Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. NJ13304 A-B, Harry M. Elias, Judge.
IRION, J.
Selena T. and Mario C. appeal the judgment terminating their parental rights over Ariana C. Selena also appeals the judgment terminating her parental rights over Michael C. Selena contends the juvenile court abused its discretion by denying her requests to continue the Welfare and Institutions Code section 366.26 hearing and reopen her case after the close of evidence. She also contends the court erred by finding the children adoptable and declining to apply the beneficial relationship exception to termination (§ 366.26, subd. (c)(1)(A)). Mario contends the juvenile court erred by declining to apply the beneficial relationship exception as to Ariana. Selena and Mario join in each other's arguments. We affirm.
All further statutory references are to the Welfare and Institutions Code.
Effective January 1, 2008, the Legislature amended and renumbered section 366.26, subdivision (c)(1). (Stats. 2006, ch. 838, sec. 52, pp. 4999-5000.) Because the proceedings at issue here occurred before the statutory change, we refer to the earlier version of the statute.
BACKGROUND
In January 2006 when Ariana was one and one-half years old and Michael was six weeks old, Michael was discovered to have multiple fractures at various stages of healing. The San Diego County Health and Human Services Agency (the Agency) filed dependency petitions on behalf of both minors. The children were detained out of home and placed in foster care. In July they were placed with their maternal grandparents. In December Michael suffered further unexplained injuries—bruising and a fracture—while on a visit with Selena and Mario. Because the maternal grandparents could not be ruled out as perpetrators, the children were removed from their home. The children were returned to the maternal grandparent's home approximately one week later, after the Agency concluded the grandparents were not the perpetrators. The section 366.26 hearing took place on October 29, 2007, at which time the court terminated parental rights, found the children were adoptable and selected adoption as the permanent plan.
Selena supervised Mario's visitation.
The Court Did Not Abuse Its Discretion By Denying Selena's Requests For A Continuance and to Reopen Her Case
The section 366.26 hearing was originally set for July 2007. In July the Agency requested a 90-day continuance to determine the appropriate permanent plan. The court continued the hearing to October 9. By October 9, the Agency did not have a permanent plan recommendation. It requested another 90-day continuance to obtain a psychological evaluation of the maternal grandmother, who was a prospective adoptive parent. The children's counsel objected. The court set a contested hearing for October 29.
The evaluation was never obtained.
On October 29, 2007, Selena's counsel requested a continuance, saying she needed time to review the Agency's October 29 addendum report, filed on October 26. The court excluded that report from evidence, denied the continuance request, and proceeded with the section 366.26 hearing.
After the close of evidence, the Agency declined to recommend a permanent plan, submitted on the evidence, and requested a continuance. The court denied the request. Selena's counsel asked the court to order guardianships. The court stated it could not do so. Selena's counsel then asked to reopen evidence to "call the caretaker"—an apparent reference to the maternal grandmother. The court denied the request, saying, "Everybody knew today was the trial."
Selena contends the court abused its discretion by failing to grant a 90-day continuance to assess the children's adoptability. She also contends the court abused its discretion by denying her request to reopen the case, noting the maternal grandparents were present in court, and asserting their testimony would have been in the children's best interests in light of the Agency's failure to recommend a permanent plan.
Selena has not met her burden of showing an abuse of discretion. Continuances are discouraged in dependency cases. (In re Ninfa S. (1998) 62 Cal.App.4th 808, 810.) "[N]o 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 . . . ." (§ 352, subd. (a).) In this case, more than three months had elapsed since the date originally set for the section 366.26 hearing. Ariana and Michael were entitled to a prompt resolution of their custody status. (In re Ninfa S., supra, 62 Cal.App.4th 808, 810-811.) The only reason proffered for the continuance request—counsel's need for time to review the addendum report—was obviated when the court declined to admit that report into evidence. Finally, the request to reopen was not accompanied by an offer of proof of the proposed testimony. On appeal, Selena supports the argument regarding reopening only with citations to authorities that are inapposite and law that was not in effect at the time of the hearing.
At trial Selena did not specify the length of the continuance she requested. Thus, she has forfeited the portion of her contention relating to the length of the continuance. (See In re S. B. (2004) 32 Cal.4th 1287, 1293; In re Richard H. (1991) 234 Cal.App.3d 1351, 1362.) Insofar as Mario joins in Selena's contention, we note he did not request a continuance at all.
Substantial Evidence Supports The Adoptability Finding
"The issue of adoptability posed in a section 366.26 hearing focuses on the minor, e.g., whether the minor's age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor." (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649, italics omitted.) While psychological, behavioral, and possible developmental problems may make it more difficult to find adoptive homes, they do not necessarily preclude an adoptability finding. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154; In re Jennilee T. (1992) 3 Cal.App.4th 212, 224-225.) An adoptability finding does not require "that the minor already be in a potential adoptive home or that there be a proposed adoptive parent 'waiting in the wings.' [Citations.]" (In re Sarah M., supra, 22 Cal.App.4th at p. 1649.) "All that is required is clear and convincing evidence of the likelihood that adoption will be realized within a reasonable time." (In re Zeth S. (2003) 31 Cal.4th 396, 406, citing In re Jennilee T., supra, 3 Cal.App.4th at p. 223.)
Here, there is substantial evidence supporting the adoptability finding. (In re Josue G. (2003) 106 Cal.App.4th 725, 732; In re J.I. (2003) 108 Cal.App.4th 903, 911; In re Lukas B., supra, 79 Cal.App.4th at p. 1154.) At the time of the section 366.26 hearing, Ariana was three years old and Michael was 22 months old. While Ariana was very shy and had some delays in language, fine motor skills, and coping behavior, she was physically healthy, as was Michael. Both children were happy, cute, and liked to play. The maternal grandparents wanted to adopt them. Additionally, there were 46 approved families interested in adopting a child with characteristics similar to Ariana's, 42 interested in adopting a child with characteristics similar to Michael's, and 25 interested in adopting siblings such as Ariana and Michael.
The Court did not Err by Failing to Apply the Beneficial Relationship Exception
Section 366.26, subdivision (c)(1) allows termination of parental rights upon clear and convincing evidence of adoptability. An exception exists if "[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)(A).) A beneficial relationship is one 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 re Autumn H. (1994) 27 Cal.App.4th 567, 575.) The existence of this relationship is determined by "[t]he age of the child, the portion of the child's life spent in the parent's custody, the 'positive' or 'negative' effect of interaction between parent and child, and the child's particular needs. . . ." (Id. at p. 576.) Here, while the court found that Selena maintained regular visitation with both children and Mario maintained regular visitation with Ariana, examining the evidence in the light most favorable to the judgment, we conclude both parents failed to meet their burden of establishing a beneficial relationship. (Id. at pp. 576-577; In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373.)
At the time of the section 366.26 hearing, Ariana was three years old and Michael was one year and 10 months old. They had been out of parental custody for one year and eight months and had lived with the maternal grandparents for approximately one year and three months. While visits supervised by the Agency went well, during one visit Michael suffered further injuries. The injuries were most likely inflicted by Mario, with Selena failing to protect Michael. The children needed and deserved a safe, stable, and permanent home.
DISPOSITION
Judgment affirmed.
WE CONCUR: McCONNELL, P. J., McINTYRE, J.