Opinion
B202780
4-16-2008
In re PRECIOUS G., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. DAISY G., Defendant and Appellant.
Deborah Dentler for Defendant and Appellant. Raymond G. Fortner Jr., County Counsel, James M. Owens, Assistant County Counsel, and Frank DaVanzo, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Daisy G. appeals the juvenile courts order terminating her parental rights to the infant child Precious G. On appeal she claims the court erred in denying her request for a continuance to file a Welfare and Institutions Code section 388 petition which she made orally at the section 366.26 hearing. Appellant claims she demonstrated good cause to warrant a continuance under section 352. She planned to present evidence, in support of her section 388 petition, that her circumstances had changed—that she was enrolled in a court-ordered drug program and had been participating in court-ordered drug testing. She asserts that the courts failure to order a continuance in view of this showing amounted to an abuse of discretion. Appellants claim lacks merit. The juvenile court did not abuse its discretion in denying the last minute and untimely request for a continuance of the section 366.26 hearing. As the court observed, allowing additional time to file a section 388 petition would have been futile because based on the record the petition would have been legally insufficient. Consequently, we affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
The minor Precious G. (born in 2006) came to the attention of the DCFS after testing positive at birth for exposure to amphetamine and methamphetamine. Her mother, 19-year-old appellant Daisy G. ("appellant"), also tested positive for drug exposure. Appellant acknowledged she had used methamphetamine during her pregnancy. She identified the minors father as Juan M.
Juan M. is not a party to this appeal. Although Juan M. denied paternity and wanted no services or involvement with the court proceeding, appellant identified Juan M. throughout the proceedings as the minors father. The juvenile dependency court found him to be the alleged father, but did not order reunification services for him.
On October 23, 2006, the DCFS filed a petition under section 300. Under subdivision (b) of section 300, the petition alleged that appellants history of substance abuse and use of amphetamine and methamphetamine while pregnant rendered her incapable of providing adequate care and supervision for the minor. It further alleged Juan M. was a current user of methamphetamine and cocaine, which rendered him incapable of caring for the minor and created a detrimental home environment.
At a detention hearing held October 23, 2006, appellant appeared and counsel was appointed for her. She denied the allegations of the petition. The court found a prima facie case, ordered the minor detained in hospital care, and placed the infant into the temporary custody of the DCFS. The court ordered appellant to attend individual counseling and a drug treatment program with random drug testing
A jurisdictional hearing was held on November 13, 2006. A first amended petition ("the petition") was filed, alleging that the minor was endangered by appellants drug abuse during pregnancy and by violent altercations between appellant and the alleged father during pregnancy. The report filed for the jurisdiction/disposition hearing stated appellant was a former dependent of the juvenile dependency court who had been subjected to serious physical abuse, neglect, and sexual abuse during her childhood. The report also indicated appellant had an arrest history for shoplifting, receipt of stolen property, and being under the influence of controlled substances. She had spent her teens in multiple foster placements and group homes, and had a history of being oppositional and defiant. She had never expressed an interest in reunification with any of her relatives and was distant from them. Appellant was a high school dropout and had three hospitalizations for depression and suicidal ideation. When she was 14 she had overdosed on drugs. In 2000, she had a diagnosis of post-traumatic stress disorder and major depression. The jurisdiction report also indicated that appellant wanted to reunify with her child and had visited the infant regularly during the 13 days the infant remained in the hospital.
According to the report, the appellant and her siblings who had also been made dependents, were raised in an environment of domestic violence and abuse.
At the November 13, 2006, hearing the petition was adjudicated, after appellant waived her right to contest the petition and waived procedural rights. The court sustained the petition under subdivision (b). Appellant was ordered to complete parenting, individual counseling, and drug counseling with random drug testing. The court also ordered monitored visitation for appellant at least two times a week. The court further recommended that appellant "get started right away" because a permanent plan could be ordered after six months.
On November 14, 2006, appellant left a message for the social worker indicating that she would be enrolling in a residential drug treatment program. On December 26, 2006, appellant left a message for the social worker indicating that she had left the drug treatment program because she did not think she needed what the program offered and was unwilling to conform to the programs dress code. The social worker provided appellant with two referrals to residential drug treatment programs which could provide all of the services required by the case plan. In early February 2007 the social worker attempted to follow-up with appellant to obtain proof of her enrollment in court-ordered programs and testing. Because appellant did not have a valid California identification card she could not participate in court-ordered random drug testing. In addition, since the disposition hearing in November 2006, appellant had visited the infant only once. Though she would schedule visits she would often cancel at the last minute. In December 2006, the minor had been placed in a foster home and her foster parents wanted to adopt her.
On February 9, 2007, the court held a progress report hearing which appellant attended. The court commented that appellant seemed to be doing nothing so far on her case plan, and ordered an adoption home study and set a hearing under section 366.21, subdivision (e).
On March 20, 2007, an adoption home study of the foster parents was initiated. In mid-April 2007, appellant called the DCFS to say she wanted six more months of services and she had not yet obtained identification or entered a drug program, but planned to do so.
The report prepared for the six-month review hearing indicated that the minor remained in the current foster home and the foster parents were interested in adopting her and had begun the adoption home study process. The social worker indicated appellant had visited the minor only a few times since the disposition—the foster mother indicated appellant had only visited a total of five times since the minors placement with the foster family in December 2006. She indicated that during the visits appellant acted appropriately, that appellant changed the minors diapers and fed her. The report also indicated that appellant had yet to enroll in the court-ordered parenting, drug testing, counseling, or drug treatment, notwithstanding enrollment information and a number of referrals provided to appellant. According to the social worker, appellant would often indicate that she would be enrolling "tomorrow" but had yet to do so. The social worker recommended that appellants reunification services be terminated.
The six-month review hearing was held on May 14, 2007. Appellant appeared with her counsel. The court found that appellant was not in compliance with her case plan, she had not visited consistently, and reasonable services had been provided. The court found that appellant had not made significant progress in resolving the problems that led to the minors removal from appellants custody. The court terminated reunification services and appellant was advised of her writ petition rights. The court ordered the DCFS to provide permanent placement services and to prepare an adoption assessment report by September 2007. The court set a selection and implementation hearing under section 366.26 for September 10, 2007, and ordered that appellant be served with notice of the hearing in court.
The report for the September 2007 section 366.26 hearing stated that the minor continued to reside with the same foster family, that they were committed to adopting her and that their home study had been approved. The report also indicated that appellant had visited the minor a total of 10 times; often appellant did not call to confirm her visits and often failed to show up for confirmed visits. The report recommended that the court terminate appellants parental rights.
Appellant was not present at the scheduled section 366.26 hearing. The court set a contested hearing date at the request of appellants counsel based on the claim appellant had visited with the infant. The court also advised "there will be no continuances." Two days later, on September 12, 2007, appellant telephoned the social worker to say she had not received a notice of the hearing that had just taken place. The social worker reminded appellant she had been notified of the hearing in court in May. Appellant told the social worker that she had been attending all her classes. The social worker asked for proof of enrollment and appellant said she would provide her enrollment papers to her attorney. The social worker informed her of the contested hearing date.
On September 24, 2007, appellant was present for the contested selection and implementation hearing. The DCFS asked the court to terminate parental rights and order a plan of adoption. Appellants counsel stated that he had just learned that day that appellant had recently entered a drug program and was testing and "has been testing for a few months" and on that basis asked for a continuance in order to file a petition under section 388. The court denied the request.
The court admitted the DCFSs reports into evidence. Appellant testified that she had visited the minor as much as she could in the past six months. She had visited regularly other than during a period she had moved to new housing and during a period she had medical problems because she had been bitten by spiders which required her to be hospitalized. Appellant then testified she had visited about three times per month, for visits lasting an hour each. During visits, she fed, held, and changed diapers for her baby. Asked how the minor reacted to seeing her, appellant testified: "She gets happy, and she kind of like — when I spend time with her, she grabs so tight on me, you know, and looks at me a lot." Under cross-examination, appellant conceded she had about nine visits during the entire time her baby was in foster care. She explained that the placement was far away from where she lived and she had a long bus ride and could not always get to visits on time due to transportation difficulties. Appellants counsel asked the court not to terminate parental rights and to find applicable the exception to adoption provided in section 366.26, subdivision (c)(1)(A).
After the presentation of the evidence and counsels arguments the court stated: "As you well know, I accept 388s right up until the end. I really am quite strong in parents getting however many bites of the apple at the .26 as they can because terminating parental rights is such a serious thing, but even I cant countenance somebody walking in on the day — the second day of the .26 and hear that the mother might be filing a 388 because it appears she may have been, over the last month or two, in her classes.
"At this point, even assuming the mother is doing everything she is supposed to do, it would not be enough to be change[d] circumstances; possibly changing only.
"The relationship. And — And it would not be in the childs best interest so even waiting for the mother to file something does not appear to be — any filing would be not only untimely but, at this point, probably futile."
The court also noted appellant had only nine visits with the child and that although her visits were appropriate she was little more than an infrequent "visitor." The court further found that appellant had failed to demonstrate she had complied with the court-ordered case plan and rehabilitation program. The court concluded that none of the section 366.26 exceptions to termination of parental rights applied and ordered appellants parental rights terminated.
Appellant timely appeals.
DISCUSSION
In this court appellant asserts the juvenile dependency court erred in denying her request for a continuance of the section 366.26 hearing to allow her to file a section 388 petition to show that her circumstances had changed, to wit: she had enrolled in a drug treatment program and had begun random drug testing. As we shall explain we find no abuse of discretion in the courts refusal to grant a continuance.
We note that before this court appellant does not challenge the order terminating her parental rights on any other basis.
Section 352 provides a continuance shall be granted only on a showing of good cause, but no continuance shall be granted if it is contrary to the minors interest. "[T]he 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." (Welf. & Inst. Code, § 352, subd. (a).) "[T]ime is of the essence in offering permanent planning for dependent children." (In re Gerald J. (1991) 1 Cal.App.4th 1180, 1187.) Section 352 further provides that: "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." (Welf. & Inst. Code, § 352, subd. (a).) A reviewing court will reverse an order denying a continuance under section 352 only upon a showing of an abuse of discretion. (In re Angela R. (1989) 212 Cal.App.3d 257, 265-266.) We will affirm the juvenile dependency courts denial of a continuance unless the appellant demonstrates the lower court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination. When two or more inferences can be reasonably deduced from the facts, the reviewing court has no authority to substitute its judgment for that of the juvenile court. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
Concerning section 388 petitions, the statute provides, in pertinent part, that any parent of a dependent child of the juvenile court, "may upon grounds of change of circumstance or new evidence, petition the court . . . for a hearing to change, modify, or set aside any order of the court previously made . . . ." (Welf. & Inst. Code, § 388.) Section 388 serves as an "`escape mechanism when parents complete a reformation in the short, final period after the termination of reunification services but before the actual termination of parental rights." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 528.) "[I]t provides a means for the court to address a legitimate change in circumstances" to afford the parent one last opportunity to reinstate reunification services prior to final resolution of custody status. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.)
After the court terminates reunification services, the parents interest in the care, custody and companionship of the child is no longer paramount. The focus shifts to the needs of the child for stability and permanent placement; there is a rebuttable presumption that continued foster care is in the best interests of the child. (In re Stephanie M., supra, 7 Cal.4th at pp. 316-317.) A section 388 motion requires a two step determination. First, the moving party must show a genuine, significant and substantial change of circumstances or new evidence. (In re Kimberly F., supra, 56 Cal.App.4th at p. at 529; In re Jamika W. (1997) 54 Cal.App.4th 1446, 1451; In re Heraclio A. (1996) 42 Cal.App.4th 569, 577.) Second, the movant must prove the undoing of the prior order would be in the best interests of the child. (In re Kimberly F., supra, 56 Cal.App.4th at p. 529.) "[A] petition which merely alleges changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the childs best interest." (Ibid.) With these legal principles in mind, we turn to the merits of appellants contentions.
In re Kimberly F. described three factors the courts use to determine whether a modification is in the "best interests" of the child. These factors are: "(1) the seriousness of the problem which led to the dependency, and the reason for any continuation of the problem; (2) the strength of relative bonds between dependent children to both parent and caretakers; and (3) the degree to which the problem may be easily removed or ameliorated, and the degree to which it actually has been." (In re Kimberly F., supra, 56 Cal.App.4th at p. 532.)
We find no abuse here. Preliminarily we note appellants request was untimely under section 352. She made an oral request for a continuance at the section 366.26 hearing. On appeal she asserted the lateness of her request should be forgiven because her trial counsel was not informed of the basis of the section 388 petition until the day of the section 366.26 contest. However, more than 10 days before the section 366.26 hearing appellant disclosed to the social worker her recent enrollment in a drug treatment program and her participation in drug testing, and when the social worker asked for the proof, appellant stated that she would be providing copies of her enrollment papers to her counsel. What appellant fails to explain on appeal is why, given her express intent to provide this evidence to her counsel and sufficient time to file a proper section 352 request she waited until the day of the hearing to provide her lawyer with this crucial information, especially given that appellant appears to have known what was at stake at the section 366.26 hearing. In our view, appellant has not shown sufficient cause to excuse the lateness of her request.
In any event, we also conclude the court did not abuse its discretion in denying the request because appellant failed to establish good cause for a continuance. Appellant did not demonstrate that she would have been able to assert a legally sufficient section 388 petition. Before this court appellant complains the court denied the section 352 request without explanation and did not expressly find a continuance would be contrary to the minors interest. However, while the court did not initially state its rationale for refusing to continue the section 366.26 hearing nor immediately discuss the minors interests in that regard, reading the entire transcript from the section 366.26 hearing, especially the courts discussion of its decision, the courts reasons for denying the continuance become clear. The court addressed the merits of the proposed section 388 petition and concluded that appellant would not have been able to prevail on such a petition—that at most she would be able to show changing, but not changed circumstances. The court further observed that waiting for her to file such a petition would not be in the best interest of the child. In view of the courts conclusion that filing a section 388 would probably be futile, the courts rationale for denying the section 352 request is obvious—no cause existed to grant the continuance because the 388 petition she sought to file would be doomed to failure. Given the record before us, we cannot say the court abused its discretion in reaching these conclusions.
Appellant urges this court to disregard the lower courts statements concerning the lack of merit of any section 388 petition, arguing that nothing in the record indicates what appellant would have alleged in her petition. While this is technically true because she never filed the petition, it is also true that below and on appeal, appellant has argued that the sole basis of her proposed section 388 petition was her recent participation in drug treatment and random drug testing. Given this offer of proof, in our view the lower court did not engage in gratuitous speculation when it concluded that such a showing would not have warranted relief under section 388.
None of the precedent appellant cites in her brief helps her cause. In re Michael R. (1992) 5 Cal.App.4th 687, cited by appellant, the Court of Appeal reversed an order denying a request for a continuance (to allow the mother to complete a drug treatment program) asserted at a section 366.26 hearing. However, as the respondent points out, in Michael R. the juvenile dependency court found good cause and that the continuance would serve the minors interest, but declined the request only because the court believed it was precluded by law from granting it. (Id. at pp. 692-695.) Such is not the case before us.
Likewise of little assistance is appellants citation to In re Julian L. (1998) 67 Cal.App.4th 204. In Julian L. the Court of Appeal held the juvenile court had improperly refused to grant a continuance to provide the mothers newly appointed counsel a chance to speak with her. The appellate court found that circumstances compelled a brief continuance to afford counsel an opportunity to ascertain the mothers wishes and to effectively represent her and it would not have a negative affect on the minors interest. (Id. at p. 208.) Here, however, the court effectively found the opposite, that no compelling cause existed to grant a continuance and that a delay in the proceedings would not be in the minors interest.
In view of the foregoing, we conclude the court did not err in denying appellants request for a continuance of the section 366.26 hearing.
DISPOSITION
The order of the juvenile court is affirmed.
We concur:
PERLUSS, P.J.
ZELON, J.