Filed 2/28/14 In re R.B. CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE


In re R.B., et al., Persons Coming Under
the Juvenile Court Law.

CONTRA COSTA COUNTY CHILDREN
& FAMILY SERVICES BUREAU,
         Plaintiff and Respondent,
v.                                                                   A138965
R.B.,                                                                (Contra Costa County
         Defendant and Appellant.                                    Super. Ct. Nos. J11-01259, J11-01260)



         At the conclusion of a hearing under section 366.26 of the Welfare and Institutions
Code1, the juvenile court terminated the rights of mother to her two children and directed
the Contra Costa County Children and Family Services Bureau (the agency) to
commence adoption proceedings. Challenging the orders (one as to each child), mother
argues the court failed to determine and consider the children’s wishes as to their
placement and adoption, and there was insufficient evidence to support termination of her
parental rights. Because we conclude mother’s arguments do not require reversal and
remand for further proceedings, we affirm the orders. 2



1
       All further statutory references are to the Welfare and Institutions Code.
2
       The juvenile court also terminated father’s parental rights but he has not filed a
notice of appeal.


                                                             1
                                         FACTS3
       A.     Background
       In September 2011, the agency filed petitions, later amended, in which it was
alleged that mother’s four-year-old daughter and nine-year-old daughter were at
substantial risk of physical harm because of mother’s mental health and alcohol abuse.
At that time father was incarcerated in state prison. After the jurisdictional and
dispositional hearings, the juvenile court sustained the amended petitions, declared the
children dependents of the court, and offered reunification services to the parents. The
children were initially placed in a foster care home, and later placed in the home of their
paternal grandparents on February 2, 2012. After the “12-month” review hearing, which
was ultimately held on January 17, 2013, the juvenile court found that returning the
children to their parents would create a substantial risk to the children’s well-being. The
parents’ reunification services were terminated and the matter was continued for a section
366.26 hearing to determine the children’s permanent placement plans.
       B.     Section 366.26 Hearing
       The section 366.26 hearing was held on May 29, 2013. By that time, the children
had been living with their grandparents for 16 months. Father was still incarcerated in
state prison. Mother had been offered over 12 months of reunification services but she
had neither participated in any services nor made any progress in changing the
circumstances that led to the children’s removal from her care. Mother had visits with
the children on five occasions in 2011 and on two occasions in 2012. On April 3, 2013,
mother called and requested a visit with the children, which occurred in May shortly
before the section 366.26 hearing.
       In the agency’s assessment report, dated April 3, 2013, and prepared for the
originally scheduled hearing date of May 7, 2013, the agency social worker
recommended termination of parental rights and that the children should be placed for
adoption. In support of the recommendation, the agency social worker described both
3
       We recite only those facts as are necessary to give context to the issues raised on
this appeal.


                                             2
children’s physical health, development, education, and mental and emotional status. As
to the children’s positions on their placement and adoption, the agency social worker
reported that both children were “ ‘sad’ ” that they no longer saw their mother, and each
child had indicated that if they could not live with their mother they wanted to live with
their grandparents or a paternal aunt, and they agreed with a plan of adoption. The older
child stated she understood that adoption meant she would remain with the grandparents
until she was at least eighteen years old. The younger child was not able to articulate
what adoption meant, but the agency social worker explained it to her. The agency social
worker also provided an assessment of the grandparents as prospective adoptive parents.
The children’s grandparents, who had known the children since the children’s births,
were motivated by love and affection to adopt the children and wanted to provide the
children with a stable home to keep the family together. The grandparents were willing
and able to adopt the children, were aware they would have full financial and legal
responsibility for the children when the adoption was finalized, and had a completed and
approved home study. The agency recommended that any continued visitation with the
birth family should occur at the discretion of the prospective adoptive parents.
       The juvenile court admitted into evidence the agency’s assessment report and
heard testimony from mother and the agency social worker who had been assigned to the
case in February 2013 and prepared the section 366.26 assessment report. Mother
conceded she had not regularly visited with the children. At the last visit on May 23,
2013, the children said they wanted to come home with mother. There was no discussion
as to where the children would live if they could not live with mother.
       The agency social worker testified she first met the children in February 2013. By
that time “things were already moving forward with adoption.” Adoption had been
discussed with the children and they were agreeable to it so the social worker chose not to
talk to the older child about other options at that time. The older child said she would
like to live with her mother but if she could not do so she wanted to be adopted by her
grandparents. The child understood that if she were adopted she would not live with her
mother and she was going to stay with her paternal grandparents. The agency social


                                             3
worker did not specifically tell the older child that she could object to adoption; rather,
the child was asked how she felt about adoption and if she agreed to it and she said she
did. The older child also said she wanted to be able to visit and have contact with her
mother. The child had earlier expressed concern that she would not be able to see her
mother as much as she wanted to do so. However, the child understood that if she were
adopted then her grandparents would get to decide when and how much contact she
would have with her mother. In explaining the situation to the older child, the agency
social worker did not explain that if the child was adopted that her mother would no
longer be her mother. The agency social worker also testified that a notice concerning
that day’s hearing had been sent to the grandparents’ home. The social worker was not
sure if the older child was specifically told that there was a hearing that day or that she
had a right to be present.
       The agency social worker testified that she also spoke to the younger child about
adoption. The child understood that if she could not live with her mother she was going
to be raised by her paternal grandparents and remain in their home. The child was not
specifically asked if she want to have visits with her mother, but the social worker
understood the child wanted to have some contact with her mother. The younger child
had not expressed any concerns that if she were adopted she would not be able to see her
mother as much as she wanted to do so.
       The agency social worker also testified regarding the information given to the
grandparents regarding guardianship and adoption. (§ 366.21, subd. (i)(2)(B).4) On
November 7, 2012, the grandparents met with the relative assessment staff who provided
them with a comparison sheet for guardianship and adoption as well as a pamphlet on
permanency. Additionally, the grandparents were aware of the different options of
permanency based on a May 15, 2012, letter, in which father discussed his desire for his


4
       Section 366.21, subd. (i)(2)(B), requires that “a relative caregiver shall be given
information regarding the permanency options of guardianship and adoption, including
the long-term benefits and consequences of each option prior to establishing legal
guardianship or pursuing adoption.”


                                              4
parents “to take guardianship of the children so that they could hand him the children
upon his release.” The agency’s earlier status reports indicated the grandparents were and
continued to be open to whatever permanent plan was deemed to be most appropriate for
the children. By the time the grandparents met with the current agency social worker
they had already made a decision to adopt the children so the worker explained that
procedure to them.
       At the conclusion of the hearing, mother’s counsel objected to termination of
mother’s parental rights on several grounds: (1) the children had spent a significant time
with mother before their removal from her care; (2) there was no indication the older
child was told about the section 366.26 hearing or that she had the right to be present and
heard on the matter; and (3) there was no indication the agency social worker had
explored with the older child the concept of a legal guardianship as opposed to an
adoption. In the absence of information regarding the older child’s wishes, mother asked
that the court not terminate her parental rights. As to the younger child, counsel argued
that a similar situation applied and “it sounds again like an exception would apply and
that the Court would not necessarily have to terminate parental rights in order to find a
permanent plan for these children.” Counsel also argued it was not entirely clear that the
paternal grandparents knew that they did not have to adopt the children but could opt for
guardianship and still provide the permanency that the agency sought for the children.5
       The children’s counsel argued the court should terminate parental rights and
declare adoption to be each child’s permanent plan. Counsel advised the court of the
children’s well-being and wishes. (§ 317, subd. (e)(2)6.) Specifically, counsel stated that

5
       Father expressly waived his appearance at the section 366.26 hearing, but his
counsel objected to termination of his parental rights and asked the court to find legal
guardianship was the appropriate placement plan for each child on the grounds urged by
mother’s counsel.
6
       Section 317, subdivision (e), provides, in pertinent part: “(2) If the child is four
years of age or older, counsel shall interview the child to determine the child’s wishes
and assess the child’s well-being, and shall advise the court of the child’s wishes.
Counsel shall not advocate for the return of the child if, to the best of his or her
knowledge, return of the child conflicts with the protection and safety of the child.”

                                             5
while the children had been living with mother, the older child had been a parent to the
younger child, the older child had to bear a great deal of responsibility, and the children
were left home alone quite a bit. The older child now had the ability to be a child and she
was sad that she did not see her mother. Counsel further reported that the children, and
particularly the older child, wanted to be adopted, to stop talking about the adoption, and
just wanted the adoption to happen. Based on “the telephone conversations that [counsel
had] had with the children and with the caregiver,” counsel believed the grandparents’
desire was to do the best for the children regardless of whether that meant guardianship
or adoption. “And certainly for these children they do know their mother but they do
understand that she’s not been in their life for a year. And they understand that. [¶] Their
life now is different. They’re happy with their life and they wish to proceed, I think, if
they can’t be with their mom. Certainly that is something that they’ve wanted and they
have wanted it for a long time, but at this point in time they don’t even talk about their
mom. You can ask them a question directly about their mother and they don’t respond.
It is hurtful for these children that their mother has turned [her] back on them. [But,]
[t]hey do have the ability to recover from this and have a very full life. In the
grandparent[s]’ care the children are less rebellious. They’re more relaxed. There’s not
the disruptive behavior that’s been noted in other court reports.” Counsel also noted the
grandmother “would continue to allow mother to have contact with the children . . . she’s
very open to doing that. There’s not a problem with that in any way, so long as mother
behaves appropriately and doesn’t show up pounding on the gate and things of that
nature.” Counsel concluded by asserting that the children deserved to have the
permanence of an adoptive home and that whatever relationship they had with their
parents did not outweigh adoption by their grandparents.
       The children’s counsel also advised the court regarding the older child’s absence
from the court proceedings. (§§ 336.26, subd. (h)(2), 349 7.) Since the child became 10

7
       Section 366.26, subdivision (h)(2) states: “In accordance with Section 349, the
child [who is the subject of a juvenile dependency proceeding] shall be present in court if
the child or the child’s counsel so requests or the court so orders. If the child is 10 years

                                              6
she had been questioned about her interest in attending the court proceedings. Each time
the child was asked about attending, including “today’s hearing,” the child said she did
not want to come to court. Counsel further advised that the child “understands that this
case and her paternal grandparents are moving toward adopting her and her sister. She is
in agreement with going forward with that plan. She said she doesn’t know where she
would live if she could not live with her paternal grandparents. She again expressed
wanting the adoption [to] happen. She did not want to keep talking about it any more.
She just wanted it to occur. She understood being adopted meant that she would be
living with her grandparents until she’s an adult. [¶] The hearing for today’s date is
something that this child was advised of and of her right to attend.” Counsel did not
know “how many different times and separate times . . . [she] need[ed] to continue to ask
a child if she wants to come.” Counsel did not know if the older child had been given the
exact date of the section 366.26 hearing but it was certainly something the child was well
aware of and had expressed that she chose not to participate in the proceeding.
       The agency’s counsel argued that at the section 366.26 hearing the court’s rulings
were limited to deciding whether there was clear and convincing evidence the children
were adoptable and whether there were any statutory exceptions to termination of
parental rights. Counsel argued the children were adoptable, their grandparents wanted to
adopt them, and there was no basis to conclude the grandparents did not want to adopt the
children. If the children were found adoptable, counsel argued the court should terminate
parental rights as there was no showing mother had maintained a regular relationship
with the children. Counsel further argued the children had no relationship with either

of age or older and is not present at a hearing held pursuant to this section, the court shall
determine whether the minor was properly notified of his or her right to attend the
hearing and inquire as to the reason why the child is not present.” Section 349 provides,
in pertinent part, that “[i]f th[e] minor was not properly notified or if he or she wished to
be present and was not given an opportunity to be present, the court shall continue the
hearing to allow the minor to be present unless the court finds that it is in the best interest
of the minor not to continue the hearing. The court shall continue the hearing only for
that period of time necessary to provide notice and secure the presence of the child.” (Id.,
subd. (d).)


                                              7
parent that outweighed the benefits of adoption and it would be detrimental to the
children not to go forward with the adoption because it would leave them in the same
cycle they had been in during the entire dependency – knowing that their mother was not
able to parent them but hoping that something might happen and change.
       The juvenile court found, by clear and convincing evidence, that it was likely the
children would be adopted and that termination of parental rights would not be
detrimental to the children. In explaining its ruling, the court stated: “[The older child]
just turned 11 . . . [a]nd there’s quite frankly no evidence before the Court that [the child]
in any way objects to the adoption. [¶] In fact, to the contrary, [children’s counsel] has
represented her discussions with [the older child] and the social worker testified to her
interactions with both children, and although both [children] are understandably sad that
they’re not reunited with their mother, . . . especially from a child’s perspective, they both
stated that they wish to be adopted by their grandparents. Although that was the second
choice. But they didn’t object to the adoption and they understood the permanency of
that. [¶] . . . I also find based on the testimony and evidence before the Court that there
was discussion with the grandparents about their various options for permanency and it
wasn’t limited solely to adoption. But they were provided materials that addressed issues
of legal guardianship as opposed to adoption. And I find by clear and convincing
evidence that these two girls are indeed adoptable. [¶] What is really sad here is that
mother stated from the get-go of this case that she was not going to engage in services.
And true to her word, she has not engaged in any services whatsoever. In addition, she
has in essence abandoned her daughters by failing to visit [in] almost a year and no one
has done this to mom except mom. And that’s really sad. And I feel really sorry for
these two girls to the extent they’re able to understand that their mother has made choices
here not to engage in reunification services and has chosen not to participate in their lives
and even attempt to reunify with her daughters. She’s made no attempts whatsoever




                                              8
based on the record that’s before this Court.” Mother timely appeals the termination
orders.8
                                       DISCUSSION
I.     Juvenile Court’s Determination and Consideration of Children’s Wishes
       Mother argues the termination orders should be reversed and the case remanded
because the juvenile court was not adequately informed of the children’s wishes, as
required by section 366.26, subdivision (h)(1).9 We disagree.
       This court has interpreted subdivision (h)(1) of section 366.26 to “require the
juvenile court to receive direct evidence of the children’s wishes regarding termination
and adoption at the permanency planning hearing. This evidence 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. Although a child’s presence in court is not required,
an out-of-court statement, as in a report or other form, must reflect the fact that the child
is aware that the proceeding involves the termination of parental rights.” (In re Diana G.
(1992) 10 Cal.App.4th 1468, 1480 (Diana G.).) The record here meets the requirements
of Diana G.: The children’s “opinions and views on their status and the possible outcome
of the permanency planning process were reflected” in both the detailed statement of the
children’s counsel 10 and the agency’s section 366.26 assessment report 11 “and sworn

8
       The appeal is opposed only by the agency. The children’s counsel has not filed a
responsive brief.
9
       Section 366.26, subdivision (h) states, in pertinent part: “(1) At all proceedings
under this section, the court shall consider the wishes of the child and shall act in the best
interests of the child.”
10
        We see no merit to mother’s challenge to the juvenile court’s consideration of the
statements of the children’s counsel. Because mother did not object to the juvenile
court’s consideration of counsel’s statements on the grounds she now asserts on appeal,
we deem her arguments forfeited. (In re S.B. (2004) 32 Cal.4th 1287, 1293 [in
dependency appeals, “the appellate court’s discretion to excuse forfeiture should be
exercised rarely and only in cases presenting an important legal issue”], superseded by
statute on another ground as stated in In re S.J. (2008) 167 Cal.App.4th 953, 962, 964.)
In all events, mother has failed to demonstrate prejudicial error. Unlike the situation in In

                                              9
testimony of [the agency] social worker[], based on interviews with the children
themselves.” (Diana G., supra, at p. 1481.)
       We are not persuaded by mother’s arguments that neither the children nor the
grandparents could truly express their wishes and preferences without first knowing that
guardianship was an available option. The record demonstrates the juvenile court was
well aware of the children’s ambivalent feelings about their mother and their desires as to
their permanent living arrangements. “The purpose of the statutory injunction that the
court ‘consider the wishes of the child’ simply requires the court to consider what the
child’s preferences are. . . . But . . . we should not carelessly impose upon them decisions
which are heavy burdens even for those given the ultimate responsibility to decide. To
ask children with whom they prefer to live or to ascertain what they wish through other


re Zeth S. (2003) 31 Cal.4th 396 (Zeth S.), we are not here concerned with consideration
of an unsworn statement by minor’s appointed appellate counsel that the child’s maternal
grandfather may have felt pressured into choosing adoption over legal guardianship. (Id.
at pp. 407, 413-414, fn. 11.) Instead, at issue here is counsel’s compliance with the
statutory requirement to advise the juvenile court of the children’s wishes. (§ 317, subd.
(e)(2).) The juvenile court’s consideration of counsel’s statements “in this context does
not give rise to the vice [the Supreme Court] condemned in Zeth S. – an appellate court’s
use of new evidence outside the record to second-guess the trial court’s resolution of
issues properly committed to it by the statutory scheme.” (In re Josiah Z. (2005) 36
Cal.4th 664, 676.) Additionally, mother cites no authority, and we have found none, that
a child’s counsel must be sworn before advising the court regarding the child’s wishes
after interviewing the child in compliance with section 317, subdivision (e). (See
Conservatorship of John L. (2010) 48 Cal.4th 131, 155 [court could accept counsel’s
unsworn representations that client did not oppose pending probate proceeding].)
Further, there is no evidence the children’s counsel misrepresented the children’s wishes,
and nothing precluded mother from asking the court to allow her to either question the
children’s counsel or present “further rebuttal evidence.” Lastly, the statements made by
the children’s counsel were consistent with the sworn testimony of the agency social
worker who also spoke with the children. Consequently, any error was harmless under
any standard of review.
11
        Sections 366.21, subd. (i)(1)(E), provides, in pertinent part, that the agency is
statutorily required to include in its assessment report for a section 366.26 hearing “a
statement from the child concerning placement and the adoption or guardianship . . .
unless the child’s age or physical, emotional, or other condition precludes his or her
meaningful response, and, if so, a description of the condition.”


                                            10
evidence is one thing. To ask those children to choose whether they ever see their natural
parent again or to give voice to approving that termination is a significantly different
prospect.” (In re Leo M. (1993) 19 Cal.App.4th 1583, 1592.) Additionally, the agency
here provided the court with a sufficient assessment of the grandparents’ position
concerning adoption, which is the statutorily preferred placement for dependent children.
We therefore reject mother’s contention that reversal and remand is required to allow the
juvenile court to consider additional evidence concerning the children’s “understanding
of and wishes regarding guardianship as opposed to adoption” or the grandparents’
“understanding of the[ir] legal and financial responsibilities” and “motivation for
adoption over guardianship.” (See In re Kristen B. (2008) 163 Cal.App.4th 1535, 1541
[“the Legislature has expressly provided that the best interests of the minor, not his or her
wishes, determine the outcome of the case”]; In re Xavier G. (2007) 157 Cal.App.4th
208, 214 [where caretaker is able and willing to adopt, “caretaker’s preference for
guardianship over adoption is irrelevant at a section 366.26 hearing, ‘where the court’s
task [is] to select the plan which best serve[s] the child’s interests’ ”].)
       We also see no merit to mother’s challenge to the sufficiency of the evidence to
support the juvenile court’s findings that termination of parental rights was in the best
interests of the children because of the likelihood of adoption. 12 “The juvenile court may
terminate parental rights only if it determines by clear and convincing evidence that it is
likely the child will be adopted within a reasonable time. [Citations.] In making this
determination, the juvenile court must focus on the child, and whether the child’s age,
physical condition, and emotional state may make it difficult to find an adoptive family.”
(In re Erik P. (2002) 104 Cal.App.4th 395, 400 (Erik P.).) “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
12
       While mother forfeited any argument that the agency’s section 366.26 assessment
report did not comply with the requirements in section 366.21, subdivision (i)(1)(E), her
claim that there was insufficient evidence of the children’s adoptability to support
termination of parental rights is not forfeited by her failure to argue that issue in the
juvenile court. (In re Brian P. (2002) 99 Cal.App.4th 616, 623 (Brian P.).)


                                               11
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 Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650.)
       Contrary to mother’s contentions, we conclude that “the record contains
substantial evidence from which a reasonable trier of fact could find clear and convincing
evidence that [the children were] likely to be adopted within a reasonable time.” (Erik P.,
supra, 104 Cal.App.4th at p. 400.) Unlike the situation in Brian P., supra, 99
Cal.App.4th 616, the juvenile court’s finding of adoptability was not based solely on “[a]
social worker’s opinion, standing alone.” (Id. at p. 624.) Rather, the juvenile court had
the benefit of both the agency social worker’s testimony and the agency’s assessment
report which “presented the kind of facts needed to support a finding of adoptability.”
(Ibid.; see § 366.21, subd. (i).) We see no deficiencies in the evidence that are so
“sufficiently egregious” as to “impair the basis for the court’s decision to terminate
parental rights.” (In re Crystal J. (1993) 12 Cal.App.4th 407, 413.) We therefore reject
mother’s contention that reversal and remand is required to allow the juvenile court to
consider additional evidence concerning the children’s “adoptability” and the “likelihood
of adoption following the Father’s release from prison.”
       We conclude our discussion by noting that mother’s challenge to the termination
orders is based on the “apparent” premise “that the court, the Agency, and counsel for the
minors took the approach of plugging this case into an adoption track, and in so doing
collectively put on blinders to the consideration of a guardianship. In the lives of these
children a guardianship was not only an equally viable option but the only one in line
with the girls’ stated desires.” However, mother ignores the fact that the Legislature has
decreed that “guardianship is not in the best interests of children who cannot be returned
to their parents. [Instead,] [t]hese children can be afforded the best possible opportunity
to get on with the task of growing up by placing them in the most permanent and secure
alternative that can be afforded them.” (In re Beatrice M. (1994) 29 Cal.App.4th 1411,
1419; see In re Celine R. (2003) 31 Cal.4th 45, 53 [“ ‘[g]uardianship . . . is not


                                             12
irrevocable and thus falls short of the secure and permanent future the Legislature had in
mind for the dependent child’ ”].) Because the juvenile court here “made the necessary
findings under the statutory scheme to terminate parental rights, it was inherent in the
legislative scheme for the court to find it in [the children’s] best interests to pursue a
permanent plan of adoption. By the time of the section 366.26 hearing, [the children] had
been subject to dependency proceedings for [20] months. [They were] in a stable,
nurturing environment with relative caregivers committed to adopting [them].” (In re
Christopher L. (2006) 143 Cal.App.4th 1326, 1336.) On this record, we see no reason to
further delay the children’s “chance at stability and permanence in an adoptive home.”
(In re Salvador M. (2005) 133 Cal.App.4th 1415, 1422.)

                                       DISPOSITION
       The juvenile court orders are affirmed.


                                                   _________________________
                                                   Jenkins, J.


We concur:


_________________________
McGuiness, P. J.


_________________________
Pollak, J.




                                              13
