In re S.B.
In re S.B.
Filed 8/07/08 In re S.B. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Butte)
In re S.B. et al., Persons Coming Under the Juvenile Court Law. | |
BUTTE COUNTY DEPARTMENT OF EMPLOYMENT AND SOCIAL SERVICES,
Plaintiff and Respondent,
v.
S.B.,
Defendant and Appellant. |
C057579
Super. Ct. Numbers
J31990
J31991 |
S.B. (appellant), the mother of S.B. and A.B. (the minors), appeals from orders of the juvenile court denying her petition for modification and terminating her parental rights. (Welf. & Inst. Code, 366.26, 388, 395.)[1] Appellant, proceeding in propria persona, makes multiple contentions of alleged prejudicial error. For the reasons that follow, we affirm the juvenile courts orders.
FACTUAL AND PROCEDURAL BACKGROUND
We first note that some of the material in this discussion derives from our opinion in a previous appeal filed by appellant, of which we take judicial notice, pursuant to Evidence Code section 451, subdivision (a) (In re S.D. (Dec. 21, 2007, C054534) [nonpub. opn.]).
On June 7, 2005, Department of Employment and Social Services (DESS) filed original juvenile dependency petitions pursuant to section 300 on behalf of the minors, who ranged in age from one to five years old. Those petitions alleged in part that appellant had been arrested on multiple felony charges, including kidnapping, child endangerment, and carjacking. According to the petitions, during or near the time of the commission of the alleged offenses, appellant was under the influence of methamphetamine, and the minors were with her.
The juvenile court sustained the petitions as amended, adjudged the minors dependent children, and granted reunification services for appellant. As for visitation with the minors, the court ordered DESS to arrange visitation as in the best interest of the [minors] and at the recommendation of the [minors] counselors. Initially, DESS did not provide visits between appellant and the minors. Its reasoning was that visits with appellant, while she was incarcerated, would not be in the best interests of the minors.
After a November 18, 2005, visit between appellant and the minors at the Butte County Jail, all three minors experienced various difficulties. As a result, the social worker determined that continued visitation at the jail appeared to be detrimental to the well-being of the minors. At a December 8, 2005, hearing, the juvenile court declined to order any additional visits at the jail, finding the minors had been very, very traumatized . . . . However, appellant maintained contact with the minors by written correspondence.
On November 29, 2005, appellant pled guilty to three counts of felony child endangerment. On September 10, 2006, appellant was granted probation. During most of her incarceration, appellant failed to maintain contact with the social worker or provide proof of her participation in any services. Moreover, an August 2006 visit between appellant and the minors at a treatment facility where appellant was living appeared to be problematic for one of the minors.
In a June 2006 social workers report, DESS concluded that [appellant] has maintained a high level of denial and blame throughout the last year. Social Worker Hamilton has been diligent in efforts to provide [appellant] with reasonable services throughout the current reporting period. [Appellant] has maintained written correspondence to her daughters, but has failed to maintain written contact with Social Worker Hamilton. In her written correspondence with her daughters, [appellant] has continued to include inappropriate promises regarding her eventual release and future goals, as well as included statements that appear to be directed at Social Worker Hamilton. The inappropriate nature of [appellants] contact with her daughters has continued throughout the course of the Childrens Services case.
The record reflects appellant was ordered to participate in parenting classes, receive substance abuse services, and engage in counseling. In return, DESS was committed to providing referrals, arranging appointments, and maintaining contact with appellant. As for contact between the minors and appellant, DESS would arrange visits and facilitate written communication.
Unfortunately, as the record reflects, in most respects appellant failed to comply in a timely manner with the requirements of her reunification plan. She did not maintain regular contact with the social worker, did not provide documentation of her participation in services, and included inappropriate information in letters to the minors. Doubtless it was appellants minimal compliance with her service plan that led DESS to recommend the termination of its reunification efforts for appellant.
At the conclusion of the 12-month review hearing, the juvenile court found that appellant had received reasonable reunification services. It also ruled visits with appellant would have been traumatic to the minors. Therefore, the court terminated appellants services.
The social workers report prepared for the section 366.26 hearing recommended adoption as the appropriate permanent plan for the minors and termination of appellants parental rights. The minors had been in the same foster care placement since their removal in 2005 and were bonded to their foster family.[2] The minors had completed counseling successfully. Their therapist had stated that visits between the minors and appellant were detrimental, and the juvenile court had denied any visitation.
The report noted the minors had made substantial progress in foster care, and indicated their desire to be adopted. The social worker described the minors as emotionally fragile, in need of the continued protection of the juvenile court. According to the social worker, the minors were continuing to make progress in recovering from the trauma and abuse that caused their removal from parental custody.
Appellant filed a petition for modification, seeking return of the minors to her custody under a plan of family maintenance. At the December 4, 2007 section 366.26 hearing, the juvenile court denied the petition and terminated appellants parental rights.
DISCUSSION
I
Appellants brief consists primarily of a lengthy narrative containing numerous factual assertions and some legal contentions, but lacking any corresponding headings. The brief contains but one citation of authority. Appellant states in part that the best thing for my children would be to reverse the finding of [the juvenile] court in terminating services and reverse [that] court in terminating my parental rights.
Appellants self-representation does not excuse noncompliance with the rules on appeal. A party in propria persona is held to the standard of an attorney. (Cf. Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.) Appellants brief violates California Rules of Court, rule 14(a), which requires separate statements of facts and argument, with appropriate headings.
We cannot presume error on appeal. (Cf. Lynch v. Birdwell (1955) 44 Cal.2d 839, 846.) The party challenging an order has the burden to show error by an adequate record. (Cf. Ballard v. Uribe (1986) 41 Cal.3d 564, 574.) We presume that any orders complained of are correct on matters as to which the record is silent. (Cf. Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) In this case, appellant makes several apparent claims relating to matters, issues, and hearings occurring at various times before the section 366.26 hearing was conducted.
Appellants claims as to previous matters are not cognizable in this appeal. An appeal from the most recent order entered in a dependency matter may not challenge prior orders, for which the statutory time for filing an appeal has passed. (In re Elizabeth M. (1991) 232 Cal.App.3d 553, 563.) Thus, appellant should have made the claims she states here, which relate to prior orders, in appeals following the disposition and review hearings. ( 360, 395.)
II
Appellant claims her constitutional rights and those of the minors have been violated by social workers and the minors foster parents, and also argues the juvenile court erred in failing to find the existence of a conflict of interest between one of the social workers and herself.
The difficulty with appellants claims in this case is that the record does not reveal counsel for appellant raised the matters complained of by appellant. The record reflects appellant had ample opportunities to bring those issues to the attention of the juvenile court if she had wished to do so. Yet she failed to avail herself of that opportunity.
The California Supreme Court has stated: An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been, but was not, presented to the lower court by some appropriate method . . . . The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver . . . . Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1 [151 Cal.Rptr. 837, 588 P.2d 1261], italics in Doers.) The purpose of the general doctrine of waiver is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had . . . . (People v. Walker (1991) 54 Cal.3d 1013, 1023 [1 Cal.Rptr.2d 902, 819 P.2d 861].) No procedural principle is more familiar to this Court than that a constitutional right, or a right of any other sort, may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it. [Citation.] [Citation.] (People v. Saunders (1993) 5 Cal.4th 580, 589-590, fns. omitted; cf. In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2 [stating that the correct legal term for loss of right based on failure to assert it in a timely fashion is forfeiture, not waiver].)
Here, as the record shows, at no time did appellant raise the matters she complains about now. Thus, appellant is precluded from raising the claims here. (In re Erik P. (2002) 104 Cal.App.4th 395, 403; In re Dakota S. (2000) 85 Cal.App.4th 494, 501-502; In re Gilberto M. (1992) 6 Cal.App.4th 1194, 1198-1200.) Appellant has forfeited her claims. (In re S.B., supra, 32 Cal.4th at p. 1293, fn. 2.)
III
Acknowledging that the minors are adoptable, appellant argues their adoptability is a consequence of various improper actions by DESS and the juvenile court that resulted in a severance of her relationship with the minors, especially in the termination of her visitation. According to appellant, adoption is not in the best interests of the minors, and the minors should be returned to her.
In order for the court to select and implement adoption as the permanent plan, it must find, by clear and convincing evidence, the minor will likely be adopted if parental rights are terminated. (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164; 366.26, subd. (c)(1).) Usually, the issue of adoptability 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. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.)
In this case, as appellant concedes, the minors have bonded with their foster family. They are doing well and they favor adoption. Appellant, however, opposes adoption because she argues she was denied the chance to reunify, . . . and lacks a relationship with them because she was wrongly denied regular visits.
The record in this case reflects that, contrary to appellants claim, the minors feared appellant, did not want to visit her, and were supported in their feelings by their therapist. In C054534, this court concluded that the order by the juvenile court denying continued visits was supported by substantial evidence. Moreover, the evidence is overwhelming that the minors are likely to be adopted. This evidence provides ample support for the juvenile courts proper determination that the minors were likely to be adopted within a reasonable time. (Cf. In re Scott M. (1993) 13 Cal.App.4th 839, 843-844.)
IV
Noting that she had gained insight into the difficulties surrounding the minors and had engaged in various programs), appellant argues she has made changes and believes she is entitled to reestablish a relationship with the minors.
We construe appellants claim to be that the juvenile court erred in denying appellants petition for modification. Section 388, subdivision (a), provides that the parent of a dependent child may petition the juvenile court upon grounds of change of circumstance or new evidence . . . for a hearing to change, modify or set aside any order of court previously made. . . . Section 388 permits modification of a dependency order if a change of circumstance or new evidence is shown and if the proposed modification is in the best interests of the minor. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 526 (Kimberly F.).)
When a petition for modification is brought after the end of the reunification period, the best interests of the child are the paramount consideration. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) In assessing the best interests of the child at this stage of the proceedings, the juvenile court looks to the childs needs for permanence and stability. (Ibid.)
The party petitioning for modification has the burden of proof by a preponderance of the evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 48.) A modification 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. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)
In denying appellants petition for modification, the juvenile court no doubt acted out of its concern for the minors needs, ruling implicitly that appellants petition failed to demonstrate a modification would be in the best interests of the minors.
The determination by the juvenile court was well within its discretion. As appellant avers, she had made some progress, and her efforts are to be commended. But the record also suggests more time lay ahead for appellant in which she would continue to participate in programs. In the meantime, it was likely, as the record suggests, that the minors would continue to develop and attach to their foster parents.
Under the abuse of discretion standard, we see no error in the juvenile courts determination. The juvenile court was required by statute ( 388) to focus on the minors best interests in deciding whether to grant appellants petition for modification. As we have seen, those interests consist of the minors needs for stability and permanence. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) Childhood cannot wait for a parent to establish readiness for parenting. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) Here, the minors had adjusted well in their foster care placements. On the other hand, appellant was still working on the difficulties that had contributed to the dependency proceedings. On this record, it is not surprising the court ruled impliedly the minors should not be forced to wait any longer for that stability and permanence.
Under the circumstances of this case, the juvenile court did not act arbitrarily, capriciously, or beyond the bounds of reason in denying appellants petition for modification. The courts implicit determination that the minors needs for permanency compelled denial of appellants petition and served the minors best interests was reasonable and is supported by the record. (Cf. In re Edward H. (1996)43 Cal.App.4th 584, p. 594.) In sum, appellant failed to make the necessary showing, as required by section 388, that a modification would promote the best interests of the minors. (Compare In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1416, with In re Heather P. (1989) 209 Cal.App.3d 886, 891.) There was no abuse of discretion or other error in the courts decision. (Cf. In re Daijah T. (2000) 83 Cal.App.4th 666, 673-675.)
V
Appellant suggests two exceptions to termination of parental rights, one based on her relationship with the minors and the second pertaining to sibling relationships. The first of these requires a showing that the parent has maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. ( 366.26, subd. (c)(1)(B)(i).) The benefit to the child must promote 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.)
The parent has the burden of establishing the existence of any circumstances that constitute an exception to termination of parental rights. (In re Cristella C. (1992) 6 Cal.App.4th 1363, 1372-1373.) The juvenile court is not required to find that termination of parental rights will not be detrimental due to specified circumstances. (Id. at p. 1372.) Even frequent and loving contact is not sufficient to establish the benefit exception absent significant, positive emotional attachment between parent and child. (In re Teneka W. (1995) 37 Cal.App.4th 721, 728-729; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.)
In this case, as we have seen, appellant did not have regular visitation with the minors, as visits had been found to be detrimental to them, nor did she enjoy a beneficial relationship with the minors, as they had expressed fear of appellant. Moreover, in her brief, appellant has failed to show how the minors would benefit from continuing their relationship.
Section 366.26 requires both a showing of regular contact and a separate showing that the child actually would benefit from continuing the relationship. In re Autumn H., supra, 27 Cal.App.4th 567, interprets the statutory exception to involve a balancing test, and both In re Autumn H. and In re Beatrice M., supra, 29 Cal.App.4th 1411, posit a high level of parental involvement and attachment. Even assuming those decisions overemphasized the importance of the parental role, the record here does not support appellants suggestion that the minors would benefit from continuing a relationship with appellant simply because the minors know who appellant is and enjoys a parental relationship with her. (Cf. In re Amanda D. (1997) 55 Cal.App.4th 813, 821-822.)
Here, the issue was as follows: In light of the minors adoptability, would a continued relationship with appellant benefit the minors to such a degree that it would outweigh the benefits the minors would gain in a permanent adoptive home? Substantial evidence in the record supports the juvenile courts implied answer in the negative. On the record before it, the juvenile court could conclude that only adoption, which is the preferred disposition (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368), would promote the best interests of the minors.
After it became apparent that appellant would not reunify with the minors, the juvenile court had to find an exceptional situation existed to forego adoption. (In re Autumn H. supra, 27 Cal.App.4th at p. 576.) In this case, to the contrary, in its decision the court determined implicitly that the minors would not benefit from continuing a relationship with appellant to such a degree that termination of parental rights would be detrimental to the minors. Appellant had the burden to demonstrate the statutory exception applied. We conclude that appellant failed to make such a showing. Therefore, the court did not err in terminating appellants parental rights based on its failure to apply the section 366.26, subdivision (c)(1)(B)(i), exception.[3] (In re Amanda D., supra, 55 Cal.App.4th at pp. 821-822.)
The second potential exception here is based on sibling relationships. ( 366.26, subd. (c)(1)(B)(v).) Appellant asserts it is unfair to deprive the minors of the opportunity to establish a future relationship with their infant brother, N.B., or with another brother expected in September 2008.
Under the sibling relationships provision, the juvenile court may find a compelling reason for determining that termination of parental rights would be detrimental to the minor where [t]here would be substantial interference with a childs sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the childs best interest, including the childs long-term emotional interest, as compared to the benefit of legal permanence through adoption.
Here, the record contains no evidence any sibling relationship exists, as neither of the minors ever has met N.B. Accordingly, the exception is inapplicable.
Accordingly, there was no error in the implicit ruling by the juvenile court that termination of parental rights was not detrimental to the minors.
DISPOSITION
The orders of the juvenile court denying appellants petition for modification and terminating her parental rights are affirmed.
MORRISON , Acting P.J.
We concur:
ROBIE , J.
CANTIL-SAKAUYE , J.
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[1] All further undesignated statutory references are to the Welfare and Institutions Code.
[2] The minors lived in the same foster home with a younger sibling, S.D., with whom they had a strong relationship. S.D. is not involved in this appeal.
[3] For purposes of resolving the claims, we presume appellant tendered both of them in the juvenile court.
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