Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for extraordinary writ. Super. Ct. Nos. J209163 & J209164 Marsha Slough, Judge.
Tim L. Guhin, for Petitioner.
No appearance for Respondent.
Ruth E. Stringer, County Counsel, and Sandra D. Baxter, Deputy County Counsel, for Real Party in Interest.
OPINION
McKINSTER, Acting P. J.
Petitioner Latoya C. (mother) has filed a petition for extraordinary writ under California Rules of Court, rule 8.452, seeking immediate review of an order of the juvenile court setting a dependency case for a selection and implementation hearing. (Welf. & Inst. Code, § 366.26.) We deny the writ petition.
FACTS AND PROCEDURAL HISTORY
In June 2006, mother took her infant child, D.J., to a babysitter, saying that she was going shopping at the mall. Mother told the babysitter that D.J. had a rash. When the babysitter changed D.J.’s diaper, she found that D.J.’s skin was raw, peeling and oozing pus. She took the child to the emergency room, where it was determined that D.J. had suffered second-degree burns from a scalding liquid. Both infant D.J. and toddler D.G. were taken into protective custody by the San Bernardino County Department of Children’s Services (DCS).
In early July 2006, DCS filed a dependency petition, alleging that the children came within Welfare and Institutions Code section 300, subdivisions (a), (b) and (e), because D.J. had sustained burns to her genital area while in mother’s custody and care. The petition further alleged that mother had a substance abuse problem which interfered with her ability to parent.
The juvenile court held a detention hearing on July 6, 2006. Mother had been arrested for felony child abuse (Pen. Code, § 273d, subd. (a)). The social worker initially recommended providing no reunification services to mother because of the injury inflicted upon D.J.
The court held bifurcated jurisdictional and dispositional hearings. As a result of mediation negotiations, mother agreed, in essence, to plead “no contest” to the allegations of the petition, and DCS would offer mother, and the children’s fathers, reunification services. Eventually, mother pleaded guilty to a misdemeanor offense of willful infliction of injury to a child (Pen. Code, § 273a).
After other proceedings, the juvenile court implemented the negotiated mediation plan, and DCS began providing reunification services. At the initial six-month review (Welf. & Inst. Code, § 366.21, subd. (e)), the social worker reported that mother had completed a parenting class. She was also attending individual counseling, but her counselor reported that her attitude was poor. Mother had enrolled in an outpatient drug program but was terminated for positive drug tests. Visitations between mother and the children were sometimes inappropriate. The social worker recommended extending services for another six months.
In anticipation of the twelve-month hearing (Welf. & Inst. Code, § 366.21, subd. (f)), the social worker reported that mother had enrolled in another drug treatment program, but was terminated for behavioral problems. Mother did seek help from a new program, however. Mother had completed anger management classes. Mother had also incurred a new arrest, however, for assault with a deadly weapon (Pen. Code, § 245.) Mother assaulted another woman with a knife, inflicting wounds that required stitches. Mother’s behavior in visitation had improved, but she continued to minimize her own responsibility in creating the conditions that led to the dependency.
At the request of mother’s counsel, the twelve-month review was continued for a contested hearing. DCS informed mother that it would recommend terminating reunification services. Pretrial settlement conferences were held in September and October 2007. The contested review hearing was set for October 25, 2007. DCS, the only party to file an at issue memorandum, estimated the trial would take one hour. The hearing was continued again to November 2007, at mother’s counsel’s request, so that he would have more time to prepare for trial.
In the interval, mother had pleaded no contest to the new assault charge. Despite mother’s plea, she minimized her responsibility for the conviction, continuing to claim that the victim had started the fight. The social worker reported that mother had been making progress in her drug treatment program, but had been terminated as a result of her latest incarceration.
On the day of the contested hearing, mother did not show up at the pretrial conference that morning. Mother’s counsel did not know what had happened, but confirmed the matter for trial that afternoon. As it turned out, mother was then in custody. Counsel asked for a few days’ continuance to secure mother’s attendance. The court denied the continuance and proceeded to the contested hearing. Mother’s counsel replied that he could not proceed without mother.
In mother’s absence, counsel had no affirmative evidence to present. The court found that mother had failed to complete her reunification plan, terminated services, and set the matter for a selection and implementation hearing under Welfare and Institutions Code section 366.26.
Mother contends the juvenile court erred in failing to grant the continuance to permit her attendance at the hearing and to present evidence.
ANALYSIS
I. The Court Did Not Abuse Its Discretion in Denying a Continuance
The denial of the request for a continuance is reversible only upon showing of an abuse of discretion. (In re Ninfa S. (1998) 62 Cal.App.4th 808, 811.) The court abuses its discretion if its decision is arbitrary, capricious or patently absurd, and results in a miscarriage of justice. (In re Karla C. (2003) 113 Cal.App.4th 166, 180.)
Here, mother failed to demonstrate any abuse of discretion. The trial was scheduled to take only one hour. The contested hearing was set with 60 days’ lead time, and continued another 30 days to allow mother’s counsel more time to prepare. Mother’s counsel had scheduled no other witnesses to be called at the hearing, however, and did not even cross-examine the social worker. Although he protested that he could not proceed without mother, to testify as to her “current situation,” and indicated that “by all account[s],” mother had maintained herself free of drug use for six months, he otherwise made no offer of proof as to the content of mother’s expected testimony. Even in her writ petition, mother offers not a hint as to what evidence she might have been able to provide, had she attended the twelve-month review hearing.
The only evidence that the court had before it, and there is no indication that any other evidence could or would have been proffered, was that mother had participated in some portions of her reunification plan, but she refused to take responsibility for her own actions with regard to the dependency or her new criminal charges. She displayed little or no insight into proper parenting of the children, she had been terminated from numerous drug rehabilitation programs, and she failed to benefit from counseling. Mother’s petition offers nothing to show that a miscarriage of justice occurred. There was no abuse of discretion, and certainly no prejudice, in the trial court’s ruling denying the continuance.
The authorities on which mother relies are inapposite. In re James Q. (2000) 81 Cal.App.4th 255, involved the juvenile court’s denial of the parent’s request for a contested review hearing. Here, mother was not denied her request for a contested review hearing. She was afforded the right to be heard at a critical stage, and she was represented at that hearing by counsel. David B. v. Superior Court (2006) 140 Cal.App.4th 772, is to the same effect. While the right to request and have scheduled a contested hearing may not be conditioned on an offer of proof, that did not happen here. The court did not use an offer of proof as a gatekeeping device to deny her request for a contested hearing. Rather, mother failed to show up for the contested hearing that was scheduled.
In re Jesusa V. (2004) 32 Cal.4th 588, likewise does not assist mother. There, the California Supreme Court held that Penal Code section 2625 did not require a prisoner-father’s attendance at dependency proceedings which determined his parental status. Holding a hearing to determine presumed father status in absence of an incarcerated biological father did not violate the father’s due process rights; the father was represented at the hearing by counsel, who had the opportunity to call witnesses, to cross-examine adverse witnesses, and to present the father’s own testimony in written form. All the same factors were present here: Mother was represented at the review hearing by counsel who had the opportunity to call any relevant witnesses, to cross-examine adverse witnesses, or to present a statement from mother. There was no due process violation.
DISPOSITION
The petition for extraordinary writ is denied.
We concur: RICHLI, J., KING, J.