In re Kevin T.

Filed 9/7/07 In re Kevin T. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from judgments and an order of the Superior Court of San Diego County, Hideo Chino, Judge. Affirmed.

Y.P. (Y.) appeals judgments terminating parental rights to her children, Kevin T. and Brandon T. She also appeals an order summarily denying her petition for modification under Welfare and Institutions Code section 388.^[1] We affirm the judgments and order.

FACTUAL AND PROCEDURAL BACKGROUND

Y. and Pablo T. are the parents of Kevin T., born July 2002, and Brandon T., born March 2004 (together, the children).^[2] From February to June 2005 the San Diego County Health and Human Services Agency (Agency) provided voluntary services to the family to address concerns the children were developmentally delayed, lived in substandard conditions and were often dirty and hungry. Kevin was diagnosed with cerebral palsy, and Brandon had microcephaly (an abnormally small head) and global developmental delays, possibly as a result of genetic abnormalities.

In June 2005 Kevin suffered what appeared to be nonaccidental chemical or grease burns to his lower abdomen and buttocks while he was in Y.'s care. The Agency detained both children and filed petitions under section 300, subdivisions (a), (b) and (j) alleging Kevin was physically abused by his parent and Brandon was at risk of physical abuse, and the parent failed to adequately supervise the children and provide for the children's basic needs. In August the court sustained the allegations of the petitions, removed the children from parental custody and ordered a plan of family reunification.

In January 2006 the Agency reported that Kevin, who was three and one-half years old, had developmental delays, marginal head circumference and disturbed behaviors. Brandon, who was 22 months old, had progressive microcephaly due to failure of brain growth. He had generalized motor delays and did not walk on his own. Y. was diagnosed with posttraumatic stress disorder, mild mental retardation and dependent personality disorder. She had weekly supervised visits with the children and participated in parenting classes, individual counseling and a domestic violence support group. Because of her limited cognitive skills, the social worker opined Y. was not capable of providing an adequate home environment, protecting Kevin and Brandon, and meeting their special needs. In early March the Agency placed the children with their paternal grandparents.

On March 16, 2006, at the six-month review hearing, the court terminated reunification services and set a hearing to select and implement a permanency plan for the children ( 366.26 hearing). In June the paternal grandparents informed the Agency they were overwhelmed by the children's needs and were no longer willing to adopt the children. The Agency requested a continuance of the section 366.26 hearing to "better assess" its recommendation to terminate parental rights and free the children for adoption. The court continued the section 366.26 hearing.

In August 2006 the children were removed from the home of the grandparents at the grandparents' request, and placed at Polinsky Children's Center. The Agency had difficulty locating a suitable adoptive and/or foster home for the children because of their special needs. In October the court again continued the section 366.26 hearing at the Agency's request.

On January 10, 2007, the Agency informed the court it had located an approved adoptive family that wanted to adopt Kevin and Brandon. The prospective adoptive parents (caregivers) previously adopted three special needs children. The family had been visiting the children since November 2006. On January 19 the Agency moved Kevin and Brandon to the caregivers' home.

In reports prepared for the March 8, 2007 hearing, the Agency recommended the court terminate parental rights and allow the children to be adopted by the caregivers. Although Y. visited the children regularly, the social worker did not observe a significant parent-child bond. The children relied on the caregivers to meet their medical, development and emotional needs. During visits, both children became aggressive with Y. and hit, bit and kicked her and pulled her hair. Y. usually allowed the children to do what they wanted. When she tried to direct their behavior, the children had tantrums. Y. did not have stable housing. Pablo supported the children's adoption by their prospective adoptive parents. He did not believe the children would be safe in Y.'s care.

Y. gave birth to a third child on March 7, 2007. She was not present when the section 366.26 hearing began on March 8, 2007. The social worker testified the children's caregivers had completed a home study. She had "no doubt" the caregivers would adopt Kevin and Brandon. They were aware of the children's developmental needs and would continue services with the San Diego Regional Center and another agency.

Y. arrived at the courtroom during closing argument. After a brief recess, Y., through counsel, asked the court to receive her section 388 petition for modification (petition) requesting return of the children to her care or an additional period of reunification services. The Agency and minors' counsel objected to the petition on the ground it was untimely.

The court denied Y.'s petition because it was not timely filed. After the parties completed closing argument, the court stated it reviewed the petition and determined that it did not state a prima facie case of changed circumstances. The court found by clear and convincing evidence the children were adoptable. The current caregivers were willing to adopt Kevin and Brandon, and other individuals were in a position to adopt them. The court found no exceptions applied to preclude termination of parental rights and ordered a permanency plan of adoption.

DISCUSSION

I

Y. contends the court erred when it denied a hearing on the merits of her petition. She asserts section 388 is vital to the constitutionality of California's dependency scheme as a whole and to section 366.26 in particular. (In re Marilyn H. (1993) 5 Cal.4th 295, 309 (Marilyn H.); In re Hunter S. (2006) 142 Cal.App.4th 1497, 1507-1508.) She argues a parent seeking to avoid termination of parental rights may file a section 388 petition for modification at any time before the court terminates parental rights. Y. further maintains the petition stated a prima facie case of changed circumstances and the children's best interests would be served by a modification of the order terminating reunification services and setting a section 366.26 hearing.

Under section 388, a party may petition the court to change, modify or set aside a previous court order. The petitioner has the burden of showing, by a preponderance of the evidence, there is a change of circumstances or new evidence and the proposed modification is in the child's best interests. ( 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re Amber M. (2002) 103 Cal.App.4th 681, 685.) A court need not grant an evidentiary hearing on the modification petition if the facts alleged in the petition do not state a prima facie case. ( 388, subds. (a) & (c).)

The court must liberally construe the petition in favor of its sufficiency. (Marilyn H., supra, 5 Cal.4th at p. 309; Cal. Rules of Court, rule 5.570(a).) "The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing." (Marilyn H., supra, at p. 310.) " '[I]f the petition presents any evidence that a hearing would promote the best interests of the child, the court will order the hearing.' [Citation.]" (In re Jasmon O., supra, 8 Cal.4th at p. 415; see also In re Hashem H. (1996) 45 Cal.App.4th 1791, 1798-1799.)

Article 12 of the Welfare and Institutions Code pertains to the modification of juvenile court judgments and orders and includes sections 385 through section 390. (Marilyn H., supra, 5 Cal.4th at p. 305.) Section 385 provides: "Any order made by the court in the case of any person subject to its jurisdiction may at any time be changed, modified, or set aside, as the judge deems meet and proper, subject to such procedural requirements as are imposed by this article." Neither sections 385 and 388, nor any other provision of article 12, establishes a time limitation within which a petition for modification of a juvenile court order may be brought. In Marilyn H., the California Supreme Court held that in the absence of legislative mandate, juvenile courts have the inherent power to require parties to file section 388 petitions before the section 366.26 hearing.^[3] (Marilyn H., supra, 5 Cal.4th at p. 310; see also In re Baby Boy L. (1994) 24 Cal.App.4th 596, 609 [a section 388 petition may be filed at any time before the section 366.26 hearing].)

We review a summary denial of a hearing on a modification petition for abuse of discretion. (In re Zachary G. (1999) 77 Cal.App.4th at pp. 799, 808.) While the abuse of discretion standard gives the trial court substantial latitude, "[t]he scope of discretion always resides in the particular law being applied, i.e., in the 'legal principles governing the subject of [the] action . . . . ' " (City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297.) "Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an 'abuse' of discretion." (Ibid.)

Y. did not ask the court to consider her section 388 petition until after the close of evidence at the section 366.26 hearing. We recognize the Legislature has not placed a time limit on a party's ability to file a section 388 petition. ( 385; Cal. Rules of Court, rule 5.570(a).) However, as the California Supreme Court noted, if a party were able to file a section 388 petition until the last moment before the court issued its ruling at a section 366.26 hearing, "there would be nothing to preclude a parent from appearing at a section 366.26 hearing and, without prior notice to the court and other parties, assert a meritless claim of changed circumstances necessitating a delay of the hearing . . . ." (Marilyn H., supra, 5 Cal.4th at p. 310.) The court's denial of Y.'s petition on the ground it was untimely was clearly within the confines of the applicable principles of law. The court did not err when it summarily denied the petition.^[4]

Further, the record belies Y.'s assertion the court denied the petition solely on the basis of untimeliness. At the close of the hearing, the court stated it had reviewed the petition to determine whether the petition stated a prima facie case of changed circumstances. The prima facie requirement for a hearing on a section 388 petition is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition. (In re Zachary G., supra, 77 Cal.App.4th at p. 806.) When determining whether the petition makes the necessary showing, the court

may consider the entire factual and procedural history of the case. (In re Justice P. (2004) 123 Cal.App.4th 181, 188-189; see In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451.)

In her petition, Y. alleged she completed a 52-week domestic violence program in February 2007 and a St. Vincent de Paul "Challenge to Change" program in December 2006. She stated it was in the children's best interests to be with her and to have the opportunity to develop a relationship with their newborn sister. Y. requested the court order a further period of reunification services or place the children in her care under a plan of family maintenance services.

The court may review the petition in view of the seriousness of the problems that led to the dependency proceedings. (Cf. In re Kimberly F. (1997) 56 Cal.App.4th 519, 532-533.) Y. did not allege that she had demonstrated her ability to meet the children's extraordinary needs during visitation or that she had resolved the issues that culminated in physical abuse to Kevin while he was in her care. She did not allege she had stable housing and could provide for the children's basic care. The court properly determined the petition did not establish a prima facie case of changed circumstances.

The record clearly establishes the court did not abuse its discretion when it summarily denied Y.'s section 388 petition to return the children to her care. ( 388, subds. (a) & (c); Cal. Rules of Court, rule 5.570(b).) There was no error.

II

Y. contends insufficient evidence supports the court's findings Kevin and Brandon were likely to be adopted within a reasonable time (adoptability finding). ( 366.26, subd. (c)(1).) She argues the Agency did not present any evidence to show Kevin and Brandon were generally adoptable in view of their medical and behavioral problems. Y. also maintains the evidence was insufficient to support a finding that the children were specifically adoptable because they had been in the care of the prospective adoptive parents for only six weeks before the section 366.26 hearing, and the children's other two prospective adoptive placements had failed within three months.

The Agency responds the juvenile court did not err when it found the children were likely to be adopted within a reasonable time. The Agency does not dispute the children had a number of health and behavioral issues. It contends the children were placed in an appropriate home with caregivers who were committed to adopting them.

"Adoption, where possible, is the permanent plan preferred by the Legislature." (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) Unless termination of parental rights would cause serious detriment to a child under one or more specific statutory exceptions, the court must terminate parental rights if it finds by clear and convincing evidence the child is likely to be adopted. ( 366.26, subd. (c)(1).)

On review, we determine whether the record contains substantial evidence from which the court could find clear and convincing evidence that the child was likely to be adopted within a reasonable time. (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1562; see also In re Zeth S. (2003) 31 Cal.4th 396, 406.) We give the court's finding of adoptability the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of affirming. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)

The question of adoptability usually focuses on whether the child's age, physical condition, and emotional health make it difficult to find a person willing to adopt that child. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649; see also  366.26, subd. (c)(3) [a child may only be found difficult to place for adoption if there is no identified or available prospective adoptive parent for the child because of the child's membership in a sibling group, or the presence of a diagnosed medical, physical, or mental handicap, or the child is the age of seven years or more].) If the child is considered generally adoptable, we do not examine the suitability of the prospective adoptive home. (In re Scott M. (1993) 13 Cal.App.4th 839, 844.) When the child is deemed adoptable based solely on a particular family's willingness to adopt the child, the trial court must determine whether there is a legal impediment to adoption. (In re Carl R. (2005) 128 Cal.App.4th 1051, 1061.)

In the Agency's July 12, 2006 assessment report, the social worker opined that the children were adoptable and likely to be adopted. Although developmentally delayed, the children were young and in good health. Brandon was happy and healthy, and services were available to assist his development. Kevin was "an adorable little boy who was a pleasure to work with." He was affectionate, happy and actively sought social interaction. A psychologist and a special education evaluation team opined that Kevin's current level of functioning might not be predictive of his long-term potential. Kevin attended a special education preschool program and his progress was described as "good."

The Agency identified three approved adoptive families interested in adopting Kevin and Brandon together and several other families willing to adopt the children separately. Before the section 366.26 hearing, the Agency introduced the children to interested adoptive families, including the caregivers with whom the children were placed on January 19, 2007. The Agency worked diligently to locate an adoptive home for the children. The fact that there might have been a smaller pool of prospective adoptive families interested in adopting siblings with disabilities does not mean insufficient evidence supports the finding Kevin and Brandon were generally adoptable. Indeed, the children's caregivers were located during the Agency's general search for an appropriate adoptive home and were not the children's foster parents or relatives. The court's finding the children were generally adoptable is supported by substantial evidence.

Further, the record shows the children were specifically adoptable in that the Agency had identified a particular family willing to adopt the children. By the time of the section 366.26 hearing, the children had lived with the caregivers for seven weeks. The prospective adoptive family consisted of two parents and their three adopted special needs children. The caregivers were "thrilled to have" Kevin and Brandon in their home. The social worker testified the caregivers had completed a home study and had "no doubt" they would adopt Kevin and Brandon. There were no legal impediments to adoption. (In re Carl R., supra, 128 Cal.App.4th at p. 1061.) Thus, the court could find by clear and convincing evidence the children were specifically adoptable.

As the court's adoptability findings are supported by substantial evidence, the court did not err when it determined adoption was in the children's best interests and terminated parental rights. ( 366.26, subd. (c)(1).)

DISPOSITION

The judgments and order are affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

McDONALD, J.

McINTYRE, J.

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

^[2] Pablo does not appeal and is mentioned only when relevant to these proceedings.

^[3] All courts have " 'inherent supervisory or administrative powers which enable them to carry out their duties, and which exist apart from any statutory authority.' " (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967; Code Civ. Proc., 128, subd. (a)(3) ["Every court shall have the power to . . . [] . . . provide for the orderly conduct of proceedings before it . . . ."].) Consequently, if a procedure is not specified by statute or by rules adopted by the Judicial Council, its inherent power entitles trial courts to exercise reasonable control over all proceedings connected with pending litigation in order to insure the orderly administration of justice. (Rutherford v. Owens-Illinois, Inc., supra, 16 Cal.4th at p. 967.)

^[4] The section 366.26 hearing had been pending for almost one year. Y. was represented by counsel and had proper notice of the section 366.26 hearing. There is nothing in the record to suggest that she was prevented or impeded in some way from timely filing a section 388 petition. (Marilyn H., supra, 5 Cal.4th at p. 310.)