Opinion
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County, Super. Ct. No. DP010385 Gary Vincent, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Kate M. Chandler, under appointment by the Court of Appeal, for Defendant and Appellant.
Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
IKOLA, J.
H.A. (mother), the mother of Ruby L., appeals from the juvenile court’s termination of her parental rights after a Welfare and Institutions Code section 366.26 permanency hearing (the .26 hearing). Mother contends: (1) the court abused its discretion by failing to continue the .26 hearing; (2) the court’s admission of an April 27, 2007 addendum report (April 27 report) prepared by the Orange County Social Services Agency (SSA) violated her right to due process; and (3) the court erred by not applying the beneficial relationship exception to termination of parental rights set forth in section 366.26, subdivision (c)(1)(A) (section 366.26(c)(1)(A)). We affirm.
Ruby’s father, Steven L. (father), also appealed from the order terminating his parental rights, but we dismissed his appeal as untimely. Unless noted, all further statutory references are to the Welfare and Institutions Code.
FACTS
This case has an extensive history. Six days after Ruby’s birth on June 17, 2004, her parents requested her removal from their home because they were unable to care for her. The parents stipulated to the termination of reunification services and the court scheduled a .26 hearing. Just before the .26 hearing, however, mother and father filed respective section 388 petitions, which the court denied without a hearing. We discussed in detail the facts and proceedings through the court’s summary denial of the parents’ section 388 petitions in an unpublished opinion of this court. (In re Ruby L. (Feb. 27, 2007 G037538) [nonpub. opn.].) We recite here only the facts relevant to mother’s appeal of the court’s termination of her parental rights.
The quality of mother’s visits with Ruby deteriorated steadily after the court denied her section 388 petition in September 2006. In an October 2006 addendum report, Ruby’s social worker reported that mother’s “aggressiveness” during monitored visits appeared to frighten Ruby and make her anxious. For example, during one visit, mother “lurched” at Ruby to pick her up, prompting Ruby to cry, “No [H.] No.” Mother, unable to calm Ruby, or to understand why she was crying, accused Ruby’s foster parents of convincing Ruby “not to love [her].” The social worker noted mother had made some progress in her individual counseling sessions and expressed a desire to resume attending anger management classes, but explained mother continued to exhibit “frustration and rage” during monitored visits with Ruby.
Mother’s inappropriate behavior escalated in November and December 2006, prompting the court to monitor all of mother’s visits with Ruby. In a January 2007 addendum report, Ruby’s social worker described how mother (1) pulled Ruby’s hair while she combed it; (2) “forcibly” put food in Ruby’s mouth; and (3) attracted the attention (and concern) of the monitor and the security guard by frequently raising her voice during visits. According to the social worker, Ruby consistently “tried to get away from [mother] each time [mother] tried to touch her” and “refused contact with [mother] every time [mother] tried to interact with her.” The social worker concluded mother and father were “not act[ing] in a parental role.”
After a supervised visit with Ruby in early December 2006, mother became upset and requested “voluntary psychiatric hospitalization” from an Orange County health clinic.
By early 2007, Ruby was actively resisting visits with mother and father and expressing a desire to spend time with her foster parents. In a March 9, 2007 addendum report, the social worker chronicled mother’s frequent temper flares and noted the absence of a significant bond between Ruby and her birth parents. The social worker described similar problems in a second March 2007 addendum report. For example, Ruby refused to hug mother, and yelled “no mommie” when mother tried to hold her.
In the April 27 report, the social worker described how mother competed with father for Ruby’s attention. The social worker also noted several instances where Ruby became agitated and pushed mother away when she attempted to hold her. The social worker concluded there was “no significant bond” between Ruby and her birth parents and that it would not be detrimental to Ruby to terminate parental rights.
The .26 hearing — which had been scheduled for August 17, 2006 and continued several times — finally took place on April 27, 2007. At the outset of the hearing, SSA moved to admit its initial report and seven addendum reports, including the April 27 report. Mother’s counsel objected to the admission of the April 27 report, claiming he did not receive it in time to prepare for the .26 hearing. The court characterized the report as an “update[]” containing “cumulative” information already found in previous addendum reports and concluded mother’s objection was “frivolous” in the absence of a request to continue the .26 hearing. The court then admitted the initial report and the seven addendum reports.
SSA’s initial section 366.26 report (initial report) was filed on August 8, 2006.
At the conclusion of the .26 hearing, the court concluded, by clear and convincing evidence, Ruby was likely to be adopted. The court also determined the beneficial relationship exception in section 366.26(c)(1)(A) did not apply. As the court explained, “This child has never been with these parents. These parents, who are biological, have never been the parents of Ruby. Ever. At most, they’ve been friendly visitors. . . . And there’s benefit there of some kind to Ruby. As to father more. As to mother, less. It barely rises to the level of incidental benefit. Where has this child looked for comfort, for education, stimulation, security, nurturing, . . . socialization? Where does a child lean her head, in what direction, for shelter, for protection, for boundaries, for discipline? . . . For all the[se] things . . ., she has looked to others.”
The court then terminated mother and father’s parental rights and mother timely appealed.
DISCUSSION
Mother Forfeited Her Right to Complain about the Court’s Purported Failure to Continue the .26 Hearing
Mother contends the trial court abused its discretion by failing to continue the .26 hearing to enable her counsel to review the April 27 report and “prepare for cross-examination of the social worker.” We disagree.
Subject to various exceptions, section 352, subdivision (a), authorizes the juvenile court to continue a dependency hearing on a showing of good cause if the continuance is not contrary to the minor’s best interests. (§ 352; see also Cal. Rules of Court, rule 5.550.) A written or oral “request” is a prerequisite for obtaining a continuance. (§ 352, subd. (a) [“Upon request of counsel for the parent . . . the court may continue any hearing . . . provided that no continuance shall be granted that is contrary to the interest of the minor”]; Cal. Rules of Court, rule 5.550(a)(4) [“to obtain a continuance, written notice with supporting documents must be filed and served on all parties at least two court days before the date set for hearing, unless the court finds good cause for hearing an oral motion”].)
Section 352, subdivision (a), provides in relevant part: “Upon request of counsel for the parent, guardian, minor, or petitioner, the court may continue any hearing under this chapter beyond the time limit within which the hearing is otherwise required to be held, 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. [¶] Continuances shall be granted only upon a showing of good cause and only for that period of time shown to be necessary by the evidence presented at the hearing on the motion for the continuance.”
Here, mother’s counsel made no such request. In fact, counsel did the opposite: he affirmatively told the court he was not requesting a continuance. At the beginning of the .26 hearing, mother’s attorney stated, “I’m not requesting a continuance in this case.” When the court asked, “Are you requesting [ ] a continuance or not?” mother’s counsel replied, “I’m just moving to keep out the April 27 report.” In response, the court noted, “There’s no motion to continue,” and explained, “We’re not dealing with a motion to continue.”
Mother cannot complain about not receiving a continuance she never requested. By failing to make a written or oral motion to continue in the court below, she has forfeited the issue on appeal. (In re Dakota S. (2000) 85 Cal.App.4th 494, 502 [“‘a parent’s failure to object or raise certain issues in the juvenile court prevents the parent from presenting the issue to the appellate court’”]; In re Richard H. (1991) 234 Cal.App.3d 1351, 1362 [by failing to object, father waived right to claim harm from delay caused by continuances]; In re Etherington (1950) 35 Cal.2d 863, 867 [mother waived any objection to lack of statutory notice of a hearing; after court granted a one day continuance, mother did not object to notice or request a further continuance].)
Assuming, for the sake of argument, mother had requested a continuance, it would not have been an abuse of discretion for the court to deny the request. (In re Karla C. (2003) 113 Cal.App.4th 166, 179 (Karla C.). As discussed above, a court may not grant a request for continuance in a dependency proceeding unless there is a showing of good cause. (§ 352, subd. (a).) “Courts have interpreted this policy to be an express discouragement of continuances.” (Karla C., supra, 113 Cal.App.4th at p. 179; see also In re Axsana S. (2000) 78 Cal.App.4th 262, 272 [continuances in juvenile dependency cases are “discouraged”] disapproved on another point in In re Jesusa V. (2004) 32 Cal.4th 588, 624, fn. 12.) Here, the court had continued the .26 hearing nine times; several times the court continued the .26 hearing at mother’s request. Given the number of continuances and Ruby’s “need for prompt resolution of her custody status and her right to permanent placement,” the court would have been within its discretion to deny any further continuance mother requested. (In re Ninfa S. (1998) 62 Cal.App.4th 808, 810-811.)
SSA’s Late Service of the April 27 Report Was Harmless Error
Mother urges us to reverse the order terminating her parental rights because SSA did not serve the April 27 report until the morning of the .26 hearing. Relying on Judith P. v. Superior Court (2002) 102 Cal.App.4th 535, 554-555 (Judith P.), mother contends SSA’s failure to serve the April 27 report at least 10 days prior to the .26 hearing violates her due process rights.
Mother does not identify the statute or rule she claims SSA violated. We presume mother relies on California Rules of Court, rule 5.725(c), which provides: “Before the [.26] hearing, petitioner must prepare an assessment under section 366.21(i). At least 10 calendar days before the hearing, the petitioner must file the assessment, provide copies to each parent or guardian and all counsel of record.” Rule 5.725 does not specify a remedy for a violation of the timing requirement.
Judith P. arose in the context of SSA’s failure to comply with the service requirements in section 366.21, subdivision (c). That statute, which applies to status review hearings, requires a social worker to file a report “regarding the services provided or offered to the parent or legal guardian to enable him or her to assume custody and the efforts made to achieve legal permanence for the child if efforts to reunify fail” at least 10 days before the review hearing and to provide the parent with a copy of that report at that time. (§ 366.21, subd. (c), see also § 366.05.) Neither the mother nor her attorney received the social worker’s report until the morning of a 12-month status review hearing held pursuant to section 366.21, subdivision (f). (Judith P., supra, 102 Cal.App.4th at pp. 542-543.) At the outset of the hearing, the mother requested a continuance so she could contest the social worker’s recommendation. The court denied the request and terminated her reunification services. (Id. at pp. 543-544.) The Judith P. court held the social worker’s failure to provide the mother with the status report at least 10 days before the prepermanency planning hearing was a structural error requiring per se reversal of the court’s termination of reunification services. (Id. at p. 558.)
Judith P. has no application here for at least two reasons. First, the rationale behind Judith P.’s automatic reversal rule does not apply. In reversing the juvenile court’s order, the Judith P. court “relied heavily on the strong interests of the parent at the prepermanency planning stage.” (In re Carrie W. (2003) 110 Cal.App.4th 746, 756, fn. 2.) As that court explained, it is “fundamentally unfair to terminate either a parent’s or a child’s familial relationship if the parent and/or child has not had an adequate opportunity to prepare and present the best possible case for continuation of reunification services and/or reunification.” (Judith P., supra, 102 Cal.App.4th at pp. 557-558.) In contrast with the “critical decision” to terminate reunification services, the “decision to terminate parental rights”— like the one at issue here — “will be relatively automatic if the minor is going to be adopted.” (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 250.) Because the prepermanency planning stage in this case had ended, the balance of the interests had shifted away from mother’s interest in reunification and to Ruby’s need for stable, permanent placement. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1344.)
Second — and in stark contrast to Judith P. — mother did not request a continuance to rebut the recommendations in the April 27 report. Counsel for mother could have made a written motion to continue, because the report was due in counsel’s office 10 days before the .26 hearing. He did not. Counsel also could have made an oral motion at the outset of the .26 hearing, but he did not. (Cal. Rules of Court, rule 5.725(c).) As a result, mother cannot seriously contend she did not have an opportunity to prepare for the .26 hearing, particularly where mother had eight months (from the date of the initial report in August 2006 to the date of the .26 hearing in April 2007) to gather evidence to contest SSA’s recommendation to terminate parental rights.
Moreover, at least one court has questioned whether Judith P. remains “good law.” (In re Sabrina H. (2007) 149 Cal.App.4th 1403, 1420 & fn. 14 (Sabrina H.).) According to the Sabrina H. court, Judith P. “relied heavily on criminal cases in holding the tardy delivery of the status report constituted structural error. The following year, our Supreme Court in In re Celine R. (2003) 31 Cal.4th 45, 58-59 [(Celine R.)], criticized case law that analogized criminal cases to dependency cases; the high court observed that such an analogy was inapt.” (Sabrina H., at p. 1420, fn. 14.)
Finally, any error in the court’s admission of the April 27 report was harmless because mother cannot demonstrate it is “reasonably probable the result would have been more favorable to [her] but for the error.” (Celine R., supra, 31 Cal.4th at pp. 59-60.) The April 27 report, like the initial report, described the absence of a bond between Ruby and her birth parents. And like the initial report, the April 27 report recommended it would not be detrimental to Ruby to terminate parental rights given that Ruby had not demonstrated a strong bond to either parent. The only new information in the April 27 report consisted of instances — like those chronicled in the initial report — where Ruby rejected mother’s affection. Notably, mother does not contend the result of the .26 hearing would have been anything other than an order terminating parental rights if she had received the report earlier. She does not cite any evidence she would have presented to contest SSA’s recommendation for termination of parental rights. As a result, mother cannot demonstrate the late service of the April 27 report prejudiced her.
Mother contends the court’s admission of the April 27 report “denied [her] an opportunity to be heard.” The record demonstrates otherwise. Mother received notice of the .26 hearing and had ample time — eight months — to prepare for it. At the .26 hearing, mother vigorously cross-examined the social worker using the monitor’s notes. She presented evidence and called witnesses. Under the circumstances, mother received a meaningful opportunity to be heard. (In re Crystal J. (1993) 12 Cal.App.4th 407, 412-413.)
For the reasons discussed above, error in the service of the April 27 report is harmless. (Celine R., supra, 31 Cal.4th at pp. 60-61; In re Angela C. (2002) 99 Cal.App.4th 389, 395.)
The Court Properly Concluded the Beneficial Relationship Exception in Section 366.26(c)(1)(A) Did Not Apply
Under section 366.26, subdivision (c)(1), the court must terminate parental rights if it finds the child is likely to be adopted unless the parent establishes, by a preponderance of the evidence, one of six statutory exceptions applies. (§ 366.26(c)(1)(A)-(F); see also Cal. Rules of Court, rule 5.725(e)(1)(B)(i).) Mother agues there is substantial evidence the beneficial relationship exception in section 366.26(c)(1)(A) applies.
Appellate courts have applied both the substantial evidence and the abuse of discretion standards to review the applicability of the beneficial relationship exception. (Compare In re Casey D. (1999) 70 Cal.App.4th 38, 52 (Casey D.) [substantial evidence standard of review]; In re Autumn H. (1994) 27 Cal.App.4th 567, 576 (Autumn H.) [same] with In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449 [abuse of discretion standard]; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 [same].) Although there appears to be little practical difference between the two standards of review in this context, we apply the substantial evidence standard of review because the parties do not argue otherwise.
To establish that the beneficial relationship exception applies, mother must demonstrate she has “maintained regular visitation and contact with [Ruby] and [Ruby] would benefit from continuing the relationship” with her. (§ 366.26(c)(1)(A).) SSA concedes mother maintained regular visitation with Ruby. As a result, the issue here is whether mother can satisfy the second prong of the beneficial relationship exception — whether Ruby would benefit from continuing the parental relationship with mother.
Application of beneficial relationship exception requires the parent to show “more than that the relationship is ‘beneficial.’” (Casey D., supra, 70 Cal.App.4th at p. 52, fn.4.) The parent must demonstrate the relationship “‘promote[s] the well-being of the child to such a degree that it outweighs the well-being the child would gain in a permanent home with new, adoptive parents.’” (Ibid.; see also In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324 [parent must occupy more than a “pleasant place” in the child’s life for the beneficial relationship exception to apply]; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419 [beneficial relationship exception did not apply; loss of mere “frequent and loving” contact with parent was insufficient to show detriment from termination of parental rights].)
To determine whether the beneficial relationship exception applies, “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.” (Autumn H., supra, 27 Cal.App.4th at p. 575.) The beneficial relationship exception is “difficult to make in the situation, such as the one here, where the parents have [not] advanced beyond supervised visitation.” (Casey D., supra, 70 Cal.App.4th at p. 51.) At least one court has commented that the beneficial relationship exception “may be the most unsuccessfully litigated issue in the history of law. [I]t is almost always a loser.” (In re Eileen A. (2000) 84 Cal.App.4th 1248, 1255, fn.5, disapproved on other grounds in In re Zeth S. (2003) 31 Cal.4th 396, 413-414.)
Notwithstanding this high burden, mother argues there is substantial evidence of a beneficial relationship because she “occupied a parental role” in Ruby’s life that “was worthy of preservation.” Mother cites In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534 (Brandon C.). There, the juvenile court ordered legal guardianship for two minors but did not terminate the mother’s parental rights because it concluded it would be in the children’s best interest to maintain their relationship with their mother. (Id. at p. 1533.) At the .26 hearing, the mother testified her children hugged and kissed her and called her “mommy” when she visited them. (Id. at p. 1537.) The children’s guardian testified the children “look[ed] forward” to visits with their mother and “ha[d] a good relationship” with her. (Id. at p. 1536.) Because the Department of Children and Family Services did not present any evidence to contradict the mother and guardian’s testimony and failed to provide the juvenile court with information about the quality of mother’s visits, the Brandon C. court concluded the mother provided substantial evidence the beneficial relationship exception applied. (Id. at pp. 1537-1538.)
Brandon C. does not advance mother’s claim that the beneficial relationship exception applies here. Here, SSA presented ample evidence about the poor quality of mother’s visits with Ruby. In its initial report and in numerous addendum reports, the social worker repeatedly described instances where mother behaved inappropriately and where Ruby rejected mother’s attempts to play with her or hold her. Unlike the children in Brandon C., Ruby did not look forward to visits with mother, nor did she call mother “mommy” and hug and kiss her during visits. Although mother testified at the .26 hearing that she felt a bond with her, SSA provided evidence to contradict the mother’s testimony.
At the .26 hearing, father testified mother “behave[d] in a very close, very sensitive manner” with Ruby. He conceded, however, that Ruby “sometimes pushe[d] [mother] away and sa[id], ‘No, [H.]. No [H.].’” Father explained mother is from Egypt, and attributed Ruby’s rejection of mother to a “cultural difference that Ruby does not understand yet about [H.].”
Mother’s reliance on In re Amber M. (2002) 103 Cal.App.4th 681 (Amber M.) — where the mother established the applicability of the beneficial relationship exception — is similarly unavailing. (Id. at p. 689.) There, a psychologist concluded mother and her daughter “shared ‘a primary attachment’ and a ‘primary maternal relationship’ and that ‘[i]t could be detrimental’ to sever that relationship.” (Ibid.) The court appointed special advocate testified the children “enjoyed visits” and that the children “loved and missed Mother and called her ‘mom.’” (Id. at p. 690.) The Court of Appeal determined the “common theme running through the evidence” was the mother and her two children shared a beneficial parental relationship that outweighed the benefit of adoption. (Ibid.)
Here, the only “common theme running through the evidence” is that mother and Ruby did not share a beneficial parental relationship. In the initial report and the addendum reports, the social worker noted Ruby had “not demonstrated a strong bond to either parent during her visitation, particularly [to] mother” and recommended the court terminate parental rights. At the .26 hearing, the social worker made the same recommendation. Although the social worker conceded there were times when Ruby had “positive interactions” with mother during visits, the information contained in the initial report and the detailed addendum reports demonstrates these instances were isolated. More common were the times when mother’s behavior was “assaultive” and where father was unable “to protect the child from the mother.” As a result, mother cannot rely on Amber M. to establish the applicability of the beneficial relationship exception. (See, e.g., In re Lukas B. (2000) 79 Cal.App.4th 1145, 1155 [juvenile court properly concluded children would not benefit from a continued relationship with father where the SSA “continuously reported the visits did not go well” and one of the children “repeatedly expressed that he did not want to visit [father]”].)
Accordingly, the court did not err in determining the beneficial relationship exception set forth in section 366.26(c)(1)(A) did not apply.
DISPOSITION
The order terminating mother’s parental rights is affirmed.
WE CONCUR: ARONSON, ACTING P. J., FYBEL, J.