Opinion
F052464
5-24-2007
J. K., Petitioner, v. THE SUPERIOR COURT OF KERN COUNTY, Respondent, KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Real Party In Interest.
The Law Offices of Benjamin R. Greene and Benjamin R. Greene, for Petitioner. No appearance for Respondent. B.C. Barmann, Sr., County Counsel, and Mark L. Nations, Deputy County Counsel, for Real Party In Interest.
NOT TO BE PUBLISHED
OPINION
THE COURT
Before Wiseman, Acting P.J., Cornell, J., and Dawson, J.
In December 2005, petitioner J. K. was arrested and charged with two counts of violation of Penal Code section 288, subdivision (a). The alleged victims were one or more of his adoptive children. He posted bail the same day of his arrest. The record indicates the children had been placed in protective custody the previous day.
A petition was filed alleging petitioner fondled the genitals of two of his children, W. and C. It was further alleged he molested a nonrelated child between 1988 and 1990, and another nonrelated child in 2005. (Welf. & Inst. Code, § 300, subd. (d).) In February 2006, the petition was amended alleging serious emotional damage, the specific allegations of which are not relevant to the issues pending in the present case. (§ 300, subd. (c).) Additional factual allegations were also set forth in the petition relating to the subdivision (d) allegation.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
At the detention hearing, the children were ordered detained, and at the contested disposition/jurisdictional hearing, the children were found to be persons described in section 300, subdivisions (c) and (d), and the subdivision (c)(1) and subdivision (d)(1) allegations were found true. A contested dispositional hearing was held and the children were adjudged dependent children of the court. Reunification services were not provided to petitioner because there was clear and convincing evidence they came within the provisions of section 361.5, subdivision (b)(6).
On January 30, 2007, counsel for the minor C., filed a request pursuant to section 388. The caregiver wanted legal guardianship before adoption because the child had allegedly been abused by the prior adoptive parent.
An ex parte hearing was set for January 31, 2007. Counsel for petitioner did not appear, but instead arranged for a special appearance by an attorney who stated retained counsel was ill. The matter was continued.
On February 7, 2007, the date for the continued ex parte hearing, counsel for petitioner was again not present. The matter was continued.
On February 23, 2007, the date upon which the ex parte hearing was to be held, counsel for petitioner again was not present. On its own motion, the court issued an order to show cause regarding sanctions for failure to appear by petitioners counsel. The ex parte hearing pursuant to section 388 was set for March 9, 2007.
At the hearing on March 9, 2007, the court took up the matter of sanctions first. Counsel for petitioner explained he did not regularly practice in "this Court." Consequently, he did not realize the ex parte notice was notice of a hearing requiring his presence. He also believed that, because petitioner was being represented by someone else in his criminal proceedings, this new attorney would also be representing petitioner in the section 388 proceedings. Counsel conceded no substitution of attorney had been filed. After additional discussion, the court imposed sanctions in the amount of $250.
Counsel for petitioner asked for, and received, time to speak with petitioner. Petitioners counsel next asked, at petitioners request, for a continuance. The ground for the continuance was that petitioner had a new trial motion pending in the criminal matter and the hearing on the motion was scheduled for April 4, 2007. Petitioner thought the outcome of the motion could have an impact on the courts decision in the section 388 proceedings. The court responded that petitioner could make the same arguments at a section 366.26 hearing. Petitioners counsel replied, "perhaps he could. If the Court thinks thats going to address his concerns, then Ill submit it to the court."
The court granted the section 388 request for modification. A section 366.26 hearing was ordered for June 18, 2007.
On March 16, 2007, petitioner filed a notice of intent to file a writ petition. The petition was filed on April 19, 2007. A response was filed on May 7, 2007.
DISCUSSION
Petitioner makes two claims in this petition. First, he argues the court erred in denying the request for a continuance. Second, he argues he received ineffective assistance of trial counsel and is therefore entitled to a new hearing on the issue of termination of reunification services.
A continuance will only be granted upon a showing of good cause, and will not be granted if the continuance is not in the best interest of the minor. (§ 352; In re Ninfa S. (1998) 62 Cal.App.4th 808, 810.) In fact, "[c]ontinuances are discouraged (Jeff M. v. Superior Court (1997) 56 Cal.App.4th 1238, 1242 ) and we reverse an order denying a continuance only on a showing of an abuse of discretion ( In re Gerald J. (1991) 1 Cal.App.4th 1180, 1187 )." (In re Ninfa S., supra, 62 Cal.App.4th at pp. 810-811.)
In the present case, there is no evidence of an abuse of discretion on the part of the court in denying the motion to continue the ex parte hearing. In fact, we do not even need to address the issue of abuse of discretion because counsel for petitioner had no argument with the courts belief that petitioner could raise his concerns at the section 366.26 hearing. The matter had already been continued several times, albeit due to the absence of petitioners counsel, but this delay was certainly on the courts mind when denying the request, especially in light of the fact the matter being continued was one in which a caretaker was moving in the direction of guardianship with the ultimate goal of adoption.
Petitioner next claims he was denied effective assistance of counsel and is therefore "entitled to a new hearing on the issue of termination of reunification services." To establish counsel was ineffective, petitioner must demonstrate counsel did not act in a manner expected of reasonably competent attorneys and the error was prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 686.) Assuming, for purposes of argument only, the representation petitioner received from counsel was deficient, petitioner has failed to demonstrate prejudice. (See People v. Kaurish (1990) 52 Cal.3d 648, 689.) Petitioners reunification services had been terminated when it was found the minors came within section 361.5, subdivision (b)(6), a finding that occurred well before the hearing on March 9, 2007. Indeed, on the record because us, this finding occurred in mid-2006, prior to any of the continuances in this case being granted due to counsels failure to appear. Petitioner has provided no argument or analysis on how he could have reopened the reunification issue this late in the proceedings at a continued ex parte hearing on the issue of guardianship.
DISPOSITION
The petition for extraordinary writ is denied. The opinion is final forthwith as to this court.