Opinion
E053773 Super.Ct.No. J199747 Super.Ct.No. J199748
12-08-2011
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, and Kristina M. Robb, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of San Bernardino County. Gregory S. Tavill, Judge. Affirmed.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant.
Jean-Rene Basle, County Counsel, and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.
J.D. (father) appeals from the juvenile court's order terminating his parental rights to his two sons I.D. and J.D. (children) at the Welfare and Institutions Code, section 366.26, hearing held on May 23, 2011. Specifically, father argues: 1) the juvenile court abused its discretion when it denied his request to continue the hearing; and 2) there was insufficient evidence to support a new finding that he was an unfit parent at the time of the hearing, and such evidence is required prior to terminating parental rights. As discussed below, the court did not abuse its discretion when it declined to continue the already-six-months-late hearing for an additional six weeks because of father's surgery. In addition, the court was not required to make a new finding of unfitness. Thus, the order terminating father's parental rights is affirmed.
At the Welfare and Institutions Code, section 366.26 hearing held on May 23, 2011, I.D. was nearly 11 years old and J.D. was a day shy of 8 years old.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTS AND PROCEDURE
1. 2005 to 2007 - Detention, Placement, Permanent Plan of Guardianship The children and their two older half-brothers were detained on February 9, 2005, when their mother was arrested at her home for having outstanding warrants, being under the influence, and possessing drug paraphernalia. The police had been called to the home after complaints of a loud party. Law enforcement then called the San Bernardino County Children and Family Services (CFS) to the home when the children were found to be living in a filthy, "typical dope house." The home was infested with rodents and strewn with trash, the kitchen was extremely filthy and lacking in minimal food, drug paraphernalia was in reach of the children, and the pool in the back yard was half full and green from algae. The children told CFS that lots of people stay at the home and lock themselves in the master bedroom to "smoke marijuana and other stuff." The children were transported away from the home and placed together in foster care. Father was at that time in state prison for petty theft until May 2, 2005, and so was unable to care for the children.
The juvenile court granted visitation and reunification services to mother and father at the jurisdiction and disposition hearings held on March 14 and 15, 2005. The court placed the children with the maternal grandfather and his wife. At that point I.D. was five years old and J.D. was two. In June 2005, father told the social worker that he was moving to Idaho and would not be participating in the case plan. Father stated he wanted the children to be reunited with mother. Thereafter father no longer communicated with CFS. He returned to California in 2006, but was incarcerated on a parole violation.
The children and their two older half-brothers were placed together with the grandparents. The oldest half-brother later moved from this home to live with his maternal grandmother, who was divorced from the maternal grandfather. The other half-brother remained in placement with I.D. and J.D. and ultimately shared the same permanent plan of legal guardianship and later adoption by the maternal grandfather and his wife. However, only I.D. and J.D. are the subjects of this appeal by father.
On January 9, 2007, the juvenile court terminated reunification services to both parents. At the section 366.26 hearing eventually held on September 5, 2007, the juvenile court chose legal guardianship with the maternal grandfather and his wife as the children's permanent plan. The parents were allowed visitation at least once per month, but the visits were not to be supervised by the maternal grandfather's wife because of hostility between her and the parents. The dependency was terminated.
2. 2010 to Present - Section 388 Petitions and Permanent Plan of Adoption
On February 26, 2010, the maternal grandparents filed a section 388 petition. They asked the court to change its order of September 5, 2007, from legal guardianship to adoption. The juvenile court set a hearing on the petition. In response to the petition, CFS filed an interim review report on April 1, 2010, recommending the court grant the petition. CFS interviewed the children regarding their feelings about the proposed adoption, the guardianship and their parents. I.D. and J.D. "simply shrugged their shoulders," which the social worker interpreted as shyness. I.D. and J.D. did state that they loved their grandparents and their mother. They did not mention father. The older half-brother stated that the adoption was "the best for me and my brothers. I don't see my mom getting it together." The children had been living with the grandparents for the past five years and were doing well at school and at home. At that time, father was living in Idaho and would be on probation until 2016 for a forgery conviction. He opposed the adoption and was hoping at some point to regain custody of the children. Mother lived near the children, but had unstable living arrangements, no job, and reportedly was still using drugs. Mother strongly opposed the adoption and wanted the children to live with their father. The grandparents stated that they had hoped mother and father would be able to regain custody of the children, but after five years believed it would not happen. The grandfather stated he received veteran's benefits that could help the children with college expenses, but only if they were formally adopted. The children had some contact with mother, but very little with father over the previous five years.
Father attended the hearing on the petition on April 6, 2010, but mother did not. Father set the matter contested and mother joined. Father stated he would file his own section 388 petition. Minor's counsel stated the children were in favor of adoption. A contested hearing on both petitions was set.
Father filed his section 388 petition on April 26, 2010. Father asked the court to return the children to his custody or, in the alternative, order reunification services and liberalized visits. Father provided certificates of completion for various parenting and cognitive programs and a construction course; three receipts from 2008 and 2009 indicating toys and clothing purchased for the children; and letters of reference from his employer, brother, sister and girlfriend indicated that father was doing well and had changed.
In response to father's petition, CFS filed an interim review report on May 4, 2010, recommending the court deny the petition. The children, now ages 10 and 7, stated they "hardly know their father and have seen him for the first time at the last Court hearing of April 6, 2010. They report the visit was good and that it was fun being with him but stated over and over again they do not know him in any intimate way." The children stated they would be interested in visiting with their father, but wanted to remain in the care of their grandparents. Father stated that he believed he could have his probation transferred to California, although he had a job and was staying out of trouble in Idaho. Father was interested in traveling to California once monthly to begin visits with the children to deepen their relationship. Father was in a six-year relationship with his current girlfriend and the letters indicated he acts as a father figure to her children. Father expressed concern that the maternal grandfather's wife would not allow him to visit the children if the grandfather ever passed away. Mother stated that she wanted the children to be with father. Both parents mistrusted the maternal grandfather's wife and believed she would end their visits with the children if she could. The social worker concluded that the children "are settled, happy and well cared for by the grandparents and that stability would not be realized if they were under the care of either parent."
A contested hearing as to both petitions was held on June 8, 2010. Father attended. He withdrew his section 388 petition as part of an agreement allowing him unsupervised day visits at least once per month and weekly unsupervised telephone calls. Father was contemplating moving to California, at which time CFS could liberalize visitation by approval packet. The court granted the section 388 petition filed by the grandparents and set a section 366.26 hearing for October 6, 2010.
On October 6, 2010, father was not present. The hearing was continued at the request of county counsel so CFS could resolve some noticing issues regarding the deceased father of the children's half-brother. On January 4, 2011, father was not present. Again the hearing was continued at county counsel's request, this time to notify the grandparents of the financial implications of new legislation. On March 3, 2011, father was not present. Father's counsel set the matter contested and stated she had not been able to discuss with father the CFS recommendation for adoption. At the pre-trial settlement conference on March 24, 2011, father did not attend. His counsel requested a continuance because father had been in an automobile accident in November and was waiting for his surgery to be scheduled through the worker's compensation system. The court found good cause to continue the hearing to May 19. At pre-trial settlement conferences held on April 14 and 28, 2011, father's counsel stated father did not yet have a date for surgery but wanted to appear at the hearing and did not want to lose his parental rights. The juvenile court kept the May 23 date for the section 366.26 hearing, but told counsel it would consider a continuance at that time "If there's good cause to continue it, the proper form . . . ." The court suggested father could appear by telephone if the court did not find good cause to continue the hearing.
Father was not present at the section 366.26 hearing when it was held on May 23, 2011. Father's counsel provided the court with a statement from father's doctor that he had undergone hip surgery on May 20 and would not be able to place weight on the hip for at least six weeks, or until around July 1, 2011. The court noted that the hearing had been initially scheduled six months prior. Father's counsel pointed out that county counsel had asked for and received two 60-day continuances to comply with noticing requirements and that father had only asked for continuances over the last 60 days. County counsel and minor's counsel objected to a continuance because the children clearly desired to be adopted by their grandparents and had waited long enough. The court asked if father was willing to appear by telephone, but father's counsel indicated that he had spoken to father and father "felt that he would not be able to speak properly on the phone." The court denied the continuance, reasoning that the children had been waiting a long time, it was in their best interest to move ahead and, given the children's
"clear and unequivocal" desire to be adopted, the court was not willing to further delay the hearing.
The court heard argument from all parties, including father's counsel. The court then ruled that it would be in the best interest of the children to be adopted. The court terminated father and mother's parental rights and set a permanent plan of adoption for the children. This appeal followed.
DISCUSSION
1. Denial of Continuance
Father first argues the juvenile court prejudicially abused its discretion when it denied his request to continue the section 366.26 hearing until he had recovered enough from hip surgery to attend and testify in person.
The statute allows a juvenile court to continue a hearing "only upon a showing of good cause." (§ 352) The statute further provides that "no continuance shall be granted that is contrary to the interest of the minor." (Ibid.) In considering the interest of the minor, the court is to give "substantial weight" to three factors. (Ibid.; In re Dolly A. (1986) 177 Cal.App.3d 195, 199.) These are: "[1] minor's need for prompt resolution of his or her custody status, [2] the need to provide children with stable environments, and [3] the damage to a minor of prolonged temporary placements." (§ 352.) Courts have interpreted the policy that continuances may be granted for good cause and only for the time shown to be necessary "to be an express discouragement of continuances." (In re Karla C. (2003) 113 Cal.App.4th 166, 179.)
An appellate court may not reverse an order denying a request for a continuance absent a showing of an abuse of discretion. (In re C.P. (1985) 165 Cal.App.3d 270, 274.)
Here, father arguably provided good cause for continuing the section 366.26 hearing—he had just undergone hip surgery and was unable to travel for a minimum of six weeks. However, and we find this key, this "good cause" argument is undercut by father's own decision to decline the juvenile court's offer to have him appear and testify telephonically. While we sympathize that father may have thought he would not be able to testify as effectively by telephone, this would have been preferable to postponing permanency for the children for an additional period of at least six weeks. We note that this six-week period, which could conceivably stretch into a longer timeframe depending on father's recovery and ability to travel, would have followed two 60-day continuances at county counsel's request and a total of about 60 days in continuances in an attempt by the court to accommodate father's anticipated surgery. Thus, we do not find that father established good cause for the continuance.
Six weeks is by no means the "short" continuance that father refers to in his opening brief.
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We also conclude that the juvenile court did not abuse its discretion when it concluded that it would not be in the best interest of the children to again postpone the section 366.26 hearing. This is because, as discussed above, the hearing was supposed to have taken place the previous October, after the grandparents had filed their section 388 petition seeking adoption back in February of 2010. Thus, the children had been waiting for the adoption process to wind to a conclusion for well over a year. The children had consistently and clearly expressed their desire to be adopted by their grandparents, and a further postponement of that would not be in their best interest. We acknowledge father's argument that there was no hurry because the children had already been living with the grandparents since 2005 and in guardianship since 2007. On the other hand, this state of affairs can be cited as a reason against granting the continuance as well as in favor. In any case, father has not established that the juvenile court abused its discretion when it concluded that father had not established good cause and that a further continuance would not be in the children's best interest.
2. Evidence of Father's Unfitness
Father next argues that due process requires that a parental rights termination order be supported by clear and convincing evidence that the parent is "unfit," and that no evidence was presented at the section 366.26 hearing to show that he was at that time unfit. We conclude that the earlier findings of unfitness are sufficient to protect father's due process rights, because: 1) he has provided no legal authority that such findings can become "stale" between jurisdiction/disposition and the section 366.26 hearing, thus requiring new findings to be made; and 2) the section 388 petition process is available to parents previously declared unfit who wish to establish that the unfitness finding is no longer accurate at the time of the section 366.26 hearing.
We review an order terminating parental rights for substantial evidence. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) "'In making this determination, we must decide if the evidence is reasonable, credible, and of solid value, such that a reasonable trier of fact could find the court's order was proper based on clear and convincing evidence. [Citation.]' [Citation.]" (In re Harmony B. (2005) 125 Cal.App.4th 831, 839-840.)
According to the appellate court in In re Gladys L. (2006) 141 Cal.App.4th 845, 848 (Gladys L.), "Parents have a fundamental interest in the care, companionship, and custody of their children. (Santosky v. Kramer (1982) 455 U.S. 745, 758 (Santosky).) Santosky establishes minimal due process requirements in the context of state dependency proceedings. 'Before a State may sever completely and irrevocably the rights of parents in their natural child, due process requires that the State support its allegations by at least clear and convincing evidence.' [Citation.] 'After the State has established parental unfitness at that initial proceeding, the court may assume at the dispositional stage that the interests of the child and the natural parents do diverge.' [Citation.] [¶] "California's dependency system comports with Santosky's requirements because, by the time parental rights are terminated at a section 366.26 hearing, the juvenile court must have made prior findings that the parent was unfit. [Citation.] 'The number and quality of the judicial findings that are necessary preconditions to termination convey very powerfully to the fact finder the subjective certainty about parental unfitness and detriment required before the court may even consider ending the relationship between natural parent and child.' [Citation.] The linchpin to the constitutionality of the section 366.26 hearing is that prior determinations ensure 'the evidence of detriment is already so clear and convincing that more cannot be required without prejudice to the interests of the adoptable child, with which the state must align itself.' [Citation.]" (Gladys L., supra, 141 Cal.App.4th at pp. 848-849.) In short, a finding of detriment to the child under California's dependency scheme is equivalent to a finding of parental unfitness under Santosky. (Cynthia D. v. Superior Court, (1993) 5 Cal.4th 242, 253; accord, In Re Frank R. (2011) 192 Cal.App.4th 532, 537.)
Father essentially argues that the previous findings of "unfitness" from the 2005-2007 proceedings were stale at the time of the May 23, 2011, permanency planning hearing and thus the juvenile court was required to make new unfitness findings, in addition to the detriment findings it did make. However, father provides no legal support for this contention that would require the juvenile court to 'renew' the unfitness finding at the section 366.26 hearing. Father does cite to the following cases, none of which require a juvenile court to make a new finding of parental unfitness at the section 366.26 hearing once it has made such a finding earlier in the dependency process. In In re Frank, supra, 192 Cal.App.4th at page 537, the appellate court reversed the order terminating the father's parental rights because he had been deemed a non-offending parent at the jurisdiction hearing and the juvenile court had never made a finding of unfitness. In the present case, the juvenile court made the unfitness findings as to father at jurisdiction and disposition, and at the six-month, 12-month and 18-month review hearings. In In re G.S.R. (2008) 159 Cal.App.4th 1202, as in In re Frank R., the appellate court reversed the order terminating a father's parental rights because he had been deemed a non-offending parent at jurisdiction/disposition and had never been found to be unfit. In Gladys L., as in In re Frank R. and In re G.S.R., the appellate court reversed the order terminating parental rights because child welfare officials never asserted that the alleged father was unfit and the juvenile court never made that finding.
In In re P.C. (2008) 165 Cal.App.4th 98, the Appellate Court reversed the order terminating a mother's parental rights because the parental unfitness finding was based solely on a lack of housing, which the Legislature has specifically singled out as an insufficient reason to find a parent unfit. "[P]overty alone, even abject poverty resulting in homelessness, is not a valid basis for assertion of juvenile court jurisdiction." (Id. at p. 104; § 300, subd. (b):"No child shall be found to be a person described by this subdivision solely due to the lack of an emergency shelter for the family".) This factual scenario is not present in the current matter, and thus In re P. C. , and the others cited in father's briefs, do not support his contention that the juvenile court was required to make a new finding of parental unfitness at the section 366.26 hearing before it could terminate his parental rights.
As CFS points out, the Legislature has provided a vehicle for a parent to negate earlier unfitness findings, thus providing incentive for a parent to become "fit" at any time before parental rights are terminated. This vehicle is the section 388 petition for modification. Father did file such a petition, by which he asserted the changed circumstances regarding his parental fitness and the benefit the children would receive from increased contact and potential placement with him. However, father eventually withdrew this petition as part of an agreement for increased visitation, and by doing so voluntarily chose not to attempt to nullify the earlier findings of parental unfitness.
To conclude, the juvenile court was not required to make a new finding that father was an unfit parent, and thus the lack of such finding at the section 366.26 hearing is not a basis to overturn the court's order terminating father's parental rights.
DISPOSITION
The juvenile court's order terminating father's parental rights is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur: KING
J.
CODRINGTON
J.