Opinion
C086714
07-24-2018
In re H.S., a Person Coming Under the Juvenile Court Law. YUBA COUNTY HEALTH AND HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent, v. E.S., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JVSQ1600119)
E.S. (mother) appeals from the juvenile court's order terminating parental rights for her child H.S. (the minor) (Welf. & Inst. Code, §§ 366.26, 395), arguing the court abused its discretion in denying her request to continue the section 366.26 hearing. We affirm the juvenile court's order.
Further undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
Mother successfully completed a previous reunification with the minor following a dependency case in 2012, initiated when the minor was approximately three months old. The minor was again taken from his mother in April 2016, at age four, because of mother's unresolved substance abuse issues. Mother initially received informal services, but her continued use of methamphetamine and failure to comply with substance abuse treatment resulted in the filing of a section 300 petition in August 2016.
Thereafter, mother received reunification services until the juvenile court terminated those services at the contested 12-month status review hearing on September 21, 2017. In the six-month period preceding this hearing, mother only attended half of her scheduled visits with the minor, causing the visitation social worker to warn: "To miss 50% of visits does not facilitate a trusting and healthy relationship that is essential for this young child" and that "the inconsistent visits are affecting [the minor] emotionally, including regressive behaviors."
The juvenile court determined: "The return of the child to the mother would create a substantial risk of the [sic] detriment to the safety, protection, or physical or emotional well-being, based upon the mother's poor case plan compliance and continued methamphetamine [use]. [¶] By clear and convincing evidence, reasonable services were offered[/]provided to the mother which were designed to aid the mother in overcoming the problems which led to the initial removal. The extent of the progress made by the mother towards alleviating or mitigating the causes necessitating placement has been minimal."
The juvenile court set the section 366.26 hearing for January 10, 2018. This hearing was continued to February 14, 2018, following a request of Yuba County Welfare Services related to dispensing with notice to the minor's unidentified father. At the February 14, 2018 hearing, mother requested an additional continuance to allow her to review the termination and permanent plan report. The court offered to trail the matter to later in the calendar to allow mother to review the report, but granted mother's request to continue the hearing to accommodate mother's work schedule. The juvenile court ordered mother (who was present) to return to court for the continued hearing on February 21, 2018, at 1:30 p.m.
On February 20, 2018 (the day before the hearing), mother filed an untimely (see § 352, subd. (a)) request to continue the section 366.26 hearing from February 21 to March 14, 2018, to allow her to file a section 388 petition for modification to consider alternative placements for the minor with a relative or non-relative extended family member.
We note mother does not argue error in the juvenile court's failure to grant the continuance as it related to the filing of a section 388 petition. --------
Notwithstanding the court's previous order, mother did not appear at the contested section 366.26 hearing the next day. Her attorney reiterated his written request for a continuance to file a section 388 modification petition regarding placement, but then added for the first time that he wished to continue the hearing because he intended to present testimony regarding the beneficial parental relationship exception to adoption. He did not provide a proffer or any further detail about mother's specific testimony, but later qualified that mother "could possibly" testify as to the exception. He represented that mother had planned to be there, and he did not know why mother was not at the hearing. Counsel further explained, "When I met with her on Friday, it was clear she was going to be here and that she knew she had to testify."
Counsel's argument contemplated an initial continuance of "a few weeks," with potential further delays depending on the court's rulings on various anticipated requests (e.g., a section 388 petition and request for a nonrelative extended family member placement). Counsel for the minor and county counsel both objected to the request, arguing that the delays resulting from continued investigation regarding placement would not be in the minor's best interest.
Ultimately, the juvenile court refused to continue the section 366.26 hearing, noting there was no merit in mother's request to continue, that the potential alternative placements had been previously provided, and that the minor was in his "forever home." The court highlighted that mother had requested the previous continuance specifically so that she could testify, but it was nearly an hour past the start time for her hearing, and she was not present, and there was no reason for her absence. Accordingly, the court did "not find good cause to continue the .26 hearing" and determined that "it would not be in [the minor's] best interest not to proceed."
The juvenile court proceeded to make various findings required by law and terminated mother's parental rights to the minor. Mother timely filed this appeal.
DISCUSSION
Mother argues the juvenile court's failure to approve her request for a continuance violated due process because it "deprived mother of a contested hearing and an opportunity to be heard and present evidence on the application of the beneficial parent-child relationship exception to the termination of parental rights pursuant to section 366.26, subdivision (c)(1)(B)(i)."
Section 352, subdivision (a) provides: "Upon request of counsel for the parent, guardian, minor, or petitioner, the court may continue any hearing under this chapter beyond the time limit within which the hearing is otherwise required to be held, provided that no continuance shall 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. [¶] Continuances shall be granted only upon a showing of good cause and only for that period of time shown to be necessary by the evidence presented at the hearing on the motion for the continuance. . . . In order to obtain a motion for a continuance of the hearing, written notice shall be filed at least two court days prior to the date set for hearing, together with affidavits or declarations detailing specific facts showing that a continuance is necessary, unless the court for good cause entertains an oral motion for continuance."
We review the juvenile court's denial of the requested continuance for an abuse of discretion. (In re Z.S. (2015) 235 Cal.App.4th 754, 773.)
Mother correctly argues that she has a due process right at the section 366.26 hearing to appear and present evidence. (In re Grace P. (2017) 8 Cal.App.5th 605, 612.) However, unlike the authorities she provides in her briefing where parents were affirmatively denied the right to present evidence at contested hearings (see, e.g., David B. v. Superior Court (2006) 140 Cal.App.4th 772, 778-780 [right to present evidence at contested 18-month review hearing]; In re James Q. (2000) 81 Cal.App.4th 255, 267 [no offer of proof required to obtain contested review hearing]), mother was presented with that opportunity, twice, and simply failed to avail herself of it. This does not violate due process.
We find the juvenile court did not abuse its discretion in determining that there was no good cause to again continue the section 366.26 hearing. The hearing had been previously continued at mother's request, and mother then failed to appear as previously ordered and without explanation. Mother's counsel did not know her whereabouts and was unable to proffer her testimony or even represent that she would, in fact, testify if the hearing were continued. The basis of the untimely motion for a continuance based on placement change had been previously presented to authorities, was known for many months, and had been fruitless.
Further, the juvenile court did not abuse its discretion in determining that continuing the hearing would not be in the minor's best interest. Mother had a history of repeated absences from scheduled visitation, which were "affecting [the minor] emotionally, including regressive behaviors." The minor had been in an adoptive home since the previous December and viewed that placement as his "forever home." A further continuance under these circumstances, in the absence of good cause, would not have been in the minor's best interest.
DISPOSITION
The juvenile court's orders are affirmed.
/s/_________
Duarte, Acting P. J. We concur: /s/_________
Hoch, J. /s/_________
Renner, J.