In re Justin W.

Filed 5/17/07 In re Justin W. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appellant Rachel W. is the mother of four-year-old Justin W., a dependent child of the juvenile court. Mother appeals from an order terminating her parental rights. She contends that the juvenile court denied her right to due process by limiting cross-examination of a caseworker, and that two of the courts key findings are not supported by substantial evidence. We disagree and affirm because the limitation on cross-examination was minor and did not violate due process, and because substantial evidence supports the two challenged findings.

I. FACTS

On February 10, 2005, respondent Contra Costa County Department of Children and Family Services (Department) filed a dependency petition on behalf of Justin, who was then two years old. The petition alleged that Mother had failed to protect Justin within the meaning of Welfare and Institutions Code section 300, subdivision (b).[1]

The Department alleged that Mother had mental health issues that impaired her ability to care for Justin: on January 27, she admitted she had stopped taking her psychiatric medication without her doctors approval, and she reported hearing voices telling her she was a worthless piece of shit. The Department also alleged that Mother was not keeping appointments with the doctor who was treating her mental illness, and was being evicted from her transitional housing due to non-compliance with program rules and inappropriate behavior. Justin was left in Mothers care pending a contested hearing on the petition.

In its combined jurisdiction/disposition report, the Department noted that Mother had been using drugs since she was ten, suffers from several mental illnesses, had a history of 16 prior referrals to the Department between August 1993 and October 2004, and had lost custody of her three older boys. The Department reported that on January 19, Mother had another resident in the transitional housing program pick up Justin from day care at 5:00 p.m., but did not retrieve Justin from the resident until 8:25 p.m. and did not leave any food or diapers for him. Mother has demonstrated a pattern of abandoning [Justin] with others for short periods of time.

According to the report, a social worker visited Mother on January 27. Mothers house was messy, with clothes piled up, loose spaghetti on the floor and dirty dishes piled in the sink. It was then that Mother reported having stopped taking her medication, and hearing voices telling her she was worthless.

But Mother claimed she had not used illegal drugs since January 31, 2003. The Department had no current evidence to dispute that claim. Mother also was addressing her mental health issues. Mother had asked the Department for help. She and Justin are bonded, and Mother has used appropriate discipline skills with Justin[and] has met his physical needs. The Department reported that Justin appears on target developmentally and is a pretty, happy, loveable child. He is bonded to his mother. He pours affection towards his mother. The Department concluded that Justin appears to be safe in the care and home of [Mother] at this time. The Department recommended continuation of family maintenance services.

The contested hearing on the petition was set for May 5. The Department prepared a supplemental memo for that hearing, noting its concern that [Mother] may have relapsed and is using drugs again. Mother also had a man with an extensive criminal record and arrests for drugs living with her and caring for Justin. The Department concluded that Mother did well living in a structured environment for a period of time, but when she lived alone she can make poor choices. The Department recommended that family maintenance services continue.

When Mother appeared in court for the May 5 hearing, she appeared to be under the influence of illegal drugs. The juvenile court ordered an immediate drug test. Mother tested positive for amphetamine, opiates, and either THC or cocaine. Mother admitted to the courts bailiff that she had shot up heroin the previous day. Mother was arrested for being under the influence and Justin was detained forthwith. The Department filed a supplemental petition alleging Mothers drug use.

At a detention hearing on May 6, the juvenile court removed Justin from Mothers custody and placed him with the Department. The court ordered that all visits between Mother and Justin be supervised.

In an addendum to the combined jurisdiction/disposition report, the Department repeated its observations that Justin was on target developmentally and was bonded to Mother and pours affection towards her. The Department also noted that every time Justin sees a young, fair skinned [sic] woman he cries out Mommy to them. But the Department concluded that Justin is not safe in the care of his mother until she resolves her drug abuse issues. The Department recommended that Justin continue to be placed with the Department while Mother receive family reunification services.

On May 31, Mother pleaded no contest to certain allegations of the original petition. The juvenile court found Justin to be a dependent child and ordered reunification services. The court ordered one hour of supervised visitation twice monthly, and gave the Department the authority to have Justin reside with Mother if she was in a residential treatment program.

The six-month review hearing was set for November 16. In its report prepared for that hearing, the Department recommended that the court terminate reunification services and set a hearing under section 366.26 (.26 hearing) to determine a permanent placement plan for Justin. The Department reported that Mother entered a residential treatment program on November 3 but left the program the next day. She did not participate regularly in random drug testing during the past six months and reported that her tests would be positive if she tested. She did have one drug test, on October 17, and tested positive for methamphetamine, morphine, and marijuana.

Justin appears to be developing age-appropriately. He had been in a foster home placement from June 23 until October 21. While in that foster home, he exhibit[ed] age-appropriate behaviors when upset, such as . . . temper tantrums. But he is able to listen to his foster mother and she has reported that she enjoys working with him. Justin had to leave the foster home due to the foster mothers health problems and changed circumstances in the foster parents lives, and at the time of the six-month review report was in an emergency placement until a suitable foster home could be found for him. Justin is doing well and attends day care.

A supplemental memorandum dated December 8 stated that Justin was in a new foster home and doing well.

At the six-month review hearing on January 5, 2006,[2] a Department social worker represented that in addition to temper tantrums, Justin was kicking the other child in the foster home, and that child was afraid of Justin. Justin also would wake up in the middle of the night, screaming. Counsel for the Department told the court that Mother had missed several visits in August, September, October, and November 2005. Mother would sometimes simply fail to show up for a scheduled visit, upsetting Justin, who would ask, Wheres Mommy?

The juvenile court considered the pattern of missed visits outrageous. As the court put it, I dont know what you think can happen to a child when they think theyre going to have a visit with their mother and they dont show. The child will think its something they have done that mother doesnt want to be with them. The court reduced visitation to once a month, supervised, and ordered Mother to call the Department 24 hours in advance of each visit to confirm. The court admonished Mother that if she missed two more visits, the court would further reduce visitation to once every other month: Were not playing games here with the childs life.

Mother had failed to participate in reunification services. The court terminated reunification services and set a .26 hearing for April 5. The court also ordered a mental health assessment for Justin.

In its report prepared for the .26 hearing, the Department recommended that the juvenile court terminate Mothers parental rights and find adoption to be the appropriate permanent plan for Justin.

Justin continued to be on target developmentally. He continued to exhibit[] age-appropriate behaviors when upset, such as temper tantrums. Justin would bite other children when he became upset or didnt get his way. He was working with a therapist to change the biting behavior.

Mother had had sporadic visits with Justin. During her January and February visits, she cried but otherwise behaved appropriately. She was late for the March visit, so the visit was cancelled. When Mother did arrive she became argumentative and upset and screamed at Department staff. The caseworker thought Mother was under the influence of drugs. Mother denied this but admitted she had used heroin and methamphetamine two days previously. She claimed she was coming down off drugs, and needed some heroin so that she could get high again.

The Department had identified a prospective adoptive parent for Justin. She was a 50-year-old single parent who herself had been in foster homes due to abusive and alcoholic parents. She had a masters degree in special education and worked for an agency that treated autistic and special needs children. She had an approved home study on file.

The Department believed that Justin was adoptable. Justins prospective adoptive mother is committed to adopting Justin. The prospective adoptive mother has considerable experience with special needs children and has a deep understanding of what it is like to be a foster child. She is keenly aware of the anxiety and attachment problems that foster children may develop. The prospective adoptive mother is willing and able to provide Justin with stability, permanence, diligent care, and love.

The .26 hearing was held on May 16. By that time, Justin had been placed with the prospective adoptive mother since April 25 after a transition period of about 30 days. Justins caseworker, Dianne Smith, testified that Justin was doing extremely well in the home of the prospective adoptive mother. Smith testified that Justin has some behavior problems, including temper tantrums, but the prospective adoptive mother has a great deal of experience with special needs children and children who are doing acting out, and she doesnt really see his behavior as being that unusual. She also had been able to set some consistent limits with Justin so that the acting out is less and less. The prospective adoptive mother is quite well aware of Justins temper tantrums, and had no ambivalence about wanting to adopt him.

On cross-examination, Mothers counsel asked Smith if the prospective adoptive mother was aware of the nature and extent of the relationship between Mother and Justin. Counsel for the Department objected on the ground that thats not at issue. The juvenile court sustained the objection. Mothers counsel then asked if the prospective adoptive mother had reviewed Justins case file. Counsel for the Department objected on the ground of relevance. The court sustained that objection over Mothers counsels argument that whether the prospective adoptive mother had read the file is relevant to her knowledge of [Justins] behaviors.

Mother testified about her relationship with Justin. She described telephone calls during which she and Justin said they loved each other. She objected to the termination of her parental rights [b]ecause Im his mom, and I love him. Nobodys ever going to love him like I do. When asked if Justin would benefit from continued contact with her, she described herself as Justins only constant and only family: Im the only one that can answer the questions that hes going to have. Nobody else can answer them, and he knows who I am.

Mothers counsel asked the court to find an exception to termination of parental rights based on the benefit to Justin from a continued relationship with Mother. ( 366.26, subd. (c)(1)(A).)

The juvenile court, after noting its long-term involvement and familiarity with this case, rejected Mothers counsels argument: I have considered the relationship of [Justin] with the mothers visits, and I think the need for this child to have a permanent safe, stable loving home far outweighs any incidental benefits of the relationship with Mother. It appears to this court that the child has really been able to respond well to a loving, stable safe clean [home] with people that love him consistently and arent on drugs.

The court further found that Justins need[for] the new adoptive loving, stable home far outweighs any well-being the child receives from the relationship with [Mother]. Childhood does not wait for a parent to become adequate. Its simply not fair to the child, so the best interests of the child is what the Court is focusing on here.

The court found by clear and convincing evidence that it is likely Justin would be adopted, and that termination of parental rights would be in his best interests. The court terminated Mothers parental rights and ordered a permanent plan of adoption for Justin.

II. DISCUSSION

Mother contends the juvenile court denied her right to due process by limiting her cross-examination of caseworker Smith at the .26 hearing. The juvenile court sustained objections to two questions asked by Mothers counsel: whether the prospective adoptive mother was aware of the nature and extent of the relationship between Mother and Justin, and whether the prospective adoptive mother had reviewed Justins case file. Mother argues this limited her ability to present evidence regarding the prospective adoptive mothers knowledge of Justins behavior problems, and thus challenge the Departments position, and the courts ultimate finding, that Justin was adoptable.

We disagree. Mother admits that the due process right to present evidence at a .26 hearing is not unfettered, and that a court may permissibly limit cross-examination to exclude irrelevant evidence or evidence of insignificant probative value to the issues before the court. (See In re Thomas R. (2006) 145 Cal.App.4th 726, 733 (Thomas R.); In re Jeanette V. (1998) 68 Cal.App.4th 811, 816-817.) Here the court properly limited only two inquiries from Mother, which went to irrelevant issues.

The question of the prospective adoptive mothers knowledge of the relationship between Mother and Justin was clearly irrelevant to the issue of Justins adoptability. The issue of the prospective adoptive mothers knowledge of Justins behavior problems was before the court it was obvious that the prospective adoptive mother was aware of the problems because Justin was living with her, she was trained to care for children with special needs, and Justins caseworker testified that she was aware of Justins temper tantrums. Thus, the question whether the prospective adoptive mother had read Justins file is either irrelevant or of insignificant probative value.

In her reply brief, Mother relies on the holding of Thomas R., a decision of Division Three of this District. But Thomas R. is distinguishable. The court in that case found a due process violation where the juvenile court required an offer of proof from the parent on the issue of adoptability, an issue on which the social services agency bears the burden of proof. (Thomas R., supra, 145 Cal.App.4th at pp. 729, 731-734.) That is not the situation in the case before us. Mother was given adequate ability to challenge the Departments evidence on adoptability. Her cross-examination was only limited to preclude evidence that was irrelevant or lacked significant probative value. There is no due process violation here because counsel was not foreclosed from asking relevant questions in contrast to Thomas R.

Mother also contends that two key findings of the juvenile court are not supported by substantial evidence. In reviewing such claims in a dependency proceeding, our task begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. (In re Katrina C. (1988) 201 Cal.App.3d 540, 547.) We must resolve all conflicts in the evidence in favor of the ruling and indulge in all legitimate inferences to uphold the courts order. (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.) We cannot reweigh conflicting evidence to change a juvenile courts determinations in dependency cases. (See Constance K. v. Superior Court (1998) 61 Cal.App.4th 689, 705.)

Mother contends that substantial evidence does not support the juvenile courts finding that Justin is likely to be adopted. The issue of adoptability posed in a [.26] hearing focuses on the minor, e.g., whether the minors age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor. [Citations.] (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) 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 other words, a prospective adoptive parents willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family. [Citation.] (Id. at pp. 1649-1650.)

In the present case, the prospective adoptive mother was caring for Justin at the time of the .26 hearing, was aware of his behavior issues, and was willing to adopt him.[3] There is ample substantial evidence to support the juvenile courts finding that Justin was likely to be adopted. Mothers reliance on In re Asia L. (2003) 107 Cal.App.4th 498 is misplaced. In that case two of the three dependent children had emotional and psychological conditions that were obstacles to adoption, and there was no identified prospective adoptive parent. (Id. at p. 512.) Asia L. is clearly distinguishable.

Mother also challenges the sufficiency of the evidence in support of the juvenile courts finding that Justin would not benefit from a continued parental relationship with Mother.

Once a juvenile court makes a finding of adoptability at a .26 hearing, the court must terminate parental rights and order that the child be adopted unless the parent can prove one or more of five statutory exceptions to termination of parental rights. (Thomas R., supra, 145 Cal.App.4th at p. 731 & fn. 2.) The exception at issue in this case is found in section 366.26, subdivision (c)(1)(A): The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. This exception means that the parent has continued to exercise a parental role (In re Beatrice M.(1994) 29 Cal.App.4th 1411, 1418-1419), and the benefit of continuing that parental role would outweigh the well-being the child would gain in a new adoptive home. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)

Substantial evidence supports the trial courts finding that the exception does not apply, i.e., that the benefit to Justin from a continued relationship to Mother does not outweigh, and in fact is far outweighed by, the benefit Justin would receive in the adoptive home. We do not doubt that Mother loves Justin. But her problems with drug abuse and mental illness, her sporadic and missed visitations, and her impaired parenting ability simply do not show that Justin would benefit more from a continued relationship with Mother than he would in the home of the prospective adoptive mother. The trial judge found that termination of parental rights was in Justins best interests based on all the evidence before the court.

III. DISPOSITION

The order terminating parental rights is affirmed.

______________________

Marchiano, P.J.

We concur:

______________________

Stein, J.

______________________

Swager, J.

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[1] Subsequent statutory references are to the Welfare and Institutions Code. All dates are in 2005 unless we indicate otherwise.

[2] Subsequent dates are in 2006 unless we indicate otherwise.

[3] Mothers opening brief states categorically that [T]here was no evidence presented that the prospective adoptive parent was aware of Justins behavior problems. This statement is not factually correct.