Filed 5/22/17 In re J.B. CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(San Joaquin)
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In re J.B. et al., Persons Coming Under the Juvenile Court Law.

SAN JOAQUIN COUNTY HEALTH AND HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

v.

A.B.,

Defendant and Appellant.

C083036


(Super. Ct. Nos. STKJVDP20140000267, J06931)

A.B., mother of minors J.B. and I.B., appeals the juvenile court’s order terminating her parental rights. (Welf. & Inst. Code, §§ 366.26 & 395.) Mother contends the juvenile court erred in failing to apply the beneficial parental relationship exception to adoption. (§ 366.26, subd. (c)(1)(B)(i).) Mother further contends the juvenile court failed to consider the wishes of the minors, specifically their feelings about her and their relationship with her, as required by section 366.26, subdivision (h)(1).
We conclude the juvenile court properly considered the minors’ wishes prior to terminating parental rights, but did not make the necessary findings to determine whether the beneficial parental relationship exception applied. We therefore reverse and remand for further proceedings.
BACKGROUND
Mother has three children, six-year old Jo.B., seven-year old I.B., and eight-year old J.B., with father J.B., Sr. At the time of the minors’ removal, Jo.B. lived with his mother, his maternal uncle, and his maternal grandmother, while his two older brothers, I.B. and J.B., lived with his paternal grandmother. Father was serving a sentence in state prison for a 2012 robbery conviction.
Mother came to the attention of the San Joaquin County Health and Human Services Agency (Agency) on August 22, 2014 after Jo.B. was observed by his school counselor to have two triangular shaped burns, one on top of and the other underneath his left arm. Jo.B. told the social worker mother intentionally burned him because he turned down the music on her new speaker. He explained mother intentionally clamped a “curling iron” (what authorities surmised was a flatiron) on his left arm for a moment and then removed it, causing him pain and making him cry. Mother failed to provide any medical care to the minor, and told him “it’s a secret” and “don’t tell anyone” or she would “go to jail.” When the minor told the maternal grandmother what happened, she said, “Well it was your fault” for touching mother’s personal things. The minor reported mother had physically abused him in the past, slapping him and striking him with a phone charger cord on his arms and legs and leaving marks and bruises.
Minors J.B. and I.B. told authorities they both lived with their paternal grandmother but occasionally visited mother. I.B. reported mother used to slap him and hit him with a cord, but stopped when he turned six. He recalled mother once caused his toe to bleed after hitting him with a spatula. J.B. also reported mother used to “smack” him in the face and hit him with a cord, but no longer did because she did not want to go to jail. J.B. said he used to hide from mother when she was angry because he feared she would hit him.
Mother denied intentionally burning Jo.B., telling the social worker the flatiron accidentally fell and “landed on his arm” while he was playing on the floor with her speaker. When confronted with the fact mother’s story was not consistent with the minor’s burns on top of and underneath his arm suggesting the flatiron was clamped on his arm, mother denied burning the minor on purpose or clamping the flatiron on his arm. Mother was subsequently arrested and charged with felony child abuse.
The maternal grandmother told investigators mother had anger issues and had been hospitalized several years ago due to depression and being suicidal, but was currently stable and was no longer depressed. The maternal grandmother denied having a criminal history, but acknowledged a past history with Child Protective Services (CPS) and mother had been removed from her when mother was a child.
The paternal grandmother told investigators she was not surprised mother had burned Jo.B. because, in her view, mother “is cruel to them [the minors].” The paternal grandmother stated she had to fight for visitation rights because mother would not allow her to see her grandchildren. She stated she had visitation rights as to J.B. and I.B. pursuant to a San Joaquin County Family Court order issued in 2012, and both children had been staying with her full-time for the past several weeks. The paternal grandmother expressed interest in taking care of all three minors, and confirmed she had no criminal or CPS history. She also confirmed the minors’ father was serving a sentence in state prison and was not due to be released until 2015.
Dependency Petition
On August 27, 2014, the Agency filed a petition pursuant to section 300, subdivisions (b), (g), and (j), alleging Jo.B., J.B., and I.B. were at substantial risk of serious physical harm and neglect due to mother’s physical abuse and her failure to provide support due to her incarceration. The petition alleged mother intentionally burned Jo.B. and had physically abused him and his two siblings in the past, mother was currently incarcerated and unable to provide care and support for the minors, and father had a criminal record and history of drug abuse and was incarcerated and unable to provide care and support for the minors.
Detention
The detention report filed August 27, 2014 stated the paternal and maternal grandmothers were both interested in taking custody of the minors, and the paternal grandmother had court-ordered visitation rights with J.B. and I.B. Mother was amenable to placement with the paternal and maternal grandmothers. The petition noted the Agency’s concern mother denied purposefully burning Jo.B., and had anger management issues, mental health issues, and possible drug abuse (methamphetamine) issues.
At the August 28 and 29, 2014 detention hearing, the juvenile court ordered the minors detained and temporarily placed them with the paternal grandmother. The court further ordered that there be no contact between mother and the minors without the Agency’s consent.
Jurisdiction
The jurisdiction and disposition report filed October 20, 2014 noted mother had pleaded guilty to the felony child abuse charge and been released from county jail, and was currently living with the maternal grandmother. Mother reported she was struggling with anxiety, and stated she wanted the minors to remain with the paternal grandmother, who she described as a “good woman.” Mother had instructed the maternal grandmother to stop her efforts to get placement of the minors, “as they are stable where they are.” All three minors told the social worker “they love and miss their mother and would like to see her.” Jo.B. noted mother had apologized to him.
The report detailed mother’s self-reported childhood physical and sexual abuse and neglect by her parents. She was removed from her parents’ custody and raised by her maternal grandmother. Her parents failed to complete reunification services and her father was a homeless drug addict with whom she periodically used drugs. Mother reported her relationship with the minors’ maternal grandmother was plagued with verbal conflict and physical violence, some of which had occurred in front of the minors.
The report noted mother had been diagnosed with depression while in custody. When asked whom she would like to be considered for placement of the children, mother indicated she wanted the minors to remain with the paternal grandmother.
Mother reported she last used marijuana five months prior when she was using “a couple of times per month,” and she last used methamphetamine “a year or two ago.” She claimed her peak use of methamphetamine was at the age of 20, when she used “a couple of times per month.” The report stated mother had a clear substance abuse problem from which she failed or refused to rehabilitate despite her assertions she is “not an addict” and can stop using drugs whenever she wants.
According to the report, mother told the social worker on October 9, 2014 that she needed housing assistance because she did not have stable housing and was “almost homeless.” She also felt she could benefit from counseling and parenting classes. Mother stated she wanted to reunify with the minors and was willing to do whatever was necessary; however, she expressed concern that “taking a deal” in her criminal case would jeopardize reunification. The report noted now that mother was no longer incarcerated, “a visitation schedule will be forthcoming.”
The Agency requested that the juvenile court sustain the allegations in the amended petition that included new allegations regarding mother’s substance abuse history, her current drug use, and her “mental health issues which have gone undiagnosed and untreated until her incarceration.” The Agency further recommended both maternal and paternal grandmothers be granted reasonable visitation with the minors.
At the contested jurisdictional hearing on December 5, 2014, the juvenile court sustained the allegations in the amended petition and adjudged the minors dependent children of the court.
Disposition
At the December 18, 2014 dispositional hearing, the court found by clear and convincing evidence the minors should be removed from mother’s custody and committed to the care, custody, and control of the Agency for appropriate placement. The court ordered reunification services for mother and authorized a psychological evaluation.
On March 27, 2015, the court granted the Agency discretion to increase mother’s visitation with the minors.
Six-Month Status Review
The status review report dated April 30, 2015 stated mother was living in the home of the maternal grandmother and was actively seeking employment. The minors were placed together in the home of the paternal grandmother. Mother was visiting the minors twice a week (three hours on Tuesdays and five hours on Saturdays) at the paternal grandmother’s home. The Agency deemed the minors adoptable, noting the paternal grandmother was willing to adopt if reunification with mother failed.
The minors were adjusting well in the home of the paternal grandmother. Despite initial challenges with Jo.B., he eventually calmed down and his challenging behavior decreased once he started taking his medication. The report noted mother had “come a long way” since removal of the minors, completing the parenting program and becoming more confident in her abilities in class. Mother progressed well in class and had perfect attendance. She was also actively participating in individual counseling and had “demonstrated significant active knowledge of her child’s needs and her commitment to be a better parent in the future.” Mother was processing her childhood abuse and prior domestic violence situations and had completed 16 of 20 counseling sessions. She was attending outpatient group drug treatment and, although she “rarely participates” in group sessions, she had a good attitude and was making progress in her treatment. She was also focused on being self-sufficient and independent in order to give her children a better life.
Gary L. Cavanaugh, M.D., conducted a psychological evaluation of mother on January 26, 2015 and diagnosed her with “Mixed Disorder of Personality with Borderline and Co-Dependent Traits. Mood Disorder, Unspecified; possible recurrent major depression vs bipolar disorder vs substance-induced mood disorder. Attention Deficit Hyperactivity Disorder, Combined Type.” Dr. Cavanaugh opined mother’s personality problems would be best addressed in a structured chemical dependency program with individual therapy, and she would need to follow up with a psychiatrist for her mood disorder. According to the report, mother was receiving all of the services recommended by Dr. Cavanaugh.
Mother was reportedly making “great strides to change her lifestyle” and making “appropriate lifestyle changes to reunite with her children.” She was seeking employment so that she could move out of the maternal grandmother’s home and into her own home without relying on aid. Mother was visiting the minors consistently and spending quality time with them. The Agency recommended mother receive six additional months of reunification services.
At the April 30, 2015 six-month review hearing, the court adopted the findings and orders as recommended by the Agency, continued mother’s reunification services for an additional six months, and gave the Agency discretion to allow overnight visits in consultation with minors’ counsel once mother obtained housing. The court found by clear and convincing evidence the minors could not be returned to mother’s custody without a substantial risk of detriment to their physical and emotional well-being, but there was a substantial possibility the minors would be returned to mother’s custody within the extended time period.
12-Month Status Review
According to the 12-month status review report, mother was still living in the home of the maternal grandmother. The minors remained together in the home of the paternal grandmother. Mother continued to be in compliance with her case plan. While she was having a challenging time finding employment due to her criminal record, she remained focused on obtaining a job so she could obtain her own housing. J.B. and I.B. stated their desire to continue to live with their paternal grandmother until mother was able to do so. Jo.B. wanted to live with mother. The social worker was concerned that, while mother was actively seeking employment, she was comfortable living with the maternal grandmother and was not utilizing her time wisely or “putting the time in that it takes to land employment.”
Mother continued consistent visitation with the minors three times a week (three hours on Tuesdays at the paternal grandmother’s home and five hours on Saturdays and Sundays at the maternal great-grandmother’s home or the park). However, the social worker was concerned that overnight visits with the minors had not yet begun because mother was still living with maternal grandmother. Mother also faced challenges arriving on time for visitation and returning the minors to the caretaker’s home on time. Mother stated these challenges were due to the fact she relied on a friend for transportation. The social worker informed mother to “manage her time wisely and take the bus.”
Mother continued to work on reunification, having completed the Child Welfare Parenting Program and 20 individual counseling sessions, plus 5 additional sessions to process and deal with one of the minor’s ADHD diagnosis. Mother was gaining a sense of control over her life, learning parenting techniques, and fully participating in her plan. She successfully completed an alcohol and drug outpatient program and it was anticipated she would complete drug court within two months. She also completed an alternative work program. She was receiving mental health services and taking medication to help with her depression and anxiety. The Agency requested that the juvenile court grant mother six more months of reunification services.
At the October 29, 2015 review hearing, the court adopted the findings and orders as recommended in the status review report, including that mother had “consistently and regularly contacted and visited with the [minors],” “made significant progress in resolving the problems that led to the [minors’] removal from the home,” and “demonstrated the capacity and ability both to complete the objectives of her treatment plan and to provide for the [minors’] safety, protection, physical and emotional well-being and special needs.”
18-Month Status Review
The 18-month status review report filed February 2, 2016 stated the Agency had “serious concerns” regarding mother’s commitment to her sobriety and her ability to care for her three children. Since the filing of the previous report, “mother has significantly destabilized.” The drug court social workers reported mother was not attending meetings and tested positive for methamphetamine on October 23, 2015, December 11, 2015, and January 29, 2016. Social worker Peggy Gann stated mother had been in drug court for one year and, although she was provided with “resources for shelters for a safe place to stay . . . she doesn’t follow through.” Social worker Beatriz Lopez stated mother failed to provide any record of attending meetings and, if mother failed to do so for the next scheduled appointment, Lopez would recommend that mother be terminated from drug court. Mother told the social worker on January 28, 2016 she would “try to get back into drug court and do what I need to do.”
Mother continued to “live a transient lifestyle” and, despite having been provided with multiple housing resources and homeless shelters, she did not follow through with those referrals and continued to lack safe and suitable housing.
Mother was visiting the minors for five hours every Saturday and Sunday and two to three hours every Tuesday at the maternal great-grandmother’s home.
All three minors continued to be placed with the paternal grandmother. However, Jo.B.’s behavior was deteriorating in recent months resulting in concern he would require a higher level of care. Jo.B. stated, “I just want to go with my mom.” J.B. stated, “I don’t want to be removed from my grandma’s care and I don’t want to go to a foster home, but I know [Jo.B.] needs help.” I.B. stated, “My grandma said that my mom isn’t doing so well and we will not go back with her [(mother)].”
The Agency recommended termination of mother’s services, concluding that whatever the outcome of Jo.B.’s placement, it was not in the minors’ best interest to extend services to mother any longer.
At the March 22, 2016 contested review hearing, the court adopted the findings and orders recommended in the status review report, terminating mother’s reunification services, ordering visitation as arranged through the social worker, and setting the matter for a selection and implementation hearing.
Section 366.26 Report and Contested Selection and Implementation Hearing
The section 366.26 report stated that while Jo.B. had been placed in a group home due to his severe behavioral issues, J.B. and I.B. continued their placement with the paternal grandmother. Due to some emotional distress caused by the removal of Jo.B., additional counseling was being arranged for J.B. and I.B. Mother had “extensive visits every week” with the two minors, who “seem[ed] to enjoy the visits.”
It was noted the paternal grandmother, who was willing and prepared to adopt J.B. and I.B., had been meeting all of the minors’ needs for almost two years and had a strong bond with them. The paternal grandmother expressed her willingness to continue visitation between mother and the minors even after termination of parental rights. The paternal grandmother was also willing to permit visitation between the minors and father following his release from incarceration.
The Agency recommended parental rights be terminated and the minors placed for adoption, noting mother had been provided numerous services over the past two years but had been unable to make a long term change in her lifestyle of drug abuse.
At the September 6, 2016 contested selection and implementation hearing, mother testified the minors resided with her prior to removal, during which time she participated in activities with them and read to them. She testified she was currently visiting J.B. and I.B. every weekend and sometimes during the week unless there was a scheduling conflict with the paternal grandmother. Mother stated she was still living with the maternal great-grandmother. Mother further testified her relationship with the minors was still close; she talked to them about school and washed and massaged their feet, and they still called her “mom.” She stated she was concerned about the impact an adoption would have on her relationship with the minors.
Mother also testified she was employed and saving up to get her own place near her grandmother’s home. She stated she was still involved in a substance abuse program and, although she was terminated from drug court, she continued to participate as a volunteer.
The Agency reiterated its recommendation that parental rights be terminated and the minors placed for adoption. With regard to the beneficial parental relationship exception (§ 366.26, subd. (c)(1)), the Agency acknowledged mother’s visitation was consistent and beneficial to the minors, but argued her failure to complete a substance abuse program after two years and her request for extended long-term reunification, would delay permanence for the minors and not be beneficial for them.
Minors’ counsel agreed with the Agency, adding mother’s bond with the minors did not outweigh the stability that would be provided to them through a plan of adoption. Father’s counsel stated father was agreeable to adoption by the paternal grandmother.
Mother’s counsel opposed termination of parental rights, arguing it would be significantly detrimental if, once the minors were adopted, the adoptive parent refused to allow mother to visit the children.
The court remarked that “this is a very difficult case” and commended mother on her recent efforts, but noted she still lacked stable housing after over two years of dependency proceedings. Focusing on “stability and permanence for both [minors],” the court stated, “Unfortunately, the biggest problem is we are running out of time. We are over two years down the line. Mom is still attempting to get housing situated. She is in drug court as a volunteer which shows a lot of strength. I don’t see that a lot. I commend her for that. She has made solid efforts. The paradigm shifted here. It is not about mom at this point. It is about stability and permanence for both boys, what is in their best interest. And absent a detriment, the attorneys have stated the correct interpretation of the law. Permanence is what the law wants us to look to, and they want us to achieve adoption, if at all possible. If not adoption, if not a guardianship, if not long term permanent placement which would not be in the minors’ best interest when we have an adoptive home identified. We have had the ability to see the children in this home for a period of time. They seem to be doing very well. They love their mother and mother loves them. That is clear. It is also clear that we need to go forward. We can’t stay in limbo waiting for things to clear up for mom to make sure she is on the right track and that she is not going to slip back, pardon me. [¶] So, this is tough because I have seen what [mother] has been able to do, but we are not at reunification. We are past that. They are at the point of looking at the boys and permanence for them, and adoption provides that.” The court found the minors were adoptable, it was in their best interest to terminate parental rights, and the beneficial parental relationship exception (§ 366.26, subd. (c)(1)) did not apply.
Mother filed a timely notice of appeal.
DISCUSSION
I
Sufficiency of Evidence to Support the Beneficial Parental Relationship Exception
Mother contends the juvenile court erred in finding the beneficial parental relationship exception to adoption (§ 366.26, subd. (c)(1)(B)(i)) does not apply. As we shall explain, the court did not make the necessary findings to determine whether the exception applied, requiring remand for further proceedings to make this determination.
“ ‘At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must make one of four possible alternative permanent plans for a minor child. . . . The permanent plan preferred by the Legislature is adoption. [Citation.]’ [Citations.] If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which it would be detrimental to the child.” (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.)
There are only limited circumstances permitting the court to find a “compelling reason for determining that termination [of parental rights] would be detrimental to the child . . . .” (§ 366.26, subd. (c)(1)(B).) One of these is where the parent has maintained regular visitation and contact with the child and the child would benefit from continuing the relationship, often referred to as the beneficial parental relationship exception. (§ 366.26, subd. (c)(1)(B)(i).)
“Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child’s needs, it is only in an extraordinary case that preservation of the parent’s rights will prevail over the Legislature’s preference for adoptive placement.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350 (Jasmine D.).)
The party claiming the exception has the burden of establishing the existence of any circumstances that constitute an exception to termination of parental rights. (In re C.F. (2011) 193 Cal.App.4th 549, 553 (C.F.).) The factual predicate of the exception must be supported by substantial evidence, but the juvenile court exercises its discretion in weighing that evidence and determining detriment. (In re K.P. (2012) 203 Cal.App.4th 614, 622; In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315.)
The exception “must be examined on a case-by-case basis, taking into account the many variables which affect a parent/child bond. The age of the child, the portion of the child’s life spent in the parent’s custody, the ‘positive’ or ‘negative’ effect of interaction between parent and child, and the child’s particular needs are some of the variables which logically affect a parent/child bond.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575-576 (Autumn H.).)
“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.) “ ‘[E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. . . . Broad deference must be shown to the trial judge.’ ” (Jasmine D., supra, 78 Cal.App.4th at p. 1351.)
With regard to the first prong of the beneficial parental relationship exception �" whether the parent has maintained regular visitation and contact with the child (§ 366.26, subd. (c)(1)(B)(i)) - mother contends, and the Agency concedes, she maintained regular visitation and enjoyed a loving relationship with the minors. There is substantial evidence in the record demonstrating that, but for a three-month substance abuse relapse between October 2015 and January 2016, mother visited the minors consistently throughout the reunification period, and as much as 17 hours per week after the 12-month review.
As for the second prong �" whether the child would benefit from continuing the relationship (§ 366.26, subd. (c)(1)(B)(i)) �" mother claims the juvenile court failed to focus on whether the nature and quality of mother’s relationship with the minors was so strong it outweighed the benefits of adoption by the paternal grandmother. We agree.
By all accounts, the minors enjoyed their visits with mother and suffered no apparent adverse affects from contact or time spent with her. Mother visited the minors between 13 and 17 hours per week, participated in activities with them during visits, washed and massaged their feet, rubbed their heads and tickled their backs, and talked about school. The minors “opened up and talked to her about anything and expressed how they were feeling.”
On the other hand, the minors adjusted well in the paternal grandmother’s home and were doing well emotionally and physically in her care. They went sailing, boating, biking, camping, and traveling, and the minors hiked, swam, and played soccer and basketball. The paternal grandmother also took the minors out for meals, watched movies, listened to music, and attended events together. While J.B. and I.B. experienced some emotional impact regarding Jo.B.’s placement elsewhere due to his behavioral issues, both minors expressed their desire to remain with the paternal grandmother given mother was living “a transient lifestyle” and, unlike the paternal grandmother, could not provide a stable home for them.
While mother and paternal grandmother agreed the minors would benefit from a continuing relationship with mother, that is not the end of the inquiry for purposes of the beneficial parent-child relationship exception. The benefit to the child must promote “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., supra, 27 Cal.App.4th at p. 575; accord, C.F., supra, 193 Cal.App.4th at p. 555; In re B.D. (2008) 159 Cal.App.4th 1218, 1234-1235; In re Helen W. (2007) 150 Cal.App.4th 71, 81; In re L. Y. L. (2002) 101 Cal.App.4th 942, 953.)
Here, the juvenile court properly focused on stability and permanency for the minors and the fact the dependency proceedings had gone on for over two years. However, while the court noted, “Mom is still attempting to get housing situated” and commended her for volunteering in drug court, the court did not balance the strength and quality of mother’s relationship with the minors in a tenuous placement against the security and sense of belonging adoption by the paternal grandmother would confer, or to make express or implied findings in that regard. That is to say, the court should not have been concerned whether mother would regain custody of the minors, a factor not relevant in deciding whether the beneficial parental relationship exception applies, but rather whether the minors would be greatly harmed by termination of mother’s parental rights.
Mother contends all of the evidence presented to the court regarding her relationship with the minors contradicted the court’s conclusion adoption was not detrimental to the minors. She claims the minors, who were 9 and 10 years old at the selection and implementation hearing, spent the majority of their lives with her as their primary caretaker , and remained close with her throughout the dependency proceedings, and wanted to return to her care if possible. On the other hand, the paternal grandmother was present when the minors were born, had them with her “almost every weekend and staying during vacations,” met all of their needs for almost two years and was willing to continue to do so, and deeply cared for and loved them. As the record reflects, the minors shared a close relationship with mother and paternal grandmother, and were not ultimately opposed to returning to mother’s care but wanted to remain with the paternal grandmother given mother’s “transient” living situation.
Again, there is no dispute mother consistently visited the minors and shared a bond with them, and the paternal grandmother also shared a close bond with the minors and was meeting their daily needs and providing them with a comfortable, stable home. The question unanswered by the juvenile court’s ruling was whether the nature and quality of mother’s relationship with the minors so outweighed the benefits of adoption by the paternal grandmother that the minors would be greatly harmed by termination of mother’s parental rights. Factual findings must be made in that regard in order to determine whether the beneficial parental relationship exception to adoption applied. We will reverse the juvenile court’s determination the exception does not apply and remand the matter for the court to make the necessary findings in that regard.
II
Proper Exercise of Discretion
Mother contends the juvenile court failed to properly exercise its discretion by selecting a permanent plan of adoption in the absence of information from the minors regarding their feelings about mother as required by section 366.26, subdivision (h)(1). Mother claims she did not forfeit this issue by failing to raise it below because the statute imposes a mandatory duty, and compliance therewith is a pure question of law presented on undisputed facts and is therefore not subject to forfeiture.
Before the juvenile court, mother did not raise the issue that the court failed to consider the minors’ wishes regarding termination of parental rights and adoption or to act in their best interests. (§ 366.26, subd. (h).) She is therefore precluded from raising the issue here. (In re Amanda D. (1997) 55 Cal.App.4th 813, 819-820 [father forfeited claim the juvenile court should have obtained the minors’ testimony regarding their wishes for a permanent plan for failing to raise the issue below]; In re Anthony P. (1995) 39 Cal. App. 4th 635, 641 [an appellant may not assert error on appeal when he or she failed to raise the issue at the trial court level].)
Even assuming the issue is not forfeited, we conclude the juvenile court considered the minor’s wishes at the section 366.26 hearing. “‘Section 366.26, subdivision (h) provides the court must “ ‘ consider the child's wishes to the extent ascertainable’ ” prior to terminating parental rights. [Citation.] But the evidence need not be in the form of direct testimony in court or chambers; it can be found in court reports prepared for the hearing. [Citation.]’” (In re Amanda D., supra, 55 Cal.App.4th at p. 820.) The court need not specifically ask the minor how he or she feels about ending the parental relationship. “‘"[I]n honoring [the minors'] human dignity . . . 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 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. . . . [W]e conclude that in considering the child's expression of preferences, it is not required that the child specifically understand the proceeding is in the nature of a termination of parental rights." [Citation.]’” (Ibid.)
“‘What the court must strive to do is “to explore the minor’s feelings regarding his/her biological parents, foster parents, and prospective adoptive parents, if any, as well as his/her current living arrangements. . . . [A]n attempt should be made to obtain this information so that the court will have before it some evidence of the minor's feelings from which it can then infer his/her wishes regarding the issue confronting the court.” [Citation.]’” (In re Amanda D., supra, 55 Cal.App.4th at p. 820.)
Here, contrary to mother’s assertions, there was evidence of the minors’ wishes in the reports submitted by the Agency. For example, the 12-month status review report stated J.B. and I.B. did not want to live at a shelter and wished to continue to live with their paternal grandmother until mother was able to “get her own place.” The 18-month status review report noted J.B. did not want to be removed from his paternal grandmother’s care or go to a foster home, and I.B. stated, “My grandma said that my mom isn’t doing so well and we will not go back with her [(mother)].”
Throughout the proceedings, the Agency explored the thoughts and feelings of the minors and reported that information to the juvenile court. We conclude the level of inquiry was appropriate to obtain information regarding the minors’ wishes and sufficient for purposes of complying with section 366.26, subdivision (h), without causing more trauma than that already suffered by the minors under the circumstances that brought them to the court’s attention in the first instance.
DISPOSITION
The juvenile court’s order terminating parental rights is reversed and the matter is remanded to the court for further proceedings. The juvenile court is directed to make the appropriate findings as to its determination whether the beneficial parental relationship exception applies.



/s/
HOCH, J.


We concur:


/s/
NICHOLSON, Acting P. J.



/s/
BUTZ, J.