In re C.C. CA4/2

Filed 9/25/13 In re C.C. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re C.C., a Person Coming Under the
Juvenile Court Law.
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, E058068
Plaintiff and Respondent, (Super.Ct.No. J240264)
v. OPINION
T.O.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Gregory S. Tavill,
Judge. Affirmed.
Nicole Williams, under appointment by the Court of Appeal, for Defendant and
Appellant.
Jean-Rene Basle, County Counsel, Adam E. Ebright, Deputy County Counsel, for
Plaintiff and Respondent.
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T.O. appeals an order terminating her parental rights and placing her son, C.C., for
adoption. She contends that the juvenile court mistakenly believed it had no alternative
but to place the child for adoption and that it should have continued the termination
hearing to determine whether further services would enable her to reunite with her son.
We will affirm the judgment.
BACKGROUND
T.O. (sometimes referred to as mother) is developmentally disabled, with an IQ of
61 to 69. T.O. and C.C. lived with T.O.’s mother and brother, both of whom are also
developmentally disabled. The maternal grandmother also had physical disabilities. The
family’s only source of income was apparently SSI. C.C.’s father, J.C., who lived with
his mother, visited frequently during the week and helped care for C.C. C.C. normally
stayed at the father’s house on weekends. J.C. was diagnosed with autism, ADD and
Tourette syndrome. He was unemployed and receiving SSI benefits, but was enrolled in
a community college, studying mechanics in a vocational program.1
On August 6, 2011, when C.C. was two, the Department of Children and Family
Services (CFS) responded to a referral alleging neglect and physical abuse of C.C. and
parental mental health issues. The referral stated that C.C. had bruising up and down his
body in various stages of healing, and the social worker confirmed that the injuries were
consistent with abuse. The social worker observed that the home was “in disarray” and
that the crib was full of junk, including a blanket with dog excrement on it. Mother
1 The father is not a party to this appeal.
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stated that she and C.C. slept on a mattress in the living room. The mattress was leaning
against the wall and was dirty.
When the social worker asked to check the kitchen for food, the maternal
grandmother refused, saying that they had no food and were just about to go shopping.
The maternal grandmother stated that the home was usually immaculate, but the deputy
who served the detention warrant told the social worker that he had been called to the
home numerous times and that the home was usually a mess.
That morning, the father had seen the maternal uncle become irate when C.C.
would not come to him. He reported that the maternal uncle had been physically
assaultive with him and with T.O. He stated that the maternal grandmother, who was in
charge of the family’s finances, would mismanage the family’s money and they would
run out of food. He said that mother would often tell him in the afternoon that C.C. had
not eaten yet.
The maternal grandmother denied that she had any knowledge of the bruising on
C.C.’s body before the social worker told her about it. The maternal grandmother blamed
the injuries on the father, saying that he had taken C.C. for a walk and was gone a long
time. The maternal grandmother also stated that the father had kicked T.O. in the head
the day before the referral. T.O. confirmed that the father had kicked her and that he also
hit her. T.O. was also “reported” to have hit the father. (The source of this report is not
disclosed.)
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After C.C. was detained, he was examined by a doctor who stated that his injuries
were the result of abuse and that he was also neglected, based on an “inordinate amount”
of plaque on his teeth.
A petition pursuant to Welfare and Institutions Code section 3002 was filed on
August 15, 2011. The petition alleged that C.C. had suffered physical abuse while in the
custody of both parents. It also alleged that both parents had failed to protect him from
physical abuse and that C.C. was at risk of injury because of the parents’ mutual domestic
violence. The petition also alleged that both parents had developmental disabilities
which impaired their ability to parent C.C. and that mother had failed to provide an
appropriate residence for C.C.
C.C. was ordered detained and was placed with his paternal aunt and uncle.
J.C. wanted custody of C.C., but was willing to allow his sister to have custody
because he wanted his son to be safe. The social worker observed during supervised
visits between C.C. and his parents that he appeared to be bonded to both parents. CFS
recommended reunification services for both parents.
At the jurisdiction/disposition hearing, the court found all of the allegations true
and ordered reunification services for both parents.
In the report prepared for the six-month review hearing, the social worker
recommended an additional six months of reunification services but stated that she was
waiting for the court to approve a psychological evaluation of both parents in order to
2 All further statutory citations refer to the Welfare and Institutions Code unless
another code is specified.
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determine their level of functioning and the services which would assist them with
reunification. She reported that both parents had completed a parenting course but that it
was uncertain whether the parents had absorbed the training they had received. Both
parents had been consistent with visitation, both were cooperative, and both interacted
well with C.C. The foster mother, C.C.’s paternal aunt, ensured that C.C. visited with
“other important individuals in the family.” She was supportive of reunification but was
also open to adopting C.C. if reunification failed. She and C.C. had a strong bond, and he
went to her for his wants and needs. Her home had been approved by the Relative
Approval Unit.
At the six-month review hearing, the attorney for CFS asked the court to order
psychological evaluations, which CFS had denied for budgetary reasons, and told the
court that although the parents had been participating in services, there had been no
benefit, and the evaluations were necessary in order to determine what services might
benefit the parents. The parents asserted that reasonable services had not been provided.
The foster mother informed the court that the social worker had not been in contact with
her or with the father. The court noted that it had already ordered the psychological
evaluations. It continued the review for a contested hearing on whether reasonable
services had been provided.
On April 2, 2012, the court found that reasonable services had not been provided.
The attorney for CFS stated that upon receipt of the court’s order, she would provide it to
management to facilitate the provision of the psychological evaluations. Counsel for
mother reported that mother had sought out individual counseling on her own. The court
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ordered the parents to continue to participate in reunification services and increased
visitation to twice a week for two hours.
For the 12-month status review hearing, CFS recommended terminating
reunification services and setting a section 366.26 hearing with a permanent plan of
adoption. The social worker reported that the parents both loved their son and wanted
only the best for him, but that because of the lack of progress they had made in
reunification services, C.C. would not be safe if left alone with either parent. Her opinion
was based in large part on the psychological evaluations. As to mother,3 the evaluation
placed her IQ at 64, or borderline mental retardation. Her ability to absorb and retain
information was poor. The evaluator reported that she would not be capable of
adequately managing the needs of a young child without assistance. She also appeared to
perceive her child’s needs as excessive and possibly to feel overwhelmed with the
responsibilities of being a parent.
The social worker also reported that mother remained dependent on her mother to
remind her to attend appointments and to provide transportation, and to “provide her
direction and assistance with her daily living.” She did not appear to be able to make her
own decisions or act responsibly as an adult, and her family members continued to
“minimize and deflect blame and responsibility.” Living in that household would place
C.C. at risk because mother lived in “an environment in which there is a lack of
3 Because the father is not a party to this appeal, we need not recount the details
of his psychological evaluation.
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responsibility and lack of growth toward alleviating the circumstances” which had
necessitated the removal of C.C.
The foster parents remained committed to ensuring that C.C. would have a life-
long relationship with his parents.
At the hearing on September 26, 2012, the court found that reasonable services
had been provided but that the parents had made minimal progress toward alleviating or
mitigating the causes which necessitated placement. The court terminated reunification
services and set a section 366.26 hearing. Mother was notified of her writ rights and filed
a notice of intent to file a writ petition. She later withdrew her intent.4 At the hearing,
the father stated that he agreed with the social worker’s recommendations.
On February 7, 2013, following a hearing, the court denied mother’s petition for
modification pursuant to section 388 and terminated parental rights as to both parents.
(We discuss this hearing in more detail below.) Mother filed a timely notice of appeal.
DISCUSSION
THE JUVENILE COURT DID NOT MISUNDERSTAND THE SCOPE OF ITS
DISCRETION, AND IT HAD NO SUA SPONTE DUTY TO CONTINUE THE
SECTION 366.26 HEARING
Mother contends that the juvenile court’s comments at the section 366.26 hearing
reveal that the court mistakenly believed that it had no alternative but to free C.C. for
4 We take judicial notice that mother filed a notice of intent to file a writ petition
following the order setting the section 366.26 hearing but later withdrew it. (T.O. v.
Superior Court, E057202, dismissed Oct. 26, 2012; Evid. Code, § 452, subd. (d).)
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adoption. She contends that the court could, and should, have continued the hearing in
order to assess whether services offered through Inland Regional Center (IRC) would
have enabled her to reunite with C.C. We disagree.
The issue arose as follows. On the date set for the section 366.26 hearing, after a
one-day continuance, mother filed a section 388 petition requesting additional
reunification services. She alleged as changed circumstances the fact that she had
obtained her own apartment and had applied for IRC services. Mother’s attorney
acknowledged that he did not believe that the petition would be granted, but he requested
a continuance so that the social worker could make a more current assessment of whether
mother could function on her own. The court observed that there did not appear to be any
changes in the circumstances that had prevented reunification, but nevertheless granted
the continuance and directed the social worker to assess mother’s current situation. The
court set February 7, 2013, for the continued section 366.26 hearing and the hearing on
the section 388 petition.
In her response to the section 388 petition, the social worker reported that she had
visited mother’s two-bedroom apartment and found it to be appropriately furnished.
Mother stated that she used Christmas money she received from her uncle to rent the
apartment. Her monthly rent was $600, and her monthly SSI income was about $800.
She hoped that the IRC would provide some financial assistance.
The social worker reported that mother appeared to have many misconceptions
about her case. Mother stated that she planned to register C.C. for school and believed
that she was about to begin having in-home visits with him. The social worker also noted
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that by moving out of her mother’s house, mother had eliminated the only support system
she had. This contravened the recommendation of the psychological evaluation and
demonstrated that mother had not benefitted from the services she had received. The
social worker observed that mother’s disability continued to hinder her ability to provide
an appropriate home for C.C. and concluded that adoption continued to be in C.C.’s best
interest.
At the combined section 388 and section 366.26 hearing, the court asked whether
guardianship would be a better outcome, despite the statutory preference for adoption,
because of the “extenuating circumstances” present in this case. Counsel for the minor
responded that sometimes “we do the guardianship either because the caretaker wants to
preserve the parents’ rights . . . and they don’t want to change their family’s structure in
that way, or they would like to leave the door open for a change in custody at some time
in the future.” The attorney went on to state that in this case, “the relative [caregiver] is
committed to keeping the mother involved . . . [a]nd I think that’s the best of both worlds
for [C.C.]” Mother’s attorney then argued that mother’s parental rights should not be
terminated “simply because she was born with a disability.” He did not ask the court to
continue the hearing to allow time to determine whether IRC would provide services
which might enable mother to reunify with C.C.
At that point, the court made the comments mother criticizes. The court stated,
“The real question is, given the statutory scheme, the way it’s set up, essentially, it is the
caretaker’s choice, because if the caretaker is willing to adopt, the law is that I’m
supposed to do adoption. [¶] And I hesitated last time to make sure that that was flushed
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out [sic] and the people knew what we were doing and had a chance to come up with the
differences. [¶] And the current circumstances are that the caretakers want to adopt. So
how do I not do this with these facts?” After further comments by counsel for mother
and counsel for CFS—again not including a request by mother’s counsel for a
continuance—the court denied the section 388 petition, made the requisite findings under
section 366.26, terminated parental rights and placed C.C. for adoption.
We disagree that the court’s comments indicate that it was not aware that it had
the discretion to do anything other than terminate parental rights. Section 366.26
provides that when reunification has failed, the child is adoptable, there is clear and
convincing evidence that the child will be adopted within a reasonable time, and none of
the statutory exceptions applies, the court must terminate parental rights and place the
child for adoption. (In re Celine R. (2003) 31 Cal.4th 45, 52-53; § 366.26, subd. (c).)
One exception to the statutory preference for adoption is the relative caregiver
guardianship exception: “If the court determines . . . by a clear and convincing standard,
that it is likely the child will be adopted, the court shall terminate parental rights and
order the child placed for adoption . . . unless . . . [t]he child is living with a relative who
is unable or unwilling to adopt the child because of 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 through
legal guardianship, and the removal of the child from the custody of his or her relative
would be detrimental to the emotional well-being of the child.” (§ 366.26,
subd. (c)(1)(A).) We understand the court’s statement as acknowledging that this
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exception does not apply because C.C.’s relative caregivers wanted to adopt him. It does
not reflect a lack of understanding that if mother had requested an additional continuance,
the court had the discretion to grant it upon a finding of good cause.
Mother contends that in spite of her failure to ask the court to continue that
hearing in order to determine whether services from IRC could have allowed her to
reunify with C.C., the court should have done so on its own motion. Under a separate
subheading, mother makes essentially the same argument, contending that the statement
in her section 388 petition that she had applied to IRC for services “should have . . . re-
triggered the court’s obligation to ensure that all services specially designed to meet
Mother’s developmental disability had been explored prior to terminating parental
rights.” (Boldface and italics omitted.) Mother does not contend that her section 388
petition should have been granted. She contends only that the court should have
continued the section 366.26 hearing “in order for [CFS] to follow up with IRC and to
gauge Mother’s progress.”
We agree that the court could have done as mother now suggests. Section 352
provides that a court may continue any hearing in a dependency matter, “[u]pon request
of counsel for the parent” or another party, subject to a showing of good cause and a
showing that the continuance is in the child’s best interest. (§ 352, subd. (a).) This
includes a section 366.26 hearing. (See In re B.C. (2011) 192 Cal.App.4th 129, 143-
144.) However, neither section 352 nor any other authority that we are aware of requires
a court to do so on its own motion or holds that in the absence of a request it may be an
abuse of discretion not to continue a hearing. Here, the record shows that mother did not
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ask the court to continue the hearing or to conduct any further assessment. Consequently,
the court’s duty to determine whether to exercise its discretion to grant a continuance did
not arise.
We agree that a referral to IRC would have been an appropriate service in this
case. However, mother has forfeited the right to review of a contention that services
were not reasonable as a result of the failure to include a referral to IRC. A claim that
reasonable services were not provided is cognizable in a writ proceeding brought after an
order terminating services and setting a section 366.26 hearing. (Dwayne P. v. Superior
Court (2002) 103 Cal.App.4th 247, 260.) The issue may not be raised on appeal from a
subsequent order terminating parental rights unless it was raised in the writ petition but
not decided on its merits by the reviewing court. (§ 366.26, subd. (l)(1), (l)(2); Cal. Rules
of Court, rule 5.695(h)(16), (h)(17).) At the 12-month review hearing, at which services
were terminated, mother’s attorney argued that services were inadequate because, among
other things, mother had never been referred to a parenting coach or any other service
specifically geared toward individuals with developmental delays. Nevertheless, mother
did not file a writ petition, and she implicitly concedes that she cannot raise the issue
now.5
5 We have previously taken judicial notice that mother filed a notice of intent to
file a writ petition following the order setting the section 366.26 hearing but later
withdrew it. (T.O. v. Superior Court, E057202, supra; Evid. Code, § 452, subd. (d).)
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J.
We concur:
RICHLI
J.
MILLER
J.
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