Opinion
APPEAL from the Superior Court of Riverside County No. INJ017062. Christopher J. Sheldon, Judge. Affirmed.
Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and Appellant.
Joe S. Rank, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.
Karen J. Dodd, under appointment by the Court of Appeal, for Minors.
OPINION
McKinster, J.
Annette C., defendant and appellant (hereafter mother), appeals from the trial court’s order under Welfare and Institutions Code section 366.26 terminating her parental rights to the youngest three of her four children. Mother contends that the beneficial relationship and sibling relationship exceptions to parental rights termination apply in this case and therefore the trial court erred in terminating her parental rights. In addition, mother contends that the trial court abused its discretion when it denied the request of minors’ counsel for a continuance in order to determine whether a conflict of interest existed that would require counsel to withdraw from representation. We conclude mother’s claims are meritless. Therefore, we will affirm the order terminating her parental rights.
All further statutory references are to the Welfare and Institutions Code unless indicated otherwise.
FACTUAL AND PROCEDURAL BACKGROUND
Riverside County Department of Public Social Services (DPSS) filed a section 300 petition with respect to mother’s four children on June 1, 2005, after her oldest child, nine-year-old O., was detained under section 5150 because he had threatened to choke his sister, three-year-old J. (mother’s youngest child). While hospitalized, O. disclosed that his mother hit him every day with her hand, shoes, and a belt. When interviewed, Z. (then seven years old) confirmed that mother hit O. every day because O. was bad and that she also used to hit Z. Mother called the children “liars” when the social worker later interviewed her and stated that she never hit the children because she had been physically abused as a child. Mother admitted, however, that she is “‘emotionally abusive’” to the children.
O. was detained twice under section 5150, once in February 2005 after he threatened his four-year-old brother G. with a knife and also threatened to choke J., and then in May 2005, after he again threatened to choke J. DPSS filed the dependency petition after the May detention.
Mother called the children “compulsive liars” when the social worker talked with her before taking the children into protective custody.
The children were taken into protective custody on May 27, 2005, and placed into foster homes after O. reported that he had been hit again, and Z. reported that mother told him not to talk with the social worker and had hit him for talking during the initial interview. In the report prepared for the detention hearing, the social worker stated, among other things, that mother had not followed through with her promise to obtain a mental health evaluation of O. The social worker interviewed the children’s maternal grandmother who reported that O. had lived with her for about a month and during that time he was not on medication and had few behavioral problems. Within three days after O. returned home to mother, “he was 5150’d.” The grandmother also said that she had seen mother hit O. with her closed fists in the head and stomach, and heard her tell O., “‘I don’t give a shit about you, I care about my man.’” In June, after the detention hearing, O. was moved to a group home.
At the time the dependency petition was filed, the children’s father (mother’s husband; hereafter father) was incarcerated at an INS detention center.
In the report prepared for the contested jurisdiction and disposition hearing set for July 14, 2005, the social worker reported that mother admitted to being overwhelmed with the responsibility of raising four children and dealing with O.’s mental health issues. Mother claimed that things were better when father was around because he was “very patient with his children,” and they behaved better with him. However, mother also admitted that father was arrested in 2003 for domestic violence. Mother also admitted that she started using methamphetamine two years ago after she and father both lost their jobs. Mother said that father got her started on drugs but that she had not used methamphetamine for a year. Mother admitted that she was arrested for hitting a security guard while trying to move after being evicted. Mother claimed that the security guard hit her first. The family moved to Rialto and mother got a job managing a laundromat. Father was soon thereafter arrested for failing to appear on a theft charge. Mother admitted that she was arrested for child endangerment because her home was dirty. Mother spent 72 hours in jail and after her release, she and the children moved to Indio on March 3, 2005, to live with friends. The maternal grandmother told the social worker that mother and father were good parents until about three years ago when they both started to use drugs. On July 1, 2005, mother was arrested for possession of controlled substances and being under the influence when she tried to smuggle drugs to father, who was still incarcerated. The social worker reported that all four children would be placed with the maternal grandparents as soon as DPSS approved an exemption.
The maternal grandmother called the police, according to mother.
At the jurisdiction and disposition hearing, the trial court found all four children came within the court’s jurisdiction under section 300, subdivisions (b) and (g). The trial court approved the case plan, ordered reunification services for both parents, and ordered that the children remain in appropriate out-of-home placement.
Mother was still in custody at the time of the hearing but had earlier waived her rights and had submitted on the petition and social worker’s reports.
By the time of the six-month review hearing on December 22, 2005, DPSS had placed the three youngest children with their maternal grandparents and the children were doing well in that placement. O. was in a group home, where he had difficulty adjusting, and had weekend visits at the home of his maternal grandparents. Father had been deported to Mexico and was living in Tijuana. Although mother moved to Tijuana to be with father, she visited the children “on a regular basis.” According to the maternal grandmother, with the exception of one visit that the maternal grandmother cut short because mother appeared to be under the influence of drugs, mother’s visits with the children are “positive, but the children do not appear to be well bonded with the mother.” Mother had made progress on the reunification plan but still had “a long way to go” before the children could be returned to her care and custody, according to the social worker. The trial court, among other things and at the social worker’s recommendation, ordered six additional months of reunification services for mother and ordered O. placed in the home of his maternal grandparents.
Mother was released from custody on July 27, 2005, but apparently did not visit the children until October 1, 2005, a visit that was cut short because the maternal grandmother suspected mother was under the influence of drugs or alcohol.
At the 12-month review hearing on July 27, 2006, the trial court terminated mother’s reunification services and set the matter for a selection and implementation hearing on November 15, 2006. The social worker reported, among other things, that after the six-month review hearing, mother returned from Tijuana and until April 2006 lived down the street from the children. Despite the proximity and mother’s authorization for weekly visits, mother only visited the children three or four times, on holidays and birthdays. Mother moved back to Mexico, presumably to be with father, on April 16, 2006, after she was fired from her job at an adult bookstore, the children saw her in public with a man other than their father, and the social worker discovered mother had been lying about participating in a substance abuse program.
The social worker recommended termination of parental rights with respect to Z., G., and J., and adoption by the maternal grandparents as the permanent plan. For O., who had asked to be returned to a group home because he continued to have behavioral problems, the social worker recommended a planned permanent living arrangement in a group home. Mother had not maintained regular visitation or phone contact with the children after she moved to Mexico in April.
O. had been diagnosed with attention deficit hyperactive disorder, bipolar disorder, and Tourette’s Syndrome and was taking various medications to address the disorders.
According to the social worker’s contact log, mother complained that it cost her $10 a week to call the children from Mexico, and shared her understanding that it was the caretakers’ responsibility to make sure the children called mother. The social worker disabused mother of that notion and reminded mother that she had made the choice to move to Mexico.
At the selection and implementation hearing, mother urged the trial court to select legal guardianship as the permanent plan for all four children. The trial court, instead, terminated mother’s parental rights to the three youngest children, after first finding that they were likely to be adopted. Mother appeals from that order.
1.
BENEFICIAL RELATIONSHIP EXCEPTION
Mother contends that the exception under section 366.26, subdivision (C)(1)(A) to termination of parental rights applies in this case. That section provides that if the juvenile court finds that a dependent child is adoptable, the court “shall” terminate parental rights, “unless the court finds a compelling reason for determining that termination would be detrimental to the child,” because “(A) The parent[] ha[s] maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (C)(1)(A).) The burden is on the parent to establish at the selection and implementation hearing that the exception applies. (Cal. Rules of Court, rule 5.725(e)(3); In re Daisy D. (2006) 144 Cal.App.4th 287, 291.) On appeal, we affirm the juvenile court’s finding that the exception does not apply if that finding is supported by substantial evidence. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)
Mother did not meet her burden in this case. Mother did not present any evidence on this issue at the selection and implementation hearing. Instead mother merely argued that she had visitation on a “regular basis” with the children. The record does not support mother’s assertion and, in fact, reveals that mother had only sporadic visits, even when she lived down the street from the children and was authorized to see them once a week. While living in Mexico, mother’s visits and phone contacts with the children became even more irregular. Because she did not demonstrate that she maintained regular visitation and contact with the children, mother failed to demonstrate the first requirement of the beneficial relationship exception.
Moreover, even if mother had maintained regular visitation and contact with the children, she could not demonstrate that the children would benefit from continuing their relationship with her. The so-called beneficial relationship exception requires much more than an incidental benefit to the child. Rather, it contemplates that the parent and the child will have developed such a significant, positive, and emotional attachment from the child to the parent that severance of the relationship would be detrimental to the child. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) The parent must occupy a parental role with regard to the child. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1420.)
Mother did not raise this argument in the trial court. Instead, she only asserted that she had a “relationship with the children.”
Mother did not present any evidence in the trial court, nor does she cite any on appeal, to demonstrate that she occupied a parental role in the lives of the children either before or after DPSS initiated the dependency in this case. According to the social worker’s reports, the children did not have a significant, positive, and emotional attachment to mother. Among other things, the record demonstrates that mother hit the two older children and that Z. had refused to talk with his mother on the phone when she called from jail because he was angry with her for neglecting him and his siblings. O. and Z. were devastated when mother ignored the boys after they called to her when they spotted her while she was with a man other than their father, as evidenced by their telephone call to the social worker. O. said that he never wanted to see his mother again and Z. reported that his mother was a liar, and that he did not care because he was never going back with her. The maternal grandmother reported that the children did not appear bonded to mother. Simply put, substantial evidence supports the trial court’s finding that the beneficial relationship exception to parental rights termination is inapplicable in this case.
Z.’s assessment of mother is borne out by the social worker who recounted a meeting with mother on April 12, 2006, in which mother lied about nearly every topic the social worker raised.
2.
SIBLING RELATIONSHIP EXCEPTION
Section 366.26, subdivision (C)(1)(E) states that despite the preference in subdivision (b) of section 366.26 for adoption as the permanent plan, the court shall not terminate parental rights if “[t]here would be substantial interference with a child’s sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child’s best interest, including the child’s long-term emotional interest, as compared to the benefit of legal permanence through adoption.”
As with the previously discussed exception, mother had the burden to show that termination of her parental rights would substantially interfere with an existing sibling relationship. (In re Megan S. (2002) 104 Cal.App.4th 247, 252.) Even if mother makes the required showing, the trial court “may still terminate parental rights if it determines [the child] would benefit more from adoption than [the child] would gain by maintaining a relationship with [the sibling].” (Ibid., citing In re L.Y.L. (2002) 101 Cal.App.4th 942, 952-953.)
Mother did not make the required showing in the trial court. In fact mother’s only reference to the issue in the trial court is the bald statement that “there is a sibling relationship” and because O. was not going to be adopted, the three younger children might lose contact with him. Mother did not meet her burden of demonstrating that the sibling relationship exception applies in this case. Other than the fact that O. and the three other children had lived together before the dependency was initiated, and for a time during the dependency, there is no evidence to show that ongoing contact with O. was in the best interests of the three other children compared with the benefit they would receive from adoption. In other words, the evidence supports the trial court’s finding that the sibling relationship exception does not apply in this case.
3.
REQUEST FOR CONTINUANCE BY MINORS’ COUNSEL
At the selection and implementation hearing, counsel for the minors requested a continuance in order to obtain a new report from her investigator regarding the children’s wishes and also “to look into a possible conflict given the change of plan [for O.]” The trial court denied that request. Mother contends the trial court abused its discretion by denying the minors’ continuance request.
Mother did not join in the request for a continuance. Therefore, in order to challenge the trial court’s ruling on appeal, she must demonstrate that she was aggrieved by the denial of the motion by the minors’ counsel to continue the selection and implementation hearing, and as a result has standing to raise the issue. (In re Crystal J. (2001) 92 Cal.App.4th 186, 189.) Mother does not demonstrate that the trial court’s ruling affected her rights in any way. Consequently, mother has not demonstrated that she has standing to raise the claim on appeal.
But even if mother had established her standing to raise the issue, we nevertheless would reject her claim. Denial of a request for a continuance is reviewed on appeal for abuse of discretion. (In re Karla C. (2003) 113 Cal.App.4th 166, 180.) In order to demonstrate abuse of discretion, mother must show that the trial court’s decision is “arbitrary, capricious or patently absurd and results in a manifest miscarriage of justice. [Citation.]” (Ibid.)
The change in the permanent plan for O., from adoption to a planned permanent living arrangement, did not warrant a continuance so that the minors’ counsel could ascertain the “wishes” of the three other children and determine whether a conflict of interest existed in continuing to represent all four children. Their preferences are clearly stated in the social worker’s report – all three children wanted to live with their maternal grandparents. In requesting the continuance, counsel for the children did not indicate what additional information she was seeking or would have obtained if the trial court had granted the continuance. On appeal, mother states that counsel would have learned how the children felt about being separated from O. and about being adopted while O. remained in foster care. Mother also takes issue with the trial court’s comment that the child is only eight years old and “he can’t object, so what’s the issue?”
Assuming mother’s arguments are correct, she has not demonstrated that failure to ascertain that information resulted in a miscarriage of justice, or prejudice. Even if an actual conflict of interest existed, that conflict would require reversal of the order terminating parental rights only if it were prejudicial. “A court should set aside a judgment due to error in not appointing separate counsel for a child or relieving conflicted counsel only if it finds a reasonable probability the outcome would have been different but for the error.” (In re Celine R. (2003) 31 Cal.4th 45, 60.) Accordingly, and for any or all of the reasons discussed, we reject mother’s challenge to the trial court’s denial of the request by minors’ counsel to continue the selection and implementation hearing.
DISPOSITION
The order terminating mother’s parental rights is affirmed.
We concur: Ramirez, P.J. Richli, J.