Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. J204645, James C. McGuire, Judge.
Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruth E. Stringer, Acting County Counsel, and Danielle E. Wuchenich and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.
Neil R. Trop, under appointment by the Court of Appeal, for Minor.
OPINION
King J.
I. INTRODUCTION
Appellant, Dena G., is the mother of Michael C., a boy, born in July 2005. Mother contends the juvenile court abused its discretion in refusing to continue the August 17, 2007, Welfare and Institutions Code section 366.26 hearing for one week, after mother failed to appear at the hearing due to “transportation difficulties.” We find no abuse of discretion. Furthermore, mother has not shown she was prejudiced by the court’s refusal to continue the hearing. Accordingly, we affirm the orders terminating parental rights and placing Michael C. for adoption.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
II. FACTS AND PROCEDURAL HISTORY
A. Events Preceding Michael C.’s Dependency
Michael C. was taken into protective custody on October 29, 2005, when he was only three months old. He was born prematurely in July 2005, at 28 weeks’ gestation. He weighed only two pounds two ounces at birth and was hospitalized for over 100 days following his birth. Mother claimed she had a sexually transmitted disease which resulted in Michael C.’s premature birth. Michael C. had had no prenatal care and was born with underdeveloped lungs. After he was discharged from the hospital, he had significant medical needs that required consistent follow-up care.
Around noon on October 29, 2005, 10 days after Michael C. was discharged from the hospital, the police responded to a motel where mother was staying with Michael C. Mother and her sister, a maternal aunt, were arguing loudly, and mother was under the influence of alcohol. Her speech was slurred and incoherent. The police found two empty bottles of vodka in the motel room. Mother admitted drinking both bottles earlier that morning. Mother was arrested for child endangerment and an outstanding warrant. The San Bernardino County Department of Children’s Services (DCS) took Michael C. into protective custody and placed him in the care of the maternal aunt.
In October 2005, mother was 33 years old. According to the maternal aunt, mother had a long history of abusing alcohol, was bipolar and schizophrenic, and had been in and out of behavioral clinics. Mother was taken into custody under section 5150 in September 2005, and was scheduled to enter an in-patient substance abuse program on November 3. The maternal aunt paid for mother to stay in the motel for a few days on the condition she enroll in the in-patient program. The maternal aunt gave mother food and formula for Michael C. Mother was homeless before she checked into the motel.
Mother has three older sons who were ages 5, 9, and 14 in October 2005. All three boys were removed from her custody in 2001 due to physical abuse. The maternal aunt later adopted the oldest child, R.S. The other two boys, J.P. and T.P., were placed with their father, K.P., who has full custody of them. In 2002, mother was granted supervised visitation with J.P. and T.P.
On October 28, mother asked K.P. whether T.P. and J.P. could spend the night with her in her motel before she went into the in-patient program. K.P. agreed. On the morning of October 29, K.P. stopped by the motel and gave mother money to take the boys to McDonald’s for breakfast and haircuts. As soon as K.P. left, mother went to a nearby liquor store and bought liquor. By 11:00 a.m., she was drunk and was about to roll over Michael C. in her bed. When nine-year-old T.P. tried to protect Michael C., the mother struck T.P. several times in his head with her closed fist. T.P. called his maternal aunt and his father, both of whom immediately responded to the motel.
The maternal aunt arrived with R.S., then age 14. Mother was passed out on the floor. R.S. tried to wake his mother, but she began scuffling with him. K.P. took T.P. and J.P. away from the motel. R.S. told the social worker that mother consumed alcohol every day when he and his brothers were living with her, and he had to assume responsibility for the daily care of his two brothers, including changing diapers, preparing food, and supervising his brothers. R.S. also said mother had been physically abusive to him and his brothers and gave them marks and bruises, most often when she was intoxicated.
The maternal aunt reported that the father of Michael C. had recently been released from prison and was on probation. He was a transient and his whereabouts were unknown. He had a long history of drug use and his drug of choice was methamphetamine. Mother and father had an abusive relationship, and mother had recently shown up at the maternal aunt’s house with a black eye and cut lip. Sometime in 2000, mother was arrested in Tennessee for assault with a deadly weapon. She was jealous and attacked a female acquaintance of K.P.
B. The Petition and Jurisdictional/Dispositional Hearings
In November 2005, DCS filed a petition alleging that mother’s history of alcohol abuse, mental health problems, and neglect of Michael C.’s three older siblings limited her ability to care for Michael C. (§ 300, subds. (b) & (j).) At the detention hearing, DCS was ordered to provide services to mother and develop a case plan pending the dispositional hearing. Mother was also granted supervised visitation.
In a jurisdictional/dispositional report filed in mid-November, DCS recommended that mother be provided services, but at the initial jurisdictional/dispositional hearing later that month, counsel for Michael C. objected to the recommendation. Accordingly, the jurisdictional and dispositional hearings were bifurcated. At the jurisdictional hearing on January 17, 2006, mother submitted on the petition and the court sustained the allegations.
In February 2007, before the dispositional hearing, DCS filed an addendum report that mother was enrolled in a six-month residential substance abuse treatment program called U-Turn for Christ. She had been in the program since December 30. Since that time, she had incurred several infractions for not doing her work and lying to program personnel. During the previous three years, mother had been in at least two substance abuse treatment programs. She relapsed after completing the first program at Cedar House. She failed to complete the second program and continued to drink.
DCS recommended that mother undergo a psychiatric assessment regarding her mental health issues. DCS also recommended that mother not be provided reunification services and that Michael C. be placed for adoption, in view of mother’s chronic substance abuse and mental health problems, her poor prognosis for recovery, and her abuse of her three older children.
In March 2006, DCS filed a second addendum report stating that Michael C. had been tentatively diagnosed as having cerebral palsy. A definitive diagnosis could not be made until he turned one year old in July 2006, but he presented with all the signs of the disease and was expected to require extensive, life-long treatment. He was currently seeing a speech therapist, an occupational therapist, an ophthalmologist, a pulmonary specialist, an allergist, and a nutritionist. According to the maternal aunt, Michael C. also needed to see a physical therapist three times per week.
Accordingly, DCS continued to recommend no services for mother. DCS acknowledged that mother was currently making an effort to fulfill her case plan. Still, DCS opined that mother’s history of alcohol abuse and neglect of her other children, coupled with her lack of transportation, would make it “very difficult” for her to provide the medical care and supervision that Michael C. needed.
The dispositional hearing was held on April 14, 2006. Before the hearing, DCS changed its recommendation against services to recommending services, and the minor’s counsel submitted on that recommendation. On March 3, mother had completed the first phase of her treatment program at U-Turn for Christ. Mother’s counsel asked that mother’s case plan be amended to require out-patient treatment. The court commended her for the progress she had made and told her she was “on the right path.”
The court approved a modified case plan that included out-patient treatment, random drug testing, parenting classes, and a psychiatric evaluation. The court found that mother had “cooperated with the initial services ordered at detention” and had made “moderate progress alleviating or mitigating causes necessitating placement.” The court set a review hearing on June 28, and admonished mother that her services could be terminated at that time if she did not “stay on target.”
C. The Six-Month Review Hearing (August 2006)
In the six-month review report filed on June 15, DCS reported that mother had been convicted in December 2005 of willful cruelty to a child (Pen. Code, § 273a, subd. (b)), based on her October 2005 arrest. She was sentenced to a suspended term of four years in prison and was granted supervised probation. As a condition of her probation, she was required to complete eight months at the U-Turn for Christ in-patient treatment program.
As of June 15, mother was enrolled in phase two of the residential treatment program at U-Turn for Christ, and was expected to complete this portion of the program on August 30. If mother left the program prior to August 30, she would be turned into the sheriff’s office. Mother was employed, working 35 hours per week, and was expected to have enough money to purchase a car at the end of June.
DSC also reported that mother had not completed many of the requirements of her case plan, including her general counseling requirement, her psychiatric evaluation, and psychotropic medical evaluation and monitoring. She had completed a 15-hour parenting program, however, and was participating in substance abuse counseling, a 12-step program, and her residential treatment program at U-Turn for Christ. She had been drug tested only once, on May 1, and the results were negative.
Michael C. was reported to be oxygen dependent, suffering from chronic respiratory disease and bronchial pulmonary dysplasia. He was being tested for cystic fibrosis and cerebral palsy. He had had laser surgery on his eye and was scheduled to have surgery to remove growths on his anus. He had to be fed every three hours, and required pulmicort breathing treatments every 12 hours and xopenex breathing treatments every six hours. When he was sick, he needed breathing treatments every two hours. His oxygen cord required constant monitoring so that it did not become entangled around his neck or legs. His hearing was tested with inconclusive results.
The maternal aunt and her husband rarely slept through an entire night due to Michael C.’s condition. They were committed to meeting his needs, however, and were willing to adopt him.
Earlier, in March, the social worker discussed with mother the importance of her gaining an understanding of Michael C.’s medical needs and attending his medical appointments. By June 1, mother was trying to get time off from work to attend Michael C.’s medical appointments. Mother was visiting Michael C. once per week at DCS offices.
The social worker also reported that mother had tried to convince her she was serious about staying clean this time and would be a good mother. The social worker was skeptical, however, because mother had not been truthful about her history of drinking and refused to acknowledge the severity of her problem. On June 13, mother tried to convince the social worker that she only drank for the first two and one-half months of her pregnancy with Michael C. and had not had a drink since that time.
The social worker said mother believed she could manipulate people and refused to take responsibility for the choices she made and their consequences. The social worker opined that, even if mother completed another six months of residential substance abuse treatment, she would still need much more time to shed her deceitful and manipulative behavior. In view of mother’s continuing need for treatment and Michael C.’s need for constant and demanding care, DCS recommended terminating mother’s services and placing Michael C. for adoption.
The June 28 status review hearing was continued to August 8. On July 20, DCS reported that mother completed the Perris Valley Recovery Program on July 17, and was to begin an after care program on August 2. She had also completed an HIV/AIDS awareness presentation. She tested negative for drugs on June 13, July 11, and July 18.
In a psychiatric evaluation, mother was diagnosed with “Major Depression and Alcohol Dependence in Early Remission.” She told the psychiatrist there was “nothing wrong with her,” she did not need to be seen by him, and she did not want any psychotropic medication. The psychiatrist wanted to see mother every four weeks. Mother did attend a follow-up appointment with the psychiatrist on July 12. On July 28, the psychiatrist reported that mother had exhibited no behaviors or symptoms indicative of psychosis or a mood spectrum disorder since he began seeing her on June 14. He did not believe she posed an imminent danger to herself or others.
As of July 20, mother had attended approximately six psychotherapy sessions at the Perris Mental Health Clinic. The psychologist reported that mother had been “punctual and consistent” in attending her sessions, had shown “excellent insight and significant behavioral changes.” The psychologist saw “no indication of psychotic or violent behaviors” in mother.
During July, mother gave erratic and conflicting accounts to the social worker concerning what day of the week she had off from work and when she was able to visit Michael C. and attend his medical appointments. Mother initially insisted on visiting Michael C. on Tuesdays and having his medical appointments scheduled on the same days because Tuesdays were her day off. But when DCS tried to accommodate mother’s schedule, mother said Tuesdays were not “really” her day off. She insisted on attending one medical appointment even though it had been cancelled because it was on her day off.
Mother attended a July 6 medical appointment for Michael C. She was angry and noncooperative when she arrived at the appointment. She was overheard talking loudly on a phone, saying she intended to get even with the maternal aunt and have Michael C. taken away from her. She told a nurse she got drunk one day and DCS took her baby away from her, but before that she had not had a drink in five years. The nurse said mother paid very little attention to Michael C. during the appointment. The nurse expressed concern about mother’s ability to care for a medically-fragile child.
During a July 8 visit between mother and Michael C., the maternal aunt said mother threatened her, saying if she lost Michael C., then Michael C.’s father would “come after” the maternal aunt and hurt her, and that one of her sons would “get killed or go to prison.” During the rest of the three-hour visit, mother was antagonistic and accusatory toward the maternal aunt. R.S. was present during the visit, and said his mother still acted the same way she did when she was drunk.
On July 18, the social worker spoke to the maternal grandmother. The maternal grandmother said she did not have a relationship with mother due to her “angry and mean” behavior and numerous threats. Mother would call and leave long, nasty messages on the maternal grandmother’s answering machine, would say the maternal grandmother had ruined her life, and she had friends she was going to send to the house to have her mother killed. It appears the maternal grandmother had had no contact with mother since before Michael C. was born, however.
After July 8, mother’s visits with Michael C. took place in DCS offices, and she was not allowed to attend Michael C.’s medical appointments. During a July 18 visit at DCS offices, mother held Michael C. throughout the visit, but was awkward and clumsy with him. She seemed overwhelmed with the simple task of preparing his bottle. However, she accepted instructions regarding the proper way to hold Michael C., without complaint. Mother was taking public transportation from Hemet to Rancho Cucamonga to visit Michael C.
Based on its original and addendum review reports, DCS continued to recommend terminating mother’s services at the August 8 review hearing and placing Michael C. for adoption. DCS cited mother’s “erratic, dishonest, self-centered and anxiety-ridden” behavior, her history of threatening harm to family members, her failure to take responsibility for her behavior, and her inability to provide for Michael C.’s special needs.
At the August 8 six-month review hearing, DCS agreed to continue mother’s services through a 12-month review hearing on December 29. However, DCS asked the court to order mother not to contact the maternal aunt, undergo a psychological evaluation, and take an anger management class.
The court adopted DCS’s recommendations and issued its requested orders. The court found that mother had failed to complete her case plan and had made “minimal” progress toward alleviating the problems that led to Michael C.’s dependency, but said it looked liked mother had “promise.” Mother was allowed supervised visitation of a minimum of once per week, to be liberalized by DCS as appropriate.
D. The 12-Month Review Hearing (February 2007)
The court terminated mother’s services at the 12-month review hearing on February 26, 2007. The evidence at the hearing showed that mother’s circumstances had substantially deteriorated since August 2006.
In August, mother left the U-Turn for Christ residential treatment program, saying the staff was not supportive of her recovery. A counselor at the program told the social worker that mother had a lot of trouble controlling her anger, had weekly outbursts, and did not interact well with others. Mother threatened the counselor before she left, and threatened to take legal action against the ministry. Mother also stopped attending her general counseling sessions at the Perris Mental Health Clinic in August 2006, although she later claimed she was continuing her sessions. She was still unwilling to take psychotropic medication.
In November 2006, Dr. Kenneth Meyer, completed a psychological evaluation of mother and concluded that her test results were consistent with generalized neuropsychological impairment, which includes impairment in adaptability, the capacity to learn from experience, and abstract concept formation. Dr. Meyer recommended that mother continue in psychotherapy, alcohol treatment, parenting classes, and follow-up with a psychiatrist. Dr. Meyer opined that mother had a fair to poor prognosis for immediate change in her parenting style. She was likely to have difficulty parenting in a consistent manner. Mother’s test results were also consistent with individuals who presented themselves in an “unrealistically positive light.”
By mid-November, however, mother completed an after care program at Perris Valley Recovery Programs. She had also complied with the drug testing component of her case plan, testing negative for drugs on August 29, September 26, October 24, and November 14. By December, mother had completed a 12-hour anger management program. On December 27, she enrolled in an out-patient substance abuse program. As of December 29, she was working full-time as a cashier at a 7-Eleven store.
At age 17 months in September 2006, Michael C. had a colonoscopy, which revealed he would always have bleeding and inflammation in soft tissue at the end of his colon. His hearing had been evaluated and he had a 25-decibel hearing loss. He continued to have difficult and painful bowel movements. He was receiving physical and speech therapy, and still required frequent breathing treatments. He continued to need constant care and supervision. A teacher came to the maternal aunt’s home to work with him twice weekly.
In a December 29 review report, the social worker concluded that mother still had three significant risk factors: (1) her long-standing, chronic problem with alcohol; (2) her history of psychological instability; and (3) her loss of her three older children, with whom she had poor relationships. The social worker opined that mother was unable to rehabilitate to the extent she needed to in order to regain custody of Michael C., particularly in view of Michael C.’s constant and demanding medical needs.
A February 14 addendum report revealed that mother’s circumstances were far worse than had been believed at the end of December 2006. The social worker made an unannounced visit to mother’s home on January 29. Mother was renting a room from a female friend, Sherry, in Moreno Valley. Sherry told the social worker that she had evicted mother on January 1 because she had been drinking all day, was belligerent and physically abusive, and attempted to fight with Sherry. After Sherry evicted her, mother threatened Sherry. A few days later, she broke a window in the bedroom she had been using.
Sherry told the social worker that mother was drunk on August 16 when she moved out of the program at U-Turn for Christ, and had been drinking almost daily since that time. In August, Sherry took mother to a hospital because she had an anxiety attack. At that time, the doctor told mother she was pregnant and reportedly recommended an abortion due to the high level of alcohol in her system. Mother told Sherry she was going to have an abortion. Sherry estimated that mother was six and one-half months pregnant by January 29.
On February 1, the Riverside County Child Abuse Hotline notified DCS that mother had delivered a baby at the Riverside Community Hospital on January 23, at 22-23 weeks’ gestation. The baby died on the day of birth. Mother had had no prenatal care. When confronted by the social worker, mother denied she had been pregnant, denied she had been drinking, and denied she had been kicked out of Sherry’s home. She claimed she had been hospitalized for a hernia.
In view of mother’s chronic alcohol dependency, dishonesty, and refusal to assume responsibility for her actions, the social worker concluded that mother was “completely unsuitable for parenting.” Michael C. would be unsafe if returned to mother and would have “no opportunity to receive even a minimal standard of care.” At the time of the review hearing on February 26, Michael C. was over 28 months old, but did not walk or talk, and required substantial medical attention and stimulation.
The February 14 addendum report also noted that mother had missed several of her visits with Michael C. since September 2006. At the review hearing on February 26, the social worker testified that, although mother had been consistent with visitation before September 2006, she had missed as many as half of her visits since that time. She had also missed seven counseling sessions in two months.
Mother testified that she had not had a drink since October 2005, and was excused for missing seven counseling sessions due to her fifth pregnancy and hospitalization. Mother claimed Sherry was not being truthful, and drank alcohol and smoked marijuana when mother lived with her.
At the review hearing, the court terminated mother’s services and set a section 366.26 hearing. Mother petitioned for extraordinary writ, but her petition was dismissed after her counsel submitted a letter advising this court that there were no legal or factual bases to issue the writ.
Throughout the proceedings, the father was an alleged father and was not entitled to reunification services.
E. The Section 366.26 Hearing (August 2007)
The section 366.26 hearing was held on August 17, 2007. At the time of the hearing, Michael C. was two years old and was still living with the maternal aunt and her husband. He continued to have extensive medical problems. He had been walking since April, but was dragging one of his legs. He was still not talking, but was learning sign language. The maternal aunt and uncle were still committed to caring for him and willing to adopt him. Michael C. had developed a strong attachment to his caretakers.
The section 366.26 hearing was originally scheduled for June 26, 2007. Mother did not appear at that hearing, and her counsel asked the court to set the matter as a contested short cause hearing. The court agreed and continued the matter to July 13. Mother was present in court on July 13. On that date, her counsel asked the court to set the matter as a contested long cause. The court again agreed, and continued the matter to August 17.
On August 17, mother was not present. Her counsel asked the court for a one-week continuance. Counsel said her office had spoken to mother, and mother had “indicated transportation difficulties” as the reason for her absence. The court summarily denied the request and proceeded with the hearing.
The court received into evidence an adoption assessment report and section 366.26 report, and took judicial notice of its prior findings and orders. No other evidence was offered. Mother’s counsel did not object to proceeding with the hearing, or to the admission of the reports into evidence. DCS recommended that Michael C. be placed for adoption, and Michael C.’s counsel argued in favor of the recommendation. The court terminated parental rights and placed Michael C. for adoption.
III. DISCUSSION
Mother claims the juvenile court abused its discretion in refusing to grant her counsel’s oral request to continue the section 366.26 hearing for one week on the grounds she was unable to attend due to transportation problems. She also claims she was prejudiced by the court’s refusal to continue the hearing, because if present she would have provided testimony showing that the parental benefit exception to the adoption preference applied. (§ 366.26, subd. (c)(1)(A).)
Effective January 1, 2008, section 366.26, subdivision (c)(1)(A) has been renumbered section 366.26, subdivision (c)(1)(B)(i). For the sake of clarity, we will refer to this section under the former section number.
A. The Mother’s Request for Continuance Was Properly Denied
Continuances of dependency hearings are governed by section 352. A court may continue a dependency hearing upon “a showing of good cause,” for the period of time shown to be necessary. (§ 352, subd. (a).) The court may not grant a continuance if it would be contrary to the interest of the minor. (Ibid.) Section 352 has been interpreted as discouraging continuances. (In re Karla C. (2003) 113 Cal.App.4th 166, 179.)
We review denial of a request for a continuance for an abuse of discretion. The denial of a continuance will not be overturned on appeal absent a showing that it was arbitrary, capricious, or patently absurd, and resulted in a manifest miscarriage of justice. (In re Karla C., supra, 113 Cal.App.4th at p. 180.)
Mother argues that her “transportation difficulties” constituted good cause for continuing the hearing, and it was an abuse of discretion not to grant her request. We disagree.
Before the August 17, 2007, hearing, mother asked for two continuances, one on June 26 and another on July 13, both of which were granted. In addition, mother’s counsel offered no explanation for mother’s absence from court on August 17, other than that she had “indicated transportation difficulties.” The social worker was present on that date and was presumably prepared to testify.
Given these circumstances, the juvenile court did not abuse its discretion in denying mother’s third request for continuance. August 17 was an important court date, and mother had ample notice of it. She also had over one month to arrange for reliable transportation to the hearing. A third continuance, after two had already been granted, would have wasted the court’s time and compromised minor’s interest in a prompt resolution of his status.
B. Mother Has Failed to Demonstrate Prejudice
Mother argues that her absence from the August 17 hearing “prejudiced the proceedings because she was the only witness who would have presented the court with favorable information regarding the [parental] ‘benefit exception’ and possibly convince the court to order a plan of guardianship rather than adoption. (See § 366.26, subd. (c)(1)(A).)”
On this appeal, mother has the burden of demonstrating there is a reasonable probability that the juvenile court would have found that the parental benefit exception applied, if her request for continuance had been granted and she testified at the hearing. (Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 836.) To prove that the exception applied, mother must show (1) she maintained regular visitation and contact with Michael C., (2) she occupied a parental role in Michael C.’s life, and (3) the benefits to Michael C. of continuing his relationship with mother outweighed the benefits he would realize in a stable, permanent home. (In re Derek W. (1999) 73 Cal.App.4th 823, 826-827; § 366.26, subd. (c)(1)(A).)
Mother has utterly failed to explain how she might have met her burden of proving that the parental benefit exception applied. She argues only that “the information before the court was incomplete” on the parental benefit exception because she was absent from the hearing. This is insufficient to satisfy mother’s burden of proving she was prejudiced by the court’s denial of her request for continuance.
In addition, nothing in the record indicates there is a reasonable probability that the court would have found that the exception applied, had mother testified at the hearing. The record shows that mother did not maintain regular contact with Michael C. after August 2006. Between August 2006 and February 2007, she attended only 50 percent to 60 percent of her weekly supervised visits with Michael C. Between February 2007 and August 2007, she did not visit Michael C. and did virtually nothing to enhance or preserve her relationship with him. She also did not occupy a parental role in Michael C.’s life.
Moreover, it is inconceivable that mother would have shown that any benefit Michael C. would have realized from maintaining a relationship with mother would have outweighed the benefits he would have realized through adoption. Michael C. was barely two years old at the time of the August 17 hearing. He was living with his maternal aunt, her husband, and his older brother R.S. whom the material aunt and uncle had already adopted. He had significant medical needs and required constant care, which his maternal aunt and uncle were providing him. He was bonded to his caretakers and had had little meaningful contact with mother throughout his young life. Mother, on the other hand, was continuing to struggle with severe alcohol addiction and lacked the minimal skills necessary to provide for Michael C.’s special needs.
Given these circumstances, there is no reasonable probability that the court would have found that the parental benefit exception applied, if the section 366.26 hearing had been continued a third time and if mother had testified at the hearing.
IV. DISPOSITION
The orders terminating parental rights and placing Michael C. for adoption are affirmed.
We concur: McKinster Acting P.J. Miller J.