In re Robert H.

Filed 6/18/07 In re Robert H. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County.

Anthony Trendacosta, Temporary Judge. (Pursuant to Cal. Const., art VI,  21.) Affirmed.

Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Appellant Mother, Jan H.; Donna Balderston Kaiser, under appointment by the Court of Appeal, for Appellant Father, Frank H.

Raymond G. Fortner, Jr., County Counsel, and Frank J. Da Vanzo, Principal Deputy County Counsel, for Petitioner and Respondent.

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Jan H. and Frank H. appeal from an order terminating their parental rights to their son Robert. On appeal, Mother contends that the order must be reversed because the trial court abused its discretion when it denied her request for a continuance of the Welfare and Institutions Code[1]section 366.26 hearing. Father contends that if the order is reversed as to Mother, it must be reversed as to him, too. We affirm, as we explain:

Robert was detained in July 2004, after his maternal grandmother brought him to DCFS offices. He was fifteen months old. His grandmother told DCFS that Robert had been left with her after Mother and Father had a "domestic violence incident," and that Robert had been exposed to domestic violence on many other occasions. She also said that both parents were using drugs, that Father had threatened her, and that Mother was in jail.[2]

The detention report notes that Mother's four older children (not with Father) were or had been dependents of the court, and that Mother had not reunified with any of them. The report recites the allegations of the sustained petition regarding those children, including allegations of drug use, incarceration, and a young child left unattended in a park.

A section 300 petition was filed on July 22. After that, Father was incarcerated for a short time, for violation of a restraining order obtained by his parents. He was released in August, and Mother was released on October 6.

In August, Mother told DCFS that she loved Robert and would do whatever the court told her to do, to get him back. She made a similar statement in October.

During an October 28 visit with Robert at DCFS offices, Mother appeared to be under the influence of drugs and Father was "controlling." When the social worker asked both parents to drug test, Father yelled and screamed. He grabbed Mother and insisted that she leave with him. His conduct required the intervention of a security guard.

At about this time, one of Mother's older children (Francheska), Franchescka's cousin Amber, and Mother's sister all told DCFS that Mother and Father had engaged in domestic violence in Robert's presence and that they used drugs. Amber also said that they had provided drugs to her and Francheska and that Father had engaged in "inappropriate sexualized behavior" toward them.

On October 28, 2004, the section 300 petition was sustained under section 300, subdivision (b), after Mother submitted on the DCFS reports and Father pled no contest. The sustained allegations concerned the parents' history of domestic violence and drug use. Mother requested reunification services. The request was denied (361.5, subd. (b)(13)), although the court noted that she could test and get into a program, and "come back . . . and convince the court," that she had rehabilitated herself.

Services were ordered for Father, but were terminated in June 2005, on evidence that he had not completed his court-ordered programs. (Indeed, other than his representation, there is no evidence that he even enrolled.) During this period his behavior was erratic. He did not drug test, and thus could not visit with Robert.

Parental rights were not terminated until October 2006. Between the detention and termination of rights, Robert developed normally. When he was first detained, he cried a lot, and ducked and cringed at sudden movements. By March 2005, he was developing appropriately and seemed relaxed and comfortable with his caregivers. He was described by the social worker as "darling," "adorable," and "bright." In July 2005, a paternal aunt expressed interest in adopting him, and she soon began to visit. In August 2006, after Robert's aunt bought a home, he was placed with her. When parental rights were terminated, adoption with her was his permanent plan. DCFS reported that the home was loving and appropriate, and that Robert was attached to his aunt.

Mother's contact with Robert was infrequent. She visited for several months after the detention, but stopped in December 2004 when her mother was no longer able to provide transportation. In October 2005, the social worker noted that it was likely that Mother had seen Robert in the past six months, because he saw his grandmother for day visits, and his grandmother was the guardian of two of Mother's older children. However, Robert's grandmother's visits stopped after she was in a car accident that fall. Much later, after Robert was placed with his aunt, Mother requested visits. In October 2006, DCFS reported that she had had two visits with Robert during the reporting period. Robert enjoyed the visits, but he had not seen Mother in a year, and had no idea who she was. Mother told DCFS that she wanted Robert returned to her care.

Mother did not do well in other ways: In April 2005, DCFS reported that she had had two clean drug tests, but had missed five tests. In October 2006, DCFS reported that she had had one clean test and one missed test. She also had contact with Father, who continued to behave erratically. In July 2005, when Father called the social worker and screamed and swore at her, the social worker could hear Mother in the background, telling Father to let her out of the car.

For the October 2005 hearing, set as a section 366.26 hearing, DCFS recommended that parental rights not be terminated until a homestudy was completed on Robert's aunt. The hearing was continued. For the April 2006 hearing, DCFS recommended termination of parental rights. The hearing was again continued, and in August DCFS made the same recommendation. Mother was not present at the August hearing, but the court noted that the court officer had received a phone call from her, and that she had said that circumstances regarding her health and the health of a relative precluded her from being in court. The court continued the hearing until October, for a contested hearing. For that hearing, DCFS again recommended termination of rights.

Mother was not present at the October 2006 section 366.26 hearing. Her lawyer asked for a continuance, but gave no grounds, and the request was denied. It is that ruling which forms the basis for this appeal.

The applicable legal rules are clear: "The juvenile court may continue a dependency hearing at the request of a parent for good cause and only for the time shown to be necessary. ( 352, subd. (a); Cal Rules of Court, rule 1422(a)(2).) Courts have interpreted this policy to be an express discouragement of continuances. (See, e.g., In re Emily L. (1989) 212 Cal.App.3d 734, 743.) The court's denial of a request for continuance will not be overturned on appeal absent an abuse of discretion." (In re Karla C. (2003) 113 Cal.App.4th 166, 179-180.) Under the governing statute, section 352, "no continuance shall be granted that is contrary to the interest of the minor." ( 352, subd. (a).)

Mother cites her recent clean drug tests, recent visits, and recent request to have Robert returned to her. She argues that she had not previously requested continuances and that her request was not for purposes of delay, and cites the fact that the matter was calendared as a contested hearing, so that the court knew that her presence was required. She points out that the record indicates that she was in touch with her lawyer and DCFS, which in her view means that the continuance would be brief. She also argues that the hearing was an important one, and that she was denied the opportunity to testify on her own behalf.

Mother argues that Robert's best interests would have been served by continuing the case to allow her to contest termination of rights. She argues that her efforts toward rehabilitation indicate that future contact with her would be beneficial to Robert, and cites her initial request for reunification services and her statements to DCFS, early in the dependency, that she wanted to participate in services and reunite with Robert. Finally, Mother argues that the denial of a continuance amounted to a due process violation.

We see no abuse of discretion, and no due process violation.

Mother said that she wanted to rehabilitate herself and reunite with Robert, but she made no effort to do so, and that tells the relevant story. Even though no reunification services were ordered, she could have sought drug treatment and participated in the kind of programs typical of a reunification case plan. She did not do so. She did not drug test, and visited so infrequently that Robert did not know her. She made no efforts, and her few clean drug tests and few visits just prior to termination of rights do not change that fact.

Nor do we see that Mother's presence at the section 366.26 hearing would have made any difference. Even if the continuance was brief, it would have constituted an unnecessary delay, because it would have been pointless. Robert was unquestionably adoptable. In such a case, parental rights must be terminated at the section 366.26 hearing unless one of the statutory exceptions applies. ( 366.26, subd. (c)(1).) Given Robert's successful placement, and Mother's lack of visits, we cannot see that any of them does. This was a textbook case for termination of rights.

Disposition

The order terminating Mother's and Father's parental rights is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, J.

We concur:

TURNER, P. J.

MOSK, J.

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[1]All further statutory references are to that code.

[2]DCFS reported that Mother was incarcerated on a charge of cruelty to a child. At the detention hearing, her lawyer told the court that she had turned herself in on a four-year-old warrant.