Filed 2/7/18 In re K.E. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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



In re K.E., a Person Coming Under the Juvenile Court Law.

SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

K.E.,

Defendant and Appellant.


E068550

(Super.Ct.No. J243788)

OPINION


APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes, Judge. Affirmed.
Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant.
Jean-Rene Basle, County Counsel, Jamila Bayati, Deputy County Counsel for Plaintiff and Respondent.
San Bernardino County Children and Family Services (the Department) removed K.E. (Minor) from her mother’s care in April 2012. This court addressed that removal in the case of In re A.H. (In re A.H. (July 16, 2013, E056869) [nonpub. opn.] [2013 Cal. App. Unpub. LEXIS 4973].) Minor was placed with her father, K.E. (Father). The Department removed Minor from Father’s care in May 2013. This court addressed Minor’s removal from Father’s care in the case of In re K.E. (In re K.E. (March 18, 2014, E059182) [nonpub. opn.] [2014 Cal. App. Unpub. LEXIS 1894].)
In June 2017, the juvenile court ordered Minor’s permanent plan be legal guardianship. Minor’s legal guardian is J.J., who is Minor’s adult half-sister. Father contends (1) he was not given proper notice of the January 20, 2017, postpermanency plan review hearing; (2) he was not given timely advisement of his right to petition for a writ following the January 20 hearing; and (3) the juvenile court erred by not granting his request for a continuance. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
A. BACKGROUND
Minor (female, born November 2004) was in six different foster homes.
B. NOVEMBER 2014
On November 11, 2014, the juvenile court terminated Father’s reunification services. Also on November 11, the juvenile court made the following order, “The Permanent Plan of placement with [Minor’s foster parent] and a specific goal of placement with a relative is appropriate and is ordered as the permanent plan. Case transferred to Permanency Planning Program [Welfare and Institutions Code section] 366.21(g)(2) .”
C. JULY 2015
In July 2015, Minor was residing in a group home. Minor was “defiant, rude, disrespectful, and verbally aggressive.” At a hearing on July 24, 2015, the court found that “[t]he likely date by which the [Department] will finalize the permanent plan is 1/25/16.” The juvenile court ordered, “Based upon the clear and convincing evidence already presented, a compelling reason exists for determining that a hearing held under [section] 366.26 is not in the best interest of the child and the child’s permanent plan of placement with a specific goal of Placement with a relative is ordered.” The court ordered the matter continued to January 25, 2016, for the purpose of “finaliz[ing] the permanent placement for [Minor]”
D. JANUARY 2016
In the Department’s report for the January 25, 2016, hearing, it explained, “The current permanent plan of Permanent Placement with the goal of relative placement remains appropriate for [Minor]. A group home setting has allowed [Minor] to receive the structure she needs and she has shown improvement with her hyperactivity and maintaining personal boundaries.”
On January 25, the juvenile court ordered, “Based upon the clear and convincing evidence already presented, a compelling reason exists for determining that a hearing be held under [section] 366.26 is not in the best interest of the child and the child’s permanent plan of placement with [the group home] with a specific goal of placement with a relative is appropriate.”
E. JULY 2016
In February, Minor was placed in the home of J.J., who is Minor’s adult half-sister. Minor was doing well in the placement and not presenting any behavioral issues.
In the Department’s report for the July 22 hearing, it wrote that Minor’s permanent plan was a planned permanent living arrangement. In the section of the report concerning compliance with the permanent plan, the Department wrote, “The Permanent Plan of Permanent Placement ordered by the court on at [sic] the November 14, 2014, .22 Hearing, continues to be [the] appropriate permanent plan for the child, [Minor], [and] was fully implemented on January 25, 2016 and remains adequate for the child’s needs.” In its recommendation, the Department wrote, “The current permanent plan of Permanent Placement with a specific goal of independent living with identification of a caring adult to serve as a lifelong connection for the child, [Minor], continues to remain appropriate.”
On July 22, the juvenile court made the following order, “Based upon the clear and convincing evidence already presented, a compelling reason exists for determining that a hearing held under Welf. & Inst. Code § 366.26 is not in the best interest of the child. The following permanent plan is appropriate and ordered: Placement with relative, [J.J.] a fit and willing relative, with a specific goal of independent living with identification of a caring adult to serve as a lifelong connections [sic].”
F. JANUARY 2017
On January 6, 2017, the Department filed notice of a January 20 postpermanency plan review hearing for Minor. The notice reflected that the Department recommended “No change in orders, services, placement, custody, or status.” The notice was served on Father and his attorney on January 5.
In the Department’s report for the January 20 hearing, it gave the following recommendation: “[T]he child, [Minor], receive Permanency Planning services, that the Court appoint half-sister, [J.J.], as Legal Guardian of the child and issue Letters of Guardianship.” In the section of the report concerning compliance with the permanent plan, the Department wrote, “The permanent plan of Placement with [J.J.], a fit and willing relative, with a specific goal of independent living with identification of a caring adult to serve as a lifelong connection for the minor child [Minor], is no longer appropriate. [¶] It is respectfully recommended that a WIC 366.26 Hearing be set to establish a permanent plan of guardianship for the child, [Minor]”
At the hearing on January 20, Father and Father’s attorney were not present, but Mother’s attorney made a special appearance on behalf of Father. The court said, “And we’re going to set a .26 and appoint the half-sister legal guardian, so we’re going to set 5-22-17 and notice review on 3-3-17. [¶] Anything else? [¶] Clerk’s office ordered to send writ rights to Parents. [¶] Adopt the findings and orders as indicated.” The hearing concluded after the court’s remarks. The findings made by the court included, “The previously Court Ordered Permanent Plan dated July 22, 2016, recommending Permanent Placement is no longer appropriate. The Permanent Plan of Legal Guardianship is appropriate and to be ordered at a hearing held under [section] 366.26.” The orders made by the court included, “Matter set for a [section] 366.26 Hearing to grant Legal Guardianship on 5-22-17.”
On January 23, a deputy clerk at the juvenile court served Father with “the Notice of Intent to File Writ Pet/Petition JV-820/JV-825.” Service was made via U.S. mail.
G. LEGAL GUARDIANSHIP
On February 9, 2017, the Department filed notice of the May 22 hearing reflecting the Department recommended establishing a legal guardianship for Minor. The notice was served on Father and his attorney on February 9, 2017. On May 22, Father was present in court and his attorney participated via telephone. Father’s attorney explained that Father did not agree with the plan of legal guardianship. The juvenile court scheduled a contested hearing for June 13.
On June 13, Father’s attorney requested a continuance of 90 days. Father wanted time to petition the court to have Minor placed in Father’s custody. The juvenile court denied the continuance. Father testified at the June 13 hearing. The juvenile court ordered (1) J.J. be Minor’s legal guardian; (2) Father have visits with Minor; and (3) the dependency case be dismissed.
DISCUSSION
A. NOTICE OF THE HEARING
Father contends the Department erred in the notice it sent for the January 20, 2017, hearing because the notice reflected the Department recommended no changes; however, the Department sought to change Minor’s permanent plan to legal guardianship. Father asserts that if he had proper notice then he would have attended the January 20 hearing.
The notice was inaccurate because it reflected the Department recommended no changes to Minor’s permanent plan; however, the Department recommended changing Minor’s permanent plan to legal guardianship. “[E]rrors in notice do not automatically require reversal but are subject to the harmless beyond a reasonable doubt standard of prejudice.” (In re J.H. (2007) 158 Cal.App.4th 174, 183; see also In re A.D. (2011) 196 Cal.App.4th 1319, 1327.)
At the January 20 hearing, the juvenile court scheduled the May 22 hearing. Father asserts that if he were present at the January 20 hearing he might have asked for the setting hearing to be contested, asked for Minor to be placed in his custody, or asked for the reinstatement of reunification services.
At the June 13 contested hearing Father requested a 90-day continuance to petition the court for placement of Minor. Given that, in June, Father needed 90 days to prepare an argument for requesting placement of Minor, we are not persuaded that he may have raised that same argument at the January 20 hearing had he been given proper notice of the hearing. Thus, we are not persuaded that Father was harmed by the defective notice for the January 20 hearing.
In regard to seeking a contested setting hearing, it is unclear exactly what Father would have contested about the setting hearing; Father does not explain what his argument would have been. We infer from the record that if Father had been present at the January 20 hearing, he would have stated his disagreement with the plan of legal guardianship. As a result, the court would have scheduled a contested hearing regarding the permanent plan. At the May 22 hearing, Father’s attorney explained that Father disagreed with the plan of legal guardianship. As a result, the juvenile court scheduled a contested hearing for June 13. The contested hearing took place on June 13. Thus, (1) Father was given a contested hearing concerning the permanent plan; and (2) it is unclear what, if anything, he would have contested about the setting hearing. Accordingly, we are not persuaded that Father was harmed by the inaccurate notice concerning the January 20 hearing.
Father asserts that if he had been present at the January 20 hearing, he might have asked for the reinstatement of reunification services. Father’s services were terminated on November 11, 2014. Father had more than two years to request the reinstatement of reunification services. Father does not explain why he would have made the request at the January 20, 2017, hearing. Further, there is nothing indicating Father filed a section 388 request for the reinstatement of reunification services after the January 20 hearing. Thus, we are not persuaded that Father would have requested reinstatement of reunification services had he been given proper notice of the January 20 hearing.
In sum, because the record shows no harm to Father from the error in the notice, we conclude beyond a reasonable doubt that Father suffered no prejudice.
B. NOTICE OF RIGHT TO PETITION FOR A WRIT
Father contends the juvenile court clerk erred by not sending, until January 23, the advisement of Father’s right to petition for a writ concerning the January 20 scheduling of the section 366.26 hearing, and therefore the issue ante of defective notice for the January 20 hearing is not forfeited by Father’s failure to file a writ petition. Although we have already resolved the notice issue ante, we address the forfeiture issue raised by Father for the sake of thoroughness.
The appointment of a relative as a legal guardian is an act under section 366.26, subdivision (b)(3). “When the court orders a hearing under Welfare and Institutions Code section 366.26, the court must advise all parties and, if present, the child’s parent, guardian, or adult relative, that if the party wishes to preserve any right to review on appeal of the order setting the hearing under Welfare and Institutions Code section 366.26, the party is required to seek an extraordinary writ by filing a Notice of Intent to File Writ Petition and Request for Record.” (Cal. Rules of Court, rule 5.590(b).)
“Within one day after the court orders the hearing under Welfare and Institutions Code section 366.26, the advisement must be sent by first-class mail by the clerk of the court to the last known address of any party who is not present when the court orders the hearing under Welfare and Institutions Code section 366.26.” (Cal. Rules of Court, rule 5.590(b)(2).)
Father was not present at the January 20 hearing at which the juvenile court scheduled the May 22 hearing to appoint a legal guardian for Minor. On January 23, 2017, a deputy clerk at the juvenile court, mailed Father “the Notice of Intent to File Writ Pet/Petition JV-820/JV-825.”
January 20, 2017, was a Friday; January 23, 2017, was a Monday; Saturday and Sunday are deemed holidays. (Code Civ. Proc., §§ 10, 12a, subd. (a).) Because Saturday and Sunday are holidays, if on Friday the court schedules a hearing to appoint a legal guardian, then the court clerk has through Monday to send the writ advisement. (Code Civ. Proc., § 12(a).) The rule of court requires the advisement be sent “[w]ithin one day after the court orders the hearing.” (Cal. Rules of Court, rule 5.590(b)(2).) One court day after Friday is Monday. Thus, there is no error because Monday, January 23, was still within the statutory timeframe of one day following the scheduling of the hearing. As a result, the issue discussed ante of defective notice for the January 20 hearing is forfeited for failing to seek review of the issue via a writ petition. (In re Rashad B. (1999) 76 Cal.App.4th 442, 447-448; In re Athena P. (2002) 103 Cal.App.4th 617, 625.)
C. CONTINUANCE
Father contends the juvenile court erred by denying his request for a continuance.
“Pursuant to section 352, the juvenile court may for good cause order a continuance of a dependency hearing. ‘ “Section 352 mandates that before the court can grant a continuance it must ‘give substantial weight to a minor’s 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.’ ” ’ [¶] The juvenile court has broad discretion in determining whether to grant a continuance. [Citations.] As a reviewing court, we can reverse an order denying a continuance ‘only upon a showing of an abuse of discretion.’ ” (In re V.V. (2010) 188 Cal.App.4th 392, 399.)
On June 13, Father’s attorney requested a 90-day continuance of the contested hearing. Father’s attorney explained that “[Father] would seek to file petitions to ask that the child be placed in his custody. I think he would like to resolve some earlier issues with regard to the child’s custody. He also believes the child would be appropriately placed with the mother.[ ] But that’s his request, a 90-day continuance.”
Minor lived in six foster homes and a group home. Prior to being at the group home, Minor was “defiant, rude, disrespectful, and verbally aggressive.” At J.J.’s home, Minor presented “no behavioral concerns.” Minor was “very happy with her sister [J.J.]” Given the multitude of foster placements that Minor experienced and her behavioral issues while in those placements, the juvenile court could reasonably conclude Minor had a strong need for permanence.
Father wanted the continuance for the sake of having Minor placed in his care. Minor was removed from Father’s care in May 2013. The contested hearing took place on June 13, 2017. Thus, there was a four-year period wherein Father had the opportunity to request Minor be placed in his custody. In particular, at the January 25, 2016, hearing, Father’s attorney said, “Well, I can say that my client, regarding the long-term plan of relative placement, is opposed to that. He has always asked that he be considered for return of custody. I have explained that would likely require my filing a petition on his behalf to request modification of the prior order, and I’ve invited him to come to my office if he wishes to do that.”
The foregoing quote shows that, approximately 18 months prior to the contested hearing, Father was informed of the process that he would need to follow if he wanted to request Minor be placed in his custody. Eighteen months later, Father was requesting a 90-day continuance to start the process. Further, Father did not assert there were recent developments or new evidence that necessitated making the request in June 2017, as opposed to making the request in January 2016. Rather, Father’s attorney said Father “would like to resolve some earlier issues with regard to the child’s custody.” That comment can be understood as (1) Father wanted to relitigate issues that had already been resolved, or (2) Father wanted to start working on the issues that led to Minor’s removal.
The juvenile court could reasonably conclude that Minor’s need for permanence outweighed (1) Father’s desire to relitigate issues; and/or (2) Father’s hope to resolve the issues that led to Minor’s removal, given that Father had a four-year period in which to resolve such matters. In sum, we conclude the juvenile court did not abuse its discretion by denying Father’s request for a continuance.
Father contends the juvenile court erred by denying his request for a continuance because the social worker was not present at the hearing and therefore Father had no opportunity to examine the social worker. On May 22, 2017, when Father’s attorney requested the contested hearing, Father’s attorney said, “I would anticipate the social worker and [Father] testifying.”
On June 13, at the contested hearing, no mention was made of the social worker testifying. After Father testified, Father’s attorney said, “We have no other witnesses, your Honor. We would just like to be heard on argument.” Thus, there is no indication as to what, if anything, Father wanted to ask the social worker. Further, there is nothing indicating Father subpoenaed the social worker. (See In re Corey A. (1991) 227 Cal.App.3d 339, 347-348 [it is not the county agency’s burden to secure the social worker’s testimony].)
Because Father did not assert in the juvenile court that he needed a continuance for the sake of securing the testimony of the social worker, we conclude the argument has been forfeited. (See In re Alayah J. (2017) 9 Cal.App.5th 469, 479 [“the failure to object to a juvenile dependency order on a specific ground generally forfeits a parent’s right to challenge that order on appeal”].)
Father contends the juvenile court erred by denying his request for a continuance because Father needed to “bring complaints of defective notice and unlawful denial of visits with [Minor] before the court.” Father did not inform the juvenile court that he needed a continuance in order to argue lack of notice and denial of visitation. Rather, Father argued that he needed a continuance in order to request Minor be placed in his custody. Because Father did not raise these specific arguments in the juvenile court when requesting a continuance, we conclude the issue has been forfeited. (See In re Alayah J., supra, 9 Cal.App.5th at p., 479 [“the failure to object to a juvenile dependency order on a specific ground generally forfeits a parent’s right to challenge that order on appeal”].)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


MILLER
J.


We concur:


McKINSTER
Acting P. J.


SLOUGH
J.