IN RE: JERRY S. (1993)

Audrey S. appeals an order terminating parental rights to her son, Jerry S., under Welfare and Institutions Code 1 section 366.26.   Audrey claims (1) section 366.26 is unconstitutional because it permits terminating parental rights on findings by a preponderance of the evidence, rather than by clear and convincing evidence, that return of a child to parental custody would create a substantial risk of detriment to the child;  (2) the court did not expressly find she was an unfit parent;  (3) the court abused its discretion by denying her motion for continuance to obtain a psychological evaluation;  (4) there was insufficient evidence to support the court's finding of adoptability;  and (5) the court erred at the section 366.26 hearing when it did not reconsider its previous rulings that the services provided and efforts expended by the San Diego County Department of Social Services (DSS) toward reunification were reasonable.²  For the following reasons, we affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

On April 2, 1991, Jerry, then three and one-half years old, was taken into protective custody by Oceanside police because his primary caretaker, his maternal grandfather, William J., was incapable of providing a safe and healthy environment due to alcohol abuse, the uncleanliness of his home, and an absence of food.   A petition under section 300, subdivision (b) was filed.

William stated he had cared for Jerry since he was approximately two months old, when Jerry's mother commenced serving a 12–year sentence in Illinois for armed robbery.   He and Jerry moved to California from Illinois in September 1990.   William was receiving Social Security disability benefits due to his epilepsy, a plate in his head, and partial blindness.

Records disclosed prior referrals to child protective services in Illinois in 1988, and San Diego County in February 1991, when William and Jerry were escorted home at 2 a.m. by police because William was intoxicated.   When DSS visited William in March, he denied alcohol abuse and refused any services or referrals.   At that time, DSS determined there was not a current protective issue.

Other sources revealed William was repeatedly intoxicated the first of each month when he received his Social Security benefit checks, and he used abusive language with Jerry.   Supervision was lacking to the extent Jerry was seen climbing on second story balcony rails, and there was concern he was not being fed properly.   A family member confirmed William's alcoholism and propensity for loss of consciousness while intoxicated, and that Jerry had been a premature infant born with cocaine in his system.

Before the detention hearing, Audrey was contacted at Dwight Women's Prison in Illinois.   Although she left Jerry in William's care when she began serving her sentence, Audrey denied giving custody to William, or permission to take Jerry out of the State of Illinois.   She also denied ingesting drugs during her pregnancy.   She further related William had also been caring for her 11–year old son, Danny, but he had run away because of physically abusive treatment.   Audrey stated William had been a poor parent to her, and she requested Jerry not be returned to him.   She advised DSS of Jerry's biological father, and they commenced a search for him.   At the time of this conversation, Audrey anticipated her release date as being the latter part of 1992.

At the detention hearing on April 8, the court concluded Jerry was a child defined within section 300, subdivision (b) with no reasonable means to protect him from substantial physical danger absent removal ³ from parental custody.   Consequently, the court ordered Jerry detained pending further proceedings.   Audrey was notified of this decision.

The jurisdictional/dispositional hearing on April 22 resulted in a finding by clear and convincing evidence the allegations of the petition were true.   Audrey was notified of a further scheduled dispositional hearing.

When a DSS social study reported Jerry's speech appeared to be significantly delayed, a speech and hearing evaluation was scheduled.   Although the problem appeared to be improving, Jerry was also aggressive and had difficulty getting along with other children.   It was also noted reunification services could not be implemented until perhaps January 1993.⁴  At this juncture, Jerry had no recollection of Audrey.   It was recommended Jerry remain in a long-term foster home setting,⁵ a reunification plan be implemented, and the court take jurisdiction over Jerry.

At the continued hearing, the court found jurisdiction under section 300, subdivision (b) and ordered parental custody removed.⁶  It further found the recommended reunification plan involving parenting classes, rehabilitation, and counseling was reasonably fashioned, and ordered its implementation.   A six-month hearing was scheduled for October 31, and Audrey was notified.

DSS's review report filed October 4th, revealed Jerry had been tested by a speech therapist and the results disclosed delayed speech, but Jerry was adapting well to his surroundings in his foster home.   Enough so, that he was now capable of commencing therapy.

DSS had been in contact with Audrey who expressed a desire to reunify with Jerry.   Audrey attempted to telephone Jerry twice in June, but his verbal skills had not developed to a level where he could communicate with her.   DSS also received two letters on October 1, which Audrey requested be forwarded to Jerry.

Although Audrey had received letters with copies of the reunification plan, she made no progress toward successfully completing its requirements.   As a result of Audrey's continuing incarceration and DSS's inability to locate Jerry's father, or other relatives willing to care for him, DSS recommended Jerry remain in the foster home.

At the six-month review hearing, the court found by clear and convincing evidence Jerry was still at risk of substantial harm if returned ⁷ to Audrey, and that Audrey had not complied with the reunification plan.   The court further found reasonable services had been provided and offered to Audrey, and that the reunification plan still remained reasonably fashioned.   Therefore, it ordered reunification services continued, and set a 12–month review hearing, of which Audrey was notified.

In DSS's review report filed April 20, 1992, they reported Jerry was in therapy and doing well in his foster home.   Audrey's last correspondence with Jerry was in December, as she had not attempted to telephone him since the six-month review hearing in October.

Audrey's correctional counselor reported to DSS Audrey began parenting classes and counseling in February, but she did not speak about Jerry extensively.   Although DSS had written letters to Audrey and also requested, through the counselor, she contact them by telephone, she failed to do so.

DSS recommended, inter alia, reunification services be terminated, a section 366.21, subdivision (i) assessment be prepared, and a section 366.26 hearing be held within 120 days for a determination on a permanent plan of long-term foster care, legal guardianship, or termination of parental rights and adoption.

At the 12–month review hearing on May 14, the court found by clear and convincing evidence there remained a substantial risk of harm to Jerry, and there was not a substantial probability he would be returned to Audrey by the 18–month time period.   It further found reasonable services had been provided to Audrey, to the extent possible while she was incarcerated, to aid her in overcoming the problems which led to Jerry's removal and ordered them terminated.   Moreover, it found Audrey had not made substantial progress toward alleviating the causes necessitating Jerry's foster care.   DSS was ordered to facilitate telephonic contact between Audrey and Jerry.   As requested by DSS, a section 366.26 hearing was scheduled, and Audrey was notified.

DSS's September 2 assessment report reiterated Audrey's minimal contact with Jerry.   With the exception of a few telephone calls and letters, and a birthday and Christmas card,⁸ Audrey had made no other attempts to communicate with Jerry.   Repeated written and oral requests for Audrey to contact DSS went virtually unanswered.⁹  The whereabouts of Jerry's father remained unknown.

The report noted Jerry's foster mother was very attentive to his particular needs, such as working closely with his speech therapist, with whom he had made significant progress.   Although of mixed ethnicity, one-fourth Afro–American, one-fourth Puerto Rican, and one-half Caucasian, Jerry identified with his Hispanic foster father's skin color.   His therapist indicated at the time his therapy ceased in May, he was extremely verbal and interacting well with the therapist.

The DSS concluded Jerry was adoptable.   He was described as engaging and likable without significant emotional or physical problems.   Although no one family had been found, DSS felt there were a number of applicants that could meet Jerry's needs.   When the topic of adoption was addressed, Jerry stated he wanted “a mommy and daddy.”

As a result of Audrey's virtually non-existent contact with Jerry (now 5 years old) since he was 4–months old, her uncooperativeness with DSS, and a release date of January 1993, well after the 18–month period, it was recommended parental rights be terminated and a permanent plan of adoption implemented.

Pursuant to the agreement of all counsel, on September 21, the 366.26 hearing was continued to November 20, to afford time to obtain a psychiatric evaluation of Audrey.   At the continued hearing, the court denied Audrey's motion for a further continuance to obtain a psychiatric evaluation because it believed the parties had sufficient information regarding Audrey, and good cause had not been shown for continuance.

DSS officials at the November 20 section 366.26 hearing testified to Jerry's lack of bonding with Audrey, her infrequent attempts to communicate with him, and her noncompliance with the reunification plan and DSS requests.   Audrey testified telephonically she had attempted to communicate with Jerry on a much more frequent basis than that represented by DSS officials.   Her testimony suggested it was difficult to comply with the reunification plan and communicate with Jerry, because of the constraints imposed by her incarceration.

After considering the testimony, the court found by clear and convincing evidence termination would not be detrimental to Jerry and that he was adoptable.   Accordingly, it ordered parental rights terminated.

I

A FINDING OF PARENTAL UNFITNESS BY CLEAR AND CONVINCING EVIDENCE IS NOT REQUIRED AT THE SECTION 366.26 HEARING

 Audrey contends section 366.26 violates the due process clause because it allows termination of parental rights based on a finding by a preponderance of the evidence, rather than clear and convincing evidence, return of a child to parental custody would create a substantial risk of detriment to the child.   In light of the Supreme Court's recent decision in Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 19 Cal.Rptr.2d 698, 851 P.2d 1307, we reject Audrey's contentions.

In Cynthia D. the court succinctly stated:

“By the time of the section 366.26 hearing, no state interest requires further evidence of the consequences to the child of parental unfitness, let alone evidence that meets an elevated standard of proof.

“․ the procedure specified in section 366.26 for terminating parental rights comports with the due process clause of the Fourteenth Amendment because the precise and demanding substantive and procedural requirements the petitioning agency must have satisfied before it can propose termination are carefully calculated to constrain judicial discretion, diminish the risk of erroneous findings of parental inadequacy and detriment to the child, and otherwise protect the legitimate interests of the parents.   At this late stage in the process the evidence of detriment is already so clear and convincing that more cannot be required without prejudice to the interests of the adoptable child․”  (Id. at p. 256, 19 Cal.Rptr.2d 698, 851 P.2d 1307.)

As discussed infra, a finding of parental unfitness by clear and convincing evidence was made here before the section 366.26 hearing;  it was made at the section 366.21 hearing.   Thus, pursuant to Cynthia D., the court was under no duty to revisit that issue.

II

A FINDING OF “SUBSTANTIAL RISK OF DETRIMENT” EQUATES TO A FINDING OF “PARENTAL UNFITNESS”

 Audrey contends she was denied due process because there was neither evidence nor a finding of parental unfitness before terminating her parental rights.   Preliminarily, this issue should have been addressed by seeking relief by extraordinary writ immediately after the 12–month hearing (§ 366.21).   She relies on the repeated reference to a finding of “parental unfitness” in Cynthia D.   We conclude she misinterprets the thrust of that decision.

Sections 366.21, subdivision (f) and 366.22, subdivision (a) pertinently provide the court shall return the minor, unless, by a preponderance of the evidence, it finds such return would create a substantial risk of detriment to the minor's well-being.

 The terms “substantial risk of detriment” and “parental unfitness” are used interchangeably in Cynthia D.   There, the decision states the juvenile court found the minor would be exposed to a “substantial risk of detriment” if returned to her mother's custody.  (Cynthia D. v. Superior Court, supra, 5 Cal.4th at p. 245, 19 Cal.Rptr.2d 698, 851 P.2d 1307.)   Thus, on the facts recited by the Supreme Court, Cynthia's parental rights had not been terminated after a finding expressed in its opinion that a finding of “parental unfitness” is required before a section 366.26 hearing, and that such finding had been made.  (Id. at pp. 253, 256, 19 Cal.Rptr.2d 698, 851 P.2d 1307.)   We conclude the Supreme Court found the terms “parental unfitness” and “substantial risk of detriment” to be interchangeable in context of its decision.

Further, we conclude that inherent in a finding a child would risk “substantial detriment” if returned to the custody of a parent, is that it is the parent's lack of parenting qualities that endangers the child, i.e. that that person is unfit to resume a parental role with that child.

Here, in accordance with section 366.21, subdivision (f), the court reviewed DSS's April 30th report disclosing Audrey's noncompliance with the reunification plan, lack of cooperation with DSS, and her lack of bonding and communication with Jerry.   Consequently, on substantial evidence it found not merely by a preponderance of the evidence as called for by section 366.21, subdivision (f), but by clear and convincing evidence, return of Jerry to his mother would create a “substantial risk of detriment” to his physical or emotional well-being.

III

THE COURT DID NOT ABUSE ITS DISCRETION IN DENYING AUDREY'S MOTION FOR CONTINUANCE SO A PSYCHOLOGICAL EVALUATION COULD BE OBTAINED

Audrey contends the court erred by denying her motion for continuance at the section 366.26. hearing so her previously-ordered psychological evaluation could be conducted.   She argues the examination was needed to evaluate her parental fitness, and that a continuance would not have been contrary to Jerry's interests.

 However, the issue of Audrey's parental fitness had been addressed and resolved at prior hearings.   Additionally, to reiterate, parental fitness is not an issue to be addressed at the section 366.26 hearing.  (Cynthia D. v. Superior Court, supra, 5 Cal.4th at p. 253, 19 Cal.Rptr.2d 698, 851 P.2d 1307.)

 Because her parental fitness was no longer an issue, Audrey's claim that a continuance would not have been contrary to Jerry's interests, is irrelevant.

 For Audrey to be entitled to relief on appeal from an alleged abuse of discretion, it must clearly appear the resulting injury is sufficiently grave to manifest a miscarriage of justice.  (In re Richard E. (1978) 21 Cal.3d 349, 354, 146 Cal.Rptr. 604, 579 P.2d 495.)   Here, denial of Audrey's motion for continuance did not result in a miscarriage of justice.   After hearing testimony from DSS personnel and argument from counsel, the court properly exercised its discretion.

 DSS personnel adequately testified why it had agreed to a continuance of the section 366.26 hearing scheduled for September 21 so a psychological report could be obtained.   At that time, the social worker was unfamiliar with the case and she thought the report might shed some light on Audrey's relationship with Jerry.   Thereafter, she consulted with DSS personnel familiar with the case, and discovered there was no relationship between Audrey and Jerry.   As a result, she believed the report was now irrelevant, because DSS still intended to recommend a permanent plan of adoption.

Based on this testimony, the fact prison mental health reports were obtained and available for the court's scrutiny, and because parental fitness is not an issue at a section 366.26 hearing, the court was justified in denying Audrey's motion.   The court's conclusion it had sufficient information to make a determination as to whether the relationship benefited Jerry was clearly reasonable.

 The juvenile court had the discretionary power to decide whether a continuance was warranted.   As a reviewing court, we may disturb that decision only if it exceeded the limits of legal discretion because it is arbitrary, capricious, or patently absurd.  (In re Mark V. (1986) 177 Cal.App.3d 754, 759, 225 Cal.Rptr. 460;  In re Raymundo B. (1988) 203 Cal.App.3d 1447, 1456, 250 Cal.Rptr. 812.)   Applying this standard, we conclude the court did not abuse its discretion.

IV

THERE WAS SUBSTANTIAL EVIDENCE TO SUPPORT A FINDING JERRY WAS ADOPTABLE

Audrey contends there was insufficient evidence to support the juvenile court's finding Jerry was adoptable.   She argues, inter alia, when DSS recommended a permanent plan of adoption, it failed to consider whether Jerry's mixed ethnicity would preclude him from adoption.

 When deciding whether substantial evidence supports the juvenile court's finding of adoptability, we must review the entire record in the light most favorable to its decision to determine if substantial evidence exists from which a reasonable trier of fact could find Jerry was likely to be adopted by clear and convincing evidence.  (In re Angelia P. (1981) 28 Cal.3d 908, 924, 171 Cal.Rptr. 637, 623 P.2d 198.)   If any substantial evidence exists to support the findings of the juvenile court, we must uphold the court's finding.  (In re Jeannette S. (1979) 94 Cal.App.3d 52, 58, 156 Cal.Rptr. 262.)   Moreover, it is Audrey who bears the burden of demonstrating the absence of sufficient evidence of substantial character to support the juvenile court's decision.  (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420, 159 Cal.Rptr. 460.)

 Here, Audrey has not sustained that burden because clear and convincing evidence was presented Jerry was adoptable.   Although Jerry suffered from some hyperactivity and delayed speech, which was being remedied through speech therapy, he suffered no severe mental, physical, or emotional problems.

Additionally, DSS related he was “a very engaging, likable little boy,” and although no one adoptive family had been found, there were a number of qualified adoptive families available who could meet his needs.   Although section 366.26, subdivision (c)(1) mandates termination of parental rights only if the court determines by clear and convincing evidence adoption is likely, “it is not necessary ․ that the child, at the time of the termination hearing, already be in a potential adoptive home.   Rather, what is required is clear and convincing evidence of the likelihood that adoption will be realized within a reasonable time.”  (In re Jennilee T. (1992) 3 Cal.App.4th 212, 223, 4 Cal.Rptr.2d 101, quoting In re Amelia S. (1991) 229 Cal.App.3d 1060, 1065, 280 Cal.Rptr. 503.)   A finding of adoptability requires neither a family ready to adopt, nor adoptive parents “waiting in the wings.”  (In re Jennilee T., supra, 3 Cal.App.4th at p. 223, fn. 11, 4 Cal.Rptr.2d 101.)

DSS's assessment Jerry did “not have any significant emotional or physical problems that would preclude him from adoption,” was neither an insufficient analysis, nor misleading as Audrey argues.

Further, contrary to Audrey's opinion, DSS obviously considered Jerry's mixed ethnicity.   In its assessment, it distinctly mentions “Jerry has dark hair, brown eyes, and medium complexion,” and that he identified with his Hispanic foster father's skin color.   The report also noted Jerry is one-fourth Afro–American, one-fourth Puerto Rican, and one-half Caucasian.

Viewing the record in the light most favorable to the juvenile court's decision, there is substantial evidence supporting the court's finding of adoptability by clear and convincing evidence.

V

THE COURT IS NOT REQUIRED AT THE SECTION 366.26 HEARING TO RECONSIDER THE REASONABLENESS OF DSS EFFORTS AND SERVICES

 Audrey argues the court failed to reconsider whether the services offered and efforts expended by DSS were reasonable.   She maintains the court's previous determination by clear and convincing evidence DSS services and efforts had been reasonable, was not an informed decision because counsel “belatedly conveyed to the court” at the section 366.26 hearing what he perceived to be inadequate services and efforts.

If Audrey believed after the 12–month hearing the court's decision regarding the adequacy of DSS services and efforts was erroneous or uninformed, she should have sought appropriate relief so it was brought to the court's attention before the section 366.26 hearing.

Consequently, the court's only responsibility at the section 366.26 hearing was to address two issues—whether there was clear and convincing evidence to support a finding Jerry was adoptable, and whether a previous determination had been made terminating reunification services.  (Cynthia D., supra, 5 Cal.4th at pp. 249–250, 19 Cal.Rptr.2d 698, 851 P.2d 1307.)   The court was under no duty to reconsider the reasonableness of DSS services and efforts.

DISPOSITION

The order is affirmed.

FOOTNOTES

FN1. All statutory references are to the Welfare and Institutions Code..  FN1. All statutory references are to the Welfare and Institutions Code.

2.   The remaining issues raised by Audrey are not addressed because they were not properly before this court due to her failure to seek review by extraordinary writ or timely appeal.  (In re Elizabeth G. (1988) 205 Cal.App.3d 1327, 1331, 253 Cal.Rptr. 161;  In re Christina L. (1992) 3 Cal.App.4th 404, 416, 4 Cal.Rptr.2d 680;  In re Amanda B. (1992) 3 Cal.App.4th 935, 940, 4 Cal.Rptr.2d 922;  In re Elizabeth M. (1991) 232 Cal.App.3d 553, 563, 283 Cal.Rptr. 483;  In re Rebecca H. (1991) 227 Cal.App.3d 825, 836–837, 278 Cal.Rptr. 185;  In re Arturo A. (1992) 8 Cal.App.4th 229, 237, 10 Cal.Rptr.2d 131;  In re Heidi T. (1978) 87 Cal.App.3d 864, 876, 151 Cal.Rptr. 263 [failure to object below forecloses review on appeal].)Moreover, even if review of the issues were proper at this stage in the proceedings, based on the record before us we conclude her contentions lack merit.

3.   The terms “ ‘removal’ from” or “ ‘returned’ to parent's custody” found in the record are incorrect because Audrey never had custody of Jerry;  custody was removed from William.   Therefore, custody can neither be “returned” to or “removed” from Audrey.

4.   Audrey's anticipated prison release date was January 12, 1993.

5.   On April 26, Jerry was transferred to a long-term foster care home.

6.   See footnote 4.

7.   See footnote 4.

8.   One call in April and one in October 1991;  one call in August, three calls in September and two in October 1992;  five letters, September 12, 22, and 25 and October 3 and 30, 1992;  a birthday card in August 1991;  and a Christmas card in December 1991.

9.   By way of example, in March 1991, it was requested Audrey contact DSS as soon as possible, and she did so in September 1991.

WORK, Associate Justice.

WIENER, Acting P.J., and FROEHLICH, J., concur.