In re G.M. CA4/1

Filed 7/14/14 In re G.M. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re G.M., et al., Persons Coming Under
the Juvenile Court Law.
D065186
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. J517158)
Plaintiff and Respondent,

v.

CARRIE M., et al.,

Defendants and Appellants.

APPEAL from orders of the Superior Court of San Diego County, Garry G.

Haehnle, Judge. Affirmed.

Neil R. Trop, under appointment by the Court of Appeal, for Defendant and

Appellant Carrie M.

Katherine A. Clark, under appointment by the Court of Appeal, for Defendant and

Appellant M.M.
 Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County

Counsel and Paula J. Roach, Deputy County Counsel, for Real Party in Interest San

Diego County Health and Human Services Agency.

Maria Diaz, under appointment by the Court of Appeal, for Minors.

Carrie M. and M.M. appeal a juvenile court order terminating their parental rights

to their minor children, P.M., G.M. and S.M. Both contend the beneficial parent-child

relationship exception to adoption applied and the court should have selected a permanent

plan of guardianship or long-term foster care. Carrie also contends the court did not

obtain a knowing and intelligent waiver of her right to counsel, erred by denying her

request for a continuance of the Welfare and Institutions Code1 section 366.26 hearing,

and the juvenile court's cumulative errors require reversal. We affirm the orders.

FACTUAL AND PROCEDURAL HISTORY

This dependency proceeding began in December 2010 when G.M. tested positive

for high levels of methamphetamine at birth. Carrie, an addict, initially denied using

methamphetamine but shortly afterward admitted relapsing while she was pregnant.

When G.M. was born, Carrie and M.M. were also caring for their 11-month-old daughter,

P.M., and Carrie's 14-year-old daughter, Michelle R. Both Carrie and M.M. had lengthy

1 All further statutory references are to the Welfare and Institutions Code.

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criminal backgrounds and prior involvement with the San Diego County Health and

Human Services Agency (the Agency).2

Initially the Agency agreed to allow Carrie and M.M. to participate in voluntary

services, including drug treatment and testing for Carrie. Carrie, however, did not engage

in the services or drug test. As a result, the following month the Agency filed a petition

with the juvenile court under section 300, subdivision (b), on behalf of G.M., alleging he

suffered or was at substantial risk of harm by the failure or inability of his parents to

provide him with adequate care because of Carrie's substance abuse. At the detention

hearing, the court appointed counsel for both parents. At the jurisdiction hearing in

March 2011 the court declared G.M. a dependent of the court, ordered him placed with

M.M. and that services be provided to both parents. The court ordered supervised visits

for Carrie. Around the same time, Carrie was sentenced to one year in custody for

violating parole by using methamphetamine and M.M. lost his job.

In June 2011 Carrie was released from prison and paroled for one year. She was

also ordered to attend outpatient treatment and Narcotics Anonymous meetings. For the

six-month review hearing in September, the Agency reported Carried had not engaged in

the required outpatient treatment, and had missed a drug test and an appointment with the

2 Carrie has a total of seven children. Two older boys, ages 16 and seven at the start
of this proceeding, were in the custody of Carrie's mother, and another son, age nine, was
in the custody of his paternal grandfather. An 11-year-old daughter was in a paid only
guardianship with the Agency. M.M. also has another daughter who was a dependent of
the juvenile court, but reunified with her mother. M.M. did not participate in
reunification services with the daughter because he was incarcerated during her
dependency.
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Agency's social worker. An arrest warrant was also issued for Carrie after she did not

contact her parole agent. The Agency reported G.M. was doing well in M.M.'s care but

that M.M. had not yet found a job or stable housing. At the hearing, the court adopted the

Agency's recommendation that services be continued and that G.M. remain in M.M.'s

care.

By the 12-month review hearing M.M.'s living situation had still not stabilized.

He was moving between friends' homes, had found a job but was fired, and frequently

left P.M. and G.M. with others. M.M., who also had a history of substance abuse, was in

and out of touch with the Agency and did not drug test on two occasions. Carrie was

arrested again in February 2012 and was expected to be released in April. She had not

engaged in drug treatment or therapy. She was also pregnant and due to give birth in late

March. The Agency recommended continued services for M.M., but not for Carrie.

On April 9, 2012, shortly after Carrie gave birth to S.M., the Agency determined

the children were no longer safe in M.M.'s care and filed a section 387 petition on behalf

of G.M. and section 300 petitions on behalf of P.M. and S.M. The petitions alleged M.M.

and Carrie had not complied with their case plan, did not have stable housing, and M.M.

had not kept the Agency informed of G.M.'s and P.M.'s whereabouts. At the detention

hearing the court ordered all three minors detained at Polinsky Children's Center. At the

jurisdiction and disposition hearing on May 1, 2012, M.M. requested trial. The same day

the Agency held a team decision meeting with Carrie and M.M. to discuss the minors'

placement, but the parents angrily walked out, stating their input was not valued by the

Agency. At a settlement conference on June 4, 2012, Carrie requested that a new

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attorney be appointed to represent her. The court held a Marsden3 hearing and denied

Carrie's request.

At the conclusion of the jurisdiction and disposition trial on June 29, 2012, the

court found the allegations in the Agency's petitions to be true, declared G.M., P.M. and

S.M. dependents of the juvenile court, and placed all three minors in licensed foster

homes. P.M. and G.M. were placed together and S.M. was placed in a separate foster

home.4 The juvenile court also ordered the Agency to provide additional reunification

services to Carrie and M.M.

By the next review hearing in December 2012, M.M. had not yet found stable

employment. He had completed anger management and parenting classes, and started

therapy. Both parents completed the Incredible Families Program, which included

visitation and parenting classes. Carrie continued to struggle with her case plan. She

tested positive for methamphetamine in October and did not drug test on several other

occasions. Carrie had not entered into a treatment program, but her counsel told the

juvenile court she was slated to begin a program and had recently located a therapist.

The Agency reported both parents' visits with the three minors during the review period

were generally positive. At the conclusion of the hearing the court continued

reunification services for both parents.

3 People v. Marsden (1970) 2 Cal.3d 118.

4 Carrie and M.M. filed notices of appeal of the juvenile court's order. Counsel
submitted a brief asking this court to exercise its discretion to review the record for error
under In re Sade C. (1996) 13 Cal.4th 952; the request was denied.
5
 Shortly after that review hearing, Carrie was arrested and incarcerated on charges

of second degree burglary. M.M. was cited at the same time for driving a vehicle with

stolen tags. Thereafter, M.M. was arrested three times and, by the time of the review

hearing in June 2013, was incarcerated and facing a lengthy criminal sentence. Carrie

was also arrested again in April 2013 for obstructing police after she attempted to warn

M.M., who had a warrant out for his arrest and was hiding in a locked bedroom with a pit

bull, that police were at the door.

In addition to the parents' criminal activity, the review period was marked by

Carrie's sporadic participation in services, missed visits with the minors and missed drug

tests. As during the previous review period, visits between the minors and Carrie were

generally positive. The minors were also brought to M.M.'s detention facility for visits

on a regular basis, and those visits were also generally positive. In its report for the next

review hearing, however, the Agency recommended services be terminated and the

juvenile court set a section 366.26 selection and implementation hearing. At the

conclusion of the contested review hearing in July 2013, the juvenile court agreed with

the Agency's recommendations, finding it unlikely the minors could be returned to Carrie

or M.M.5 The court terminated services for both parents and set a section 366.26 hearing

for November 13, 2013.6

5 By this time, S.M. had transitioned into the home of her sibling's foster mother,
who was interested in adopting all three children.

6 Both parents filed notices of intent to seek writ review, but their counsel later
notified this court there were no viable issues and the case was dismissed.
6
 By the section 366.26 hearing on November 13, 2013, M.M. had been sentenced

and was not expected to be released from prison until July 2015. At the hearing, Carrie

again requested new counsel. The court conducted another Marsden hearing and denied

Carrie's request. In response Carrie requested to terminate her counsel. The court

granted this request and allowed Carrie to represent herself. Both parents contested the

termination of their parental rights and the court set the matter for trial on December 9,

2013.

At the outset of the Monday trial, Carrie requested a continuance to provide her

additional time to review the Agency's delivered service logs, which she received the

previous Friday. The court responded the trial would go forward with some of the

evidence and Carrie could renew her request for additional time to review the logs later if

needed. Before the lunch recess the court asked Carrie if she would like additional time

during lunch to review the logs before proceeding with examination of the Agency's

social worker; Carrie responded that was fair. After the recess, the court asked Carrie if

she had enough time to review the logs. Carried responded affirmatively and stated she

was ready to proceed.

The evidence at trial consisted of the Agency's reports, M.M.'s written statement,

and the testimony of the minors' foster mother and current social worker. Carrie

examined both witnesses. The foster mother testified she was willing to adopt all three

minors and continue with behavioral therapy for P.M. and G.M. The social worker

testified all three minors were generally and specifically adoptable and, in addition to the

foster mother, there were 49 families in San Diego interested in adopting a sibling set

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with the characteristics of P.M., G.M. and S.M. The social worker also stated that, based

on her supervision of a visit and review of the Agency's logs and reports, Carrie and

M.M. did not have strong parent-child relationships with any of the minors. She also

stated the detriment the minors would suffer if parental rights were terminated was

outweighed by the benefits of adoption.

In closing, Carrie admitted she was in "no position to stably accept three children

into [her] home" but argued for guardianship or long-term foster care rather than

termination of her parental rights so she could have an opportunity in the future to regain

custody. M.M.'s counsel also sought a lesser permanent plan than termination of parental

rights, contending M.M. had shown the applicability of the parent-child relationship

exception to adoption.

At the conclusion of trial the court commented that Carrie had done an effective

job representing herself, both in her examination of the witnesses and her closing

statement. The court found Carrie and M.M. loved the children but concluded neither

Carrie nor M.M. had met their burden to show the parent-child relationship exception to

the termination of parental rights was applicable. The juvenile court found the minors

were generally and specifically adoptable, none of the exceptions to adoption existed, and

terminated parental rights.

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 DISCUSSION

I

Carrie contends the juvenile court erred in granting her request to represent

herself. Carrie argues that because her "emotions were substantially elevated" at the time

she waived her right to counsel, that waiver was not knowing and intelligent.

A

Under section 317, subdivision (b), the juvenile court must appoint counsel for an

indigent parent unless the court finds the parent has made a knowing and intelligent

waiver of counsel. (See In re A.M. (2008) 164 Cal.App.4th 914, 923.) Parents have "a

statutory right to self-representation in a proceeding to terminate parental rights . . . ." (In

re Angel W. (2001) 93 Cal.App.4th 1074, 1082; In re Brian R. (1991) 2 Cal.App.4th 904,

921-923.) The state will only interfere with an individual's choice of legal representation,

including self-representation, when that choice "will result in significant prejudice" to the

individual "or in a disruption of the orderly processes of justice unreasonable under the

circumstances of the particular case." (People v. Crovedi (1966) 65 Cal.2d 199, 208.)

Although a knowing and intelligent waiver of a parent's right to representation is

required in a juvenile dependency proceeding, the court is not required to engage in the

full admonition and inquiry required in a criminal case under Faretta v. California (1975)

422 U.S. 806. (In re Angel W., supra, 93 Cal.App.4th at p. 1084.) Instead, whether a

valid waiver of counsel was intelligently made is determined based on a review of the

entire record and circumstances of the case. (People v. Fox (2014) 224 Cal.App.4th 424,

428.) "Further, the court must respect the right of the parent to represent him- or herself

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as a matter of individual autonomy and avoid forcing the mentally competent parent to

proceed with appointed counsel in the guise of protecting a person who is unskilled in the

law and courtroom procedure." (In re Angel W., supra, at p. 1084.)

B

Carrie contends that at the time the court granted her request to proceed without

representation, she was frustrated by her counsel and her "emotions were substantially

elevated." According to Carrie, because of her heightened emotional state she did not

have the mental capacity to waive her right to counsel. Our review of the proceedings

before, during and after Carrie's request to represent herself shows her waiver of her right

to counsel was knowing and intelligent.

Carrie was appointed counsel at the outset of the case in January 2011, and she

attended each hearing in the proceedings. Carrie's initial request to replace her counsel in

June 2012 was denied. When the court denied Carrie's second request to replace her

appointed counsel, Carrie asked to proceed without counsel. The court granted this

request, stating "the Supreme Court has always said that you have a right to represent

yourself, and you just need to be very careful because juvenile law is a very specialized

area of law. The court is not going to give you any breaks because you are representing

yourself." Carrie acknowledged the risk, responding "I know. I expected nothing less."

At the next hearing, a pretrial status conference on November 26, 2013, the court

again admonished Carrie about the standard to which she would be held during trial.

Carrie told the court she understood she would be held to the same standard as the

attorneys. At the December 9, 2013, trial, she was prepared and ably presented her case.

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Carrie retained a lawyer for two days to prepare for the trial. She gave an articulate

opening statement, examined two witnesses, and put on a moving closing argument. In

her closing, Carrie told the court she did not regret representing herself, she was proud of

how she handled the case, and she felt that she did everything she could for her children.

At the conclusion of the hearing, the judge praised Carrie for the manner in which she

presented her case, stating he was impressed by the way she handled herself in court and

the questions she asked. Based on this record, we conclude Carrie's waiver of her right to

counsel was knowing and intelligent.

II

Carrie next argues the juvenile court erred by denying her request for a

continuance at the start of the selection and implementation hearing on December 9,

2013. Carrie requested additional time to review the Agency's service logs, which were

provided to her the Friday before the Monday hearing. After Carrie made the request,

however, she agreed the hearing could proceed. The court then provided Carrie with

additional time to review the logs before the hearing resumed after lunch. After lunch

Carrie explicitly told the court she had enough time to review the service logs and was

ready to proceed.

The record shows Carrie was provided with the time she requested to review the

documents and that she acknowledged this below. Any claim of error based on her

request for a continuance was, therefore, waived. (See In re Carrie W. (2003) 110

Cal.App.4th 746, 755 [" 'it would be inappropriate to allow a party not to object to an

error of which the party is or should be aware, " ' "thereby permitting the proceedings to

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go to a conclusion which he may acquiesce in, if favorable, and which he may avoid, if

not" ' " ' "].)

III

Lastly, Carrie and M.M. argue insufficient evidence supported the juvenile court's

finding that the parent-child relationship exception to adoption did not apply. Both

parents assert they maintained regular visitation and contact with the minors and had a

beneficial parental relationship that outweighed the benefits of a prospective adoption.

Carrie and M.M. also contend the court should have selected a permanent plan of

guardianship or long-term foster care instead of terminating their parental rights.

A

After reunification services are terminated, the focus of a dependency proceeding

shifts from preserving the family to promoting the best interests of the child, including

the child's interest in a stable, permanent placement that allows the caregiver to make a

full emotional commitment to the child. (In re Fernando M. (2006) 138 Cal.App.4th

529, 534.) At the selection and implementation hearing, the court has three options: (1)

terminate parental rights and order adoption as the permanent plan; (2) appoint a legal

guardian for the child; or (3) order the child placed in long-term foster care. (Ibid.)

"Adoption, where possible, is the permanent plan preferred by the Legislature."

(In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) If the court finds a child cannot be

returned to his or her parent and is likely to be adopted if parental rights are terminated, it

must select adoption as the permanent plan unless it finds termination of parental rights

would be detrimental to the child under one of the specified statutory exceptions.

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(§ 366.26, subd. (c)(1)(A) & (B)(i)-(vi); In re Erik P. (2002) 104 Cal.App.4th 395, 401.)

"The parent has the burden of establishing the existence of any circumstance that

constitutes an exception to termination of parental rights." (In re T.S. (2009) 175

Cal.App.4th 1031, 1039.) Because a selection and implementation hearing occurs "after

the court has repeatedly found the parent unable to meet the child's needs, it is only in an

extraordinary case that preservation of the parent's rights will prevail over the

Legislature's preference for adoptive placement." (In re Jasmine D. (2000) 78

Cal.App.4th 1339, 1350.)

Section 366.26, subdivision (c)(1)(B)(i), provides an exception to the adoption

preference if termination of parental rights 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." Courts have interpreted the phrase

" 'benefit from continuing the . . . relationship' " 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." (In re Autumn H., supra, 27 Cal.App.4th at p. 575; accord, In re Jason J.

(2009) 175 Cal.App.4th 922, 936.)

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 To meet the burden of proof for this statutory exception, the parent must show

more than frequent and loving contact, an emotional bond with the child or pleasant

visits. (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) The parent must show he or she

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

attachment from child to parent that if severed would result in harm to the child. (Ibid.;

In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.) The exception does not require

proof the child has a " 'primary attachment' " to the parent or the parent has maintained

day-to-day contact with the child. (In re S.B. (2008) 164 Cal.App.4th 289, 299; In re

Brandon C. (1999) 71 Cal.App.4th 1530, 1534-1538; In re Casey D. (1999) 70

Cal.App.4th 38, 51.)

We review an order terminating parental rights for substantial evidence. (In re

Autumn H., supra, 27 Cal.App.4th at p. 576.) If, on the entire record, there is substantial

evidence to support the findings of the juvenile court, we uphold those findings. We do

not consider the credibility of witnesses, attempt to resolve conflicts in the evidence or

weigh the evidence. Instead, we draw all reasonable inferences in support of the

findings, view the record favorably to the juvenile court's order and affirm the order even

if there is substantial evidence supporting a contrary finding. (In re Casey D., supra, 70

Cal.App.4th at pp. 52-53; In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) The parent

has the burden of showing there is no evidence of a sufficiently substantial nature to

support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)

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 B

Carrie and M.M. contend the potential harm to the minors from terminating their

parental rights outweighed the potential benefits of adoption. The juvenile court's finding

to the contrary, however, was supported by substantial evidence.

As discussed, P.M. lived with both parents at the beginning of her life, and then

with M.M. after G.M. became a dependent of the juvenile court. P.M. also remained in

M.M.'s care at the beginning of this proceeding. S.M. was removed from her parents'

custody at birth and has never lived with them. By the time of the selection and

implementation hearing, P.M. and G.M. had lived with their foster mother for 18 months

and S.M. had lived with foster families her entire life. In addition, during the time that

P.M. was in Carrie's custody, Carrie was in and out of jail.

During the 18 months after G.M., P.M. and S.M. were removed from their parents'

custody, Carrie and M.M. maintained regular visitation and contact with the minors.

However, neither parent met their burden to show a beneficial parent-child relationship

sufficient to apply the exception of section 366.26, subdivision (c)(1)(B)(i). Although

Carrie and M.M.'s visits were primarily positive and they were affectionate toward the

minors, the minors did not show a strong parental attachment to them. S.M. primarily

sought comfort from social workers and her foster mother during visits with Carrie and

M.M. Likewise, G.M. and P.M. recognized Carrie and M.M. as their parents, but during

visits did not seek them out to fulfill their needs or for affection. None of the children

had difficulty separating from Carrie or M.M. at the end of visits.

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 "A biological parent who has failed to reunify with an adoptable child may not

derail an adoption merely by showing the child would derive some benefit from

continuing a relationship maintained during periods of visitation with the parent." (In re

Angel B. (2002) 97 Cal.App.4th 454, 466.) Any positive bond, warmth and affection the

minors shared with Carrie and M.M. was not enough to show they had a "significant,

positive, emotional attachment" to them such that terminating the parent-child

relationship would result in great harm to them. (In re Autumn H., supra, 27 Cal.App.4th

at p. 575; In re Jason J., supra, 175 Cal.App.4th at p. 938.)

Further, Carrie and M.M. did not show that maintaining the parent-child

relationship outweighed the benefits of adoption for the minors. At the time of the

selection and implementation hearing, the minors had been dependents for much of their

lives and had experienced much turmoil and instability. They were all doing well in the

home of the foster mother, who was committed to adopting them. The minors need and

deserve the stability, continuity and permanence that only an adoptive home can provide.

"The reality is that childhood is brief; it does not wait while a parent rehabilitates himself

or herself. The nurturing required must be given by someone, at the time the child needs

it, not when the parent is ready to give it." (In re Debra M. (1987) 189 Cal.App.3d 1032,

1038.)

Although Carrie and M.M. contend a guardianship or long-term foster care would

serve the minors' interests, adoption is the only option that provides the stability and

permanence they need. (See In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1419

[Legislature has decreed guardianship is not in best interests of children who cannot be

16
returned to their parents; only adoption affords the most permanent and secure

alternative]; In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368-1369 [parents' preference

to preserve family unit does not override best interests of minors in stability and security

of adoptive home].) In sum, the juvenile court was entitled to accept the social worker's

opinion that the benefits of adoption for the minors outweighed the benefits of

maintaining a relationship with Carrie and M.M. (In re Justice P. (2004) 123

Cal.App.4th 181, 191 [child's interest in stable and permanent home is paramount after a

parent's interest in reunification is no longer at issue].) The court appropriately weighed

the strength and quality of the parent-child relationship, and the detriment involved in

terminating it, against the potential benefits of an adoptive home for the minors. We

cannot reweigh the evidence or substitute our judgment for that of the juvenile court. (In

re Casey D., supra, 70 Cal.App.4th at p. 53.)7

DISPOSITION

The orders are affirmed.

McDONALD, J.

WE CONCUR:

BENKE, Acting P. J.

NARES, J.

7 Having concluded there was no error as to any of the issues raised by Carrie, we
need not address her claim of cumulative error.
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