In re David M.

Filed 8/18/08 In re David M. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appeal from an order of the Superior Court of Orange County, Carolyn Kirkwood, Judge. Affirmed.

Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant.

Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent.

No appearance for Minors.

* * *

Introduction

David M., Sr. (father), the father of six‑year‑old David M., Jr., and three‑and‑a‑half‑year‑old A. M., appeals from an order terminating parental rights. We affirm.

First, father argues the juvenile court abused its discretion by failing to continue the permanency hearing (Welf. & Inst. Code,  366.26), pursuant to Welfare and Institutions Code section 352, subdivision (a). (All further statutory references are to the Welfare and Institutions Code.) Father failed to show good cause for a continuance, and also failed to show the continuance would be in David and A.s best interests.

Second, father argues substantial evidence did not support termination of parental rights. Specifically, father argues the adoption assessment prepared by the Orange County Social Services Agency (SSA) failed to provide a complete social history of the prospective adoptive parents, David and A.s maternal grandmother and her husband. Because the juvenile courts finding that David and A. were generally adoptable was supported by substantial evidence, and is not challenged by father on appeal, the suitability of the prospective adoptive parents is not before us on appeal. Any omissions in the adoption assessment were not significant, and do not require reversal. Finally, although David and A. were placed with relatives, adoption remained the preferred permanent plan, and the juvenile court did not err in ordering adoption rather than legal guardianship.

Statement of Facts and Procedural History

In December 2004, two‑year‑old David and newborn A. were taken into protective custody. SSA alleged in a juvenile dependency petition that David and A.s mother, Cheryl W., had tested positive for marijuana metabolites at the time of A.s birth, and had an extensive history of substance abuse. Cheryl had mental health issues, as did father. One of Cheryls older sons, Aaron W., a half brother of David and A., had been declared a dependent of the juvenile court in 2001. The juvenile court declared David and A. to be dependents of the juvenile court, vested custody with SSA, and ordered family reunification services be provided.

On November 21, 2005, this court reversed the jurisdiction order and vacated all subsequent orders as moot. (In re David M. (2005) 134 Cal.App.4th 822, 833.) David and A., however, could not be returned to the custody and care of Cheryl or father. Cheryl stopped contacting SSA in December 2005, and she could not be located. Father was incarcerated in October 2005, after being arrested trying to buy cocaine.

On March 17, 2006, SSA filed a first amended juvenile dependency petition. The first amended petition was dismissed without prejudice on April 20, 2006, when a second amended petition was filed. The second amended petition alleged: Cheryl had an extensive history of substance abuse, had used marijuana during her pregnancy with A., and had tested positive for marijuana at A.s birth; Cheryl had a history of mental illness, which prevented her from providing proper care for the children; Cheryls current whereabouts were unknown, and her failure to maintain contact with SSA or the children had placed the children at risk of medical harm or neglect; father had been arrested on October 16, 2005, and was still in custody; father had an unresolved history of substance abuse and of committing violent crimes; father had been arrested in March 2005 for domestic violence against Cheryl; and mothers parental rights to Aaron were terminated in August 2003.

On August 23, 2006, following a contested jurisdiction hearing, the juvenile court sustained the allegations of the second amended petition, and found David and A. to be within the courts jurisdiction. ( 300, subds. (b), (g), & (j).) The court also entered Cheryls default. (Cheryl is not a party to this appeal.)

At the disposition hearing on November 13, 2006, the court declared David and A. to be dependents of the juvenile court ( 360, subd. (d)), denied reunification services to father ( 361.5, subds. (b)(12) [parent convicted of violent felony], (e)(1) [detriment to child from providing services to an incarcerated parent]), and set a hearing under section 366.26 to determine a permanent plan for David and A.

In a report prepared and filed in connection with the initial section 366.26 hearing, SSA recommended the juvenile court find David and A. adoptable, terminate parental rights, and refer David and A. for adoptive placement. David had initially exhibited medical, developmental, and behavioral problems. By the time of the permanency hearing, all of those issues had resolved, or had improved significantly. A. appeared to be a happy boy with no health, developmental, mental, behavioral, or emotional problems.

David and A.s maternal grandmother, Marva J., wanted to adopt the children, or become their legal guardian. Marva considered legal guardianship to maintain David and A.s relationship with father, and wanted to do whatever is in the best interest of the children. Marva was caring for one of Cheryls older sons, David and A.s half brother Anthony. SSA intended to place David and A. with Marva in Oklahoma through the Interstate Compact on the Placement of Children (ICPC) process. The ICPC adoptive home study in Oklahoma could not begin until parental rights were terminated.

Father visited with David and A. inconsistently between December 2004 and October 2005. The visits went well; father was affectionate toward the children, and David enjoyed the visits. After father was incarcerated in state prison, he was unable to have visits with David and A. for five and one-half months. In April 2006, after returning to the Orange County jail, father began weekly monitored visits of 30 to 55 minutes. Visits were sometimes impossible because of fathers court appearances or problems getting David and A. into the jailhouse due to their negative behaviors. Father began twice‑weekly telephone calls with David and A. in July 2006.

The jailhouse visits between father and the children were generally positive, although the foster parents reported a steady decline in Davids verbal skills and behavior since the visits with father resumed. During the visits, father was separated from David and A. by a glass barrier, and they communicated by telephone.

At the permanency hearing in June 2007, father testified he had regular, monitored visits with David and A. between December 2004 and October 2005. At those visits, father and Cheryl helped the children with schoolwork, drawing, speaking clearly, and learning their ABCs. The family played, talked, and ate together. Father interacted with the children, was physically present for them, cared for them, loved them, and was available for David to talk about things that were bothering him. David called father Daddy.

Father also testified David and A. enjoyed their twice‑weekly visits with him in the Orange County jail. He would talk to David about schoolwork, the foster care placement, how A. was doing, and whether David was taking care of A. Father acknowledged that interacting through a glass window with a telephone made it harder to have a relationship. He also spoke with David, A., and their foster mother by telephone two or three times a week.

Father testified he could not have in‑person visits or telephone calls with David and A. after being transferred to state prison. During his prison term, father sent letters three or four times a week. At the time of the permanency hearing, father had been back in the Orange County jail for 37 days, but he had not been able to resume visitation or telephone calls with David and A.; father acknowledged the social worker had made significant efforts to cause visitation to resume.

Father believed it would be detrimental to terminate parental rights because David knows that Im his father and that I loved him once upon a time. Father believed David became moody and withdrawn when he was removed from his parents custody because he did not know what was happening and assumed his parents were not in his life anymore. Father testified it would be in the childrens best interests to maintain a relationship with him because he was their natural father and was there from day one for them.

The social worker testified David and A. were adoptable. They had no physical or emotional handicaps. Marva wanted to adopt them, and an ICPC to place the children with her in Oklahoma was in process. The social worker believed David and A. would not be harmed by, and would benefit from and enjoy contact with father.

The juvenile court found this to be a close case on the application of the parent‑child relationship exception. ( 366.26, subd. (c)(1)(B)(i).)[1] The court therefore continued the matter to allow father additional visits, and ordered twice‑weekly telephone calls between father and the children.

Father had four visits with the children in June and July 2007. At the first visit, the children were happy to see father. David did most of the talking; A. interacted with father a bit, but became restless. The visit ended after about 30 minutes, when A. began to have a tantrum. The second visit, which lasted about 15 minutes, also ended when A. had a tantrum. The last two visits lasted about 20 and 25 minutes, respectively, and both ended at Davids request; David appeared bored with the routine. The social worker reported that while the children recognized father and had some relationship with him, it was difficult to determine whether they shared a significant bond due to the glass partition and the childrens ages.

On July 13, 2007, pursuant to section 366.26, subdivision (c)(3), the parties stipulated (1) termination of fathers parental rights would not be detrimental to David and A.; (2) none of the exceptions to adoption under section 366.26, subdivision (c)(1)(B) applied; (3) David and A. had a probability of adoption but were difficult to place; (4) fathers visitation with David and A. would end; and (5) father could make telephone calls to David and A. while in local custody, and could send letters and photographs to them. The juvenile court entered an order consistent with the stipulation, continued the case for six months, and ordered SSA to follow up on the adoption by Marva.

David and A. were placed with Marva in Oklahoma on July 18, 2007. Marva and her husband wanted to begin the process of adopting David and A.. Marva told the social worker father had regularly written and called David and A. Marva stated David knew who Daddy was, but A. did not. Marva also told the social worker father had said he believed he would be released from jail in January 2008.

Father did not appear at the further permanency hearing on January 9, 2008, and the juvenile court granted a continuance so fathers counsel could locate him. Father also failed to appear at the continued hearing on January 23, 2008. Fathers counsel informed the court father had been released from custody one week before the January 9 hearing. Counsel had attempted to contact father through all known telephone numbers and various relatives. Counsel advised the court that father had received notice of the permanency hearing while in custody. Counsel requested a further continuance, although he admitted he could not assure the court that father would show up at a continued hearing. The court found there was not good cause to further continue the hearing, and denied the request. The court found David and A. were likely to be adopted and no exception to adoption applied, and terminated parental rights.

Discussion

I.

The trial court did not abuse its discretion in denying fathers
request for a continuance.

In juvenile dependency proceedings, any hearing may be continued unless the continuance is contrary to the interests of the minor. ( 352, subd. (a).) A continuance requires a showing of good cause, and may only be granted for that period of time shown to be necessary by the evidence presented at the hearing on the motion for the continuance. (Ibid.) Continuances of dependency cases are discouraged. (In re Karla C. (2003) 113 Cal.App.4th 166, 179-180.) We review the denial of a request for a continuance for abuse of discretion. (In re Elijah V. (2005) 127 Cal.App.4th 576, 585.)

A further continuance of this case would not have been in David and A.s interests. These children needed the stability of a permanent home. Good cause for a continuance was not shown. Father, with notice of the January 9, 2008 hearing, had been out of custody for one week before that hearing but failed to appear. During the two following weeks, father had failed to contact SSA or his own counsel about the status of the proceedings. Finally, fathers counsel was unable to establish a period of time necessary for the continuance.

Father contends that the continuance would have permitted him to present further evidence supporting the parent‑child relationship exception to adoption. However, on July 13, 2007, father stipulated to express findings by clear and convincing evidence that no exception to adoption under section 366.26, subdivision (c)(1)(B) applied. He thereby waived any right to further litigate the issue. (See, e.g., In re Dani R. (2001) 89 Cal.App.4th 402, 405 [stipulation to findings is an unqualified admission].) Even if father had not waived this issue, we would conclude he had not suffered any prejudice due to any inability to provide further evidence relating to the parent‑child relationship exception to adoption. Father had not had any visits with David and A. since July 2007, at the time of the last court hearing. Father would not have been able to present any additional information relative to the juvenile courts finding that the parent‑child relationship exception did not apply.

The juvenile court did not abuse its discretion by denying the request for a continuance.

II.

Substantial evidence supported the termination of parental rights.

Father also argues the juvenile court erred by terminating parental rights because (1) there was insufficient evidence David and A. would be adopted within a reasonable time, and (2) it was not necessary to terminate parental rights and order adoption because David and A. were placed with a relative. In reviewing the juvenile courts order, we determine whether the record contains substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that [the child] was likely to be adopted within a reasonable time.  [Citations.] [Citations.] We give the courts finding of adoptability the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of affirming. [Citation.] (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1561-1562.)

There was evidence before the juvenile court that David and A. were young, attractive, happy children. A. had no physical, emotional, intellectual, or behavioral problems. Although David had demonstrated some emotional and developmental problems earlier in the dependency proceedings, by the time of the permanency hearing, those problems had been resolved. Marvas willingness to adopt David and A. was further evidence of their general adoptability. Father does not raise any challenge to the juvenile courts finding that David and A. were generally adoptable.

Father argues, however, that SSAs adoption assessment failed to consider the social history of the prospective adoptive parents, as required by section 366.21, subdivision (i)(1)(D).[2] Father waived any challenge that SSAs adoption assessment did not comply with the statutory requirements by failing to raise the issue in the juvenile court. (In re Brian P. (2002) 99 Cal.App.4th 616, 623; In re Crystal J. (1993) 12 Cal.App.4th 407, 411-412.)

Even if we were to reach the merits of fathers argument, we would find no error. If a child is considered generally adoptable as David and A. are the suitability of the prospective adoptive home is not an issue, because the focus at the permanency hearing is on the child. (In re Valerie W. (2008) 162 Cal.App.4th 1, 13; In re Carl R. (2005) 128 Cal.App.4th 1051, 1061-1062; In re Sarah M. (1994) 22 Cal.App.4th 1642, 1650.) When we consider the totality of the evidence, including evidence outside of SSAs adoption assessment, we conclude any alleged deficiencies in the assessment were not so significant they require reversal. Because the adoption of David and A. by Marva would be through the ICPC, a home study could not be undertaken before parental rights were terminated. Even without a home study, Marva had been deemed acceptable for an ICPC placement. She had been caring for Anthony for several years. Although the assessment contains no information specific to Marvas husband, his presence in the home had not caused Marva to lose her ICPC placement eligibility. Finally, no legal impediment to adoption exists.

In re Valerie W., supra, 162 Cal.App.4th 1, cited by father, is not on point. One of the children in that case, Gregory W., suffered from a chronic illness, and had been referred for neurological and genetic testing. Although the Agency reported [in the reports prepared for the section 366.26 hearing] three‑year‑old Gregory was healthy, it also reported he was small for his age, had recently fallen below pediatric growth charts and suffered from asthma. A year earlier, Gregory had a seizure, but tests showed no brain abnormality. The emergency room physician recommended that Gregory undergo a neurological examination to rule out seizure disorders. A developmental evaluation showed Gregory had some delay in speech development, possibly caused by a very small lower jaw and overbite. Because of Gregorys short stature, small lower jaw, seizure and gastrointestinal problems, the public health nurse recommended that Gregory undergo genetic testing. [] The Agency indicated Gregory had a pediatric visit scheduled the following month to monitor his below normal growth. If he did not register on the growth charts by that visit, further testing would be necessary. The Agency also reported that Gregory recently had an electroencephalogram (EEG) and was scheduled to undergo a thorough genetics test as well. Gregory had anemia and additional testing was required to determine its cause. In later addendum reports, however, the Agency did not provide information concerning the results of Gregorys pediatric examination, EEG results, or the status or result of any other medical or developmental test. (Id. at pp. 5‑6.) The appellate court found the incomplete assessment of Gregorys medical and developmental condition undermined the juvenile courts finding that he was adoptable. (Id. at p. 15.) Additionally, the adoption assessment did not address whether the prospective adoptive parents could meet Gregorys special needs. (Ibid.) Here, father does not challenge the juvenile courts finding that both David and A. are generally adoptable. Although David initially had medical and behavioral problems, those had been resolved by the time of the permanency hearing.

In re Valerie W., supra, 162 Cal.App.4th at page 4,also involved the unusual situation where the prospective adoptive parents were the childrens foster mother and the foster mothers adult daughter. The adoption assessment considered only the foster mothers social history, not that of her adult daughter. (Id. at pp. 13‑15.) The appellate court expressed serious concern that adoption by two individuals who were neither married nor in a domestic partnership or civil union was even possible. (Id. at p. 16.) The case before us presents no similar issues or concerns.

Finally, father argues the juvenile court should have ordered legal guardianship, rather than adoption, as the childrens permanent plan. Father is incorrect. Adoption is the preferred plan following termination of parental rights. ( 366.26, subd. (b); In re Celine R. (2003) 31 Cal.4th 45, 53.) Father cites section 366.26, subdivision (c)(1)(A), for the proposition that legal guardianship is an important option to adoption. That subdivision creates an exception to termination of parental rights if, [t]he child is living with a relative who is unable or unwilling to adopt the child because of circumstances that do not include an unwillingness to accept legal or financial responsibility for the child, but who is willing and capable of providing the child with a stable and permanent environment through legal guardianship, and the removal of the child from the custody of his or her relative would be detrimental to the emotional well‑being of the child. ( 366.26, subd. (c)(1)(A).) This subdivision is inapposite, as Marva is willing and able to adopt David and A.

Substantial evidence supported the termination of parental rights.

Disposition

The order is affirmed.

FYBEL, J.

WE CONCUR:

SILLS, P. J.

ARONSON, J.

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[1] At the time of the juvenile courts hearing in June 2007, the parent‑child relationship exception was codified at section 366.26, subdivision (c)(1)(A). Section 366.26 was amended effective January 1, 2008 (Stats. 2007, ch. 583,  28.5), and the exception is now codified at section 366.26, subdivision (c)(1)(B)(i).

[2] In their appellate briefs, both father and SSA reference section 366.21, subdivision (i)(4). Effective January 1, 2008, section 366.21 was amended. (Stats. 2007, ch. 583,  26.5.) The amendment redesignated section 366.21, former subdivision (i)(4) as section 366.21, subdivision (i)(1)(D).