Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Super. Ct. No. RIJ102760
ORIGINAL PROCEEDINGS; petition for extraordinary writ. Robert Padia, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Petition denied.
David Goldstein for Petitioner.
No appearance for Respondent.
Joe S. Rank, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Real party in Interest.
OPINION
Gaut, J.
Jennifer N. is the mother of three children who were removed upon the filing of a supplemental petition alleging that the previous disposition had been ineffective in alleviating the causes of removal. (Welf. & Inst. Code, § 387 .) At the contested jurisdictional hearing on the supplemental petition, mother requested a continuance so she could attend oral argument in the Court of Appeal, scheduled for the same date. She also sought removal of the social worker due to a conflict of interest which arose when mother filed lawsuits against several governmental entities and reunification service providers, including the assigned social worker. The court denied both requests and this petition follows.
M.R., the youngest of the three daughters, was placed with her father, who was a nonoffending, noncustodial parent, and the dependency case as to her was terminated. This appeal involves the older girls, whose ages are 14 and 12. To maintain confidentiality, we refrain from using their first names, but their initials are the same (E.B.) so we will refer to them collectively as the “children.”
All further references are to the Welfare and Institutions Code unless otherwise noted.
The contested jurisdiction/disposition hearing on the supplemental petition was heard simultaneously with the 12-month review hearing, at which the juvenile court denied mother’s requests and ordered a permanent plan of guardianship. The court set a permanency planning hearing date for January 29, 2008, as the date by which the guardianship could be finalized. Mother challenges the orders denying her requests by way of the instant writ petition but does not challenge the permanent plan or the termination of services. We deny the petition.
We presume the court misspoke and intended to say that guardianship is the preferred permanent plan, since scheduled a section 366.26 hearing for January 29, 2008.
BACKGROUND
The children, ages 14 and 12 respectively, were declared dependents on May 17, 2006. The petition alleged neglect (§ 300, subd. (b)), and the social worker’s reports indicated mother had been using drugs and acting weird. The children were placed in foster care until March 7, 2007, following an ex parte application for change of placement based on the children’s reports of being abused in the foster home and their desire to be close to their mother. At the contested six-month-review hearing, the court ordered the children placed with their mother on the condition that she undergo a psychological evaluation within 30 days. Mother appealed the requirement that she participate in the evaluation to our court in case No. E042460.
In the meantime, Mother refused to participate in the psychological evaluation, and appeared at the children’s school on several occasions causing disruptions, so the social worker filed a supplemental petition alleging that the prior disposition had been ineffective in alleviating the causes of the dependency. (§ 387.)
The mother and both children requested that the children be placed with the maternal grandmother in Florida, and grandmother was willing to care for them, so the social worker initiated proceedings under the Interstate Compact for the Placement of Children (ICPC), and the children were sent to Florida for an extended visit. The social worker’s report, prepared for the combined hearing on the supplemental petition and status review, recommended termination of services and legal guardianship.
Because of continuances, the 387 petition was heard along with the 12-month-review hearing which took place on November 6, 2007. The juvenile court denied the continuance and denied the motion to remove the social worker. The court also terminated services and “ordered” a permanent plan of guardianship. A permanency planning hearing was set for January 29, 2008, and designated as the likely date by which the permanent plan will be finalized.
DISCUSSION
Mother argues that the juvenile court erred in denying her request for a continuance of the contested 12-month-review hearing and the contested hearing on the supplemental petition, as well as the denial of her motion to recuse the social worker. She does not challenge the termination of services or the order selecting guardianship as the appropriate permanent plan. We disagree with her contentions and discuss each issue separately.
a. Denial of the continuance was proper where the motion was not timely and did not demonstrate good cause.
Mother sought a continuance of the combined contested jurisdiction/status review hearings to permit her to attend oral argument on her appeal from a prior interim order directing her to undergo a psychological evaluation. (E042460.) She claimed the ruling on the appeal was pivotal to the court’s determination of the merits of the supplemental petition. However, she did not file the motions until November 6, 2007, the date of the hearings she wished to continue.
We review the denial of a continuance for abuse of discretion. (In re Karla C. (2003) 113 Cal.App.4th 166, 179-180.) The court may continue any hearing beyond the time limit within which the hearing is required to be held, upon a showing of good cause. (§ 352, subd. (a).) To obtain a continuance, written notice must be filed and served on all parties at least two court days before the date set for the hearing unless the court finds good cause for hearing an oral motion. (Cal. Rules of Court, rule 5.550(a)(4).)
The court did not abuse its discretion. Although the mother’s refusal to participate in a psychological evaluation was one of the grounds alleged in the supplemental petition, it was not the only basis. We observe that the reason for the order conditioning placement of the children on mother’s mental health evaluation is of greater significance: the concern about her bizarre behavior and the affect on her ability to care for her children. The detention summary and jurisdiction reports relating to the supplemental petition documented mother’s repeated disruptions and bizarre behavior at the children’s school, her apparent drug use on several occasions, and the fact the children were repeatedly late for school, which establish several valid, independent reasons for the detention and supplemental petition.
Even if we were to conclude (which we do not) that the court should have continued the matter to await the outcome of the appeal, any error would be harmless because this court affirmed the trial court’s order requiring mother to submit to a psychological evaluation in case No. E042460 on November 20, 2007.
Because there was no good cause to continue and the motion was untimely, the juvenile court did not abuse its discretion in denying the continuance.
b. Denial of the motion to remove the social worker was proper.
Mother claims the filing of her civil lawsuit against the social worker created a conflict of interest requiring removal of the social worker. We disagree.
First, the statutory provisions authorizing a removal of a social worker for a conflict of interest requires proof by a preponderance of the evidence that the social worker has had sexual contact with any party, has had a relationship with an individual seeking to adopt a child who is subject of the pending proceeding, or the social worker has been convicted of perjury with regard to the dependency proceeding before the court. (§ 16513.5, subds. (a)-(c).) Although the statute provides these grounds are not exclusive, its terms make clear that the conflict of interest must interfere with the social worker’s ability to objectively carry out his or her duties. The inclusion of the three specified grounds provide insight into the types of relationships which would give rise to a conflict of interest, none of which are present in this case.
While mother claims the existence of a conflict of interest, that conflict relates to the fact mother herself filed a civil action against the social worker. Mother presented no evidence at the hearing to establish an actual conflict existed, by a preponderance of evidence. She merely speculated that a conflict might exist by virtue of her own conduct in filing the lawsuit. Thus, she did not establish an adequate ground for removal of the social worker.
There are no published decisions addressing the removal of a social worker for a conflict of interest so we look to analogous situations for guidance. In this respect, we find some guidance in published decisions relating to appointed counsel in criminal cases. There it has been held that the filing of a malpractice action against appointed counsel does not create a conflict of interest sufficient to warrant removal of the appointed attorney. (People v. Horton (1995) 11 Cal.4th 1068, 1104.) In fact, the authorities caution against the danger of permitting defendants to manufacture a conflict of interest by initiating a lawsuit for dilatory purposes. (People v. Hardy (1992) 2 Cal.4th 86, 138.) We agree with this advice and find it applicable to motions to remove a social worker in a dependency case.
More importantly, mother has not shown how any alleged conflict has affected her ability to reunify with her children, given that she does not challenge the finding that reasonable services were provided in this proceeding. Thus, any error would be harmless.
DISPOSITION
The petition is denied.
We concur: McKinster, Acting P. J., King, J.