Jennifer L. v. Superior Court

Filed 3/12/07 Jennifer L. v. Superior Court CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Jennifer L. (Mother) and Ken L. (Father) challenge an order of the Napa County Superior Court, Juvenile Division, which set a hearing under Welfare and Institutions Code section 366.26[1] to select a permanent plan for Charles L. (born August 2000). We deny their petitions on the merits.[2]

I. BACKGROUND

In the early morning hours of June 18, 2006, Thomas Cashon crashed full-speed into a power pole while driving north on Solano Avenue in Napa County. Mother, Charles, and AlexandriaCharless nine-year-old sisterwere in the car with Cashon. All four suffered injuries. Mother and Cashon received treatment at a nearby hospital, while Charles was airlifted to a hospital in Oakland. Alexandria died soon after the accident. Mother tested positive for methamphetamines and amphetamines. Cashon, too, had been under the influence of illegal drugsheroin and methamphetamines. A California Highway Patrol officer who arrived at the scene soon after the accident testified later that none of the occupants of the car had been wearing seat belts.

On June 21, 2006, the Napa County Department of Health and Human Services (Department) filed a petition to establish dependency jurisdiction over Charles. The petitions allegations, made pursuant to section 300, subdivisions (b) and (f), were essentially that Charles had been injured and Alexandria had died as a result of the parents neglect. Mother had allowed Cashon to transport the children without proper restraints while Cashon was under the influence of a controlled substance, and Father had allowed the children to be transported without proper restraints while both Cashon and Mother were under the influence of a controlled substance.

Two days later, the juvenile court formally ordered Charless detention and appointed separate counsel for each parent. Subsequently, on August 28, 2006, the court held a contested jurisdictional hearing, and at the conclusion of that hearing found the allegations under section 300, subdivisions (b) and (f) to be true.

On October 17, 2006, the court set the matter for a contested dispositional hearing. At that time it ordered a bifurcation of the primary issues to be litigated. The first issue was whether the court was authorized to deny reunification services for the parents pursuant to section 361.5, subdivision (b)(4), as to which the Department had the burden of proof. If the Department satisfied its burden, the second issue was whether the court should nevertheless order reunification services for the parents pursuant to section 361.5, subdivision (c), as to which Mother and Father had the burden of proof.[3] With respect to the latter issue, the court granted Mothers request to appoint an expert to prepare a psychological study to investigate whether a bond exists between [Charles] and his parents such that it would be detrimental not to offer reunification services.

On November 13, 2006, the court commenced the dispositional hearing on the first of the bifurcated issues. After the Department had presented its evidence, Fathers counsel called him to testify in rebuttal. Father, however, became upset and was unable to testify. The court continued the matter to November 21, to allow Father an opportunity to complete his testimony. On that date, however, Father did not appear. His counsel sought another continuance and made an offer of proof describing Fathers anticipated testimony. The court denied the request for continuance, heard argument from all counsel, and made a finding by clear and convincing evidence pursuant to section 361.5, subdivision (b)(4), that both Mother and Father had caused Alexandrias death through neglect.

The second hearing, to determine the issue of whether the court should nevertheless order services for the parents, began on November 28, 2006. The court continued the matter, however, apparently because the bonding study had not yet been distributed to all counsel.

On December 18, 2006, the court commenced the second hearing as scheduled, but neither parent appeared. Mothers counsel stated she had intended to request a continuance in any event, because she had received the bonding study and visitation notes only days before the hearing, and had not had an opportunity to review these with Mother. Further, Mother had given her a list of potential witness only three days earlier, and she had not had an opportunity to interview the individuals on that list or arrange for their appearance. Fathers counsel joined in this oral motion for continuance. The court ordered a brief recess to give both counsel an opportunity to contact their clients by telephone, but neither was successful in doing so. The court then denied the motion for continuance, noting that it had given both parents notice to appear that day, counsel had offered no explanation for their nonappearance, and, in the courts estimation, they had had ample time to prepare their evidence for presentation that day. In the absence of their clients, counsel for Mother and Father had no evidence to present, and the issue was submitted on the basis of the bonding study. After noting that the studys conclusions did not support the parents position, the court denied reunification services pursuant to section 361.5, subdivision (b)(4), and directed counsel for the Department to prepare a formal order.

The next day, December 19, 2006, counsel for the Department appeared to submit the formal order for disposition, which included additional required or recommended findings and rulings the court had not yet made on the record. Counsel for both parents, together with Mother and Father, also appeared. Fathers counsel renewed the oral motion for continuance, which Mothers counsel joined. When counsel for the Department pointed out that the court had made its ruling on the issue of reunification services the preceding day, Father restated his motion as a request that the court set aside the order made the previous day and re-open the hearing on the issue of reunification services. He argued the parents were not at fault for their nonappearance. Rather, they had been delayed by a tire blow-out as they were driving to the courthouse. The court declined to hear this oral motion to set aside, stating it would require such a motion to be written and properly supported by sworn declaration. The court reiterated its ruling denying reunification services and set the matter for a hearing under section 366.26 to select a permanent plan for Charles.

These petitions followed. ( 366.26, subd. (l); Cal. Rules of Court, rule 8.450.)[4] [5]

II. DISCUSSION

A. The Motion for Continuance

Mother contends the juvenile court abused its discretion in denying the parents oral motion for a continuance made on December 18, 2006. Evidently she also challenges the courts denial of the parents oral motion to set aside, which they made on December 19. She argues it was improper for the court to require the latter motion to be written and supported by affidavit, reasoning that both parents were present and hence were available to testify concerning their nonappearance the preceding day. Mother also suggests that, because Charles had been in a stable placement with relative caregivers since his release from the hospital, there could have been no detriment to him had the court granted a short continuance.

Father joins in the contention that the court erred in denying their oral motion to set aside the order made December 18, 2006, and in failing to re-open the hearing on the issue of reunification services. In doing so he adds a claim that the court unfairly disregarded the effect his mental state at that time had on his ability to assist his counsel.

To obtain a continuance, the moving party must provide a showing of good cause. When a motion for continuance is granted, the juvenile court must enter into the minutes the facts proven which require the continuance. ( 352, subd. (a); Renee S. v. Superior Court (1999) 76 Cal.App.4th 187, 196.) The juvenile courts ruling on a motion for continuance is reviewed under the abuse of discretion standard. (In re Robert L. (1993) 21 Cal.App.4th 1057, superseded on other grounds by statute as stated in Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1032.) Under this standard, we will not disturb the ruling unless it   exceed[s] the bounds of reason   or constitutes a determination that is arbitrary, capricious, or patently absurd. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)

In this case the juvenile court declared a brief recess to allow counsel for Mother and Father to contact their absent clients and ascertain why they had not appeared. Neither made successful contact, and neither offered any reason that might excuse Mothers and Fathers failure to appear. Moreover, as noted above, the court concluded its dispositional hearing on the first bifurcated issue on November 21, 2006. Thus, as the court noted, counsel for Mother and Father had had ample timealmost a full monthwithin which to prepare witnesses and other evidence to present at the dispositional hearing on the second bifurcated issue. We conclude the court below did not abuse its discretion in denying the parents oral motion for continuance made on December 18, 2006.

Dependency proceedings are special proceedings governed by their own statutes and rules. (In re Jennifer R. (1993) 14 Cal.App.4th 704, 711; see, e.g., 348.) Thus, the dependency statutes and rules provide the procedure for setting aside any order of the juvenile court. This procedure requires a parent or other moving party to file a verified petition that sets out the change of circumstances or new evidence that is alleged to require the set-aside order. ( 388, subd. (a); see also 385; rules 5.560(a), (d)(1), 5.565(a).) The juvenile courts denial of such a petition is reviewed under the abuse of discretion standard, and will not be disturbed unless it exceeds the bounds of reason. (In re Daniel C. (2006) 141 Cal.App.4th 1438, 1445.)

Applying this standard, we conclude the court below did not abuse its discretion when, on December 19, 2006, it declined consideration of the parents oral motion to set aside the order made the preceding day. The court, by requiring the parents to submit such a motion in writing with a supporting declaration under penalty of perjury, was merely imposing limits equivalent to those imposed under the applicable statutory procedure of section 388, that is, a verified petition alleging all supporting facts or new evidence.

B. The Finding Underlying the Denial of Reunification Services

As we have noted, a juvenile court may deny any reunification services to a parent if it finds by clear and convincing evidence that he or she caused the death of another child through . . . neglect. ( 361.5, subd. (b)(4); see fn. 3, ante.) The court in this proceeding made such a finding on November 21, 2006.

Father argues the finding, at least as to him, is not supported by substantial evidence. In doing so he essentially cites and interprets the evidence in a manner that best supports his position. In reviewing his claim, however, we examine the record in the light most favorable to the juvenile courts order to determine whether there is substantial evidence from which a reasonable trier of fact could have made the challenged finding under the clear and convincing evidence standard. (In re Isayah C. (2004) 118 Cal.App.4th 684, 694 (Isayah).) We resolve conflicts in the evidence in favor of the challenged finding, and do not reweigh the evidence or consider the credibility of witnesses. (In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.) We draw only those reasonable inferences that support the order. (See In re Julie M. (1999) 69 Cal.App.4th 41, 46.)

In this case, the juvenile court expressly noted that, in making its findings, it had relied not only upon the testimony presented at the dispositional hearing, but also on the Departments reports and the testimony presented at the jurisdictional hearing. The dispositional report, with respect to the accident resulting in Alexandrias death, incorporated the earlier report prepared for the jurisdictional hearing. The latter report detailed a case workers interviews with Father in July 2006. Father told the case worker he had not known Cashon well, but he believed that [Mother] and [Cashon] were hanging out together. . . . because of drugs. The night before the accident, Father and Mother drove Cashons car and picked him up from work. Cashon then drove them to a trailer park, saying he had to see one of his friends. Cashon entered a mobile home while Father and Mother waited in the car. He returned in a few minutes. Father said that he, Mother, and Cashon then picked up the children at a friends house. At that time, Father put Charles into his car seat and fastened that childs seat belt. Cashon drove the family to a liquor store in the City of Napa, parked his car, and left, saying he had things to do. Father, Mother, and children spent the night in Cashons parked car. After Cashon returned the following morning, he drove them all to a spot where Father had left his own car and dropped Father off there so that he could repair the cars windshield. Father said that, when he got out, Charles, Alexandria, and Mother were asleep in the car. He admitted to the case worker that he did not check to see if his children were strapped in before Cashon drove off.

At the jurisdictional hearing, a witness who arrived at the scene soon after the accident occurred testified that he saw the children while they were still inside the car and they were not wearing seat belts. As we have noted, a California Highway Patrol officer who arrived at the accident scene also testified that none of the occupants of the car had been wearing seat belts. This officer was called not only as a percipient witness, but also as an expert in accident reconstruction. In the latter capacity he stated that, in his opinion, Charles and Alexandria would not have received their injuries had they been properly restrained. The pathologist who performed Alexandrias autopsy testified that her injuries were consistent with those of an individual who had not been wearing a seat belt. The case worker who had interviewed Father, when asked whether she believed Father was directly responsible for Alexandrias death, replied in the affirmative. She stated Father had reported to her his suspicion that both Cashon and Mother were drug abusers, and had reported as well that the night before the accident Cashon had driven them to a trailer park where he left them alone in the car for a few minutes while he went inside a mobile home and did something. Nevertheless, Father had allowed Cashon to drive off with his children the following morning, while Mother was asleep, without checking to ensure they were properly restrained. After the accident, Cashon was found to have been under the influence of methamphetamines and heroin.

We conclude that the foregoing, viewed in the light most favorable to the juvenile courts order, constitutes substantial evidence from which a reasonable trier of fact could have found, under the clear and convincing evidence standard, that Father caused Alexandrias death through neglect. (See Isayah, supra, 118 Cal.App.4th at p. 694.)

Father claims the juvenile court found only that his conduct constituted negligence under the standard applicable to determine civil liability, and suggests that neglectas used in sections 300, subdivision (f) and 361.5, subdivision (b)(4)refers to a higher standard of criminal negligence. He did not, however, raise this issue below, an omission that normally operates as a forfeiture of the right to raise it for the first time before this court. (See In re S.B. (2004) 32 Cal.4th 1287, 1293.) Further, Father has cited no published authority to support this contention.[6] In any event, we conclude that the foregoing evidence is sufficient for a reasonable trier of fact to find, under the clear and convincing evidence standard, that Fathers conduct was  such a departure from the conduct of an ordinarily prudent person under the same circumstances as to demonstrate an indifference to consequences or a disregard of human life,  and hence that it rose to the level of criminal negligence. (See People v. Lara (1996) 44 Cal.App.4th 102, 108.)

III. DISPOSITION

The requests for a temporary stay are denied. The petitions for extraordinary writ are denied on the merits. (See Cal. Const., art. VI,  14; Kowisv. Howard (1992) 3 Cal.4th 888, 894; Bay Development, Ltd.v. Superior Court (1990) 50 Cal.3d 1012, 1024.) This decision is final in this court immediately. (Rule 8.265(b)(3).)

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Margulies, J.

We concur:

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Marchiano, P.J.

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Stein, J.

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

[2] Section 366.26, subdivision (l)(1)(A) bars review on appeal if the aggrieved party has not made a timely writ challenge to an order setting a hearing for selection and implementation of a permanent plan. The statute also encourages the appellate court to determine all such writ petitions on their merits, as we do here. ( 366.26, subd. (l)(4)(B).)

[3] Section 361.5, subdivision (b)(4) provides that reunification services need not be provided to a parent if the court finds by clear and convincing evidence that the parent caused the death of another child through abuse or neglect. Section 361.5, subdivision (c) provides that the court shall not order reunification services for a parent described in subdivision (b)(4), unless [it] finds by clear and convincing evidence, that reunification is in the best interest of the child.

[4] References to rules are to the California Rules of Court.

[5] On January 25, 2007, this court directed that Mothers and Fathers petitions be consolidated for decision.

[6] Father mentions only a court of appeal decision not certified for publication, one that may not be cited as authority in another case. (See rule 8.1115(a).)