Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Super.Ct.No. RIJ-109497
Maryann M. Milcetic, under appointment by the Court of Appeal, for Defendant and Appellant Kristopher E.
Linda Rehm, under appointment by the Court of Appeal, for Defendant and Appellant Priscilla E.
Joe S. Rank, County Counsel, and Sophia H. Choi, Deputy County Counsel, for Plaintiff and Respondent.
Leslie A. Barry, under appointment by the Court of Appeal, for Minor.
OPINION
MILLER, J.
Kristopher E. (father) and Priscilla E. (mother) appeal an order terminating their parental rights to their son, Oliver E., born May 2003. They contend the juvenile court erred in refusing to find applicable the benefit exception set forth in subdivision (c)(1)(A) of Welfare and Institutions Code section 366.26. Mother also complains that the court abused its discretion in refusing to continue the permanency hearing to give her an opportunity to confer with her attorney, with whom she had not communicated for some time. Finding no merit to either contention, we will affirm the order.
All further statutory references will be to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Oliver was 18 months old when he was removed from mother’s custody. Previously, mother and Oliver had been temporarily residing in the home of a friend, and when the friend awoke at 3:30 a.m. on November 19, 2004, to find the lights on, the front door unlocked, Oliver asleep in a playpen, and mother absent, he called the police. When the police arrived, they found on a shelf next to the playpen, within Oliver’s reach, a wooden pipe, a small plastic bag of marijuana, and some marijuana residue. After a three-hour absence, while the police were still there, mother arrived home. Incoherent and apparently under the influence of a controlled substance, mother told the social worker that “‘life was stressing her out.’” Mother, who was married to father at the time of this incident, was cited, released, and charged with violating Penal Code section 273a. Oliver was placed in a confidential foster home.
The following day, mother was hospitalized pursuant to section 5150, a determination having been made that she posed a risk to herself. Medication was prescribed to help with her paranoia and she was discharged “in fair prognosis, ” with instructions “[t]o have psychiatric followup as an outpatient.”
A petition was filed by the San Bernardino County Department of Children’s Services (DCS), on November 22, 2004, alleging that mother had a history of substance abuse problems and mental health issues, that father also had a history of substance abuse problems, and that father knew or should have known that Oliver was at risk of harm in mother’s care. Father admitted to the social worker that he smokes marijuana and drinks beer. A week earlier, he had been kicked out of the same home where mother and Oliver were residing because he was growing marijuana in the bedroom closet.
At the detention hearing on November 30, 2004, the court ordered supervised visitation for both parents of at least one time each week, with the social worker authorized to liberalize the number of visits to twice a week.
On December 20, 2004, Oliver was placed with his paternal great-grandmother, who resided in Riverside County. During mediation held the following month, father agreed to this placement “until [Oliver] can be placed with [him].”
The jurisdictional/dispositional hearing took place on January 31, 2005. Both parents submitted the petitions to the court for decision based on the social worker’s reports. The court then declared Oliver a dependent child and ordered the parents to participate in reunification services. The court also found that Oliver’s placement with his paternal great-grandmother continued to be appropriate and necessary. However, because Oliver was a resident of Riverside County by virtue of the fact that his paternal great-grandmother resided there, the court ordered all proceedings transferred to Riverside County. On March 8, 2005, the juvenile court in Riverside County accepted the transfer and found Riverside County to be the child’s legal residence.
A contested six-month review hearing was held on September 19, 2005. Despite the social worker’s earlier recommendation that services be terminated and a permanency hearing scheduled, the court granted the parents an additional six months of services because they had shown some improvement.
The 12-month review hearing commenced on March 8, 2006, and was completed on March 30. During the period which had elapsed since the six-month review hearing in September, mother had shown some progress only to then start using drugs again. As a result, she was dismissed from her outpatient rehabilitation program and her whereabouts became unknown, having moved out of her parents’ home at her parents’ request. Father testified at the March 8 hearing that he smoked marijuana for medicinal reasons. He said he suffered from gastritis and that marijuana, for which he had two prescriptions, eased the pain. He also testified that he had not smoked marijuana for five months. Thus, the court ordered him to undergo a hair follicle test within 72 hours, stating that “[i]f it’s dirty, there’s nothing left to talk about.” Father’s hair follicle sample submitted on March 16 tested positive for marijuana.
On March 30, 2006, the court terminated services and scheduled a permanency hearing. After several continuances, the hearing ultimately took place on October 30, 2006.
According to the social worker’s report prepared in September 2006 for the permanency hearing, “Oliver has had great emotional difficulties in dealing with the loss of his mother. Oliver has been missing his mother and asking about her whereabouts for the past several months.” He had misidentified his paternal grandfather’s girlfriend as his mother. According to the social worker, Oliver apparently missed having a mother figure in his life. Mother had not visited Oliver or made telephone contact for the past six months. Her whereabouts were unknown, and she had not contacted the social worker.
Father also had not maintained contact with the social worker and had changed his residence on several occasions in the past six months. His girlfriend had delivered a baby shortly after the 12-month review hearing. Father was reportedly visiting Oliver about once a month.
The social worked reported that Oliver was a healthy well-adjusted child. His paternal great-grandparents, who had agreed to adopt him, were providing a stable home for him, as well as emotional and financial support. Additionally, “[t]heir love, consistency, and stability, [had] provided [Oliver] the opportunity to grow in a nurturing environment.”
Both parents appeared at the permanency hearing. Mother’s counsel asked the court for a continuance, noting that this was mother’s first appearance since January 2006 and that mother had informed him that she had spent the past four months in a clean and sober living home. Acknowledging that mother had not seen Oliver since March 2006, he was asking for a continuance so that he could look into the possibility of filing a section 388 petition. The court denied the request, stating: “She may be in sober living, but she’s certainly not able or capable or showed enough interest in him for me to grant any form of continuance. It’s time to end it for him.”
Father testified at the hearing that during the past two months, he had visited with Oliver at least once every other week, adding that he “call[s] him whenever [he] can, ” and “make[s] great effort to be a part of his life.” During the first three years of the child’s life, father saw Oliver once a week, usually for two hours. He said he is very close to his son, “as much as the court allows [him] to be.” They play soccer, throw balls, take walks, and go to a play yard. Oliver calls him, “Dad.”
In response to an inquiry as to “what kind of parenting type things” he does when he is with Oliver, he said: “I help feed him. I help change him. I help get him ready. Any time I’m around, I try to do as much of the parental responsibility as I can.” In his opinion, it is not true that his visitation has been inconsistent in the past six months. He explained: “I’ve had a lot of personal issues business-wise, trying to start a new shop with my dad, and I’ve had to move, and I’ve had other court cases, and various things in my life that take me away from him.” He has now resolved all of those things.
Father asked the court to order a permanent plan of legal guardianship with his grandparents. He gets along well with his grandparents and they have been generous in allowing him to see Oliver.
During closing argument, father’s counsel acknowledged that because Oliver is with a relative, father will not be cut off completely from his son’s life. However, he argued that “keeping that legal relationship of mother and father is also important in this case.” In response, the deputy county counsel argued that father’s need to attend to personal issues at the expense of visiting his son indicates a lack of commitment. Counsel for mother requested a referral for a postadoption contact agreement with both parents, which the court indicated it would be happy to do.
After hearing argument from counsel, the court found that termination of parental rights would not be detrimental to Oliver in that none of the statutory exceptions applied. The court also found that adoption was in Oliver’s best interests and terminated parental rights.
DISCUSSION
A. The juvenile court properly exercised its discretion in denying mother’s request for a continuance.
Before the permanency hearing got under way, mother’s counsel informed the court that his client, who was present, was making her first appearance since January 2006. Counsel also indicated that mother had spent the previous four months in a clean and sober living home and is “getting her life back together.” Accordingly, because this was their first contact in nine or ten months, counsel requested a continuance so that he “can look into the file” and perhaps file a section 388 petition. The court denied the request, which mother now contends was an abuse of discretion. We disagree.
Section 352, subdivision (a) authorizes the juvenile court to continue a hearing “provided that no 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.” Section 352 further provides that a continuance will not be granted absent a showing of good cause and that “written notice shall be filed at least two court days prior to the date set for hearing . . . unless the court for good cause entertains an oral motion for continuance.”
“Continuances are discouraged [citation] and we reverse an order denying a continuance only on a showing of an abuse of discretion [citation].” (In re Ninfa S. (1998) 62 Cal.App.4th 808, 810-811.) “Discretion is abused when a decision is arbitrary, capricious or patently absurd and results in a manifest miscarriage of justice. [Citation.]” (In re Karla C. (2003) 113 Cal.App.4th 166, 180.)
Mother insists that a short continuance would not have been contrary to Oliver’s interests. She contends that “[w]aiting to assess [her] current situation would not have been detrimental to Oliver’s placement and could have preserved Oliver’s strong bond with [her].” However, as discussed in the section which follows, there is little, if any, evidence that mother and Oliver shared a strong bond worthy of preservation. Moreover, in light of mother’s actions until that point and her failure to do much of anything to foster a relationship with her son, the court determined that a continuance was unwarranted: We perceive no abuse. Indeed, time is of the essence in a child’s life, and to adhere to mother’s position would be to delay the inevitable—at Oliver’s expense.
Furthermore, while mother’s trial counsel indicated that a continuance would enable him to consider the possibility of filing a section 388 petition, absent from mother’s brief is any argument to support that theory. In any event, as minor’s appellate counsel aptly points out, even if mother had been given an opportunity to file a section 388 petition, it is unlikely that her four-month residency in a sober living home would have sufficed to “show real reform.” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 531, fn. 9.)
B. Substantial evidence supports the juvenile court’s determination that the benefit exception was inapplicable.
Section 366.26, subdivision (c)(1), provides for the termination of parental rights if family reunification services have been terminated and the juvenile court finds by clear and convincing evidence that the child is likely to be adopted. Once reunification services have been terminated, “‘[f]amily preservation ceases to be of overriding concern [and then] the focus shifts from the parent’s interest in reunification to the child’s interest in permanency and stability.’ [Citation.]” (In re Richard C. (1998) 68 Cal.App.4th 1191, 1195.) “Adoption, where possible, is the permanent plan preferred by the Legislature.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 573 (Autumn H.).)
When the court finds by clear and convincing evidence that the child is likely to be adopted, the court must terminate parental rights and order the child placed for adoption “unless it ‘finds a compelling reason for determining that termination would be detrimental to the child due to one or more’ of specified circumstances.” (In re Celine R. (2003) 31 Cal.4th 45, 49.) The parent opposing termination has the burden of showing that termination would be detrimental to the minor under one of the specified statutory exceptions. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 949; In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) The exception relevant here is as follows: “The parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(A).)
For this exception to apply, the parent must have maintained regular visitation with the child, and the juvenile court must determine that the parent/child 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 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.” (Autumn H., supra, 27 Cal.App.4th at p. 575.) To overcome the benefits associated with a stable, adoptive family, the parent seeking to invoke the section 366.26, subdivision (c)(1)(A) exception must prove that severing the relationship will cause not merely some harm, but substantial harm to the child. (In re Brittany C. (1999) 76 Cal.App.4th 847, 853.) Similarly, “the 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.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348, italics added.)
We review the juvenile court’s ruling on the applicability of section 366.26, subdivision (c)(1)(A) for substantial evidence. (In re Cliffton B. (2000) 81 Cal.App.4th 415, 424-425; Autumn H., supra, 27 Cal.App.4th at p. 576.) Under this standard, an appellate court must affirm the juvenile court’s order if there is evidence that is reasonable, credible, and of solid value to support the order (In re Christina A. (1989) 213 Cal.App.3d 1073, 1080), and the evidence must be considered “in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference, and resolving all conflicts in support of the order.” (Autumn H., supra, 27 Cal.App.4th at p. 576.)
We recognize that some courts have applied the abuse of discretion standard. (See, e.g., In re Jasmine D., supra, 78 Cal.App.4th at p. 1351 [applying parental benefit exception is a “quintessentially discretionary determination.”].) However, “[t]he practical differences between the two standards of review are not significant. ‘[E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling . . . . Broad deference must be shown to the trial judge. The reviewing court should interfere only “‘if [it] find[s] that under all the evidence, viewed most favorably in support of the trial court’s action, no judge could reasonably have made the order that he did.’ . . . ”’ [Citations.]” (Ibid.)
Applying the foregoing principles, it is clear that the parents have failed to meet their heavy burden.
We find unpersuasive mother’s contention that she and Oliver had a “strong bond, ” and that he “loved and missed her very much when she was not around.” Mother points to a report prepared shortly after Oliver’s removal in November 2004, wherein the social worker wrote that Oliver “appears to have a good bond with his mother.” In so doing, mother ignores entirely her total absence from her son’s life for more than seven months, inexplicably concluding that “[i]t would be in Oliver’s best interest to maintain the bond with his mother.” Indeed, even if mother did share a bond with Oliver in November 2004, there is no basis for finding that it was still in existence at the time of the permanency hearing. Mother’s position that she “visited regularly with Oliver as she was able” is belied by the record. While we are aware of nothing which prevented her from visiting him between February 2006 and the date of the hearing, we do know that she did not. Thus, any relationship they may have had in the past ceased when, by virtue of her conduct, she essentially eliminated him from her life.
It follows that there is no merit to mother’s contention that Oliver would benefit from continuing their relationship. The benefit from continuing a parent-child relationship has been interpreted to mean that “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.” (Autumn H., supra, 27 Cal.App.4th at p. 575.) This, of course, assumes that there is a relationship between the parent and the child, which is apparently not the case here. Moreover, even if Oliver missed his mother, this, without more, does not render the exception applicable. Simply because a child misses a parent does not mean that the parent is a positive factor in the child’s life. In the present case, it may not have been that Oliver missed mother, but rather, that he missed a mother figure, and for that reason may well have been looking to his grandfather’s girlfriend to fill that role.
Mother’s reliance on In re Jerome D. (2000) 84 Cal.App.4th 1200 is misplaced. She cites the case for the proposition a permanent plan of guardianship will suffice when there is no evidence that the security or stability of a child’s placement with a relative would be jeopardized by leaving parental rights intact. (Id. at pp. 1207-1208.) In Jerome D., however, the decision was predicated on the existence of a bond between mother and child, which is absent here. In short, Jerome D. does not say that a legal guardianship is an acceptable substitute for adoption where the child is placed with a relative. In the absence of evidence that one of the exceptions to termination of parental rights applies, adoption remains the permanent plan of choice.
Father’s position appears to be stronger than mother’s, but still does not warrant a reversal. While father maintained fairly consistent visitation at the inception of the dependency, it decreased substantially as the case proceeded. Indeed, the court found as to father that “visits have been less and less, and more and more sporadic which is consistent with a friendly visitor who knows they have a reliable person to take care of the child.” Father asserts the court found that he had visited Oliver weekly “without fail.” This is not quite accurate. The court found that father had “early on visited weekly.” As with mother, what father did at the beginning of the case does not govern a determination under section 366.26, subdivision (c)(1)(A). Rather, what is important is the relationship existing at the time of the permanency hearing. Of course, father concedes that visitation with Oliver was more consistent earlier in the case and points to the birth of another child as taking his focus away from Oliver. He complains that he was required to work longer hours and, as a result, he “seemed tired.” No matter what the cause of the decreased contact, the fact remains that father did not maintain regular and frequent visitation for purposes of section 366.26, subdivision (c)(1)(A). And while father is correct that the court did not make an express finding as to whether he maintained regular visitation with Oliver, we believe that, by virtue of the court’s finding that the visitation was sporadic, the court impliedly found that the first prong of the statute had not been met. Nonetheless, even if the first prong had been met, father clearly did not satisfy the second.
We reject father’s contention that he occupied a parental role in Oliver’s life and that he “acted like any normal parent.” DCS is correct that feeding or clothing a child “[a]ny time I’m around, ” as father asserts, is insufficient to establish a parental relationship. Simply stated, more is needed. And while we are unable to say with any degree of specificity what is required to demonstrate that a relationship of that nature exists, we can safely say that the circumstances here do not qualify.
Father faults DCS for not adequately addressing two appellate decisions cited in his opening brief, i.e., In re Brandon C. (1999) 71 Cal.App.4th 1530 (Brandon C.) and In re Amber M. (2002) 103 Cal.App.4th 681 (Amber M.). Notwithstanding DCS’s failure to address these cases, neither of them provides any support for father’s position.
In Brandon C., the juvenile court’s selection of a plan of legal guardianship was upheld, the Court of Appeal noting that “[t]he benefit of continued contact between mother and children must be considered in the context of the very limited visitation mother was permitted to have.” (Brandon C., supra, 71 Cal.App.4th at pp. 1537-1538.) There, however, “[i]t [was] undisputed that mother visited the boys consistently for the entire lengthy period of this dependency case . . . [and] [t]he trial court obviously credited the testimony from both mother and grandmother that there was a close bond between mother and the boys, and that a continuation of contact would be beneficial to the children.” (Id. at p. 1537.) Thus, although there may have been a dearth of evidence that the mother provided her sons with “‘comfort, nourishment or physical care, ’” on a day-to-day basis, in light of the fact there had been consistent visitation and a close bond, the court was satisfied that a benefit would be derived by continuing the relationship. Here, in contrast, visitation was inconsistent and there is insufficient evidence of a close bond.
In Amber M., the Court of Appeal, relying on evidence offered by a psychologist, a therapist, and a court-appointed special advocate (CASA), reversed an order terminating parental rights: “The common theme running through the evidence from the bonding study psychologist, the therapists, and the CASA is a beneficial parental relationship that clearly outweighs the benefit of adoption.” (Amber M., supra, 103 Cal.App.4th at p. 690.) Acknowledging “there [was] no bonding experts or therapists in this case, ” father nonetheless contends “[l]ittle Oliver spoke loud and clear. He missed his parents very much and wanted them back in his life. No other ‘mommy’ or ‘daddy’ would suffice. Like the children in Amber M., Oliver was firmly bonded to his parents, and he wanted to continue visitation.” As we have already said, the record does not demonstrate a firmly bonded relationship between Oliver and his parents. Father’s belief that he shared a bond with his son is not a substitute for the expert testimony and evidence which was offered in Amber M.
Finally, father compares himself to parents in other appellate decisions in which the benefit exception was found not to apply, contending that he is a “much better parent, ” and that the exception should therefore apply to him. But this is not the test. As
In re Jeremy S. (2001) 89 Cal.App.4th 514; In re Lukas B. (2000) 79 Cal.App.4th 1145; In re Amanda D. (1997) 55 Cal.App.4th 813; In re L.Y.L., supra, 101 Cal.App.4th 942.
DCS puts it, even if father is “‘better’ than the worst [this] does not make him ‘good, ’ or good enough to have the benefit exception applicable.”
DISPOSITION
The order terminating parental rights is affirmed.
We concur: HOLLENHORST, Acting P. J., GAUT J.