Filed 6/27/14 In re Brianna S. CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



In re Brianna S. et al., Persons Coming
Under the Juvenile Court Law.
                                                                 D064984
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
                                                                 (Super. Ct. No. NJ14451A-B)
         Plaintiff and Respondent,

         v.

OLGA S. et al.,
    Defendants and Appellants.

         APPEAL from a judgment of the Superior Court of San Diego County, Michael J.

Imhoff, Judge. Affirmed.



         Christopher R. Booth, under appointment by the Court of Appeal, for Defendant

and Appellant Olga S.

         Law Offices of Marc E. Mitzner, Marc E. Mitzner; and David W. Paulson for

Defendant and Appellant Robert S.
          Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County

Counsel, Daniela Davidian and Lisa Maldonado, Deputy County Counsel for Plaintiff

and Respondent.

          Ryan M. McGlinn for Respondent Emily and Ted S.

          Dependency Legal Group of San Diego, Tilisha Martin, Carolyn Levenberg and

Jessica B. Smith for the Minors.

                                       INTRODUCTION

          Robert S. (father) and Olga S. (mother) appeal a judgment terminating their

parental rights to their two minor children and ordering adoption as the children's

permanent plan. Father contends the juvenile court prejudicially erred by failing to grant

his request to continue the selection and implement hearing because it deprived him of an

opportunity to present evidence establishing the application of the beneficial parent-child

relationship exception to adoption. (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i).)1

Mother joins in this contention and further contends we must reverse the judgment

terminating her parental rights if we reverse the judgment terminating father's parental

rights.

          We conclude the court did not abuse its discretion in denying father's continuance

request. We, therefore, affirm the judgment.




1         Further statutory references are also to the Welfare and Institutions Code.
                                                2
                                     BACKGROUND

       Father has a lengthy history of alcohol abuse, which has resulted in a continual

cycle of inpatient treatment and relapse. When the minors were seven and two, they

became wards of the court after father relapsed and they had no one to care for them. At

the time, mother was incarcerated in another county awaiting sentencing for multiple

offenses. She was later sentenced to three and a half years in state prison and then

paroled to a federal detention facility pending deportation proceedings.

       The court placed the minors in the care of nonrelative extended family members,

to whom the court subsequently granted de facto parent status. Although father received

reunification services and visitation, he continued to struggle with alcoholism and

relapsed multiple times. The quality and quantity of his visits with the minors cycled up

and down with the state of his sobriety. When he was sober, he had regular telephone

contacts and unsupervised visits. When he relapsed, he had sporadic telephone contacts

and supervised visits.

       The quality and quantity of father's telephone contacts and visits were also harmed

by his persistent solicitation of verbal and physical expressions of affection from the

minors, which they were uncomfortable giving him. Approximately a year into the

reunification process, the minors began strongly resisting the telephone contacts and

visits. When visits occurred, the older minor treated father disdainfully and the younger

minor exhibited physical aggression, disrespect, and defiance. The visits provoked

anxiety and anger in the older minor and behavioral problems in the younger minor.



                                             3
        At the 18-month review hearing, the court discontinued father's reunification

services and scheduled a selection and implementation hearing. After the reunification

services ended, the minors were permitted to choose whether to visit with father and they

declined further visits. By the selection and implementation hearing date, the older minor

had not visited with father for approximately six months and the younger minor had not

visited with father for approximately five months. The younger minor spoke badly about

father and the older minor did not wish to speak about him at all. On the other hand, the

older minor spoke a great deal about the de facto parents and appeared very bonded to

them.

        Also by then, the minors did not count on father to meet their needs. According to

the San Diego County Health and Human Services Agency's (the Agency) social worker,

their relationship with their father was "the type of relationship one would have with an

extended family member with whom they have had problems . . . ."

        Regarding their potential adoption, the older minor expressly desired to be adopted

by the de facto parents and did not desire to have any further contact with either of her

natural parents. When she lived with her natural parents, she felt they were the children

and she was the parent. She wanted the opportunity to be a child and to no longer have to

worry about taking care of them. The younger minor was too young to fully understand

the concept of adoption, but regarded the de facto parents as her parents and desired for

them to remain her parents.

        At the outset of the selection and implementation hearing, mother's counsel

requested the court continue the hearing. Father's counsel joined in the request, stating

                                             4
father was unable to attend the hearing "for health reasons." The agency's counsel,

minors' counsel and de facto parents' counsel all objected to or opposed the continuance

request. After considering the statutory criteria, the court denied the request. As to

father, the court explained, "[T]his is a terribly difficult time for him, but he did receive

notice and there's no further information other than perhaps difficulty in the emotions for

him not being present. And given the age of the children, they do deserve a decision."

       The hearing proceeded and father's counsel remarked during his opening

statement, "[I]t is emotional for [father] and he has struggled for a long time, both with

his addiction and with . . . his feelings about this process, and he does want to be a father

to these children and his heart is still as the father no matter how it turns out today . . . ."

Later in the hearing, when given an opportunity to cross-examine the Agency's social

worker about any of the information in the Agency's reports admitted into evidence,

father's counsel indicated he had no questions for her. Then, when given an opportunity

to present affirmative evidence on father's behalf, father's counsel stated, "I have no

evidence or witnesses to present today, so father rests." Later, during his closing

arguments, father's counsel argued for a permanent plan of guardianship rather than

adoption and remarked, "I would love . . . to have something today to give the Court that

would speak to the preservation of [father's] parental rights and to have him here today to

testify on his own behalf. . . . I want these children to have a stable life as much as

anybody else does. And absent a witness to give you today to mitigate your position on

the permanency of placement, whatever the Court thinks is in the best interest of these

children we would certainly ascend [sic] to . . . ."

                                                5
       At the conclusion of the hearing, the court terminated father and mother's parental

rights. In reaching its decision, the court found by clear and convincing evidence the

minors were likely to be adoptable, they were adopted, adoption was in their best interest,

and termination of mother and father's parental rights would not be detrimental to them

under any of the provisions in section 366.26, subdivision (c)(1)(B)(i) through (vi).

       On the last point, the court expounded, "The father has had regular and consistent

contact and visits with the [minors] at least up until most recently when at their request

and with the input from their therapists those visits began to end to the point where they

did not occur. [The minors] do recognize their father as their father. The father has

always expressed his sincere concern and love for each of the [minors]. But I think the

sad reality in this case is that both mother and father have been burdened by their own

personal challenges and travails that has led them to be significantly, significantly absent

from the [minors'] lives for prolonged periods of time. [¶] The [minors] reacted very

negatively to those life experiences. They were put in an environment that was healthy

for them that they grew to trust, and because of that, the natural progression of

attachment occurred. And it's a process that we all recognize. It's a process that we must

encourage both parents had wished to takehave that opportunity with the [minors] but

again they were simply absent. [¶] So at this point in time the Court cannot find that it

would be in [the minors'] best interest to promote or facilitate a father-child relationship

and does find that whatever benefit that may have been conferred upon the [minors] with

whatever contact they had with their father is greatly outweighed by their need for

stability and placement which can obviously be achieved through adoptive placement."
                                              6
                                      DISCUSSION

       Father contends the court prejudicially erred by failing to grant his request to

continue the selection and implementation hearing because it deprived him of an

opportunity to present evidence supporting the beneficial parent-child relationship

exception to adoption in section 366.26, subd. (c)(1)(B)(i). We disagree.

       A juvenile court may continue a hearing at a parent's request, provided the

continuance is not contrary to the minor's interests. (§ 352, subd. (a).) "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." (Ibid.)

Furthermore, "[c]ontinuances 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 the continuance." (Ibid.) Courts have interpreted the good

cause requirement to be an express discouragement of continuances. (In re Elijah V.

(2005) 127 Cal.App.4th 576, 585.) "The court's denial of a request for a continuance will

not be overturned on appeal absent an abuse of discretion." (Ibid.; accord, In re Giovanni

F. (2010) 184 Cal.App.4th 594, 604-605.)

       Father has not established an abuse of discretion in this case because he has not

established both that he had good cause for a continuance and that a continuance would

not have been contrary to the minors' interests. Father requested the continuance for




                                             7
unspecified health reasons.2 Father did not provide proof of or elaborate on these

reasons even after the court indicated the lack of elaboration weighed against granting a

continuance. Father also did not indicate how much time he would need to resolve his

health concerns. More importantly, he did not argue or attempt to demonstrate the

continuance would not have harmed the minors. As the court noted and the record amply

demonstrates, the minors suffered considerable angst because of father's failed

reunification efforts. They desired and had waited a long time for permanence and

stability in their lives. Given the substantial weight the court had to accord their interests

and the general disfavor of continuances in juvenile dependency cases, we have no

trouble concluding the court properly exercised its discretion to deny father's continuance

request.

       Even if the court had abused its discretion, father has not shown the error

prejudiced him. At the selection and implementation hearing, the court must terminate

parental rights and free a child for adoption if it determines by clear and convincing

evidence the child is adoptable within a reasonable time, and the parents have not shown

termination of parental rights would be detrimental to the child under any of the statutory

exceptions to adoption found in section 366.26, subdivision (c)(1)(B)(i) through (vi). (In

re C.F. (2011) 193 Cal.App.4th 549, 553 (C.F.).) The beneficial parent-child relationship

exception applies if the parent proves termination of parental rights would be detrimental

to the child because the "parents have maintained regular visitation and contact with the


2       He states in his opening brief he was in the hospital; however, there is no evidence
of his hospitalization in the appellate record.
                                              8
child and the child would benefit from continuing the relationship." (§ 366.26, subd.

(c)(1)(B)(i).)

       "This court has interpreted the phrase 'benefit from continuing the relationship' in

section 366.26, subdivision (c)(1)(B)(i) to refer to a 'parent-child' relationship that

'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.'

[Citation.]

       "A parent must show more than frequent and loving contact or pleasant visits.

[Citation.] 'Interaction between natural parent and child will always confer some

incidental benefit to the child. . . . The relationship arises from day-to-day interaction,

companionship and shared experiences.' [Citation.] The parent must show he or she

occupies a parental role in the child's life, resulting in a significant, positive, emotional

attachment between child and parent. [Citations.] Further, to establish the [beneficial

parent-child relationship] exception the parent must show the child would suffer

detriment if his or her relationship with the parent were terminated." (C.F., supra, 193

Cal.App.4th at p. 555, fn. omitted.)



                                               9
       Here, father contends that had the court granted him a continuance, he "would

have presented evidence of his efforts to continue without compromise the visitation and

telephonic communication he previously enjoyed with both minor children," he "would

have demonstrated to the court the degree of endearment and bonding he previously

enjoyed with the minor children," and he "would have presented evidence of the affection

the minor children had with him, even calling him 'Dad' and 'Father.' " However, he does

not explain how such evidence would have altered the outcome.

       The court acknowledged father's love for and efforts to reunify with the minors.

The court also acknowledged the minors knew father as their father. Nonetheless, by the

time the selection and implementation hearing occurred, the minors had chosen not to

visit or have telephone contacts with father for many months and expressed no desire to

have any visits or contacts with him in the future. Well before the visits and contacts

ceased, minors viewed them negatively, resisted having them, and behaved poorly when

they occurred. Father did not cross-examine the Agency's witness or otherwise contest

this adverse evidence below nor does he indicate on appeal he would have been able to

contest this evidence had the court given him a continuance. Whatever his relationship

might have been with his children in the past, it was neither parental nor positive by the

time the selection and implementation hearing occurred. Accordingly, we conclude it is

not reasonably probable the outcome of the selection and implementation hearing would

have been more favorable to father absent the claimed error. (People v. Watson (1956)

46 Cal.2d 818, 836 (Watson); In re Celine R. (2003) 31 Cal.4th 45, 59-60 [applying the

Watson harmless error standard to juvenile dependency matters].)

                                            10
                                 DISPOSITION

     The judgment is affirmed.



                                               MCCONNELL, P. J.

WE CONCUR:


NARES, J.


HALLER, J.




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