In re Amber M.

Filed 9/7/07 In re Amber M. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County.

Robert L. Stevenson, Judge. Affirmed.

Michael A. Salazar, under appointment by the Court of Appeal, for Defendant and Appellant Kathy M.

Andre F. F. Toscano, under appointment by the Court of Appeal, for Defendant and Appellant James P.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, Kim Nemoy, Senior Deputy County Counsel, for Plaintiff and Respondent.

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Kathy M. and James P. appeal from the termination of their parental rights to their daughter, Amber M. We affirm.

Facts

Amber was born on September 5, 2005. She had medical problems and remained in UCLA hospital after her birth. Nurses and a social worker reported to DCFS that Amber needed special care, that Kathy and James did not visit regularly, that Kathy was afraid of James, who had displayed an explosive temper, and that neither Kathy or James had learned to care for Amber's special medical needs. A Welfare and Institutions Code[1]section 300 petition was filed on October 31, 2005, and the court ordered Amber detained.

Amber was discharged from the hospital on November 29, and was placed in the foster home where she remained throughout the dependency.

The petition was sustained on December 22, 2005, under section 300,

subdivision (b), on factual allegations that the parents had a history of domestic violence including incidents in which James struck Kathy's chest with his fist while she was pregnant, and in which he threw a billiard ball at her; that James suffered from obsessive-compulsive disorder and did not take the medication which had been prescribed for him; and that James had a history of drug abuse and was a frequent user of marijuana, rendering him incapable of providing care for Amber.

Reunification services were ordered. For Kathy, the order was domestic counseling for victims, parent education, individual counseling, and random drug tests. For James, the order was drug rehabilitation with random testing, domestic violence counseling, parent education, and individual counseling. Visits were ordered for both parents, and both parents were ordered to meet with UCLA staff and learn how to care for Amber.

In the eight month period between the date the petition was sustained and termination of services, on August 23, 2006, Kathy and James visited Amber 21 times (and cancelled 9 visits in that period, often citing transportation difficulties), though the visits were cut short on several occasions. Kathy visited alone one additional time.

By June 2006, DCFS was reporting that Amber was no longer medically fragile, but that she had developmental delays.

On August 14, Kathy informed DCFS that James had threatened her and that she had left him. She sought and obtained a domestic violence restraining order. In her declaration, she described several incidents in which James struck her or grabbed her, including the incidents which formed the basis of the sustained petition, which she had at times denied. The most recent incident was on August 14, 2006. Kathy declared that on that date, James swore at her, threatened to kill her, blamed her for Amber's dependent-child status, and abandoned her in a park. However, by the time of the next hearing, on August 23, the parents were together.

When the court terminated reunification services,^[2] it found that James had failed to participate substantively in his case plan, and had not made progress in court ordered treatment. The court noted that James had not enrolled in drug counseling, had had some positive drug tests, and had missed some tests. As to Kathy, the court found that she had completed some of her programs, but had not made substantive progress, as demonstrated by the fact that she was still with James. The court found that neither parent had visited regularly and consistently.

A section 366.26 hearing was set for December 20. For that hearing, DCFS reported on Amber, who was receiving child development therapy, physical therapy, occupational therapy, and something described as "Junior Blind," and was making progress. She had the social, language, and cognitive skills of an eight month old, and gross motor skills which varied between a six to eight month level. She was considered a failure to thrive child, with slow weight gain.

DCFS also reported that neither parent had visited since August, though they had called several times, and that a potential adoptive parent had been identified. Patricia B. was a part time professor of psychology and human development who had adopted six other children with special needs. She knew Amber's foster parents, and in August began visiting Amber once a week for three or four hours at a time. She knew of Amber's developmental delays, and was committed to adopting Amber.

At the December 20 hearing, Kathy complained that Amber's foster mother was refusing to allow visits. The court continued the section 366.26 hearing to January 25, 2007, for a contested hearing and ordered DCFS to facilitate visits, and to report on visits.

DCFS reported for the January hearing. As to visits, DCFS reported that as of early December, Amber's foster mother did not want visits in her home because she was afraid of James. Other visits were scheduled, but on several occasions (August 28, September 5, December 21) Kathy and James contacted Amber's foster mother about visits, but did not make the follow-up call needed to fix the time and date. In late December and throughout January, DCFS made efforts to facilitate visits, contacting the parents and offering assistance. Kathy and James visited on January 2, 9, and 16. Amber was not particularly responsive to her parents during these visits, but sought her foster father instead. After the visits, she was clingy and upset.

DCFS also submitted a last minute information sheet based on a January 24 letter from James's therapist, which was attached. The therapist stated that James had been in individual and group therapy since June 28, 2006, and was making great progress. The therapist disagreed with the recommendation that parental rights be terminated and opined that James was a loving and competent father. She believed that it was in Amber's best interest that the case be continued for three months, so that James could demonstrate his ability to care for Amber.

When the case was called, James, through his counsel, asked that the case be continued so that he could file a section 388 petition, based on the information in the letter. The court denied the request.

The court then heard testimony from the DCFS social worker, father, and mother (relevant details are recounted below) and received DCFS reports into evidence. At the conclusion of the hearing, the court found that Amber was adoptable and terminated parental rights.

Discussion

1. Substantial evidence that Amber was likely to be adopted

Both James and Kathy challenge the trial court's finding that Amber was likely to be adopted, contending that there was no substantial evidence for the finding. They cite her medical problems at birth, her diagnosis as a failure to thrive child, and her developmental delays. James also argues that Patricia B.'s actions show that she was not committed to adoption, noting that as of the termination of parental rights, Amber had not been placed in her home.

"We review the factual basis of a termination order to determine whether the record contains substantial evidence from which a reasonable trier of fact could find a factual basis for termination by clear and convincing evidence." (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) We see substantial evidence for the trial court's finding.

"The issue of adoptability posed in a section 366.26 hearing focuses on the minor, e.g., whether the minor's age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor." (In re Sarah M. (1994)22 Cal.App.4th 1642, 1649.) Amber certainly had some developmental delays and had had some health problems. However, many of her health problems had been resolved, and her infant and toddler development program reported that she had made great gains from early intervention. She was able to form a bond to her foster parents, and then to Patricia B. The social worker described her as "a sweet baby," and opined that she was likely to be adopted.

Further, "the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor's 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 parent's 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." (In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650, italics omitted.) We see no basis in the record for questioning Patricia B.'s commitment to adoption.

At the section 366.26 hearing, the social worker testified that Amber had started weekend visits with Patricia B. in mid-December and had formed an attachment to her. Amber had not been placed with her, but the social worker also testified that that was because Patricia B. was afraid of Amber's parents. James points out that Patricia B. had never met either parent, and argues that her fear, which was for unknown reasons, suggests a lack of commitment to Amber. We do not see that it does. The social worker did not ask Patricia B. why she was afraid of the parents, but the record indicates that Patricia B. knew Amber's foster parents, and that Amber's foster mother was afraid of James. The inference is obvious. Patricia had learned of James's explosive temper, and thus feared him. This does not reflect negatively on her commitment to Amber.

2. Visits

Both James and Kathy contend that the termination order must be reversed because the foster parents interfered with their visits, preventing them from establishing the section 366.26, subdivision (c)(1)(a) exception to termination of parental rights.

This is the evidence: James testified that between August of 2006 and December of 2006, he made many attempts to visit Amber, calling her foster mother about 10 times. Visits were scheduled, then cancelled by the foster mother. James believed that this happened because after he reported to his therapist that Amber was bruised and dirty, and smelled of urine, the therapist called DCFS, who investigated. He believed that Amber's foster mother was taking revenge by cancelling visits.

He did not call the social worker about this problem because he did not get along with her, and because reunification services had been terminated.[3]

Kathy testified that until August 2006, she visited Amber twice a week, except perhaps for a few weeks when she and James had the flu. She and Amber had formed a loving bond. However, after DCFS investigated James's complaint, the foster mother refused to allow her, or James, to visit at the house or to go to Amber's therapy sessions. She had called the foster family to arrange visits countless times. She did not call the social worker, because she did not think she was supposed to call DCFS after services were terminated.

The social worker testified that, according to the foster mother, there were no visits between August and December 2006, because the parents did not call the foster mother to ask for visits.

The trial court found that the parents' testimony was not credible and that they had not visited consistently. The court noted that the parents had testified to the contrary, but that, "I have much evidence to review in the reports, as far as the missed visits, the canceled visits. And the parents have tried to show the court that there has been some reason that is justified for the visits not taking place; placing blame on the foster care provider but, again, I don't believe the parents, and I don't believe that was the reason why they were not able to visit."

The parents argue that the court had no ground to reject their uncontradicted testimony about the foster mother's actions and motivation. They argue that the January DCFS hearing did not report on this issue, contrary to the court's order, and that DCFS's silence constitutes an adoptive admission that the foster family interfered with visits. James also argues that the foster mother thwarted visits because she wished to accommodate Patricia B.'s visits.

We do not see that the parents' evidence was uncontradicted, or that DCFS failed to report. In January, DCFS reported on the recent history of visits, including visits arranged and visits cancelled, and the parents' calls to DCFS and the foster family. DCFS had earlier made similar reports for other periods. Much of the information was indeed derived from the foster parents, but that is of no moment. DCFS also presented evidence that there were no visits after termination of services because the parents did not call to arrange visits. That evidence controverts James's and Kathy's testimony that they were denied visits because the foster mother interfered with their visits.

The trial court simply disbelieved their testimony, as the trial court, as trier of fact, was entitled to do.

3. Denial of a continuance of the 366.26 hearing

James contends that under section 366.21 and Judith P. v. Superior Court (2002) 102 Cal.App.4th 535, the court erred in denying his request for a continuance of the section 366.26 hearing. He contends that with the continuance, he could have filed a section 388 petition or prepared for a hearing at which he could establish that termination of rights was not in Amber's best interest.

The section, which applies to status review hearings, provides that a social worker must file a report "regarding the services provided or offered to the parent or legal guardian to enable him or her to assume custody and the efforts made to achieve legal permanence for the child if efforts to reunify fail," at least 10 days before the review hearing, and must provide the parent with a copy of that report at that time. ( 366.21, subd. (c); see also 366.05.) Judith P. held that the 10 day notice requirement is mandatory, and that failure to provide parents and children with the status report at least 10 days before a prepermanency planning hearing is structural error, reversible per se. (Id. at p. 558.)

As DCFS argues, this was not a status review hearing. Section 366.21 does not apply, and neither does the reasoning or result of Judith P.

Moreover, there would be no error even under the rule of Judith P. The information in the supplemental report was not generated by DCFS and did not concern services provided to James -- reunification services had been terminated. Instead, the information came from James's therapist, and was thus information that James could have had at any time. The purpose of the 10 day rule in section 366.21 is to allow parents and their lawyers time to review the DCFS report and to assemble contradictory evidence and prepare for questioning and cross-examination of witnesses. (Id. at p. 548.) Here, James did not need DCFS to give him a copy of his therapist's letter, in order to prepare for the hearing, or to prepare a section 388 motion.

James suggests that the court was punishing counsel for his failure to get the information from the therapist. We must disagree. The court noted, as we have here, that the information in James's therapist's letter was James's information, not DCFS's, and found that under those circumstances, a continuance was not warranted.

"The juvenile court may continue a dependency hearing at the request of a parent for good cause and only for the time shown to be necessary. ( 352, subd. (a); Cal Rules of Court, rule 1422(a)(2).) Courts have interpreted this policy to be an express discouragement of continuances. (See, e.g., In re Emily L. (1989) 212 Cal.App.3d 734, 743.) The court's denial of a request for continuance will not be overturned on appeal absent an abuse of discretion. (See In re Angela R. (1989) 212 Cal.App.3d 257, 265-266.) Discretion is abused when a decision is arbitrary, capricious or patently absurd and results in a manifest miscarriage of justice. (People v. Franco (1994) 24 Cal.App.4th 1528, 1543.)" (In re Karla C. (2003) 113 Cal.App.4th 166, 179-180.) We see no abuse of discretion here. James at all times had access to his therapist's opinion, so that the court did not abuse its discretion in denying his request for a continuance based on the date of his receipt of the therapist's letter to DCFS.

We note, too, that while James's therapist opined on Amber's best interests and on James's performance as a father, there is no indication that the therapist had ever evaluated Amber, or ever saw James interact with her. (Indeed, James had only 10 visits with Amber while he was in therapy, Kathy was present at each visit. Two of the visits were while Amber was having occupational therapy, and on both those occasions James and Kathy left early.) There is similarly no indication that James's therapist had the whole picture of the dependency, and the letter reflects little knowledge of the dependency system with its shifting burdens, or the choices facing the court.

Disposition

We affirm the order.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, J.

We concur:

TURNER, P. J.

MOSK, J.

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[1] All further statutory references are to that code.

[2] Kathy and James challenged the ruling by extraordinary writ, which this Court denied.

[3] James also argues that his September 2006, section 388 petition is evidence that he was having difficulties with visits. The petition asks that Amber be moved to a foster home closer to the parents' residence, and says nothing about the foster mother creating difficulties with visits.