Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County. No. CK82748, Sherri Sobel, Juvenile Court Referee.
Law Offices of Timothy Martella, Melissa Chaitin and Edward Edge for Petitioner.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant Deputy Counsel, and Navid Nakhjavani, Deputy County Counsel, for Real Party in Interest.
MANELLA, J.
Petitioner Roxanne B. (Mother), mother of Mariah C., appeals the order terminating reunification services at the six-month review hearing. Mother contends the juvenile court violated her due process rights and abused its discretion by denying her motion to continue the hearing, which she could not attend on the scheduled date because she was hospitalized. Finding no violation of due process or abuse of discretion, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Mariah was born prematurely in September 2009. She was not released from the hospital for three months and when she was finally released, she needed several medications and had to be attached to an apnea monitor when she slept. Mariah came to the attention of the Department of Children and Family Services (DCFS) in December 2009, shortly after being released, when Mother was admitted to the hospital with symptoms of depression and suicidal ideation. Mother admitted using methamphetamine and being the victim of domestic violence at the hands of Mariah’s father, Tommy C. (Father). Father admitted a history of domestic violence and alcohol use. The maternal grandmother, S.C., reported that shortly before DCFS intervention, Father had slammed Mother’s head against a wall. S.C. also expressed concern about Father’s drinking and marijuana usage and stated that Father was not providing financial support for Mariah.
Father had an older child from a previous relationship. That child had previously been detained from her biological mother by DCFS and placed with Father. Father had received family maintenance services to assist him in caring for her. Father is not a party to this proceeding.
In January and February 2010, Mother enrolled in domestic violence and drug treatment programs and began receiving counseling services. In March, Mother signed a voluntary family reunification services plan. Under the plan, she agreed to live with Mariah in the home of her parents, while participating in counseling, random drug testing, and programs for domestic violence and parenting. Shortly after signing the agreement, however, Mother moved in with Tommy, leaving Mariah with the maternal grandparents. S.C. subsequently reported that Mother was not visiting Mariah very often and that even when Mother had been residing in their home, she had frequently left the baby with the grandparents and gone out all day. Mother stated she was nervous around the baby and was not as familiar with her needs as S.C.
DCFS did not immediately file a petition. In the interim, Mother continued to participate in counseling and drug treatment. In addition, DCFS continued to drug test Mother. Mother tested negative for drugs, but on three occasions, tested positive for alcohol. In May and June 2010, DCFS held team meetings attempting to resolve the matter informally. In May, Father agreed to participate in a domestic violence program and random drug testing. At the June meeting, DCFS learned that Father was not participating in a domestic violence program and that Mother had not completed any of the programs she had started.
A lab technician later explained that being diabetic, as Mother was, could create a false positive for alcohol due to fermentation of the excess sugar in the urine.
On June 21, 2010, DCFS filed a petition seeking jurisdiction over Mariah under Welfare and Institutions Code section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), and (g) (no provision for support). The petition alleged that Mother and Father had a history of engaging in violent altercations in the presence of the child. Specifically, it alleged that in late 2009, Father slammed Mother’s head against a wall and that in November 2009, Father grabbed Mother by the arm and shirt and scratched her. It further alleged that Father had a history of substance abuse and was a current abuser of marijuana and alcohol; that Mother had a history of substance abuse and was a current abuser of methamphetamine and alcohol; that Mother had a history of mental and emotional problems; and that Father failed to provide for the child.
Undesignated statutory references are to the Welfare and Institutions Code.
Interviewed for the jurisdictional/dispositional report, Mother denied that Father had hit her head against a wall, but admitted that he had grabbed her arm on two occasions, once causing her to lose her footing and fall back against a bench and once scratching her arm. Father admitted grabbing and accidentally scratching Mother’s arm, but denied any other physical altercations.
S.C. reported that Mother had told her on various occasions that Father had hit her head against a wall, hit her in the head with a beer can, and hit her in the stomach when she was pregnant. S.C. also reported that Father had been hospitalized on two or more occasions due to excessive drinking.
On August 16, the parties entered into a mediated agreement under which the allegations of the petition pertaining to substance abuse and failure to provide were stricken, as well as the allegations that jurisdiction was warranted under section 300, subdivisions (a) and (g). The remaining allegations (asserted under subdivision (b) only) were amended to state that Mother and Father had a history of verbal altercations, that on one occasion their altercation became physical and Mother sustained a scratch, and that Mother had a history of emotional problems which interfered with her ability to provide appropriate care and supervision of Mariah. Mother agreed to continue counseling to deal with the emotional and domestic violence issues and to be drug tested. Father agreed to participate in a domestic violence group for offenders and drug testing. At the August 17 jurisdictional/dispositional hearing, the court sustained the allegations as amended and found jurisdiction warranted under section 300, subdivision (b). The court ordered reunification services as provided in the agreement.
Initially, the parents did well in their programs and in learning to take care of Mariah’s medical needs. By October, they had progressed to the point of unmonitored visits. On December 7, however, Mother was arrested for possession of methamphetamine and admitted having used methamphetamine earlier in the day. After her arrest, she claimed that Father had been “do[ing] lines” and that they had used drugs together a week earlier. On December 23, Father was arrested for domestic violence, having allegedly slammed a door on Mother’s head. DCFS requested and obtained a change in court orders, returning visitation to monitored status. The January 2011 order included a requirement that Mother and Father participate in drug counseling and drug testing.
Father’s older child was with Mother at the time.
Father had generally tested clean, but had missed two drug tests in November and December 2010.
In February 2011, DCFS prepared a status report. The caseworker stated that Mother and Father were no longer together, that Father was not participating in the substance abuse and domestic violence programs he had initiated in the period following his arrest, and that he was no longer visiting Mariah. Mother had completed a domestic violence program, a substance abuse program and a parenting program prior to her arrest. After her arrest, she had re-started drug testing, but had missed one scheduled test. Whether she was participating in individual therapy or counseling was unclear. She had been visiting Mariah, who always appeared happy to see her, but did not cry or appear distressed when she left. On February 15, the six-month review hearing was continued for one month in order to allow Mother to contest. Prior to the continued date, DCFS prepared an updated status report. The counselor for Mother’s new substance abuse program informed the caseworker that Mother was about to be terminated for nonparticipation. Mother had one negative drug test and one positive test for alcohol. The caseworker reported that on March 4, Mother had been admitted to the hospital for back pain and to treat an infection and that no date had been set for her discharge. DCFS recommended termination of reunification services.
Father was apparently ignoring Mariah in order to focus on maintaining his relationship with his older daughter.
Mother denied having ingested any alcohol, and the caseworker was unsure whether the positive test could be blamed on her diabetes.
At the six-month review hearing on March 16, 2011, counsel for Mother asked for a continuance due to Mother’s hospitalization. The court stated: “[T]he law says that I don’t ask for an offer of proof for a [review hearing], still I simply don’t see what [Mother could] provide to this court for a child under three if she... were here next week or the week after. She’s... simply not in compliance in any way. And, while I do have discretion at the six month[] [review hearing], there has to be something to hang my hat on, and there really isn’t.” The court asked whether Mother’s counsel had anything to add. He responded that with respect to the positive tests for alcohol, Mother had said that her diabetes diagnosis had been confirmed. The court asked the maternal grandparents, who were present, whether Mother had diabetes and they confirmed that she did. The court found that the positive test might have been caused by Mother’s medical condition, but that “even so, she’s not in compliance with any of the programs.” After giving counsel an opportunity to argue in favor of continuing services for an additional six months, the court found: (1) there had been no regular and consistent contact; (2) there had been no significant progress in resolving the problems that led to the removal; (3) there was no demonstrated capacity and ability to complete the objectives of the treatment plan and provide for the child’s safety, protection, physical or emotional well-being and special needs; and (4) there was no substantial probability of reunification by the 12-month review date. The court ordered reunification services terminated and scheduled a section 366.26 hearing for July 13, 2011. Mother sought writ review.
DISCUSSION
According to section 366.21, “[a]t the review hearing held six months after the initial dispositional hearing, ... the court shall order the return of the child to the physical custody of his or her parent... unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent... would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child.” (§ 366.21, subd. (e).) In making this determination, the court is to “consider the efforts or progress... demonstrated by the parent... and the extent to which he or she availed himself or herself [of] services provided.” (Ibid.) The parent’s failure “to participate regularly and make substantive progress in a court-ordered treatment plan” is “prima facie evidence that return would be detrimental.” (Ibid.)
A special rule applies at the six-month hearing stage where, as here, the minor was under the age of three on the date of the initial removal: “If... the court finds by clear and convincing evidence that the parent failed to participate regularly and make substantive progress in a court-ordered treatment plan, the court may schedule a hearing pursuant to Section 366.26 [to terminate parental rights] within 120 days.” (§ 366.21, subd. (e).) This provision further states: “If, however, the court finds there is a substantial probability that the child, who was under the age of three years of age on the date of initial removal... may be returned to his or her parent... within six months or that reasonable services have not been provided, the court shall continue the case to the 12-month permanency hearing.” (Ibid.)
The court found that Mother had failed to participate and make substantial progress in the court-ordered treatment plan, and that there was no substantial probability that Mariah would be returned to her care if reunification services were extended until the 12-month review hearing. Mother does not challenge these findings on appeal, but contends that the court’s failure to continue the six-month review hearing was an abuse of discretion that denied her due process of law.
Unlike the six-month review hearing, which is to be held six months after “the initial dispositional hearing” (§ 366.21, subd. (e)), the 12-month review hearing is held 12 months after the minor first enters foster care. (Id., subd. (f).) In this case, the statutory deadline for the 12-month review hearing would have been June 2011.
Continuances in dependency proceedings are generally governed by section 352, which provides that continuances “shall be granted only upon a showing of good cause and only for that period of time shown to be necessary by the evidence presented at the hearing on the motion for the continuance.” (§ 352, subd. (a).) “Neither a stipulation between counsel nor the convenience of the parties is in and of itself a good cause” and “no continuance shall be granted that is contrary to the interest of the minor.” (Ibid.) “Continuances are discouraged in dependency cases.” (In re Giovanni F. (2010) 184 Cal.App.4th 594, 604.) “The court must not continue a hearing beyond the time set by statute unless the court determines the continuance is not contrary to the interest of the child. In considering the child’s interest, the court must give substantial weight to a child’s needs for stability and prompt resolution of custody status, and the damage of prolonged temporary placements.” (Cal. Rules of Court, rule 5.550(a)(1).) “We review the denial of a continuance for abuse of discretion.” (In re Giovanni F., supra, at p. 605.)
Preliminarily, we reject Mother’s contention that proceeding with the review hearing in her absence violated her due process rights. “Case law, statutory law and court rule set forth the procedural due process protections to which a parent is entitled when his or her parental rights are at issue, ” primarily “actual notice of the pending proceedings and an opportunity to be heard.” (In re Axsana S. (2000) 78 Cal.App.4th 262, 269, reversed on other grounds in In re Jesuva V. (2004) 32 Cal.4th 588.) In addition, a parent is “entitled to be represented by appointed counsel, to receive a copy of the social worker’s report on which the court would rely in coming to a decision, and to an opportunity to cross-examine witnesses. [Citations.]” (Ibid.) Numerous courts, including our Supreme Court, have held that a parent has no due process right to be present at a dependency hearing. (In re Jesuva V., supra, 32 Cal.4th at pp. 625-626; In re Axsana S., supra, 78 Cal.App.4th at p. 270; In re Iris R. (2005) 131 Cal.App.4th 337, 342.)
We also reject Mother’s contention that the court’s denial of her counsel’s request for a continuance deprived her of “any opportunity to be heard.” “A hearing denotes an opportunity to be heard and to adduce testimony from witnesses.” (In re James Q. (2000) 81 Cal.App.4th 255, 263.) Here, the court had previously continued the six-month review hearing for contest, providing Mother an opportunity to be heard and to present evidence. Her counsel was present to represent her. The only evidence identified by counsel relevant to Mother’s presence was testimony concerning her medical condition, which would have explained the positive alcohol tests. The court received evidence concerning Mother’s diabetes diagnosis from the maternal grandparents and disregarded the positive alcohol tests. The court further provided Mother’s counsel with an opportunity to present any other evidence on Mother’s behalf and to argue her position. Accordingly, Mother was afforded a hearing in accordance with due process.
Mother’s reliance on In re James Q., supra, 81 Cal.App.4th 255 is misplaced. There, the court improperly conditioned the granting of a review hearing on the mother’s ability to make an offer of proof. Here, in contrast, the court held a contested hearing and considered the evidence proffered by Mother’s counsel.
To determine whether the court abused its discretion in denying the request for a continuance, we review the totality of the circumstances. “‘An abuse of discretion will be perceived if, after calm and careful review of the entire record, it can fairly be said that no judge would... make the same order under the same circumstances.’” (In re Marriage of Wilson (1988) 201 Cal.App.3d 913, 917.) Mother’s counsel provided a credible explanation for Mother’s absence -- her hospitalization. Counsel did not, however, provide a specific -- or even approximate -- date by which Mother would be able to return, essentially seeking an open-ended continuance. The hearing had already been postponed beyond the statutory time limit, impeding Mariah’s right to prompt resolution of the proceedings. The sole reason offered by Mother’s counsel to continue the hearing was to permit Mother to confirm that she had been diagnosed with diabetes, thereby explaining her positive alcohol tests. That information was already in the record; confirmation was provided by the maternal grandparents, and the court ultimately disregarded the positive test results. The undisputed evidence established that although Mother had completed a drug treatment program, she continued to use methamphetamine and had not returned to or made substantial progress in drug counseling as ordered by the court in January 2011. In addition, despite the domestic violence program she had completed, Mother appeared to have developed no tools for preventing Father’s abuse or plans to discontinue the relationship. This evidence established that the requirements of section 366.21, subdivision (e) -- substantial progress in a court-ordered treatment plan and a real possibility of return if reunification were to be continued to the 12-month review date -- could not be met. Neither below nor on appeal does Mother demonstrate how, had she been present, she could have disputed this evidence. Under these circumstances, the court did not abuse its discretion in denying the request for a continuance.
As the dispositional hearing was held on August 17, 2010, the six-month review hearing was to have taken place in February 2011. (§ 366.21, subd. (e).)
DISPOSITION
The March 16, 2011 order is affirmed.
We concur: EPSTEIN, P. J., SUZUKAWA, J.