In re Anthony S.

Filed 5/15/08 In re Anthony S. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 orders of the Superior Court of San Diego County, Hideo Chino, Commissioner. Affirmed.

Juan S. appeals an order reinstating a judgment that terminated his parental rights to his son, Anthony S., and an order denying his request for a continuance of a hearing. He contends the San Diego CountyHealth and Human Services Agency (the Agency) did not meet its burden of proving by clear and convincing evidence that he was currently unfit to parent Anthony. Thus, the juvenile court erred by not granting his motion under Welfare and Institutions Code Section 350, subdivision (c). (Statutory references are to the Welfare and Institutions Code.) He asserts the court also abused its discretion by not granting a continuance. We affirm the orders.

FACTUAL AND PROCEDURAL BACKGROUND

Anthony was born in San Diego in February 2004, testing positive for marijuana and methamphetamine. He was taken into protective custody and, two days after his birth, placed in a licensed foster home. The Agency petitioned on his behalf under section 300, subdivision (b) alleging he was at substantial risk of harm because his mother, Rosemary, abused drugs.

The court found Juan to be Anthony's presumed father, and Rosemary provided an address for Juan and herself in Tijuana. The court appointed counsel for Rosemary and directed the court clerk to send Juan a copy of the dependency petition at the address Rosemary had provided. Rosemary submitted to the allegations of the petition, the court found them true, placed Anthony in foster care and ordered services for the parents.

Rosemary participated in services, visited Anthony regularly and began unsupervised visits. Juan completed a parenting class and attended Narcotics Anonymous meetings with Rosemary in Tijuana. The court gave the social worker discretion to begin overnight visits and a 60-day trial visit with the parents following a positive home evaluation by the Mexican social services agency, Desarrollo Integral de la Familia (DIF). At the 12-month review hearing, the court ordered six more months of services. However, only two overnight visits occurred and for the next seven months, Rosemary did not visit Anthony, participate in services or contact the Agency.

On October 25, 2005, the court terminated reunification services, set a section 366.26 hearing and granted defacto parent status to Anthony's foster mother, with whom he had lived since he was two days old. The social worker found Anthony was likely to be adopted and his foster mother wanted to adopt him.

On November 7, 2005, at Juan's request, the court appointed counsel for him. On July 18, 2006, the court denied Juan's section 388 petition in which he requested setting aside the jurisdictional/dispositional orders.

On July 24, 2006, the court found Anthony was likely to be adopted and none of the statutory exceptions to adoption applied. It terminated parental rights and ordered adoption as the permanent plan.

Juan appealed and, in a nonpublished opinion, this court reversed the judgment terminating parental rights, holding the juvenile court had erred by terminating Juan's parental rights without making a finding that he is an unfit parent. (In re Anthony S. (Jan. 25, 2007, D049123).) This court remanded the case to the juvenile court, directing it to address Juan's current fitness to parent Anthony and to make appropriate findings. We further directed that if the court found by clear and convincing evidence that Juan is unfit to parent Anthony, it was to reinstate the judgment but, if it did not make such a finding, it was to order six months of reunification services.

The social worker recommended Anthony remain with his foster mother with a permanent plan of adoption. She said Juan posed a substantial risk because he lived with Rosemary, who had a history of using drugs without Juan's knowledge and had not complied with her case plan. She also said Juan had an extensive criminal record and a history of not complying with the terms of his probation, and he had shown little interest in Anthony.

Visits were arranged for Juan at the Mexican Consulate in San Ysidro since he could not cross the border because of his criminal record in the United States. He had agreed to the visitation schedule, but visits were not occurring.

Juan denied having a criminal record in Mexico, but DIF was unable to provide his record to the Agency because of confidentiality laws. The social worker submitted a copy of a police report of a domestic violence incident between the parents in 2001.

Anthony began therapy because he became anxious when he was around strangers. His therapist opined it would be traumatic for him to be removed from his foster mother.

At the hearing on August 14, 2007, the social worker testified Juan first contacted the Agency in November 2005. He had visited Anthony twice in March 2005 and once again in May 2006. The social worker said after Juan's parental rights were reinstated, the Agency scheduled nine visits, but Juan attended only one visit and cancelled or did not appear for six others. She said Anthony appeared relaxed and cheerful at that visit. The social worker testified Juan knew little about Anthony and was a total stranger to him. She expressed concern about Juan's failure to complete probation conditions; his history of domestic violence with Rosemary; the fact that he lived with Rosemary, who was untreated for substance abuse; the lack of information about their living conditions; Juan's criminal history; the length of time Anthony had been in foster care; and the primary bond Anthony had with his foster mother.

Juan testified he was married to Rosemary, and they had lived together for 12 years. He explained he did not contact the court earlier because he believed it was Rosemary's case, it did not involve him and things were going well. He said he could not cross the border. He testified he worked eight to 10 hours six days each week, and Rosemary usually cared for their other children. He did not believe it would be difficult for Anthony to leave the foster mother's home. He said DIF had evaluated his home twice in previous years, but he missed a recent appointment with DIF, and DIF had not done an evaluation of his home this year. He said he asked the social worker to schedule visits on Saturdays because he could not miss work during the week, and he tried to get a copy of his criminal record, but was unable to do so.

The foster mother testified Anthony had lived with her for three and one-half years. She said Anthony had nightmares after an overnight visit with Juan and Rosemary and when he was in unfamiliar situations. Anthony had one visit with Juan after May 2007 and, at the visit, he was quiet and watched television. She opined he did not recognize Juan as his father.

At the conclusion of the Agency's case-in-chief, Juan's attorney made a motion akin to a motion for a directed verdict under section 350, subdivision (c). The court denied the motion. Subsequently, Juan's attorney requested a continuance because she had received documentation regarding Juan's lack of a criminal history in Mexico and stating that Juan had an appointment for DIF to evaluate his home. The court denied the request.

The paternal grandmother testified that when she went to Tijuana to visit Juan and Rosemary, the other children appeared happy in the home, and both Juan and Rosemary cared for them.

Rosemary testified she last visited Anthony one-year earlier. She and Juan had five other children, and she was their primary caretaker. She said she had completed a drug abuse program, but not an aftercare program. She had not used drugs for two years. She said she and Juan had an appointment with DIF to have their home evaluated.

At the conclusion of the hearing, the court found by clear and convincing evidence Juan was unfit to parent Anthony, and it would be detrimental to Anthony's well-being to return him to Juan. It reinstated the judgment terminating parental rights.

DISCUSSION

I

Juan contends the Agency did not meet its burden to show by clear and convincing evidence that he is currently unfit to parent Anthony; thus, the court erred by not granting his section 350, subdivision (c) motion for a directed verdict. He also asserts the evidence was insufficient to support the court's finding that he is unfit to parent Anthony. The court did not err by denying the motion. Clear and convincing evidence supports the finding that Juan is unfit to parent Anthony.

Section 350, subdivision (c) provides:

"At any hearing in which the probation department bears the burden of proof, after the presentation of evidence on behalf of the probation department and the minor has been closed, the court on motion of the minor, parent, or guardian, or on its own motion, shall order whatever action the law requires of it if the court, upon weighing all of the evidence then before it, finds that the burden of proof has not been met. That action includes, but is not limited to, the dismissal of the petition and release of the minor at a jurisdictional hearing, the return of the minor at an out-of-home review held prior to the permanency planning hearing, or the termination of jurisdiction at an in-home review. If the motion is not granted, the parent or guardian may offer evidence without first having reserved that right."

A reviewing court must uphold a juvenile court's findings and orders if they are supported by substantial evidence. (In re Amos L. (1981) 124 Cal.App.3d 1031, 1036-1037.) "[W]e must indulge in all reasonable inferences to support the findings of the juvenile court [citation], and we must also '. . . view the record in the light most favorable to the orders of the juvenile court.' " (In re Luwanna S. (1973) 31 Cal.App.3d 112, 114, quoting In re Biggs (1971) 17 Cal.App.3d 337, 340.) The appellant bears the burden to show the evidence is insufficient to support the court's findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

The court's denial of Juan's motion under section 350, subdivision (c) was supported by substantial evidence. The record showed that Juan did not have a parental relationship with Anthony. Although Juan knew that Anthony had been taken into protective custody immediately after his birth in February 2004, he had no contact with Anthony during Anthony's first year of life. Juan testified he did not get involved because he believed it was Rosemary's case and did not concern him. He had two visits with Anthony when Rosemary brought Anthony home for visits, but after that time, made no attempt to visit until counsel was appointed to represent him in November 2005. After counsel was appointed he visited one time, but following termination of parental rights, did not request any more visits until the case was remanded and visits were scheduled at the Consulate office. Then he cancelled most of the visits he was offered. Of the six visits arranged in July and August 2007, he attended only one. As Anthony's therapist stated, they were virtual strangers.

Importantly, Juan lived with Rosemary, who, although she had completed a drug treatment program, admitted she had not completed the aftercare component of drug treatment. The court had removed custody of Anthony from Rosemary, found there would be a substantial risk of detriment if he were returned to her care, terminated her reunification services and terminated her parental rights. Juan worked eight to 10 hours each day plus a half day on Saturday. Rosemary was the primary caregiver for their other five children. She had earlier hidden her drug use from him and his family. Returning Anthony to Juan would be tantamount to returning him to Rosemary, although she remained untreated and her parental rights had been terminated.

Also, Juan had a criminal history in California and he had not completed the terms of probation. His criminal history included a domestic violence incident with Rosemary in 2001. The police report on this incident noted that Juan was a gang member. He and Rosemary had never received any treatment after this violent incident.

There was evidence that Anthony would experience extreme trauma if he were removed from his foster mother with whom he had lived since he was two days old. His therapist opined removal "at this stage of his attachment and developmental history would be as traumatic as an initial removal." He stated placing Anthony with Juan "would be akin to placement with strangers with whom there is no pre-existing attachment relationship." The therapist stated the trauma could be ameliorated with a long, slow transition plus educating Juan about Anthony's needs with the support of a therapist and other services. The therapist observed this "would require the permanent commitment of [Juan] which does not seem to have been demonstrated during the course of this case if the information communicated to me is correct."

Under the totality of the circumstances, including Juan's failure to establish any relationship with Anthony, the fact Rosemary would potentially be Anthony's primary caregiver, Juan's criminal history, and the trauma to Anthony of removing him from the only home he has ever known, the court did not err by denying the section 350, subdivision (c) motion. Substantial evidence supports the court's finding that Juan was unfit to parent Anthony under the standard of clear and convincing evidence.

II

Juan contends the court abused its discretion by not granting a continuance so he could verify his lack of a criminal record and obtain approval from DIF for Anthony's placement.

The juvenile court may grant a continuance only on a showing of good cause. "[T]he court shall give substantial weight to a minor's need for prompt resolution of his or her custody status. . . ." ( 352, subd. (a).) "Continuances are discouraged [citation] and we reverse an order denying a continuance only on a showing of an abuse of discretion [citation]." (In re Ninfa S. (1998) 62 Cal.App.4th 808, 810-811.)

The court did not abuse its discretion by denying the motion for a continuance. Juan's attorney requested the continuance on September 14, 2007, the third day of the hearing. She stated on that day a document had been presented to her that appeared to indicate Juan had no criminal record in Baja California. The attorney had also received two documents from DIF stating Juan and Rosemary had appointments for psychological evaluations and a home evaluation on September 11 and 12, 2007.

The hearing had been set for several months, and information about Juan's criminal history or lack of such history in Mexico and a social study on Juan and Rosemary's home had been requested much earlier. Also, as the court noted, there was no indication how quickly DIF would be able to provide information after the evaluations, and a continuance would further delay permanency for Anthony. Juan has not shown an abuse of the court's discretion in denying the request for a continuance.

DISPOSITION

The orders are affirmed.

McINTYRE, J.

WE CONCUR:

McCONNELL, P. J.

McDONALD, J.

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