In re D.W.

Filed 1/27/10 In re D.W. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Bradley O. Snell, Temporary Judge. (Pursuant to Cal. Const., art. VI,  21.) Affirmed.

Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant and Appellant.

Pamela J. Walls, County Counsel, and Sophia H. Choi, Deputy County Counsel, for Plaintiff and Respondent.

This juvenile dependency case concerns four children of appellant, B.O. (Mother). After the trial court terminated reunification services for Mother, Mother filed a request to change court order, commonly referred to as a Welfare and Institutions Code section 388^[1]petition. She requested that reunification services resume or, alternatively, that the children be placed with her under family maintenance status. Although the court found that Mother had shown a sufficient change of circumstances to support the request, it denied the request because the requested changes would not be in the best interests of the children.

At a subsequent hearing held pursuant to section 366.26, the court terminated Mothers parental rights to two of the children, D.W. and T.W.

On appeal, Mother contends the court abused its discretion in denying the section 388 petitions and that her parental rights should not have been terminated because of the beneficial relationship between her and the children. We disagree and affirm the courts orders.

I. SUMMARY OF FACTS AND PROCEDURAL HISTORY

A. Prior Dependency Case Concerning D.W. and T.W.

In September 2001, the Riverside County Department of Public Social Services (DPSS) filed a section 300 petition concerning D.W., who was then less than one year old. The petition was based upon allegations the parents abused controlled substances, which limited their ability to provide for the child and endangered his safety and well being. DPSS further alleged the parents failed to provide a stable living environment or participate in services referred to them by DPSS, thereby placing D.W. at substantial risk of serious physical harm. After this initial petition was dismissed, a second petition based upon substantially similar allegations was filed in November 2001. In February 2002, a court found the allegations true and declared D.W. to be a dependent of the court. He was placed with Mother, subject to a social workers supervision, under a family maintenance plan. Mother was required to participate in a drug treatment program and submit to random drug tests, among other requirements.

T.W. was born in March 2002. One month later, DPSS filed a section 300 petition concerning T.W. based upon allegations that the parents had a history of substance abuse and child neglect, and that his sibling, D.W., was a dependent of the juvenile court. An amended petition, filed in June 2002, added an allegation that the childs father continued to abuse drugs based upon positive drug tests in April and May 2002. The court found the allegations true and ordered T.W. placed with Mother on a family maintenance plan and subject to social worker supervision.

In February 2003, DPSS reported that Mother had fully complied with her case plan. She completed drug treatment programs, tested negative for drugs, participated in therapy sessions, and completed a parenting education program and a homemaking program. The social workers stated that Mother had maintained a stable living environment for her and her children, demonstrated a sincere interest in providing her children with a safe and protective home, and established a life style that is free of abuse or controlled substances. The court concluded that there is no continued risk to the children if dependency is terminated. Accordingly, DPSS recommended that the court award custody of D.W. and T.W. to Mother and terminate its dependency jurisdiction over the children. In April 2003, the court did so.

B. Present Dependency Case

H.W. was born in July 2003. L.W. was born in July 2005.

In August 2007, DPSS detained D.W., T.W., H.W., and L.W., placed them in a foster home, and filed a reactivated section 300 petition concerning each of the children. Under section 300, subdivision (b), DPSS alleged: (1) Mother demonstrates an inability to parent and fails to provide the children with adequate supervision, thereby placing them at risk of harm (allegation b-1); (2) Mother failed to benefit from previous parent education and services as evidenced by her use of inappropriate discipline and neglect of the children (allegation b-2); and (3) Mother has neglected the medical health, safety, and well being of the children (allegation b-3). In addition, DPSS alleged the childrens father had a history of alcohol abuse and domestic violence, was not a member of the household, and had failed to provide the children with care, shelter, and protection (allegations b-6, b-7).

Prior to the jurisdictional hearing on the petition, Mother tested positive for cocaine. DPSS then amended the petition to add an allegation that Mother continues to abuse controlled substances which places the children at risk of serious harm (allegation b-8). At the hearing, the court found true allegations b-1, b-2, and b-8. At a subsequent hearing, the court found true the allegations concerning fathers alcohol abuse, domestic violence, and failure to provide for the children. The court declared the children to be dependents of the court and ordered them removed from the parents. The court ordered DPSS to provide family reunification services to Mother and approved of a case plan that called for Mother to participate in counseling, parenting education, and a drug treatment program.

The four children were originally placed in one foster home. In September 2007, the two girls, H.W. and L.W., were placed in a different foster home. In a status review report prepared in March 2008, a social worker reported that the children had adjusted well to their placements and were comfortable in their homes.

The social worker reported that the supervised weekly visitation between Mother and the children had been problematic. Mother had to be redirected . . . and reminded of what is appropriate during visitation . . . . Because of her lack of a consistent phone number, she missed visits that needed to be rescheduled.

At a status review hearing in March 2008, the court found that Mother had failed to make substantive progress or to complete her case plan. The court rejected Mothers request for overnight or weekend visits with the children, and ordered DPSS to provide parent-child interactive therapy. The court ordered reunification services continued.

In September 2008, DPSS recommended that reunification services for Mother be terminated. At that time, Mother was pregnant and living with her boyfriend, H.L., who has an extensive criminal history, including convictions for making terrorist threats, corporal injury to a spouse, battery to a spouse, and burglary. Mother dropped out of counseling; she did not provide a certificate of completion for a parenting education course; she had one positive test for alcohol and admitted to a relapse, but otherwise had clean test results from February 2008 through July 2008; and she missed some sessions of the parent-child interactive therapy. Visitation was again described as problematic.

According to the social worker, DPSS has serious concerns about [Mothers] ability to parent four young children; redirect and protect against behavioral issues, including but not limited to sexualized behavior; maintain her fragile sobriety; secure housing and employment; care for a new baby; and support herself and her family during her frequent states of being overwhelmed.

In an addendum report prepared in October 2008, the social worker reported that Mothers ongoing relationship with her boyfriend reflects her poor judgment. The social worker also reported that Mother missed several visits with her children and therapy sessions. Mother continues to maintain a transient lifestyle and has done minimal both in completing her case plan services, in her Family Preservation Program, and in maintaining consistent contact with her children as well as her service providers. She continues to abdicate responsibility and play the victim, giving her various service providers conflicting stories regarding her housing and contact information. The housing situation she continually defaults to would place her children at serious risk for abuse or neglect.

Following argument at a contested review hearing in October 2008, the court terminated services and changed the permanent plan to adoption. The court set a hearing to be held pursuant to section 366.26.

In a section 366.26 report, the social worker reported that D.W. and T.W. are . . . in a prospective adoptive home and the prospective adoptive family is committed to the adoption process. Regarding visitation, the social worker reported that Mother has been consistent and on time for her visits with the children. During a visit with all four children, Mother was appropriate and all the children appeared to enjoy the visit . . . . No problems were noted. In his assessment and evaluation of Mother, the social worker reported that she failed to benefit from prior intervention. [] In addition, [Mother] has a history of being transient as well as a history of domestic violence with the childrens father . . . . [Mothers] progress has been stalled within the Family Preservation Court; however, she reports she is due to graduate in February 2009. She is determined to reunify with her children. [Mother] reports that she is in the process of securing a livable home for the children but has not moved in yet. [Mother] is pregnant and is expecting to give birth in February 2009. Based on her history, [DPSS] is concerned that all the children and the new baby would be overwhelming for her to successfully meet all their needs.

Mothers fifth child, K.L., was born in February 2009. The following month, DPSS filed a section 300 petition concerning K.L., based upon allegations that Mother tested positive for cocaine while nursing K.L., the father abused drugs, and K.L.s siblings have been abused or neglected and there is a substantial risk that K.L. will suffer similar harm.

In an addendum report prepared for the jurisdictional hearing concerning K.L., the social worker provided the following assessment: These parents have been very cooperative with this social worker. During my visits with [Mother], she presented as comfortable and unguarded with me. She was attentive and nurturing of the baby. Despite her history with [DPSS], [Mother] appears to have greatly benefited from her enrollment in Family Preservation Court. She appears to be fully committed to the care and welfare of her baby, [K.L.]. . . . It seems that the parents have positively changed their previous lifestyle of substance abuse and the consequences that accompany that lifestyle. Based on this report, DPSS recommended that the court dismiss the petition without prejudice. The court did so.

In April 2009, Mother filed section 388 petitions concerning the children. She requested that the order terminating reunification services be changed to allow for such services or, in the alternative, that the children be placed with her on family maintenance. She supported the request with evidence that she had overcome her substance abuse problem, completed Family Preservation Court, stayed clean for 20 months, completed parenting classes, and obtained suitable housing. She explained that the requested changes are in the best interests of the children because: she loves her children and has continuously worked towards reunifying with them; she has regularly visited with the children and the children have enjoyed the visits and are happy to see her; the caretaker for the two girls has had difficulty caring for the girls; she has remained free of drugs; she wants to and is able to care for the children; the bond between her and the children will remain intact; and she has changed her life around for her children, and proved, from all of her hard work, that she can properly care for her children. The court set a hearing on the petitions.

DPSS filed an addendum report in June 2009. In the addendum, DPSS responds to the assertions made in Mothers section 388 petition. While acknowledging that Mothers visits have been appropriate and that she is caring for K.L. appropriately, the social worker expressed concern that [p]lacing all four children in [Mothers] care would be putting all five children at risk of abuse and setting [Mother] up to fail[,] particularly since her four older children have not been placed together due to their aggression towards each other. Contrary to Mothers assertion that the children desire to be returned to her care, the social worker reported that all the children have expressed a desire to stay where they are. The two older boys have done exceptionally well in school by bringing their grades up and always behaving well; they talk about life with their prospective adoptive parents, going on trips and doing things together; they have bonded to the [prospective adoptive] parents and it appears it would be detrimental to have them removed; and, although the boys look forward to visits with Mother and their sisters, they dont wish to move and are happy and glad to be in the adoptive home. The two girls call Mother by her first name, not mother; they misbehave after visits with Mother; and have told their foster mother that they wish K.L. was placed with their foster mother.

In an adoption assessment report, the social worker reported that the prospective adoptive parents appear to be attached and bonded to the children and [t]he children seem[] to reciprocate an attachment and bond to the prospective adoptive parents and appear to be thriving. The prospective adoptive parents speak devotedly of the boys and interact with them in a loving and compassionate manner. The social worker also reported the following regarding statements made by the two boys regarding the prospective adoption: [T]hey said that they would like to be adopted by the prospective adoptive parents. [D.W.] stated that he feels good that he will be adopted because he will be with mom and dad forever. [T.W.] stated that he wants to be adopted because mom and dad take good care of me. Both [D.W.] and [T.W.] appear to be attached to both the prospective adoptive mother and father and their prospective adoptive sister. They appear to feel safe and comfortable in the home of the prospective adoptive parents.

C. Hearing on Section 388 Petitions and Section 366.26 Hearing

A hearing on Mothers section 388 petitions was held in June 2009. The parties stipulated and the court found that there had been a change of circumstances for purposes of section 388. The parties stipulated that Mother, if called to testify, would testify that: she has gained stability in her life; she has been clean for over 21 months; she has stable housing appropriate for the children; she has benefited from counseling; visits with the children have been great and the children are always excited to see her; she loves the children and wants to reunite with them; she wants the children to stay together and the family to remain intact; she has the skills and means to care for them; she has a support system, including K.L.s father; she is getting a high school diploma; and she is enrolling in massage therapy courses. The parties also stipulated that H.L., K.L.s father, would testify that he works in construction and provides financial support to Mother.

A social worker testified that he asked the boys if they wanted to go back to live with Mother. D.W. told the social worker he wanted to be adopted and stay with his caregivers; T.W. was going back and forth, but towards the end he wanted to stay where his brother was.

On examination by the minors attorney, D.W. (then eight years old) testified that he understood that adoption means that whoever is adopting you, like the people you are living with, they become your mom and dad forever. He further testified that he wanted to be adopted by the people he is living with. When asked why he did not want to go live with Mother, he said: I do, but I know she is going to make another mistake. On cross-examination by Mothers counsel, D.W. was asked if he would want to live with Mother if Mother had a home, like a house, with a bedroom for [him]. D.W. said [n]o. In response to questions from DPSSs counsel, D.W. said that he feels loved by his current caretakers and feels safe living with them. He also testified that he would want to be adopted even if it meant that he could no longer see Mother.

T.W. (then six years old) testified. When asked by his attorney whether he wanted to live with his current caregivers or with Mother, T.W. said: Where I am at. He said he did not want to live with Mother because she will keep on losing me. He further stated that he wanted to be adopted by the people he is living with even if that meant he could not see Mother again. He said he feels loved by his current caregivers and safe with them.

A social worker familiar with K.L.s dependency case testified that she believed it was in K.L.s best interest to remain placed with Mother.

Following arguments by counsel, the court began its ruling from the bench by stating that [t]his is a difficult case. The court acknowledged that Mother has made progress and is in a much better place now than she was a year ago. Nevertheless, the court continued, the boys are in the best place that they possibly could be right now. . . . [] . . . I cannot see, not withstanding the progress that [Mother] has made, removing those boys from the setting, the home and the track for adoption and permanency that they have right now, and placing them potentially back with [Mother] where there is a risk for relapse and certainly a lack of stability that each of those two boys perceive. Accordingly, the court denied the petitions.

The court then proceeded to hold the section 366.26 hearing. With the agreement of the parties, the court considered the evidence submitted in connection with the section 388 petitions. The court also received DPSSs section 366.26 report and subsequent addendums. No other evidence was submitted. Mother argued that two statutory exceptions to adoption applied in this case: the beneficial parental relationshipexception ( 366.26, subd. (c)(1)(B)(i)) and the sibling relationship exception ( 366.26, subd. (c)(1)(B)(v)).

The court rejected the application of the beneficial parental relationship exception, stating that although the boys clearly like Mother and enjoyed the visits with her, this did not outweigh the benefit they would receive from adoption. The court also rejected the application of the sibling relationship exception. The court found the boys were adoptable and terminated the parents parental rights. Mother appealed.

II. ANALYSIS

A. Section 388 Petition

A parent may petition the juvenile court to change, modify, or set aside a previous order on the grounds of changed circumstances or new evidence. ( 388, subd. (a).) At a hearing on a section 388 petition, the moving party has the burden of showing by a preponderance of the evidence that (1) there is new evidence or a change of circumstances, and (2) the modification would serve the best interests of the child. ( 388; In re Stephanie M. (1994) 7 Cal.4th 295, 317; In re Matthew P. (1999) 71 Cal.App.4th 841, 849; Cal. Rules of Court, rule 5.570(h).) On appeal, we will not disturb the juvenile courts ruling on a section 388 petition absent a showing of a clear abuse of discretion. (In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.)

At the hearing, counsel for Mother and DPSS stipulated that Mother had shown a change in circumstances, and the court so found. On appeal, DPSS does not dispute this finding. Therefore, we consider only whether Mother met her burden of proof on the second prong; that is, whether the requested change would serve the childrens best interests.

In In re Kimberly F. (1997) 56 Cal.App.4th 519, Division Three of this court observed that the determination of a childs best interest under section 388 involves looking at a number of factors generally falling along a continuum. (In re Kimberly F., supra, at p. 530.) These factors include: (1) the seriousness of the problem which led to the dependency, and the reason for any continuation of that problem; (2) the strength of relative bonds between the dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been. (Id. at p. 532.) These factors are not exhaustive, but they provide a reasoned and principled basis on which to evaluate a section 388 motion. (Ibid.)

With respect to the first factor, Mother acknowledges that her drug use, which (among other matters) prompted the dependency case, is a serious issue. But she asserts that she addressed the issue head on by enrolling in a drug treatment program and presenting numerous clean drug tests. DPSS does not directly address this factor, and Mothers progress with respect to her drug treatment is not disputed. Even so, as the trial court noted: [O]ne of the first things [one learns] in drug addiction treatment is that you never overcome. There always is the risk of [a possible relapse]. Indeed, the record reflects that Mother had previously overcome a history of substance abuse in 2003, but then had a relapse that led to the current dependency proceedings in 2007. The court could reasonably conclude there was a risk of another relapse.

The strength of the relative bonds between the children and both Mother and the caretakers was particularly significant to the trial court. Although the boys enjoyed visits with Mother, it is clear that they have a strong bond with their caregivers and do not wish to return to Mothers care. They testified that they want to be adopted by their current caregivers even if this meant they would never see Mother again. The lack of a strong bond between the two girls and Mother is evident from the fact that they refer to her by name, not as their mother, and misbehaved after visits. Mother presented no substantial evidence of a strong bond between her and the two girls.

In connection with the third factor, Mother points to the progress she has made toward overcoming the drug use and other issues that led to the dependency. By the time of the hearing on the section 388 petitions, she appeared to have obtained stable housing and financial support, continued to present clean drug tests, and was getting a high school diploma and enrolling in massage therapy courses to secure employment. The positive changes in her life led DPSS to request dismissal of its petition regarding the infant, K.L. As the court acknowledged, Mother is in a much better place now than she was a year ago.

Nevertheless, the court concluded that despite Mothers progress, based upon the totality of the circumstances, continuing on the path to adoption was in the childrens best interests. We cannot say the conclusion is an abuse of discretion. The conclusion is amply supported by the testimony of the children and the social worker, particularly with respect to the bond that had developed between the caregivers and the children and the lack of a strong bond between Mother and the children. The seriousness of the prior drug abuse and the risk of a relapse, however small in this case, also supports the courts ruling. Accordingly, we affirm the orders denying the section 388 petitions.

B. Beneficial Parental Relationship Exception to Adoption

At a section 366.26 hearing, the court determines a permanent plan of care for a dependent child. (In re Casey D. (1999) 70 Cal.App.4th 38, 50.) Adoption is the permanent plan preferred by the Legislature. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) If the court finds that a child may not be returned to his or her parents and is likely to be adopted, it must select adoption as the permanent plan, unless it finds that termination of parental rights would be detrimental to the child under one of the statutory exceptions set forth in section 366.26, subdivision (c)(1). (See In re Jamie R. (2001) 90 Cal.App.4th 766, 773.)

The parental benefit or beneficial relationship exception is set forth in section 366.26, subdivision (c)(1)(B)(i). The exception applies where the parent has maintained regular visitation and contact with the minor and the minor would benefit from continuing the relationship. (In re Derek W. (1999) 73 Cal.App.4th 823, 826;  366.26, subd. (c)(1)(B)(i).) The parent has the burden of proving that the exception applies. (In re Derek W., supra, at p. 826.) The parent must do more than demonstrate frequent and loving contact[,] [citation] an emotional bond with the child, or that parent and child find their visits pleasant. [Citation.] Instead, the parent must show that he or she occupies a parental role in the childs life. (Id. at p. 827.)

The parent must also show that 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. 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 parents rights are not terminated. (In re Derek W., supra, 73 Cal.App.4th at p. 827, quoting In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

The balancing of competing considerations must be performed on a case-by-case basis and take into account many variables, including the age of the child, the portion of the childs life spent in the parents custody, the positive or negative effect of interaction between parent and child, and the childs particular needs. [Citation.] When the benefits from a stable and permanent home provided by adoption outweigh the benefits from a continued parent/child relationship, the court should order adoption. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1349-1350.)

There must be a compelling reason for applying the parental benefit exception. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1349.) This is a quintessentially discretionary determination. Thus, we review the juvenile courts determination for an abuse of discretion. (Id. at p. 1351.) [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. The reviewing court should interfere only if [it] find[s] that under all the evidence, viewed most favorably in support of the trial courts action, no judge could reasonably have made the order that he did. . . . . [Citations.] (Ibid.)

Here, in discussing the beneficial relationship exception to adoption, the court acknowledged that the boys like their mom and, clearly, enjoyed those visits with her. Nevertheless, the court concluded the possible benefit from maintaining a relationship between the boys and Mother did not outweigh the benefit the boys would receive from adoption. This conclusion is supported by evidence from the social worker and the boys that they would prefer to be adopted even if that meant they could never see Mother again. The boys, though young, impressed the court with their intelligence and ability to communicate, and the court appeared to give their testimony significant weight.^[2] Although there is ample evidence of Mothers love for her children and that she was appropriate during the most recent visits, that is not enough to overcome the preference for adoption. (See In re Derek W., supra, 73 Cal.App.4th at pp. 826-827.) Based upon the reports and testimony presented, there was sufficient evidence to support the courts finding that the benefits to the boys of adoption outweighed the possible benefits of maintaining the relationship with Mother.

Mother relies heavily on In re S.B. (2008) 164 Cal.App.4th 289. In that case, the father of S.B. maintained regular, consistent, and appropriate visits with S.B. throughout the dependency proceedings. (Id. at p. 298.) In a bonding study prepared for the section 366.26 hearing, the studys author described the bond between the child and parent as fairly strong or moderate. (Id. at p. 295.) During the study, S.B. sat in [the fathers] lap, played games and colored. [The father] was responsive to her requests. In the middle of coloring, S.B. said to [the father], I love you, and he responded in kind. S.B. whispered and joked with [the father] and then spontaneously said, I wish I lived with you and Mommy and Nana. (Ibid.) At the hearing, the author testified that because the bond between [the father] and S.B. was fairly strong, there was a potential for harm to S.B. were she to lose the parent-child relationship. (Id. at p. 296.) The trial court found that the beneficial relationship exception did not apply and the Court of Appeal reversed. (Id. at p. 301.)

In explaining the reasons for reversing the trial court, the Court of Appeal in In re S.B. stated the following: For the first year after she was removed from parental custody, S.B. continued to display a strong attachment to [the father]. She was unhappy when visits ended and tried to leave with [the father] when the visits were over. [The father] was sensitive to S.B.s needs. Social worker Brown noted, [the father] consistently puts his daughter[]s needs and safety before his own. S.B. responded to [the fathers] attention. During one visit, S.B. sat on [the fathers] lap [and] proudly showed off the pink tennis shoes he had bought her. The record clearly establishes S.B. initiated physical contact with [the father]. Dr. Kelin observed that S.B. ran into [the fathers] arms, again getting her father to pick her up. [The father] and S.B. shared an affectionate relationship. S.B. nestle[d] up to [the fathers] neck and whispered and joked with him. The record also shows S.B. loved [the father] and wanted their relationship to continue. S.B. whispered to her father, I love you. As [the father] started to leave, S.B. stated, Ill miss you, and then she gave him another hug. S.B. spontaneously said, I wish I lived with you and Mommy and Nana. (In re S.B., supra, 164 Cal.App.4th at p. 298.) The court concluded: The record shows S.B. loved her father, wanted their relationship to continue and derived some measure of benefit from his visits. Based on this record, the only reasonable inference is that S.B. would be greatly harmed by the loss of her significant, positive relationship with [the father]. (Id. at pp. 300-301.)

The present case is distinguishable from In re S.B. The childs expressions of love for the father and her strong and clear desire to live with the father in that case are not present here. Although the social worker described visits between Mother and the children as appropriate and that the children appeared to enjoy them, there is nothing to indicate that the children in this case shared the kind of affection for Mother that S.B. expressed for her father. More importantly, in contrast to S.B.s expressed desire to live with her father, the boys in this case indicated to the social worker and again at the hearing that they wished to be adopted even if that meant they could not see Mother again. The court could reasonably infer from their testimony that the bond between them and Mother was not so strong that it outweighed the benefit of adoption. Because of the factual differences between this case and In re S.B., that case is not controlling here.

III. DISPOSITION

The orders appealed from are affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King

J.

We concur:

/s/ Richli

Acting P.J.

/s/ Miller

J.

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^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] The court made the following comments regarding the boys testimony: As I look at this case and I see where these boys are, these boys are young. Certainly, their testimony isnt binding on the Court. They are young, eight years old, six years old, but they, as [their counsel] indicated, they are intelligent boys. I was impressed with the manner in which they testified. I was impressed with their level of intelligence and ability to communicate. So I do take their opinion as evidence in this matter.