In re Ana M.

Filed 7/24/07 In re Ana M. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Stanislaus County. Nancy B. Williamsen, Commissioner.

Linda J. Conrad, under appointment by the Court of Appeal, for Defendant and Appellant.

Michael H. Krausnick, County Counsel, and Carrie Stephens, Deputy County Counsel, for Plaintiff and Respondent.

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Ana D. appeals from orders terminating parental rights (Welf. & Inst. Code,  366.26) to her three young children.^[1] She contends the court erred by denying her earlier petition to regain custody ( 388) and request for a bonding study. She also argues it was error to terminate her rights because: there was no evidence of the childrens wishes regarding adoption ( 366.26, subd. (h)(1)); and there was evidence termination would be detrimental to the children based on their relationship with her ( 366.26, subd. (c)(1)(A)). On review, we will affirm.

PROCEDURAL AND FACTUAL HISTORY

In August 2004, the Stanislaus County Superior Court adjudged three-year-old Ana M., two-year-old Jesus M. and one-year-old Oscar M. dependent children of the court and removed them from parental custody. The court previously determined the three children came within its jurisdiction under section 300, subdivision (b). Oscar was diagnosed in June 2004 with Shaken Baby Syndrome. Due to the nature of Oscars injuries, his older siblings were at risk of abuse. Appellant claimed Oscars head injuries might have been caused by two-year-old Jesus. The childrens father thought a television or computer keyboard could have caused the injuries. Both parents acknowledged a history of cocaine and crank abuse. However, the father claimed he had stopped long before the harm to Oscar while appellant claimed she had not used in three weeks.

Reunification Efforts

Despite more than 18 months of reunification services, neither parent was able to regain custody of the children. For her part, appellant successfully participated in residential drug treatment and aftercare as well as parenting classes. She also regularly visited the children and the frequency and length of their supervised visits gradually increased. She could express what facially appeared to be a considerable amount of self-awareness and lessons learned through reunification efforts. Nonetheless, psychological testing suggested she had not fully integrated those changes. On a superficial level[,] she is saying all the right things. Yet, her actual preparedness was less than what might be concluded upon initial impression.

In addition, the circumstances surrounding the serious injuries Oscar sustained remained unknown such that neither parent could protect the children from future harm. Neither parent accepted responsibility for Oscars injuries. At most, appellant stated she was guilty of not watching her children and had been more concerned about drugs than her children. Confronted with considerable evidence that the father inflicted Oscars injuries, appellant still expressed doubt and believed the father was innocent.

In addition, evidence of domestic violence between appellant and the father emerged, which both parents denied. Still, appellant and the father remained a couple. Once appellant obtained independent housing upon her aftercare graduation, there was evidence the father would join her. A January 2006 psychological assessment of appellant revealed she had learned maladaptive methods of dealing with domestic violence, likely through her childhood as well as her relationship with the childrens father. She sterilize[d] reported incidents of domestic violence and failed to take responsibility or assume culpability when addressing issues of familial violence both between [her and the father] and toward the children.

Setting Order

Eventually in May 2006, the parties stipulated that the court should make 18-month permanency findings and terminate services, setting a [section 366.26] hearing, however, giving discretion to the supervising social worker to allow overnight visits with the mother and, when appropriate, to allow a trial visit with the mother. Under certain conditions, the father could be in the home during the visits. This would later be described as a last ditch opportunity [for the parents] to reunify with their children. The court accepted the terms of the parties stipulation and, at a May 30, 2006 status review hearing, terminated reunification services for both parents as well as set a section 366.26 hearing for September 2006.

Overnight Visits

The children did have overnight visits with their parents for four weekends in July and early August 2006. The agency stopped the overnight visits based on the oldest childs reports of domestic violence in the home. The middle child, as well, later described the domestic violence between the parents during the overnight visits. A mental health clinician working with the two older children observed that once the overnight visits began, the childrens behavior deteriorated. In the case of the oldest child, Ana, the clinician saw a return of physically aggressive and angry behaviors that were evident when she first entered placement. As for the middle child, his level of aggression noticeably had escalated. He displayed the same types of behavior disruption observed in his older sister. Once those visits stopped, Anas maladaptive behaviors were diminishing and the middle child was more manageable.

Each parent denied any physical domestic violence, although appellant admitted they yelled ugly words at each other. Indeed, from appellants perspective, the visits had generally gone well such that in late August 2006, she petitioned the court to modify its orders and return the children to her custody ( 388).

September 25, 2006 Hearing

Following a two-day evidentiary hearing, the court on September 25, 2006, denied the appellants petition as well as a similar petition brought by the father. In the process, the court specifically found that there was ongoing domestic violence in the parents home. The court also accepted an offer of proof from the childrens counsel of what the older childrens therapist would testify to if she were called as a witness. According to the offer of proof, the children were on track before the overnight visits to be dismissed from any kind of therapy because they were doing so well. Once the overnight visits began, the children exhibited extreme behaviors which included hitting each other with closed fists and acting out. They were very violent with each other. The therapist did not believe this was normal behavior attributable to the transition between houses. She was certain it was related to domestic violence that the children were witnessing in the home.

Once it denied the parents modification petitions, the court on September 25th also found good cause to continue the section 366.26 hearing to mid-October. The agency had not filed the requisite adoption assessment in a timely manner. The court further denied the parents request for a bonding study.

Adoption Assessment

In its adoption assessment, the agency recommended that the court find the children adoptable and terminate parental rights. The children were in the same relative placement and had been so for approximately two years. Their caregivers, who were paternal relatives, were committed to adopting all of the children. The agency reported each child was too young to make a statement concerning their adoption.

Section 366.26 Hearing

On October 19, 2006, the court conducted a contested section 366.26 hearing. In addition to receiving the adoption assessment into evidence, the court heard testimony from the childrens paternal aunt and caregiver as well as a friend of appellants.

Called as a witness by the fathers attorney, the paternal aunt testified the children looked forward to seeing him and would be deeply saddened if they never saw him again. She also testified the children were bonded to her and her husband. When asked how the children appeared once they returned from visits with their parents, the aunt replied that they seemed fine. She had not seen them sad. Approximately a year earlier, Ana would come home crying after a visit with her parents. However, recently that had not been the case.

The fathers attorney also called the other witness, who had been in the same residential treatment program as appellant and had become friends with her. The friend testified she had observed several visits between the children and the parents. The children appeared very happy to be with their parents. The children never behaved as though they were afraid of either of their parents.

In closing arguments, the parents attorneys asked the court to find termination would be detrimental to the children because they would benefit from continuing their parent/child relationship. The court disagreed. It specifically noted that Anas behavior was most likely the result of the domestic violence she had witnessed and, once the overnight visits ceased, Anas behavior improved. Also, although it was clear the children love their parents, this was not the only factor that the court had to consider. The court concluded the parents had not met their burden of establishing the visits were so beneficial that they outweighed the permanency of adoption. Having found the children adoptable, the court terminated parental rights.

DISCUSSION

I. Appealability

Appellant filed three notices of appeal, one in each childs case, on December 14, 2006. In each, she appealed from the [f]indings and order[s] issued 10/19/2006 terminating parental rights and identifying adoption as a permanent plan. Her first two issues on appeal relate, however, to the courts September 25, 2006 orders denying her petition to regain custody and her request for a bonding study (September 25th orders). As discussed below, the notices of appeal did not confer jurisdiction upon this court to review the September 25th orders.

Each of those earlier rulings was appealable as a post-judgment order under section 395, subdivision (a). Appellate jurisdiction to review an appealable order, however, depends upon a timely notice of appeal. (In re Jonathon S. (2005) 129 Cal.App.4th 334, 340.) In this case, the 60-day time frame within which to appeal (Cal. Rules of Court, rule 8.400 (d))^[2] the September 25th orders had expired by the December 14th date when appellant filed her notices.

She nonetheless claims the September 25th orders are reviewable on this appeal because (1) the superior court did not simultaneously advise her of her appellate remedy, (2) the lack of notice creates a due process violation, and (3) the courts rulings were part of the section 366.26 hearing and therefore not final until the conclusion of the section 366.26 hearing. None of these arguments is persuasive.

Appellant fails to cite any statute, case authority, or rule of court which renders the 60-day rule for filing a notice of appeal contingent upon an on-the-record appellate advisement. More specifically, appellant does not cite such authority which required the court to advise her on the record of her right to appeal its orders denying her modification and bonding study requests. Indeed, we know of no such authority.

At most in the dependency context, there are three rules of court related to an appellate advisement by the trial court. Rules 5.585(d) and 5.590 mandate that once a court makes a dispositional hearing order ( 361) or an order changing or modifying a previous disposition ( 387), it shall advise the child and the childs parent of the right to appeal and the necessary steps and time for taking an appeal. Rule 5.585(e) outlines a courts duty, once it sets a section 366.26 hearing (a setting order), to advise all parties of their writ remedy ( 366.26, subd. (l); rule 8.450). In this case, the court complied with rule 5.585(d) and (e) when, in August 2004, it issued its dispositional order and, in May 2006, it issued its setting order.

She also overlooks the fact that she had the benefit of trial counsel to advise her of her appellate rights. If she believed the superior court erred by denying her requests for placement or at least a bonding study, she could have sought her attorneys advice regarding what remedies were available to her. It is a fundamental rule of dependency practice that a dispositional order in a dependency proceeding and all subsequent orders, except for a setting order, are directly appealable. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150.) Any post-dispositional order, such as the September 25th orders, which is not appealed, becomes final and binding and may not be attacked on appeal from a later appealable order. (Ibid.)^[3]

In addition, when the court terminated parental rights, it re-advised appellant of her appellate remedy. If at that point she believed the superior court erred by denying her earlier requests and had any questions about her appellate rights, she could have sought her attorneys advice.

To the extent appellant claims the lack of on-the-record appellate advisement created a due process violation, her claim is without merit. In In re Meranda P., supra, 56 Cal.App.4th at page 1151, this court declined to carve out an exception to the waiver rule even though the issues raised involved the important constitutional and statutory rights to counsel and to the effective assistance of counsel. (Ibid.) We concluded enforcing the waiver rule against the parents representational claims did not infringe her due process rights. (Id. at pp. 1151 & 1155.) To reach this conclusion, we engaged in a lengthy analysis of what due process required for purposes of fundamental fairness. (Ibid.) Here, appellant fails to explain how the lack of an on-the-record appellate advisement, when it was not required by law, rendered the dependency proceedings fundamentally unfair. Moreover, in this case, given the courts re-advisement less than a month following the September 25th orders, we conclude there could be no due process violation.

As the United States Supreme Court has recently held, the timely filing of a notice of appeal is a jurisdictional requirement which cannot be excused. (Bowles v. Russell (2007) __ U.S. __ [127 S.Ct. 2360, 2366].) There is no exception even in a situation where a court misinforms the parties of the time limit for filing a notice of appeal. (Id. at pp. 2363-2366.)

Finally, appellant fails to cite and our research has not uncovered any authority for her proposition that the September 25th orders were part of the section 366.26 hearing and were not final until the conclusion of the section 366.26 hearing. Once again, the September 25th orders were rulings denying appellants requests that the court exercise its discretion and either return the children to her custody ( 388) thereby making a section 366.26 hearing unnecessary or order a bonding study in an effort to prevent the courts selection of adoption as the permanent plan for the children at a section 366.26 hearing. Neither ruling was a prerequisite for the courts decision at the section 366.26 to terminate parental rights.

II. Childrens Wishes

At all section 366.26 proceedings, the court shall consider the wishes of the dependent child to the extent ascertainable and shall act in the childs best interests. ( 366.26, subd. (h)(1); In re Juan H. (1992) 11 Cal.App.4th 169, 173.) As mentioned earlier, in this case, the agency reported each child was too young to make a statement concerning their adoption. Appellant contends although that may so be, the children were not too young to provide the court information regarding where they wanted to live and whether they wanted to continue visiting her. The eldest child was five and the youngest was three years of age. Thus, appellant argues there was insufficient evidence of the childrens wishes to support the courts termination decision.

Appellants argument fails first to the extent she challenges the adequacy of the agencys adoption assessment. This is because she failed to object in the trial court to the adequacy of the adoption assessment. (In re Crystal J. (1993) 12 Cal.App.4th 407, 411-412.) Consequently, she has waived the right to complain about it on appeal.

Next, underlying appellants contention is an assumption that there must be direct evidence in the record of a childs wishes. We disagree. As this court explained in In re Leo M. (1993) 19 Cal.App.4th 1583, 1592,

[w]e see no requirement in section 366.26, subdivision [(h)] that evidence indicating the childs wishes be direct or that the child be aware that the proceeding is a termination action for purposes of assessing the childs preferences. While a direct statement of a minors feelings regarding termination is certainly the most dispositive of the minors wishes, it will not always be possible or in the minors best interest to obtain such a statement. For example, some children are simply too young or too immature to understand the concept of termination of parental rights, let alone express their feelings about such a prospect, while others may be permanently and severely traumatized if asked to grapple with the possibility of severing all ties to their biological parents.

The question instead is whether there was evidence presented from which the court could infer the childs wishes or feelings. (In re Leo M., supra, 19 Cal.App.4th at p. 1593.) On this question, appellant must concede the point. As appellant argues in her briefs, there was evidence in the record, albeit conflicting, of the childrens wishes and feelings. For example, the childrens attorney reported that the oldest child still wanted to see appellant, although not the father because he hit her (appellant). Appellant even testified in support of the section 388 petition that her two older children recently told her they wanted to come live with her. The childrens aunt testified they looked forward to seeing their father and they were loving towards him. The aunt also believed the children would be deeply saddened if they never saw him again. On the other hand, there was evidence that each of the children had adjusted well to their relative placement and become attached and bonded to their relatives whom the children referred to as mom and dad. The children also had experienced an increase in aggressive and assaultive behaviors which coincided with the advent of their overnight visits with the parents and had diminished as those visits had been stopped.

Under these circumstances, we conclude there was sufficient evidence of the childrens wishes for the court to consider and proceed with permanency planning.

III. Appellants Claim of Beneficial Relationship with the Children

Last, appellant contends the court erred when it declined to find termination would be detrimental to the childrens best interests. She claims she was entitled to such a finding because she had maintained regular visitation and contact with his children and there was substantial evidence that they would benefit from the continuing the relationship ( 366.26, subd. (c)(1)(A)).

Once reunification services are ordered terminated, the focus shifts to the needs of the children for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) If, as in this case, the children are likely to be adopted, adoption is the norm. Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances provides a compelling reason for finding that termination of parental rights would be detrimental to the child. (In re Celine R. (2003) 31 Cal.4th 45, 53.)

Although section 366.26, subdivision (c)(1) acknowledges that termination may be detrimental under specifically designated circumstances, a finding of no detriment is not a prerequisite to the termination of parental rights. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.) It is the parents burden to show that termination would be detrimental under one of the exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) Thus, when a juvenile court rejects a detriment claim and terminates parental rights, the appellate issue is not one of substantial evidence, as appellant argues, but whether the juvenile court abused its discretion. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) On review of the record, we find no abuse of discretion.

In this case, appellant no doubt established that she maintained regular visitation with her children throughout their dependency. However, the law required more and the evidence in this case did not compel the juvenile court to find that termination would be detrimental to the children.

The exception in section 366.26, subdivision (c)(1)(A), requires that the parent-child relationship promote the well-being of the child to such a degree that it outweighs the well-being the child would gain in a permanent home with new, adoptive parents. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) A juvenile court must therefore: balance[] 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. (Id. at p. 575.) (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1342.)

Here, there was no evidence that any of the children would be greatly harmed by termination. On the other hand, there was evidence visitation had been detrimental to the children. In light of the domestic violence the children recently witnessed during overnight visits, the adverse affect it had on their behaviors, and the improvement in their behaviors once those visits stopped, the court properly could have concluded a continued parent/child relationship was not in the childrens best interests. Under these circumstances, the court did not abuse its discretion.

DISPOSITION

The orders terminating parental rights are affirmed.

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^* Before Vartabedian, Acting P.J., Levy, J., and Dawson, J.

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

^[2] All further rule references are to the California Rules of Court.

^[3]In re Meranda P., supra, 56 Cal.App.4th 1143 like the present case, arose out of an appeal from an order terminating parental rights. The parents appellate claims called into question the propriety of dependency orders at each of the hearings which preceded the termination hearing; however, she had not appealed from any of those orders. (Id. at p. 1151.)