Opinion
E068796
04-10-2018
In re J.K. et al., Persons Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. C.P., Defendant and Appellant.
Kelly L. Pexton for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman, and Julie Koons Jarvi, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.No. SWJ1200916) OPINION APPEAL from the Superior Court of Riverside County. Timothy F. Freer, Judge. Affirmed. Kelly L. Pexton for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman, and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
I
INTRODUCTION
C.P. (Mother) has a history with abusing drugs, issues with domestic violence, and an extensive history with Child Protective Services, resulting in the removal of her three children. Mother appeals from the juvenile court's order terminating her parental rights under Welfare and Institutions Code section 366.26. On appeal, Mother argues: (1) the juvenile court erred in finding the children were adoptable; (2) the court erred in failing to find statutory exceptions to termination of parental rights; (3) the court abused its discretion by ordering adoption as the permanent plan rather than legal guardianship; (4) the court abused its discretion in failing to grant a continuance to allow the paternal grandmother time to retain counsel to file a guardianship petition; (5) her appointed appellate counsel was ineffective for failing to recognize any of the aforementioned grounds for appeal; (6) the juvenile court abused its discretion when it made a biased and prejudicial statement prior to denying her request for guardianship; and (7) her due process rights were violated based on all of the above-referenced arguments. For the reasons explained below, we reject Mother's contentions and affirm the judgment.
All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
Mother has also filed a writ of habeas corpus petition, case No. E069358, asserting ineffective assistance of trial counsel. Mother's habeas corpus petition will be considered with this appeal for the sole purpose of determining whether an order to show cause should issue. The habeas corpus petition is disposed of by a separate order.
II
FACTUAL AND PROCEDURAL BACKGROUND
The factual background up until Mother's reunification services were denied has been taken from this court's prior opinion in case No. E067067. (C.P. v. Superior Court (Jan. 18, 2017, E067067) [nonpub. opn.].)
On June 22, 2016, the Riverside County Department of Public Social Services (DPSS) filed a section 300 petition on behalf of the three children. S.W. was four years old at the time, J.K. was two years old, and C.K. was 17 months old. The petition alleged that the children came within the provisions of section 300, subdivision (b) (failure to protect), and that S.W. also came within subdivision (g) (no provision for support). Specifically, the petition alleged that Mother had a history of substance abuse, that the father of J.K. and C.K. (Father), also had a substance abuse history. The petition further alleged that Mother and Father (the parents) had a dependency case history, and that they were unable to provide the children with a stable and suitable living environment. The petition additionally alleged that S.W.'s father was currently incarcerated. An amended petition filed on June 29, 2016, contained the same allegations.
Father is not a party to this appeal.
S.W.'s father is also not a party to this appeal.
The social worker filed a detention report and stated that DPSS received a referral on June 1, 2016, alleging general neglect and domestic violence. It was reported that domestic violence was occurring inside and outside of the home. It was also reported that the parents yelled and cursed at the children. Furthermore, it was reported that the family was evicted from their apartment and were homeless. They had been staying at their neighbor's apartment for a week. The children were never dressed properly and appeared to be dirty. The social worker interviewed Mother, who confirmed that the family was currently homeless, and that she and her husband were unemployed. Mother admitted she previously had a methamphetamine addiction and said she was currently going to outpatient services at MFI Recovery. However, Mother had not been to MFI Recovery in three weeks. She refused to drug test for DPSS and said that people should "stay out of their business."
The social worker and a police officer went to the apartment to see the children. They were lying in bed with dirty feet and faces and dirty marks on their bodies. C.K. had a dirty diaper on with stains on her clothing, which appeared to be from a diaper not being changed for a long time. The social worker was concerned about the children because of the domestic violence and drug abuse that had been going on in the home for over four years. The police had been called to their residence multiple times for welfare checks. The parents made it very clear that they would not drug test or cooperate with DPSS. Furthermore, the parents had an extensive history with Child Protective Services. The drug abuse was addressed, and cases were closed twice in the past three years. However, in light of the recent investigation, the social worker opined that the parents were apparently not following the prior recommendations of DPSS.
The court held a detention hearing on June 30, 2016, and detained the children in foster care.
The social worker filed a jurisdiction/disposition report on July 27, 2016, recommending that the court sustain the petition and deny reunification services for Mother, pursuant to section 361.5, subdivision (b)(13). The social worker reported on Mother's dependency history. In December 2012, S.W. was placed into protective custody due to substantiated allegations of neglect and caretaker absence/incapacity. When S.W. was initially detained, Mother's whereabouts were unknown. Upon Mother's arrival at the DPSS office, she admitted she was under the influence of methamphetamine. The court declared S.W. a dependent in February 2013, and Mother was offered services. S.W. was placed with her in May 2013, after she successfully completed an inpatient substance abuse program. The dependency was terminated in August 2013, with Mother receiving sole custody of S.W.
On April 16, 2014, S.W. and J.K. were detained when J.K. was found to be under the influence of methamphetamine and amphetamine. The parents were unable to provide an explanation as to how the child had drugs in her system. However, Mother admitted to last using methamphetamine on April 11, 2014, and Father admitted to using on April 15, 2014. S.W. and J.K. were declared dependents, and the court placed them in the parents' custody under a family maintenance plan. The dependency was terminated in July 2015. The court granted Mother sole legal and physical custody of S.W.
The social worker further reported that Mother had a criminal history which included misdemeanor convictions from May 2010 for driving with a license suspended/revoked for driving under the influence (Veh. Code, § 14601.2, subd. (a)) and knowingly driving with a suspended driver's license (Veh. Code, § 14601.1, subd. (a)). Mother also had a misdemeanor petty theft conviction (Pen. Code, § 490.5).
The social worker recommended that reunification services not be offered to Mother (and Father), citing the parents' two previous dependency cases. She also reported that Mother participated in a drug test on July 6, 2016, and it came back positive for methamphetamine and amphetamine. Furthermore, when the parents went to Hemet Center for Change on July 20, 2016, they arrived under the influence of drugs; they admitted to using the day before. The social worker opined that Mother's behavior was consistent with "heavy drug use or severe mental health," as she was irritable and could not sit still, and she was argumentative, accusatory, and aggressive. The social worker further noted that Mother "exhibit[ed] pressurize[d] speech" and had difficulty staying focused during conversations. The parents continuously contacted the social worker to ask for referrals to treatment programs in an effort to appear that they wanted to be in a program. However, the social worker said they had made no real effort to participate in one. The parents were aware that most programs required them to have been clean for one to five days before entering the program; however, it did not appear that they had discontinued their drug use. The social worker further reported that Mother had resisted or failed to comply with the available and accessible treatment offered at least two times. Mother made several excuses and insinuated that it was the social worker's responsibility to get her into a program.
The social worker filed an addendum report on August 26, 2016, and reported that Mother was arrested on July 30, 2016, for receiving a stolen vehicle. (Pen. Code, § 496d.) She pled guilty and was placed on probation for three years. The social worker further reported that Mother had been participating in saliva drug screens prior to visits with the children. On July 19, 2016, Mother tested positive for methamphetamine. She tested negative on July 26 and 29, and August 10 and 12. However, on August 19, 2016, she tested positive for methamphetamine and amphetamine. The social worker noted that the results of the saliva test were sometimes questionable, but that the parents presented themselves as being under the influence, demonstrating slurred speech, and erratic and unpredictable behaviors. On July 25, 2016, Mother had a urine screen test done, and she tested positive for methamphetamine and amphetamine.
In another addendum report filed on October 14, 2016, the social worker reported that Mother had begun to work toward sobriety by entering an inpatient treatment program on August 29, 2016. Nonetheless, the social worker's recommendation remained the same, as she was still concerned that the children had been removed from Mother's custody on three separate occasions.
The court held a contested jurisdiction/disposition hearing on October 19, 2016. That same day, the social worker filed a second amended petition, which deleted the allegation that the parents were unable to provide the children with a stable and suitable living environment, and added the allegation that Father was currently incarcerated. The court sustained the petition, declared the children dependents of the court, removed them from the parents' custody, and placed them in the care of DPSS. The court found that Mother was a person described in section 361.5, subdivision (b)(13), and it denied reunification services, as they were not in the best interest of the children. The court then set a section 366.26 hearing for February 16, 2017.
On November 17, 2016, Mother filed a writ petition, challenging the juvenile court's denial of reunification services. On January 18, 2017, in an unpublished opinion, this court denied Mother's writ petition. (C.P. v. Superior Court, supra, E067067.)
In a section 366.26 report, the social worker reported that Mother was scheduled for weekly visits with the children and that Mother was inconsistent with her visits and would often cancel visits at the last minute. For one visit, Mother, who was residing in a residential treatment program in San Diego at the time, cancelled a visit when the children were already halfway to San Diego to attend the visit. On February 16, 2017, Mother's visits were reduced to twice a month with authorization to increase as deemed appropriate. Mother was required to drug test prior to the visits. In April 2017, Mother failed to appear for drug testing and cancelled a visit.
On December 16, 2016, Mother was discharged from her treatment program due to inappropriate sexual contact. Mother enrolled in a Family Preservation Program on January 9, 2017. She tested positive for amphetamines on January 9, 2017, and she failed to show up for a urinalysis drug test on January 24, 2017. Mother failed to make contact with the program since intake on January 20, 2017. The social worker was concerned that Mother had been participating in a substance abuse program for approximately four months and relapsed. The social worker also noted that Mother had a history of enrolling in programs and not completing them and that the children, who were young with extensive behavior concerns, required stability and increased supervision.
On December 20, 2016, J.K. and C.K.'s paternal grandmother was approved. However, there were concerns about placing all three children with her. The paternal grandmother resided in a senior citizen community and would have to relocate if the children were placed in her care. The paternal grandmother had not attempted to contact the social worker to discuss visitation or placement of the children in her care.
In an addendum report dated June 21, 2017, the social worker reported that the paternal grandmother eventually made contact with DPSS in February 2017. The paternal grandmother stated she was willing to adopt all three children and that she had stopped visiting the children once she discovered the foster mother was driving the children to visit Mother in San Diego. When the social worker asked the paternal grandmother her thoughts about visiting the children, separate from Mother to develop a rapport with the children, the paternal grandmother supported the idea, but stated she did not have a valid driver's license and relied on public transportation. The paternal grandmother resided in a senior community and was the sole caregiver for her mother and her mother's husband. The paternal grandmother acknowledged that her mother was showing early signs of dementia. When asked how she took her mother to doctor's appointments as she did not have a driver's license, the paternal grandmother reported that her mother allows her to take her car. The paternal grandmother spontaneously shared that she was sober and taking medication prescribed by her doctor. Initially, she did not share with the social worker what medication she took, but later disclosed that she took gabapentin three times a day and two different types of morphine daily. She also took blood thinners, cholesterol medication, high blood pressure tablets, calcium tablets, medication for acid reflux and for depression, and other undisclosed medication. The paternal grandmother received vitamin B injections every month.
The social worker also noted that the paternal grandmother had only attended one visit with the children while she was assigned to the case. DPSS attempted to contact the paternal grandmother via telephone three times in March 2017, with no avail, to inform the paternal grandmother of a scheduled visit. On April 6, 2017, DPSS mailed a letter to the paternal grandmother's home to inform her that DPSS was unable to assess her ability and willingness to care for the children as the visit was cancelled due to no response and that a prospective adoptive family had been identified for the children. On April 10, 2017, the paternal grandmother made telephone contact with DPSS, and claimed DPSS was " 'lying' " and that she had made multiple attempts to contact the social worker. When the social worker asked the paternal grandmother to provide the social worker with dates she had visited with the children, the paternal grandmother stated she could not remember " 'things like that.' "
The paternal grandmother participated in an unsupervised visit with the children on April 20, 2017. The children did not appear to be bonded with the paternal grandmother and the prospective adoptive father remained in the visit to assist the paternal grandmother with the children's behaviors. While the visit went well, the children looked more to the prospective adoptive father for guidance. Furthermore, the paternal grandmother informed the social worker that it would probably kill her to care for the three children. As a result, DPSS eventually made a decision not to place the children with the paternal grandmother.
Mother was on house arrest in March 2017, and was subsequently on work release. Mother relapsed in March 2017, and tested positive for methamphetamine. On March 23, 2017, the social worker received a fax from the Family Preservation Program indicating that Mother was terminated from the program due to being in noncompliance. Mother enrolled in the Riverside County Substance Abuse Program on May 30, 2017.
After several visits with a prospective adoptive family, the children began residing with the prospective adoptive parents on April 13, 2017. The children were officially placed into the prospective adoptive home on April 20, 2017. Due to the location of the children's prospective adoptive home, the juvenile court ordered that in-person visits with Mother be suspended and that contact include Skype only. The children had adjusted well and were learning new routines in their prospective adoptive home. All three children appeared to be happy and comfortable in the home, and they went to the prospective adoptive parents for comfort, support, and guidance. The prospective adoptive parents did not want to consider any other permanent plan because they were committed to providing the children with a permanent home through adoption. The children were very secure in their placement, and appeared comfortable with the prospective adoptive parents after only having met and visited with them for a few days. The children referred to the prospective adoptive parents as " 'mom' " and " 'dad.' " S.W. and J.K. both stated they wanted to be adopted, and expressed that they were happy in the home and felt safe. C.K. was too young to understand the concept of adoption.
The section 366.26 hearing was held on June 21, 2017. At that time, Mother's counsel requested the hearing be continued based on the length of time the children had been placed with the prospective adoptive parents, Mother's desire to file a section 388 petition, and the paternal grandmother wanting time to hire an attorney to ask for placement. The juvenile court denied Mother's request for a continuance, finding no good cause. The court thereafter proceeded to the section 366.26 hearing.
Mother provided stipulated testimony that if she was called to testify, she would testify as follows: Mother needed her children, her children needed her, and that she loved her children very much. Mother was trying to get her drug addiction under control by taking her medication and getting right back into a program. At visits, the babies were demanding of her attention and that she hardly had enough time with them. Mother had a bond with the children, she carried each of them for nine months, she nursed them, and she was present for the children their whole lives.
Following argument, the juvenile court found the children adoptable, no exceptions to termination of parental rights, and terminated the parents' parental rights. This appeal followed.
III
DISCUSSION
A. Adoptability Finding
Mother argues the juvenile court erred in finding the children adoptable pursuant to section 366.26, subdivision (c)(1), because the children were only in the prospective adoptive home for a short period of time. We disagree.
The juvenile court cannot terminate parental rights unless it finds, "by a clear and convincing standard, that it is likely the child will be adopted . . . ." (§ 366.26, subd. (c)(1).) "Review of a determination of adoptability is limited to whether those findings are supported by substantial evidence. [Citation.]" (In re Carl R. (2005) 128 Cal.App.4th 1051, 1061.) "[W]e view the evidence in the light most favorable to the trial court's order, drawing every reasonable inference and resolving all conflicts in support of the judgment. [Citation.] An appellate court does not reweigh the evidence. [Citation.]" (In re Marina S. (2005) 132 Cal.App.4th 158, 165.)
The "clear and convincing" standard applies to the juvenile courts. It is not a standard for appellate review. (In re J.I. (2003) 108 Cal.App.4th 903, 911.) " ' "The sufficiency of evidence to establish a given fact, where the law requires proof of the fact to be clear and convincing, is primarily a question for the trial court to determine, and if there is substantial evidence to support its conclusion, the determination is not open to review on appeal." [Citations.]' [Citation.] 'Thus, on appeal from a judgment required to be based upon clear and convincing evidence, "the clear and convincing test disappears . . . [and] the usual rule of conflicting evidence is applied, giving full effect to the respondent's evidence, however slight, and disregarding the appellant's evidence, however strong." [Citation.]' [Citation.]" (Ibid.)
" 'The issue of adoptability . . . focuses on the minor, e.g., whether the minor's age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor. [Citations.]' [Citation.]" (In re Zeth S. (2003) 31 Cal.4th 396, 406, quoting In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) " ' "Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor's age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parent's willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family." ' [Citation.]" (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1562.)
Here, the children were young, in good physical health and emotional state, and developmentally on target for their ages. S.W. was five years old and in good health. He could verbally express his needs, enjoyed drawing, playing with cars, and watching television. Although he exhibited behavioral issues, he was working with a therapist on a weekly basis and was on medication for ADHD and aggression. S.W.'s behavioral issues and tantrums decreased after being placed in the prospective adoptive home. J.K. was three years old and in good health. She met her developmental milestones in a timely manner, and could verbally express her needs. She was learning to bathe herself, and enjoyed playing with dolls, drawing, singing, and watching television. She was in the Head Start program, did well in school, and there were no concerning behaviors noted while J.K. was at school. Although she pulled her hair when frustrated, she did not pull her hair at school, interacted well with other children, and worked with a behavior specialist on a weekly basis. C.K. was two years old with no reported health issues. She ate well and played with dolls. Based on their current situation, the juvenile court reasonably could find that clear and convincing evidence supported the children were generally adoptable.
Moreover, even if we were to consider that the children were not generally adoptable, they were specifically adoptable by the prospective adoptive family. "[I]n some cases a minor who ordinarily might be considered unadoptable due to age, poor physical health, physical disability, or emotional instability is nonetheless likely to be adopted because a prospective adoptive family has been identified as willing to adopt the child." (In re Sarah M., supra, 22 Cal.App.4th at p. 1650.) Thus, a child may be "deemed adoptable based solely on the fact that a particular family is willing to adopt him or her . . . ." (In re Carl R., supra, 128 Cal.App.4th at p. 1061.)
Here, a prospective adoptive family had been found that was willing to adopt all three children, with full knowledge of their background and emotional issues. The prospective adoptive parents were helping the children work through their grief and loss issues, and the children had openly expressed their emotions and accepted comfort from their prospective adoptive parents. The children were playful, happy, and engaged with the prospective adoptive parents. They were also cared for at home by one or both of the prospective adoptive parents.
The prospective adoptive parents had cared for the children since April 13, 2017, and were very bonded to the children. They had advocated well for the children's medical and educational needs, and they were very committed to having the children become permanent members of their family. The prospective adoptive parents had attended over 20 hours of training to deal with the necessary skills and information for raising adopted children, and they knew how to speak with the children positively about adoption and their birth family.
The children were showing strong signs of having a reciprocal bond with the prospective adoptive parents and looked to them for comfort, support, and guidance. The children called the prospective adoptive parents " 'mom' " and " 'dad,' " and S.W. and J.K. reported they wanted to be adopted. They also stated that they were happy in the home and felt safe. Substantial evidence supports the juvenile court's finding the children were adoptable.
Mother argues her trial counsel failed to "adequately question on the record whether the minors had been in the care of the presumptive adoptive parents long enough for the court, the trier of fact, to be able to make the finding that the three minors were eligible for adoption." While the prospective adoptive parents had the children for a short period of time, it was clear they had bonded with the children. All three children were reported to be adjusting well to the home and were healthy and happy. Moreover, it is not necessary that a prospective adoptive home be identified before a child may be found adoptable. (In re I.I. (2008) 168 Cal.App.4th 857, 870.) For a child who is generally adoptable, "neither a child's placement in a potential adoptive home nor the availability of prospective adoptive parents 'waiting in the wings' is a prerequisite to finding adoptability. [Citation.]" (In re L.Y.L. (2002) 101 Cal.App.4th 942, 956.) Thus, the length of time the children were in the prospective adoptive home was not pertinent to the issue of whether the children were likely to be adopted in this case.
We find substantial evidence supports the juvenile court's conclusion the children were adoptable.
B. Exceptions to Termination of Parental Rights
Mother asserts the juvenile court erred in failing to find statutory exceptions for reunification despite evidence of her rehabilitation. She argues the court erred in finding none of the statutory exceptions were present pursuant to section 366.26, subdivision (c)(1)(B)(i).
The only exception cited by Mother in her brief is section 366.26, subdivision (c)(1)(B)(i), the beneficial parental relationship exception. We note, as DPSS points out, the statute relied upon by Mother, section 366.26, subdivision (c)(1)(B)(i), is an exception to the termination of parental rights, not an exception for reunification. Thus, even if the court found the exception applied, this would not mean Mother would reunify with the children. Rather, the applicability of the exception would prevent parental rights from being terminated. --------
In general, at a section 366.26 hearing, if the juvenile court finds that the child is adoptable, it must terminate parental rights. (§ 366.26, subds. (b)(1) & (c)(1).) This rule, however, is subject to a number of statutory exceptions (§ 366.26, subds. (c)(1)(A) & (c)(1)(B)(i)-(vi)), including the beneficial parental relationship exception, which applies when "termination would be detrimental to the child" because "[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).)
"When applying the beneficial parent-child relationship exception, the court balances the strength and quality of the parent-child relationship in a tenuous placement against the security and sense of belonging that a stable family would confer on the child. If severing the existing parental 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.]" (In re B.D. (2008) 159 Cal.App.4th 1218, 1234-1235.)
" '[F]or the exception to apply, the emotional attachment between the child and parent must be that of parent and child rather than one of being a friendly visitor or friendly nonparent relative, such as an aunt.' [Citation.]" (In re Jason J. (2009) 175 Cal.App.4th 922, 938.) " 'A biological parent who has failed to reunify with an adoptable child may not derail adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. [Citation.] A child who has been adjudged a dependent of the juvenile court should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree, but that does not meet the child's need for a parent.' [Citation.]" (Id. at p. 937, italics omitted.)
"The parent contesting the termination of parental rights bears the burden of showing both regular visitation and contact and the benefit to the child in maintaining the parent-child relationship. [Citations.]" (In re Helen W. (2007) 150 Cal.App.4th 71, 80-81.) "We must affirm a trial court's rejection of these exceptions if the ruling is supported by substantial evidence. [Citation.]" (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) "We . . . review[] the evidence most favorably to the prevailing party and indulg[e] in all legitimate and reasonable inferences to uphold the court's ruling. [Citation.]" (In re B.D., supra, 159 Cal.App.4th at p. 1235.) Because Mother had the burden of proof, we must affirm unless there was "indisputable evidence [in her favor]—evidence no reasonable trier of fact could have rejected . . . ." (In re Sheila B. (1993) 19 Cal.App.4th 187, 200.)
We note that this "may be the most unsuccessfully litigated issue in the history of law." (In re Eileen A. (2000) 84 Cal.App.4th 1248, 1255, fn. 5, disapproved on other grounds in In re Zeth S., supra, 31 Cal.4th at pp. 413-414.) While it can have merit in an appropriate case (e.g., In re S.B. (2008) 164 Cal.App.4th 289, 296-301), this is not such a case.
Mother claims that she had made "exceptional progress" to rehabilitate herself, "thereby making her worthy of consideration by the court for eventual reunification with her children." That, however, is not the standard. Rather, the juvenile court must look at whether the children are bonded to Mother, and then it must weigh that bond (if any) against the benefit of adoption by the prospective adoptive parents. In discussing this issue, Mother's brief does not even mention the children's relationships with their prospective adoptive parents—a telling omission.
There was no evidence that the children would be harmed, much less "greatly harmed," by a termination of parental rights. First, Mother was inconsistent with her visits with the children. Second, the record shows the children's primary attachment was with their prospective adoptive parents. The children had showed strong signs of having a reciprocal bond with the prospective adoptive parents, and the children went to them freely for comfort and support. The children showed a preference for the prospective adoptive parents over other adults, and they responded well to the redirection provided by the prospective adoptive parents. By contrast, Mother was, at best, little more than an aunt or a "friendly visitor." The record demonstrates that it was in the children's best interest to be adopted by the prospective adoptive parents. Mother simply did not meet her burden to show that the bond between her and the children was so strong and beneficial to the children that it outweighed the benefit the children would receive from having a stable, adoptive home.
Accordingly, we conclude substantial evidence supports the juvenile court's finding no exceptions to termination of parental rights applied in this case.
C. Adoption as Permanent Plan
Mother also contends that the juvenile court abused its discretion when it ordered adoption as the permanent plan rather than legal guardianship pursuant to section 366.26, subdivision (b)(5). We disagree.
Once reunification services are terminated or denied, the focus of a dependency proceeding shifts from preserving the family to promoting the best interest of the child, including the child's interest in a stable, permanent placement that allows a caregiver to make a full emotional commitment to the child. (In re Jason J., supra, 175 Cal.App.4th at pp. 935-936.) At the section 366.26 selection and implementation hearing, the juvenile court has three options: (1) terminate parental rights and order adoption as the permanent plan; (2) appoint a legal guardian for the dependent child; or (3) order the child placed in long-term foster care. (In re Jason J., at pp. 935-936.) As shown by the language of section 366.26, subdivision (b), the Legislature has directed a "mandatory preference for adoption over legal guardianship over long-term foster care." (San Diego County Dept. of Social Services v. Superior Court (1996) 13 Cal.4th 882, 888; see In re Michael G. (2012) 203 Cal.App.4th 580, 588; In re Autumn H. (1994) 27 Cal.App.4th 567, 573 ["Adoption, where possible, is the permanent plan preferred by the Legislature. [Citation.]".)
At a section 366.26 hearing, the juvenile court is charged with determining the most appropriate permanent plan for a dependent child who has been unable to reunify. (In re Casey D. (1999) 70 Cal.App.4th 38, 50.) A section 366.26 hearing is designed to protect a dependent child's "compelling right[] to have a placement that is stable, permanent, and allows the caretaker to make a full emotional commitment to the child." (In re A.A. (2008) 167 Cal.App.4th 1292, 1320.) As noted above, the Legislature has expressed a preference for adoption as the permanent plan when a parent fails to reunify with a child (In re Derek W. (1999) 73 Cal.App.4th 823, 826), unless one of several listed exceptions applies (§ 366.26, subd. (c)(1)). No such exception applies in this case.
Furthermore, section 366.26, subdivision (b)(5), relied upon by Mother, does not apply in this matter. Section 366.26, subdivision (b), states, "At the hearing, which shall be held in juvenile court for all children who are dependents of the juvenile court, the court . . . shall make findings and orders in the following order of preference." (§ 366.26, subd. (b).) Section 366.26, subdivision (b)(5), provides, "(5) Appoint a nonrelative legal guardian for the child and order that letters of guardianship issue." (§ 366.26, subd. (b)(5).) This subdivision is the fifth in order of preference and does not apply in this matter because the children were found likely to be adopted. (§ 366.26, subd. (b).)
"[G]uardianship is not in the best interests of children who cannot be returned to their parents." (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1419.) Guardianship is only the best possible permanent plan for children in circumstances where an exception to the termination of parental rights applies. (Id. at p. 1420.) Because, as explained previously, substantial evidence supports the juvenile court's finding section 366.26, subdivision (c)(1)(B)(i), the parental beneficial relationship exception, did not apply, "it necessarily follows that the juvenile court correctly determined that adoption was the appropriate permanent plan for" the children. (Beatrice M., at p. 1420.)
Mother's contention that the court should have considered guardianship is not provided for in the statutory framework. After making the necessary findings under the statutory scheme as to termination of parental rights, the juvenile court was not required to further consider whether guardianship would better serve the children's best interest as a permanent plan rather than adoption. (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1165.) The children in this case were likely to be adopted, and no exception to the termination of parental rights applied. The prospective adoptive parents did not want to consider any permanent plan other than adoption.
Once the juvenile court found by clear and convincing evidence the children were likely to be adopted within a reasonable time and no exceptions to termination of parental rights applied in this case, the court was required to terminate parental rights and select adoption as the permanent plan. (In re Michael G., supra, 203 Cal.App.4th at p. 589; In re Jason J., supra, 175 Cal.App.4th at p. 936.) Accordingly, the juvenile court did not err in ordering adoption as the permanent plan rather than legal guardianship.
D. Denial of Motion for Continuance
Mother also asserts that the juvenile court erred in failing to grant a continuance to allow the paternal grandmother time to retain counsel to file a guardianship petition. We disagree.
A juvenile court may, upon the request of a party and a showing of good cause, continue a hearing, "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." (§ 352, subd. (a).) "Continuances are discouraged [citation] and we reverse an order denying a continuance only on a showing of an abuse of discretion [citation]." (In re Ninfa S. (1998) 62 Cal.App.4th 808, 810-811.)
Here, Mother did not show good cause for a continuance. First, as previously explained, the evidence showed that the children were likely to be adopted and adoption was in the best interest of the children rather than legal guardianship. Second, placement with the paternal grandmother was not an option in this case. The paternal grandmother resided in a senior citizen community and would have to relocate if the children were placed in her care. The paternal grandmother was the sole caregiver for her mother and her mother's husband, and the paternal grandmother acknowledged that her mother was showing early signs of dementia. The paternal grandmother also stated that it would probably kill her to care for the three children. In addition, the paternal grandmother reported that she did not have a valid driver's license and that for transportation, she took the bus and sometimes drove her mother's car even though she had no license. The paternal grandmother also spontaneously reported that she was sober and only on medication from the doctor. She was on numerous different medications for various medical issues. Moreover, the children did not appear to be bonded with the paternal grandmother during the April 20, 2017 visit. During that visit, the prospective adoptive father remained in the visit to assist the paternal grandmother with the children's behaviors. And, although the visit went well, the children looked to the prospective adoptive father for guidance. Eventually, DPSS made a decision to not place the children with the paternal grandmother.
Because the children were likely to be adopted, no exception to the termination of parental rights applied, and guardianship with the paternal grandmother was not an option, there was no basis to consider legal guardianship as the permanent plan. Furthermore, the prospective adoptive parents did not want to consider any other permanent plan because they were committed to providing the children with a permanent home through adoption.
Based on the foregoing, the juvenile court did not abuse its discretion when it denied Mother's request to continue the hearing to allow the paternal grandmother time to file a legal guardianship petition.
E. Ineffective Assistance of Appellate Counsel
Mother further asserts that her appointed appellate counsel failed to "recognize or plead on appeal" any of the issues Mother now raises in her opening brief and that this constituted ineffective assistance of counsel. We again disagree.
"All parties who are represented by counsel at dependency proceedings shall be entitled to competent counsel." (§ 317.5, subd. (a).) The test for showing ineffective assistance of counsel in dependency proceedings is the same test used in criminal proceedings. (See In re Kristin H. (1996) 46 Cal.App.4th 1635, 1667-1668; see also In re Nada R. (2001) 89 Cal.App.4th 1166, 1180.) To prevail on his claim of ineffective assistance of counsel, Mother must show both that "(1) counsel's performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms; and (2) the deficient performance resulted in prejudice. [Citations.]" (People v. Montoya (2007) 149 Cal.App.4th 1139, 1146-1147; see In re Emilye A. (1992) 9 Cal.App.4th 1695, 1711; Strickland v. Washington (1984) 466 U.S. 668, 688, 694.) " ' "There is a 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.' " ' " (People v. Stanley (2006) 39 Cal.4th 913, 954.)
A parent in dependency proceedings is guaranteed the right to effective legal representation on appeal. (See In re Sanders (1999) 21 Cal.4th 697, 715; In re Smith (1970) 3 Cal.3d 192, 202-203 ["the inexcusable failure of petitioner's appellate counsel to raise crucial assignments of error, which arguably might have resulted in a reversal, deprived petitioner of the effective assistance of appellate counsel . . ."].) To be competent, appellate counsel must " 'prepare a legal brief containing citations to the . . . appropriate authority, and set[] forth all arguable issues' " (People v. Barton (1978) 21 Cal.3d 513, 519, fn. omitted), but need not raise all nonfrivolous issues (In re Sanders, at pp. 715-716). Even if Mother could demonstrate her appointed appellate attorney acted unreasonably, she must still show prejudice. (Smith v. Robbins (2000) 528 U.S. 259, 285-286; In re Harris (1993) 5 Cal.4th 813, 833.) Mother must prove prejudice as a demonstrable reality, not merely by speculation as to the effect of counsel's errors or omissions. (People v. Williams (1988) 44 Cal.3d 883, 937.)
Here, we find Mother's appointed appellate counsel was not ineffective. As noted, an appellate attorney need not raise nonfrivolous issues (In re Sanders, supra, 21 Cal.4th at pp. 715-716) and is "under no duty to make meritless motions or contentions." (In re Cruse (2003) 110 Cal.App.4th 1495, 1500.) None of the issues raised by Mother on appeal provide a basis to reverse the juvenile court's order terminating parental rights and finding adoption as the permanent plan for the children.
Even if we assume, for the sake of argument, appointed appellate counsel was ineffective, Mother has failed to show prejudice or that the results of the proceeding would have been more favorable to her. (In re Ana C. (2012) 204 Cal.App.4th 1317, 1329-1330.) On September 14, 2017, Mother's appointed appellate counsel filed a brief, finding no arguable issues on appeal pursuant to In re Sade C. (1996) 13 Cal.4th 952. However, on November 8, 2017, this court struck Mother's opening brief filed by the appointed appellate counsel as well as the supplemental brief filed by Mother. We also notified Mother's retained counsel that retained counsel may serve and file an appellant's opening brief. Because we ordered that Mother may file a new opening brief by her retained counsel, Mother suffered no prejudice. The issues she claims her appointed appellate counsel should have raised are now before this court and are being addressed in this opinion. Mother has failed to show the juvenile court's order terminating parenting rights should be reversed in any manner.
Therefore, Mother cannot show the alleged deficient performance by appointed appellate counsel resulted in prejudice or that the results of proceedings would have been more favorable to her. (In re Emilye A., supra, 9 Cal.App.4th at p. 1711.) Accordingly, reversal is not required.
F. Alleged Biased and Prejudicial Statements Made by the Court
Mother further argues that the juvenile court abused its discretion when it made a "biased and prejudiced remark prior to denying allowance for least restrictive means of guardianship." In support, Mother cites to the court's comments when it stated Mother's request for a continuance to file a section 388 petition to modify the court's order was a " 'last ditch effort by the mother to avoid termination of parental rights' " and a " 'last ditch, transparent effort just to save herself from termination of parental rights.' " Mother claims the court abused its discretion "by making the aforementioned insulting, callous remark to the attempt of the [Mother] to exercise her rights." Mother further asserts that the court's findings that the children, who were less than 10 years of age, wanted to be adopted, was unlawful and an abuse of discretion and that the court abused its discretion when it found the children wanted to be adopted. We reject Mother's contentions.
Initially, we note Mother provided no authority to support her position that the juvenile court's comments warrant reversal or that they prejudiced Mother. " '[P]arties are required to include argument and citation to authority in their briefs, and the absence of these necessary elements allows this court to treat appellant's . . . issue as waived.' [Citation.]" (In re S.A. (2010) 182 Cal.App.4th 1128, 1138.) A party fails to meet his or her burden of showing error when he or she does not provide legal support for his or her assertion. (See In re Casey D., supra, 70 Cal.App.4th at pp. 46-47.) Because Mother failed to provide any legal support for her assertion that the court's order should be reversed based on comments it made, we find the issue waived.
In any event, the court's comments read in their entirety show the court was simply pointing out that Mother's eleventh-hour efforts to file a section 388 petition based on her enrolling herself in a substance abuse program were unavailing. The court's comments do not show the court was biased or prejudiced prior to denying Mother's request for a continuance to file a section 388 petition or time for the paternal grandmother to retain counsel to file a guardianship petition. Mother takes the court's comments out of context. According to the record, the court was referring to Mother's claim that she may file a motion to change a court order pursuant to section 388. The court noted that Mother started a program on May 30, 2017, which was within weeks of the hearing. The court thus commented that Mother's actions in getting into a program right before the 366.26 hearing constituted a "last-ditch effort to save herself from termination of parental rights."
Mother also asserts the juvenile court erred when it found the children wanted to be adopted. We disagree. According to the record, the court acknowledged that the evidence showed S.W. and J.K. stated they wanted to be adopted. The court relied upon the evidence in the record when it determined the children wanted to be adopted. As such, the court did not err in finding the children wanted to be adopted.
G. Alleged Violation of Due Process Rights
In a cursory one-sentence argument, Mother claims she was denied her due process rights based on all of the aforementioned arguments in her opening brief. We disagree.
Initially, we note Mother cites to no legal authority or facts to support her claim that her due process rights were violated in the course of the dependency proceeding. It is the duty of a party to support the arguments in its briefs by properly identifying the issues raised on appeal, with appropriate reference to the record, and with citations to authority. Failure to do so constitutes a waiver of the party's argument. (In re S.A., supra, 182 Cal.App.4th at p. 1138; Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856 [failure to support an argument with the necessary citations]; Johnson v. United Services Automobile Assn. (1998) 67 Cal.App.4th 626, 632, fn. 2 [point not raised in opening brief, no separate heading for issue, and no authority in support of argument]; Osborn v. Hertz Corp. (1988) 205 Cal.App.3d 703, 707, fn. 2 [no coherent argument and no legal authorities].)
Even if we were to construe Mother's due process claim on appeal, the claim would have no merit. The right to due process of law guaranties that "before depriving a parent of [his parental] interest, [the state] must afford him adequate notice and an opportunity to be heard." (In re B.G. (1974) 11 Cal.3d 679, 688-689.) "Due process requirements in the context of child dependency litigation have . . . focused principally on the right to a hearing and the right to notice." (In re Crystal J. (1993) 12 Cal.App.4th 407, 412-413.) Mother does not argue she was not provided with notice or a hearing. As such, she has failed to show her due process rights were violated.
Even if we assume for the sake of argument that Mother's due process rights were violated, our California Supreme Court has stated that orders in juvenile dependency proceedings are subject to harmless error review: "The California Constitution prohibits a court from setting aside a judgment unless the error has resulted in a 'miscarriage of justice.' (Cal. Const., art. VI, § 13.) We have interpreted that language as permitting reversal only if the reviewing court finds it reasonably probable that the result would have been more favorable to the appealing party but for the error. (People v. Watson (1956) 46 Cal.2d 818, 836.) We believe it appropriate to apply the same test in dependency matters." (In re Celine R. (2003) 31 Cal.4th 45, 59-60; see In re Larry P. (1988) 201 Cal.App.3d 888; In re Iris R. (2005) 131 Cal.App.4th 337, 343.)
For the reasons previously explained, Mother has failed to show the juvenile court's order terminating parental rights should be reversed. As such, Mother has failed to show prejudice or that her parental rights would not have been terminated if the alleged errors had not occurred. Accordingly, we reject Mother's due process claim.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J. We concur: SLOUGH
J. FIELDS
J.