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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

                                                             1
       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.

                                                2
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.)




                                             3
       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.

                                              4
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

                                             5
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.

                                              6
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).)

                                              7
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

                                             8
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

                                               9
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

                                               10
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

                                             11
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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