Filed 5/12/17 In re Princess L. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



In re PRINCESS L., a Person Coming Under the Juvenile Court Law.

SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

v.

J.K., et al.,

Defendants and Appellants.
D071425


(Super. Ct. No. EJ3873)

APPEAL from an order of the Superior Court of San Diego County, Gary M. Bubis, Judge. Affirmed.

Julie E. Braden, under appointment by the Court of Appeal, for Defendant and Appellant J.K.
Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant J.L.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Dana C. Shoffner, Deputy County Counsel for Plaintiff and Respondent.
J.K. and J.L. appeal from an order terminating parental rights to their daughter, Princess L., under Welfare and Institutions Code section 366.26. J.K. contends the court erred in denying her request for a continuance. J.L. joins in J.K.'s argument but raises no other issues. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Princess L., who is now 10 years old, was adjudicated a dependent of the juvenile court in March 2015. Her mother, J.K., had a history of noncompliance with treatment for her mental health condition, which was diagnosed as bipolar disorder with dependent and borderline personality characteristics. Princess had limited contact with her father. He did not participate in reunification services. The court placed Princess in the care of her maternal grandparents (Grandparents).
During the first six-month review period, J.K. exhibited volatile behavior and violent outbursts. In early 2015, J.K. came to Grandparents' home unannounced several times. On one occasion, J.K. was yelling and Princess locked herself in the bathroom. She asked Grandmother, "Why don't I have a normal mom? When will this be over?" On another occasion, J.K. was swearing and yelling. Princess told the social worker her mother's behaviors made her feel sad and scared.
In August, J.K. was involuntarily hospitalized after reporting she had been assaulted by 12 men. She later said, "I think I just imagined it." In September 2015, during another hospitalization, J.K. sent numerous text messages to the social worker stating her father had killed her family and was raping Princess.
The social worker said Princess had a sweet demeanor and was a friendly, happy child. She was adorable, talkative and engaging. Princess was happy living with her grandparents and wanted to stay with them. Princess said she did not feel safe with her mother and she was afraid her mother would take her from Grandmother. Princess underwent a psychological examination. The doctor concluded that Princess's history of neglect had negatively impacted her ability to regulate her emotions and behavior, and she would benefit from ongoing therapy services.
Grandparents were willing to assume guardianship of Princess. Princess was becoming more settled emotionally and better able to manage any impulsive behavior. Although Princess struggled at school at times, she demonstrated a marked academic improvement in Grandparents' care.
In reports prepared for the 12-month review hearing, the social worker reported that J.K. made some progress with her reunification case plan. J.K. was compliant with her medication regimen and had not had any psychiatric hospitalizations during the second six-month review period.
J.K. had supervised visits with Princess twice a week. Princess said she felt safe with her mother when someone was supervising their visits. At Princess's ninth birthday party in January 2016, J.K. smashed cake in Princess's face, causing her to run out of the room in tears, screaming, "that's why I didn't want you []here." J.K. responded, "It's just fucking cake." Grandmother said Princess was upset the rest of the day.
At the 12-month review hearing, the court terminated reunification services and set a section 366.26 hearing for August 25, 2016.
In reports prepared for the section 366.26 hearing, the social worker reported that J.K. was hospitalized from mid-May to mid-June, presenting as "fairly manic." After J.K. was released, the social worker supervised visits between J.K. and Princess. On June 18, Princess asked to end the visit early. She told the social worker J.K. was asking questions about her schedule. Princess said she was afraid J.K. would start following her. On July 17, the visit appeared to be going well but Princess asked to leave early, saying she was tired. On July 29, J.K. asked Princess if she wanted to spend more time with her. When Princess did not respond, J.K. asked her again. Princess said, "I don't know." J.K. asked the same question a third time. Princess responded, "Yeah."
The social worker reported that Princess did not feel safe being alone with her mother. Princess sought attention, affection and comfort from Grandparents, and wanted them to adopt her. She said adoption meant "Nana and Papa will be my mom and dad." Princess's therapist said the permanency of adoption should increase Princess's security and decrease her anxiety about returning to her mother's care. Grandparents said it was a difficult decision for them. However, they were willing to adopt Princess because adoption was in her best interests.
During the dependency proceedings, J.K. was represented by attorneys from the Dependency Legal Group (DLG). At a hearing on August 25, 2016, DLG attorney Behnaz Zamani represented J.K., who was not present. Zamani said she needed discovery on visitation. The court set the section 366.26 hearing for trial on October 5 at 1:30 p.m. On October 5, at the Agency's request, the section 366.26 hearing was advanced to the morning calendar. The Agency requested a continuance to allow Grandparents to complete their adoptive home study. Zamani represented J.K., who was not present, and submitted on the Agency's request. The court continued the section 366.26 hearing to December 6.
Effective October 29, 2016, the Judicial Counsel of California entered in a contract for representation in juvenile dependency proceedings in San Diego County Superior Court with Children's Legal Services of San Diego (CLSSD) and Dependency Legal Services San Diego (DLSSD). The previous contract with DLG for those services was terminated and DLG was relieved as attorney of record in all San Diego County dependency proceedings. In its place, CLSSD was appointed to represent children and nonminor dependents, and DLSSD was appointed to represent parents.
On December 6, the court appointed Zamani to represent J.K., who was present. Zamani asked the court for a brief continuance to "further discuss the proceeding with my client." She said, "Unfortunately, we've not been in communication in the recent month. I do want to discuss further with the Mother whether a 388 motion would be appropriate and asking for custody at this time."
The court denied the motion for continuance and proceeded with the section 366.26 hearing. Without objection, the Agency's reports were admitted into evidence. The reports stated Grandparents successfully completed their adoption home study. Princess wanted her grandparents to adopt her. She did not feel safe with her mother and had not had any contact with her father. J.K. did not present any affirmative evidence or cross-examine the social worker. After hearing argument, the court found that Princess was adoptable and adoption was in her best interests, and terminated parental rights.
DISCUSSION
A
Overview
At a party's request, the juvenile court may continue any dependency hearing 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 interests of the child. In considering the child's interests, the court is required to give substantial weight to a child's need for prompt resolution of his or her custody status, the need to provide children with stable environments and the damage to a child from 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 for the continuance. (§ 352, subd. (a).)
J.K. argues the court erred when it denied her request for a continuance of the section 366.26 hearing to meet with newly appointed counsel to review the case and prepare defenses to the recommendation to terminate parental rights. J.K. argues the manner of the appointment violated her statutory rights to counsel under section 317, subdivision (d), and to notice of change of counsel under Code of Civil Procedure, section 284. She maintains the error was not ameliorated by counsel's representation of her at two prior hearings.
J.K. argues the denial of her request for a continuance assured a lack of meaningful and effective legal representation and violated her due process rights to be heard. She argues the lack of a continuance precluded counsel from filing a section 388 petition for return of the child to her care or for additional family reunification services, and denied her a meaningful right to be heard on the issue of the beneficial parent/child relationship exception to termination of parental rights.
The Agency contends J.K. inaccurately portrays Attorney Zamani as "newly-appointed counsel" who sought to "consult with her new client and prepare for the hearing." In contrast, the Agency asserts Zamani was familiar with the case and had appeared on J.K.'s behalf several times over several months. The Agency argues the record shows that Zamani sought a continuance to determine whether to file a section 388 petition, not because she needed more time to prepare for the section 366.26 hearing. The Agency asserts the lack of evidence in the record of notice pursuant to Civil Code of Procedure section 284, in view of the confidentiality of attorney/client communications, does not conclusively show that J.K. did not receive notice of substitution of counsel. The Agency argues the change of law offices did not impact counsel's ability to provide effective assistance, and the court did not abuse its discretion in denying a continuance of the section 366.26 hearing.
A reviewing court will reverse an order denying a continuance only upon a showing of an abuse of discretion. (In re Gerald J. (1991) 1 Cal.App.4th 1180, 1187.) The abuse of discretion standard gives the court substantial latitude. However, the scope of the court's discretion is determined by the legal principles governing the subject of the action. A judicial determination that falls outside the applicable principles of law constitutes an abuse of discretion. (Nickolas F. v. Superior Court (2006) 144 Cal.App.4th 92, 119.)
B
The Record Does Not Support J.K.'s Recitation of the Facts
The record belies J.K.'s characterization of Zamani as "newly-appointed counsel" At the detention hearing, the court appointed law firm DLG to represent J.K. For the most part, one attorney from DLG represented J.K. during the reunification phase of the dependency proceedings. Following termination of reunification services, Zamani, who was also employed by DLG, represented J.K. At her first appearance in the case, Zamani set the section 366.26 hearing for trial. On the date set for trial, she appeared on J.K.'s behalf. The Agency asked for a continuance to allow Grandparents to complete their adoption home study. The court granted the request for continuance and delayed the trial until December 6.
Several weeks later, on October 27, the Juvenile Division of the San Diego Superior Court issued an order relieving DLG as attorney of record in all dependency proceedings and appointing CLSSD to represent children and nonminor dependents, and DLSSD to represent parents, in dependency proceedings.
On December 6, Zamani stated her appearance, "Behnaz Zamani, from the Law [Office] of Rommell Cruz on behalf of the mother who is present in court." The December 6 minute order states, "Behnaz Zamani, (DLS1) is appointed for [J.K.], (MOTHER)."
The record does not support J.K.'s assertion that Zamani sought a continuance to "consult with her new client and prepare for the hearing." Zamani asked the court for a brief continuance to discuss the case with J.K. to determine whether filing a section 388 motion would be appropriate. J.K. was not a "new client." Zamani said she had not been in contact with J.K. in the "recent month." She did not represent she had inadequate time to prepare for the section 366.26 hearing or that she did not have any contact with her client between the October 5 and December 6 hearings. As we will discuss, J.K.'s inaccurate factual representations undermine her substantive arguments. We first turn to her assertion she was denied her statutory rights under section 317 and Code of Civil Procedure section 284.
C
J.K. Was Not Prejudiced by the Manner of Appointment of Counsel
A parent in a dependency proceeding has constitutional and statutory rights to notice and an opportunity to be heard, and rights to counsel. (§§ 290.1 et seq.; In re J.F. (2011) 196 Cal.App.4th 321, 335.) Under section 317, if a parent is unable to afford counsel and his or her child has been placed, or the Agency recommends placement, in out-of-home care, the court is required to appoint counsel for the parent unless the parent knowingly and intelligently waives counsel. (§ 317, subd. (b).) In addition to the statutory right, a parent has a constitutional right to effective assistance of counsel where the proceedings may result in the termination of parental rights. (In re Paul W. (2007) 151 Cal.App.4th 37, 44-45.)
All parties who are represented at dependency proceedings are entitled to competent counsel. (§ 317.5, subd. (a).) Counsel shall represent the parent at the detention hearing and at all subsequent proceedings before the juvenile court. Counsel shall continue to represent the parent unless relieved by the court upon the substitution of other counsel or for good cause. (§ 317, subd. (d).) An attorney who seeks to be relieved must give the client prior notice of the application. (Code Civ. Proc., § 284.)
Code of Civil Procedure section 284 states the substitution of an attorney in an action or special proceeding may be changed at any time before or after judgment or final determination "[u]pon the order of the court, upon the application of either client or attorney, after notice from one to the other." (Code Civ. Proc., § 284.) Code of Civil Procedure section 284 applies to dependency proceedings in the juvenile court, which are special proceedings. (In re Malcolm D. (1996) 42 Cal.App.4th 904, 914; see Code Civ. Proc., §§ 22, 23.)
Section 317, subdivision (d) requires counsel to represent parents at the detention hearing and all subsequent proceedings in juvenile court. The record shows that J.K. was represented by counsel at all dependency hearings. An order relieving law firm DLG as attorney of record and appointing DLSSD to represent parents in dependency proceedings in San Diego County, effective October 29, 2016, was filed on October 27, 2016. Thus, J.K. received continued representation as required under section 317, subdivision (d).
The record does not show that J.K. received notice of substitution of an attorney under Code of Civil Procedure section 284. We reject the Agency's argument J.K. may have received a confidential attorney/client communication regarding the substitution, and therefore does not meet her burden on appeal to show error. The Agency's argument is speculative and legally incorrect. The purpose of a notice of substitution of attorney under Code of Civil Procedure section 284 is to inform opposing counsel of record, their clients, and the court of the attorney "with whom they are authorized to deal." (McMillan v. Shadow Ridge At Oak Park Homeowner's Assn (2008) 165 Cal.App.4th 960, 965.) The notice of substitution of attorney should have been sent to J.K. and filed with the court.
J.K. does not show she was prejudiced by the lack of notice under Code of Civil Procedure section 284. Zamani represented J.K. at all the earlier section 366.26 proceedings. On December 6, 2016, Zamani represented J.K. at trial. J.K. did not object to the appointment of counsel. On appeal, J.K. does not show how receiving notice of the change in law firms would have resulted in any other outcome—which was the continued representation by the same attorney who had represented her at all previous section 366.26 hearings. We conclude that error, if any, is harmless.
D
J.K. Was Not Denied Effective Assistance of Counsel
We are not persuaded by J.K.'s claim she was prejudiced by counsel's inability to ascertain her wishes and current circumstances with respect to filing a section 388 petition. J.K.'s wishes and current circumstances, by themselves, do not determine whether the court will entertain, much less grant, a section 388 petition. The focus is on the child's best interests. A section 388 petition must state a prima facie case to show the proposed modification is in the child's best interests. (§ 388, subd. (d).) Whether the petitioner makes a prima facie showing for a hearing on a section 388 petition, depends on the facts alleged in the petition and the undisputed facts that previously have been established in the case. (In re B.C. (2011) 192 Cal.App.4th 129, 141.)
Here, the record shows that throughout the dependency proceedings, Princess did not feel safe visiting with her mother unless another adult was supervising the visits. After J.K. smashed cake in Princess's face on her birthday, Princess burst into tears and screamed "that's why I didn't want you []here." Princess wanted to be adopted by her grandparents and understood they would be her "mom and dad." Princess's therapist said adoption should ease Princess's anxiety about her mother taking her away from Grandmother. Absent any showing that modification of the orders removing Princess from J.K.'s custody and terminating reunification services would be in the child's best interests, the court would not have granted a hearing on a section 388 petition. Thus, error, if any, is harmless beyond a reasonable doubt. (In re Justice P. (2004) 123 Cal.App.4th 181, 193 [in dependency proceedings, due process violations have been held subject to the harmless beyond a reasonable doubt standard of prejudice].)
We are not persuaded by the argument J.K. was denied a meaningful right to be heard on the issue of the beneficial parent/child relationship exception to termination of parental rights because of her inability to consult with counsel and prepare for the hearing. The record supports the reasonable inference Zamani reviewed the case with J.K. before trial. Zamani received the Agency's court reports in August and October. She requested discovery of visitation on August 25. The court continued the trial until October 5. The record supports the reasonable inference Zamani was prepared for trial on October 5. The matter was advanced to the morning calendar when the Agency requested a continuance. The Agency filed an addendum to their court report on December 6. The only new evidence in the report concerned the approval of Grandparents' adoptive home study. At the December 6 hearing, Zamani did not tell the court the change in law firms had left her with inadequate time to prepare for the section 366.26 hearing or that she could not effectively represent her client. The Agency's December 6 addendum did not present any new evidence requiring further investigation. The record shows beyond a reasonable doubt J.K. received her due process rights to notice of the hearing, the opportunity to be heard, and representation by competent counsel.
In view of the child's interest in resolution of her custody status (In re A.M. (2008) 164 Cal.App.4th 914, 925) and judicial disfavor of section 388 petitions filed on the eve of the section 366.26 hearing (In re Edward H. (1996) 43 Cal.App.4th 584, 594), we conclude that the court did not abuse its discretion when it denied J.K.'s request for a short continuance to discuss with her attorney whether to file a section 388 petition at the section 366.26 hearing. (§ 352.)
DISPOSITION
The findings and orders terminating parental rights are affirmed.




HALLER, J.

WE CONCUR:




NARES, Acting P. J.




AARON, J.