Opinion
B202901
6-4-2008
In re DARNELL H. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. JENNIE C., Defendant and Appellant.
Andre F. F. Toscano, under appointment by the Court of Appeal, for Defendant and Appellant. Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and William D. Thetford, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Jennie C. (mother) appeals from the juvenile courts orders denying her Welfare and Institutions Code section 388 petition and terminating her parental rights to her children Darnell H. III (Darnell), L.H. (L.), and Leila H. (Leila) (collectively the minors). We find no error and affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTS
Background
Darnell was born in February 2000, L. in November 2001, and Leila in July 2003.
In 2004, mother and Darnell H. Jr. (father) had a dispute and mother left home. Because father anticipated going to jail on a domestic violence charge and needed someone to care for the minors, he called the Child Abuse Hotline. He eventually met with a social worker from the Department of Children and Family Services (Department) and, on November 5, 2004, entered into a voluntary family reunification contract. As a result, the minors were placed in foster care.
On November 18, 2004, mother called the social worker to report that she was in jail after being arrested for grand theft auto.
The minors foster mother took them to urgent care to receive treatment for apparent colds. Leila had a temperature and an ear infection. While bathing L. and Leila, the foster mother noted bruising on L.s back. She also noticed a "foul vaginal smell" coming from both of the girls.
After she was released from jail, mother moved in with her aunt, Delores O. The minors were returned to mothers custody on February 18, 2005. Mother signed a voluntary family maintenance case plan which required drug testing, counseling and domestic violence counseling. A few days later mother and the minors moved to the home of some friends.
The social worker went to the friends home, but mother was not there. Mothers friends said they were allowing mother and the minors to stay on a temporary basis, and that mother was avoiding them. The social worker unsuccessfully attempted home visits on March 16, 2005, and March 30, 2005. Subsequently, the social worker was told that mother and the minors had left the home. The social worker spent the next month and a half trying to locate them. After locating mother, the social worker told her that she needed to stay in contact and drug test.
On August 31, 2005, mother said she felt harassed because the Department was keeping the voluntary case open. The social worker observed that the children were unkempt and urged mother to maintain the voluntary case plan. Subsequent attempts to contact the family were mostly unsuccessful. Mother refused to drug test or abide by the voluntary case plan.
Detention and jurisdiction
On February 12, 2006, a social worker responded to a referral of neglect alleging that mother had been arrested and had left the minors in the care of a male friend. The minors were found in the custody of Marvin A. He did not have car seats for the minors, nor did he have food or clothing for them. The social worker took the minors into protective custody.
According to the Departments detention report, mother was arrested and jailed for petty theft. Her criminal history revealed an unspecified misdemeanor conviction, prior jail time and arrests for burglary, theft of personal property, petty theft and shoplifting.
In 2004, and then again in 2005, Marvin A. was arrested for possession of marijuana.
The social worker observed bruising up and down the inside of the shins of both legs of Darnell and Leila. While changing Leilas diaper, the social worker saw that her genital area was extremely red.
The minors were placed with Louise F. (Louise).
During mediation, the parties agreed that the section 300 petition on file would be amended to state that mother placed the minors at risk by creating an unsanitary and an unsafe home condition, and that father and mother put the minors at risk by exposing them to domestic violence. Further, the minors would be suitably placed and mother and father would receive reunification services, including parenting education, counseling and monitored visitation. The juvenile court sustained the amended section 300 petition and ordered the Department to provide the family with reunification services.
Six-month review
On October 17, 2006, the Department reported that the minors were living with Louise, father was homeless and reportedly using drugs, and mother was in jail awaiting transfer to prison. Mother had not visited the minors since the end of May 2006. Prior to that, her visits were inconsistent. According to the Department, mother had not complied with the case plan. The Department recommended the termination of reunification services.
The hearing was continued and the Department filed another report on January 8, 2007. The minors were happy and functioning well in foster care. They called Louise "mommy." Darnell and L. stated that though they missed mother and father, they wanted to stay with Louise. The minors paternal grandmother visited them every weekend. They enjoyed the visits.
Regarding the parents, the Department reported that father was incarcerated at Chino State Prison. He had been incarcerated for most of the review period, and he had not made any attempt to contact the minors. Mother had also been incarcerated for most of the review period. She was at Valley State Prison for Women, and made limited contact with the minors by sending letters. Mother did not communicate with the social worker except once, which was on September 1, 2006. Neither mother nor father complied with the case plan or participated in juvenile court ordered activities.
Louise informed the social worker that she wanted to adopt the minors. The paternal grandmother was concerned that the minors would regress if they were returned to mother or father. In the her opinion, the minors would be better off being adopted by Louise.
The Department recommended the termination of family reunification services, the suspension of visitation, and the setting of a section 366.26 hearing. The matter was continued for a contested hearing.
On January 8, 2007, the Department was ordered to facilitate weekly telephone contact between mother and the minors.
Mothers telephone contact with the minors
Louise told the social worker that mothers telephone calls were having a negative impact on the minors. They were sadder around the house, and Leila picked up negative behaviors, such as behaving and talking like a baby. When the social worker visited on February 14, 2007, the minors seemed depressed due to the monitored telephone calls from prison. They stated that they feel sad because mother calls from prison, and Darnell said his brain is confused. According to Louise, mother asked Darnell to help her in court by telling the judge that he and his sisters want to live with mother. Darnell refused to take more calls. He would stay in his room playing video games and would not talk about his feelings.
The contested six-month review hearing on March 27, 2007
Mother submitted documents showing that she participated in the Walden House Substance Abuse Program while at Valley State Prison for Women, that she applied for a Get On the Bus event to visit the minors, and she obtained certificates for three hours of classes relating to domestic violence, life skills, and the law pertaining to paternity and child support. She also provided a log of all the times she sent the minors letters or cards.
At the hearing, mother was the first to testify.
She was incarcerated at the inception of the case, and she was incarcerated at the time of the hearing. For a brief period—from March to May 2006—she was not incarcerated. Because she was not in prison, she was able to visit the minors. During a hearing in April 2006, she was ordered to attend anger management and domestic violence counseling, and to submit to drug testing. No one ever asked her to drug test.
Asked on cross-examination why she was currently incarcerated, she said it was for robbery.
According to mother, she never received referrals from the Department regarding available programs. She tried to contact the Department in August 2006. The only time she was contacted was when she received a status review report in the mail in October 2006. She testified that she was currently in a substance abuse program which dealt with anger management, and she was on a waiting list for a parenting program. She attended the Walden House Substance Abuse Program five days a week, four hours a day. Her projected release date was February 22, 2008. It was possible she could be released sooner.
In mothers opinion, the Department did nothing to help her reunify with the minors, except for sending the status review report.
On cross-examination, mother was asked whether it was true that the social worker sent letters every month regarding the status of the case. Mother said that she had only received two letters. Though mother said she visited the minors when she was not incarcerated, she did not know the number of visits, only that it was "more than once."
The juvenile court stated that it thought that mother did a good job availing herself of services once she was incarcerated. However, it found that returning the minors to the parents would create a substantial risk of detriment, and there was a continuing necessity for placement with Louise. Also, mothers incarceration was scheduled to extend beyond the permissible reunification date. After finding that the Department provided reasonable services, the juvenile court terminated family reunification services and set a section 366.26 hearing.
Mother was granted monthly telephone calls with the minors, but at the same time, the Department was given the discretion to terminate a call if mother did "anything inappropriate in those telephone calls."
The section 366.26 report
According to the Department, mother visited the minors only once or twice during the time she was out of prison in 2006. Louise was committed to adopting the minors, who called her "mom." The home study had been completed. The Department recommended that the parental rights be terminated and the minors placed for adoption.
The initial section 366.26 hearing on July 23, 2007
The parties convened for a section 366.26 hearing.
Mother requested a contest. Her counsel informed the juvenile court that mother had not received telephone calls from the minors since the last hearing despite writing letters to the Department. The juvenile court set the matter for a contested hearing on August 9, 2007. Regarding the telephone calls, the juvenile court stated: "Unfortunately, theres not much I can do about it today. It would have been better if she had written letters to you, and then we could have put the matter on calendar, and I could have ordered it." And, finally, the Department was ordered to facilitate telephone calls each week prior to the contested hearing.
Mothers section 388 petition
On August 9, 2007, mother filed a section 388 petition. For changed circumstances, mother averred: "[The Department] has violated the [juvenile courts] orders regarding visitation. On [January 8, 2007] [the juvenile court] ordered weekly phone calls for the [minors] with their mother. On [March 27, 2007] the [juvenile court] ordered monthly phone calls. Attached are four letters from mother to [the Department], requesting [the Department] to comply with the court orders." She sought an order continuing the section 366.26 hearing so that the Department could comply with the juvenile courts orders. Mother wanted the continuance to be for the length of time the Department was in noncompliance. Regarding the minors best interests, the petition stated: "The [minors] have lived with mother most of their lives and would benefit from a continuing relationship with [her]."
The combined section 388 and section 366.26 hearing on August 9, 2007
At the outset of the hearing, the juvenile court acknowledged that the Department failed to facilitate weekly phone calls between mother and the minors. But because reunification services had been terminated, the juvenile court was not empowered to make a "no-reasonable-efforts finding." Further, the juvenile court noted that it was just informed of the problem. Continuing on, it stated: "And if its not brought to my attention, theres nothing I can do."
Regarding the section 388 petition, the juvenile court did not "really think theres been a substantial change in circumstances. And its not in the best interest of the children to continue the hearing."
For the section 366.26 hearing, mother testified. Darnell was seven years old, L. five years old and Leila four years old. She took care of them for all but the last year and a half of their lives. They were detained in February 2006. At the time, mother was incarcerated. She was released in March or April 2006 and visited the minors through Innercircle. According to mother, she was supposed to have weekly visits, but she was homeless. When possible, she called the social worker who arranged the visits. Transportation was difficult. At one point, the social worker canceled three visits in a row. Mother requested that the visits be rescheduled, but the social worker would only allow mother to see the minors on a certain day of the week. After the three cancellations, the visits resumed until June, at which time mother was once again incarcerated.
Mother did not have contact with the minors until 2007, seven months later. During that seven-month period, mother wrote the social worker twice a month to ask for visits. She wanted to participate in On The Bus, which arranges visits between incarcerated mothers and children. The social worker denied mothers request because she and Louise did not want to transport the minors. Mother received Louises phone number in January 2007. Mother had approximately three phone calls by March. They lasted 15 minutes or so. Then the calls stopped. Mother repeatedly wrote to the social worker, and then wrote her supervisor. In mothers view, the Department interfered with her bond with the minors. On cross-examination, mother was asked if she could take custody of the minors. She said she could not because she was incarcerated for robbery.
After closing arguments, the juvenile court stated: "Usually when the Department violates [juvenile] court orders, I either order the . . . social worker in to court or I impose sanctions. But Im not sure that it necessarily occurs that the remedy would be to continue a hearing, a [section 366.26] hearing. It may be. But Im not sure that thats in the best interests of the [minors]. And thats really what has to guide my actions. [¶] . . . [¶] . . . [O]ne of the big problems here is that mother didnt visit when she was out of custody. And then she went back into custody. And that was her actions that did that. That wasnt the Department that got her arrested and convicted on a robbery charge. That was mother. [¶] And so she has had opportunities to maintain a bond with the [minors], and she frittered those opportunities away. And while the Department may not have done the most perfect job in obtaining the telephone contact, Im not sure that I can characterize it as a deliberate attempt to not follow my particular orders. [¶] . . . The real problem is that she hasnt acted as a parent to these [minors] for quite some time. [¶] I cannot believe that they look to the mother as a parental figure in their life rather than [Louise] who has been taking care of them 24 hours a day, 7 days a week, I think since the [minors] came into the system."
The juvenile court found that the minors were adoptable and terminated mothers and fathers parental rights.
This timely appeal followed.
DISCUSSION
Mother argues that the juvenile court abused its discretion when it denied her petition without a hearing on the merits. The Department contends that a section 388 petition is an improper vehicle for requesting the continuance of a section 366.26 hearing and that, in any event, the juvenile court allowed mothers counsel to argue the merits and found her petition lacking. Finally, it argues that even if mothers petition was a motion for a continuance, it was defective.
We agree with the Department that mothers petition was really a motion for a continuance, and that she is not entitled to relief.
1. The denial of mothers section 388 petition was proper.
We review the summary denial of a hearing on a section 388 petition for an abuse of discretion. (In re Angel B. (2002) 97 Cal.App.4th 454, 460.)
On its face, mothers petition did not qualify as a section 388 petition because it did not request a change or modification. Rather, it requested a continuance of the section 366.26 hearing. As a result, there is no basis for reversing the juvenile courts order. In other words, we cannot conclude that the juvenile court abused its discretion. Also, as the Department points out, section 366.26, subdivision (l) provides that an order setting a permanent plan hearing is not subject to appeal unless the appellant filed a petition for extraordinary writ. Mother did not do so. We fail, then, to see how she can challenge the section 366.26 hearing on appeal.
To be complete, we note that in mothers reply she cites In re Marilyn H. (1993) 5 Cal.4th 295, 309 (Marilyn H.) and In re Hunter S. (2006) 142 Cal.App.4th 1497, 1506 (Hunter S.) for the proposition that a section 388 petition can be used to request a continuance of a section 366.26 hearing.
On page 309, Marilyn H. stated that after reunification services are terminated, "the focus shifts to the needs of the child for permanency and stability." (Marilyn H., supra, 5 Cal.4th at p. 309.) From the time a section 366.26 hearing is set, it must be heard within 120 days. "The court need not continue to consider the issue of reunification at the section 366.26 hearing. The burden thereafter is on the parent to prove changed circumstances pursuant to section 388 to revive the reunification issue." (Marilyn H., supra, at p. 309.) Section 388 accommodates "the possibility that circumstances may change after the reunification period that may justify a change in a prior reunification order. A petition pursuant to section 388 may be used to raise the issue in the trial court prior to the section 366.26 hearing." (Marilyn H., supra, at p. 309.)
Here, mother did not seek a change in a prior reunification order. In essence, she sought a continuance in order to achieve a change of circumstances that would then authorize a change. They are not the same. As a result, we conclude that Marilyn H. does not facilitate mothers quest.
The impact of Hunter S. is parallel. In that case, the parent filed a section 388 petition seeking reinstatement of reunification services and an order vacating the section 366.26 hearing. (Hunter S., supra, 142 Cal.App.4th at p. 1506.) According to the parent, the juvenile court effectively refused to enforce its visitation orders and thereby denied her the opportunity to bond with her child. (Ibid.) Hunter S. does not assist mother because she did not request reinstatement of reunification services and an order vacating the section 366.26 hearing.
2. Even if mothers petition was a motion for a continuance, it was properly denied.
What happens if a parent does not have sufficient evidence to support a section 388 petition and needs time to get it? According to case law, the answer lies in section 352. It "contemplates there may be circumstances which will warrant a continuance of any scheduled hearing. When such circumstances arise the parent of a dependent child should be able to postpone the hearing so that he or she will be able to proceed under section 388. `There are some cases which may necessitate additional time so that the changing relationship between the minor and his or her parents can be examined. [Citation.] Recognizing there might be circumstances where a parent would not have sufficient information to permit the filing of a section 388 petition, the Legislature enacted section 352 so a party could continue the section 366.26 hearing to acquire the facts necessary to be able to make an adequate showing to obtain a section 388 hearing and ultimately, depending on the facts, to prevail in such a proceeding." (In re Michael R. (1992) 5 Cal.App.4th 687, 694.)
Section 352, subdivision (a) provides, in relevant part: "Upon request of counsel for the parent, . . . the court may continue any hearing . . . 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. [¶] Continuances shall be granted only upon a showing of good cause and only for that period of time shown to be necessary by the evidence presented."
Even if we construe mothers section 388 petition as a motion to continue the section 366.26 hearing, she cannot prevail.
a. Waiver.
In her reply brief, mother argues that the Departments failure to facilitate telephone calls between mother and the minors establishes good cause for a continuance. But she did not argue this below. She did not advert to section 352 or claim that she had good cause for a continuance. This argument, raised for the first time in her reply, is waived. (Hepner v. Franchise Tax Bd. (1997) 52 Cal.App.4th 1475, 1486; Wurlz v. Holloway (1996) 46 Cal.App.4th 1740, 1754, fn. 1.)
b. The merits.
The denial of a motion for a continuance is reviewed for an abuse of discretion. (In re Karla C. (2003) 113 Cal.App.4th 166, 180.) "Discretion is abused when a decision is arbitrary, capricious or patently absurd and results in a manifest miscarriage of justice. [Citation.]" (Ibid.)
The juvenile court did not abuse its discretion.
First, section 352, subdivision (a) provides that a motion for continuance must be accompanied by declarations "detailing specific facts showing that a continuance is necessary, unless the court for good cause entertains an oral motion for a continuance." Mother did not attach declarations to her petition. Also, section 352, subdivision (a) requires that a motion to continue be made two days before the hearing. Mother filed her section 388 petition on the day of the hearing. Thus, on a procedural level, her petition was doubly deficient.
Second, mother did not specify the length of the continuance necessary. Instead, she requested a continuance that lasted as long as the Department violated the juvenile courts orders. Because mother complained that the Department did not facilitate visitation once she was incarcerated in June 2006, it appears she wanted a continuance of over a year. The juvenile court was required to consider the minors best interests, which means the juvenile court had to give substantial weight to their need for prompt resolution of their custody status, the need to provide them with stable environments, and the damage they might suffer due to prolonged temporary placement. Given that mother was not scheduled to be released until after the 18-month mark (at which time custody is supposed to be resolved), a continuance would have put the minors in limbo for an indefinite period. In our view, in light of the record, a continuance of a year or longer would have been unreasonable.
Third, mother bears much of the blame for her lack of contact with the minors. She was incarcerated twice during the dependency proceedings, and she failed to bring the telephone call problem to the juvenile courts attention. These factors disfavor granting a continuance and further placing the minors in limbo regarding who will be their permanent caretaker.
3. Parental rights were properly terminated.
Mother argues that if we find that the juvenile court improperly denied her section 388 petition, then we must reverse the termination of her parental rights. Having lost on the first issue, the second issue is moot.
We need not reach the other issues raised by the parties.
DISPOSITION
The orders are affirmed.
We concur:
Doi Todd, Acting P. J.
Chavez, J.