Opinion
F062912 F063037
01-17-2012
In re CARLY F. et al., Persons Coming Under the Juvenile Court Law. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. RAYMOND F., Defendant and Appellant. In re CARLY F. et al., Persons Coming Under the Juvenile Court Law. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. I.G., Defendant and Appellant.
Robert MacLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant, Raymond F. Catherine C. Czar, under appointment by the Court of Appeal, for Defendant and Appellant, I.G. Theresa A. Goldner, County Counsel, and Arthur H. Curran III, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Kern Co. Sup. Ct. No. JD111779-01
& JD115231-01)
(Kern Co. Sup. Ct. No. JD111779-01,
JD115231-01, JD122804-00
& JD122805-00)
OPINION
THE COURT
Before Gomes, Acting P.J., Kane, J., and Poochigian, J.
APPEAL from orders of the Superior Court of Kern County. Jon E. Stuebbe, Judge.
Robert MacLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant, Raymond F.
Catherine C. Czar, under appointment by the Court of Appeal, for Defendant and Appellant, I.G.
Theresa A. Goldner, County Counsel, and Arthur H. Curran III, Deputy County Counsel, for Plaintiff and Respondent.
Parents, I.G. (mother) and Raymond F. (father) appeal from 2011 juvenile court orders terminating parental rights (Welf. & Inst. Code, § 366.26) to the couple's four-year-old daughter and three-year-old son. Mother also appeals from similar termination orders as to her two-year-old twins. At the termination hearing, mother's counsel asked the court to consider putting the matter over for a contested hearing. The attorney claimed mother had certificates he wanted to review. The court denied the request.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Mother contends the juvenile court's denial violated her due process right to present a defense at the termination hearing. Alternatively, mother argues her trial counsel was ineffective for not raising a parental relationship issue as part of his request. Father joins in mother's arguments. On review, we disagree with each of these claims and will affirm.
PROCEDURAL AND FACTUAL HISTORY
Mother has a history of mental health and substance abuse issues, among others, which has interfered with her ability to parent her many children. In 2005, her five oldest children were adjudged juvenile dependents due to substance abuse and domestic violence issues. She eventually lost her parental rights to each of those children. During the dependency of her five oldest children and as mother struggled with her substance abuse problem, she gave birth to daughter Carly, the eldest of the four children who are the subject of this appeal.
Carly was detained at birth and spent the following 14 months removed from mother's custody. During Carly's dependency, mother gave birth to son Adam, who was also adjudged a juvenile dependent but remained in mother's custody, as she appeared to make progress. Carly was eventually placed in mother's care as well. By the fall of 2008, the juvenile court terminated its dependency jurisdiction over both Carly and Adam.
In the spring of 2009, mother again neglected Carly and Adam, resulting in their detention and the commencement of new dependency proceedings on their behalf. Mother had continued to use illegal controlled substances, despite previously completing court-ordered substance abuse treatment. Also, domestic violence remained an issue for her. The juvenile court adjudged Carly and Adam dependent children, but this time removed both of them from parental custody and ordered reunification services for mother. Among those services were mental health counseling and medication management.
On the figurative eve of a December 2009 status review hearing, mother gave birth to twins. Respondent Kern County Department of Human Services (department) initiated dependency proceedings for the twins and the juvenile court adjudged them dependent children. However, the court permitted mother to retain custody of the twins subject to family maintenance services. The court, meanwhile, continued its out-of-home placement order for Carly and Adam. Then, in June 2010, the juvenile court returned the two older children to mother's custody subject to family maintenance services.
Mother soon relapsed and twice tested positive for drugs. She also stopped meeting regularly with her mental health therapist. These events led to the detention of all four children and the filing of a supplemental petition (§ 387) as to each child.
The juvenile court sustained the supplemental petitions and, in December 2010, removed all four children from parental custody. Having also denied mother reunification services, the court set the children's cases for a combined section 366.26 hearing to select and implement permanent plans for each of them.
In anticipation of the section 366.26 hearing, the department prepared a report for each child's case, collectively recommending that the juvenile court find the children likely to be adopted and terminate parental rights. As the likelihood of the children's adoption is undisputed on appeal, we do not summarize the department's evidence in this respect.
The department also reported on the contact between mother and the children. The court had ordered one-hour weekly visits, which mother apparently never missed. The children were reportedly happy to see her and sad to see her go. It appeared to the department that mother and the children had a good visiting relationship. However, the children's relationship with mother was not significant enough that they would suffer severe emotional trauma if rights were terminated. The benefits of permanency and adoption also outweighed any possible detriment resulting from termination of parental rights.
Although the juvenile court originally scheduled the section 366.26 hearing for an April 2011 date, it had to continue the hearing to July in order to perfect notice as to one of the fathers. At the July hearing, the court asked how the parties wished to proceed. Counsel for the department submitted on the department's report and recommendation. Mother's attorney advised that mother objected to the recommendation. He added:
"We would ask the Court to consider putting this over for a contested hearing. Mom tells me that she has completed some programs and provided the certificates to the social worker and not included in the report. She didn't provide me with a copy, so I haven't been able to have that before me. But we'd like an opportunity to see those certificates and make a review of the things that she has done."
The court observed there was no pending section 388 petition for modification. It then declined the request for a contested hearing, noting it had already continued the section 366.26 hearing once. The court added, "With that in mind, [mother's attorney], do you wish to address the substance of it?"
Mother's attorney replied "we would simply object to the recommendation. Submit."
The court in turn found clear and convincing evidence that the children were likely to be adopted and terminated parental rights.
DISCUSSION
I. No Due Process Violation
Mother contends the juvenile court violated her due process right to present a defense at the termination hearing by denying her attorney's request for a contested hearing. She claims the court should have first requested an offer of proof from counsel. We disagree with mother's reading of the record. There was no due process violation. The court simply denied her attorney's request for a continuance.
Mother's counsel specifically asked the court to "consider putting this over for a contested hearing." In other words, her attorney requested what would have amounted to a second continuance of the section 366.26 hearing. He stated he wanted an opportunity to review certificates mother purportedly received and the things she claimed to have done. Thus, he did not know as yet whether he had the requisite information to mount a defense. The juvenile court did not abuse its discretion by denying the request in that counsel did not satisfy the requirements for a continuance pursuant to section 352, subdivision (a).
Section 352, subdivision (a) authorizes a juvenile court to continue any hearing provided a continuance would not be contrary to the child's interest and there is good cause to support the continuance.
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In addition, the denial of a request for more time does not necessarily violate due process even if the party fails to offer evidence. (People v. Howard (1992) 1 Cal.4th 1132, 1172 (Howard), citing Ungar v. Sarafite (1964) 376 U.S. 575, 589.) Instead, the answer to such a due process claim is found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied. (Howard, at p. 1172.)
Here, mother's counsel did not show that he had been diligent in investigating the issue of any recent efforts on mother's part since the prior continuance of the case or that the certificates could amount to something material and helpful to mother's defense. Indeed, as the juvenile court pointed out, there was no section 388 modification petition on file alleging she was making any effort to overcome her long-term problems so as to constitute changed circumstances. Also, mother overlooks her history of false starts and relapses, which undermined any possible claim that circumstances had changed. Thus, given the deference necessarily due a state trial judge in regard to the denial or granting of continuances, the juvenile court's ruling does not support a claim of error under the federal Constitution. (See Ungar v. Sarafite, supra, 376 U.S. at p. 591.)
II. No Ineffective Assistance of Counsel
Alternatively, mother contends her attorney was ineffective by not raising a beneficial parental relationship issue (§ 366.26, subd. (c)(1)(B)(i)) as part of his request for putting the matter over for a contested hearing. Again, we disagree. In order to prevail on a claim of ineffectiveness of counsel, an appellant must show that, first, counsel's representation fell below an objective standard of reasonableness under prevailing professional norms and, second, there is a reasonable probability that, but for counsel's unprofessional error, the result of the proceeding would have been different. (See e.g. People v. Diaz (1992) 3 Cal.4th 495, 557.) Mother can show neither on this record.
At best, the record revealed that notwithstanding her significant problems and off-again, on-again inability to parent her children, mother maintained one-hour weekly, supervised visits with them. They were reportedly happy to see her and sad to see her go. Mother and the children appeared to have a good visiting relationship. However, mother would have had to demonstrate far more than this for a finding that termination would be detrimental to the children. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 953-954 [A parent must demonstrate more than pleasant visits or loving contact].) For the beneficial relationship exception to apply, a parent must be able to show the parent-child relationship would promote the well-being of a child to such a degree that it outweighs the well-being the child would gain in a permanent home with new, adoptive parents. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
Consequently, we are not persuaded on this record that the representation by mother's counsel fell below an objective standard of reasonableness, much less that the result in this case would have been different had counsel raised the beneficial parental relationship issue (§ 366.26, subd. (c)(1)(B)(i)) as part of his request for putting the matter over for a contested hearing. As a final note, we observe the juvenile court's denial of counsel's continuance request for purposes of investigating the merits of a possible section 388 claim did not preclude him from calling mother as a witness on the beneficial parental relationship issue, had that been a viable claim to make. However, counsel had no evidence to present in this regard and submitted the matter.
DISPOSITION
The orders terminating parental rights are affirmed.