In re Cali S. CA1/2

Filed 8/29/14 In re Cali S. CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

In re CALI S. et al., Persons Coming Under
the Juvenile Court Law.

CONTRA COSTA COUNTY CHILDREN
AND FAMILY SERVICES BUREAU,
Plaintiff and Respondent, A140514
v.
(Contra Costa County
RAY S., Super. Ct. Nos. J11-01741, J11-01742,
Defendants and Appellants. J13-00509)

CONTRA COSTA COUNTY CHILDREN A140702
AND FAMILY SERVICES BUREAU,
(Contra Costa County
Plaintiff and Respondent, Super. Ct. Nos. J11-01741, J11-01742,
v. J13-00509)
ROSE W.,
Defendants and Appellants.

On December 11, 2013, the Contra Costa Juvenile Court terminated the parental
rights of Ray S. and Rose W. as to three dependent daughters, the oldest aged six years
and five months, and the youngest 19 months. On these consolidated appeals, both Rose
and Ray contend that no substantial evidence supports the court’s finding that the

1
children were adoptable. Rose further contends that the same lack of evidence infects the
court’s determination that Rose failed to establish that termination of her parental rights
as to the eldest daughter would destroy the mother-daughter relationship that was
beneficial to the daughter. We conclude that these contentions are without merit, and
affirm both orders.
BACKGROUND
The dependencies were initiated in January 2012 when respondent Contra Costa
County Children and Family Services Bureau filed petitions in which it was alleged that
the two older children (J. and Cali) came within the scope of Welfare and Institutions
Code1 section 300, subdivision (b) by reason of Rose and Ray each having “a serious and
chronic substance abuse problem,” and Rose additionally having “an ongoing issue of
domestic violence with the father.” Both children were detained the next day. Neither
Rose nor Ray contested the allegations of the petitions, which were sustained in February
2012. The following month the two children were declared dependents, placed in foster
care, and provided reunification services.
The unreported six-month review was held in November 2012. The case worker
advised the court that “Both parents completed their [residential treatment] programs
(both had ninety day stays) and have since found housing together. Ms. [W.] gave birth
to a baby girl [in May] and the couple with the baby is now living in Pleasant Hill. The
other two children are in foster care in Contra Costa County.” “Ms. [W.] would like to
have her children returned to her care, but more work needs to be completed for relapse
prevention. She completed her parenting classes during her residential treatment
program. . . . [¶] . . . [¶] Ms. [W.] has provided negative [drug] tests consistently and has
been informed that there cannot be missed tests.” All of Ray’s drug tests so far had been
negative, but he had missed some, and “he has been told that he should not miss any
more.” Both Rose and Ray were told that they must “successfully . . . complete an

1
Subsequent statutory references are to this Code unless otherwise indicated.

2
outpatient substance abuse treatment program,” that they must test drug-free for six
months, and that a missed test “will be considered positive.”
The caseworker also reported that the oldest child, J., “has had a difficult time
with the separation from her mother and because her previous foster placement had not
obtained therapy for her even though they had been instructed to do so, the current
caregiver will be taking care of that when she can get an appointment.”
The caseworker assessed the situation as follows: “It would be easy to say that
this couple are doing everything by the book and return their children to them at this
time, but the fact is, that they need much more focus on staying on track with their
sobriety which means that they cannot miss tests and they have to get to more meetings
than feels comfortable or that they feel that they need. Both parents have completed
other programs and have relapsed in the past and although they are not looking to blame
others for their using, they have got to find the right tools that work for them consistently
and that they will make them part of their lifestyle. . . . [¶] It would be naïve to believe
that parents with a history of recovery and relapse will not be challenged to choose a
different path even though they may fervently wish that it would just happen by some
lucky chance. Sobriety is hard work and these parents, although they are on the right
track at the moment, really have to prove that they are up to the challenge because of
their history and more importantly, because they have these very young children.
Relapse prevention is a must for both of these parents and they do need some extra time
in order for that to become part and parcel of their daily lives.”
In keeping with that evaluation, the caseworker recommended that reunification
services continue to be provided, and that the two children continue as dependents and in
foster care. The court accepted these recommendations.
On April 29, the court was about to hold the 12-month review when respondent
filed a petition in which it was alleged that the newest daughter, C., should also be made
a dependent because each parent “has a serious and chronic substance abuse problem,” as
evidenced by positive drug tests and missed tests that counted as positive tests. A new
basis for dependency jurisdiction was that, under subdivision (j) of section 300, “The

3
child’s sibling has been placed at risk and there is a substantial risk that the child will be
neglected.” C. was immediately detained.
Also at the April 29 hearing, in view of this latest development, respondent
withdrew its recommendation that the two older children be returned to their parents’
custody, and asked that all three children be considered together. Noting that the
youngest child was less than 12 months old, and that the older daughters had been
dependents for 16 months, and thus “the clock has already run” for them, the court
declared itself “very concerned about these children.” With counsel for Rose advising
the court that jurisdiction for the youngest child would not be contested, all parties agreed
for the next hearing to be expedited to May 13.
On May 13, both parents submitted on the issue of jurisdiction, and waived their
“right to appeal a finding of jurisdiction,” whereupon the petition concerning C. was
sustained. The court made it clear to the parents that matters were coming to a head: “I
am going to hold you to the timing, assuming I grant you reunification services to six
months. This has gone on way too long as it relates to [the older children]. And I will
not hesitate at the end of that time period to terminate services so that the Court can make
a long-term placement for these children. It is in their best interest to have a stable and
safe environment, whether it’s with you or someone else. . . . [¶] . . . [T]he train is
leaving the station, and you’re either on it or you’re off it.”
Respondent was initially inclined to recommend a final six months of reunification
services,2 but both Rose and Ray repeatedly tested positive for amphetamine and
methamphetamine in April and May, causing respondent to adopt a new approach: “The
parents have exhausted the 18 month reunification period, and the Bureau respectfully
recommends setting the 366.26 hearing to establish a permanent plan” for the two older
children. July 18 was set as a combined hearing for the 18-month review of the two older
children and the dispositional hearing for the youngest.

2
Which had in fact already been mostly provided. The additional six-month
period would end on June 29.

4
 By the time of the hearing the court had received a disposition report in which
respondent recommended that the youngest child join her sisters as a dependent, and that
“reunification services be denied” to Rose and Ray because “the parents have relapsed
after eighteen months of services.” All three children “are placed together in a licensed
foster home in Contra Costa County.” Ray had not visited since the youngest was taken
into custody at the end of April.
The caseworker’s assessment was as follows: “After eighteen months of services,
the parents have not sufficiently addressed their serious and chronic substance abuse
which places their children at risk. Although the parents have completed numerous
treatment programs3 they have been unable to maintain sobriety. . . . [¶] The relapse
prevention recommended by the undersigned Social Worker was apparently not effective
(primarily because they failed to comply) and now these parents find themselves in the
precarious position of being at the end of the legal time frame available to have their
children returned to them. . . .
“There are some troubling aspects to all this. The oldest child misses her mother
terribly, and asks the undersigned at each meeting if she will go home soon, and of course
there is no answer that can be told to her. The two youngest children do not have that
history with their parents, and may not have memory of this time in their lives, but they
are missing that daily contact with the people who love them most of all. The parents
have said that their efforts to remain clean appeared to be of no consequence when they
were denied Family Maintenance services, and that is the rationale they used to miss tests
and ultimately begin using drugs again even though they knew that using was going to
push the limits of the time allotted to them. They never quite believed that they would
have [C.] removed from their care. The Bureau is requesting that [C.] remain out of
home, in placement with her sisters, and that no Family Reunification services be
provided to her parents . . . so that a permanent plan can be made for [C.]”

3
A total of five programs, three by Rose and two by Ray.

5
 Rose testified at the July 18 hearing that for a week she and Ray had been enrolled
in a newly-started residential treatment program. The programs and classes she was
attending without her children allowed her to “focus[] more on myself, trying to really
get to the core issue,” and to “understand my actions and why I am in this situation and
understand what needs to change in order to provide a healthy life for my children.” She
hoped to remain for at least 90 days.
Rose testified on cross-examination that, apart from marijuana, she has been
drug-free since the end of May. Rose also admitted that marijuana use counts as a
“relapse.” Asked if she and Ray had “engaged in any domestic violence in the last six
months,” she acknowledged “There has been arguments that have gotten out of hand,
yes,” the most recent being at the end of June. In the past six months, she has thrown
things at Ray “probably three or four” times under the influence of stress and
methamphetamine.
Caseworker Simone Brooks testified that Rose had made diligent efforts “to find a
residential program prior to getting into the current one she’s in.” Ray’s efforts were just
as “strident.” Brooks acknowledged that as recently as February she was recommending
that the two older children be returned to Rose and Ray, but that was before the parents
relapsed and C. was taken into custody. The relapse was “extremely important” because
of its timing—“they were so close to the end of time they had” for return of the children.
Until the relapse, Rose and Ray had been in compliance with their case plans. And it was
because of the relapse that an outpatient program was inadequate, which is why Rose and
Ray had to re-do a residential treatment program. Brooks further testified that “there are
adoptive homes available [for] a sibling group of three little girls,” but no such home has
been identified “that is willing to adopt . . . these specific three children.”
The hearing was continued to July 23, at which time Ray, like Rose, testified that
his relapse was attributable to the “overbearing” stress of “not having my children
around,” financial pressures of his underemployment and Rose’s unemployment, and
boredom. Ray believed the children “would benefit from additional time to reunify”
because “we stay in contact with the foster mom” and the children. “[T]hey ask us the

6
same question every time, ‘When can I come home? When am I coming home?’ And I
know in my heart that’s what they want. [¶] . . . [¶] . . . I’m doing everything I possibly
can to be a better person, to be a better man, to be a better father.” Ray confirmed that
“an incident of domestic violence” with Rose occurred on June 21. He and Rose are
“currently learning coping skills” to deal with their anger management problem. Ray
acknowledged he does not know all of the possible “triggers” of his drug use, but
“[t]hat’s exactly why I feel a little bit more help from the Bureau would go a long way.”
After hearing argument, the court ruled as follows:
“You know, we’re right back where we started from. It is a very sad case. We
literally are right back where we started from. The parents have admitted to some extent,
although quite frankly I find their testimony to be rather self-serving and incredible in
portions. They’ve admitted to reverting back to acts of domestic violence and drug use.
And it’s all intertwined together and that’s exactly how this case started. And I did have
an opportunity to go back and look at a transcript from the proceedings in front of the
Commissioner on November 8th of 2012 when he spent a great deal of time talking to the
parents about missed tests and the slippery slope and the excuses here and there. And he
warned the parents, the clock is ticking. Under the law you have 12 months [to reunify].
And he kept warning you that it was up to you, whether or not you are going to reunify
with your children. And he had a very straight discussion about the issues and they
continued.
“And, quite frankly, I was somewhat taken aback by Ms. Brooks’s testimony. She
was clearly emotionally invested in this case. And I can understand how that happens.
However, I think it was her emotional investment that in some ways clouded her ability
to objectively review the facts and the history in this case. And I think it was her clouded
judgment that caused her to recommend family maintenance, and she overlooked much
of the parents’ failures on that slippery slope.
“I thought Ms. Brooks was very candid and very honest. And it was clear, she
was crying from the witness stand, that she almost took it personally that these parents

7
relapsed because she had worked so hard with the parents. I think at some point her
focus was a little off focus.
“The fact that these children are not in a concurrent home troubles me because this
has been going on for so long. They should have been in concurrent placement,
especially in light of these parents’ history. And I agree there is absolutely no indication
from either parent that they understand that they are the ones who have put themselves
and their children in this position. It was not the removal of the children that caused this,
it was not the fact that it was family reunification as opposed to family maintenance that
caused this.
“You were drug addicts when you presented yourself to this Court initially and
you continue to be drug addicts and you are using drug addicts. It has nothing to do with
where these children are, whether they’re in your care or not. And, in fact, you show they
couldn’t be in your care because you continue to use drugs and engage in acts of physical
violence which creates life-long issues for children, period.
“Neither one of you when you testified showed any insight whatsoever, even
though you have purportedly been engaged in services at one point or another. There is
no insight. And why you choose to remain together to try to address these issues as
opposed to apart to see if you cannot find sobriety, learn about domestic violence, stand
on your own two feet before you attempt to stand together, I’m not sure. I wonder if
there would have been more success if you had tried that.
“But this relationship is so dysfunctional and enmeshed in domestic violence and
substance abuse, I’m not sure where one would begin to try to get you two to find
sobriety. And it’s very sad. It’s very sad for the children.
“However, given the testimony, it appears that Cali, quite frankly, does not have a
relationship with her parents. And I believe the parents pose a very serious risk to their
children, very serious. It is clear to me from all of the evidence that they are nowhere
near recovery, they are nowhere near the awareness it would take to get on that path of
recovery, such that these children could in any near date be placed safely with the
parents. And the law does not support making children wait for the parents to decide to

8
clean up their act, find sobriety and be safe with their kids. These are young children.
They deserve permanency. And if it’s not with you, then it will be with someone else
who can give them a loving, stable safe home to live in. And I simply will not agree at
this point to go right to long-term foster care for these children. I don’t believe that’s
appropriate at all.
“And again, Ms. Brooks, she was very clear in her commitment to the parents. I
want those children to be placed in a concurrent home immediately. [¶] . . .[¶] . . . They
deserve it. They’re entitled to it. And as I say, I believe it was Ms. Brooks’s somewhat
over-involvment. . . .
“And I find that Mother minimized her involvement in drugs as well. And it’s
clear by the missed test. And I know that I have warned the parents several times about
missing tests. And yet they continue to miss tests and relapse and fail, quite frankly, in
their case plans miserably.
“So for those reasons I am going to first adopt the recommendations . . . as it
relates to [J.] and Cali.”
“With respect to disposition of [C.], I am also going to follow the recommendation
in this case, given what the siblings have been through and how long they have waited
and the fact that the parents, quite frankly in the Court’s mind, are right back to where
they began, they’ve made absolutely no progress along the way here and given the
testimony as it relates to the conduct in May and June of 2013. And even after the father
left Salvation Army he admits he smoked marijuana and engaged in acts of domestic
violence. So as I say, there is absolutely no progress whatsoever. I find that it would be
clearly detrimental to make [C.] wait as her siblings waited. [¶] Rather, I think it most
appropriate to set her matter for a .26 hearing, to bypass services so that she too may find
permanence in her life.”
On November 14, Rose filed a “Request to Change Court Order,” specifically, the
July 23 order terminating reunification services and setting a permanency planning
hearing. Rose requested “resumption of reunification services and increased visitation.

9
The children to be transitioned back to Mother’s care.” The juvenile court summarily
denied the request with this order:
“Mother’s Request is DENIED for failure to state a change of circumstance. In
addition, Mother’s Request does not promote the best interest of the child.
“Mother states there is a change in circumstances because she is living in an
interfaith housing apartment complex; enrolled in an outpatient substance abuse program
October 22, 2013; has attended 17 twelve-step meetings; and obtained a sponsor on
October 15, 2013..
“At best, Mother’s Request showed changing circumstances. Mother has
previously participated in three substance abuse programs and received eighteen months
of services during [the pending] dependencies. Mother missed numerous tests, submitted
suspicious samples (low Creatinine levels), and tested positive for methamphetamine and
amphetamine on several occasions. Her recent pursuit of treatment and attendance of
12-step meetings is not sufficient to show a change in circumstances given Mother’s
long-standing substance abuse history. (Mother self-reported that she began using
methamphetamine at the age of 12.) In fact, this recent activity does not support a
finding of ‘changing’ circumstances in light of the history of this case and the issues that
brought this family before the Court.
“Finally, Mother’s Request fails to show that there is any change in circumstances
relating to issues of domestic violence. Mother has a long history of involvement in
relationships entrenched in domestic violence, including her relationship with [Ray] . . . .
According to Mother’s Exhibit A, she and [Ray] are currently living together.
“Given the ages of these children, the fact that eighteen months of services were
provided to Mother yet she failed to reunify, and the fact that all children are placed
together in a concurrent home, Mother’s Request does not promote the best interest of the
three children.

10
 “For these reasons, Mother’s Request to Change Court Order is DENIED.”4
In her “366.26 WIC Report”5 dated November 13, 2013, the new caseworker,
Anne Dimas, recommended terminating Rose and Ray’s parental rights. She concluded
that Cali and C. “are young children with sweet personalities. They are currently placed
in a concurrent foster home that is willing and able to adopt them. The children are
adoptable.” The same conclusion applied to J. She too “is an adoptable child” whom the
prospective adoptive parents were “willing to adopt.” The caseworker elaborated: “The
prospective adoptive parents are a couple in their fifties who have been married for
thirty-five years. They have five biological children, who are now adults, all of whom
live close by and are close with the prospective adoptive parents. The prospective
adoptive parents are also experienced foster and adoptive parents.” Although this couple
had only had custody of the children since October 19, they were apparently treated as
“prospective adoptive parents” because they “have a completed and approved home study
on file.”
The caseworker noted in her assessments: “The parents continue to have a
turbulent, at times, violent, relationship. The Bureau had high hopes for the parents’
reunification with the children due to the fact that they came to the Bureau seeking help,
were forthcoming about the problems that were placing the children at risk, and they
seemed very willing to engaged in services. Nonetheless, after eighteen months of
services, the parents were not able to sufficiently address their serious and chronic
substance abuse problem, or keep from engaging in further domestic violence.”
Concerning Rose and the oldest daughter: “The mother and [J.] do have a
significant parent/child relationship. [J.] has yearned for her mother during the almost
two years that she has resided in foster care. During this time the mother has visited, but
has not provided [J.] with consistent daily care. The relationship that exists between the

4
Many of these points were made in a memo opposing Rose’s request from the
caseworker to the court.
5
Actually two reports, one for J., and one for Cali and C.

11
mother and [J.] is not enough to outweigh the sense of security and belonging an adoptive
home would provide.”
With respect to the other two children: “A relationship exists between the parents
and the two children, Cali and [C.], however, it appears closer to a ‘friendly visitor’
relationship rather than a parent/child relationship. The parents have not been primary
caregivers for Cali for almost two years. At [C.]’s very young age, she has quickly
transitioned to creating a bond with whatever caregiver is providing her with daily care.
The relationship that exists between the parents and the children, Cali and [C.], does not
outweigh the benefits of legal permanency for the children.”
Because all of the children were “adoptable children who are placed in a home that
is ready and willing to adopt them,” respondent recommended “the Court terminate the
parental rights . . . and make adoption the permanent plan for the children.”
After two continuances, the permanency planning hearing for the children was
held on December 11, 2013. The hearing began with the court denying Rose’s request to
substitute new counsel, for the stated reason that “it would be detrimental to the interest
of these children to continue to further delay these proceedings.” The court then received
in evidence the two reports prepared by respondent for the hearing, (see fn. 5 and
accompanying text, ante), after which Anne Dimas, the caseworker who prepared the
reports, testified as follows:
All of the children have been in a concurrent home since October 19. All have
adjusted well to the new placement and seem happy with it. Dimas disagreed with
former caseworker Brooks’s statement in a June report that J. “misses the mother
terribly”: “[W]hen I spoke with her [J.] yesterday I asked her about whether she felt sad
about missing her mom sometimes and she said that she did. And I asked her how often
does she feel that way, and she said she feels that way about once a week. And I asked
her what she does when she feels that way. And she says that she talks to her foster mom
and that makes her feel a little bit better. It doesn’t seem like she was feeling [any]
anguish about it generally.”
This questioning followed:

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 “Q. The . . . previous social worker stated that [J.] asked her at each meeting if
she would go home soon with her mother. Has [J.] asked you that?
“A. No.
“Q. Never asked you that at all?
“A. No.
“Q. Has she told you she wants to be with her mother?
“A. No, she hasn’t used those words. She’s asked me when she was going to see
her mother a couple times.”
Dimas testified that she discussed adoption with J.: “[Y]esterday she asked me if
she’s going to be staying in the same home where she is until she’s grown up, and I said I
thought that she would and how did she feel about that. And she smiled and she said that
she felt okay about being in that home until she was grown up.” “I think she’s been
coming to understand that she’s not going to be living with her mother. And I asked her
whether she understood that, and she said that yes, she did. . . . I think that she knows
that that’s not a choice for her to live with her mom at this point. And given the choice,
given the knowledge that she cannot live with her mom, she would like to live where she
is.” Still, the relationship between Rose and J. remains “significant,” but it has “a
negative aspect to it in the sense that it’s been a source of disappointment for [J.]” Asked
“Do you think [J.] would be harmed at all if that parental relationship is terminated?”
Dimas replied: “I think [J.] is going to be harmed no matter what happens in this case.”
J.’s therapist believes “the best thing . . . at this point is to have permanency and stability
in her life.”
Dimas further testified that the relationship between Rose and the other children is
not a significant one because “they don’t see the mother as their caretaker or someone
who’s in their daily life or someone they depend on to get their needs met.” The
difference in the significance of the relationships is “due to the fact that [J.] is older than
the other children. She spent a longer part of her life being taken care of by the mother.
The little ones have lived for a much shorter percentage of their life with the mother as

13
their caretaker. And typically, younger children will bond and attach to another caregiver
more quickly . . . due to their developmental stage.”
Dimas testified Rose visits the children once a month, and the visits go well. The
children do not cry when the visits end. J. refers to Ray as her father, but Cali refers to
the current foster mother as “Mommy.” Dimas admitted on cross-examination by Ray’s
counsel that J. had stated “she liked her current foster parents but she did not want to
choose them over living with her mom,” and that the children had been in their current
placement less than 60 days.
When Rose’s counsel asked “Can you tell me exactly how old they [the foster
parents and prospective adoptive parents] are?” and whether their age warranted concern
whether they could care for Cali and C., the court sustained respondent’s relevance
objections. Rose’s counsel argued “I think it’s relevant, how old potential adoptive
parents are, whether they can take care of the children,” but the court agreed when
respondent’s counsel stated “I was looking at case law earlier today and it says it’s not.”
According to Dimas, it was Rose who told her that Ray was using drugs in
September 2013, and that “she had been using on and off since April.” C. is being
evaluated for “developmental disabilities,” but Dimas maintained her opinion that “she’s
still an adoptable child.” She reiterated that the current foster parents wish to adopt C.
The children have a “close sibling relationship.” “[T]hey are so close and connected that
it would be in the best interest to remain together.”
Rose and Ray each testified briefly. They objected to termination of their parental
rights, firmly believing that the children would benefit from continuing the relationship,
and would be harmed if it was terminated. Ray conceded the children’s “need for
stability is dire and it surpasses anything else right now . . . they feel comfortable . . .
They’re in good hands.” Ray asked for guardianship for the youngest daughter.
After hearing argument, the juvenile court ruled as follows, beginning with
whether there was an exceptional circumstance that warranted continuing reunification
services:

14
 “[T]here’s really nothing exceptional here that would persuade the Court that the
Court should delay any longer the permanency for these children. These are parents who
have been given services over a number of months. And the history of usage of drugs is
such that’s it’s clear to the Court that delaying this would not come to any different
conclusion at the end of that, other than to delay even longer for these the opportunity to
have permanency and a stable, loving safe home, which is what they deserve.
“And if you look at the statute, I have yet to find any evidence that’s been
presented here to the Court that I can find an exception. All of these children I find by
clear and convincing evidence are adoptable. And I will not speculate that there may be
evidence out there in the future that would indicate otherwise. I have to make decisions
based on what is presented to me today. . . .
“And I agree . . . that the testimony here with respect to Mr. [S.] as it relates to [J.]
is really not relevant with respect to how the Court proceeds with selecting a long-term
plan for [J.] I do find that she continues to be a person described by Welfare and
Institutions Code Section 300(b) . . . . [¶] . . . I find by clear and convincing evidence that
it is likely that she will that she be adopted.
“And I have to say, I thought Ms. Dimas’s comments were profoundly right on the
mark. Whatever happens here today [J.] is going to be very sad. And she’s going to be
sad because she loves her mom. It’s clear to me. And mom loves her. But we don’t base
our rulings limited on that love and disappointment. We have to look at her well-being
and stability and long-term care. And although she may be sad by lack of contact and
what this means today, I believe she ultimately will be very happy and that her well-being
will best be served by proceeding as recommended . . . . [¶] . . . [¶] I find that placement
of the child continues to be necessary. I find that her placement is appropriate. I find that
the permanent plan of adoption is appropriate for [J.] . . . .”
Concerning the younger children, the court ruled:
“As it relates to Cali and [C.], I hereby make the following findings: I find that
both children continue to be described by Welfare and Institutions Code Section 300(b),

15
and [C.] also is described by Welfare and Institutions Code Section 300(j). I continue
both children as dependents of the juvenile court. [¶] . . . [¶]
“I find by clear and convincing evidence that it is likely that each of the children
will be adopted. . . . [¶] I find that placement for each of these children is appropriate.
And I hereby find that the permanent plan of adoption is the appropriate plan for each of
these children.”
REVIEW
Governing Principles
“The court has four choices at the permanency planning hearing. In order of
preference the choices are: (1) terminate parental rights and order that the child be placed
for adoption (the choice the court made here); (2) identify adoption as the permanent
placement goal and require efforts to locate an appropriate adoptive family; (3) appoint a
legal guardian; or (4) order long-term foster care. (§ 366.26, subd. (b).) Whenever the
court finds ‘that it is likely the child will be adopted, the court shall terminate parental
rights and order the child placed for adoption.’ (§ 366.26, subd. (c)(1).) The
circumstance that the court has terminated reunification services provides ‘a sufficient
basis for termination of parental rights unless the court finds a compelling reason for
determining that termination would be detrimental to the child due to one or more’ of
specified circumstances. (Ibid.) The Legislature has thus determined that, where
possible, adoption is the first choice. ‘Adoption is the Legislature’s first choice because
it gives the child the best chance at [a full] emotional commitment from a responsible
caretaker.’ [Citation.]” (In re Celine R. (2003) 31 Cal.4th 45, 53.)
“In order for the court to select and implement adoption as the permanent plan, it
must find, by clear and convincing evidence, the minor will likely be adopted if parental
rights are terminated.” (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164; see
§ 366.26, subd. (c)(1).) “Although a finding of adoptability must be supported by clear
and convincing evidence, it is nevertheless a low threshold: The court must merely
determine that it is ‘likely’ that the child will be adopted within a reasonable time.” (In
re K.B. (2009) 173 Cal.App.4th 1275, 1292.)

16
 Adoptability is not necessarily a one-dimensional concept. Generally, “[t]he issue
of adoptability posed in a section 366.26 hearing focuses on the minor, e.g., whether the
minor’s age, physical condition, and emotional state make it difficult to find a person
willing to adopt the minor.” (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) It is
not necessary that the minor already be in a potential adoptive home, or that there even be
a prospective adoptive parent. (Ibid.) This is what has come to be called “general”
adoptability.
“ ‘If the child is considered generally adoptable, we do not examine the suitability
of the prospective adoptive home. [Citation.] However, where the child is deemed
adoptable based solely on the fact that a particular family is willing to adopt him or her,
the trial court must determine whether there is a legal impediment to adoption.’
[Citation.] [¶] . . . [¶] In other words, . . . ‘in some cases a minor who ordinarily might be
considered unadoptable [because of] age, poor physical health, physical disability, or
emotional instability is nonetheless likely to be adopted because a prospective adoptive
family has been identified as willing to adopt the child.’ ” (In re I.W. (2009)
180 Cal.App.4th 1517, 1526, italics added.) This is what has come to be called “specific”
adoptability.
“All that is required is clear and convincing evidence of the likelihood that
adoption will be realized within a reasonable time.” (In re Zeth S. (2003) 31 Cal.4th 396,
406.) Additionally, the prospect that the minors may have some continuing behavioral or
developmental problems does not foreclose a finding of adoptability. (See In re
Jennilee T. (1992) 3 Cal.App.4th 212, 224–225.)
Although the juvenile court must find by clear and convincing evidence that the
child is adoptable, we review a finding of adoptability for substantial evidence. (In re
D.M. (2012) 205 Cal.App.4th 283, 294, fn. 3; In re E.B. (2010) 184 Cal.App.4th 568,
578.) “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.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) “[A]n

17
appellate court does not reassess the credibility of witnesses or reweigh the evidence.
[Citation.] . . . Thus, we must uphold the juvenile court’s factual findings if there is any
substantial evidence, whether controverted or not, that supports the court’s conclusion.”
(In re S.C. (2006) 138 Cal.App.4th 396, 415.) The presence of prospective adoptive
parents is substantial evidence of adoptability. (In re Sarah M., supra, 22 Cal.App.4th
1642, 1649-1650.)
“Section 366.26 provides an exception to the general legislative preference for
adoption when ‘[t]he court finds a compelling reason for determining that termination
would be detrimental to the child’ (§ 366.26, subd. (c)(1)(B)) because ‘[t]he 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 ‘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.’ [Citations.] 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.’ [Citations.] 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.’ [Citation.] 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.’
[Citation.]” (In re K.P. (2012) 203 Cal.App.4th 614, 621.) A juvenile court’s decision
on this issue is also reviewed for substantial evidence. (In re Autumn H., supra,
27 Cal.App.4th 567, 576.)

18
 The Juvenile Court’s Finding That The Children Are
Adoptable Is Supported By Substantial Evidence

Within the context of contending that the termination orders are not supported by
substantial evidence that any of the daughters were either generally or specifically
adoptable, Ray and Rose present a number of related and overlapping arguments. They
both argue that examination as to the prospective adoptive parents was improperly halted.
Even without the information that examination would have yielded, Ray maintains there
was a patent legal impediment to the prospective adoptive parents being able to actually
adopt the children, meaning the children were not shown to be “specifically” adoptable.
And Ray attacks as “unsupported” the caseworker’s conclusion that the children were
adoptable.
This last argument implicitly recognizes that, like any testifying witness, the social
worker’s opinion would ordinarily be accepted by itself as substantial evidence. (Evid.
Code, § 411; In re Casey D. (1999) 70 Cal.App.4th 38, 53.) If Ray’s argument means to
undermine Ms. Dimas’s qualifications to offer what amounts to an expert opinion, the
point is lost for failure to object either to receipt of her reports as evidence or to challenge
her qualifications during her testimony at the termination hearing. (Evid. Code, § 353,
subd. (a); In re Jennilee T., supra, 3 Cal.App.4th 212, 222–223.)
Moreover, the caseworker did not merely proffer a naked conclusion. Her reports
discussed each child’s individual situation in detail. She testified, on direct and
cross-examination, about each child’s condition. Undoubtedly the experience of
Ms. Brooks made the court particularly disinclined to accept a caseworker’s opinion
without critical examination, yet no quibble was expressed about Ms. Dimas’s
conclusions on adoptability.
As for halting inquiry into the particulars of the prospective adoptive parents, as it
has been said before: “As the court properly ruled, questions concerning the ‘suitability’
of a prospective adoptive parent are irrelevant to the issue whether the minors are likely
to be adopted. . . . If inquiry into the suitability of prospective adoptive parents were
permitted in section 366.26 hearings, we envision that many hearings would degenerate

19
into subjective attacks on all prospective adoptive families in efforts to avoid termination
of parental rights. Such a result is not envisioned by the statutory scheme. Rather, the
question of a family’s suitability to adopt is an issue which is reserved for the subsequent
adoption proceeding.” (In re Scott M. (1993) 13 Cal.App.4th 839, 844.) On this point,
judicial agreement is virtually complete. (In re R.C. (2008) 169 Cal.App.4th 486, 494;
In re Marina S. (2005) 132 Cal.App.4th 158, 166; In re T.S. (2003) 113 Cal.App.4th
1323, 1326; In re Sarah M., supra, 22 Cal.App.4th 1642, 1650 & fn. 3) Thus, there was
no error in the court precluding inquiry into the prospective adoptive parents.
As for Ray’s argument that the foster parents do not qualify as prospective
adoptive parents because they have not met one of the statutory criteria for that status,6
the argument is misdirected and premature. It is misdirected because the designation here
appears to be an internal one by Ms. Dimas, not the judicial designation intended by the
statute, and the court made no such determination. It is premature because “the
proceeding being appealed here was merely the preliminary step to adoption, in which
parental rights were terminated and a permanent plan established. Only after this
section 366.26 hearing are the children referred to the appropriate adoption agency for
entertaining a petition for adoption.” (In re Diana G. (1992) 10 Cal.App.4th 1468,
1481-1482.)
The uncontradicted opinion and testimony of Ms. Dimas that the current foster
parents—who are fully aware of the particulars of the children’s problems and difficulties
—are willing to adopt all three amounts to substantial evidence that they were generally
and specifically adoptable. (See In re I.W., supra, 180 Cal.App.4th 1517, 1526 [“ ‘A
prospective adoptive parent’s . . . interest in adopting is evidence that the child’s age,
physical condition, mental state, and other matters relating to the child are not likely to

6
“[T]he court, at a hearing held pursuant to this section or anytime thereafter, may
designate a current caretaker as a prospective adoptive parent if the child has lived with
the caretaker for at least six months, the caretaker currently expresses a commitment to
adopt the child, and the caretaker has taken at least one step to facilitate the adoption
process.” (§ 366.26., subd. (n)(1), italics added.) There is no dispute that, at the time of
hearing, the children had not been in the current placement for six months.

20
discourage others from adopting the child.’ ”]; In re Sarah M., supra, 22 Cal.App.4th
1642, 1650 [“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.”].) If there was a legal impediment to any child’s
adoption, it was overcome by the prospective adoptive parents’ willingness to take them
all.
The Juvenile Court’s Finding That Rose Was Not
Entitled To The Beneficial Relationship Exception For J.
Is Supported By Substantial Evidence

Rose contends that hers is the “extraordinary case” where she demonstrated that
“preservation of the parent’s rights” should “prevail over the Legislature’s preference for
adoptive placement.” (In re K.P., supra, 203 Cal.App.4th 614, 621.) Respondent
appears to concede that Rose had sufficient constant visitation to satisfy the first
requirement for the beneficial relationship exception. The dispute is therefore confined
to the second requirement, the so-called “benefit” criterion.
As previously mentioned, “[t]he ‘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,’ ” and to prove this “ ‘only after the court has repeatedly
found the parent unable to meet this child’s needs.’ ” (In re K.P., supra, 203 Cal.App.4th
614, 621.) In her brief, Rose’s attorney does a commendable job of summarizing the
evidence in the record favoring Rose. But we cannot approach this issue de novo, but see
it through the lens of substantial evidence review, namely, what supports the juvenile
court’s decision. If we adopted any other attitude, we would be impermissibly
reweighing the evidence. (In re S.C., supra, 138 Cal.App.4th 396, 415.)
The correct approach obliges us to accept that, although Rose has a deep and
abiding attachment to J., an attachment that may well be reciprocated by J., this is not the
sole, or even the primary factor. A beneficial relationship is one that “promotes the
well-being of the child to such a degree as to outweigh the well-being the child would

21
gain in a permanent home with new, adoptive parents.” (In re Autumn H., supra,
27 Cal.App.4th 567, 575.) From an abundance of evidence the juvenile court
concluded—as did caseworker Dimas—that Rose’s devotion to J. was not stronger than
Rose’s inability to surmount her substance abuse dependency. The most recent
demonstration of that inability was fresh in the court’s mind: Rose’s “relapse” less than
two weeks before completing reunification. As the court correctly noted, with the
termination of reunification services, the primary factor became J.’s need for permanency
and stability. (In re Stephanie M. (1994) 7 Cal.4th 295, 317; Cynthia D. v. Superior
Court (1993) 5 Cal.4th 242, 254.) The court also recognized “ ‘[t]he reality is that
childhood is brief; it does not wait while a parent rehabilitates . . . herself. The nurturing
required must be given by someone, at the time the child needs it, not when the parent is
ready to give it.’ ” (A.H. v. Superior Court (2010) 182 Cal.App.4th 1050, 1061, quoting
In re Debra M. (1987) 189 Cal.App.3d 1032, 1038.)
“While reunification is the preferred outcome when it serves the interests of both
parent and child, no interest is served by compelling . . . parents to shoulder
responsibilities they are unwilling to accept or unable to discharge.” (In re Nolan W.
(2009) 45 Cal.4th 1217, 1234.) With painful regret, the juvenile court agreed with
Ms. Dimas and concluded that Rose was not up to the responsibility of raising J. in a
drug-free environment. Further exposing J. to that danger was clearly not in her best
interests. The record has more than ample substantial evidence to support that decision.
DISPOSITION
The orders are affirmed.

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 _________________________
Richman, J.

We concur:

_________________________
Kline, P.J.

_________________________
Stewart, J.

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