Opinion
E069344
02-20-2018
In re K.S. et al., Persons Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. M.S., Defendant and Appellant.
Melissa A. Chaitin, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, and James E. Brown, Guy B. Pittman, and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIJ1600476) OPINION APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni, Judge. Affirmed. Melissa A. Chaitin, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, and James E. Brown, Guy B. Pittman, and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant and appellant, M.S. (Mother), appeals from the juvenile court's orders (1) denying her petitions to return her three-year-old twin sons, P.S. and K.S., to her care pursuant to a family maintenance plan, or for reinstated reunification services and liberalized visitation (Welf. & Inst. Code, § 388) and (2) terminating parental rights to the twins and selecting adoption as the twins' permanent plan (§ 366.26). Mother claims only that the court abused its discretion in denying her counsel's request for a 30-minute continuance or delay in conducting the hearings, in order to allow Mother additional time to arrive in court.
All further statutory references are to the Welfare and Institutions Code.
We find no abuse of discretion in the order denying Mother's counsel's request to continue or briefly delay the hearings until Mother arrived in court. We further find that any error in denying the request was harmless. Mother was not present in court at 8:30 a.m. on September 15, 2017, when the hearings were scheduled, despite having been given adequate notice of the hearings and having been ordered to appear at 8:30 a.m. on September 15. Mother was still not present when the hearings were called at 10:17 and 10:21 a.m. No excuse was offered for Mother's absence, and the court had no reason to believe Mother would arrive within 30 minutes or at any other time on September 15. Further, Mother's counsel did not claim Mother would testify at either hearing, and the entire record shows there is no reasonable probability that Mother would have realized a more favorable result at either hearing, had she been present, testified, or offered any previously-unfiled documentary evidence.
II. FACTUAL BACKGROUND
In June 2016, when the twins were 19 months old, plaintiff and respondent, Riverside County Department of Public Social Services (DPSS), filed amended petitions alleging Mother abused methamphetamine, heroin, and opiates, despite completing a treatment program four years earlier, suffered from mental health issues, and left the twins in the care of relatives without providing for their support or letting the relatives know her whereabouts. (§ 300, subds. (b), (g).) Mother had been exhibiting signs of drug-related paranoia and psychosis. Mother went to Utah in May 2016, and entered an inpatient drug treatment program there in June 2016.
The maternal grandfather reported Mother struggled with addiction and was incapable of caring for herself or the twins. Other members of Mother's family also had concerns about Mother's substance abuse and mental stability, and the well-being of the twins in Mother's care. When first contacted by the social worker, Mother adamantly denied having a drug problem and refused to drug test. Mother later admitted abusing heroin and methamphetamine, abusing opiates in the past, and having recently abused Xanax. Mother reported suffering from untreated mental health issues, including anxiety.
Before Mother went to Utah in May 2016, the twins had been attending day care during the week, the maternal grandmother (MGM) had been caring for them at night, and Mother had been watching them for a few hours before the MGM returned home from work. The MGM reported having guardianship of the twins from July 2015 to January 2016. After Mother went to Utah, the MGM reported that the twins' childcare had been "revoked because it was through the [M]other," and the MGM was unable to take the twins to work with her. The twins were taken into protective custody and placed with the MGM, their only placement.
Mother was not present at the detention hearing on June 14, 2016, when the court found a prima face case for jurisdiction. Mother was also not present at the jurisdictional/dispositional hearing on July 14, when the court sustained the allegations of the amended petition, ordered reunification services for Mother, and supervised visitation with the twins.
On July 13, 2016, Mother was terminated from her inpatient drug treatment program in Utah for violating "house rules." Thereafter, Mother failed to participate in her court-ordered services. In January 2017, Mother claimed to be attending Alcoholics Anonymous (AA) meetings on a weekly basis and to have a sponsor, but had failed to enroll in counseling or provide proof she had completed a parenting program. Mother was enrolled in the Choctaw Nation, which had intervened in the case, but Mother refused to participate in a drug rehabilitation program offered by the Choctaw Nation. The Choctaw Nation agreed that the twins should be with the MGM.
In January 2017, Mother's reunification services were terminated and a section 366.26 hearing was scheduled for May 17, 2017. In April 2017, Mother was living with a maternal aunt in Riverside County, admitted using methamphetamine "a few months" earlier, denied attending 12-step meetings, and denied her previously reported "paranoid behavior." Mother had had five supervised visits with the twins since mid-February 2017. DPSS was recommending adoption as the twins' permanent plan. The twins were very bonded to the MGM, their prospective adoptive parent.
Mother was present in court for the originally scheduled section 366.26 hearing on May 17, 2017. The hearing was continued to September 14, so that DPSS could complete an adoption assessment and the Choctaw Nation could file a declaration of Indian expert. On September 14, the section 366.26 hearing was trailed for one day, to September 15, because counsel for the twins' alleged father was "out sick" on September 14, and the alleged father needed to speak with him. Mother was ordered to return to court on September 15 at 8:30 a.m. for the section 366.26 hearing.
On September 14, Mother's counsel told the court that Mother would be filing a section 388 petition on September 15, and would be bringing additional documents with her on September 15 "for the [section 366].26 hearing." On September 15, two section 388 petitions for Mother were filed—one for each twin—without supporting documentation. The petitions sought the return of the twins to Mother's care pursuant to a family maintenance plan, or reinstated reunification services and liberalized visitation, including unsupervised overnight and weekend visits. The petitions alleged Mother had been attending AA and Narcotics Anonymous (NA) meetings on a weekly basis, while also attending a 12-step program, and that Mother had a sponsor. The court signed orders setting hearings on the petitions at 8:30 a.m. on September 15.
Mother was not present in court on September 15 at 8:30 a.m., and was not present at 10:17 a.m. when the twins' dependency case was called. Mother's counsel was present, argued the petitions should be granted, and argued that the parental benefit exception applied. In Mother's absence, the court conducted hearings on the petitions and the section 366.26 hearing. The court denied the petitions, terminated parental rights, and selected adoption as the twins' permanent plan.
III. DISCUSSION
A. The Juvenile Court Did Not Abuse Its Discretion in Denying Mother's Counsel's Request to Continue, or Briefly Delay, the Sections 388 and 366 .26 Hearings
"Section 352 is the primary statute governing continuances in [juvenile] dependency cases." (Renee S. v. Superior Court (1999) 76 Cal.App.4th 187, 194.) "Section 352 provides that a continuance shall be granted only on a showing of good cause and shall not be granted if it is contrary to the minor's best interests." (In re Ninfa S. (1998) 62 Cal.App.4th 808, 810.) The statute specifically "'"mandates that before the court can grant a continuance, it must '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.'"' [Citation.]" (In re V.V. (2010) 188 Cal.App.4th 392, 399.) A continuance may not exceed the period of time justified by the evidence supporting the good cause showing, and if the court grants a continuance, it must state on the record "the facts proven" in support of the continuance. (Renee S. v. Superior Court, supra, at p. 196.)
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. . . . Whenever any continuance is granted, the facts proven which require the continuance shall be entered upon the minutes of the court.
"In order to obtain a motion for a continuance of the hearing, written notice shall be filed at least two court days prior to the date set for hearing, together with affidavits or declarations detailing specific facts showing that a continuance is necessary, unless the court for good cause entertains an oral motion for continuance."
Continuances "are discouraged" (In re Ninfa S., supra, 62 Cal.App.4th at p. 810) and "should be difficult to obtain" (Jeff M. v. Superior Court (1997) 56 Cal.App.4th 1238, 1242). The juvenile court has broad discretion in determining whether to grant or deny a continuance, and its decision will be reversed "'only upon a showing of an abuse of discretion.'" (In re V.V., supra, 188 Cal.App.4th at p. 399.) The court abuses its discretion if its decision "is arbitrary, capricious or patently absurd and results in a manifest miscarriage of justice." (In re Karla C. (2003) 113 Cal.App.4th 166, 180.)
Mother's counsel did not show good cause for continuing or delaying the sections 388 and 366.26 hearings for 30 minutes, or until Mother arrived in court. As noted, on September 14 the court trailed the section 366.26 hearing for one day, to September 15 at 8:30 a.m., because counsel for the alleged father was "out sick" and unable to appear on September 14. Mother and her counsel were present in court on September 14, and Mother was ordered to return to court on September 15 at 8:30 a.m. On September 14, Mother's counsel told the court that Mother would be filing a section 388 petition, that Mother had "additional documents" she would be presenting "for the [section 366].26 hearing," and that Mother did not have those documents with her on September 14 but needed to bring them to Mother's counsel's office.
As DPSS points out, Mother's counsel did not file a written notice of Mother's motion for a continuance at least two court days before the September 15 hearing, as section 352 required. But the need to request the continuance did not arise until September 15, and the record shows that the court considered Mother's counsel's oral request for a continuance. (§ 352, subd. (a).)
Mother was not present in court at 8:30 a.m. on September 15, as ordered, and she was still not present when the court called the section 388 hearings at 10:17 a.m. The court noted that the section 388 petitions included no attachments or supporting evidence, and Mother was not present to testify. The court then asked Mother's counsel how she she would like to proceed. Mother's counsel said she had just been informed that Mother "may" be in court "in the next 30 minutes," and asked the court to continue the matter or place it on second call. Mother's counsel also told the court that the section 366.26 addendum report "confirmed" that Mother had been attending AA and NA meetings, was "in the 12-step program," had a sponsor, and that Mother "was to be here this morning to provide the additional attachments" supporting her section 388 petition—contrary to her earlier representation that Mother would be bringing documentary evidence "for the [section 366].26 hearing."
The court denied the request, noting Mother was present in court on September 14, had been given "good notice" of the section 366.26 hearing, and was ordered to be in court at 8:30 a.m. on September 15 but had still not arrived by 10:17 a.m. The court also refused to continue the section 366.26 hearing, when it was called at 10:21 a.m., because Mother was still not present in court. Mother, in effect, had already had a nearly two-hour continuance.
The court's reasons for denying the continuance requests were sound, and the court did not abuse its discretion in denying the requests. Mother's counsel offered the court no reason for Mother's failure to be present in court on September 15 and no reason to believe Mother would arrive in court within 30 minutes. There was simply no explanation for Mother's failure to be present in court, as ordered. Further, Mother's counsel did not identify the attachments or evidence Mother was to bring to court to support her section 388 petitions, or explain how the attachments differed from anything in DPSS's reports. Nor did Mother's counsel advise the court that Mother would testify in support of her section 388 petitions or at the section 366.26 hearing. Mother's counsel did not explain Mother's reasons for not filing her section 388 petitions before September 15, and did not explain why Mother was unable to file her attachments or supporting evidence with her petitions. Mother had had ample time to file her petitions, given that her services were terminated in January 2017 and the section 366.26 hearing was originally set for May 17, 2017.
Mother asserts that the juvenile court abused its discretion in not postponing the hearings to its afternoon calendar on September 15. But Mother's counsel did not ask the court to postpone the hearings to its afternoon calendar, and Mother has not shown that the hearings could have been postponed to the afternoon calendar. Thus, Mother has not met her burden of demonstrating prejudicial error on this ground. "[A] party challenging a judgment has the burden of showing reversible error by an adequate record. [Citations.]" (Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575.)
Mother argues her case is "strikingly similar" to In re Hunter W. (2011) 200 Cal.App.4th 1454 (Hunter W.) We disagree. There, the juvenile court abused its discretion in refusing the parents' request to briefly delay or trail the hearings on the parents' section 388 petitions, and the section 366.26 hearing, from the court's morning calendar to its afternoon calendar on December 6. (Hunter W., supra, at p. 1463.) The hearings on the section 388 petitions were already in progress. The court heard some testimony on the petitions on November 23, and continued the hearings to December 6 at 8:30 a.m., in order to hear additional testimony on the petitions from both parents and from a witness for the father. (Hunter W., supra, at pp. 1459-1460.) Both parents "checked in at calendar call at 8:30 a.m." on December 6, but neither parent was present when the court reconvened at 10:20 a.m., and neither parent was responding to pages to report back to the court. (Id. at p. 1460.) The father's counsel explained that the father had gone to his treatment program to obtain a signed certificate and would be back by 1:30 p.m. Father's counsel also said he thought that an officer was going to testify in the court on another case that morning, "'[s]o that's why I told [father] to go now so that he would be back by 1:30.'" (Ibid.)
The juvenile court denied the parents' requests to trail or continue the hearings to its 1:30 p.m. calendar, or until both parents could be located. (Hunter W., supra, 200 Cal.App.4th at p. 1460.) In concluding that the juvenile court abused its discretion in denying the parents' requests, the Hunter W. court first oberved that the parents were "not requesting a continuance," as envisioned in section 352, but rather, were simply asking the court to "hold the matter for a short time so that mother could be located and father could be notified to return to court." (Hunter W., supra, at p. 1464.) The court also emphasized that the juvenile court did not explain why the matter had to proceed "at that particular time"—that is, at 10: 20 a.m. on December 6, and nothing supported the juvenile court's assertion that the parents were "'playing the system'" and "trying to delay the proceeding." (Id. at pp. 1464-1465.) Rather, the parents were present at the November 23 hearings and would have testified on that date had there been time. (Id. at p. 1465.)
Unlike the parents in Hunter W., Mother did not check into court at 8:30 a.m. on September 15, the date and time she was ordered to be present in court. Mother's counsel offered no reason for mother's absence, no reason for the court to believe Mother would arrive within 30 minutes, and no good cause or substantive reason for continuing or briefly delaying the hearings to give Mother additional time to arrive in court. Moreover, in requesting the continuance or 30-minute delay in the hearings, Mother's counsel did not advise the court that Mother would be testifying, either at the hearings on her section 388 petitions or at the section 366.26 hearing. Mother's counsel only told the court that Mother would be bringing documentary evidence with her on September 15, but Mother's counsel did not explain what that evidence was or how it differed from or added to anything in DPSS's reports. Thus here, the juvenile court did not abuse its discretion in denying the request to continue or delay the hearings. B. Any Error in Refusing to Continue or Delay the Hearings Was Harmless
Even if the juvenile court abused its discretion in denying Mother's counsel's request to continue or delay the hearings for 30 minutes, the error was harmless. Mother has not demonstrated a reasonable probability that she would have realized a more favorable result had either of the hearings been continued, or had she been present and provided documentary evidence at either hearing. (D.E. v. Superior Court (2003) 111 Cal.App.4th 502, 513-514 [standard of reversible error articulated in People v. Watson (1956) 46 Cal.2d 818, 836 applies in determining whether conduct of dispositional hearing in party's absence was harmless].)
Under section 388, a parent may request that the court change, modify, or set aside a previous court order. The parent must show (1) changed circumstances or new evidence and (2) that the proposed change would be in the child's best interest. (In re Alayah J. (2017) 9 Cal.App.5th 469, 478; § 388.) Mother's petition did not make either of these showings, and Mother has not shown that she would have provided testimony or documentary evidence sufficient to make these showings. By her section 388 petition, Mother asked the court to return the twins to her care pursuant to a family maintenance plan, or reinstate her reunification services and liberalize her visitation. In her petitions, Mother claimed she was attending AA/NA meetings on a weekly basis while attending a 12-step program, and that she had a sponsor. In arguing that the petition should be granted, Mother's counsel also claimed Mother had stable and secure housing, was gainfully employed, had been maintaining visits with the twins, and had a strong bond with them.
Even if Mother testified that she had been doing these things, and even if Mother had provided documentary evidence to support her claims, it is not reasonably probable that the court would have granted Mother's petition. Mother claimed to be attending AA/NA meetings and a 12-step program before her services were terminated. But during the reunification period, Mother did not, although ordered to do so, complete a substance abuse program, enroll in counseling, or complete a parenting class, and she did not claim she was doing any of these things in her petitions. Thus, Mother could not have shown changed circumstances.
Nor could Mother have shown that granting her petitions would have been in the twins' best interests. Minor's counsel urged the court to deny Mother's petitions, noting Mother had been "disruptive" during her "sporadic visits" with the twins, causing DPSS to supervise the visits in place of the MGM.
Finally, Mother has not shown she would have realized a more favorable result at the section 366.26 hearing—that parental rights would not have been terminated—had that hearing been continued as requested. Mother's counsel argued that the parental benefit exception to the statutory preference for adoption applied. (§ 366.26, subd. (c)(1)(B)(i).) But in order to find that the parental benefit exception applied, the court had to find not only that Mother had maintained visitation and contact with the twins and occupied a parental role in their lives, but also that termination of parental rights would have been detrimental to the twins because they would have benefited more from continuing their relationship with Mother than from adoption. (In re Noah G. (2016) 247 Cal.App.4th 1292, 1300.) On this record, there is no reasonable probability that the court would have made the latter finding. Again, Mother's counsel did not claim that Mother was going to testify at the section 366.26 hearing, and the record does not indicate that Mother could have provided any testimony or previously-unfiled documentary evidence, supporting a reasonable inference that the twins would benefit more from maintaining their relationship with Mother than they would from adoption. At the time of the section 366.26 hearing, Mother had unresolved and untreated substance abuse and mental health problems, and the three-year-old twins needed a stable home.
IV. DISPOSITION
The orders denying Mother's section 388 petitions, terminating parent rights to the twins and selecting adoption as the twins' permanent plan, are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: RAMIREZ
P. J. CODRINGTON
J.