Opinion
NOT TO BE PUBLISHED
Appeals from orders of the Superior Court of Los Angeles County, No. CK73046, Donna Levin, Referee.
Michael A. Salazar, under appointment by the Court of Appeal, for Defendant and Appellant Leticia E.
Anne. E. Fragrasso, under appointment by the Court of Appeal, for Defendant and Appellant Richard M., Sr.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Tracey F. Dodds and Melinda White-Svec, Deputy County Counsel, for Plaintiff and Respondent.
CHANEY, J.
Leticia E. (Mother) appeals from the order terminating her parental rights at the July 22, 2010 Welfare and Institutions Code section 366.26 selection and implementation hearing. She contends that we must reverse the order because (1) she did not receive proper notice of the hearing, (2) the Los Angeles Department of Children and Family Services (DCFS) did not provide her with a copy of the report for the hearing at least 10 days before the hearing, and (3) the juvenile court erred in denying her counsel’s request for a continuance of the hearing. To the extent there was any error, it was harmless, and we affirm the order.
Further statutory references are to the Welfare and Institutions Code.
Mother also challenges the findings the court made in terminating her reunification services and setting the section 366.26 hearing, at the March 25, 2010 section 366.22 permanency review hearing. Mother did not preserve this claim for review because she did not file a writ petition challenging the order.
Father Richard M. also appeals from the July 22, 2010 order terminating his parental rights. He does not assert any arguments of his own, but rather joins in Mother’s arguments. Because we reject Mother’s arguments, we need not address Father’s appeal further.
BACKGROUND
Mother was incarcerated in May 2008 when DCFS filed the section 300 petition regarding Mother’s (and Father Richard M.’s) four boys, who were then six, four, two and one year old. According to Mother, she was arrested on June 20, 2007, for attempting to reenter this country illegally. The family came to the attention of DCFS in May 2008, after an unrelated child, who was living in a motel with her mother, Richard M., and the four children in this case, was severely beaten and sustained life threatening injuries while in the care of her mother and Richard M. Mother’s children were detained from Richard M. (Father). Mother’s two teenage daughters, who are not Father’s children, were living with relatives at the time of the detention.
The petition alleged that Mother “has failed to provide the children with the necessities of life including food, clothing, shelter and medical care. The mother is incarcerated. Such failure to provide for the children on the part of the mother endangers the children’s physical and emotional health, safety and well being and places the children at risk of physical and emotional harm and damage, ” within the meaning of section 300, subdivisions (b) and (g). We do not list the allegations against Father because they are not relevant to any of the issues on appeal.
On or about May 31, 2008, Mother was released from prison and deported to Mexico. At a hearing on June 6, 2008, Father’s counsel informed the juvenile court about Mother’s deportation and stated: “I believe [Mother] wants counsel.” The court responded that it would not appoint counsel for Mother at that time because she was not present at the hearing, and appointed counsel would not be able to consult with her. Father’s counsel represented that the social worker had been provided with Mother’s contact information in Mexico. The court instructed DCFS to have the social worker interview Mother.
The court did not appoint counsel for Mother until March 20, 2009, although DCFS did interview Mother shortly after the June 2008 hearing. Mother stated that she wanted the children released to her. DCFS recommended that the court order reunification services for Mother and an assessment of her situation in Mexico. DCFS facilitated telephone calls between Mother and the children two times per week. On occasion, the telephone number Mother provided did not work and DCFS was unable to contact her by phone. In August 2008, Mother informed DCFS that she had requested assistance from the Mexican Consulate. She requested that the agency “send someone to represent her at Court.” DCFS reported: “Mother indicated that she wanted legal representation so that she may regain custody of the children and also be kept informed of all Court matters involving the children.”
In or about late August or early September 2008, the phone contact between Mother and DCFS stopped. Father informed DCFS that Mother had been detained by U.S. Immigration and Customs Enforcement (ICE) while trying to cross the Mexican border without permission. A dependency investigator was able to obtain Mother’s address at a detention facility in San Diego, California. According to DCFS, one of the children’s maternal aunts informed the social worker that Mother was going to be “detained in Federal prison for 3 to 5 years, and had written a letter to the maternal aunt, indicating her wish to have the children placed with her.” The aunt provided DCFS with a copy of the letter from Mother.
On September 25, 2008, the juvenile court held the adjudication/disposition hearing. Mother was not represented by counsel at the hearing. DCFS asked the juvenile court to sustain the allegations quoted above about Mother’s failure to provide for the children. DCFS informed the court that Mother was in the custody of ICE. DCFS asserted: “She has been unable to provide for these children and is not a resource for placement at this time....” The juvenile court sustained the allegations against Mother, and ordered reunification services for her, including random drug testing (based on her history of drug-related offenses), parent education and individual counseling to address case issues.
On November 6, 2008, the juvenile court granted a petition for disclosure of the juvenile court records in this case, which was made by Mother’s criminal defense attorney.
On December 29, 2008, the juvenile court ordered DCFS to initiate an ICPC (Interstate Compact on the Placement of Children) with the State of Georgia regarding the placement of the children with their maternal aunt.
In a status review report, dated March 19, 2009, DCFS stated the Mother was maintaining telephone contact with the social worker. DCFS reported: “[Mother] continues to mail letters and cards to the children thru [sic] [the social worker]. The children are happy to receive the letters. She draws excellent pictures and animations that the children can enjoy. The foster parents keep the letters in a folder that the children can look at when they need or want. [Mother] continues to express to [the social worker] that she would like her children placed in the care of her sister and family in the State of Georgia.” Due to her incarceration, Mother was unable to communicate with the children by phone. Mother was hoping the children would be sent to live with her after her release from prison and deportation to Mexico.
DCFS noted that Mother was incarcerated in a federal prison in Dublin, California. Regarding her progress with the case plan, DCFS reported: “[Mother] intends to complete parenting class 03/24/2009. She is also scheduled to start group counseling in the Trauma Recovery Group that addresses domestic violence, child abuse, emotional abuse and other issues related to trauma....”
DCFS recommended that Mother’s reunification services be terminated: Mother “had made no effort to reunify with her children prior to DCFS and Court intervention. Mother was aware of the father’s involvement with drugs and still left the children in his care. Mother remains hopeful for a change in Court orders and is attending parenting and counseling in prison, however, she made no effort to attend the same programs when she was residing in Mexico, and was receiving telephone contact with the children for 3 months. Mother is not available to parent her children, has an extensive criminal history and a deportation order.”
On March 20, 2009, the juvenile court appointed counsel for Mother. At the section 366.21, subdivision (e), status review hearing on March 25, 2009, Mother’s new counsel informed the court that Mother was still in federal custody. The court stated DCFS’s recommendation that reunification services be terminated and the matter be set for a section 366.26 selection and implementation plan hearing. Mother’s counsel requested additional time. DCFS requested that the court set the matter for a contested hearing and informed the court that it would research whether Mother was entitled to additional reunification services due to her incarceration. The court set the contested hearing for April 28, 2009.
In the report for that hearing, DCFS stated that Mother told the social worker she no longer wanted the children placed with her relatives in Georgia. In mid-April 2009, the children visited their aunt, uncle, cousins, and other family members in Georgia. The social worker encouraged Mother to call her sister while the children were visiting her in Georgia for a week, but mother declined. Mother stated that she was “going to fight to get [the children] back.”
On April 28, 2009, Mother’s counsel requested a continuance of the contested section 366.21, subdivision (e), hearing, which the court granted.
On May 8, 2009, Mother filed a motion to set aside the jurisdictional and dispositional findings and orders, arguing that Mother “was denied her due process right to be represented by counsel during these hearings.”
In the report for the June 11, 2009 contested section 366.21, subdivision (e), hearing, DCFS provided evidence of Mother’s coursework while in prison. Mother completed drug education, a 16-hour self-esteem training, trauma in life group, and a 32-hour parenting course. During her prior incarceration, she participated in an eight-hour parenting class. DCFS also attached to its report a July 21, 2008 letter from a pastor in Mexico, who stated that Mother was attending church and family counseling with her two teenage daughters after her deportation in May 2008.
At the outset of the June 11, 2009 hearing, the juvenile court heard argument on Mother’s motion to set aside the jurisdictional and dispositional findings and orders. In rejecting Mother’s counsel’s argument that Mother was denied her due process right to be represented by counsel, the court noted that prior to counsel’s appointment Mother was incarcerated, then deported to Mexico, then detained by ICE, then incarcerated again. The court stated: “As I say, she was a moving target, and when finally I knew absolutely where she was, I appointed an attorney to represent her.”
The court ordered “more reunification” for Mother to be completed by September 24, 2009. The court noted that Mother had participated in some programs and found that she was in partial compliance with the case plan. The court ordered that “Mother’s individual counseling is to address Mother’s criminal convictions, including drug-related offenses, leaving the children with the father knowing of his violent criminal history, drug use and gang involvement.”
The juvenile court found that DCFS had “complied with the case plan in making reasonable efforts to return the children to a safe home and complete steps necessary to finalize the permanent placement of the children.” The court also found “there is a substantial probability that the child Jacob and the siblings Ryan, Jessie and Richard may be returned to the mother by the twelve-month date.... Mother has contacted the children, has made significant progress in resolving the problems that led to removal of the children, and has demonstrated the capacity and ability to complete the objectives under the treatment plan to provide for the children[’s] safety, protection, physical health and emotional needs.”
In July 2009, Mother was released from prison and deported to Mexico. DCFS reported that Mother “increased her letter writing to the children and also maintain[ed] weekly monitored telephone contact with the children.” Mother did not support the placement of her children with her sister in Georgia. Mother’s relatives in Georgia informed DCFS that Mother had “made threatening phone calls” to them, accusing them of stealing her children and threatening them with bodily harm if they pursued adoption.
At a status review hearing on October 2, 2009, Mother requested that her home in Mexico be investigated for possible placement. DCFS noted that such an investigation had been initiated previously, but then Mother was detained. The juvenile court granted Mother’s request, but also ordered that the children could go live with the maternal relatives in Georgia. At a previous hearing, the children’s attorney had informed the court that the children wanted to live in Georgia, and they did not want to live with Mother in Mexico. The court noted that Mother had not complied with the case plan since returning to Mexico. Mother’s counsel asked for a contest regarding termination of reunification services, and the court set the matter for a contested 366.21, subdivision (e)/section 366.22 hearing.
In November 2009, Mother submitted to a drug test in Mexico, and it was negative. This was the only drug test result that Mother provided to DCFS.
In a December 22, 2009 interim review report, DCFS reported that a social worker from a Mexican agency had visited with Mother to assess her home. Mother’s relatives in Georgia expressed that they wanted to adopt the children. Mother was having monitored phone contact with the children. On two occasions, Mother’s oldest son declined to speak with her.
On March 25, 2010, the juvenile court held the contested 366.21, subdivision (e)/section 366.22 permanency review hearing. Mother called the social worker as a witness. She testified that she sent Mother the case plan as well as referrals for programs during the time Mother was incarcerated. The court noted that it had made a prior finding that Mother received referrals and that DCFS made reasonable efforts, so the pertinent issue at this hearing was whether Mother had complied with the case plan. Reunification services were first ordered for Mother in September 2008.
The social worker testified that Mother reported that she had begun individual counseling in January 2010. The social worker had not yet received any progress reports detailing the number of sessions Mother had attended and the topics addressed. Mother’s counsel inquired whether DCFS had provided the referral for that counseling, and the social worker responded: “We cannot refer to something out of country.
When Mother’s counsel inquired whether it would be possible for the children to be placed with Mother in Mexico, the social worker responded that she had received an assessment of Mother’s home from a Mexican agency, but the report only addressed the physical aspects of Mother’s home and not whether the children would be safe there from a therapeutic/case plan perspective.
The juvenile court found that Mother was in partial compliance with the case plan, and terminated reunification services. The court also found that DCFS had “complied with the case plan in making reasonable efforts to return the children to a safe home and to complete any steps necessary to finalize permanent placement of the children.”
On July 22, 2010, the juvenile court held the section 366.26 selection and implementation hearing. At the outset of the hearing, Mother’s counsel requested a continuance which the court denied. We discuss below the grounds for Mother’s request and the reasons for the court’s denial. The juvenile court found that the children were adoptable and that no exception to adoption applied. The court terminated Mother’s (and Father’s) parental rights.
DISCUSSION
I. Finding Regarding DCFS’s Reasonable Efforts
Mother challenges the juvenile court’s finding, made at the March 25, 2010 section 366.22 permanency review hearing, that DCFS made reasonable efforts to return the children to her. Mother contends that reasonable family reunification services were not offered or provided to her. Specifically, she asserts that the social worker “did nothing to help [her] complete the court-ordered disposition plan relating to drug testing and individual counseling.” She complains that the social worker “failed to provide any referrals to her” in Mexico. The court terminated Mother’s reunification services at the March 25, 2010 hearing.
As a threshold matter, DCFS asserts that Mother cannot challenge this finding on appeal because she failed to file a writ petition challenging the juvenile court’s March 25, 2010 order setting the section 366.26 selection and implementation hearing. Mother responds to this assertion, arguing that we may review her claim—regarding DCFS’s efforts to provide her reunification services—on appeal from the order terminating her parental rights because the juvenile court failed to provide her proper notice of her right to file a writ petition challenging the March 25, 2010 order.
“An order setting a section 366.26 hearing is not appealable; rather review of such an order may be had only by filing a petition for an extraordinary writ. [Citation.] The juvenile court must provide oral notice to all parties present at the setting hearing and notice by mail to all other parties that such a writ may be filed. [Citation.] When notice is not given, the parents’ claims of error occurring at the setting hearing may be addressed on review from the disposition following the section 366.26 hearing.” (In re Harmony B. (2005) 125 Cal.App.4th 831, 838 [although father did not file a writ petition challenging the order setting the section 366.26 hearing, appellate court reviewed his challenge (to the denial of reunification services) on appeal from the order terminating parental rights because the record did not show that the juvenile court provided father with notice of his right to file a writ petition].)
As of the March 25, 2010 hearing, California Rules of Court, rule 5.585(e)(1) provided: “Within 24 hours of the hearing, notice [of requirement to seek extraordinary writ to preserve appellate review] by first class mail must be provided by the clerk of the court to the last known address of any party who is not present when the court orders the hearing under section 366.26.” The notice of rights sent to the party must be accompanied by copies of “Petition for Extraordinary Writ (California Rules of Court, Rules 8.452, 8.456) (form JV-825) and Notice of Intent to File Writ Petition and Request for Record (California Rules of Court, Rule 8.450) (form JV-820.) (Former Cal. Rules of Court, rule 5.585(e)(2).) Mother was not present at the March 25, 2010 hearing. She was living in Mexico.
Effective July 1, 2010, these provisions were renumbered as rule 5.590(b)(2), with minor amendments to the language, and (b)(4).
The record on appeal includes a “clerk’s certificate of mailing” dated March 30, 2010, five days after the hearing at which the juvenile court set the section 366.26 hearing. This certificate of mailing indicates that on March 30, 2010, the clerk mailed to Mother (in Mexico) and to Mother’s counsel the minute order from the March 25, 2010 hearing, a Notice of Intent to File Writ Petition and Request for Record form (form JV-820), a Petition for Extraordinary Writ form (form JV-825), and a form entitled “Advisement of Rights (366.26 W.I.C.).”
Mother’s counsel was present at the March 25, 2010 hearing when the juvenile court provided the following oral notice: “The court advises all parties present and directs the clerk of the court to forward written advisement to parties not present that to preserve any right to review on appeal the court’s order setting the hearing to select and implement a permanent plan under 366.26, the party must seek [an] extraordinary writ by filing a notice of intent to file writ petition and request for record or other notice of intent to file writ petition and request for record and a writ petition—juvenile form or other petition for extraordinary writ.”
“If the party was notified of the order setting the hearing by mail, and the notice was mailed to an address outside the United States, the notice of intent must be filed within 27 days after the date the clerk mailed the notification.” (Cal. Rules of Court, rule 8.450(e)(4)(D).) The Notice of Intent to file Writ Petition and Request for Record form (form JV-820) informs the party of this deadline.
Mother did not file a writ petition. She asserts that her failure to do so does not preclude appellate review of the juvenile court’s March 25, 2010 findings regarding reunification services because she had good cause for failing to file the writ petition—improper notice. We disagree.
Mother does not argue that she did not receive the clerk’s certificate of mailing along with the required documents advising her of the requirement to seek an extraordinary writ to preserve appellate review of the March 25, 2010 order. She argues that the record does not demonstrate that the clerk provided her with sufficient information “so that she could calculate the deadline for filing the notice of intent.” Specifically, she claims that the record does not demonstrate “the date the documents were allegedly mailed to [Mother].” Not so.
The clerk’s certificate of mailing referenced above states, in pertinent part: “I, the below named Executive Officer/Clerk of the above entitled court, do hereby certify that I am not a party to the cause herein, and on this date, as indicated below, I served each of the above mentioned documents [minute order and required forms listed above] upon each party or counsel named below by depositing in the United States mail at [the juvenile court] in Monterey Park, CA, in a separate envelope to each address as shown below with postage thereon fully prepaid.” The certificate is signed by a deputy clerk and dated (and filed on) March 30, 2010. Thus, the record demonstrates that the required notice was mailed to Mother in Mexico on March 30, 2010, and her deadline for filing the notice of intent was April 26, 2010.
Mother notes that “[t]he clerk’s transcript failed to include the actual notices sent to [Mother].” She is correct that the deputy clerk did not attach to the copy of the certificate of mailing that was placed in the file copies of the March 25, 2010 minute order, forms JV-820 and JV-825 and the advisement of rights. The deputy clerk signed the certificate of mailing certifying that he mailed these form documents to Mother, and we have no reason to believe that he did not.
Mother also notes that the clerk did not mail notice to her until March 30, 2010, five days after the hearing, rather than within 24 hours of the hearing as required by court rule. (See Former Cal. Rules of Court, rule 5.585(e)(2); current rule 5.590(b)(2).) She does not argue that she was prejudiced. Nor can she. Her time to file the notice of intent ran from the date the clerk actually mailed her the documents, and not from the date of the hearing.
Mother failed to preserve for appellate review her challenges to the juvenile court findings made at the March 25, 2010 section 366.22 permanency review hearing. The record demonstrates that the clerk mailed to Mother (and to her counsel) appropriate notice of her right to file a writ petition and the deadline by which to do so. Mother failed to file a writ petition.
Even if Mother had preserved this claim for review, we would reject it. Substantial evidence in the record indicates that DCFS made reasonable efforts to return the children to her, and that reasonable services were offered or provided to her. (See § 366.22, subd. (a) [at the permanency review hearing, “The court shall determine whether reasonable services have been offered or provided to the parent or legal guardian”]; Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1010 [finding that reasonable services were provided is reviewed under the substantial evidence standard of review].)
Mother was deported to Mexico in July 2009. Mother reported to DCFS that she started attending individual counseling in January 2010. Mother points to nothing in the record indicating that a lack of referrals or “help” from DCFS was the reason for this delay. Prior to or at the March 25, 2010 hearing, Mother did not submit progress reports or other information regarding the number of sessions she had attended or the topics she had addressed in her counseling. Mother provided DCFS with one negative drug test result from November 2009. The record demonstrates that Mother knew how to access the services which would allow her to comply with her case plan, but she failed to complete them. We have no reason to believe that further referrals from or efforts by DCFS would have assisted Mother’s cause.
II. Notice of Section 366.26 Hearing
Mother contends that the order terminating her parental rights must be reversed because she did not receive proper notice of the section 366.26 hearing. We disagree.
The record includes a notice of the July 22, 2010 hearing, which was sent to Mother in Mexico by registered mail, return receipt requested. Mother does not represent that she did not receive the notice. Mother asserts that, “Because a ‘return receipt’ signed by [Mother] was not in the court file, there is no evidence that she ever received the notice of the July 22, 2010 hearing.” Mother misinterprets the statute which provides the requirements for proper notice.
Section 294, subdivision (f), provides that notice to the parents of a section 366.26 selection and implementation hearing “may be given in any of the following manners: [¶] (1) If the parent is present at the hearing at which the court schedules a hearing pursuant to Section 366.26, the court shall advise the parent of the date, time, and place of the proceedings, their right to counsel, the nature of the proceedings, and the requirement that at the proceedings the court shall select and implement a plan of adoption, legal guardianship, or long-term foster care for the child. The court shall direct the parent to appear for the proceedings and then direct that the parent be notified thereafter by first-class mail to the parent’s usual place of residence or business only. [¶] (2) Certified mail, return receipt requested, to the parent’s last known mailing address. This notice shall be sufficient if the child welfare agency receives a return receipt signed by the parent. [¶] (3) Personal service to the parent named in the notice. [¶] (4) Delivery to a competent person who is at least 18 years of age at the parent’s usual place of residence or business, and thereafter mailed to the parent named in the notice by first-class mail at the place where the notice was delivered. [¶] (5) If the residence of the parent is outside the state, service may be made as described in paragraph (1), (3), or (4) or by certified mail, return receipt requested....” (Italics added)
Section 294, subdivision (f)(5), is applicable here because Mother resided “outside the state” at the time the notice of the section 366.26 hearing was sent. Unlike subdivision (f)(2), this provision does not state that notice is sufficient only if DCFS receives a return receipt signed by the parent. Subdivision (f)(5) does not require a return receipt. Mother notes that DCFS used “registered mail” rather than “certified mail, ” but does not point to any practical difference between the two which would have made the notice deficient. We find that notice to Mother of the section 366.26 hearing was sufficient.
Mother argues that DCFS’s additional notice of the section 366.26 hearing, which it sent to the Ministry of Foreign Affairs in Mexico, was deficient. Mother has cited no authority indicating that such notice was necessary or required, and we are aware of none.
To the extent there were any technical defects in Mother’s notice of the hearing, they were harmless in this case. (See In re Angela C. (2002) 99 Cal.App.4th 389, 394-395 [claim of improper notice of section 366.26 hearing may be reviewed under the Chapman harmless error standard].) Mother could not attend the hearing because she was precluded from entering this country from Mexico. Mother has not argued that anything at the hearing would have been different if DCFS had provided notice of the hearing to her in a different manner.
III. Report for Section 366.26 Hearing
Mother contends that the order terminating her parental rights must be reversed because she did not receive the report for the section 366.26 hearing at least 10 days before the July 22, 2010 hearing.
California Rules of Court, rule 5.275 (c) requires that the child welfare agency “must prepare an assessment under section 366.21(i)” and, “[a]t least 10 calendar days before the hearing, the [agency] must file the assessment [and] provide copies to each parent or guardian and all counsel of record....”
The record indicates that the report was mailed to Mother in Mexico on July 9, 2010. The juvenile court received the report on July 13, 2010. Counsel for Mother informed the juvenile court that she did not receive the report until July 22, 2010, the day of the hearing. DCFS does not dispute that it failed to comply with rule 5.725(c).
The California Supreme Court, in In re Celine R. (2003) 31 Cal.4th 45, indicated that orders in dependency proceedings are subject to harmless error review: “The California Constitution prohibits a court from setting aside a judgment unless the error has resulted in a ‘miscarriage of justice.’ (Cal. Const., art. VI, § 13.) We have interpreted that language as permitting reversal only if the reviewing court finds it reasonably probable the result would have been more favorable to the appealing party but for the error. [Citing People v. Watson (1956) 46 Cal.2d 818, 836.] We believe it appropriate to apply the same test in dependency matters.” (In re Celine R., supra, 31 Cal.4th at pp. 59-60 [any error in not relieving counsel from representing all three children was harmless; order terminating parental rights affirmed].)
Mother does not even attempt to formulate an argument about why the failure to deliver the report 10 days before the hearing was prejudicial. She cannot point to anything in the report which was new information that would have required additional consideration by Mother or her counsel.
Despite acknowledging that the Supreme Court’s harmless error analysis in Celine R. applies to orders terminating parental rights—the order on review here—Mother argues that the failure to timely deliver the report is structural error under the particular circumstances of this case and requires automatic reversal of the order terminating her parental rights. She relies on Judith P. v. Superior Court (2002) 102 Cal.App.4th 535, a case which involved a different procedural posture than the case before us, and pre-dates our Supreme Court’s harmless error analysis in Celine R., supra, as described above.
In Judith P., DCFS first provided the mother's attorney its report on the morning of the section 366.21 hearing. The trial court denied a continuance to permit counsel to obtain documents to controvert facts discussed in the report and to permit DCFS to interview the mother (with whom the agency had lost contact), admitted the report, followed the report’s recommendation to terminate reunification services, and ordered DCFS to provide permanent services for the children. (Judith P. v. Superior Court, supra, 102 Cal.App.4th at pp. 543-544.) In reaching its conclusion that failure to timely provide the report was structural error, the court in Judith P. analogized to procedural rights in criminal law. We note that our Supreme Court in Celine R. subsequently concluded that “the analogy to criminal cases is inapt.” (In re Celine R., supra, 31 Cal.4th at p. 58.) Other appellate courts have questioned whether the analysis in Judith P. survives after the holding in Celine R. (See In re Sabrina H. (2007) 149 Cal.App.4th 1403, 1420, fn. 14.)
Mother does not argue that Judith P. applies to the procedural circumstances actually before this court—a failure to provide a section 366.26 report at least 10 days before the selection and implementation hearing. She appears to concede that this type of error is subject to a harmless error analysis, and she does not ask us to undertake such a review. Instead she argues that “the rationale set forth in Judith P.” applies here based on her “position that reunification efforts have not failed, but, rather, [DCFS] failed to make those efforts to reunify her with her children.” She asks us to review her case as if it were at the pre-permanency stage rather than at the permanency stage. As Mother explains it: her claim that automatic reversal of the order terminating parental rights is required because of DCFS’s failure to timely provide the report, is dependent upon her claim that the court erred at the section 366.22 permanency review hearing in finding that DCFS made reasonable efforts to return the children to her. As discussed above, Mother did not preserve her challenge to this finding for appellate review, and even if she did, we would reject it.
Mother’s claim about the timeliness of the report is subject to harmless error review. As discussed above, DCFS’s failure to provide the report at least 10 days before the hearing was not prejudicial to Mother and she does not argue otherwise.
IV. Denial of Request for Continuance
Mother contends that the juvenile court committed reversible error in denying her counsel’s request for a continuance of the section 366.26 hearing. As set forth below, Mother’s counsel provided no valid reason for the court to continue the hearing.
Under section 352, a continuance of any juvenile court hearing shall be granted only upon a showing of good cause and shall not be granted if contrary to the minor’s best interests. 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).)
We reverse an order denying a continuance only upon a showing of abuse of discretion. (In re Gerald J. (1991) 1 Cal.App.4th 1180, 1187.) A juvenile court abuses its discretion if its decision is arbitrary, capricious or patently absurd. (In re Tamneisha S. (1997) 58 Cal.App.4th 798, 806.)
At the outset of the July 22, 2010 section 366.26 hearing, Mother’s counsel informed the juvenile court that she wished to set the matter for a contest. The court asked her for an offer of proof. Counsel responded that she received the report for the hearing that day and had not had an opportunity “to discuss the matter with Mother and discuss what the recommendation is.” The court noted that the parties and the court had been aware of DCFS’s recommendation since April 2010—that parental rights be terminated and adoption be deemed the permanent placement goal for the children. The court also noted that the report, which was received by the court on July 13, 2010, was a 12-page report which contained “no new information.”
Counsel next argued that she wanted “to proceed with a contested.26” on the “issue of adoptability” because there was not yet “an approved home study.” In the report for the hearing, DCFS stated: “The state of Georgia requires parental rights to be terminated before an adoption homestudy can be initiated with the family.” (Emphasis omitted.) The juvenile court explained: “We do have an approved home study by the State of Georgia. It is not an approved adoptive home study because the State of Georgia does not do an adoptive home study until the children are freed for adoption. They have approved this home. They have gone out there many times and it is an approved home study. It is just not approved for the purpose of adoption and many states do that. We do that with Texas. We do that with Georgia.”
Counsel then inquired whether the notice to Mother of the hearing was proper. The juvenile court referenced the May 4, 2010 notice (that we discussed above and found to be sufficient).
Mother argues that the “[t]he juvenile court’s denial of a brief continuance denied [her] a voice at the most crucial hearing which resulted in the permanent severing of her parental rights.” But Mother does not point to any new information or argument she would have presented to the court if the hearing had been continued. The juvenile court did not abuse its discretion in declining to continue the hearing.
DISPOSITION
The orders are affirmed as to both Leticia E. (Mother) and Richard M. (Father).
We concur: MALLANO, P. J., ROTHSCHILD, J.