Antonio J. v. Super. Ct.

Filed 9/12/07 Antonio J. v. Super. Ct. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Antonio J., the father of A. J., petitions this court to set aside the juvenile courts order setting a permanent plan hearing pursuant to Welfare and Institutions Code[1] section 366.26. He contends that the court violated section 352 by setting A. J.s dispositional hearing beyond the statutory deadline. We affirm.

I. FACTUAL BACKGROUND

A. J. tested positive for cocaine at birth. The San Francisco Department of Human Services (Department) filed a section 300 petition alleging that mother failed to protect A. J. in that the child was born positive for cocaine and mother had not obtained prenatal care. The petition further alleged that mother had a substance abuse problem, and that both mother and father had a long criminal history. Finally, the petition alleged that A. J.s two siblings were dependents of the court, and that the Department was recommending that parents services be terminated and that permanency planning proceed. On March 19, 2007, the court ordered that A. J. be detained in foster care.

The jurisdictional hearing was held on May 25, 2007. Parents failed to appear. The court sustained the allegations of the petition and declared A. J. a dependent of the court. Counsel for A. J. argued that under section 358, the court could continue the matter for disposition for 30 days since the Department was alleging that parents were not entitled to reunification services under section 361.5. Counsel for father urged the court to order a shorter continuance and contended that section 352, providing for a dispositional hearing within 60 days from the childs detention, was the applicable statute in the case. The court continued the matter to June 18, 2007, for a disposition hearing to follow the review hearing scheduled for A. J.s siblings.

On June 18, 2007, the court held the contested 18-month review hearing for A. J., and the six-month review hearing for A. J.s sibling. Parents failed to appear. Counsel for parents objected to having the dispositional hearing for A. J. trail the hearing for the siblings. The Departments child welfare worker testified that parents visited the children sporadically and that neither parent had housing. Mother was not in a residential treatment program, had not undergone individual therapy, and had not completed a parenting education course. Father was in a drug treatment facility, but had not participated in any parenting education courses. While mother had at one point participated in a residential treatment program and had A. J.s siblings with her in the program for 20 days, she abandoned the children when she discharged herself from the program. The child welfare worker also noted that A. J. was mothers third child born with a positive toxicology for cocaine.

The court found that parents minimally complied with their reunification requirements, that return of the children would create a substantial risk of detriment, and that continued dependency was necessary. The court terminated reunification services, approved the current placement with the foster parents, and set a section 366.26 hearing.

The court then held the dispositional hearing for A. J. The court declared A. J. a dependent of the court, and denied reunification services to parents, noting that reunification services for parents were terminated as to A. J.s siblings. The court continued the matter for a section 366.26 hearing for October 10, 2007, the same date as the hearing for A. J.s siblings.

II. DISCUSSION

Father contends that the juvenile courts continuance of the dispositional hearing was contrary to the statutory time requirements of section 352. We conclude that any error in continuing the dispositional hearing was harmless.

Section 352, subdivision (b) provides that [n]otwithstanding any other provision of law, if a minor has been removed from the parents or guardians custody no continuance shall be granted that would result in the dispositional hearing, held pursuant to section 361, being completed longer than 60 days after the hearing at which the minor was ordered removed or detained, unless the court finds that there are exceptional circumstances requiring such a continuance. The facts supporting such a continuance shall be entered upon the minutes of the court.

Here, the court ordered A. J. detained on March 19, 2007. Hence, under section 352, the court could grant a 60-day continuance of the dispositional hearing to on or before May 18, 2007, without making a finding of exceptional circumstances requiring a longer continuance. ( 352, subd. (b).) The record indicates, however, that the court appeared to rely on section 358, which grants it authority to order a continuance of a dispositional hearing of 30 days [i]f the social worker is alleging that subdivision (b) of Section 361.5 is applicable. ( 358, subd. (3).) Subdivision (3) of section 358 further mandates the social worker to notify the parents that if the court does not order reunification, a permanency planning hearing will be held and that their parental rights may be terminated. On May 25, 2007, the court, cognizant that the Department planned to rely on the bypass provision of section 361.5, subdivision (b)(10) to deny reunification services to parents, continued the matter to June 18, 2007, less than the 30 days permitted by section 358, but beyond the 60-day statutory period of section 352.

Any error in granting the continuance was harmless.[2] Section 352 specifically permits a court to continue the dispositional hearing beyond 60 days from the detention hearing if exceptional circumstances are present. While the court did not articulate those reasons on the record, it is apparent that the court continued the matter to trail the contested review hearings of A. J.s siblings, inasmuch as the Department recommended that parents reunification services be terminated and that a permanency planning hearing be set. Termination of reunification services in the case of A. J.s siblings would in turn trigger application of the bypass provisions of section 361.5, subdivision (b)(10) in A. J.s case, authorizing the court to deny services to parents due to their failure to reunify with another child.

The record shows that this was not a case where the delay in holding the dispositional hearing was contrary to the best interests of the child. Rather, in seeking the continuance the Department sought to reduce any detriment to A. J. by proceeding to a permanency planning hearing. In enacting section 352, the Legislature intended to eliminate any dillydallying in permanently placing a dependent minor and to avoid losing a child in the bureaucratic maze . . . and to remove, or at least substantially reduce, any potential detriment to the child that could be caused by court delay. . . . [D]elay disserves the interests of the minor, the parents, and the courts, and is clearly inconsistent with the intent of the Legislature. (In re Taya C. (1991) 2 Cal.App.4th 1, 8.) (In re Sean E. (1992) 3 Cal.App.4th 1594, 1597.) By trailing A. J.s dispositional hearing until after the completion of the review hearings of A. J.s siblings, the court was informed of parents failure to comply with reunification services including not regularly visiting with the children, or completing any of the requisite programs of residential treatment, therapy or parenting education, and therefore was fully prepared to adjudicate A. J.s disposition. This was not a case in which the courts continuance frustrated parents ability to have a timely hearing on A. J.s dependency. (See Renee S. v. Superior Court (1999) 76 Cal.App.4th 187, 196-198 [courts policy of conducting dependency hearings only on Thursdays and Fridays likely to cause delays in further proceedings and detriment to interests of the minor].) To the contrary, the courts continuance of the matter was for the purpose of resolving A. J.s dispositional hearing expeditiously and setting his case for a section 366.26 to adjudicate his permanent plan, and thus keeping to a minimum any delay in setting that hearing.

III. DISPOSITION

The petition for an extraordinary writ is denied on the merits. ( 366.26, subd. (l).) Our decision is final in this court immediately. (Cal. Rules of Court, rule 8.264(b)(3).)

________________________

RIVERA, J.

We concur:

___________________________

RUVOLO, P.J.

___________________________

REARDON, J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.

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

[2] Relying on Judith P. v. Superior Court (2002) 102 Cal.App.4th 535, father argues that the courts order granting the continuance was a structural error that was reversible per se. We disagree. This is not a case where parents were not provided with adequate notice or opportunity to prepare for the proceedings. (Id. at pp. 557-558 [failure to give parent mandated 10 days notice before section 366.21 hearing was structural error].) Here, parents had notice of the hearing, and were represented by counsel, but failed to appear. The courts granting of the continuance of A. J.s dispositional hearing was not for the purposes of delay, but rather was to expedite the resolution of his dependency.