Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Los Angeles Superior Court No. CK60431, Juvenile Division, Patricia Spear, Judge.
Jennifer Mack, under appointment of the Court of Appeal, for Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Owen L. Gallagher, Principal Deputy County Counsel for Respondent.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
SUMMARY
Appellant Sherry E., mother of Samantha E., appeals the order of the juvenile court terminating her parental rights under Welfare and Institutions Code section 366.26. She asserts the trial court abused its discretion when it denied her request to continue the permanency planning hearing. We disagree, and affirm.
All statutory references are to this code.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2005 respondent Department of Children and Family Services (DCFS) filed a petition on behalf of four-year-old Samantha under section 300. The petition alleged Samantha was at risk of suffering serious physical harm because Sherry regularly used methamphetamine. The petition stated that Sherry had a history of substance abuse and that she had used drugs in Samantha’s presence in their home. DCFS alleged that Sherry’s drug abuse left her unable to care for, protect, and supervise Samantha and endangered the child’s physical and emotional health and safety. (§ 300, subd. (b).)
The juvenile court conducted a detention hearing. DCFS reported Samantha had come to its attention after Sherry did not pick Samantha up from school and never called. Sherry had left Samantha at school – neither coming for her nor calling – a number of times. A DCFS children’s social worker (CSW) met with Samantha at the home of her paternal grandparents, D.J. and William A. Samantha’s school uniform was dirty, her hair was tangled, and she had circles under her eyes, as though she had not had enough sleep. Samantha told the CSW her grandparents picked her up from school “a lot and [she] spends a lot of time with them.” She liked spending time at her grandparents’ house rather than her own, because it was “more fun” at her grandparents’ house. Samantha reported that her own “house [was] very very dirty” and scary because there were always “bad” people there. When the CSW asked if she knew what drugs were, Samantha said “yes . . . drugs are bad . . . my mom does it, she smokes it.”
School representatives told DCFS that Sherry often brought Samantha to school very late. On the first day of school, Samantha did not show up until 11:00 a.m. On another occasion, the school principal went to Sherry’s home to find out why Samantha had not come to school. She found both Sherry and Samantha asleep. The principal dressed Samantha and took her to school. School personnel told DCFS that Samantha often arrived at school “with poor hygiene, very hungry and sleepy.” They also said Sherry often failed to pick Samantha up after school. School officials had met with Sherry to discuss Samantha’s “tardiness, hygiene, well being[,] and [Sherry’s] failure to pick up Samantha after school.” At that meeting, Sherry had agreed to a “case plan” but she had not complied with it.
D. told DCFS that she had collected Samantha from school many times after Sherry failed to show up and that Sherry often left Samantha with D. for up to two days without calling. D. told the CSW that her son, Evan J., Samantha’s father, had committed suicide three years earlier. She said Evan and Sherry had both been “drug users and [had] used crystal meth.” D. knew how people look and act when on drugs and she believed Sherry still used crystal meth.
Two CSW’s went to Sherry’s home. A man answered the door; after five or ten minutes Sherry let the CSW’s in. Sherry told the CSW’s that she usually got Samantha to school on time. She denied ever having forgotten to pick her daughter up after school. When asked about drug use, Sherry first said she had never used drugs. She then said Samantha’s father had used crystal meth, and out of curiosity she had tried it a few times before he died. Sherry told the CSW’s that she never had participated in a drug program “because she never needed it.” Sherry had sores and scars on her arms; she said these were from drug use five years earlier. Sherry offered to take a drug test the next day. She was told that, if she missed the test, it would be considered “dirty.” Sherry said “she would attend for sure.” But Sherry never showed up for the test. Nor did she appear for a later drug screening.
Following these initial interviews, DCFS told Sherry that there would be a meeting “to discuss the safety of Samantha and [Sherry’s] drug use.” Sherry told DCFS “that she would attend the meeting to clear things up and prove to everyone that she [was] clean.” DCFS representatives, school personnel, and D. appeared for the meeting, but Sherry did not show up.
At the conclusion of the hearing, Samantha was detained after the court found she was at risk of suffering physical harm if left in her mother’s custody. Sherry was ordered to participate in drug testing, individual counseling, and parenting programs. Samantha was placed – and remains today – in the home of her paternal grandparents.
The court held a contested adjudication hearing in November 2005. Sherry did not attend the hearing. DCFS reported that Sherry had not shown up for any of her scheduled appointments in the 11 weeks since the detention hearing. So DCFS had not been able to give her the court-ordered referrals. Nor had Sherry appeared for any random drug tests. DCFS gave the court a letter from Evan’s widow to D.; according to the letter, Sherry told the widow in mid-October 2005 that she was still using drugs. D. told DCFS that Sherry had visited Samantha a few times since her detention in early September and that she “call[ed] sporadically, about every four to five days.” Samantha was declared a dependent of the juvenile court. (§ 300, subd. (b).) Sherry was given monitored visitation. She was ordered to participate in individual counseling; to attend parenting education, drug rehabilitation, and 12-step programs; and to submit to random drug testing.
At the six-month review hearing (§ 366.21) in May 2006, DCFS reported the CSW had been unable to meet with or contact Sherry. The CSW had been to Sherry’s home three times; each time she left a business card, but Sherry never called. Eight months after Samantha was first detained, Sherry still had not even started any counseling or other court-ordered program, nor had she showed up for a single drug test. Because Sherry refused to make herself available to DCFS, the agency had not been able to provide her with reunification services. D. told DCFS Sherry had called Samantha about 20 times in six months. Sherry did not visit her daughter at all for three months. Sherry had seen Samantha only twice in the past two months. In DCFS’ view, Sherry had “shown no interest in visiting or maintaining contact with her child.” DCFS reported Samantha was very attached to her paternal grandparents. She was thriving in their care. She wanted to live with them, and they wanted to adopt her.
By the time of the 12-month review hearing on November 3, 2006, Sherry finally had begun to make progress. She had completed a parenting program and was participating in outpatient drug rehabilitation. After refusing a referral to NA meetings in June 2006 (“stating she does not do drugs”), Sherry finally had begun attending 12-step meetings in August. She had been undergoing random testing once or twice a month since mid-May 2006. In late August 2006, Sherry tested positive for methamphetamine. She also failed to show up twice for testing. Sherry’s drug counselor described her as a “tweeker,” someone who uses drugs sporadically or infrequently.
Sherry had not enrolled in an individual counseling program as ordered. She was unemployed. Sherry was staying with friends whom she believed were drug users, but she hoped to relocate. Sherry said she wanted Samantha placed with a maternal aunt and uncle in Maryland, but she gave DCFS no names or contact information so it could investigate the possibility of such a placement. Sherry had monitored weekly visits with Samantha at the child’s school. The visits went well. Sherry behaved appropriately and Samantha was excited to see her mother, whom she greeted with hugs and kisses. Sherry’s visitation was largely consistent; she missed one of 24 visits because she arrived too late. Samantha was “very upset” about Sherry’s missed visit. Sherry told DCFS she wanted to reunify with Samantha or, if that was not possible, to have her placed with biological relatives. Samantha told DCFS she did not want to live with Sherry; she wanted her grandparents to adopt her. D. applied for and was granted de facto parent status. The juvenile court found Sherry was in partial compliance with the case plan and terminated reunification services. The court set the matter for a permanency planning hearing (§ 366.26) in early March 2007, and ordered DCFS to complete an adoption assessment.
In November 2006, Sherry told DCFS for the first time that D. was not Samantha’s “blood relative.” Samantha’s birth certificate lists Sherry’s husband, Michael E. as the child’s biological father. Michael, who was in state prison during some part of these proceedings, consistently declined to participate in this action. He is not a party to this appeal. On June 28, 2007, the juvenile court found Evan to be Samantha’s deceased biological father. It found Michael was entitled to no further notice. No party challenges either ruling.
On March 2, 2007, DCFS reported that Sherry continued to see Samantha on a “fairly routine” basis. Samantha enjoyed the monitored visits, and was visibly disappointed when her mother did not show up for six of 16 possible visits. Samantha wanted to continue a relationship with Sherry, who recently had given birth to another child. Although Samantha was excited to have a sibling, she continued to say that she wanted D. to adopt her. DCFS told the court that it had approved D.’s adoptive home study. D. did not want a legal guardianship. She wanted to adopt because she believed that plan promised the most permanence and security for her and for Samantha. D. was not interested in a kinship adoption. Samantha told DCFS she felt very loved and well cared for by D.’s entire family, and she wanted to be adopted. DCFS strongly recommended adoption as Samantha’s permanent plan, but also recommended Sherry and Samantha continue to have contact with one another because Samantha wanted an ongoing relationship with her mother. At the March 2007 hearing, the court granted Sherry’s request to have the matter set for a contest on the “beneficial contact” exception (§ 366.26, subd. (c)(1)(A)). The court continued the hearing to May 4, 2007.
Because of her husband’s declining health, D. had decided to proceed on her own with the adoption.
In anticipation of the .26 hearing, DCFS reiterated that it was “STRONGLY recommending termination of parental rights and freeing [Samantha] for adoption.” DCFS noted that Sherry had “failed to show up for her last three (3) visits” with Samantha, and had not even called on two of those occasions.
On May 4, 2007, the section 366.26 hearing was rescheduled twice. First, Sherry could not appear in the morning because of a childcare problem. Then, her attorney became ill in the afternoon. The court continued the contested hearing to June 28, 2007. D. asked that the court not continue the hearing again. The court agreed, and told the parties there would be no further continuances.
The court conducted the contested section 366.26 hearing on June 28, 2007. As of 11:13 a.m., Sherry had not shown up. Her attorney told the court he had expected Sherry to be there. He had not heard from Sherry and could not explain her absence, but requested “a brief continuance.” Counsel stated, “It’s my understanding [Sherry] is opposed to the Department’s recommendation.” The court found Sherry had not shown good cause, and it denied the request for a continuance.
The hearing went forward. The juvenile court found Samantha was likely to be adopted, and parental rights were terminated. Sherry appeals from that order.
A minute order indicates both that parental rights were “terminated,” and “not terminated” on June 28, 2007. Given the nature of this appeal, the notation that parental rights were not terminated is clearly a clerical error.
DISCUSSION
Sherry’s sole contention on appeal is that the juvenile court abused its judicial discretion in denying her counsel’s request for a continuance of the selection and implementation hearing. We cannot agree.
We review a juvenile court order denying a continuance for an abuse of discretion. (In re Elijah V. (2005) 127 Cal.App.4th 576, 585.) We do not disturb the court’s ruling unless its decision was arbitrary, capricious, or patently absurd and resulted in a manifest miscarriage of justice. (In re Karla C. (2003) 113 Cal.App.4th 166, 180.) Courts may continue dependency proceedings only if the delay is not contrary to the child’s interests and only on a showing of good cause. In exercising its discretion and “considering the minor’s interests,” the statute requires the court to “give substantial weight to a minor’s need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements.” (§ 352, subd. (a).) Continuances are expressly discouraged and meant to be difficult to obtain. (In re Elijah V., supra, 127 Cal.App.4th at p. 585; In re Ninfa S. (1998) 62 Cal.App.4th 808, 810-811 [oral requests for continuances made at the section 366.26 hearing are particularly disfavored]; Jeff M. v. Superior Court (1997) 56 Cal.App.4th 1238, 1242-1243 (Jeff. M.).)
Sherry argues the court should have granted her request for a continuance given her attorney’s surprise at her unexplained absence. She had planned to oppose DCFS’ recommendation of adoption as Samantha’s permanent plan, she says, and she had asked to have the matter set for a contest on the applicability of the “beneficial contact” exception to termination of parental rights. (§ 366.26, subd. (c)(1)(A).) But Sherry’s briefs never even address whether she showed good cause at the hearing to justify a continuance, much less demonstrate that she made the mandated showing. She makes only a general statement that “all of the circumstances may be considered.” Sherry ignores the statutory mandate that “petitions under section 300 be heard and decided rapidly” (Jeff M., supra, 56 Cal.App.4th at p. 1241) as well as the plain language of section 352.
We are satisfied with the juvenile court’s conclusion that good cause did not exist. Sherry’s attorney did not explain why a continuance was necessary, advisable, or in Samantha’s interest. He told the court only that he knew Sherry opposed adoption, but did not know why she was not there. He submitted no evidence or offer of proof, and he made no argument on Sherry’s behalf to justify a continuance. The mere absence of a party, without a further showing, is not good cause. (Young v. Redman (1976) 55 Cal.App.3d 827, 831; see also Renee S. v. Superior Court (1999) 76 Cal.App.4th 187, 197, fn. 6 [“section 352 bars continuances solely for the convenience of the parties”].)
The permanency planning hearing initially was set for March 3, 2007. The court already had continued it three times. In March, after Sherry said she intended to try to establish an exception to termination of parental rights, the court continued the hearing so a contest could be conducted. The court continued the hearing twice more on May 4, 2007, after Sherry first failed to appear and, later, after her attorney became ill. At the time of the third continuance, the juvenile court explicitly told the parties it “expect[ed] . . . [to] get this resolved at the next court date.” The court reminded the parties that it did “not want any further continuances” and that, barring more illness, everyone should “expect this [matter would] go forward” on June 28. Other than her attorney’s speculation, Sherry never has offered any explanation for her absence from the hearing on June 28, 2007. Under these circumstances, the dependency court did not abuse its discretion in finding no good cause for a continuance. Sherry did not attend the hearing or offer any explanation for her absence on the day she knew her parental rights were at stake.
Sherry’s appellate counsel suggests that her absence was related to problems associated with her new baby. Nothing in the record supports that suggestion.
That Samantha had been in the dependency system for almost two years by the time of the section 366.26 hearing also weighs against a continuance. In exercising its discretion to decide whether to grant a request for continuance, the court must “ give substantial weight to a minor’s need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements.” (§ 352, subd. (a).) Continuances are intended to be quite difficult to obtain, particularly at such a belated stage. (Jeff M., supra, 56 Cal.App.4th at pp. 1242-1243.) By the time it sets a section 366.26 hearing, the court no longer is concerned with reunification; it is squarely and appropriately focused on “the needs of the child for permanency and stability.” (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) Samantha had been in foster care since September 2005. She was in foster care for a year before Sherry even began to comply with her case plan. Even after she began participating in some court-ordered programs, Sherry continued to deny her drug problem for some time. Granted, Sherry has made commendable progress. The court was aware of that progress and of the pleasant, loving nature of the visits between Samantha and Sherry when Sherry showed up – as well as of Samantha’s great disappointment when she did not. Nevertheless, it is unlikely that a continuance would have provided any critical new information for the court at the section 366.26 hearing, and Sherry does not assert that it would have. On this record, there was no abuse of discretion in the court’s denial of a fourth continuance and its refusal further to delay facilitating the goal of securing permanence for Samantha.
DISPOSITION
The order is affirmed.
We concur: RUBIN, Acting P. J., FLIER, J.