Opinion
F076787
08-10-2018
In re D.H. et al., Persons Coming Under the Juvenile Court Law. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. ASHLEY I., Defendant and Appellant.
Julie E. Braden, under appointment by the Court of Appeal, for Defendant and Appellant. Mark L. Nations, County Counsel, and Bryan Walters, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. JD136760-00, JD136761-00)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. Lorna H. Brumfield, Judge. Julie E. Braden, under appointment by the Court of Appeal, for Defendant and Appellant. Mark L. Nations, County Counsel, and Bryan Walters, Deputy County Counsel, for Plaintiff and Respondent.
Before Smith, Acting P.J., Meehan, J. and DeSantos, J.
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Ashley I. (mother) appealed from the juvenile court's order terminating her parental rights (Welf. & Inst. Code, § 366.26) as to her now three-year-old son, D.H., and 18-month-old daughter, H.I. Mother failed to appear at the section 366.26 hearing and the court denied trial counsel's request for a continuance. After reviewing the juvenile court record, mother's court-appointed appellate counsel informed this court she could find no arguable issues to raise on mother's behalf. This court granted mother leave to personally file a letter setting forth a good cause showing that an arguable issue of reversible error exists. (In re Phoenix H. (2009) 47 Cal.4th 835, 844 (Phoenix H.).)
Statutory references are to the Welfare and Institutions Code.
Mother submitted a letter in which she explains why she was unable to appear at the section 366.26 hearing. She contends she intended to appear and present three certificates, which she attached to her letter, showing she completed addiction education, domestic violence support and parent-neglect training. She claims to have arranged transportation but the person who agreed to transport her contacted her at 7:00 a.m., on the morning of the hearing, stating he was unable to transport her because his mother had a stroke. Mother attached a letter from Jamal P., stating his mother suffered a stroke and heart attack, preventing him from transporting mother to the hearing. Finding good cause shown, we directed appellate counsel to file supplemental briefing and granted respondent leave to file as well. We conclude the juvenile court abused its discretion in denying trial counsel's request for a continuance and remand for the juvenile court to set a new section 366.26 hearing.
PROCEDURAL AND FACTUAL SUMMARY
In November 2016, the Kern County Department of Human Services (department) took then 5-day-old H.I. and 1-year-old D.H. into protective custody because mother tested positive for amphetamine at the time of H.I.'s birth and violated a restraining order by allowing the children's father, Ricky, to visit her in the hospital. The department placed the children together in foster care.
At the time, mother and Ricky had engaged in recent domestic violence. In March 2016, Ricky placed mother in a chokehold, pulled her to the ground and placed his knee on her throat to stop her breathing. He slammed her head on the ground several times and said he was going to stab her in the face until she was unrecognizable and kill her. She sustained a laceration on her forearm that was deep enough to expose fatty tissue. The following month, Ricky attempted to choke her and was arrested after a standoff with a SWAT team.
In January 2017, the juvenile court removed the children from parental custody and ordered the parents to participate in domestic violence and substance abuse counseling and submit to random drug testing. The court set the six-month review hearing for July 17, 2017.
Meanwhile, mother made very little progress in her services plan. She promptly enrolled in substance abuse counseling and drug testing but did not attend group sessions or 12-step meetings. She also failed to appear for drug tests, with one exception; she tested in April 2017 and the results were positive for methamphetamine. As a result, the staff terminated her from the program in June 2017 for failure to participate and recommended she pursue residential treatment. In March 2017, she enrolled in domestic violence counseling as a victim and by August, had completed 12 of the 20 domestic violence sessions and 15 of the 20 individual counseling sessions. She missed a significant number of visits.
In its report for the six-month review hearing, the department recommended the juvenile court terminate the parents' reunification services. As to mother, the department reported that the social worker met with her monthly to discuss her compliance and provide her bus passes. Mother told the social worker that her mental health problems and anxiety prevented her from complying. She said it was "overwhelming" and she had so many problems she forgot to call in to drug test. She also claimed to have untreated bipolar disorder and said she was treating her anxiety by taking prescription medication without a prescription. She acknowledged her substance abuse but declined inpatient drug treatment to assess her mental health and substance abuse needs. She also declined to drug test. The department also reported that on June 28, 2017, the children were removed from their foster care placement for the fifth time since being removed from mother's care the previous November. Each move was at the request of the foster parent(s).
On July 17, 2017, the juvenile court convened the six-month review hearing. Mother appeared with her attorney, who informed the court she requested copies of the department's service logs the week before and requested a continuance to give county counsel an opportunity to produce them. Minors' counsel and county counsel informed the court the children's caretakers gave a seven-day notice and the children were moved earlier in the month and separately placed. County counsel explained they were removed because of behavioral issues, which along with their medical needs made them difficult to place. The court continued the hearing until August 31.
Mother failed to appear at the August 31, 2017, hearing, scheduled for 8:30 a.m. She telephoned her attorney, stating she would be approximately 40 minutes late. However, when she had not arrived by 10:13 a.m., and her attorney was unable to reach her by telephone, the juvenile court proceeded to conduct the six-month review hearing, indicating it would deny a request for a continuance. Mother's attorney stated she had no evidence or argument, offering only that mother told her the day before that she had some progress reports indicating her participation in her services plan. Her attorney also objected to the court's proceeding without mother's presence and to terminating her reunification services. The court found mother made minimal progress and terminated reunification services. The court also set a section 366.26 hearing for December 28, 2017. Neither parent filed an extraordinary writ petition.
On October 13, 2017, the children were placed together in their seventh foster care home where they resided at the time of the section 366.26 hearing.
In its report for the hearing, the department recommended the juvenile court find the children were likely to be adopted because the caretakers were willing to adopt them both. The department anticipated, however, it would be difficult to find another family willing to adopt both children because of D.H.'s developmental delays. He had a 33 percent delay in fine motor, social and self-help skills and a 50 percent delay in his cognitive, receptive and expressive language skills.
The department also recommended the juvenile court terminate parental rights. Although mother was affectionate with the children and D.H. had a relationship with her, she missed a significant number of visits and the children looked to their caretakers to meet their daily needs. The department opined the benefit of adoption outweighed any detriment that would result from termination of parental rights. The children had no visiting relationship with Ricky, who was in state prison.
On December 28, 2017, mother's trial counsel appeared for the section 366.26 hearing before a judge pro tem sitting as the juvenile court and stated that mother was not present but was contesting the matter. She spoke to mother twice the week before and anticipated she would attend the hearing. She said mother lived in Mojave and was often late and requested a continuance. The court trailed the hearing until later in the day. By that afternoon, mother had still not appeared when the assigned judge recalled her case. Her attorney asked for a continuance and explained that she returned to her office over the lunch hour and checked her voice messages. Mother called her office at 7:30 a.m., and left five messages. Mother stated she was having transportation problems because she was not getting paid until the following evening and could not get to court. Counsel explained that the bus did not run that day from Mojave so that even if mother were able to get a bus pass, she had no ability to get there that day. County counsel objected to a continuance, pointing out that mother was notified of the hearing and usually had her own transportation. Minors' counsel concurred.
The juvenile court denied counsel's request for a continuance, finding no good cause. The court stated,
"I'm concerned because of the age of the children and what I've seen in the report about granting a continuance. Unless there's any further comment, I think then I will proceed based on the proper notice and the fact that she's known about it. It's not like she's sick or in the hospital or ... something like that. It's just vague, I couldn't get there today. It seems like she would have known that sometime before 7:30 this morning when she called her attorney. She would have at least known yesterday or the day before. But just calling in the morning and not showing up to me based on the circumstances is not good cause."
Mother's attorney objected to the department's recommendation to terminate parental rights, pointing out that the children had multiple placements and had only been in their current placement for about two months. In addition, mother had very good visits with the children and the children responded very well to her.
The juvenile court found clear and convincing evidence the children were likely to be adopted and terminated parental rights.
After reviewing the appellate record, we directed appellate counsel to brief the following issues:
"1. Did the juvenile court abuse its discretion in denying trial counsel's request to continue the Welfare and Institutions Code section 366.26 hearing on December 28, 2017, in light of trial counsel's representations that an emergency related to transportation prevented appellant from appearing and there was no bus transportation available that day from Mojave, her city of residence [Citation] and appellant's financial hardship.
"2. Did the juvenile court err in finding the children were likely to be adopted given evidence they had been moved six times within a year
of their initial removal (four of those times at the request of the foster parents) and the opinion of the Kern County Department of Human Services that it may be difficult to find another family willing to adopt both children because of D.H.'s developmental delays if the current foster family decided not to adopt."
Citations denote citations to the appellate record. --------
Appellate counsel and respondent filed supplemental briefing.
DISCUSSION
When the state seeks to curtail or terminate a parent's fundamental interest in the companionship, care, custody, and management of his or her children, the ensuing judicial proceedings must be "fundamentally fair." (Lassiter v. Department of Social Service (1981) 452 U.S. 18, 33.) In such proceedings, an opportunity to be heard " 'must be granted at a meaningful time and in a meaningful manner.' " (In re Joshua M. (1998) 66 Cal.App.4th 458, 471.)
The section 366.26 hearing is a critical late stage in a dependency proceeding. At the hearing, the focus shifts away from family reunification and toward the selection and implementation of a permanent plan for the child; adoption and termination of parental rights being the preferred outcome. (In re Marilyn H. (1993) 5 Cal.4th 295, 309; In re Ninfa S. (1998) 62 Cal.App.4th 808, 811.) If adoption is likely, the juvenile court is required to terminate parental rights, unless specified circumstances compel a finding that termination would be detrimental to the child. (§ 366.26, subd. (c)(1).)
The juvenile court may continue the section 366.26 hearing at the request of a parent for good cause, provided that any continuance is not contrary to the best interests of the child. (§ 352, subd. (a).) In considering the child's best 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." (Ibid.) A written motion on notice is ordinarily required, although the court may entertain an oral motion upon a showing of good cause for the failure to prepare a written motion. (In re B.C. (2011) 192 Cal.App.4th 129, 144.)
"The juvenile court has broad discretion in determining whether to grant a continuance. [Citations.] As a reviewing court, we can reverse an order denying a continuance 'only upon a showing of an abuse of discretion.' " (In re V.V. (2010) 188 Cal.App.4th 392, 399.)
Here, trial counsel asked the juvenile court to continue the hearing because mother wanted to contest the department's recommendation to terminate her parental rights. Counsel informed the court she had spoken to mother twice the week before and expected that she would appear. She pointed out that mother lived in Mojave and was often late. Counsel discovered during the lunch hour that mother had contacted her at approximately 7:30 that morning and left five voice messages, explaining she did not have the financial means to pay for transportation that day. Counsel also informed the court that bus transportation was not available that day from Mojave. In essence, she conveyed that mother wanted a contested hearing and for reasons beyond her control was unable to appear in person. It is counsel's request for a contested hearing that compels us to conclude the court's refusal to continue the hearing was an abuse of discretion. Section 366.26 grants a parent the right to present his or her case affecting his or her parental rights at the section 366.26 hearing. (In re Tamika T. (2002) 97 Cal.App.4th 1114, 1124; § 366.26, subd. (b) [the court "shall receive other evidence that the parties may present"].) Though that right is not unfettered, we believe it was appropriate under these circumstances.
The juvenile court found mother's failure to appear was insufficient good cause given her receipt of notice and absent an affirmative showing of extraordinary circumstances such as a serious illness. Appellate counsel and respondent take the same position in their supplemental briefing. We conclude the court abused its discretion.
As we have stated, the section 366.26 hearing represents a critical juncture in a dependency case and the stakes could not be any higher; the permanent severance of a parent's right to his or her child is the goal. Under the circumstances, a parent should be afforded the opportunity to challenge the state's evidence on the critical issues before the court. That said, we are mindful that "time is not an unlimited commodity in today's busy juvenile courts." (Ingrid E. v. Superior Court (1999) 75 Cal.App.4th 751, 760.) However, the juvenile court has ample means to control its proceedings. More importantly, the "risk of an erroneous deprivation of a parent's fundamental interest in his or her child outweighs [any] interest in an expeditious decision." (David B. v. Superior Court (2006) 140 Cal.App.4th 772, 780.)
Having concluded the juvenile court abused its discretion in denying counsel's request for a continuance, we reverse the juvenile court's order terminating mother's parental rights and remand for the juvenile court to set a contested section 366.26 hearing to consider the issues of adoptability of the children and the applicability of the exceptions to adoption. Since we reverse the order terminating mother's parental rights, we must also reverse the juvenile court's order terminating Ricky's parental rights. The California Rules of Court forbid, with limited exceptions, the termination of the rights of only one parent in a section 366.26 hearing. (Cal. Rules of Court, rule 5.725(a)(1).) Accordingly, it is generally held that when the section 366.26 termination of parental rights of one parent is reversed, the termination of the other parent's rights should be reversed as well. (In re A.L. (2010) 190 Cal.App.4th 75, 80.)
DISPOSITION
We reverse the juvenile court's adoptability finding and the orders terminating parental rights as to both parents. We remand for the juvenile court to set a contested Welfare and Institutions Code section 366.26 hearing to consider the issues of the adoptability of the children and the applicability of the exceptions to adoption.