In re Joseph R.

Filed 8/14/07 In re Joseph R. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Fresno County. Jamileh Schwartzbart, Temporary Judge. (Pursuant to Cal. Const., art. VI,  21.)

Marin Williamson, under appointment by the Court of Appeal, for Defendant and Appellant.

Dennis A. Marshall, County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

Karen R. appeals from an order terminating her parental rights (Welf. & Inst. Code,  366.26) to her three-year-old son, Joseph.^[1] Prior to the termination hearing, appellant petitioned to modify ( 388) an order denying her reunification services; the court had denied her services due to her extensive and chronic history of drug abuse ( 361.5, subd. (b)(13)). In the midst of the evidentiary hearing on both appellants petition and the recommendation to terminate her parental rights, her attorney requested a continuance, which the court denied for lack of good cause. Appellant, who was testifying on direct examination when the court called a noon recess, had failed to return to court. Thereafter, the court denied appellants modification petition, rejected her argument that termination would be detrimental to Joseph, and, having found the child adoptable, terminated parental rights.

She contends on appeal that the superior court erred by denying each of her requests. Respondent Fresno County Department of Child and Family Services (the department) responds the disentitlement doctrine (see MacPherson v. MacPherson (1939) 13 Cal.2d 271) should prevent her from raising these arguments. On review, we have assumed without discussion that the disentitlement doctrine is inapplicable here. Having evaluated the merits of appellants complaints, we will affirm.

PROCEDURAL AND FACTUAL HISTORY

Appellant has a history, dating back to the 1980s, of regular and frequent methamphetamine and marijuana use as well as repeated referrals for child neglect and abuse. In January 2003, appellant gave birth to Joseph who tested positive for drugs. Appellant accepted voluntary family maintenance services and participated in several substance abuse programs between January and June 2003. She, however, did not complete them. Consequently, in June 2003, the department took Joseph and his older sister, 13-year-old Heather, into protective custody and the court adjudged them dependents. Appellant successfully completed drug treatment and reunited with her children in December 2004, at which point the court dismissed the proceedings.

Within six months time, appellant relapsed and resumed her regular use of drugs. A drug arrest in early November 2005, coupled with appellants admissions of recent drug abuse and other evidence of her parental neglect, led the department to re-detain Joseph and his teenage sister and initiate these dependency proceedings. Notably, the sister ran away before she could be placed by the department.

In December 2005, the court exercised its dependency jurisdiction over the children pursuant to section 300, subdivision (b). Mr. and Mrs. B., Josephs foster parents from his prior dependency, appeared and expressed their interest in having him and the sister, when found, placed with them again. Joseph was thereafter placed in their care.

Pending a dispositional hearing, the departments family reunification services review panel determined appellants extensive and chronic drug history and relapse warranted denying her reunification services under section 361.5, subdivision (b)(13).^[2] The panel also concluded reunification would not be in Josephs best interest because, although he was bonded to appellant, the bond was fractured and distant. Consequently, the department recommended the court deny appellant reunification services and proceed with a plan of adoption with Mr. and Mrs. B.

In February 2006, the superior court conducted its dispositional hearing as to Joseph. The court adjudged him a dependent child and removed him from appellants custody. It also denied her reunification services pursuant to section 361.5, subdivision (b)(13). At appellants request, the court ordered a parent/child bonding study between her and Joseph. Due to notice problems related to Josephs alleged father, the court could not complete its dispositional hearing until the following month.

By the next hearing date, the department had located 15-year-old Heather and placed her with Joseph in the home of Mr. and Mrs. B. At the March hearing, the court set a section 366.26 hearing to select and implement a permanent plan as to Joseph and calendared a contested dispositional hearing as to Heather. In light of the setting order, appellants trial counsel requested and the court granted a sibling bonding study between Joseph and Heather. This court affirmed the superior courts disposition as to Joseph in In re Joseph R. (Jan. 31, 2007, F049752 [nonpub. opn.]).

In early May, the court adjudged Heather a dependent child and once again denied appellant reunification services pursuant to section 361.5, subdivision (b)(13). Barely a month later Heather ran away from the B. residence. No one, with whom the departments social worker spoke, knew the teenagers plans. It appears she reemerged in August 2006 and the department placed her with her paternal grandmother.

In the meanwhile, notice issues led the court to continue Josephs section 366.26 hearing until September so that it coincided with Heathers section 366.26 hearing date. Then, in August appellant filed a request, pursuant to section 388, to modify the February 2006 order denying her reunification services as to Joseph. In her request, she alleged ongoing progress in dealing with her drug abuse and mental health problems such that she could establish changed circumstances. She further claimed services would be in Josephs best interests based on their parent/child relationship.

Appellants petition drew extensive written opposition from the childrens attorney, in which the department joined. The written opposition detailed appellants history of drug abuse and failed efforts at overcoming her addiction. It also noted the strong similarities in the optimism expressed by appellants current counselors and her service providers during the childrens former dependency. The records attached to the opposition also revealed that historically appellant could not maintain her progress for long. Thus, according to the childrens opposition, appellants circumstances had not changed since the court denied her services in this dependency.

This opposition, coupled with appellants request for a contested hearing on the departments recommendation that the court free Joseph for adoption and the appointment of separate counsel for each child, resulted in further delay. The court eventually conducted its section 366.26 hearing in both Josephs and Heathers case in December 2006.

Along with its recommendation that the court free Joseph for adoption, the department reported the following information relevant to this appeal. Joseph was generally adoptable. Although he had some developmental delays, he was a three-year-old, attractive and friendly child. It was highly likely he would be adopted. His caregivers, the B. family, were very attached to Joseph as well as committed to adopting him.

During appellants visits with Joseph, the child generally appeared happy to see her and interacted well with her. Their relationship, however, was not that of a parent/child, but more of an extended family member. Joseph did not experience separation anxiety, however, when their visits came to an end. After the visits, according to his care provider, Joseph had nightmares and woke up screaming.

The department submitted a copy of the parent/child bonding study that appellant had requested. According to the therapist who conducted the study, Josephs relationship with appellant was lacking in the elements the therapist would use to describe a clear parent/child relationship. Joseph seemed highly anxious with appellant and did not use her as a secure base or engage her like a psychological parent he could depend on for care. He would be relieved rather than harmed if the parent/child relationship were terminated. A continued relationship would not currently promote Josephs well-being.

The department also reported that although Josephs sister was adoptable, 16-year-old Heather did not wish to be adopted. Consequently, the department recommended a permanent plan of long-term-foster care for Heather with her paternal grandmother.^[3] The department also made reference to and attached a copy of the sibling attachment study that appellant had also requested. The psychologist, who evaluated the children, observed a very strong sibling bond, although the attachment appeared somewhat stronger on Heathers part. The psychologist also endorsed ongoing contact between the children as serving their best interests. However, in the psychologists opinion, the sibling bond did not outweigh the benefits Joseph would receive from adoption.

The psychologists evaluation led the court to ask if the psychologists opinion would change in light of the fact Joseph was no longer living in the same placement with Heather and in the event he were never to see Heather again. In addendum reports to the court, the psychologist explained adoption continued to be in Josephs best interest.

His sister is now 16 years old. Joey has 14 more years in which to be in foster placement. I continue to believe that adoption for Joey given his young age is in his best interest. The stability, love, security and emotional and psychological advantages of adoption continue to out weigh the benefits of contact with his sibling. The foster mother from my recollection is committed to maintaining contact between the two siblings and encouraging their relationship. Given my estimation of her generous nature and emphasis on familial contact, if Joey were adopted there is a strong probability that ongoing contact between Joey and his sister would continue.

Even if Joey were not to see his sister again in his lifetime, adoption would still be in his best interest. For example, if she were absent due to death or illness and he had no contact with her, it is in Joeys best interest to be adopted.

In a November 15, 2006, progress note, the psychologist advised she had received an update from Mrs. B. regarding Josephs progress since Heather left their home. The psychologist explained:

Joey continues to adjust well to his foster placement. The only trouble reported by foster mother is that after Friday visitation with biological mother, he has problems. Otherwise, he continues to get along well with the foster family and is a happy, bouncy boy. Joey does not talk about his sister Heather, and does not ask for her. In fact, foster mother indicated that Joey has done 100% better since his sister left the foster home. [] . . . []

It appears that Joey has adjusted well to the absence of his natural sister Heather. This child has not been greatly harmed with the removal of sister from the foster home. This examiner concludes that adoption continues to be in Joseph [R.]s best interest.

At the start of the December hearing, the department submitted the matter on its reports as well as the parent/child bonding study, the psychologists sibling attachment study, addenda and progress note, as well as the opposition filed by the childrens former counsel to appellants request for reunification services. Josephs newly-appointed counsel adopted the opposition, filed by his former counsel, to appellants request for reunification services as well as requested the court take judicial notice of the entire court file. The court granted the judicial notice request. The court also denied a request by the department to reject appellants request for reunification services as facially insufficient. The court agreed with appellant to hear all testimony first, without recalling witnesses, and then hear argument on appellants request for services before proceeding with the permanency planning issues.

Heather testified it would not be in Josephs best interests to be adopted by the B. family. She based her opinion in large part on how she felt she was treated in the B. home.

She described Joey as excited to see her at their visits. He was demonstrative and affectionate towards her. She preferred to live with him but would continue to visit him even if she could not.

Heather also believed appellant had changed and was trying to actually do whats right, not just get by. She testified it would be in her brothers best interest to allow appellant another chance to reunify with him. She cited their blood relation and her opinion that her mother was doing better.

Appellant also testified on her own behalf. She believed it was in Josephs best interest to be reunified with her because I have improved my life tremendously. She described having done in patient and out patient services at West Care. She also completed parenting, anger management [and] domestic violence. She described going to an evaluation, getting on psych meds and therapy. She also attended AA or NA classes almost every night. She believed she would be able to maintain long-term sobriety from this point forward. When asked why she believed this time would be different, appellant seemed to believe she had concentrated on herself versus my kids just trying to get my kids back. She also testified that this time she had addressed depression issues whereas previously she had not. During the prior dependency, she was on the verge of receiving psychotropic medication, but did not, whereas this time she did. [T]hey released me [from another program] the day before I was out of my meds. So I never went to get on meds. She felt a lot more stable on medication.

She believed she and Joseph loved each other and shared a bond. He was very excited to see her and affectionate during their visits. She also believed she would be a benefit to his life and not a detriment. When asked to articulate how it would be in Josephs best interests to maintain a relationship with her, appellant replied For some reason Im freezing up today, Im just, I want to sit here and cry for a minute, but --.

At this point, the court adjourned for its noon recess and ordered everyone to return at 1:30. Appellant did not return to court. The court waited until close to three oclock and repeatedly paged her. The social worker explained she spent the recess with appellant who became increasingly anxious. She told others she did not have the emotional strength to stay.

Appellants trial counsel asked the court to continue the hearing for two days. Counsel could try and contact appellant and secure her presence in court. The court denied the request for continuance, noting that appellant voluntarily left. Appellants counsel had no further evidence to present and rested. None of the other counsel called any witnesses.

Following closing arguments on appellants petition for services, the court denied her request. The court found appellant did not sufficiently establish changed circumstances. In any event, the court added, she failed to prove the requested change would promote Josephs best interest. It also noted it found the opposition filed by the childrens former attorney persuasive.

The court also heard argument on appellants claim that termination would be detrimental to Joseph based either on his relationship with her or his relationship with Heather. In particular, appellants counsel asked the court to: not ignore the psychologists original sibling attachment evaluation about the strength of the bond; and draw its own conclusion on whether adoption would outweigh the sibling relationship, independent from the psychologists assessment.

Noting it was appellants burden, the court found she had not sufficiently established termination would be detrimental on either ground. It specifically remarked it did not know how it could ignore the opinions of the experts, who conducted parent/child bonding and sibling attachment studies. The court also pointed out for the record that it had not taken appellants absence from court into account in reaching its decision. Having found Joseph was adoptable, the court terminated parental rights.

DISCUSSION^[4]

I. Motion to Continue

The superior court may continue any dependency hearing based on a showing of good cause and provided the continuance is not contrary to the interest of the minor. ( 352, subd. (a).) Ordinarily, affidavits or declarations detailing specific facts showing the necessity for a continuance are required. (Ibid.)

In this case, there was no good cause showing. There was no reasonable explanation for why appellant could not return to court after the recess and no reasonable likelihood that she would present herself in two days time. Thus, we conclude the court did not abuse its discretion by denying counsels request for a continuance. (In re C.P. (1985) 165 Cal.App.3d 270, 274.)

II. Appellants Request for Reunification Services

The court also has discretion to change, modify, or set aside its dependency orders at any time. ( 385.) A parent may petition the court for such a modification on grounds of change of circumstance or new evidence. ( 388; In re Audrey D. (1979) 100 Cal.App.3d 34, 43.) The parent, however, must also show that the proposed change would promote the best interests of the child. ( 388; fmr. Cal. Rules of Court, rule 1432(c), in effect during these proceedings.) Whether the juvenile court should modify a previously-made order rests within its discretion and its determination may not be disturbed unless there has been a clear abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)

Having reviewed the record as detailed above, we fail to see how appellant established an order for reunification services would be in Josephs best interests. First, there was conflicting evidence as to whether Joseph and appellant shared a parent/child relationship. There was also undisputed evidence that his contacts with appellant increasingly caused him anxiety.^[5]

In addition, to understand the element of best interests in the context of a section 388 motion brought, as in this case, during the permanency planning phase, we look to the Supreme Courts decision in In re Stephanie M., supra, 7 Cal.4th 295.

[A parents] interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point the focus shifts to the needs of the child for permanency and stability (In re Marilyn H. [1993] 5 Cal.4th 295, 309), and in fact, there is a rebuttable presumption that continued foster care is in the best interests of the child. (Id., at p. 302.) A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child. (In re Stephanie M., supra, 7 Cal.4th at p. 317.)

Simply put, appellants evidence did not address, let alone establish, Josephs need for permanency and stability would be advanced by a new order for services. Therefore, under In re Stephanie M., supra, 7 Cal.4th at page 317, we conclude the juvenile court did not err.

Nonetheless, appellant takes aim at the courts reference to the opposition filed by the childrens former attorney, contending that analysis was legally inaccurate. Thus, she argues the court abused its discretion by denying her request for services. We conclude appellants argument is meritless.

The superior courts reasoning is not a matter for this courts review. (Davey v. Southern Pac. Co. (1897) 116 Cal. 325, 329.) It is judicial action and not judicial reasoning which is the proper subject of appellate review. (El Centro Grain Co. v. Bank of Italy, Etc. (1932) 123 Cal.App. 564, 567.) It is well-established a ruling or decision, itself correct in law, will not be disturbed on appeal merely because it was allegedly given for a wrong reason. (Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329.)

In addition, appellants attack takes language from the opposition filed by the childrens former attorney out of context. The opposition did contain the following strong language:

In order to prevail on her JV 180 petition, Ms. [R.] must present evidence showing that the reasons for the denial of reunification services to her on February 2, 2006 no longer exist. Specifically, she must show that she no longer has a history of extensive, abusive, and chronic use of drugs, and she must show that she has not actively or passively resisted court ordered drug treatment within the past three years.

However, appellant conveniently overlooks the oppositions well-reasoned analysis, supported by approximately 40 pages of unrefuted documentation.

From the above positive remarks [dating back to the childrens first dependency], it is clear that Ms. [R.] was doing what she needed to do to remain clean and sober. She successfully participated in her services and was well on her way to recovery. She was in drug treatment, she was in mental health services to achieve and maintain mental/emotional stability and recovery from drug use. She was doing so well, in fact, that dependency was dismissed and she was granted custody of Joseph. Despite the prediction of those service providers that she would remain on a path of sobriety, just about a year later she relapsed, resulting in Joseph again being removed [from] his mothers care and being involved in the dependency system for a second time. That we now see similar praise and good remarks from her current round of service providers is not surprising. Ms. [R.] has demonstrated that she can complete drug treatment programs, she can complete parenting, and she can complete therapy. The problem is that she has not been able to demonstrate a genuine and permanent commitment to remaining drug free for any significant period of time. Further, she has struggled with her mental health issues of depression and anxiety for many years. The evidence Ms. [R.] has submitted in support of her JV 180 petition does not rebut the fact that she still has a history of extensive, abusive, and chronic use of drugs, and that she still has passively resisted court ordered drug treatment within the past three years (as evidenced by her ability to complete drug treatment, but not being able to refrain from continued drug use for any significant period of time[]). What her evidence does show is yet another attempt by her to resolve her long standing substance abuse addiction and her mental health issues. Her situation however has not changed.

In other words, as we understand the argument, appellants recent efforts to combat her drug addict were nothing new. Her history was not on her side and should not be overlooked. The question this time was whether she could sustain her sobriety and her improved mental health. However, given her history of relapse, the court would be left to speculate. There was nothing legally incorrect about such an argument.

III. Sibling Relationship Exception to Adoption

Last, appellant argues the court should have invoked the sibling relationship exception, defined in section 366.26, subdivision (c)(1)(E), and found termination would be detrimental to Joseph. She criticizes the court for relying on the psychologists opinion that the strong sibling bond between Joseph and his sister did not outweigh the benefits he would receive from adoption. She contends the opinion was inadmissible and based in part on hearsay evidence. She also notes the psychologists opinion was not subject to cross-examination. She further argues the balancing question did not require expert opinion. Indeed, in appellants view, the court erroneously delegated its judicial authority to the psychologist. As discussed below, we disagree and conclude the court did not err.

Because Joseph was likely to be adopted, the law required the court to terminate parental rights, unless one of the specifically designated circumstances, set forth in section 366.26, subdivision (c)(1), provided 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.) The burden shifted to appellant to show that termination would be detrimental under one of the exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)

The so-called sibling relationship exception in section 366.26, subdivision (c)(1)(E), required the court to find:

There would be substantial interference with a childs sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the childs best interest, including the childs long-term emotional interest, as compared to the benefit of legal permanence through adoption.

In this case, there was undisputed evidence of a strong sibling bond between Joseph and his older sister, notwithstanding the months when Heather was a runaway. However, there was no evidence that since Heather ran away in June and thereafter lived with her grandmother that Joseph suffered any harm. Indeed, there was evidence that Joseph did not suffer in his sisters absence. To the extent appellant complains about the admissibility of the psychologists addenda and progress report which addressed this issue, those complaints are meritless, as discussed below.

First, in the psychologists original attachment evaluation, she did endorse ongoing contact between the children as serving their best interests. Nonetheless, she also opined, with reasons stated, that the sibling bond did not outweigh the benefits Joseph would receive from adoption. Notably, appellant never challenged that opinion in the superior court; instead, she sidestepped it, concentrating instead on the psychologists opinion of a strong sibling bond.

Second, appellant never objected to the admissibility of the psychologists addenda and progress notes. She therefore has waived her claims of evidentiary error on appeal. (Evid. Code,  353.) In any event, we would note for appellants benefit that an expert opinion is not inadmissible because it is based in whole or in part on the opinion or statement of another person. (Evid. Code,  804, subd. (c).)

Third, her complaint that the psychologists opinion was not subject to cross-examination is meaningless. She never sought the psychologists appearance for cross-examination purposes and the court did not preclude her from doing so.

Fourth, we do not know what to make of her argument that the balancing question did not require expert opinion. She fails to cite and our research does not reveal any authority precluding the court from considering expert opinion on this point. Indeed, in a case such as this where there was evidence of a strong sibling bond, expert opinion about the possible effects of severing that bond would appear [r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact. (Evid. Code,  801.) Appellants claim is also ironic given that it was appellant who requested the sibling attachment evaluation and was apparently willing to rely on it so long as it supported her position.

Finally, we fail to discern how the court improperly delegated its decision-making to the psychologist. The fact that the court remarked it did not see how it could ignore the psychologists assessment does not mean it deferred its decision-making to the psychologist. The court clearly weighed the benefits of both and found in favor of adoption. As the California Supreme Court explained in In re Celine R., supra, 31 Cal.4th at page 61:

even if adoption would interfere with a strong sibling relationship, the court must nevertheless weigh the benefit to the child of continuing the sibling relationship against the benefit the child would receive by gaining a permanent home through adoption.

For this court to overturn the trial courts determination would amount to our reweighing the evidence which is not our role. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379.) By arguing otherwise, appellant also obfuscates the point that it was her burden to persuade the court that termination was not in Josephs best interests. Given the circumstances of this case, appellants evidence did not compel the court to make such a finding. Consequently, the court did not abuse its discretion.

DISPOSITION

The order terminating parental rights is affirmed.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line Lawyers.

^*Before Vartabedian, Acting P.J., Harris, J., and Cornell, J.

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

^[2] Section 361.5, subdivision (b)(13) states that the court need not provide a parent with reunification services when it finds by clear and convincing evidence --

[t]hat the parent or guardian of the child has a history of extensive, abusive, and chronic use of drugs or alcohol and has resisted prior court-ordered treatment for this problem during a three-year period immediately prior to the filing of the petition that brought that child to the courts attention, or has failed or refused to comply with a program of drug or alcohol treatment described in the case plan required by Section 358.1 on at least two prior occasions, even though the programs identified were available and accessible.

^[3] Joseph and Heather were in fact half-siblings. Heathers paternal grandmother was not related to Joseph.

^[4] We have re-organized appellants issues in the order which they arose.

^[5] Appellants argument that somehow the court should not consider the parent/child bonding study is particularly ironic given that she requested the study.