Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. CK81861, Elizabeth Kim, Referee.
Andre F. F. Toscano, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Navid Nakhjavani, Deputy County Counsel, for Plaintiff and Respondent.
KITCHING, J.
INTRODUCTION
Mother Wendy O. (Mother) appeals from a juvenile court order sustaining jurisdictional allegations that her three-year-old son, King W. was a person described by Welfare and Institutions Code section 300, subdivision (b). We find that the juvenile court’s denial of Mother’s request to continue the adjudication hearing was not an abuse of discretion and did not deny Mother’s right to due process. We also find that substantial evidence supported the jurisdictional findings sustaining the allegations that King W. was a person described by section 300, subdivision (b). We affirm the order.
Unless otherwise specified, statutes in this opinion will refer to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL HISTORY
Detention and Section 300 Petition:
On April 11, 2010, three-year-old King W. was detained after an anonymous call raised concern for King’s safety due to Mother’s use of drugs and domestic violence compounded by bruises and King’s screaming on a regular basis. When a children’s social worker (CSW) and police officers went to Mother’s home, Mother opened the front door slightly, allowing a strong odor of marijuana to come from her apartment. Mother then slammed and locked the door and started cursing and shouting at the CSW and police officers, whom she accused of rape and maltreatment of people, screaming she was not going to open the door for “fucking police and social worker” and that “you mother fuckers will have to shoot me, ” raising her voice and causing neighbors to come out of their apartments. The CSW tried to calm Mother, but she called the CSW names and called the officers “racists.” Police officers heard furniture being moved to block the front door. They saw that King had pulled back window blinds and looked at officers, crying and appearing afraid.
More police officers were summoned, and after six more officers arrived, Mother banged windows, threw objects against the window bars, and acted uncontrollably as if under the influence of alcohol or drugs. King was crying and screaming loudly. A police sergeant arrived. After unsuccessfully trying to calm Mother, he ordered officers to enter the home forcibly. The officers used breaching tools, and after moving a couch and shelf placed to block the front door, entered the home. Inside the CSW smelled a much stronger odor of marijuana, and observed marijuana buds and joints lying throughout the home very accessible to King. Officers believed Mother was under the influence due to her erratic behavior. Mother was belligerent and refused to provide information about relatives. The home was filthy, with trash and piles of dirty clothes and a stench of rotten food and dirty diaper, with roaches crawling on the floor and walls. King, found sitting on a pile of trash, appeared very dirty, with a heavily soaked diaper with a stench of feces that he may have carried for several hours. The home had no food. Mother was arrested for willfully endangering King’s health, barricading herself and him inside her residence in blatant disregard of officer orders, interfering with a police investigation, and because her actions were consistent with being under the influence of alcohol or drugs. King was detained and placed in a group home.
On April 14, 2010, the Department of Children and Family Services (DCFS) filed a section 300 alleging that King W. was a person described by section 300, subdivision (b), in that Mother possessed marijuana in the home in King’s presence, establishing a detrimental and endangering home environment and endangering King’s physical and emotional health and safety. A first amended petition alleged in a second count that on April 11, 2010, Mother barricaded herself and King inside the home and interfering with an ongoing police investigation by disregarding law enforcement requests, and Mother’s incoherent behavior forced law enforcement to gain entry, which placed King at risk of physical and emotional harm and damage.
A maternal grandmother stated that Edwin W. (Father) was King’s biological father.
At the April 14, 2010, detention hearing, the juvenile court found that a prima facie case was established for detaining King as a person described by section 300, subdivisions (b) and (g), and ordered him detained.
Allegations in the section 300 petition that King was a person described by section 300, subdivision (g) were later dismissed.
Adjudication and Disposition:
On April 13, 2010, King was seen by Ernesto B. Banaag, M.D., who reported that King was severely autistic, nonverbal, and unable to follow directions, was underweight, and wore diapers. A Regional Center Evaluation Report stated that King required constant supervision to prevent injury, King’s disruptive behavior interfered with social participation almost daily, self-injurious behavior occurred, running or wandering away occurred or was attempted almost every day, and King’s outbursts requiring intervention occurred at least once a week.
On April 15, 2010, Father appeared at a DCFS office, stated he was not aware of what was going on until he came to the office, and said he did not want King in foster care and would do whatever it took to have his child with him. The juvenile court ordered the DCFS to inspect Father’s home and report for an April 26, 2010, hearing. The DCFS reported that Father lived alone in a one-bedroom apartment that was clean, appropriately furnished, with working appliances and utilities and no visible safety hazards. Father had a criminal history, with five felony convictions in 1987. Father said he was released from prison in 2005 and complied with the terms of his parole. Father stated that he and Mother never married and he never lived in Mother’s home, but he had been in King’s life since he was born and visited frequently. He and Mother had a Family Law order for visitation and child support. Father was reported to be in denial about King’s challenges and denied that King was autistic. Father felt that King was being “labeled” because Mother wanted King to qualify for Social Security Income.
On April 26, 2010, the juvenile court found Father to be King’s presumed father.
The DCFS reported that besides her arrest on April 11, 2010, when King was detained, Mother had been arrested on February 25, 2010, on a charge of kidnapping with intent to commit a sex crime. The arrest report stated that Mother and her boyfriend lured a victim to Mother’s home to get money from the victim which they thought was owed to them through an IRS tax return scheme they were all involved in. The victim did not have the money, so Mother and her boyfriend watched while another suspect forced the victim to have sexual intercourse. Mother and her boyfriend were released on February 25, 2010.
Mother had a criminal history with misdemeanor convictions in 1993 for trespass, driving without a license, and three counts of forging name on an access card. Mother was interviewed. She denied marijuana usage and denied having marijuana in her home. She claimed that on April 11, 2010, she had just arrived home when police banged on her door, and she panicked because her hair was not combed and she had not had time to take her coat off or change King’s diaper. Mother stated that she had PTSD, had only legal drugs for anxiety, but refused to disclose what medication she took or whether she was currently in therapy or under a psychiatrist’s care. Mother said she burned frankincense, sage, and oil, which is what they smelled, not marijuana. Mother refused to submit to an on demand drug test.
Father was interviewed. He stated that Mother smoked marijuana in front of the children in her house and left drug paraphernalia around the house. Father said that on at least one occasion police pulled Mother over for smoking marijuana in the car while King was with her. Father also stated that Mother had a boyfriend who lived with her and they both sold Vicodin, Oxycontin, and Robitussin, and that everyone called her “the pill lady.” Father had also seen Mother sell marijuana. Father stated that Mother had a history of police coming to her home and had a recent arrest in addition to her March 2010 arrest. He stated that Mother and her boyfriend were also involved in a tax scam claiming someone else’s dependents. Father said Mother had a history of violent behavior and was diagnosed with bipolar disorder. He had filed a restraining order against Mother because of her violent behavior. Mother was ordered to take a 52-week domestic violence class but Mother would not attend.
The DCFS stated that its intervention was required because of Mother’s erratic behavior, illicit drug use, and unwillingness to comply with the DCFS, and that Mother’s actions endangered King’s physical and emotional health. Father was assessed as cooperative with the DCFS and very concerned about King. Father wanted King to reside with him and felt he could meet King’s needs.
On May 5, 2010, the juvenile court ordered King released to Father’s custody.
On June 7, 2010, the DCFS reported that that Mother went to a maternal aunt’s home where a maternal cousin was caring for King while Father was at work. Mother demanded that King be given to her. When the maternal cousin refused, Mother called the police and provided them with a restraining order and custody order she obtained in Superior Court on June 1, 2010. Father arrived as Mother was ready to leave with King in her car. Father spoke with police and contacted the CSW, who arrived and talked to the police, who returned King to Father’s custody. On June 7, 2010, King’s attorney obtained a restraining order prohibiting Mother from contacting King or Father except as required for court-ordered visitation. The juvenile court set a hearing for a permanent restraining order, and the hearing on the adjudication, for June 23, 2010, and ordered the social worker to be on call for that date.
At the June 23, 2010, hearing, Mother’s counsel requested a continuance. Counsel explained that on June 21, 2010, she had informed the juvenile court that she had a medical appointment and could not appear at the June 23 hearing. The juvenile court indicated that Mother’s counsel should inform the parties and their counsel to have their witnesses placed on call for June 23 and that the juvenile court would indicate in the morning of June 23 when the hearing would proceed. Counsel stated that she did as the juvenile court requested. Mother’s counsel stated, however, that she had spoken to Michael Miller, the attorney who handled cases in her absence, who said he did not understand that the juvenile court wished to proceed in the afternoon of June 23, and did not call Mother and tell her to be present for the hearing. Mother and Mother’s witnesses therefore were not present, and Mother requested a continuance.
The juvenile court stated that it held a conference during the morning with all counsel, including Mother’s counsel, in which Father’s counsel indicated Father needed to leave by 3:00 p.m. The juvenile court at that time informed all counsel that the case should be ready to proceed at 1:30 p.m. The juvenile court found there was not good cause to continue the matter, and denied the request for a continuance.
Mother’s counsel informed the court that she had an offer of proof as to Mother’s testimony. Mother would testify that she does not ingest marijuana in any form and does not burn it in her apartment, but instead burns ritualistic oils, some of which are herbs that she uses to treat health conditions holistically, which caused the odor emanating from her home on April 11, 2010. Mother would also testify that no herbs or oils had been burned on April 11, 2010. Mother’s counsel also observed that the social worker was the only person mentioning the presence or odor of marijuana, whom Mother intended to cross-examine about the lack of training or experience with marijuana and its odor and his lack of training or experience with the burning of herbs and oils used by Mother. Mother would also testify that she suffered from post-traumatic stress disorder because of previous abuse by the Los Angeles Police Department, would deny hospitalizations for psychiatric evaluation or treatment, would testify that she is legally blind and cannot see or identify individuals at night, and would testify that she reacted by removing King from her living room to her bedroom, which is when the police broke down her door and entered her home. All counsel stipulated that this would have been Mother’s testimony. The juvenile court accepted the stipulated offer of proof.
Regarding the social worker, the juvenile court stated that there was no request made that the social worker be present at 1:30 p.m. The juvenile court denied the request to continue the hearing.
After hearing argument from counsel, the juvenile court sustained the two counts of the amended petition as to Mother, found that King was a person described by section 300, subdivision (b) and declared King a dependent child of the juvenile court, and ordered King placed in the home of Father under DCFS supervision. The juvenile court ordered that Mother receive family reunification services, that Mother have monitored visitation, and ordered Mother to participate in individual counseling, parenting class, drug counseling, random drug testing, and individual counseling to address case issues. Father was ordered to receive family maintenance services. The juvenile court granted the order for a permanent restraining order, prohibiting Mother from coming within 100 yards of Father or King except in the exercise of permitted visitation, with the order to expire on June 18, 2011.
Mother filed a timely notice of appeal.
ISSUES
Mother claims on appeal that:
1. The denial of a continuance of the June 23, 2010, hearing was an abuse of discretion and denied Mother her due process right to present evidence; and
2. Substantial evidence did not support the findings sustaining the section 300, subdivision (b) allegations of the petition.
DISCUSSION
1. The Denial of a Continuance Was Not an Abuse of Discretion and Was Not a Denial of Mother’s Right to Due Process
Mother claims that because of a misunderstanding between the juvenile court and her counsel, Mother and the DCFS social worker who was present on April 11, 2010, when King was detained did not appear at the June 23, 2010, adjudication hearing. Mother argues that the misunderstanding and the juvenile court’s mistaken belief that Mother’s counsel did not request, and that the juvenile court did not order, the DCFS social worker to be available on June 23, 2010, provided good cause to continue the matter. Mother also argued that a continuance was not against King’s interests. Mother argued that denial of a continuance was an abuse of discretion and denied her due process right to be heard and to present evidence as to the section 300 petition against her.
a. The Law of Continuances and the Standard of Review
Section 352, subdivision (a) states: “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 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.
“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 at the hearing on the motion for the continuance. Neither a stipulation between counsel nor the convenience of the parties is in and of itself a good cause. Further neither a pending criminal prosecution nor family law matter shall be considered in and of itself as good cause. Whenever any continuance is granted, the facts proven which require the continuance shall be entered upon the minutes of the court.”
The requirement that a juvenile court may continue a dependency hearing at a parent’s request for good cause and only for the time shown to be necessary reflects a policy discouraging continuances. Denial of a request to continue a dependency hearing will not be overturned on appeal absent an abuse of discretion. (In re Giovanni F. (2010) 184 Cal.App.4th 594, 604-605.)
b. Denial of Mother’s Request for a Continuance Was Not an Abuse of Discretion
Mother argues that she was not present on June 23, 2010, afternoon hearing because of a misunderstanding between the juvenile court and Mother’s counsel. The record shows that the juvenile court directed Mother’s counsel to contact the parties and counsel and let them know that their witnesses should be placed on call for June 23, 2010, and that in the morning the juvenile court would indicate when the hearing would proceed in the afternoon. Mother’s counsel stated that she did inform Mother that she should expect a phone call during the morning of June 23, 2010. Mother’s counsel, however, also stated that she spoke with Michael Miller, the attorney who handled cases in her absence, who indicated that he did not understand that the juvenile court wished to proceed in the afternoon of June 23, 2010, and did not call Mother and inform her to be present. The juvenile court rejected Mother’s argument, and stated that during the morning of June 23, 2010, the court conferenced with all counsel, including Mother’s counsel, and informed them that the case should be ready to proceed at 1:30 p.m. Consequently Mother’s failure to appear for the afternoon hearing on June 23, 2010, did not stem from a misunderstanding between the juvenile court and Mother’s counsel, but was instead traceable to Mother’s counsel’s failure to communicate with her client. The juvenile court did not abuse its discretion in finding this was not good cause to continue the hearing.
Mother also states that the trial court erroneously stated that Mother’s counsel did not request the appearance of the emergency response social worker who accompanied police at the time of King’s detention from Mother on April 11, 2010. The juvenile court stated: “With respect to the request that the E.R. worker be present in court today, again, there was no request made that she was – that she should be here. And all of the witnesses were placed on-call for today in the morning. And there was no request that the E.R. worker be ordered present at 1:30 [p.m.]” Thus the emergency response social worker was not present because during the morning conference with the juvenile court judge, no counsel, including Mother’s counsel, requested that social worker to be present. The juvenile court did not abuse its discretion in finding this was not good cause to continue the hearing.
Mother also argues that because Mother and the emergency response social worker could appear at a continued hearing within a short period of time, resolution of King’s custody status would not be significantly delayed and therefore a continuance was not contrary to King’s interests. Section 352, subdivision (a) states that a trial court “may” continue a hearing, “provided that no continuance shall be granted that is contrary to the interest of the minor.” The statute prohibits the grant of a continuance that is contrary to the minor’s interests. The reverse, however, is not true; that a continuance is not contrary to a minor’s best interest does not require the juvenile court to grant the request for a continuance.
We find that the denial of Mother’s request for a continuance was not an abuse of discretion.
c. Denial of Mother’s Request for a Continuance Did Not Deny Mother’s Right to Due Process
Mother argues that the denial of her request for a continuance violated her due process right to be heard and to present evidence at the adjudication hearing. Mother claims that her testimony, and her right to cross-examine the emergency response social worker, were essential for the proper determination of the counts in the petition that were sustained by the juvenile court.
In determining what process is due, the court balances “ ‘ “(1) the private interest that will be affected by the official action, (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, (3) the [dignity] interest in informing individuals of the nature, grounds and consequences of the action and in enabling them to present their side of the story before a responsible governmental official, and (4) the governmental interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” ’ ” (In re Malinda S. (1990) 51 Cal.3d 368, 383.)
Mother’s absence from the June 23, 2010, hearing was due to her counsel’s failure to inform her of the hearing. The juvenile court, however, heard and admitted Mother’s testimony pursuant to an offer of proof, to which all counsel stipulated and which stipulation the juvenile court accepted.
The absence of the emergency response social worker also was traceable to Mother’s counsel’s failure to request his presence at the afternoon hearing. Although Mother asserts that she would have cross-examined that social worker on his lack of experience and training with marijuana and its odors and with the herbs and oils Mother used, the emergency response social worker did not merely smell the odor of marijuana. The emergency response social worker observed several marijuana buds and joints throughout Mother’s house that were accessible to King.
We do not find that the juvenile court’s denial of Mother’s request for a continuance was a denial of due process.
2. Substantial Evidence Supports the Sustaining of Jurisdictional Allegations in the Section 300 Petition Pursuant to Subdivision (b)
Mother claims that substantial evidence did not support the juvenile court’s findings sustaining the allegations in the section 300 petition that King was a person described by section 300, subdivision (b). We disagree.
a. Standard of Review of Jurisdictional Findings (Adjudication)
Section 300 sets forth the grounds for juvenile court jurisdiction over those who are declared dependent children of the court. “The basic question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm.” (In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1134.) This court reviews jurisdictional findings according to the substantial evidence test, and thus we review the evidence before the juvenile court in the light most favorable to its order. (In re S. O. (2002) 103 Cal.App.4th 453, 461.)
b. Substantial Evidence Supported Allegations in Counts 1 and 2 of the Petition
The section 300 petition alleged two counts pursuant to subdivision (b). Count 1 alleged that Mother possessed marijuana in the home within access to the child, and that on April 11, 2010, the smell of marijuana permeated the child’s home in the child’s presence. Count 2 alleged that Mother barricaded herself and King inside the home and interfered with a police investigation by blatantly disregarding law enforcement requests, and Mother’s incoherent behavior forced law enforcement to gain entry into Mother’s apartment. The petition alleged that Mother’s conduct created a detrimental home environment that endangered King’s physical and emotional health and safety, placing him at risk of physical and emotional harm and damage.
The social worker who accompanied police to Mother’s home on April 11, 2010, reported that when Mother opened the door slightly, a strong odor of marijuana came from her apartment. Mother then shut the door and started cursing and shouting at the CSW and the police officers, whom she accused of rape and maltreatment of people, screaming that she was not going to open the door for “fucking police and social worker, ” and “you mother fuckers will have to shoot me, ” and calling the officers “racists.” Police officers tried to calm Mother down through her window, but Mother responded by banging the windows and throwing objects against the window’s protective bars, and acting uncontrollably. King could be heard crying and screaming loudly, and looked out at police officers crying and apparently afraid as a result of Mother’s actions. Mother’s behavior posed a safety concern for King.
The police report stated that Mother was advised that if she did not allow police to enter the apartment they would have to breach the door. Mother again refused and stated that they would have to break the door down. Police officers heard what they believed to be furniture being moved to block the front door. Officers made several more attempts to convince Mother to calm down and permit them to enter the apartment. Mother became more combative, banged her fist against a window next to the front door, and cursed and threatened officers if they attempted entry. Fearing for King’s safety, officers entered the apartment through the front door using breaching tools. Officers had to move a couch and shelf that had been placed in front of the front door.
Inside the house the CSW again smelled marijuana, this time a much stronger odor, and observed several marijuana buds and joints lying throughout the home very accessible to King. Mother acted uncontrollably, as if under the influence of drugs. The police report described Mother as verbally combative, shouting, and threatening officers and acting in a manner that lead officers to believe she might be under the influence of alcohol or drugs. Although Mother denied marijuana usage and denied having marijuana in her home, she refused to submit to an on-demand drug test. Father reported that Mother smoked marijuana, and had been pulled over by police for smoking marijuana in her car while King was present. Father also stated that he had witnessed Mother selling marijuana.
When police officers entered the apartment, Mother grabbed King, ran to the bedroom, and fell down on a bed on top of her son, wrapping her arms tightly around him placing all her body weight upon him and refusing to let go of the crying child. Mother was arrested and booked for child endangerment.
Prior abuse and harm, or a substantial risk the child will suffer serious physical harm, is sufficient to establish dependency jurisdiction under section 300, subdivision (b). (In re J.K. (2009) 174 Cal.App.4th 1426, 1435.) There was substantial evidence supporting the sustaining of allegations in counts 1 and 2 in the section 300 petition.
DISPOSITION
The order is affirmed.
We concur: KLEIN, P. J., ALDRICH, J.