In re Noah C.

Filed 5/7/08 In re Noah C. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Christian F Thierbach, Judge. Affirmed.

Sharon S. Rollo, 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.

Nicole Williams, under appointment by the Court of Appeal, for Minor.

Trisha S. (Mother) appeals from the termination of her parental rights to Noah C. from a Welfare and Institutions Code section 366.26 hearing.^{[1], [2]} Mother raises one issue on appeal: that the juvenile court erred by denying her request for a continuance of the section 366.26 hearing so that she could provide additional documentation supporting her section 388 petition.

We find no error. Hence, we will affirm.

I

PROCEDURAL AND FACTUAL BACKGROUND

On September 24, 2006, the Riverside County Department of Public Social Services (the Department) was notified by the Riverside County Regional Medical Center that Mother had tested positive for methadone at the time she delivered Noah. Noah was being treated for methadone withdrawal in the Neonatal Intensive Care Unit (NICU).

A section 300 petition was filed by the Department on September 28, 2006, on behalf of Noah against Mother and Father. Mother and Father had four other children together: then 17-year-old H.C., 16-year-old M.C., 10-year-old M.R.C., and 6-year-old R.C. All four of Noahs siblings had been removed from the custody of Mother and Father. Reunification services had been discontinued as to the four siblings, and a Planned Permanent Living Arrangement (PPLA) was being established.^[3] It was alleged in the section 300 petition, pursuant to subdivision (b), that there was willful neglect of Noah and his siblings by Mother. Mother had a substance abuse problem and had failed to reunify with her other children. There were also allegations of abuse and/or neglect committed by Mother against Noahs siblings ( 300, subd. (j)) and allegations against Father for failure to support Noah because Father was incarcerated ( 300, subd. (g)).

Pursuant to the detention reports, H.C., M.C., R.C. and M.R.C. had been removed from Mothers custody due to neglect and her abuse of heroin. Reunification services as to Noahs siblings had been terminated on October 20, 2005. Father was currently in prison. Mother was being prescribed methadone by a treatment center and was currently living in a sober living center. Both Father and Mother had extensive criminal records.

At the detention hearing held on September 29, 2006, the juvenile court found that a prima facie case had been made for detention of Noah outside the home. Visitation was to be directed by the Department.

In a jurisdictional/dispositional report filed on October 26, 2006, the Department recommended that no reunification services be offered to Mother pursuant to section 361.5, subdivision (b)(10) and (13) and none to Father under section 361.5, subdivisions (a) and (b)(10).^[4] The Department recommended that a section 366.26 hearing for a permanent plan of adoption be established within 120 days.

The report detailed that between 1996 and 2004, Mother had frequently left Noahs siblings unattended and had used heroin in their presence, which resulted in their being removed from the home at various times and then returned to her care when she was off drugs. Mother was currently on probation for possession of a controlled substance. She began methadone treatment when she found out she was pregnant with Noah. Father was scheduled to be released from prison in November 2006. Mother expressed a strong desire to reunify with Noah.

A PPLA with the maternal grandmother, P.S., was being considered for Noahs siblings. Since P.S. lived in Alabama, an Interstate Compact on Placement of Children (ICPC), pursuant to Family Code section 7900, was pending. Noah continued to require care in the NICU for methadone withdrawal, and there was no scheduled release date. Mother had visited Noah in the hospital 18 out of 25 days.

At the contested jurisdictional hearing held on December 20, 2006, Mother requested that reunification services with Noah be considered. Mother had proof she was in a sober living home. She also had tested negative for drugs with the probation department since September 2006. She was being treated with methadone.

The juvenile court struck the allegations in the section 300 petition pursuant to subdivisions (b)(3) and (g)(1) (failure to seek prenatal care and absence of Father). Mother and Father submitted on the remaining allegations in the petition, and the juvenile court found that Noah came within the remaining allegations. The juvenile court found that the Department need not provide Mother and Father reunification services pursuant to section 361.5, subdivisions (a) and (b)(10) and (13). The juvenile court applauded Mothers efforts to get off of drugs, but her drug use had been ongoing for 10 years. A contested selection and implementation hearing pursuant to section 366.26 was set for April 19, 2007. The court granted weekly visitation to Mother and Father.

The juvenile court advised Mother and Father of the writ requirements pursuant to California Rules of Court, rule 8.450. Neither filed a writ petition.

An ex parte ICPC request was granted for Noah in order to place him with the maternal grandmother in Alabama.

The Department filed an addendum report on April 4, 2007. In that report, the Department requested a continuance to June 26, 2007, to coincide with the status review hearing. Noah was now residing in a foster home; the foster parents were interested in adopting him. P.S. had been approved to provide a PPLA for Noahs siblings, M.R.C. and R.C. The Department was awaiting ICPC approval for Noah to reside at P.S.s home with his siblings.

Father and Mother had attended weekly visitation with Noah and had established an appropriate bond. Mother had been attending Alcoholics Anonymous/Narcotics Anonymous (AA/NA) meetings and had completed a parenting class. Father and Mother still failed to demonstrate a change in their lifestyle and would need to establish stable housing and an ability to care for Noah on a daily basis in order for Noah to be returned to their care. The section 366.26 hearing was continued until June 4, 2007.

On April 23, 2007, Mother filed a section 388 petition, which will be addressed more fully, post.

A section 366.26 report was filed on May 11, 2007. The Department recommended that the parental rights of Mother and Father be terminated and a permanent plan of adoption be ordered. Mother and Father had continued to attend weekly visitation with Noah, and the visits had gone well.

P.S. had not been approved for placement of Noah despite the fact that there was approval for two of his siblings. P.S. was 68 years old, and there was concern she could not provide long-term care for Noah. P.S. had shown some difficulty in handling the two siblings during an extended visit, and adding Noah would put stress on the family. Mother had moved three times in the previous four months; she was unable to provide stable housing. Mother and Father were no longer together. Mother planned to move in with her father. Father was not participating in any programs. The Department recommended that the parental rights of Mother and Father be terminated and that adoption be the permanent plan.

Continuances of the sections 388 and 366.26 matters were granted until October 31, 2007, which will be addressed in more detail, post.

The contested section 366.26 hearing and determination on the section 388 petition were held on October 31, 2007. Mother requested a continuance in order to provide additional evidence in support of the section 388 petition. The juvenile court denied the continuance and denied the section 388 petition.

The juvenile court then turned to selection and implementation. It indicated it had read and considered the section 366.26 report filed on May 11, 2007, and two other reports filed on August 27 and October 4, 2007. Mother requested that legal guardianship of Noah be considered so that she would have time to collect certificates of completion of programs and to regain custody of Noah. The juvenile court found that Noah was adoptable and that the parental rights of Mother and Father should be terminated. Mother appealed.

II

THE JUVENILE COURT DID NOT ABUSE ITS DISCRETION BY DENYING MOTHERS REQUEST FOR A CONTINUANCE

Mother contends that the juvenile court abused its discretion when it refused to continue the section 366.26 hearing in order for her to provide additional evidence in support of her section 388 petition.^[5]

A. Additional factual background

Mother filed her section 388 petition on April 23, 2007. In the petition, Mother asked that the juvenile court reverse its prior order denying reunification services to her. Mother had enrolled in a methadone detoxification program, she had completed parenting classes, and she had tested negative for substances. She was visiting Noah. It would be beneficial for Noah to bond with her. Mother submitted documentation that she had attended anger management classes, was registered in a methadone program, had completed parenting classes, and had completed something termed the Alpha Programs on April 4, 2007. She alleged that she was submitting to random tests, presumably for drugs, with her parole officer. Father did not file a section 388 petition.

A stipulated continuance for both the section 388 and section 366.26 matters was agreed upon to July 24, 2007. On July 24, 2007, Mother requested a continuance of the section 388 hearing. The Department opposed any continuance. The continuance was granted to August 30, 2007, but the juvenile court warned Mother that this would be the last one.

An addendum report was filed by the Department on August 27, 2007, to address the section 388 petition filed by Mother. The Department again recommended a permanent plan of adoption and sought denial of the section 388 petition. Noah was now 11 months old. The Department was having trouble keeping in contact with Mother due to her frequent moves, and she had not contacted the Department regarding her progress. The Department also believed that, should Mother be offered a case plan and reunification services, it was highly unlikely she would successfully complete them based on prior inadequate compliance.

On August 30, 2007, the section 388 petition was called for argument by the juvenile court. Mother again requested a continuance so that she could show she had had negative drug tests. Mother argued that she had completed detoxification from methadone and had done everything she could to get Noah back. Noahs counsel objected to the granting of the section 388 petition because Mother had completed detoxification before and had relapsed, and Noah was in a stable home.

The juvenile court continued the hearing, along with the contested section 366.26 hearing, to October 10, 2007, so that Mother could provide proof of compliance with a methadone detoxification program and clean drug tests. The juvenile court indicated it would consider reunification services if Mother had truly shown she was off drugs this time.

Another addendum report was filed on October 4, 2007. According to the report, when the Department attempted to contact Mother at the number she had given, Mother no longer lived at the location. Mother indicated that she was being drug tested at a sober living home but could not provide specific dates. She did not have copies of certificates for programs in which she claimed to be participating because she claimed she had given the certificates to her attorney. Mother told the Department she was unable to come to the office.

When Mothers attorney was contacted, she indicated that she had no certificates other than the ones already presented to the juvenile court. Mother was contacted again. Mother claimed that she was now living with a friend, even though she had previously indicated she was in a sober living home. Mother again refused to come into the Departments office. She also indicated that she was looking for her completion certificates in her belongings, even though she previously stated that she had given them to her attorney. Two additional calls to Mother went unanswered, and the Department was unable to verify Mothers address.

The Department also noted that although it appeared Mother had completed a methadone detoxification program, she had completed no further drug treatment, so it was impossible to determine whether the detoxification had been successful. Mother was unemployed, and her living situation was unstable.

The Department filed formal opposition to the section 388 petition on October 5, 2007. The Department indicated that the section 388 petition did not make a prima facie showing that the proposed change (granting six months of reunification services) would be in Noahs best interests. Mother had not shown that she had participated in any type of counseling or a regular drug program. Mother could not show that she was ready to take immediate custody of Noah and take care of him on a permanent basis. Mother had failed in reunification plans with all of Noahs siblings.

Mother was granted a one-day continuance in order to respond to the written opposition. In her reply to the opposition, Mother claimed a changed circumstance of getting off methadone as of August 1, 2007. She had attended AA/NA meetings. She claimed to have completed her case plan for Noahs siblings. She had visited Noah as much as possible. It was in Noahs best interest to reunify with her.

On October 26, 2007, the Department filed another addendum report. On October 10, 2007, Mother had been advised to obtain certification of completion for as many of the programs she had completed as possible. The Department received no information from Mother. Mother had moved into a sober living facility. She was still living a transient lifestyle and was not employed. She had completed only one component of her case plan in relation to Noahs siblings. Although she had completed detoxification, she had not enrolled in any further drug counseling. Mother had not provided any drug tests to confirm that she had detoxified.

At the hearing on the section 388 petition and section 366.26 selection and implementation, Mother again asked for a continuance, claiming she had just received the addendum report filed by the Department on October 26, 2007, the day before the hearing. Mother stated that she had previously filed with the juvenile court the completion of the Alpha Program, which apparently was the methadone detoxification program. Mothers counsel was in the process of trying to subpoena drug tests from Mothers parole officer.

The juvenile court denied the request for the continuance. It noted that Mother appeared to be in a state of denial and could not provide records for programs because she in fact had not participated in them. The juvenile court also denied the section 388 petition, finding, The Court feels that it does not present sufficient new evidence or change of circumstances, nor does it show that to grant it would be in the best interest of the minor.

B. Analysis

Mother claims the trial court abused its discretion by denying her request for a continuance. Continuances are governed by section 352, which provides in part: Upon request of counsel of the parent, guardian, minor, or petitioner, the court may continue any hearing under this chapter 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 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. [] Continuances shall be granted only upon a showing of good cause and only for that period of time shown to be necessary by the evidence presented at the hearing on the motion for the continuance. . . . [] In order to obtain a motion for a continuance of the hearing, 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.

Section 352 has been interpreted to be an express discouragement of continuances. (In re Emily L. (1989) 212 Cal.App.3d 734, 743.) Further, in the juvenile court system, delay does not serve the childs interests. (In re Sean E. (1992) 3 Cal.App.4th 1594, 1597.) The juvenile court has discretion to consider a motion for continuance before commencement of the selection and implementation hearing. (In re Michael R. (1992) 5 Cal.App.4th 687, 694.)

A juvenile courts determination of a motion for continuance will not be overturned on appeal absent an abuse of discretion. (In re Angela R. (1989) 212 Cal.App.3d 257, 265-266.) Discretion is abused when a decision is arbitrary, capricious, or patently absurd and results in a manifest miscarriage of justice. (See, e.g., People v. Jordan (1986) 42 Cal.3d 308, 316; People v. Franco (1994) 24 Cal.App.4th 1528, 1542-1543.)

Since Mother did not make a showing of good cause for the continuance, we conclude the juvenile court did not abuse its discretion in denying the continuance. (In re Ninfa S. (1998) 62 Cal.App.4th 808, 810-811.)

Initially, Mother had ample time in which to file the appropriate documentation in support of her section 388 petition. When Mother requested a continuance on August 30, 2007, she sought it on the basis that she wanted to obtain proof of negative drug tests from the parole department. Mother was granted a continuance to October 10, 2007, to provide such documentation, and the hearing was not conducted until October 31. At the October 31 hearing, Mother claimed that she needed to subpoena her drug tests.

Even if the parole department required a subpoena for the records, Mother had had almost two months to complete this process. Counsel claimed to have found out about the subpoena requirement the day prior to the hearing. Nonetheless, counsel and Mother sought a continuance on August 30, 2007, specifically to provide this documentation, and despite the subpoena requirement, it should have been completed during the two-month continuance. It cannot be said that the trial court abused its discretion in denying the continuance based on this alone.

Furthermore, Noah was removed from Mothers custody on September 29, 2006, when he was only five days old. The hearing for the section 388 petition was held on October 31, 2007, more than one year after Noah had been detained. The original selection and implementation hearing was scheduled for April 19, 2007. Mother had filed the section 388 petition on April 23, 2007. At the time that Mother requested the continuance, the determination on the section 388 petition and the setting of the selection and implementation hearing had been delayed for six months. Noah had been in the dependency system for more than a year. Mother did not specify the time it would take to subpoena records for the court. A continuance would only serve to further unduly delay Noahs right to permanency and stability.

Furthermore, although Mother may have maintained her sobriety during this proceeding, she had been having trouble with the Department because of her heroin abuse with Noahs siblings for 10 years. She had relapsed numerous times. Given the severity of Mothers heroin abuse problem, the fact that she had remained sober for a short period of time was certainly not compelling evidence that Noah would benefit from six months of reunification services, should Mother even be granted such services upon further proof of her sobriety.

Most importantly, Mother failed to demonstrate how she intended to take care of Noah. Mother had no employment, had moved several times during this process, and still had no permanent housing. She continually failed to contact the Department or cooperate with it upon request. It was inconceivable that if Mother were granted a continuance, and if the juvenile court granted her reunification services, Noah would be returned to her custody. Mother had no way of providing for Noah.

Based on the foregoing, a continuance was not in Noahs best interests. Hence, the trial court did not abuse its discretion by denying Mothers request for a continuance of the section 366.26 hearing and denying the section 388 petition.

III

DISPOSITION

The order appealed from is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

HOLLENHORST

Acting P.J.

KING

J.

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^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise specified.

^[2] Noahs father (Father) has not appealed.

^[3] Although this court incorporated the record in case No. E039108 on our own motion, that case deals with proceedings only applicable to Noahs siblings. Since the instant record on appeal adequately sets forth the proceedings related to Noahs siblings, we need not rely on the records in case No. E039108.

^[4] Pursuant to section 361.5, subdivision (b), reunification services can be denied by the juvenile court under certain circumstances, including under subsection 10, if prior reunification services with the dependents siblings had been unsuccessful or parental rights had been severed as to the siblings.

^[5] Although the Department has addressed whether the juvenile court properly denied Mothers section 388 petition based on the evidence before it, we do not believe that Mothers brief properly raises that issue.