In re L.O.

Filed 7/20/07 In re L.O. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Elva R. Soper, Judge. (Retired judge of the Los Angeles Super. Ct. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Affirmed.

Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant.

Joe S. Rank, County Counsel, and Sophia H. Choi, Deputy County Counsel, for Plaintiff and Respondent.

Valerie N. Lankford, under appointment by the Court of Appeal, for Minor.

Vanessa P. (mother) is the mother of L.O., now six years old. Mother challenges the juvenile courts order entered under Welfare and Institutions Code section 366.26,^[1] terminating her parental rights to L.O. Specifically, mother argues that the juvenile court abused its discretion when it declined to grant the brief continuance requested by mothers counsel so that counsel could check voice mail to determine whether mother had left a message as to why she was not present at the section 366.26 hearing. We conclude that, while we might have made a different decision depending on how busy the juvenile courts calendar was, the ruling denying the brief continuance was not an abuse of discretion.

Facts and Procedure

L.O. was born in March 2001 while mother was incarcerated. Although mother had arranged for her sister to pick up L.O. from the hospital, the sister did not appear. The Department of Public Social Services (DPSS) filed a section 300 petition and placed L.O. in the care of her maternal grandmother. In May 2001, the juvenile court took jurisdiction of L.O., approved placement with the maternal grandmother, and granted mother reunification services.

On November 13, 2002, the juvenile court ordered L.O. returned to her mother on family maintenance.

On January 31, 2003, DPSS filed a section 387 supplemental petition for more restrictive placement, alleging that mother had failed to participate in drug treatment and had abandoned L.O. with relatives. On March 4, 2003, the juvenile court was informed that mother had been re-incarcerated. The section 387 petition was sustained on April 23, 2003. The juvenile court terminated services and set a section 366.26 permanent plan hearing on the original section 300 petition, from 2001, for August 2003.

The August 2003 hearing was continued at the request of DPSS until December 18, 2003. On December 18, 2003, DPSS reported that mother had received a four-year prison sentence for drug possession, etc. The December 18, 2003, hearing was continued by stipulation of the parties.

The section 366.26 permanent plan hearing was held on March 17, 2004. At the time the court appointed the maternal aunt as L.O.s legal guardian, with mother to have visitation. The maternal aunt had initially considered adopting L.O., but opted for legal guardianship to allow mother the opportunity to reunify with L.O.

Mother was released from prison on parole, apparently in June or July of 2005, and entered an inpatient drug treatment program in July 2005.

Mother filed section 388 petitions for modification on August 8 and November 7, 2005, stating she was not getting visitation with L.O., had volunteered for a prison substance abuse program before she was released, and wanted L.O. placed with her in an inpatient drug treatment program. The juvenile court summarily denied both petitions.

Mother filed a third section 388 petition on February 23, 2006. Mother had been released from prison, was employed full time, and had completed a substance abuse program, a parenting course and anger management training, and was attending 12-step meetings. Mother stated she was not getting visits, and requested overnight visitation and reunification. The juvenile court set a hearing for March 15, 2006. Mother was present in court for the hearing on her petition, but the hearing was continued to April 24, 2006, at the request of DPSS so it could prepare a report and recommendation. That hearing was again postponed to May 17, 2006. Mother was present in court on May 17, 2006, when the court referred the matter to mediation to determine if mother and the maternal aunt could agree on visitation. On June 9, 2006, mother and the maternal aunt participated in mediation, but did not reach an agreement.

On June 15, 2006, mother was present in court for the continued hearing on her section 388 petition. The juvenile court continued the hearing to August 15, 2006, at the request of DPSS.

On July 25, 2006, the maternal aunt filed a section 388 petition asking for a change of court order that would terminate mothers parental rights and allow the maternal aunt to adopt L.O.

At the August 15, 2006, hearing on mothers section 388 petition, the juvenile court granted the petition in part by ordering monthly visitation supervised by DPSS. The court set a section 366.26 hearing for December 13, 2006, to determine whether to terminate mothers parental rights and free L.O. for adoption by the maternal aunt.

Mother was present at the section 366.26 hearing scheduled for December 13, 2006. The hearing was continued at the request of DPSS.

Mother was not present at the section 366.26 hearing held on January 22, 2007. Counsel for DPSS requested that mothers parental rights be terminated and that the maternal aunt be allowed to adopt L.O. Counsel also relayed that mothers counsel was requesting a continuance and stated, We wouldnt be opposed.

[MOTHERS COUNSEL]: Your honor, for mother since this case was brought to court via the 388 petition, my client has only missed one hearing, and that was due to transportation problems. She has been present for every other hearing. She is not here today, which leads me to believe she may have transportation problems. I would ask the Court for a brief continuance in order to determine her whereabouts and why she is not here today. She did advise me that she wanted to testify on December 13th and was prepared to do so because she opposes adoption as the permanent plan.

THE COURT: You received no phone call?

[MOTHERS COUNSEL]: Your Honor, I havent had an opportunity this morning to check voice mail. I have had contact with her otherwise. I dont know why she is not here today.

[COUNSEL FOR MATERNAL AUNT]: For the guardian, I would ask the Court to follow the recommendation from the Department.

THE COURT: The request for a continuance would be denied.

The juvenile court then terminated mothers parental rights and selected adoption as the permanent plan for L.O., with preference to the maternal aunt. This appeal followed.

Discussion

Mother argues that the juvenile courts decision to deny mothers counsel a brief continuance to check voice mail was an abuse of discretion, particularly given that: 1) counsel for DPSS was not opposed to the continuance; 2) the court had previously granted several continuances requested by DPSS; 3) mother had diligently attended all hearings in 2006 except one caused by transportation problems; and 4) mother had indicated her intent to testify that she opposed a permanent plan of adoption.

Section 352, subdivision (a) provides that continuances shall be granted only on a showing of good cause and that 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. Moreover, no continuance shall be granted that is contrary to the interest of the minor. In considering the minors interests, the court shall give substantial weight to a minors 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. ( 352, subd. (a); accord, Cal. Rules of Court, rule 5.550.)

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 re Emily L. (1989) 212 Cal.App.3d 734, 743.)

Here, mother establishes neither that the juvenile courts decision was arbitrary or capricious, nor that the decision resulted in a manifest miscarriage of justice. Mother had been duly notified of the date and time of the hearing. While it would have taken counsel only a moment to check for a message from mother, we cannot say that the juvenile court abused its discretion when it declined to continue the hearing. This is because, even if mother had left a message for counsel that she was on her way, it would have required an additional delay of the section 366.26 hearing to wait for her. In any case, this is pure speculation, as mother in this appeal does not allege that she would have appeared at the hearing on that date if only the juvenile court had granted a brief continuance.

Neither did the denial of a continuance result in a miscarriage of justice. This is because mother was ably represented at the hearing by counsel, who argued on her behalf. [P]ersonal appearance by a party at a civil proceeding is not essential; appearance by an attorney is sufficient and equally effective. [Citations.] (In re Dolly D. (1995) 41 Cal.App.4th 440, 445.)

Mother argues that her due process rights as a parent include the right to contest the contents of the report [prepared by the social services agency] by calling and cross- examining witnesses, including the preparer of the report, and presenting affirmative evidence. (Citing In re Malinda S. (1990) 51 Cal.3d 368, 382-385.) Again, these rights were protected at the January 22, 2007, hearing because mother was represented by counsel who could have, but chose not to, examined witnesses on mothers behalf.

Finally, although mothers counsel represented that mother had intended to testify at the section 366.26 hearing that she opposed the plan of adoption, mother had already made her opposition to the adoption clear. In addition, mothers counsel did not make any showing at the January 22, 2007, hearing, or in her appellate brief, as to what specifically mother would have testified to and how she would have been and was prejudiced by not testifying. Thus, mother has not carried her burden on appeal to establish that the juvenile courts ruling was arbitrary or capricious, or resulted in a miscarriage of justice.

Disposition

The order of the juvenile court terminating mothers parental rights is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

J.

We concur:

/s/ Hollenhorst

Acting P.J.

/s/ Richli

J.

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