In re Carolina A.
Filed 2/9/07 In re Carolina A. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re CAROLINA I., et al., Persons Coming Under the Juvenile Court Law. | |
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. EMMA M., Defendant and Appellant. | D049232 (Super. Ct. No. SJ10791 B, C & D) |
APPEAL from a judgment of the Superior Court of San Diego County, William Lehnhardt, Judge. (Retired judge of the Imperial Sup. Ct., assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Emma M., the mother of Carolina I., Armando M. and Alejandro M., appeals the judgment terminating her parents rights under Welfare and Institutions Code[1] section 366.26. Emma contends (1) the juvenile court erred by not postponing the trial to obtain more current information, (2) there was insufficient evidence supporting the juvenile court's finding that the children were likely to be adopted within a reasonable time, and (3) the court erred by not applying the beneficial parent-child relationship exception to adoption (§ 366.26, subd. (c)(1)(A)).
FACTS
On February 24, 2005, San Diego police officers took eight-year-old Carolina, three-year-old Armando, and one-year-old Alejandro, into protective custody because they had been left alone in the maternal grandfather's residence. There was little food in the house, and one child was observed eating condiments from a fast-food restaurant. Carolina had not seen Emma in two weeks. Carolina said that Emma " comes and goes" between Tijuana and the grandfather's residence, but usually is in Tijuana with her other children.[2]
On February 28 the San Diego County Health and Human Services Agency (Agency) filed dependency petitions on behalf of Carolina, Armando and Alejandro, alleging they were at substantial risk of harm because Emma had left them inadequately supervised in the grandfather's home on several occasions. (§ 300, subd. (b).)
Emma attended the March 1 detention hearing. The court ordered the children detained at Polinsky Children's Center (PCC) and authorized liberal supervised visitation. When the social worker visited the children at PCC on March 21, Emma had not visited them. Carolina said she missed her mother and wanted to see her.
Emma did not attend the May 2 contested jurisdictional/dispositional hearing. After sustaining the petitions, the court declared Carolina, Armando and Alejandro dependent children, removed them from Emma's custody, and placed them in foster care. The court ordered Emma to comply with her case plan, which required a psychological evaluation, parenting classes and individual therapy. Emma still had not visited the children since they were taken into protective custody.
Over the next six months, Emma had little contact with Agency. For the most part, the children were adjusting well to their foster home. Armando and Alejandro were receiving speech therapy. The social worker reported that Carolina was " having a very difficult time being without her mother and her sisters. She appears to be a very brave girl and is always trying not to cry. Carolina often asks about her mother and why she does not call or visit."
On July 27 Emma visited the children at a dental office while Carolina was having multiple tooth extractions. According to the foster mother, Emma did not properly supervise Armando and Alejandro and repeatedly asked to be allowed to take the children outside to see the person who had driven her to the visit. The foster mother told the social worker that Emma acted like " another child who was behaving as bad if not worse than the children themselves." The foster mother said there was not " an instant" in which she did not have to re-direct Emma in her parenting style. The foster mother declined to supervise any future visits. Emma visited the children once at the Family Visitation Center, but missed three other scheduled visits. When Emma missed the first visit, Carolina was devastated and cried.
Psychologist Julio-Cesar Armenta evaluated Emma on September 23 and diagnosed her as " an individual of reduced cognitive skills" and " unresolved emotional problems." Armenta said it is difficult for Emma to identify a child's emotional needs and anticipate events that could be harmful to a child. Armenta reported that Emma refuses to accept responsibility for the children's removal and blames others. Armenta opined: " Because of her denial of any shortcoming, it is unlike[ly] that this mother may respond to interventions that attempt to develop on her a more appropriate parental disposition. . . . [Emma] alon[e] cannot provide appropriate care of a child. If a responsible adult could supervise the interaction of this mother with her offspring and provide assistance to her, the risks of neglect of a child could be reduced."
On December 13 at the contested six-month review hearing, the court terminated reunification services and set a section 366.26 hearing.
Agency assessed the children as likely to be adopted because of their general good health and good nature. Armando and Alejandro had speech delays, but they appeared to be developmentally on target otherwise. Carolina had some behavior problems at school, but was enrolled in a social skills group and was making good progress. Carolina was not doing well academically in school, but this was attributed to her knowing little English and being enrolled in an all-English class. Carolina told the social worker and her therapist that she wanted to be reunified with Emma. The therapist said Carolina was not ready to discuss the issue of adoption.
In March 2006 Agency identified six approved adoptive families who would be willing to adopt a child with Carolina's characteristics. There were 25 approved adoptive families who would be willing to adopt a child with Armando's characteristics, and 30 such families willing to adopt a child with Alejandro's characteristics. There were three approved adoptive families who were willing to adopt a sibling group with the characteristics of the three children.
In July, Emma renewed contact with the social worker and asked to visit the children three times per week. Emma said she had not been in touch recently because earlier in the year she had given birth to a child in Mexico and could not take the baby across the border. (See fn. 2, ante.) The last contact between Emma and the children took place on Thanksgiving 2005.
On July 29 Carolina wrote the following letter to Emma:
" Dear Mom Emma;
" How have you been? You haven't called [or] visit[ed us,] it feels you forgot about us. It hurts us. I miss you so much and think about you all the time. It's my dream to see you and be back with you and be a family again.
" [It has] been almost two years since we were all together. [It has] been too long. We need you. We need a mom, love and a family that is never going to be sep[a]rated. Don't you miss me, Armando and Alejandro? I think you do but sometimes I don't know. You are taking too long and I'm so sad. I know you had a baby. Is the baby a girl or a boy? How come the baby can be with you and we can't? We are also your kids. Or is the little baby not with you too?
" Call me one day please.
" Tell the social worker to give you my number. Come and see me because I will never forget about you and I hope you never forget me and my brothers. Please go to the classes. If you do every thing they tell you, we can go back with you and be one big happy family. You and me, my brothers, my sisters, gran[d]pa and tia chica.
" Please write back.
" Love and miss you. [C]arolina."
In August, Agency reported that the foster mother, in whose home the children had lived for nine months, wanted to adopt all three children. The foster mother had completed a six-week attachment parenting class. Agency had begun a home study and it was progressing well. The children were bonding to the foster mother.
On August 10 the social worker observed a visit between Emma and the children. Carolina appeared happy, but did not cling to Emma, which surprised the social worker. Carolina interacted more with her older siblings, whom Emma brought with her, than she did with Emma. When Emma cried during the visit, Carolina did not approach her. At one point, Carolina fell, but no one helped her stand up. The social worker characterized the visitors as more like acquaintances than family. The boys did not seem to know Emma. The children did not initiate any hugs or kisses. They stood still with their arms at their sides when Emma hugged them good-bye.
On August 15 at the contested section 366.26 hearing, the social worker testified that she and Carolina's therapist believed adoption would be good for her because it would provide her with structure and stability. They believed that Carolina was looking for and wanted a mother figure, but it was not necessarily Emma, who had been absent from her life for a long time. After seeing Carolina's letter to Emma, the therapist did not change her opinion. The therapist said therapy would help Carolina adjust to adoption.
The social worker testified that Armando and Alejandro were scheduled for developmental evaluations. Although it would have been instructive to have those evaluations, the social worker said they were not crucial to determining whether Armando and Alejandro were likely to be adopted because the boys already were in an adoptive home. The foster mother was aware of the boys' speech delays and Carolina's issues. The children were affectionate with the foster mother.
The social worker recognized that Carolina might suffer some emotional harm if Emma's parental rights were terminated. However, the social worker opined the benefits the children would receive from adoption outweighed the benefits of maintaining a relationship with Emma.
Emma testified that she did not believe her parental rights should be terminated. Emma blamed her recent pregnancy, depression and the social workers for her failure to visit more frequently. When Emma visited the children, she brought presents and the children were happy to see her. Emma said Carolina cried when the visit was over.[3]
The court found the children were likely to be adopted and none of the statutory exceptions to adoption applied. The court terminated parental rights and selected adoption as the children's permanent plan.
DISCUSSION
I. Juvenile Court Did Not Err by Failing to Grant Continuance Sua Sponte
Emma contends the juvenile court abused its discretion by not continuing the section 366.26 hearing on its own motion to obtain the results of pending developmental evaluations of Armando and Alejandro and a report from Carolina's therapist. The contention is without merit.
This court will not reverse a juvenile court's denial of a continuance absent an abuse of discretion. (In re Ninfa S. (1998) 62 Cal.App.4th 808, 810-811.)
Emma relies on section 352 as the basis for the court to sua sponte continue the hearing. However, under section 352, a party must request a continuance. (§ 352, subd. (a).) [4] Because no party requested a continuance, section 352 does not apply. Emma provides no authority for imposing a duty on the juvenile court to grant, sua sponte, a continuance when no party has requested one or satisfied the requirements of section 352. Since the statutory requirements for the grant of a continuance under section 352 were not met, the court's failure to grant, sua sponte, a continuance was not an abuse of discretion. (See In re Jacqueline G. (1985) 165 Cal.App.3d 582, 591.)
Furthermore, courts have interpreted section 352 as setting forth a policy that discourages the granting of continuances in dependency cases. (See, e.g., In re Emily L. (1989) 212 Cal.App.3d 734, 743.) In the juvenile court system, delay does not serve the interests of the minor. (See In re Sean E. (1992) 3 Cal.App.4th 1594, 1597.)
II. Sufficient Evidence Supported Finding that Children Were Likely to Be Adopted
Emma contends there was insufficient evidence that the children were likely to be adopted in a reasonable time. The contention is without merit.
The juvenile court may terminate parental rights only if it finds by clear and convincing evidence that it is likely the child will be adopted within a reasonable time. (§ 366.26, subd. (c)(1); In re Jennilee T. (1992) 3 Cal.App.4th 212, 223.)
" 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. [Citations.]" (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) The possibility a child may have future problems does not mean the child is not likely to be adopted. (In re Jennilee T., supra, 3 Cal.App.4th at p. 225.) The court may consider the existence of a prospective adoptive family because such existence " generally indicates the minor is likely to be adopted within a reasonable timeeither by the prospective adoptive parent or by some other family. [Citation.]" (In re Sarah M., supra, 22 Cal.App.4th at p. 1650, italics omitted.) On review from an adoptability finding, we determine whether the record contains substantial evidence from which the court could make its ruling by clear and convincing evidence. (In re Christiano S. (1997) 58 Cal.App.4th 1424, 1431.)
Here, substantial evidence supports the court's finding that the children were likely to be adopted within a reasonable time. Carolina, Armando and Alejandro had been doing well in the foster mother's home, where they had lived for nine months. The foster mother was fully aware that Armando and Alejandro had speech delays and had been taking them to speech therapy. Additionally, the foster mother knew that the boys had undergone other developmental evaluations and the results were pending. The foster mother also was familiar with Carolina's behavioral and emotional problems and had been taking her to therapy. The foster mother reported that Carolina had improved since she was placed in her home. In short, the children's placement with the foster mother was a success. The foster mother remained committed to adopting the children.
Although it is not determinative (In re David H. (1995) 33 Cal.App.4th 368, 378), the fact that Carolina, Armando and Alejandro were living with an adoptive parent who remained steadfast in her desire to adopt them is an important consideration in support of the court's adoptability finding. (In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.) The court may find a child with problematic characteristics is likely to be adopted if there is an identified family willing to adopt the child. (Ibid.) Simply put, the physical condition and emotional state of Carolina, Armando and Alejandro did not make it difficult to locate an adoptive parent because Agency had located one. (Ibid.) The fact that these three children were living with this prospective adoptive parent who continued to desire to adopt them is evidence that their age, physical condition, mental state, and other issues " are not likely to dissuade individuals from adopting the minor." (Ibid.) We find the evidence sufficiently demonstrated Carolina, Armando and Alejandro were likely to be adopted within a reasonable time.
III. Substantial Evidence Supported Finding that Beneficial Parent-Child Relationship Exception to Adoption Did Not Apply
Emma contends the juvenile court erred by not applying the beneficial parent-child relationship exception to adoption (§ 366.26, subd. (c)(1)(A)). The contention is without merit.
Adoption is the permanent plan preferred by the Legislature. (In re Derek W. (1999) 73 Cal.App.4th 823, 826.) At the selection and implementation hearing, the court must terminate parental rights if the child is likely to be adopted within a reasonable time unless one of the five statutory exceptions applies. (§ 366.26, subd. (c)(1)(A)-(E).) The parent bears the burden to establish by a preponderance of the evidence that an exception to the statutory preference for adoption applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345.)
We review the court's finding as to whether a statutory exception to adoption applies by determining whether there is substantial evidence to support the finding. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)
Section 366.26, subdivision (c)(1)(A) provides that once the court finds the child is likely to be adopted the court shall not terminate parental rights if it finds termination would be detrimental to the child because " [t]he parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (Italics added.) The exception applies only if both prongs are met.
The record contains substantial evidence that Emma did not maintain regular visitation and contact with the children, and thus, that she did not meet the first prong of the statute. Emma visited the children only a handful of times over the course of the 18-month dependency cases. Nonetheless, Emma invites us to ignore (1) her woefully inadequate visitation and (2) the clear statutory language of section 366.26, subdivision (c)(1)(A)--" [t]he parents or guardians have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (Italics added.) However, Emma cites no authority that would allow us to do so. We reject the notion that we properly could.
Moreover, even if we were to put aside the first prong, Emma could not prevail because she did not meet the second prong of the statute--showing that she had a beneficial parent-child relationship within the meaning of section 366.26, subdivision (c)(1)(A).
In In re Autumn H., supra, 27 Cal.App.4th at page 575, this court explained that to come within the beneficial relationship exception to adoption, a parent must show the " relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents." (Italics added.) The court must balance " the strength and quality of the . . . parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer." (Ibid.) In balancing these interests, relevant factors include the " age of the child, the portion of the child's life spent in the parent's custody, the 'positive' or 'negative' effect of interaction between parent and child, and the child's particular needs . . . ." (Id. at p. 576.) We affirmed this balancing test, explaining that the standard " reflects the legislative intent that adoption should be ordered unless exceptional circumstances exist . . . ." (In re Casey D. (1999) 70 Cal.App.4th 38, 51, italics added.)
When the dependency proceedings began, Emma had left these three children with the maternal grandfather while she spent the vast majority of her time in Tijuana. By the time of the contested section 366.26 hearing, Carolina, Armando and Alejandro had been in the dependency system for 18 months. For nine of those months, Carolina, Armando and Alejandro had been doing well in the home of the foster mother who wanted to adopt them. It was this caregiver--not Emma--who provided the three children with food, shelter, protection and guidance on a daily basis.
Armando and Alejandro hardly knew who Emma was. The situation obviously was different for Carolina, who had expressed longing for Emma throughout these proceedings. There no doubt was a bond between Emma and Carolina, but their relationship was no longer one of parent and child within the meaning of section 366.26, subdivision (c)(1)(A).
Carolina's letter does not persuade us otherwise. As the social worker testified, the letter shows Carolina yearning to have a mother and a family, but not necessarily Emma and her family. Emma had not been a part of her life for 18 months. For nine months, the foster mother, who wanted to adopt Carolina and her brothers, had filled the void left by Emma and had become the parental figure for all three children.
Moreover, Emma did not meet her burden of showing that the benefits of continuing her legal relationship with the three children would outweigh the well-being they would gain in a permanent adoptive home. Very young children like Armando and Alejandro need a sense of permanence. Carolina, too, needed permanence and stability after Emma left her to live in the maternal grandfather's home followed by 18 months of experiencing the uncertainty of the dependency system. Carolina's letter demonstrated how much she craved a stable and structured family life.
The court did not err in finding that the exception to adoption under section 366.26, subdivision (c)(1)(A) did not apply.
Emma argues unpersuasively that because she and Carolina had a parent-child relationship, which should have precluded the court from selecting adoption as Carolina's permanent plan, the court also erred by not applying section 366.26, subdivision (c)(1)(E) as to Armando and Alejandro to preserve their sibling bond to Carolina.
To establish the sibling bond exception to adoption under section 366.26, subdivision (c)(1)(E), the parent must demonstrate, among other things, that termination of parental rights would cause a substantial interference with the sibling relationship. (In re Megan S. (2002) 104 Cal.App.4th 247, 254; see also In re L.Y.L. (2002) 101 Cal.App.4th 942, 952.)
Emma cannot demonstrate the requisite interference with the sibling relationship. There is no basis for Emma's premise that there would be interference with Armando's and Alejandro's sibling bond to Carolina because we have rejected Emma's contention that she and Carolina had a beneficial parent-child relationship within the meaning of section 366.26, subdivision (c)(1)(A). Further, the caregiver of Carolina, Armando and Alejandro was committed to adopting all three children.
DISPOSITION
The judgment is affirmed.
McCONNELL, P. J.
WE CONCUR:
HALLER, J.
McINTYRE, J.
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[1] All statutory references are to the Welfare and Institutions Code.
[2] In addition to Carolina, Armando and Alejandro, Emma had three older children who lived in Tijuana. In 2003 Emma lost her parental rights to another child, who was born exposed to drugs; Emma failed to complete reunification services in that child's dependency case. In early 2006 Emma gave birth to an eighth child in Tijuana.
[3] However, the social worker, called in rebuttal, testified that Carolina did not cry at the end of the visit.
[4] Section 352, subdivision (a) states, in relevant part: " Upon request of counsel for the parent, guardian, minor, or petitioner, the court may continue any hearing under this chapter beyond the time limit within which the hearing is otherwise required to be held, provided that no continuance shall be granted that is contrary to the interest of the minor. . . . [¶] Continuances shall be granted only upon a showing of good cause and only for that period of time shown to be necessary by the evidence presented at the hearing on the motion for the continuance. . . ."
