Opinion
F080219 F080220
01-29-2020
FRANCISCO G., Petitioner, v. THE SUPERIOR COURT OF MERCED COUNTY, Respondent; MERCED COUNTY HUMAN SERVICES AGENCY, Real Party in Interest. NANCY C., Petitioner, v. THE SUPERIOR COURT OF MERCED COUNTY, Respondent; MERCED COUNTY HUMAN SERVICES AGENCY, Real Party in Interest.
Francisco G., in pro. per., for Petitioner. Nancy C., in pro. per., for Petitioner. No appearance for Respondent. James N. Fincher, County Counsel, and Jennifer Trimble, Deputy County Counsel, for Real Party in Interest.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Merced Super. Ct. Nos. 18JP-00107-A, 18JP-00107-B, 18JP-00107-C)
OPINION
THE COURT ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Donald J. Proietti, Judge. Francisco G., in pro. per., for Petitioner. Nancy C., in pro. per., for Petitioner. No appearance for Respondent. James N. Fincher, County Counsel, and Jennifer Trimble, Deputy County Counsel, for Real Party in Interest.
Before Levy, Acting P.J., Poochigian, J. and Snauffer, J.
-ooOoo-
Petitioners Francisco G., Sr. (father) and Nancy C. (mother), in propria persona, seek extraordinary writ relief (Cal. Rules of Court, rules 8.450-8.452) from the juvenile court's orders issued at a 12-month review hearing on October 29, 2019, terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing as to their now 15-year-old son, Francisco G., Jr. (Francisco), 14-year-old son, Christopher G., and 10-year-old daughter, Ruby G. (the children). The parents contend the juvenile court erred in not continuing the hearing to allow them to personally appear. We heard oral argument on the writ petitions at the same time. On our own motion, we consolidate the matters for decision and grant the petitions.
Statutory references are to the Welfare and Institutions Code. --------
PROCEDURAL AND FACTUAL SUMMARY
In August 2018, the Merced County Human Services Agency (agency) took the children into protective custody and placed them with their maternal aunt and uncle after the parents were found by sheriff's deputies living with then eight-year-old Ruby in a car in an orchard. There were safety hazards on the property; machinery, dilapidated cars, used tires, an abandoned 18-wheeler trailer, several 55-gallon drums, trash and burned items. The family had no running water, utilities, or bathroom facilities and their sleeping arrangements and food storage were inadequate.
Mother spoke for the couple and was uncooperative with the deputies. She denied living on the property and refused to explain how she and father were providing for Ruby. She said she had been homeless for two years. The deputies ran a criminal background check and discovered mother had eight arrest warrants out of Madera County.
Francisco and Christopher were living with their maternal grandfather, Julio C., and enrolled in a local school. Mother left the children with Julio without making formal arrangements. Julio was reluctant to talk about mother because he feared retaliation. He only allowed mother in his home to use the restroom or to shower but did not allow father there. He said the parents needed to be " 'put in a program' " but would not say whether they were abusing substances. He was frustrated that they were not employed. Asked whether he was interested in assuming legal guardianship, he said he would take the children but only as a last resort, explaining he was elderly and was the legal guardian of four other grandchildren who ranged in age from nine to 14.
Ruby was initially upset about being removed from her parents but was pleased to be with her brothers. She denied living on the property but was unable to say where she had been staying and her statements were inconsistent, suggesting she had been coached by her parents. Francisco and Christopher appeared unphased at being removed. Christopher asked how long they were going to be in foster care " 'this time' " and Francisco asked to be placed with relatives because his last experience in foster care was "bad."
The agency filed a dependency petition on the children's behalf under section 300, subdivision (b), alleging the parents placed the children at a substantial risk of suffering serious physical harm or illness by failing to provide them adequate care and supervision. The agency cited the parents' long history of homelessness, substance abuse and domestic violence as contributing factors.
In its report for the detention hearing, the agency detailed the parents' history of child neglect dating back to September 2005 when the family home was found to have no electricity and little food and there was dog feces and urine throughout the home. The family was provided voluntary family maintenance services until the case was closed in July 2006. By that time, mother had separated from father and moved into the maternal grandmother's home. Mother minimally complied with her services plan and did not provide a hair follicle for analysis, claiming a religious prohibition on having her hair cut. In December 2006, authorities detained Francisco and Christopher because of the parents' substance abuse, domestic violence and deplorable condition of the home. A door was unhinged, doorknobs were broken and there was broken glass on the bedroom floor from a shattered window. The parents were provided family reunification services from August 2007 to September 2009. They participated in domestic violence and anger management services as well as parenting classes. There were no subsequent domestic violence incidents and mother maintained her sobriety. The parents were employed full time, had a safe and stable home for the children, and established an extended support system through family and church members. In September 2009, the court ordered the case dismissed. In October 2012, the agency intervened again after the parents drove while under the influence and crashed the car with the children inside. They were arrested, and the children were taken into protective custody. At the dispositional hearing in February 2013, the court ordered the children returned under family maintenance and the case was dismissed.
The parents appeared at the detention hearing in this case on August 21, 2018, and were appointed counsel. The court continued the hearing and reconvened two days later. The parents informed the juvenile court they found a house which they were scheduled to occupy shortly. They waived their right to a contested hearing and submitted on the agency's report and recommendation to detain the children. The juvenile court found prima facie evidence the children were described under section 300, subdivision (b) and ordered them detained. The court ordered the parents to submit to random drug testing and return for the jurisdictional hearing which it set for September 19.
The juvenile court continued the jurisdictional hearing because the agency's report was not filed. County counsel explained the parents refused to be interviewed without their attorneys, which prevented the agency from assessing their case. The parents told the court they were anxious to proceed toward reunification. They had a home, were employed and had transportation. The children were all doing well in school. Francisco was on the football team and they wanted to attend his games. Mother acknowledged they had not drug tested but said they would. They were not refusing to be interviewed but objected to having to repeat their history to multiple social workers. The court asked the agency to arrange for them to attend the football games and continued the hearing to October 3.
In its jurisdictional/dispositional report, the agency recommended the juvenile court sustain the petition and order the children removed from parental custody. The parents had not been cooperative with the agency and did not understand the agency's concerns about their history of chronic homelessness, substance abuse and domestic violence. It recommended the court offer them substance abuse counseling, parent education and anger management to facilitate the children's return.
The parents objected to the agency's recommendations and testified at a contested jurisdictional/dispositional hearing in November 2018. Father testified he and mother obtained a four-bedroom house within 72 hours of the children's removal. The house was clean and ready for the children to move in. He and mother were employed, and he was attending "All Dads Matter," which he believed was a parenting class. However, he had not reviewed his case plan and was unaware it was listed as a mental health service. Father further testified he had approximately seven or eight years of sobriety and had been attending Narcotics Anonymous (NA) meetings for about one month. He had not drug tested for the agency and acknowledged being resistant but was prepared to cooperate.
The parents denied the family was living on the property where Ruby was taken. Father testified someone was working on his Jeep there and he had gone to check on the job. Mother and Ruby were living with the paternal grandmother.
Mother completed the "All Moms Matter" program and was participating in individual and group counseling. She had been waiting for a referral to a parenting program approved by the agency. The social worker gave her that information before the hearing. Mother acknowledged having a substance abuse problem in the past and was willing to drug test but was waiting for a court order. She did not remember that the court had ordered her to drug test. She attended NA two weeks before and had a letter as proof but had not given it to the social worker.
Father's attorney asked the juvenile court to return the children to him with family maintenance services. Mother's attorney joined. The court adopted the agency's recommended findings and orders, removed the children from parental custody and ordered the parents to participate in the "All Moms Matter" and "All Dads Matter" support groups, complete a parenting education class and a drug and alcohol assessment and submit to random drug testing. The court set a six-month review hearing for April 4, 2019.
By January 2019, the parents were homeless and staying with friends. They were not participating in their court-ordered services and in February were involved in a physical altercation. The Merced County Sheriff's Department received a call that father was chasing mother. When the deputy responded, mother denied a physical altercation occurred. Father was booked into the county jail for public intoxication.
The parents had weekly supervised visits with the children and were affectionate, age appropriate and attentive to them. However, they arrived late for a visit in December 2018 and in January 2019 failed to show up or call to reschedule. They arrived late for a visit in mid-February 2019. They were screened prior to the visit for drug or alcohol use. Although they did not initially appear to be under the influence, father later slurred his speech and was uncoordinated during the visit. Two weeks later, mother called and cancelled the visit, stating the person who transported them was having car problems. In April, father became upset during a conversation with the children and referred to them as " 'mother f*****s.' " The visitation staff intervened and asked him to refrain from calling the children names. Father left the visit early. Mother stayed but was argumentative with the staff. Ruby said the yelling and cussing scared her. She stated, " 'I actually kind of don't want to do visits anymore because of what happened and I am afraid of my dad hurting us.' "
At the six-month review hearing in April 2019, the juvenile court continued reunification services and set a 12-month review hearing for September 26, 2019. In the interim, the parents missed a visit on May 23, which mother called to cancel. On July 9, the parents did not show up for their visit and did not call to cancel or reschedule.
In its report for the 12-month review hearing, the agency recommended the juvenile court terminate reunification services. The parents were employed and had stable housing but had only recently started participating in court-ordered services. They completed a parenting class in July 2019 and assessments for substance abuse and domestic violence services in September. They did not meet the criteria for substance abuse services but were referred for domestic violence services. The parents were homeless from April to late July when they moved in with the paternal grandmother in Madera County. The paternal grandmother also provided them transportation. Although it was stable housing for the parents, it was not stable for the children because law enforcement had responded several times because of domestic violence between father and his brother and his brother's illegal marijuana grow.
Meanwhile, the children were in good physical and mental health and enjoyed school. Francisco and Christopher were active in sports. Ruby had a lot of friends at school and enjoyed spending time with her cousin. The children stated they wanted to be adopted by their relatives and the relatives were willing to provide them a permanent home through legal guardianship or adoption.
On September 26, 2019, the parents appeared for the 12-month review hearing and asked the juvenile court to set it for a contested hearing. The court set a contested hearing for 8:30 a.m. on October 29, 2019, and ordered the parents to appear on that date at that time.
Neither parent was present when the juvenile court called the case on October 29, 2019. Mother's attorney informed the court that mother was having car trouble and was unable to make it. She requested a continuance to allow mother to appear and testify. Father's attorney joined in the request for a continuance, stating that father depended on mother for transportation. County counsel stated the information from the parents was relayed to the social worker that morning by text message, which stated " 'We're having car problems. We're not going to make it.' " County counsel objected to a continuance, stating "These are parents who did not engage in services for a number of months and have done some last-minute services ...." Minors' counsel joined in objecting to a continuance.
The juvenile court denied the request to continue the hearing, stating "There's no indication ... [the parents] are asking to delay [the hearing]. They're simply giving the excuse why they're not here." The court terminated their reunification services and set a section 366.26 hearing for February 6, 2020.
DISCUSSION
"[P]roviding children expeditious resolutions is a core concern of the entire dependency scheme." (Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 847, fn. 4.) Consequently, "[o]ur state's dependency statutory scheme imposes strict requirements to resolve cases expeditiously." (In re James Q. (2000) 81 Cal.App.4th 255, 267 (James Q.).) For that reason, continuances in juvenile dependency cases are generally disfavored. (In re David H. (2008) 165 Cal.App.4th 1626, 1635.)
Section 352, the governing statute, allows the juvenile court to grant a continuance upon a showing of good cause and only for that time shown to be necessary. "[A] continuance shall not 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)(1).) "[T]he convenience of the parties is [not] in and of itself a good cause...." (Id. at (a)(2).)
However, some dependency hearings are more critical than others because of the fundamental interests at stake. Review hearings, for example, are critical proceedings. They mark the point at which reunification efforts cease. "[O]nce that occurs, the focus shifts from the parent's interests and the burden is placed on the parent to demonstrate why the parent-child relationship should not end." (James Q., supra, 81 Cal.App.4th at p. 268.)
Further, parents are entitled to due process. (James Q., supra, 81 Cal.App.4th at pp. 267-268.) Generally, the concept of due process encompasses the right to notice and a meaningful opportunity to be heard. (Id. at p. 265.) "A meaningful hearing requires an opportunity to examine evidence and cross-examine witnesses ...." (In re Crystal J. (1993) 12 Cal.App.4th 407, 413.)
Parents also have a general right to a contested hearing on issues to be determined by the court. (Kimberly H. (2000) 83 Cal.App.4th 67, 71.) Thus, " 'due process requires the juvenile court to permit a parent to avail himself or herself of the right, if he or she chooses, to a contested review hearing ....' " (David B. v. Superior Court (2006) 140 Cal.App.4th 772, 780.)
We review the juvenile court's denial of a continuance for an abuse of discretion, In re Mary B. (2013) 218 Cal.App.4th 1474, 1481, recognizing that the court's discretion is not " 'unlimited, and reviewing courts have never ascribed to judicial discretion a potential without restraint.' " (People v. Tabb (1991) 228 Cal.App.3d 1300, 1311.) Discretion is therefore "abused when it exceeds the bounds of reason, all of the circumstances being considered." (People v. Ward (2009) 173 Cal.App.4th 1518, 1527.)
We conclude the juvenile court abused its discretion in this case by not continuing the contested 12-month review hearing. The parents actively participated in the proceedings by attending the hearings and had requested a contested hearing on the agency's recommendation to terminate their reunification services. On the date of the hearing, the court refused a continuance, concluding they had not asked for one but merely explained why they could not appear. However, their attorneys asked for a continuance and provided the reason—the parents did not have transportation. Further, the parents' attorneys were apparently not prepared to proceed in their absence because they made no attempt to argue a position that would protect their parental rights. Consequently, despite their request for a contested review hearing and a continuance, they were deprived the opportunity to challenge the state's evidence at their last opportunity to do so before the cessation of reunification efforts.
We grant writ relief, fully cognizant that dependent children need an expedient resolution and the press of court business requires efficiency. However, the children are older and well bonded to their parents. They were also doing well in their relative placement. There is no evidence a short continuance to allow the parents to appear and argue their case would jeopardize the children's chance at a permanent placement. Further, there were several months remaining before the 18-month limitation on reunification services and these parents demonstrated multiple times the ability to achieve full compliance very quickly by obtaining housing and employment. Conceivably, they could have argued there was a substantial probability the children could be returned to their custody by then. How the juvenile court would have viewed their resilience, given their pattern of regressing just as quickly, is unknown. However, they should be allowed to raise this and any other relevant issues, before they are automatically faced with the permanent severance of their parental rights. We conclude on these facts they were denied due process.
DISPOSITION
The petitions for extraordinary writ are granted. Let an extraordinary writ issue directing the juvenile court to vacate its orders terminating the parents' reunification services and setting the section 366.26 hearing. The juvenile court is further directed to conduct a contested 12-month review hearing. This opinion is final forthwith as to this court pursuant to California Rules of Court, rule 8.490(b)(2)(A).