HOLLENHORST, J.
Appellants T.M. (mother) and R.F. (father) have filed separate briefs regarding their children, R.F. and A.F. (the children). They each claim that the beneficial parental relationship exception applied. (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i).)
On February 19, 2014, the San Bernardino County Children and Family Services (CFS) filed separate section 300 petitions on behalf of the children. R.F. was four months old at the time and A.F. was two years old. Both petitions alleged that R.F. came within the provisions of section 300, subdivision (b) (failure to protect). A.F.'s petition additionally alleged that she came within section 300, subdivision (j) (abuse of sibling). The petitions alleged that father and mother (the parents) failed to provide for the nutritional needs of R.F., which led to him becoming a "failure to thrive" child, that they failed to provide for his medical needs in that they knew he required regular medical care but failed to provide any since birth, and that the parents engaged in domestic violence in the presence of the children.
In the detention report, the social worker reported that the children first came to CFS's attention on February 16, 2014, when the parents brought R.F. to urgent care for treatment of congestion and a cough. R.F. was diagnosed as a "failure to thrive" child because of his low weight. He also had red abrasions on his foot. Mother said that R.F. had not seen a doctor since birth (he was four months old at the time). He was transported to Loma Linda University Medical Center (Loma Linda) for specialized care. A doctor and nurse at Loma Linda both confirmed their concern for his health and safety, given that the parents did not seem to have the ability to care for him.
The social worker later interviewed father, who said that both he and mother did not work, and they lived off of aid and food stamps. Father provided the social worker with his address, and the social worker went to the home. She observed that it appeared to be a home used by "squatters." Mother said that she and father were homeless, and they were just staying in that home with friends for a few weeks. She further said that she was giving R.F. one scoop of formula per eight ounces of water due to "financial reasons." As a result, R.F. was in danger of developing excessive water in the body due to being overly hydrated. The hospital staff said that such condition could have been fatal. R.F.'s weight was below the third percentile. A.F. was also underweight and displayed behaviors consistent with global developmental delay. She had a severe diaper rash and a possible respiratory syncytial virus.
The social worker then filed an amended section 300 petition with regard to A.F. The amended petition alleged that A.F. came within section 300, subdivision (b). The petition specifically alleged that the parents failed to provide for A.F.'s nutritional needs and medical needs, they failed to provide adequate care in that they allowed her to be filthy dirty and remain in wet diapers, and that they both had a history of substance abuse.
The court held a detention hearing on February 20, 2014. A.F. was detained in foster care, and R.F. was detained at Loma Linda. The social worker was authorized to place him in an appropriate placement upon release from the hospital. The court ordered supervised visitation twice a week.
The social worker filed a jurisdiction/disposition report on March 10, 2014, recommending that reunification services be provided to the parents. The social worker reported that the parents did not seem to understand the severity of A.F.'s condition. They felt that she was a normal child; however, she was two years old and did not have the normal physical development for a child her age, could not speak at least 15 words, could not follow simple instructions, and did not display self-control. R.F. was diagnosed with respiratory problems and failure to thrive. The social worker reported that, on February 27, 2014, R.F. was discharged from Loma Linda and placed in a specialized health care needs placement, as he was determined to be medically fragile. He was placed in the home of Ms. J., who reported that he was doing well.
As to visitation, the social worker reported that the parents were having supervised visits with A.F. twice a week. The social worker stated that they needed direction and coaching during the visits to interact and engage with A.F. The social worker had to suggest to them to get down on the floor with A.F. to play, as opposed to sitting in a chair and redirecting her and constantly telling her no. The social worker opined that they were inexperienced parents who lacked parenting skills and had poor judgment. During the visits, they did not ask how the children were doing in their placements or ask questions regarding their medical care. Father and mother were never married, but were living together at the time the children were conceived and born. Furthermore, the social worker was concerned about the parents' substance abuse problems. They abused methamphetamines and had used marijuana recently.
The court held a jurisdiction/disposition hearing on March 13, 2014. It declared father the presumed father of the children. It also found that the children came within the provisions of section 300, subdivision (b), declared them dependents of the court, removed them from the parents' custody, and maintained them in foster care. The court ordered the parents to participate in reunification services and ordered supervised visitation once a week for two hours.
On May 2, 2014, A.F. was placed in the same home as R.F.
The social worker filed a six-month status review report on September 4, 2014, recommending that reunification services be continued. The social worker reported that the parents still did not have a stable home or income. Father struggled to maintain sobriety during this reporting period and agreed to attend an outpatient program. Mother was enrolled in an outpatient program and tested positive for amphetamines and marijuana. Thus, she enrolled in a residential treatment program on May 2, 2014. She completed the program on July 31, 2014. Mother also completed a parenting program on June 26, 2014.
The parents were visiting the children; however, they did not seem to grasp the fact that A.F. was developmentally delayed or that her behavior was not normal. Both parents had difficulty interacting with A.F. since she had a short attention span. The parents struggled with their visits with R.F., as well. He would cry uncontrollably during their visits. They were referred to a visitation center for interactive visits, and then R.F. stopped crying during visits and allowed mother to hold him.
The social worker reported that R.F. was no longer considered medically fragile, as he was now a healthy 11-month-old baby boy. He was beginning to verbalize.
A.F. was nonverbal and aggressive, and she frequently threw toys. She was a two-year-old who continued to wear diapers. She had a short attention span of about two minutes. She had a SART (Screening, Assessment, Referral and Treatment Program) assessment done, which concluded that she was delayed in the social and sensory domains. She also appeared to have cognitive delays.
The court held a six-month review hearing on September 15, 2014. It continued reunification services and ordered supervised visits once a week for four hours.
On February 27, 2015, the court granted the current caregiver de facto parent status, at her request.
The social worker filed a 12-month status review report on February 25, 2015, and recommended that the parents' reunification services be terminated and a section 366.26 hearing be set. The parents had completed their case plans, except their life skills class. The social worker noted that she provided the parents with a copy of the Inland Regional Center (IRC) report on A.F., and they appeared to be in shock over A.F.'s diagnosis of autism. The parents lived with a friend, but they would not give the address and said they would not feel comfortable having the children live there. They were still looking for jobs. The social worker opined that the parents had the ability to complete their classes; however, they were not able to complete tasks without direction. The social worker opined that the parents would not be able to care for both children, especially A.F. They had been visiting the children, but many times said they felt exhausted after the visits. They would bring snacks and took turns interacting with the children. The visitation coach provided the parents constant input with their actions.
The social worker further reported that A.F. was assessed through IRC, which determined that she was developmentally between the ages of 8 and 16 months. She was diagnosed by a psychologist as autistic and mentally retarded. She was bonded with her current caregiver, as was R.F. The caregiver continued to provide a loving home for the children and was able to meet their medical and physical needs. She was willing to adopt both children.
The court held a contested 12-month review hearing on March 19, 2015, and noted the social worker had changed her recommendations. Accordingly, the court continued the parents' services and ordered visits to be twice a week for two hours each. The social worker was authorized to liberalize visits when appropriate.
The social worker filed an 18-month status review report on August 11, 2015, recommending that the parents' reunification services be terminated, that a section 366.26 hearing be set, and that adoption be the permanent plan. The parents were still living with their friend, who was reportedly using methamphetamines. Father was employed for three months, but was laid off and looking for work again. The social worker noted that both parents still did not seem to understand the severity of A.F.'s diagnosis and the complex care she required. They said they did research on the internet and did not believe she had autism. R.F. was undergoing testing at IRC to determine his diagnosis. He was healthy but appeared to not be on track developmentally.
The parents were visiting the children. Father missed visits while he was working, but mother continued to come. She struggled with being able to spend time with both children and required the assistance of the visitation coach. At times, she became frustrated changing A.F.'s diapers and putting her shoes on.
The court held a hearing on September 4, 2015, and found that the parents failed to make substantive progress in their case plans and that there was not a substantial probability of returning the children within the statutory timeframe. The court terminated reunification services and set a section 366.26 hearing.
The social worker filed a section 366.26 hearing report on December 29, 2015, recommending that parental rights be terminated and the permanent plan of adoption be implemented. The social worker reported that the children were still living with Ms. J., the prospective adoptive mother (PAM), who was providing a loving, stable, permanent home and was motivated to adopt them. R.F. had lived with her since February 2014, and A.F. had lived with her since May 2014. She was a certified foster parent. She was described as a stable and well-established single mother. The children had adjusted well to her home and were accepted as part of the family. They had a mutual attachment with her. The social worker noted that R.F. would cry for the PAM to carry him and to have his needs met. If she walked out of his sight, he would cry until she was within sight again. The PAM had extended family members who were very supportive of the adoption and would continue to assist with childcare. She had a fiancé who had initiated a background check with the foster agency, and the results were pending. He did not live in the home or have unsupervised contact with the children. The PAM was committed to raising the children to adulthood.
The social worker further reported that R.F. was healthy, but was developmentally delayed in speech and fine and gross motor skills.
The court held a contested section 366.26 hearing on February 3, 2016. Father testified at the hearing and said that during visits he ran around and played with the children, that he and mother took turns changing diapers, and that he would sometimes need to redirect A.F.'s behavior. He said the children would get clingy and want him to hold them, and that lately R.F. would start to cry at the end of visits.
After hearing father's testimony and closing arguments, the court noted that it was clear the parents loved the children, and there was mutual affection. However, it found that the children were adoptable, both specifically and generally. It further found that there was no exception to the preference for adoption that was applicable. The court stated that, while there was a bond between the parents and the children, it was not a parental bond, such that the children would be greatly harm if it were severed. The court noted that both children had specific needs and the PAM was "doing a really good job in making sure those needs [were] met." The court then found clear and convincing evidence that the children would be adopted. It terminated parental rights and set adoption as the permanent plan.
Mother and father each contend that the court erred in not applying the beneficial parental relationship exception under section 366.26, subdivision (c)(1)(B)(i). We disagree.
At a section 366.26 hearing, the court determines a permanent plan of care for a dependent child. (In re Casey D. (1999) 70 Cal.App.4th 38, 50.) Adoption is the permanent plan preferred by the Legislature. (In re Celine R. (2003) 31 Cal.4th 45, 53.) If the court finds that a child may not be returned to his or her parents and is likely to be adopted, it must select adoption as the permanent plan, unless it finds a compelling reason for determining that termination of parental rights would be detrimental to the child under one of the exceptions set forth in section 366.26, subdivision (c)(1)(B). One such exception is the beneficial parental relationship exception set forth in section 366.26, subdivision (c)(1)(B)(i). (See In re Jerome D. (2000) 84 Cal.App.4th 1200, 1206.) This exception applies when the parents "have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) The phrase "`benefit from continuing the . . . relationship' "refers to a parent/child relationship that "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 other words, 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. If severing the natural parent/child 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." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H).) It is the parent's burden to show that the beneficial parental relationship exception applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1345.)
"There is some dispute about the precise standard of review that applies to an appellate challenge to a juvenile court ruling rejecting a claim that one of the adoption exceptions applies." (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314.) However, "[s]ince the proponent of the exception bears the burden of producing evidence of the existence of a beneficial parental or sibling relationship, which is a factual issue, the substantial evidence standard of review is the appropriate one to apply to this component of the juvenile court's determination." (Id. at p. 1314.) "On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order." (Autumn H., supra, 27 Cal.App.4th at p. 576.)
In support of her position, mother asserts that she had regular and consistent visits with the children. She further claims that the children would benefit from continuing their relationship with her and that they would be "`greatly harmed' if deprived of their substantial, positive, parental relationship with [her]." The evidence she points to is that she "diligently fulfilled her parental responsibility by meeting her case plan objectives," she "showed her willingness to have custody by successfully addressing her drug abuse," and she regularly visited the children. Mother further asserts that she and father acted responsibly in disclosing that they did not have an appropriate home for the children, that she applied the parenting skills she had learned and showed "great progress" at visits, that she and father took turns caring for each child, that they changed diapers and brought healthy snacks to visits, and that R.F. started to call her "mama." Mother additionally points out that she and father were the children's primary caregivers before they were removed, that she received prenatal care for both of them, and that she ensured that A.F. was immunized. Finally, she asserts that, after four months of visits, the court increased the duration of the visits, that the social worker observed that she and father engaged with the children "in a positive manner," that they were responsive to guidance from visitation and life skills coaches, and that R.F. sometimes cried at the end of visits.
Almost all the evidence mother points to demonstrate actions she took with regard to the children and/or this dependency. However, she has not necessarily discussed her relationships with the children, with the exception of her interactions with them during visits (e.g., changing diapers and bringing snacks). Furthermore, mother's interactions with the children do not even begin to demonstrate that her relationship with them promoted their well-being "to such a degree as to outweigh the well-being the child[ren] would gain in a permanent home with new, adoptive parents." (Autumn H., supra, 27 Cal.App.4th at p. 575.) She has not proffered any evidence to support a finding that the children had a "substantial, positive emotional attachment [with her] such that [they] would be greatly harmed" if the relationships were severed. (Ibid.) To the contrary, the record shows that mother had a difficult time interacting with the children. The social worker stated that the parents needed direction and coaching during the visits to interact and engage with A.F. She had to suggest to them to get down on the floor with A.F. to play, as opposed to sitting in a chair, redirecting her, and constantly telling her no. Moreover, mother struggled with being able to spend time with both children, when father did not attend visits. She required the assistance of the visitation coach. At times, she became frustrated changing A.F.'s diapers and putting her shoes on. The parents also struggled with their visits with R.F. The social worker observed that he would cry uncontrollably with them. Although mother claims the visits improved over time, by the time of the section 366.26 hearing, the social worker reported that the parents exhibited "a low frustration tolerance," and that mother struggled with being able to attend to the needs of both children and easily became upset. In light of this evidence, it is difficult to conclude that either child had a positive, emotional, or beneficial relationship with mother.
In support of his position, father claims that he maintained regular and frequent visitation with the children. However, the record shows that he missed several visits, albeit because he was working. He further points to his own testimony as evidence that the children loved to be around him, be carried by him, and have fun with him. He asserts that he changed diapers and took the opportunity to "be as parental as he could to his children during the limited visits." He also states that R.F. occasionally called him "daddy." Similar to mother, father's interactions with the children do not demonstrate that his relationship with them promoted their well-being "to such a degree as to outweigh the well-being the child[ren] would gain in a permanent home with new, adoptive parents." (Autumn H., supra, 27 Cal.App.4th at p. 575.) He also has not proffered any evidence to support a finding that the children had a "substantial, positive emotional attachment [with him] such that [they] would be greatly harmed" if the relationships were severed. (Ibid.)
In contrast, the evidence showed that the children and the PAM had a strong mutual attachment. By the time of the section 366.26 hearing, both children had lived with her for nearly two years. They had adjusted well to her home and were accepted as part of her family. R.F. called her "mom." The PAM loved the children and was meeting all of their needs. They were thriving in her care. She wanted to provide a stable, permanent home for them and was committed to raising them to adulthood.
In light of this evidence, we conclude that the beneficial parental relationship exception under section 366.26, subdivision (c)(1)(B)(i), did not apply here.
Father contends that the juvenile court erred in determining that the children were generally adoptable due to R.F.'s developmental delays and A.F.'s autism and mental retardation. He also argues that the children were not specifically adoptable because the PAM's fiancé's background check was still pending. Mother simply joins in father's argument. We hold that substantial evidence supported the juvenile court's adoptability finding.
The juvenile court cannot terminate parental rights unless it finds by clear and convincing evidence "that it is likely the child will be adopted. . . ." (§ 366.26, subd. (c)(1).) "Review of a determination of adoptability is limited to whether those findings are supported by substantial evidence." (In re Carl R. (2005) 128 Cal.App.4th 1051, 1061.) "[W]e 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.]" (In re Marina S. (2005) 132 Cal.App.4th 158, 165 (Marina S.).)
In reviewing the juvenile court's finding that the children were adoptable, both generally and specifically, we first explain the roles of specific and general adoptability in the adoptability calculus. Specific adoptability bears on general adoptability and the likelihood of being adopted, but is not determinative. "`The issue of adoptability . . . focuses on the minor, e.g., whether the minor's age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor. [Citations.]'" (In re Zeth S. (2003) 31 Cal.4th 396, 406 (Zeth S.).) "`"Usually, 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."'" (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1562 (Gregory A.).)
General adoptability bears on the ultimate question whether the child is likely to be adopted (§ 366.26, subd. (c)(1)), but likewise is not determinative. "[T]he law does not require a juvenile court to find a dependent child `generally adoptable' before terminating parental rights. All that is required is clear and convincing evidence of the likelihood that the dependent child will be adopted within a reasonable time. [Citations.] The likelihood of adoptability may be satisfied by a showing that a child is generally adoptable, that is, independent of whether there is a prospective adoptive family `"`waiting in the wings.'"'" (In re A.A. (2008) 167 Cal.App.4th 1292, 1313 (A.A.).)
Here, regardless of what may be said about R.F.'s developmental delays and A.F.'s autism and mental retardation, substantial evidence supports the juvenile court's finding that the children were generally and specifically adoptable and were likely to be adopted in a reasonable time. The PAM was willing and waiting to adopt the children, so they were specifically adoptable. There was also evidence that the children were generally adoptable. A finding that a child is adoptable implies that "the child's health, age, development, personality, and personal characteristics make the child a likely candidate for adoption." (In re Cory M. (1992) 2 Cal.App.4th 935, 951, superseded by statute on other grounds, as stated in In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1347.) Although there is no question that the children suffered from mental issues and developmental delays, they were young and in good health. At the time of the section 366.26 hearing, A.F. was about four years old and was continually showing signs of improvement. She had started preschool through IRC in March 2015 and started becoming more social, as a result. Although she had a rough first week, she adjusted well to being in a classroom with other children. By January 2016, the social worker reported that A.F. enjoyed her teachers and classmates. R.F. was about two years old and had learned to walk independently. He could say a few words, and he called the PAM "mom." In addition, there is no doubt that the PAM was willing to adopt the children. Their specific adoptability supported the juvenile court's finding that they were generally adoptable.
Father asserts that the court's finding that the children were generally adoptable was not supported by clear and convincing evidence, since CFS did not "identify a single other family that was willing to adopt the children if Ms. J. could not do so." However, "[t]he likelihood of adoptability may be satisfied by a showing that a child is generally adoptable, that is, independent of whether there is a prospective adoptive family `"`waiting in the wings.'"'" (A.A., supra, 167 Cal.App.4th at p. 1313, italics omitted.) 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."'" (Gregory A., supra, 126 Cal.App.4th at p. 1562.)
Regarding specific adoptability, father contends that "there was affirmative evidence of a legal impediment to adoption." He identifies the legal impediment as being that the PAM's fiancé's "criminal and child abuse background checks were not completed nor cleared" and states that the court should have deferred the adoptability finding until he was cleared. Father claims that "there must be at least a preliminary assessment of all adults living or frequenting the home and having frequent contact with the children." First, father failed to raise a question regarding any legal impediment to adoption by the PAM below. Having not raised a legal impediment question in the juvenile court, he failed to properly preserve his dispute over a possible legal impediment for appellate purposes. (In re G.M. (2010) 181 Cal.App.4th 552, 563-564.) Second, the case that father cites, In re Diana G. (1992) 10 Cal.App.4th 1468, 1481 (Diana G.), does not support his proposition. Rather, Diana G. discusses the requirement that the preliminary adoption assessment report include an assessment of the eligibility "any identified prospective adoptive parent or guardian." (Id. at p. 1481.) The PAM's fiancé is not the prospective adoptive parent. Father further cites Health and Safety Code section 1522, which requires a criminal records check for anyone applying for a certificate of approval of a foster family home. (Health & Saf. Code, § 1522, subd. (a).) Subdivision (b) requires criminal record checks for anyone living in a certified family home or who provides care. Here, the PAM has been certified as the foster parent, and her fiancé does not live in the home or have any unsupervised contact with the children. In any event, there is nothing in the record to indicate that the fiancé had any criminal background or child abuse history.
Viewing the evidence in the light most favorable to the juvenile court's order, as we must, we conclude that substantial evidence showed the children were likely to be adopted. (See Marina S., supra, 132 Cal.App.4th at p. 165; A.A., supra, 167 Cal.App.4th at p. 1313.)
The court's orders are affirmed.
