Opinion
A170285
07-05-2024
In re D.W., Jr., a Person Coming Under the Juvenile Court Law. v. SUPERIOR COURT OF ALAMEDA COUNTY, Respondent; N.M., Petitioner, ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Real Party in Interest.
NOT TO BE PUBLISHED
(Alameda County Super. Ct. No. JD03595901)
DESAUTELS, J.
At the conclusion of a 12-month review hearing, the juvenile court terminated N.M.'s (mother) reunification services as to her son, D.W., Jr. (child) and scheduled a permanency planning hearing (Welf. &Inst. Code, § 366.26). Mother petitions for extraordinary relief. We deny the petition on the merits.
Undesignated statutory references are to the Welfare and Institutions Code. D.W., Sr. (father) is not a party to this proceeding and is mentioned only when necessary.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2023, the child, then seven years old, was found asleep on a Bay Area Rapid Transit train. Mother and father were also on the train, but they had overdosed on controlled substances and were unresponsive. Thereafter, the Alameda County Social Services Agency (Agency) filed a petition alleging mother's use of controlled substances put the child at risk of suffering "serious physical harm or illness" or "not having his basic needs met." (§ 300, subd. (b)(1).)
The juvenile court detained the child, declared him a dependent, and ordered reunification services for mother. As relevant here, mother's case plan required her to abstain from illegal drugs, participate in a substance abuse treatment program, including regular testing, to participate in regular child visitation, and to engage in mental health treatment. From May to July 2023, mother struggled to maintain consistent attendance in her drug treatment program. Despite requesting-and receiving-transportation assistance from the Agency, mother came late to or missed multiple visits with the child.
In August 2023, the child was placed with his maternal grandmother in Southern California. At the six-month review hearing that same month, the juvenile court ordered additional reunification services for mother based on her "partial" progress in her case plan. One month later, however, mother was discharged from her drug treatment program due to lack of participation. She was referred to another program but did not enroll because she had moved to Texas. The Agency tried, unsuccessfully, to refer mother to a treatment program in Texas. Mother reportedly experienced depression and sought treatment in Texas in November 2023. Between December 2023 and January 2024, mother had minimal contact with the Agency and failed to confirm her residency, which shifted between Southern California and Texas. Mother reported engaging in weekly therapy but failed to provide her therapist's contact information to the Agency. Mother also failed to enroll in a drug treatment program and failed to engage in regular visitation. The Agency did, however, provide flight transportation for mother to visit the child in Southern California in December 2023.
At the 12-month review hearing in late February 2024, the Agency recommended terminating reunification services due to mother's failure to progress with her case plan. Mother was notified of this recommendation in advance and was present at the hearing. Her counsel contested the recommendation and set the matter for a contested hearing on April 22, 2024; mother was ordered to appear.
The Agency's addendum report prepared in advance of the April 22, 2024 hearing continued to recommend terminating mother's reunification services. Since the February hearing, mother had enrolled in a substance abuse treatment program in Texas where she had tested positive for alcohol. Mother had also registered for visitation and, with travel funded by the Agency, engaged in a one-hour supervised visit with the child in early April in Southern California. This was the only visit mother had with the child during the reporting period.
Mother did not appear at the April 22, 2024 hearing. Her counsel requested a two-week continuance so mother could "be present in person to testify as to why reunification services should not be terminated." Counsel explained that mother had moved to Texas and was unable to secure transportation to California to attend the hearing. Counsel had advised mother they would request a continuance of the hearing, "but the continuance may not be granted." In response, the Agency noted that mother had not contacted the Agency in advance of the hearing and had not requested transportation assistance.
Based on the fact that mother previously used the Agency's resources to obtain transportation assistance but failed to do so in this instance-coupled with the child's reportedly successful placement with a family member that suggested the matter would "be a legal guardianship case" rather than a case considering the termination of parental rights-the juvenile court determined there was no good cause for a continuance.
Counsel for mother submitted on the Agency's reports but urged the juvenile court not to terminate reunification services. The Agency countered that mother did not enroll in substance abuse treatment until after the reporting period and she had only tested once-instead of the two times per week ordered-and that test was positive for alcohol. Mother had only seen the child one time. "And she's essentially been out of compliance with the case plan for the entire reporting period. Even when she engaged in the treatment, her compliance has been nominal at best." Counsel for the Agency described mother's efforts as "too little too late."
Noting mother's delayed enrollment in the substance abuse treatment program and that her "ability to do anything that's on the case plan . . . even with visitation, [was] minimal at best," the juvenile court adopted the Agency's recommendation, terminated reunification services, and scheduled a permanency planning hearing. The court determined there was no substantial probability the child would be returned to mother's custody within the required timeframe.
DISCUSSION
Mother petitions for extraordinary relief, arguing the juvenile court erred in denying her request to continue the 12-month review hearing.
" 'Although continuances are discouraged in dependency cases,'" section 352 authorizes a juvenile court "to grant brief, necessary continuances that are not inconsistent with the child's best interests, while giving 'substantial weight to a minor's need for prompt resolution of his . . . custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements.'" (In re Abbigail A. (2016) 1 Cal.5th 83, 95; § 352, subd. (a)(1)-(3); Cal. Rules of Court, rule 5.550.) "When a parent is absent without good cause at a properly noticed hearing, the court is entitled to proceed in the parent's absence. [Citation.] A parent's failure to appear will not normally constitute the good cause necessary to justify a continuance [citation], because substantial importance is attached to 'the child's need for a prompt resolution of the matter.'" (In re Vanessa M. (2006) 138 Cal.App.4th 1121, 1131-1132.)
We review the juvenile court's denial of a continuance under the deferential abuse of discretion standard. (In re D.Y. (2018) 26 Cal.App.5th 1044, 1056.) An abuse of discretion occurs when a court's decision" 'is arbitrary, capricious or patently absurd and results in a manifest miscarriage of justice.'" (Ibid.) But when" '" 'two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.'" '" (In re Caden C. (2021) 11 Cal.5th 614, 641.)
Mother contends the juvenile court erred in denying her request to continue the 12-month review hearing because the denial resulted in her inability to testify regarding her progress in treatment, her plan to move to Southern California, and the quality of her visits with the child. This assertion focuses on mother's inability to offer testimony at the hearing while failing to the address whether she established good cause for the continuance and whether the court's decision was arbitrary, capricious, or patently absurd. (See In re D.Y., supra, 26 Cal.App.5th at p. 1056.) In determining whether mother established good cause, the court considered her asserted need for the continuance, her failure to seek Agency assistance in arranging transportation to the hearing, and the child's competing need for prompt resolution of his custody status. No abuse of discretion appears on this record.
We reject mother's assertion-unsupported by evidence or citation to authority-that continuing the hearing was in the child's best interest. (T.P. v. T.W. (2011) 191 Cal.App.4th 1428, 1440, fn. 12 [declining to consider cursory argument unsupported by authority].) And we are not persuaded by mother's suggestion that the juvenile court's failure to continue the hearing violated her due process rights. (Cf. In re Vanessa M., supra, 138 Cal.App.4th at p. 1123 [barring father's testimony as an" 'evidence sanction'" violated his procedural due process right].)
Similarly unpersuasive is mother's insistence that the denial of her request for a continuance deprived the juvenile court of the ability to determine whether there was a substantial probability the child could be returned to her care within the statutory timeframe. The court reviewed and considered the Agency's status review reports detailing mother's minimal progress on her case plan and her failure to regularly visit the child-even noting the more recent substance abuse treatment and April 2024 visit with the child that mother argues support reunification. Moreover, mother does not challenge the ample evidence supporting the court's conclusion that there was no substantial probability the child would be returned to her care within the statutory timeframe.
DISPOSITION
Mother's petition for extraordinary relief is denied on the merits. Our decision is final as to this court immediately. (Cal. Rules of Court, rules 8.452(i), 8.490(b).)
We concur: STEWART, P.J., MILLER, J.