Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Los Angeles County Super. Ct. No. CK62289, Jan Levine, Judge. Affirmed.
Andre F. F. Toscano, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel and William D. Thetford, Deputy County Counsel for Plaintiff and Respondent.
ALDRICH, J.
INTRODUCTION
Denise H. appeals from the order of the juvenile court terminating her parental rights to R. T. who is nearly three years old (Welf. & Inst. Code, § 366.26). She contends that the court erred in denying her motion for a short continuance of the section 366.26 selection and implementation hearing and in finding that the parent-child exception to adoption found in section 366.26, subdivision (c)(1)(A) did not apply. We affirm.
All statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
When R. was 14 months old, Denise, who was an admitted drug user, left the baby in the custody of a gang-member who had a gun in the house and who left drugs in places that were accessible to R. The Department of Children and Family Services (the Department) detained R.
Denise waived trial of the petition that alleged her general neglect of R. as the result of Denise’s positive toxicology screens and history of substance abuse, particularly amphetamines, methamphetamines, and marijuana, all of which rendered Denise incapable of providing R. with regular care, protection or supervision. The Department’s voluntary services had failed to resolve the family’s problems because Denise did not cooperate with the plan and continued to use drugs. The petition further alleged that Denise has a history of mental and emotional problems, including bi-polar disorder, which limited her ability to provide R. with care and supervision, and she did not comply with her psychotropic medication regimen. Denise also has an adult criminal history involving carrying a loaded firearm, theft, and battery against a peace officer. The juvenile court found the petition true and declared R. to be a dependent of the court under section 300, subdivision (b).
R.’s father is not a party to this appeal.
In March 2006, the juvenile court removed R. from Denise’s custody (§ 361, subd. (c)) and ordered reunification services that included parenting classes, drug counseling, random drug testing, taking all prescribed psychotropic medication, and individual counseling with a licensed therapist to address mental health issues. Finally, the court granted Denise monitored visits with an approved supervisor twice a week, with the possibility of liberalization at the discretion of the Department.
Within a month, R. appeared comfortable in her placement with Silvia C. The social worker found that R. was bonded with Denise, who in turn acted appropriately around the child. However, Denise appeared to have missed four of seven visits with R.
In late March 2006, Denise began mental health treatment in Long Beach and was reportedly eager to fulfill her responsibilities and improve her ability to function as a parent. However, in September 2006, the Department informed the juvenile court that Denise had not consistently participated in her mental health treatment, having been seen by her therapist only a few times. Denise’s psychiatric social worker reported that Denise did not keep her appointments and often showed up at unscheduled times, unannounced and expecting to be seen.
Nor had Denise fully participated in a drug treatment program at Tarzana Treatment Center, a residential chemical dependency treatment facility. Apparently, Denise participated in 68 days out of the six- to nine- month treatment program before she went absent without leave. Denise was “placed on a behavior contract.” She breached that contract 21 days later when she fought with a teenage resident. The Tarzana Treatment Center “ ‘strongly suggest[ed] that Denise would benefit greatly from continued treatment and possible adjunctive support.’ ” Denise also missed two scheduled drug tests, and so the results were recorded as positive.
After leaving her treatment program, Denise had no stable place to live and had moved around to at least five places in eight months. Nor did she have reliable telephone service.
As for visits, by September 2006, Denise had seen R. “almost one time a week and often d[id] not follow the agreed upon time and day schedule.” (Italics added.) Denise often missed a rendezvous and would call a day or two later to request an immediate visit. Despite the “sporadic” nature of visits, R. knew who her mother was. Overall, the Department deemed Denise’s participation in six months of reunification services to be “sporadic at best.” She had been seen by her therapist only “a few times since June” 2006. She had not acceptably completed drug treatment, and had not complied with drug testing.
R. continued to be comfortable with Silvia and her children. R. appeared “to be a very bright child.” She was happy, emotionally healthy, and affectionate with her caregiver. The child was fully welcomed into the family and Silvia expressed a willingness to adopt the child.
At the close of the six-month review period, the Department determined that it was inappropriate to return R. to Denise’s care because of Denise’s failure to comply with either court orders or her case plan. Denise had serious negative behavior patterns that remained of utmost concern to the Department. She did not complete or participate consistently in mental health treatment and her psychotropic medication for her bi-polar disorder had not been monitored for several months. Rather, Denise had a pattern of self-medicating with street drugs. The Department was doubtful about Denise’s ability and capacity to care for R. adequately while monitoring her own mental health and drug-abuse problems. In sum, the social worker explained that Denise’s aggressive, unpredictable behavior, her mental illness, her failure to address her drug abuse, and her inability to accept responsibility for losing custody of her child endangered R.’s safety and placed the child at “extreme risk of further abuse and neglect by [Denise].”
Meanwhile, in early September 2006, Denise enrolled in a second drug treatment program. The director of that program stated in early October 2006, that Denise was “vaguely compliant” in her outpatient drug treatment program. While the program was willing to work with Denise, the director stated that Denise “ ‘has a long way to go before she can care for a child.’ ” Denise requested residence at the facility, but was expelled a short time thereafter for violating the curfew rules. By the end of October 2006, Denise was “ ‘getting better’ at attending her program” and had tested negative for drug use six times.
With respect to her mental health, Denise’s participation in treatment continued to be “sporadic.” She had difficulty consistently making and keeping psychiatric appointments, despite the fact she was scheduled to receive bi-weekly individual sessions and bi-weekly group therapy. Denise remained impulsive by appearing unannounced and expecting to be seen.
Silvia, who was monitoring Denise’s visits with R., reported that although Denise had difficulty at times with her visits, she “made and [sic] honest effort to attend her scheduled meetings.” Between September 19, 2006, and October 24, 2006, Denise missed four out of 11 scheduled visits, although the ones she attended went well. The Department remained concerned, although Denise had recently demonstrated the ability to attend drug treatment meetings, mental health treatment, and visits, that she had been unable to maintain any type of consistency or to develop any long-term treatment pattern that would enable her to progress and receive the care she needs. The Department believed that Denise would benefit from a residential mental health treatment program where she could receive full-time assistance with medication monitoring, treatment counseling, therapy, and drug treatment.
At the contested six-month review hearing (§ 366.21, sub. (e)), the juvenile court found, while Denise was young and had been in foster care as a child, that R. had been a dependent of the court for nine months already and Denise’s treatment programs had indicated that it would be a long time before the court could safely return R. to Denise’s care. The court terminated reunification services and scheduled the section 366.26 permanent planning hearing. It also ordered the Department to look into the possibility of placing R. with a relative.
After the section 366.21, subdivision (e) hearing, the Department reported that Denise visited R. twice a week at the foster family agency, although she missed six visits in three months. Silvia continued to act as the visitation monitor generally and while R. was in the hospital over the new year. The visits went well. The Department found a “very strong likelihood” that R. would be adopted by Silvia. In the year that R. had been residing with Silvia, they had bonded.
At the scheduled contested section 366.26 hearing on April 5, 2007, Denise’s attorney explained that she had not had an opportunity to speak with Denise and asked for a continuance. Counsel did not “feel like we had a fair chance to discuss things up to this point.” However, counsel explained further, “[if] the court is not inclined to grant a continuance, I’ll be prepared to go forward.” (Italics added.) The court denied the request for a continuance. Counsel objected. The court explained that counsel’s law firm had represented Denise at the previous review hearing on March 6, 2007, when Denise had requested that the section 366.26 hearing be contested. The present contest had been scheduled for a month and the present hearing was being held at 3:45 in the afternoon, suggesting counsel had ample time to consult with Denise.
Proceeding to the hearing, the court admitted into evidence the Department’s reports. Denise then testified that she had taken care of R. for the first 16 months of the child’s life. Denise described how she attended to R.’s nutritional and health needs and how she was bonded with the child. Denise found Silvia to be very nice and open and described how Silvia allowed Denise to telephone R. every day. Denise testified that she visited R. twice a week for an hour. At the beginning of those visits, R. was very happy to see Denise and called her “ ‘Ma.’ ” During visits they would go to the park or to a store with Silvia. When visits ended, R. was sad and would start to cry. Overall, the visits were very positive and Denise continues to feel a strong bond with R. When Denise asked R. whether the child loved Denise, the child would answer “ ‘yes.’ ” On cross-examination, Denise explained that her visits did not take place during R.’s meal times. While Denise did not put the child to bed, she sometimes would call around 9:00 p.m. after the child had gone to sleep. Denise has not bathed R. since her detention. R.’s attorney observed that R. is very attached to Silvia and views Silvia as her parent.
At the close of the hearing, the court found that although Denise had a bond with R., she had not been acting as R.’s caregiver. The nature of their relationship did not outweigh the benefits that R. would derive from a permanent, stable home with Silvia. Noting the good relationship between Denise and Silvia, the court ordered the Department to speak to Silvia about continuing Denise’s contact with R. After the court terminated Denise’s parental rights, Denise filed her appeal.
CONTENTIONS
Denise contends the juvenile court erred in denying her a continuance and there is sufficient evidence to support application of the parent-child relationship exception to adoption (§ 366.26, subd. (c)(1)(A)).
DISCUSSION
1. The court did not abuse its discretion in denying Denise’s request for a continuance
“The juvenile court has the power to ‘control all proceedings during the hearings with a view to the expeditious and effective ascertainment of the jurisdictional facts and the ascertainment of all information relative to the present condition and future welfare of the person upon whose behalf the petition is brought.’ (§ 350.) The dependency system seeks to keep to a minimum the amount of potential detriment to a minor resulting from court delay. [Citation.] ‘[D]elay disserves the interests of the minor, the parents, and the courts, and is clearly inconsistent with the intent of the Legislature.’ [Citation.]” (Renee S. v. Superior Court (1999) 76 Cal.App.4th 187, 193.)
“The juvenile court may continue a dependency hearing at a parent’s request for good cause shown. (§ 352, subd. (a); Cal. Rules of Court, rule 5.550(a)(2).) Courts have interpreted this policy to be an express discouragement of continuances. [Citation.]” (In re Elijah V. (2005) 127 Cal.App.4th 576, 585.) The juvenile court’s denial of a request for a continuance in dependency proceedings will only be overturned upon a showing of abuse of discretion. (Ibid.)
Section 352 reads, “Upon request of counsel for the parent, guardian, minor, or petitioner, the court may continue any hearing under this chapter beyond the time limit within which the hearing is otherwise required to be held, provided 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. [¶] Continuances shall be granted only upon a showing of good cause and only for that period of time shown to be necessary by the evidence presented at the hearing on the motion for the continuance. Neither a stipulation between counsel nor the convenience of the parties is in and of itself a good cause.” (§ 352, subd. (a), par. 3.)
“In order to obtain a motion for a continuance of the hearing, written notice shall be filed at least two court days prior to the date set for hearing, together with affidavits or declarations detailing specific facts showing that a continuance is necessary, unless the court for good cause entertains an oral motion for continuance.” (§ 352, subd. (a).)
Here, Denise failed to demonstrate good cause for a continuance and she failed to file a written notice in accordance with section 352, subdivision (a). As good cause, Denise cites section 366.26, subdivision (g), which provides “the court may continue the proceeding for a period of time not to exceed 30 days as necessary to appoint counsel, and to enable counsel to become acquainted with the case.” (Italics added.) However, this provision does not apply here. At the time Denise’s attorney requested a continuance, there was no evidence that this attorney was newly appointed to the case, Denise’s suggestion in her brief to the contrary notwithstanding. Indeed, as the court observed when it denied the continuance request, Denise’s counsel’s law firm had represented Denise when it appeared and requested a contest on behalf of Denise a month earlier. The contest had been scheduled for a month. Also, the section 366.26 hearing was called at 3:45 in the afternoon, and so counsel had not just the prior month, but a also most of the day on the day of the hearing to discuss the case with Denise. Where counsel was not newly appointed, there was no justification for a continuance merely to allow Denise’s attorney to become acquainted with the case at the last minute. The “convenience of the parties is [not] in and of itself a good cause.” (§ 352, subd. (a), par.2.)
Finally, the juvenile court’s ruling denying a continuance of the section 366.26 hearing, even if erroneous, was harmless. (D. E. v. Superior Court (2003) 111 Cal.App.4th 502, 506, 514.) Counsel admitted she was “prepared to go forward” if the court were inclined to deny the continuance request. Counsel only wanted a continuance to speak to Denise, not to review the record or to prepare briefing or arguments. The only issue in contention at the hearing was whether the parent-child exception to adoption applied. While we agree with Denise that the section 366.26 hearing “is no small matter,” this single issue was not complex. Denise testified about her view of the facts related to her relationship and contact with R. Denise made no showing on appeal that different facts would have come to light had a continuance been granted.
2. The evidence did not support the application of the parent-child exception to adoption (§ 366.26, subd. (c)(1)(A))
Denise does not challenge the finding that R. is adoptable. Nor did she file a writ petition to challenge the order terminating reunification services. Therefore, termination of her parental rights was relatively automatic unless one of the five exceptions to adoption applied. (In re Zacharia D. (1993) 6 Cal.4th 435, 447.) The exception Denise espouses is the parent-child relationship exception found in section 366.26, subdivision (c)(1)(A). That exception applies when the court finds that (1) “[t]he parents have maintained regular visitation and contact with the child and [(2)] the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(A), italics added.) To justify application of this exception, the court must not only find that these circumstances exist, but also that they provide “a compelling reason for determining that termination would be detrimental to the child.” (§ 366.26, subd. (c)(1); In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1349.)
The cases are clear that “ ‘benefit[ting] from continuing the [parent/child] relationship’ ” means the sort of relationship between parent and child 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 the 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. (1994) 27 Cal.App.4th 567, 575.)
The parent-child relationship must be more than “frequent and loving contact” (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418), or pleasant contact. (In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.) Denise carried the burden to show that she and R. have “[a] strong and beneficial parent-child relationship” that would render termination of parental rights detrimental to R. (In re Casey D. (1999) 70 Cal.App.4th 38, 51, italics added.) The section 366.26, subdivision (c)(1)(A) exception is applied only where, because of regular visits and contact, the parent has been able to occupy a “ parental role ” in relationship to the children anytime during their lives. (In re Beatrice M., supra, at p. 1419, italics added.) This relationship arises from the “day-to-day interaction” where the adult tends to the child’s needs for “physical care, nourishment, comfort, affection and stimulation. [Citation.]” (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) “ ‘While friendships are important, a child needs at least one parent. Where a biological parent . . . is incapable of functioning in that role, the child should be given every opportunity to bond with an individual who will assume the role of a parent.’ [Citation.] Thus, a child should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree but does not meet the child’s need for a parent. It would make no sense to forgo adoption in order to preserve parental rights in the absence of a real parental relationship.” (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.) In short, the juvenile court balances the quality of the relationship and the detriment involved in terminating it against the possible benefit of an adoptive family. (In re Cliffton B. (2000) 81 Cal.App.4th 415, 424-425.)
The parent bears the burden to show that this exception applies. (See In re Megan S. (2002) 104 Cal.App.4th 247, 251.) We review the juvenile court’s finding for sufficiency of the evidence. (See In re Cliffton B., supra, 81 Cal.App.4th at p. 425.)
Here, the record supports the juvenile court’s findings supporting its order to terminate parental rights. While recently, i.e., in the months after termination of reunification services, Denise has begun to maintain some semblance of regular visitation, her visits never progressed past the monitored stage.
What is more important, Denise has not maintained a “parental role” in relationship to R. since the child was detained. (In re Beatrice M., supra, 29 Cal.App.4th at p. 1419, italics added.) Although entitled to more, Denise only visited R. on average once a week. That is simply not sufficient to sustain a parental relationship. Denise observes that during the first 14 months of R.’s life, she was actively involved in parenting, taking R. to medical appointments, addressing the child’s asthma, and meeting her daily needs. As the Department found when it detained R., the child was healthy and well-nourished. However, although Denise surely loves R., she testified that since R.’s detention, Denise has not fed or bathed the child, or put her to bed. Hence, although Denise feels bonded to R., for more than a year, she has lacked the “day-to-day interaction” during which she could tend to the R.’s physical care, nourishment, comfort, affection and stimulation. “One can know a child’s interests, enjoy playtime together, and be a loved relative, but not occupy a parental role in the child’s life.” (In re Jeremy S. (2001) 89 Cal.App.4th 514, 523, disapproved on other grounds in In re Zeth S. (2003) 31 Cal.4th 396, 413-414.) The nature of Denise’s relationship with R. is simply not close enough that severing it would deprive R. of a substantial, positive emotional attachment and harm her. The evidence supports the juvenile court’s conclusion any benefit from her relationship with Denise was outweighed by R.’s need for a stable and permanent home that would come with adoption. There was no “compelling reason for determining that termination would be detrimental to the child.” (§ 366.26, subd. (c)(1); In re Jasmine D., supra, 78 Cal.App.4th at p. 1349.)
DISPOSITION
The order is affirmed.
We concur: CROSKEY, Acting P. J., KITCHING, J.