In re E.M.

Filed 4/30/07 In re E.M. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

I.

INTRODUCTION

Taiheara O. (Mother) appeals from an order terminating parental rights to her son E. M. She urges that the court erred in denying her motion for a continuance so that she could file a Welfare and Institutions Code[1] section 388 motion, and that the court erred in choosing adoption as the permanent plan. We affirm.

II.

PROCEDURAL AND FACTUAL BACKGROUND

We summarize the factual and procedural background in this case to the limited extent necessary to address the contentions on appeal.

Respondent Alameda County Social Services Agency (Agency) filed a petition regarding E. M. under section 300 in June 2004. The petition, as amended, alleged in relevant part that E. M. was at risk for physical abuse by Mother, based on bruising and redness consistent with slapping observed on May 30, 2004, by medical staff at Childrens Hospital of Oakland. Mother admitted slapping him in the head and on the buttocks. Mother indicated she was not able to provide ongoing care for E. M. due to parental stress, post-partum depression and possible bipolar disorder. The alleged father[2] lived with substance abusers, and he was not willing to have his son reside there. He was aware that E. M. had asthma, but unaware of the childs medications and how to administer them. The alleged father was convicted of Penal Code section 243, subdivision (e)(1)(M) after physically abusing Mother in E. M.s presence. E. M.s parents were subject to a mutual restraining order, which they repeatedly violated.

The court found all the allegations of the petition true. E. M.s foster care placement was continued. Reunification services were ordered for the parents.

At the six-month review hearing on December 10, 2004, the court found that reasonable services were provided, and granted six more months of reunification services. Both parents were in partial compliance with the case plan. The court continued E. M.s placement with his maternal grandmother, with whom he had been living since approximately October 2004.

At the 12-month review hearing on May 24, 2005, the court found reasonable services had been provided but the parents had made minimal progress. Mother had been evicted from her home and was staying with friends. She was not receptive to services regarding housing and counseling which were offered. The court ordered six more months of reunification services.

On August 18, 2005, E. M. was removed from his maternal grandmothers home and placed in foster care. Mother was incarcerated in September 2005 and again in October 2005. At the 18-month review hearing on December 19, 2005, E. M. remained in his foster care placement. The court found that reasonable services had been provided and the parents had made only partial progress. Mother was still incarcerated. The court terminated reunification services, and set the case for a section 366.26 hearing.

At the section 366.26 hearing on April 5, 2006, counsel for Mother made a request for continuance for the purpose of filing a [section] 388 motion. Counsel made an offer of proof that Mother, while incarcerated, had completed her GED program with the exception of the test, was halfway through a drug and alcohol program, and had completed the Moms Program at Santa Rita. Mother was also halfway through the Teaching and Loving Kids program, was seeing a psychiatrist and therapist, and taking Lithium. Counsel indicated he had only learned of Mothers described activities that morning.

The court denied the request for a continuance. However, after commencing the section 366.26 hearing, the matter was continued until May 22, 2006, at which time Mother again sought a continuance for the purpose of filing s section 388 motion on the basis that she was no longer incarcerated, and that her counsel had not received an updated copy of memorandum report. The court denied that motion. Following testimony, the hearing was continued for closing arguments until June 7, 2006. The court found that there would be no harm to the minor, nor would he suffer any detriment if he was freed for adoption, and that Mother had not met her burden of proving a beneficial parent-child relationship. The court found by clear and convincing evidence that the minor was likely to be adopted, and terminated the parental rights of both parents. This timely appeal by Mother followed.

III.

DISCUSSION

A. Mothers Motion For Continuance In Order to File a Section 388 Motion

Mother argues that the trial court erred in denying her motion for continuance on April 5, 2006, which she sought in order to file a section 388 motion alleging a change in circumstances.[3]She orally moved for this continuance on the day of the section 366.26 hearing. We review the trial courts denial for abuse of discretion. (In re Elijah V. (2005) 127 Cal.App.4th 576, 585.)

Section 352 sets forth the requirements regarding continuances in dependency proceedings. It provides in pertinent part: the court may continue any hearing under this chapter . . . provided that no continuance shall be granted that is contrary to the interest of the minor. In considering the minors interests, the court shall give substantial weight to a minors need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements. [] Continuances shall be granted only upon a showing of good cause . . . . Whenever any continuance is granted, the facts proven which require the continuance shall be entered upon the minutes of the court. [] In order to obtain a motion for a continuance of the hearing, written notice shall be filed at least two court days prior to the date set for hearing, together with affidavits or declarations detailing specific facts showing that a continuance is necessary, unless the court for good cause entertains a motion for an oral continuance of the motion. ( 352, subd. (a), see also Cal. Rules of Court, rule 1422(a)(2).) Courts have interpreted this policy to be an express discouragement of continuances . . . [and] [t]he courts denial of a request for a continuance will not be overturned on appeal absent an abuse of discretion. [Citation.] (In re Elijah V., supra, 127 Cal.App.4th at p. 585.)

Mother has failed to demonstrate how the courts ruling was an abuse of discretion. She argues that the continuance would not have prejudiced the [D]epartment in any way. Even if there were no prejudice to the Department, the issue was whether or not the continuance would be in the best interests of E. M. As the court noted, however, although[] I think I have some discretion in that regard, . . . more importantly, [the question is] whether the best interest of the minor would be served at this late date. We are here in the [section 366].26 hearing, and the mother does not have housing. . . . [A]lthough I will admit based on what I heard, it sounds like the mother has made tremendous progress, the fact of the matter is this is not about the mother any longer.

We agree.  The reality is that childhood is brief; . . . [t]he nurturing required must be given by someone, at the time the child needs it, not when the parent is ready to give it.  (In re Daniel M. (1993) 16 Cal.App.4th 878, 884, citing In re Debra M. (1987) 189 Cal.App.3d 1032, 1038.) Given the policy of this state to provide dependent children with stability and prompt resolution of their custody status, we cannot say the trial court abused its discretion in denying Mothers request for a continuance of the section 366.26 hearing in order to file a section 388 motion.

B. Termination of Parental Rights

Mother maintains that there was insufficient evidence from which the court could find that E. M. was adoptable. She urges that guardianship was the better alternative, and that the finding of adoptability may result in E. M. being a legal orphan because the success of the placement with the prospective adoptive mother is questionable.

We review the trial courts finding that E. M. was adoptable to determine whether the record contains substantial evidence[4] from which a reasonable trier of fact could find by clear and convincing evidence that E. M. was likely to be adopted. (In re Asia L. (2003) 107 Cal.App.4th 498, 509.) Under section 366.26, subdivision (c)(1), [t]he court shall terminate parental rights only if it determines by clear and convincing evidence that it is likely that the minor will be adopted . . . .  Clear and convincing evidence requires a finding of high probability. The evidence must be so clear as to leave no substantial doubt. [Citation.] (In re Brian P. (2002) 99 Cal.App.4th 616, 624.)

Mother asserts that there were real questions about the prospective adoptive home in which E. M. was living at the time of the hearing, and whether that placement would lead to permanency. The focus of a determination of adoptability is on the child, however, not on a prospective adoptive home.  If inquiry into the suitability of prospective adoptive parents were permitted in section 366.26 hearings, we envision that many hearings would degenerate into subjective attacks on all prospective families in efforts to avoid termination of parental rights. Such a result is not envisioned by the statutory scheme. [Citation.] (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1650, fn. omitted, quoting In re Scott M. (1993) 13 Cal.App.4th 839, 844.)

The presence of a prospective adoptive parent, however, is relevant to the determination of adoptability. Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minors age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. (In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.) In considering the likelihood of adoptability, the court must focus on the child, and whether the childs age, physical condition, and emotional state make it difficult to find a person willing to adopt. [Citations.] (In re Brian P., supra, 99 Cal.App.4th at p. 624.)

E. M., at the time of the hearing, was a generally healthy four-year-old child. His only medical problem was asthma, which was largely controlled by daily medication. The record demonstrated that, when he received his medication on a daily basis, his asthma improved and was generally manageable. He was developmentally on target. According to his child welfare worker, E. M. is able to dress himself with minimal assistance. He can eat with a fork. He listens attentively to stories and conversations. He can state his full name and recognize his name when written. He can recognize letters and colors. He responds positively to praise. . . . He is a friendly[,] outgoing and verbally expressive child. There was substantial evidence in support of the trial courts finding, by clear and convincing evidence, that E. M. was likely to be adopted.

Mother also asserts that the potential adoptive placement was shaky, in part because E. M. is likely to have emotional problems stemming from the disruption of his continuing relationship with his mother, his [maternal grandmother] and his father.[5] There is no evidence,[6] however, that E. M. is likely to have emotional problems in the future for this reason. The evidence showed that E. M. saw Mother only once since September 1, 2005. Mother testified that, while she had been incarcerated, she spoke with the minor by telephone on a weekly basis from September through December 2005. After that, she had no contact with him. Mother testified she did not call because she did not know the foster parents telephone number. Despite E. M.s counsels acknowledgment of a relationship of sorts between Mother and E. M., there was no evidence demonstrating that terminating this relationship would be detrimental to the minor. Speculation about emotional problems E. M. might have in the future is not enough to disturb the courts finding that the E. M. is likely to be adopted.

IV.

DISPOSITION

The order is affirmed.

_________________________

Ruvolo, P. J.

We concur:

_________________________

Reardon, J.

_________________________

Sepulveda, J.

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[1] Unless otherwise noted, all further statutory references are to the Welfare and Institutions Code.

[2] E. M.s father is not a party to this appeal.

[3] While Mother argues in her opening brief that she was denied her right to a hearing on her section 388 motion, in her reply brief she concedes that she did not make a section 388 motion, oral or written, but simply argued for a continuance in order to file a section 388 motion. . . .

[4] We note that Division Three of this court has applied the abuse of discretion standard to decisions regarding exceptions to termination of parental rights under section 366.26, subdivision (c)(1)(A), rather than the substantial evidence standard applied by other decisions. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351; see In re Autumn H. (1994) 27 Cal.App.4th 567, 575-576.) We find it unnecessary to resolve this issue because we find that substantial evidence supports the courts determination.

[5] Mother asserts in her reply brief that she met the requirements for the exception to termination of parental rights found in section 366.26, subdivision (c)(1)(A), which she asserted at the hearing. Nevertheless, she has not demonstrated that termination of parental rights would be detrimental to E. M., that she maintained regular visitation and contact with him, or that E. M. would benefit from continuing the relationship.

[6] At the hearing, the court held that evidence regarding E. M.s relationship with his maternal grandmother was not relevant to the issue of whether the section 366.26, subdivision (c)(1)(A) exception applied. As noted, Father is not a party to this appeal.