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In Re Ramon M. et al.,Persons Coming Under the Juvenile Court v. Ramon H. M. et al

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA


December 13, 2010

IN RE RAMON M. ET AL.,PERSONS COMING UNDER THE JUVENILE COURT LAW.
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
v.
RAMON H. M. ET AL., DEFENDANTS AND APPELLANTS.

(Super. Ct. No. NJ14148A-B) APPEAL from a judgment of the Superior Court of San Diego County, Blaine K. Bowman, Judge. Affirmed.

The opinion of the court was delivered by: McCONNELL, P. J.

In re Ramon M. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Ramon H. M. (Father)*fn1 appeals a judgment terminating his parental rights to his minor sons, Ramon M. and Erik M. (minors), under Welfare and Institutions Code*fn2 section 366.26.

Father argues: (1) the court erred by denying placement of the minors in the home of relatives; and (2) the court abused its discretion by denying a continuance of the section 366.26 hearing.

Father further argues the evidence was insufficient to support the court's findings that the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(B)(i), did not apply to preclude termination of his parental rights. Yadira M., the minors' mother, joins in Father's arguments.*fn3 We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In April 2009 the San Diego County Health and Human Services Agency (the Agency) filed petitions on behalf of the minors under section 300, subdivision (b). The petitions alleged heroin and drug paraphernalia, such as syringes and spoons, had been found in the family home in areas accessible to the minors. The accessibility of the drugs and paraphernalia placed the minors at risk of harm. Law enforcement also found a knife in a drawer along with the illegal drugs. Father admitted to authorities that Ramon had played with the knife. Law enforcement arrested Father and a parole hold was placed on him.

The social worker reported that during an interview with Ramon, Ramon stated he had seen his Father giving himself "shots." The social worker further reported Father had an extensive criminal history that included a gang-related drive-by shooting. He also had been charged with drug possession, possession of drug paraphernalia and firearms. In addition, Father had violated his parole on at least three occasions. Yadira had a criminal history that included a charge for drug possession. Yadira admitted she used heroin and that she also had a history of methamphetamine use.

The court held a detention hearing in April 2009 and detained the minors in out-of-home care.

According to a jurisdiction and disposition report, the Agency represented the parents wanted to reunify with the minors. The Agency mailed Father a prison parenting packet. Yadira received referrals for a drug program and parenting classes. The Agency also recommended supervised visits between the minors and the parents. The Agency noted that both parents suffered from a long history of substance abuse and heroin addiction. The parents needed to demonstrate their ability to remain sober before the Agency could consider recommending that the minors return to their parents' care.

The Agency reported that at the start of the dependency proceedings, the minors had relatives that expressed an interest in caring for them. The paternal grandmother, Mrs. O., requested that her home be evaluated for placement. Mrs. O. lived in her home along with her husband, Mr. O. After conducting a background check, the Agency learned that Mr. O. had a criminal background that included a 1990 felony conviction for willful cruelty to a child with possible injury or death.

The court held an initial jurisdiction and disposition hearing in April 2009. The court found that based on the Agency's criminal background check of the paternal grandparents, placement of the minors in the home was precluded based on the nature of the offense and the offense could not be waived.

In May 2009 the court held a contested jurisdiction and disposition hearing. The court found the allegations in the minors' petitions true, declared them dependents of the court and removed them from parental custody. The court ordered reunification services for Father and Yadira. The minors were placed in the home of a non-relative extended family member (NREFM) and remained in this placement for about one year.

During the next six months, Father did not regularly see the minors as he was in and out of prison from March 2009 until March 2010. Yadira continued to struggle with substance abuse issues. She tested positive for methamphetamine use in October 2009, shortly after she had been granted short, unsupervised visits. As a result of the positive drug test, Yadira's visits reverted back to supervised. She did, however, maintain regular visits with the minors before her positive drug test.

In anticipation of the six-month review hearing, the Agency filed a report recommending that the court terminate reunification services and schedule a section 366.26 hearing. The Agency reported that Father remained in custody. Both parents had not made progress with their case plans and they continued to struggle with substance abuse problems. The minors remained in the home of a NREFM. The NREFM represented to the Agency social worker that she would not be able to adopt the minors.

In January 2010 the court terminated reunification services and scheduled a section 366.26 hearing. The minors remained in the home of the NREFM. They remained in this placement until they were placed in an approved adoptive home in April 2010.

Father was released from custody on parole in March 2010. Father told an Agency social worker that he began an outpatient treatment program in April 2010 and he was complying with the provisions of his parole.

In May 2010 the Agency filed an assessment report in anticipation of the section 366.26 hearing. The social worker reported that the minors' NREFM was unable to adopt the sibling set and that the boys had been placed in an approved adoptive home as of April 2010. The social worker assessed the minors as adoptable based on their young ages, good health, personalities and lack of developmental problems. The foster parents want to adopt the minors and in the event they could not adopt, numerous other families have been identified that are interested in a sibling set like Ramon and Erik.

Visitation between the minors and their parents fluctuated during the proceedings. Father did not visit the minors regularly because he spent most of the proceedings in prison. He had his first visit with the minors in August 2009. The first visit went well and the next day, he came to see the minors again. The NREFM reported that Father was high on drugs during this second visit. He did not visit the minors again in the NREFM's home nor did he call to check up on them. After Father's release from prison in March 2010, he began to visit the minors about once a week. Father acted appropriately with the minors and they displayed affection toward Father. Father generally was patient and kind to the minors. He would bring snacks and clothes for the minors. At the end of visits, the minors did not show signs of difficulty when separating from Father. They would wave goodbye to him and were happy to see their foster parents.

At the start of the proceedings in March 2009, Yadira visited the minors almost every day for about an hour and a half. The NREFM described the visits as chaotic. The minors would misbehave and not follow directions. In September 2009 Yadira received unsupervised visits for about one month until she tested positive for drug use. Her visits returned to supervised and she met with the minors about two days a week. Yadira stopped visiting the minors in January 2010 after being arrested on drug related charges. She maintained telephone contact with the minors and the calls had been appropriate.

The social worker opined that the minors have a relationship with the parents but it is not so significant to outweigh the benefits of adoption. There was no showing that severing the relationship would be detrimental. The minors do not ask the social worker about Yadira and do not appear to be negatively affected by the fact they have not seen her for several months. Ramon recently told his foster mother that he did not have a mother. He also stated that after visiting with his Father, he wanted to "come back home" to the foster parents. The minors look to their foster parents to meet their needs. They refer to their foster parents as "mommy and daddy."

In May 2010 the court held an initial section 366.26 hearing. Mrs. O. attended the hearing and requested de facto parent status. The court continued the hearing to June 2010. At that hearing, Mrs. O. withdrew her request and Father requested that the minors be placed with Mrs. M., their maternal grandmother. The court scheduled a hearing for June 29, 2010, to address the placement request and termination of parental rights issue.

At the June 29, 2010 hearing, the court denied placement of the minors with Mrs. M. Mrs. M. lived in the same home as Mr. and Mrs. O. The court noted the Agency attempted to place the minors with relatives earlier in the proceedings but did not do so because Mr. O. has a nonexemptable offense on his record. Counsel for Father requested a continuance to allow Mrs. M. more time to find suitable housing. The court denied the request.

The court held a section 366.26 hearing and received in evidence various Agency reports, including the assessment report. Father provided no affirmative evidence.

The court terminated parental rights and ordered adoption as the best permanent plan for the minors. The court found the minors were adoptable and that none of the exceptions under section 366.26, subdivision (c)(1), applied in this case.

DISCUSSION

I. Relative Placement

Father asserts the court erred by failing to apply the relative placement preference under section 361.3 and place the minors with either the paternal or maternal grandmothers. He claims the court repeatedly denied his requests to place the minors with one of their grandmothers. Specifically, he asserts he made requests to have the minors placed with relatives in April 2010 and in June 2010.

A Section 361.3 requires the court to give "preferential consideration" to a relative's request for placement when a child is removed from the physical custody of his or her parents under section 361 or whenever a new placement of the child after disposition is necessary. (§ 361.3, subds. (a) & (d).) In the second situation, the overriding inquiry is whether the change in placement is in the child's best interests. (See In re Stephanie M. (1994) 7 Cal.4th 295, 320-321.)

To determine whether placement with a relative is appropriate, "the county social worker and [the] court shall consider, but shall not be limited to, consideration," of eight listed factors.*fn4 (§ 361.3, subd. (a).) "The linchpin of a section 361.3 analysis is whether placement with a relative is in the best interests of the minor." (Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 862-863.) "The overriding concern . . . is not the interest of extended family members but the interest of the child. '[R]egardless of the relative placement preference, the fundamental duty of the court is to assure the best interests of the child. . . .' " (In re Lauren R. (2007) 148 Cal.App.4th 841, 855.)

"We review a juvenile court's custody placement orders under the abuse of discretion standard of review; the court is given wide discretion and its determination will not be disturbed absent a manifest showing of abuse. [Citations.]" (Alicia B. v. Superior Court, supra, 116 Cal.App.4th at p. 863.)

Here, it was not possible to change the minors' placement because the grandparents' home could not be approved for placement. Before a child may be placed in a relative's home, the social worker must visit the home to assess the appropriateness of the placement. (§§ 361.3, subd. (a)(5); 361.4, subd. (a).) The court or social worker must initiate a criminal records check on all persons over the age of 18 living in the home, and on any other person over the age of 18 who may have significant contact with the child. (§ 361.4, subd. (b).) If the criminal records check indicates the person has no criminal record (other than minor traffic violations), the social worker and the court may consider the home for placement of the child under section 361.3. (§ 361.4, subd. (d) (1).)

If the criminal records check indicates a relative living in the home has been convicted of a crime for which an exemption cannot be granted under section 1522 of the Health and Safety Code, the child may not be placed in the home. (§ 361.4, subd. (d)(2).)

The Agency carefully considered Mr. O.'s and Mrs. O.'s home as a potential placement for the minors in April 2009. After conducting a background check, the Agency discovered Mr. O. had a conviction under Penal Code section 273, subdivision (a)(1)*fn5 in 1990. Under the Health and Safety Code, Mr. O.'s conviction is categorized as a nonexemptible offense and the Agency was not permitted to approve the home for placement. (Health & Saf. Code § 1522, subd. (g)(1)(A)(i), [Penal Code § 273a(1), convictions shall not be exemptible].) The court, therefore, could not place the minors in the home with Mr. O.

The minors were placed in a prospective adoptive home in April 2010, but Father did not object to their new placement until May 2010. At that time, Father requested that Mrs. O. be reevaluated for placement. The court continued the matter to June 2010. At the June 2010 hearing, Father made a new request that Mrs. M. also be considered for placement. Mrs. O. and Mrs. M., however, lived in the same home with Mr. O. (See § 361.4, subd. (b).) As such, both grandmothers were not eligible for placement. Thus, the court did not err when it denied Father's requests to place the minors with Mrs. O. or Mrs. M.

II. Continuance

Father asserts that the court abused its discretion by denying requests to continue the section 366.26 selection and implementation hearing. Specifically, he asserts that he required a continuance in order to allow the maternal grandmother time to obtain housing, or to allow the paternal grandfather to move out of his home so that it could be approved as suitable for the minors.

A

Under section 352, the juvenile court may grant a continuance of any hearing only on a showing of good cause and only if the continuance is not contrary to a child's best interests. In considering the child's best interests, "the court shall give substantial weight to a [child's] need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a [child] of prolonged temporary placements." (§ 352, subd. (a); In re Ninfa S. (1998) 62 Cal.App.4th 808, 810.) Continuances in juvenile cases are discouraged. (In re Ninfa S., supra, at pp. 810-811; Jeff M. v. Superior Court (1997) 56 Cal.App.4th 1238, 1242.) We will reverse an order denying a continuance only on a showing of an abuse of discretion. (In re Gerald J. (1991) 1 Cal.App.4th 1180, 1187.)

B

There was no evidence before the court of good cause to continue the hearing. There had been sufficient time over a one-year period for the grandparents to show they could properly care for the minors yet they did not take steps to make their home a suitable placement. At the onset of the proceedings, the Agency learned that Mr. O. had a criminal record. This precluded him, and anyone living in his home, from being able to take care of the minors. At the time of the section 366.26 hearing, there was no evidence showing any of the grandparents could be approved for placement. Mrs. O. and Mrs. M. lived with Mr. O. Mrs. M. had yet to find a new home for herself that could be approved for placement and Father made no indication when Mrs. M. might find a home deemed suitable for the minors to live in. Further, Father presented no evidence to show Mr. O. had made concrete plans to move out of his home and away from Mrs. O. and Mrs. M.

Moreover, Father did not show that continuing the section 366.26 hearing would be in the minors' best interests. (§ 352, subd. (a).) The grandparents had more than 14 months to make arrangements to care for the minors. Instead, they waited until the section 366.26 hearing to request additional time to find suitable housing. To postpone the hearing with no indication of when or how long it would take the grandparents to make their home suitable for the minors to live in would only delay the prompt resolution of the minors' custody status. The Agency reported the minors were adjusting well to their new home and thriving under the care of their prospective adoptive parents. Any continuance, regardless of how brief, would have impacted the minors' need to have their placement made secure. Because Father did not show good cause, the court did not err by denying his request for a continuance. (See In re Gerald J., supra, 1 Cal.App.4th at p. 1187.)

III. Beneficial Parent Child Relationship Exception

Father challenges the sufficiency of the evidence to support the court's finding the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(B)(i), did not apply to preclude terminating his parental rights.

A

We review the judgment for substantial evidence. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576 (Autumn H.).) "Adoption, where possible, is the permanent plan preferred by the Legislature." (Id. at p. 573.) If the court finds a child cannot be returned to his or her parent and is likely to be adopted if parental rights are terminated, it must select adoption as the permanent plan unless it finds termination of parental rights would be detrimental to the child under one of six specified exceptions. (§ 366.26, subd. (c)(1)(B)(i)-(vi); In re Erik P. (2002) 104 Cal.App.4th 395, 401.)

Section 366.26, subdivision (c)(1)(B)(i), provides an exception to the adoption preference if termination of parental rights would be detrimental to the child because "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." We have interpreted the phrase "benefit from continuing the [parent-child] relationship" to refer 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 parent's rights are not terminated." (Autumn H., supra, 27 Cal.App.4th at p. 575; accord In re Zachary G. (1999) 77 Cal.App.4th 799, 811.)

To meet the burden of proof for this statutory exception, the parent must show more than frequent and loving contact, an emotional bond with the child or pleasant visits. (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) "Interaction between natural parent and child will always confer some incidental benefit to the child. . . . The relationship arises from day-to-day interaction, companionship and shared experiences." (Autumn H., supra, 27 Cal.App.4th at p. 575.) Although day-to-day contact is not required, it is typical in a parent-child relationship. (In re Casey D. (1999) 70 Cal.App.4th 38, 51.) The parent must show he or she occupies a parental role in the child's life, resulting in a positive and emotional attachment from child to parent. (Autumn H., supra, at p. 575; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)

B

Father argues he regularly visited the minors after being released from custody in March 2010 and thus, his visitation with the minors should be considered regular. Father, however, did not maintain regular contact with the minors from March 2009 through March 2010. He did visit the minors about 10 times from March 2010 through May 2010 for a total of 15 visits over a period of 15 months. Although it may not have been easy for Father to physically see the minors while he was in custody, he did not call the minors or their caregiver from April 2009 through April 2010. There was no evidence he wrote them letters. Once released from custody, Father did not show that he made efforts to contact the minors outside of the visitation schedule. Thus, Father did not maintain regular visitation and contact with the minors.

Even if he had maintained regular contact with the minors, Father did not show he had a beneficial relationship with the minors. When visits did take place, Father was appropriate with the minors. Father would play with the minors, bring them food and gifts and was kind to them. The minors also displayed affection toward Father. Father, however, had not fulfilled a parental role in the minors' lives for about 14 months. The minors did not live with the Father during this time and had little contact with him. In addition, the social worker opined that the minors viewed Father more like a friend or playmate, instead of a parent. (In re Casey D, supra, 70 Cal.App.4th at p. 53 [trial court entitled to find social worker credible and give great weight to her assessments and testimony].) Where, as here, a biological parent does not fulfill a parental role, the "child should be given every opportunity to bond with an individual who will assume the role of a parent." (In re Brittany C. (1999) 76 Cal.App.4th 847, 854.)

Further, there was no evidence that the minors had a substantial, positive emotional attachment to Father to permit the conclusion that terminating the parent-child relationship would result in great detriment to the minor. (In re Autumn H., supra, 27 Cal.App.4th at p. 575; compare In re S.B. (2008) 164 Cal.App.4th 289, 294-295, 298-300 [minor would be greatly harmed by loss of significant, positive relationship she had with father, who complied with every aspect of his case plan].) The minors did not cry or show signs of distress after visits with Father ended. The minors were instead happy to see their caregivers. After one visit, Ramon ran to his foster mother's truck and yelled, "[T]here's my mom." During another visit, the social worker instructed Erik to say goodbye to his parents and instead of saying goodbye to Father and Yadira, he turned to say goodbye to his foster parents. The minors were thriving in their current placement and looked to their caregivers to meet their needs. They referred to their caregivers as "mommy and daddy." Although Father loves the minors, "this is simply not enough to outweigh the sense of security and belonging an adoptive home would provide." (In re Helen W. (2007) 150 Cal.App.4th 71, 81.) The evidence thus showed the minors would benefit more from the permanence of adoption than they would from maintaining a relationship with Father. Substantial evidence supports the court's finding the exception of section 366.26, subdivision (c)(1)(B)(i), did not apply to preclude terminating parental rights.

DISPOSITION

The judgment is affirmed.

WE CONCUR: BENKE, J. McINTYRE, J.


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