Adoption of Brianna D.

Filed 9/28/06 Adoption of Brianna D. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from an order of the Superior Court of Orange County, Julian Cimbaluk, Commissioner. Affirmed.

Jennifer Mack, under appointment by the Court of Appeal, for Defendant and Appellant.

Van Deusen, Youmans & Walmsley and Ted R. Youmans for Plaintiff and Respondent.

* * *

Introduction

Joseph D. appeals from an order terminating his parental rights to his daughter, Brianna D., now 12 years old. Joseph argues the trial court abused its discretion by denying his fourth request for a continuance of the trial. He failed to show good cause for his request to continue the trial, and all relevant factors supported denial of his request. We therefore conclude the trial court did not abuse its discretion in denying a continuance, and affirm the order terminating Joseph’s parental rights.

Statement of Facts and Procedural History

Brianna is the biological daughter of Joseph and Tracy P. Brianna was born while Joseph and Tracy were married. Joseph and Tracy’s marriage was dissolved in October 1997. Tracy was awarded custody of Brianna, and Joseph was awarded visitation. Joseph’s visitation was changed from unmonitored to monitored in September 1998, after Tracy found bullet holes in Brianna’s bedroom door following a visit with Joseph. Joseph attended six of 20 authorized visits with Brianna, the last visit occurring on October 31, 1998. Joseph called to speak with Brianna on March 25, 1999, and sent her three postcards between October 31, 1998 and March 1999. Joseph also sent one piece of mail in December 2001 to Brianna’s current address.

Joseph left California in October 1998 to care for his ill father. Joseph remained out of the state for more than one year. He was incarcerated in California in April 2002.

Joseph was originally ordered to pay $460 per month in child support; that amount was reduced to $250 per month in July 1998. Joseph made a child support payment of $225 in February 1998 and a payment of $250 in July 1998; he never made another child support payment.

Tracy married Eric P. on October 17, 1998, and they have two children together, whom they have raised as Brianna’s siblings. In September 2004, Eric filed a petition to adopt Brianna, and a petition to declare Brianna free from Joseph’s parental custody and control, pursuant to Family Code section 7822.[1] (All further statutory references are to the Family Code.) As required by section 7851, a probate court services investigator filed reports on both petitions, and also filed a supplement to the freedom from parental custody and control report. The reports concluded that it was in Brianna’s best interest for the court to terminate Joseph’s parental rights and grant Eric’s request to adopt her.

The investigator concluded, in part: “[T]he presumed father, Vincent Joseph D[.], has not had contact with the minor in the past five (5) years, and he has not made court ordered child support payments in six (6) years. The interview with the minor, Brianna, age ten, revealed she has established a close and positive relationship with her stepfather, Eric Andrew P[.]. Mr. P[.] appears to have been a positive and responsible parent for Brianna for the past six (6) years. Brianna appeared to have a good understanding of the adoption proceedings and expressed a preference to be adopted by her stepfather. Brianna related her comfort with terminating her legal relationship with her presumed father, so she may be adopted by the petitioner. Brianna expressed the desire for her stepfather to have legal authority o[r] custody of her if something were to happen to her mother.”

A hearing scheduled for December 7, 2004 was continued to February 8, 2005, because Joseph had not yet been served. After Joseph was served with the petitions, he filed a motion to continue the February 8 hearing and for appointment of counsel. The court granted the request for a continuance, and scheduled a status review conference for March 8, 2005. At the status review conference, the matter was set for trial on May 24, 2005. The May trial date was continued to August 16, based on Joseph’s counsel’s telephonic request, apprising the court Joseph was having surgery; neither the date of nor reason for the surgery appears in the appellate record.

On August 16, 2005, the trial was continued to September 20, again pursuant to a telephonic request by Joseph’s counsel. On September 20, Joseph’s counsel made an oral motion to continue the trial because the prison had refused to release Joseph’s personal records needed for trial. The court continued the trial to December 13, 2005, and ordered the prison to release Joseph’s personal documents to his counsel.

On December 8, 2005, Joseph waived his right to attend the trial. On December 12, he filed a declaration in support of a request for a further continuance of the trial. Joseph claimed he would be unable to effectively participate at trial without his glasses and hearing aids, which would not be available for an undetermined amount of time. He also claimed he had not been able to effectively communicate with his attorney in preparation for the trial. Finally, Joseph explained that his sister and brother-in-law, who would be witnesses on his behalf at trial, were trying to make arrangements to attend the trial.

At the start of the trial on December 13, Joseph’s counsel stated: “[Joseph] has been [made] aware, on numerous occasions . . . [of] the importance of these proceedings, and that the court may proceed if he fails to appear today. So he has been informed of that, but he’s still requesting a continuance.” Joseph’s counsel also requested, “if the matter is continued for trial, at that time if my client is too ill to appear, we would request he be allowed to appear telephonically.” (Italics added.) Neither Joseph nor his counsel requested that he be permitted to participate telephonically on December 13. Counsel for both Eric and Brianna objected to any further continuances.

The court denied Joseph’s request for a continuance. “I realize that we want to have a fair hearing for him. On the same token, we’ve gone 15 months on this matter where as the statute says that the matters are to be given priority over all civil matters, and I think we’ve bent over backwards to give him the opportunity to be present and to be heard. But it seems that he keeps having problems and wanting people to - don’t know before, and this time he’s indicated in his paper that he wishes certain persons from Massachusetts to come here and testify for him. There’s no guarantee that they will be here just what he intends to do. I think he’s not intending to be in a better position for a long time to proceed on this matter, and it seems it comes down to the end of the pier and what are we going to do? What, are we going to get on the boat and sail off or not? We haven’t sailed off, we’ve stayed on the pier. We’ve waited . . . until the boat came back to try and get afloat again.

So the court feels it’s time to proceed in this matter, and so it will deny the motion to continue as requested by Mr. D[.].”

Tracy testified regarding Joseph’s lack of contact with Brianna and failure to pay child support. Tracy testified she kept Joseph informed of Brianna’s address, and Joseph had sent one piece of mail to her current address in December 2001. Tracy also testified termination of Joseph’s parental rights and adoption by Eric would be in Brianna’s best interests. Brianna waived her right to confer with the court, but her counsel stated on the record without objection that Brianna was “enthusiastic” for her adoption by Eric to proceed. The court acknowledged reading and considering the probate court services investigator’s reports.

The court found by clear and convincing evidence that (1) Joseph had not had contact with Brianna, other than token contacts, for more than one year; (2) Joseph had failed to provide for Brianna’s support for more than one year; (3) Joseph’s failure to communicate with and support Brianna was done with an intent to abandon her, under section 7822; and (4) it was in Brianna’s best interest to terminate Joseph’s parental rights to allow her to be adopted by Eric. The court then ordered Joseph’s parental rights terminated. A hearing on Eric’s petition to adopt Brianna was set for February 14, 2006. Joseph timely appealed the order terminating his parental rights.

Discussion

The only issue on appeal is whether the trial court erred in denying Joseph’s request for a continuance of the trial. We review this issue for an abuse of discretion. (Lazarus v. Titmus (1998) 64 Cal.App.4th 1242, 1249.)

The statutory procedures for freeing a child from his or her parent’s custody and control limit the circumstances under which the court can continue a trial of the matter: “(a) A continuance may be granted only upon a showing of good cause. Neither a stipulation between counsel nor the convenience of the parties is in and of itself a good cause.

(b) Unless the court for good cause entertains an oral motion for continuance, written notice of a motion for a continuance of the hearing shall be filed within two court days of the date set for the hearing, together with affidavits or declarations detailing specific facts showing that a continuance is necessary.

(c) A continuance shall be granted only for that period of time shown to be necessary by the evidence considered at the hearing on the motion. Whenever a continuance is granted, the facts proven which require the continuance shall be entered upon the minutes of the court.” (§ 7871.)

The general grounds for trial continuances are set forth in California Rules of Court, rule 375: “(c) Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits. The court may grant a continuance only upon an affirmative showing of good cause requiring the continuance. Circumstances that may indicate good cause include:

(1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances;

(2) The unavailability of a party because of death, illness, or other excusable circumstances;

. . .

(6) A party’s excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts[.] . . .

. . .

(d) In ruling on a motion or application for continuance, the court must consider all the facts and circumstances that are relevant to the determination. These may include:

. . .

(2) Whether there was any previous continuance, extension of time, or delay of trial due to any party;

(3) The length of the continuance requested;

(4) The availability of alternative means to address the problem that gave rise to the motion or application for a continuance;

(5) The prejudice that parties or witnesses will suffer as a result of the continuance;

(6) If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay;

. . .

. . . and

(11) Any other fact or circumstance relevant to the fair determination of the motion or application.”

Joseph failed to establish any of the circumstances showing good cause for a continuance. There was no showing that Joseph’s sister and brother-in-law were essential witnesses, and, if so, why they were not available for the December 13, 2005 trial date.[2] (Cal. Rules of Court, rule 375(c)(1).) Joseph’s waiver of his right to appear on December 13 for unspecified “medical reasons“ and his claim that he could not participate effectively without his hearing aids and glasses, without more, did not establish unavailability under the California Rules of Court. (Id., rule 375(c)(2).) Finally, although an earlier continuance was necessitated by the inability of Joseph’s counsel to obtain his personal documents, nothing in the December 12 request for a continuance indicates Joseph was prevented from obtaining essential evidence. (Id., rule 375(c)(6).)

Additionally, all the relevant factors tipped against, rather than in favor of, a continuance. The trial date had previously been continued three times, each at Joseph’s request. (Cal. Rules of Court, rule 375(d)(2).) No specific amount of time was requested for the continuance, so the court could not assess the length of the continuance as a factor. (Id., rule 375(d)(3).) Joseph did not address whether provision could be made to assist him in seeing and hearing the proceedings. (Id., rule 375(d)(4).) In opposing the request for a continuance, counsel for both Eric and Brianna alleged they would be prejudiced by further delays in the case. (Id., rule 375(d)(5).) The case was entitled to preference, and had already been continued long beyond the statutory time period. (Id., rule 375(d)(6).)[3] Joseph voluntarily waived his right to appear at trial on December 13 before knowing whether the court would grant his request for a continuance. Joseph’s request did not establish any of the reasons for seeking the continuance would change if the trial was again postponed. Specifically, there was no indication Joseph’s medical problems would be corrected before a continued trial date. Joseph also failed to explain why, while requesting he be permitted to appear telephonically at a previously continued trial, he did not request permission to participate telephonically at the December 13 trial.

We conclude the trial court did not abuse its discretion in denying the request for a trial continuance. Because there was no error, we need not consider whether any error was harmless, and we do not address whether the case would be governed by the harmless error standard of Chapman v. California (1967) 386 U.S. 18, or People v. Watson (1956) 46 Cal.2d 818, 836.

Disposition

The order is affirmed.

FYBEL, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

ARONSON, J.

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[1] Section 7822 reads, in part: “(a) A proceeding under this part may be brought where the child has been left . . . by one parent in the care and custody of the other parent for a period of one year without any provision for the child’s support, or without communication from the parent . . . , with the intent on the part of the parent . . . to abandon the child.

(b) The failure to provide identification, failure to provide support, or failure to communicate is presumptive evidence of the intent to abandon. If the parent . . . ha[s] made only token efforts to support or communicate with the child, the court may declare the child abandoned by the parent . . . .”

[2] Copies of declarations from Joseph’s sister and brother-in-law were attached as exhibits to Joseph’s trial brief, filed in August 2005. The declarations do not appear to have been separately filed with the trial court. Both declarants stated that, on unspecified dates between 1998 and 2002, they witnessed Joseph attempting to make phone calls to Brianna. Both purported to attach copies of the relevant telephone bills, but the appellate record does not include such records. Joseph’s sister also declared letters and packages Joseph sent to Brianna on unspecified dates were returned.

[3] Section 7870 reads as follows: “(a) It is the public policy of this state that judicial proceedings to declare a child free from parental custody and control shall be fully determined as expeditiously as possible.

(b) Notwithstanding any other provision of law, a proceeding to declare a child free from parental custody and control pursuant to this part shall be set for trial not more than 45 days after filing notification therefor and completion of service thereon in the manner prescribed by law for service of civil process. The matter so set has precedence over all other civil matters on the date set for trial.

(c) The court may continue the proceeding as provided in Section 7864 or Section 7871.” The text of section 7871 is set forth ante. Section 7864 permits the court to continue a proceeding for 30 days to appoint counsel and enable counsel to become familiar with the case, and is not applicable to Joseph’s December 12, 2005 request for a trial continuance.