Opinion
D076428
02-24-2020
In re D.D. et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. J.W., Defendant and Appellant.
Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Tahra Broderson, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. EJ4016A-B) APPEAL from orders of the Superior Court of San Diego County, Marian F. Gaston, Judge. Affirmed. Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Tahra Broderson, Deputy County Counsel, for Plaintiff and Respondent.
J.W. (Mother) appeals from an order under Welfare and Institutions Code section 366.26 terminating her parental rights and selecting adoption as the permanent plan for her minor children, D.D. (born 2012) and A.D. (born 2015). She contends the court erred in (1) denying her request for a continuance of the section 366.26 hearing and (2) finding there was not a beneficial parent-child relationship between her and the children within the meaning of section 366.26, subdivision (c)(1)(B)(i) that precluded termination of her parental rights. We affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2015, Mother went into preterm labor at a hospital and gave birth to A.D. who weighed under four pounds. Mother and A.D.'s toxicology screens were negative for drugs, but Mother represented that she had used crack cocaine, methamphetamine, and alcohol two days after she gave birth. She disclosed that she had been diagnosed with schizoaffective and bipolar disorders and had been off her medications for four months. The children's father, Andrew D. (Father), took medications for bipolar disorder and depression.
Andrew is not a party to this appeal.
The parents visited A.D. at the hospital with D.D. A hospital social worker expressed concern that the parents were unable to care for A.D., who had special needs, and that the parents had a low frustration and tolerance level for D.D. The maternal grandmother (grandmother) told a social worker with the San Diego County Health and Human Services Agency (Agency) that she was concerned the parents were not fit to care for the children. The Agency offered the parents an out-of-home voluntary services case in November 2015. The Agency placed A.D. in a confidential foster home and placed D.D. with the grandmother.
On February 26, 2016, the Agency filed section 300 petitions on behalf of the children because the voluntary services contract was due to expire. The petitions alleged that the parents were both unable to care for the children due to their mental health problems and substance abuse, and they had not made progress in their voluntary case plans. At the detention hearing, the court noted the parents' whereabouts were unknown and ordered the Agency to conduct a reasonable search efforts to locate them and notify them of the dependency proceedings.
The parents did not attend the jurisdiction and disposition hearing in April 2016. The juvenile court made true findings on the petitions, declared the children dependents of the court, and ordered them placed in the home of a relative.
As to A.D., the relative placement order may have been a clerical error because she remained in her foster home after the jurisdiction/disposition hearing.
In October 2016, the Agency recommended terminating Mother's services and setting a section 366.26 hearing. The Agency reported that Mother had limited contact with the Agency, had not participated in any reunification services, and had not communicated with the social worker to inquire about the children's well-being. Her visitation with the children had been inconsistent.
D.D. was doing well with the grandmother and A.D. was doing well in her foster home. The plan had been to eventually place A.D. with the grandmother, but the grandmother informed the Agency that she was not interested in having A.D. placed with her; she just wanted to be able to see A.D. and "be grandma to her." The grandmother agreed with keeping A.D. in foster care because A.D. had special needs the grandmother was unable to meet. The Agency did not recommend placing A.D. with the grandmother.
The children's court appointed special advocate (CASA) filed a report in October 2016, in which she agreed with the Agency's recommendation to terminate the parents' services and set a section 366.26 hearing because the parents had not participated in their case plans and had not visited the children. The CASA reported that although D.D. was placed with his grandmother, he had been sleeping on a sofa in the maternal aunt's home for about eight months while the grandmother slept at her boyfriend's home. Although the grandmother did not work, she took D.D. to daycare Monday through Friday from 9:00 a.m. to 6:00 p.m. and was looking for a program to care for him on Saturdays as well. When asked why she needed to have D.D. in daycare, the grandmother explained she had paperwork and unpacking to do. She would have preferred not to have to care for D.D., but she did not want him to be placed in a foster home. Although the CASA was concerned that the grandmother did not look forward to spending more time with D.D., she recommended that D.D. remain placed with the grandmother because it would be traumatic for him to be removed from her. The grandmother told the Agency social worker and CASA that she did not think she could care for both D.D. and A.D. and that she agreed A.D.'s foster parents should adopt A.D. if reunification were unsuccessful.
In October 2016, the grandmother filed a section 388 petition (request to change order) requesting that A.D. be placed with her or with the maternal aunt (aunt). Contrary to what the Agency and CASA had reported about the grandmother's willingness and ability to care for A.D., the grandmother maintained that she had sought custody of A.D. immediately after her birth, had repeatedly requested custody of her, and had consistently been led to believe A.D.'s placement with her would be imminent.
At the scheduled six month review hearing on October 26, 2016, Father made his first appearance in the case and represented that he had Indian ancestry. The court found the Indian Child Welfare Act (ICWA) may apply and ordered the Agency to send notice to the appropriate tribes and agencies. The court further ordered that Father be provided reunification services and liberal supervised visitation with the children. The court set a contested six-month review hearing and an evidentiary hearing on grandmother's section 388 petition for December 15, 2016.
Mother made her first appearance in the case on January 5, 2017, a continued hearing date for the six-month review and grandmother's section 388 petition. Because her specially appearing counsel represented that the maternal great-grandmother may have Indian ancestry, the court ordered the Agency to "notice the appropriate tribe" and continued the contested six-month review hearing to February 15, 2017. The court granted the grandmother's section 388 petition and ordered A.D. placed with a relative. A.D. was placed with the aunt on January 6, 2017.
On February 1, 2017, Mother filed a section 388 petition asking the court to "vacate all orders made and require the Agency to comply with its notice obligations and afford [M]other proper due process under the law." Mother additionally asked the court to "vacate all findings and orders pertaining to the jurisdiction and disposition hearing as to the mother, and start de novo with an arraignment on the petition for the mother with her counsel at her side, helping her navigate [the proceedings]." On February 15, Father filed a motion to vacate the court's prior jurisdiction findings on the ground that he had not been provided adequate notice of the proceedings before the jurisdiction hearing.
At the contested hearing on February 15, 2017, the court denied Father's motion and Mother's section 388 petition. The court terminated Mother's reunification services, ordered services for Father, and set a 12-month review hearing for April 26, 2017. Mother and Father separately appealed from the February 15, 2017 order.
In a status review report for the 12-month review hearing, the Agency noted both children were placed in the aunt's home. They appeared to be thriving there and had developed a strong connection with the aunt and her household family members. There were no visits between Mother and the children during the reporting period. The Agency recommended that the court terminate Father's reunification services and set a section 366.26 hearing. The CASA agreed with the Agency's recommendation. At the 12-month review hearing on April 26, 2017, the court terminated Father's reunification services and set a section 366.26 hearing for August 23, 2017.
In its report for the section 366.26 hearing, the Agency recommended termination of parental rights and adoption as the permanent plan for the children. The children had not lived with either of the parents for a significant portion of their lives because the parents lacked sobriety and stability, and they were unable to care for the children or visit them consistently. The Agency concluded the benefits of adoption outweighed the relationship the children had with the parents. The CASA agreed with the Agency's recommendation. At the section 366.26 hearing on August 23, 2017, the court terminated parental rights and ordered adoption as the permanent plan for both children.
Proceedings following disposition of the first appeal
In September 2017, this court reversed the jurisdiction orders and all subsequent orders and remanded the matter to the juvenile court with directions to (1) conduct the jurisdiction and disposition proceedings anew after providing proper notice to Father and an opportunity for him to be heard, and (2) order the Agency to comply with ICWA. At a hearing on the remittitur on November 30, 2017, the juvenile court set a new jurisdiction and disposition hearing for December 21, 2017, and ordered supervised visitation for Mother.
There are no issues concerning ICWA in the present appeal.
In its report for the new jurisdiction/disposition hearing filed in December 2017, the Agency recommended the parents be provided reunification services and have separate supervised visitation with the children. The children remained placed in their aunt's home and the aunt was willing to provide them long term care if necessary. The parents' last visit with the children was in May 2017. The Agency attempted to contact the parents to interview them for the jurisdiction/disposition report, but was unsuccessful.
The parents did not attend the second jurisdiction and disposition hearing in February 2018. At that hearing, the court found that due diligence and reasonable search efforts had been made to locate the parents and notify them of the proceedings. The court made true findings on the petitions, declared the children dependents of the court, and removed custody of the children from the parents. Under section 361.5, subdivision (b)(1), the court ordered that no reunification services would be provided to the parents. The court scheduled a six-month review hearing for August 2018.
In a report filed in August 2018 for the six-month review hearing, the Agency social worker assigned to the case noted the parents had not been in regular contact with her and their whereabouts were unknown. Mother had called the social worker on April 25, 2018, and said she wanted to meet with her. The social worker scheduled a meeting for the next day, but Mother did not show up. Mother called the social worker again in June and said she would come to the social worker's office the next day to meet with her, but Mother again failed to attend the meeting. Mother did not leave the social worker a phone number where she could be reached. The children remained placed with the aunt and appeared to be thriving in that placement. The aunt reported that Mother was visiting the children occasionally at her home.
At the six-month review hearing in September 2018, which the parents did not attend, the court found reasonable services had been offered to the parents, neither parent had made any progress toward alleviating or mitigating the causes "necessitating placement," and that return of the children to parental custody would create a substantial risk of detriment to their physical and emotional well-being. The court set a section 366.26 hearing for January 2019 and allowed the parents supervised visitation.
In December 2018, the Agency filed supplemental petitions under section 387 alleging that the children's placement with the aunt had not been effective in protecting them, and that the aunt was no longer willing or able to provide them adequate care and supervision because she had exposed them to domestic violence in her home. The petitions recommended the children be placed in a licensed foster home.
The aunt had failed to inform the Agency that a "family friend," Yvette L., had moved into the aunt's home, and that Yvette and the aunt's husband (Melvin C.) had been primarily taking care of the children. Yvette and the aunt were in a dating relationship. On November 20, 2018, they got into an argument and physical altercation over Yvette's belief that Melvin was molesting A.D. While the aunt and Yvette were arguing, the aunt attempted to make a phone call. Yvette charged toward the aunt and tried to grab the phone from her. The aunt and Yvette scuffled and knocked over a television. Police arrived and arrested Yvette for domestic violence. When they arrived, the children were asleep in a back room, although Yvette later told the social worker that the aunt had purposely brought them out to witness the fighting. The next day, Yvette was bailed out of jail and returned to the aunt's home. She and the aunt resumed arguing and the police were called again to keep the peace. The social worker went to the home to check on the children, but they were not at the home.
The Agency placed the children with the grandmother the next day and the aunt obtained a restraining order and move out order against Yvette. Yvette reported that there had been two domestic violence incidents between her and the aunt and that the children had witnessed arguments between them. She told the social worker that the aunt went out often and was using the county's money for her own personal gain. D.D. told the social worker that the aunt and Yvette fought with words and it scared him. On December 8, the children were moved to the home of A.D.'s previous foster mother because the grandmother's home was unable to be cleared through the relative family approval process.
At a detention hearing on December 20, 2018, the court found a prima facie showing had been made on the section 387 petitions and that the previous disposition was no longer appropriate. The court ordered the children detained in a foster home or with a relative and ordered the Agency to "make urgent efforts to facilitate liberal supervised visits with grandmother or any other approved relative(s)." (Capitalization omitted.) On January 8, 2019, the court sustained the section 387 petitions and ordered that the children remain dependents of the court placed in a confidential foster home. The court continued the section 366.26 hearing to May 8, 2019.
In a report filed in December 2018, the Agency noted Mother had "been having sporadic contact with the [children] a couple times per month for the past several months." In January 2019, the Agency reported the children were struggling and having behavioral issues in their foster home, and the grandmother was being assessed by Resource Family Approval (RFA) for placement of the children with her. Agency social worker Christine Dennis was assigned to the case in February 2019.
In a report filed in April 2019 for the section 366.26 hearing, the Agency recommended termination of parental rights and adoption as the children's permanent plan. On March 12, 2019, the children had been placed in a new foster home. They were removed from their previous foster home at the foster mother's request after D.D. told Dennis the foster parents had been physically disciplining him, and the social worker discussed D.D.'s allegations with the foster mother.
Mother, the aunt, and the grandmother attended a Child and Family (CFT) meeting on March 29, 2019. The grandmother stated that she had done everything needed for her RFA evaluation and did not know why it was not finished. The aunt stated the children had been removed from her due to false allegations of someone she was dating. The family believed that the children had experienced trauma from being moved from their placements and needed to be placed with family. They believed it was in the children's best interests to be placed with the grandmother.
D.D. told Dennis that he wished to live with his grandmother. Dennis reported that the grandmother was going through the RFA assessment process, her RFA approval was still pending, and the Agency was assessing her ability to meet all of the children's needs. In April 2019, the grandmother confirmed that she wanted placement of the children and wanted to adopt them.
Mother, the aunt, and the grandmother had not visited the children since the case had been in adoptions, but Mother requested a visit during the CFT meeting. Dennis offered to arrange visitation and told Mother to call her for scheduling, but Mother did not contact her. Dennis scheduled a supervised visit with the grandmother and aunt for April 19, 2019.
In a report filed in May 2019, the CASA noted that in previous reports she had presented "concerning comments" by D.D. about the grandmother having "whooped" him and about fighting between the grandmother and aunt. The CASA had also reported that D.D.'s former daycare provider commented about the lack of care the grandmother had provided D.D. when he was placed with the grandmother between November 2015 and January 2017. Although D.D.'s maternal relatives had regularly told the CASA that D.D. was doing great in school when he was placed with relatives, the CASA later learned from D.D.'s first grade teacher that he engaged in disruptive behavior at school, and had low academic performance and excessive absences and tardiness. The children had minimal contact with family members after they were removed from the grandmother's home in December 2018. The former foster mother told the CASA that the grandmother was allowed to visit and call the children, but did not.
The CASA was concerned that the grandmother had not shown she was capable of meeting D.D.'s educational and emotional needs when he was in her care, and her concern was increased by the grandmother's current wish to have both children placed with her. The CASA did not feel placing the children with the grandmother would be in their best interests. She agreed with the Agency that "the search for a permanent family that is willing to adopt both children should continue."
In May 2019, the Agency filed an addendum report prepared by Dennis for the section 366.26 hearing. Dennis had moved the children to a new foster home on May 3 because there had been a referral alleging sexual abuse of the children by another minor and general neglect by the foster mother in their previous foster home. The new caregiver was aware of the children's history and was interested in placement and open to adoption if the grandmother was not approved for placement.
Mother's visitation
Dennis arranged a one-hour visit between Mother and the children that occurred on May 6, 2019 at a fast food restaurant. The grandmother arrived at the visit unannounced. A.D. greeted her as "Gi-Gi" and hugged her. The grandmother asked D.D. to come down from a play structure to give her a hug. D.D. did not come down but said, "Hi grandma Gi-Gi." When Mother arrived, the children said "Mommy!" and both gave her a hug. The CASA bought food for the children because Mother did not have any money. Mother sat with the children while they ate and took A.D. to the restroom. She conversed with D.D. about Pokemon characters and super heroes and helped A.D. clean her face with a napkin. When the children finished eating, they ran back to the play structure. The CASA asked the children to come down and say goodbye to Mother. D.D. asked why. The CASA explained it was time for her, Mother, and Dennis to leave. The children came down and put their shoes on. A.D. reached her arms up to the CASA, who picked her up and told her to show Mother the design on her shirt. A.D. walked over to Dennis and pointed at her shirt. Mother asked the children for a hug and they complied.
The children's next scheduled one-hour visit with Mother occurred on May 31, 2019. The aunt was present when Dennis and the children arrived at the fast food restaurant. The children hugged her and she told Dennis the grandmother was in her car and Mother was probably on the way. The children went to the aunt's car and greeted the grandmother, saying "Gi-Gi!" The aunt had to leave but gave the grandmother money to buy the children food. The grandmother went inside the restaurant with Dennis and the children. Mother arrived 19 minutes late and sat with the children while they ate their food.
Mother told D.D. that she missed him and asked if he missed her. D.D. nodded his head up and down. Mother asked how the new foster home was and D.D. put his thumb down, then up, then sideways. A.D. put her thumb sideways and grandmother said, "She always do what he does." D.D. went to the play structure while Mother sat with A.D. and gave her juice to drink. Mother cleaned A.D.'s face when she finished drinking her juice, walked her to the play structure, and helped her take her shoes off. A.D. joined D.D. on the play structure and Mother watched them play. A.D. eventually left the play structure and gave Mother a hug.
The aunt returned to the visit with her teenage daughter. D.D. ran to his cousin and gave her a hug. A.D. said "Auntie, Auntie" and gave the aunt a hug. Later Mother was watching the children at the play structure and told them it was time to go. Mother told the aunt that D.D. was angry because Father was not at the visit. The aunt told Mother to stop bringing up Father and to focus on herself. Mother got the children ice cream cones and told them it was time to go as they finished their cones. D.D. asked if he could go to the aunt's house and the aunt said he had to go with Dennis. D.D. said, "I wanna stay here." He began to cry and said he wanted to stay with the maternal family. After the maternal family members kissed and hugged the children and said goodbye, D.D. cried and said to Dennis, "It's not fair! I miss my Dad." A.D. asked, "Where's my uncle?" Dennis apologized and said they could not see them today.
Dennis took the children to the fast food restaurant for another scheduled visit with Mother on June 14, 2019, but Mother did not show up for the visit.
On July 12, 2019, Dennis arrived at a park with the children six minutes late for a one-hour visit with Mother and the grandmother. The children ran to the grandmother and hugged her. Then everyone walked over to Mother who was sitting on a bench. Mother stood up and asked the children for a hug and they both gave her one. The grandmother left to get pizza and Mother helped A.D. get on a swing while D.D. climbed on a play structure and asked her to watch him climb with one hand.
While Mother, Dennis, and the children were walking to restroom, A.D. asked Dennis to carry her across the parking lot and then stopped and reached up to Dennis. Dennis asked if A.D. wanted Mother to carry her. A.D. said to Dennis, "pick me up," so Dennis picked her up but put her down a few steps later. A.D. then reached out both of her hands to hold Mother's hand and Dennis's hand. Mother grabbed A.D.'s left hand and Dennis told A.D. that Mother was going to hold her hand. However, A.D. kept shaking her right hand at Dennis, so Dennis grabbed her right hand and held it until they reached the sidewalk. After Mother helped A.D. use the restroom, they walked back across the parking lot with Dennis. A.D. grabbed Dennis's hand to hold. Dennis told her to hold Mother's hand, but she continued to hold Dennis's hand and did not reach out to Mother. Mother told A.D. that she was her mother, not Dennis, and that this was their only time together.
Mother and the children ate pizza with the grandmother and Mother told D.D. to chew with his mouth closed. D.D. overheard Mother and the grandmother talking and said, "Don't talk about my daddy. No one talks about my daddy without asking me." Mother said she had said something good and asked D.D. if he missed his mom. D.D. responded, "I miss my dad the most. I'm scared." Mother asked D.D. if he was afraid he was never going to see his dad. D.D. said yes.
Mother took the children back to the playground and played with them until it was time to leave. When Dennis said the visit was over and Mother and the grandmother gave the children a hug, D.D. began to cry and said he did not want to leave. The grandmother told D.D., "Don't worry, they're going to have you come live with grandma soon." Dennis later told the grandmother not to say things like that because they did not know what was going to happen. D.D. and A.D. were both crying and D.D. said he wanted to stay. Dennis proposed extending the visit to two hours next time. The grandmother agreed but Mother said she could not do two hours because she was on medication; one hour was enough. D.D. and A.D. got into Dennis's car and were crying. Mother and the grandmother gave them hugs and said goodbye. When they closed the door, D.D. told Dennis, "I miss my daddy. It's not fair that I don't get to see him."
On July 31, 2019, Dennis drove the children to a one-hour visit with Mother at a park. On the way there, D.D. asked Dennis who would be at the visit. Dennis said his mother would be there and D.D. responded, "That's it?" When Dennis said yes, D.D. said, "Aw man." Dennis asked who he wanted to be there and D.D. said he wanted his grandmother "Gi-Gi" to be there. He explained, "She has my Play Station and I want it back. So if she's not there, I'm gonna tell [her] I don't want to see her until I get it back."
When they arrived at the park, the aunt called Dennis and told her that she, her daughter, Mother, and the grandmother were across the street getting pizza. When the maternal relatives arrived at the park, the children yelled, "Auntie!" They ran to the aunt and gave her a hug, and then gave their cousin a hug. When everyone sat down to eat pizza, D.D. sat by his cousin and began to play on her cellphone. Mother asked him to come sit by her on the other side of the table, but he continued to look at the cellphone. Mother asked D.D., "Do you love your mommy?" D.D. replied, "No, I love my daddy more." Mother commented, "They ruined my relationship with my kids. I was trying to break the cycle." Mother then asked D.D. why he was being mean. The aunt said, "They're not being mean, they're being kids." While the children ate their pizza, Mother asked them why they were acting like that and if they did not like her anymore. The aunt told Mother to stop. Mother said, "We had a good visit last time. What happened?" D.D. eventually got up and sat by Mother. She rubbed his back, and he demonstrated that he could count to 100. When he finished, Mother said, "Yay!"
The grandmother came to the table and gave the children a hug. D.D. told the maternal family that A.D. said bad words and had said the "F" word. The grandmother said, "Saying bad words will get you a 'spankin'." Mother asked the children if they wanted to play at the park and they said no. They were playing on cell phones.
At some point D.D. began to cry and got up from the table. The relatives asked what was wrong and he said he missed them. The aunt began to pray with him and hugged him, but he ran off and continued crying. Dennis asked him if he wanted to talk about what was wrong. The aunt told Dennis to give him some time alone. D.D. entered the playground and climbed onto a play structure. He sat on the structure crying and refused to come down when Mother repeatedly asked him to. When he climbed to the top of the structure, which was not meant to be played on, Mother told him to get down because it was unsafe and he could get hurt. Dennis told him the visit was almost over and asked if he wanted to spend time with his family. She told him they could not visit if he was going to be unsafe and not listen. When the aunt and grandmother walked toward the play structure, D.D. got down and began running. He eventually stopped and sat down with the family. The aunt told him he needed to listen to the adults and social worker when they told him not to do something. He began to cry again and said, "I want my Play Station." The grandmother told him she would not bring the Play Station to visits, and that there was no place to plug it in.
The children's caregiver arrived to the visit with another foster child and her teenage son. D.D. was crying and the caregiver asked what was wrong. Family members said he was crying because the visit was over and he did not want to leave. D.D. said, "I want my tablet." After the family hugged and said goodbye to the children and Dennis said goodbye to the children and the caregiver, D.D. asked if he could continue playing in the park. The caregiver said they could stay.
Grandmother's RFA application
Dennis reported that RFA received the grandmother's application and initiated her RFA on November 29, 2018. RFA informed the grandmother that to continue with the evaluation process, she would have to sign releases of information to speak with "collaterals." Between December 2018 and February 2019, numerous attempts were made to speak with two collaterals, but the grandmother refused to sign a release of information for one of them. On March 13, 2019, a 30-day notice was sent to the grandmother requesting that she submit pending items to proceed with the RFA assessment. Between March and April 2019, numerous attempts were made to speak with two additional collaterals, and on May 29, a second 30-day notice was sent to the grandmother requesting that she submit pending items for her RFA and informing her that the RFA would be closed if she did not submit required documents within 30 days.
The acronym "RFA" is used in Agency reports to refer both to an organizational entity known as Resource Family Approval and the process for obtaining that entity's approval for dependent child placement. (See § 16519.5.)
A "collateral" presumably is someone who knows the RFA applicant but is not a family member.
At a hearing on June 24, 2019, the Agency's counsel asked the court to continue the contested section 366.26 hearing for approximately 30 days because the children were placed in their current foster home the previous month. The Agency wanted services to be put in place for the children and allow them time to stabilize in their placement, and allow the Agency time to do a full assessment of their permanent plan.
Mother's counsel added that the grandmother's RFA was still pending and had been pending for over six months. The Agency's counsel stated it was "an ongoing process with the RFA." Counsel's understanding was that the grandmother had provided some documentation, but the "RFA unit" was waiting for additional documentation. The court told the grandmother, "You need to follow up if you would like to be considered." The grandmother stated that she had "already complied with the last documents that they needed." The court responded, "Okay. I'm not sure that they feel that you complied so make sure you check with the social worker. Make sure that you have done everything you need to do so that you can be considered at the next hearing, okay?" The court continued the section 366.26 hearing to August 27, 2019.
On July 29, 2019, an RFA worker informed Dennis that the grandmother had not completed the requirements of her 30-day notice. They were going to issue another 30-day notice with specific details of what was required. On August 19, RFA informed Dennis that the grandmother had complied with the "second notice." However, there had been a delay in its receipt of supporting documentation for grandmother's assessment, and RFA did not have a "time frame" for the RFA process at that point.
The children's placement and the Agency's assessment
In the Agency's August 2019 addendum report for the section 366.26 hearing, Dennis noted the children were doing well in their foster placement. The Agency social worker formerly assigned to their case had been to the caregiver's home and reported to Dennis that the children were in the best condition she had seen them in any placement. She believed the placement was a great fit for the children's needs and they had shown a lot of improvement in their social and behavioral development. The caregiver wanted to adopt the children and stated they had "come a long way" since being in her home. She believed the stability they had with her had benefitted their development and well-being.
D.D.'s therapist had also seen much improvement in D.D. with his current caregiver, who took what D.D. learned in therapy and reinforced it in the home. The therapist was aware the children might be placed with the grandmother and was concerned the grandmother would not be able to meet the children's needs regarding supervision with other relatives. The therapist was concerned that placement with a relative would expose the children to domestic violence and alcoholism. She noted that D.D. had displayed aggressive behavior that could be a symptom of trauma resulting from things he had been exposed to in the family. In his current placement, he had been less aggressive and more nurturing toward A.D. The children reported that they liked the foster mother and liked being in her home. The foster mother took them to family events and they looked to her to meet their needs.
Dennis's assessment was that there did not appear to be a significant parent-child relationship between Mother and the children due to limited contact. Mother had requested only five visits with the children since Dennis was assigned to the case in February 2019 and had attended four visits. The children did not ask about Mother when they spoke with Dennis and at visits they expressed excitement toward the aunt and grandmother. Mother was not consistent with visitation and had mentioned not wanting more time with the children. The Agency concluded it would not be detrimental to terminate parental rights because the children did not look to Mother to meet their needs.
Section 366.26 hearing
At the beginning of the section 366.26 hearing on August 27, 2019, Mother's counsel requested another continuance of the hearing to allow more time to complete grandmother's RFA process. The Agency's counsel opposed the request, arguing that the grandmother was responsible for some of the delay in her RFA process, and that her pending RFA did not constitute good cause to continue the hearing. The court agreed on both points and denied the continuance.
The court proceeded with the section 366.26 hearing and received in evidence Dennis's curriculum vitae and reports for the hearing, and the CASA's May 2019 report for the hearing. After hearing testimony from Dennis and argument from counsel, the court found by clear and convincing evidence that it was likely the children would be adopted, adoption was in their best interests, and none of the circumstances specified in section 366.26, subdivision (c)(1)(B) that would make termination of parental rights detrimental to them existed. The court terminated parental rights, continued the children's placement in foster care, and referred them to the Agency for adoptive placement.
DISCUSSION
I. Denial of Continuance
Mother contends the court abused its discretion by denying her request for a continuance of the section 366.26 hearing. We disagree.
"[S]ection 352, subdivision (a) provides that if it is not contrary to the interests of the minor child, a trial court may grant a continuance in a dependency case for good cause shown, for the period of time shown to be necessary, and further provides that when considering whether to grant a continuance 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.' " (In re B.C. (2011) 192 Cal.App.4th 129, 143.)
Continuances are generally discouraged in dependency cases, and we review the denial of a continuance for abuse of discretion. (In re Ninfa S. (1998) 62 Cal.App.4th 808, 810-811.) The appropriate test for abuse of discretion is whether the court exceeded the bounds of reason. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) Trial court error in ruling on a request for a continuance is reversible only if it is prejudicial—i.e., "if the reviewing court finds it reasonably probable the result would have been more favorable to the appealing party but for the error." (In re Celine R. (2003) 31 Cal.4th 45, 60.) It is appellant's burden to show the error is prejudicial. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1322-1323 (Bailey J.).)
We conclude the juvenile court acted well within its discretion in denying Mother's request to continue the section 366.26 hearing. The court was required under section 352, subdivision (a), to give substantial weight to the children's need for stability and prompt resolution of their custody status in considering the request for a continuance. The children's dependency case was filed in February 2016 and was substantially delayed by the appellate reversal, which placed the case back at the jurisdiction and disposition stage.
In the second phase of the case, the section 366.26 hearing had been continued three times before Mother requested a fourth continuance at the August 2019 hearing. At the hearing on May 8, 2019, when the court continued the section 366.26 hearing to June 24, 2019, Mother's counsel noted there was not an approved RFA for the grandmother and stated she had "tried to push the trial far enough out that we would have that approval by that date, or at least a status update." At the June 24 hearing, Mother's counsel submitted on the Agency's request for another continuance based on the fact the grandmother's RFA was still pending and had been for over six months. In granting the continuance, the court admonished the grandmother to make sure she did everything she needed to complete the RFA process "so that [she could] be considered at the next hearing . . . ."
Having already continued the hearing multiple times, including at least once to give the grandmother additional time to complete her RFA, the court did not exceed the bounds of reason in denying Mother's request for a continuance on the fourth date set for the section 366.26 hearing. Moreover, the record showed, and the court noted, that the grandmother was partially responsible for the delay in her RFA process because she had not fully complied with the requirements for completing the process. Given the requirement under section 352, subdivision (a), to give substantial weight to the children's need for stability and prompt resolution of their custody status in considering a request for a continuance, the fact that the permanency hearing had already been continued to give the grandmother additional time to complete her RFA process, and the evidence that the grandmother was partially responsible for the delay in the completion of her RFA, the court acted reasonably in ruling that the failure to complete the RFA was not a good cause to delay the section 366.26 hearing.
To the extent the court erred in denying Mother's request for another continuance, Mother has not met her burden of showing the error was prejudicial. Specifically, she has not shown there was a reasonable probability that allowing additional time for the grandmother to complete her RFA would have resulted in approval of the grandmother's home for placement, or that RFA approval of the grandmother's home before a continued section 366.26 hearing would have resulted in a more favorable outcome than termination of her parental rights. The court's denial of Mother's request for a continuance is not a basis to disturb the order terminating parental rights.
As noted, the CASA and D.D.'s therapist expressed concern about the grandmother's ability to meet the children's needs. The CASA did not feel placing the children with the grandmother would be in their best interests.
II. Termination of Parental Rights
Mother contends the court erred in finding that the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(B)(i) did not apply to preclude the termination of her parental rights. " 'At a permanency plan hearing, the court may order one of three alternatives: adoption, guardianship or long-term foster care. [Citation.] If the dependent child is adoptable, there is a strong preference for adoption over the alternative permanency plans.' [Citation.] 'Once the court determines the child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1). [Citations.] Section 366.26, subdivision (c)(1)(B)(i), provides an exception to termination of parental rights when "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." ' " (In re G.B. (2014) 227 Cal.App.4th 1147, 1165.)
This court has interpreted "the 'benefit from continuing the [parent-child] relationship' exception to mean 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. . . . 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." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.).)
"A parent asserting the parental benefit exception has the burden of establishing that exception by a preponderance of the evidence. [Citation.] It is not enough to show that the parent and child have a friendly and loving relationship. [Citation.] ' "Interaction between [a] natural parent and child will always confer some incidental benefit to the child . . . ." ' [Citation.] For the exception to apply, 'a parental relationship is necessary[.]' [Citation.] ' "While friendships are important, a child needs at least one parent. Where a biological parent . . . is incapable of functioning in that role, the child should be given every opportunity to bond with an individual who will assume the role of a parent." ' " (In re J.C. (2014) 226 Cal.App.4th 503, 529 (J.C.).)
Appellate courts have applied different standards of review to the parent-child beneficial relationship exception. (See In re K.P. (2012) 203 Cal.App.4th 614, 621.) Most courts initially applied the substantial evidence standard. (Ibid.; J.C., supra, 226 Cal.App.4th at pp. 530-531.) However, this court has applied a "hybrid standard," under which "[w]e apply the substantial evidence standard of review to the factual issue of the existence of a beneficial parental relationship, and the abuse of discretion standard to the determination of whether there is a compelling reason for finding that termination would be detrimental to the child." (In re Anthony B. (2015) 239 Cal.App.4th 389, 395.)
Under the hybrid standard, we view the juvenile court's determination of whether a beneficial parental relationship exists as a factual finding that we review for substantial evidence. "On review of the sufficiency of the evidence, we presume in favor of the order, considering the evidence 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.) "Unless the undisputed facts established the existence of a beneficial parental . . . relationship, a substantial evidence challenge to this component of the juvenile court's determination cannot succeed." (Bailey J., supra, 189 Cal.App.4th at p. 1314.)
"The second determination in the exception analysis is whether the existence of that relationship or other specified statutory circumstance constitutes 'a "compelling reason for determining that termination would be detrimental" ' to the child. [Citation.] This " ' "quintessentially discretionary decision, which calls for the juvenile court to determine the importance of the relationship in terms of the detrimental impact that its severance can be expected to have on the child and to weigh that against the benefit to the child of adoption," is appropriately reviewed under the deferential abuse of discretion standard.' " (J.C., supra, 226 Cal.App.4th at pp. 530-531.)
We conclude Mother has not met her burden of establishing that the beneficial relationship exception to termination of parental rights applies. The beneficial relationship exception requires the parent to have "maintained regular visitation and contact with the child . . . ." (§ 366.26, subd. (c)(1)(B)(i).) In its oral ruling, the juvenile court found Mother had not satisfied the visitation prong of the exception because she had visited the children only four times since February 2019. The uncontroverted evidence that Mother had only four one-hour visits in 2019 before the section 366.26 hearing (two in May and two in July) is itself sufficient to support the court's finding that Mother had not established the visitation prong. When Dennis offered to expand her visits from one to two hours the month before the section 366.26 hearing, Mother declined, stating one hour was enough because she was on medication. In addition, the record showed Mother's visitation had been sporadic throughout the case before her four visits in May and July of 2019.
Substantial evidence also supports court's findings that there was not a beneficial parent-child relationship between Mother and the children. The children appeared to be more bonded with the grandmother and aunt than with Mother when all three visited the children. When Dennis told D.D. that Mother would be the only relative attending a visit, D.D. expressed disappointment and said he wanted his grandmother to be there. A.D. preferred to hold hands with Dennis instead of Mother when the three of them walked together to a restroom. Dennis's assessment was that there did not appear to be a significant parent-child relationship between Mother and the children due to limited contact. She reported that the children did not ask about Mother when they spoke with Dennis and they did not look to Mother to meet their needs. The court was entitled to find Dennis's opinion credible and give great weight to her assessment. (In re Casey D. (1999) 70 Cal.App.4th 38, 53.)
As noted, Mother visited the children only four times after an extended period of no visitation. D.D., who was almost seven years old at the time of the section 366.26 hearing, had not been in Mother's custody since he was three years old, and A.D. had never been in her custody. At their young ages, it would have been nearly impossible for Mother to have developed a beneficial parental relationship with the children within the meaning of the statute during four one-hour supervised visits. Mother notes the children were bonded with their aunt and grandmother, and that "this was one big happy family consisting of Mother, her children, grandmother, and the aunt, with all relatives spending time together." Mother argues that "[t]he issue was merely continuing the beneficial parent-child relationship the children had with their mother, and the maternal relatives." However, the fact that the children had developed significant bonds with other maternal relatives is immaterial to the issue of whether a beneficial parent-child relationship existed between the children and Mother. As the juvenile court noted in announcing its decision to terminate parental rights, "there is no relative bond exception to the legislative preference for adoption."
The court added that "to the extent that the court is able to consider the bonds with the maternal family, unfortunately . . . the children's time spent in the care of maternal relatives . . . was a time in their lives marked by disruption and instability, allegations of domestic violence and even claims of sexual abuse. [¶] It was during that time that [D.D.] began having his problems with behavior at school, with missed school, with low academic performance, and not being in therapy. And now he and [A.D.] have stability, they're connected with the mental health services they need, they are connected with the educational support that they need, and they are thriving." --------
The court noted at the hearing that to overcome the preference for adoption, the parent must establish that "severing the natural parent/child relationship would deprive the child of a substantive positive emotional attachment such that the child would be greatly harmed[.]" (Italics added.) The court stated that "it's only in extraordinary cases that preservation of a parent's rights will prevail over the Legislature's preference for adoptive placement[.]" The court then observed, "Here it is clear that the children enjoy the time that they spend with their mother and certainly [D.D.] expresses missing his father, but those relationships are not parent/child relationships sufficient to outweigh the legislative preference for the stability of adoption."
In making that finding, the court impliedly and reasonably found that termination of Mother's parental rights would not cause the children to be greatly harmed by the loss of substantial, positive emotional attachments with Mother. The court's findings are supported by Dennis's report for the section 366.26 hearing, in which she noted the children's current foster placement was a great fit for their needs. The children had shown a lot of improvement in their social and behavioral development, and the stability of their foster placement had benefitted their development and well-being. D.D.'s therapist had also seen much improvement in D.D. in his current foster home. The children reported that they liked the foster mother and liked being in her home.
Although Mother enjoyed positive interaction with the children during her supervised visitation, substantial evidence supports the court's findings that the children would not be greatly harmed by severance of their relationship with Mother, and that it would be in their best interests to remain in the custody and care of their foster parents. Accordingly, the court did not abuse its discretion in determining that Mother did not have a beneficial parent-child relationship with the children within the meaning of section 366.26, subdivision (c)(1)(B)(i) that outweighed the benefits of adoption and precluded the termination of her parental rights.
DISPOSITION
The August 27, 2019 order denying Mother's request to continue the section 366.26 hearing and order terminating parental rights and selecting adoption as the children's permanent plan are affirmed.
HUFFMAN, Acting P. J. WE CONCUR: HALLER, J. AARON, J.