In re Michael G. 2/14/12 CA4/1

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State: California

Court: California Eastern District Court

Docket No: D060107

Case Date: 02/14/2012

Preview:Filed 2/14/12

CERTIFIED FOR PUBLICATION COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

In re MICHAEL G., a Person Coming Under the Juvenile Court Law. D060107 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. ANGELA G. et al., Defendants and Appellants. (Super. Ct. No. NJ12848-B)

APPEAL from findings and orders of the Superior Court of San Diego County, Blaine K. Bowman, Judge. Affirmed.

Rosemary Bishop, under appointment by the Court of Appeal, for Defendant and Appellant, Angela G. Donna Balderston Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant, Erick O.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Tahra C. Broderson, Senior Deputy County Counsel, for Plaintiff and Respondent. M. Elizabeth Handy, under appointment by the Court of Appeal, for Minor. Angela G. and Erick O. appeal orders terminating their parental rights under Welfare and Institutions Code section 366.26. (Unless otherwise indicated, further references are to the Welfare and Institutions Code.) They contend the juvenile court erred when it found that their son, Michael, was likely to be adopted within a reasonable time if parental rights were terminated. The parents argue the social services agency's adoption assessment report was inadequate, and the court should have granted a brief continuance to allow the social worker time to receive an updated report from Michael's therapist and the results of Michael's court-ordered psychological evaluation, and to further assess his adoptability in the context of that information. The parents also argue there is insufficient evidence to support the findings that the beneficial parent/child and sibling relationship exceptions to termination of parental rights did not apply. We affirm the findings and orders. We conclude that the juvenile court erred when it did not order a brief continuance of the section 366.26 hearing to allow time to receive Michael's psychological evaluation and an updated report from his therapist, but the error was harmless in light of other evidence supporting the finding that Michael was likely to be adopted within a reasonable time. Specifically, the reports from Michael's teacher and caregiver support the finding that Michael did not currently display any significant behavioral or emotional problems, 2

despite earlier reports he had had significant behavioral problems while he was in the care of his mother and other relatives. We also conclude there is ample evidence to support the juvenile court's finding there were no applicable exceptions to termination of parental rights. Angela's contention she had a beneficial parent-child relationship with Michael sufficient to overcome the statutory preference for adoption is frivolous and should not have been raised on appeal. At oral argument, we found it necessary to restate, more than once, the standard of review that applies when the issue on appeal challenges the juvenile court's resolution of disputed factual questions, and to remind the appellants that this court does not substitute its judgment for that of the juvenile court. Appellate practitioners would be well advised to remember it is the function of the trier of fact, not the appellate court, to determine the facts, and to cast their arguments in this court within the confines of that basic principle. (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053 (Bickel) [appellate court views all factual matters and resolves all conflicts in the evidence in the light most favorable to the prevailing party]; In re Zeth S. (2003) 31 Cal.4th 396, 405 (Zeth S.) [it is the province of the trial court to decide questions of fact and of the appellate court to decide questions of law].) FACTUAL AND PROCEDURAL BACKGROUND Angela G. is the mother of three sons, Joshua O., Michael G. and Jacob O. (collectively, the children). The children are now ages 11, seven and five years, respectively. Erick O. is the children's father. He was incarcerated throughout the

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dependency proceedings, and is mentioned only where relevant to the issues raised in these proceedings. This appeal concerns only Michael. Michael tested positive for amphetamine at birth and was detained in protective custody. He suffered from withdrawal symptoms. A maternal aunt cared for him for six months. The juvenile court then returned Michael to Angela's care under a plan of family maintenance services, and dismissed dependency jurisdiction in June 2005. In September 2009 the San Diego County Health and Human Services Agency (the Agency) filed a petition under section 300, subdivision (b), after Angela brought Michael to the hospital seeking care for "a crooked right arm." Michael's arm was broken. The injury appeared to be four to six weeks old. Michael was not living with Angela at the time of the injury. Michael and family members said he fell off his bicycle; however, the physician considered the fracture suspicious for nonaccidental trauma. The head nurse said Angela was not attentive to Michael at the hospital and did not appear to be bonded with him. The Agency also filed petitions on behalf of Michael's brothers. The Agency placed Michael and his brothers together in foster care. Angela expressed concern about Joshua's and Jacob's reaction to foster care placement. She was not concerned about Michael's adjustment to foster care, stating "Michael usually doesn't know me." She explained Michael was violent and she had placed Michael in the care of various family members because she could not manage his behaviors. Angela continued to care for Michael's brothers. Michael lived with his maternal grandmother from ages two to four years. He then lived with his paternal cousins for four to five months, with a stepcousin for four 4

months and then with his maternal aunts from July to September 2009. Angela told the social worker she wanted Michael to be "adopted out" but expressed interest in providing a stable home "for my other two." Michael exhibited hyperactivity, and defiant and aggressive behaviors against peers and school personnel. He hoarded food. He had severe tantrums. The social worker stated Michael's behaviors were attention-seeking and Angela's care for Michael and understanding of his needs were minimal. According to the social worker, Michael had no attachment to Angela. The juvenile court granted Angela liberal supervised visits with her children twice weekly, including a six-hour visit on Saturdays. Angela was more affectionate with Michael's brothers than she was with him. She complained she had to take quality time away from Joshua and Jacob to spend time with Michael. Angela asked the social worker to place Michael separately from his brothers to not give him false hope that he would return to her care. Angela's therapist said Angela clearly did not want to resume caring for Michael and continued to blame him for some of her problems. In November 2009 the children were detained with a maternal aunt. In December 2009 the juvenile court sustained the petition filed on Michael's behalf, and dismissed his brothers' dependency cases. The court offered reunification services to Angela and denied services to Erick, who was incarcerated. Angela said she did not have time to participate in family reunification services in Michael's dependency case. She visited Michael approximately once a month until June 2010. 5

The social worker reported that Michael was in good health. He was an active sixyear-old who liked to play with his friends. He had some problems at school with aggressive and defiant behaviors. Michael's kindergarten teacher reported that he was a bright, endearing child who was a quick and active thinker. At times he was so eager for attention that he shouted out or put his hands on his classmates. Michael remained with his maternal aunt until June 2010, when the aunt asked for his removal due to her high stress levels. He began participating in therapy in August. Michael was then placed with a maternal stepcousin. He was removed from that home after the cousin had an altercation with his partner. After a stay at Polinsky Children's Center (PCC), Michael was placed in foster care in October 2010. Angela did not visit Michael during his five-week stay at PCC. She visited him approximately six times between October 2010 and June 2011. According to Michael's caregiver, Angela's visits were usually clustered around the time of a juvenile court hearing. Angela told the social worker she loved Michael but he was difficult to handle. He did not listen to her and he acted out for attention. Angela did not have time to participate in family reunification services, and said, "I would rather have Michael adopted into a good home." In January 2011 the juvenile court terminated reunification services and set a section 366.26 hearing. The court ordered Michael to undergo a psychological evaluation. The contested section 366.26 hearing was held on June 30, 2011. The Agency reported that Michael was a happy, healthy attractive child who was shy with strangers. 6

He was developmentally on target and doing well at school. He was affectionate with his caregiver. She had not seen any aggression, bedwetting or extreme tantrums since Michael was placed with her. Michael did not understand the concept of adoption. He wanted to stay with his caregiver. The social worker explained to Michael that his caregivers had health problems and could not care for him until he was grown up. The social worker identified 18 San Diego families and 74 out-of-state families that were willing and approved to adopt a child like Michael. The Agency had not identified a prospective adoptive family for Michael at the time of the section 366.26 hearing. The social worker testified she expected to receive Michael's psychological evaluation within a week and would then conduct another assessment to see how many adoptive families were interested in Michael. The number could increase or decrease depending on the psychologist's findings. The social worker said she listed all of Michael's challenging behaviors when screening for prospective adoptive parents, including his tantrums and aggressive behavior. Currently Michael did not display aggressive behaviors but he could be defiant. Angela testified she had had two three-day weekend visits with Michael in March 2011. When asked whether she wanted Michael to return to her care, she replied, "I think I'm ready for him." The caregiver testified Angela visited Michael approximately six times while he was in foster care. Angela said she never bonded with Michael. Contrary to Angela's claim, the caregiver testified Michael did not have any overnight visits with Angela. 7

Michael's last visit with Angela was good because Angela interacted with Michael, which was unusual. According to the caregiver, Michael might have a nightmare or wet the bed after he had a visit with Angela but usually readjusted in a few days. The caregiver and her husband considered adopting Michael. In view of their health problems, they decided adopting Michael would not be in his long-term best interests. At the close of evidence, Erick's counsel asked the juvenile court to continue the section 366.26 hearing to allow time to receive the results of Michael's psychological evaluation and the social worker's reassessment of adoptive families that had expressed interest in adopting a child like Michael. The juvenile court denied the continuance. The court found that Michael was likely to be adopted within a reasonable time if parental rights were terminated, and no exceptions applied that would make termination of parental rights detrimental to Michael. The court terminated parental rights. APPELLATE MOTIONS On October 21, 2011, the Agency filed a motion to augment the record with a copy of Michael's psychological evaluation report, dated June 30, 2011. The parents opposed the motion to augment the record, and filed motions to strike the respondent's brief because it contained references to the results of that evaluation. On November 2, this court denied the Agency's motion to augment the record. On November 10, this court denied the parents' motion to strike the respondent's brief, and ordered "all references to that evaluation in Respondent's brief are STRICKEN and will 8

not be considered by the court." Accordingly, we did not consider the references to the results of Michael's evaluation in respondent's brief, or the evaluation itself, in reaching the conclusions set forth in this opinion. DISCUSSION A Angela contends Michael's adoption assessment report (assessment report) was inadequate and the juvenile court should have continued the hearing to allow the social worker time to obtain additional information about Michael's emotional and psychological status. She argues there is not substantial evidence to support the juvenile court's findings that Michael was likely to be adopted within a reasonable time if parental rights were terminated (adoptability finding) and the beneficial parent/child relationship and sibling relationship exceptions to termination of parental rights did not apply. Erick raises no issues in his brief. He adopts by reference Angela's brief and arguments. (Cal. Rules of Court, rule 8.200(a)(5).) B At a section 366.26 hearing, the court may select one of three alternative permanency plans for the dependent child--adoption, guardianship or long-term foster care. (In re Taya C. (1991) 2 Cal.App.4th 1, 7.) If the child is adoptable, there is a strong preference for adoption over alternative permanency plans. (San Diego County Dept. of Social Services v. Superior Court (1996) 13 Cal.4th 882, 888; In re Zachary G. (1999) 77 Cal.App.4th 799, 808-809.)

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A finding of adoptability requires "clear and convincing evidence of the likelihood that adoption will be realized within a reasonable time." (Zeth S., supra, 31 Cal.4th at p. 406;

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