Opinion
E041706
5-1-2007
In re Y.O., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY DEPARTMENT OF CHILDRENS SERVICES, Plaintiff and Respondent, v. I.V., Defendant and Appellant.
Brent Riggs, under appointment by the Court of Appeal, for Defendant and Appellant. Ruth E. Stringer, Acting County Counsel, and Dawn Stafford, Deputy County Counsel, for Plaintiff and Respondent. Michael D. Randall, under appointment by the Court of Appeal, for Minor.
NOT TO BE PUBLISHED
Appellant I.V. (mother) appeals from a Welfare and Institutions Code section 366.26 order terminating parental rights to her daughter, Y.O. (the child). On appeal, mother argues that: 1) she did not receive proper notice of the section 366.26 hearing; 2) the court abused its discretion in denying her request for a continuance of the section 366.26 hearing; 3) the court erred in finding that the child was adoptable; 4) the beneficial parental relationship exception (§ 366.26, subd. (c)(1)(A)) applied; and 5) the sibling relationship exception (§ 366.26, subd. (c)(1)(E)) applied. We disagree and affirm the order.
All further statutory references will be to the Welfare and Institutions Code unless otherwise indicated.
Counsel for the child filed a brief on March 7, 2007, joining in respondents brief and urging us to affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
On August 19, 2002, the San Bernardino County Department of Childrens Services (the department) filed a section 300 petition on behalf of the child, who was five years old at the time. The petition alleged that the child came within section 300, subdivisions (b) (failure to protect) and (j) (abuse of sibling). Specifically, the petition alleged that: 1) on July 29, 2002, mother failed to provide adequate care for the child, as well as her siblings, J.O., M.O., G.O., and R.O. (collectively, the children), in that she left them for hours without food or supervision; 2) when the children were left alone, R.O. suffered severe burns on his leg, arm, and face from a boiling pot of water; 3) mother failed to seek timely medical attention for R.O. after he was burned; 4) on August 15, 2002, mother failed to provide adequate food, clothing, and shelter for the children in that their home was found to be very dirty, had little to no food, was covered with dirty laundry, and had inadequate sleeping quarters for the child; 5) the childrens father (father) knew or should have known that mother was failing to adequately provide for the children, and he failed to protect them; 6) mother and father (the parents) suffered from alcohol and substance abuse, which greatly impeded their parenting abilities; 7) the parents had six prior referrals, since 1993, for sexual abuse, physical abuse, and general neglect; and 8) the children were at risk of physical harm and neglect similar to that of R.O., who was severely burned due to a lack of supervision.
Y.O.s siblings are not subjects of this appeal.
Father is not a party to this appeal.
The detention report stated that when the social worker went to investigate the referral regarding R.O.s burns, mothers home was found to be filthy. There was practically no food in the refrigerator and the social worker observed that the children were very thin. The paternal aunt was there and stated that mother was not providing food. The social worker asked mother about the sleeping arrangements, since the house had only one bedroom, and mother did not respond. The social worker photographed R.O.s burns, which were severe, and mother reported that no medical attention was sought for R.O. The juvenile court detained the children and ordered supervised visitation.
Jurisdiction/disposition
On September 6, 2002, the social worker filed a jurisdiction/disposition report, recommending that the children be declared wards of the court and that mother be provided with reunification services. The social worker reported that the department had previously initiated a voluntary family maintenance plan in February 2002, and that mothers family had had many prior referrals. The social worker opined that mother had poor parenting skills and difficulty comprehending the seriousness of the circumstances that led to the departments interventions. Mother believed she had done nothing wrong in the instant case. Additionally, the social worker reported that the children appeared to be in good health, even though they were malnourished. The children were doing well in their current placements and the social worker recommended that they stay in them.
At a pretrial settlement conference on October 10, 2002, the court found true all of the allegations in the section 300 petition, except that it made no findings as to the allegations that mother failed to seek timely medical attention for R.O. after he was burned, and that mother had a history of alcohol and substance abuse, which impeded her ability to parent. The court additionally noted that M.O. had run away. The court ordered supervised visitation for mother.
On November 7, 2002, the children were placed in the same foster home. However, a few months later, the children were separated into different placements, after R.O. got angry with the foster mother and tried to light a book on the burner to set the house on fire. The child was placed with Mary B. on February 22, 2003.
Six-month Status Review
The social worker filed a six-month status review report on March 28, 2003, recommending that mother continue to receive reunification services. The social worker reported that, since the childrens initial removal, they had been in several different placements. (M.O. had been in seven.) The social worker opined that mother played a big part in the children having to change placements. She would make false promises to them about going home, and then the children would get disappointed and take it out on the foster parents. She told them they did not have to mind their foster parents, since they were not their parents. The children were noncompliant, rebellious, and disruptive in their past placements, and their behavior escalated after visits with mother. The social worker stated that she had to regularly move the children to new placements within a week of visits with mother. The social worker reported that mother had visited the children regularly. However, because they had to be moved numerous times, it became difficult to arrange and supervise visits.
Additionally, regarding the child, the social worker reported that she was developmentally on target, improving in school, and had no major medical problems.
The social worker recommended that the children continue in their placements, since mother had made minimal progress in her case plan, and since she was incapable of handling the childrens emotional needs.
Mother was present at the six-month review hearing, along with a Spanish interpreter. The social worker informed the court that mother only spoke Spanish, but also that she (the social worker) spoke Spanish. The social worker testified that she communicated with mother in Spanish and that she had gone over the reunification plan with her. The court found that mother had failed to make substantive progress in her case plan and ordered the children to remain in their placements. The court also ordered supervised visitation to be a minimum of once per month.
12-month Status Review
The social worker prepared a 12-month status review report, recommending that the children be transitioned into mothers custody when appropriate and that mother participate in family maintenance services. Since the last hearing, mother had made progress in her case plan. She completed a parenting class and was maintaining a job. She was also participating in individual counseling.
The social worker reported that the children had made progress and were thriving in their placements. They were doing very well in school and were healthy. Mother had been visiting all the children on a regular basis. Since her visits became more appropriate, they were increased from one time per month to twice per month.
The social worker opined that mother was slowly learning to accept responsibility for her actions and understand the seriousness of the issues that led to the departments intervention. Her therapist, however, still questioned her judgment and ability to parent.
The 12-month hearing was held on October 15, 2003. The court maintained the children in their placements and ordered mother to participate in her case plan. The court authorized the social worker to transition the children into mothers home upon the therapists determination that mother was able to properly care for them. The matter was continued for an 18-month review hearing.
18-month Status Review
The social worker filed an 18-month status review report, in which she recommended that the children be placed in mothers custody on a family maintenance plan. Since the last court hearing, mother had made good progress by obtaining and maintaining appropriate housing and by participating in individual counseling. The social worker reported that the children had also improved since they began attending weekly individual counseling. They were less defiant, more cooperative, and more mature. They were doing well in their placements and in school. Mother visited the children regularly and they enjoyed their visits with her. Mother had made great efforts to give positive encouragement to the children, and the children now expressed their affection to mother.
An 18-month review hearing was held on April 15, 2004. The hearing was continued at the departments request, in order to transition the children into mothers home by allowing unsupervised overnight visits each weekend.
After approximately one month, the social worker filed an addendum report to change the recommendation. Mother had failed to seek medical attention for a bad infection on her leg, indicating her negligence in seeking medical care. She also admitted to her therapist that she lived with her boyfriend and allowed him to care for the children while she was at work. Mother failed to inform the social worker about the boyfriend and was extremely evasive about providing information about him. Mother failed to comply with the social workers request to have the boyfriend live-scanned. Furthermore, the children stated that they were left alone to care for each other more than once. The child reported that her brother, R.O., had hit her numerous times. Also, during the last visit, he got on top of her against her will, kissed her on the lips, and rubbed himself against her. Mother denied that this incident occurred and failed to take any responsibility for her absence and failure to arrange adequate child care. At the further 18-month review, the social worker changed the recommendation to termination of services. Mother objected and the matter was continued.
At a pretrial settlement conference on June 10, 2004, the court authorized the social worker to return the children (except R.O.) to mother, if appropriate.
At a further 18-month review hearing held on June 21, 2004, the court ordered that the child, J.O., and G.O. be placed in mothers home on family maintenance, with no unsupervised contact between the child and R.O. The court terminated reunification services as to R.O. and M.O and ordered long-term foster care for them. The court also ordered mother to continue her individual therapy, as well as begin family therapy.
Section 342 Petition
On October 8, 2004, the social worker filed a section 342 petition, alleging that the child came within section 300, subdivisions (b) and (j). Specifically, the petition alleged that: 1) on September 25, 2004, mother left the child, J.O., and G.O. home alone, resulting in the sexual exploitation of G.O., and placing the child at risk of abuse; 2) mother had a substantial history of failing to protect her children; 3) mother was incapable of providing adequate care and supervision to J.O., as evidenced by him running away while in her custody; and 4) R.O. and M.O. were in long-term placements.
The detention report stated that when mother left the home to run errands, some teenage boys who lived in the same apartment complex knocked on their door. G.O. allowed one of them to enter the apartment. She and the teen decided to have sex, so G.O. locked the child, who was seven years old at the time, out of the apartment. On that same day, J.O. ran away from home. (He was found prior to the jurisdiction/disposition hearing.)
The court detained the child, J.O., and G.O., and placed them in the departments custody.
Jurisdiction/disposition
The social worker filed a jurisdiction/disposition report recommending that mothers services as to the child, J.O., and G.O. be terminated. The social worker noted that the children were removed from mothers custody on August 15, 2002, due to mothers failure to provide adequate care and supervision. Mother was provided with reunification services and then family maintenance services for more than 10 months. The children were removed from mothers custody on October 6, 2004, because she again left them unsupervised. The social worker opined that mother had not benefited from all the services provided to her, since she continued her negligent behavior. The social worker also noted that M.O.s whereabouts were unknown, but it was suspected that she was in Mexico.
The court held a contested jurisdiction/disposition hearing on December 3, 2004. Mother was present with a Spanish interpreter present to assist her. The court declared the child, J.O., and G.O. dependents of the court, and ordered that no reunification services be provided to mother. The court set a section 366.26 hearing for April 5, 2005. The court stated that it set a hearing to make a permanent plan for the child, J.O., and G.O., and advised mother of her writ rights.
Section 366.26The parties, including mothers counsel and mother, were served with a notice of the section 366.26 hearing. The notice stated: "At the hearing the court will terminate parental rights and free the children for adoption, or establish legal guardianship, or place the children in long-term foster care." The notice further stated that the social worker was recommending termination of parental rights and the implementation of a plan of adoption. A separate page of the notice stated that "[a]t the hearing the court may: terminate parental rights and free the children for adoption or establish legal guardianship or place the children in long-term foster care."
The social worker filed a section 366.26 report on March 25, 2005, recommending long-term foster care for J.O. and G.O., and legal guardianship for the child. The social worker noted that the child was doing exceptionally well in her placement with Mary B., and Mary B. felt that she was a very well-behaved child. There were no signs of emotional or mental problems. She was in good health and was developmentally on target. She was doing excellent work in school and enjoyed it. The child had a strong and healthy bond with Mary B.
The proposed permanent plan for the child was legal guardianship with Mary B. The social worker was still exploring the possibility of Mary B. adopting the child, but wanted to exhaust all other relative placements first.
The social worker noted that mother was visiting the child on a regular basis. However, in the past three months, mother had not requested any visits. The social worker arranged sibling visitation on a monthly basis. The child said she enjoyed visiting with mother and her siblings, but did not ask about mother or ask to have visits with her.
A section 366.26 hearing was held on April 5, 2005, and mother was present with an interpreter. The court indicated that it did not have her current address and instructed her to complete a permanent address form. The social worker then informed the court that the department had changed its recommendation to long-term foster care, primarily because mother improperly influenced Mary B. to change her mind about the legal guardianship. The court continued the hearing, in order for G.O. to appear, and ordered mother to return to court on April 21, 2005.
The social worker filed an addendum report stating that she asked Mary B. if she would still consider becoming the childs legal guardian. Mary B. declined stating that: 1) she (Mary B.) was too old; and 2) she did not think the child would be safe if the child continued to have contact with mother because she feared that mother would take the child to Mexico. She stated that mother was always telling the child that she would soon return to her custody; thus, the child would never stabilize in any placement. The social worker was suspicious of the disappearance of M.O. and R.O., who was also missing, and strongly believed that mother aided them in moving to Mexico. The social worker talked to G.O., who threatened to run away from her placement. G.O. stated that she wanted to be "rescued by [her] mother, like [R.O.] and [M.O.]."
On April 21, 2005, mother was present at the hearing with an interpreter and her counsel. She agreed with the plan of long-term foster care.
A contested section 366.26 hearing was held on June 6, 2005, and mother was present with an interpreter. The court ordered long-term foster care for the child, J.O., and G.O. The court also ordered visitation between mother and the child to be twice per month for two hours, supervised by the paternal grandmother. The court ordered mother back in court on December 6, 2005.
On August 26, 2005, there was a nonappearance review. The social worker informed the court that, on August 1, 2005, Mary B. left on vacation for two weeks. The child was consequently placed in the home of Mr. and Mrs. H. Mary B. declined to take the child back, since she was unable to commit to the child on a permanent basis. The home of Mr. and Mrs. H. then became the childs long-term foster home.
Permanency Plan Review (PPR)
The social worker filed a status review report for the December 6, 2005, hearing. She reported that mother helped G.O. run away from her group home placement. G.O. ran away and mother was seen by the group home staff helping G.O. load her bags into the trunk of her car. G.O. has been missing since then. Mother denied helping G.O. run away, but she said she had a strong feeling that G.O. was in Mexico with M.O. and R.O.
The child was reportedly doing very well in her new placement and wanted to live there long term. Mr. and Mrs. H. expressed their interest in becoming the childs legal guardians and possibly adopting her. The child was doing well in school and did not display any major medical, emotional, or behavioral problems. She never asked to see mother and did not seem disappointed when she did not have visits with her. When she did have visits with mother, they could not communicate, since the child spoke English and mother spoke primarily Spanish. The social worker noted that, recently, mother failed to confirm scheduled visits or show up. Her last visit with the child was on October 28, 2005. The social worker recommended that mothers visits be limited to once per month.
At the December 6, 2005, hearing, the court found that long-term foster care continued to be the most appropriate plan. It also left the visitation order of twice per month intact, with a warning to mother that visitation would be reduced if she missed any visits without good cause. The court continued the PPR to June 6, 2006.
At a March 23, 2006, nonappearance review, the court noted that the child was placed back with Mary B. on March 13, 2006, due to Mr. and Mrs. H. losing their home. The child handled the change well and was happy to return to Mary B.s home.
In a June 6, 2006, status review report, the social worker recommended that the childs plan of long-term foster care be changed to adoption. In the childs absence, Mary B. realized that she missed the child terribly and that she wanted to adopt her. The child told the social worker several times that she wanted to be adopted by Mary B. The child was extremely bonded with Mary B. and referred to her as "Mom."
Regarding visitation, the social worker reported that mother was visiting the child on a regular basis, but the visits were uneventful. The child had to rely on the social worker to translate for her. The child would often get frustrated and stay quiet for the remainder of the visit. The child did not show great interest in mother or her siblings, and was eager to return to Mary B. after the visits. On several occasions, the child asked not to visit with her siblings and mother, so that she could be with Mary B. The social worker opined that the child clearly had no bond with mother, since she could not communicate with her.
Mother appeared at the June 6, 2006, PPR hearing with her counsel and an interpreter. The court set a section 366.26 hearing for September 13, 2006, to determine the most appropriate modification to the permanent plan. The court found that the recommendation was not limited to legal guardianship. The court addressed mother and stated: "Ive set a hearing to make a different permanent plan for [the child], one that can involve the termination of your parental rights. . . . [¶] By me advising you of this today, its the same as if you were personally served with the notice. And your failure to appear on that date would result in the matter going forward in your absence."
On June 19, 2006, mother appeared with counsel and an interpreter for a settlement conference regarding visitation. The court confirmed the September 13, 2006, section 366.26 hearing and ordered mother to return then.
Notice of the section 366.26 hearing was mailed to mother on June 30, 2006. The notice stated that the social worker recommended termination of parental rights and a plan of adoption. Furthermore, notice of the section 366.26 hearing was also sent to mother by certified mail on June 29, 2006. At the July 7, 2006, notice review hearing, the court found that notice was complete.
Adoption Assessment and Section 366.26
The social worker filed a section 366.26 report on August 15, 2006, stating that the child was an appropriate child to be adopted. The report contained an adoptability assessment, which stated that the child was a pretty, nine year old who was in good health. The social worker further described the child as calm and patient, and generally in good spirits. She had no behavioral or mental problems. The social worker explained that the child was initially placed with Mary B., but Mary B. was not interested in adopting her because Mary B. was 61 years old. However, after the child left Mary B.s residence, Mary B. realized that she had formed an intense bond with the child. When the childs other placement failed, Mary B. committed to adopting the child, without hesitation. The child similarly wished to be adopted by Mary B. The child reported that it was difficult for her to communicate and bond with mother because of the language barrier.
The social worker described Mary B. as "an attractive, youthful, sixty-one year old Caucasian female" who was in good health and was financially secure. She lived in a beautifully maintained two bedroom house, in a middle class neighborhood. The child had her own bedroom. Mary B. stated that she loved the child, that the child was part of her family, and that she wanted to provide her with a permanent home. The social worker concluded that the likelihood of the child being adopted was great.
Regarding visitation, the social worker reported that mother had, for the most part, visited the child regularly. However, the visits were awkward since the social worker had to translate everything. At times, mother scolded the child for not understanding or speaking Spanish. The majority of the visits were spent holding hands silently and going window shopping.
At the section 366.26 hearing on September 13, 2006, mother was not present, but was represented by counsel. Mothers counsel acknowledged that mother was not present, but pointed out that mother generally appeared at all of the hearings. She stated that mother had a strong opposition to the recommendation of adoption. Thus, at counsels request, the court set the matter contested and continued the hearing to October 3, 2006, with a pretrial settlement conference set for September 26, 2006. Mother failed to appear at the pretrial settlement conference.
Mother also failed to appear at the contested hearing on October 3, 2006. Since she was not present, mothers counsel requested a continuance. The court noted that mother had not been present in court since June 19. The court asked mothers counsel if she had any information as to mothers absence and counsel did not. The court then denied the continuance. The court received into evidence the adoption assessment and section 366.26 reports dated September 13, 2006. Mothers counsel had no affirmative evidence to present, but objected to the termination of parental rights and requested a plan of legal guardianship. The court found that it was likely that the child would be adopted, terminated parental rights, and ordered the permanent plan of adoption.
ANALYSIS
I. Mother Was Given Notice of the Section 366.26 Hearing
Mother argues that she was not given notice of the section 366.26 hearing because attempts to advise her of the original September 13, 2006, hearing fell short of the requirements in section 294; further, she was never given notice of the continued October 3, 2006, hearing. We disagree.
Section 294 sets forth the statutory requirements and procedures for providing notice of a section 366.26 hearing. Section 294, subdivision (e), provides that the notice shall containing the following information: The date, time, and place of the hearing, the right to appear, the parents right to counsel, the nature of the proceedings, the recommendation of the supervising agency, and a statement that the court is required to select a permanent plan of adoption, legal guardianship, or long-term foster care. Furthermore, section 294, subdivision (d), provides that "once the court has made the initial finding that notice has properly been given to the parent . . . subsequent notice for any continuation of a Section 366.26 hearing may be by first-class mail to any last known address . . . or by any other means that the court determines is reasonably calculated, under any circumstance, to provide notice of the continued hearing." Section 294, subdivision (j), provides that if the attorney of record is present at the time the court schedules a hearing, no further notice is required.
"In general, due process requires only that the parent receive notice `"`reasonably calculated, under all the circumstances, to apprise interested parties of the [continued] pendency of the action and afford them an opportunity to present their objections." [Citation.]" (In re J.I. (2003) 108 Cal.App.4th 903, 909.)
Here, mother was given ample notice of the section 366.26 hearing. She also had every opportunity to present her objections, as she was represented by counsel at the original section 366.26 hearing and the contested section 366.26 hearing. Mother was present in court on June 6, 2006, with counsel and an interpreter, when the court orally gave her notice of the section 366.26 hearing set for September 13, 2006. The court told mother that it set the hearing to make a different permanent plan, which could involve the termination of her parental rights. The court also warned mother that if she failed to appear, the matter would proceed in her absence. Mother appeared in court on June 19, 2006, for a settlement conference and the court confirmed the section 366.26 hearing date, ordering mother to return to court then. In addition, mother was sent notice of the section 366.26 hearing on June 30, 2006, by first class mail. The written notice included all of the information required by section 294. The first page of the notice form specifically stated that "[a]t the hearing the court will terminate parental rights and free the children for adoption, or establish legal guardianship or identified placement with a specific goal." A separate page entitled "IMPORTANT NOTICE" stated that, at the section 366.26 hearing, "the court may: terminate parental rights and free the child for adoption or establish legal guardianship or place the children in a planned permanent living arrangement." Mother was also sent notice of the hearing by certified mail on June 29, 2006. The court found that notice was complete at the notice review hearing on July 7, 2006.
Despite all of these notices, and the courts warning that if she failed to appear the matter would proceed in her absence, mother failed to appear at the section 366.26 hearing on September 13, 2006. She was represented by counsel, however. Mothers counsel informed the court that mother objected to the recommendation of adoption and requested that the court set the matter contested for October 3, 2006. Mother failed to appear in court again on October 3, 2006, but she was represented by counsel. Just as the court had warned mother, it proceeded with the case in her absence. Mother had proper notice, but simply failed to appear at either section 366.26 hearing.
Mother first contends that the notice of the September 13, 2006, hearing that was mailed to her did not meet the statutory notice requirement because it was in English, even though she only spoke Spanish. However, section 294, subdivision (f)(1), permits notice to be given orally by the court, if the parent is present at the hearing at which the court schedules the hearing. Mother was present in court with a Spanish interpreter on June 6, 2006, and the court gave her oral notice of the section 366.26 hearing.
Mother next claims that the written notice mailed to her contained inconsistent statements of the statutory requirement of "[a] statement that, at the time of the hearing, the court is required to select a permanent plan of adoption, legal guardianship, or long term foster care for the child." (§ 294, subd. (e)(6).) She complains that the notice was confusing because the first page of the notice stated: "At the hearing the court will terminate parental rights and free the children for adoption, or establish legal guardianship or identified placement with a specific goal." (Emphasis added by mother.) Then, the next page of the notice stated: "At the hearing the court may: terminate parental rights and free the child for adoption or establish legal guardianship or place the children in a planned permanent living arrangement." (Emphasis added by mother.) We see no inconsistency. A careful and complete reading of both paragraphs indicates that, at the hearing, the court must take one of three actions—terminate parental rights and free the child for adoption, or establish legal guardianship, or place the child in another permanent arrangement.
Mother further argues that notices given to her failed to adequately apprise her of the stakes involved at the section 366.26 hearing. We disagree. All of the notices, oral and written, warned mother that her parental rights could be terminated and that the child could be freed for adoption. Moreover, at the section 366.26 hearing on September 13, 2006, mothers counsel informed the court that mother had a "strong opposition to the recommendation" of adoption. This objection demonstrated that mother understood that she could lose her parental rights over the child.
Mother next argues that she was never given the required notice of the continued October 3, 2006, hearing. However, section 294, subdivision (j), provides that if the attorney of record is present at the time the court schedules a hearing, no further notice is required. Mother suggests that the legislative history shows that section 294, subdivision (j), was intended to be limited to the initial setting of a section 366.26 hearing and did not include a continued hearing date. There is no apparent limitation. Moreover, we find mothers argument disingenuous, considering that the court set the matter contested and thereby continued the section 366.26 hearing at mothers counsels request.
Ultimately, mother contends that the failure to provide notice of the October 3, 2006, hearing requires reversal of the order terminating parental rights. We conclude that any error was harmless. Mother was represented by counsel throughout the proceedings, including both section 366.26 hearings. Mothers counsel objected to the termination of parental rights. Moreover, even if mother had appeared at the section 366.26 hearing, she could not have presented any evidence that would have changed the outcome of the proceedings. (See § IV, post.)
II. The Court Properly Denied Mothers Request for a Continuance
Mother argues that the court abused its discretion in denying her request for a continuance at the October 3, 2006, hearing. We find no abuse of discretion.
A. Standard of Review
"The juvenile court may continue a dependency hearing at the request of a parent for good cause and only for the time shown to be necessary. [Citations.] Courts have interpreted this policy to be an express discouragement of continuances. [Citation.] The courts denial of a request for continuance will not be overturned on appeal absent an abuse of discretion. [Citation.]" (In re Karla C. (2003) 113 Cal.App.4th 166, 179-180.)
B. The Court Did Not Abuse Its Discretion
Mother failed to appear at the section 366.26 hearing on September 13, 2006, and again on October 3, 2006. At the October 3, 2006, hearing, mothers counsel requested a continuance simply because mother was not present. When the court asked if mothers counsel had any information about mothers absence, counsel said no. The court properly denied the continuance. In view of the lack of explanation for mothers absence, there was no good cause for continuing the hearing. Moreover, as the court noted before denying the continuance, mother had not made a court appearance since June 19, 2006. Under these circumstances, the court did not abuse its discretion.
III. The Court Properly Found That the Child Was Adoptable
Mother contends that the courts finding of adoptability must be set aside because it was not supported by substantial evidence. We disagree.
"We review the factual basis of a termination order to determine whether the record contains substantial evidence from which a reasonable trier of fact could find a factual basis for termination by clear and convincing evidence. [Citation.]" (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) "The issue of adoptability posed in a section 366.26 hearing focuses on the minor, e.g., whether the minors age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor. [Citations.] . . . [¶] Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minors age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parents willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family." (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650.)
Here, the adoptability assessment report stated that the child was a pretty, nine year old who was in good health. The report described the child as calm and patient, and generally in good spirits. She had no behavioral or mental problems. The child was bonded with Mary B. and wished to be adopted by her. The report explained that the child was initially placed with Mary B., but she was not interested in adopting the child because she (Mary B.) was 61 years old. However, after the child was placed in another home, Mary B. realized that she had formed an intense bond with the child. When the childs other placement failed, Mary B. immediately committed to adopting the child. By the time of the section 366.26 hearing, the child had lived with Mary B., for over a year, in total. Mary B. stated that she loved the child, that the child was part of her family, and that she wanted to provide her with a permanent home. Mary B. is not likely to be dissuaded.
Mother argues that the social workers adoptability finding depended upon the existence of Mary B.s willingness to adopt the child, rather than on the child herself. She points out that, in 2005, the social worker recommended long-term foster care with Mary B. as the permanent plan, rather than adoption. Mother further points to an earlier psychological report, which assessed the child having poor social skills, "low average intelligence," as well as other emotional problems.
However, the most recent evidence showed that the child had progressed and improved since the psychological evaluation was done and there was ample evidence upon which to base an adoptability finding. Moreover, at the time the social worker recommended long-term foster care with Mary B., she was exploring relative placements and was still considering the possibility of Mary B. adopting the child.
Mother further claims that the childs age, physical condition, and emotional state made it difficult to find someone willing to adopt her. In fact, the record shows that both Mary B. and Mr. and Mrs. H., with whom the child was placed for a while, wanted to adopt her. "[T]he fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minors age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor." (In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.) Their willingness to adopt the child indicated that the child was likely to be adopted. (Id. at p. 1650.)
We conclude that the court properly found clear and convincing evidence that the child was adoptable, and that it was likely the child would be adopted.
IV. Neither the Beneficial Parental Relationship Exception Nor the Sibling Exception Applied
Mother contends that the court erred in not applying the beneficial parental relationship exception under section 366.26, subdivision (c)(1)(A), or the sibling exception under subdivision (c)(1)(E). We disagree.
In general, at a section 366.26 hearing, if the juvenile court finds that the child is adoptable, it must terminate parental rights. (§ 366.26, subd. (c)(1).) This rule, however, is subject to six statutory exceptions. (§ 366.26, subds. (c)(1)(A)-(F).)
A. The Beneficial Parental Relationship
The beneficial parental relationship exception in section 366.26, subdivision (c)(1)(A), applies when the parents "have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." The phrase "benefit from continuing the relationship" refers to a parent/child relationship that "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. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parents rights are not terminated." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) It is the parents burden to show that the beneficial parental relationship exception applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1345.)
Here, mother claims that this exception applies and references the 18-month status review report, which was written in April 2004, to show that she visited the child regularly, that she made efforts to give positive encouragement to the child, and that the child expressed affection to her and could not wait to return home to her. Mother simply concludes that she "has not been a perfect mother, but she has tried to do what is best for her children and to keep her family together." She then blames the department for placing the child with Mary B., who only spoke English, instead of trying to place her in an environment that "duplicate[d] her struggling Spanish-speaking mothers situation." As a result, she argues that this "failure of the Agency drove a potential wedge between" her and the child, since they can no longer communicate.
None of mothers discussion of the beneficial parental relationship exception even begins to demonstrate that her relationship with the child promoted the childs well-being "to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Mother has proffered no evidence to support a finding that the child had a "substantial, positive emotional attachment [with her] such that the child would be greatly harmed" if the relationship was severed. (Ibid.) To the contrary, the most recent reports showed that the child had no bond with mother and did not ask to visit her. While the child cared for mother, she wished to be adopted by Mary B.
We conclude that the court properly declined to apply the beneficial parental relationship exception under section 366.26, subdivision (c)(1)(A).
B. The Sibling Exception
"[T]he `sibling relationship exception contains strong language creating a heavy burden for the party opposing adoption. It only applies when the juvenile court determines that there is a "compelling reason" for concluding that the termination of parental rights would be "detrimental" to the child due to "substantial interference" with a sibling relationship. [Citations.] Indeed, even if adoption would interfere with a strong sibling relationship, the court must nevertheless weigh the benefit to the child of continuing the sibling relationship against the benefit the child would receive by gaining a permanent home through adoption. [Citation.]" (In re Celine R. (2003) 31 Cal.4th 45, 61.)
The court properly determined that there was insufficient evidence to establish that the benefits of the childs sibling relationships outweighed the benefits of her being adopted. There was no affirmative evidence presented at the section 366.26 hearing. Similarly, on appeal, mother merely makes the unsupported assertion that her children "had strong bonds with each other." In fact, the record shows that all of the childs siblings, except for J.O., reportedly now live in Mexico. J.O. lives in the United States, and has "verbalized interest in having some contact with [the child] in the future." In sum, the court had no compelling reason to conclude that the termination of parental rights would be detrimental to the child because of any interference with a strong sibling relationship. (In re Celine R., supra, 31 Cal.4th at p. 61.)
Ultimately, the benefit of the permanency of adoption was not outweighed by the benefit of continuing the sibling relationships. Accordingly, the court properly found that the sibling exception did not apply to preclude the child from being adopted.
DISPOSITION
The judgment is affirmed.
We concur:
RAMIREZ, P.J.
KING, J.