In re E.M.

Filed 8/15/07 In re E.M. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Shasta)

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Appellant, the father of two of the minors, appeals from the juvenile courts order terminating his parental rights. Appellant claims there was insufficient evidence to support the juvenile courts finding that one of the minors was adoptable. He also contends the juvenile court erred by denying his request for a continuance of the hearing. Concluding these contentions are without merit, we shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In October 2005, a dependency petition was filed concerning 12-year-old E. M.,^[1]10-year-old G. S., and nine-year-old B. S., alleging that appellant and the minors mother abused controlled substances and that appellant had domestic violence issues. It was further alleged that appellant was incarcerated and had a criminal history that included child cruelty, domestic violence, and drug-related offenses. The minors had been removed on three prior occasions and previously were made dependents of the court in 1999, after which they reunified with the mother.

The minors described being left by their mother with friends and moving frequently. B. S. had stopped receiving medication for hyperactivity and had been retained in school. The minors were placed in protective custody when law enforcement personnel were called to an apartment where B. S. had been left by the mother, who had not been heard from for several days. Crystal methamphetamine and drug packaging were located in the apartment, and B. S. described drug sales that occurred at the apartment.

According to reports filed during the previous dependency proceeding, B. S. had exhibited anger problems, aggressive behavior, and educational delays. While the jurisdictional hearing was pending in the current matter, the juvenile court granted the Shasta County Department of Social Services (Department) application for authorization to administer medication to B. S. for attention deficit/hyperactivity disorder (ADHD).

At the jurisdictional hearing, the juvenile court sustained the allegations in the petition and ordered the mother to comply with the case plan formulated by the Department. No services were ordered for appellant.

According to the six-month review report and a subsequent addendum, the mother had not complied with her case plan or visited the minors during the reunification period. The minors had been placed together in a foster home and were adjusting well, although [B. S.] required a bit more time to adjust given more difficult behaviors and testing of authority figures. When B. S. initially entered foster care, he exhibited aggressive tendencies and impulsive behaviors, but it was believed that the stable placement and medication had made a significant impact. Still, it was reported that he was performing below grade level in school and was receiving tutoring and after school assistance.

At a review hearing in July 2006, the mothers reunification services were terminated and the matters were set for a hearing to select and implement permanent plans for the minors pursuant to Welfare and Institutions Code^[2]section 366.26.

Initially, the minors foster parents, who also had three biological children and a child under a guardianship, were willing to adopt all three minors. The social worker reported that the minors were each very appealing and personable and had no mental health issues, as B. S.s ADHD was being controlled by medication. The social worker felt the minors were attractive candidates for adoption and would be considered adoptable by numerous applicants.

However, in an addendum filed in December 2006, the social worker reported that B. S. had been experiencing behavioral problems during the last two months and had been defiant with his foster mother and combative with his older siblings and foster siblings. Ultimately, it was decided that B. S. would be moved to a different placement and his therapy increased with the goal of reunifying him with his siblings and foster parents. It was the social workers opinion that B. S. would remain adoptable even if he was unable to reunify with his foster parents, because he is a healthy[,] personable 11-year-old boy, he is athletic and enjoys participating in organized sports. According to the social worker, there were several possible adoptive homes that sought a child with B. S.s characteristics. The social worker also noted there [wa]s good reason to believe that [B. S.]s current behavioral problems w[ould] dissipate with time.

In February 2007, the juvenile court granted the Departments application to authorize a change in medication for B. S.s ADHD.

According to a report in mid-February 2007, B. S. had made a smooth transition to his new placement and many of the behavioral problems reported in his prior placement ha[d] not been demonstrated in the current home. He had not been confrontational with his new foster parents, and he reported he felt comfortable in his new foster home. Furthermore, he no longer qualified for special education services and was not exhibiting behavioral problems at school. According to the report, it did not appear that his former foster parents would be a long-term resource for him and it was unknown whether B. S.s new foster parents would be a possible resource for permanent placement . . . . However, B. S. continued to be assessed as adoptable.

At the section 366.26 hearing in February 2007, the minors attorney informed the court that B. S. continued to be doing well in his new foster home. He informed the court that the minors wanted to be able to visit each other and he did not anticipate that an adoptive family for B. S. would interfere with the sibling relationship.

Appellants attorney asked for a continuance until we get a better handle on what is going on with [B. S.] and how this would impact sibling contact. Although the minors attorney acknowledged that it was uncertain whether B. S.s behavior will continue, both he and the Department opposed a continuance, and the court denied the request.

Following testimony by appellant, appellants attorney argued that it was premature to terminate parental rights as to B. S. because he was 11 years old, he had sufficient behavioral problems requiring removal from placement with his siblings, and an adoptive home had not been identified. The attorney suggested that adoption be identified as the permanent plan but that the matter be continued to see if an adoptive home could be located.

Finding each of the minors adoptable, the juvenile court terminated parental rights and ordered a permanent plan of adoption.

DISCUSSION

I

Sufficiency Of The Evidence Of Adoptability

Appellant contends the evidence was insufficient to support a finding that B. S. was adoptable. We disagree.

At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must make one of four possible alternative permanent plans for a minor child. . . . The permanent plan preferred by the Legislature is adoption. (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368, italics omitted.) In order for the court to select and implement adoption as the permanent plan, it must find, by clear and convincing evidence, the minor will likely be adopted if parental rights are terminated. (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164; 366.26, subd. (c)(1).)

The issue of adoptability posed in a section 366.26 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.] Hence, it is not necessary that the minor already be in a potential adoptive home or that there be a proposed adoptive parent waiting in the wings. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.)

We review an order terminating parental rights for substantial evidence. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)

Turning to the matter before us, there is ample evidence that B. S. is adoptable. B. S. was described as a healthy[,] personable 11-year-old boy, [who] is athletic and enjoys participating in organized sports. Much of the problematic behavior that B. S. had exhibited in the past had been resolved: he was performing well in school both educationally and behaviorally, he no longer required therapy, and his ADHD was being controlled by medication. Although B. S.s placement with his siblings no longer was a viable placement alternative, the social worker had identified several possible adoptive homes that sought a child with B. S.s characteristics, and it was her opinion that he remained adoptable.

Appellant asserts the evidence was insufficient to support adoptability given the nature of [B. S.]s prior failed placement [with his siblings] and the apparently unresolved nature of his emotional problems.

However, the fact that B. S. had been moved out of one prospective adoptive placement does not necessarily signify that he is not adoptable. The social worker felt that [B. S.]s current behavioral problems w[ould] dissipate with time, and this opinion appears to be well-grounded. B. S. had exhibited behavioral problems not shared by his siblings, and it is not surprising that difficulties arose for him in a foster home with six other children. In the past, B. S. had responded positively to a secure and stable living environment, and it was reasonable for the social worker to conclude that he could be placed successfully in a home in which his needs were not competing with those of several other children. If appellant had doubts as to the basis for the social workers opinion in this regard, it was incumbent upon him to examine witnesses at the section 366.26 hearing to explore these concerns. This he failed to do.

Appellant also complains that the social workers reports contained insufficient information regarding the behavioral problems leading to B. S.s removal from the foster home he shared with his siblings. However, B. S.s behavioral problems were not a new development. He presented challenging behavior during earlier dependency proceedings and was having problems again when he reentered the dependency system in the current matter. Similar to past behavior issues, B. S.s most recent problems involved defiance toward the foster parents and combativeness with other children in the home. Again, if appellant wished to explore the social workers assessment that B. S.s behavior would not pose an obstacle to adoption, he could have examined the social worker or other relevant witnesses at the section 366.26 hearing.

Substantial evidence supports the juvenile courts finding that B. S. is adoptable. We reject appellants claim to the contrary.

II

Denial Of Continuance

Appellant asserts the juvenile court abused its discretion by denying his request for a continuance. Again, we disagree.

The juvenile court may continue a hearing beyond the time limit otherwise required as long as the continuance is not contrary to the interests of the minor. ( 352, subd. (a).) In considering the minors interests, the court shall give substantial weight to the 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. (Ibid.) Continuances may be granted only upon a showing of good cause. (Ibid.)

Continuances in juvenile dependency matters are discouraged. (In re Ninfa S. (1998) 62 Cal.App.4th 808, 810-811.) [T]ime is of the essence in offering permanent planning for dependent children. [Citations.] A reviewing court will reverse an order denying a continuance only upon a showing of an abuse of discretion. (In re Gerald J. (1991) 1 Cal.App.4th 1180, 1187.)

As pointed out by appellant, a continuance may be appropriate when the juvenile court needs more information to make a proper determination and the continuance will not be contrary to the childs interests. (See In re John M. (2006) 141 Cal.App.4th 1564, 1572.) On appeal, appellant asserts there was a clear need for further information here because [t]he nature of [B. S.]s behavioral problems was not clear from the social workers reports. But, as already noted, B. S.s behavioral problems were not a new development. To a greater or lesser extent, he had been having similar problems for many years. As long as there was sufficient information before the juvenile court to determine that B. S.s problems were not likely to pose an obstacle to adoption, a continuance to obtain greater detail in this regard was unnecessary.

Furthermore, as noted by the Department, appellant had adequate time between B. S.s removal from the foster home and the date of the hearing to investigate the behavioral problems leading to the failed placement. Appellant also could have explored B. S.s behavior and its possible effects on adoptability at the section 366.26 hearing by calling witnesses or presenting other evidence. He chose not to do so. As the juvenile court had adequate information to determine that B. S. was adoptable, it did not abuse its discretion by refusing to continue the matter for this purpose.

Appellant also contends it [was] impossible to tell whether a future adoptive home for [B. S.] would be able and willing to accommodate sibling visitation. However, both the Department and the minors attorney expressed a commitment to maintaining contact between B. S. and his siblings, and the juvenile court ordered sibling visitation to occur a minimum of once per month. Appellants concerns about future visitation problems were speculative, particularly since all of the parties supported continued contact.

Appellant has failed to demonstrate that the juvenile court abused its discretion by denying the requested continuance. Accordingly, we reject appellants claim.

DISPOSITION

The juvenile courts order is affirmed.

ROBIE , J.

We concur:

DAVIS, Acting P.J.

BUTZ , J.

^[1] Appellant is not E. M.s father.

^[2] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.