Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, William E. Lehnhardt, Judge. (Retired Judge of the San Diego S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Super. Ct. No. SJ11610A/C
HUFFMAN, J.
Melissa C. appeals a juvenile court judgment terminating her parental rights to her minor children L.C. and Diego C. (together the minors) under Welfare and Institutions Code section 366.26. Melissa contends the court erred by denying her request for a continuance of the section 366.26 selection and implementation hearing to allow her to file a section 388 petition for modification and retain private counsel. We affirm the judgment.
Statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2006 six-year-old L. and two-year-old Diego became dependents of the juvenile court under section 300, subdivision (b) and were removed from parental custody based on findings Melissa's drug abuse, depression and refusal to participate in voluntary services made her unable to adequately care for the minors. The minors were placed with the maternal great-aunt and great-uncle. The court ordered Melissa to participate in services, including the Substance Abuse Recovery Management System program.
During the next six months, Melissa continued to use methamphetamine and alcohol. She did not comply with the requirements of her case plan and visited the minors inconsistently. According to a psychological evaluation, Melissa began using drugs when she was 11 years old, was severely depressed and had suicidal ideation. At a contested six-month review hearing, Melissa unsuccessfully sought a continuance to enable her to present additional evidence regarding her participation in substance abuse treatment and anger management. The court terminated Melissa's services and set a selection and implementation hearing.
The minors were assessed as generally adoptable and their maternal relatives wanted to adopt them. Melissa had not contacted the social worker since services were terminated four months earlier, and her whereabouts were unknown. In the social worker's opinion, Melissa and the minors did not have a beneficial parent-child relationship and the benefits of adoption outweighed the benefits of continuing the relationship.
On June 27, 2007, the date set for the contested selection and implementation hearing, Melissa was present with her court-appointed counsel and requested a continuance because she wanted the opportunity to retain counsel. The court granted a five-day continuance and directed Melissa to bring her new attorney to court on July 2 so he or she could substitute in as counsel, request a copy of the court file and ask for a continuance to properly prepare for trial. The court said trial would proceed on July 2 unless Melissa appeared with new counsel. If Melissa had new counsel, the court would grant a request for a continuance.
On July 2, 2007, Melissa, still represented by appointed counsel, asked for another continuance to retain counsel. The court denied the request on the ground Melissa had not shown good cause for a continuance. Melissa then sought a continuance so she could investigate her claim that the minors were not receiving appropriate care in their relative placement, and to allow her to file a section 388 petition for modification on that ground. The court found there was no prima facie showing the issues raised were appropriate for a selection and implementation hearing and the request was untimely. Consequently, the court denied the continuance.
At the contested selection and implementation hearing, Melissa testified she visited the minors once in the past nine months. She opposed their adoption. The court found the minors were adoptable and none of the circumstances of section 366.26, subdivision (c)(1) applied to preclude terminating parental rights.
DISCUSSION
A
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 minor's best interests. 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." (§ 352, subd. (a); In re Ninfa S. (1998) 62 Cal.App.4th 808, 810.) Because "time is of the essence" for dependent children, continuances in juvenile cases are discouraged. (In re Josiah Z. (2005) 36 Cal.4th 664, 674; Jeff M. v. Superior Court (1997) 56 Cal.App.4th 1238, 1242.) We reverse an order denying a continuance only on a showing of an abuse of discretion. (In re Gerald J. (1991) 1 Cal.App.4th 1180, 1187.)
B
Melissa's reunification efforts were dismal. She visited the minors sporadically and only once in a nine-month period. On the date set for the selection and implementation hearing, which had been scheduled more than five months earlier, Melissa asked for time to begin looking for her own counsel. The court granted the continuance, but informed Melissa the contested hearing would proceed on July 2 unless she had retained counsel and sought a further continuance in order to properly prepare for trial. When, on July 2, Melissa did not appear with retained counsel, the court proceeded with the hearing as promised. Under these circumstances, the court could reasonably find the request for a further continuance was nothing more than a delay tactic that was not in the minors' best interests. The court acted well within its discretion by denying Melissa's second continuance request. (Cf. In re Michael R. (1992) 5 Cal.App.4th 687, 694 [court erroneously found it had no discretion to grant a continuance of the section 366.26 hearing].)
C
Melissa also sought a continuance of the selection and implementation hearing because she wanted to investigate the appropriateness of the minors' placement and possibly file a section 388 petition for modification. However, Melissa did not "explain how this information would have been relevant to any issue decided at the [section 366].26 hearing." (In re Ninfa S., supra, 62 Cal.App.4th at p. 811.) At that hearing, the court is concerned only with selecting and implementing a permanent plan for a dependent minor. " '[T]here is no window of evidentiary opportunity for a parent to show that in some general way the "interests" of the child will be fostered by an order based on some consideration not set forth in section 366.26.' " (Ibid.) Because the suitability of the minors' caregivers was not relevant at this stage of the proceedings, Melissa made no showing of good cause to warrant a continuance.
In any event, the court treated Melissa's request as an "oral" petition for modification and found she did not make a prima facie showing of changed circumstances or best interests to warrant a hearing. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) A parent, such as Melissa, must do more than appear at a selection and implementation hearing and, "without prior notice to the court and other parties, assert a meritless claim of changed circumstances necessitating a delay of the hearing to allow the court to determine whether there is sufficient evidence to hold a hearing on the issue and to allow the other parties time to respond. After resolution of the issue raised, another such claim conceivably could be raised at the next section 366.26 hearing. This could result in lengthy and unnecessary delay in providing permanency for children, the very evil the Legislature intended to correct." (Id. at p. 310.)
Throughout the reunification period, Melissa failed to address her substance abuse or engage in other services as required by her case plan. She visited the minors sporadically during the 16 months they were out of her care. The minors were in a safe and secure home with relatives who wanted to provide them with permanence through adoption. Melissa did not show the court abused its discretion by denying her request for a continuance to file a section 388 petition.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., McINTYRE, J.