ALDRICH, J.
Rebecca J. and S. J. appeal from the orders of the juvenile court terminating their parental rights to daughters Madison (8 years) and Leah (3 years) and denying their petitions for modification. (Welf. & Inst. Code, §§ 388 & 366.26.)
Madison and Leah were detained from their parents' custody in December 2008 after their three-month-old brother died. An autopsy revealed that the baby had sustained a physical injury to his head before death. He also had a three-to-four-week old fracture of the clavicle and six healing rib fractures. The coroner stated that the rib fractures were the type that are caused by squeezing a baby, and there were imprints of the fingers that had done the squeezing. The radiologist concluded that these injuries were consistent with child abuse and were more than likely not accidental. The parents refused to be interviewed by the dependency investigator.
The paternal grandmother believed mother was capable of hurting the children. She described an event in which mother had thrown a telephone book at the grandmother's head causing a laceration. Mother used to kick father, hit him on the head with a closed fist, and tell him she would kill him if he left her.
Madison reported that her parents spanked her on her arms and legs when she was bad. Madison's teacher stated that the child was late for school every day or every other day and had a number of unexcused absences. Sometimes she wore the same clothes two days in a row. Madison would not speak in kindergarten. When the school offered to obtain special services for Madison, mother refused and never returned to the school. Madison appeared to her teacher to be scared. The child had no friends in elementary school, never asked for help, and never raised her hand. She would just sit and stare, showing little emotion.
Madison was extremely shy and appeared uncomfortable when the children's social worker attempted to interview her in May 2009. The child cried when the social worker asked to speak to her in private, even after learning that the social worker only wanted to make sure Madison was safe, healthy, and happy. The following month, the social worker again found Madison upset and crying. Madison did not respond to the social worker, remaining close to mother. Mother said she did not know why the child was crying.
After removing the girls from the parents, the Department of Children and Family Services (Department) placed them with an aunt and soon replaced them to the home of Harry and Michelle T. where they remained throughout the dependency. The parents knew the T.s from church and requested the girls be placed in the T.'s care. There, the girls appeared happy and well adjusted. Five days after arrival at the T.s, Madison met the social worker at the door smiling and engaged, and asked if she could show the social worker her new bedroom. Madison reported being happy living with Michelle and Harry because the house was clean and comfortable, had plenty of food, and Michelle listened to Madison who felt safe. The social worker also found Leah in a good mood, smiling, and engaging in age-appropriate play at the T.'s house. Asked why she was sad before, Madison responded she was afraid the social worker would take her away. Madison stated she did not want to return to the aunt's home because the aunt's boyfriend spanked Leah causing Leah to be sad or cry. Michelle reported that Madison was doing very well and had had no time-outs for over three weeks. Madison and Leah called the T.s "mom" and "dad".
The parents submitted on the petition. The juvenile court declared the children dependents of the court pursuant to section 300, subdivisions (a) and (b) based on the petition's allegations that the baby sustained old fractures to the ribs, abrasions behind each ear, swelling to the soft spot on the top of his head, which injuries are consistent with inflicted trauma and child abuse. The baby's injuries and death while in the parents' care endangers the physical and emotional well being of the girls. The court ordered the children removed from their parents' custody.
As for the disposition plan, the juvenile court ordered on May 8, 2009 that the parents complete a 20-week parenting program, to undergo separate 52-week anger management programs, and to participate in individual counseling with a licensed therapist experienced in child abuse to address, inter alia, the events leading to the baby's death. The parents had already received referrals for programs from the Department and had entered a 20-week parenting program. The court ordered Madison to undergo individual counseling to address the baby's death and the parents' use of corporal punishment. The court established monitored visits for the parents and children, and gave the Department discretion to liberalize the visits.
Pursuant to juvenile court order, a psychologist evaluated the family (Evid. Code, § 730) and submitted his report in the summer of 2009 as the children were being moved to the T.'s house. He found the children well behaved and fairly happy, were developing on course, and did not seem to have major problems or difficulties. After observing the children interacting with the parents for 25 minutes, the psychologist found the girls to be happy to see their parents. It was clear to the psychologist that the children and parents enjoyed being with one another, had a good relationship, and were bonded. Madison stated she preferred to be with her parents.
The psychologist found mother, "somewhat less affected by her son's death than most parents" the psychologist had seen. (Italics added.) With respect to whether the parents were amenable to treatment, the psychologist opined that although the parents appeared to be cooperating, they are "fairly rigid, non-insightful, defensive individuals, who have a marked propensity to view and interpret everything in terms of religion, and as such, are really not very good treatment candidates." (Italics added.)
The Department provided the parents with referrals for employment, low income housing, and family shelter programs and transportation aid.
The parents completed parenting education by the spring of 2009. Mother's participation in anger management classes was erratic. Her coordinator reported that mother acted as if she were "living in a wonderful world and that everything is okay" and recommended continuing until mother felt comfortable enough to "self disclose." By early 2010, in group sessions, mother was reserved, did not participate, and did not focus on her own behavior. When she spoke, it was about how other peoples' behavior affected her chances of reunification. Mother attended half of her counseling sessions. Her therapist reported that therapy addressed issues of grief and loss, family dynamics, and mother's own history of child abuse. Mother continued to deny knowing how the baby sustained his injuries or died.
Father's participation in his case plan was also inconsistent, having appeared at two-thirds of his anger management sessions and later missed nearly half of his sessions. But when he did appear, father's attitude was positive and he appeared willing to learn and use the group effectively to discuss the loss of his son. Father had not acknowledged that either he or mother was responsible for the baby's injuries or death. Father missed nearly half of his individual therapy sessions. Father explained to his therapist that he was tired and felt "overwhelmed."
The parents' visitation with the children was inconsistent from July 2009 through October 2009. Mother blamed father for the lack of visits. Visits were monitored throughout the dependency.
The parents explained his sporadic visits resulted from the T.'s requirement that visits occur during the parents' work hours. Michelle disputed this, explaining the parents were irresponsible, did not arrive on time, and tried to visit after the children's bedtime. The court set a visitation schedule to avoid confusion, after which mother attended every one of the 12 visits planned from November 24, 2009 through January 3, 2010. Father attended three.
During visits, father interacted in an age-appropriate manner and listened to the children. Early on, mother was inappropriate with Madison, "informing Madison about things that are `sexy' and `hot' and speaking negatively about father . . . in the [children's] presence[.]"
The parents separated in late 2009. Father said he could no longer take mother's attitude. However, they reunited within a week. Then, on December 22, father reported to the Department that mother had assaulted him. Father wanted to meet to discuss mother's behaviors. Although mother had always been aggressive, father explained, this was her most severe conduct. Father's therapist was unsure whether the separation was father's attempt to appear to be turning on mother or a ploy to regain custody individually and then reunite once the case was closed.
The Department recommended termination of reunification services because the parents had only partially complied with their case plans and neither parent was using anger management or therapy to address the issues that brought them to the Department's attention. The Department also suspected that the recent parental conflict was a ploy.
The juvenile court terminated reunification services on January 15, 2010 and set the section 366.26 hearing for May 14, 2010.
Six months after the juvenile court set the section 366.26 hearing, both parents individually filed section 388 petitions for modification, both asking for return of the children to his or her individual custody, or in the alternative, an order for six more months of reunification services. In her petition, mother alleged that since termination of services, she "continued to attend" individual counseling and anger management sessions. (Italics added.) Mother alleged that the change of order would be in the children's best interest because the girls enjoyed visits with her, were attached to her, and would be able to maintain family ties and form and continue a relationship with mother. The petition also described two visits observed by mother's attorney's investigator. The court scheduled a hearing.
Three months after the juvenile court terminated reunification services, the children's therapist reported a reduction in symptoms and behavior problems in Leah. The child had more spontaneous speech and play. She was developing an appropriate attachment to Harry and Michelle and called them "momma" and "daddy". The therapist described two April 2010 incidents involving Leah that were important. During both incidents, Leah demonstrated an exaggerated response, which response is "often seen in children with a history of physical abuse and/or exposure to interpersonal violence," the therapist explained.
Madison continued to make progress in behavior at home. She was doing well in school and was socially active. As therapy increasingly focused on the events and themes leading to her placement in foster care, Madison's "symptoms of anxiety and associated behaviors . . . including nightmares, stomach aches, and increased clinginess" resurfaced for about three days after a treatment session and after visits from her parents. Michelle reported an "increase in behavior problems with Madison following her visitations with her birth family, lasting from a few hours to a day." (Italics added.) Madison also had nightmares the night of the visit. The child soiled herself in school after one visit. The therapist described a session in which Madison was asked to draw a picture of family members or people to whom she felt connected. The child drew the T.s, herself, and Leah. Asked if there were other people to whom she felt connection and might want to include, "Madison froze and stared blankly for a few moments." The therapist explained that this response indicated the child's "conflicted and confused feelings about the traumatic events and the need to continue treatment . . . ." The therapist recommended that the children remain in their placement and continue therapy. She also recommended that visits with the parents remain monitored by a "child welfare or mental health professional with at least a master's degree." The therapist also advised, if reunification became likely, that (1) the parents participate in therapy with the children's therapist and a family therapist when appropriate, (2) family preservation or other services be instituted, and (3) an Evidence Code section 730 evaluation be made to "thoroughly evaluate both/either birth parents' ability to appropriately raise their children in a respectful and nurturing manner so that Leah and Madison can maintain the significant progress already achieved and continue to develop to their potential."
The social worker reported that the girls loved living with and had bonded with Harry and Michelle. Madison stated she wanted to live with mother, but if she could not, then she wanted to stay with the T.s. Michelle and Harry were committed to adopting the girls.
In advance of the hearing on the section 388 petitions, father's therapist reported father had missed five consecutive sessions since early May 2010. In sessions, designed to address the sustained allegations of the petition, father tended to avoid talking about the allegations even as he was determined to comply with the case plan. Father struggled with consistent attendance in anger management. In the sessions he did attend, father was progressing satisfactorily. Father visited the children regularly once a week, but failed to appear nine times in six months.
Mother continued to miss anger management sessions. In therapy, mother grieved the loss of her son but did not address how he suffered his injuries. Mother twice canceled visits with the children and was usually 15 to 30 minutes late for visits. She had not telephoned the children since early February 2010. In April 2010, mother threatened Leah with corporal punishment for failing to follow directions, triggering one of the exaggerated responses described above.
At the hearing on the section 388 petitions, the children's social worker opined that there had been no change in father's situation since the beginning of the case and it was in the best interests of the children to be adopted by Harry and Michelle. The social worker testified that mother was mostly appropriate during the visits that the social worker monitored, with the exception of two occasions. The social worker observed that the children enjoyed being with mother. She did not believe the children should be returned to the parents' custody because the parents had not addressed the issues that brought them to the Department's attention in the first place, and had not complied with the court's disposition orders. Also, recently mother had told Leah that the child needed a spanking.
The juvenile court denied both section 388 petitions, finding that the parents had not shown a change of circumstance, and had offered no evidence about what was in the children's best interest.
Turning to the section 366.26 hearing, the juvenile court stated that the parents had essentially regular and ongoing visits with the children. However, the court found, although the parents were working on the issues that led to the dependency, that they had not really begun to address their problems. Also, the court found that the benefit the children received from continued monitored visits was far outweighed by the benefit they would receive from a permanent home through adoption. The court terminated parental rights and designated Michelle and Harry as prospective adoptive parents. The parents filed timely notices of appeal.
Mother assigns as juvenile court error: (1) the denial of her section 388 petition;
Section 388 allows a parent to petition the court for a hearing to modify or set aside any previous order on the grounds of change of circumstance or new evidence, such that the proposed change would be in the child's best interest.
In ruling on a section 388 petition, the juvenile court's task is to determine whether the petitioner, mother here, demonstrated by a preponderance of the evidence "that [(1)] there is a change of circumstances or new evidence, and [(2)] the proposed modification is in the minor's best interests. [Citations.]" (In re S.M. (2004) 118 Cal.App.4th 1108, 1119, italics added; citing In re Jasmon O. (1994) 8 Cal.4th 398, 415.) That is, "[i]t is not enough for a parent to show just a genuine change of circumstances under the statute. The parent must show that the undoing of the prior order would be in the best interests of the child. [Citation.]" (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.)
A petition under section 388 is addressed to the juvenile court's sound discretion and on appeal, we will disturb the decision only on a clear abuse of that discretion. (In re Jasmon O., supra, 8 Cal.4th at p. 415.) "`"[`]The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.'" [Citation.]' [Citations.]" (In re Alexandria M. (2007) 156 Cal.App.4th 1088, 1095-1096.)
With respect to the first prong of the test, mother's petition asserted as changed circumstances that mother "continued to attend individual counseling to address the case issues. Mother also continues to attend anger management." However, mother's "continued" participation in the court ordered programs constitutes part of the record, not a changed circumstance.
On appeal, mother asserts as additional changes in circumstances that she (1) separated from father, (2) obtained a license and employment, (3) maintained a stable job and housing, and (4) regularly visited the girls and continued participating in her case plan. We note, the first three of these circumstances were not alleged in mother's section 388 petition. More important, however, "[n]ot every change in circumstance can justify modification of a prior order. The change in circumstances must relate to the purpose of the order and be such that the modification of the prior order is appropriate. [Citation.]" (In re S.R. (2009) 173 Cal.App.4th 864, 870, citing In re Daijah T. (2000) 83 Cal.App.4th 666, 674 [changes in parental circumstances which make reunification desirable may justify modification of an order terminating services.].) Mother made no showing how the first three changes she asserts on appeal concerning her separation from father, employment, and housing, while possibly constructive, are related to the reasons for the order removing the girls from the parents' care in the first place, namely the parents' failure to protect the baby from the injuries he sustained.
Mother argues, where the doctors could not determine the cause of the baby's death, that it was unreasonable for the Department and the juvenile court to expect mother know the cause. But, mother is not expected to determine what caused the baby's death. Rather, mother must, through therapy, come to understand that as the parent, she was responsible for assuring that her three-month-old baby would not sustain six fractured ribs, a fractured clavicle, and head injuries. The problem was not that the parents denied wrongdoing; it is their failure to understand that they, as the parents, were responsible for protecting the infant from physical harm of this magnitude. The psychological evaluator found mother to be less affected by her baby's death than most parents. As late as June 16, 2010, mother's therapist reported, "[t]here is still no progress in addressing the allegations of the death of her son . . . ." Without that insight, the juvenile court was justified in concluding Madison and Leah would remain at risk of harm in mother's care.
More important, apart from failing to carry her burden to demonstrate a change in circumstances, mother has not demonstrated how resumption of services or returning the children to her care would be in the children's best interest. The section 388 petition was filed just short of six months after reunification services were terminated. "After the termination of reunification services, a parent's interest in the care, custody and companionship of the child is no longer paramount. [Citation.] Rather, at this point, the focus shifts to the needs of the child for permanency and stability. [Citation.]" (In re Angel B. (2002) 97 Cal.App.4th 454, 464.) "[O]n the eve of the section 366.26 permanency planning hearing — the children's interest in stability was the court's foremost concern and outweighed any interest in reunification. [Citation.]" (In re Edward H. (1996) 43 Cal.App.4th 584, 594.) "In fact, there is a rebuttable presumption that continued foster care is in the best interest of the child [citation]; such presumption obviously applies with even greater strength when the permanent plan is adoption rather than foster care. A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, what is in the best interest of the child. [Citation.]" (In re Angel B., supra, at p. 464.) Where mother has (1) not complied with her case plan, (2) failed to regularly visit the children in the first year after the children were detained, (3) not begun to address the cause of the dependency in therapy or in anger management, and (4) never commenced therapy with the girls, the prospect of an additional six months of reunification simply would not have promoted stability for the girls and therefore would not be in their best interests. (In re Edward H., supra, at p. 594; accord In re Angel B., supra, at pp. 464-465.) The juvenile court did not err.
The parents contend that the juvenile court's finding that the children are adoptable was not supported by substantial evidence. " `The sole issue at the selection and implementation hearing is whether there is clear and convincing evidence that the child is adoptable. [Citations.] In resolving this issue, the court focuses on the child — whether his age, physical condition and emotional state make it difficult to find a person willing to adopt him.'" (In re Josue G. (2003) 106 Cal.App.4th 725, 733; accord In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) The juvenile court may also consider the child's progress in therapy, intellectual and academic growth, and ability to develop interpersonal relationships. (In re Sarah M., supra, at p. 1651.)
On appeal, we review the evidence in a light most favorable to the juvenile court's finding of adoptability, drawing every reasonable inference and resolving all conflicts in support of the judgment. (In re Marina S. (2005) 132 Cal.App.4th 158, 165.) We do not reweigh the evidence. (Ibid.) Our task is to "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." (Ibid.)
The parents first contend there was no evidence the children were likely to be adopted because, citing section 366.26, subdivision (h)(1), the juvenile court failed to consider Madison's wishes to return to mother's custody and hence, her "wishes against adoption." Section 366.26 subdivision (h)(1) mandates that "[a]t all proceedings under this section, the court shall consider the wishes of the child and shall act in the best interests of the child." However, the child's wishes are not relevant to her adoptability. As our Supreme Court explained, the issue of adoptability focuses on whether the children's age, physical condition, and emotional state make it difficult to find a person willing to adopt them. (In re Zeth S. (2003) 31 Cal.4th 396, 406.) "All that is required is clear and convincing evidence of the likelihood that adoption will be realized within a reasonable time. [Citation.]" (Ibid., italics added.)
Here, the record contains ample evidence that Madison and Leah will be adopted within a reasonable time. The girls are very young and are in good physical health. They "appear to be happy and well adjusted[.]" Madison is doing well in school, is socially active, and performs at grade level. In April 2010, her teachers reported no academic problems or behavioral concerns. Leah is not yet school age, but her speech and behavior improved with her foster parents, and she is developing an "appropriate attachment" with her current caregivers. The children were making progress in therapy focusing on specific traumatic experiences. Thus, there is nothing about their age, physical condition or emotional state that would make it difficult to find someone willing to adopt them. (In re Josue G., supra, 106 Cal.App.4th at p. 733.) This record contains ample evidence of the children's' personal characteristics along with the Department's findings that they are adoptable such that there was sufficient evidence to support the juvenile court's finding by clear and convincing evidence that Madison and Leah are adoptable.
In support of her argument the girls are not adoptable, mother reasons that in her care, Madison was a "perfectly healthy little girl" whereas in the T.s' care, the girls'"ever increasing behavioral issues" require "trauma therapy" and Michelle and Harry are apparently unable to deal with the children's behaviors without the parents' intervention. Mother's spin of the facts is wholly unsupported by the record. To the contrary, most of the children's "behavioral issues" preceded their removal from mother's and father's home. Before their removal from the parents' care, her teacher described Madison as a scared child who wore dirty clothing to school, did not speak, and had no friends. The social worker found her to be extremely shy, uncomfortable, and upset. By contrast, only days after moving into the T.s' house Madison began to smile and become engaged, and Leah began to talk. Almost immediately after being placed with the T.s, the girls appeared to be happy, well adjusted, and engaged. After termination of services, Leah's behavioral symptoms diminished and Madison was doing well in school and was socially active. Mother also mischaracterizes the record when she suggests that Madison's behavioral issues are caused by the T.s. Rather, reviewing the report from Madison's therapist, it states that Madison's symptoms resurfaced for about three days after a treatment session which increasingly focused on the trauma Madison experienced in mother's and father's household. Indeed, these behavior problems also followed visits with mother and father. This child's drawing underscores her conflicted feelings about her own parents. Finally, the children's therapist advised that the girls required more treatment and should only see their parents in a visit supervised by a mental health expert. Tellingly, the therapist made no recommendation that reunification would be appropriate. In no way are these children's' psychological issues evidence that they are so emotionally unstable that it would be difficult to locate a family willing to adopt. They are both making progress in therapy.
We note additionally that the T.s are constant in their desire to adopt Madison and Leah. While "it is not necessary that the minor already be in a potential adoptive home or that there be a proposed adoptive parent `waiting in the wings.' [Citations.]" (In re Sarah M., supra, 22 Cal.App.4th at p. 1649), "[u]sually, the fact that a prospective adoptive parent has expressed interest in adopting the minor 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.]" (Id. at pp. 1649-1650.) The adoptability finding was not error.
At the permanency planning hearing, the juvenile court must order one of three dispositional alternatives, adoption, guardianship, or long-term foster care. (In re S.B. (2008) 164 Cal.App.4th 289, 296-297.) The Legislature has declared a strong preference for adoption over the alternative plans if the dependent child is adoptable. (Id. at p. 297.) Thus, the statute directs, if the court finds that the child is adoptable, "the court shall terminate parental rights unless" the court "finds a compelling reason for determining that termination would be detrimental to the child due to" one of the six delineated exceptions. (§ 366.26, subd. (c)(1) & (c)(1)(B).) Thus, only if a compelling reason for applying an exception appears may the court select a plan other than adoption.
The exception to adoption on which the parents rely is that found in section 366.26, subdivision (c)(1)(B)(i), the so-called parental-relationship exception. This exception applies when the court finds that (1) "[t]he parents [or guardians] have maintained regular visitation and contact with the child and [(2)] the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) As the parents, mother and father bore the burden to show application of this exception. (In re Megan S. (2002) 104 Cal.App.4th 247, 251.)
However "[t]he juvenile court may reject the parent's claim simply by finding that the relationship maintained during visitation does not benefit the child significantly enough to outweigh the strong preference for adoption." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)
Accordingly, in applying the exception, courts "balance[] the strength and quality of the parent-child relationship in a tenuous placement against the security and sense of belonging that a stable family would confer on the child." (In re B.D. (2008) 159 Cal.App.4th 1218, 1234-1235.) This balance must be considered in the context of any limitations the juvenile court has placed on visitation. (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1537-1538.) "[I]f severing the existing parental relationship would deprive the child of `a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated.' [Citation.] In other words, if an adoptable child will not suffer great detriment by terminating parental rights, the court must select adoption as the permanency plan. (See § 366.26, subd. (c)(1).)" (In re Dakota H. (2005) 132 Cal.App.4th 212, 229, italics added; In re B.D., supra, at pp. 1234-1235.)
On appeal, "[w]e determine whether there is substantial evidence to support the court's ruling by reviewing the evidence most favorably to the prevailing party and indulging in all legitimate and reasonable inferences to uphold the court's ruling. [Citation.] The reviewing court must affirm a trial court's rejection of these exceptions if the ruling is supported by substantial evidence. [Citations.]" (In re B.D., supra, 159 Cal.App.4th at p. 1235.)
Applying these principles here, although the juvenile court may have found that the parents had what was "essentially" regular and ongoing visitation, it did not find that Madison and Leah would suffer a great detriment by terminating their parents' rights. The record supports that determination. First, as the court noted, the parents never advanced to unsupervised visits, meaning the children are not safe in the parents' care. Second, although the visits may have been regular, they were not as idyllic as the parents paint them. As late as April 2010, visits were causing the children great distress. For two days after a late April visit in which mother threatened Leah with physical discipline, the child wet her bed and hit Madison and Michelle, causing her therapist to conclude that Leah's "exaggerated response" often seen in children with a history of physical abuse and or exposure to interpersonal violence.
Third, the girls are thriving in the care of the T.s. They love living with, and are bonded with, Harry and Michelle. We have already rejected mother's suggestion that the girls' behavioral issues resulted from their placement with Harry and Michelle. It is clear that Madison has demonstrated a fierce reaction to visits with her parents and to the focus in therapy on the events that occurred in her parents' care. The girls look to the T.s, not to mother and father, for support, comforting, and security. Madison even insisted Michelle accompany her to therapy. Unlike In re Scott B. (2010) 188 Cal.App.4th 452, upon which mother relies, neither mother nor father has done what they were "supposed to do" (id. at p. 466), namely successfully address in therapy and anger management their responsibility for their own baby's death either by active harm or failure to protect him from harm perpetrated by another. Therefore, the evidence supports the juvenile court's determination that Madison and Leah would not suffer great detriment by terminating parental rights and so the court was obligated to order adoption as the permanent plan. (See § 366.26, subd. (c)(1).)
Mother argues that the juvenile court violated the doctrine of separation of powers by failing to follow the law as set forth in section 366.26. She reasons that the court believed it had to follow the Department's "determination whether the parent-child benefit exception applied unless there was a legal impediment to do[ing] so." Actually, what the court said was that it must "look[] at the evidence to see whether or not under Welfare and Institutions Code section 366.26 an exception has been shown such that the court would not follow the recommendations" of the Department. (Italics added.) This is not an incorrect statement of the court's duty. Manifestly, the Legislature has expressed its strong preference for adoption. (In re S.B., supra, 164 Cal.App.4th at p. 297; In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) "[T]o terminate parental rights, the court need only make two findings: (1) that there is clear and convincing evidence that the minor will be adopted; and (2) that there has been a previous determination that reunification services shall be terminated." (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249-250.) Once the court makes these two findings, "`the decision to terminate parental rights will be relatively automatic[.]'" (Id. at p. 250, italics added.) We have already determined that substantial evidence supports the juvenile court's finding that Madison and Leah are adoptable. The parents do not argue that the court did not terminate reunification services. Therefore, the termination of parental rights was "relatively automatic." (Id. at pp. 249-250.) As the party advocating an exception to adoption, mother then bore the burden to prove the existence of that exception. (In re Megan S., supra, 104 Cal.App.4th at p. 251.) Only if the court finds one of the statutory exceptions renders termination of parental rights detrimental to the child does the court refrain from selecting adoption as the permanent plan. The court did not make that finding. Thus, as the Department notes, the court's statements were simply another way of expressing its finding that no statutory exception to the termination of parental rights existed with the result it was required to terminate parental rights.
Finally, father contends that the juvenile court failed to obtain sufficient evidence of Madison's wishes pursuant to section 366.26, subdivision (h)(1) before terminating parental rights. Subdivision (h)(1) has been interpreted as imposing a mandatory duty on the courts to "`consider the child's wishes to the extent ascertainable' prior to entering an order terminating parental rights under section 366.26, subdivision (c). [Citation.]" (In re Leo M. (1993) 19 Cal.App.4th 1583, 1591.) Such a statement "`may take the form of direct formal testimony in court; informal direct communication with the court in chambers, on or off the record; reports prepared for the hearing; letters; telephone calls to the court; or electronic recordings.' "[Citation.]" (Ibid., fn. omitted, italics added.) Contrary to the parents' assertion, there is no requirement that the children be aware or comprehend that the proceeding is a termination action when assessing their preferences. (Id. at p. 1592.) The court in Leo M. explained, "While a direct statement of a minor's feelings regarding termination is certainly the most dispositive of the minor's wishes, it will not always be possible or in the minor's best interest to obtain such a statement. For example, some children are simply too young or too immature to understand the concept of termination of parental rights, let alone express their feelings about such a prospect, while others may be permanently and severely traumatized if asked to grapple with the possibility of severing all ties to their biological parents." (Ibid.) Leo M. concluded that "[t]he process must be sufficiently flexible to provide some accommodation to the varying circumstances that will inevitably present themselves. Therefore, we believe the decision in a termination action whether to require a direct statement from the minor regarding his/her thoughts is one that is best left to the sound discretion of the trial judge. [¶] In the event the trial court determines that it is not appropriate to obtain such a statement, it may still be possible to explore the minor's feelings regarding his/her biological parents, foster parents, and prospective adoptive parents, if any, as well as his/her current living arrangements. Where practicable and consistent with the best interests of the minor, an attempt should be made to obtain this information so that the court will have before it some evidence of the minor's feelings from which it can then infer his/her wishes regarding the issue confronting the court." (Ibid.)
Here, as mother and father acknowledge, the record contained repeated statements from Madison that she wished to live with her parents. She also stated that if it were not possible to return to her parents, she would like to remain with Michelle and Harry. Leah was simply too young to express much on the subject. These statements are understandable given the undisputed bond between parent and child. Nonetheless, although a child's statements about her desires constitute evidence that it could be in her interest to return her to her parents, "a child's wishes are not determinative of [her] best interests . . . ." (In re Aljamie D. (2000) 84 Cal.App.4th 424, 432, italics added; In re Michael D. (1996) 51 Cal.App.4th 1074, 1087.) The juvenile court had the record before it and was aware of Madison's wishes and of her behavior. The child's wishes and best interests simply do not coincide here. Clearly, the child's emotional well-being outweighs her wishes.
The orders are affirmed.
We concur:
KLEIN, P. J.
CROSKEY, J.
