In re A.C.

 

 

 

 

 

 

 

Filed 7/12/13  In re A.C. CA6

 

 

 

 

 

 

 

>NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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

 

SIXTH
APPELLATE DISTRICT

 

 
>

In re A.C., a Person Coming Under the Juvenile Court Law.	H038820      (Santa Clara County       Super. Ct. Nos. JD20320, JD20322)
SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN’S SERVICES,   Plaintiff and Respondent,   v.   ANA C.,   Defendant and Appellant.

 

            Ana C. (mother) appeals from an
order terminating reunification services and setting a selection and
implementation hearing (Welf. & Inst. Code, § 366.26)href="#_ftn1" name="_ftnref1" title="">[1]
for her sons, five-year-old A.C. and two-year-old L.H.  She also appeals from an order denying her
petition for modification pursuant to section 388.  She contends: 
(1) the juvenile court abused its discretion when it denied her motion
to continue the section 388 and section 366.26 hearing, and (2) there was
insufficient evidence to support the finding that A.C. and L.H. were
adoptable.  We find no error and affirm.

 

I.
Statement of Facts

            On September 22, 2010, the
Department of Family and Children’s Services (Department) filed petitions
alleging that three-year-old A.C., three-month-old L.H., and two-year-old V.C.
came within the provisions of section 300, subdivisions (b) [failure to
protect].href="#_ftn2"
name="_ftnref2" title="">[2]  The petitions alleged:  (1) the children were at significant risk due
to repeated exposure to domestic violence between their mother and her
boyfriend A.B., L.H.’s father, (2) the police responded numerous times to the
family’s home on domestic violence calls, (3) the mother exhibited symptoms of
untreated mental health problems, (4) A.C. reported that his mother and A.B.
regularly hit him on his head, torso, and buttocks with a belt, their hands and
sandals, (5) the mother had a history of methamphetamine use and tested
positive for methamphetamine in family court in 2009, and (6) the mother failed
to acknowledge the danger that A.B. posed to her children.  All three children were detained and
supervised visitation was ordered for the mother. 

            In November 2010, the
jurisdiction/disposition report was filed. 
The social worker recommended that the juvenile court take jurisdiction
of the children, remove them from their mother’s care, and provide the mother
with reunifications services for A.C. and L.H. 
It was also recommended that V.C. be placed with her father under a plan
of family maintenance. 

            According to the report, the mother
went to the police station and stated that she had been a victim of domestic
violence on September 19, 2010.  A.B. had pushed her, repeatedly struck her
head and arms, and scratched her shoulder with car keys.  She also stated that A.B. had struck her
three to four times in the last two years in her children’s presence.  A.B. was arrested and denied hitting or
assaulting the mother.  Four days later,
the mother told the social worker that A.B. had never hit her before the
September 19 incident, blamed herself for antagonizing him, and bailed him out
of jail because she did not want him to lose his job.  The mother also stated that she was diagnosed
with bi-polar and anti-social personality disorders when she was 14 years old
and acknowledged that she needed mental health treatment.  The mother told the social worker that she
did not graduate from high school and had difficulty finding work because she
was an undocumented immigrant. 

            In addition, the social worker
reported that A.C. had excellent verbal skills and showed no signs of developmental
delays.  However, he exhibited signs of
emotional distress by expressing fear of being hit, crying often, and having
nightmares.  L.H. was not showing any
signs of emotional distress.  The mother
visited her children twice a week for two hours. 

            The juvenile court found the
allegations of the petitions, as amended, to be true and took jurisdiction of
the children.  The disposition hearing
for A.C. was continued so that paternity could be established.  The juvenile court adjudged L.H. a dependent
of the court and ordered him removed from his mother’s custody.  The juvenile court also ordered that
reunification services be provided to the mother for L.H.  These services included:  (1) completion of a parent orientation class,
a Basic Positive Parenting class, and a Parenting Without Violence class; (2)
counseling to address issues of domestic violence and its impact on the family;
(3) participation in a psychological evaluation and compliance with the
recommendations of the evaluator; (4) attendance at a domestic violence
victims’ support group; and (5) visitation. 


            An interim review report was filed
on December 15, 2010.  In an interview on
November 18, 2010, the mother told the social worker that she wanted to reunify
with her children and missed them deeply, but she did not believe that there
was any domestic violence in her relationship with A.B.  However, the social worker attached a police
report in which the mother told the police that A.B. had pushed her into a wall
and injured her during the weekend of November 13-14, 2010.  The interim review report also indicated that
the mother had completed the parent orientation class, did not receive a
certificate of completion for the Basic Positive Parenting class, was awaiting
enrollment for the Basic Parenting Class, was participating in counseling, had
not yet had the psychological evaluation, and was attending a domestic violence
victims’ support group.  It was also
reported that there were no problems with visitation. 

            At the dispositional hearing for
A.C., the juvenile court adjudged him a dependent of the court and ordered him
removed from his mother’s care.  The
juvenile court also ordered that reunification services be provided to the
mother for A.C.  These services were
similar to those offered in L.H.’s case.  


            In the report for the six-month
review hearing for both children, the Department recommended that the juvenile
court terminate reunification services for A.B. and continue reunification
services for the mother.  The report also
stated that the mother continued to have contact with A.B. even though there
was a no-contact restraining order.  On
January 18, 2011, the mother informed the social worker that she had left A.B.
and was living with a friend.  However,
the mother and A.B. were involved in a physical and verbal domestic violence
incident a few days later, and A.B. was arrested and charged with corporal
injury on a spouse.  After A.B. was
released from custody, he went to the mother’s residence on April 2, 2011,
grabbed her by the throat and choked her. 
A.B. was arrested and charged with corporal injury on a spouse and
violation of a protective order.  On
April 6, 2011, A.B. pushed the mother to the ground in a parking lot and she
was injured.  The social worker also
spoke with A.B.’s probation officer Leslie Anaya a few weeks later.  Anaya stated that during a meeting with A.B.,
A.B. received 14 calls on his cell phone from the mother.  Anaya also stated that at A.B.’s criminal
hearing on April 8, 2011, the mother “repeatedly plead[ed] with the
Judge for a peaceful contact order, and even after the Court hearing was over,
she wanted to meet with [A.B.] and waited for him in the lobby.”  

            The report stated that the mother
continued to attend individual therapy, had participated in a psychological
evaluation, and had completed the domestic violence support group.  The mother was also consistently visiting her
children.  The report indicated that both
children were meeting developmental milestones. 
According to the foster parent, A.C. was no longer having nightmares or
feeling afraid, and “always wants to help.” 
L.H. was not showing any signs of emotional stress. 

            The six-month review hearing was
held on April 28, 2011.  The juvenile
court ordered that the mother continue to receive reunification services for
A.C.  At A.B.’s request, a contested
hearing was scheduled regarding L.H. 

            An addendum report dated June 16,
2011, stated that A.B. had been arrested on May 23, 2011.  After the mother called A.B., they met at a
park and A.B. began yelling at her.

            In an addendum report dated August
4, 2011, the Department recommended that the court terminate reunification
services for both the mother and A.B. 
The social worker had received a CD of 84 recorded telephone conversations
between the mother and A.B., who was then incarcerated.  A.B. was extremely verbally abusive to the
mother and she continued to express her emotional dependence on him.  The social worker also received a copy of the
recorded window telephone visits between A.B. and the mother at the
facility.  During one of these visits,
when A.B. became verbally abusive to the mother, she responded by telling him
that she loved him, would wait for him, and apologized for upsetting him.  At the end of the visit, they discussed “how
much they love[d] each other and that they [would] be a family soon.”

            On September 22, 2011, the juvenile
court held the contested hearing in L.H.’s case.  The social worker testified as an expert in
risk assessment, placement of dependent children, and assessment of domestic
violence issues.  She testified that A.B.
had been charged in connection with four incidents of domestic violence
involving the mother between November 2010 and May 2011.  The social worker was no longer recommending
reunification services for the mother because she had not adequately addressed
domestic violence issues in her relationship with A.B. even though she had
participated in three domestic violence support groups and individual
therapy.  The mother had also told the
social worker several times that she would not leave A.B. 

            Following the hearing, the juvenile
court terminated reunification services for both the mother and A.B. and set
the matter for a section 366.26 hearing for L.H. on January 18, 2012. 

            In the report dated October 18,
2011, for the 12-month review hearing for A.C., the Department recommended
termination of reunification services for the mother.  A.C. continued to reside in a concurrent
foster home with L.H. and to meet developmental milestones.  He initially had difficulty transitioning to
a Head Start program.  However, he was
very excited about the program after two weeks and was making new friends.  On October 11, 2011, the foster parent
contacted the social worker and expressed her concerns about A.C.’s emotional
well-being.  A.C. worried about having
enough food, was jealous of L.H., became anxious before visits with his mother,
and was mimicking A.B.’s behavior.  The
social worker referred A.C. for individual therapy.

According
to the 12-month review report, the mother continued to participate in
individual therapy and had participated in a psychological evaluation.  The psychologist stated that the mother met
the diagnostic criteria for “Amphetamine Dependence, sustained Full Remission,
Depressive Disorder Not Otherwise Specified, and Histrionic Personality
Disorder.”  However, the mother had not
followed the psychologist’s recommendation to participate in a medical
evaluation. 

            On October 26, 2011, the mother did
not appear for the 12-month review hearing regarding A.C. and the juvenile
court denied the request for a continuance. 
The juvenile court terminated reunification services for the mother and
set a section 366.26 hearing for February 22, 2012. 

            The child advocate for A.C.
submitted a report in October 2011.  He
described A.C. as “pleasant,” “sweet,” “caring,” “independent,” and
“responsible.”  A.C. interacted well with
adults, but his interactions with children needed improvement at times.

            The report for the section 366.26
hearing on January 18, 2012, stated that L.H. was a healthy and happy
one-year-old child who was meeting developmental milestones.  According to the social worker, the
likelihood of adoption was high.  The
child advocate submitted a report and described L.H. as “thriving in his
current environment” and “a typical toddler [who] show[ed] no obvious ill
effects of his situation.” 

            On January 18, 2012, the Department
requested a continuance of the section 366.26 hearing for L.H.  The Department had identified adoption as the
permanent plan and sought additional time to identify a prospective adoptive
family.  L.H.’s current placement had
previously been identified as a concurrent adoptive home.  However, on November 21, 2011, the foster
parent had reported that she could not be the concurrent home due to “personal
reasons that included not wanting to be involved with L.H.’s biological
family’s reactions to the plan of adoption.” 
The mother, who was present, did not object to the request.  The juvenile court continued the section
366.26 hearing to May 10, 2012. 

            The report for the section 366.26
hearing for A.C. also recommended adoption as the permanent plan and requested
a continuance to identify a prospective adoptive family.  For the same reasons that were given in L.H.’s
case, the foster parent for A.C. had reported that she could not be the
concurrent home.  The social worker
stated that A.C. appeared to be “developmentally on target,” and a “very
intelligent, vocal, friendly and nurturing boy.”  Based on these qualities, the social worker
stated that the likelihood of adoption for A.C. was high.  His Head Start teacher described him as a
“smart little boy,” that is, “whatever they [taught him], he [understood] the
concept.”  He also shared his knowledge
with staff and peers.  The teacher
reported that A.C.’s behavior had improved a lot since August 2011 when he
first started the Head Start program.  He
no longer pushed or hit his classmates and he followed directions. 

            An initial mental health assessment
on February 9, 2012, stated that A.C. “present[ed] with irritability, sleep
disturbance, restlessness, anger, and anxious thoughts.”  A.C. expressed anxiety about when he would
see his mother again and if he would be reunified with her.  He also expressed sadness about not seeing
V.C. on a regular basis.  In addition,
A.C. was reenacting the domestic violence that he had witnessed by playing
rough with adults and telling them “it’s okay, it won’t hurt,” and becoming
angry when they told him to stop. 
According to the assessor, A.C. was “on target in all areas of physical
and socio-emotional development” and was a “very caring, friendly, insightful,
and creative” boy, who “openly engages with peers and adults.”  The assessor concluded that his symptoms were
demonstrated after he visited his mother, and her inconsistent attendance at
supervised visits contributed to his anxiety. 
A.C. was also worried about being separated from V.C. and his current
foster parent, and he struggled with adjusting to having strong attachments to
both his biological family and his current foster family.  Thus, the assessor diagnosed him with
adjustment disorder with anxiety.  The
assessor recommended that he continue with therapeutic services to cope with
his current symptoms and to provide support for the transition to a new
home. 

            The child advocate for A.C. prepared
a report in which he stated that A.C. was “an extraordinary child,” had “great
potential,” and was “a sweet and adorable boy.” 
A.C. enjoyed living in the same house as L.H. and often asked if L.H.
could accompany them on their outings. 
A.C. had become more comfortable interacting with other children his age
and interacted well with adults.  He was
very imaginative, could sing the alphabet, count to 16, and had a good sense of
time and the days of the week.  The child
advocate also described him as an “enjoyable child to be around.” 

            At the section 366.26 hearing on
February 22, 2012, the Department identified adoption as the permanent plan and
requested a continuance to locate A.C.’s father.  The juvenile court continued the matter to
May 24, 2012. 

            An addendum report dated April 27,
2012, recommended that the mother’s parental rights be terminated as to
L.H.  The social worker was assessing the
home of the maternal grandmother, who was interested in adopting L.H. and
A.C.  Though the maternal grandmother did
not have a criminal record or substantiated child protective services
allegations against her, there was a history of concerns regarding her
reactions to the mother and the social worker needed additional time to
complete the relative assessment.  The
maternal aunt had reported that she could not provide a placement for the
boys. 

            On May 10, 2012, the mother was
present at the continued section 366.26 hearing for L.H.  After the mother requested a contested
hearing, the matter was continued to June 7, 2012. 

            An addendum report dated May 23,
2012, for the continued section 366.26 hearing for A.C. recommended termination
of parental rights and the selection of adoption as the permanent plan.  The social worker had not completed her
assessment of the maternal grandmother and requested a continuance to identify
a prospective adoptive family. 

            On May 24, 2012, the mother was
present at the continued section 366.26 hearing for A.C.  She requested a contested hearing, and the
matter was scheduled for June 7, 2012. 

            On June 7, 2012, the same day of the
scheduled contested hearing for both children on the section 366.26
recommendations, the mother filed a section 388 petition in which she requested
the return of both children to her care with family maintenance services.  She alleged that she was supporting herself
as an office assistant, living in a suitable place for her children, no longer
responding to A.B.’s attempts to contact her, and participating in counseling,
parenting classes, and support groups. 
She also alleged that it was best for her children to be returned to her
care because the Department had not yet identified a concurrent home for
them.  The juvenile court then scheduled
the contested section 366.26 hearing for both children as well as the hearing
on the mother’s section 388 petition for August 23, 2012. 

            On August 23, 2012, the Department
submitted its report in response to the mother’s section 388 petition.  The social worker stated that she did not
have verification of the mother’s employment or her participation in therapy or
other information provided in her petition. 
On June 7, 2012, the mother told the social worker that her therapist
had informed her that she did not need any further treatment, and consequently
she was no longer participating in therapy. 
The mother had also not been available for an in-person visit with the
social worker at her residence. 

            The report summarized the mother’s
contacts with the Department during July and August 2012.  On July 17, 2012, the mother left a message
with the social worker that she had a family emergency, was cancelling a visit
with her children, and would be back on July 20, 2012.  On July 27, 2012, the mother called the
social worker and reported that she went to Mexico to take care of “the mother
of her mother” and that she would be getting a passport in one week.  She was unable to provide the address where
she was staying in Mexico.  On August 5,
2012, the mother called the social worker and indicated that she was aware of
the hearing on August 23, 2012.  She also
reported that she was going to a psychiatrist in Mexico and was prescribed
medication, which she was taking.  Though
A.B. had been deported to Mexico, the mother denied that she had had any
contact with him.  On August 16, 2012,
the mother left a voicemail message stating that she was in Mexico and her
documents were being delayed.  She asked
if the court could reschedule her hearing. 
On August 20, 2012, she left another voicemail message for the social
worker in which she stated that she was on her way to San Jose. href="#_ftn3"
name="_ftnref3" title="">[3]  On August 22, 2012, the mother reported that
she was in San Diego, had been given a visa and passport, and was trying to
make it to San Jose prior to the August 23, 2012 hearing. 

            The report also stated that the
mother had consistently visited her children until July 16, 2012.  After that date, the mother had Skype visits
with the children, but it was confusing for A.C. to see his mother over the
internet.  During the period when the
mother was not visiting, A.C. did not ask for her and his behavior did not
change. 

            According to the social worker, the
maternal grandmother had been eliminated as a possible placement for the children.  A prospective adoptive home was later
identified and the first pre-placement visit was scheduled for August 24,
2012.  However, a paternal aunt of L.H.
had then asked to be considered for placement of the children.  The social worker intended to assess the
paternal aunt and, if she were approved, the children would be placed with
her.  If not, the children would be
placed with the identified prospective adoptive home. 

            On August 23, 2012, the mother did
not appear for the hearing.  The mother’s
counsel requested a continuance.  The
mother had contacted her counsel “a few hours” earlier and stated that she was
“currently on a Greyhound bus from San Diego to San Jose and . . . that she
[would] be arriving tomorrow in San Jose . . . .”  The juvenile court then continued the matter
to August 29, 2012. 

            On August 29, 2012, the mother did
not appear for the hearing.  The mother’s
counsel again requested a continuance, stating that the mother “believe[d] that
she could be here within approximately two weeks.”  The juvenile court denied the request and
stated:  “There is not good reason nor
good cause to continue the proceedings further. 
[¶]  I do believe that under the
totality of the circumstances and based on my understanding of evidence that is
likely to be received today that continuing these proceedings any further and
delaying these decisions would not be in the best interests of the children and
that the Court should move forward with the underlying proceedings.” 

            After reviewing the child advocates’
reports and the Department’s reports, the juvenile court denied the mother’s
section 388 petition.  The juvenile court
found:  (1) there were no changed
circumstances, and (2) it was not in the children’s best interests to be
returned to her care “given her instability, poor decision making and apparent
lack of any insight into the issues that brought her and her children before
the dependency court . . . .”  The juvenile court also found that both
children were likely to be adopted and, given their particular characteristic
and qualities, they were very likely to be adopted in the reasonably near
future.  The juvenile court adopted the
Department’s recommended findings and orders as to both children and terminated
the mother’s parental rights. 

           

>II. Discussion

>A.    
Request
for Continuance

            The mother contends that the
juvenile court abused its discretion when it denied her motion to continue the
section 388 and section 366.26 hearing. 
She contends that she established good cause for a continuance because
her “return from Mexico after a family emergency had been delayed due to
immigration difficulties.”  She also
asserts that “the unresolved placement issue had created its own delay,” and
thus the continuance would not have adversely affected the children. 

            “[N]o continuance shall be granted
that is contrary to the interest of the minor. 
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. 
[¶]  Continuances shall be granted
only upon a showing of good cause and only for that period of time shown to be
necessary . . . .”  (§ 352, subd.
(a).)  We review a juvenile court’s
denial of a motion for continuance under the abuse of discretion standard.  (In re
Ninfa S. (1998) 62 Cal.App.4th 808, 811.) 


            Here, the mother failed to establish
good cause for a continuance.  Though the
mother had proper notice of the section 388 and section 366.26 hearings on
August 23 and August 29, she apparently traveled to Mexico without the
documentation necessary to return to the United States.  Moreover, the mother was not credible.  On August 22, she reported to the social worker
that she had been given a visa and a passport, and the following day, she
informed her counsel that she was “currently on a Greyhound bus from San Diego
to San Jose.”  However, on August 29, she
requested an additional two weeks without further explanation.  The mother had also claimed that there had
been a family emergency, yet the maternal grandmother told the social worker
that the mother’s grandmother did not want the problems associated with the
mother.  Based on this record, the mother
failed to establish good cause for a continuance.  Accordingly, the trial court did not abuse
its discretion in denying the request.

 

>B.   
Finding
of Adoptability

            The mother next contends that there
was insufficient evidence to support the adoptability finding.  The mother argues that A.C. “was not
generally adoptable because of his emotional and behavioral issues.  Because of that, [L.H.] also was not
generally adoptable because the two brothers, as a sibling set who had lived together
a significant amount of time, needed placement together.” 

            The juvenile court shall terminate
parental rights if it “determines . . . by a clear and convincing standard that
it is likely the child will be adopted.” 
(§ 366.26, subd. (c)(1).) 
“In making the determination of adoptability,
the juvenile court ‘must focus on the child, and whether the child’s age,
physical condition, and emotional state may make it difficult to find an
adoptive family.’  [Citation.]  ‘A child’s young age, good physical and
emotional health, intellectual growth and ability to develop interpersonal
relationships are all attributes indicating adoptability.’  [Citation.]” 
(In re I.W. (2009) 180
Cal.App.4th 1517, 1526.)

            “On review, we determine whether the
record contains substantial evidence from which the juvenile court could find
clear and convincing evidence the child was likely to be adopted within a
reasonable time.  [Citations.]”  (In re
Michael G. (2012) 203 Cal.App.4th 580, 589.)  Under this standard, “[w]e resolve all
conflicts in favor of the respondent on appeal and give respondent the benefit
of all legitimate and reasonable inferences. 
Where the facts reasonably support more than one inference, we may not
substitute our judgment for that of the trier of fact.  Considering only the evidence favorable to
respondent, the question is whether that evidence is sufficient as a matter of
law.  If so, we must affirm the
judgment.  [Citations.]”  (In re
Walter E. (1992) 13 Cal.App.4th 125, 139-140.)

            Here, five-year-old A.C. and
two-year-old L.H. were young, physically healthy, and shared a close
relationship.  Neither child was
developmentally delayed.  L.H. had shown
no signs of emotional distress.  However,
A.C. experienced symptoms of irritability, sleep disturbance, restlessness,
anger and anxious thoughts, and he had reenacted the domestic violence that he
had witnessed.  Despite these symptoms,
A.C. had many positive qualities indicating that he was adoptable.  The mental health assessor described A.C. as
a “very caring, friendly, insightful, and creative” boy, “who openly engages
with peers and adults.”  The assessor
also concluded that A.C. was “on target in all areas of physical and
socio-emotional development.”  The Head Start
teacher described A.C. as a “smart” boy, who shared his knowledge with peers
and staff, and noted that his behavior had improved a lot.  The child advocate for A.C. described him as
“an extraordinary child,” who was comfortable interacting with other children
and adults.  In the social worker’s
opinion, the likelihood of adoption was high for both L.H. and A.C.  Thus, even though A.C. had experienced
emotional difficulties, there was substantial evidence to support the juvenile
court’s finding that it was likely that both children would be adopted.

            Relying on In re Kristin W. (1990) 222 Cal.App.3d 234 and In re Brian P. (2002) 99 Cal.App.4th 616, the mother also argues
that the social worker’s opinion, by itself, was insufficient evidence to
support a finding of adoptability.  There
is no merit to this argument.  Here,
evidence of the children’s personal characteristics was provided by the child
advocates, A.C.’s Head Start teacher, a mental health professional, the foster
parent, and the social worker. 

 

>III.  Disposition

            The orders are affirmed.

 

 

                                                                        _______________________________

                                                                        Mihara,
J.

 

 

WE CONCUR:

 

 

______________________________

Premo, Acting P. J.

 

 

______________________________

Grover, J.