^{In re Desirae B}

Filed 5/26/06  In re Desirae B. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977}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

SECOND APPELLATE DISTRICT

DIVISION TWO

            APPEAL from orders of the Superior Court of Los Angeles County.  Emily A. Stevens, Judge.  Affirmed.

            Kimberly A. Knill, under appointment by the Court of Appeal, for Defendant and Appellant Lisa H.

            Rich Pfeiffer, under appointment by the Court of Appeal, for Movant and Appellant Kenneth B.

            Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Lisa Proft, Deputy County Counsel, for Respondent.

* * * * * *

            Lisa H. (mother) is the mother of three children, D.Y., age 12, Desirae B., age 9 and Kendale B., age 7.  Mother and Kenneth B., who is the alleged father of Kendale B., appeal from an order of the juvenile court terminating mother's parental rights.  Kenneth B. also appeals an order of the juvenile court denying his motion for a continuance of the Welfare and Institutions Code section 366.26 hearing.[1]  We affirm the orders of the juvenile court.

CONTENTIONS

            Mother and Kenneth B. contend that the juvenile court erred in terminating mother's parental rights because the court lacked clear and convincing evidence that her children were adoptable as required by section 366.26, subdivision (c)(1).  Kenneth B. further contends that (1) he was denied due process throughout the dependency proceedings because he was not provided with notice of the interim review hearings; and (2) the juvenile court erred in denying his motion for a continuance of the section 366.26 hearing.

FACTS AND PROCEDURAL HISTORY

            1.  The voluntary family maintenance agreement

            D.Y., Desirae B., and Kendale B. were first brought to the attention of the juvenile authorities in September 2003, when the Los Angeles County Department of Children and Family Services (the department) received a referral alleging that the minors were being abused by their mother.  The responding social worker determined that the home where mother and the minors were living was unsafe, with large holes in the kitchen floor, rats and roaches, broken and leaking plumbing, broken windows, and an unsafe sidewalk.  In addition, mother admitted to smoking marijuana approximately two times per month.  Mother admitted to hitting the minors on their buttocks, but claimed that she never bruised them.

            In October 2003, mother signed a voluntary family maintenance agreement (VFM).  Pursuant to the VFM, she agreed to complete a substance abuse program including random drug testing, parenting classes, individual counseling and family counseling, and to obtain suitable housing.  However, in November 2003, mother dropped the children off with their maternal grandmother.  She notified the department, indicating that she wanted the children to be with their maternal grandmother so that she could get herself together.  In April 2004, mother had failed to comply with the VFM.  She admitted to smoking marijuana daily and further admitted that her home was not safe for the minors' return. 

            2.  The section 300 petition and jurisdictional hearing as to mother

            On April 28, 2004, the department filed a petition alleging that the children came within the jurisdiction of the juvenile court under section 300, subdivision (b).  The petition alleged that the children's mother was a frequent user of marijuana, rendering her incapable of caring for the children, and that mother had failed to comply with the VFM.  It further alleged that the detrimental conditions of mother's home endangered the children's physical and emotional health and safety and placed them at risk of serious harm. 

            An initial detention hearing was held on April 28, 2004.  At the hearing, mother indicated that Kenneth B. was the father of Kendale.  The juvenile court specifically found that the three different fathers of the three children were alleged fathers, not presumed fathers.[2]  In its report of April 28, 2004, the department indicated that it had been unable to locate any of the alleged fathers. 

            A second hearing was held on May 26, 2004.  The court sustained the petition and declared the children dependents.  Mother was absent but was afforded reunification services.  The court continued the proceedings as to the fathers in order to provide them with notice, and ordered that the department present evidence of due diligence in attempting to locate the fathers. 

            3.  Jurisdictional hearing as to alleged fathers

            On July 28, 2004, a hearing was held regarding the department's efforts to locate the fathers.  The department filed a report indicating that one viable address was noted at the home of Kenneth B.'s aunt.  Upon visiting the address, a department social worker spoke with Kenneth B.'s niece.  She had no information as to how to contact Kenneth B.  The social worker also spoke with Kenneth B.'s aunt, who indicated that Kenneth B. did not live at that address, but agreed to accept notice for him.[3] The aunt indicated that she would try to locate Kenneth B. and give him notice as soon as possible.  She informed the social worker that Kenneth B. received mail at the residence.  She further indicated that if unable to locate Kenneth B., she and Kenneth B.'s mother would appear in court on his behalf.

            Kenneth B.'s relatives were unable to locate him in time for the July 28, 2004 hearing, but his sister, mother, and aunt were all present at the hearing.  While these relatives appeared certain that Kenneth B. was Kendale's father, there was some uncertainty as to whether he was Desirae's father.  The court ordered that the department locate Kendale's birth certificate, stating â€