Opinion
F076489
06-19-2018
In re MIA R., a Person Coming Under the Juvenile Court Law. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. COREY M., Defendant and Appellant.
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant. Mark L. Nations, County Counsel, and Bryan C. Walters, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JD13425700)
OPINION
THE COURT APPEAL from an order of the Superior Court of Kern County. Peter A. Warmerdam, Juvenile Court Referee. Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant. Mark L. Nations, County Counsel, and Bryan C. Walters, Deputy County Counsel, for Plaintiff and Respondent.
Before Peña, Acting P.J., Smith, J. and Ellison, J.†
-ooOoo-
Appellant Corey M. (mother) appeals from an order terminating parental rights (Welf. & Inst. Code, § 366.26) as to her now seven-year-old daughter, Mia R. Mia's father is Joseph R. Mother contends the juvenile court prejudicially erred when it denied her attorney's request for a continuance of the section 366.26 hearing. We affirm.
Statutory references are to the Welfare and Institutions Code.
Joseph is not a party to this appeal.
PROCEDURAL AND FACTUAL SUMMARY
These dependency proceedings were initiated in March 2015, when mother, distraught and crying, contacted the Kern County Department of Human Services (department) and insisted the department take her three daughters, then five-year-old Hallie, four-year-old Mia, and 10-month-old Jasmine, into protective custody. She and her husband, Joseph, the children's father, were having marital problems and she was under stress. She said she could not handle the children anymore and wanted them to be safe.
The juvenile court removed the children from parental custody and provided the parents reunification services to address domestic violence, mental health, and substance abuse. Mother complied with her services plan, separated from Joseph, and progressed to unsupervised visits. Consequently, in February 2016, the juvenile court returned the children to her with family maintenance services. In April 2016, the court terminated Joseph's reunification services.
Mother appealed from the juvenile court's jurisdictional findings and dispositional orders, which we affirmed. (In re Hallie R. (June 10, 2016, F072976) [nonpub. opn.].)
In May 2016, the department filed a supplemental petition under section 387, alleging the children's placement with mother was ineffective and citing multiple domestic violence incidents, including one in which Joseph broke into her apartment and threatened to kill her. The department faulted mother for not obtaining a restraining order. The juvenile court sustained the supplemental petition, removed the children from mother's custody and, in March 2017, set a section 366.26 hearing for July 20, 2017. The children were placed in foster care; Hallie and Jasmine together in one foster home and Mia in another.
Mother filed an extraordinary writ petition, which we denied. (Corey M. v. Superior Court (July 10, 2017, F075391) [nonpub. opn.].)
On July 20, 2017, the juvenile court convened the section 366.26 hearing. Mother was not present. Her attorney asked the juvenile court to continue the matter because the department filed its report late, and to set a contested hearing. The court granted the request and set a contested hearing for September 25, 2017. The following day, the department served mother notice of the hearing and of its recommendations that the juvenile court terminate parental rights as to Mia and order Hallie and Jasmine into long-term foster care.
In its report for the hearing, the department recommended the juvenile court select adoption as Mia's permanent plan. She had been living in a preadoptive home for a year. Her prospective adoptive parents wanted to adopt her and she liked living with them and felt safe in their home. She visited her sisters twice weekly and her adoptive parents were willing to consider postadoption sibling contact.
The department also opined that the benefits of adoption outweighed any detriment that might result from the severance of mother's parental rights. Mia looked to her adoptive mother to meet her needs and refused to visit mother. She cried and clung to her adoptive mother during visitation. On one occasion, she attempted to make herself throw up during the car ride so she would not have to stay. In addition, mother did not visit her consistently. She attended only 75 of the 118 visits scheduled subsequent to Mia's removal in May 2016.
On September 25, 2017, the juvenile court convened the section 366.26 hearing. Mother did not appear and the court found she was properly notified of the hearing as to Mia. Mother's attorney informed the court that he had no explanation for her absence and asked the court to continue the hearing. The court denied the request. Mother's attorney objected to the department's recommendation to terminate parental rights but had no evidence to present and submitted the matter. The court found clear and convincing evidence Mia was likely to be adopted and terminated parental rights.
DISCUSSION
Mother contends the juvenile court abused its discretion in denying her trial attorney's request to continue the section 366.26 hearing. Section 352, the governing statute, requires a showing of good cause:
"(a) Upon request of counsel for the parent, ... 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 a continuance."
We review the juvenile court's denial of a continuance for abuse of discretion. (In re F.A. (2015) 241 Cal.App.4th 107, 117.) To show an abuse of discretion, mother must demonstrate the juvenile court exercised its discretion in an arbitrary, capricious, or patently absurd manner resulting in a miscarriage of justice. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
Mother contends there was good cause to grant a short continuance because she was expected to attend the hearing and Mia was in a stable placement and would not be prejudiced by it. Additionally, a continuance would permit her to appear and present evidence about the beneficial parent-child and sibling relationship exceptions to adoption contained in section 366.26, subdivision (c)(1)(B)(i) and (v). We find no abuse of discretion.
Mother's trial attorney did not show good cause to continue the hearing. He simply informed the juvenile court he could not explain mother's failure to appear and asked for a continuance. He stated:
"[Counsel]: Your Honor, I'll note that the time is 8:45 approximately and my client is not present. I don't have any explanation for her absence. She has participated quite regularly in the past. For the record, I'll make a request for a continuance to allow her a chance to be here. If that's overruled, I would lodge an objection to the recommendations, but I have no other evidence to present and would otherwise submit."
Appellate counsel asserts the attorney's statement that mother "participated quite regularly in the past" was a representation that she was expected to appear and constituted good cause to continue the hearing. We disagree with that interpretation. Trial counsel did not say he expected mother to appear; he merely commented on her attendance history.
Further, appellate counsel's argument that a continuance was not prejudicial to Mia is not good cause to continue a section 366.26 hearing. More importantly, it defies public policy which presumes that any delay in achieving permanency for a dependent child is prejudicial to the child's well-being.
Finally, there is no evidence on this record mother could have established either the beneficial parent-child or sibling relationship exceptions to adoption. Since adoption is the preferred permanent plan, the juvenile court, having found Mia was likely to be adopted, had no choice but to terminate mother's parental rights absent "a compelling reason for determining that termination would be detrimental" to Mia. (§ 366.26, subd. (c)(1)(B).) Those compelling reasons are codified as exceptions to adoption in section 366.26, subdivision (c)(1)(B). The beneficial parent-child relationship exception applies when "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) The sibling relationship exception applies when "[t]here would be substantial interference with a child's sibling relationship," taking various factors into consideration.
Those considerations are "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." (§ 366.26, subd. (c)(1)(B)(v).)
The parent has the burden of producing evidence to establish the existence of the beneficial parent-child relationship and sibling relationship exceptions to adoption. (In re K.P. (2012) 203 Cal.App.4th 614, 621.) In order to prove the beneficial parent-child relationship exception applies, mother would have to show not only that she maintained regular visitation and contact with Mia but that there is a significant, positive emotional attachment between her and Mia that promotes Mia's well-being to such a degree as to outweigh the well-being Mia would gain in a permanent home with new, adoptive parents. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419; In re S.B. (2008) 164 Cal.App.4th 289, 297.) Similarly, to prove the sibling relationship, mother would have to show that termination of her parental rights would substantially interfere with Mia's relationships with her sisters and that preserving those relationships outweighed the benefit of adoption.
Here, mother would not be able to establish even the foundational requirement of the beneficial parent-child relationship exception because she did not maintain regular visitation and contact with Mia. Further, there is no evidence to support a finding that termination of her parental rights would substantially interfere with Mia's relationships with her sisters. Rather, according to the evidence, the prospective adoptive parents were willing to consider maintaining the sibling relationships.
In light of the foregoing, we conclude the juvenile court did not abuse its discretion in denying trial counsel's request to continue the section 366.26 hearing.
DISPOSITION
We affirm the order terminating mother's parental rights.
† Retired judge of the Fresno Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.