In re Elijah A.

Filed 7/30/08 In re Elijah A. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Charles J. Koosed, Temporary Judge. (Pursuant to Cal. Const., art. VI,  21.) Affirmed.

Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant.

Joe S. Rank, County Counsel, and Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.

Karen J. Dodd, under appointment by the Court of Appeal, for Minor.

Appellant Melissa S. (mother) is the mother of Elijah A. (minor), born in August 2003. Mother appeals from the juvenile courts order terminating her parental rights at a hearing held pursuant to section 366.26 of the Welfare and Institutions Code.^[1] Mother contends that the juvenile court abused its discretion in denying her request that it continue the hearing so that she could gather documentation in support of a planned section 388 petition. We find the court acted well within its discretion in denying the request and, therefore, affirm the judgment below.

I. FACTS AND PROCEDURAL HISTORY^[2]

Minor initially came to the attention of the Department of Public Social Services (the department) on April 8, 2004, with a referral that minor had a dirty diaper with dried fecal matter and urine. An immediate response referral was received shortly thereafter regarding incidents of domestic violence between mother and father. The court took jurisdiction over minor, but placed him with mother. Services were continued at the first six-month review hearing. In July 2005, dependency proceedings were terminated.

In March 2006, the department filed a section 300 petition alleging physical and sexual molestation against minor by another minor within the household, failure of mother to protect minor, and mothers history with the San Bernardino County Child Protective Services wherein mother had failed to reunify with three of her other children. The department removed minor from mothers custody. On June 7, 2006, after reestablishing the dependency, the court, pursuant to section 361.5, subdivision (b)(3), (10), and (11), denied reunification services to mother due to her failure to reunify with minors siblings. Mother filed a petition for writ of mandate alleging that insufficient evidence supported the juvenile courts jurisdictional findings and its order denying her services. On September 13, 2006, we denied the petition, finding that mothers participation in counseling and domestic violence programs has made no difference in the situations in which she places herself and her child. Although presumably she knows how to change, she is not doing it. In that crucial respect her efforts are clearly insufficient.

The juvenile court initially set the selection and implementation hearing for October 5, 2006. Prior to the filing of our opinion in case No. E040635, mother filed a section 388 petition in the juvenile court seeking reinstatement of services. The court continued the selection and implementation hearing to February 5, 2007. On December 6, 2006, the juvenile court denied mothers section 388 petition. The court noted that while mother always tried. It still doesnt make it safe, from my perspective, to return [minor] to you. I dont think giving you services for another six months will make any difference at all. We have been doing this for a long time with [minor]. It also stated that [t]he problem is shes had 65 months of services. [Sixty-five] months of services. And she seems like a perfectly nice human being, but its always the same allegations since [1999] that she fails to protect her children from other people, a boyfriend, relatives, people around her children. [] Its not that she actually does anything. But she keeps getting herself in situations where she allows her children to be injured either because she has economic problems, or physical problems, or mental problems. Mother appealed, and in our opinion reviewing that decision filed August 14, 2007, we observed that the basis for the denial of further reunification services was the termination of parental rights of the three other children. In affirming the juvenile courts order, we found that this fact alone establishes that the trial court did not abuse its discretion in denying the petition which sought further services.

During the pendency of the previous appeal, the section 366.26 hearing was continued twice, once from February 5, 2007, to June 7, 2007, and then from June 7, 2007, to October 2, 2007. Thereafter, the hearing was again continued twice, from October 2, 2007, to January 7, 2008, and from January 7, 2008, to February 20, 2008. The last continuance was granted at the request of mother.

Mother continued to engage in supervised visitation with minor on a bimonthly or monthly basis. However, successive evaluations determined that it would be detrimental to minor to be returned to mothers custody. While mother reported that she had completed some programs on her own, she failed to provide any proof. Minor was placed in the prospective adoptive home in July 2007 where he appeared to be thriving.

At the selection and implementation hearing on February 20, 2008, mothers counsel requested another continuance. Counsel stated that mother wished to file another section 388 petition and, since the last hearing on January 7, 2007, she had been attempting to obtain documentation of her completion of a domestic violence program which she planned to use in support of the prospective petition; however, she had been unable to do so. The court, noting the duration of time between the initial setting of the section 366.26 hearing and the current date, stated that all this time has passed and mom didnt file a [section] 388 at any point in the interim, and now at the eleventh hour she wants to file one. Im not convinced it would be any different than the one that was litigated in [2006]. . . . I have a real hard time with these [section] 388s that happen, you know, on the eleventh hour, where, you know, Im happy to entertain these motions when theyre brought timely. . . . [minor] . . . deserve[s] permanence sooner rather than later. [He] shouldnt have to wait around while [his] parents get their lives in order for, you know, a real long time. . . . I think that the child does deserve permanence at this point and think it would be an untimely motion made at the eleventh hour . . . . The court denied mothers request to continue the hearing. After hearing mothers testimony, the court found minor adoptable, found that none of the exceptions to termination of parental rights applied, found that adoption was in the best interests of minor, and terminated mothers parental rights to minor.

II. DISCUSSION

As noted above, mothers sole contention on appeal is that the trial court abused its discretion in denying her motion for a continuance. Section 352, subdivision (a), provides: Upon request of counsel for 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 . . . . Written notice of a request for continuance must be given at least two days prior to the hearing unless the court finds good cause to permit an oral motion. (Ibid.) Continuances are discouraged [citation] and we reverse an order denying a continuance only on a showing of an abuse of discretion [citation]. (In re Ninfa S. (1998) 62 Cal.App.4th 808, 810-811.)

Juvenile courts have discretion to entertain requests for continuances to permit the filing of section 388 petitions even on the day of the section 366.26 hearing itself. (In re Michael R. (1992) 5 Cal.App.4th 687, 693-694) Nevertheless, once reunification services have been terminated, the juvenile courts focus must be on the childs need for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.)

[T]he Legislature has provided the procedure pursuant to section 388 to accommodate the possibility that circumstances may change after the reunification period that may justify a change in a prior reunification order. A petition pursuant to section 388 may be used to raise the issue in the trial court prior to the section 366.26 hearing. This procedure provides notice to the parties and an opportunity for hearing if the statutory requirements are met. ( 388.) (In re Marilyn H., supra, 5 Cal.4th at p. 309.) Without the statutory procedures and safeguards created by the Legislature there would be nothing to preclude a parent from appearing at a section 366.26 hearing and, without prior notice to the court and other parties, assert a meritless claim of changed circumstances necessitating a delay of the hearing to allow the court to determine whether there is sufficient evidence to hold a hearing on the issue and to allow the other parties time to respond. After resolution of the issue raised, another such claim conceivably could be raised at the next section 366.26 hearing. This could result in lengthy and unnecessary delay in providing permanency for children, the very evil the Legislature intended to correct. The Legislature, therefore, has provided safeguards, through section 388, that require more than a last-minute oral attempt by a parent to delay permanency for a child who has already spent as much as 22 months in out-of-home placement. (Id. at p. 310.)

Here, mother not only failed to produce a written, noticed section 388 petition or even an oral section 388 motion; she did not even file a written, noticed motion for continuance. Rather, as the juvenile court noted, mother came in at the eleventh hour with what, at best, appears to be vague basis for potentially filing another section 388 petition. While we recognize that the principle announced above in In re Marilyn H. applied to section 388 petitions and that the provisions of section 352 specifically permit oral requests for continuances in certain limited circumstances, the juvenile court was well within its discretion in viewing the request here as a delay tactic in what already appeared a seemingly endless series of delays. The section 366.26 hearing, which was originally supposed to occur on October 2, 2006, i.e., within 120 days of the order terminating reunification services on June 7, 2006, had already been continued over 16 months after that date. The last continuance was granted on mothers behalf. Mother had more than sufficient time to file another section 388 petition in the 14 months since her last petition was denied. Here, she did not even specify the amount of time she wished the continuance to extend.

Moreover, mothers basis for needing the extension was simply too vacuous to warrant disruption to minors need for permanency and stability. Mother alleged that she needed proof of her completion of a domestic violence program to attach to her proposed section 388 petition; however, she had been unable to obtain it due to the programs administrator only being available on Wednesdays and switching back and forth between two locations. It is difficult to imagine that only one person was available at the alleged program who was capable of giving mother her certificate of completion. It strains credulity even more to assert that that person was only available one day each week and randomly varied the locations at which that individual would appear. Mothers last continuance of over a month appears to have been sought for the very purpose of obtaining this certificate, yet she had been unable to do so. Furthermore, mother had been alleging completion of programs as early as June 1, 2007, but had never shown any proof of such. There was no assertion here that the program for which mother was seeking a certificate was one she had recently completed; thus, the court could well have determined that this was a program long since concluded that mother only now sought evidence of due to the finality of the impending proceeding. Minor had already been placed out of the home for 23 months. Therefore, the juvenile court acted well within its discretion in determining that minors interest in permanence and stability compelled the denial of mothers last minute oral request for continuance.

Finally, we note, as we did in our previous two opinions in this case, that the primary reason for the dependency proceedings in the first place was mothers failure to effect changes in her household with the services she had already been provided with regard to her other three children. The termination of mothers reunification services in the instant matter was not due to her failure to avail herself of the appropriate programs, but because mothers participation in counseling and domestic violence programs has made no difference in the situations in which she places herself and her child. Although presumably she knows how to change, she is not doing it. In that crucial respect her efforts are clearly insufficient. Indeed, the juvenile court had noted that despite 65 months of services, mother still put minor in harms way. It is difficult to fathom how a certificate of completion from another domestic violence program would somehow result in a change in circumstances when mothers previous participation in such a program effected no positive difference in minors life whatsoever.

III. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King

J.

We concur:

/s/ McKinster

Acting P.J.

/s/ Miller

J.

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

^[2] Mother previously filed a petition for writ of mandate in case No. E040635 seeking to overturn the juvenile courts jurisdictional order and its denial of reunification services. We denied the petition by opinion filed September 13, 2006. Mother also appealed the juvenile courts order denying her section 388 petition in case No. E041952. We affirmed that ruling by opinion filed August 14, 2007. By order dated February 5, 2007, the record in case No. E040635 was incorporated into the record in case No. E041952. In turn, by order filed March 18, 2008, the record in case No. E041952 was incorporated into the record in this case. We adopt our factual and procedural history regarding the prior proceedings from our previous opinions in case Nos. E040635 and E041952.