In re A.C. CA6

Filed 7/12/13 In re A.C. CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

SIXTH APPELLATE DISTRICT

In re A.C., a Person Coming Under the H038820
Juvenile Court Law. (Santa Clara County
Super. Ct. Nos. JD20320, JD20322)

SANTA CLARA COUNTY
DEPARTMENT OF FAMILY AND
CHILDREN‟S SERVICES,

Plaintiff and Respondent,

v.

ANA C.,

Defendant and Appellant.

Ana C. (mother) appeals from an order terminating reunification services and
setting a selection and implementation hearing (Welf. & Inst. Code, § 366.26)1 for her
sons, five-year-old A.C. and two-year-old L.H. She also appeals from an order denying
her petition for modification pursuant to section 388. She contends: (1) the juvenile
court abused its discretion when it denied her motion to continue the section 388 and
section 366.26 hearing, and (2) there was insufficient evidence to support the finding that
A.C. and L.H. were adoptable. We find no error and affirm.

1
All further statutory references are to the Welfare and Institutions Code.

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 I. Statement of Facts
On September 22, 2010, the Department of Family and Children‟s Services
(Department) filed petitions alleging that three-year-old A.C., three-month-old L.H., and
two-year-old V.C. came within the provisions of section 300, subdivisions (b) [failure to
protect].2 The petitions alleged: (1) the children were at significant risk due to repeated
exposure to domestic violence between their mother and her boyfriend A.B., L.H.‟s
father, (2) the police responded numerous times to the family‟s home on domestic
violence calls, (3) the mother exhibited symptoms of untreated mental health problems,
(4) A.C. reported that his mother and A.B. regularly hit him on his head, torso, and
buttocks with a belt, their hands and sandals, (5) the mother had a history of
methamphetamine use and tested positive for methamphetamine in family court in 2009,
and (6) the mother failed to acknowledge the danger that A.B. posed to her children. All
three children were detained and supervised visitation was ordered for the mother.
In November 2010, the jurisdiction/disposition report was filed. The social
worker recommended that the juvenile court take jurisdiction of the children, remove
them from their mother‟s care, and provide the mother with reunifications services for
A.C. and L.H. It was also recommended that V.C. be placed with her father under a plan
of family maintenance.
According to the report, the mother went to the police station and stated that she
had been a victim of domestic violence on September 19, 2010. A.B. had pushed her,
repeatedly struck her head and arms, and scratched her shoulder with car keys. She also
stated that A.B. had struck her three to four times in the last two years in her children‟s
presence. A.B. was arrested and denied hitting or assaulting the mother. Four days later,
the mother told the social worker that A.B. had never hit her before the September 19
incident, blamed herself for antagonizing him, and bailed him out of jail because she did
not want him to lose his job. The mother also stated that she was diagnosed with bi-polar
and anti-social personality disorders when she was 14 years old and acknowledged that

2
V.C. was placed with her father under a program of family maintenance and is not
part of this appeal.

2
she needed mental health treatment. The mother told the social worker that she did not
graduate from high school and had difficulty finding work because she was an
undocumented immigrant.
In addition, the social worker reported that A.C. had excellent verbal skills and
showed no signs of developmental delays. However, he exhibited signs of emotional
distress by expressing fear of being hit, crying often, and having nightmares. L.H. was
not showing any signs of emotional distress. The mother visited her children twice a
week for two hours.
The juvenile court found the allegations of the petitions, as amended, to be true
and took jurisdiction of the children. The disposition hearing for A.C. was continued so
that paternity could be established. The juvenile court adjudged L.H. a dependent of the
court and ordered him removed from his mother‟s custody. The juvenile court also
ordered that reunification services be provided to the mother for L.H. These services
included: (1) completion of a parent orientation class, a Basic Positive Parenting class,
and a Parenting Without Violence class; (2) counseling to address issues of domestic
violence and its impact on the family; (3) participation in a psychological evaluation and
compliance with the recommendations of the evaluator; (4) attendance at a domestic
violence victims‟ support group; and (5) visitation.
An interim review report was filed on December 15, 2010. In an interview on
November 18, 2010, the mother told the social worker that she wanted to reunify with her
children and missed them deeply, but she did not believe that there was any domestic
violence in her relationship with A.B. However, the social worker attached a police
report in which the mother told the police that A.B. had pushed her into a wall and
injured her during the weekend of November 13-14, 2010. The interim review report
also indicated that the mother had completed the parent orientation class, did not receive
a certificate of completion for the Basic Positive Parenting class, was awaiting enrollment
for the Basic Parenting Class, was participating in counseling, had not yet had the
psychological evaluation, and was attending a domestic violence victims‟ support group.
It was also reported that there were no problems with visitation.

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 At the dispositional hearing for A.C., the juvenile court adjudged him a dependent
of the court and ordered him removed from his mother‟s care. The juvenile court also
ordered that reunification services be provided to the mother for A.C. These services
were similar to those offered in L.H.‟s case.
In the report for the six-month review hearing for both children, the Department
recommended that the juvenile court terminate reunification services for A.B. and
continue reunification services for the mother. The report also stated that the mother
continued to have contact with A.B. even though there was a no-contact restraining order.
On January 18, 2011, the mother informed the social worker that she had left A.B. and
was living with a friend. However, the mother and A.B. were involved in a physical and
verbal domestic violence incident a few days later, and A.B. was arrested and charged
with corporal injury on a spouse. After A.B. was released from custody, he went to the
mother‟s residence on April 2, 2011, grabbed her by the throat and choked her. A.B. was
arrested and charged with corporal injury on a spouse and violation of a protective order.
On April 6, 2011, A.B. pushed the mother to the ground in a parking lot and she was
injured. The social worker also spoke with A.B.‟s probation officer Leslie Anaya a few
weeks later. Anaya stated that during a meeting with A.B., A.B. received 14 calls on his
cell phone from the mother. Anaya also stated that at A.B.‟s criminal hearing on
April 8, 2011, the mother “repeatedly plead[ed] with the Judge for a peaceful contact
order, and even after the Court hearing was over, she wanted to meet with [A.B.] and
waited for him in the lobby.”
The report stated that the mother continued to attend individual therapy, had
participated in a psychological evaluation, and had completed the domestic violence
support group. The mother was also consistently visiting her children. The report
indicated that both children were meeting developmental milestones. According to the
foster parent, A.C. was no longer having nightmares or feeling afraid, and “always wants
to help.” L.H. was not showing any signs of emotional stress.

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 The six-month review hearing was held on April 28, 2011. The juvenile court
ordered that the mother continue to receive reunification services for A.C. At A.B.‟s
request, a contested hearing was scheduled regarding L.H.
An addendum report dated June 16, 2011, stated that A.B. had been arrested on
May 23, 2011. After the mother called A.B., they met at a park and A.B. began yelling at
her.
In an addendum report dated August 4, 2011, the Department recommended that
the court terminate reunification services for both the mother and A.B. The social worker
had received a CD of 84 recorded telephone conversations between the mother and A.B.,
who was then incarcerated. A.B. was extremely verbally abusive to the mother and she
continued to express her emotional dependence on him. The social worker also received
a copy of the recorded window telephone visits between A.B. and the mother at the
facility. During one of these visits, when A.B. became verbally abusive to the mother,
she responded by telling him that she loved him, would wait for him, and apologized for
upsetting him. At the end of the visit, they discussed “how much they love[d] each other
and that they [would] be a family soon.”
On September 22, 2011, the juvenile court held the contested hearing in L.H.‟s
case. The social worker testified as an expert in risk assessment, placement of dependent
children, and assessment of domestic violence issues. She testified that A.B. had been
charged in connection with four incidents of domestic violence involving the mother
between November 2010 and May 2011. The social worker was no longer
recommending reunification services for the mother because she had not adequately
addressed domestic violence issues in her relationship with A.B. even though she had
participated in three domestic violence support groups and individual therapy. The
mother had also told the social worker several times that she would not leave A.B.
Following the hearing, the juvenile court terminated reunification services for both
the mother and A.B. and set the matter for a section 366.26 hearing for L.H. on
January 18, 2012.

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 In the report dated October 18, 2011, for the 12-month review hearing for A.C.,
the Department recommended termination of reunification services for the mother. A.C.
continued to reside in a concurrent foster home with L.H. and to meet developmental
milestones. He initially had difficulty transitioning to a Head Start program. However,
he was very excited about the program after two weeks and was making new friends. On
October 11, 2011, the foster parent contacted the social worker and expressed her
concerns about A.C.‟s emotional well-being. A.C. worried about having enough food,
was jealous of L.H., became anxious before visits with his mother, and was mimicking
A.B.‟s behavior. The social worker referred A.C. for individual therapy.
According to the 12-month review report, the mother continued to participate in
individual therapy and had participated in a psychological evaluation. The psychologist
stated that the mother met the diagnostic criteria for “Amphetamine Dependence,
sustained Full Remission, Depressive Disorder Not Otherwise Specified, and Histrionic
Personality Disorder.” However, the mother had not followed the psychologist‟s
recommendation to participate in a medical evaluation.
On October 26, 2011, the mother did not appear for the 12-month review hearing
regarding A.C. and the juvenile court denied the request for a continuance. The juvenile
court terminated reunification services for the mother and set a section 366.26 hearing for
February 22, 2012.
The child advocate for A.C. submitted a report in October 2011. He described
A.C. as “pleasant,” “sweet,” “caring,” “independent,” and “responsible.” A.C. interacted
well with adults, but his interactions with children needed improvement at times.
The report for the section 366.26 hearing on January 18, 2012, stated that L.H.
was a healthy and happy one-year-old child who was meeting developmental milestones.
According to the social worker, the likelihood of adoption was high. The child advocate
submitted a report and described L.H. as “thriving in his current environment” and “a
typical toddler [who] show[ed] no obvious ill effects of his situation.”
On January 18, 2012, the Department requested a continuance of the section
366.26 hearing for L.H. The Department had identified adoption as the permanent plan

6
and sought additional time to identify a prospective adoptive family. L.H.‟s current
placement had previously been identified as a concurrent adoptive home. However, on
November 21, 2011, the foster parent had reported that she could not be the concurrent
home due to “personal reasons that included not wanting to be involved with L.H.‟s
biological family‟s reactions to the plan of adoption.” The mother, who was present, did
not object to the request. The juvenile court continued the section 366.26 hearing to
May 10, 2012.
The report for the section 366.26 hearing for A.C. also recommended adoption as
the permanent plan and requested a continuance to identify a prospective adoptive family.
For the same reasons that were given in L.H.‟s case, the foster parent for A.C. had
reported that she could not be the concurrent home. The social worker stated that A.C.
appeared to be “developmentally on target,” and a “very intelligent, vocal, friendly and
nurturing boy.” Based on these qualities, the social worker stated that the likelihood of
adoption for A.C. was high. His Head Start teacher described him as a “smart little boy,”
that is, “whatever they [taught him], he [understood] the concept.” He also shared his
knowledge with staff and peers. The teacher reported that A.C.‟s behavior had improved
a lot since August 2011 when he first started the Head Start program. He no longer
pushed or hit his classmates and he followed directions.
An initial mental health assessment on February 9, 2012, stated that A.C.
“present[ed] with irritability, sleep disturbance, restlessness, anger, and anxious
thoughts.” A.C. expressed anxiety about when he would see his mother again and if he
would be reunified with her. He also expressed sadness about not seeing V.C. on a
regular basis. In addition, A.C. was reenacting the domestic violence that he had
witnessed by playing rough with adults and telling them “it‟s okay, it won‟t hurt,” and
becoming angry when they told him to stop. According to the assessor, A.C. was “on
target in all areas of physical and socio-emotional development” and was a “very caring,
friendly, insightful, and creative” boy, who “openly engages with peers and adults.” The
assessor concluded that his symptoms were demonstrated after he visited his mother, and
her inconsistent attendance at supervised visits contributed to his anxiety. A.C. was also

7
worried about being separated from V.C. and his current foster parent, and he struggled
with adjusting to having strong attachments to both his biological family and his current
foster family. Thus, the assessor diagnosed him with adjustment disorder with anxiety.
The assessor recommended that he continue with therapeutic services to cope with his
current symptoms and to provide support for the transition to a new home.
The child advocate for A.C. prepared a report in which he stated that A.C. was “an
extraordinary child,” had “great potential,” and was “a sweet and adorable boy.” A.C.
enjoyed living in the same house as L.H. and often asked if L.H. could accompany them
on their outings. A.C. had become more comfortable interacting with other children his
age and interacted well with adults. He was very imaginative, could sing the alphabet,
count to 16, and had a good sense of time and the days of the week. The child advocate
also described him as an “enjoyable child to be around.”
At the section 366.26 hearing on February 22, 2012, the Department identified
adoption as the permanent plan and requested a continuance to locate A.C.‟s father. The
juvenile court continued the matter to May 24, 2012.
An addendum report dated April 27, 2012, recommended that the mother‟s
parental rights be terminated as to L.H. The social worker was assessing the home of the
maternal grandmother, who was interested in adopting L.H. and A.C. Though the
maternal grandmother did not have a criminal record or substantiated child protective
services allegations against her, there was a history of concerns regarding her reactions to
the mother and the social worker needed additional time to complete the relative
assessment. The maternal aunt had reported that she could not provide a placement for
the boys.
On May 10, 2012, the mother was present at the continued section 366.26 hearing
for L.H. After the mother requested a contested hearing, the matter was continued to
June 7, 2012.
An addendum report dated May 23, 2012, for the continued section 366.26 hearing
for A.C. recommended termination of parental rights and the selection of adoption as the

8
permanent plan. The social worker had not completed her assessment of the maternal
grandmother and requested a continuance to identify a prospective adoptive family.
On May 24, 2012, the mother was present at the continued section 366.26 hearing
for A.C. She requested a contested hearing, and the matter was scheduled for
June 7, 2012.
On June 7, 2012, the same day of the scheduled contested hearing for both
children on the section 366.26 recommendations, the mother filed a section 388 petition
in which she requested the return of both children to her care with family maintenance
services. She alleged that she was supporting herself as an office assistant, living in a
suitable place for her children, no longer responding to A.B.‟s attempts to contact her,
and participating in counseling, parenting classes, and support groups. She also alleged
that it was best for her children to be returned to her care because the Department had not
yet identified a concurrent home for them. The juvenile court then scheduled the
contested section 366.26 hearing for both children as well as the hearing on the mother‟s
section 388 petition for August 23, 2012.
On August 23, 2012, the Department submitted its report in response to the
mother‟s section 388 petition. The social worker stated that she did not have verification
of the mother‟s employment or her participation in therapy or other information provided
in her petition. On June 7, 2012, the mother told the social worker that her therapist had
informed her that she did not need any further treatment, and consequently she was no
longer participating in therapy. The mother had also not been available for an in-person
visit with the social worker at her residence.
The report summarized the mother‟s contacts with the Department during July and
August 2012. On July 17, 2012, the mother left a message with the social worker that she
had a family emergency, was cancelling a visit with her children, and would be back on
July 20, 2012. On July 27, 2012, the mother called the social worker and reported that
she went to Mexico to take care of “the mother of her mother” and that she would be
getting a passport in one week. She was unable to provide the address where she was
staying in Mexico. On August 5, 2012, the mother called the social worker and indicated

9
that she was aware of the hearing on August 23, 2012. She also reported that she was
going to a psychiatrist in Mexico and was prescribed medication, which she was taking.
Though A.B. had been deported to Mexico, the mother denied that she had had any
contact with him. On August 16, 2012, the mother left a voicemail message stating that
she was in Mexico and her documents were being delayed. She asked if the court could
reschedule her hearing. On August 20, 2012, she left another voicemail message for the
social worker in which she stated that she was on her way to San Jose. 3 On August 22,
2012, the mother reported that she was in San Diego, had been given a visa and passport,
and was trying to make it to San Jose prior to the August 23, 2012 hearing.
The report also stated that the mother had consistently visited her children until
July 16, 2012. After that date, the mother had Skype visits with the children, but it was
confusing for A.C. to see his mother over the internet. During the period when the
mother was not visiting, A.C. did not ask for her and his behavior did not change.
According to the social worker, the maternal grandmother had been eliminated as
a possible placement for the children. A prospective adoptive home was later identified
and the first pre-placement visit was scheduled for August 24, 2012. However, a paternal
aunt of L.H. had then asked to be considered for placement of the children. The social
worker intended to assess the paternal aunt and, if she were approved, the children would
be placed with her. If not, the children would be placed with the identified prospective
adoptive home.
On August 23, 2012, the mother did not appear for the hearing. The mother‟s
counsel requested a continuance. The mother had contacted her counsel “a few hours”
earlier and stated that she was “currently on a Greyhound bus from San Diego to San Jose

3
However, on August 21, 2012, the maternal grandmother contacted the social
worker and reported that when the mother received a credit card, she would have the
money to return to the United States. The maternal grandmother did not know why the
mother went to Mexico. According to the maternal grandmother, the mother and her
grandmother “do not have close contact because [the mother‟s grandmother] does not
want „problems.‟”

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and . . . that she [would] be arriving tomorrow in San Jose . . . .” The juvenile court then
continued the matter to August 29, 2012.
On August 29, 2012, the mother did not appear for the hearing. The mother‟s
counsel again requested a continuance, stating that the mother “believe[d] that she could
be here within approximately two weeks.” The juvenile court denied the request and
stated: “There is not good reason nor good cause to continue the proceedings further. [¶]
I do believe that under the totality of the circumstances and based on my understanding
of evidence that is likely to be received today that continuing these proceedings any
further and delaying these decisions would not be in the best interests of the children and
that the Court should move forward with the underlying proceedings.”
After reviewing the child advocates‟ reports and the Department‟s reports, the
juvenile court denied the mother‟s section 388 petition. The juvenile court found: (1)
there were no changed circumstances, and (2) it was not in the children‟s best interests to
be returned to her care “given her instability, poor decision making and apparent lack of
any insight into the issues that brought her and her children before the dependency
court . . . .” The juvenile court also found that both children were likely to be adopted
and, given their particular characteristic and qualities, they were very likely to be adopted
in the reasonably near future. The juvenile court adopted the Department‟s
recommended findings and orders as to both children and terminated the mother‟s
parental rights.

II. Discussion
A. Request for Continuance
The mother contends that the juvenile court abused its discretion when it denied
her motion to continue the section 388 and section 366.26 hearing. She contends that she
established good cause for a continuance because her “return from Mexico after a family
emergency had been delayed due to immigration difficulties.” She also asserts that “the
unresolved placement issue had created its own delay,” and thus the continuance would
not have adversely affected the children.

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 “[N]o continuance shall be granted that is contrary to the interest of the minor. In
considering the minor‟s interests, the 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. [¶]
Continuances shall be granted only upon a showing of good cause and only for that
period of time shown to be necessary . . . .” (§ 352, subd. (a).) We review a juvenile
court‟s denial of a motion for continuance under the abuse of discretion standard. (In re
Ninfa S. (1998) 62 Cal.App.4th 808, 811.)
Here, the mother failed to establish good cause for a continuance. Though the
mother had proper notice of the section 388 and section 366.26 hearings on August 23
and August 29, she apparently traveled to Mexico without the documentation necessary
to return to the United States. Moreover, the mother was not credible. On August 22,
she reported to the social worker that she had been given a visa and a passport, and the
following day, she informed her counsel that she was “currently on a Greyhound bus
from San Diego to San Jose.” However, on August 29, she requested an additional two
weeks without further explanation. The mother had also claimed that there had been a
family emergency, yet the maternal grandmother told the social worker that the mother‟s
grandmother did not want the problems associated with the mother. Based on this record,
the mother failed to establish good cause for a continuance. Accordingly, the trial court
did not abuse its discretion in denying the request.

B. Finding of Adoptability
The mother next contends that there was insufficient evidence to support the
adoptability finding. The mother argues that A.C. “was not generally adoptable because
of his emotional and behavioral issues. Because of that, [L.H.] also was not generally
adoptable because the two brothers, as a sibling set who had lived together a significant
amount of time, needed placement together.”
The juvenile court shall terminate parental rights if it “determines . . . by a clear
and convincing standard that it is likely the child will be adopted.” (§ 366.26,

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subd. (c)(1).) “In making the determination of adoptability, the juvenile court „must
focus on the child, and whether the child‟s age, physical condition, and emotional state
may make it difficult to find an adoptive family.‟ [Citation.] „A child‟s young age, good
physical and emotional health, intellectual growth and ability to develop interpersonal
relationships are all attributes indicating adoptability.‟ [Citation.]” (In re I.W. (2009)
180 Cal.App.4th 1517, 1526.)
“On review, we determine whether the record contains substantial evidence from
which the juvenile court could find clear and convincing evidence the child was likely to
be adopted within a reasonable time. [Citations.]” (In re Michael G. (2012) 203
Cal.App.4th 580, 589.) Under this standard, “[w]e resolve all conflicts in favor of the
respondent on appeal and give respondent the benefit of all legitimate and reasonable
inferences. Where the facts reasonably support more than one inference, we may not
substitute our judgment for that of the trier of fact. Considering only the evidence
favorable to respondent, the question is whether that evidence is sufficient as a matter of
law. If so, we must affirm the judgment. [Citations.]” (In re Walter E. (1992) 13
Cal.App.4th 125, 139-140.)
Here, five-year-old A.C. and two-year-old L.H. were young, physically healthy,
and shared a close relationship. Neither child was developmentally delayed. L.H. had
shown no signs of emotional distress. However, A.C. experienced symptoms of
irritability, sleep disturbance, restlessness, anger and anxious thoughts, and he had
reenacted the domestic violence that he had witnessed. Despite these symptoms, A.C.
had many positive qualities indicating that he was adoptable. The mental health assessor
described A.C. as a “very caring, friendly, insightful, and creative” boy, “who openly
engages with peers and adults.” The assessor also concluded that A.C. was “on target in
all areas of physical and socio-emotional development.” The Head Start teacher
described A.C. as a “smart” boy, who shared his knowledge with peers and staff, and
noted that his behavior had improved a lot. The child advocate for A.C. described him as
“an extraordinary child,” who was comfortable interacting with other children and adults.
In the social worker‟s opinion, the likelihood of adoption was high for both L.H. and

13
A.C. Thus, even though A.C. had experienced emotional difficulties, there was
substantial evidence to support the juvenile court‟s finding that it was likely that both
children would be adopted.
Relying on In re Kristin W. (1990) 222 Cal.App.3d 234 and In re Brian P. (2002)
99 Cal.App.4th 616, the mother also argues that the social worker‟s opinion, by itself,
was insufficient evidence to support a finding of adoptability. There is no merit to this
argument. Here, evidence of the children‟s personal characteristics was provided by the
child advocates, A.C.‟s Head Start teacher, a mental health professional, the foster parent,
and the social worker.

III. Disposition
The orders are affirmed.

_______________________________
Mihara, J.

WE CONCUR:

______________________________
Premo, Acting P. J.

______________________________
Grover, J.

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