IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta)
November 4, 2011
IN RE A.L., A PERSON COMING UNDER THE JUVENILE COURT LAW. SHASTA COUNTY HEALTH AND HUMAN SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
B.L., DEFENDANT AND APPELLANT.
(Super. Ct. No. 10JVSQ2856401)
The opinion of the court was delivered by: Nicholson , Acting P. J.
In re A.L. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
B.L. (hereafter, mother), mother of minor A.L., appeals from the juvenile court's orders terminating her parental rights and freeing the minor for adoption. (Welf. & Inst. Code, §§ 366.26, 395; further undesignated statutory references are to the Welfare and Institutions Code.) She contends the juvenile court abused its discretion and violated her due process rights when it denied her request for a continuance of the section 366.26 hearing. We affirm.
Minor A.L. (hereafter, the minor) was detained at birth. Shasta County Health and Human Services Agency (the Agency) filed a section 300 petition on August 4, 2010, alleging, pursuant to subdivision (b), that the minor was at substantial risk of physical harm or illness as a result of the parents' failure or inability to supervise, protect, and provide regular care due to their mental illness, developmental disability, or substance abuse. The petition also alleged, pursuant to section 300, subdivision (j), that the minor's two older siblings had been abused or neglected due to parents' developmental disabilities, the hazardous condition of the home, the parents' inability to provide sufficient food and formula, and father's uncontrolled anger and inappropriate discipline of one of the older siblings. The parents had been diagnosed with mild mental retardation, had received intensive in-home support services for the minor's siblings, had received services from Far Northern Regional Center, and had difficulty meeting their own hygiene and other basic needs. They had not resolved the problems that resulted in the removal of the minor's siblings and their parental rights had been terminated as to those siblings. The parents had a history of evictions due to the conditions inside the home and were currently being evicted from their home due to its filthy condition and flea and cockroach infestation.
Father died unexpectedly from a cardiac arrest prior to the jurisdictional and dispositional hearing. The combined hearing was held on November 12, 2010. The juvenile court sustained the allegations in the petition, declared the minor a dependent child of the court, bypassed mother for services, and set a section 366.26 hearing.
The minor was placed in the prospective adoptive family who had adopted his two older siblings. Mother was provided one hour per month of visitation. Mother visited regularly. Visits were supervised by a family worker employed by the Agency and a Far Northern Regional Center parenting instructor provided instruction to mother during the visits. Mother was happy to see the minor and focused on him during visits, but "her ability to read the child's body language and nonverbal cues is limited and has not improved over time." She was unable to demonstrate "a marked improvement in parenting skills," even though she had received specialized parenting instruction, and was unable "appropriately [to] respond and attend to the child's needs during visits."
The minor was thriving in the prospective adoptive home and had "demonstrated a secure attachment to his prospective adoptive parents." He responded readily to his prospective adoptive mother, reached out for her, and showed affection to her. He had been with his prospective adoptive parents since three days after his birth and seeks them out for comfort and affection.
On March 11, 2011, mother requested and received a continuance of the section 366.26 hearing in order to prepare to present evidence on her behalf.
On April 1, 2011, mother requested a second continuance. Mother's counsel stated that he had intended to put mother and her ILP (Independent Living Provider) worker on the stand, but the ILP worker had a back injury and would be unavailable for approximately a month. The relevance of the ILP worker's testimony, he explained, was that she had been with mother for the past seven or eight months and would testify as to the ability of mother to work with the minor and to bond with the minor. He would be presenting this evidence to the issue of whether adoption was appropriate. When probed further on the relevance by the court, counsel stated he would argue that mother has a close bond with the minor and that guardianship is the appropriate plan. The court asked how the ILP worker would be able to establish the bond and counsel replied, "She's present during visits. She observes the relationship between the child and the parent." Counsel for the minor then stated that the ILP worker is a layperson in that regard, not an expert, and that he would object to such testimony as lacking foundation. Mother's counsel submitted on the matter and the juvenile court denied the request to continue the hearing.
Mother testified briefly at the hearing. She testified she was currently visiting the minor once per month. During visits she would play on the floor with him, change his diaper, read to him, and fix him a bottle. The minor was happy to see her -- smiling and looking around the room and at everyone present. Mother's counsel argued that the beneficial relationship exception to adoption applied, due to the fact that mother and the minor have a good relationship during visits and have a bond.
The juvenile court terminated mother's parental rights and ordered a permanent plan of adoption for the minor.
Mother contends the juvenile court committed reversible error in denying her second request for a continuance of the section 366.26 hearing. We reject her contention.
We review the denial of a continuance for an abuse of discretion. (In re Karla C. (2003) 113 Cal.App.4th 166, 180.) In dependency cases, continuances shall be granted only upon a showing of good cause (§ 352, subd. (a)) and the parent has the burden to establish that good cause. (Renee S. v. Superior Court (1999) 76 Cal.App.4th 187, 196.) Here, there was no showing of good cause.
When a continuance is sought to secure the attendance of a witness, the moving party must establish that she "exercised due diligence to secure the witness's attendance, that the witness's expected testimony was material and not cumulative, that the testimony could be obtained within a reasonable time, and that the facts to which the witness would testify could not otherwise be proven.' [Citation.] The court considers '"not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion."' [Citation.]" (People v. Jenkins (2000) 22 Cal.4th 900, 1037.) The evidence proffered here did not justify a continuance. (Ibid.)
At the section 366.26 hearing, the juvenile court may find termination of parental rights would be detrimental to the minors based on various circumstances. (§ 366.26, subds. (c)(1)(A)-(D).) Among these circumstances is that "termination would be detrimental to the child due to [the fact] [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); cf. In re Jesse B. (1992) 8 Cal.App.4th 845, 848-849.) The burden is on the parent to make such a showing. (In re Cristella C. (1992) 6 Cal.App.4th 1363, 1372-1373.)
The phrase "benefit from continuing the relationship" found in the statute means that "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. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated. [¶] . . . The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) A preference for permanent placements, which is afforded by adoption, is a vital component of the statutory scheme. (Cf. In re Mark V. (1986) 177 Cal.App.3d 754, 760-762.)
Here, the social worker's report contained information about the minor's bond with the prospective adoptive family where he had been placed since birth and where he lived with his two biological siblings who had already been adopted by these parents. The minor was thriving in his placement and the family was committed to adopting him. Mother failed to show the ILP worker's testimony was material because even as proffered, the ILP worker's testimony was insufficient even to arguably establish the beneficial relationship exception. Mother must show minor would be greatly harmed by the termination of her parental rights -- that her relationship with the minor promotes his well-being to such a degree as to outweigh the well-being he would gain in his new permanent home. She did not proffer such evidence from the unavailable witness, nor did she show that witness would be qualified to testify in that regard.
Additionally, mother failed to establish that the ILP worker's testimony was necessary as the only way to prove the proffered facts. According to her proffer, the ILP worker would be able to establish the alleged bond because "[s]he's present during visits" and "observes the relationship between the child and the parent." But as we have recounted, the mother's visits were supervised by an Agency family worker and assisted by a Far Northern Regional Center parenting instructor. Mother failed to establish that either of these individuals could provide the observational evidence she sought to present, or that the ILP worker had expertise beyond that of the other individuals present during the visits.
Accordingly, as mother failed to show the ILP worker's testimony was either material or necessary, she failed to show good cause for the continuance. The juvenile court acted well within its discretion in denying mother's request to continue the section 366.26 hearing. There was no abuse of discretion.
The orders of the juvenile court are affirmed.
We concur: ROBIE , J. HOCH , J.
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