Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. Nos. JV040201-1, JV040201-2, JV040128, JV040200
GEMELLO, J.
Shirley W. challenges the juvenile court’s orders terminating her reunification services and setting permanency planning hearings for four of her children. We affirm.
BACKGROUND
In November 2004 the Humboldt County Department of Health and Human Services, Social Services Branch (Department) filed Welfare and Institutions Code section 300 petitions on behalf of four of Shirley W.’s (Mother’s) children: Drake C. (born in 2001), W. C. (born in 2000), Benjamin G. (born in 1992), and Elizabeth G. (born in 1990). The petitions alleged that William C., the father of Drake and W. C., committed two acts of domestic violence in the presence of Drake and W. C. and that W. C. was injured in one of the incidents. Mother had a history of domestic violence with William C. and had failed to obtain a restraining order against him. The juvenile court sustained the allegations in January 2005.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
In her petition Mother notes that “The entire sibling group also includes Sara G. and Brian G. were wards of the court in Humboldt County at the outset of this case, and Eric G., an adult child of Petitioner.”
The disposition reports identified Mother’s underlying problems as substance abuse and domestic violence. Mother had entered into a voluntary family maintenance case plan to address these problems earlier in 2004 when juvenile delinquency and dependency petitions were filed on behalf of Benjamin G. As of February 2005, Mother was attending counseling and classes in parenting, substance abuse, anger management and job skills; she had ended her relationship with William C.; and she claimed to have been drug free for over five months. At the disposition hearing in June 2005, the court ordered family maintenance services for Mother and allowed the children to remain in Mother’s home. The court continued services for Mother in November 2005, January 2006, and February 2006.
On or about April 21, 2006, Mother was arrested for transport and sale of a controlled substance and a violation of probation. The Department filed a section 387 supplemental petition alleging Mother could not care for the children because she was incarcerated. The children were detained and placed in foster care. At the time of the jurisdictional hearing on May 15, 2006, both Elizabeth and Benjamin were reported as runaways whose whereabouts were unknown. The court sustained the supplemental petition, ordered reunification services for Mother, and removed the children from the home.
In her criminal case, Mother participated in drug court. She was released to a clean and sober residence on August 1, 2006, and agreed to attend and complete the Healthy Moms program. On August 17, she was arrested after testing positive for methamphetamine. She returned to custody, where she was to remain until a placement in a residential treatment program became available.
Elizabeth ran away from her placement again in June 2006. In August, the court allowed her to move in with Mother in the clean and sober residence. When Mother was arrested, Elizabeth left the clean and sober residence and her whereabouts were unknown until September 7. On September 7, the court placed Elizabeth in an assisted housing program. On September 14, 2006, Benjamin ran away from his placement.
At status review hearings in November and December, the court continued to order out-of-home placement for the children and reunification services for Mother.
Mother was released to a residential treatment program on December 4, 2006. On about December 14, she left the program without permission. Her whereabouts were unknown until she was arrested in February 2007. On February 22, Mother told the social worker she would not participate in drug treatment or the drug court. She planned to serve out her sentence and participate in outpatient treatment after her release. On March 28, 2007, Mother was sentenced to three years in state prison on the felony count and a concurrent one year minus one day jail term on the misdemeanor possession charge. She told the criminal court she wanted to be sent to prison rather than placed in the California Rehabilitation Center.
Benjamin, whose whereabouts had been unknown since September 2006, was picked up by police on March 10, 2007. He was placed in a children’s center, which he left after five and one-half hours. Elizabeth ran away from her placement again on March 3, 2007 and took along Drake and W. C., who were on a seven-day visit with her. On March 5, police found Elizabeth, Drake and W. C. in the motel where they used to live with their mother. Elizabeth refused to return to foster care. On April 6, Elizabeth was picked up by the police and placed in a youth shelter, which she left the next morning.
On April 18, Yvonne, a friend of Mother’s who lives in Modesto, informed the Department that Benjamin and Elizabeth were with her and that she was willing to take care of them. The Department approved Yvonne’s home and, on May 3, 2007, filed section 388 petitions to place Benjamin and Elizabeth with Yvonne. The petitions were denied without prejudice because the position of Mother’s attorney was not set forth. The Department intended to refile.
At the May 7, 2007, 12-month status review hearing, the court terminated services for Mother and set a section 366.26 permanency planning hearing for August 20, 2007. Mother filed a petition for extraordinary writ relief challenging the May 7 orders. This court issued an order to show cause.
DISCUSSION
I. Reasonable Services
Mother argues the trial court’s finding that the Department provided her with reasonable family reunification services was not supported by substantial evidence.
At the 12-month review hearing, the court must “determine whether reasonable services that were designed to aid the parent or legal guardian to overcome the problems that led to the initial removal and continued custody of the child have been provided or offered to the parent or legal guardian.” (§ 366.21, subd. (f).) The court may set a section 366.26 permanency planning hearing only if there is clear and convincing evidence that reasonable services have been provided or offered to the parents or legal guardians. (§ 366.21, subd. (g)(2).) We review a juvenile court’s findings for substantial evidence. (In re Katrina C. (1988) 201 Cal.App.3d 540, 547.) All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in favor of upholding the finding. (Ibid.) Where the finding must be based on clear and convincing evidence, the clear and convincing test disappears on appeal. (In re Mark L. (2001) 94 Cal.App.4th 573, 580.) The reviewing court has no power to weigh the evidence, but must give full effect to the respondent’s evidence, however slight, and disregard the appellant’s evidence, however strong. (Id. at pp. 580-581.)
As a preliminary matter, Mother’s challenge is limited to services provided since the six- month review hearings in November and December 2006. An unappealed disposition or postdisposition order is final and binding and may not be attacked in a later appeal or writ petition. (See Joe B. v. Superior Court (2002) 99 Cal.App.4th 23, 26.) At the six-month hearings, the court found that the Department had provided reasonable services to Mother. Those findings and all earlier reasonable services findings are immune from challenge in this writ proceeding. The only issue before us is whether substantial evidence supports the court’s finding on May 7, 2007, that the Department provided Mother reasonable services following the six-month review hearings.
On that issue, Mother fails to make even a colorable argument that the finding is unsupported by substantial evidence. Her claim that the “family reunification plan” included inadequate services is not supported by any relevant evidence. She cites a summary of services offered before November 2006 and an irrelevant page of the final status review report. (Status Review Report, Apr. 23, 2007, at pp. 5, 7.) Disregarding our standard of review, Mother entirely omits from her discussion the summary of the services provided in the six months before the status review hearing. (Id. at p. 6.) Failure to state fairly all of the evidence in the record about services forfeits the alleged error. (County of Solano v. Vallejo Redevelopment Agency (1999) 75 Cal.App.4th 1262, 1274.) Mother contends that even the minimal services promised in the case plan were not actually provided by the Department, but she does not cite any evidence to support her contention. Failure to cite evidence in support of a factual contention on appeal results in forfeiture of the contention. (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115.)
Based on our review of the record, the court’s finding is supported by substantial evidence. Mother was incarcerated during most of this period. Services to incarcerated parents are necessarily limited by the availability of services in custody. (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1363.) Reasonable services for incarcerated parents may include support services in the correctional facility, visitation and phone contact between the parent and children, transportation assistance, and services to extended family members or foster parents caring for the children. (§ 361.5, subd. (e)(1).) The Department coordinated with Mother’s drug court counselor to arrange her December 2006 placement at the residential treatment program and paid for Mother’s first period in the program. Mother abandoned the program after several days and her whereabouts thereafter were unknown until her arrest in February 2007. Following her arrest, Mother told the Department she would not participate in further treatment until she was released from prison. The Department arranged for visitation with Drake and W. C. at the Crossroads facility and at the jail and assisted with transportation to the visits. During much of the six-month period preceding the May 7 hearing, Benjamin and Elizabeth were runaways and their whereabouts were unknown, thus preventing visitation. Reunification services were reasonable in the circumstances. (Mark N. v. Superior Court (1998) 60 Cal.App.4th 996, 1011 [adequacy of services is judged according to the circumstances of each case].)
Mother argues that the court’s finding that she made only minimal progress toward alleviating the problems that led to the court’s intervention must be reversed because of the underlying error in the court’s finding that reasonable services had been provided to Mother. Because we have held that the reasonable services finding was supported by substantial evidence, Mother’s challenge to the minimal progress finding necessarily fails.
On this argument, Mother cites only In re Minnie R. (March 30, 1995, E011742), an opinion that was ordered not published by the Supreme Court June 1, 1995, S046150.
II. Sibling Visitation and Placement
Mother argues the juvenile court failed to make findings regarding the children’s sibling relationships and that there was no evidence the Department made sufficient efforts to protect the sibling relationships.
The Department contends this argument is forfeited. Mother did not raise any objections below regarding the sibling relationship findings. Ordinarily, an argument on appeal is forfeited if it was not raised below. (In re Erik P. (2002) 104 Cal.App.4th 395, 399.) An exception is the argument that a mandatory finding was not supported by substantial evidence. (Id. at pp. 399-400.) We shall address Mother’s argument on the merits.
At each status review hearing, the court must determine: “(I) The nature of the relationship between the child and his or her siblings. [¶] (II) The appropriateness of developing or maintaining the sibling relationships pursuant to Section 16002. [¶] (III) If the siblings are not placed together in the same home, why the siblings are not placed together and what efforts are being made to place the siblings together, or why those efforts are not appropriate. [¶] (IV) If the siblings are not placed together, the frequency and nature of the visits between siblings. [¶] (V) The impact of the sibling relationships on the child's placement and planning for legal permanence. [¶] (VI) The continuing need to suspend sibling interaction, if applicable, pursuant to subdivision (c) of Section 16002.” (§ 366, subd. (a)(1)(D)(i).) Section 366.21 expressly requires the court to make these determinations at the permanency hearing if the children are not returned to the parents’ home. (§ 366.21, subd. (f) [requiring § 366, subd. (a) finding].)
The court fulfilled its obligation to make these determinations at the May 7, 2007 hearing. The court entertained comments by the minors’ attorneys who emphasized that the siblings are very close and wanted to see each other. The court acknowledged that “[s]ibling contact is critically important.” The parties discussed sibling visitation and came to a reasonable resolution. The minors’ attorneys requested weekly visitation between the older and younger siblings, adjusted to every other week while the older siblings were located out of Humboldt County. However, the Department argued visitation should be limited to once a month due to the difficulty of transporting the children between Humboldt County and Modesto for the visits. The court acknowledged the transportation difficulty and observed that it was caused by Benjamin’s refusal to stay in any other placement. The record amply supports the court’s concern about Benjamin’s tendency to run away from his placements, a concern that also applied to Elizabeth. The court found the children’s current placements necessary and appropriate and scheduled a contested hearing on sibling visitation. The parties agreed to monthly visitation in the interim. The court further suggested the parties explore the possibility of placing the children in a summer camp together and told the Department to take into consideration the need for ongoing sibling contact as it continued to search for a permanent placement for Drake and W. C.
Mother marshals evidence in the record of the siblings’ close bond and of visitation arrangements that were made earlier in the dependency proceedings. This evidence supports the court’s findings. Mother makes no specific argument that the sibling relationship evidence should have caused the court to issue a different order than it issued.
III. Denial of Continuance
Mother argues the court abused its discretion in denying her request for a continuance of the 12-month hearing so that she could be transported from prison to be present.
Upon a showing of good cause, the juvenile court may continue a hearing beyond the statutory time limits for the hearing if the continuance is consistent with the children’s interests. (§ 352.) The continuance shall be granted only for that period of time “shown to be necessary by the evidence presented at the hearing” and the court must enter in the court minutes “the facts proven” that require the continuance. (Ibid.)
On May 4, 2007, Mother filed a written motion to continue the May 7 hearing. (§ 352.) In the supporting declaration, Mother’s attorney averred that Mother wished to attend the May 7 hearing. She had recently been transported from jail to Chowchilla State Prison and the attorney was not able to ascertain her location until late the previous week. The attorney submitted a request to transport Mother to the hearing, but he doubted whether the request could be processed in time. At the May 7 hearing, the Department and the minors opposed a continuance. Deputy county counsel noted that incarcerated parents do not have a statutory right to attend a review hearing; an order for transport to such a hearing is left to the discretion of the court. (Pen. Code, § 2625, subds. (b), (d), (e).) When the court asked what Mother’s presence would add to the proceedings, Mother’s attorney submitted on his written motion. The court denied the motion and specifically found that a continuance would be contrary to the minors’ best interests because it would cause further delay.
On appeal, Mother argues she needed the continuance to give her an opportunity to consult with her attorney and possibly to present evidence and argument at the hearing about the inadequacy of services and the strength of the sibling bonds. There are problems with this argument. Mother offers as support for her argument a declaration of counsel attached to her petition that is not part of the trial court record and thus is not a proper subject of a motion to augment the record. (Cal. Rules of Court, rule 8.155(a).) Even if Mother had filed a motion to take additional evidence on appeal, we would deny the motion because section 352 clearly provides that a continuance should be granted based on facts proven in the trial court. (Cal. Rules of Court, rule 8.252(b); § 352.) In any event, the declaration attached to Mother’s petition merely describes the circumstances that caused an untimely request for Mother’s transport from prison to the hearing. It does not state that the attorney lacked an opportunity to consult with Mother or that had he had that opportunity he would have been able to present relevant evidence at the hearing.
The court did not abuse its discretion in denying the continuance.
DISPOSITION
The May 7, 2007 orders are affirmed. The decision of this court is final forthwith.
We concur. SIMONS, Acting P.J., NEEDHAM, J.