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In re Emma V.

California Court of Appeals, Fourth District, First Division
Feb 4, 2011
No. D058105 (Cal. Ct. App. Feb. 4, 2011)

Opinion


In re EMMA V., a Person Coming Under the Juvenile Court Law. D058105 California Court of Appeal, Fourth District, First Division February 4, 2011

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of San Diego County, No. NJ11778B, Peter L. Fagan, Juvenile Court Referee.

McDONALD, J.

Erika F. appeals the judgment terminating her parental rights to her one-year-old daughter, Emma V. Erika contends the juvenile court abused its discretion by denying her request for a continuance and erred by declining to apply the beneficial relationship exception to termination of her parental rights (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i)). We affirm the judgment.

All further statutory references are to the Welfare and Institutions Code.

BACKGROUND

In May 2009 the San Diego County Health and Human Services Agency (the Agency) filed a dependency petition for newborn Emma. The petition alleged that Emma tested positive for opiates and suffered withdrawal symptoms. Erika admitted using heroin every other day, between January and May, while pregnant with Emma. Erika had little prenatal care. She acknowledged a history of drug use beginning in 2000 or earlier.

Emma was detained in the hospital, then in a foster home, then with her maternal grandmother (Grandmother). Erika entered residential drug treatment. In June 2009 the court entered a true finding on the petition. The court ordered Emma placed in foster care and gave the Agency discretion to begin an extended visit with Grandmother pending approval of her home. By August the extended visit with Grandmother had become a placement. In late August Erika left residential treatment. She began outpatient drug treatment and moved in with Grandmother and Emma.

By October 2009 Erika had accumulated 10 unexcused absences from the outpatient drug treatment program and Emma's maternal grandfather found tinfoil with heroin residue and a syringe under Emma's crib. Grandmother asked Erika to move out of the home, and Erika moved into a transitional living home. By December she had missed at least two drug tests and refused another. That month she was discharged from the outpatient program for noncompliance.

In February 2010 Erika again entered residential drug treatment. Within a few weeks she was discharged from the program because a methadone bottle and a soda bottle containing urine were found in her room. Around that time, Erika tested positive for morphine. In March she began residential treatment for the third time. Later that month she tested positive for methadone.

In March 2010 the Agency filed a section 388 petition to modify the court's February six-month review hearing order continuing Erika's reunification services. The court made a prima facie finding on the petition. At Erika's request, the court set a contested hearing on the merits of the petition for March 25. On March 25 Erika withdrew her request for a contested hearing. The court granted the section 388 petition, terminated Erika's reunification services and set a section 366.26 hearing for July 20.

In May 2010 Erika began her second outpatient drug treatment program. She was discharged within four weeks.

On July 2, 2010, the Agency filed a section 366.26 report recommending a permanent plan of guardianship. On July 20, at the request of counsel for the Agency and for Emma's alleged father, the court continued the section 366.26 hearing to August 3. The court relieved Erika's attorney and appointed the Dependency Legal Group (DLG) to represent Erika. DLG attorney Ryan Cohen appeared for Erika.

The Agency recommended guardianship rather than adoption because Emma was placed with a relative. Grandmother expressed a wish to adopt Emma, but preferred guardianship because she hoped that Erika would reunify with Emma.

The Agency filed a written request to continue the July 20 hearing for one week to allow Grandmother to qualify for Kin-GAP funding. The July 20 hearing was the alleged father's first appearance.

On August 3, 2010, the Agency filed an addendum report recommending termination of parental rights and a permanent plan of adoption. Cohen asked the court to set a contested section 366.26 hearing and requested three to four weeks to conduct an investigation. The court set a contested hearing for August 20.

Grandmother had decided that adoption would be better for Emma than guardianship. Grandmother noted that Erika rarely visited Emma in July and showed no motivation to become sober and reunify with Emma.

On August 20, 2010, DLG attorney Jill Smith appeared for Erika and requested a continuance. Smith cited the Agency's change in recommendation, and explained Erika had learned that visitation would be an issue. Smith wished to conduct an investigation and call as witnesses the daycare providers who observed Erika's interactions with Emma. The Agency and minor's counsel opposed the continuance request. The court denied the request. After receiving the Agency's reports into evidence, and hearing testimony by the social worker and Erika, the court terminated parental rights.

CONTINUANCE

"Continuances are discouraged in dependency cases. [Citation.] '[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 re Giovanni F. (2010) 184 Cal.App.4th 594, 605.) "We review the denial of a continuance for abuse of discretion." (Ibid.)

Erika contends a continuance was required to allow her new counsel to prepare a defense to the Agency's new recommendation and "was crucial to [Erika]'s ability to preserve her parental rights." She claims a continuance would not have been contrary to Emma's best interests.

At the time of DLG attorney Smith's August 20, 2010, continuance request, more than four months had elapsed since the court set the section 366.26 hearing. The hearing had been continued twice. More than two weeks had elapsed since the second continuance on August 3. On August 3 the Agency filed its report discussing Erika's infrequent visits in July and recommending termination of parental rights. Erika attended the August 3 hearing and DLG attorney Cohen asked for and received time to conduct an investigation. The record does not show what investigation Cohen conducted or when Smith assumed the case. In any event, at the time of Smith's continuance request one month had elapsed since DLG's appointment to represent Erika. DLG waited until the date of the hearing to ask for another continuance rather than filing a written notice "at least two court days prior to the date set for hearing...." (§ 352, subd. (a).) Emma was entitled to a prompt resolution of her custody status. (In re Ninfa S. (1998) 62 Cal.App.4th 808, 811.) The court did not abuse its discretion by denying Smith's continuance request.

THE BENEFICIAL RELATIONSHIP EXCEPTION

If a dependent child is adoptable, the juvenile court must terminate parental rights at the section 366.26 hearing unless the parent proves the existence of a statutory exception. (§ 366.26, subd. (c)(1); In re Helen W. (2007) 150 Cal.App.4th 71, 80.) One exception exists if "[t]he parent[ ] [has] maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) 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 taking into consideration "[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.) Examining the evidence most favorably to the judgment, we conclude that substantial evidence supports the court's finding that Erika did not visit regularly near the end of the case, terminating parental rights would not be detrimental to Emma and adoption was in her best interests. (Id. at pp. 576-577; In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373.)

Erika does not contest the juvenile court's finding that Emma was adoptable.

For the most part Erika's visitation was supervised. Until July 2010 she visited Emma consistently. In July and August Erika visited approximately two times each month although she was offered more visits.

At the time of the section 366.26 hearing, Emma was one year old. She had not been in Erika's care since birth, except for the one- to three-month period when Erika was living in Grandmother's home with Emma. For nearly all her life, Emma had lived with Grandmother and was bonded with Grandmother and the other members of Grandmother's household. Emma was happy and received excellent care in the home. Emma looked to Grandmother to meet her basic needs and viewed Grandmother as her parent.

Erika cared for Emma appropriately during visits. She fed Emma, bathed her, changed her diaper, encouraged her, soothed her, sang to her and rocked her to sleep. Nevertheless, Emma sought out the social worker and other people during visits. The social worker, an expert in parent-child bonding, believed that Erika and Emma had a loving relationship characterized by positive interaction, but Erika did not occupy a parental role. Instead, Erika's relationship to Emma was that of a visitor, relative or babysitter. The social worker concluded Emma's relationship with Erika did not outweigh the stability and permanency Emma needed and would gain through adoption.

Erika had a 13-year history of substance abuse with multiple unsuccessful attempts at treatment. Erika's two older sons had suffered from her drug abuse and neglect. In 2001 the court terminated Erika's parental rights to her five-year-old son, who was then adopted by Grandmother. Erika's older son had been in and out of her custody and her inability to provide stability and permanency continued with Emma. Although Erika undoubtedly loves Emma, she has been consumed by her drug dependence and unable to make Emma a priority.

There is substantial evidence that Emma did not have "a substantial, positive emotional attachment" to Erika of the kind that would outweigh the well-being Emma would gain in a permanent, adoptive home and that Emma would not be greatly harmed by the severance of her relationship with Erika. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) The court properly determined that the beneficial relationship exception did not apply.

We decline Erika's suggestion to apply the abuse of discretion standard of review rather than the substantial evidence standard.

DISPOSITION

The judgment is affirmed.

WE CONCUR: HALLER, Acting P. J., McINTYRE, J.

Erika cites In re S.B. (2008) 164 Cal.App.4th 289, in which this court concluded that the juvenile court erred in declining to apply the beneficial relationship exception. (Id. at p. 301.) In that case, the child continued to display a strong attachment to the appellant father after her removal (id. at pp. 298-301) and they "had an emotionally significant relationship." (Id. at p. 298.) The father visited consistently (id. at pp. 293-294, 298, 300), "complied with 'every aspect' of his case plan" (id. at p. 298), empathized with his child, recognized her needs (id. at p. 294) and placed her needs above his own (id. at p. 298). In re S.B. is distinguishable from the instant case.


Summaries of

In re Emma V.

California Court of Appeals, Fourth District, First Division
Feb 4, 2011
No. D058105 (Cal. Ct. App. Feb. 4, 2011)
Case details for

In re Emma V.

Case Details

Full title:In re EMMA V., a Person Coming Under the Juvenile Court Law.

Court:California Court of Appeals, Fourth District, First Division

Date published: Feb 4, 2011

Citations

No. D058105 (Cal. Ct. App. Feb. 4, 2011)