Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. CK73709 Jacqueline H. Lewis, Juvenile Court Referee.
Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Kim Nemoy, Principal Deputy County Counsel, for Plaintiff and Respondent.
KRIEGLER, J.
Stephanie G. (mother) appeals from the judgment of June 9, 2010, terminating parental rights to D.L. under Welfare and Institutions Code section 366.26. Mother contends the dependency court abused its discretion in denying her a continuance of the hearing to obtain a bonding study and in finding that termination of parental rights would not be detrimental to D. We conclude the court did not abuse its discretion. Accordingly, we affirm the judgment.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
STATEMENT OF FACTS AND PROCEDURE
D. was born in April 2008 to mother and I.L. (father), who were each 16 years old. Mother was addicted to crystal methamphetamine at ages 14 and 15. She was affiliated with a gang and was in a tagging crew. Father, who was a gang member, was a delinquent ward on probation in connection with gang injunction charges in 2007.
In June 2008, when D. was an infant, mother was detained from maternal grandmother’s custody due to physical abuse by the maternal grandparents and aunts. Mother was declared a dependent of the court and was placed in a foster home. D. lived with mother in the foster home for a month. Mother and her boyfriend, who was a gang member, sold drugs. They witnessed Mara Salvatrucha gang members murder one of their drug-selling gang friends; mother feared the Mara Salvatrucha was looking for her.
In July 2008, mother absconded from her foster home with D. and left D. with maternal grandmother. D. was detained by the Department of Children and Family Services (Department) and placed in a foster home. A section 300 petition was filed.
On July 22, 2008, the dependency court ordered mother to keep her attorney, the social worker, and the court advised of her current address and phone number. The court said: “It is incredibly important that you keep everybody advised of your current address and phone numbers at all times. [¶] Do you understand that?” Mother responded she understood. The court ordered the Department to provide reunification services to mother, including referrals for drug rehabilitation, parenting, and individual counseling. On July 25, 2008, the court ordered D. detained in the same placement as mother.
On October 3, 2008, D. was declared a dependent of the court under section 300, subdivisions (b) and (g), based, as to mother, on sustained allegations that mother endangered D. by leaving her in the home of maternal grandmother where, on prior occasions, maternal grandparents and aunts had physically assaulted mother. Custody was taken from the parents, family reunification services were ordered, and mother was ordered to participate in parent education for teen mothers, individual counseling addressing case issues, and anger management counseling. Mother was granted unmonitored visits in the foster home where she and D. lived and monitored visits outside the foster home.
In February 2009, the dependency court granted the Department’s request to replace D. and mother in separate foster homes, because mother and the foster mother violated the visitation orders. Thereafter, visitation occurred once a week at a neutral location.
Mother attended parent education class twice in October 2008, attended nine sessions of individual counseling from September 2008 to January 2009, and completed an anger management class. She tested positive for drugs in April 2009. She completed parenting education classes in June 2009, and the monitor requirement was lifted from her visitation.
In her own dependency case, mother was returned to maternal grandmother’s care under a program of family maintenance. However, she went on a downward spiral. In a respite foster home, mother stole and went AWOL, associated with friends who used drugs and used drugs herself, and in September 2009, tested positive for drugs after refusing to drug test in August. Her visits were again required to be monitored. In September 2009, father physically assaulted mother, bruising her arm, legs, and neck. The social worker instructed mother to contact father’s probation officer, fill out a police report, and file for a restraining order to insure her own safety, as well as D.’s safety if D. were to be returned home one day. Mother did not take these steps. As of October 15, 2009, mother participated in three counseling sessions.
Mother failed to reunify with D. On December 3, 2009, reunification services were terminated and a section 366.26 hearing to determine the permanent plan was set for April 1, 2010. The dependency court stated: “[parents who have children] under the age of three [have] six months [to reunify]. And this court has extended reunification services to the 17-month date trying to give these parents the benefit of the doubt. The reality is things got worse instead of better.” “Seventeen months into this case, it is time to look for permanence and stability for [D.]”
Mother filed a petition for extraordinary relief pursuant to California Rules of Court, rule 8.452 seeking review of the order setting a permanent plan hearing. (Stephanie G. v. Superior Court (Mar. 10, 2010, B220819) [nonpub. opn.].) The petition was denied. (Ibid.)
Mother continued to have monitored visits at a neutral location for up to two hours. The visits were appropriate and happy. In February 2010, mother was told that her boyfriend, who was attending the visits, could not continue to have significant contact with D. unless he live-scanned. Mother did not contact the social worker to arrange for the live-scan, but the boyfriend continued to appear for the visits. Mother had 12 visits between December 2009 and March 2010.
On April 1, 2010, the section 366.36 hearing was continued to June 9, 2010, for a contested hearing requested by mother.
The section 366.26 hearing was held on June 9, 2010. Mother’s attorney requested a continuance of the hearing for three weeks. Mother had moved after the April hearing without informing her attorney of her new address and telephone number. Counsel told the dependency court: “I am interested in doing a bonding study on [the Children’s Law Center’s] dime. And I would like about three weeks to be able to complete that.” The Department objected to continuing the hearing. The continuance request was denied. The court found “no good cause for a continuance at this point, nor can the court find it’s in the child’s best interest to do so.”
After a trial, parental rights were terminated. The dependency court stated: “[Counsel] and the court worked very hard in keeping D. with her mother. But her mother’s actions truly precluded the court from doing that. And she’s been separated from her for a considerable amount of time.” The court found D. to be “highly universally adoptable.” “[It’s] clear that the mother is still not stable. [¶] The court finds that no exceptions to adoption apply in this case. [¶]... [M]other did [not] take primary care of [D.] when she was placed with her.... [¶] Mother clearly loves her daughter, but has been unable to... really be any kind of a mother to her. And the court finds that the benefit to [D.] of a permanent home with somebody who will be a mother to her, a parent... for the rest of her life far outweighs any incidental benefit she has from the relationship with her biological parents.”
DISCUSSION
Denial of Continuance Request
Mother contends the dependency court abused its discretion in denying her a continuance to obtain a bonding study. There was no abuse of discretion.
Section 352, subdivision (a) provides in pertinent part: “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.”
When a determination is “committed to the sound discretion of the juvenile court, ... the trial court’s ruling should not be disturbed on appeal unless an abuse of discretion is clearly established. [Citations.]... ‘“[A] reviewing court will not disturb [the ruling] unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations].”’ [Citations.]... ‘“The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.”’ [Citations.]” (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
Mother wanted time to obtain a bonding study to help her show that termination of parental rights would be detrimental under the exception to termination in section 366.26, subdivision (c)(1)(B)(i). The parent has the burden to prove the applicability of the exception. (In re Cristella C. (1992) 6 Cal.App.4th 1363, 1372-1373.) The hearing had already been continued for two months for mother’s contest. That was ample time to obtain a bonding study. Mother failed to use that continuance to obtain the evaluation, because she moved and did not tell her attorney how to reach her. Mother’s contention in her opening brief that the dependency court never advised her she had to keep her attorney informed of her current whereabouts is incorrect. The court ordered her on July 22, 2008, to give her attorney her new address and telephone number whenever she moved. Mother understood the importance of this order. From the foregoing, it was not an abuse of discretion for the court to conclude the requested continuance was not supported by good cause.
Under section 366.26, subdivision (c)(1)(B)(i), if reunification services have been terminated and the child is adoptable, the dependency court must terminate parental rights unless it “finds a compelling reason for determining that termination would be detrimental to the child due to [the circumstance that the parent has] [¶]... maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.”
Moreover, as D.’s status had been in limbo for 23 of her 26 months, the dependency court could reasonably conclude that further delay was not in the child’s best interest. “The Legislature did not contemplate... last-minute [bonding study requests] to put off permanent placement. (In re Marilyn H. [(1993)] 5 Cal.4th [295, ] 310 [‘lengthy and unnecessary delay in providing permanency for children’ is ‘the very evil the Legislature intended to correct’].) While it is not beyond the juvenile court’s discretion to order a bonding study late in the process under compelling circumstances, the denial of a belated request for such a study is fully consistent with the scheme of the dependency statutes, and with due process.” (In re Richard C. (1998) 68 Cal.App.4th 1191, 1197.)
Exception to Termination of Parental Rights
Mother contends the dependency court abused its discretion when it found that the exception to termination in section 366.26, subdivision (c)(1)(B)(i) did not apply. We disagree with the contention.
See footnote 2, supra.
“‘Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability.’ [Citation.]... ‘The Legislature has declared that California has an interest in providing stable, permanent homes for children who have been removed from parental custody and for whom reunification efforts with their parents have been unsuccessful.’ [Citation.]” (In re Celine R. (2003) 31 Cal.4th 45, 52-53.) “At this stage of the proceedings, if an appropriate adoptive family is or likely will be available, the Legislature has made adoption the preferred choice. [Citation.]” (Id. at p. 49; see also § 366.26, subd. (b)(1) [adoption is the preferred plan].) “At this stage of the dependency proceedings, ‘it becomes inimical to the interests of the [child] to heavily burden efforts to place the child in a permanent alternative home.’ [Citation.] The statutory exceptions merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption.” (In re Celine R., supra, at p. 53.)
“[T]he exception does not permit a parent who has failed to reunify with an adoptable child to derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.) The type of parent-child relationship that triggers the exception is a relationship which “‘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....’ [Citation.]” (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534; accord, In re Jasmine D., supra, at pp. 1347-1350.)
Mother acknowledges that substantial evidence supports the finding, but she contends the finding was an abuse of discretion.
“The practical differences between the two standards of review are not significant. ‘[E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling.... Broad deference must be shown to the trial judge. The reviewing court should interfere only “‘if [it] find[s] that under all the evidence, viewed most favorably in support of the trial court’s action, no judge could reasonably have made the order that he did.’...”’ [Citations.] However, the abuse of discretion standard is not only traditional for custody determinations, but it also seems a better fit in cases like this one, especially since the statute now requires the juvenile court to find a ‘compelling reason for determining that termination would be detrimental to the child.’ (§ 366.26, subd. (c)(1)[(B)].) That is a quintessentially discretionary determination. The juvenile court’s opportunity to observe the witnesses and generally get ‘the feel of the case’ warrants a high degree of appellate court deference.” (In re Jasmine D, supra, 78 Cal.App.4th at p. 1351; accord, In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.) “[T]he question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law.” (In re I.W. (2009) 180 Cal.App.4th 1517, 1528.) In this case, it does not.
Mother did not play any parental role in D.’s life. For most of her life, D. was cared for by others and had only brief, monitored visits with mother four or fewer times per month. Mother was not rehabilitated. In these circumstances, the undisputed facts that mother’s visits were loving and appropriate do not lead inescapably to the conclusion that the benefit to D. of maintaining sporadic parental visitation in a “‘tenuous placement’” outweighed “‘the well-being [she] would gain in a permanent home with new, adoptive parents....’” (In re Brandon C., supra, 71 Cal.App.4th at p. 1534.) The dependency court did not abuse its discretion.
DISPOSITION
The judgment is affirmed.
We concur: TURNER, P. J., MOSK, J.