In re Ryan F.
Filed 10/12/07 In re Ryan F. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
In re RYAN F., a Person Coming Under the Juvenile Court Law. | |
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. LISA H., Defendant and Appellant. | D050698 (Super. Ct. No. J516290) |
APPEAL from a judgment of the Superior Court of San Diego County, Joe O. Littlejohn, Judge. (Retired Judge of the San Diego Sup. Ct. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Affirmed.
Lisa H. appeals a judgment terminating her parental rights to her minor son Ryan F. under Welfare and Institutions Code section 366.26.[1] Lisa contends the evidence was insufficient to support the court's finding Ryan was adoptable and the court erred by denying her request for a continuance. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2006, the San Diego County Health and Human Services Agency (Agency) filed a petition in the juvenile court on behalf of newborn Ryan under section 300, subdivisions (b) and (g), alleging Lisa was unable to provide regular care for Ryan because she was mentally ill, had a conservator and lived in a board and care facility. Lisa had been hospitalized several times since 1994 for schizophrenia. She was assessed as gravely disabled and unable to accept mental health treatment voluntarily. A public conservator had been appointed for Lisa for the past six years because she was homeless, could not adequately care for herself, was delusional, had violent tendencies, attempted suicide and was not taking her prescribed medications. She had a criminal history, including battery and fire setting.
Ryan was detained in out-of-home care and Lisa had weekly supervised visits. She had difficulty holding him and needed assistance with how to feed and burp him and change his diaper. She ended several visits early and said she wanted to have Ryan adopted.
According to a psychological evaluation by Marvin Galper, Ph.D., Lisa was a danger to herself or others when she was noncompliant with her medications. Her mental illness was chronic and prevented her from living independently. A second psychological evaluation by Thomas Barnes, Ph.D., similarly concluded Lisa was gravely disabled and could not care for herself. Dr. Barnes believed it would be exceedingly difficult, if not impossible, for Lisa to raise a child without close supervision by others. Given Lisa's poor prognosis, Dr. Barnes recommended against offering her reunification services.
At a jurisdiction and disposition hearing, the court sustained the allegations of the petition, declared Ryan a dependent, removed him from Lisa's custody and placed him in foster care. The court denied reunification services and set a section 366.26 selection and implementation hearing.
According to an assessment report, Lisa was consistently visiting Ryan every two weeks. She needed prompting when caring for him and often required assistance to complete child care tasks such as burping and feeding him. The social worker assessed Ryan as adoptable based on factors such as his young age, good health and ability to attach to others. Ryan's current caregivers, with whom he had lived since he was two days old, were aware of Ryan's family background and remained committed to adopting him. The caregivers had successfully completed part of the home study and had previously been approved to adopt another child. There were six other families willing to adopt a child with Ryan's characteristics.
In the social worker's opinion, Lisa and Ryan did not have a parent-child relationship. Although Lisa loved Ryan, she was unable to safely parent him, even for short periods. Ryan would benefit more from a permanent plan of adoption than from maintaining a relationship with Lisa.
At a contested selection and implementation hearing, Lisa requested a continuance on the ground her conservatorship would soon expire and she believed it would not be renewed. A brief continuance, she argued, would allow her the opportunity to file a section 388 petition for modification. The court treated Lisa's request for a continuance as an oral modification petition and summarily denied it. The court found Ryan was adoptable and none of the exceptions of section 366.26, subdivision (c)(1) applied to preclude terminating parental rights.
DISCUSSION
I
Lisa challenges the sufficiency of the evidence to support the court's finding Ryan was likely to be adopted if parental rights were terminated. She asserts Ryan's genetic background of schizophrenia meant he was not generally adoptable and there was no showing his prospective adoptive parents would be able to meet his needs in the future.
A
When reviewing a court's finding a minor is adoptable, we apply the substantial evidence test. (In re Josue G. (2003) 106 Cal.App.4th 725, 732; In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we must uphold those findings. We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or determine where the weight of the evidence lies. (In re Casey D. (1999) 70 Cal.App.4th 38, 52.) Rather, we view the record favorably to the juvenile court's order and affirm the order even if there is substantial evidence supporting a contrary conclusion. (Id. at pp. 52-53.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
The court can terminate parental rights only if it determines by clear and convincing evidence the minor is likely to be adopted. ( 366.26, subd. (c)(1).) The statute requires clear and convincing evidence of the likelihood adoption will be realized within a reasonable time. (In re Zeth S. (2003) 31 Cal.4th 396, 406; In re Amelia S. (1991) 229 Cal.App.3d 1060, 1065.) In determining adoptability, the focus is on whether a child's age, physical condition and emotional state will create difficulty in locating a family willing to adopt. ( 366.22, subd. (b)(3); In re David H. (1995) 33 Cal.App.4th 368, 379.) The possibility a child may have future problems does not mean the child is not likely to be adopted. (In re Jennilee T. (1992) 3 Cal.App.4th 212, 223-225.) "Usually, 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. (1994) 22 Cal.App.4th 1642, 1649-1650.)
B
The evidence showed Ryan is generally adoptable because he is a healthy, adorable infant with a sweet disposition. He has been able to attach and adjust to new people and situations. Ryan's family history of mental illness does not, without more, create an impediment to adoption. (See In re Erik P. (2002) 104 Cal.App.4th 395, 400.)
Moreover, the prospective adoptive parents were fully aware of Ryan's needs and family background, yet remained committed to adopting him. Agency had previously approved them to adopt another child, and it was likely they would be approved to adopt Ryan. Nothing in the record showed the prospective adoptive parents would not be able to meet Ryan's future needs. Even if this placement failed, Agency was confident an adoptive home could be found for Ryan. Six other families were interested in adopting a child with Ryan's characteristics. Substantial evidence supports the court's finding Ryan was adoptable.
II
Lisa contends the court erred by denying her request to continue the selection and implementation hearing. She asserts her conservatorship was about to expire, thereby removing the roadblock to preserving her relationship with Ryan. A brief continuance, she claims, would have allowed her to file a section 388 petition for modification in light of this changed circumstance.
A
The juvenile court may grant a continuance of any hearing only on a showing of good cause and only if the continuance is not contrary to a minor's best interests. ( 352.) In considering the minor's interests, "the court shall give substantial weight to a minor's 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."
( 352, subd. (a); In re Ninfa S. (1998) 62 Cal.App.4th 808, 810.) Continuances in juvenile cases are discouraged. (Jeff M. v. Superior Court (1997) 56 Cal.App.4th 1238, 1242.) We reverse an order denying a continuance only on a showing of an abuse of discretion. (In re Gerald J. (1991) 1 Cal.App.4th 1180, 1187.)
B
Here, Lisa sought a continuance because she anticipated her conservatorship would be terminated in the near future, and she wanted the opportunity to file a section 388 petition. The court found Lisa failed to show good cause for the continuance because she did not present any evidence to support her belief about the termination of her conservatorship. In so finding, the court did not abuse its discretion.
Although the court denied Lisa's request for a continuance, it nevertheless treated it as an oral request for modification under section 388. After hearing additional argument, the court summarily denied the modification petition, finding Lisa had not shown changed circumstances. The court reasoned that even if Lisa no longer had a conservator, she had not shown she was now in a better position to parent Ryan than she had been at the time of her psychological evaluations.
The court must order a hearing on a parent's modification petition if the parent makes a prima facie showing there is a change of circumstances and the proposed modification is in the minor's best interests. ( 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415.) "The prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition. [Citation.]" (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.)
Assuming Lisa was about to have her conservatorship terminated, the evidence showed she was not able to safely parent Ryan. She had a history of poor impulse control, violence and delusional behavior. When Lisa did not have a conservator for a brief period in the past, she failed to take her prescribed medications, became delusional and started a fire in an apartment building. Dr. Galper and Dr. Barnes both concluded Lisa was gravely disabled and could not live independently. Because the changed circumstances alleged by Lisa would not have sustained a favorable decision on the modification petition, the court properly denied her request without an evidentiary hearing.
DISPOSITION
The judgment is affirmed.
McCONNELL, P. J.
WE CONCUR:
McINTYRE, J.
AARON, J.
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[1] Statutory references are to the Welfare and Institutions Code.
