Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. DP014144, Carolyn Kirkwood, Judge.
Dabney Finch, under appointment by the Court of Appeal, for Defendant and Appellant.
Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
ARONSON, J.
Brandy B. (mother) appeals from an order of the juvenile court terminating her parental rights to Haley R. (age 6) and Summer R. (age 2). (See Welf. & Inst. Code, § 366.26 (.26 hearing); all statutory references are to this code.) She contends the court erred in denying her request for a continuance and by declining to apply the statutory exception to termination of parental rights where a strong parent-child bond exists. (§ 366.26, subd. (c)(1)(B)(i).) For the reasons discussed below, we affirm.
I
Facts and Procedural Background
In September 2006, Buena Park police officers found Haley and Summer in the care of an unrelated probationer and gang member near a motel known as a venue for drugs and prostitution. The officers arrested the probationer for possession of drug paraphernalia, and took the children into protective custody. The girls were placed with their maternal grandmother, Deborah B., when the officers and a social worker could not locate the children’s parents.
The Orange County Social Services Agency (SSA) filed a dependency petition alleging the inability of the parents to protect Haley and Summer posed a substantial risk of harm to the children. (§ 300, subd. (b).) An amended petition referred to mother’s decision to leave the children in the care of a gang member on probation for burglary and who officers arrested for possession of drug paraphernalia. The amended petition also cited the parents’ ongoing abuse of alcohol and drugs, including methamphetamine, a domestic violence incident, and the sexual abuse of Haley by a male cousin.
In November 2006, the parents pleaded no contest to the amended petition. The court declared the children dependents of the court and vested custody with SSA. The court ordered reunification services and scheduled a six-month review hearing for May 2007.
Mother’s case plan required successful completion of an SSA-approved drug treatment program, drug and alcohol testing, and domestic violence and parenting education programs, among other conditions. The court authorized twice weekly monitored visits with the children.
Mother visited consistently through the first period of supervision once the parties established a regular visitation schedule in December 2006. The visits went well and included activities such as reading, talking and watching television. Mother exhibited good parenting skills by rocking and cradling Summer when she became upset. The girls appeared fond of their mother, smiling and hugging her and expressing positive feelings towards her.
But at the six-month review hearing in May 2007, SSA recommended termination of reunification efforts. Mother claimed she had participated in court ordered services, but failed to provide evidence of her attendance and service providers had no record of her. She relocated without advising the social worker and spent time in jail after being arrested on an outstanding warrant. Father reported mother had contacted him to obtain illegal drugs. Mother submitted only one drug test, which was positive for methamphetamine. By stipulation of the parties, the court terminated reunification services, but authorized funding to continue drug testing, and scheduled a .26 hearing for September 2007.
SSA’s report for the .26 hearing recommended termination of parental rights. Mother had not visited her children for several months, apparently because she had been incarcerated. Haley appeared sad and stated, “If she doesn’t come back, I’m going to be sadder than ever.” She asked the social worker to tell the judge “that mommy’s not coming over any more.” The children had flourished while living with Deborah. Deborah provided a nurturing, loving, and stable home and SSA reported the children were happy, healthy, developmentally on target, and free of mental and emotional problems. Deborah described her relationship with the children as “mother/daughter,” and had “completely dedicated” herself to raising them. Summer called Deborah “grandma and momma” and Haley called her “grandma” but would say, “You’ll be my mom and my grandma.” According to Haley, adoption meant she would live with Deborah for the rest of her life. This made her happy and she wanted to continue living with Deborah.
At the .26 hearing on September 27, 2007, mother orally requested a continuance, which the juvenile court denied for lack of good cause. Mother submitted the remaining issues to the court on SSA’s reports without presenting evidence or cross-examining the social worker. Counsel argued against terminating mother’s parental rights based on her bond with the children. The court found Haley and Summer likely to be adopted and that none of the statutory exceptions to termination of parental rights applied. The court terminated parental rights, and this appeal followed.
The girls’ father, Henry R., has not appealed.
II
Discussion
A. The Juvenile Court Did Not Abuse Its Discretion in Denying Mother’s Oral Motion to Continue
Mother contends the court erred by denying her motion to continue the .26 hearing. She argues good cause required a postponement of the hearing, which would not have harmed the interests of the children. We do not find the contention persuasive.
At the beginning of the .26 hearing, counsel explained the basis for a continuance: “She was incarcerated until two days ago. She was actively engaged in perinatal, and P.E.P., class, and drug testing. She was also visiting her children regularly until she was incarcerated and she would just be requesting more time.” In rejecting mother’s request, the court cited the young age of the children, noted mother had not consistently contacted the children, and had failed to inform the social worker she had been taken into custody.
Continuances in dependency cases are disfavored and therefore difficult to obtain. (Jeff M. v. Superior Court (1997) 56 Cal.App.4th 1238, 1242.) Section 352 limits the juvenile court’s power to continue dependency cases. Subdivision (a) prohibits the court from granting a continuance that is contrary to the interest of the minor, and must “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.” (§ 352, subd. (a).) To obtain a continuance, a party must offer evidence demonstrating good cause, and the moving party must file the motion at least two days before the scheduled hearing detailing the specific facts which would support the granting of the continuance. (Ibid.) The court, however, on good cause may entertain an oral motion to continue the hearing. (Ibid.)
We review the denial of a continuance for abuse of discretion. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1065, superseded by statute on other grounds as noted in Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1032.) The juvenile court is accorded wide discretion and its determination will not be disturbed on appeal absent “‘a manifest showing of abuse.’” (Id. at p. 1067.)
Mother relies on In re Michael R. (1992) 5 Cal.App.4th 687 (Michael R.), to support her contention the court erred in denying her request for a continuance. Mother claims she needed more time to obtain facts and evidence to support a petition to modify earlier court orders and reopen reunification services. In Michael R., the juvenile court denied a section 352 motion, explaining it wanted to grant a continuance to allow the mother to complete a drug rehabilitation program imposed as a condition of reunification, but lacked jurisdiction to do so. (Michael R., at p. 687.) The appellate court reversed, noting the unambiguous language of section 352 gave the trial court discretion to grant a motion for continuance heard before the commencement of a .26 hearing: “Recognizing there might be circumstances where a parent would not have sufficient information to permit the filing of a section 388 petition, the Legislature enacted section 352 so a party could continue the section 366.26 hearing to acquire the facts necessary to be able to make an adequate showing to obtain a section 388 hearing and ultimately, depending on the facts, to prevail in such a proceeding.” (Michael R., at p. 694.)
Here, mother had been given a year to complete reunification services and demonstrate whether she could adequately protect her daughters. She attempted to deceive the social worker by claiming she had enrolled in programs concerning drug abuse and parenting skills, and had complied with her reunification plan. In fact, she did not attend a class until April 2007, and her only drug test, in May 2007, came back positive for methamphetamine. In Michael R., the mother required a continuance to complete a court-ordered program she could not have finished before the scheduled .26 hearing. Unlike the mother in Michael R., mother failed to demonstrate that additional time would result in a different outcome.
As for mother’s argument it was not against the children’s best interests to continue the .26 hearing because they lived with the prospective adoptive mother, the Legislature has expressed a policy preference against delay so that children may quickly receive a stable and permanent home through the appropriate placement. (See In re Marilyn H. (1993) 5 Cal.4th 295, 310.) Although the court has discretion to continue the .26 hearing, it may not do so “where it is contrary to the best interests of the minor.” (Michael R., supra, 5 Cal.App.4th at p. 694.) Here, Haley and Summer had a strong need for a prompt resolution of their status. (§ 352, subd. (a).) Granting a continuance under these circumstances would further delay the children in obtaining a secure and permanent home. In sum, the court did not abuse its discretion in denying mother’s 11th-hour oral request for a continuance at the beginning of the .26 hearing.
B. Substantial Evidence Supports the Juvenile Court’s Conclusion the Benefit Exception Did Not Apply
Mother also contends the trial court erred in terminating her parental rights because she had “maintained regular visitation and contact with the child[ren] and [they] would benefit from continuing the relationship.” (Former § 366.26, subd. (c)(1)(A), now § 366.26, subd. (c)(1)(B)(i).) The benefit exception invoked by mother authorizes the juvenile court to avoid terminating parental rights if it finds “‘termination would be detrimental to the child [because] . . . [t]he parents or guardians have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.’” (In re Cliffton B. (2000) 81 Cal.App.4th 415, 424 (Cliffton B.).) Once reunification services have been terminated, the parent bears the burden of proving termination of parental rights would be detrimental to the child. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350 (Jasmine D.).) The benefit 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. (Id. at p. 1348.)
Instead, the benefit exception applies only if “the relationship 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 (Autumn H.).) “In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the 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.” (Ibid.) Thus, “the juvenile court must engage in a balancing test, juxtaposing the quality of the relationship and the detriment involved in terminating it against the potential benefit of an adoptive family.” (Cliffton B., supra, 81 Cal.App.4th at pp. 424-425.) We review the juvenile court’s decision concerning whether the benefit exception applies for substantial evidence. (Autumn H., at p. 576.)
Here, SSA reported in advance of the .26 hearing mother “has not maintained consistent contact with the children.” Mother explains she failed to visit the children after May 2007 because she was incarcerated, noting she had visited regularly before being jailed. But mother failed to present evidence on this point, and nothing in the record supports this claim. Thus, substantial evidence supports the court’s conclusion mother failed to maintain the regular contact necessary to invoke the benefit exception. Even if the court had accepted her counsel’s explanation at face value, mother’s incarceration during this time underscores her inability to provide her children with a stable and permanent relationship. By the .26 hearing, the dependent child “is entitled to stability now, not at some hypothetical point in the future.” (In re Megan S. (2002) 104 Cal.App.4th 247, 254.)
Mother argues she had a substantial, positive emotional attachment with her daughters. She points to her positive visits to show she was attentive to her children’s needs for physical care, nourishment, comfort, affection, and stimulation, which is the staple of a parental relationship. (See Autumn H., supra, 27 Cal.App.4th at p. 575.) She cites her quick response to Summer’s needs by rocking and cradling her during one particular visit.
Cases interpreting the benefit exception stress the need for a strong parental relationship on a daily basis, not just based upon a showing of one particular instance. (See Autumn H., supra, 27 Cal.App.4th at p. 575, italics added [“[t]he relationship arises from day-to-day interaction, companionship and shared experiences”]; In re Brittany C. (1999) 76 Cal.App.4th 847, 854, italics added [“daily nurturing” is the hallmark of a parental relationship].) Although “excellent” visits may yield emotional attachment, “[positive visits] are, by themselves, insufficient to mandate a permanent plan other than adoption.” (In re Brian R. (1991) 2 Cal.App.4th 904, 924.)
Mother infers that Haley’s sadness over mother’s absence indicates a wish to stay with her mother. The court must of course consider the wishes of the child in a .26 proceeding. (See § 366.26, subd. (h)(1).) But Haley later expressed an understanding of the adoption process and stated living with Deborah made her happy and she wanted to continue living happily with Deborah for the rest of her life.
As the juvenile court stated, “a child’s longing for a parent does not create the reality that a parent occupies a parental role.” Mother’s absences and inconsistent contact undoubtedly inflicted emotional harm on her daughters, and Mother’s continued drug abuse, incarceration, and noncompliance with her case plan demonstrates a likelihood the children would not benefit from maintaining the parental relationship.
At the time of .26 hearing, the children had spent a year of their young lives living with Deborah. During this time, she provided food, clothing, and shelter. She fulfilled their social and emotional needs. She devoted herself to them, providing a nurturing, loving, and stable home where they are flourishing. SSA reported the girls were happy, healthy, developmentally on track, and free of emotional issues. The children have made statements demonstrating they consider Deborah to fill the role their mother could not, and Deborah expressed a similar understanding. Haley understood the meaning of adoption and her most recent statements reflected she wished to continue living with Deborah for the rest of her life. The evidence showed Deborah is committed to the adoption process and making the children permanent members of her family.
Mother bore the burden of establishing termination of her parental rights would greatly harm the children. (Autumn H., supra, 27 Cal.App.4th at p. 575; Jasmine D., supra, 78 Cal.App.4th at p. 1350.) We must view the evidence in the light most favorable to the juvenile court’s determination. Consequently, we conclude substantial evidence supports the juvenile court’s decision that mother failed to meet her burden to show continuing the parent-child relationship outweighed the benefits of a permanent and stable home for the children.
III
Disposition
The order terminating parental rights is affirmed.
WE CONCUR: BEDSWORTH, Acting P.J., O’LEARY, J.