Opinion
D041832.
7-31-2003
In re BRIAN A., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. SANDRA A., Defendant and Appellant.
Sandra A., the mother of Brian A., appeals the termination of her parental rights under Welfare and Institutions Code section 366.26. (All subsequent references are to the Welf. & Inst. Code.) Sandra contends the juvenile court erred by (1) failing to apply the beneficial relationship exception to adoption ( § 366.26, subd. (c)(1)(A)); (2) finding termination of her parental rights was in Brians best interests; (3) failing to grant her request for a continuance of the section 366.26 hearing; and (4) coercing her to submit to a section 387 petition under threat of incarceration. We affirm.
PROCEDURAL AND
FACTUAL BACKGROUND
Sandra had a long history of substance abuse, starting with marijuana when she was 16 years old. Her drug of choice eventually became crystal methamphetamine. Sandra had enrolled in many drug rehabilitation programs; she established a pattern of doing well while in treatment but relapsing after she completed the program and living on her own. This pattern continued after Brian was born in January 1997. For the first three years of Brians life, Sandra took care of Brian, even when she spent time in recovery programs, sober living situations and follow-up programs and even when, after relapsing, she and her son lived in motels or were homeless.
On December 5, 2000, Escondido police responded to a disturbance call at the residence of Brians father where Sandra had gone to pick up Brian. Sandra and the fathers girlfriend argued before Sandra left. Brians father telephoned 911 because he believed Sandra was under the influence of drugs. Sandra told police she had left Brian with his father for three days while she smoked methamphetamine with friends. Based on her statements and demeanor, police arrested Sandra for being under the influence and took Brian to the Polinsky Childrens Center.
On December 7 the San Diego County Health and Human Services Agency (the Agency) filed a petition under section 300, subdivision (b), alleging Brian was in need of protection because of his parents substance abuse.
On December 28 Sandra submitted to the petition and the court made true findings, declaring Brian a dependent of the court. Brian was placed with his two maternal aunts, who live together. The court ordered Sandra to participate in the courts Substance Abuse Recovery Management System (SARMS) and comply with her case plan.
Sandra entered the Serenity House drug treatment program and did well. Sandra also regularly visited Brian, who seemed to enjoy the visits, and she attended parenting classes. She worked part-time at Goodwill Industries and planned to apply for transitional housing once she completed her treatment program. At the six-month review hearing on June 28, 2001, the court found Sandra had made substantive progress with her case plan and ordered six more months of services.
In October 2001 Sandra was arrested for stealing at work. She lost her job and became homeless. In December she was living in a shelter and looking for a job. However, Sandra was visiting Brian weekly, completed her drug treatment program, was in fair compliance with SARMS, and had tested negative for drugs since January 2001. The Agency recommended six more months of services. At the 12-month review hearing on February 6, 2002, the court found Sandra had made substantive progress with her case plan and it appeared that Brian would be returned by the next review hearing. The court gave the social worker discretion to allow overnight visits and begin a 60-day trial visit with Sandra.
During the next six months Sandra complied with her case plan and SARMS, started individual therapy, was working full-time and had found housing. The Agency recommended Brian be returned to Sandras custody. At the 18-month review hearing on May 20, the court continued Brian as a dependent and placed him with Sandra. The court also ordered Sandra to comply with her case plan.
On July 12 the social worker learned Sandra was not participating in SARMS or drug testing. The worker later learned that Sandra had been fired from her job. Sandra denied drug use but admitted she was in a relapse mode and thought about using drugs daily. On July 18 Brian was removed from Sandras custody and returned to his aunts home. On July 23 the Agency filed a section 387 supplemental petition, alleging the previous disposition was not effective and Sandra was no longer able to provide adequate care for Brian.
Sandra requested a trial on the section 387 petition, which was set for September 6. In reviewing the SARMS file, the court noted Sandra had a total of nine violations and issued an order to show cause (OSC) re contempt.
The Agency reported Sandra tested positive for methamphetamine on July 18. Sandra had not contacted the Agency since then. The Agency recommended termination of reunification services and a section 366.26 hearing be set. At the contested hearing on September 6, Sandra submitted on the section 387 petition and the court made a true finding. The court terminated services, including SARMS, and set a section 366.26 hearing. The court ruled the contempt issue was moot.
In its assessment report prepared in December, the Agency found Brian was likely to be adopted based on his gender, good health and age-appropriate development. Also, one of Brians aunts was willing to adopt him, and the Agency planned to have Brian adopted by her. In the event the aunt was not able to adopt Brian, there were 32 prospective adoptive families who were interested in adopting a child like Brian.
The Agency also reported that Sandra had not visited Brian between July and October 2002. In October, Sandra visited Brian at his aunts home, but she stayed only 10 minutes. Sandra re-entered Serenity House and had three visits with Brian at that facility: on November 23; December 3; and December 10. At the first of these visits, Brian was a little reserved and Sandra had to initiate physical affection. At all three visits, Brian referred to Sandra as "mom" or "mommy." Sandra and Brian talked, played games and ate snacks. At one visit when Sandra told Brian she loved him, he responded, "I love you too." Brian soiled his bed the night before and the night of the second visit.
In two addendum reports, the Agency noted Sandra had supervised visits with Brian on December 20, 24 and 31, 2002, and on January 9, 2003. Brian played games and colored with his mother and seemed to enjoy himself. Following the visits, however, Brian became emotional and agitated. He had nightmares on the nights of the visits and cried in his sleep. On January 15 Sandra was terminated from Serenity House because she had relapsed. In late January, Sandra telephoned the aunts residence and said she was "slamming," which an aunt interpreted as using drugs. The aunt had to remind Sandra it was Brians birthday and suggested she should wish him a happy birthday. Brian told a psychologist during an evaluation that he knew his maternal aunts loved him and he loved them. He felt safe with his aunts.
At the section 366.26 hearing on January 30, the court found by clear and convincing evidence that it was likely Brian would be adopted if parental rights were terminated and none of the exceptions to adoption listed in section 366.26, subdivision (c)(1) applied. The court terminated parental rights and referred the child to the Agency for adoptive placement.
DISCUSSION
I
Court Properly Found No Exception to Adoption
Sandra contends the juvenile court erred by failing to apply the beneficial relationship exception to adoption ( § 366.26, subd. (c)(1)(A)). She also urges us to adopt a nonstatutory best interests exception in this case. We find no error and decline to create a new exception to adoption.
Our standard of review is the substantial evidence test. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) We determine if there is any substantial evidence, contradicted or uncontradicted, to support the conclusions of the juvenile court. All conflicts are resolved in favor of the prevailing party and all legitimate inferences are drawn to uphold the lower courts ruling. (In re Brison C . (2000) 81 Cal.App.4th 1373, 1378-1379.)
Adoption is the permanent plan preferred by the Legislature. (In re Derek W. (1999) 73 Cal.App.4th 823, 826.) At the section 366.26 hearing, the court must terminate parental rights if the child is found likely to be adopted. ( § 366.26, subd. (c)(1).)
The parent bears the burden to establish by a preponderance of the evidence that an exception to the statutory preference for adoption applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345; § 366.26, subd. (c)(1).)
The beneficial relationship exception is codified at section 366.26, subdivision (c)(1)(A), which provides that once the court finds the child is likely to be adopted, the court shall not terminate parental rights if it finds termination would be detrimental to the child because "the parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." The exception applies only if both prongs are met.
In discussing the beneficial relationship exception to adoption in In re Autumn H., supra, 27 Cal.App.4th at page 575, this court explained that to come within this exception, a parent must show the "relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents." (Italics added.) The court must balance "the strength and quality of the . . . parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer." (Ibid.) In balancing these interests, relevant factors include "the age of the child, the portion of the childs life spent in the parents custody, the positive or negative effect of interaction between parent and child, and the childs particular needs . . . ." (Id . at p. 576.) Further, the parent must show the benefit arises from a parental rather than a caretaker or friendly visitor relationship. We reaffirmed this balancing test, explaining the standard "reflects the legislative intent that adoption should be ordered unless exceptional circumstances exist." (In re Casey D. (1999) 70 Cal.App.4th 38, 51, italics added.)
The court found Sandra maintained regular visitation, and the Agency does not dispute this finding. However, Sandra cannot meet the second prong of the beneficial relationship exception to adoption - namely, that the benefit from continuing the relationship between her and Brian would outweigh the benefit he would gain by being in a permanent adoptive home.
Substantial evidence supports the courts finding that the relationship that exists between Sandra and Brian is not beneficial to Brian.
Throughout his life, Brian has seen Sandra repeatedly attempt and fail to stop abusing drugs. Until this dependency, Brian spent his first three years living with Sandra in various substance abuse treatment centers where she achieved sobriety only to be released to the real world where she invariably fell off the wagon, with both she and Brian winding up living in motels or on the streets. The only stable living arrangement Brian has known is with his aunts, with whom he feels safe. Although there is no doubt that Sandra and Brian love each other, the emotional toll on Brian has been tremendous. After Sandras relapse in July 2002 and the resultant removal of Brian from her home, he was disappointed and angry, which was manifested by his hitting himself and clenching his fists. Brian experienced encopresis and nightmares after recent visits with Sandra. Brians therapist opined the visits were stressful to Brian and it would be counterproductive to increase visitation.
Notwithstanding Sandras love for Brian, the benefit from continuing the child-parent relationship would not outweigh the benefit Brian would gain from the permanence of an adoptive home. The juvenile court applied the correct balancing analysis to reach this conclusion.
Sandras argument the court erred in failing to find that adoption was not in Brians best interests is without merit. The court specifically found adoption was in Brians best interests, and there is substantial evidence to support this finding. To the extent that Sandra is advocating a generalized "best interests" exception to adoption, she cannot prevail. There is no generalized "best interests" exception under section 366.26, subdivision (c)(1). (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164-1165; see also In re Jasmine J. (1996) 46 Cal.App.4th 1802, 1808.)
II
No Error In Denying Sandras Request for a Continuance
Sandra contends the court erred in denying her request to continue the section 366.26 hearing until she could attend. The contention is without merit.
On January 2, 2003, the original date for the section 366.26 hearing, Sandra appeared with counsel and requested a continuance. The court granted the request and continued the hearing to January 9. On January 9, counsel set the matter for trial, which was to be held January 30. Sandra did not appear on January 9, but she was mailed notice of the continued hearing date. Sandra did not appear for the section 366.26 hearing and the court denied counsels request for a continuance.
A juvenile court may continue a dependency hearing at the request of a parent only for good cause and only for the period of time shown at the motion hearing to be necessary. (§ 352, subd. (a); rule 1422(a)(2).) Courts have interpreted this policy to be an express discouragement of continuances. (See, e.g., In re Emily L. (1989) 212 Cal. App. 3d 734, 743, 260 Cal. Rptr. 810.) The standard of review is abuse of discretion. (See In re Angela R. (1989) 212 Cal. App. 3d 257, 265-266, 260 Cal. Rptr. 612.)
Sandras counsel did not make a showing of good cause for the continuance. Sandra had notice of the hearing and did not appear. The mailed notice of the continuance of the hearing until January 30 satisfied the legal requirements for notice. (§ 294, subd. (d); In re Phillip F. (2000) 78 Cal.App.4th 250, 258-259.) Without a showing of good cause, the court did not abuse its discretion in denying Sandras requested continuance. ( § 352, subd. (a); In re Ninfa S. (1998) 62 Cal.App.4th 808, 811.)
III
No Denial of Due Process at Section 387 Hearing
At the start of the contested hearing on the section 387 petition and the OSC regarding SARMS noncompliance, the court indicated it customarily did not rule on contempt matters relating to reunification once reunification was terminated. Noting that Sandra wanted services to continue, her counsel said trial on the section 387 petition should proceed. The parties stipulated that if called as a witness, Sandra would testify she was making arrangements to enter a residential drug treatment program as early as the following week. A recess was then called to await the arrival of a witness.
In a bench conference, the court and counsel discussed the contempt proceedings, with the court indicating Sandra faced 35 days in jail based on the number of SARMS violations, and if she admitted the violations, the court would stay 25 days of the sentence. The court said it would not act on the contempt issue if Sandra first submitted on the section 387 petition and the Agencys recommendation that services be terminated. The court explained it usually rules on submitted matters before it rules on contested matters and if the section 387 petition was submitted and services terminated first, the SARMS matter would be moot. If the SARMS matter was taken up first, any order the court made would stand regardless of the outcome on the petition.
After conferring with Sandra, counsel told the court she was submitting on the section 387 petition. The court then made a true finding on the petition, terminated services to Sandra and set a section 366.26 hearing. The court terminated Sandra from SARMS and ruled no further action was needed.
Sandra contends the court violated her due process rights by coercing her to submit to the section 387 petition under threat of incarceration. This assignment of error is not cognizable on appeal because Sandra failed to raise it in a petition for extraordinary writ under California Rules of Court, rule 39.1B. To preserve appellate rights on issues arising from the order setting a section 366.26 hearing, a parent must timely file a petition for extraordinary review that substantively addresses the challenged issues and is supported by an adequate record, and the writ petition must be summarily denied or otherwise not decided on the merits. ( § 366.26, subds (l )(1) & (2); see also Ronald S. v. Superior Court (1995) 34 Cal.App.4th 1467, 1468-1469.)
In any event, we disagree there was a denial of due process. The record does not support Sandras characterization of the court coercing her and threatening her with incarceration. The court explained its regular procedural practice, and Sandra and her counsel discerned it would be to her advantage to proceed as they did. Nothing in this record indicates Sandra had a defense to the section 387 petition. Submitting on the petition did not change the outcome except for the fact Sandra did not have to serve 10 days in jail.
Nonetheless, we do not condone the courts implicit bargaining with counsel to give up the evidentiary hearing. Part of the courts function is to hold evidentiary hearings when parties are entitled to them and request them. Avoiding an evidentiary hearing should not be among a courts priorities in these circumstances. A court, just as Caesars wife, should avoid the appearance of any impropriety.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., McCONNELL, J.