), (b), (d), and (g).  Regarding mother,² count (a) alleged:  “[Mother] and the mother's male companion, Rene C. [ (Rene),] have a history of domestic violence and engaging in violent altercations in the child's presence.   On a prior occasion, [Rene] choked the mother, kicked the mother's back and ripped the mother's shirt.   On numerous prior occasions, [Rene] struck the mother's body.   On numerous prior occasions, [Rene] threatened to kill the mother.   The mother failed to protect the child in that despite obtaining a restraining order against [Rene,] the mother allowed [Rene] to reside in the child's home and have unlimited access to the child.   Such violent conduct on the part of [Rene] against the mother and the mother's failure to protect the child endangers the child's physical and emotional health, safety and well being and places the child at risk of physical and emotional harm, damage, danger and failure to protect.”

Count (d) alleged:  “[Rene] sexually abused the child by digitally penetrating and fondling the child's vagina.  [Mother] failed to take action to protect the child when she knew that the child was being sexually abused by [Rene]. Such sexual abuse of the child on the part of [Rene] and the mother's failure to protect the child endangers the child's physical and emotional health, safety and well being and places the child at risk of physical and emotional harm, damage, danger, sexual abuse and failure to protect.”

At the time of the referral, the minor lived with mother and Rene. Mother told the social worker that Rene had been arrested before for domestic violence and sexual assault.   She stated that the sexual assault charge took place years before she met Rene. Mother had previously obtained a restraining order against Rene, but he ripped it up.   Mother discussed the violent incidents between her and Rene, which included his threat to kill her if she tried to leave him.   Another time, about one-and-a-half years earlier, Rene came home drunk, said he had killed someone, and that mother would be next.   Rene kicked mother in her back, choked her, and ripped her shirt while mother had the minor in her arms.   The police arrested Rene and he eventually was deported.   But, Rene returned to this country and resumed living with the minor and mother.   Six months after his release from jail, Rene again was assaultive towards mother.   When she tried to call the police, he took the telephone from her;  she surmised that a neighbor must have heard and called the police, who arrived and arrested Rene. The minor was asleep in her room when this incident took place.   Mother stated that Rene was on probation and attending domestic violence classes.   In the last three months, Rene hit mother on three occasions.   According to mother, the minor did not witness these recent incidents.

Mother further reported that the minor had disclosed to her that the previous night, Rene had touched her “ ‘bon bon’ (vagina).”   Mother did not do anything about it because she believed that the minor's maternal step-grandfather, who disliked Rene, made the minor say it.   According to mother, Rene had not been in the home since Monday.   She stated that she had never seen Rene touch the minor on her vagina.   Mother said that the minor's vagina often had rashes and sometimes had discharge because she did not like to shower and drank a lot of juice.

The social worker then spoke to the minor, who said that mother punished her by hitting her on the mouth and hands.³  The minor further reported that Rene and mother fought almost daily and that Rene would hit mother with a closed fist.   They also used bad words when they fought.   Regarding the allegation of sexual abuse, the minor indicated that Rene would rub his hand on the outside of her “bon bon.”   She stated that she wore underwear when this occurred, about two days ago.   However, the minor was unable to identify which day or time.   The minor had asked that Rene leave the home, but mother did not have him do so.   Rene's belongings were still there.

At the October 15, 2008, detention hearing, the juvenile court detained the minor and placed her with Gilma S. (Gilma), her maternal aunt,⁴ at mother's request.   It gave DCFS discretion to allow mother to reside in Gilma's home, if DCFS assessed that it was safe and Gilma agreed.   Mother's visits were ordered to be reasonable in placement and monitored outside of placement.   There was to be no contact between the minor and Rene.

Jurisdiction/Disposition

In DCFS's November 17, 2008, report, mother confirmed that “[t]here has always been domestic violence” between herself and Rene. “Whenever he attempted to hit me, he would choke me.”   She further described the incident when Rene ripped her shirt, stating that he had gone into the kitchen to try to stab her, but she blocked him and ran outside.   The police were there arresting someone else, and she told them what had happened.   She also recounted Rene's threat to kill her if she went to the police.

Mother stated that it was difficult for her to believe that Rene had touched the minor every day, as he was working in Arizona.   According to mother, the minor told her (after she offered to buy her daughter a goldfish), that the step-grandfather told her to tell her teacher that someone had touched her.   Mother claimed that she never left the minor alone with Rene;  she even took the minor to the bathroom with her because Rene was not the minor's father.

Mother believed that the minor had been coached by mother's stepfather to make the story up.   After all, she had seen them having a secretive conversation recently.

A forensic examination of the minor concluded it was a “Normal anal-genital exam” that day.   During the examination, the minor described Rene “poking” her with his finger in her vagina and buttocks.   He also told the minor “to be quiet or her mother would hear.”

On December 17, 2008, DCFS informed the juvenile court that Gilma did not want mother to reside in her home.   She described mother as confrontational regarding the minor living in her home, and mother blamed the family of scheming to take the minor away from her.   Mother would insist on taking the minor alone with her or into the bedroom.   When Gilma would say she could not do so, mother would become upset and accuse Gilma of wanting to take the minor away from her.   Gilma also reported that her children were home when mother called.   They put mother on speakerphone so that she could speak with the minor.   Gilma's children stated that Rene could be heard in the background, prompting mother on what to say.

DCFS further reported that a warrant had been issued for Rene's arrest and that he remained at large.

Based upon (1) mother's statements that she did not believe that the minor was sexually abused by Rene, and (2) mother's ongoing conflict with Gilma, DCFS concluded that it would not be appropriate for mother to reside in Gilma's home.

In response to allegations made by mother concerning the maternal aunt's home, DCFS investigated and reported on January 29, 2009, that the minor denied that Gilma or any member of her family had physically abused her.   When the social worker informed Gilma that mother had said in court that the minor was being physically abused, Gilma responded that mother continued to be problematic.   She also relayed mother's statement that the current situation would not have happened if the minor had not said anything about what Rene did.

Gilma said that the minor did not listen well to her and that the minor and her six-year-old son liked to rough play with each other, something the social worker observed.

There was also an issue raised by mother about where Gilma's 22–year–old son, Sergio Q. (Sergio), lived.   The social worker spoke with Sergio, who said that he moved out of Gilma's home when the minor was placed there.   He moved in with mother, but moved out two weeks later because Rene was living there and the two men got into an argument.

Meanwhile, the minor was attending counseling sessions.

Mother, on the other hand, was initially resistant to attending any programs and questioned why she needed to attend.   Despite receiving referrals, mother refused to enroll.   But, after the December 17, 2008, hearing, mother began to cooperate more.   She enrolled in parenting education classes and domestic violence group counseling.

Attached to the DCFS report was a police report on its follow-up investigation.   The officers described the minor as “very articulate for her age ․ bi-lingual, but prefers to speak Spanish.”   She repeated her statements that Rene had fondled her vaginal area and rectum with his hands.

Also submitted was a multidisciplinary assessment team summary of findings, which included an interview with the minor, who expressed her wish that she and mother were together.   The minor said that she had visits with mother often.   Gilma said that the minor threw tantrums when she did not get her way, was argumentative, did not follow adults' directions, and blamed others for her mistakes.   Mother said that the minor would scream “ ‘as if she was in pain.’ ”   Mother thought the screaming was related to having witnessed domestic violence.   Regarding the allegation of sexual abuse, mother maintained that “she has no reasons to believe her daughter's story” as she denied the minor had ever been left alone with Rene. She claimed that she tape-recorded the minor stating that her step-grandfather had told her to say it.   Gilma reported that mother had monitored visits once a week and daily monitored telephonic contact.   Mother was inappropriate during these conversations, continually talking about the case and asking questions about physical abuse and punishment.   But, mother said that she visited with the minor once to twice a week, and said that Gilma refused to pick up the telephone when she tried to call.   There was some back and forth about Gilma's treatment of the minor.   Gilma told the social worker that mother had coached the minor to lie.

Adjudication Hearing

At the February 20, 2009, adjudication hearing, the juvenile court sustained the section 300 petition, as amended, pursuant to subdivisions (a), (b), and (g).  The juvenile court declared the minor a dependent of the court, removed custody of the minor from mother, and ordered the minor suitably placed.   The juvenile court ordered reunification services for mother, ordered her to have monitored visitation, with DCFS discretion to liberalize her visits.   The juvenile court admonished mother that there was to be no discussion of the case with the minor.   The juvenile court also ordered that the minor receive individual counseling, and that mother and the minor receive conjoint counseling upon the recommendation of the minor's therapist.   At mother's counsel's request, the juvenile court set a progress hearing as well as a section 366.21, subdivision (e), review hearing.

Section 387 Petition

On April 29, 2009, DCFS filed a section 387 petition after Gilma asked that the minor be replaced.   Gilma cited her health, and stated that the minor's placement in her home had caused problems with her husband and extended family.   Gilma also mentioned the minor's tantrums, but noted that there had been no tantrums in the prior two weeks.   Mother did not object to the minor be placed elsewhere.   The minor was placed in the foster home of Hilda D. (Hilda).

Interim Review Report

By May 21, 2009, DCFS was recommending that family reunification services continue and that mother have overnight visits with the minor.   The conjoint therapist, Dr. Hector Brito, believed that more counseling was needed to ensure the minor's safety.   He believed that mother demonstrated a willingness to protect the minor and did not believe that mother would return to Rene. He observed strong bonding between mother and the minor.   Mother was described as cooperative, willing to learn, and was benefitting from her participation.   She demonstrated an awareness of domestic violence and sex abuse prevention.

DCFS reported that mother was in compliance with the court-ordered programs and counseling, and that conjoint counseling with the minor recently had begun on May 13, 2009.   Mother had completed parenting education, had been participating in domestic violence counseling since January 15, 2009, and had started individual counseling on March 13, 2009.   The minor had been participating in individual counseling since the same date.

Mother's visits were liberalized to unmonitored on April 21, 2009, to take place for four hours on Saturdays and Sundays.   Mother had recently asked to change her visits to one eight-hour visit on Sunday.   DCFS assessed her home for overnight visits and found the home to be appropriate.

Progress Hearing

At the May 21, 2009, progress hearing, the juvenile court granted DCFS discretion to bring the matter back to court to request a home-of-parent order when the conjoint therapist believed that mother and the minor were ready.   The juvenile court permitted overnight visits to begin.   The minor continued to say that she loved mother and wanted to live with mother.

Section 366.21, subdivision (e ), Report

For the July 16, 2009, hearing, DCFS reported that mother was in compliance with the case plan.   Dr. Brito stated that mother and the minor had made substantial progress in addressing outstanding issues, mother seemed to understand the issues regarding domestic violence, sexual abuse, and prevention, and observed that they showed a positive parent-child relationship.

Mother had been having weekly overnight visits with the minor, and both enjoyed those visits.   DCFS reported that mother appeared to be closely bonded with the minor.   Mother had expressed missing the minor and wanted the minor returned to her custody.   The minor often told the social worker that she was happy in her placement, but she wanted to return to mother, whom she missed.

Last Minute Information

In a last minute information, DCFS expressed concerns regarding a statement made by the minor on July 15, 2009:  “There are things that I can not tell you because my mom says that if I do you are not going to let me return home.”   She also made statements regarding financial problems that mother was experiencing, the shortage of food, and having to sleep on the floor “because there are animals in the bed.”   The foster mother took the minor to the doctor because she returned from visits with mother with several insect bites.   The minor also told the foster mother that she had seen “her dad” (presumably meaning Rene), but that mother told her that if she said anything, she would be taken to a foster home where she would be “bit.”

In attached transcriptions of the social worker's interviews with the minor, the minor expressed that she loved mother and wanted to live with her.   She also said that mother told her that the court was a “liar.”   The minor said that her “fake dad,” Rene, was “bad with [her] ․ [¶] ․ he touched [her] and then [she] started to cry ․ [¶] he's bad with [her] all day.”

Section 366.21, subdivision (e ), Hearing

At the July 16, 2009, hearing, mother's counsel denied that Rene was around or that her home was inappropriate.   DCFS's counsel recommended that suitable placement be maintained because DCFS wanted to ascertain more information as it had concerns about possible contact between Rene and the minor.   Counsel also asked that mother's visits be monitored.   The minor's counsel expressed the minor's wish to return home;  according to the minor, Rene had “[n]ot been around and she wouldn't want him to be around.”   After hearing oral argument, the juvenile court reinstated monitored visits for mother and continued the matter.   The juvenile court admonished mother not to discuss the case with the minor or try to influence her.

Six-month Review Hearing

At the contested six-month review hearing on August 25, 2009, the juvenile court ordered the minor placed with mother on the condition that she maintain DCFS-approved housing.   The juvenile court asked mother if she was willing to allow DCFS to make unannounced visits to her home to make sure that no man was present;  mother agreed.   The juvenile court ordered mother not to allow any contact between the minor and Rene “at any time for any reason.  [¶] Do you understand those conditions, ma‘am?”   Mother replied that she did and she agreed to them.   The juvenile court then ordered DCFS to provide family maintenance services.   The matter was scheduled for a section 364 hearing.

Section 387 Petition

On December 9, 2009, DCFS filed a section 387 petition after it discovered that mother had been allowing Rene access to the minor by bringing her to Rene's home and staying overnight.

Mother denied that she or the minor had had contact with Rene, saying “[p]eople are just lying about us.”   Mother was uncooperative with the social worker, who asked mother not to say inappropriate things to the minor, such as “[y]ou see, they don't want you to be with your father;  [t]he old lady, Zoila[[⁵ ] caused this problem for us;  [n]ow you won't be able to see your father again.”

Mother said that the minor continued to attend counseling.   The social worker asked mother to consider the effectiveness of counseling if the minor is made to lie about her contact with Rene or coached to make certain statements.

When the social worker asked mother about the restraining order against Rene, she responded:  “Oh how you guys trouble me with this.   I don't know why you have to interfere with our lives?  ․ You guys are the one[s] hurting [the minor] because you treat her like a dog.”   The social worker asked mother to be careful with her words when speaking in front of the minor.

The social worker then advised mother that the minor would be replaced with Hilda.   When the social worker offered mother the contact information, mother refused to accept it.   The social worker left her business card with mother;  that card had the contact information.

The social worker then spoke with the minor.   She told the social worker that she and mother went to visit Rene at his home, where they usually slept.   She was scared of Rene because she did not want him to touch her “bon bon.”   Her eyes became wide and she smiled when she said that mother had left her alone with Rene and he did not touch her vagina.   That day, mother had left her alone with him while she got tamales and hot chocolate.   The minor said that Rene “touched [her] stomach but only.”   She did not ask Rene to stop because mother was taking care of her.   The minor had asked mother not to visit Rene, and, according to the minor, mother did not want to visit him either.   But he would call mother on her cell phone until she agreed.   The minor said that Rene would “get[ ] mad” if they did not go to his house.   The minor said that she did not see any physical violence but that Rene would yell at mother, which “scared [her] a little.”

Rene was “very loud” and angry with the social worker.   He said:  “Can you help us by writing a good report.   The mother made a mistake because it was my birthday.   They only came that day and for a little bit.”   He then said that mother brought the minor a “few times,” but he denied that they stayed overnight.

The social worker also spoke with Rene's two children who had been visiting with him.   They told the social worker that mother and the minor were in the home overnight on at least three occasions and had witnessed Rene rubbing the minor's stomach, hugging and kissing her, and putting his legs on top of her legs.   When Rene's daughter tried to call her mother to pick them up, Rene pulled the telephone cord out of the wall.   Their mother, Zoila, told the social worker that she and Rene separated nine years ago due to domestic violence;  she obtained a restraining order against him in 2004.   She was told by law enforcement that she should leave California.   She returned in 2005 and said that the children had only begun having contact with Rene in the last three to four weeks.

The minor informed the social worker that she wanted to be placed with her grandmother, but that mother would not allow her to do so because the grandmother did not like Rene. The minor then asked to be placed with Hilda, with whom she felt safe.   According to Hilda, mother called the minor on December 6, 2009, and a visit was arranged.   The minor told the social worker that she was doing fine in her placement, but that she wanted to live with mother.

Attached to the report was Rene's criminal history, which included multiple domestic violence convictions.

Hearing

At the hearing on December 9, 2009, the juvenile court detained the minor and ordered that mother's visits be monitored at the DCFS office.   It again ordered that there be no contact between the minor and Rene. It reiterated its prior order that mother not speak with the minor about the case or try to influence her statements.   Mother indicated that she understood.   Last, the juvenile court stated that mother had “consistently violate[d] court orders” and warned her that it would no longer tolerate such violations.   Again mother indicated her understanding.   The juvenile court ordered the minor to participate in play therapy.

Section 387 Jurisdiction/Disposition Report

In its December 31, 2009, section 387 jurisdiction/disposition report, DCFS reported that the minor had talked about how she and mother “[s]ometimes” went to Rene's apartment because mother cleaned the apartments there.   She said that they went to his home for his birthday and that they slept on the floor while Rene slept on the couch.   Rene's children slept in his room.   She stated:  “I see them [Rene's children] sometimes when they visit Rene․  Rene doesn't come to my mom's house because there are cameras there and he doesn't like them.   There are no cameras at Rene's house․  My mom mostly cooks at home and she takes him food because he doesn't have any food at his house.”   The minor further stated that Rene no longer “touch[es her] where [she] use[s] the bathroom.   He won't ever do it again.”   She then denied that Rene touched her stomach, saying that “he only kissed it because [she] told him that it hurt.   My mom was there and she saw that.”   The minor said that Rene kissed and hugged her because he loved her.

Mother now said that she and the minor slept at Rene's home only once, on his birthday, and that there was only one other additional contact with him.   Mother stated that she never left the minor alone with Rene. The social worker noted that mother historically denied knowing where Rene was.

Rene's daughter told the social worker that the minor was “always there.”   She had seen the minor on Rene's lap and he was touching her stomach.   The daughter said that the minor, Rene, and mother all slept in the same bed with the minor between the adults.   Rene's son denied seeing Rene touch the minor inappropriately.   Zoila relayed her children's statements that they always saw the minor at Rene's home when they visited.

DCFS contacted Gilma as a possible placement for the minor.   She said that she would need to speak with her husband and would think about providing permanency for the minor if mother failed to reunify with her.

Meanwhile, the minor was developing age-appropriately.

Mother's monitored visits with the minor were reportedly going well.   She brought gifts for the minor and interacted appropriately.

Status Review Report

On January 27, 2010, DCFS reported that the minor was happy and had been referred for counseling.   Mother continued to have one hour monitored visits at the DCFS office.   Mother brought food, clothing, and toys for the minor.   Mother and the minor were affectionate, and the visits went well.   The minor liked the visits.   The minor told the social worker that she wanted to return to mother or be placed with Hilda.   Mother also wanted the minor placed with Hilda rather than her own family.   The minor's current foster mother, Maila S. (Maila),⁶ reported that the minor was well and happy at her new school.

Amendment of Section 387 Petition

On February 8, 2010, the section 387 petition was amended by agreement, and the petition was sustained.   The juvenile court terminated reunification services on March 8, 2010, and set the matter for a section 366.26 hearing to select a permanent plan for the minor.   Mother's visits were to continue to be supervised.

Section 366.26 Hearing

On April 5, 2010, DCFS reported that an adoptive family had not yet been identified as (1) Maila had indicated that she was not interested in adoption, and (2) mother's relatives said that they could not adopt the minor due to personal problems.   The minor was referred to the Placement and Recruitment Unit to locate an adoptive home.

On July 1, 2010, DCFS submitted its section 366.26 report, reflecting that Maila and her husband had decided that they wanted to adopt the minor.   Maila told the social worker on April 21, 2010, that she could not bear it if the minor were removed from them and wished to proceed with adoption.   The minor had been in their home since December 7, 2009.   Maila wanted the minor to have a sense of belonging.   She also stated that she would continue contact with mother as long as the contact remained appropriate and did not detrimentally affect the minor.

Meanwhile, the minor was developing age-appropriately.   She was doing well in school and had shown leadership skills.   The minor got along well with the children in her home and school.   She liked to read and participate in outdoor activities, and she was helpful around the home and market.

The minor liked living with her caretakers, but also expressed her wish to be returned to mother.   DCFS reported that the minor had mixed feelings about adoption.   She told the social worker that God wanted all children to live with their parents.   Mother had told her this, although it was unclear when mother made this statement.   The minor also seemed to realize that she may not be able to return home, saying that perhaps the judge would let her return to mother when she turned 18 years old.

The minor was receiving counseling through Star View Community Services and was making good progress.   Maila was actively involved with the counseling sessions as well.   The sessions would be addressing the issues of adoption and loss.   Although Maila earlier had reported that the minor had been aggressive with other children at school, the minor's therapist stated that the minor had made progress in her communication and positive social interaction skills.

Mother continued to visit the minor without incident.   She told the social worker in June 2010 that she was participating in individual counseling and wanted the minor returned to her.

DCFS commented that the minor was “highly adoptable,” noting her age and ability to attach to others.   The minor was doing well in her placement, and her caretakers were committed to providing her with a permanent, stable home.   They had provided for all the minor's needs.   Accordingly, DCFS recommended that parental rights be terminated and a plan of adoption be implemented.

At the hearing, mother's counsel asked that the section 366.26 hearing be set for contest and that she be provided with DCFS's delivered service logs (the Title XX's) dating back to the time of the minor's second removal from mother.   The juvenile court granted both requests.

Last Minute Information

On August 31, 2010, DCFS reported that Maila remained committed to adopting her and to maintaining contact with mother.   A few outstanding items needed to be completed in the adoption packet.

That same day, DCFS submitted to the juvenile court a June 14, 2010, progress letter from mother's individual therapist, Dolores Villanueva (Villanueva).   While mother had been attending therapy regularly, Villanueva observed that mother was attending only because it was court-ordered;  she “ultimately [did] not feel that she [needed] to” attend.   Moreover, mother “appear[ed] to minimize and dismiss the eminent danger she remains in.”   Mother “demonstrated limited insight into the effects of domestic violence on children.”   And, mother “struggle[d] to take accountability for her actions.”   Villanueva concluded that mother had “significant gains to make in treatment in order to be able to provide a safe environment for her and others.”

For the August 31, 2010, hearing, DCFS submitted its Title XX's, which included the following entries from December 5, 2009, through July 26, 2010.   Those entries reiterated much of the information summarized above.

Contested Section 366.26 Hearing

At the hearing on August 31, 2010, mother testified that she visited the minor more often than when she had been placed with Gilma.   When the minor was removed from her a second time, mother visited her for one hour per week at the DCFS office.   Mother described the minor as happy when she arrived for the visits, as she would run to her and hug and kiss her.   During the visits, mother played with the minor, hugged and kissed her, and told her that she loved her.   While the minor was returned to her from August to December 2009, mother described their relationship as “very good.”   During that time, mother played with the minor and taught her what she knew of reading and writing.

Mother had asked for more visits, but Maila told her that the judge had given mother only one hour.   She visited the minor for one hour at a McDonald's restaurant.   During those visits, mother bought breakfast for the minor, and they played together.   Mother would hold the minor and “you know, spend time with her.”   When the visits ended, mother stated that the minor's face became sad.

Mother denied that she was still in a relationship with Rene.

The social worker answered the juvenile court's question about the number of foster children in Maila's home, stating that the minor was the only child in the home at that time.   She also clarified that Maila and her husband had separated, but remained living in the same home.   The social worker believed that the plan was for both Maila and her husband to adopt the minor, but she was not entirely certain.

Following the close of evidence, counsel presented their arguments.   In response to express inquiries by the juvenile court, the minor's counsel stated that she had spoken with the minor, who loved mother, but counsel believed that the benefit of adoption outweighed any detriment of terminating parental rights.   Mother's counsel and counsel for DCFS presented their arguments as well.   In particular, mother argued that the parental benefit exception to the termination of parental rights (§ 366.26, subd. (c)(1)(B)(i)) applied.

Ultimately, the juvenile court found by clear and convincing evidence that the minor was adoptable.   It stated that while mother's evidence showed that there was a bond between mother and the minor, the juvenile court still had to “balance the competing interest, and since mother's visitation was restricted to one hour per week, I haven't heard any evidence that has detrimentally [a]ffected the child.   I cannot make a finding that it would be so detrimental to the child to terminate parental rights that it would outweigh the benefit of permanency.”   The juvenile court concluded that mother had not met her burden of proof to show that the section 366.26, subdivision (c)(1)(B)(i) exception applied and terminated parental rights.

Mother's timely appeal ensued.

DISCUSSION

I. Substantial Evidence Supports the Juvenile Court's Finding that the Minor was Likely to be Adopted

At the section 366.26 hearing, the juvenile court's task is to select and implement a permanent plan for the dependent child.   When there is no probability of reunification with a parent, adoption is the preferred permanent plan. (§ 366.26, subd. (b)(1);  In re Marina S. (2005) 132 Cal.App.4th 158, 164.)   If the juvenile court finds by clear and convincing evidence that a child is likely to be adopted, the juvenile court must terminate parental rights, unless one of several statutory exceptions applies. (§ 366.26, subd. (c)(1);  In re Marina S., supra, at p. 164.)

In general, “[i]n making the determination of adoptability, the juvenile court ‘must focus on the child, and whether the child's age, physical condition, and emotional state may make it difficult to find an adoptive family.’  [Citation.]”  (In re I.W. (2009) 180 Cal.App.4th 1517, 1526.)   There are two alternative methods to demonstrate adoptability.   A child is considered “generally” adoptable when the child's personal characteristics—such as “ ‘[a] child's young age, good physical and emotional health, intellectual growth and ability to develop interpersonal relationships' ” (ibid.)—are sufficiently appealing that an adoptive family likely will be located in a reasonable time, regardless of whether a prospective adoptive family has yet been found.   In contrast, a child is considered “specifically” adoptable when a specific prospective adoptive family is interested in adopting the child, but it might be difficult to locate other prospective adoptive families because, for example, the child is part of a sibling group, or has a physical or mental disability requiring a high level of care, or is relatively old.   Such a child is likely to be adopted in a reasonable time only because a specific adoptive family has committed to adoption.  (Ibid.;  see also In re Carl R. (2005) 128 Cal.App.4th 1051, 1060–1061;  In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649–1650.)

When a child is considered specifically adoptable, the judicial inquiry “shifts from evaluating the characteristics of the child to whether there is any legal impediment to the prospective adoptive parent's adoption and whether he or she is able to meet the needs of the child.  [Citation.]”  (In re Helen W. (2007) 150 Cal.App.4th 71, 80;  see also In re I.W., supra, 180 Cal.App.4th at p. 526.)   Such an inquiry is necessary because, if the adoptive parent cannot legally adopt or cannot care for a child with special needs, the juvenile court cannot find that the child is likely to be adopted in a reasonable time.  (See, e.g., In re Carl R., supra, 128 Cal.App.4th at pp.   1061–1062;  In re Sarah M., supra, 22 Cal.App.4th at p. 1650.)   Such an inquiry is limited, however, because “[i]f an inquiry into the suitability of prospective adoptive parents were permitted at the section 366.26 hearing, many hearings would degenerate into subjective attacks on those prospective adoptive parents—a result not envisioned by the statutory scheme.   [Citation.]  Those types of inquiries might also discourage people from seeking to adopt, a result that would contravene the strong public policy favoring adoption.”  (In re Carl R., supra, 128 Cal.App.4th at pp.   1061–1062.)

We review the juvenile court's finding that the child was adoptable under the substantial evidence rule.  “On appeal, we view the evidence in the light most favorable to the trial court's order, drawing every reasonable inference and resolving all conflicts in support of the judgment.  [Citation.]  An appellate court does not reweigh the evidence.  [Citation.]  Rather, we must determine whether there is substantial evidence from which a reasonable trier of fact could by clear and convincing evidence find a factual basis for the finding as to the child's adoptability.  [Citation.]”  (In re Marina S., supra, 132 Cal.App.4th at p. 165;  accord, In re R.C. (2008) 169 Cal.App.4th 486, 491.)

In the juvenile court, DCFS bore the burden to establish that the child was likely to be adopted;  on appeal, mother bears the burden to show there was no substantial evidence to support the juvenile court's finding.  (In re R.C., supra, 169 Cal.App.4th at p. 491;  In re Thomas R. (2006) 145 Cal.App.4th 726, 731.)

Under the generally adoptable method, we conclude that substantial evidence supports the juvenile court's finding that the minor was likely to be adopted.⁷  The minor was described as a happy, bright, articulate young girl who was developing age appropriately.   She enjoys reading and outside activities.   She got along well with other children at school, and was student of the month.   She had adjusted well to her placement with Maila;  she got along with other children at home and was helpful around the home.   Taken together, this evidence supports the juvenile court's finding that the minor was highly adoptable.⁸

The cases cited in mother's appellate brief are readily distinguishable.   In In re Brandon T. (2008) 164 Cal.App.4th 1400, the Court of Appeal concluded that the combination of the child's mental and physical delays coupled with the ICWA ⁹ placement preferences rendered the child not generally adoptable.   (In re Brandon T., at p. 1409.)   In In re Jayson T. (2002) 97 Cal.App.4th 75, overruled on other grounds in In re Zeth S. (2003) 31 Cal.4th 396, 414, the Court of Appeal was presented with a procedural conundrum;  after the juvenile court terminated a mother's parental rights to her two sons because an adoptive placement appeared to have been working out and while her appeal was pending, the prospective adoptive parents returned the two boys to a children's home because they believed that at least one of the boys suffered from reactive attachment disorder.  (In re Jayson T., supra, at pp. 77, 81–83.)   Thus, the Court of Appeal reversed the order terminating parental rights and remanded the matter for an updated review hearing to determine whether the children were still adoptable in light of the newly discovered evidence.  (Id. at p. 77.)   And, in In re Asia L. (2003) 107 Cal.App.4th 498, the Court of Appeal reversed a finding that three children were adoptable.  (Id. at p. 503.)   Regarding two of the children, “their emotional and psychological development present[ed] a potential obstacle to adoption.”  (Id. at p. 512.)   After all, their developmental issues would require specialized placement, which was not at least initially available within Contra Costa County (where the case was pending), and there was no evidence that the approved adoptive families were willing to adopt children with the “development problems” faced by those two children.  (Ibid.) Weaker still was the finding of adoptability regarding the third sibling, Joel, because there was no evidence “that there were approved families interested in adopting a child similar to Joel.” (Ibid.) The Contra County Department of Social Services's representation that it was “confident” that an adoptive home could be located was insufficient.   (Ibid.)

Those issues are not present in the instant case.   At most, the minor behaved like a child typical of her age.   Sometimes she did not listen.   Other behaviors existed at the onset of these dependency proceedings, but seemed to have been resolved in therapy.   For example, in January 2009, a multidisciplinary assessment team summary report indicated that the minor “often loses temper, argues with adults, refuses to comply with adults' requests and rules, blames other for her mistakes, easily annoyed by others, and is irritable.   The child often throw[s] temper tantrums when she does not get her wants met.”   Yet, later in the proceedings, the minor was described as happy and agreeable;  she had “positively progressed towards completion of her goals” in therapy.   While it was also reported that the minor “has a history of lying,” the same report indicated that the minor had been “coached” by mother.   Furthermore, although Maila had “previously” advised the therapist that the minor was aggressive with children at school, “[t]he therapist reported that during therapy [the minor was] increasing her ability to communicate her feelings and increasing her positive social interaction with peers.”   In fact, at least one report confirmed that the minor got along well with children at school.   In short, the minor does not have the sort of “mental or emotional problems as well as behavioral issues” that would preclude adoption.

Mother further contends that because the “[minor's] behavior was so troublesome, her own aunt could not handle her frequent tantrums and remained firm in a decision to have the child removed from her care.”   Mother's argument does not paint a complete picture.   Rather, Gilma (the minor's aunt) asked to have the minor removed from her home because mother was confrontational and problematic, because of her own health problems, and because caring for the minor caused problems with extended family members and her husband.   While Gilma reported that the minor did have “frequent tantrums,” that was not the only reason she wanted the minor removed from her care.

Next, mother asserts that the minor was not adoptable because “the social worker had a difficult time finding a prospective adoptive placement for her.”   The evidence indicates otherwise.   Initially, in April 2010, Maila indicated that she was not interested in adopting the minor.   But, after the minor had been living with her for some time, Maila became “very motivated to adopt” the minor as “she could not [bear] to have [her] removed.”   Maila wanted to give the minor “a sense of belonging.”   She “loves [her] and wants her to have a stable life where she will grow and develop without having concern of abuse.”   It follows that we reject mother's claim that DCFS had a difficult time locating a prospective adoptive placement for the minor.

Finally, mother claims that instability in the foster home ¹⁰ precluded a finding that the minor was specifically adoptable.   In light of the evidence presented above, we readily conclude that the minor was generally adoptable;  this argument offered by mother is therefore moot.¹¹

II. Substantial Evidence Supports the Juvenile Court's Finding that the Beneficial Exception to Termination of Parental Rights did not Apply

As set forth above, section 366.26 directs the juvenile court in selecting and implementing a permanent plan for a dependent child, and the legislative preference is for adoption.  (In re Celine R. (2003) 31 Cal.4th 45, 53 [“if the child is adoptable ․ adoption is the norm”].)   When the juvenile court finds by clear and convincing evidence that the child is likely to be adopted, the statute mandates judicial termination of parental rights unless the parent opposing termination can demonstrate one of the six enumerated exceptions applies. (§ 366.26, subd. (c)(1)(B);  In re Celine R., supra, at p. 53 [“court must order adoption and its necessary consequence, termination of parental rights, unless one of the specific circumstances provides a compelling reason for finding that termination of parental rights would be detrimental to the child”].)

To satisfy the parent-child exception to termination of parental rights in section 366.26, subdivision (c)(1)(B)(i), a parent must prove he or she has “maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i);  see In re Derek W. (1999) 73 Cal.App.4th 823, 826 [“parent has the burden to show that the statutory exception applies”].)   The “benefit” prong of the exception requires the parent to prove his or her relationship with the child “promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents.”   (In re Autumn H. (1994) 27 Cal.App.4th 567, 575 [“the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer”].)   No matter how loving and frequent the contact, and notwithstanding the existence of an “emotional bond” with the child, “the parents must show that they occupy ‘a parental role’ in the child's life.”  (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108;  In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418–1419.)   The relationship that gives rise to this exception to the statutory preference for adoption “characteristically aris[es] from day-to-day interaction, companionship and shared experiences.   Day-to-day contact is not necessarily required, although it is typical in a parent-child relationship.”   (In re Casey D. (1999) 70 Cal.App.4th 38, 51.)

Moreover, “[b]ecause a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child's needs, it is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement.”  (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)

A court may consider the relationship between a parent and a child in the context of a dependency setting, e.g., amount of visitation permitted, whether the parent was ever the child's primary caretaker.  (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1537–1538.)   But the overriding concern is whether the benefit gained by continuing the relationship between the biological parent and the child outweighs the benefit conferred by adoption.  (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1155–1156;  In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

Ample evidence supports the juvenile court's finding that this exception to termination of parental rights did not apply.   The evidence showed that mother visited regularly;  that the minor loves mother, was happy to see her, seemed sad when the visits ended;  and that during the visits, the two played together while mother hugged and kissed her daughter.   But this evidence does not promote the minor's well-being to such a degree as to outweigh the well-being she would gain in a permanent home with new, adoptive parents.   Indeed, despite being in therapy since April 2010, mother never told her therapist that the minor had been removed from her care as a result of sexual abuse and that that was the reason for the minor's second removal.   While going through the motions of therapy because it was court-ordered, mother failed to see how her actions placed the minor at risk;  mother had little insight into the impact of domestic violence upon the minor and she ultimately did not believe that she needed any counseling.

In fact, mother would manipulate and coach the minor to say certain things and not say other things.   She caused commotion and instability in the minor's placement with Gilma.   Mother did not look first to protect the minor.   Rather, she focused on maintaining her relationship with Rene, who violently beat her, threatened to kill her, and molested her daughter.   Despite all the admonishments by the juvenile court, mother proceeded to expose her daughter to this man and then told her not to tell anyone.   This is not a beneficial relationship.

Mother's reliance upon In re Amber M. (2002) 103 Cal.App.4th 681 is misplaced.   In that case, not only was there evidence that the mother maintained regular visitation and contact, but there also was evidence from a psychologist, who concluded that severing the parent-child relationship would be detrimental to the children.  (Id. at p. 689.)   There is no such evidence here.

Likewise, this case is also distinguishable from In re Scott B. (2010) 188 Cal.App.4th 452.   In that case, the Court of Appeal reversed an order terminating the mother's parental rights, finding that the parent-child relationship exception applied.  (Id. at pp.   454–455.)   But, the child in that case was older than the minor here, and he had spent nearly all of his life living with his mother.  (Id. at p. 471.)   The court appointed special advocate stated in her reports that the mother and child had a very close relationship, and concluded that it would have been detrimental to the child for that relationship to be disrupted.  (Ibid.) Their relationship “coupled with [the child's] continued emotional instability and his repeated insistence that his preference would be to live with [his mother] present[ed] a compelling reason for finding that termination of parental rights [was] detrimental to [that child].”  (Ibid.)

Those extreme facts are not present here.   Admittedly, there was evidence that the minor wanted to return to mother.   But, “the preference of a minor child is not determinative of his or her best interests.”  (In re Michael D. (1996) 51 Cal.App.4th 1074, 1087.)   And, there also was evidence that she was happy in her current placement.

Finally, we are not convinced by mother's reliance upon In re Jerome D. (2000) 84 Cal.App.4th 1200.   In that case, like In re Scott B., supra, 188 Cal.App.4th 452, the child was nearly nine years old, and a psychologist had opined that if the mother's relationship with her son were terminated, the child could suffer emotionally and experience behavioral difficulties.  (In re Jerome D., supra, at p. 1207.)   He had been having unsupervised overnight visits with his mother.  (Ibid.) Additionally, the child appeared to be the “ ‘odd child out’ ” in his prospective adoptive home, particularly as compared with the happiness and sense of belonging he felt while with his mother.   (Id. at pp.   1206–1207.)   Those factors are not present here.

DISPOSITION

The juvenile court's findings and order are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

ASHMANN–GERST

We concur:

FOOTNOTES

FN1. All further statutory references are to the Welfare and Institutions Code unless otherwise indicated..  FN1. All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

FN2. The minor's father, Fabian A., remained whereabouts unknown throughout the proceedings..  FN2. The minor's father, Fabian A., remained whereabouts unknown throughout the proceedings.

FN3. Mother denied this charge, and the juvenile court dismissed the count..  FN3. Mother denied this charge, and the juvenile court dismissed the count.

FN4. Although the juvenile court's minute order indicates that the minor was detained with her paternal aunt, it appears from the appellate record that Gilma is actually the minor's maternal aunt..  FN4. Although the juvenile court's minute order indicates that the minor was detained with her paternal aunt, it appears from the appellate record that Gilma is actually the minor's maternal aunt.

FN5. Zoila F. (Zoila) is the mother of Rene's children..  FN5. Zoila F. (Zoila) is the mother of Rene's children.

FN6. Maila is later identified as Maria S..  FN6. Maila is later identified as Maria S.

FN7. We note that mother did not raise this argument in the juvenile court and that it could be deemed forfeited on appeal.  (In re Carrie W. (2003) 110 Cal.App.4th 746, 755.).  FN7. We note that mother did not raise this argument in the juvenile court and that it could be deemed forfeited on appeal.  (In re Carrie W. (2003) 110 Cal.App.4th 746, 755.)

FN8. In so concluding, we do not hold that only a mental health diagnosis would preclude a finding of general adoptability, as suggested in mother's reply brief..  FN8. In so concluding, we do not hold that only a mental health diagnosis would preclude a finding of general adoptability, as suggested in mother's reply brief.

FN9. Indian Child Welfare Act..  FN9. Indian Child Welfare Act.

FN10. Mother directs us to evidence that Maila and her husband were separating and it was unclear who was adopting the minor.   Mother also refers us to an unsubstantiated child abuse referral against Maila..  FN10. Mother directs us to evidence that Maila and her husband were separating and it was unclear who was adopting the minor.   Mother also refers us to an unsubstantiated child abuse referral against Maila.

FN11. Thus, In re Valerie W. (2008) 162 Cal.App.4th 1, 15–16, upon which mother heavily relies in her reply brief, is distinguishable.   The minor here is not adoptable solely because Maila has indicated her willingness to adopt her..  FN11. Thus, In re Valerie W. (2008) 162 Cal.App.4th 1, 15–16, upon which mother heavily relies in her reply brief, is distinguishable.   The minor here is not adoptable solely because Maila has indicated her willingness to adopt her.

_, P.J. BOREN _, J. DOI TODD