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In re D.B.

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT
Jan 12, 2012
No. B234780 (Cal. Ct. App. Jan. 12, 2012)

Opinion

B234780

01-12-2012

In re D.B. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. D.B., Sr., Defendant and Appellant.

Jack A. Love, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Jeanette Cauble, Deputy County Counsel, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. C43480)

APPEAL from an order of the Superior Court of Los Angeles County. David R. Fields, Judge. Affirmed.

Jack A. Love, under appointment by the Court of Appeal, for Defendant and Appellant.

Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Jeanette Cauble, Deputy County Counsel, for Plaintiff and Respondent.

This case has come before us on appeal for a second time. On the first occasion, the attorneys for the Los Angeles County Department of Children and Family Services (department) and for appellant D.B., Sr. (father) stipulated to a reversal of an order terminating parental rights, and we remanded the case to the trial court. After a further disposition hearing, father was granted reunification services. He contends now that the trial court abused its discretion when it denied at that hearing father's motion for a continuance of the disposition hearing so that father, who was in prison, could be brought to court. We find no error and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

We recite only briefly the underlying facts that brought this matter to the attention of the juvenile court, as most of the information is not germane to the appellate issues. On September 3, 2009, the minor, D.B., Jr., and three half-siblings were detained from the care of their parents due to alleged general neglect. Allegations as to the minor also included physical abuse and failure to provide. On November 4, 2009, the petition was sustained as to the minor under Welfare and Institutions Code section 300, subdivisions (a)(1), (b)(1) - (b)(4) and (g)(1). The sustained allegations generally dealt with a history of domestic violence between the parents, substance abuse by both parents, and father's drug convictions, all with attendant risks to the minor's physical and emotional health. The court also found that father, whose whereabouts were unknown, had failed to provide minor with the necessities of life. Minor was declared a dependent of the court. Both parents were denied reunification services. (Mother is not a party to this appeal.)

All further undesignated statutory references are to the Welfare and Institutions Code.

Five months after the original disposition hearing, father was in a residential drug treatment program. He filed a petition under Welfare and Institutions Code section 388 seeking reunification services. On October 21, 2010, the juvenile court denied the petition and terminated father's parental rights. After father appealed that ruling (case No. B228355), the parties stipulated to a reversal of the orders denying the Welfare and Institutions Code section 388 petition and terminating parental rights. Pursuant to that stipulation we reversed both orders. We also remanded the case to the juvenile court for a new disposition hearing under Welfare and Institution section 361.5, subdivision (d). (See Code Civ. Proc., § 128, subd. (a)(8) [stipulated reversals].)

On November 22, 2011, pursuant to the department's request we took judicial notice of the record in case No. B228355.

Following remand, a new hearing was set for June 6, 2011. On May 10, 2011, the department sent notice of that hearing to father, who was incarcerated. On May 15, 2011, in response to the notice, father sent a handwritten note to the department's social worker handling the case. He reported that he was in custody for a parole violation and his expected release date was October 4, 2011. He also wrote: "Please give me a chance to get my son . . . . I am willing to do whatever it takes for the rest of my life. He is my only son." He went on to state that he would be willing to participate in domestic violence, parenting, and drug classes. At the end of the letter, father wrote: "As for this hearing, I don't need to be present but I am writing the court as well as you about my hopes and wishes." The letter was attached to the department's disposition report for the hearing which eventually took place on June 9, 2011. Also attached were materials showing that father had completed over 400 hours of drug and other counseling programs.

Father was not present at the June 9 hearing, and the department advised the court that his whereabouts had become known too late for a statewide removal order. (Father was incarcerated in North Kern County State Prison.) The dependency court concluded that at this review hearing father did not have a right to be personally present. Father's counsel asked for a continuance to allow father to be brought to court. The court denied the continuance and proceeded with the hearing. Father was granted reunification services, which included drug testing, a drug program if tests were positive, and parenting and individual counseling to address domestic violence and other issues. The court also made visitation orders. A review hearing was set for December 8, 2011. Father filed a timely notice of appeal.

DISCUSSION

Father's sole issue on appeal is that the juvenile court improperly denied his counsel's request for a continuance so that the father could be present at the section 361.5 hearing. Woven through this argument and the department's response is whether father had a right to be present at the hearing of June 9. We briefly discuss that issue first.

1. Father Did Not Have the Right to Attend the June 9, 2011 Hearing

By statute, an incarcerated parent who is a party to a dependency proceeding has the right to be personally present at certain court hearings. Penal Code section 2625 provides specific guarantees. Subdivision (b) requires the court to give notice to an incarcerated parent for certain Welfare and Institutions Code section 300 adjudication hearings and for a hearing for termination of parental rights under Welfare and Institutions Code section 366.26. Under subdivision (c), if the parent requests to be present at either of these hearings, the trial court must issue a temporary removal order arranging for transportation to juvenile court. For all other juvenile proceedings, subdivision (e) provides that the court in its discretion may order removal of the incarcerated parent. (See also Pen. Code, § 2625, subd. (g) [video and teleconferencing].) "Thus, only in proceedings to adjudicate a child of a prisoner a dependent of the juvenile court or to terminate parental rights must a court order production of a prisoner for the hearing. For all other proceedings, the trial court has discretion whether to order removal from the institution of a prisoner parent." (In re Marcos G. (2010) 182 Cal.App.4th 369, 386, citing In re Jesusa V. (2004) 32 Cal.4th 588, 599.) The trial court correctly advised the parties that the father did not have the right to be personally present at the June 9, 2011 proceeding, which was which neither an adjudication nor a termination-of-parental-rights hearing.

2. The Court Acted Within Its Discretion in Denying a Continuance of the Hearing

Father did not argue below and does not suggest here that he had either a statutory or constitutional right to be present at the hearing. Instead, midway through the June 9 hearing, father's counsel asked the court to exercise its discretion to continue the hearing and order father brought to court. The court, in implied reference to Penal Code section 2625, subdivision (e), acknowledged that it had discretion to issue a removal order but elected not to do so. The court expressly stated that it was offering father reunification services, which is what father wanted, and thus father's presence would not change matters.

Father argues now that the court abused its discretion in not granting a continuance so he could attend the hearing. We do not agree.

Under section 352, subdivision (a), and for good cause, the dependency court may grant a continuance of any dependency hearing if doing so is not contrary to the interests of the child. (See In re B.C. (2011) 192 Cal.App.4th 129.) "In considering the minor's interests, the court shall 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).) The statute requires a written motion with two days' notice. (Ibid.) Continuances "should be difficult to obtain," (Jeff M. v. Superior Court (1997) 56 Cal.App.4th 1238, 1242), and a dependency court's decision to grant or deny a continuance is reviewed for abuse of discretion. (In re Elijah V. (2005) 127 Cal.App.4th 576, 585.) The child's interests are so paramount that it is an abuse of discretion to grant a continuance that is not in the child's best interests. (B.C. at p. 146.)

There is nothing in the record that suggests father's counsel filed a written motion to continue. On appeal, the parties do not discuss the point, nor do we address it.

Father has never attempted to explain how it was in the minor's best interests for the court to grant a continuance. In the dependency court, father's counsel first stated that he wanted the continuance in order to have father brought out to court. Later he said it was for the purpose of allowing counsel and the court to talk to father. At no time did he address the minor's interests. There was no doubt that the court was going to order reunification services. The court so stated on several occasions at the hearing before the final order for services was made. We do not have a situation in which reunification services were going to be denied, which arguably would justify a continuance to allow father to address why reunification was in the minor's best interests. The reunification services given here were fairly standard and in keeping with what father said he would do in his May 15, 2011 letter and what he had been doing for several months. Counsel did not offer what father might have said if he were in court or argue that the reunification services were inappropriate.

Even assuming, father's participation might have been helpful in a general sense, father does not address the minor's best interests. Delaying the hearing would have delayed the start of reunification services, and therefore the opportunity for father and minor to reunify. Although father was still in custody, the court and counsel discussed at the hearing how best to arrange visitation with father in prison. And the court also reminded counsel for the department of the obligation to provide reunification services reasonable for an incarcerated parent. The minor had been in foster care for nearly two years. Reunification services would delay any effort to place minor permanently with either an adoptive home or father. A continuance would only exacerbate the delay.

On appeal, father argues that it would have been helpful for him to be brought out to court to discuss with counsel whether the specific reunification services being considered by the dependency court were available in the prison where he was housed. We observe that father did not make the point in the trial court, and it is forfeited. Father does not discuss on appeal whether the reunification services ordered by the court are or are not available in prison so the point is waived for that additional reason.

In light of the record before the dependency court, including father's express statement that he did not need to be at the hearing, and the failure of counsel to articulate how a continuance would be in minor's best interest, we hold there was no abuse of discretion.

DISPOSITION

The dependency court's order denying father's request for a continuance is affirmed.

RUBIN, J. WE CONCUR:

BIGELOW, P. J.

GRIMES, J.


Summaries of

In re D.B.

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT
Jan 12, 2012
No. B234780 (Cal. Ct. App. Jan. 12, 2012)
Case details for

In re D.B.

Case Details

Full title:In re D.B. et al., Persons Coming Under the Juvenile Court Law. LOS…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT

Date published: Jan 12, 2012

Citations

No. B234780 (Cal. Ct. App. Jan. 12, 2012)