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In re A.H.

California Court of Appeals, Third District, Sacramento
Mar 24, 2008
No. C056264 (Cal. Ct. App. Mar. 24, 2008)

Opinion


In re A.H. et al., Persons Coming Under the Juvenile Court Law. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. ROSEMARY G., Defendant and Appellant. C056264 California Court of Appeal, Third District, Sacramento March 24, 2008

NOT TO BE PUBLISHED

Super. Ct. Nos. JD221677, JD221678, JD221679, JD221680

RAYE, J.

Rosemary G., mother of the minors, appeals from orders of the juvenile court granting a supplemental petition removing the minors from a relative placement. (Welf. & Inst. Code, §§ 387, 395.) Appellant contends substantial evidence did not support the removal and the court abused its discretion in denying her request for a continuance of the contested hearing. We affirm.

All further statutory references are to the Welfare and Institutions Code.

FACTS

The Sacramento County Department of Health and Human Services (DHHS) removed the four minors, ranging in age from 17 months to 9 years, from parental custody in January 2005 because of the physical abuse of two of the minors, which placed all the minors at risk of serious physical harm. The parents were offered services but failed to reunify after two years of participation. The court set a section 366.26 hearing to select and implement a permanent plan for the minors and placed them with a maternal uncle.

In May 2007 DHHS filed a supplemental petition (§ 387) seeking to remove the minors from the maternal uncle’s home because he failed to provide appropriate care for the minors, in that he left them with inappropriate caretakers and used marijuana despite a corrective action plan designed to address these issues. The court ordered the minors detained from the maternal uncle’s home.

The detention report for the supplemental petition stated that in March 2007 DHHS became aware that the maternal uncle and the minors were living with the maternal grandmother and appellant. Upon investigation, the maternal grandmother was found to have a CPS history and DHHS directed the maternal uncle to find another residence for himself and the minors. He was informed that the maternal grandparents could not provide child care for the minors. Shortly thereafter, a social worker inspected the maternal uncle’s apartment, from which he was about to be evicted, and found it to be filthy and moldy. The maternal uncle had also tested positive for marijuana during this time.

The social worker initiated a corrective action plan, which the maternal uncle signed, to address issues of drug use, appropriate care of the minors, and child care providers. Thereafter, DHHS learned that the paternal uncle continued to maintain substandard living conditions for the minors, asked at least one of the minors to lie to cover up his questionable actions, and regularly permitted the maternal grandparents and other unauthorized persons to provide child care. The corrective action plan required the maternal uncle to submit to drug testing twice a week. By the end of April, he had tested only four times and all tests were positive for marijuana.

The report for the jurisdiction/disposition hearing on the supplemental petition stated that the minors would be at risk of abuse and neglect if returned to the maternal uncle because he had not provided adequate care for them and continued to use drugs despite a corrective action plan designed to address these problems. The report also provided the results of a psychological consultation, which concluded, inter alia, that the minors were developing an attachment to the maternal uncle and ongoing contact with him would be likely to promote the minors’ sense of well-being and adjustment in any subsequent placement.

At the combined hearing on the petition and selection of a permanent plan, appellant’s counsel requested a continuance because appellant was not present. The court denied the request for lack of showing of good cause. The court sustained the supplemental petition, continued the minors in foster care placement, selected adoption as the permanent plan, and continued the section 366.26 hearing, finding termination of parental rights would not be detrimental to the minors but that they were hard to place because of age and the sibling group.

DISCUSSION

I

Appellant contends substantial evidence does not support the court’s order removing the minors from the maternal uncle’s home. She argues the evidence did not show that continued placement was not in the minors’ best interest.

When the sufficiency of the evidence to support a finding or order is challenged on appeal, even where the standard of proof in the trial court is clear and convincing, the reviewing court must determine if there is any substantial evidence -- that is, evidence that is reasonable, credible, and of solid value -- to support the conclusion of the trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) In making this determination we recognize that all conflicts are to be resolved in favor of the prevailing party, and that issues of fact and credibility are questions for the trier of fact. (In re Jason L., supra, 222 Cal.App.3d at p. 1214; In re Steve W. (1990) 217 Cal.App.3d 10, 16.) The reviewing court may not reweigh the evidence when assessing the sufficiency of the evidence. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)

Removal of a minor from the custody of a relative is based upon a showing that the placement is not appropriate in view of the criteria in section 361.3. (§ 387, subd. (b).) Section 361.3 sets forth a nonexclusive list of factors to be considered in making a relative placement. (§ 361.3, subd. (a).) The factors relevant here are: the best interest of the child; the ability of the relative to provide a safe and secure home, to exercise proper care and control of the child, and to provide a home and the necessities of life for the child; and the safety of the relative’s home. (§ 361.3, subd. (a)(1), (7), (8).)

The evidence before the court was that the maternal uncle, despite a corrective action plan, was unable to provide a safe and secure home, secure appropriate child care, or maintain a drug-free environment. “[A] home environment free from the negative effects of substance abuse is a necessary condition for the safety, protection and physical and emotional well-being of the child. . . .” (§ 300.2.) It was not necessary that the minors suffer actual harm in the uncle’s care; the risk of harm to them from the unsanitary home, unapproved caretakers, and substance abuse was palpable. Substantial evidence supported the juvenile court’s decision to remove the minors from the custody of the maternal uncle.

II

Appellant contends the juvenile court abused its discretion in denying her request for a continuance.

The juvenile court has the discretion to continue any hearing. However, the exercise of the court’s discretion is guided and limited by section 352, which provides: “Upon request of counsel for the parent, guardian, minor, or petitioner, 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. . . .” (§ 352, subd. (a).)

When the hearing began, counsel for appellant requested a continuance because appellant was not present. Counsel stated: “I don’t have any information as to why she’s not here. I know she was aware of today’s court date. In addition to being at the pretrial she had called me last week to indicate she wanted to discuss today’s court date, and I was never able to reach her. So I know she knows about today’s date and knows that I’m her attorney. I was in my office until just before twelve o’clock and had not received a message. I know she had been very interested and had come to all prior hearings.”

The court denied the request “as good cause is not stated. The mother has been properly noticed of the hearing, and there’s no explanation for her absence. Certainly, should there -- should later good cause come to light, counsel can file a motion for reconsideration.”

The court may not grant a continuance absent a showing both of good cause and that it is not contrary to the minors’ interests. (§ 352.) Appellant’s counsel’s statement did neither. Moreover, the court indicated its willingness to reconsider the matter if additional facts came to light. No such motion was filed. The juvenile court did not abuse its discretion in denying appellant’s request for a continuance.

DISPOSITION

The orders of the juvenile court are affirmed.

We concur: SIMS , Acting P.J., DAVIS , J.


Summaries of

In re A.H.

California Court of Appeals, Third District, Sacramento
Mar 24, 2008
No. C056264 (Cal. Ct. App. Mar. 24, 2008)
Case details for

In re A.H.

Case Details

Full title:SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and…

Court:California Court of Appeals, Third District, Sacramento

Date published: Mar 24, 2008

Citations

No. C056264 (Cal. Ct. App. Mar. 24, 2008)