Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK78358. Sherri Sobel, Referee.
Catherine C. Czar, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, William D. Thetford, Deputy County Counsel, for Plaintiff and Respondent.
RUBIN, J.
Frank D. (father) appeals from the order terminating his parental rights to his son, Frank D., Jr. (Frank). Father contends the juvenile court abused its discretion and denied father due process when it refused to continue or trail the hearing terminating parental rights. As a result, father was denied the opportunity to be present at the hearing, and an opportunity to voluntarily relinquish the child to a person of his choosing. We affirm.
Although mother’s rights were also terminated, she is not a party to this appeal.
FACTUAL AND PROCEDURAL HISTORY
Because of the procedural nature of the issue on appeal, a brief summary of the facts that brought this family into the dependency system is sufficient. The Los Angeles County Department of Children and Family Services (DCFS) detained Frank and filed a Welfare and Institutions Code section 300 petition in August 2009 when Frank was five months old. As eventually sustained, the petition alleged that Frank had suffered, or there was a substantial risk that he would suffer, serious physical harm or illness as a result of (1) mother’s and father’s failure to protect him from father’s physical violence against mother and (2) father’s illicit drug use, which rendered father incapable of providing regular care. (§ 300, subd. (b).) Father was found to be a presumed father.
All future undesignated statutory references are to the Welfare and Institutions Code, unless otherwise stated.
Frank was initially placed in shelter care. For various reasons, DCFS recommended against placing the child with the maternal grandparents with whom mother was living. These reasons included that the family had a previous sustained petition for child abuse by the maternal grandfather and the social workers were not convinced the maternal grandparents could protect the child from mother and father and the paternal grandmother had not demonstrated any interest in having custody of Frank. The social workers were unable to make contact with the paternal grandmother, with whom father was living.
From mid-December 2009 to mid-January 2010, Frank changed placements four times, including once to be nearer the group home in which mother was placed upon her release from juvenile hall (mother and father had been arrested together for theft), and once when his foster/pre-adoptive family asked that he be immediately removed because they felt unsafe after DCFS gave their telephone number to mother and father. In January 2010, Frank was placed with the foster/pre-adoptive family with whom he has remained throughout these proceedings.
Father was present on April 6, 2010, when the juvenile court set the matter for a trial on DCFS’s recommendation to terminate reunification services for both parents. Neither parent appeared at the trial. The juvenile court terminated reunification services for both parents and set the matter for an August 2010 section 366.26 permanent plan hearing (.26 hearing).
According to the report for the August.26 hearing, Frank was thriving in his placement with the foster/pre-adoptive family. Both parents had visited only sporadically and father had not drug tested. DCFS recommended termination of all parental rights. Although father did not appear and his whereabouts were unknown, he was represented by counsel at the hearing on August 24, 2010. Citing In re R.S. (2009) 179 Cal.App.4th 1137 (R.S.), mother’s counsel informed the court that mother and father wanted to voluntarily relinquish Frank to a maternal aunt. (See Welf. & Inst. Code, § 361, subd. (b); Fam. Code, § 8700, subd. (b).) This colloquy followed: “THE COURT: Have you read the case? [¶] [MOTHER’S COUNSEL]: Yes. [¶] THE COURT: And do you understand that that relative has to have a currently approved home study? [¶] [MOTHER’S COUNSEL]: Your Honor, [the maternal aunt] already has custody of the sibling Angel [D.]. [¶] THE COURT: Then where was she when the case started? [¶] [MOTHER’S COUNSEL]: Had not been notified of the situation, but those are not relevant matters. [¶] My reading of [R.S.] is that these parents have a right to do a voluntary relinquishment at any time until their parental rights are terminated. They are both in agreement that they would like to voluntarily relinquish in favor of maternal aunt.... [¶] [DCFS’S COUNSEL]: Well, ... Angel is not adopted by this person. He’s just -- [¶] [MOTHER’S COUNSEL]: They would like to voluntarily relinquish Frank and Angel. [¶] THE COURT: For adoption? [¶] [MOTHER’S COUNSEL]: Yes. [¶] THE COURT: So [the] child has been in this home since January. [¶] [DCFS’S COUNSEL]: Right. THE COURT: Since January. This is -- the first placement was for the child to be near mother. That didn’t work. [¶] [DCFS’S COUNSEL]: I think it was before. [¶] THE COURT: No. The child is now in the second. [¶] [DCFS’S COUNSEL]: The second, yes. [¶] THE COURT: Placed in two different fost-adopt homes. The first foster parents only kept him for eight days. This is the fourth home for this kid. The fourth home for a one-year-old. [¶] [MOTHER’S COUNSEL]: Well, we’re asking for him to be returned [to] his family for his final home. [¶] THE COURT: Okay. Let’s set this for a contest.” The juvenile court continued the.26 hearing to September 20, 2010, and ordered DCFS to prepare a supplemental report on the relinquishment issue.
According to the DCFS detention report, the social worker interviewed maternal aunt Teresa H., who lived in Thousand Oaks with her husband and son, on July 31, 2009, and again on August 3, 2009. Teresa reported that she would be willing to care for Frank, but she was starting a new job. Teresa had helped mother to obtain prenatal care and had given clothes and toys to the child. Teresa did not express interest in taking custody of Frank. But another maternal aunt, Alejandra A., who lived in Seattle, Washington with her husband, told the social worker that she would take Frank if mother and father were unable to care for him.
For the continued.26 hearing in September, DCFS reported that the maternal aunt to whom the parents intended to voluntarily relinquish Frank did not want to adopt him; mother suggested the paternal grandmother as an alternate, but she had already failed an ASFA; mother’s second alternate, a paternal uncle, had “Live Scanned” at the beginning of the dependency process, but had never contacted DCFS to inquire about visits, much less expressed an interest in custody or adoption. Thus, by the time of the continued.26 hearing, there was neither a final voluntary relinquishment, nor a relative identified who would be willing to adopt. DCFS reiterated its recommendation to terminate parental rights and select adoption as the permanent placement plan.
The approval process for securing Aid to Families with Dependent Children –Foster Care funds is colloquially called “ASFA, ” which refers to the Adoption and Safe Families Act of 1997 (42 U.S.C. § 670 et seq.), which establishes federal guidelines for foster care and relative care placements. (In re Darlene T. (2008) 163 Cal.App.4th 929, 932, fn. 1.)
“Live Scan” is an electronic fingerprinting system used to check an individual’s criminal history. (In re Joseph T. (2008) 163 Cal.App.4th 787, 792, fn. 2.)
Father appeared at the continued.26 hearing on September 20, 2010, which was continued to September 22 due to court congestion. Father was not present when the.26 hearing commenced on September 22. Father’s counsel asked the court to “trail” the matter, explaining that he had prepared a section 388 petition asking that the.26 hearing be continued so that the child could be relinquished to the paternal uncle, but father had not signed the petition. The juvenile court responded: “No, I’m not continuing that, and I’m not obligated by law to do that. [¶] The case is that the home study needs to have been approved already; that the parents have done this before the.26 hearing, not after....” Parental rights were terminated and adoption by the foster family was identified as the permanent placement plan.
Mother’s counsel explained, “I’ve been in contact with the mother by phone. She’s apparently on the freeway. And, at this point, I just got off the phone with her again to check her whereabouts. She’s still in Culver City.” Father’s counsel stated that it was his understanding that father was with mother.
Father filed a timely notice of appeal.
DISCUSSION
A. The Motion to Continue
Father contends it was an abuse of discretion to deny the oral motion to continue or trail the.26 hearing. He argues that doing so denied him adequate time to complete a voluntary relinquishment pursuant to Welfare and Institutions Code section 361, subdivision (b) and Family Code section 8700. We find no error.
For good cause, the juvenile court may grant a continuance of a dependency proceeding, including a.26 hearing, if doing so is not contrary to the interests of the child. (§ 352, subd. (a); see, e.g., In re B.C. (2011) 192 Cal.App.4th 129 (B.C.).) “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).) “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.” (Ibid.; Cal. Rules of Court, rule 5.550(a)(4).) It is an abuse of discretion to grant a continuance that is not in the child’s best interests. (B.C., supra, at p. 146.)
We consider these principles in light of the procedures available for the voluntary relinquishment of a child. Generally, a birth parent may voluntarily relinquish a child for adoption. (Fam. Code, § 8700, subd. (a).) This is accomplished “by a written statement signed before two subscribing witnesses and acknowledged before an authorized official” of the State Department of Social Services (SDSS) or a licensed adoption agency. (Ibid.) Known as a “designated voluntary relinquishment, ” subdivision (f) of section 8700 allows a birth parent to name the person with whom he or she intends the child to be placed. A relinquishment is not final until a certified copy of the written statement of relinquishment is filed with the SDSS, and 10 business days have passed or SDSS sends written acknowledgment of receipt of the relinquishment. (Id., subd. (e)(1).)
If the child is not placed with that person, or is removed from that person before adoption, the birth parent must be so notified within 72 hours. (Fam. Code, § 8700, subd. (g).) The parent then has 30 days from the date the notice is mailed to rescind the relinquishment. (Id., subd. (h).)
Parents of a child found to be a person described by Welfare and Institutions Code section 300 retain the right to voluntarily relinquish that child “at any time while the child is a dependent child of the juvenile court, if the department or agency is willing to accept the relinquishment.” (Welf. & Inst. Code, § 361, subd. (b); see also Fam. Code, § 8700, subd. (i) [“If the parent has relinquished a child, who has been found to come within Section 300 of the Welfare and Institutions Code or is the subject of a petition for jurisdiction of the juvenile court under Section 300 of the Welfare and Institutions Code, to the department or a licensed adoption agency for the purpose of adoption, the department or agency accepting the relinquishment shall provide written notice of the relinquishment within five court days to all of the following: [¶] (1) The juvenile court having jurisdiction of the child. [¶] (2) The child’s attorney, if any. [¶] (3) The relinquishing parent’s attorney, if any.”].) When a voluntary relinquishment becomes final before a.26 hearing, the relinquishment precludes the juvenile court from proceeding with the hearing. (B.C., supra, 192 Cal.App.4th at p. 145.) On the other hand, the juvenile court’s power to continue the.26 hearing to allow an uncompleted relinquishment to be finalized is severely circumscribed. (Id. at p. 146.)
B.C. held that it was an abuse of discretion to grant mother’s motion to continue the.26 hearing so that she could complete a designated voluntary relinquishment. (B.C., supra, 192 Cal.App.4th at p. 146.) The appellate court reasoned that “it is not within a child’s best interest to continue an already much-delayed... [.26] hearing in order to enable a parent to complete a last-minute end-run around an anticipated termination of parental rights.” (B.C., at p. 145.) Acknowledging that dependency proceedings may not go forward after a parent has voluntarily relinquished parental rights – i.e., after a voluntary relinquishment has become final – the court in B.C. concluded that, “the dependency court need not grant a continuance in order to enable the parent to complete a pending relinquishment. In a case such as this, where (1) the hearing had been continued multiple times; (2) the parent intended to complete a relinquishment of parental rights designating adoptive custody to go to a relative; and (3) substantial questions had been raised as to whether placing the child with the relative was in the child’s best interests... granting the continuance was not in the child’s best interests, and therefore constituted an abuse of discretion.” (Id. at p. 146.)
B.C. was filed after the parties completed briefing. We gave the parties an opportunity to file letter briefs discussing whether and to what extent B.C. was dispositive of the issues on appeal.
In B.C., the child was detained in September 2008, a few days after birth. Five months later, the child was placed with foster parents who had an approved adoption home study. Shortly thereafter, a maternal aunt expressed interest in adopting him. A.26 hearing was set but then continued several times. In February 2010, the juvenile court continued the.26 hearing again, pursuant to the mother’s written motion for a continuance to allow her to complete a voluntary relinquishment. By the continued hearing, the mother had executed a voluntary relinquishment designating the maternal aunt, but it was not yet final. It became final during a recess in the.26 hearing, when SDSS faxed a receipt of the relinquishment to the juvenile court. Whereupon, the juvenile court terminated the.26 hearing. The minor and the foster parents appealed. The appellate court concluded that it was an abuse of discretion to continue the February.26 hearing. (B.C., supra, 192 Cal.App.4th at pp. 140-141.)
Under the reasoning of B.C., it was not an abuse of discretion for the juvenile court to deny a continuance in this case. An infant when he was detained in August 2009, Frank changed foster homes four times in one month until he was placed with a foster/pre-adoptive family in January 2010. Reunification services were terminated in April 2010 and a.26 hearing set for August 2010. Father’s whereabouts were unknown to DCFS at the time of that hearing at which mother’s counsel first stated that both parents intended to complete a voluntary relinquishment designating a maternal aunt as the adoptive parent. Counsel acknowledged the parents had not yet taken any steps to that end. The juvenile court set the matter for a contested.26 hearing the next month. Father appeared at the.26 hearing, but neither parent had executed voluntary relinquishment papers. In fact, the relative they intended to designate did not want to adopt Frank and no other relative had agreed to do so. Fortuitously for parents, that hearing was continued two more days because of courtroom congestion. When it resumed, mother and father did not appear and still had not executed voluntary relinquishment papers. Father’s counsel asked for a continuance so that father could sign a section 388 petition (which counsel had already prepared) which itself sought a continuance of the.26 hearing to give mother and father additional time to complete a voluntary relinquishment designating a paternal uncle. Thus, Frank had been in dependency for over a year and reunification services had been terminated for five months at the time of the September 22.26 hearing. Not only was there no final voluntary relinquishment, father had not taken the first steps towards completing one – identifying a relative and signing the papers. These facts do not demonstrate good cause for a continuance. As stated by the court in B.C., “it is not within a child’s best interest to continue an already much-delayed [.26] hearing in order to enable a parent to complete a last-minute end-run around an anticipated termination of parental rights.” (B.C., supra, 192 Cal.App.4th at p. 145.) Accordingly, it was not an abuse of discretion for the juvenile court to deny father’s request for a continuance to file the section 388 petition.
Father’s reliance on R.S., supra, 179 Cal.App.4th 1137, for a contrary result is misplaced. In that case, the foster parents, an aunt and a grandmother all wanted to adopt the child. After a.26 hearing was set, the parents completed a voluntary relinquishment designating the aunt as the prospective adoptive parent. For the.26 hearing, DCFS acknowledged the voluntary relinquishment but recommended termination of parental rights and designation of the foster parent as the prospective adoptive parents. The juvenile court terminated parental rights and designated the foster parents, aunt and grandmother all as prospective adoptive parents and continued the matter for a hearing on the child’s ultimate adoptive placement. The appellate court reversed the order. It held that, “when the parents make a voluntary designated relinquishment that becomes final after the court has set a [.26] hearing, but before the date set for the hearing, ” the juvenile court “is barred by section 361, subdivision (b), from making any order that interferes with a birth parent’s final voluntary designated relinquishment.” (R.S., supra, at p. 1152.) R.S. is inapposite because, in this case, the voluntary relinquishment was not final. Under B.C., supra, 192 Cal.App.4th 129, it is immaterial that mother and father “intended to and had taken significant steps towards” a designated relinquishment in favor of the paternal uncle because it is the finality of the voluntary relinquishment which deprives the juvenile court of jurisdiction, not the mere fact that it is in process.
B. The Motion to Trail
Father contends the juvenile court violated his due process rights and abused its discretion in denying the request to trail the.26 hearing on September 22 to give father time to appear. As we understand his argument, it is that the representation by counsel that mother and father were delayed by traffic constituted good cause to trail the matter. We disagree.
“When a parent is absent without good cause at a properly noticed hearing, the court is entitled to proceed in the parent’s absence. [Citation.] A parent’s failure to appear will not normally constitute the good cause necessary to justify a continuance [citation], because substantial importance is attached to ‘the child’s need for a prompt resolution of the matter’ [citation]. An unjustified failure to appear at a duly noticed hearing reflects a parent’s choice not to attend. [Citation.] A court may properly treat this choice as a waiver of the right to be present at that hearing and of the benefits of being present. Imposing this waiver is a sensible and limited response to the parent’s decision to be absent. Further, allowing the court to proceed in the parent’s absence should ensure that the court, the minor and the other parties are not unduly disadvantaged.” (In re Vanessa M. (2006) 138 Cal.App.4th 1121, 1131-1132 (Vanessa M.).)
Here, on Monday, September 20, 2010, the juvenile court continued the.26 hearing to September 22, stating: “Wednesday morning, 9:15 exactly. 9:15 exactly.... [¶]... [¶]... See the parents back here Wednesday, 9:15 exactly.” Father was not present in the courtroom at 9:15 a.m. His absence was explained as follows: “[MOTHER’S COUNSEL]: Your Honor, I’ve been in contact with the mother by phone. She’s apparently on the freeway. And, at this point, I just got off the phone with her again to check her whereabouts. She’s still in Culver City. [¶] [FATHER’S COUNSEL]: And, Your Honor, it’s my understanding that father’s with the mother. I’d ask the matter to be trailed.” After some discussion about father’s proposed section 388 petition to continue the.26 hearing to give the parents more time to accomplish a designated voluntary relinquishment, father’s counsel concluded: “For that reason, I’d ask you to continue the matter pursuant to the 388 [petition] I was going to have [father] sign.” The court observed that, notwithstanding counsel’s argument, there was no section 388 petition before it and no completed voluntary relinquishment; it denied the motion to continue.
We find no error in denying the request to trail, as father provided no justification for his absence. Father’s counsel said only that he believed father was with mother. Mother’s counsel said initially that his client was detained on the freeway and then that she was in Culver City. Other than giving geographical markers, mother’s counsel did not explain the significance of mother being in Culver City, especially since she listed her residence as in the San Fernando Valley. The record does not reflect when, if ever, mother or father arrived in court that day.
Father’s reliance on Vanessa M. for a contrary result is misplaced. In that case, the juvenile court punished the father for failing to appear at one hearing by not allowing him to testify at a different hearing. This, the appellate court concluded, was a denial of the father’s due process right to be heard. Here, father simply failed to appear at the hearing. Going forward in his unjustified absence did not constitute a denial of due process.
DISPOSITION
The order is affirmed.
WE CONCUR: BIGELOW, P. J. FLIER, J.