Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, No. RIJ118916, Gary Vincent, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.).
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant.
Pamela J. Walls, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for Minors.
OPINION
MILLER, J.
A.B. (born February 2006) and her sister, P.B. (born May 2008) (collectively minors), came to the attention of the Riverside County Department of Social Services (the department) on November 5, 2009, the day after mother brought P.B. to the hospital for treatment for gastroenteritis and dehydration. An immediate response referral was received after a mandatory reporter indicated P.B. had sustained numerous injuries, including a black eye, extensive bruising behind her right ear extending down towards her neck, bruising on the right side of her head, finger marks along her spine, a broken leg, a broken arm, two skull fractures, and concomitant brain injury. The juvenile court detained and later removed minors from mother’s custody. The court denied mother reunification services finding minors had been adjudicated dependents of the court as a result of the infliction of severe physical harm. (Welf. & Inst. Code, § 361.5, subds. (b)(5) & (6).)
All further statutory references are to the Welfare and Institutions Code, unless indicated.
Prior to the dispositional hearing, mother was arrested for willful cruelty to a child. She was incarcerated in Banning on a no-bail immigration hold awaiting deportation because she was in the country illegally. Mother was later transferred to an immigration processing center in Texas. She was deported at some point prior to the selection and implementation hearing. At the section 366.26 hearing, mother’s counsel requested a continuance to permit mediation between mother and the prospective adoptive parents regarding continued contact, and to permit mother to receive a copy of the department’s latest report. The juvenile court denied the continuance, found minors adoptable, and terminated mother’s parental rights. On appeal, mother contends the court abused its discretion in denying her request for a continuance. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On November 5, 2009, P.B.’s examining physician opined that P.B. “‘suffered inflicted fractures to her skull, arm and leg at different times. In addition, the skull injury, which is the most recent, has led to brain injury as well. In addition, there has likely been some trauma to her abdomen.... She has been the victim of repeated, life threatening battery with escalating severity. If left in the same environment, she is at serious risk of death.’” Mother denied P.B. had any bruising when she first brought P.B. to the hospital; she maintained the bruising must be an allergic reaction to some medication she had obtained from Mexico that she had administered to P.B. Mother’s live-in boyfriend, S.V. suggested that some of P.B.’s injuries could have been incurred when she fell out of his truck when he took the girls to the store; he had not placed her in a car seat. Mother and S.V. rarely utilized car seats for minors. S.V. also advised that P.B.’s head injuries could have resulted from an incident in which he sped through a parking lot and hit a speed bump causing P.B. to hit her forehead. However, S.V. was informed that the explanation was unlikely because P.B.’s injuries were to the back of her head. The physician contended the injuries were non-accidental.
The social worker deemed the injuries indicative of a “pattern of abuse.” He opined, “[i]t is inconceivable that the severity of the injuries, all inflicted within the last thirty days, occurred without [mother’s] knowledge. A child with numerous fractures would certainly be crying out in pain and favoring the injured extremities.” Moreover, “[i]n the face of overwhelming evidence that the child was being subjected to severe physical abuse, [mother] was content to do nothing, assuming no parental responsibility and seeking no medical attention.”
At the detention hearing on November 10, 2009, the juvenile court ordered that mother receive supervised visitation a minimum of twice weekly. At a hearing on December 9, 2009, mother’s counsel stated that mother had been visiting minors once weekly. An addendum report dated January 21, 2010, noted that mother had participated in three individual counseling sessions. She enrolled in a parenting program scheduled to begin January 28, 2010. Mother visited personally with P.B. three hours every week; however, the foster caregiver noted that minors’ godmother, who also attended the visits, spent more time in an active, motherly role with minors than mother. The caregiver characterized mother as “passive” during visitation; mother just “‘kind of steps back and watches’” godmother engage with minors. The caregiver also noted that A.B.’s godmother called every night; mother used to call every day, but now called infrequently.
On January 26, 2010, the juvenile court sustained the allegations in the amended juvenile dependency petition, found the allegations true, and took jurisdiction over minors. An addendum report dated March 1, 2010, reflected that the cast on P.B.’s leg had been removed on January 4, 2010. The caregiver noted that minors were initially reluctant to visit with mother, fearing they would be returned to her care; however, when they realized that would not occur, they become more complacent with visitation. Nonetheless, the caregiver stated that mother had missed her last three scheduled visits with minors; minors had not inquired after mother despite her absence. It was later discovered that mother had been arrested on February 11, 2010. The social worker recommended that A.B. be placed with one of her father’s sons, while consideration was given to placing P.B. with another son of A.B.’s father. At the hearing on March 4, 2010, the juvenile court placed A.B. as recommended and ordered that P.B. be given visitation with A.B. and her caretakers.
P.B. and A.B. had different fathers. Thus, P.B.’s potential placement with one of A.B.’s father’s sons would be with someone who had no blood relation to her. However, the prospective caregivers lived near one another and agreed to liberal visitation between the siblings. Thus, the placement was considered best for minors’ interests. A.B.’s father waived reunifications services. P.B.’s father was never located. Neither father is a party to the instant appeal.
Mother was present at the contested disposition hearing held on March 9, 2010. The juvenile court set the section 366.26 hearing. The post-permanency status review report dated June 24, 2010, reflected that A.B. had been placed with her prospective adoptive parents on March 4, 2010; P.B. had been so placed on June 8, 2010. Nonetheless, P.B. had been placed on extended visitation with her sister’s prospective adoptive parents on April 27, 2010. The social worker observed that minors “have been observed to have favorably integrated into the family dynamics of their respective families as there is frequent and liberal interaction between the close-knit families during planned outings as well as daily visitations. The caregivers fully acknowledge the importance of having these siblings together as much as possible in spite of their placement in separate homes.” Further, minors “have been in the care of their current caregivers, for approximately 3 months, and during that time, it is apparent that the children and caregivers have formed a relationship that has culminated into successful bonding and attachment, as well as happy, healthy and well-adjusted children. Moreover, the children’s best interest appears to have been served by their caregivers’ willingness to facilitate and encourage a close and continuing connectivity with other members of their extended family.” P.B. continued to have problems with her right leg as late as April 7, 2010, but was expected to see a specialist.
In the section 366.26 report dated October 18, 2010, the social worker recommended termination of mother’s parental rights. The social worker noted that “[t]he children are visiting with each other on a frequent and liberal basis as their respective placements [are] in close proximity with relatives.” A.B. continued to have some telephone contact with mother when mother would call the home. The prospective adoptive homes for minors were assessed as favorable.
DISCUSSION
Mother contends the court abused in discretion in denying her request for a continuance of the section 366.26 hearing because it effectively deprived her of any opportunity to offer a defense to the termination of her parental rights. Specifically, mother avers that she was divested of the ability to prove a beneficial parental relationship exception to termination of her parental rights. We hold that the juvenile court acted within its discretion.
At the section 366.26 hearing, mother’s counsel stated, “I am asking to put this matter over briefly. I did receive a letter from her. I did receive a call from the Mexican Consulate on her behalf. I was unable to get a hold of anybody. I received two phone calls from somebody interpreting for her. I‘ve been unable to reach that individual. I have a phone number for mother.” He requested that the matter go to mediation to determine whether the prospective adoptive parents would be willing to permit any continuing contact between mother and minors. He requested time to send mother the department’s latest report. The department responded “We did mail her a copy of the report. We also noticed her at her address. We are asking to go forward.” The court determined, “It’s not in the best interests [of minors] to continue this matter. There’s not good cause shown. It doesn’t matter whether mother’s seen the report or not. It doesn’t change the circumstances. Mother’s not able to be here. The issues here are incredibly limited.” Mother’s counsel reiterated, “mother’s objecting to termination of parental rights. She is unable to be here in the United States and/or present any type of defense on her behalf. I’m objecting and asking that the matter be referred to mediation.”
“Section 352 provides that a continuance shall be granted only on a showing of good cause and shall not be granted if it is contrary to the minor’s best interests. ‘[T]he 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.’ [Citation.] Continuances are discouraged [citation] and we reverse an order denying a continuance only on a showing of an abuse of discretion [citation].” (In re Ninfa S. (1998) 62 Cal.App.4th 808, 810-811.)
Written notice of a request for continuance with supporting documents must be filed and served on all parties at least two days before the date set for hearing unless the court finds good cause for an oral motion. (§ 352, subd. (a); Cal. Rules of Court, rule 5.550(a)(4).) “Continuances may be granted only on a showing of good cause, and only for the time shown to be necessary. Stipulation between counsel of parties, convenience of parties, and pending criminal or family law matters are not in and of themselves good cause.” (Cal. Rules of Court, rule 5.550(a)(2).)
Here, mother failed to demonstrate good cause both for her failure to serve and file a written motion requesting a continuance at least two days prior to the section 366.26 hearing, or respecting the merits of the request itself. First, mother’s counsel failed to explain why he could not have filed a motion for a continuance at least two days prior to the hearing as required by statute. Mother’s counsel neglected to say when he received the letter from mother or when he received the phone calls on her behalf. Thus, there was simply no showing that there had not been sufficient time since receiving those communications to file the motion two days prior to the hearing.
Second, there was no showing that mother had been unavailable to confer with counsel until receipt of those communications. Indeed, there is ample evidence in the record that mother’s counsel had access to her, and she to him, during the entirety of the proceedings. The department’s report dated March 1, 2010, first reflected that mother had been arrested and was incarcerated in Banning, California. On July 7, 2010, prior to mother’s deportation, the department identified mother’s current location in a Texas immigration processing center, with a specific address and phone number. At the hearing on that same date, mother’s counsel noted mother’s presence in the facility in Texas. He noted that mother had written him complaining that the social worker had not returned mother’s calls and letters. She requested telephonic contact with minors. Thus, counsel knew her location, had a phone number with which to reach her, and mother had access to telephonic and written communication with the outside world, including her counsel.
Both the Mexican consulate and mother were served with notice of the section 366.26 hearing on September 9, 2010, nearly two months before it was held. Mother’s notification gave a specific address in Mexico. Thus, at least as early as September 9, 2010, mother’s counsel had access to mother’s address in Mexico. The department’s subsequent report dated October 18, 2010, gave the same address for mother and noted that “mother... is known to reside... in Mexicali, Baja California, Mexico.” Mother had telephonic contact with minors since being deported. Mother had given the caregivers a valid phone number with which to contact her. Thus, mother had ample opportunity of communicating with counsel by phone even after deportation. Of course, we assume that mother had the telephone number and address of her counsel. If mother failed to utilize her direct link to counsel and failed to inform him of any changes in her residency or phone number, that was her responsibility, not the department’s and not the court’s.
With respect to counsel’s objection that mother was unable to attend the hearing, we note that at least two courts have found no due process violation where incarcerated parents were denied a continuance to appear at a dependency proceeding. (D.E. v. Superior Court (2003) 111 Cal.App.4th 502, 513; In re Axsana S. (2000) 78 Cal.App.4th 262, 272 disapproved of on other grounds In re Jesusa V. (2004) 32 Cal.4th 588, 624.) “As long as the parent has meaningful access to the court through appointed counsel, there is no due process violation.” (D.E., at p. 513; accord In re Axsana S., at p. 272.) Indeed, the statute itself provides that a pending criminal prosecution is not good cause for a continuance. (§ 352, subd. (a).) In this vein, mother’s deportation was the result of her long illegal presence in the country; this, in and of itself, was not sufficient good cause to permit a continuance of unspecified length. At any rate, mother had meaningful access to the court through her appointed counsel.
Furthermore, mother’s contention, not argued below, that with a continuance she may have been able to muster a beneficial parental relationship exception defense to termination of her parental rights fails, because the record is barren of any evidence with which to establish such a defense. The beneficial parental relationship exception should be applied only in extraordinary circumstances, where “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i); see In re Casey D. (1999) 70 Cal.App.4th 38, 51.) The parent has the burden of proving the exception. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350; In re Jerome D. (2000) 84 Cal.App.4th 1200, 1207.)
Here, the evidence establishes that mother had, at best, haphazard and inconsequential contact with minors even prior to her arrest. Mother’s initial visitation consisted of one weekly visit despite the court’s order that she have a minimum of twice weekly visits. Although mother later visited with minors three hours weekly, the caregiver noted she was a “passive” spectator of godmother’s interactions with minors during the visits. Mother initially called A.B. every day, but later called infrequently. Minors were initially reluctant to visit with mother, fearing they would be returned to her care. Mother missed three scheduled visits with minors in February 2010, although her absences were presumably due to her arrest. Minors never inquired after her. In fact, the record shows that mother’s last visit with minors occurred in December 2009. Although mother appears to have had at least some telephone contact with minors after her arrest and deportation, that contact was inconsistent; indeed, mother later failed to provide the caregivers with a number with which they could contact her. There was simply no evidence that the relationship between mother and minors “‘promote[d] the well-being of [minors] to such a degree as to outweigh the well-being [minors] would gain in a permanent home with new, adoptive parents.’” (In re S.B. (2008) 164 Cal.App.4th 289, 297.) As the juvenile court concluded, “[t]here’s no evidence whatsoever supporting any relationship whatsoever with the children and none to support regular and consistent contact with the children, save an occasional phone call from mother.”
Finally, the contentions mother did raise below fail on this record. Mother’s request for mediation with the prospective adoptive parents for continued contact between her and minors would be, as the juvenile court aptly stated, “an act of futility.” The department’s last report reflected that “The Prospective Adoptive Parents are not in favor of an open adoption and they do not wish their whereabouts to be known to the mother.” Likewise, mother’s counsel’s request that the continuance be granted to permit a copy of the latest report to be sent to mother would not, as the court observed, “change the circumstances.” The department noted that mother had already been sent a copy of the report. Mother’s counsel failed to indicate anything that could be accomplished by an indefinite postponement of the proceedings so that mother could be sent another copy of the report. The juvenile court’s order denying mother’s request for a continuance and terminating her parental rights in “the best interests and the wishes of the children” was within its discretion.
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ, P. J., CODRINGTON, J.