In re Anthony D.

Filed 7/11/06 In re Anthony D. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Peter E. Riddle, Judge. (Retired Judge of the San Diego Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Eduardo D. appeals a judgment terminating his parental rights to his son, Anthony D. He contends the court erred by denying a continuance of the Welfare and Institutions Code section 366.26^[1] hearing and by finding Anthony was likely to be adopted. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On October 20, 2004, the San Diego County Health and Human Services Agency (the Agency) petitioned under section 300, subdivision (b) on behalf of two-year-old Anthony, alleging he was at risk because his mother, Yvette A., was not providing adequate food; he was living in an unsanitary home; Yvette used methamphetamine and marijuana to excess; Yvette and Anthony's newborn sister, Melisa D., tested positive for drugs at the time of Melisa's birth in December 2003; and Yvette had not complied with her service plan for Melisa.

At the time of Anthony's removal, Eduardo had just been released from prison. He had a long criminal history and he and Yvette had a history of domestic violence. The court detained Anthony in foster care. The foster mother said Anthony was largely non-verbal and appeared undernourished.

On December 10, 2004, the court sustained the petition, declared Anthony a dependent child and ordered the parents to comply with their case plans.

For the six-month review hearing the social worker reported the parents did not stay in contact with the social worker and were not complying with reunification services. A maternal uncle and aunt were in the process of adopting Melisa and had been visiting Anthony on weekends. They expressed interest in adopting Anthony.

On June 9, 2005, the court set a contested six-month review hearing for July 7, and directed an order to produce be prepared for Eduardo, who was incarcerated. It stated the Agency was recommending termination of services and the setting of a section 366.26 hearing. Eduardo waived his appearance.

The six-month review hearing was held on July 11, 2005. Eduardo did not attend. His counsel requested a continuance. The court ruled Eduardo's waiver for the hearing set for July 7 applied to the July 11 hearing. The court found the parents had not participated in their case plans and returning Anthony to their custody would be detrimental. It terminated services and set a section 366.26 hearing.

The social worker reported Anthony was placed with the uncle and aunt in June 2005. The parents had not visited him there. Anthony was a happy, healthy three‑year‑old, but had developmental delays, including delayed speech. The uncle and aunt wanted to adopt him and there were 34 approved families interested in adopting a child like Anthony.

At the 366.26 hearing on November 8, 2005, the court found there had been substantial compliance with notice requirements although section 294, subdivision (c)(1) requires service of notice of a section 366.26 hearing at least 45 days before the hearing date, and, here, the parents were provided notice only 40 days before the hearing. Eduardo's counsel requested a continuance or a contested hearing. The court set the contested section 366.26 hearing for December 14. At a pretrial conference on December 8, Eduardo's counsel stated he was withdrawing his request for a contested hearing. He stated he had prepared an order to produce Eduardo, but Eduardo had waived his appearance. The court granted Yvette's counsel's request for a continuance to the December 14 date previously set for the hearing.

On December 14, 2005, Eduardo's counsel moved for a continuance, stating he had received a letter from Eduardo signifying he "may have had a change of heart" and wanted to be present. The court denied the motion, found proper notice had been given and terminated parental rights.

DISCUSSION

I

Eduardo contends the court erred in denying his motion for a continuance. He has not shown an abuse of discretion.

The juvenile court may grant a continuance only upon a showing of good cause. "[T]he court shall give substantial weight to a minor's need for prompt resolution of his or her custody status." (§ 352, subd. (a).) "Continuances are discouraged [citation] and we reverse an order denying a continuance only on a showing of an abuse of discretion [citation]." (In re Ninfa S. (1998) 62 Cal.App.4th 808, 810-811.)

Eduardo has not shown the court abused its discretion by denying his request for a continuance. He waived his appearance for the six-month review hearing and after his counsel requested a continuance or a contested section 366.26 hearing, he waived his right to appear at that hearing also.

Eduardo's reliance on In re Julian L.(1998) 67 Cal.App.4th 204 is misplaced. In In re Julian L., the mother was not notified of the section 366.26 hearing and the court relieved her counsel without timely appointing substitute counsel. The reviewing court found the court erred in not granting a continuance to allow new counsel to learn how his client wanted to proceed. (In re Julian L., supra, at pp. 207-209.)

Here, by contrast, Eduardo was provided with notice and was represented by counsel at all proceedings. "[D]ue process requires 'notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.'" (In re Melinda J. (1991) 234 Cal.App.3d 1413, 1418.) "The essence of due process is fairness in the procedure employed." (Ingrid E. v Superior Court (1999) 75 Cal.App.4th 751, 757.) Eduardo was not deprived of due process. He had notice of the proceedings and had counsel throughout the dependency. His claim of a violation of section 294 is moot because the court continued the section 366.26 hearing, giving him more than 45 days' notice. He personally waived his right to appear at the section 366.26 hearing. The fact that the court continued the hearing for six days at Yvette's counsel's request did not nullify his waiver or give him a second chance to decide whether to appear. The court was not required to grant a second continuance on the day previously set for the contested hearing. Eduardo has not shown an abuse of discretion.

II

Eduardo also asserts because Anthony has developmental delays the court erred in finding he was likely to be adopted. Eduardo has not shown error.

Before a court frees a child for adoption it must determine by clear and convincing evidence the child is likely to be adopted within a reasonable time. (§ 366.26, subd. (c)(1); In re Jennilee T. (1992) 3 Cal.App.4th 212, 223.) "In resolving this issue, the court focuses on the child ¾ whether his age, physical condition and emotional state make it difficult to find a person willing to adopt him." (In re David H. (1995) 33 Cal.App.4th 368, 378.) Whether there is a prospective adoptive family is a factor for the court to consider, but is not determinative by itself. (Ibid.)

A reviewing court must uphold a juvenile court's findings and orders if they are supported by substantial evidence. (In re Amos L. (1981) 124 Cal.App.3d 1031, 1036-1037.) "[W]e must indulge in all reasonable inferences to support the findings of the juvenile court [citation], and we must also '. . . view the record in the light most favorable to the orders of the juvenile court.' " (In re Luwanna S. (1973) 31 Cal.App.3d 112, 114, quoting In re Biggs (1971) 17 Cal.App.3d 337, 340.) The appellant bears the burden to show the evidence is insufficient to support the court's findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

Substantial evidence supports the court's finding Anthony is likely to be adopted. The social worker opined he is adoptable and said he is a cheerful boy and in excellent health. He reported Anthony was having speech therapy and received services from the Regional Center for significant developmental delays. He was placed with his sister in the home of relatives who wanted to adopt him.

The decision in In re Brian P. (2002) 99 Cal.App.4th 616, 619, does not aid Eduardo's position. In In re Brian P., four-and-one-half-year-old Brian was developmentally disabled, but had been making excellent progress in that he was almost able to dress himself, was toilet trained, had begun to speak and his gait had improved. (Id. at p. 619) His foster mother was not interested in adopting him, a relative was considering adoption and he had been referred to the Agency adoption unit. (Ibid.) The reviewing court held the finding Brian was adoptable was not supported by clear and convincing evidence in that the record did not contain facts about him or about the likelihood of adoption, but stated only that he was approved for adoption because of a lack of parental compliance with the case plan and he was a proper subject for adoption. (Id. at p. 624.)

Anthony's case is different. He had been living for six months in the prospective adoptive home of his uncle and aunt, who had been providing excellent care of him, including ensuring that he was receiving weekly speech therapy and services from the Regional Center. During the time he was in foster care they had traveled from Corona, California every weekend to visit him. They were in the process of adopting his sister and wanted to adopt Anthony also. At the time of the hearing, they were completing a home study with the Agency and the social worker reported it was highly likely the study would be approved. In addition to these relatives, 34 approved families had been

identified who were interested in adopting a child like Anthony. Substantial evidence supports the court's finding Anthony is likely to be adopted.

DISPOSITION

The judgment is affirmed.

McCONNELL, P. J.

WE CONCUR:

HUFFMAN, J.

IRION, J.

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