Opinion
D082050
09-06-2023
In re B.I., a Person Coming Under the Juvenile Court Law. v. B.H.I., Defendant and Appellant. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent,
Deanna L. Lopas, under appointment by the Court of Appeal, for Defendant and Appellant. Claudia G. Silva, County Counsel, Lisa M. Maldonado, Chief Deputy County Counsel, and Evangelina Woo, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. J520848 Michael P. Pulos, Judge. Affirmed.
Deanna L. Lopas, under appointment by the Court of Appeal, for Defendant and Appellant.
Claudia G. Silva, County Counsel, Lisa M. Maldonado, Chief Deputy County Counsel, and Evangelina Woo, Deputy County Counsel, for Plaintiff and Respondent.
McCONNELL, P. J.
Defendant B.H.I. (Mother) appeals from the order terminating her parental rights to her daughter, B.I. Mother argues the juvenile court erred in denying a continuance of the Welfare and Institutions Code section 366.26 permanency planning hearing to allow time to assess B.I.'s maternal grandmother, A.I. (Grandmother) for placement. Mother argues the court "erroneously assumed" the relative placement preference under section 361.3 did not apply post-reunification. Mother also argues the court abused its discretion in denying the continuance under section 352 because there was good cause and no evidence that the continuance was contrary to B.I.'s best interests. We need not decide whether the relative placement preference still applied post-reunification under the circumstances of this case because the court did not deny the continuance on the basis that it did not apply. Instead, the court concluded the mere possibility that Grandmother might be approved for placement did not constitute good cause and it would be contrary to B.I.'s interests to grant another continuance where the permanency planning hearing had already been continued for over six months to allow for completion of Grandmother's Resource Family Approval (RFA). We conclude the court did not abuse its discretion in making this decision and therefore affirm.
All undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
A. Petition and Reunification Period
The San Diego County Health and Human Services Agency (Agency) filed a juvenile dependency petition under section 300, subdivision (b) in August 2021, when B.I. tested positive for amphetamines at birth. Mother was homeless, had a history of substance abuse, had severe mental health issues, and had been placed on multiple hospital holds in the past. B.I. was released from the hospital and detained in a foster home.
Throughout the proceedings, Mother's whereabouts were either unknown, she was incarcerated, or she expressed not wanting to be involved in the proceedings.
Grandmother, on the other hand, asked for B.I. to be placed with her from the beginning of the proceedings. She had been caring for Mother's other two minor children (B.I.'s half-siblings) and was in the process of obtaining guardianship of them. Throughout the proceedings, she and B.I.'s half-siblings visited B.I. The visits were positive. Grandmother and B.I.'s half-siblings were appropriate and affectionate with B.I.
At the detention hearing in September 2021, the Agency informed the court that Grandmother was being assessed by the RFA unit for placement. At the contested jurisdiction and disposition hearing in October 2021, the Agency informed the court that Grandmother's RFA process was halted because Grandmother needed to move into a new home. The court sustained the petition, declared B.I. a dependent, removed her from Mother's care, and ordered placement with her current caregivers. The court encouraged Grandmother to keep in contact with the Agency in order to move forward with the RFA as soon as she moved into a new home.
Grandmother's request for placement was denied because she was unable to timely obtain appropriate housing. She made a second request in March 2022 and was "cleared for placement" in April 2022, but concerns arose regarding her Child Welfare Services history. Additionally, in May 2022, the Agency learned that Grandmother did not have government identification to complete a Live Scan, which was required for the RFA process.
By the contested six-month review hearing in June 2022, Grandmother was still in the process of obtaining identification from the Mexican consulate but was having difficulties because she did not have a legal document to prove her identity. She was attempting to get affidavits from witnesses who could testify to her identity before making another appointment with the Mexican consulate. The court terminated Mother's reunification services and set a section 366.26 permanency planning hearing for October 2022.
Grandmother's second RFA application closed in June 2022 because she was unable to obtain identification in a timely manner. She indicated she would submit a new application once she did.
B. Post-Reunification Period
By the October 2022 permanency planning hearing, B.I. had been with her caregivers for over a year. The caregivers were meeting her needs and were committed to adopting her. They also maintained an open and collaborative relationship with Grandmother and continued to facilitate visits. Grandmother was still working to obtain identification. The court set the matter for trial in November 2022.
At the November 2022 hearing, the Agency reported that Grandmother obtained her Mexican passport in late October 2022 and submitted a third RFA application. The RFA unit was in the process of conducting Grandmother's background check. The Agency requested a 60-day continuance in order to complete the RFA process. The court granted the continuance to January 2023.
At the January 2023 hearing, the Agency informed the court that due to Grandmother's child welfare history, her RFA approval may take four to six months. Because Mother was incarcerated and moved facilities, the court continued the hearing a second time to late February 2023, to allow time for Mother to be produced from custody. In the meantime, the Agency would continue to work with Grandmother to resolve the RFA issues.
In its addendum report for the February 2023 hearing, the Agency reported that Grandmother's RFA was still not approved: "At this time, [Grandmother] is pending completion of the required RFA trainings; the Home, Health & Safety Assessment is pending approval due to deficiencies identified; as is the Criminal Background Assessment for [Grandmother] and an additional relative associated [with] the application. Further, Family Evaluation risk factors have been identified, and the Agency is determining whether such risk factors may be mitigated."
Mother's counsel requested a continuance to complete Grandmother's RFA assessment. The Agency recommended proceeding with terminating Mother's parental rights because delaying permanency would not be in B.I.'s best interest. It informed the court that "it is going to be a very lengthy process, and it's uncertain whether she could be approved. And that is the reason the Agency is asking to go forward at this time." B.I.'s counsel did not object to a continuance.
The court stated "normally, I would not think that to continue this matter would be appropriate to wait for an approval." It recognized "there is some good cause in that" but explained it must also consider B.I.'s need for stability and prompt resolution of her custodial status. The court recognized and expressed concern that some of the delay of Grandmother's RFA was due to her not having an identification, which was "really sort of outside of her control at some level." It concluded that "at this time, the weight tips in favor of granting continuance." However, the court elaborated, "[t]he problem that I want to flag though and note for everyone is this: that balance tips in the other direction if we come back in a month or two, and we still don't have approval, and we still don't have the ability to place with the grandmother . . . At that point the balance tips in favor of moving forward, because we need to make sure that this minor's permanency is resolved." The court continued the permanency hearing a third time, for another 60 days "with the idea that if it's not resolved by then, then the factors will lean more in favor of moving forward, because the best interest of the minor will shift."
By the next hearing in April 2023, Grandmother's RFA was still not approved. The Agency reported that "[a] check of allegations of prior child abuse and neglect concerning [Grandmother] and adults identified who would be regularly present in the home has been completed, which requires further investigation by RFA in order to assess if the concerns surrounding the history can be mitigated. There has been new information regarding this history of late March 2023 and RFA needs time to assess and make a determination of [Grandmother's] RFA status."
At the hearing, the Agency confirmed that it "received information as recent as March of this year that provides some indication that some of the issues the Agency was trying to mitigate may be possible to mitigate." Based on this and B.I.'s relationship with Grandmother and B.I.'s half-siblings, the Agency requested a further 30-day continuance. Mother's counsel joined the Agency's request, arguing an additional 30-day delay would not impact B.I. B.I.'s attorney objected because "[w]e have been stalling permanency for far too long."
The juvenile court denied the continuance, noting there were already three continuances and over six months had passed since the original date for the permanency planning hearing. The court recognized and summarized the history of the Agency's and Grandmother's efforts to approve Grandmother for placement and the obstacles to RFA approval. The court concluded "[u]nder these facts, I do not find good cause or that continuing this matter yet again would not be detrimental to the minor.... Continuing this matter yet again in the hopes that grandmother might pass RFA is still an unknown and might been deemed suitable for placement is just not appropriate and not what is contemplated by the statute as I read it."
The court proceeded to the contested permanency planning hearing, terminated Mother's parental rights, and designated her current caregivers as her prospective adoptive parents. Mother timely appealed from this order, challenging only the court's refusal to further continue the matter.
DISCUSSION
The juvenile court may continue a dependency hearing upon a showing of good cause and only for the time shown to be necessary. (§ 352, subd. (a)(2).) "Courts have interpreted this policy to be an express discouragement of continuances." (In re Elijah V. (2005) 127 Cal.App.4th 576, 585.)
Section 352, subdivision (a)(1) provides:
"[A] continuance shall not be granted that is contrary to the interest of the minor. 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."
A juvenile court's denial of a continuance request will not be overturned on appeal absent an abuse of discretion. (See In re Angela R. (1989) 212 Cal.App.3d 257, 265-266.) A court abuses its discretion by making an arbitrary, capricious or patently absurd decision that results in a manifest miscarriage of justice. (In re Karla C. (2003) 113 Cal.App.4th 166, 180.)
Section 361.3 provides "preferential consideration" to a request for placement by a relative of a child who has been removed from parental custody." 'Preferential consideration' means that the relative seeking placement shall be the first placement to be considered and investigated." (§ 361.3, subd. (c)(1).) This preference applies at the outset of the case, at the disposition hearing, and throughout the reunification period. (In re Maria Q. (2018) 28 Cal.App.5th 577, 591-592.) In In re Isabella G. (2016) 246 Cal.App.4th 708 (Isabella G.), this court held that the relative placement preference applies even after reunification services have been terminated where a relative has made a timely request for placement prior to the dispositional hearing, and the Agency failed to timely assess the relative for placement. (Id. at pp. 712, 723.)
Mother argues the court erred in denying the final request to continue the permanency planning hearing based on its ruling that the relative placement preference was no longer applicable because reunification services had been terminated. Relying on Isabella G., she contends this was an error of law. The Agency argues the juvenile court correctly ruled the relative placement preference no longer applied post-reunification in this case where the delays in Grandmother's RFA were not due to the Agency's failure to properly consider her request during the reunification period.
We agree with the Agency that this case is distinguishable from Isabella G. because the Agency here did properly respond to Grandmother's timely request for placement and the juvenile court granted multiple continuances to allow for completion of the RFA after reunification services were terminated. However, we need not decide whether the relative placement preference was still applicable post-reunification under the circumstances of this case because the court did not deny the continuance request on the basis that it did not apply.
If the court believed the preference no longer applied, it would not have granted the prior continuances to allow the Agency to complete the RFA after reunification services were already terminated. To the contrary, at the final hearing, the court acknowledged it might apply when it stated that placement under section 361.3 "is dispositional in nature but under some circumstances can be applied later in a case." It then noted it was not clear whether section 361.3 was applicable post-reunification under the circumstances of this case: "I also don't have before me an argument or reason to believe that [section 361.3] even applies in this case given that we are again post-reunification services being terminated."
Contrary to Mother's interpretation, this statement does not indicate the court denied the continuance based on a ruling that the preference no longer applied. Instead, the court reasoned that the contested permanency planning hearing had already been continued three times, over six months had passed since the original hearing date, and "[c]ontinuing this matter yet again in the hopes that grandmother might pass RFA is still an unknown and might be deemed suitable for placement is just not appropriate and not what is contemplated by the statute as I read it." The court concluded, "[u]nder these facts, I do not find good cause or that continuing this matter yet again would not be detrimental to the minor."
In sum, even if the court concluded it would be proper to apply the relative placement preference post-reunification under the circumstances of this case, the court would have still denied the continuance based on its finding that at that point, the mere possibility that Grandmother would pass the RFA and be approved for placement did not constitute good cause to further delay permanency for B.I. Therefore, Mother's argument that the court abused its discretion in denying the continuance because it was based on an error of law fails.
Mother also argues the court abused its discretion in denying the continuance because good cause existed and there was no showing of detriment to B.I. We disagree.
In considering a continuance request, the court was required to give "substantial weight" to providing B.I. stability and prompt resolution of her custody status. (§ 352, subd. (a)(1).) Here, B.I. had been with her caregivers for one year and eight months, where she continued to thrive. At her young age, stability was crucial for her continued well-being and development. As the court noted, over six months had already passed since the permanency planning hearing was initially set.
Mother's argument that good cause existed because relative placement is preferred and the family must be preserved if possible ignores the policy that after reunification services are terminated, the focus shifts to permanency and stability. (In re Fernando M. (2006) 138 Cal.App.4th 529, 534.) Additionally, "[s]ection 361.3 does not create an evidentiary presumption that relative placement is in a child's best interests. [Citation.] The passage of time is a significant factor in a child's life; the longer a successful placement continues, the more important the child's need for continuity and stability becomes in the evaluation of her best interests." (In re M.H. (2018) 21 Cal.App.5th 1296, 1304.)
Mother also argues there was good cause for a continuance because it was "likely" or "possible" that the issues with Grandmother's RFA would be mitigated. However, the record shows there were no assurances. An assurance may have provided good cause for another continuance but the court did not abuse its discretion in concluding that a mere possibility did not. While Mother contends 30 more days would not have been detrimental to B.I., it was not "arbitrary, capricious, or patently absurd" for the court to find that further delaying her permanency would be contrary to her interests. (In re Karla C., supra, 113 Cal.App.4th at p.180.)
DISPOSITION
The order is affirmed.
WE CONCUR: O'ROURKE, J., IRION, J.