In re Robert S.
Filed 6/6/07 In re Robert S. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re ROBERT S. et al., Persons Coming Under the Juvenile Court Law. | |
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. RICHARD S., et al., Defendants and Appellants. | D049541 (Super. Ct. No. EJ02627A-B) |
APPEAL from a judgment of the Superior Court of San Diego County, Gary M. Bubis, Judge. Affirmed.
Richard S. appeals a judgment of the juvenile court terminating his parental rights to his minor children Robert and Jacob (together the minors) under Welfare and Institutions Code section 366.26.[1] Richard 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)(A) did not apply to preclude terminating his parental rights. Victoria S., the minors' mother, joins in Richard's argument and further contends the court abused its discretion by denying her request for a continuance.[2] We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2005, the San Diego County Health and Human Services Agency (Agency) filed a petition in the juvenile court on behalf of one-year-old Robert and newborn Jacob under section 300, subdivision (b). The petition alleged the minors had suffered and were at risk of suffering serious harm in the future. Victoria admitted to abusing dangerous drugs, including opiates. She tested positive for drug use and her addiction rendered her unable to properly care for the minors. Further, Robert had been unable to protect and supervise the minors. The detention and jurisdiction report indicated Jacob was born addicted to heroin as a result of Victoria's drug use during pregnancy. The minors became dependents of the juvenile court and were removed from parental custody.
During the next six months, Victoria and Richard did not participate in services, and they did not communicate with the Agency on a regular basis. Victoria initially enrolled in a residential drug treatment program, but left the program shortly thereafter. Victoria and Richard's whereabouts became unknown. Before their disappearance, visits with the minors were sporadic. The minors were placed in foster care with a nonrelative extended family member. The caregivers were committed to adopting the minors in the event Victoria and Richard were unable to regain custody. At the six-month review hearing, the court terminated reunification services and set a section 366.26 hearing.
The social worker assessed both minors as adoptable based on their good health, young ages, and lack of developmental problems. The minors were attached to their caregivers and were thriving in their current placement. The caregivers were committed to adopting the minors and understood the minors' needs. There were numerous families interested in adopting a sibling set like Robert and Jacob in the event the caregivers were unable to adopt.
The social worker reported that Victoria and Richard had a long documented history of heroin addiction and continued to struggle with substance abuse. In the social worker's opinion, the minors did not have a beneficial parent-child relationship with Victoria and Richard. Neither parent had regularly visited the minors or assumed a parental role. The minors showed little or no distress at the end of visits. Instead, the minors had a strong relationship with their caregivers and referred to them as "Mommy" and "Daddy."
The court scheduled a section 366.26 hearing. Immediately before the hearing began, the minors' aunt, Angela, filed a section 388 petition requesting the minors be placed with her. Victoria's attorney requested a two-month continuance asserting Victoria was entitled to additional visitation and more time was needed to address the section 388 petition. The court denied the request and held the section 366.26 hearing. Richard testified he had eight visits with the minors during the past year, and that Victoria was present at four of the eight visits. Richard stated he loved his sons and did not want the court to terminate his rights.
After considering the evidence, the court found the minors were likely to be adopted and none of the exceptions to section 366.26, subdivision (c)(1)(A) applied to preclude terminating parental rights. The court terminated parental rights and referred the minors for adoption.
DISCUSSION
I
Victoria contends the court abused its discretion by denying her request to continue the section 366.26 hearing. She argued the request should have been granted because she was entitled to additional visits with the minors. Victoria further argues the continuance was necessary because the court should have addressed Angela's section 388 petition before conducting the section 366.26 hearing.
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 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. (Jeff M. v. Superior Court (1997) 56 Cal.App.4th 1238, 1242.) We 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
Here, Victoria did not show good cause. Victoria asserts she did not receive visitation while in custody, and a continuance would allow her to have more visits with the minors. According to the Agency's reports, Victoria's whereabouts had been unknown for several months. She did not visit the minors during this time or contact the Agency to schedule visits. The Agency eventually located Victoria in custody. However, she presented no evidence showing why she did not contact the Agency during or before her incarceration to address the issue of visitation. At the time Victoria requested the continuance, reunification services had already been terminated. The focus of the dependency proceedings was no longer on assisting Victoria in reunifying with the minors, but rather on ensuring that the minors had a stable and permanent home. (In re Marilyn N. (1993) 5 Cal.4th 295, 307, 309-310; In re Stephanie M. (1994) 7 Cal.4th 295, 317.) This focus was furthered by proceeding with the section 366.26 hearing so that the minors could be adopted by their caregivers. The court did not err in denying her request for a continuance. (See In re Gerald J., supra, 1 Cal.App.4th at p. 1187.)
Further, Victoria requested a continuance asserting the court should consider Angela's section 388 petition before conducting the section 366.26 hearing. The section 388 petition sought to move the minors to Oklahoma in the care and custody of Angela. The record shows Angela's home had been approved for placement since May 2006.
Victoria does not show good cause as to why she did not submit a request for change of placement in the months leading up to the section 366.26 hearing in September 2006. She instead waited until after Angela filed her petition immediately before the start of the section 366.26 hearing, and on the eve of her parental rights being terminated to make the request. The court properly exercised its discretion by denying the continuance request. ( 352, subd. (a); Jeff M. v. Superior Court, supra, 56 Cal.App.4th at p. 1242; In re Ninfa S., supra, 62 Cal.App.4th at pp. 810-811.)
II
Richard contends the evidence is insufficient to support the court's finding the beneficial parent-child relationship of section 366.26, subdivision (c)(1)(A) does not apply to preclude terminating his parental rights. He asserts the minors would benefit from continuing the parent-child relationship because they all shared a positive, loving relationship. Victoria joins in Richard's assertions.
A
We review the judgment for substantial evidence. (In re Autumn H. ( 1994) 27 Cal.App.4th 567, 576.) If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings. We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. (In re Casey D., (1999) 70 Cal.App.4th 38, 53.) Rather, we "accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact." (Id. at p. 53.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
"Adoption, where possible, is the permanent plan preferred by the Legislature." (In re Autumn H., supra, 27 Cal.App.4th 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 five specified exceptions. ( 366.26, subd. (c)(1) (A)-(F); In re Erik P. (2002) 104 Cal.App.4th 395, 401.)
Section 366.26, subdivision (c)(1)(A) 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 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 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." (In re 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.) The parent must show he or she occupies a parental role in the child's life, resulting in a significant, positive, emotional attachment from child to parent. (Ibid.; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)
B
During the dependency proceeding, Richard and Victoria's whereabouts mostly were unknown and they did not regularly visit the minors. Even had visitation been regular, Richard and Victoria did not meet their burden of showing their relationship with the minors was sufficiently beneficial to outweigh the benefits of adoption for them. When visits did take place, Richard and the minors were affectionate with each other and their visits were appropriate and pleasant. However, Richard did not have a parental role in the minors' lives. The minors were happy to see and play with Richard but they were not adversely affected when visits ended. The minors did not show a "significant, positive, emotional attachment" to Richard and Victoria, such that terminating the parent-child relationship would result in great detriment to them. (In re Autumn H., supra, 27 Cal.App.4th at p.575.) Rather, the minors' need for a stable and secure home is paramount. Any possible benefit to the minors of continuing a relationship with Richard and Victoria was outweighed by the benefits of adoption.
Where, as here, the biological parent does not fulfill the parental role, "the child should be given every opportunity to bond with an individual who will assume the role of parent. To hold otherwise would deprive children of the protection that the Legislature seeks to provide." (In re Brittany C. (1999) 76 Cal.App.4th 847, 854.) Substantial evidence supports the court's finding that the beneficial parent-child relationship did not apply to preclude terminating parental rights.
DISPOSITION
The judgment is affirmed.
O'ROURKE, J.
WE CONCUR:
HUFFMAN, Acting P. J.
NARES, J.
Publication courtesy of California free legal advice.
Analysis and review provided by Carlsbad Property line attorney.
[1] Statutory references are to the Welfare and Institutions Code.
[2] Angela W., the minors' maternal aunt, originally was a party to this appeal and filed an opening brief challenging the court's summary denial of her section 388 petition. Victoria joined in Angela's argument. Angela, however, is no longer a party to this appeal. [court order 4/5/2007]. Accordingly, Angela's arguments will not be considered in this appeal.
