Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CONSOLIDATED APPEALS from a judgment of the Superior Court of San Diego County and petition for a writ of habeas corpus, Harry M. Elias, Judge, Super. Ct. No. NJ13258.
O'ROURKE, J.
Robin H. appeals a judgment terminating his parental rights to his minor children, Ethan H. and Nathan H. (together the minors) under Welfare and Institutions Code section 366.26. Robin contends the court erred by denying his request for a continuance of the section 366.26 selection and implementation hearing. Robin also challenges the sufficiency of the evidence to support the court's findings that the beneficial parent-child relationship exception did not apply to preclude terminating parental rights under section 366.26, subdivision (c)(1)(A). In his petition for writ of habeas corpus, Robin contends his counsel provided ineffective assistance. Charity H., the minors' mother, joins in Robin's assertions. We affirm the judgment and deny the petition.
All statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In November 2005 two-year-old Ethan and one-year-old Nathan tested positive for methamphetamine. Robin was in a car, with the two boys in the backseat, when a police officer pulled the car over for a traffic stop. The officer detected an odor associated with methamphetamine use. Robin and Charity admitted to using the drug that same day. The minors were taken into custody and dependency petitions were filed on their behalf. The court held a detention hearing and ordered the minors detained in out-of-home care.
According to the San Diego County Health and Human Services Agency's (Agency) reports, Robin and Charity had a long history of domestic violence. Police reports showed numerous acts of documented violence between the parents, and Robin had a conviction for domestic violence on his record. Charity described Robin punching her in the head, striking her in the lip and banging her head against a wall. She stated Robin had held a knife against her throat and threatened to kill her with it. In addition to the violence, Robin had a history of drug use. He had served as an officer in the United States Marine Corps and had served in Iraq. After serving, he went absent without official leave and tested positive for drug use. Robin's citizenship status was in question. He had resident status in the United States but in 2003, his green card status expired. He now faced the threat of deportation.
At the jurisdiction and disposition hearing, the court sustained the allegations set forth in the petitions, declared the minors dependents and placed them in foster care. Robin and Charity were ordered to participate in reunification services.
During the next six months, Robin was arrested and incarcerated for engaging in domestic violence with his ex-wife. He faced possible deportation from the United States following his release. While in jail, Robin made efforts to participate in some reunification services. The minors remained in foster care and had adjusted well. They both appeared to be healthy with little developmental problems. At the six-month review hearing, the court terminated reunification services and scheduled a section 366.26 selection and implementation hearing. The court ordered the Agency to prepare assessment reports for the section 366.26 hearing.
Social worker James Largent prepared an assessment report for the section 366.26 hearing. Mr. Largent observed visits between Robin and the minors. Robin had about 10 visits between August and December 2006. Mr. Largent stated there was a relationship between the minors and Robin, but the relationship was not a beneficial parent-child relationship within the meaning of section 366.26, subdivision (c)(1)(A).
During visits, the minors were happy to see Robin. Robin engaged the boys in playing and they generally had pleasant visits. The social worker noticed Robin sometimes had trouble parenting the minors. During one visit, he did not check Nathan's diaper and on other occasions, he spent a disproportionate amount of time with Ethan and left the social worker to intervene and work with Nathan. Sometimes, Nathan went to the caregivers during visits and required redirection to go back and play with Robin. The social worker noticed that Ethan did refer to Robin as "Daddy," but he also referred to his male caregiver as daddy and the female caregiver as "Mommy." At the end of visits, the minors separated easily from Robin, showed no distress and did not ask that visits be extended. The social worker further noted Robin did not usually ask about the minors' health or medical needs.
In November 2006 Robin expressed that he would be happy if the minors received permanent placement with the caregivers. He was not prepared to care for the minors at this time and did not know when he would be able to offer them a committed, stable home environment. The social worker believed continued contact between Robin and the minors did not outweigh the benefit of legal permanence. Robin had not made substantive progress with his reunification plan and participation in visitation was sporadic. Further, Robin's immigration status was pending and he could have been deported.
The social worker assessed both minors as adoptable based on their good health, young ages and minimal developmental problems. The minors' caregivers wanted to adopt them and had completed initial adoption paperwork. There were numerous other families interested adopting children like Nathan and Ethan, either separately or as a sibling set.
The court held an initial section 366.26 hearing in December 2006. Robin did not appear in court and no reason was given for his absence. The court continued the hearing to January 5, 2007. The record does not indicate that Robin's attorney represented that Robin would not be able to attend the January hearing date in person. Robin did inform the social worker that he had a hearing in immigration court in early January. He did not know of the exact date but believed the hearing was scheduled for January 7, 2007. Robin represented he would contact the social worker of the correct date at a later time.
Robin did not contact the social worker. Instead, the social worker contacted Robin to confirm the January 5, 2007, hearing date. The social worker received a telephone call from the minors' paternal grandmother in late December 2006, claiming the dependency hearing and Robin's immigration deportation hearing were scheduled on the same date. The social worker attempted to contact Robin again on January 3, 2007, but was unsuccessful.
The section 366.26 hearing took place on January 5, 2007. Robin did not appear but was represented by counsel. When the court started the section 366.26 hearing, it learned the immigration hearing had concluded two hours before and had been continued to April 2007. There was no indication that Robin attempted to contact his dependency attorney. Robin's attorney requested a continuance. The court indicated Robin and Charity had made no efforts to attend prior court hearings and denied the motion.
The court received in evidence the social worker's reports without objections. The court found the minors were adoptable and none of the exceptions of section 366.26, subdivision (c)(1) applied to preclude terminating parental rights. The court acknowledged the minors had a relationship with Robin but the relationship did not meet the beneficial parent-child relationship exception under section 366.26. Robin and Charity timely filed notices of appeal.
DISCUSSION
I.
Request for a Continuance
Robin contends the court abused its discretion by denying his request to continue the section 366.26 selection and implementation hearing. He asserts the court should have granted him a continuance because he was unable to attend the hearing due to a scheduling conflict and as a result, the court's ruling violated his due process right by denying him the opportunity to be heard.
A.
Parental rights cannot be terminated without due process. The interest of a parent in the companionship, care, custody and management of his children is a compelling one. A parent, therefore, must be afforded adequate notice and a meaningful opportunity to be heard before being deprived of his [or her] parental interest. (See In re B.G. (1974) 11 Cal.3d 679, 688-689.) Due process requires notice and an opportunity to be heard. (In re Melinda J. (1991) 234 Cal.App.3d 1413, 1418.) However, "[t]he general rule is that personal appearance by a party at a civil proceeding is not essential; appearance by an attorney is sufficient and equally effective. [Citations.]" (In re Dolly D. (1995) 41 Cal.App.4th 440, 445.)
Under section 352, the juvenile court may grant a continuance of any hearing only on a showing of good cause and only if the continuance is not contrary to a child's best interests. Children also have a fundamental interest in stability and permanence, which at times must be balanced against a parent's due process interests. (In re Jasmon O. (1994) 8 Cal.4th 398, 419-420.) "The intent of the Legislature . . . is that the dependency process proceed with deliberate speed and without undue delay. [Citations.]" (Marlene M. v. Superior Court (2000) 80 Cal.App.4th 1139, 1151.) " '[T]ime is of the essence in offering permanent planning for dependent children.' [Citations.]" (In re Gerald J. (1991) 1 Cal.App.4th 1180, 1187.) Therefore, "[a] reviewing court will reverse an order denying a continuance only upon a showing of an abuse of discretion. [Citation.]" (Ibid.)
Robin's inability to appear on the date scheduled for the section 366.26 hearing was not an automatic ground for a continuance, particularly when he had received notice of the hearing and was represented by counsel. When Robin did not appear at the January 2007 hearing, his attorney requested a continuance. Counsel stated Robin had a conflict with an immigration hearing scheduled earlier that morning. The court denied the motion to continue. Although Robin may have had a conflict, his attorney was present. Further, there was nothing to show Robin's presence would have altered the outcome of the proceedings. Robin stated he supported adoption by the caregivers. There was little evidence showing progress in his reunification plan, he faced possible deportation, and visits with the minors', although positive, did not show a relationship that was sufficiently beneficial to outweigh the benefits of adoption.
Robin also has not shown a violation of his due process. Due process in the context of dependency law tends to focus on the right to a hearing, the right to notice and an opportunity to present objections. (In re Crystal J. (1993) 12 Cal.App.4th 407, 412-413; In re Melinda J., supra, 234 Cal.App.3d at p. 1418.) Robin had notice of the section 366.26 hearing. He was present before the court in August 2006 when the court scheduled an initial section 366.26 hearing for December 2006. He was not present at the December 2006 hearing when the court continued the hearing to January but was represented by counsel. Although the court did not grant a continuance at the January 2007 hearing, Robin again was represented by counsel and his attorney had the opportunity to advocate on his behalf. No due process violation occurred.
Further, at this stage of the proceedings, the juvenile court was required to balance appellant's interest in being present at the hearing against the minors' interest in proceeding in a timely manner. At the time Robin requested the continuance, reunification services had already been terminated. The focus of the dependency proceedings was no longer on assisting Robin in reunifying with the minors, but rather on ensuring that the minors had a stable and permanent home. (In re Marilyn H. (1993) 5 Cal.4th 295, 307, 309-320; In re Stephanie M. (1994) 7 Cal.4th 295, 317.) This focus was furthered by proceeding with the section 366.26 hearing so that the minors could be freed for adoption. The court did not abuse its discretion by denying the continuance request. (§ 352; Jeff M. v. Superior Court (1997)56 Cal.App.4th 1238, 1242; In re Ninfa S. (1998)62 Cal.App.4th 808, 810-811.)
II.
Beneficial Parent Child Relationship
Robin contends the evidence is insufficient to support the court's finding the beneficial parent-child relationship of section 366.26, subdivision (c)(1)(A) does not apply to preclude terminating his parental rights. He asserts the minors would benefit from continuing the relationship because he maintained a loving relationship with them through visitation.
A.
We review the judgment for substantial evidence. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings. We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.) Rather, we "accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact." (Id. at p. 53.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)
"Adoption, where possible, is the permanent plan preferred by the Legislature." (In re Autumn H., supra, 27 Cal.App.4th at p. 573.) If the court finds a child cannot be returned to his or her parent and is likely to be adopted if parental rights are terminated, it must select adoption as the permanent plan unless it finds termination of parental rights would be detrimental to the child under one of six specified exceptions. (§ 366.26, subd. (c)(1) (A)-(F); In re Erik P. (2002) 104 Cal.App.4th 395, 401.)
Section 366.26, subdivision (c)(1)(A) provides an exception to the adoption preference if termination of parental rights would be detrimental to the child because "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." We have interpreted the phrase "benefit from continuing the relationship" to refer to a parent-child relationship 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 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., supra, 27 Cal.App.4th at p. 575; accord In re Zachary G. (1999) 77 Cal.App.4th 799, 811.)
To meet the burden of proof for this statutory exception, the parent must show more than frequent and loving contact, an emotional bond with the child or pleasant visits. (In re Derek W. (1999) 73 Cal.App.4th 823, 826-827.) The parent must show he or she occupies a parental role in the child's life, resulting in a significant, positive, emotional attachment from child to parent. (Id. at p. 827; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)
B.
During the dependency proceedings, Charity had no contact with the minors and waived her right to reunification services. Robin had made some contact and had some visitation with the minors. However, his contact with the minors was sporadic at best with 10 visits during the span of about four months. Even had visitation been regular, Robin did not meet his burden of showing his relationship with the minors was sufficiently beneficial to outweigh the benefits of adoption for them. When visits did take place, they were appropriate and pleasant. Ethan appeared to enjoy visits. Robin, however, typically ignored Nathan and both children did not show signs of distress when visits ended. Further, Robin did not have a parental role in the minors' lives. He did not have the skills to direct the minors, did not inquire as to the minors' health and admitted to the social worker that he was not able to care for the minors at this time. Instead, the record shows that the minors looked to their caregivers for physical and emotional support. The minors here did not show a "significant, positive, emotional attachment" to Robin such that terminating the parent-child relationship would result in great detriment to them. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Rather, the minors' need for a stable and secure home is paramount. Any possible benefit to the minors of continuing a relationship with Robin was outweighed by the benefits of adoption.
Where, as here, the biological parent does not fulfill the parental role, "the child should be given every opportunity to bond with an individual who will assume the role of parent. . . . To hold otherwise would deprive children of the protection that the Legislature seeks to provide." (In re Brittany C. (1999) 76 Cal.App.4th 847, 854.) Substantial evidence supports the court's finding that the beneficial parent-child relationship did not apply to preclude terminating parental rights.
III.
Ineffective Assistance of Counsel
In a petition for writ of habeas corpus, Robin contends he was denied his right to effective assistance of trial counsel. He asserts his dependency attorney provided ineffective assistance of counsel because she did not file a written motion for a continuance. She should have filed the motion because she was aware Robin had an immigration deportation hearing on the same day. Robin claims that as a result of this failure, he was denied an opportunity to be heard at the section 366.26 hearing.
A.
Robin has the burden of proving a claim of ineffective assistance of counsel by showing: (1) counsel's representation fell below an objective standard of reasonableness; and (2) the deficiency resulted in demonstrable prejudice. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1180; In re O.S. (2002) 102 Cal.App.4th 1402, 1407; In re Arturo A. (1992) 8 Cal.App.4th 229, 237.) "A court need not evaluate whether counsel's performance was deficient before examining prejudice suffered by defendant. [Citation.] Thus, a court may reject a claim if the party fails to [show] that but for trial counsel's failings, the result would have been more favorable to the defendant." (In re Nada R., supra, 89 Cal.App.4th at p. 1180; see also Strickland v. Washington (1984) 466 U.S. 668, 688, 694.)
B.
Robin has not made a showing of prejudice resulting from counsel's alleged ineffectiveness. Robin asserts his appointed dependency counsel was ineffective when she did not file a motion to continue the section 366.26 hearing. Robin claims she was aware of Robin's conflict with the immigration hearing scheduled for the same day. As a result of trial counsel's inactions, Robin claims he was denied the opportunity to be heard at the section 366.26 hearing.
The section 366.26 hearing was scheduled for January 5, 2007, at 8:30 a.m. An addendum report submitted by the Agency acknowledged that the minors' paternal grandmother left a message with social worker Largent indicating Robin had a scheduling conflict with an immigration hearing on January 5. Mr. Largent contacted Robin to confirm the veracity of this information, but Robin never directly confirmed or updated Mr. Largent. The dependency attorney, therefore, had no way of knowing with certainty whether there in fact was a scheduling conflict. Nevertheless, when Robin did not appear at the start of the section 366.26 hearing, the dependency attorney immediately requested a continuance. Even though trial counsel did not submit a written motion, one was not required. Trial counsel provided effective assistance of counsel because the juvenile court can consider a continuance request based on an oral motion. (See § 352, subd. (a).)
Even if we were to assume trial counsel was ineffective, no prejudice to Robin resulted from his dependency attorney's alleged failure to file a written motion for a continuance. Robin does not provide evidence showing his parental rights would not have been terminated had he been present. The facts before the juvenile court showed Robin had not made substantial progress with his case plan, with visitation or with the domestic violence issues that led to the minors' dependency. The evidence instead shows Robin believed he could not provide the minors with a stable home life and supported their adoption by their caregivers. Even had Robin changed his mind about the adoption, the record does not show that he informed his social worker or his attorney. Further, Robin does not show what additional evidence he would have presented at the hearing or how the evidence would have resulted in the court finding an exception to terminating his parental rights. Accordingly, we reject Robin's arguments.
Robin does not allege in his writ petition that he was prejudiced by his dependency attorney's inactions. His only claim is that but for his attorney's ineffective representation, he would have had an opportunity to be heard at the section 366.26 hearing.
DISPOSITION
The judgment is affirmed. The petition for writ of habeas corpus is denied.
WE CONCUR: BENKE, Acting P. J., HALLER, J.