In re Alexis R.

Filed 3/11/08 In re Alexis R. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

A mother appeals the termination of her parental rights on the ground that the juvenile court erred by denying a continuance of the Welfare and Institutions Code section 366.26 hearing to allow her to present additional evidence regarding the sibling relationship exception under section 366.26, subdivision (c)(1)(B)(v). We affirm.

Background

Paula R. (Mother) has four children: Felicia B. (female, born 1989), Trevon H. (male, born 1993), Taylor R. (female, born 2001), and Alexis R. (female, born 2005). Before Alexis arrived, Mother, Felicia, Trevon and Taylor lived with Mothers parents in San Pablo.

When Alexis was born in June 2005, she and Mother tested positive for amphetamines. Mother had arranged to relinquish the baby for adoption and Alexis was transferred to an adoption agency and placed. However, Mother changed her mind about the adoption. Alexis was then referred to the Contra Costa Children and Family Services Bureau (Agency) due to Mothers substance abuse and was placed with a foster family. She was formally detained July 8, 2005.

Also on July 8, 2005, the Agency filed a Welfare and Institutions Code section 300[1] petition on behalf Alexis. On August 19, the court sustained the petition based on the positive amphetamine tests. The court also sustained petitions that had been filed on behalf of Trevon and Taylor based on Mothers history of methamphetamine abuse. A petition filed on behalf of Felicia was dismissed without prejudice because Felicia was moving to Nevada with her grandparents. Trevon and Taylor were placed with Taylors stepmother and Alexis remained in foster care.

An October 2005 disposition report stated that Mother did not have stable housing, did not maintain contact with the Agency, did not consistently participate in drug testing, and did not follow through on drug treatment: she dropped out of one treatment program in July after five days and was discharged from another in October after 10 days. The Agency recommended continued removal of the children and family reunification services for Mother. At the December 9, 2005 disposition hearing, the court followed those recommendations.

Nelson R. (Nelson) was the alleged father of Taylor and Alexis. In February 2006, the court declared Nelson their presumed father based on a declaration of paternity executed by Nelson and Mother. One month later, Nelson petitioned for reunification services, which were granted.

A status review report prepared for the March 2006 hearing stated that Mother still had done virtually nothing to deal with her substance abuse problem. Since July 2005, she had submitted to only one drug test. She had not entered drug treatment since her failure in the first two programs. She did not maintain contact with the Agency, which had no current information about her living circumstances or source of income. Meanwhile, Alexis was comfortably adjusted to her foster home. At an April 2006 status review hearing, the court terminated Mothers reunification services as to Alexis but ordered continued services for Nelson. The Agency approved the paternal grandparents home for placement and placed Taylor in the home. It planned to transition Alexis to the home as well.

In May 2006, the court granted a petition by Alexiss foster parents for genetic testing of Nelson to confirm his paternity. The results were negative and Nelson abandoned his efforts to reunify with Alexis. Mother identified Timothy E. as Alexiss father and he expressed an interest in establishing his paternity.

In an August 2006 status review report, the Agency recommended terminating Mothers services as to Trevon and Taylor, terminating Nelsons services as to Alexis, and extending services for Nelson as to Taylor. Mother still had not pursued drug treatment and still did not keep the Agency informed about her living situation or sources of income. She had, however, harassed the paternal grandparents caring for Taylor, requiring the Agency to obtain a restraining order against her. Alexis was fully comfortable in her foster home.

The Agency reported that Alexis, Taylor, and Trevon had begun to develop sibling relationships through the once or twice monthly sibling visits the Agency had arranged since November 2005. Alexis briefly cried when separating from her foster mother to attend the visits and when she separated from Taylor or Trevon at the end of the visits. She enjoyed the visits themselves, which she showed by smiling and laughing.

A status review hearing took place on September 2006. As to Alexis, the court found Nelson was not her presumed or biological father, terminated Mothers services, and set a section 366.26 hearing for January 11, 2007.

On January 4, 2007, Mothers attorney requested a continuance of the section 366.26 hearing so she could adequately prepare. Over the objection of Alexiss counsel, the court granted the continuance request, with the new date to be determined on January 11. The court also ordered Timothy E. to undergo paternity testing. On January 8, the Agency filed papers seeking a one month continuance of the January 11 appearance date as to Trevon because the social worker assigned to prepare the report in his case had a family emergency. On January 11, the court granted that motion and set Trevons hearing for March 5, 2007. The court scheduled Alexiss 366.26 hearing for the same date.

A January 2007 section 366.26 report stated that the caretakers of the three siblings had gone to a therapist who suggested a plan of visitation for the children in the future. The foster parents, who were also the prospective adoptive parents, expressed a desire to maintain sibling contact in the future even if the court terminated parental rights, as long as their contact information was not shared with Mother. The Agency recommended adoption as the permanent plan for Alexis. Alexiss counsel also recommended adoption. He wrote that Alexis was well bonded to the foster family and that the foster parents had indicated they were committed to fostering Alexiss connections to her half-siblings.

At the March 5, 2007 hearing, the court found that Timothy E. was not Alexiss father and the hearing was further continued to March 21 due to the illness of Mothers counsel.

On March 16, 2007, the Agency requested a continuance of the March 21 hearing to allow sufficient time for publication notice to the unidentified and unknown father of Alexis. The court continued the hearing to June 11, at which Mothers counsel requested the presence of a social worker and visitation supervisor to provide evidence concerning the sibling relationships. The court ordered the visitation supervisor to appear June 11, but required Mother to subpoena the social worker.

In an addendum report for the June 11 hearing, the Agency wrote that Alexis was very close to the other children in her foster family. The report also stated that the foster parents were committed to providing consistent contact with Alexiss half-siblings if their address remained confidential from Mother.

The visitation supervisor and the social worker were present at the June 11 hearing. Mothers counsel nevertheless asked for a continuance to provide more evidence regarding the sibling relationships. She explained that Mother was not present, despite assurances she planned to appear at the hearing, and county counsel had refused her request that Trevon and Taylor be present. County counsel explained that he believed the minors presence was unnecessary since the issue was Alexiss bond to them, not their bonds to her. He had informed Mothers counsel that if she could make an offer of proof about the siblings relationship, he would stipulate to the evidence without requiring the children to testify because he did not want the children to miss school. Mother had not made the offer of proof. Mothers attorney agreed that because of Alexiss young age, she could only establish sibling bonding through the testimony of the siblings and she implied that because she had not deposed the children she could not make an offer of proof. In denying the requested continuance, the court explained that Mother had been notified of the hearing and did not appear, that evidence of sibling bonding could have come in through the testimony of Mother, and that it still might be obtained from the visitation supervisor.

Mother examined the visitation supervisor about Alexiss visits with her siblings. According to the supervisor, Alexis recognized and liked to play with Taylor during the visits. She was very comfortable with Taylor and had a good relationship with her. Taylor would hold Alexis on her lap, read to her, and hold her hand and walk with her. Alexis seemed happy when Taylor arrived and she would cry after Trevon and Taylor were dropped off and she was left alone in the car. The court admitted notes written by the visitation supervisor and the social worker describing the sibling visits. A licensed marriage and family therapist testified that Alexis was securely attached to her foster family, including the children in the family. The therapist had not had an opportunity to observe any attachment between Alexis and Mother. When Mothers counsel objected that the therapist was not a bonding expert and that the issue before the court was Alexiss bonds to her half-siblings, not her bond to the foster family, the court agreed to consider the testimony only for relevant purposes. Alexiss counsel submitted a report pursuant to section 317, subdivision (e) recommending adoption, in which he wrote that Alexis was well-bonded to the family, she had had only occasional visits with her half-siblings, and the prospective adoptive parents were committed to maintaining sibling contact.

Mothers counsel argued that ensuring ongoing sibling contact outweighed the benefits of adoption, and there was no evidence in the record of the de facto parents commitment to maintaining the sibling relationships. County counsel and Alexiss counsel argued that the sibling relationship exception had not been established. They claimed there was no evidence the sibling relationship rose to a level barring termination of parental rights and, in any event, the foster parents intended to maintain the sibling relationships. Counsel for Trevon and Taylor represented that the children, who had never lived with Alexis, would like ongoing contact with her, and they did not object to adoption. Counsel for the de facto parents reported that his clients absolutely intend to maintain the sibling relationships. He said the siblings had never shared significant common experiences and they did not have strong bonds.

Mothers parental rights were terminated. The court concluded the sibling relationship exception did not apply, observing that the children had never lived together and had only visited each other about 12 times. The Agencys section 366.26 report and minors counsels section 317, subdivision (e) report were cited as evidence of the de facto parents commitment to maintaining the siblings relationships.

Discussion

Mother claims the court erred in denying her request for a continuance of the June 11, 2007 hearing. She maintains the continuance was necessary to provide the court with sufficient information to determine whether the sibling relationship exception to termination of parental rights applied.

Upon a showing of good cause, the juvenile court may grant a continuance if it is consistent with the childrens interests. ( 352, subd. (a).) In considering the minor's interests, the court shall give substantial weight to a minor's need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements. (Ibid.) In order to obtain a continuance, written notice shall be filed at least two court days prior to the date set for hearing, together with affidavits or declarations detailing specific facts showing that a continuance is necessary, unless the court for good cause entertains an oral motion for continuance. (Ibid.) 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.)

The contested issue at the section 366.26 hearing was whether termination of parental rights was barred because of the overriding importance of Alexiss relationship to her siblings. Section 366.26 instructs that the court must terminate parental rights to an adoptable child unless it finds a compelling reason that termination would be detrimental under certain enumerated exceptions. ( 366.26, subd. (c)(1).) To apply the sibling relationship exception, the court must find termination of parental rights would be compellingly detrimental because it would cause substantial interference with a childs sibling relationship . . . as compared to the benefit of legal permanence through adoption. ( 366.26, subd. (c)(1)(B)(v).)[2] In enacting this exception, the legislature was concerned with preserving long-standing relationships between siblings which serve as anchors for dependent children whose lives are in turmoil. (In re Erik P. (2002) 104 Cal.App.4th 395, 404.) Mother had the burden of producing evidence that established the exception. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343.) The Agency had no duty to produce evidence relevant to the exception beyond what the statutes specifically required it to include in its section 366.26 report. (Id. at pp. 1343-1344.)

The court did not abuse its discretion in denying the continuance. First, Mother did not show why the request for continuance could not have been presented to the court in writing two or more days before the hearing. Second, she made no offer of proof regarding the testimony that would have been provided by Trevon and Taylor that was materially different from the evidence presented at the hearing. This evidence included observations of the siblings visits by the social worker and the visitation supervisor, the history of contacts among the siblings (including the number and timing of their visits and the fact that they had never lived together), and the reports of minors counsel concerning their clients attitudes toward Alexiss adoption, which shed some light on the strength of the sibling bonds. Mother correctly points out that the issue before the court was the importance of the sibling relationships to Alexis, not to the other siblings. (See In re Celine R. (2003) 31 Cal.4th 45, 49-50.) Nevertheless, given Alexiss young age and her inability to articulate her own needs and desires, all of the information received by the trial court was relevant to this issue. (See id. at p. 55.) The court also considered testimony regarding Alexiss bonds to her foster family. This evidence was relevant to the question of whether potential disruption of the sibling relationships outweighed the benefit of permanent adoption, whether severance of the sibling relationships would cause Alexis overall detriment creating a compelling reason not to terminate parental rights, and whether the sibling bonds served as anchors amid turmoil in Alexiss particular circumstances. The court reasonably concluded that granting a continuance, which would have further delayed a permanent plan for Alexis, would not result in a materially enhanced factual record regarding the importance of the sibling relationship as compared to the importance of the permanence of adoption by the foster family. For various reasons, the section 366.26 had already been delayed five months.

This case is comparable to In re Erik P., where the court of appeal found the sibling relationship exception was inapplicable. (In re Erik P., supra, 104 Cal.App.4th at p. 398.) There, as here, the child had been placed in foster care as a newborn immediately after his discharge from the hospital; he had limited family history with his parents or siblings; he was not torn away from a home, school or friends; and he spent the vast majority of his life with the prospective adoptive parents and only limited time with his sibling (two months in the same home). (Id. at p. 404.)

Mother, citing In re Naomi P., argues the fact that Alexis had never lived with her siblings was not dispositive. (In re Naomi P. (2005) 132 Cal.App.4th 808.) In In re Naomi P., however, the child had been placed nearby her siblings, which allowed for frequent visits. (Id. at p. 812.) Even after she moved to a nonrelative placement, the siblings continued to have weekly visits. (Id. at p. 813.) The siblings adamantly opposed adoption and testified about the sibling bonds at a court hearing. (Id. at p. 815.) The court of appeal held there was ample evidence in the record supporting the trial courts finding that the sibling relationship exception applied. (Id. at pp. 823-824.) Here, the trial court reasonably found that Mother did not meet her burden to prove the exception applied. She did not even appear at the hearing to testify about the sibling bonds, she did not make an offer of proof about what the siblings would say about the bonds, and she did not present evidence contradicting the visitation supervisors and the social workers observations of the sibling interactions.

Mother cites various cases for the proposition that juvenile courts should not artificially restrict the presentation of evidence that would assist it in making orders serving the best interests of the child. (See Guadalupe A. v. Superior Court (1991) 234 Cal.App.3d 100, 106; In re Michael W. (1997) 54 Cal.App.4th 190, 196; In re Celine R., supra, 31 Cal.4th at p. 55.) However, Mother has not shown she was restricted in presenting material evidence relevant to the sibling relationship exception. The court was under an obligation to impose a permanent plan for Alexis without undue delay, (see, e.g.,  361.5, subd. (a)(2)), and delaying the hearing to allow the admission of immaterial or unexplained evidence would have violated that obligation.

The value of granting the continuance did not outweigh the cost of further delay. Mothers due process rights were not violated. (See In re Malinda S. (1990) 51 Cal.3d 368, 383.)

Disposition

The order terminating parental rights is affirmed.

STEVENS, J.*

We concur.

SIMONS, ACTING P. J.

NEEDHAM, J.

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* Retired Associate Justice of the Court of Appeal, First Appellate District, Division Five, assigned by the Chief Justice pursuant to art. VI, 6 of the California Constitution.

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

[2] A parent has standing to raise the appellate issue of whether the sibling relationship exception should have been applied by the juvenile court. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 951.)