Opinion
D076561
02-03-2020
In re A.O., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. A.O., Defendant and Appellant.
Julie E. Braden, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Patrice Plattner-Grainger, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. J519793) APPEAL from an order of the Superior Court of San Diego County, Edlene C. McKenzie, Judge. Order affirmed. Julie E. Braden, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy County Counsel, and Patrice Plattner-Grainger, Deputy County Counsel, for Plaintiff and Respondent.
A.O. (Mother) appeals a juvenile court order selecting adoption as the permanent plan and terminating parental rights. (Welf. & Inst. Code, § 366.26.) She contends the juvenile court abused its discretion when it denied her counsel's request for a continuance based on her inability to get to court in a timely manner for the contested section 366.26 hearing. We affirm.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Mother has been a dependent of the San Diego County juvenile court since 2004. At age 15, Mother gave birth to N.O., who was removed from her care. Mother resided in a group home at the time, was violent with staff, neglected N.O., and encouraged child protective services to take N.O. In September 2017, Mother's parental rights to N.O. were terminated and N.O.'s adoption was finalized in 2018.
Mother gave birth to A.O., in November 2017. In March 2018, while residing in a group home in Fullerton, California with A.O., Mother had a physical altercation with other residents that required police intervention. Mother was transported to a hospital for a psychiatric evaluation, but released the next day and discharged from the group home after staff found cleaning supplies under her bed, which was consistent with her threats to poison children in the facility.
Mother was transferred to Polinsky Children's Center (Polinsky). In the meantime, the San Diego County Health and Human Services Agency (the Agency) temporarily detained A.O. in the same foster home with his two-year-old half-sibling, N.O. Although A.O. was detained with Mother for about a week, he was taken into protective custody under a protective custody warrant after Mother threatened Polinsky staff and residents. In April 2018, A.O. was detained in the foster home of the V.'s
A.O.'s alleged father never came forward to establish paternity during the dependency proceedings and never met A.O. --------
In June 2018, the Orange County juvenile court took jurisdiction, declared A.O. a dependent, and removed physical custody from Mother. The matter was later transferred to San Diego. When Mother turned 18 in November 2018, her status changed to nonminor dependent. She had recently been accepted into the New Alternatives transitional housing program.
At the contested six-month review hearing in March 2019, the court terminated reunification services after finding, by clear and convincing evidence, that a return of the child to parental custody would be detrimental, the services provided had been reasonable, and that Mother had failed to make substantive progress in the court-ordered treatment plan. In the meantime, A.O.'s caregivers indicated their commitment to adopt him.
The court held the contested section 366.26 hearing on September 10, 2019, at 1:30 p.m. At the outset of the hearing, Mother's attorney requested a continuance, stating that Mother had a doctor's appointment that morning, but was not able to get to the court with public transportation. When the court inquired as to whether Mother had contacted counsel, counsel stated:
"I was able to speak with her before going on the record this afternoon, your honor. She did indicate that she is coming up from Old Town from her doctor's appointment -- and that was actually the transfer from the doctor's appointment -- so she said she is still about a half hour or 45 minutes away."
Minor's counsel objected to the request. The court noted that it had ordered Mother's presence, Mother knew the importance of the hearing and that it had not been advised "of any issues that would prevent the Mother from coming today." The court denied the request and proceeded with the contested hearing, stating "hopefully, she will arrive while we're hearing the evidence, but I think the court needs to go forward at this point." Mother's counsel then requested a five-minute recess upon the Mother's arrival to advise her of what happened while she was in transit, to which the court stated: "Okay. Let's get started."
After considering the evidence and argument of counsel, the court noted the time was 2:53 p.m. and Mother "has still not arrived, no call, no indication as to why she is not here." The court terminated parental rights and referred A.O. to the Agency for adoptive placement after finding by clear and convincing evidence that A.O. was likely to be adopted and none of the statutory exceptions applied. The proceedings ended at 2:58 p.m.
DISCUSSION
Mother asserts that the juvenile court abused its discretion in refusing to continue the section 366.26 hearing after she notified the court through her counsel of public transportation difficulty in getting to the court in a timely manner. She claims the court should have briefly delayed the proceedings, or reset the hearing to the back-up date to which it had ordered Mother to appear.
Continuances in a dependency matter shall be granted only upon a showing of good cause by the requesting party and the court may not grant a continuance that is contrary to the child's interests. (§ 352, subd. (a); Renee S. v. Superior Court (1999) 76 Cal.App.4th 187, 196.) We review a denial of a continuance for an abuse of discretion. (In re Karla C. (2003) 113 Cal.App.4th 166, 180.) "Discretion is abused when a decision is arbitrary, capricious or patently absurd and results in a manifest miscarriage of justice." (Ibid.)
Mother had a right to appear and be heard before her parental rights were terminated. (See In re Jeanette V. (1998) 68 Cal.App.4th 811, 816-817.) Nevertheless, "[w]hen a parent is absent without good cause at a properly noticed hearing, the court is entitled to proceed in the parent's absence. [Citation.] A parent's failure to appear will not normally constitute the good cause necessary to justify a continuance [citation], because substantial importance is attached to 'the child's need for a prompt resolution of the matter' [citation]. An unjustified failure to appear at a duly noticed hearing reflects a parent's choice not to attend. [Citation.] A court may properly treat this choice as a waiver of the right to be present at that hearing and of the benefits of being present. Imposing this waiver is a sensible and limited response to the parent's decision to be absent." (In re Vanessa M. (2006) 138 Cal.App.4th 1121, 1131-1132, italics omitted.)
Here, based on the statements of Mother's counsel, the juvenile court could have reasonably concluded that Mother contacted counsel by telephone before the hearing, was running late after a doctor's appointment, but anticipated arriving at the hearing 30 to 45 minutes late. It was not unreasonable for the juvenile court to start the hearing without Mother and then allow counsel to update Mother upon her arrival. Unfortunately, when the hearing concluded about one and one-half hours later, Mother had still not arrived, nor had she contacted counsel to explain her continued absence. The record shows that Mother had appeared telephonically at previous hearings.
On this record, Mother has failed to meet her burden of demonstrating an arbitrary and capricious exercise of the court's discretion in denying her motion for a continuance. Moreover, Mother failed to demonstrate she was prejudiced by her absence at the hearing. (See In re Celine R. (2003) 31 Cal.4th 45, 59-60.) Her counsel was present and argued on her behalf. Mother has not shown it was reasonably probable the outcome would have been more favorable to her had she been present at the hearing. (Ibid.)
DISPOSITION
The order is affirmed.
HUFFMAN, Acting P. J. WE CONCUR:
HALLER, J.
IRION, J.