Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. HJ06005243
SIMONS, Acting P. J.
Jason G. (appellant), father of four-year-old Jason G. (minor), appeals from the Alameda County Juvenile Court’s jurisdictional and dispositional orders, which found there was jurisdiction, ordered minor to remain in the home of Dana G. (mother), and ordered family maintenance services for mother and family reunification services for appellant. Appellant contends: (1) there was no substantial evidence supporting the finding that there was a substantial risk of serious harm to minor; (2) there was no substantial evidence supporting the removal of minor from appellant’s custody; and (3) the juvenile court abused its discretion in denying his motion for a continuance. We affirm the juvenile court’s orders.
Factual and Procedural Background
On October 17, 2006, the Alameda County Social Services Agency (agency) filed an original petition alleging minor came within the jurisdiction of the juvenile court under Welfare and Institutions Code section 300, subdivisions (b) and (g), because of his parents’ inability to care for him due to their substance abuse, and because appellant’s whereabouts were unknown. Mother admitted she has substance abuse issues and said she left minor in the care of his paternal great grandmother while she dealt with those issues, and with issues relating to her divorce from appellant. Mother said she used methamphetamines with appellant, and that appellant is “unable to stop using drugs.” Appellant, whose whereabouts were unknown, had not assisted in caring for minor.
All undesignated section references are to the Welfare and Institutions Code.
In a jurisdiction/disposition report filed October 18, 2006, the agency recommended that family maintenance services be provided to mother and family reunification services be provided to appellant. According to the report, mother’s home was filthy, with food and piles of dirty laundry on the floor, dirty dishes, and “filth everywhere.” When minor arrived at caretakers’ homes, he was “always dirty and hungry—often still in the same clothes that he was wearing when [mother] took him.” Minor reported that he cooked his own meals—mustard on bread or microwave popcorn—while he was in mother’s care. On October 3, 2006, the police arrested mother, who was a passenger in a car in which methamphetamines and drug paraphernalia were found. Minor’s six-year-old half sister was also in the car at the time mother was arrested. All three adults in the car were found to be under the influence of a controlled substance, and mother told the police that the bag in which the drugs were found belonged to her. Appellant, whose whereabouts remained unknown, had a criminal history, including convictions for drug-related offenses that required him to be registered as a drug offender.
At a jurisdictional hearing on October 18, 2006, appellant made his first appearance, and the court appointed an attorney for him. The court scheduled a contested hearing for October 27, 2006, but the agency’s attorney stated that the child welfare worker was unavailable that day. An off-the-record discussion took place, and the court set the hearing for October 19, 2006.
An amended petition, filed on October 19, 2006, deleted section 300, subdivision (g), as a basis for jurisdiction over minor and deleted the original petition’s reference to appellant’s inability to stop using drugs, as well as the statement that appellant’s whereabouts were unknown. It added that appellant is a registered drug offender and is on probation for drug charges, that he does not have a stable place for minor to live, and that the parents left minor with various relatives and were unable to provide regular care for him.
On October 19, 2006, appellant filed a written objection to having the contested hearing take place that day, asserting that because an attorney had just been appointed for him on October 18, 2006, “he is being deprived effective assistance of counsel, deprived necessary time to prepare for jurisdictional/dispositional trial, denied a timely social study with any reasonable time before the hearing (provided him afternoon before trial), denied his right to meaningfully use the court’s subpoena power to call witnesses, denied his right to meaningfully prepare and cross-examine the evidence the [agency] will present at the trial, and in effect cumulating to denying him a fair trial.” Appellant also filed an objection asserting that two statements in the agency’s October 18, 2006 report were inadmissible hearsay.
At the October 19, 2006 hearing, appellant’s counsel requested a continuance, informing the court that she was “as prepared as I can be [to contest jurisdiction], given that we had just overnight.” After noting it had considered appellant’s written objections, the court stated: “The record should also reflect that yesterday, we had an extensive discussion off the record in search of an appropriate date to set this hearing and at [appellant’s counsel’s] request, it was set on an early date. Other dates later which would have been available to counsel and the court after the [child welfare] worker returned from a period of unavailability were strenuously argued by [appellant’s counsel] to be inappropriate, too late, undue delay, and accordingly, we, having looked at many alternatives, came up with today’s date. I think it is in the child’s interest to get this matter sorted out, as you so eloquently put it yesterday, sooner rather than later, and we are going to do that.” Appellant’s counsel stated that “the court has mischaracterized my objections . . . [The child welfare worker] was not deemed to be unavailable according to the statute. She is going on vacation. And so rather than having the date on the 27th, we pushed it to the very next day.” The court denied appellant’s request for a continuance.
The agency rested its case after its October 18, 2006 report was admitted into evidence, and after the agency responded to appellant’s hearsay objection by stating that the witnesses who provided statements that were included in the agency’s report would be available to testify regarding those statements.
Appellant called minor’s paternal great grandmother as a witness. The paternal great grandmother testified that minor was living with his parents until late 2005 or early 2006, when the parents started “having problems” and minor began staying primarily with his paternal grandmother (the witness’s daughter) and mother’s good friend, Sherry. She explained that on a week-by-week or month-by-month basis, minor spent some time with her, the paternal grandmother, or Sherry. She testified that minor began staying mostly with her on or about September 17, 2006, and that she cared for him until October 9, 2006, when mother came by with a police officer and took minor with her. She agreed that it was “not the best thing” for a child to rotate among three households, and testified that minor initially had problems sleeping and reached out to his caretakers at night to make sure they were there. She testified that minor loves both of his parents.
The paternal great grandmother testified that, when the paternal grandmother and Sherry were caring for minor, appellant was available by cell phone, but she did not know where he was living. She testified that, during September 2006, appellant came to live with her when minor was with her, and although appellant did not prepare meals for minor, the two of them took naps together, ate meals together, and did “everything together.” She testified that the caretakers did not hear from mother while they were caring for minor. She stated she was willing and able to provide full-time care for minor.
At the conclusion of the paternal great grandmother’s testimony, the parties agreed that no further testimony would be presented. Appellant’s counsel stated she was resting “on the state of the evidence at this point with the filed objections I’ve made.” The court found there was jurisdiction based on both parents’ substance abuse issues, and on the fact that they had left minor with various relatives because of their inability to provide regular care for him.
In an addendum report filed November 15, 2006, the agency recommended that minor remain in mother’s care and services be provided to both parents. The report noted that the paternal great grandparents’ house could not be approved for possible placement because of a safety issue concerning an accessible empty pool in the backyard. Mother was attending drug treatment and classes and had enrolled minor in Head Start. The agency had not heard from appellant, whose whereabouts were unknown.
At a November 17, 2006 dispositional hearing, appellant’s attorney requested a continuance based on the unavailability of her client, who was in custody on a warrant for his arrest. She stated appellant’s “last position was in agreement” with the agency’s recommendation to place minor with mother and to provide services to the parents, but argued that appellant had the right to be at the hearing. Minor’s attorney requested that minor be placed with his paternal great grandparents. Mother’s attorney agreed, stating that mother “only has a bed for [minor’s half sister]. She doesn’t have one for [minor].” The agency opposed the placement of minor with his paternal great grandparents because their empty pool was still a safety concern. The court continued the dispositional hearing and issued interim orders placing minor with mother, and allowing mother to use her discretion to have minor stay with his paternal great grandparents. All parties agreed the interim orders were appropriate, but minor’s attorney argued, and appellant’s attorney agreed, that there was no basis for jurisdiction over minor and that the case should be dismissed at the dispositional hearing.
According to the agency’s addendum report filed on January 3, 2007, minor was living with mother and was frequently visiting his paternal great grandparents, whose home had not yet been approved for placement. The agency had not heard from appellant, who was no longer in jail, but whose whereabouts were unknown. Mother was attending drug treatment and classes. The agency noted that the paternal great grandparents had raised not only appellant, a registered drug offender, but also his brother, who is in state prison and is a registered sex offender. The report stated that “the case needs to move forward so services can begin.”
The paternal great grandparents filed an application for de facto parent status, stating they had responsibility for the day-to-day care of minor from September 2006 to October 9, 2006. Sherry also filed an application for de facto parent status, stating she had regular contact with minor since he was born, and had him in her care for 191 days between January and October 2006. She stated that minor became “mean and unruly” and “constantly lick[ed] his lips until they [were] swollen” when he was away from her, and was happiest when he was on a consistent schedule.
At a January 4, 2007 dispositional hearing, counsel for appellant, for mother, and for minor argued that the most appropriate disposition would be to dismiss the case and to order informal supervision. The court followed the agency’s recommendations, placing minor with mother and ordering services, but stated it was going to “take a look at this case fairly soon with the possibility of dismissing [minor] to informal supervision if things continue to go as they have.” The court granted the paternal great grandparents’ application for de facto parent status and denied Sherry’s application for de facto parent status, without prejudice.
Discussion
I. Substantial Evidence Supports the Juvenile Court’s Findings
A. Jurisdictional Finding Under Section 300, Subdivision (b)
Appellant asserts there was no substantial evidence supporting the juvenile court’s finding of jurisdiction under section 300, subdivision (b). We disagree.
Section 300, subdivision (b), provides that the juvenile court may adjudge a child to be a dependent if he has “suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his . . . parent . . . to provide regular care for the child due to the parent’s . . . substance abuse.” “[T]he minor is a dependent if the actions of either parent bring [him] within one of the statutory definitions of a dependent. [Citations.]” (In re Alysha S. (1996) 51 Cal.App.4th 393, 397.)
A reviewing court must uphold a juvenile court’s finding if there is any substantial evidence to support the finding. (In re Jeannette S. (1979) 94 Cal.App.3d 52, 58.) In reviewing a finding for substantial evidence, “[a]ll reasonable inferences must be drawn in support of the findings and the record must be viewed in the light most favorable to the juvenile court’s order. [Citation.].” (Ibid.) “ ‘If the evidence so viewed is sufficient as a matter of law, the judgment must be affirmed. [Citation.]’ ” (In re Brittany H. (1988) 198 Cal.App.3d 533, 549.)
There was substantial evidence from which the court could determine there was a substantial risk of serious harm to minor. Both parents were unable to provide regular care for minor because of their substance abuse problems. Mother admitted she had a substance abuse problem, and her drug use had recently caused her to endanger minor’s half sister, when mother took minor’s half sister along in a car in which drugs and drug paraphernalia were found, and all three adults, including the driver and mother, were under the influence of a controlled substance. Appellant had a history of drug-related convictions and was a registered drug offender. There was no evidence that appellant was willing to engage in substance abuse treatment, testing or other services offered by the agency. Appellant’s failure or lack of interest in addressing his past substance abuse issues reasonably gave the court “some reason to believe the acts may continue in the future.” (In re Rocco M. (1991) 1 Cal.App.4th 814, 824.)
In re David M. (2005) 134 Cal.App.4th 822, on which appellant relies, is distinguishable. The court found there was no substantial evidence to support a jurisdictional finding under section 300, subdivision (b), because the evidence was “uncontradicted” that the child was “healthy, well cared for, and loved, and that mother and father were raising him in a clean, tidy home.” (In re David M., at pp. 830, 832.) Furthermore, the social services agency did not disagree that “[w]hatever mother’s and father’s mental problems might be, there was no evidence those problems impacted their ability to provide a decent home for David.” (Ibid.)
In contrast, neither parent was raising minor because of their inability to provide him with his basic needs, including preparing meals for him or providing him with a stable or clean place to stay. The filthy condition in which mother’s house was found showed her inability to provide a home for minor, who did not have a bed on which to sleep, was required to cook his own meals while in her care, and was “always dirty and hungry.” Appellant, who was unemployed or unable to maintain employment, did not have a permanent place for himself or his child. There was no evidence that he ever contacted the agency, and his whereabouts were unknown during most of the proceedings. The paternal great grandmother’s testimony revealed that although appellant did “everything” with minor, including taking naps and eating meals with him, appellant did not prepare minor’s meals or otherwise provide parental care to him.
Appellant relies on cases including In re Rocco M., supra, 1 Cal.App.4th 814 and In re Isayah C. (2004) 118 Cal.App.4th 684 in support of his assertion that dependency cannot be based on a parent’s decision to leave the child with a caretaker, if the child receives good care. However, these cases stand for the proposition that the need to establish dependency cannot be shown “merely because the custodial parent relies on temporary custodial assistance of suitable third parties.” (In re Isayah C., at p. 697, italics added.) Here, it was not “merely” that mother had left minor in the care of suitable caretakers, but numerous other factors, including those described above, that placed minor at risk of being harmed. While a parent generally enjoys the right to make reasonable decisions about where and with whom a child will temporarily stay, minor was rotated among three different homes, depriving him of a stable and secure environment. In addition, it did not appear that the parents’ inability to provide care for minor was indeed a temporary situation. The juvenile court acknowledged the evidence supporting jurisdiction was not overwhelming, stating it was going to “take a look at this case fairly soon with the possibility of dismissing [minor] to informal supervision if things continue to go as they have.” However, the evidence was sufficient for the court to find jurisdiction under section 300, subdivision (b).
B. Jurisdictional Finding Under Section 300, Subdivision (g)
Appellant asserts there was no substantial evidence supporting the juvenile court’s finding of jurisdiction under section 300, subdivision (g). However, the agency concedes that the court simply misspoke when it found jurisdiction under both subdivisions (b) and (g), as the agency in its amended petition had deleted subdivision (g) as a basis for jurisdiction. We, therefore, will modify the juvenile court’s order to reflect that its jurisdictional finding was based on subdivision (b) only.
C. Dispositional Order
Appellant asserts the dispositional order placing minor with mother and providing services to the parents must be reversed because there was no substantial evidence supporting the jurisdictional finding, and the petition should have been dismissed. He does not make a separate assertion that a different dispositional order should have been made, if in fact there was substantial evidence to support the jurisdictional finding. Having found the evidence was sufficient to support the jurisdictional finding, we also reject appellant’s claim that the dispositional order must be reversed.
II. The “Removal” of Minor from Appellant’s Custody Did Not Violate Section 361, Subdivision (c)(1)
Appellant asserts that because he was presumed to have joint custody of minor under Family Code section 3010, subdivision (a), the juvenile court in effect “removed” minor from appellant’s custody by ordering that he be placed with mother, in violation of Welfare and Institutions Code section 361, subdivision (c)(1). Appellant has waived this issue on appeal because he did not raise it below. (See In re Aaron B. (1996) 46 Cal.App.4th 843, 846 [a party is precluded from urging on appeal any point not raised in the trial court].)
In any event, section 361, subdivision (c)(1), on which appellant relies, does not support his contention. The section provides that a dependent child may not be taken from the physical custody of a parent “with whom the child resides at the time the petition was initiated,” unless the juvenile court finds clear and convincing evidence that there is “a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor’s physical health can be protected without [removal].” (Italics added.) At the time the petition was filed, minor was residing with mother, and therefore, the “clear and convincing evidence” standard applied only to removal of minor from mother’s home.
The juvenile court apparently did not find there was clear and convincing evidence of such danger to minor because it ordered that he remain in mother’s home.
Further, the section has been interpreted to mean that there must be clear and convincing proof of “parental inability to provide proper care for the child and resulting detriment to the child if it remains with the parent, before custody can be awarded to a nonparent. [Citations.]” (In re Jeannette S., supra, 94 Cal.App.3d at p. 60, italics added.) Because minor was not removed from the home of a parent to that of a “nonparent,” the section did not apply.
III. The Juvenile Court Did Not Abuse Its Discretion in Denying Appellant’s Request for a Continuance
Appellant asserts the juvenile court abused its discretion in denying his request for a continuance of the October 19, 2006 jurisdiction/disposition hearing. We disagree.
The juvenile court may continue a dependency hearing at a parent’s request for good cause shown. (§ 352, subd. (a); Cal Rules of Court, rule 5.550(a)(2).) Courts have interpreted section 352 as expressly discouraging continuances. (E.g., In re Karla C. (2003) 113 Cal.App.4th 166, 179-180; In re Emily L. (1989) 212 Cal.App.3d 734, 743.) The court’s denial of a request for a continuance will not be overturned on appeal absent an abuse of discretion. (See In re Angela R. (1989) 212 Cal.App.3d 257, 265-266.) “ ‘An abuse of discretion occurs “where, considering all the relevant circumstances, the court has exceeded the bounds of reason or it can fairly be said that no judge would reasonably make the same order under the same circumstances.” [Citation.]’ [Citation.]” (In re Marriage of Bower (2002) 96 Cal.App.4th 893, 898-899.)
The juvenile court did not abuse its discretion in denying appellant’s request for a continuance of the October 19, 2006 hearing. The record shows the parties discussed the scheduling of the hearing date on October 18, when the agency’s counsel informed the court that the child welfare worker was unavailable on the original hearing date suggested by the court. Although the discussion was held off the record, the court summarized the discussion on the record the following day: “The record should also reflect that yesterday, we had an extensive discussion off the record in search of an appropriate date to set this hearing and, at [appellant’s counsel’s] request, it was set on an early date. Other dates later which would have been available to counsel and the court after the [child welfare] worker returned from a period of unavailability were strenuously argued by [appellant’s counsel’s] to be inappropriate, too late, undue delay, and accordingly, we, having looked at many other alternatives, came up with today’s date.” Appellant’s counsel said the court had “mischaracterized” what had occurred, but she did not deny that she had argued it was in minor’s best interests to have the hearing take place at an earlier date. The court was within its discretion in denying a continuance, as the statute required it to “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 re Julian L. (1998) 67 Cal.App.4th 204, on which appellant relies, is distinguishable. There, the court held the juvenile court abused its discretion in denying a continuance because the new attorney, who had been appointed one week before the hearing, had not contacted the mother to ascertain her wishes, and the mother, who had not been notified of the hearing, was not present in court. (Id. at p. 208.) Thus, the attorney was without authority to act on his client’s behalf. In contrast, here, appellant was notified of the hearing and was present in court on both October 18 and 19, 2006. Although his attorney had just been appointed, appellant had the opportunity to meet with her for some time, and there was no indication that the attorney had not been able to determine appellant’s position in the case, or to present it in court.
Appellant also asserts that the denial of a continuance supports a claim for ineffective assistance of counsel. He bases his claim on his attorney’s conclusory statement that she had insufficient time to provide him with adequate representation at the jurisdictional hearing. “Establishing a claim of ineffective assistance of counsel requires the [client] to demonstrate (1) counsel’s performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient representation prejudiced the [client], i.e., there is a ‘reasonable probability’ that, but for counsel’s failings, [the client] would have obtained a more favorable result. [Citations.]” (People v. Dennis (1998) 17 Cal.4th 468, 540-541, italics added.)
There is nothing in the record indicating that appellant’s attorney’s performance fell below the objective standard of reasonableness due to the denial of a continuance. Appellant’s attorney made appropriate objections, called a witness on behalf of appellant, and acted diligently in advocating for him. Further, even if the attorney’s performance was deficient in some way, appellant has not shown he would have obtained a more favorable result, but for his attorney’s “failings.” He does not cite to anything further his attorney could have done to improve his position, and does not offer any additional information that suggests the result should have been different. Appellant has not met his burden of establishing an ineffective assistance of counsel claim.
Disposition
The juvenile court’s judgment (dispositional order) is modified to reflect that the court’s jurisdictional finding was based on section 300, subdivision (b), only. In all other respects, the judgment is affirmed.
We concur: GEMELLO, J., NEEDHAM, J.