Opinion
NOT TO BE PUBLISHED
APPEALS from a judgment of the Superior Court of Los Angeles County No. BK06499, Deborah Andrews, Judge.
Rich Pfeiffer for Defendant and Appellant Gloria M.
Joseph D. MacKenzie, under appointment by the Court of Appeal, for Defendant and Appellant Audrey M.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Melinda S. White-Svec, Deputy County Counsel, for Plaintiff and Respondent.
BOREN, P.J.
Two appeals are before this court. The first appeal is brought by Audrey M., who challenges the juvenile court’s denial of a continuance before it terminated her parental rights to her daughter Z. (Welf. & Inst. Code, § 352.) The second appeal is brought by Gloria M., Z.’s maternal grandmother, who challenges the court’s summary denial of her petition for a modification. (§ 388.) We find no abuse of discretion in either of the juvenile court’s rulings and affirm.
Undesignated statutory references in this opinion are to the Welfare and Institutions Code.
FACTS
Events Described in a Prior Appeal
The quoted material below is taken from a prior appeal in this case, In re Z.M. (Dec. 21, 2010, B224255) (nonpub. opn.). The subject of the prior appeal was a petition for modification filed by a nonrelated extended family member, Guadalupe S., who is not a party to the present appeal.
“[Z.] M., born in March 2007, is the daughter of Audrey M. (Mother) and Robert Q. (Father). Mother has seven children who became dependents of the juvenile court because they were physically abused in her home. She has a 1999 criminal conviction for willful cruelty to a child. Mother did not reunite with her older children.
“[Z.] came to the attention of the Department of Children and Family Services (DCFS) in February 2009, based on a report of sexual abuse, neglect, and caretaker absence. During an examination, [Z.] was found to have ringworm, diaper rash, and thrush. The maternal grandmother advised DCFS that she has seen bruises on [Z.] and on Mother, and that the child is frightened of Mother’s boyfriend. [Z.] screams, does not sleep, and hits her head against the wall. Another relative stated that Mother uses ‘speed’ and engages in domestic violence, exposing [Z.] to emotional abuse and possibly physical harm. [Z.] did not receive adequate medical treatment, was dirty, and had bruise and pinch marks. A nurse practitioner found no evidence of sexual abuse, but described [Z.] as ‘very traumatized.’ The DCFS social worker observed that [Z.] screamed and ran away whenever she heard Mother’s voice, and was uncomfortable when the social worker mentioned the names of Mother and Mother’s boyfriend.
“[Z.] was detained by DCFS. A petition was filed alleging that Mother and her boyfriend engaged in domestic violence in [Z.]’s presence, and emphasizing that [Z.]’s siblings became juvenile court dependents as a result of Mother’s history of violence. The domestic violence endangers [Z.]’s physical and emotional health. The petition also alleged that Mother left [Z.] in the care of others for extended periods without making an appropriate plan for her care and supervision, and that Father—whose whereabouts are unknown—has not provided [Z.] with food, clothing, shelter, or medical care. Mother’s 18-year-old daughter wrote a letter to the court detailing Mother’s lengthy history of drug abuse and relationships with abusive men.
“The court found a prima facie case for detaining [Z.]. Mother denied the allegations in the petition. She described a difficult childhood: abandoned by her birth parents, she spent eleven years in an orphanage and foster care before being adopted. Mother admits to prior use of cocaine and methamphetamines, but claims sobriety since 2007. In light of Mother’s history of juvenile court intervention with her seven older children, and her failure to reunite with any of them, DCFS recommended that Mother be denied reunification services. [Z.]’s primary caretaker since birth has been her grandmother, and during most of [Z.]’s first year, Mother resided in a sober living home. After leaving the treatment program, Mother entered a relationship with an abusive partner, and frequently left [Z.] in the care of others without making a plan for the child’s supervision.
“Mother failed to appear at the jurisdiction hearing on March 27, 2009. The charges against her were sustained. A contested disposition hearing was held on April 30, 2009. The court took judicial notice of the previously sustained petitions for [Z.]’s seven siblings; of Mother’s failure to reunite with her older children; and of the resulting permanency placement orders. The court denied Mother’s request for reunification services, finding that Mother failed to reunite with her older children and has not made a reasonable effort to address the problems that led to their removal. [Z.] was declared a dependent of the court, and the court set a permanency placement hearing date.
“[Z.] was not placed with her maternal grandmother, who is the legal guardian of four of [Z.]’s siblings. The grandmother’s home was rejected because one of [Z.]’s siblings is on probation and lives there. Over the objections of Mother and DCFS, the court authorized [Z.] to have an extended visit with Michelle R. in March 2009. Ms. R. and her fiancé were willing to provide [Z.] with a permanent, adoptive home.
“In an interim review report on May 29, 2009, DCFS described tension and conflict between the caregiver Michelle R. and Mother. The two women accused each other of grabbing and pushing during a visit at a fast-food restaurant on April 25. Ms. R. claimed that Mother became upset when [Z.] addressed Ms. R. as ‘mommy’. A witness to the scuffle blamed Ms. R. for acting unprofessionally and making mean or angry comments to Mother. Ms. R. is openly opposed to Mother’s visits. At Ms. R.’s home, DCFS social workers observed that [Z.] is happy and comfortable, and refers to Ms. R. as ‘mommy.’ By the same token, [Z.] also referred to Mother as ‘mommy’ during monitored visits at the DCFS office. Ms. R. applied to adopt [Z.]. [¶]... Between August 24 and October 20, 2009, Mother had one visit with [Z.]. Neither Mother nor Father assumed a parental role with [Z.].
“In January 2010, [Z.]’s attorney asked the court to terminate Mother’s visitation rights, because Mother supposedly slapped [Z.] on the face during a visit, when the DCFS monitor left the visitation room. In the ensuing investigation, the monitor stated that Mother and [Z.] were never left unsupervised. In February 2010, DCFS reported that Ms. R. repeatedly slapped her 16-year-old daughter, and made threatening telephone calls to the girl. Ms. R. announced that she was no longer interested in adopting [Z.], explaining that the close relationship between Mother, Ms. R.’s son, and his wife (who is one of Mother’s children) created a stressful situation when [Z.] was placed in Ms. R.’s home. [¶] After Ms. R. asked DCFS to remove [Z.], the child was placed in a certified foster home....
“At a hearing in March 2010, [Z.]’s 19-year-old adult half sister G.M. expressed an interest in having [Z.] placed with her. G.M. is a daughter-in-law of Ms. R. The court directed DCFS to assess the home of G.M. DCFS met with G.M. and explained that [Z.] could not be placed with her, due to the risk of emotional harm stemming from family dynamics.
“Mother was scheduled to have monitored visits with [Z.] every Thursday at the DCFS office: she visited [Z.] once in January 2010, once in February, twice in March, and once in April 2010. Father made no effort to visit [Z.]. Mother wanted DCFS to ‘give me another chance’ with [Z.]. [Z.] was removed from the certified foster home when the family decided that they would prefer to adopt an older child. On April 5, 2010, [Z.] was placed in the prospective adoptive home of Mr. and Mrs. C., who have a completed adoptive home study, and expressed an interest in adoption. [Z.] was thriving and appeared to be bonded with Mr. and Mrs. C. and her prospective adoptive siblings, ages one and nine. Mr. C. is a corrections officer and Mrs. C. works in a hospital. After only a month, [Z.] referred to the C.’s as ‘mom’ and ‘dad’ and to their daughter as her ‘sister.’ After visits with Mother, [Z.] uses profanity.”
Events Occurring Since the Last Appeal Was Filed
On April 30, 2010, the court terminated its jurisdiction over Jonathan, Z.’s 15-year-old half sibling. Jonathan was a dependent of the court because he had sustained marks and bruises in beatings by his stepfather; Mother failed to protect him despite knowing of the abuse, and even concealed the abuse by not sending the child to school after beatings; and Jonathan was exposed to physical confrontations between Mother and his stepfather. Jonathan was previously declared a dependent of the court due to physical abuse by Mother. Maternal grandmother Gloria M. was named as Jonathan’s legal guardian.
In a report leading up to the April 30 hearing, DCFS indicated that Jonathan was discharged from his special education program after bringing a knife to scare his teacher and making threatening statements. He told his peers that he belongs to a terrorist group, owns a helicopter, and was generally acting “more irrational than usual.” Jonathan requires psychotropic medications; however, Gloria M. stopped giving Jonathan his medication “as she did not like the side effects. [Gloria M.] now understands the importance of Jonathan’s medication and will follow all of the psychiatrist’s orders.” When Gloria M. took away his medicine, Jonathan began having “auditory hallucinations, was fabricating stories with violent themes, took a knife to school, made two separate bomb threats, got expelled from school, and was hospitalized for several days at Cerritos hospital.” Nevertheless, DCFS wrote that Gloria M. was a “resourceful and knowledgeable” advocate for Jonathan and ensures that he receives all the services to which he is entitled.
Jonathan lives with Gloria M. and three half siblings, ages 19, 16 and 12. He engages in self-injurious behaviors, physical aggression with others (hitting, kicking, and throwing objects), and verbal aggression (cursing and name-calling with siblings and friends). He is disruptive in school and at home, using profanity as part of his regular vocabulary. He has broken windows at home, and bangs his head and fists through walls and windows when angry or feeling ignored or teased by his siblings.
The court scheduled a permanent plan hearing for Z., to be held on August 2, 2010. Before the hearing, Gloria M. filed a petition for modification, on July 2, 2010, requesting that Z. be placed in her care. The petition states that Gloria M. has custody “of several of Mother’s other children (in a plan of legal guardianship [and] has become available for the care and custody of [Z.].” The reason for the change is that “[t]his placement would allow [Z.] to reside with and be raised with her siblings in the home of a close relative, maternal grandmother. (Siblings have been with maternal grandmother for several years!)” The court denied a hearing on the petition because (1) the request does not state new evidence or a change of circumstances, and (2) the proposed change of order does not promote the best interests of the child. Gloria M. appealed from the denial of her petition.
DCFS filed a report in August 2010. The report indicates that Z. “has adjusted well in her placement with Mr. & Mrs. C.” and refers to them as “mommy” and “daddy” and to their children as her “brother” and “sister.” She is now potty trained, attends school and is doing well. Z. misbehaves and becomes agitated or frustrated when she sees Mother. After Mother’s visits, Z. experiences nightmares where she calls out in the middle of the night screaming, and requires soothing. She also becomes stubborn and raises her hand with the other children. The C.’s implement and reinforce their rules, and Z.’s behavior improves; however, the cycle starts anew with the next visit. The C. family is committed to adopting Z.
Mother has monitored visitation. During a visit on May 6, 2010, Mother arrived with her sister-in-law and daughters. Mother’s attention was focused on the other visitors, so Z. largely played by herself. On May 13, Z. was taken to the DCFS office, but Mother failed to show up or call. On June 10, Z. arrived at the DCFS office, covered her eyes, and announced to the monitor, “No want Audrey” and “Don’t want Audrey, ” referring to Mother. Mother did not show up and did not call. Mother and Z. interacted well during a visit on June 24, although Mother did not arrive until 4:25 p.m. for a visit that lasted from 4:00 to 5:00. On July 15, Z. arrived for her visit and once again stated that she “did not want Audrey.” Mother did not show up and did not call. DCFS recommended that the court terminate parental rights because Mother’s visitation was poor, she did not have a parental role, and Z. did not benefit from the visits because she regressed after seeing Mother.
The court continued the permanent placement hearing to September 16, 2010. On September 16, DCFS reported that Mother failed to show up for visits with Z. on July 22, July 29, August 5, August 26, and September 2. Each time, Z. waited for Mother for 30 minutes in the lobby of the DCFS office. Mother had a monitored visit on August 12: she seemed hyper and was talking very fast, telling the monitor that she was not taking her medication because it makes her drowsy. Mother corrected Z. when the child referred to the C.’s as mommy and daddy. At a monitored visit on August 19, Z. stopped playing with Mother after 40 minutes and stated, “I want to go home with mommy.” When Mother replied, “I am mommy, ” Z. said, “I don’t want to be here anymore, I want to go home with my mommy.” Mother convinced Z. to continue playing for a little bit longer. Mother came for a brief visit with Z. on September 9, but left after half an hour because she was feeling unwell.
Mother did not appear for the permanent plan hearing on September 16. Her attorney stated that Mother was ill and asked for a continuance. The court found that Mother had been previously ordered to appear for the hearing, and she repeatedly failed to show up for visits, so there was no good cause for a continuance. The court found that Z. is adoptable and that it would detrimental to return her to parental custody. No exceptions to the legislative preference for adoption applied. The court terminated parental rights and transferred Z.’s custody to DCFS for adoptive planning and placement.
DISCUSSION
Mother’s Appeal
Mother has appealed from the order terminating her parental rights. At the selection and implementation hearing, the court must select adoption as the permanent plan and terminate parental rights if it finds that the child is likely to be adopted. (§ 366.26, subd. (c)(1); In re Celine R. (2003) 31 Cal.4th 45, 49; In re Jamie R. (2001) 90 Cal.App.4th 766, 773.) Adoption is the permanent plan preferred by the Legislature. (In re Derek W. (1999) 73 Cal.App.4th 823, 826; In re Ronell A. (1995) 44 Cal.App.4th 1352, 1368.) A parent may avoid termination of parental rights by showing that it would be detrimental to the child. (In re Celine R., supra, 31 Cal.4th at p. 53.)
Mother does not challenge the juvenile court’s finding that no exceptions to the legislative preference for adoption apply. She does not dispute the court’s finding that Z. is adoptable. Nor does she argue that termination of parental rights would be detrimental because Mother has “maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).)
Mother’s only complaint is that the court abused its discretion by denying her last-minute request for a continuance, on the day of the permanency planning hearing. Continuances are discouraged in dependency cases. (In re Giovanni F. (2010) 184 Cal.App.4th 594, 604.) They are granted only “upon a showing of good cause” as demonstrated by evidence presented at the hearing. (§ 352, subd. (a).) The court must consider the best interests of the child before granting a continuance, including the child’s need for a prompt resolution of her custody status, the need to provide her with a stable environment, and the damage caused by prolonged temporary placements. (Ibid.) The denial of a continuance is reviewed for an abuse of discretion. (In re David H. (2008) 165 Cal.App.4th 1626, 1635; In re Giovanni F., supra, 184 Cal.App.4th at p. 605.)
Mother offered no evidence of her inability to attend the hearing, such as a doctor’s note. For all the court could tell, Mother may have felt unwell at the prospect of losing her parental rights to yet another of her children, which would not be a proper reason to continue the hearing. There was no offer of proof as to what Mother would do or say if she were in attendance at the hearing. Mother did not show that her presence at the hearing was necessary or could have changed the outcome.
The outcome of the hearing was a foregone conclusion. The record shows very inconsistent visitation by Mother throughout the dependency proceeding. In the months leading up to the permanent plan hearing, Mother missed most of her weekly visits with Z., and did not call ahead to cancel, leaving the child to waste 30 minutes in the DCFS lobby, fruitlessly waiting for Mother to show up. Mother did not occupy a parental role, and her visits were not beneficial. Z. amply communicated—as well as a three-year-old could—that she did not want to see Mother for visits, telling this to DCFS (“Don’t want Audrey”) and even interrupting a visit with Mother to say that she did not want to be there.
After failing to visit Z., and being denied reunification services because she failed to reunite with seven older children, Mother waited too long to convince the court that she could be a fit parent. Mother already had a pattern of disappearing for important hearings: she earlier failed to appear at the jurisdictional hearing in this case. Continuing the hearing would not have served any purpose and would simply have thwarted Z.’s patent desire to have her custody status resolved. The court did not abuse its discretion by denying a continuance, as there was no showing of good cause.
Mother seeks to join Gloria M.’s appeal, which is discussed below. Mother appealed from the order terminating her parental rights, not from the order denying Gloria M.’s petition for a modification. Even if we construe Mother’s notice of appeal broadly, and give Mother standing to appeal the court’s denial of Gloria M.’s petition, Mother’s arguments do not alter our resolution of the modification issue.
Gloria M.’s Appeal
Maternal grandmother Gloria M. (MGM) challenges the court’s refusal to entertain her petition seeking custody of Z. Any person interested in a dependent child may petition the court to modify a prior order upon a showing of changed circumstances. (§ 388.) The court must order a hearing on the petition “if it appears that the best interests of the child may be promoted by the proposed change of order.” (Ibid.) The denial of a petition for modification seeking a change of custody will not be disturbed absent a clear abuse of discretion, and only when the determination is arbitrary, capricious or patently absurd. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
A petitioner must present prima facie evidence of changed circumstances, to convince the court to order a full hearing. (In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1414-1415.) MGM was originally rejected as a placement for Z. in 2009 because an adult grandson on criminal probation was living in her home, and because an adult granddaughter, G.M., conveyed her concern that MGM is too old to care for a small child, noting that MGM asked for help in looking after Z. MGM’s petition does not state how circumstances have changed. She does not show whether the adult grandson who is on probation has moved from her home. Also, if there were concerns that MGM was too old to care for a small child in 2009, this circumstance could not have changed for the better one and a half years later.
After Z.’s detention in February 2009, MGM made no further request to have Z. placed with her, even after placements with Michelle R. and a certified foster family failed. The court did not need to consider MGM as a placement during that time because she did not request custody of Z. (§ 361.3, subd. (a).) Z. was ultimately placed with the C. family, where she bonded almost immediately and refers to them as her parents and siblings. Z. thrived in the foster placement. At the eleventh hour, just as the court was preparing to terminate parental rights and free Z. for adoption, MGM announced that she “has become available for the care and custody of [Z.].”
Apart from failing to show a change in circumstances, MGM did not show how a modification might serve Z.’s best interests. MGM was Z.’s primary caretaker from birth in 2007 until she was detained by DCFS in 2009. During this period, Z. was dirty, bruised, and “very traumatized.” She did not receive adequate medical treatment and had ringworm, diaper rash and thrush. She screamed, did not sleep, and hit her head against the wall. Z. did not thrive while MGM was her primary caretaker.
MGM’s household currently includes Z.’s half brother Jonathan, a physically and verbally aggressive teenager who hits and throws objects and curses his siblings. Despite Jonathan’s severe mental and emotional issues, MGM displayed extremely poor judgment by taking his medications away, resulting in a psychotic break that included auditory hallucinations, threats of violence, and taking a knife to school, leading to his expulsion. Z. would not benefit from joining MGM’s already chaotic household.
Against the backdrop of the poor care Z. once received as a baby in MGM’s home—and the poor unilateral medical decisions recently made by MGM with respect to Jonathan—is the undisputed evidence that Z. is thriving in her current adoptive placement and is closely bonded to the C. family. It would be traumatic to remove Z. from the family she considers to be her parents and siblings, in the vague hope that she can successfully integrate into MGM’s home. MGM’s petition does not state that she has a close bond with Z., only that they are related. Kinship alone is not reason enough to disrupt Z.’s stability and happiness. (In re Stephanie M., supra, 7 Cal.4th at pp. 317-319 [child’s stability in foster care outweighed grandmother’s kinship, where there was no evidence of any significant bond with the grandmother, but there was a strong primary bond with the foster parents].)
Finally, MGM maintains that Z. should remain with her half siblings as a family unit. Continuity of the family unit is encouraged when siblings are placed together. (§ 16002.) In this instance, Z. was detained by DCFS at 22 months of age. She was too young to recall most of her siblings, who are a decade older than Z. Z. was not raised with her siblings. Z. has a bond with G.M., her adult half sister, but not with anyone else in Mother’s family. The prospective adoptive family recognizes Z.’s bond with G.M. and is willing to maintain that bond.
DISPOSITION
The judgment (order denying a petition for a modification and order terminating parental rights) is affirmed.
We concur: ASHMANN-GERST, J., CHAVEZ, J.