Opinion
D049568
4-25-2007
In re MONSERRAT T. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. ARACELI C. et al., Defendants and Appellants.
NOT TO BE PUBLISHED
Araceli C. and Filiberto B. appeal judgments terminating their parental rights to their daughters, five-year-old Monserrat T. and three-year-old Yajaira T. They contend the juvenile court abused its discretion by refusing to grant a continuance to allow time for a bonding study. Araceli also asserts substantial evidence does not support the courts finding the beneficial parent-child relationship exception of Welfare and Institutions Code section 366.26, subdivision (c)(1)(A) did not apply. We affirm the judgments.
FACTUAL AND PROCEDURAL BACKGROUND
Monserrat was born in August 2002 and Yajaira in February 2004. On September 8, 2004, there was a domestic violence incident between Araceli and Filiberto. Araceli said Filiberto accused her of being unfaithful, struck her, grabbed Monserrat and threatened to leave with her. Araceli stabbed Filibertos arm with a kitchen knife to prevent him from leaving. Police reported when they arrived, both Araceli and Filiberto were bleeding and Monserrat was crying. The parents had a history of domestic violence. Filiberto was usually the aggressor and Araceli had a restraining order against him. Araceli said he had battered her 14 times during the past year, but she had reported only three of the incidents.
Police arrested Filiberto and took the children into protective custody. The San Diego County Health and Human Services Agency (the Agency) petitioned on the childrens behalf under section 300, subdivision (b) based on domestic violence. The court ordered the children detained.
The Agency had earlier offered a voluntary case plan to the family, but the family moved, and Araceli did not contact the social worker. Araceli said she did not need the restraining order that had been issued and had torn up her copy. She allowed Filiberto to come back into the home, saying, "[n]othing bad happened to my children, it was only between me and my husband. . . . I know you wont believe me, but he is a good man despite all that you see." The children were doing well in foster care, but the foster mother reported concern with Monserrats behaviors, such a pulling her hair, gorging on food and hiding food in pockets and drawers.
The psychologist who completed an evaluation of Araceli reported Araceli claimed she understood it harmed the girls to expose them to domestic violence, but she minimized the violence. The evaluator said Araceli was working out her feelings toward separating from Filiberto and she had strong dependency needs, some insecurities and self doubt and assumed a passive role. He said she needed further help to end the relationship.
At the jurisdictional/dispositional hearing on November 8, 2004, the court sustained the petitions and ordered the parents to comply with their case plans, including participation in domestic violence treatment, a parenting class and individual therapy. It also required Filiberto to have substance abuse treatment.
At the six-month review hearing in June 2005, the court ordered continued services and allowed Araceli to have short daytime unsupervised visits with the children. Araceli had completed a parenting class and was attending a domestic violence treatment program and therapy. Filiberto was incarcerated and then deported. He had not contacted the social worker or the children. The foster parent reported the children were making progress. Monserrat had stopped having nightmares and using vulgar language.
In August 2005, Araceli stopped visiting the children and participating in services. In December she contacted the Agency to say she had been in Mexico because she had been told her mother was sick. The social worker expressed concern about reports she was continuing her relationship with Filiberto.
At the 12-month hearing in February 2006, the court continued the hearing to the 18-month date. For the combined 12 and 18-month hearing, the social worker reported Araceli had resumed her participation in services in December 2005, when she returned from Mexico. The social worker said although Araceli had participated in a domestic violence victims group, she had not developed insight into how domestic violence put her children at risk. The social worker recommended terminating services and setting a section 366.26 hearing. Aracelis new therapist recommended she have continued therapy, in-home services and anger management treatment.
At the 18-month hearing on April 28, 2006, the court terminated services and set a section 366.26 hearing.
The social worker opined Monserrat and Yajaira were adoptable and said their foster parents, who had cared for them for nearly two years, wanted to adopt them. In addition, numerous other families would adopt children with their characteristics. The social worker had observed six visits between the children and Araceli and four between the children and Filiberto, who had recently started visiting. She said the parents were affectionate with the girls and brought food and gifts to visits. During visits, Monserrat sought attention from both Araceli and the foster mother and after one visit said she wanted to go with Araceli on a bus. At another, when the visit ended, she lingered with Araceli on the playground. Neither girl cried when visits ended. Monserrat was willing to interact with Filiberto, but Yajaira had to be encouraged to do so. The social worker opined there were no parent-child relationships between the children and the parents, and the benefits of adoption outweighed any detriment to terminating parental rights.
At the initial section 366.26 hearing on August 24, 2006, Araceli requested a bonding study. The court granted the request, but cautioned it did not plan to grant a continuance if the results of the study were not available by October 6, the date set for the section 366.26 hearing.
At the hearing on October 6, 2006, Aracelis attorney asked for a continuance to obtain the bonding study, explaining there had been delay because an investigator from the attorneys office was on leave, it was difficult to find a Spanish-speaking bonding expert, and when an appointment was arranged just before the hearing date, the attorney could not reach Araceli because there were no minutes remaining on her cellular telephone. The court found the childrens need for stability outweighed the need for a bonding study and denied the request.
The social worker testified there were no beneficial parent-child relationships between the children and the parents because Monserrat and Yajaira had lived with the foster parents for a major portion of their lives and looked to them as their parents. She said the girls did not cry at the end of visits or ask to see Araceli between visits. She characterized Monserrats relationship with Araceli as that of a child and an extended family member. She said Yajaira sometimes had to be coaxed to interact with Araceli.
Araceli testified she had been the childrens primary caretaker before they were removed from her care. She said she visited regularly except for the time she was in Mexico, and she was affectionate with the girls during visits. She said Monserrat sometimes did not want to get into the foster mothers car at the end of visits. She testified she went to Mexico because she had been told her mother was sick. She then had to work so she could afford to return to the United States. She tried to call the social worker, but there was no answer when she called. She admitted she had not left any messages.
Filiberto testified he had not had visits with the girls until recently because he did not want to cause any problems. He testified he had attended domestic violence classes, but did not understand why he was a risk to Araceli or the girls. He said he visited six or seven times in the last two months.
The court found the benefits of adoption outweighed any bond between the children and the parents. It found adoption was in Monserrats and Yajairas best interests and terminated parental rights.
DISCUSSION
I. Denial of the Request for a Continuance
Araceli and Filiberto contend the juvenile court abused its discretion when it did not continue the section 366.26 hearing for time to complete a bonding study. They argue there was good cause for a continuance, and it was in the childrens and the parents best interests for the court to consider a bonding study before deciding whether to terminate parental rights.
The juvenile court may grant a continuance only upon a showing of good cause. "[T]he court shall give substantial weight to a minors need for prompt resolution of his or her custody status . . . ." (§ 352, subd. (a).) "Continuances are discouraged [citation] and we reverse an order denying a continuance only on a showing of an abuse of discretion [citation]." (In re Ninfa S. (1998) 62 Cal.App.4th 808, 810-811.)
When reunification services have been terminated, the focus is on the needs of the child for permanency and stability, rather than on the parents interest in the care, custody and companionship of the child. (In re Angel B. (2002) 97 Cal.App.4th 454, 464.) Although a bonding study would have supplied additional information for the court to consider, the court was not required to consider a bonding study to assess whether there was a parent-child relationship. (See In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339.)
The social worker had been a social worker with the Agency for six years and had been trained to assess parent-child relationships. She observed six visitations between Araceli and the children. She described friendly, affectionate visits, but testified that in her opinion there was no parent-child relationship. The social worker reported the children separated easily from Araceli when visits ended, and the foster mother reported they did not ask for her between visits. The court indicated it found the social workers testimony and opinion to be credible. It was entitled to rely on her testimony and opinion. (See In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1420-1421.)
Further, Araceli could have requested a bonding study at the 18-month hearing on April 28, 2006, when the court terminated services and set the section 366.26 hearing, but she did not ask for one until the initial section 366.26 hearing on August 24. At that hearing, the court indicated it would not grant a continuance if the bonding study was not completed in time for the October 6 hearing.
At the time of the October 6, 2006 hearing the girls had been in foster care and living with the same foster family for nearly two years. It was not in their best interests to delay their opportunity for a permanent adoptive home. The court did not abuse its discretion by denying the request for a continuance.
II. The Courts Finding the Beneficial Parent-Child Relationship Exception of Section 366.26, Subdivision (c)(1)(A) Did Not Apply
Araceli asserts the court erred in terminating her parental rights because she consistently visited Monserrat and Yajaira, and there was substantial evidence they would have benefited from continuing their relationship with her.
Under section 366.26, subdivision (c)(1), if the court finds by clear and convincing evidence that a child is adoptable, it will terminate parental rights unless it finds termination would be detrimental because of one of five exceptions listed in section 366.26, subdivision (c)(1). Adoption is the permanent plan favored by the Legislature. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) If a child is found to be adoptable it becomes the parents burden to show termination of parental rights would be detrimental because one of the specified exceptions of section 366.26, subdivision (c)(1) exists. (In re Autumn H., supra, at p. 574.) Under the exception in section 366.26, subdivision (c)(1)(A), the parent must show termination would be detrimental in that "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." In In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534, the court noted "[c]ourts have required more than just frequent and loving contact to establish the requisite benefit for [the exception of section 366.26, subdivision (c)(1)(A)]."
"The [section 366.26, subdivision (c)(1)(A)] exception must be examined on a case-by-case basis, taking into account the many variables which affect a parent/child bond. The age of the child, the portion of the childs life spent in the parents custody, the positive or negative effect of interaction between the parent and child, and the childs particular needs are some of the variables which logically affect a parent/child bond." (Autumn H., supra, 27 Cal.App.4th at pp. 575-576.) In reviewing whether sufficient evidence supports the trial courts finding the appellate court reviews the evidence in the light most favorable to the courts order, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. (Id. at p. 576.)
In In re Autumn H., supra, 27 Cal.App.4th, at pages 575-577, this court found substantial evidence to support an order terminating parental rights. This court stated:
"In the context of the dependency scheme prescribed by the Legislature, we interpret the benefit from continuing the [parent/child] relationship exception to mean 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." (Id. at p. 575.)
As the court found, Araceli met the first prong of the section 366.26, subdivision (c)(1)A) exception by consistently visiting Monserrat and Yajaira. However, she did not show the girls would benefit by continuing their relationship with her to such a degree so as to outweigh the well-being they would gain from a permanent adoptive home.
Although Araceli had pleasant, loving visits with the girls, she did not show she occupied a parental role in their lives. Monserrat looked to both Araceli and her foster mother for attention during visits. Monserrat said she wanted to go with Araceli after one visit and lingered on the playground with her after another, but she did not cry when visits ended and separated easily from Araceli. She did not ask about her between visits. Yajaira sometimes had to be urged to interact with Araceli. At one visit, she refused to follow Aracelis direction to put on her shoes and, at times, she would rebuff Aracelis attempts to show her affection. When visits ended, Yajaira would walk with the foster mother or hold her hand. The social worker opined there was no parent-child relationship.
Araceli argues the girls would be harmed if their relationship with her were terminated. However, the girls improved in foster care. When Monserrat was first in the foster home, she had nightmares, hoarded food and was rebellious. After a few months the nightmares and food hoarding stopped and she became happy and eager to please. Araceli has not presented evidence the girls would be harmed if their relationships were terminated.
In re Jerome D. (2000) 84 Cal.App.4th 1200 does not support Aracelis position. In In re Jerome D., the issue was whether sufficient evidence supported the juvenile courts finding the child was adoptable. (Id. at p. 1205.) Here, there was no dispute about the childrens adoptability.
Aracelis reliance on In re Brandon C., supra, 71 Cal.App.4th 1530 also does not help her position. In re Brandon C., was in a different posture than the situation here. There, the juvenile court found the beneficial relationship exception did apply and the reviewing court, declining to reweigh the evidence, held there was substantial evidence to support that finding. (Id. at pp. 1537-1538.) We, also, do not reweigh the evidence and hold substantial evidence supports the courts finding the beneficial parent- child relationship exception to adoption of section 366.26, subdivision (c)( 1)(A) did not apply.
The children had lived with their foster parents for nearly two years. The social worker opined they did not have a parent child bond with Araceli. Although she and the children shared pleasant visits, she did not show a beneficial relationship with them that was so strong that it would outweigh the stability they would gain from a permanent adoptive home. Substantial evidence supports the courts finding the beneficial relationship exception of section 366.26, subdivision (c)(1)(A) did not apply.
DISPOSITION
The judgments are affirmed.
We Concur:
McINTYRE, J.
AARON, J. --------------- Notes: All statutory references are to the Welfare and Institutions Code.