Opinion
D059861 Super. Ct. No. NJ14328
10-20-2011
In re GWENDOLYN P., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. NICOLE M., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from orders of the Superior Court of San Diego County, Blaine K. Bowman, Judge. Affirmed.
Nicole M. appeals orders terminating her parental rights to her daughter, Gwendolyn P., and referring Gwendolyn for adoption. She contends the court abused its discretion and denied her due process by not granting her counsel's motion for a continuance so that she could be present at the Welfare and Institutions Code section 366.26 hearing. We affirm the orders.
Statutory references are to the Welfare and Institutions Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
On May 14, 2010, the San Diego County Health and Human Services Agency (the Agency) petitioned on behalf of infant Gwendolyn under section 300, subdivision (b), alleging she and Nicole tested positive for amphetamine/methamphetamine at Gwendolyn's birth; Nicole admitted using drugs and alcohol during her pregnancy and has an extensive substance abuse history; Gwendolyn's father, Richard P., and Nicole were arrested on drug related charges on May 2; and Richard also admits a history of drug use. The court ordered Gwendolyn detained in foster care. On June 3, it found the allegations of the petition to be true, declared Gwendolyn a dependent of the juvenile court and found the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) applied.
Nicole is an enrolled member of the Santa Ysabel Band of Diegueno Indians. The Indian expert for the Santa Ysabel Band (the Indian expert) stated Gwendolyn is considered a member of this community; the Agency had made active efforts to prevent the breakup of the Indian family; and care, custody and control of Gwendolyn should be placed with the Agency.
Nicole had been a dependent of the juvenile court herself from 1995 to 1998 and then entered into a guardianship. Her mental health history includes depression, anxiety and cutting herself, and she had been diagnosed with bipolar disorder. She had stopped taking her prescribed psychotropic medication in 2009. After Gwendolyn was detained, Nicole lived in a sober living facility for a time, visited Gwendolyn and attended a substance abuse day treatment program. She stopped all treatment and participation in services the day Richard was released from custody.
In December 2010, the social worker reported the Agency did not know Nicole's or Richard's whereabouts, but Nicole had telephoned in October, saying she was homeless and would like to continue with services. At the six-month hearing on December 21, 2010, the court continued Gwendolyn as a dependent, terminated reunification services and set a section 366.26 hearing to select and implement a permanent plan.
The social worker reported Nicole visited Gwendolyn on a regular basis when she (Nicole) was in substance abuse treatment, and she visited once more in October, but she had not seen Gwendolyn since then. Nicole had been arrested several times during the past year. Meanwhile, Gwendolyn had been in the care of her foster parents since October 1, and they were committed to adopting her. There were also other families interested in adopting a child with Gwendolyn's characteristics.
At the section 366.26 hearing on June 2, 2011, Nicole's counsel asked the court to continue the hearing so that Nicole could be present. Counsel explained that Nicole was in a substance abuse treatment facility in Cabazon, California, and could not be present. The court denied the motion for a continuance, and Nicole and the Indian expert both testified by telephone.
The Indian expert said active efforts were made to prevent the breakup of the Indian family, and custody with the parents would result in serious damage to Gwendolyn. She testified the Santa Ysabel Band supported Gwendolyn's placement with her foster family. The expert said although Nicole had her telephone number, she had not contacted her. Nicole testified she was in a residential treatment program in Cabazon. She said she had been there for a month and a half and could not leave to attend court. She did not want Gwendolyn to be adopted.
After considering the evidence and argument of counsel, the court terminated parental rights and referred Gwendolyn for adoption.
DISCUSSION
Nicole contends the court erred and denied her due process by not granting her counsel's motion for a continuance so that she could be present in court at the section 366.26 hearing.
The juvenile court may grant a continuance only on a showing of good cause. "[T]he court shall give substantial weight to a minor's need for prompt resolution of his or her custody status . . . ." (§ 352, subd. (a).) "Continuances are discouraged [citation] and we reverse an order denying a continuance only on a showing of an abuse of discretion [citation]." (In re Ninfa S. (1998) 62 Cal.App.4th 808, 810-811.)
"[D]ue process requires 'notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.' [Citation.]" (In re Melinda J. (1991) 234 Cal.App.3d 1413, 1418.) "The essence of due process is fairness in the procedure employed . . . ." (Ingrid E. v. Superior Court (1999) 75 Cal.App.4th 751, 757.)
Nicole has not shown the court abused its discretion at the hearing by denying her counsel's oral motion for a continuance. Counsel told the court Nicole had contacted her the day before the hearing to say she was in a treatment facility in Cabazon. She said Nicole was in the first 30 days of treatment, not able to leave the facility and would not have transportation to come to court that day.
The court stated it could not find good cause to continue the section 366.26 hearing. It allowed Nicole to appear and testify telephonically. Considering Gwendolyn's need for a prompt resolution of her custody status and the lack of a showing of good cause to continue the hearing, we hold the court did not abuse its discretion.
Moreover, Nicole was not denied due process. She received notice, and she was allowed to participate by telephone at the hearing and provided telephonic testimony to the court. There was no denial of due process.
DISPOSITION
The orders are affirmed.
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BENKE, Acting P. J.
WE CONCUR:
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O'ROURKE, J.
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AARON, J.