Opinion
B232444
02-01-2012
In re SELINA A., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. BERTHA Z. and MICHAEL A., Defendants and Appellants.
Marsha F. Levine, under appointment by the Court of Appeal, for Defendant and Appellant Bertha Z. Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant Michael A. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Kim Nemoy, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. CK51837)
APPEAL from an order of the Superior Court of Los Angeles County, Sherri Sobel, Referee. Affirmed.
Marsha F. Levine, under appointment by the Court of Appeal, for Defendant and Appellant Bertha Z.
Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant Michael A.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Kim Nemoy, Principal Deputy County Counsel, for Plaintiff and Respondent.
Father Michael A. and Mother Bertha Z. appeal from the dependency court's order pursuant to Welfare and Institutions Code section 366.26 terminating their parental rights to their daughter, five-year-old Selina A. (born Sept. 2006). They contend that the dependency court erred in not continuing the section 366.26 hearing because Selina had only recently been placed in a new home and time was needed to investigate whether Selina could be placed with a relative. We find no reversible error and affirm the court's order.
All undesignated section references are to the Welfare and Institutions Code.
BACKGROUND
Father and Mother have lengthy histories with the Los Angeles County Department of Children and Family Services (DCFS). In 2003, the court declared Mother's three older children by a different father (boys 11, 8, and 6 years old at the time) dependents under section 300, subdivision (b), based on drug use by their father. Subsequently, a section 342 petition was sustained by the court on finding that Mother and the boys' father engaged in sexual intercourse in front of the boys, encouraged them to watch, and encouraged two of the boys to engage in oral sex while the parents watched. The court later terminated the parents' reunification services. Jurisdiction as to the older son was terminated (he had been declared a ward under § 602) and the other two boys were receiving permanency planning services at the time of the instant proceeding regarding Selina.
Father has two children by a different mother, a son and daughter, who were declared dependents of the court. In 2005, the court sustained a section 300 petition as to these children based on findings that Father physically abused the children, engaged in domestic violence, and had a history of drug use. Father's reunification services were later terminated. The daughter was receiving permanent placement services at the time of the instant proceeding. Jurisdiction had terminated as to the son, Michael, who was declared a ward under section 602.
With regard to Selina, in November 2010 the court declared her a dependent under section 300, subdivision (b), based on a finding that Mother and Father had a history of drug abuse and mental health issues, and that mother was abusing drugs while caring for Selina. The court denied reunification services for both parents under section 361.5, subdivisions (b)(10) (failure to reunify with child's half-siblings and to make reasonable effort to treat the problem leading to half-sibling's dependency) and (b)(13) (history of drug abuse and failure to comply with prior case plan). The court removed Selina from parental custody, ordered that the parents have weekly monitored visits, and set a section 366.26 hearing for March 2011.
Earlier, from June 2007 to June 2008, Father and Mother had received family maintenance services for Selina after the court assumed jurisdiction based on, inter alia, Father's history of drug and mental health issues. In June 2008 the court terminated jurisdiction with a family court order granting Mother full legal and physical custody of Selina.
At the March 21, 2011 hearing date, DCFS reported that Selina had been placed in a new foster home three weeks earlier, March 1. She had adjusted well, and the foster parents were pleased with the placement and wanted to adopt her. They had an approved adoption home study on file. Father had visited Selina only once and spent most of the time talking on the phone. Mother's visitation was sporadic (a later report showed only three visits), and Selina did not appear to be bonded to her or to show any emotion when Mother left.
Because of Selina's recent placement, DCFS requested a continuance of the section 366.26 hearing. However, Selina's attorney requested that the hearing proceed because the foster parents were "completely . . . committed to Selina from this day forward." Mother's counsel requested that the hearing be put over based on the recent placement, and Father's counsel concurred, because Father had informed him that he wished to hire private counsel. The court granted a continuance to April 4, 2011.
In its updated report for the April 4 hearing, DCFS requested a 90-day continuance to determine whether Selina would continue to adjust well to the new foster placement. But when the hearing convened, counsel for DCFS did not oppose the request of Selina's counsel that the section 366.26 hearing go forward.
Mother's attorney requested a 90-day continuance because Selina was in "the honeymoon period" with the new foster parents and it was "a good idea . . . and [not] much of a disruption in anything if the case is continued." She added, "[M]ore importantly, [M]other is hiring a private attorney. He's not here today. . . . So I'm asking that it be continued for her attorney to be here." The court denied the request to continue.
Father's counsel joined in the request. Father interrupted to state that he and Mother had hired a private attorney. The court stated: "First of all, the mother and the father have to have separate private counsel, not the same. . . . Attempting on the day of the .26 hearing, when there are witnesses present for trial, is not actually hiring someone. We have no substitution of attorney. And I would not be granting a continuance unless somebody came in early enough to go today."
The court admitted into evidence the DCFS reports in the case. Father testified that although DCFS reported that he had had only one visit with Selina, he had actually had three visits. During the visits, Selina would run to him, call him Daddy, and hug him. They would talk and play. He testified that he loved Selina and would do anything to keep her.
Mother testified that Selina lived with her since birth until taken away by the court. After that, Mother visited her "a lot," on holidays and once every two weeks. Selina called her Mom at the visits, and they would hug when Mother left. Mother wanted her brother Robert to have Selina. Although Mother had asked Robert to take Selina, Robert had not come forward because he lived in the San Bernardino area.
After Mother's testimony, Father's son Michael (Selina's stepbrother) spoke up. He was in the audience along with another brother and an aunt. Michael was Father's son who was the subject (along with his sister) of Father's prior dependency proceeding. Jurisdiction over him had been terminated when he became a ward of the court under section 602. At the time of Selina's hearing in April 2011, he was 19 years old (born March 1992).
He stated that in relevant part: "The thing I want to say is the adoption thing, . . . none of my family members on my side, nor do I think on her [Mother's] side, has ever got a call saying are you willing to take this child? Unlike you guys did with me and my sister. You guys stated Los Angeles County has to tell the family members if they're going to take them. None of our family members got phone calls."
The court, which had handled Michael's dependency case, stated that "it's a little late for that right now. I did not have this case. It was just transferred in. And, as far as I know - in fact, we even heard about the brother today, that he didn't come forward and nobody asked about him. . . . Michael, I appreciate your concern, but there is nothing that's going to be changed today, absolutely nothing. The law was followed. It was followed precisely. This child's in an adoptive home, and that's where she's going to stay."
Shortly thereafter, the parents disrupted the proceedings, and the bailiff removed them and the other family members from the courtroom. When proceedings resumed, Mother's counsel asked the court not to terminate parental rights, but to opt for legal guardianship. Father's counsel asked the court to follow DCFS's recommendation and continue the case for 90 days to assess any relatives for placement.
Counsel for DCFS explained that the only reason for the continuance request was to allow more time for Selina to adjust to her new placement. The Department had no other concern.
The court stated that for a young child "it is not unusual for me to continue something when somebody's been there such a short period of time. The problem with this case is [Mother and Father] are so terribly disabled in terms of their ability to monitor themselves that it is absolutely essential that we get an adoptive home for this child as soon as possible and . . . get some stability in this child's life and keep that stability. To wait 90 days means that there's going to be more visits where she's told she's coming home, more visits that aren't made, more visits where there's scheming and carrying on." The court thereafter found Selina adoptable and terminated the parents' parental rights.
DISCUSSION
Mother and Father contend that the court erred in not continuing the section 366.26 hearing to determine whether Selina would continue to adjust to her new placement. We disagree.
"Section 352 provides a continuance shall be granted only on a showing of good cause, but no continuance shall be granted if it is contrary to the minor's interest. '[T]he court shall give substantial weight to a minor's need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements.' [Citation.] '[T]ime is of the essence in offering permanent planning for dependent children.' [Citations.] A reviewing court will reverse an order denying a continuance only upon a showing of an abuse of discretion." (In re Gerald J. (1991) 1 Cal.App.4th 1180, 1187.)
Here, Selina had been in her new placement little more than a month. The court balanced the concern that additional time might be needed to assess her continued adjustment to her new placement against her need for resolution of her custody status and a stable environment. The evidence showed that the foster parents were committed to adopting Selina, that Selina was continuing to adjust well, and that the foster parents had an approved adoptive home study on file. Nothing in the record suggested that Selina was not adoptable. The court was justifiably concerned, as stated at the conclusion of the section 366.26 hearing, that Mother and Father were "so terribly disabled in terms of their ability to monitor themselves" that the danger they might disrupt Selina's adjustment outweighed the concern that Selina had spent only about one month in the prospective adoptive home. We find no abuse of discretion in that reasoning, especially given the parents' past history with the dependency system, their sporadic history of visitation with Selina, and their disruption of the section 366.26 hearing on being informed that Selina would remain in the prospective adoptive home.
To the extent Mother argues that the adoption study was incomplete, she forfeited the argument by failing to raise it below. (In re Crystal J. (1993) 12 Cal.App.4th 407, 411-412.)
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Mother and Father contend that the court erred in not continuing the section 366.26 hearing to investigate whether any relatives might qualify for placement of Selina under section 361.3. We agree, but find the error not prejudicial.
As explained in In re Joseph T. (2008) 163 Cal.App.4th 787, 793-794: "Section 361.3, subdivision (a) states in relevant part: 'In any case in which a child is removed from the physical custody of his or her parents pursuant to Section 361, preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative.' '"Preferential consideration" means that the relative seeking placement shall be the first placement to be considered and investigated.' (§ 361.3, subd. (c)(1).) Subdivision (a) further states that when a child is removed from his parents' physical custody '[t]he court shall order the parent to disclose to the county social worker the names, residences, and any other known identifying information of any maternal or paternal relatives of the child' and that the county social worker 'shall initially contact the relatives given preferential consideration for placement to determine if they desire the child to be placed with them.' Those relatives desiring placement 'shall be assessed according to the factors enumerated in [subdivision (a)]' and '[t]he county social worker shall document these efforts in the social study prepared pursuant to Section 358.1.' The relatives entitled to preferential consideration for placement are 'an adult who is a grandparent, aunt, uncle, or sibling.' (§ 361.3, subd. (c)(2).)"
After the disposition hearing, this procedure must be followed whenever a new placement occurs. (§ 361.3, subd. (d); In re Joseph T., supra, 163 Cal.App.4th at pp. 796-797.) Thus, it applied when Selina's new placement occurred on March 1, 2010. However, the record does not contain any court order, at any time in Selina's case, that the parents disclose "the names, residences, and any other known identifying information of any maternal or paternal relatives of the child." (§ 361.3, subd. (a)(8).) Moreover, beyond contacting a single paternal aunt, the record suggests that DCFS made no other contact with any paternal or maternal relatives. In the initial detention report dated September 28, 2010, the DCFS social worker stated that "[t]here may be relatives to consider for placement." The social worker stated that she had spoken to a paternal aunt, who stated that she could not take Selina at that time, but would contact other relatives who might be interested in caring for Selina. By the time of the report, the social worker had not heard back.
The only other reference in the record to possible relative placement was contained in the Jurisdiction/Disposition Report dated November 1, 2010, in which the social worker recommended that "DCFS have discretion to release the child to any appropriate relative," but added that "[n]o relatives have come forward showing an interest to care for the child."
On this record, we cannot conclude that the court complied with its duty to order the parents to disclose the identities and other relevant information concerning paternal and maternal relatives, nor that, if any such relatives were disclosed, DCFS contacted any more than a single paternal aunt, who at the time of the initial disposition was not able to take Selina. Thus, because there was inadequate compliance with section 361.3, the court should have continued the section 366.26 hearing to ensure such compliance.
Nonetheless, on the unusual circumstances of this case, we conclude that the error in failing to continue the hearing was harmless. (See In re Joseph T., supra, 163 Cal.App.4th at p. 798 [errors in failing to consider child's aunt for placement, and in failing to state reasons for denying such placement, held harmless, where the record contained "compelling reasons not to place [child] with his aunt regardless of her qualifications"].) Both Mother and Father have long histories with the dependency court, including having children by different co-parents who were receiving permanent placement services as the time Selina's case was pending. It would be unreasonable to suggest that they did not know that they could and should disclose to DCFS identifying information concerning qualifying relatives who might be contacted concerning placement.
Moreover, at the section 366.26 hearing, Mother testified that she had asked her brother Robert to take Selina, but he did not come forward because he lived in San Bernardino. She mentioned no other relative who might be contacted or who might be interested in placement. Similarly, although Father's counsel requested that the court continue the hearing to investigate the possibility of placement with a relative, neither he nor father identified any relative who might qualify and request placement.
At the hearing, Father's son Michael (Selina's stepbrother) spoke up concerning the failure of DCFS to contact paternal relatives. Michael had been a dependent child and later a section 602 ward of the court. Born in 1992, he was 19 years old at the time of the section 366.26 hearing. When he addressed the court, he made no request that Selina be placed with him. And even if he had, it is not reasonably probable that the court would have placed five-year-old Selina with him, given his youth and background. Although there were apparently two other relatives present at the section 366.26 hearing, they made no request for placement, and neither the parents nor their counsel suggested that those relatives or any others should be contacted by DCFS.
In these circumstances, we conclude that the court's error in not continuing the hearing to comply with section 361.3 was not prejudicial. It is not reasonably probable that if the court had continued the hearing and ordered the parents to disclose the identities of relatives, or if DCFS had contacted any relatives, the result of the proceeding - termination of parental rights and placement with the prospective adoptive family - would have been any different.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
EPSTEIN, P. J.
SUZUKAWA, J.