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In re Alexander B.

Court of Appeal of California
Dec 11, 2006
No. A112844 (Cal. Ct. App. Dec. 11, 2006)

Opinion

A112844

12-11-2006

In re Alexander B., a Person Coming Under the Juvenile Court Law. CONTRA COSTA COUNTY BUREAU OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. JOSEPH B., Defendant and Appellant.


I.

INTRODUCTION

Appellant Joseph B. appeals from an order terminating his parental rights to his son, Alexander. (Welf. & Inst. Code, § 366.26.) Appellant raises three issues: (1) the trial court should have granted his motion to continue; (2) respondent Contra Costa County Children and Family Services Bureau (the Bureau) failed to meet its statutory obligations under section 361.2 in considering placement of the child with the paternal grandmother; and (3) appellant was denied due process because his visitation with his son was limited. We affirm.

All statutory references are to the Welfare and Institutions Code.

II.

FACTS AND PROCEDURAL HISTORY

The underlying dependency petition, filed June 22, 2005, alleged that both the mother and Alexander tested positive for methamphetamine at Alexanders birth in June 2005. The petition asserted: (1) failure to protect (§ 300, subd. (b)) based upon the mothers "chronic and extensive" history of substance abuse; and (2) abuse of siblings (§ 300 , subd. (j)) based upon the mothers failure to reunify with two other children who had been dependent children of the juvenile court.

The mother is not a party to this appeal. Therefore, all unessential facts with regard to the mother have been omitted from this opinion.

The Bureaus combined jurisdictional/disposition report indicated that the mother identified appellant as Alexanders father; however, they were not married and not living together at the time of Alexanders conception or birth. Appellant also had a history with the Bureau and the court had previously terminated his parental rights to his daughter, C., due to his volatile behavior and explosive temper. It was also reported that he had sexually abused at least three children in his care. Appellant had not responded to the social workers phone calls or written correspondence nor had he called to request visitation.

The Bureaus social worker recommended that the court not offer services to the parents. As applicable here, the social worker believed the court was able to deny services because the court had previously ordered the termination of reunification services for Alexanders half-sibling (§ 361.5, subd. (b)(10)); because the court previously terminated parental rights over a half-sibling (§ 361.5, subd. (b)(11)); and because the mother had a history of chronic drug use and had refused to comply with a court-ordered drug treatment program (§ 361.5, subd. (b)(13)).

Appellant did not attend the jurisdictional hearing held on August 10, 2005. The court found the allegations in the petition true and took jurisdiction over Alexander under section 300, subdivisions (b) and (j). The court awarded appellant presumed father status after receiving into evidence a paternity declaration and birth certificate which listed appellant as the father.

A contested dispositional hearing was held on September 19, 2005, on the issue of whether either parent should be granted services. The Bureau prepared a report for the hearing recommending that reunification services be denied because Alexanders parents "continue to show they are unable to care for themselves let alone an infant." The report noted that appellant had not addressed the issues that caused him to fail to reunify with his daughter, C. Specifically, appellant "states that he has been diagnosed with Bi-polar [sic] disorder and Post Traumatic Stress Disorder;" however, appellant "is not in therapy, seeing a psychiatrist and is not taking any medications . . . ." He "currently reports that he has not completed an anger management program because he does not need one. He feels he has a right to be angry due to all the injustices he has been dealt." Furthermore, appellant "is now almost [49] years old and still does not have a stable place to live." The Bureau continued to recommend that no services be offered to either parent and that a section 366.26 hearing be set to determine the most appropriate permanent plan for Alexander.

Both parents attended the dispositional hearing. Appellant asked "to be given six months of services so he can show this Court what he is willing to do." In the alternative, appellant asked that Alexander be placed with appellants mother. During her testimony, the social worker explained that while the paternal grandmother had submitted an application for placement consideration, it was incomplete and listed an inaccurate address. She called the phone number listed on the application but it had been disconnected. Appellants counsel indicated that she would provide the Bureau with accurate contact information for the paternal grandmother.

The court denied the parents reunification services under section 361.5. The court then scheduled the hearing under section 366.26 for January 18, 2006, to select and implement a permanent plan for Alexander.

Having set the section 366.26 hearing , the court gave appellant notice of his writ remedy (§ 366.26, subd. (l); Cal. Rules of Court, rule 38.1). Appellant, however, did not pursue writ review in this court.

In anticipation of the section 366.26 hearing, the Bureau prepared an assessment recommending termination of parental rights. The report indicated that Alexanders current caretakers have provided him with a "stable, loving and safe home" and wish to adopt him. The report noted that appellant has "not formed a parent/child relationship" during his five supervised visits with Alexander.

At the commencement of the section 366.26 hearing on January 18, 2006, appellant requested a 30-day continuance. The juvenile court denied appellants request. When questioned about Alexanders placement with the paternal grandmother, the Bureaus social worker indicated that appellant had made the request of the previous worker on the case but an incorrect address and telephone number had been provided and the Bureau had been unable to contact the grandmother. Although the paternal grandmother had contacted the Bureau about the application, "she didnt give us the correct phone number to reach her at. So we have been unable to get ahold [sic] of her."

On cross-examination, the social worker testified again that appellant never contacted her about relative placement nor had he made contact with the Bureau on this issue subsequent to the earlier request for better contact information. The paternal grandmother had not attended any visits with the child. A week and a half before the hearing, appellant called requesting permission for the paternal grandmother to accompany him on a visit but did not leave a number for a return call.

Appellant urged the court not to terminate his parental rights. He argued that he had attended all the supervised visits he was allowed and "[t]here is a relationship with the child." After the parties submitted the matter, the court adopted the Bureaus recommendations and found by clear and convincing evidence Alexander was likely to be adopted and that adoption as a permanent plan was in the childs best interest. The court then terminated appellants parental rights.

III.

DISCUSSION

A. Denial of Continuance

At the commencement of the section 366.26 hearing, appellants counsel requested a 30-day continuance "[b]ecause of the holiday, he wasnt able to accomplish various things that he wanted to accomplish" and "he was ill." He claims "the juvenile court abused its discretion when it denied [appellants] request for a continuance of the hearing and the order terminating parental rights must be reversed and a new hearing must be granted to enable [appellant] to prepare for the hearing."

Section 352, subdivision (a) provides in part: "Upon request of counsel for the parent, . . . the court may continue any hearing under this chapter beyond the time limit within which the hearing is otherwise required to be held, provided that no continuance shall be granted that is contrary to the interest of the minor. In considering the minors interests, the court shall give substantial weight to a minors 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. . . ."

The granting of continuances in dependency cases is discouraged. (In re Ninfa S. (1998) 62 Cal.App.4th 808, 810.) The court may not grant a continuance that is contrary to the childs best interests. (Id. at p. 810.) A juvenile courts order denying a continuance is reviewed for an abuse of discretion. (Id. at p. 811.)

Here, we are unable to say that the trial court abused its discretion in denying appellants request to continue the section 366.26 hearing because the record does not show good cause to support a continuance. First, appellant failed to file a motion with an attached declaration detailing the specific facts that demonstrate the necessity of a continuance at least two court days before the hearing as required by section 352. (See also Cal. Rules of Court, rule 1422(a)(2).) Nevertheless, despite the fact that the court entertained appellants oral motion for a continuance, appellant still failed to demonstrate that his request was in Alexanders best interests or that good cause existed for the continuance.

"[T]ime is of the essence in offering permanent planning for dependent children." (In re Debra M. (1987) 189 Cal.App.3d 1032, 1038.) As the Bureau points out, appellant had four months to prepare for the section 366.26 hearing. Alexander was entitled to a resolution of his custody status and a stable environment, rather than prolonging unjustifiably his foster placement. Based on the above, we hold that the juvenile court did not abuse its discretion in denying appellants request to continue the section 366.26 hearing.

B. Placement with Paternal Grandmother

Appellant next claims the Bureau failed to give his mother, Alexanders paternal grandmother, preferential consideration when it came to Alexanders out-of-home placement.

Following removal of a child from the physical custody of his or her parents, "preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative." (§ 361.3, subd. (a).) Once such a request is made, the department and the court must consider numerous factors in determining whether it is appropriate for the child to be placed with the relative. Among other things, the department and the court must consider the best interest of the child, wishes of the parents, the placement of siblings and half-siblings in the same home, and the nature and duration of the relationship between the relative and the child, as well as the relatives "desire to care for . . . the child." (§ 361.3, subds. (a)(1), (2), (4) & (6).)

Once a relative has been identified to whom preferential consideration is to be given, the department is to contact the relative to determine if he or she "desire[s]" to have the child live with him or her. The department must investigate the desirability of placing the child with that relative by considering the factors enumerated in section 361.3, subdivision (a), including those noted above. (§ 361.3, subd. (a)(8).) The provisions of section 361.3 apply at all stages of dependency proceedings up to termination of parental rights. (Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1032 (Cesar V.).)

Appellant argues that the Bureau did not fulfill its statutory obligations under section 361.3 because it "failed to give the paternal grandmother preferential consideration for placement when Alexander was moved to a new foster home a few days after the dispositional hearing." Appellant claims that at the dispositional hearing, his counsel gave the Bureau updated contact information for the paternal grandmother and asked to have her contacted by the Bureau for possible placement. He goes on to assert that the Bureau "failed to contact the paternal grandmother after it was provided corrected information." Appellants arguments are procedurally untenable and legally unmeritorious.

Appellants only asserted factual basis for making this claim involves questions posed to the social worker by appellants counsel, which inquired whether the worker had attempted to contact the paternal grandmother at a specified address and phone number. Acknowledging she was unaware of the information, the social worker indicated she was not writing the new contact information down because "I dont have a pen with me." Appellants counsel indicated she would make sure the information was provided to the social worker. However, there is no evidence in the record to indicate whether the contact information mentioned in counsels cross-examination was ever actually given to the social worker or that it was accurate. The absence of record evidence on this point, and the fact that appellants counsel never again made mention of this contact information raises substantial doubt as to whether follow up of this information would have yielded pertinent information on the whereabouts of the paternal grandmother. We therefore disregard appellants unsupported assertion that the Bureau failed to follow up on accurate contact information given by appellants counsel.

Initially, we note it is arguable whether appellant has standing to raise relative placement issues because "[a]n appellant cannot urge errors which affect only another party who does not appeal. [Citations.]" (In re Vanessa Z. (1994) 23 Cal.App.4th 258, 261; see Cesar V., supra, 91 Cal.App.4th at pp. 1034-1035.) Even if appellant does have standing to challenge the Bureaus alleged deficient conduct regarding placement of Alexander with his mother, the scope of his challenge is limited by the record before us.

As noted above, appellant argues that once provided with accurate contact information, the Bureau had a duty to contact the paternal grandmother to see if she, in fact, desired to have Alexander placed with her. Appellants arguments in this regard ask us to assume that the Bureau had accurate contact information for the paternal grandmother that it failed to act on. However, there was no evidence or offer of proof presented at the section 366.26 hearing held on January 18, 2006, that the Bureau was aware of how to contact the paternal grandmother. In fact, the only record evidence was that the Bureau was unable to contact the grandmother as she provided an incorrect address and phone number on a placement application, and she did not leave an accurate telephone number when she contacted the Bureau about the status of her application. The adoption social worker testified appellant never contacted her about relative placement. Appellant had ample opportunity to update the court with new information or challenge the social workers testimony. The record supports the conclusion that appellant failed to do so.

Moreover, there is no indication in the record that the paternal grandparent was seriously interested in having Alexander placed with her. She never attended any of the court hearings, never filed a declaration in these proceedings, never met with the social worker, nor did she even visit with the child. Due to her failure to present herself to the Bureau or the court for possible placement, we cannot find the Bureau failed to comply with its statutory duty to accord her preferential placement consideration. (§ 361.3, subd. (a).)

C. Additional Visitation

Under section 366.26, subdivision (c), the court is to refrain from terminating parental rights if termination will be detrimental to the child, as in the case where the parent has maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. (See § 366.26, subd . (c)(1)(A).) Appellant claims he was denied due process because the visitation he was allowed by the Bureau, which was limited to "five supervised visits from August 18, 2005 through January 18, 2006" was insufficient to establish the section 366.26, subdivision (c)(1)(A) exception to adoptability. He argues that "[i]f [he] had been able to visit with Alexander more frequently he may have been able to make a stronger showing that Alexander would benefit by a permanent plan other than adoption."

As respondent points out, the visitation order in this case called for a "minimum" of one visit a month. There is no evidence that appellant asked for more visits than the minimum allowable, or that he took any steps to seek modification of the visitation order if he deemed it inadequate. Therefore, there was no denial of due process. (See In re Zacharia D. (1993) 6 Cal.4th 435, 454-455;In re Chantal S. (1996) 13 Cal.4th 196, 212-213; In re Marilyn H. (1993) 5 Cal.4th 295, 309.)

IV.

DISPOSITION

The judgment is affirmed.

We concur:

REARDON, J.

SEPULVEDA, J.


Summaries of

In re Alexander B.

Court of Appeal of California
Dec 11, 2006
No. A112844 (Cal. Ct. App. Dec. 11, 2006)
Case details for

In re Alexander B.

Case Details

Full title:In re Alexander B., a Person Coming Under the Juvenile Court Law. CONTRA…

Court:Court of Appeal of California

Date published: Dec 11, 2006

Citations

No. A112844 (Cal. Ct. App. Dec. 11, 2006)