In re Alexander C.

Filed 1/30/07 In re Alexander C. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

Appellant Barton G. appeals from the juvenile courts orders declaring his children, Alexander C., now 12 years old, and Raquel G., now nine years old, to be dependent children, pursuant to Welfare and Institutions Code section300,[1] and committing their custody to the Alameda County Social Services Agency (Agency) for suitable placement in the home of their mother, pursuant to section 361. Appellant contends the juvenile courts denial of his request for a continuance of the dispositional hearing was an abuse of discretion. He further contends the courts refusal to grant a continuance denied him the opportunity to contest the Agencys disposition recommendations because he had not been not given proper notice that the dispositional hearing would be held on February 21, 2006, the same date as the jurisdictional hearing. We shall affirm the juvenile courts orders.

FACTUAL AND PROCEDURAL BACKGROUND[2]

On December 3, 2003, the Agency filed an original dependency petition alleging that Alexander C. (then almost nine years old) and Raquel G. (then six years old) came within the provisions of section 300, subdivisions (b) and (j).[3] Specifically, the petition alleged that appellant was a registered drug offender who inflicted corporal injury on Alexander by regularly hitting Alexander with a belt or his hand and who emotionally abused Alexander by calling him foul names. Appellant was using marijuana, alcohol, and cocaine, and also left the minors in the care of their 12-year-old half-sibling, on whom he relied to get the children ready for school and to prepare dinner frequently when appellant disappeared for days at a time. Alexander had stated that he hated his father, did not want to talk to or see him, and did not want to live with him. The petition also alleged that Raquel was at risk of the same abuse inflicted on her brother and half-brother due to appellants style of punishment, his drug and alcohol abuse, and his leaving her alone with her brother and half-brother for up to a week at a time.

On December 18, 2003, the Agency filed an amended petition, under subdivisions (b) and (j) of section 300, adding, inter alia, allegations that the childrens mother, Corrina C. (mother), had a long history of methamphetamine use, had failed treatment programs, and had failed to participate in a reunification plan when the children had previously been made dependents in 1999. The amended petition further alleged that mother was currently using methamphetamine and was recently arrested for driving with a suspended license and possession of methamphetamine. Finally, it was alleged that mother and appellant had failed to ensure the childrens well-being in that the children were frequently left alone unsupervised, Maxwell had molested Raquel, and the parents should have reasonably suspected sexual abuse due to the three childrens sexual acting out.

In the jurisdiction/disposition report, prepared on December 18, 2003, the social worker noted that there was a substantial previous history on this family in San Diego County, as well as numerous referrals for abuse since appellant moved to Alameda County in the mid-1990s. The Agency recommended that the children be declared dependents of the court and placed out of home, with reunification services granted to both parents.

At the jurisdictional/dispositional hearing, which took place on January 5, 2004, the juvenile court found the allegations of the petitions true, as amended, adjudged the children dependents of the court, and adopted the Agencys recommendations.

At a review hearing, which took place on June 21, 2004, the court found that both parents had made partial progress in their case plans and continued the children as dependents of the court.

In an addendum report prepared on July 23, 2004 for the six-month review hearing, the social worker reported that appellant continues to make great efforts to attend his counseling, AA/NA groups, parenting education classes, and maintains a regular and consistent visit [sic] with his children, Alex and Raquel. The Agency recommended that the children remain in out-of-home care and that reunification services be continued for both parents. It further recommended that Alex and Raquel begin a 30-day trial visit in appellants home.

At the July 27, 2004 six-month review, the court adopted the Agencys recommendations and ordered that the children begin a 30-day trial visit in appellants home.

In an interim review report, prepared on August 19, 2004, the social worker reported that appellant continued to make great progress in meeting his case plan objectives. The trial visit was going well and the children seemed happy and comfortable in appellants home. The Agency recommended that the children be placed in appellants home with family maintenance services, that dependency be continued, and that mother continue to receive reunification services.

At the interim review hearing, held on August 23, 2004, the court set aside the order for out-of-home placement and ordered placement in appellants home, with family maintenance services to be provided.

In a status review report, prepared on December 3, 2004, the social worker reported that appellant continued to make good progress in complying with his case plan objectives. In addition, Raquel and Alexanders needs appeared to be met in his home. The Agency recommended that the children remain in appellants home.[4]

At the December 7, 2004 12-month review hearing, the court adopted the Agencys recommendations.

In a status review report, prepared on January 28, 2005, the social worker reported that appellant continued to be in substantial compliance with meeting his case plan objectives and providing a stable home environment for the children. The Agency recommended that dependency be dismissed for Alexander and Raquel, that the parents share legal custody, and that appellant be granted sole physical custody.

At the February 2, 2005 review hearing, the court adopted the Agencys recommendations and dismissed/terminated dependency for both children. On March 1, 2005, the court entered a custody order granting legal custody of the children to appellant and mother, with sole physical custody to appellant.

On January 25, 2006, the Agency filed an original dependency petition as to both children, under section 300, subdivision (b), alleging that appellant had a history of violence that placed the children at risk of injury, including current criminal charges for beating a non-related minor[5] on or about June 19, 2005; domestic violence charges alleging that appellant had choked his girlfriend, Leilani, on December 28, 2005, and had been drinking; and his arrest in September 2005 for child abuse related to Raquel. The petition further alleged that appellant was a drug registrant with a history of violence, which placed the children at risk, and that he had a history of criminal incarcerations for battery, DUI, possession of a controlled substance with two priors, and receiving stolen property.[6]

The petition further alleged that mother had a history of substance abuse of alcohol and methamphetamine, dating from 1998, and that both mother and appellant had previous child protective services cases, in which the two children and half-sibling Maxwell were removed from their care.

In a detention report prepared on January 24, 2006, the social worker reported that, on June 19, 2005, Alexander called the police and said his father was fighting another male and that the person was on the floor, possibly unconscious. When police arrived at appellants home, the person was found lying on his stomach five feet inside the front door; blood was coming from his mouth, nose and left hand. Appellant was present, and had a bloody nose and a heavy odor of alcohol on his breath. He was arrested at the scene. Various accounts were given regarding what had occurred. Based on the information received, police believed that the person went to appellants residence to discuss Alexanders harassing behavior towards his sister, which he had observed. When he arrived, appellant battered him outside and then dragged him inside the hallway of the residence, where appellant continued to batter him until he suffered serious injury and was almost unconscious. He suffered multiple facial contusions and lacerations; a displaced fracture of his left cheek, which required surgery to repair; and a bite wound to his finger.

Appellant was also arrested in September 2005 for felony child abuse of Raquel.[7] The children were placed with mother and appellant was jailed. Later, after appellant was released from jail, the district attorney told mother the stay away order was lifted and she let the children go with appellant, and they again began to live primarily with him.

The social worker further reported that, on December 28, 2005, police responded to a call regarding appellant and his girlfriend, Leilani. Upon their arrival, officers smelled a strong odor of alcoholic beverage coming from appellant; he appeared intoxicated. Raquel was present and was visibly shaken and afraid. Leilani told officers that she and appellant were playing darts with the children when they started arguing. Appellant called to have Leilanis cell phone shut off, after which the argument escalated to the point that appellant jumped on top of Leilani and choked her with both hands. She felt dizzy and yelled for the children to help. When Alexander started yelling, appellant stopped choking her. Leilani grabbed appellants cell phone and ran outside. Appellant ran after her, grabbed her, and threw her to the ground. She had a cut on her elbow and pain in her right thigh as a result. After appellant went back inside the house, Leilani left with Alexander.

Appellant told police that Leilani picked a fight because she suspected he was talking to another female on the phone. She punched him in the chest. Leilani threatened his truck and then punched him some more. He was in the shower when he heard something. He grabbed a towel and saw Leilani talking on the phone in front of the house. He went outside and asked for the phone; Leilani threw it and ran away. Appellant said he chased after her in his towel and they both fell to the ground.

The Agency recommended that the children be detained pending further investigation.

At the January 26, 2006 detention hearing, the parties agreed to let the children stay with mother instead of being placed in foster care. The contested hearing was continued to January 30, 2006.

At the January 30, 2006 continued detention hearing, Leilani G., who had married appellant earlier that month, testified that, during the incident between her and appellant on December 28, 2005, he chased her down the street after an argument and grabbed her arm; they both fell down. No other physical violence occurred. She also testified that she saw appellant grab Raquels hand near her thumb and squeeze for a couple of seconds. She further testified that both she and appellant had had one drink before the incidents on June 19, 2005 and December 28, 2005.

Appellant also testified at the detention hearing. He denied that he had been drinking before the incident with Leilani on December 28, 2005, and, with respect to the June 19, 2005 incident, said he had one drink several hours beforehand. At the continued hearing, on February 2, 2006, appellant further testified that Alexander saw him chasing Leilani down the street, and shouted, Daddy, stop. In addition, he had been a drug registrant years earlier and was currently on probation for a DUI conviction from 2003.

At the conclusion of the detention hearing, the court took the matter under submission until the following afternoon.

At the February 3, 2006 hearing, appellant did not appear because, according to his attorney, he had been sentenced that morning to one year in county jail; counsel was uncertain what offense the sentence related to. The court found that a prima facie showing had been made that the children came within the provisions of section 300, subdivision (b), and that remaining in appellants home would be contrary to their welfare. The court ordered the children detained, pending further investigation, and placed them in mothers home, where they already had been staying and were apparently doing well. The court also maintained an already scheduled uncontested jurisdictional hearing set for February 9, 2006.

In a jurisdiction/disposition report, prepared and filed on February 8, 2006, the social worker set forth the police account of what had occurred with respect to the September 23, 2005 physical abuse of Raquel. Appellant, Leilani, Raquel, and Alex were watching a video when they all began engaging in name calling, teasing. Appellant, who had been drinking, made a comment to Raquel, who responded by threatening to kick him. Appellant apparently took offense to this, as his response was to grab her arm and shake her. He then grabbed her thumb and bent it as far backwards as possible (while pulling her hand/arm over her back), all the while she is screaming and crying in pain. When [appellant] wouldnt let go, his girlfriend intervened by grabbing Raquel and running with her to mothers house (around the corner)with Raquel screaming and shaking in pain. Mother took Raquel to the hospital, where she was diagnosed with a severely sprained thumb. Appellant was arrested that night and charged with felony child abuse.

The social worker concluded that appellant had exposed the children to a significant level of violence and that, although he denied it, alcohol had been involved in each of the violent incidents. Appellant was also controlling and manipulative with others, and the social worker was concerned that the children were observing and learning his violent and manipulative behaviors. The Agency recommended that the children be placed in mothers home, with family maintenance services provided to mother.

At the February 9, 2006 hearing, appellant was not present due to his incarceration. The court noted that appellant would likely want to maintain his contest and therefore set a contested hearing date of February 21, 2006.

At the February 21, 2006 hearing, the Agency submitted the jurisdiction/disposition report without objection and the court accepted the report into evidence. No witnesses were called at the hearing. The Agency requested that the court follow its recommendations, which included the recommendation that the children be placed with mother, with family maintenance services provided to her. Counsel for mother and counsel for the minors both requested that the children be placed with mother.

Appellants counsel asked that his client be permitted to take the stand to make a statement. Once under oath, appellant requested a new attorney; the court denied his request. Appellants counsel then asked that appellant be allowed to present his version of the facts right now. The court denied the request, stating that the opportunity to call witnesses had passed. Counsel then stated that he was submitting without argument.

The court proceeded to find that the Agency had met its burden and stated that it would follow the recommendations set forth in the report. Appellants counsel then interjected: Your honor, Im sorry to interrupt again, but I do wish that disposition be continued for ten days if the court makes according to codeI dont know the code section, but I believe its allowable for disposition [to] be continued for ten days if theres an adverse finding as to jurisdiction.

The court responded: Well, when we started this case this was on for jurisdiction and dispo. That was the understanding of everybody, that this is jurisdiction and dispo, and that is what I intend to proceed on, jurisdiction and dispo today. So I am going to deny the request.

The court found that the allegations of the petition were true, as amended, and that the children were described by section 300, subdivision (b). The court further found by clear and convincing evidence that the children must be removed from the physical custody of appellant because returning them to his home would cause a substantial danger to their well-being. The court declared the children dependents of the juvenile court and committed their custody to the Agency for suitable placement with mother. The court also ordered the Agency to provide family maintenance services to mother. No additional reunification services were ordered for appellant. The court explained that the factual basis for its order is the fact that the father is currently incarcerated, and its my understanding that he will [be] incarcerated for a significant period of time, and that there [were] previous CPS services that have been provided to the father.

At the end of the hearing, appellants counsel said he had something he wished to bring to the courts attention. He had been told that, while appellants sentence was 12 months in county jail, he would likely be released in three or four months. Appellant therefore was requesting that services be ordered on that basis that he expects to be back in circulation. The court responded that appellant could file a section 388 motion if he were to have a change of circumstances, but the court was not ordering services based on what was in the record. Appellant had already received services and the court understood from the report that he [would] be incarcerated for one year.

On April 20, 2006, appellant filed a notice of appeal.

DISCUSSION

Appellant contends the juvenile court abused its discretion when it denied his request for a continuance of the dispositional hearing. He further contends the courts refusal to grant a continuance denied him the opportunity to contest the Agencys disposition recommendations because he had not been not given proper notice that the dispositional hearing would be held on February 21, 2006, the same date as the jurisdictional hearing.

Appellants request for a continuance of the dispositional hearing was not made until nearly the end of the February 21, 2006 hearing, when his counsel interrupted the courts recitation of its findings to request a 10-day continuance, stating only that he believed its allowable for disposition [to] be continued for ten days if theres an adverse finding as to jurisdiction.

Section 352, subdivision (a), provides: Upon request of counsel for the parent, . . . 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. . . . [] Continuances shall be granted only upon a showing of good cause . . . . (Accord, Cal. Rules of Court, rule 5.550(a)(1) and (a)(2).)[8] In addition, 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. ( 352, subd. (a); accord, rule 5.550(a)(4).)

The policy articulated in section 352 has been interpreted as an express discouragement of continuances. [Citation.] The courts denial of a request for continuance will not be overturned on appeal absent an abuse of discretion. [Citation.] Discretion is abused when a decision is arbitrary, capricious or patently absurd and results in a manifest miscarriage of justice. [Citation.] (In re Karla C. (2003) 113 Cal.App.4th 166, 179-180; accord, In re Ninfa S. (1998) 62 Cal.App.4th 808, 810-811.)

In this case, appellants counsel failed to present any facts justifying a continuance of the dispositional hearing. Counsels oral request, made after the court had begun to state its findings, did not include any explanation for the late request. Nor did counsel offer any reason why a continuance of the dispositional hearing was necessary. Accordingly, there was no showing of good cause either for the court to entertain an oral motion for a continuance or in support of the grant of a continuance. (See  352, subd. (a).)[9]

Appellant nonetheless argues that the courts decision unfairly denied him the opportunity to contest the Agencys dispositional recommendations to remove the children from his custody and to deny him reunification services. However, even now, on appeal, appellant merely states that counsels request for a continuance for 10 additional days was doubtless to prepare for the disposition hearing by discussing the issues with [appellant]. The Agencys jurisdiction/disposition report had been filed some 13 days before the hearing, which gave appellant and counsel ample time to discuss the disposition-related issues raised in the report. (See rule 5.690(a)(2) [petitioner must submit social study report to court clerk at least 48 hours before disposition hearing].) Appellant also asserts that, as a result of the denial of his continuance request, he was denied the opportunity to demonstrate that he should be entitled to services and that he would be getting out of jail in four months, as represented by his trial attorney. Even were we to overlook the fact that these reasons were not offered in the juvenile court, they are so vague and/or speculative that they would have been of no assistance to appellant in showing good cause for a continuance.

The court acted well within its discretion when it denied appellants last-minute oral request for a continuance. (See In re Karla C., supra, 113 Cal.App.4th at pp. 179-180; In re Ninfa S., supra, 62 Cal.App.4th at pp. 810-811.)[10]

Appellant further asserts that [t]here is even a question as to whether the requirements under section 352 would apply to the present case, since appellant was not requesting that the juvenile court continue a hearing beyond the time limit within which the hearing is otherwise required to be held. Appellant offers no further argument or authority related to this statement. However, even if section 352 were not applicable here, section 358, which provides that the court may continue the dispositional hearing after finding that the child is a person described in section 300, does apply. ( 358, subd. (a), italics added; accord, rule 5.686(a).) Thus, section 358 is a discretionary provision. (See In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.) For the reasons already discussed with respect to section 352, the court did not abuse its discretion when it denied appellants request for a continuance of the dispositional hearing. (See  358, subd. (a); accord, rule5.686(a).)

As to appellants contention that the courts denial of his request for a continuance was error because he had not been not given proper notice that the dispositional hearing would be held immediately following the jurisdictional hearing, we find appellant has forfeited the claim of lack of notice due to his failure to raise it in the juvenile court.

In In re Wilford J. (2005) 131 Cal.App.4th 742, 746-747, the appellate court found that the fathers due process right to adequate notice in dependency proceedings had been violated when the court conducted a jurisdictional hearing in his absence, which had not been scheduled or properly noticed. Nonetheless, the court found that because the father appeared with counsel at subsequent hearings and did not challenge the courts earlier findings, the father had forfeited his right to challenge the jurisdictional order made in his absence. (Id. at p. 754.)

As the court explained: [W]hen a parent had the opportunity to present [the issue of lack of notice] to the juvenile court and failed to do so, appellate courts routinely refuse to exercise their limited discretion to consider the matter on appeal. This is precisely because defective notice and the consequences flowing from it may easily be corrected if promptly raised in the juvenile court. [Citation.] (In re Wilford J., supra, 131 Cal.App.4th at p. 754.) The court further stated that, while an appellate court has discretion to excuse a partys failure to properly raise an issue in a timely manner, in dependency proceedings, where the well-being of the child and stability of placement is of paramount importance, that discretion should be exercised rarely and only in cases presenting an important legal issue. [Citation.] (Ibid.)

The circumstances of the present case do not warrant the exercise of our discretion to excuse appellants failure to raise the question of notice at the February 21, 2006 hearing. Consequently, the issue is forfeited. In addition, having not raised the alleged lack of notice in the juvenile court, appellant cannot now use that issue to show that the court abused its discretion in denying his request for a continuance.

In any event, we observe that appellant did have sufficient notice that the dispositional hearing would be joined with the jurisdictional hearing on February 21, 2006. For example, appellants attorney was present at the February 9, 2006 hearing, where the court officer stated that the matter was on calendar today for uncontested jurisdictional/dispositional hearing. Also, the joint contested hearing statement, signed by counsel for all parties on February 9, 2006, stated that a contested hearing was being requested. While only the space designated jurisdiction in paragraph one was checked on the form (and not the space designated disposition), the issues to be contested at the hearing were set forth in paragraph three as jurisdiction and placement. Placement is, of course, a matter addressed at disposition. Moreover, the Agency stated in paragraph five that it reserved the right to call witnesses at the hearing for juris, dispo & rebuttal. Finally, the report submitted by the Agency prior to the hearing originally scheduled for February 9, 2006 was entitled JURISDICTION/DISPOSITION REPORT, described the hearing type as Jurisdiction/Disposition/300, and recommended placement with mother. Appellant had prior notice that the dispositional hearing would take place on February 21, 2006.

Accordingly, appellants contention that he was unable to contest the disposition recommendations due to lack of proper notice that the dispositional hearing would be held on February 21, 2006 would fail on the merits.[11]

DISPOSITION

The orders appealed from are affirmed.

_________________________

Kline, P.J.

We concur:

_________________________

Haerle, J.

_________________________

Lambden, J.

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[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

[2] The orders appealed from stem from the January 25, 2006 filing of a dependency petition. However, because earlier events and proceedings provide a useful background to the issues raised on appeal, those previous events will be briefly described.

[3] That same date, the Agency filed a petition with respect to the childrens 12-year-old half-brother, Maxwell C., of whom appellant apparently was the legal guardian, alleging, inter alia, physical and emotional abuse on the part of appellant. This appeal does not involve Maxwell.

[4] The Agency also recommended, with respect to Maxwell, that reunification services for appellant (as legal guardian) be terminated and that mothers reunification services be continued.

[5] The parties subsequently stipulated that the victim was in fact an adult.

[6] The petition was later amended to add details regarding the alleged incidents, including that appellant was convicted on December 15, 2005 of violating Penal Code section 245, subdivision (a), in the beating of the non-related male.

[7] No details regarding the abuse were included in the detention report.

[8] All further rule references are to the California Rules of Court.

[9] Appellants reliance on In re Dolly A. (1986) 177 Cal.App.3d 195 is misplaced. In that case, the juvenile courts denial of the fathers request for a continuance forced the father, who had a pending criminal case, to elect between giving up his right not to be deposed as a criminal defendant and his right to testify on his own behalf in the juvenile dependency proceeding to deprive him custody of his daughter. (Id. at p. 201.) The appellate court found the juvenile court had abused its discretion when it denied the continuance, given that the risk of injury to the daughters interests was relatively slight, whereas the infringement upon defendants rights was a clear and serious danger. (Ibid.) Here, appellant faced no similar peril. Indeed, he made no showing whatsoever of good cause for a continuance.

[10] Appellant argues that a brief continuance would not have been contrary to the interests of the children. (See  352, subd. (a).) We do not necessarily agree, but note that we need not reach the question of the effect a continuance would have on the childrens interests, given that appellant provided no reason to the juvenile court in support of his request for a continuance.

[11] Appellant thus had the opportunity to confront and cross-examine the social worker who prepared the jurisdiction/disposition report, as well as to present evidence to the court, but did not do so in a timely manner. (Compare In re Dolly D. (1995) 41 Cal.App.4th 440, 442 [courts refusal to permit fathers attorney to cross-examine social worker at jurisdictional hearing because father was not present denied father his right to confrontation].)