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In re P.V.

California Court of Appeals, Third District, Sacramento
Apr 16, 2009
No. C060003 (Cal. Ct. App. Apr. 16, 2009)

Opinion


In re P.V. et al., Persons Coming Under the Juvenile Court Law. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. Melissa V. et al., Defendants and Appellants. C060003 California Court of Appeal, Third District, Sacramento April 16, 2009

NOT TO BE PUBLISHED

Super. Ct. Nos. JD225648, JD225649

BUTZ, J.

Appellants Jerry B. (father of P.V.) and Melissa V. (mother of P.V. and A.V.) appeal from the juvenile court’s orders terminating their parental rights and freeing the minors for adoption. (Welf. & Inst. Code, §§ 366.26, 395.) Appellants contend the adoption assessment prepared for the hearing was inadequate and the juvenile court abused its discretion in denying their request for a continuance of the hearing. We shall affirm.

Undesignated statutory references are to the Welfare and Institutions Code.

FACTUAL AND PROCEDURAL BACKGROUND

On March 20, 2007, Sacramento County Department of Health and Human Services (DHHS) filed section 300 petitions on behalf of minors P.V., who was less than a month old, and A.V., nearly three years old. The petitions alleged mother had allowed unsupervised contact between the minors and father, and that father had sexually molested his biological child in 2005 and failed to rehabilitate or successfully reunify with that child. The petition further alleged that mother failed to acknowledge father’s sexual molestation of his child.

The juvenile court sustained the petitions, adjudicated the minors dependents of the court, and ordered reunification services for mother and father. The minors were placed with the maternal grandparents.

Appellants failed to reunify and services were terminated. Appellants were present at the April 2008 contested hearing and were ordered to return for the section 366.26 hearing on August 20, 2008. Thereafter, DHHS served appellants written notice of the August 20, 2008, section 366.26 hearing. The juvenile court found notice had been provided as required by law.

On August 12, 2008, DHHS filed a section 366.26 report with the juvenile court and served a copy on appellants. The report indicated that father had last visited with P.V. on July 14, 2008, and the visit went well. P.V. went to father easily and separated from him without upset. Mother had not returned the social worker’s calls to set up a visit with the minors as of August 1, 2008. Therefore, no visitation had occurred. The maternal grandparents reported that mother had recently given birth in Nevada to a baby boy.

The social worker reported that both P.V. and A.V. were doing well physically, psychologically, and developmentally. The report provided a summary of each child’s status with respect to medical, dental, developmental, education, school behavior and attendance, intellect, and emotional and behavioral status. The report indicated the minors resided together with the maternal grandparents and looked to the maternal grandparents to meet their needs. The report also stated that the maternal grandparents had previously adopted, were aware of the financial and legal responsibilities associated with adoption, and were committed to adopting these minors. A home study referral had been submitted. The report also referred the juvenile court to previously filed reports.

Counsel for appellants appeared at the August 20, 2008, section 366.26 hearing, but neither mother nor father were present. Mother’s counsel requested a continuance because counsel did not know why mother was not present. The social worker informed the court and counsel that a Washoe County, Nevada, social worker had called the day before and advised DHHS that mother and father “were both in Washoe County as the mother had recently given birth and had tried to do so out of the eye of [DHHS].” The social worker further reported that the Washoe County social worker had told the parents of the current proceedings. Father’s counsel then joined in the request for a continuance. The juvenile court questioned counsel for mother and father and both counsel admitted that they had not heard from their client as to why he or she was not present or why either one had failed to ask for a continuance. The juvenile court denied counsels’ oral request for a continuance for failure to state good cause. No additional evidence was presented. The juvenile court found the minors were likely to be adopted, terminated parental rights, and freed the minors for adoption.

DISCUSSION

I

Appellants contend the assessment was inadequate in that it did not meet the statutory criteria.

When the juvenile court orders a section 366.26 hearing after terminating services at the permanency review hearing, section 366.22, subdivision (c)(1) requires the county adoption agency to prepare an assessment. The assessment includes information from which the court can assess the minor’s likelihood of adoption if parental rights are terminated and any characteristics which may make the minor difficult to place. (§§ 366.21, subd. (i); 366.22, subd. (c)(1).)

Section 366.21, subdivision (i)(1) provides, in pertinent part:

Appellants argue the assessment is lacking in a detailed discussion of the relationship between the minors and their parents and relatives and the quality of their visits, a statement that the maternal grandparents had been screened for criminal records and prior child abuse referrals, and a detailed discussion about the minors’ bond with the maternal grandparents.

In their reply briefs, appellants assert that the lack of information in the assessment results in a lack of evidence the minors are adoptable. To the extent that this assertion is intended to be a separate argument claiming there was insufficient evidence to support the juvenile court’s order, this claim has not been fully and properly briefed. (See People v. Stanley (1995) 10 Cal.4th 764, 793 [court need not consider claim unsupported by specific legal argument and citation of authority].) Moreover, the point is forfeited by the failure to raise it in the opening briefs on appeal. (Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8.)

Deficiencies in the assessment pertain to the weight of the evidence before the juvenile court. (In re Crystal J. (1993) 12 Cal.App.4th 407, 413.) The requirement that an assessment be prepared containing certain information is an evidentiary matter. Accordingly, failure by a party to the proceeding to object in the juvenile court to the sufficiency of the assessment precludes raising that issue on appeal. (In re Urayna L. (1999) 75 Cal.App.4th 883, 886; In re Aaron B. (1996) 46 Cal.App.4th 843, 846; In re Crystal J., supra, 12 Cal.App.4th at pp. 411-412.)

Appellants both argue that, if counsel was required to object to the adequacy of the assessment, their counsel was inadequate for failing to do.

A parent claiming ineffective assistance of counsel has the burden of showing that counsel failed to act in a manner to be expected of reasonably competent counsel that “counsel’s representation fell below an objective standard of reasonableness.” (Strickland v. Washington (1984) 466 U.S. 668, 688 [80 L.Ed.2d 674, 694]; accord, In re Emilye A. (1992) 9 Cal.App.4th 1695, 1711.) “Reviewing courts will reverse... on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission.” (People v. Fosselman (1983) 33 Cal.3d 572, 581.) When the record is silent on the reasons that counsel acted as he did, the case must be affirmed “unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.” (People v. Pope (1979) 23 Cal.3d 412, 426.)

The record here is silent on counsels’ reasons for failing to object to the assessment. However a rational tactical reason for failing to object is readily apparent. Even were the assessment more complete, the basic information would remain unchanged; ire., the minors were young with no special health, mental, developmental or emotional needs, and they were doing well in a placement with the maternal grandparents who wished to adopt them. There are no facts suggested by the record that could have been produced to change this state of affairs. Thus, the record does not show there was good cause to object to the assessment or that preparation of a more thorough assessment would change the result of the hearing.

Appellants also argue that the inadequacies of the assessment were severe so as to constitute a violation of procedural due process. We disagree.

“Where an investigative report is required prior to the making of a dependency decision, and it is completely omitted, due process may be implicated because a cornerstone of the evidentiary structure upon which both the court and parents are entitled to rely has been omitted. [Citation.] [¶] Where, however, the assessment report is prepared, is available to the parties in advance of the noticed hearing, and does address the principal questions at issue in the particular proceeding, errors or omissions in the report cannot be characterized in terms of denial of due process. [Citations.] Deficiencies in an assessment report surely go to the weight of the evidence, and if sufficiently egregious may impair the basis of a court’s decision to terminate parental rights. Such deficiencies, however, will ordinarily not amount to a deprivation of procedural due process.” (In re Crystal J., supra, 12 Cal.App.4th at p. 413.)

Here, the assessment touches on each of the areas set forth in the statute and provided the juvenile court enough information from which it could make an informed decision to terminate parental rights. Any inadequacies were not so severe as to undermine the fundamental fairness of the hearing.

II

Finally, appellants argue it was an abuse of discretion for the juvenile court to deny their counsels’ request for a continuance of the section 366.26 hearing. Again, we disagree.

Section 352 is the primary statute governing continuances in dependency cases. Subdivision (a) of section 352 states in part: “Upon request of counsel for the parent, guardian, minor, or petitioner, the court may continue any hearing under this chapter beyond the time limit within which the hearing is otherwise required to be held, provided that no continuance shall be granted that is contrary to the interest of the minor. In considering the minor’s interests, the court shall give substantial weight to a minor’s need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements. [¶] 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.... [¶] 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.”

In determining whether to grant a continuance, the juvenile court is accorded broad discretion. (In re Gerald J. (1991) 1 Cal.App.4th 1180, 1186-1187.) “Continuances are discouraged [citation] and we reverse an order denying a continuance only on a showing of an abuse of discretion.” (In re Ninfa S. (1998) 62 Cal.App.4th 808, 810-811.)

Here, the juvenile court did not abuse its discretion. First, counsel failed to file a written notice two days in advance that they would be seeking a continuance, which is required by section 352, and they could not provide any specific information in the oral motion to establish good cause for a continuance. There was no documentation or other evidence that explained why appellants were not, or could not be, present. In fact, neither counsel had been contacted by their client or even knew why their own client was not present at the hearing.

Under the circumstances, the juvenile court acted well within its discretion in denying appellants’ counsel’s oral request to continue the section 366.26 hearing.

DISPOSITION

The orders of the juvenile court are affirmed.

We concur, RAYE, Acting P. J., CANTIL-SAKAUYE, J.

“Whenever a court orders that a hearing pursuant to Section 366.26 shall be held, it shall direct the agency supervising the child and the licensed county adoption agency... to prepare an assessment that shall include:

“(A) Current search efforts for an absent parent....

“(B) A review of the amount of and nature of any contact between the child and his or her parents... since the time of placement....

“(C) An evaluation of the child’s medical, developmental, scholastic, mental, and emotional status.

“(D) A preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent... to include a social history including screening for criminal records and prior referrals for child abuse or neglect, the capability to meet the child’s needs, and the understanding of the legal and financial rights and responsibilities of adoption....

“(E) The relationship of the child to any identified prospective adoptive parent..., the duration and character of the relationship, the motivation for seeking adoption..., and a statement from the child concerning placement and the adoption..., unless the child’s age or physical, emotional, or other condition precludes his or her meaningful response, and if so, a description of the condition.

“(F) A description of efforts to be made to identify a prospective adoptive parent....

“(G) An analysis of the likelihood that the child will be adopted if parental rights are terminated.”


Summaries of

In re P.V.

California Court of Appeals, Third District, Sacramento
Apr 16, 2009
No. C060003 (Cal. Ct. App. Apr. 16, 2009)
Case details for

In re P.V.

Case Details

Full title:In re P.V. et al., Persons Coming Under the Juvenile Court Law. SACRAMENTO…

Court:California Court of Appeals, Third District, Sacramento

Date published: Apr 16, 2009

Citations

No. C060003 (Cal. Ct. App. Apr. 16, 2009)