In re H.C.

Filed 3/5/07 In re H.C. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge.

Affirmed.

Sharon S. Rollo, under appointment by the Court of Appeal, for Defendant and Appellant.

Joe S. Rank, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.

Konrad S. Lee, under appointment by the Court of Appeal, for Minors.

Appellant G.C. (father) appeals from a Welfare and Institutions Code^[1]section 366.26 order terminating parental rights to his children, G.J.C. (born in April 2000), G.D.C. (born in March 2002), and H.C. (born in March 2004) (the children). On appeal, father argues that: 1) the court abused its discretion in denying his section 388 petition; 2) the adoption assessment report was incomplete; thus, the court abused its discretion in denying his request for a continuance for a more thorough adoption assessment to be done; 3) the court erred in finding that the children were adoptable; and 4) the beneficial parental relationship exception ( 366.26, subd. (c)(1)(A)) applied. We disagree and affirm the order.^[2]

FACTUAL AND PROCEDURAL BACKGROUND

On May 20, 2004, the Riverside County Department of Public Social Services (the department) filed section 300 petitions on behalf of the children, alleging that they came within section 300, subdivision (b) (failure to protect). The petition specifically alleged that: 1) H.C. and the childrens mother (mother)^[3]tested positive for methamphetamine when H.C. was born; 2) father had a history of substance abuse; 3) father and mother (the parents) engaged in domestic violence in the presence of the children; 4) father had a criminal history, including a domestic violence charge in 2003; and 5) mother failed to reunify with three other children, resulting in permanent placements for them. The detention report stated that father reportedly kicked mother in the abdomen when she was pregnant with H.C. Mother sustained a bruise to the abdomen. G.J.C. and G.D.C. were present during the incident.

The juvenile court detained the children and ordered supervised visitation for the parents. The court also ordered the parents to participate in reunification services pending further hearing. The department provided father with referrals to domestic violence and substance abuse programs on May 18, 2004.

Jurisdiction/disposition

On June 7, 2004, the social worker filed a jurisdiction/disposition report, recommending that the children be declared wards of the court and that father be provided with reunification services. Father admitted using methamphetamine in the past, but denied any recent use. He also admitted arguing with mother, but denied hitting her. The record showed that he had a felony domestic violence charge in 2003 and a misdemeanor domestic violence charge in 2002.

On August 16, 2004, the department filed an amended petition with all the same allegations as the previous petition, except that it changed the wording on the allegation regarding fathers criminal history. That same day, the court held a jurisdiction/ disposition hearing. Father waived his rights and admitted the allegations of the amended petition. The court found true the amended petition, declared the children dependents of the court, and ordered reunification services for father, but not mother. Fathers case plan required him to complete a 52-week domestic violence program, complete a substance abuse assessment by the Riverside County Substance Abuse Program and comply with the recommended treatment, and submit to random substance abuse testing.

Six-month Status Review

The social worker filed a six-month status review report on January 3, 2005, recommending that father continue to receive reunification services. The social worker reported that father was a truck driver who was frequently on the road. Father did not establish contact with the social worker until November 2004. The department reviewed his case plan with him on December 14, 2004, and provided him with the necessary resources. Father stated that he had been attending a 52-week anger management program for the past 19 weeks. The department requested that he contact the Riverside County Substance Abuse Program to complete an assessment process and gave him the telephone number and address. By the time of the filing of the status review report, the social worker had not received drug test results or a letter from fathers anger management program verifying his attendance. The social worker opined that father was marginally compliant with his case plan, in that he had fairly regularly visited the children twice per week, and he had completed a parenting education program.

As to the children, they were in a foster home together and appeared to be adjusting well. G.D.C. and G.J.C. manifested aggressive behaviors toward each other, but had made positive changes recently. The social worker reported that G.D.C. had a cleft palate deformity and was scheduled to have it repaired in January 2005.

At the six-month review hearing, the court ordered reunification services to continue.

12-month Status Review

The social worker prepared a 12-month status review report and recommended termination of reunification services and the setting of a section 366.26 hearing. The social worker had concerns about fathers mental health and continued aggressive behavior toward mother. Mother reported to the therapist at New Hope Counseling Center that, in January 2005, she and father had a verbal altercation when she was riding in his car. He slammed on the brakes and she hit her face against the dashboard. Mother said she filed a restraining order against father. Father denied that he verbally or physically abused mother, and instead claimed that she abused him. The social worker was concerned because father continued his toxic relationship with mother and was not willing to disassociate himself from her in order to establish a home that was free from domestic violence.

The social worker further reported that father lost his job and had no financial means of supporting the children. The social worker opined that father did not appear to be motivated to become financially secure and take financial responsibility of the children. The social worker also reported that father was incarcerated in January 2005. (He was apparently released in October 2005.)

In addition, the social worker stated that father failed to successfully complete his case plan. He visited the children regularly, and they appeared to enjoy the visits; however, he never submitted to random drug testing and only attended 29 of the 52 sessions for the anger management program. He was terminated from the anger management program for failure to attend and pay.

Regarding the adoptability of the children, the social worker opined that they were highly adoptable. The prognosis that they would be adopted was good, despite the current foster parents inability to concretely state that she wanted to adopt them.

On July 19, 2005, at the 12-month review hearing, the court terminated fathers reunification services and set a section 366.26 hearing for November 16, 2005.

Section 366.26

The social worker filed a section 366.26 report on October 3, 2005, recommending that the section 366.26 hearing be continued for three months, so that a complete assessment of the childrens medical, mental, and developmental needs could be done, and so that an appropriate adoptive home could be found. The social worker noted that G.D.C. and G.J.C. had severe mental, emotional, and medical needs. Both boys were very aggressive and resorted to hitting when they did not get their way. A doctor recommended that G.D.C. be assessed for autism or mental retardation, and also recommended speech therapy. The social worker now opined that the likelihood of adoption for the boys was not very promising.

On the other hand, the likelihood of adoption for H.C. was great. She was a one-year-old child who was properly developing physically and emotionally. The departments goal was to keep the children together as a sibling set, unless the effort to maintain the sibling set jeopardized the chances of adoption for any individual child.

H.C. was currently in a separate placement in order to protect her from her brothers aggressive behavior and to ensure that she would receive the individual attention that she was lacking when placed with her brothers. She was doing well in the new placement. The current caregivers for the children were only interested in long-term foster care, until a suitable adoptable home could be found for the children.

On October 6, 2005, the court authorized G.D.C. to receive an echocardiogram because he had a heart condition.

At the section 366.26 hearing on November 16, 2005, the court agreed to continue the hearing until March 16, 2006, in order for the department to find a permanent home for the children.

The social worker filed a status review report on December 20, 2005, reporting that G.D.C.s and G.J.C.s behavior had greatly improved. Thus, the social worker changed the assessment to find that all the children were adoptable. The social worker further reported that G.J.C. had some learning disabilities and that G.D.C. had delayed motor skills, speech delays, and some autistic behavior. However, all of these needs could be met with appropriate services. There were two families that were considering adopting all three children, and the department was awaiting responses from them.

On March 16, 2006, at the continued section 366.26 hearing, the departments counsel requested a 90-day continuance because the department had not completed an adoption assessment. The court continued the matter to June 14, 2006.

Section 388 Petition

On March 16, 2006, father filed a section 388 petition seeking to have his reunification services reinstated. For changed circumstances, father alleged that he enrolled in domestic violence and anger management classes. He believed that it was in the childrens best interests for the court to reinstate his reunification services because he had maintained contact with them and wanted to reunify with them. The record shows that the court denied the petition on March 19, 2006, by checking the boxes on the section 388 form, indicating that the request to change the courts order did not state new evidence or changed circumstances, and did not show how the requested change would be in the childrens best interest. The court added that fathers enrollment in classes did not create a likelihood that he would be able to complete his case plan.

Continued Section 366.26 Hearing

The social worker filed an addendum report on March 20, 2006, recommending that the court terminate parental rights and proceed with adoption as the permanent plan. H.C. was placed in a home on February 18 , 2006, and G.J.C. and G.D.C. were later placed in the same home on March 4, 2006. H.C. and G.J.C. were adjusting well to their new home, but G.D.C. was having a difficult time acclimating. The prospective adoptive parents were working diligently to assist him in the transition. The social worker opined that the children were now in a safe, loving adoptive placement. The prospective adoptive parents were able to identify and meet G.D.C.s behavioral, developmental, and mental health needs, since they were both elementary school teachers. The social worker attached a copy of a preliminary adoption assessment report, which stated that the current prospective adoptive parents had become an integral part of the childrens lives in a very short amount of time. The children appeared extremely comfortable in their new home environment and were very attached to the prospective parents. The prospective adoptive parents appeared to be very responsible and mature adults, and were committed to adopting the children.

The social worker filed a status review report on May 5, 2006, and reported that father was visiting the children once a month. Father continued to be without a stable job or housing. The social worker also reported that the children were emotionally and developmentally blossoming in their placement. The social worker observed that the prospective parents were very attentive to the childrens needs, and opined that the prospective parents would make excellent parents.

The social worker filed a second section 366.26 report on May 26, 2006, describing the monthly visits between father and the children. G.D.C. and G.J.C. recognized him and approached him to play with them, without hesitation. In contrast, H.C. did not show any attachment toward, or recognition of, father.

On June 14, 2006, the court held a combined section 366.26 and section 388 hearing. Fathers counsel told the court that she had filed the section 388 petition on March 16, 2006, but the court stated that it could not find the original petition in the court files. Fathers counsel proceeded to argue that father loved his children and wanted to reunify with them. She asserted that father completed a six-week parenting program, as well as 26 classes of an anger management program. She also indicated that father consistently visited the children, that the visits went well, that the children called him Daddy, and that they loved him. The court acknowledged fathers consistent visits, but observed that although the dependency began two years ago, father was only halfway through the anger management program. The court also noted that father had been incarcerated until October 2005, which delayed his services. The court then denied the section 388 petition, stating that it did not show a change of circumstances.

As to the section 366.26 hearing, father requested a continuance based on his bond with the children. He asked for a continuance in order for the children to come to court, so that the court could observe their relationship with him. Father also requested a continuance because the adoption assessment was allegedly missing information about the amount and nature of the contact between him and the children. The court agreed that the assessment report did not contain the information, but stated that the section 366.26 report, to which the assessment was attached, did contain the information. The court stated that it was undisputed that father loved his children and had a significant bond, from his perspective. The court then denied the continuance, found that it was likely that the children would be adopted, and terminated parental rights.

ANALYSIS

I. The Court Properly Denied Fathers Section 388 Petition

Father argues that the court abused its discretion in denying his section 388 petition. We disagree.

A. Standard of Review

The [section 388] petition is addressed to the sound discretion of the juvenile court and its decision will not be disturbed on appeal in the absence of a clear abuse of discretion. [Citations.] (In re Jasmon O. (1994) 8 Cal.4th 398, 415-416.)

B. Father Failed to Show a Change of Circumstances

At a hearing on a motion for change of placement, the burden of proof is on the moving party to show by a preponderance of the evidence that there is new evidence or that there are changed circumstances that make a change of placement in the best interests of the child. [Citations.] (In re Stephanie M. (1994) 7 Cal.4th 295, 317.)

In the case before us, the juvenile court determined that father failed to show a change of circumstances. For changed circumstances, fathers petition alleged that he enrolled in domestic violence and anger management classes. At the hearing on the petition, he alleged that he completed a six-week parenting program, as well as 26 classes of an anger management program. None of these allegations established a change of circumstances. At the time the court terminated reunification services, father had already completed the parenting program, and had already attended 29 of the 52 anger management classes. He apparently never attended any classes after that point because he was terminated from the program for failure to attend. Moreover, the record reflects that father never submitted to random drug testing or completed a substance abuse assessment by the Riverside County Substance Abuse Program, as required by his case plan.

In sum, father failed to establish that his circumstances had changed. Thus, we conclude that the court did not abuse its discretion in denying his petition.

II. The Court Properly Denied Fathers Request for a Continuance

Father argues that the court abused its discretion in denying his request for a continuance because the adoption assessment report was incomplete and contained stale information. We find no abuse of discretion.

A. Standard of Review

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. [Citations.] Courts have interpreted this policy to be an express discouragement of continuances. [Citation.] The courts denial of a request for continuance will not be overturned on appeal absent an abuse of discretion. [Citation.] (In re Karla C. (2003) 113 Cal.App.4th 166, 179-180.)

B. The Court Did Not Abuse Its Discretion

At the section 366.26 hearing on June 14, 2006, father requested a continuance. The request was based in part on the allegation that the adoption assessment report was missing information about the amount and nature of the contact between him and the children. The court agreed that the assessment report did not contain the information, but stated that the section 366.26 report, to which the assessment was attached, did contain the information. The court denied the continuance.

Father now argues that the adoption assessment report did not include statutorily required information regarding the amount and nature of the contact between the parents and the children, contact between the children and their relatives, and the relationship of the children to the prospective adoptive parents. ( 366.21, subd. (i).) The department concedes that the assessment report itself did not contain all of the required information. However, it asserts that the information was contained in reports that it submitted as evidence at the section 366.26 hearing on June 14, 2006. The department submitted reports that were filed on March 20, May 5, and May 26, 2006. Such reports stated that the parents visited the children once per month, that G.J.C. and G.D.C. recognized them and played with them without hesitation, and that H.C. did not recognize them or show any attachment to them. Furthermore, mother did not show H.C. an appropriate amount of attention or affection. The reports also indicated that the paternal grandmother joined in family visits, and that the children enjoyed the visits with her.

Regarding the childrens relationship with the prospective adoptive parents, the preliminary adoption assessment report stated that the prospective parents became an integral part of the childrens lives in a short amount of time, and the prospective parents and the children were attached to each other. Further, the prospective parents were loving and compassionate with the children, and were committed to adopting them. By the time of the section 366.26 hearing, the prospective parents were going through the adoption process. In sum, the department submitted the information required by section 366.21, subdivision (i).

In addition, father asserts that the preliminary adoption assessment was dated March 17, 2006, and the report that it was attached to was dated March 30, 2006. He therefore complains that the assessment was stale by the time of the section 366.26 hearing that was held on June 14, 2006. However, the latest section 366.26 report was filed on May 26, 2006. It contained positive information regarding the childrens progress since living with the prospective adoptive parents, as well as the social workers observations that the prospective adoptive parents had provided the children a stable and healthy home environment and were devoted to adopting the children. This information was not stale by the time of the section 366.26 hearing. Furthermore, this information was bolstered by the comments of the departments counsel at the section 366.26 hearing, indicating that she spoke with the social worker that morning. The social worker affirmed that the boys were doing very well in the placement and that the prospective adoptive parents still wanted to adopt the children.

In view of the evidence before the court at the section 366.26 hearing, there was no good cause to continue the hearing. Thus, the court did not abuse its discretion in denying fathers request for a continuance.

III. The Court Properly Found That the Children Were Adoptable

Father contends that the courts finding of adoptability must be set aside because it was not supported by substantial evidence. We disagree.

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. [Citation.] (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.)

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. . . . [] Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minors 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 parents 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.)

Here, by the time of the section 366.26 hearing, the children had lived with the prospective adoptive parents for over three months. The prospective parents were fully aware of the childrens extensive problems, and had demonstrated their dedication to the mental, developmental, and emotional growth of the children. The social worker observed that the prospective adoptive parents were extremely attentive to the childrens needs and had diligently taken the children to their medical and counseling appointments. The social worker noted that when the children were first placed in their current home, they were aggressive, uncontrollable, and disruptive. Despite this behavior, the caregivers remained steadfast in their commitment to the health, growth, and stability of the children. They took off long periods of time from their jobs to provide the children with extra care and attention. As a result, the children became very attached to them. The prospective adoptive parents have consistently expressed their desire to adopt the children. They are not likely to be dissuaded.

We conclude that the court properly found clear and convincing evidence that the children were adoptable, and that it was highly likely the childrens current foster parents would adopt them.

IV. The Beneficial Parental Relationship Exception Did Not Apply

Father finally contends that the court erred in not applying the beneficial parental relationship exception under section 366.26, subdivision (c)(1)(A). We disagree.

In general, at a section 366.26 hearing, if the juvenile court finds that the child is adoptable, it must terminate parental rights. ( 366.26, subd. (c)(1).) This rule, however, is subject to six statutory exceptions. ( 366.26, subd. (c)(1)(A)-(F).) The beneficial parental relationship exception in section 366.26, subdivision (c)(1)(A) applies when the parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. The phrase benefit from continuing the relationship refers to a parent-child relationship that 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. In other words, the court balances the strength and quality of the natural parent[-]child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent[-]child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parents rights are not terminated. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) It is the parents burden to show that the beneficial parental relationship exception applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1345.)

Here, father claims that this exception applies merely because he maintained regular visitation with the children, that the children enjoyed the visits, and that they called him Daddy. Father further asserts that he played with them, brought them presents, was affectionate with them, and helped them color pictures.

It is undisputed that father regularly visited the children and that the children enjoyed the visits. However, fathers interactions with the children do not even begin to demonstrate that his relationship with them promoted the childrens well-being to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Other than satisfactory visitation, father has proffered no evidence to support a finding that the children had a substantial, positive emotional attachment [with him] such that the child[ren] would be greatly harmed if the relationship was severed. (Ibid.)

We conclude that the court properly declined to apply the beneficial parental relationship exception under section 366.26, subdivision (c)(1)(A).

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

J.

We concur:

RAMIREZ

P.J.

RICHLI

J.

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^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] Counsel for the children filed a letter brief on January 19, 2007, joining in respondents brief and urging us to affirm the order.

^[3] Mother is not a party to this appeal.