Opinion
B201286
4-28-2008
In re KIMBERLY C. et al., Persons Coming Under the Juvenile Court Law LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. M.C., Defendant and Appellant
Andrea R. St. Julian, under appointment by the Court of Appeal, for Defendant and Appellant. Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Kim Nemoy, Senior Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
INTRODUCTION
Appellant M.C. appeals from an order made after a hearing pursuant to Welfare and Institutions Code section 300 et seq. declaring his two minor children, Kimberly C. and Bianca C., to be dependent children of the court. We affirm.
All further section references are to the Welfare and Institutions Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
On March 21, 2007, the Department of Children and Family Services (DCFS) filed a section 300 petition on behalf of four-year-old Kimberly and two-year-old Bianca. Appellant is the childrens father (Father). The petition was filed as the result of Kimberlys disclosure to school personnel that Father had sexually abused her. School personnel reported the disclosure to the Los Angeles Police Department (LAPD). An LAPD officer arrested Father for lewd acts upon a child under 14.
LAPD reported the allegations to DCFS, which sent a childrens social worker (CSW) to investigate. During the CSWs safety investigation, he interviewed Kimberly and her mother, Maria O. (Mother), together. Kimberly repeatedly and consistently described Fathers actions in sexually abusing her. The CSW determined that Mother had failed to believe Kimberlys repeated reports of Fathers sexual abuse and failed to protect her. During the interview, Mother repeatedly attempted to coerce Kimberly to recant the allegations. The CSW assessed Mother as non-protective and the children were detained in foster care.
Mother is not a party to this appeal. The petition which was sustained pursuant to the order that Father appeals herein also alleged that Mother knew of the ongoing abuse and failed to take action to protect Kimberly, in that Mother allowed Father to reside in the childrens home and have unlimited access to Kimberly.
For purposes of the detention hearing, DCFS prepared a detention report dated March 19, 2007, which gave Fathers address as the familys home address. Then on March 20, DCFS confirmed on the website for the Los Angeles County Sheriffs Department that Father remained incarcerated. DCFS issued an addendum to the report with Fathers address at the jail and submitted an "In & Out" request for Father to be transported to the detention hearing.
Father and Mother were present at the childrens initial detention hearing held on March 21. The court found Father to be the presumed father of the children. It ordered no visitation by Father until his release from custody, at which time the court would consider the matter again. The court also ordered that DCFS was not permitted to interview Father regarding the allegations in the case without his attorney present. During the proceedings, while Father and his attorney were present, the court set the jurisdictional/dispositional hearing for May 16.
At the detention hearing, the court did not speak about the designation of permanent mailing address requirements in section 316.1 and California Rules of Court, rule 5.534(1). However, the courts minute order for the March 21 hearing stated: "Parent(s) to . . . keep DCFS informed of current address and telephone number."
On March 27, DCFS submitted a Notice of Hearing on Petition for the jurisdictional/dispositional hearing to Father at the Mens Central Jail in Los Angeles, by certified mail. Thereafter, DCFS received the certified mail receipt, but signed by someone other than Father.
On April 12, DCFS filed an ex parte application and proposed order dated April 9 for a forensic interview for Kimberly. The application indicated that Fathers address was Mens Central Jail. At the hearing on the application, Fathers attorney stated that Father was "still in custody at Ventura County. Hopefully when we come back, there might be some information regarding him. Ill try to find out myself." (Italics added.) The court designated the institution and location for the forensic interview.
Thereafter, as required for the upcoming May 16 hearing, DCFS prepared a jurisdiction and disposition report dated May 10 which identified Fathers address as "Home Land Security/Bureau of Immigration & Custom Enforcement/Removal Facility" in Lancaster (federal removal facility). The report stated that on March 27, Father was given notice of the May 16 hearing by certified mail, return receipt requested, which was addressed to the Mens Central Jail. The report also stated that on April 18, Father was released from jail, was then detained by federal immigration officers and was being held in custody at the federal removal facility in Lancaster awaiting deportation.
Neither Father nor Mother appeared at the jurisdictional/dispositional hearing held on May 16. Fathers attorney stated that he had no authority to waive Fathers appearance and did not waive his appearance. The attorney informed the court that Father was in federal custody and it was the attorneys understanding that there was no way to get him into the court. The attorney objected to going ahead with the proceeding in Fathers absence until such time as the attorney could file appropriate motions in federal court to have Father produced in order to attend the hearing. The court continued the hearing until June 27 and ordered Fathers attorney to try to make contact with his client in federal custody regarding his position in the case. During the hearing, the court stated that DCFS could also make efforts to bring Father to court.
On May 29, DCFS sent notice of the June 27 hearing to Father by first class mail, addressed to the federal removal facility. On June 5, DCFS contacted facility staff by telephone and was informed that Father had been deported on May 9.
At the June 27 hearing, the court was informed of Fathers deportation, probably to Mexico. Fathers attorney again objected to proceeding in Fathers absence, stating that although Father had been deported from the country, the attorney knew "he had every intention of being present for [the] hearing." When the court asked how he knew that, Fathers attorney replied, "I divined it." The court denied the continuance request, explaining that Father had been deported out of the country on May 9th and that "we" could not get Father to the hearing.
After receiving the DCFS jurisdiction and disposition reports in evidence without objection, the court sustained a slightly amended version of the petition pursuant to the courts findings that Father had sexually abused Kimberly and Mother failed to protect her. The court ordered no contact for Father and continued the matter to August 3 for a contested disposition hearing regarding whether the children would be returned to Mothers custody or be placed with another relative. The court ordered DCFS to serve notice on Father.
The DCFS interim review report, dated August 3, did not state that any notice of the hearing had been given to Father. The report indicated that Father was deported to Mexico on May 9, and that a due diligence search for Father was completed on July 26 and showed no active addresses for Father. A copy of the Declaration of Due Diligence was attached.
The due diligence declaration showed that, on June 20, DCFS interviewed Mother, who said she had no address for Father. In addition, it listed several databases in which DCFS had performed computerized searches using Fathers name and date of birth but found no current location or address for Father. The databases included federal and California prisons, county jail, probation/parole records, DMV, voter registration, last known postal address service, AT&T internet telephone directory, the various military branches, and other sources.
At the August 3 hearing, the court indicated that notice had been given as required by law, "due diligence on Father, and it is [the courts] understanding that he has been deported." In accordance with DCFSs recommendation, the court released the children to Mothers custody, ordered her to participate in family maintenance services, and ordered that Kimberly participate in sex abuse counseling. As to Father, the court removed the children from Fathers care, custody and control pursuant to section 300, denied Father reunification services and visitation, and, in accordance with the childrens best interests, ordered that Father have no contact with the children without court approval and in the home at all. Fathers trial counsel timely filed a notice of appeal.
DISCUSSION
Fathers primary contention is that his statutory and due process rights to notice of the jurisdictional/dispositional hearings were violated and automatic reversal is required. His related contentions are that DCFSs due diligence search for Fathers address was inadequate, and that the juvenile court committed reversible error by failing to comply, at the March 21 detention hearing, with statutory requirements to obtain a permanent mailing address for Father and advise Father of his obligation to submit notices of any changes in the address. Father also claims that, given the absence of notice to him, the court erred in denying the requests by Fathers counsel for continuances.
DCFS responds by asserting that all of Fathers contentions are unavailing for both procedural and substantive reasons. DCFS also raises two contentions which merit consideration prior to addressing Fathers contentions. DCFS contends that Fathers appeal should be dismissed, in that it was not authorized by Father, and that Father has waived review of the notice issue by failing to raise it before the juvenile court.
1. Dismissal For Lack of Authorization
DCFS contends that Fathers appeal must be dismissed, in that Father did not authorize it. The general rule is that counsel may not file an appeal on behalf of a client without the clients consent. (In re Alma B. (1994) 21 Cal.App.4th 1037, 1043.)
Fathers counsel asserts that Fathers authorization to bring the appeal was not required, however, in that he is appealing on the basis of failure to give him notice, which has been recognized as an exception to the general rule. We agree. In In re Steven H. (2001) 86 Cal.App.4th 1023 at page 1031, the court held "that when an appeal is based upon the contention appellant did not receive proper notice of the trial court proceedings, and the record contains no evidence that appellant was actually made aware of what occurred within the time limit for filing the appeal, there is no requirement that appellant personally authorize the appeal. Instead, the right to appeal may be preserved by a notice filed by counsel."
The record shows that, as of the time of the courts actions on June 27 and August 3, the only available information about Fathers whereabouts was that Father had been deported to Mexico on May 9. There is no evidence that Father was actually made aware of the courts issuance of the dependency rulings or orders within the time limit for filing this appeal. Accordingly, dismissal of this appeal on the basis of the lack of Fathers authorization is unwarranted. (In re Steven H., supra, 86 Cal.App.4th at p. 1031.)
2. Waiver of Defective Notice Claim
DCFS contends that Father waived his right to review on his claim of defective notice for the jurisdictional/dispositional hearing, in that he failed to raise the issue before the juvenile court. In support of its contention, DCFS cites In re Anthony P. (1995) 39 Cal.App.4th 635, in which, having failed to object in the dependency proceedings below, a parent was deemed on appeal to have waived a claim of error in sibling visitation provisions in her childs permanent plan. (Id. at p. 641.) The Anthony P. court cites numerous other appeals in which a claim has been deemed to have been waived by failure to raise it in the lower court. (Id. at pp. 641-642.) None of them, however, involves waiver of notice issues.
Father argues that the lack of notice violated his constitutional rights. In In re DeJohn B. (2000) 84 Cal.App.4th 100, the court found no waiver of a parents right to raise a notice error on appeal of a dependency order. (Id. at pp. 109-110.) The court wrote that "`[t]he county has a constitutional responsibility to use due diligence to notify absent parents before depriving them of that "most basic of civil rights"—the care, custody, and companionship of their children. [Citation.] [Citation.]" (Ibid.) Additionally, when the issue first raised on appeal is a pure question of law on undisputed facts, as is the notice issue in the instant case, a court may review it, notwithstanding the litigants failure to object below. (Hale v. Morgan (1978) 22 Cal.3d 388, 394.) Inasmuch as the defective notice issue herein raises a constitutional due process issue and also presents a pure question of law on undisputed facts, we conclude that Father has not waived the notice issue and has properly raised it on appeal. (Ibid.; DeJohn B., supra, at pp. 109-110.)
3. Notice to Father of Jurisdictional/Dispositional Hearing
Father contends he was not properly given notice of his childrens jurisdictional/dispositional hearing proceedings on June 27, 2007 and, therefore, his statutory rights under section 291 and his constitutional due process rights to notice were violated. Father also claims that the absence of notice constitutes a structural error, requiring reversal per se. For reasons discussed more fully below, we disagree.
Father asserts that he is claiming error with respect to notice of the June 27 hearing in that, even though proceedings began on May 16, as originally scheduled, the actual hearing did not begin until June 27. He also claims error in DCFSs due diligence search in an effort to serve notice on Father of the August 3 proceedings. In our view, the June 27 and August 3 proceedings were continuances of the jurisdictional/dispositional hearing scheduled to begin May 16, and we review the notice issue in relation to each of the dates.
Section 291 requires that notice of a jurisdiction or disposition hearing be given to certain persons, including parents such as Father, and provides in pertinent part: "After the initial petition hearing, the clerk of the court shall cause the notice to be served in the following manner: [¶] (a) Notice of the hearing shall be given to the following persons: [¶] (1) The mother. [¶] (2) The father or fathers, presumed and alleged. . . . [¶] . . . [¶] (c) Notice shall be served as follows: [¶] (1) If the child is detained, the notice shall be given to the persons required to be noticed as soon as possible, and at least five days before the hearing, unless the hearing is set less than five days and then at least 24 hours prior to the hearing. [¶] . . . [¶] (d) The notice shall include all of the following: [specified information] [¶] (e) Service of the notice of the hearing shall be given in the following manner: [¶] . . . [¶] (2) If the child is detained and the persons required to be noticed are present at the initial petition hearing, they shall be noticed by personal service or by first-class mail."
A parents constitutional due process right to notice was explained in In re Claudia S. (2005) 131 Cal.App.4th 236 as follows: "Parents are entitled to due process notice of juvenile court proceedings affecting the care and custody of their children, and the absence of due process notice to a parent is a `fatal defect in the juvenile courts jurisdiction. [Citation.] Due process requires `notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. [Citation.] The means employed to give a party notice for due process purposes must be such as one, desirous of actually informing the party, might reasonably adopt to accomplish it. [Citations.] [¶] If the whereabouts of a parent are unknown, the issue becomes whether due diligence was used to locate the parent. [Citations.] The term `reasonable or due diligence `"denotes a thorough, systematic investigation and inquiry conducted in good faith." [Citation.] Due process notice requirements are deemed satisfied where a parent cannot be located despite a reasonable search effort and the failure to give actual notice will not render the proceedings invalid. [Citation.]" (Id. at p. 247.)
We addressed the standard of prejudice based upon an error in notice in dependency proceedings in In re J.H. (2007) 158 Cal.App.4th 174. "Unless there is no attempt to serve notice on a parent, in which case the error has been held to be reversible per se [citations], errors in notice do not automatically require reversal but are subject to the harmless beyond a reasonable doubt standard of prejudice." (Id. at p. 183.) The California Supreme Court recently noted in In re James F. (2008) 42 Cal.4th 901 at page 918, that "[i]f the outcome of a proceeding has not been affected, denial of a right to notice and a hearing may be deemed harmless and reversal is not required."
The Court also noted that it declined the request of the California State Association of Counties, appearing as amicus curiae, to determine not only that the constitutional due process error at issue in James F. was amenable to the harmless error analysis rather than the structural error analysis, but also whether the appropriate harmless error standard in juvenile dependency proceedings for constitutional error was harmless beyond a reasonable doubt or another formulation such as the clear and convincing evidence error measure articulated in Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501 at pages 1514 through 1515. (In re James F., supra, 42 Cal.4th at p. 911, fn. 1.) The Court noted that it had not granted review on the appropriate harmless error standard and the parties had not briefed it. (Ibid.) As we did in In re J.H., as noted previously, we apply the harmless beyond a reasonable doubt standard here, consistent with the great weight of authority. (See also In re Mark A. (2007) 156 Cal.App.4th 1124, 1146.)
The cases Father cites in support of his claim are consistent with our holding in the J.H. opinion for cases in which there was no attempt to serve notice on the parent. In re Jasmine G. (2005) 127 Cal.App.4th 1109 and In re DeJohn B., supra, 84 Cal.App.4th 100 both involved failure to attempt to give notice to a parent, which was held to be structural error subject to reversal per se. (Jasmine G., supra, at p. 1116; DeJohn B., supra, at p. 102.)
Father also cites Judith P. v. Superior Court (2002) 102 Cal.App.4th 535, in which the court applied the structural error standard to hold that reversal per se was required. (Id. at p. 558.) In Judith P., the parent and her attorney were served with notice on the day of the hearing, rather than 10 days before the hearing as required by statute, and the juvenile court denied the parents request for a continuance. (Id. at pp. 539-540.) The notice was a copy of the DCFS status report, which identified the issues to be determined at the hearing. The Judith P. court held that the failure to give the parent notice until the day of the hearing deprived the parent of her constitutional due process right to notice of the issues raised by the report and a reasonable opportunity to prepare for the hearing and, therefore, constituted structural error, which was reversible per se. (Id. at p. 558.) In our view, Judith P. is factually analogous to Jasmine G. and DeJohn B., in that making no attempt to give notice until the day of the hearing was tantamount to making no attempt to give notice, and to that extent, the application of the per se reversible structural error standard under the facts in Judith P. would be consistent with the Jasmine G. and DeJohn B. decisions. (In re Jasmine G., supra, 127 Cal.App.4th at p. 1116; Judith P., supra, at p. 558; In re DeJohn B., supra, 84 Cal.App.4th at p. 102.)
Additionally, use of the holding of Judith P. as authority for applying the structural error standard has been questioned in In re Sabrina H. (2007) 149 Cal.App.4th 1403. In a footnote, the Sabrina H. court stated: "The Judith P. court relied heavily on criminal cases in holding the tardy delivery of the status report constituted structural error. The following year, our Supreme Court in In re Celine R. (2003) 31 Cal.4th 45, 58-59 . . ., criticized case law that analogized criminal cases to dependency cases; the high court observed that such an analogy was inapt." (Sabrina H., supra, at p. 1420, fn. 14.)
The cases Father cites are factually distinguishable from the instant case, however, in that there were multiple attempts to give Father notice. Accordingly, we conclude that the claimed notice error herein is subject to the harmless beyond a reasonable doubt standard, rather than the structural error standard. (In re J.H., supra, 158 Cal.App.4th at p. 183.)
Father had actual notice of the dependency proceedings in general and the May 16 date for the jurisdictional/dispositional hearing, in that he and his attorney were present at the initial detention hearing when the court set the date. Written notice by certified mail, return receipt requested was served on Father on March 27, addressed to the Mens Central Jail, where he was in custody at the time. DCFS received the return receipt, and it was undated and signed by someone other than Father. Because Father was present at the initial petition hearing, notice by first-class mail, rather than certified mail, return receipt requested, satisfied the applicable statutory requirement. (§ 291, subd. (e)(2).) DCFSs report for the May 16 hearing stated that Father had been moved to the federal removal facility on April 18. There was ample time for him to have received the March 27 written notice of the hearing while he remained in Mens Central Jail. Thus, we conclude that proper notice was served on Father that the jurisdictional/dispositional hearing would begin May 16. (See In re J.H., supra, 158 Cal.App.4th at pp. 183-184.)
When Father did not appear at the May 16 hearing, the court noted that he had been taken into federal custody and thus was not subject to the courts power to order that he be produced in court under Penal Code section 2625. The court granted a continuance to June 27 to allow Fathers attorney opportunity to procure Fathers presence through the federal courts or otherwise to ascertain Fathers position in regard to the dependency matter.
Penal Code section 2625 provides a procedure for state prisoners incarcerated in California to attend dependency proceedings held in California.
On May 29, as required by statute, DCFS served Father with notice of the June 27 hearing by first-class mail, addressed to Father at the federal removal facility, which was determined to be Fathers address at the time the court continued the hearing to June 27. (§ 291, subd. (e)(2).) Thereafter, on June 5, however, DCFS learned that Father had been deported on May 9. Prior to the hearing, DCFS attempted to obtain Fathers post-deportation whereabouts from Mother, but Mother indicated that she had no information. Thus, DCFS made a good faith attempt to notice Father under the circumstances presented, although DCFS later learned that Fathers whereabouts were unknown due to his deportation. A good faith attempt to give notice through completion of even a probably futile means of notification has been deemed sufficient to satisfy due process requirements if such an attempt is all the situation permits, such as when the parents whereabouts have been unknown for a substantial period of the dependency proceedings. (In re Justice P. (2004) 123 Cal.App.4th 181, 188.)
Although the juvenile court made jurisdictional decisions at the June 27 hearing, the court once again continued the matter to August 3 for the dispositional phase of the hearing. Consequently, DCFS continued its due diligence search for Fathers whereabouts by searching several computerized databases to determine whether Father was in the country and to ascertain Fathers then-current address. Where a parent cannot be located through a reasonable search effort, a failure to give actual notice will not render the hearing invalid. (In re Claudia S., supra, 131 Cal.App.4th at p. 247.) Thus, when determining whether a parents due process rights have been violated in circumstances, such as are present in the instant case, when "the whereabouts of a parent are unknown, the issue becomes whether due diligence was used to locate the parent" in order to give him notice. (Ibid.)
Father claims that DCFSs due diligence search for his post deportation address was inadequate. He claims that DCFS did not consult the most likely source, Mother, about his address. The record shows, however, that the CSW did ask Mother about Fathers whereabouts and Mother provided no information. Father claims that the DCFS search included only sources in the United States, and none in Mexico. Father has cited no authority, however, that a search must be conducted in a foreign country in order to be deemed reasonable. We know of none. DCFS searched databases, in a thorough and systematic manner, including those for state and federal prisoners as well as many other groups, that conceivably could have information that would lead to identifying Fathers address for notice purposes. "The term `reasonable or due diligence `"denotes a thorough, systematic investigation and inquiry conducted in good faith."" (In re Claudia S., supra, 131 Cal.App.4th at p. 247, citation omitted.) We conclude that the DCFS due diligence search was reasonable under the circumstances presented in the instant case. (Ibid.) Accordingly, the efforts made to give Father notice after he was deported were reasonable and did not violate his due process rights. (Ibid.)
Where a parent has had notice of the dependency proceedings from their beginning and an opportunity to be heard, including through his appointed counsel even if he is unable to attend, but fails to attend a hearing as originally noticed or notify his attorney, DCFS or any other participant as to his position in the matter, the fundamental fairness of the proceedings is not implicated. (In re Angela C. (2002) 99 Cal.App.4th 389, 395.) Father, in this case, had such notice and failed to convey his position to his attorney or any other participant, even though he was unable to attend due to his being deported prior to the hearing and any continuance of it. In such circumstances, the lack of notice of a continuance will not invalidate the proceedings if the absence of notice was harmless beyond a reasonable doubt. (Ibid.)
The record reveals several facts that indicate that, had Father received actual notice of the June 27 and August 3 proceedings, there is no reason to believe that Father would have attended or otherwise participated in the hearings or in reunification services if they had been ordered. Father knew about the dependency proceedings, having attended the initial detention hearing. However, Father chose not to contact his attorney or DCFS or otherwise attempt to defend against the children being declared wards of the court under section 300 et seq. There is no evidence that he attempted to communicate with Mother or his attorney. Father did not leave California voluntarily. He was deported to Mexico. He could not legally return to California at the time. He faced criminal charges in California if he did return. If Father had returned to California and his location was known for notice purposes, it is likely that he would have been placed in custody again, either by the state for continuation of his prosecution for the alleged sexual abuse of Kimberly or by federal immigration authorities on the same basis as he was originally detained and deported.
In sum, there is no evidence that actual notice to Father would have changed the outcome of the jurisdictional/dispositional hearing. (See In re J.H., supra, 158 Cal.App.4th at pp. 184-185.) For this reason, we are convinced beyond a reasonable doubt that any deficiency in notice to Father was harmless error, and accordingly, reversal of the courts order is not warranted (Id. at p. 183).
Father also contends that, at the initial detention hearing, the trial court failed to obtain a permanent mailing address as required by section 316.1, subdivision (a), which states: "Upon his or her appearance before the court, each parent or guardian shall designate for the court his or her permanent mailing address. The court shall advise each parent or guardian that the designated mailing address will be used by the court and the social services agency for notice purposes unless and until the parent or guardian notifies the court or the social services agency of a new mailing address in writing." Father asserts that such failure on the part of the juvenile court can reasonably be found to be an additional basis for the failure in notice that occurred in the instant case. In view of our conclusion that any deficiency in notice to Father was harmless beyond a reasonable doubt, this contention is moot and we need not address it. (See In re Pablo D. (1998) 67 Cal.App.4th 759, 761.)
4. Denial of Continuances
Father also contends that it was reversible error for the juvenile court to deny his attorneys requests for continuances in order to allow for additional opportunities to ascertain Fathers whereabouts and give him the statutorily required notice. Section 352 gives the juvenile court discretion to grant continuances, but only if the continuance would not be contrary to the childrens interests and only upon a showing of good cause and for such duration as the evidence shows to be necessary. (§ 352, subd. (a).) "In considering the minors interests, the court shall give substantial weight to a minors 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." (Ibid.)
We review a juvenile courts denial of continuances pursuant to the abuse of discretion standard. (In re Dolly A. (1986) 177 Cal.App.3d 195, 199-201.) A juvenile court abuses its discretion if its determination is arbitrary, capricious or patently absurd. (In re Tamneisha S. (1997) 58 Cal.App.4th 798, 806.) Reversal for abuse of discretion requires that it results in a miscarriage of justice (Cal. Const., art. VI, § 13) and absent the abuse of discretion, the outcome of the proceeding would be different (In re Gerald J. (1991) 1 Cal.App.4th 1180, 1187).
The juvenile court granted Fathers first request for a continuance of the May 16 hearing, when it was believed that Father was in federal custody, in order to allow his attorney an opportunity to procure Fathers presence through action in the federal court. When the hearing continued on June 27, the facts concerning Fathers location were significantly changed. He had been deported out of the country to Mexico a few days prior to the May 16 hearing, and his whereabouts were unknown.
Father asserts that the lack of notice to him constituted good cause, as required by section 352 to grant the continuances requested by his attorney. We disagree. The same facts and rationale which support our determination that reversal is not warranted on the basis of lack of notice also support a determination that the lack of notice does not constitute good cause for granting a continuance. There is no indication that a different result would have occurred had Father received notice or if the court had granted yet another continuance at the June 27 or August 3 hearings for the purpose of allowing DCFS and Fathers attorney additional time to locate and contact Father. (In re Gerald J., supra, 1 Cal.App.4th at p. 1187.)
Father further claims that the record supports granting a continuance under the three factors which a court must weigh in deciding whether granting a continuance would not be contrary to the childrens interests: (1) the childrens need for prompt resolution of their custody status; (2) their need for a stable environment; and (3) the adverse consequences of prolonged temporary placement. (§ 352, subd. (a).) Father cites In re Dolly A., supra, 177 Cal.App.3d 195 in support of his argument that the record shows that the three factors would be resolved in favor of the continuance. The case does not support Fathers argument, however, in that it is clearly distinguishable on the facts.
The Dolly A. facts are similar only in that, as in the instant case, the father had allegedly sexually abused the child and related criminal charges were pending against him at the time the jurisdictional/dispositional hearing was to be held. The Dolly A. court agreed with the fathers contention that the adverse consequences to him of having to testify about the allegations in the dependency proceedings constituted good cause for a continuance under section 352 until the completion of the criminal proceedings and, given the relevant facts, the consequences to the father outweighed any possibility that the continuance would be contrary to the childs interest. (In re Dolly A., supra, 177 Cal.App.3d at pp. 198-199, 201.) In Dolly A., the child remained at home with her mother. (Id. at p. 199.) Thus, two of the factors section 352 required the court to weigh were favorably resolved: the child had a stable environment and there was no possibility of damage from temporary placement. Here, throughout the duration of the jurisdictional/dispositional hearings, Kimberly and Bianca were not with their mother or any other relative but rather were in a temporary placement with foster parents. Thus, the two factors identified in section 352, subdivision (a), remained at issue.
As to the third factor, the need for prompt resolution of the minors custody status (§ 352, subd. (a)), in Dolly A., the length of the continuance was determinable, in that the resolution of the criminal proceedings was reasonably expected to take no more than six to ten weeks (In re Dolly A., supra, 177 Cal.App.3d at p. 199), well within the statutory limitation of 18 months applicable to dependency proceedings before a permanent placement decision must be made. (§ 361.5, subd. (a).) In the instant case, by the time Fathers attorney requested a continuance at the June 27 proceedings, the court knew that Father had been deported to Mexico weeks prior and that his whereabouts were unknown. Under such circumstances, the duration of a continuance in order to obtain his address for notice purposes was not reasonably determinable, and, as we discussed above in relation to the notice issue, there was no reasonable expectation that, once noticed, he would become available to participate in the proceedings.
As the Dolly A. case illustrates, time is a factor affecting the rights of a parent in dependency proceedings. Pursuant to section 361.5, specific time limits apply: "The reunification period was intended not to exceed 12 months, with an extension of time to 18 months under certain circumstances. [Citation.] . . . When a child cannot be returned within the 18-month statutory time frame, the court is required to establish a permanent plan for the child and refer the case for a selection and implementation hearing under section 366.26. [Citation.] `A parents rights to the care and companionship of [his] child are, of course, compelling. But the childs rights to a stable and loving family are equally compelling, and in any decision regarding the childs custody, the two must be balanced. The balance between the parents and the childs rights shifts after the child has been removed from the parents home for a substantial time, owing to abuse or neglect by the parent . . . . [Citation.] [Citation.]" (In re Maria S. (1997) 60 Cal.App.4th 1309, 1313-1314.) Under the facts herein, we conclude that the juvenile court properly shifted the balance in favor of the children and did not abuse its discretion in denying Fathers requests for continuances. (Ibid.; In re Dolly A., supra, 177 Cal.App.3d at pp. 199-201.)
DISPOSITION
The order is affirmed.
We Concur:
VOGEL, Acting P. J.
ROTHSCHILD, J.