In re E.M.

Filed 8/23/06 In re E.M. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Irma S. (mother) appeals the juvenile court order terminating parental rights to her children, M.M. and E.M., and establishing adoption as their permanent plans (Welf. & Inst. Code, § 366.26).^[1] She contends the court abused its discretion in denying her motion to continue the permanency planning hearing. We affirm.

FACTS AND PROCEDURAL HISTORY

Mother gave birth to twins M.M. and E.M. in July 2003. The following day, the Ventura County Human Services Agency (HSA) was notified that mother had tested positive for amphetamine while she was pregnant and immediately following delivery. On December 17, 2003, HSA removed the twins after their seven-year-old half-sister, X.S., complained that she was being sexually abused by the twins' father, Manuel M. (father).^[2] X.S. reported the abuse to mother on or about November 14, 2003, yet mother waited until November 30 to disclose this information to the police. Although mother believed that X.S. was telling the truth, she continued to reside with father and failed to comply with HSA's direction to obtain a restraining order against him. When interviewed on January 9, 2004, mother told the social worker that she was planning to marry father.

When mother appeared at a scheduled supervised visit on January 21, 2004, she had visible bruises on her face and body. After she admitted that father was physically abusing her, the social worker directed her to file a police report, obtain a restraining order, and have no further contact with him. Two days later, mother admitted that she was still living with father and told the social worker "that they are going to work things out and that she has an anger management problem too and this is the only relationship she has ever had." She also claimed that she had been unable to obtain a restraining order and that she "does not know what to do" because father "has been sick and is not working as much as he was." On January 26, 2004, mother told the social worker that she was still living with father and that she still had not filed a police report or sought a restraining order against him. At the continued jurisdictional and dispositional hearing on February 24, 2004, mother's attorney reported that she was "no longer involved" with father.

The court sustained the amended dependency petitions and set the matter for a six-month review hearing on August 9, 2004. In a report submitted for that hearing, the social worker stated that mother had recently been arrested for possession and transportation of a controlled substance. It was also reported that mother had moved back in with father after he had left several threatening messages on her answering machine. HSA nevertheless recommended that mother receive an additional six months of reunification services, and the court ordered continued services.

At the 12-month review hearing on January 24, 2005, HSA reported that mother was not in compliance with her case plan. For example, she had not attended any domestic violence counseling sessions and had discontinued therapy for her sexual abuse issues. The social worker also reported that mother was unemployed and was traveling to her visits with the twins while her driver's license was suspended. Mother had also been observed holding hands with father, and had stated her belief that they could remain friends. HSA also reported that the twins and X.S. were thriving in their foster home placement.

After a contested hearing at which neither parent presented any evidence, the court terminated mother's reunification services for all three children. X.S.'s alleged father, who was in prison at the time, also first appeared at that hearing and was declared her presumed father. At mother's request, the matter was continued to July 11, 2005, to give her time to secure private counsel. At the time of that hearing, however, mother reported that she had not yet retained an attorney. The matter was set for a contested section 366.26 hearing on October 4, 2005, and the hearing was subsequently continued to November 2, 2005.

In its section 366.26 report, HSA stated that the children were "well bonded" to their foster parents, with whom they had been placed since January of 2004. HSA also indicated that the foster parents were committed to adopting all three children, and that the children were likely to be adopted even if the foster parents ultimately did not adopt them. Mother had continued to visit the twins, but frequently attempted to bring other people to the visits without permission. At one visit, mother had visible bruises on her neck, which caused X.S. to cry and express concern for her. The social worker believed that "mother shows high levels of connection to the children, but this connection appears to be for the benefit of the mother and designed to comfort the mother."

The day before the November 2 hearing, X.S.'s presumed father filed a section 388 petition requesting that he be provided reunification services based on the fact that he had not received timely notice of the dependency proceedings. At the November 2 hearing, the court granted county counsel's request to "split off" X.S.'s case from the twins and proceeded to hear X.S.'s case first. After finding a prima facie case on the section 388 petition filed by X.S.'s presumed father, the court continued X.S.'s case to November 29, 2005. When the twins' case was called immediately thereafter, mother moved for a continuance on the grounds that (1) she needed more time to file a section 388 petition alleging a change in circumstances, and (2) "we'd like to do them all at the same time since basically we will be presenting the same evidence to the Court from the mother's perspective." County counsel and the twins' attorney opposed a continuance, and the court denied the motion.

Mother testified at the hearing that she "interact[ed]" with the twins during their visits and that her relationship with them should be maintained "[b]ecause they know me." At the conclusion of the hearing, the court terminated mother's rights to M.M. and E.M. The court expressly found that the beneficial relationship exception to adoption (§ 366.26, subd. (c)(1)(A)) did not apply. The court further found that the evidence was insufficient to establish that termination of mother's rights would substantially interfere with the twins' relationship with their sister X.S. (§ 366.26, subd. (c)(1)(E)) because it was "speculative" to assume that X.S. would not ultimately be adopted by the foster parents as well.

DISCUSSION

Mother contends the court abused its discretion in denying her motion to continue the section 366.26 hearing because she needed more time to file a section 388 petition. She also contends for the first time on appeal that the denial of a continuance effectively deprived her of the opportunity to establish that the sibling relationship exception to adoption (§ 366.26, subd. (c)(1)(E)) applied. Neither contention has merit.

Continuances in dependency proceedings are discouraged and may only be granted on a showing of good cause. (§ 352, subd. (a); Cal. Rules of Court, rule 1422(a)(2); Jeff M. v. Superior Court (1997) 56 Cal.App.4th 1238, 1242.) Section 352 subdivision (a) provides that "no 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."

The court did not abuse its discretion in denying the requested continuance. First, mother made no showing as to why she needed more time to file a section 388 petition. The section 366.26 hearing was continued a total of five months, giving mother ample time to file a petition alleging a change in circumstances. She also failed to make any offer of proof from which the court could infer such a change. Moreover, by the time the section 366.26 was finally held, the twins had been in a temporary placement for eighteen months beyond the six-month reunification period that applies to children who are under three years of age at the time of removal. (§§ 361.5, subd. (a)(2); 366.21, subd. (e).) Because "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" are of paramount concern in deciding whether to grant a continuance (§ 352, subd. (a)), the court did not abuse its discretion in denying mother's request to continue the matter for an unspecified section 388 petition that mother had plenty of time to file.

As for mother's claim that the denial of a continuance deprived her of the ability to establish that the sibling relationship exception to adoption applied, the claim is waived because it was not presented below. Although mother's attorney raised the sibling relationship exception at the conclusion of the section 366.26 hearing, the exception was not urged as a basis for continuing the hearing. The court cannot be said to have abused its discretion in refusing to grant a continuance on a ground that was never raised.

In any event, the denial of a continuance did not deprive mother of the opportunity to establish that the sibling relationship exception to adoption applied. According to mother, she was entitled to a continuance because she had a better chance of establishing that the beneficial relationship exception to adoption applied as to X.S., which in turn would have supported a claim that the sibling relationship exception applied as to the twins. The problem with this approach is that mother never made any showing that the sibling relationship exception would apply even if X.S. were not ultimately adopted by the family that intends to adopt the twins. "To show a substantial interference with a sibling relationship the parent must show the existence of a significant sibling relationship, the severance of which would be detrimental to the child. Many siblings have a relationship with each other, but would not suffer detriment if that relationship ended. If the relationship is not sufficiently significant to cause detriment on termination, there is no substantial interference with that relationship." (In re L.Y.L. (2002) 101 Cal.App.4th 942, 952, fn. omitted.) On this issue, the party urging application of the exception bears a "heavy burden" of proof. (In re Daniel H. (2002) 99 Cal.App.4th 804, 813.)

Mother demonstrated, at most, that X.S. had a good relationship with her siblings. She made no showing that the termination of her rights as to M.M. and E.M. would be detrimental to them as contemplated by section 366.26, subdivision (c)(1)(E). The prospective adoptive parents have indicated that they are not opposed to open adoption, which would allow the children to maintain their relationships regardless of their placements. Indeed, the foster parents already consider X.S. as their daughter and are eager to adopt her along with the twins. Even if X.S. ultimately reunites with one or both of her parents, a possibility the court correctly characterized as "speculative," the nature of the situation and the foster parents' commitment to the well-being of all three children indicate that there will be no substantial interference with the sibling relationship.

The judgment (order terminating parental rights) is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

YEGAN, J.

Tari L. Cody, Judge

Superior Court County of Ventura

______________________________

Lawrence E. Fluharty, under appointment by the Court of Appeal, for Defendant and Appellant.

Noel A. Klebaum, County Counsel, Patricia McCourt, Assistant County Counsel, for Plaintiff and Respondent.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.

^[1] Statutory references are to the Welfare and Institutions Code, unless otherwise noted.

^[2] Manuel M. is not a party to this appeal.