Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super.Ct.No. J108719. Elva R. Soper, Judge. (Retired judge of the Los Angeles S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Brent Riggs, under appointment by the Court of Appeal, for Defendant and Appellant.
Joe S. Rank, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.
Michael D. Randall, under appointment by the Court of Appeal, for Minor.
OPINION
MILLER, J.
FACTUAL AND PROCEDURAL HISTORY
Leroy D., a healthy baby boy born March 2005, tested negative for controlled substances. His mother, Natalie F., tested positive for methamphetamine. Based on that positive test, an “immediate response” referral was made by the hospital to the Riverside County Department of Public Social Services (DPSS or the Department). A social worker, Tracy Link, responded the next day and visited mother and Leroy at the hospital.
During Link’s interview, mother recounted that she had been convicted of two theft cases and had been released from custody on January 27 or January 29, 2005. She was currently living in a motel with Leroy’s father, Christopher D. An open family reunification case for her other son, Andrew, was pending.
Father is not a party to this appeal.
Andrew is Leroy’s half-brother; he is not a party to this appeal.
Mother told Link she was asked to take a drug test six days earlier, but was unable to do so as she did not have her identification with her. She maintained that she had last used methamphetamine two years ago, before the birth of Andrew.
After concluding the interview, Link met and conferred with the hospital’s social worker, who reported that mother did not submit to a drug test. Link requested that the hospital perform a drug test on mother. Later that evening, mother’s results came back positive for methamphetamine. Consequently, the hospital’s social worker informed the nurses that mother could not breastfeed Leroy.
As a result, DPSS filed a Welfare & Institutions Code section 300, subdivision (b) & (j) petition on April 4, 2005, requesting that Leroy be made a dependent of the juvenile court. The petition alleged Leroy was subject to the same risks as Andrew, who had been abused and neglected. It also alleged Leroy’s parents failed to protect him because they were unable to supervise or adequately protect him and could not provide him regular care because of “mental illness, developmental disability, or substance abuse.”
All further statutory references will be to the Welfare and Institutions Code unless otherwise indicated.
Mother attended the detention hearing on April 5, 2005. She was appointed counsel, acknowledged receipt of the petition, and denied the allegations contained therein. The juvenile court found there was probable cause to detain Leroy, and removed him from his parents’ custody. It set a jurisdictional hearing for April 26, 2005.
At the April 26 jurisdictional hearing, mother was present, but father failed to appear; the juvenile court set a May 26, 2005, pretrial hearing date and continued the jurisdictional hearing to June 14, 2005.
At the May 26, 2005, pretrial hearing, both mother and father appeared with their respective counsel. The juvenile court authorized DPSS to provide both parents with inpatient drug treatment.
Prior to the jurisdictional hearing, DPSS filed an addendum report indicating that mother had been terminated from a Corona substance abuse program on May 26, 2005, for failing to appear at the classes. The social worker resubmitted a referral for mother to be assessed for inpatient substance abuse treatment and requested that random drug testing be provided to her in Corona. However, instead of appearing in Corona, mother attended substance abuse classes in Riverside on June 1 and June 6, 2005. On both occasions mother refused a counselor’s request that she submit to a drug test. Mother also refused the social worker’s request to participate in inpatient drug treatment, and failed to appear at a drug test scheduled on June 7th.
At the contested June 14, 2005, jurisdictional hearing, mother testified she had been released from custody in January 2005, was unemployed, and was living at a motel. She was due to receive a class completion certificate from a domestic violence class the following week and was currently in her fourth week of a 16-week substance abuse class. She indicated she had benefited from these classes.
Mother denied having a long drug history as the social worker claimed. She testified that she only used controlled substances 15 years ago when she was in high school. She last used marijuana in February 2004. She does not drink alcohol every day, but only on special occasions; when she does drink, she states she does not get so drunk that she does not know what she is doing.
Natalie testified that she did not know marijuana was a controlled substance.
Mother indicated she visited Andrew weekly, and visited Leroy twice a month with father. She said after every visit with Andrew, he would cry that he wanted to go home with her. She believed her children would be safe in her custody if she had suitable housing, and planned to make sufficient progress in her case plan to obtain custody of Leroy.
In its review findings, the juvenile court observed that when mother finally started the programs, her attendance was sporadic: she missed two out of four classes. She did not submit to drug tests, was homeless, and unemployed. She still abused alcohol and marijuana. She had no explanation as to why she tested positive for amphetamine. She denied that she had a drug problem and had no comprehension of her alcohol problem, which was reflected in her statement: “‘I don’t get drunk enough that I don’t know what I’m doing.’” The court determined that mother had not benefited from services, and based upon her testimony, was not likely to benefit from future services. It found mother’s progress toward alleviating and mitigating the causes necessitating placement was unsatisfactory. Thus, it terminated her services as to Andrew, finding there was no reasonable belief that she would benefit from another six months of services. The court stated adoption remained as Andrew’s permanent plan.
With respect to Leroy, a jurisdictional hearing was held immediately after Andrew’s hearing. Mother’s counsel argued that her positive amphetamine and opiate drug tests after Leroy’s birth were caused by the medications she received at the hospital. Mother argued that she had resolved her “history of using controlled substances,” citing as support the fact that neither Andrew nor Leroy were “born drug positive.” Mother’s counsel requested that she be extended reunification services for another six months.
The juvenile court again detailed its concerns that mother’s lifestyle was enmeshed in substance abuse. After considering the reports, addendums, and evidence, the juvenile court found Leroy came within the jurisdiction of section 300, subdivisions (b) and (j), and adjudged him a dependent of the juvenile court. It again found that the parents’ progress toward alleviating or mitigating the causes necessitating placement had been unsatisfactory. With respect to mother, the court determined that services would not be in the child’s best interests. The juvenile court set a six month review hearing for Leroy on November 30, 2005.
The juvenile court stated, “But what mom and dad both don’t seem to get . . . is mom’s statement that it was just a joint, I didn’t know marijuana was a controlled substance, and I don’t get drunk enough that I don’t know what I’m doing shows that her entire lifestyle is enmeshed in substance abuse. [¶] She does not understand because that’s the life she lives. . . . That kind of lifestyle affects . . . her children, and then it affects her ability to be raising her children safely. You know, you have to wonder how you get to homelessness and transience. It has [a lot to do] with substance abuse.
On November 18, 2005, DPSS filed a status review report recommending that Leroy’s case be transferred to North Carolina under the ICPC (Interstate Compact on the Placement of Children). A physician found Leroy to be in good health. Andrew was placed in the home with Leroy, resulting in Leroy becoming “calmer and less fussy.” Mother reported her two oldest boys, 15-year-old twins, had “‘act[ed] out’” by “ditching” school and shoplifting. They moved in with their maternal grandmother and were doing well in school and staying out of trouble. Mother stated she used drugs “‘off and on’” while caring for the twins, but did not believe that was a reason for the boys “‘acting out.’” When informed of her right to relinquish her parental rights to Leroy, mother responded that “she ‘did not want to even think about that with Leroy.’” On the positive side, the social worker’s log reflected that mother and father were affianced and were looking for housing together. Father apologized that his search for a home interfered with his contacting DPSS. Mother related that father had never been abusive and would do what was necessary to regain custody of Leroy.
On April 17, 2005, a paternal sister requested placement of Leroy with her in North Carolina. The paternal grandmother also expressed an interest in providing permanency for Leroy.
Mother and father failed to appear at the contested January 5, 2006, status review hearing. DPSS requested the minor remain a dependent, that services to father be terminated, and to set a contested selection and implementation hearing. Mother’s counsel reminded the court that mother had never been offered services. Father’s counsel informed the court that he failed to avail himself of DPSS’s services and had not visited the child. The court found that neither parent visited the child, had not contacted DPSS, or completed any part of the case plan. Consequently, it continued Leroy as a dependent of the court, terminated services to the parents, authorized an ICPC referral to North Carolina with two paternal relatives residing in that state, and ordered adoption as a permanent plan. It set a contested selection and implementation for May 8, 2006, and a contested review date for June 26, 2006.
This was because reunification services were terminated in Andrew’s dependency case.
On April 14, 2006, DPSS filed a section 366.26 report, recommending the hearing be continued in order to establish placement with the paternal grandmother in North Carolina, under the recently approved ICPC application. The report noted that neither parent had contacted Leroy for several months and had failed to contact DPSS to establish visitation, or inquire about his health or well-being. DPSS informed the court that the ICPC coordinator stated the parental rights may need to be severed prior to requesting an adoption assessment through North Carolina.
On May 8, 2006, the court granted DPSS’s requested to continue the contested selection and implementation hearing and set the matter to be heard on September 5, 2006.
On September 5, 2006, DPSS again request the contested selection and implementation hearing be continued. The agency told the court that it completed a parent locator, which showed father was in local custody and was to be released on September 15. Mother was located in custody at the Women’s Facility in Chowchilla with an unknown release date. DPSS requested a 45-day continuance to provide notice of the hearing to father. The court calendared the matter for a pretrial date of September 14, 2006, to determine if father was willing to waive, gave him notice and ordered him transported to court. It issued a transport order for father and requested a transportation order be submitted to it to transport mother from Chowchilla once a CDC number was obtained. The court granted the agency’s request to continue the contested selection and implementation hearing for both parents to October 23, 2006.
On October 23, 2006, mother was present in custody but father failed to appear. The juvenile court granted father’s counsel’s request to continue the contested section 366.26 hearing to December 14, 2006.
On December 14, 2006, counsel for all parties stipulated to continue the contested section 366.26 hearing to January 23, 2007, because mother had not been transported from prison.
On January 23, 2007, both parents appeared with counsel at the contested selection and implementation hearing. Mother appeared in court close to the noon hour, rather than the scheduled 8:00 a.m. calendar. She provided her attorney with 25 certificates, including among them anger management certificates and 50 N.A.A. meetings. Mother’s counsel requested a brief continuance to file a section 388 petition as mother had been incarcerated and counsel could not meet with mother to review the documents.
The juvenile court denied mother’s request to continue the matter. It informed counsel that the matter has been pending for a year, and that if mother had timely appeared for court, counsel would have had an opportunity to review the documents. Mother’s counsel told the court that she was submitting on DPSS’s evidence and called mother to the stand to provide affirmative evidence.
Mother testified she had been released from custody 11 days earlier. She was unable to visit Leroy because he lived “back East,” and she is prohibited from leaving the state. She stated she did not maintain or attempt contact with Leroy because she had only obtained his address prior to being released. She did not agree to have her parental rights terminated and Leroy released for adoption. She instead requested legal guardianship in lieu of adoption so that she could maintain her parental rights to Leroy.
Mother was released on January 12, 2007.
The court found there was no significant bond between parent and child. It held it would be in the child’s best interest for him to be adopted. It determined the child was likely to be adopted, and a sufficient basis for the termination of parental rights existed. Finding no detriment to the minor, and none of the exceptions to section 366.26, subdivision (c)(1) existed, it ordered that both parents’ parental rights be permanently severed.
DISCUSSION
A. The Juvenile Court Properly Denied Mother’s Request for a Continuance.
Mother contends that the juvenile court abused its discretion in denying her a continuance to allow her counsel to file a section 388 petition based upon the new materials she gave counsel prior to the section 366.26 hearing.
Continuances in juvenile cases are discouraged. (Jeff M. v. Superior Court (1997) 56 Cal.App.4th 1238, 1242; In re Ninfa S. (1998) 62 Cal.App.4th 808, 810-811.) A continuance should only be granted if a party shows “good cause” and has filed written notice two days prior to the hearing date along with affidavits or declarations detailing specific facts that showed a continuance is necessary. A court retains the option to entertain an oral motion for continuance. (Ibid.; § 352, subd. (a).) However, “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.” (§ 352, subd. (a); see also Cal. Rules of Court, rule 5.550(a).)
Mother maintains there was good cause to continue the matter. Due to her incarceration, she claims her attorney had been unable to view the documents prior to the hearing. By denying her an opportunity to file a section 388 petition, she states the court impaired her ability to prove a change of circumstance, which her counsel opined was a justified procedure. She adds that the court’s finding she did not provide counsel with sufficient time to review the documents was irrelevant to her continuance motion.
Mother also asserts there was no evidence supporting the court’s finding that she arrived late for other hearings. She implies that her request for a continuance was treated differently from the other parties’ previous requests for continuance. For example, DPSS made three requests for continuance that were granted, father made one request that was granted, and the court continued one hearing sua sponte. It was only when she made a continuance request that the court “began viewing time as preclusive of further proceedings.”
Finally, she contends there was no need to rush to terminate her parental rights as a continuance was not against Leroy’s interests—he was less than two years old and lived in North Carolina with the prospective adoptive parent, his paternal grandmother.
An order denying a continuance is reversed only upon a showing of abuse of discretion. (In re J.I. (2003) 108 Cal.App.4th 903, 912.) An abuse of discretion is found when the court’s ruling falls outside the bounds of reason. (People v. Ochoa (1998) 19 Cal.4th 353, 408.) We conclude the court did not abuse its discretion in denying mother’s request for continuance as there was no good cause to continue the matter.
First, mother failed to comply with section 352, subdivision (a) requirement that she file written notice with supporting affidavits demonstrating good cause two days prior to the hearing.
Second, mother had ample opportunity to present her documents to her counsel and supply other evidence of changed circumstances. Attorney Shipley had been mother’s counsel since she was first appointed on Andrew’s case on October 4, 2004; she was appointed for Leroy’s case on April 5, 2005, and remained counsel of record throughout the entire dependency proceeding. As mother was aware of her counsel, she could have personally brought the documents to counsel for review or contacted her telephonically.
Mother had been released from custody 11 days prior to the hearing; this was ample time for counsel to review the anger management and N.A.A. certificate and discuss with mother whether those documents demonstrated a change of circumstances to merit filing a section 388 petition. Even if mother could not have provided her certificates to counsel within those 11 days, mother could have easily provided them to counsel at the scheduled 8:00 a.m. hearing if she had appeared at the properly designated time.
Third, mother never made an offer of proof that further reunification services or changing a prior order outweighed Leroy’s need for prompt resolution of the dependency matter.
The basis of mother’s continuance request was that her attorney wanted to review the documents to determine whether to file a section 388 petition. Mother did not provide “relevant evidence of significant probative value” that these certificates proved she had conquered her substance abuse problem which led to the filing of the original section 300 petition, or that she maintained a significant emotional bond with her child. “‘While a parent in a juvenile dependency proceeding has a due process right to a meaningful hearing with the opportunity to present evidence [citation], parents in dependency proceedings “are not entitled to full confrontation and cross-examination.” [Citation.] Due process requires a balance. [Citation.] The state’s strong interest in prompt and efficient trials permits the nonarbitrary exclusion of evidence [citation], such as when the presentation of the evidence will “necessitate undue consumption of time.” [Citation.] The due process right to present evidence is limited to relevant evidence of significant probative value to the issue before the court. [Citations.]’ [Citation.]” (In re Tamika T. (2002) 97 Cal.App.4th 1114, 1122.) Mother’s failure to offer any proof that the documents proved a change of circumstance vitiates her claim there was “good cause” to continue the matter.
Section 366.26, subdivision (b) states: “At the hearing . . . the court . . . shall review the report . . . shall indicate that the court has read and considered it, shall receive other evidence that the parties may present, and then shall make findings and orders . . . .” (Italics added.) Subdivision (c)(1) states: “If the court determines, based on the assessment provided as ordered under [the relevant statute], and any other relevant evidence, by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption
We do not know when mother attended the N.A.A. meetings or the anger management classes. Nor can we tell from the record what relevance attending anger management classes has to the dependency action. Mother has always asserted that father never abused her.
With respect to mother’s claim that the juvenile court unfairly denied her request for a continuance, while alternatively granting the other parties’ continuances, mother fails to point anywhere in the record that it was biased against her request for continuance based on good cause, but arbitrarily granted the other parties’ continuances without good cause.
Finally, and perhaps most importantly, permanency planning should not be delayed by mother’s decision to wait months to assert a change in circumstances. “‘Children should not be required to wait until their parents grow up.’ [Citation.]” (Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 73.) From the time the original petition was filed on April 4, 2005, to the time her parental rights were terminated on January 23, 2007, mother has had innumerable opportunities over the 34 months to gain control of her life and maintain contact with her child. Leroy’s dependency status needed prompt resolution—his future should not be sacrificed to give mother yet another chance to try to get her life together. (Ibid.)
Once reunification services were denied on June 15, 2005, the focus was now on Leroy’s need for permanency and stability. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) Leroy was then living in his prospective adoptive home with his paternal grandmother. All indications were that the adoption was going to proceed. Under these circumstances the court did not abuse its discretion in denying counsel’s request for a continuance. Mother failed to make an offer of proof that she fostered a strong relationship with Leroy and that she could now properly parent him as she conquered her substance abuse problem. Mother’s inaction demonstrated a continuance was unwarranted. Time is of the essence in a child’s life; to adhere to mother’s position would be to delay the inevitable—at Leroy’s expense.
Because mother did not show good cause, the juvenile court did not abuse its discretion in denying her request for a continuance. (In re Gerald J. (1991) 1 Cal.App.4th 1180, 1187.)
DISPOSITION
The order terminating parental rights is affirmed.
We concur: HOLLENHORST Acting P. J., RICHLI J.