Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of San Diego County,Super. Ct. No. J515434A-B Carol Isackson, Judge.
HALLER, Acting P. J.
Maria B. appeals orders terminating her parental rights to her children, Z.B. (Z.) and R.B., Jr. (R.), and an order denying her Welfare and Institutions Code section 388 petition. She contends substantial evidence does not support a finding the children are
All statutory references are to the Welfare and Institutions Code.
clearly adoptable, and the court erred by not applying the exceptions to adoption of section 366.26, subdivisions (c)(1)(A) and (c)(1)(D) and by not granting her request to continue the hearing on her section 388 petition. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On May 10, 2004, the San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of three-year-old Z. and one-year-old R., alleging they were at risk because Maria was schizophrenic, had active hallucinations and was not taking her medications. The petition also alleged Maria was not concerned that Z. may have taken Maria's medication and was willing to leave her with the social worker when paramedics were on their way to the home. The social worker reported when she went to the home, Maria was having hallucinations and admitted she was not taking her medications, the children were lethargic and nonresponsive and Z. was holding an open bottle of Trazadone. She said the children's father, R.B., Sr., was aware of Maria's hallucinations when he left the children with her. The court ordered the children detained in out-of-home care.
The parents submitted to the allegations of the petition and the court found them true. The social worker reported that, subsequently, on June 1, 2004, Maria was held in a mental hospital as a danger to herself and others. Upon discharge, the psychiatrist diagnosed her condition as a schizoaffective disorder, bipolar type, with a history of hypothyroidism and methamphetamine abuse, chronic psychiatric illness, noncompliant with treatment, and poor social support. The court declared the children dependents, ordered them placed in relative care and for Maria to have a psychological evaluation and participate in individual therapy and parenting education.
Subsequently, the social worker reported Maria's treating psychiatrist was helping her manage her medications. The children were living with their maternal aunt, Isabel B., and the parents were having regular visits. Isabel said she would adopt Z. and R. if necessary.
Maria told the psychologist who evaluated her she hears voices even when she is taking medication. The psychologist diagnosed her with schizophrenia, paranoid type. He recommended intensive psychological treatment, weekly therapeutic sessions to ensure medication compliance and participation in a medication socialization group. He said visits should be supervised.
At the six-month review hearing on January 4, 2005, and the 12-month hearing on July 6, 2005, the court continued the children as dependents in relative care and ordered services be continued.
The social worker reported Maria was visiting the children regularly and providing some financial assistance, but she denied the problems that had led to their removal from her custody and was not adequately involved in mental health treatment. The children continued to live with Isabel. At the 18-month hearing on January 10, 2006, the court continued the children as dependents placed in relative care, terminated reunification services and set a section 366.26 hearing.
The social worker opined the children were adoptable and said Isabel was willing to adopt them. If she were unable to adopt, there was one approved adoptive family willing to consider adopting both children, eight families interested in adopting a child like Z. and seven interested in adopting a child like R. The social worker had observed five visits. She said Maria had maintained consistent visitation and contact, but sometimes her behavior during visits was inappropriate. She said the children were not overly excited to see Maria and separated easily from her when visits ended. The social worker concluded Maria lacked parenting skills and was not able to provide regular care.
On May 22, 2006, the court granted the Agency's request for a 90-day continuance because Isabel said she was no longer willing to adopt the children. On August 24, 2006, Maria petitioned under section 388, requesting the children be returned to her care. She then withdrew the motion. At the same hearing, the court granted the Agency's request for a second 90-day continuance. Isabel was not willing to adopt and the social worker had not been able to locate another adoptive placement. The social worker said R. was showing increasingly aggressive behavior and it was necessary for the children to have current developmental evaluations to help in finding an adoptive home.
In October 2006 the court granted the Agency's request to include the children in adoption matching activities because the social worker had been unable to find an adoptive home. However, on October 31, 2006, the social worker reported Isabel had recommitted to adopting the children if parental rights were terminated.
On November 3, 2006, Maria filed a second section 388 petition, requesting the court place the children with her with family maintenance services.
At the hearing on Maria's section 388 petition on January 19, 2007, the court denied her request to continue the hearing to allow her psychiatrist to testify. It was stipulated that if the psychiatrist were to testify, she would say Maria had been consistent in taking her medication. Maria testified the children were removed because she did not take her medication one night. She said she had been diagnosed with schizophrenia and had consistently taken her medication and thought it was working. She said her mother or her husband reminded her to take it. She testified she met with her psychiatrist once each month for a medical evaluation, but it was difficult to meet with her therapist because of her schedule and the location of the therapist's office. She was not seeing a therapist at the time of the hearing.
The court found Maria had not met her burden to show a change of circumstances and no evidence was presented to show returning the children to Maria would be in their best interests.
For the section 366.26 hearing, Maria testified she visited the children regularly and did not want them to be adopted because she loved them and they needed to be with her. She said she could be an appropriate parent and provide for them.
The court found by clear and convincing evidence it was likely the children would be adopted if parental rights were terminated. It noted Isabel and her husband, Carlos M., had cared for Z. and R. for a long time, and even though at one time they had expressed an unwillingness to adopt, they were clearly committed to them. The court found the Agency had shown that even if this family were unable to adopt, there were other available families. The court found none of the statutory exceptions to adoption applied. It terminated parental rights, determined adoption would be the permanent plan and named Isabel and Carlos as the prospective adoptive parents.
DISCUSSION
I. The Children's Adoptability
Maria contends the court erred in terminating her parental rights because substantial evidence does not support a finding the children were likely to be adopted. She notes at one time Isabel stated she was not willing to adopt the children and the Agency was unable to find potential adoptive families. She suggests her schizophrenia was a probable reason for this difficulty. She argues the children should not be separated, and because R. has shown some behavioral problems, it is not likely they will be adopted together.
Before a court frees a child for adoption it must determine by clear and convincing evidence the child is likely to be adopted within a reasonable time. (§ 366.26, subd. (c)(1); In re Jennilee T. (1992) 3 Cal.App.4th 212, 223.) "In resolving this issue, the court focuses on the child─whether his age, physical condition and emotional state make it difficult to find a person willing to adopt him." (In re David H. (1995) 33 Cal.App.4th 368, 378.) Whether there is a prospective adoptive family is a factor for the court to consider, but is not determinative by itself. (Ibid.)
A reviewing court must uphold a juvenile court's findings and orders if they are supported by substantial evidence. (In re Amos L. (1981) 124 Cal.App.3d 1031, 1036-1037.) "[W]e must indulge in all reasonable inferences to support the findings of the juvenile court [citation], and we must also '. . . view the record in the light most favorable to the orders of the juvenile court.' " (In re Luwanna S. (1973) 31 Cal.App.3d 112, 114.) The appellant bears the burden to show the evidence is insufficient to support the court's findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
Substantial evidence supports the court's finding the children were likely to be adopted. At the time of the hearing, the children had been living with Isabel for two and one-half years. As the juvenile court observed, Isabel and Carlos were clearly committed to them. Although from May until October 2006 the social worker reported that Isabel said she was unwilling to adopt the children, on October 31, 2006, she reported Isabel was committed to adopting the children, and after a lengthy discussion with her, it was decided the Agency would move forward with the adoptive home study. Again, in the January 19, 2007 report, the social worker reported Isabel and Carlos were committed to adopting the children, stating "[t]he caregivers are relatives who have demonstrated a commitment to parenting [Z.] and [R.] and also to facilitating visits between them and their parents. They are committed to adopting the children should parental rights be terminated . . . ." No evidence was presented at the hearing to show Isabel and Carlos were hesitant about their recommitment to adoption, and the court designated them the prospective adoptive parents under section 366.26, subdivision (n)(1).
No evidence was presented to support Maria's suggestions that because of her history of schizophrenia it would be difficult to find a suitable adoptive home or that because of R.'s recent acting out behavior the children were not adoptable as a sibling group. The social worker reported they were in good health and were developing normally. Also, Isabel and Carlos were able to manage R. when he sometimes acted out. There was no evidence that Isabel and Carlos would not adopt. In addition, the social worker reported there were other adoptive homes the Agency could consider as homes for the children. The court's finding the children were adoptable is well supported.
II. The Beneficial Parent-Child Relationship Exception to Adoption:
Maria asserts the court erred by finding the beneficial parent-child relationship exception to adoption of section 366.26, subdivision (c)(1)(A) did not apply in this case. She argues the exception applies because she visited the children consistently throughout their dependencies and they would benefit from continuing the parent-child relationships.
Adoption is the permanent plan favored by the Legislature. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) If the court finds by clear and convincing evidence that a child is 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, 27Cal.App.4th at p. 574.) Under the exception in section 355.26, 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)]."
In reviewing whether sufficient evidence supports the trial court's finding, the appellate court reviews the evidence in the light most favorable to the court's order, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)
Substantial evidence supports the juvenile court's finding the beneficial relationship exception of section 366.26, subdivision (c)(1)(A) did not apply. Although Maria maintained regular visitation and contact with Z. and R., she did not occupy a parental role. Reports concerning visits indicate she had a difficult time managing the children and that she lacked parenting skills. The children separated easily from her at the end of visits and even had to be reminded to say goodbye to her. The juvenile court observed she had a history of being inconsistent about taking her medication and had minimized her inconsistency during the hearing on her section 388 petition when she said the children had been removed when she forgot to take her medication just one time. Maria had been offered services over a long period, but had not developed sufficient parenting skills to be able to provide for their daily care. The court did not err in finding the benefit to the children of continuing their relationships with Maria did not outweigh the benefit they would gain from a permanent adoptive home.
III. The Exception to Adoption of Section 366.26, Subdivision (c)(1)(D):
Maria maintains the court committed reversible error by finding that section 366.26, subdivision (c)(1)(D) did not apply. She argues because Isabel had stated at one time that she was not willing to adopt the children, she might change her mind again and decide she is unwilling to adopt. She also claims the fact Isabel did not testify at the hearing further undermines confidence in her desire to adopt the children.
Section 366.26, subdivision (c)(1)(D) provides an exception to adoption when
"[t]he child is living with a relative . . . who is unable or unwilling to adopt the child because of exceptional circumstances, that do not include an unwillingness to accept legal or financial responsibility for the child, but who is willing and capable of providing the child with a stable and permanent environment and the removal of the child from the physical custody of his or her relative . . . would be detrimental to the emotional well-being of the child." (§ 366.26, subd. (c)(1)(D).)
Maria presented no evidence at the hearing that Isabel was unable or unwilling to adopt Z. and R. Although some months earlier she had said she was unwilling to adopt them, at the time of the hearing, the social worker reported Isabel was committed to adopting the children. There was no evidence the Agency had in any way pressured her to make this decision. The court did not err in not finding the exception of section 366.26, subdivision (c)(1)(D) applied.
IV. Denial of Request for a Continuance of the Section 388 Hearing:
Maria contends the court erred by not briefly continuing the section 388 petition to secure the testimony of her psychiatrist. She argues the psychiatrist's testimony about her consistency in taking her medications was good cause to continue the hearing.
The juvenile court may grant a continuance only on a showing of good cause. "[T]he court shall give substantial weight to a minor's 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.)
The court did not abuse its discretion by denying the motion for a continuance. Maria's counsel said he had spoken with the psychiatrist two months before the hearing when he filed the section 388 petition in November 2006. At the time of the hearing in January, he had had two months to subpoena her. Further, the parties stipulated that had the psychiatrist testified, she would have said Maria had been consistent in taking her medications. The court accepted a letter from the psychiatrist and her treatment notes into evidence. Maria has not shown prejudice or an abuse of the court's discretion.
DISPOSITION
The orders are affirmed.
WE CONCUR: O'ROURKE, J., IRION, J.