Filed 5/10/16 In re Z.J. CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). Th is opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

In re Z.J., a Person Coming Under the Juvenile Court Law. H042805 (Santa Cruz County Super. Ct. No. DP002364)

SANTA CRUZ COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent,

v. T.C., Defendant and Appellant.

T.C. is the mother of K.C. , age nine, and Z.J. , age seven. Both children are depen dents of the juvenile court. In this appeal , Mother asserts that the juvenile court
erred in terminating her parental rights as to Z.J., and ordering adoption as the permanent plan

. In addition, Mother argues that the court erred in denying her request f or a continuance of the Welfare and Institutions Code section 366.26 1 hearing , because it violated her due process ri ghts, and it was an abuse of discretion

.

1 All further statutory references are to the Welfare and Institutions Code.2 S TATEMENT OF THE F ACTS AND C ASE 2 The juvenile court case involving K.C. and Z.J. has been the subject of numerous appeals in this court, and the underlying facts are stated in this court’s opinions in prior appeals. To summarize, Mother had two children, K.C. and her brother Z.J., of whom

s he informally shared custody with their father. The Santa Cruz County Human Services Department (Department) initiated dependency proceedings after Z.J. suffered severe brain injuries that doctors considered non

- accidental. The Department eventually concluded that the injuries had been sustained while Z.J. was in the home of Mother, but were likely caused by a third party and not either of the parents. On April 7, 2011, the juvenile court sustained original petitions as to both children
und er section 300. It placed Z.J. with the children’s paternal grandmother (Grandmother) , while placing K.C. with Father under the supervision of the Departme nt. After a series of events, the juvenile court removed K.C. from Father, and placed her with
Grandmother

. The children have been living with Grandmother, who was appointe d their guardian in 2013. Mother failed to reunify with Z.J., and the matter proceeded to a section 366.26 hearing to terminate her parental rights. In preparation of the June 18, 2015 hearing, t he
De partment filed a report regarding Z.J. recommending termination of Mother’s parental rights , and adoption by his G randmother. At the June 18, 2015 hearing, Mother appeared telephonically, expressing her concern that if Z.J. were adopted, the Grandmother would
not all ow her to see him. The court set the ma tter for a settlement conference and contested section 366.26 hearing on August 3, 2015. At the beginning of the contested section 366.26 hearing on August 3, 2015, Mother’s counsel told the court that Mother wa s not present in person, but wished to
app ear telephonically. However, the court’s telephone system for appearance was not

2 Mot her’s motion to strike portions of the Department’s brief is denied.3

working that day. Mother’s counsel requested a continuance of the contested hearing because Mother was unable to appear telephonically. The court denied the request.
Th e court proceeded with the contested hearing and after a stipulation of the parties, considered and admitted into evidence Mother’s unsworn statement that she had submitted in preparation for the hearing . In the statement, Mother said that she had a
very strong and special bond with Z.J. that was different than the bond he had with his
G randmother. She said that Z.J. was happy and content with her, and that s he was one of the only people who could understand, and hand le him

. She had been involved with hi s school, his physical therapy, a nd his behavioral specialists. Mother said that Z.J. knew
that she loved him and that she was working on providi ng a safe and loving home for
him

. At the conclusion of the hearing , the court adopted the Department’s

reco mmendation in the sectio n 366.26 report, found that Z.J. was adoptable, and that the beneficial parent

- child relationship exception to adoption had not be en established

. The

c ourt termin ated Mother ’s parental rights. On September 21, 2015, the Mother fi led a timely notice of appeal contesting the termination of her parental rights to her son, Z.J.
D ISCUSSION Mother argues that the court erred when it found that the beneficial parent

- child relationship exception to adoption (§ 366.26, subd . (c)(1)(B)(i) ) did not apply. In addition, Mother asserts that the court’s denial of her request for a continuance violated her due process rights and was an abuse of discretion. Beneficial Parent

- Child Relationship Exception Once a dependency case has proceeded to the point of a section 366.2 6 hearing, a juvenile c ourt has limited choices. If the court determines by clear an d convincing
evidence that it is likely that the child will be ado pted, the court is required to terminate4

parental rights and order the depend ent child placed for adoption unless a statutory exception appli es. (§ 366.26, subd. (c)(1).) “ The Legislature has thus determined that,

w here possible, adoption is the first choice.” ( In re Celine R . (2003) 31 Cal.4th 45, 53.) “The specified statutory ci rcumstances

— actually, exceptions to the general rule that the
court must choose ad option where possible

— ‘must be considered in view of the legislativ e preference for adoption when reunification efforts have failed.’ [ Citation.] . . . The statutory excepti ons merely permit the court, in exceptional circumstances [citation ], to choose an option other than the norm, which remains adoption.” ( I bid. ) Section 366.26, subdivision ( c)(1)(B), contains a number of exceptions to adoption, including the beneficial p arent

- child relationship exception (§ 366.26,
subd. (c)(1)(B)(i)). That exception applies where “[ t]he court finds a compelling reason
fo r determining that termination wo uld be detrimental to the child [because] [t]he parents have maintained regular visita tion and contact with the chi ld and the child would benefit from continuing the relationship .” ( Ibid. ) A parent bears the burden of proving the
beneficial parent

- child relationship exception applies. ( In re Mary G. (2007) 151 Cal.App.4th 184, 207.) The parent

- child relationship must promote “the well

- being of
the child to such a degree as to outweigh the w ell

- being the child would gain in a permanent home with new, adoptive par ents.” ( In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) “In other words, th e court balances the strength and qual ity of the natural parent/child relationship in a tenuous placement against the security and the s ense of belonging a new family would confer. If severing the natural p arent/child relationship
would deprive the child o f a substantial, posi tive 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.” ( Ibid .) “[ T]he exception does not permit a parent
who has failed to r eunify with an adoptable child to derail an adoption mer ely by showing the child would derive some benefit from continuing a relationship maintained5

during periods of visitation with the parent.” ( In re Jasmine D . (2000) 78 Cal.App.4th 1339, 1348.) On ap peal from a court order termina ting parental rights following the court’s
determination that the benefi cial parent

- child relationship exception does not apply, we review the juv enile court’s findings of fact under a substantial evidence standard and its
di scretionary decision regarding the existence of a compe lling reason under an abuse of
discretion standard. ( See In re Bailey J

. (2010) 189 Cal.App.4th 1308, 1314

- 1315. ) “Since the propon ent of the exception bears the burden of producing evidence of the

e xi stence of a beneficial parental . . . relationship, which is a factual i ssue, the substantial
evidence standard of review is the appropriate one to apply to this component of the juvenile court’s determination.” ( I d. at p. 1314.) In contrast, a juvenil e court’s determination wheth er there is a compelling reason not to terminate parenta l rights based on a beneficial parent

- child relationship is “a ‘quintessent ially’ discretionary decision, which calls for the juvenile court to d etermine the importance of the relationship in terms of the detrimental im pact that its severance
can be expected to have on the child and to weigh t hat against the benefit to the child of adoption. ( In re L.Y.L . (2002) 101 Cal.App.4th 942, 951.)

“ Because this component of the j uvenile court’s decision is discretionary,
the abuse of discretion standard of revi ew applies.” ( In re Bailey J., supra , 189 Cal.App.4th at p. 1315; see In r e C.B. (2010) 190 Cal.App.4th 102, 123.) “ ‘ [“]The appropriate test for abus e of discretion is whether the trial court exceeded the bounds of

reaso n. When two or more inferences can reasonably be deduced from the fac ts, the reviewing court has no authority to substitute its decision for that of the trial court.” ’ [Citation.]” ( In re Stephanie M. (1994) 7 Cal.4th 295, 318

- 319.) “The abuse

- of

discretion standard requires us to uphold a ruling which a reasonable judge might have made, even thou gh we would not have ruled the same and a contrary ruling would also be6

su stainable. We cannot substitute our own judgment. [Citations .]” ( People v. Woods (1993) 12 Cal.App.4th 1139, 1153.) Otherwise stated, “[w]hen appl ying the differential
abuse of discretion standard, ‘the trial court’s fin dings of fact are reviewed for substantial evidence, its conclus ions of law are revie wed de novo, and its application of the law to
the facts is re versible only if arbitrary and capricious.’ [Citations] ” ( In re C.B., supra , 190 Cal.App.4th 102, 123.) Here, M other fails to show that the court abused its disc retion in determining that
her relationship with Z.J. did not promot e “the well

- being of the child to such a degree as to outweigh the well

- b eing the child would gain in a permanent home with new, adoptive parents .” ( In re Autumn H., supra , 27 Cal.App.4th at p. 57 5.) In evaluating whether the
beneficial parent

- child relationshi p exception applied, the court base d its discretion on the fact that Z.J. had been with his Grandmother since he was released from the hospital on December 12, 2012 following his suffering n on

- a ccidental traumatic brain injuries. The court noted that although Mother did have a close, loving relationship with Z.J., and had maintained visitation with him, she had not established that that her relationship with him outweighed the benefit of ado ption. The court found that while Mother had a friendly, fun relationship with Z.J., she had not established that the relationship had risen to the level of her taking care of Z.J. as a supportive day

- to

- day parent. The court ultimately
made clear t hat i t could not find that the mother

- child relationship was so good that it would be in Z.J.’s best interest to have that legal relationship continue rather t han proceed with adoption.
The record does not disclose that the court applied an incorrec t standar d in deciding whether the beneficial parent

- child relations hip exception was established. Mother fails to show that the juvenile cour t acted arbitrarily and beyond the bounds of reason in finding that exception was inapplicable.7

Denial of Mother’s Request for a Continuance Mother argues that the court erred in denying her request for a continuance of the

s ection 366.26 hearing because the denial violated her constitutional rights, and in the alternative, the denial was an abuse of discretion.
At the cont ested s ection 366.26 hearing on August 3 , 2015, although notified of the court date, Mother was not present, having moved to Louisiana in February of 2015. Mother’s counsel represented to the court that Mother intended to appear telephonically
as she had a t the last court date, but that the telephone system for the court was not working the day of the hearing. Counsel requested a continuance of the hearing due to the unavailability of the telephone system, but the court denied the request, stating “[b]ecau se this is a contested hearing, a telephone appearance by mother would not be an appropriate way for the C ourt to receive testimony from the mother. And so the fact that
the C ourt’s telephonic system is not working, is not good cause for the continuance. [¶] The C ourt is concerned about many issues with respect to a witness testifying via telephone.” Due Process Rights Mother asserts that the court’s denial of a continuance in this case violated her due process rights under the Fourteenth Amendment. ( In re Matthew P. (1999) 71 Cal.App.4th 841, 849.) “The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ” ( Mathews v. Eldridge (1976) 424 U.S. 319, 333.) Here, the record demonstr ates that Mother received notice of the time and place of
the contested section 366.26 hearing, and knew that the purpose of the hearing was to consider termination of her parental rights as to Z.J

. Despite the fact tha t Mother had appeared telephonically in the past, she had no legal right to do so , and was previously
allowed to at the discretion of the court . Indeed, California Rules of Court Rule 3.6708

provides for telephonic appearances under some instances for civil cases, unlawful detainer and proba te proceedings; juvenile cases are not i ncluded. Moreover,
subdivision (e)(1)(A) of the California Rules of Court, rule 3.670 provides that a telephonic appearance may be acceptable at a hearing that will include the testimony of
witnesses when the court deems such appearance would be appropriate. Here, the court specifically found that the nature of the proceedings was such that a telephonic appearance by Mother was not appropriate. Here, Mother had notice of the date, time
and location of the section 366.26 hearing , and had an opportunity to be heard. Mother chose to not personally attend the hearing, and instead assumed she would be permitted to appear telephonically. Mother’s incorrect assumption , and the court’s refusal to grant
a continuance beca use of that assumption, does not amount to a denial of her due process rights under the Fourteen th Amendment. Abuse of Discretion In addition to arguing that the court violate d her due process rights by denying her request for a continuance, Mother also asserts in the alternative, that the court abused its
discretion.

“ The juvenile court has broad discretion in determining whether to grant a
continuance. (§ 352, subd. (a); In re Gerald J. (1991) 1 Cal.App.4th 1180, 1186

– 1187 .) As a reviewing court, w e can reverse an order denying a continuance ‘ only upon a showing of an abuse of discr etion.’ ( In re Gerald J., supra, at p. 1187 .)” ( In re V.V. (2010) 188 Cal.App.4th 392, 399.) Under section 352, subdivision (a), a juvenile court may continue a section 366.26 hearing “ beyond the time lim it within which the hearing is otherwise required to be held.” But section 352, subdivision (a), prohibits any continuance that “ is contra ry to the interest of the minor” and requires the court to “ give substantia l weig ht to a minor’s need
for prompt resolution of his or her custody status, th e need to provide children with stable9

environments, and the damage to a minor of prolonged temporary placements.” It allows
a continua nce to 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.” (§ 352, subd. (a).) “ Whenev er any continuance is granted, the facts proven which require the continuance shall be e ntered upon the minutes of the court.” ( Ibid .) Ordinarily, a motion fo r continuance must be in writing but the court may
entertain a n oral motion if there is good cause. ( Ibid .) Here, the court acted within its discretion in denyin g a continuance of th e section 366.26 hearing s o that Mother could appear telephonically at some date in the future. There was no good cause to continue the hearing based on Mother’s false assumption that she could appear telephonically. The court did not act in an arbitrary or capricious manner in denying Mother’s request in this case.
D ISPOSITION The order terminating Mother’s parental rights as to Z.J. is affirmed

.10 ______________________________________

RUSHING , P.J.

WE CONCUR:

_______________ _____________________

PREMO, J

.

____________________________________

MÁRQUEZ, J.