In re M.M.
Filed 1/14/13 In re M.M. 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NOT TO BE PUBLISHED IN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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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
FOURTH
APPELLATE DISTRICT
DIVISION
TWO
In re M.M. et al., Persons Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY
CHILDREN
AND FAMILY SERVICES,
Plaintiff and
Respondent,
v.
S.K.,
Defendant and
Appellant.
E056451
(Super.Ct.No.
J-232538, J-232539,
J-232540)
O P I N I O N
APPEAL
from the Superior Court of
Bernardino County.
Barbara A. Buchholz, Judge.
Affirmed.
William
D. Caldwell, under appointment by the Court of Appeal, for Defendant and
Appellant.
Jean-Rene
Basle, County Counsel,
and Danielle E. Wuchenich, Deputy County Counsel, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant
and appellant, S.K. (Mother), appeals from the juvenile court’s orders denying
her petition to reinstate her reunification
services for her three daughters, M1, M2, and M3, terminating her parental
rights to the girls, and placing them for adoption. (Welf. & Inst. Code, §§ 366.26,
388.)
title="">[1] We affirm the challenged orders.
Mother
claims the court violated her due process rights in failing to order plaintiff
and respondent, San Bernardino County
Children and Family Services (CFS), to provide her with transportation
assistance to the final day of the sections 388 and 366.26 hearings. She claims the court also violated her due
process right to present evidence by refusing to continue the hearings a second
time to allow her to locate a witness, and by concluding the hearings in her
absence.
We reject
Mother’s claims. As we explain, the
court had no authority to order CFS to provide Mother with transportation
assistance to the final day of the hearings.
Nor did the court abuse its discretion in refusing to continue the
hearings a second time, and indefinitely, to allow Mother more time to procure
the testimony of her witness.
II. FACTUAL AND PROCEDURAL BACKGROUND
A.
Termination of Mother’s Services
In March 2010,
three-month-old M3 suffered nonaccidental skull and leg fractures while in
Mother’s care. Mother claimed she was in
the bedroom with M1 and M2, then ages three years and 18 months, respectively,
when M3 fell from a couch and hit her head on a dice on the family room
floor. Mother called 911 and an
ambulance and law enforcement responded.
At the hospital, doctors discovered that M3 also had a fractured right
leg that was in the process of healing, and opined that both the skull and leg
fractures were nonaccidental.
The girls’
father, who was not married to Mother, said he moved out of the family home
several weeks before M3 suffered the skull fracture. The father also denied responsibility for
M3’s leg fracture and said he thought Mother was responsible. Mother was 22 years old and the father was 20
years old when M3 suffered the skull fracture in March 2010. The parents had been together for five years
before the father moved out of the home.
In April 2010,
section 300 petitions were filed, and the girls were ordered detained and
placed in confidential foster care. In a
May 2010 jurisdictional/dispositional report, CFS recommended no reunification
services for either parent, and supervised visitation. The social worker opined that neither parent
was likely to benefit from reunification services within a reasonable time, and
reunification services would not serve the best interests of the girls.
The father
wanted the girls placed with Mother, and only wanted visitation. But during visits, he was physically “roughâ€
with the girls, often ordered them around, and had little patience for
them. Both parents lacked parenting and
household management skills. Mother had
a high school diploma but was unemployed and had learning disabilities. Without the father’s income from a legal
settlement, Mother’s only source of income was state aid, and she did not own a
car.
At age three,
M1 weighed 50 pounds and was considered obese.
Both M1 and M2 were developmentally delayed and suffered from emotional
problems. M3, who suffered the skull fracture,
appeared to be developmentally on target.
M1 and M2 adjusted well to placement.
By June 2010,
Mother was being evicted from her home, had nowhere to go, and was behind on
her bills. She was given referrals for
counseling and random drug testing, and was attending parenting and anger
management classes. On June 28, the
father was arrested for domestic battery after allegedly punching Mother
several times. The father was now
homeless and wanted to get back together with Mother. Mother decided not to seek a restraining
order against the father because there were too many forms to fill out. She continued to stay in contact with the
father despite her own reports that he continued to harass and threaten
her. The social worker was now concerned
that Mother was unwilling or unable to protect herself or the girls, and
encouraged Mother to take domestic violence classes.
Second amended
petitions for the girls were filed in August 2010, and included domestic
violence allegations. CFS continued to
recommend no reunification services for either parent. On July 23, the father vandalized the family
home, took the freezer and food, and poured motor oil all over Mother’s
clothing and Pine-Sol all over the furniture.
The sliding glass door was shattered, the bedroom window was broken, and
there was a hole in the wall. Mother
claimed she did not report the incident because she was being evicted
anyway. Three days later, when Mother
was visiting the girls on July 26, the home was completely destroyed. All of the windows were broken out, and all
of Mother’s and the girls’ belongings were destroyed.
After the
family home was destroyed, Mother began staying with a friend. CFS encouraged Mother to enter a domestic
violence shelter and seek a restraining order against the father, and Mother
said she would consider doing so. By
September 2010, Mother had completed her parenting and anger management
classes, but CFS continued to question her ability to parent the girls. Mother was still unemployed and had no source
of income. The father had not visited
the children, gone to court, or participated in any services. On September 22, a neighbor reported seeing Mother
and the father together, and the father was planning for the girls to be
returned to Mother.
At the
jurisdictional hearing on October 4, 2010, the court found that the girls came
within section 300, subdivisions (a), (b), (e), and (j). At the dispositional hearings on November 12
and 22, the court ordered reunification services for Mother and weekly,
supervised visitation. No services or
visitation were ordered for the father.
Mother’s case plan included a domestic
violence program and recommended that she enter a domestic violence
shelter.
By May 2011,
Mother was still jobless and homeless, and was drifting from place to place for
shelter. Mother visited the children
weekly for two hours. At the May 23
six-month review hearing, Mother told the court she was participating in two
domestic violence classes, one in Redlands and one in Victorville. The Victorville program offered a
certificate, and she had eight classes to complete. The court continued Mother’s reunification
services for an additional six months, and authorized CFS to liberalize the
frequency and duration of her weekly, two-hour visits. The girls had been in their second foster
care placement since June 2010, and the foster parents were willing to adopt
them.
By November
2011, Mother had failed to follow through with and complete her domestic
violence services, even though CFS had been providing her with bus passes and
gas vouchers. Mother gave birth to
another girl on October 12, and was living with her boyfriend, the newborn’s
father, and the boyfriend’s mother. The
social worker described Mother as “passive and unmotivated,†and questioned
Mother’s ability to reunify with M1, M2, and M3 given her current
circumstances. Mother had not completed
her case plan, was questioning her need for domestic violence services, and did
not have an appropriate place for the girls to live. Another social worker was assessing the needs
of the newborn.
Mother was not
disciplining the girls during visits, and once threatened to put hot sauce in
their mouths to get them to listen.
Mother was also “lazy†and would not get up and follow the girls when
they tried to run away.
M1 was
exhibiting aggression and other negative behaviors following her visits with
Mother. M2 was emotionally needy, easily
upset, and cried when the foster mother was out of her sight. M1 and M2 were receiving SART (Screening
Assessment Referral Treatment) services, and were later referred to the Inland
Regional Center. M3, who appeared to be
developmentally on target as an infant, was now “very delayed with speech and
head circumference . . . approaching microcephaly.†The foster parents were still willing to
adopt the girls.
Mother’s
reunification services were terminated at the 12-month review hearing on
December 19, 2011, and a section 366.26 hearing was set.
2012, CFS recommended termination of parental rights and adoption as the girls’
permanent plan. Mother had not visited
the girls since her services were terminated on December 19, 2011. She canceled a February 2012 visit because
her car was impounded, and she did not return the social worker’s call, telling
her she could visit with the girls by telephone. Since Mother stopped visiting the girls, M2’s
behavior had improved and she was doing well in school, prompting her teacher
to ask the prospective adoptive parent whether there had been any changes in
the home.
B
Hearings
The section
366.26 hearing commenced on April 18, 2012.
Mother had recently moved and her counsel has lost contact with her, but
she was waiting outside the courtroom.
Her counsel told the court that she was involved in a domestic violence
program, and he intended to file a section 388 petition and call her counselor
as a witness. The court set the section
366.26 hearing contested and continued the matter to May 2.
Meanwhile, on
April 27, Mother filed a section 388 petition seeking reinstatement of her
reunification services. In her petition,
Mother said she was no longer living with the father of her newborn daughter
because he had a criminal history that posed a danger to the child. She had recently moved to Big Bear City,
where she “made contact with a domestic violence program†and had 26 separate
“one-to-one†sessions with a counselor, Ms. Wendi Smith. In a two-page e-mail attached to the
petition, Ms. Smith said she was a “retired Counselor from Family Services in
Crestline,†and listed “Dates of therapy and topics†Ms. Smith covered with
Mother, from December 23, 2011 through April 20, 2012. According to Ms. Smith, Mother could complete
the remaining domestic violence sessions by the end of May 2012.
On
May 2, the court granted an evidentiary hearing on the petition following an
in-chambers discussion with counsel.
Mother was present in court.
Mother’s counsel expected to call Mother, Ms. Smith, and social worker
Ronnetta Paullins to testify on the petition, and the parties stipulated that
the testimony on the petition would be admitted at the section 366.26 hearing. Because Ms. Smith was not present in court on
May 2, the court continued both matters to May 8. The court estimated that the combined
hearings would take 90 minutes.
On May 8,
Mother’s counsel requested a further continuance because Ms. Smith was again
not present in court. That morning, Ms.
Smith called Mother and told her she was “throwing up blood and had to go to
the hospital.†Mother’s counsel was
unable to reach Ms. Smith by telephone.
The court denied the request for a further continuance and proceeded
with the hearings. Mother testified on
May 8. She explained how she had
benefited from the domestic violence counseling sessions with Ms. Smith.
Contrary to
her petition, Mother testified on cross-examination that she was still living
with the father of her newborn daughter, Mr. Thomas. They were renting a room in a four-bedroom,
two-bathroom house from a tenant who had a one-year lease on the house. Mother, Mr. Thomas, and the baby were living
in the rented bedroom, and they had access to the kitchen and bathrooms. If Mother regained custody of M1, M2, and M3,
then all four girls would stay in a master bedroom in the house, which Mother
could rent for $100 a month more. Mother
was still unemployed, and so was Mr. Thomas.
They were living “on the County right now.â€
Mother also
claimed, contrary to her petition, that Mr. Thomas had no criminal
history. And, when asked what she
thought she would need to do to better discipline the girls if they were
returned to her care, Mother said she would need to talk to them and let them
know what was wrong, and offered her opinion that the girls’ behavioral
problems stemmed from there being “too many people involved in†and
“interfering with†her relationships with the girls.
After Mother
testified, the court continued the hearings to May 10, partly in order to give
Mother another chance to procure Ms. Smith’s testimony. On May 8, Mother’s counsel did not know Ms.
Smith’s whereabouts or whether she would testify on May 10, and he did not have
a curriculum vitae for her.
After the
court continued the matters to May 10, Mother’s counsel asked the court whether
CFS could provide Mother with transportation assistance to court on May
10. The court told counsel he could ask
CFS “what they can do,†but the court was not in a position to order CFS to
provide transportation assistance to Mother.
Counsel for CFS told the court that, according to the social worker, CFS
was unable to provide Mother with transportation assistance.
On May 10,
neither Mother nor Ms. Smith were present in court. Mother’s counsel rested without offering any
additional testimony, and Ms. Paullins testified for CFS. In addition to the testimony of Mother and
Ms. Paullins, the court admitted reports and other documents into evidence on
both matters, but excluded Ms. Smith’s two-page e-mail which was attached to
the petition. Counsel for CFS objected
to the e-mail on hearsay grounds and because Ms. Smith was unavailable for
cross-examination. CFS was unfamiliar
with Ms. Smith’s background and credentials, and questioned whether she was
“authorized to provide any type of counseling†in California. Mother’s counsel said he was not “that
concerned about†Ms. Smith’s e-mail because Mother’s testimony adequately
covered the issues.
At the
conclusion of the hearings on May 10, 2012, the court denied the relief
requested in the petition, terminated parental rights, and selected adoption as
the girls’ permanent plan. At the time
of the hearings, M1, M2, and M3 were five, three, and two years of age.
III. DISCUSSION
A.
CFS to Provide Mother With Transportation Assistance to the Section 388 and
Section 366.26 Hearings on May 10, 2012
Mother
claims the juvenile court deprived her of her due process rights in refusing
her request for transportation assistance from her home in Big Bear City to the
final day of the section 388 and section 366.26 hearings in San Bernardino on
May 10, 2012. We find no due process
violation in the court’s refusal to grant the requested transportation
assistance.
To prevail on
her due process claim, Mother must show she had a due process liberty interest
in and “entitlement†to the requested transportation assistance. (In re
Christina A. (1989) 213 Cal.App.3d 1073, 1078-1079.) She has not done so.
Transportation
assistance may be provided to a parent to facilitate his or her participation
in reunification services. (See
§ 300, subd. (j), second par. [listing “client transportation†among
services that may be provided to promote family reunification].) But generally speaking, a parent has no
constitutionally protected liberty interest in or fundamental right to
reunification services. (See
Cal.4th 735, 750 [noting that Courts of Appeal have concluded there is no
constitutional right to reunification services].) To the contrary, reunification services are a
“benefit,†and there is no constitutional “entitlement†to them. (In re
Derrick S. (2007) 156 Cal.App.4th
436, 445; In re Baby Boy H. (1998) 63
Cal.App.4th 470, 475.)
Mother argues
that the court’s refusal to order CFS to provide her transportation assistance
to the May 10, 2012, hearings was “fundamentally unfair,†given that CFS
provided her with transportation assistance to court before her reunification services were terminated on December 19,
2011. She claims “[t]he post-setting
hearings were not less important†than the presetting proceedings that took
place before her services were terminated, because she was seeking further
reunification services through her section 388 petition. Mother’s arguments are unavailing.
To be sure,
Mother’s fundamental right to make decisions concerning the care and custody of
the girls “is a compelling one, ranked among the most basic of civil rights,â€
but as Mother concedes, her right is not absolute and must be balanced against
the girls’ rights to stability and permanency.
(In re Marilyn H. (1993) 5
Cal.4th 295, 306-307; Williams v.
Superior Court (2007) 147 Cal.App.4th 36, 48-49.) In any event, Mother had no due process right
to transportation assistance to court after her reunification services were
lawfully terminated. (See
violated when, on May 8, 2012, the court refused her request to order CFS to
provide her with transportation assistance to the May 10, 2012, hearings.
In her reply brief, Mother argues that
the transportation assistance she received before her reunification services
were terminated should not be confused with her reunification services, but are
“more analogous to the arrangements the juvenile court must ordinarily make to
transport a prisoner [to court] pursuant to Penal Code, section 2625,
subdivision (d).†Mother also points out
that transporting her to hearings on May 10 was “no more, and probably less,
burdensome on the court than arranging for a parent to be brought in from state
prison.†This argument is unavailing. The statute only allows the court to make an
order for the transportation of a “prisoner†to court, and Mother was not “a
prisoner†on May 10, as the statue defines the term. (Pen. Code, § 2625, subds. (a), (d); see
In re Barry W. (1993) 21 Cal.App.4th
358, 365-371 [court did not abuse discretion in denying prisoner’s request for
transportation to Welf. & Inst. Code, § 366.26 hearing involving his
dependent son].) Mother was not in state
or local custody on May 10, and was free to arrange for her own transportation
to court.
B.
Discretion or Violate Mother’s Due Process Right to Present Evidence in
Refusing to Continue the Section 388 and Section 366.26 Hearings Beyond May 10
to Allow Mother More Time to Locate Ms. Smith, or in Concluding the Hearings in
Mother’s Absence
Mother
further claims the court deprived her of her “[c]onstitutional rights to
[p]resent [e]vidence†when, on May 8, 2012, the court denied her request to
continue the section 388 and section 366.26 hearings to allow her more time to
procure the testimony of Ms. Smith, and when, on May 10, 2012, the court
concluded the hearings in her absence.
We reject each of these claims.
First, the
court properly refused to continue the hearings beyond May 10 so that Mother
would have additional time to procure the testimony of her counselor, Ms.
Smith. Continuances are disfavored in
child dependency cases, and are not to be granted unless good cause is shown
and if contrary to the interest of the minor.
(In re Giovanni F. (2010) 184
Cal.App.4th 594, 604; § 352, subd. (a).)
continuance will not be disturbed on appeal absent an abuse of discretion. (In re
Elijah V. (2005) 127 Cal.App.4th 576, 585.)
On May 2, the
court determined that it would allow a limited evidentiary hearing on Mother’s
section 388 petition. Ms. Smith, who
provided documentary support for the petition in a two-page e-mail, was not
present in court on May 2. The court
continued the hearing to May 8 so that Mother might locate Ms. Smith. Then, when Ms. Smith did not appear on May 8,
the court refused to continue the hearing beyond May 10.
On May 8, when
the further continuance was requested, Mother’s counsel did not know Ms.
Smith’s whereabouts, or whether she was willing or able to testify in support
of Mother’s section 388 petition, at any time.
Then, on May 10, Mother’s counsel effectively admitted that Mother’s
testimony rendered Ms. Smith’s testimony unnecessary and duplicative. When counsel for CFS objected to the
admission of Ms. Smith’s two-page e-mail on hearsay grounds, Mother’s counsel
said he was “not that concerned†because Mother’s testimony covered the
relevant issues.
Further, “[a]
parent’s right to due process is ‘limited by the need to balance the “interest
in regaining custody of the minors against the state’s desire to conclude
dependency matters expeditiously . . . .â€â€™ [Citation.]
Accordingly, in dependency proceedings, ‘[t]he court must control all
proceedings with a view to quickly and effectively ascertain[] the
jurisdictional facts and all information relevant to the present condition and
welfare of the child.’ (Cal. Rules of
Court, rule 5.534(a).)†(
1454, 1464.)
Given that Ms.
Smith’s whereabouts were unknown, her proffered testimony was largely
duplicative of Mother’s, and in view of the girls’ interest in promptly
concluding the proceedings, the court neither abused its discretion nor
violated Mother’s due process rights in refusing to continue the hearing beyond
May 10.
Mother also
complains that because she was unable to be present in court on May 10 due to
her lack of transportation, she was unable to rebut Ms. Paullins’s testimony or
other department evidence opposing her section 388 petition, and assist her
counsel in representing her interests in the proceedings. She argues that her counsel’s argument for a
less restrictive plan than adoption at the section 366.26 hearing was not what
she wanted; she wanted her children immediately returned.
Before
parental rights may be terminated in a juvenile dependency proceeding, due
process requires that the interested parent be given adequate notice and an
opportunity to be heard. (
688-689; Adoption of B.C. (2011) 195
Cal.App.4th 913, 925 [Fourth Dist., Div. Two].)
Due process also generally requires that the parent be given “the right
to present evidence, and to cross-examine adversarial witnesses, such as the
caseworker and persons whose hearsay statements are contained in the reports, ‘i.e.,
the right to be heard in a meaningful manner.’
[Citations.]†(
904, 915.) The general rule, however,
“is that personal appearance by a party at a civil proceeding is not essential;
appearance by an attorney is sufficient and equally effective.†(In re
Dolly D. (1995) 41 Cal.App.4th 440, 445.)
Here, Mother
had ample notice of the hearings and a meaningful opportunity to consult with
her counsel, despite her absence on May 10 when the hearings concluded. Further, the presence of her counsel
throughout the hearings, including on May 10, was sufficient to protect her due
process rights to present evidence.
Mother
testified on May 8, explaining how she had benefited from her “one-to-oneâ€
domestic violence course with Ms. Smith, and how the girls’ best interests
would be served by granting her additional reunification services and
ultimately returning the girls to her care.
Even though Mother was not present when Ms. Paullins testified on May
10, Mother’s counsel was present and thoroughly cross-examined Ms.
Paullins.
Mother does
not explain what additional evidence or cross-examination questions she would
have presented, through her counsel, had she been present in court on May
10. Well before May 10, Mother had
notice of the contents of the reports that the court admitted into evidence, of
CFS’s opposition to her section 388 petition, and that Ms. Paullins would
testify on May 10. Given that Mother had
adequate notice of the hearings, and a meaningful opportunity to be heard
through her counsel, the court did not violate her due process right to present
evidence by concluding the hearings in her absence.
IV. DISPOSITION
The orders
denying the relief requested in Mother’s section 388 petition, terminating
parental rights, and placing M1, M2, and M3 for adoption are affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
KING
J.
We concur:
RAMIREZ
P.
J.
HOLLENHORST
J.
name="_ftn1" title=""> [1] All further statutory
references are to the Welfare and Institutions Code unless otherwise indicated.
name="_ftn2" title=""> [2] Mother filed a notice of
intent to file a writ petition on December 21, 2011. This court dismissed the petition on January
31, 2012, pursuant to a letter from Mother’s counsel.
