In re Martin R.
Filed 1/27/14 In re Martin R. CA3
NOT TO BE PUBLISHED
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
THIRD
APPELLATE DISTRICT
(Sacramento)
----
In re
MARTIN R. et al., Persons Coming Under the Juvenile Court Law.
SACRAMENTO COUNTY
DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Plaintiff and
Respondent,
v.
S.R.
et al.,
Defendants and
Appellants.
C074263
(Super. Ct. Nos.
JD231847, JD232582)
Mother
and father appeal the juvenile court’s
order terminating their parental
rights to two-year-old Martin and one-year-old Nathaniel. They contend the juvenile court abused its discretion
by denying father’s request to continue the Welfare
and Institutions Code section 366.26 hearing.
court did not abuse its discretion in denying the continuance. We affirm the order.
BACKGROUND
In
September 2011, the Sacramento County Department of
filed a section 300 petition on behalf of then four-month-old Martin. The petition alleged: (1) the parents had a history of
the parents had failed to benefit from services; (3) mother had failed to
protect the child; and (4) father had a substance abuse problem. The petition also alleged abuse of siblings.
granted a restraining order. Following a
contested jurisdictional and dispositional hearing in February 2012, the
juvenile court found the allegations of the petition true, granted
reunification services to mother, but denied them to father.
By
July 2012, mother had made some progress in her reunification plan, including
completing parenting classes, domestic violence counseling, and individual
counseling. Father had been released
from jail following his domestic violence conviction in late March 2012 and was
living with mother. Mother had unsupervised
visits but when the Department learned about the continuing contact with
father, it began supervising the visits again.
The
Department filed a section 300 petition in August 2012 alleging Nathaniel, then
about four months old, was a dependent child based on the domestic violence
between the parents, their continued contact, and the abuse of siblings. Following a contested hearing, the juvenile
court found the allegations true, and in November 2012 declared him a
dependent. Father was denied
reunification services for Martin and Nathaniel. Mother’s reunification services as to Martin
were terminated. Mother was denied
reunification services as to Nathaniel.
A section 366.26 hearing for both children was set for March 18, 2013.
Martin
was placed in his current foster home in December 2011 and Nathaniel was placed
with him in August 2012. They were both developmentally
on target, happy, and healthy. Martin
was cute, friendly, and busy. Nathaniel
was a happy, laughing, and smiling baby.
Neither had any health or behavioral problems. The Department considered both children generally
adoptable.
Between
September 2011 and the end of November 2011, mother missed 11 of 22 scheduled
visits with Martin. She cancelled one
scheduled visit between January and February 2012. From February 2012 through July 2012, she
cancelled nine visits. Between August 7, 2012, and October 19, 2012, mother
cancelled four visits and left two early.
The visits were supervised until May 2012 at which point they became
observed visits. In July 2012, the
visits returned to being supervised.
Father had one visit in September 2011 and, upon his release from
incarceration, resumed monthly supervised visits from April through July 2012. Father also attended two make-up visits in
January 2013. He did not visit with the
children between January 23, 2013, and March
2013.
Neither
parent was present for the March 18, 2013, section
366.26 hearing. Counsel informed the juvenile
court there was a medical emergency.
Accordingly, the court continued the matter to March 25, 2013.
On
March 25,
2013, father’s counsel requested an
evaluation for purposes of appointing a guardian ad litem because father had
suffered a serious head injury after an assault. Mother and father also requested the restraining
order be lifted so mother could care for father. The court continued the section 366.26 hearing
to April 15,
2013, and lifted the restraining
order. Neither parent attended the April 15, 2013, hearing, stating they had transportation problems. The trial court granted another continuance
and ordered father to attend on April 29, 2013, for an evaluation
of his need for a guardian ad litem. The
section 366.26 hearing was set for May 14, 2013. At the April 29, 2013,
hearing, father requested a continuance.
The trial court continued the evaluation to May 6, 2013. On May 6, 2013, neither parent appeared.
Counsel confirmed the May 14, 2013, section 366.26 hearing date and
both parents were ordered to appear.
Neither
parent appeared on May 14, 2013. Mother’s counsel indicated father was seeing
a surgeon with respect to his injury and requested a continuance for the
guardian ad litem evaluation. The trial
court continued the matter to May 20, 2013. On May 20, 2013, neither parent appeared.
Counsel indicated mother had reported their car had broken down and was
being towed. The juvenile court ordered
the parents to appear on May 29, 2013, with proof
that their car was towed.
The
parties appeared at the hearing on May 29, 2013. They did not present
evidence their car had been towed. Following
a hearing, the juvenile court appointed a guardian ad litem for father and
continued the matter to July 10, 2013, noting the
guardian ad litem would “need time to get up to speed.†A pretrial conference was set for June 26, 2013, and the juvenile court ordered both parents to appear on both
dates. Neither parent appeared at the
pretrial conference. The guardian ad
litem was present. The guardian ad litem
verified he was available and ready to proceed to trial on July 10, 2013, and confirmed the parents had received adequate notice.
Neither
parent appeared on July 10, 2013. Mother reported father refused to come out of
his room because he had expected to meet with the guardian ad litem prior to
the hearing. Since they had not met,
father essentially had “what’s described as -- . . . like a five year
old having a tantrum.†Because he was a “fall
risk†and mother was his sole caretaker, she did not feel she could leave him
alone. The guardian ad litem confirmed
he had not met with father, but stated he had planned to at court, prior to the
hearing. He had tried to speak with father
on the phone, but mother informed him father was not able to speak on the
phone. Counsel requested a continuance. The Department and minors’ counsel opposed
the request. The court noted the matter
had been pending since March, the children were quite young, the issue to be
resolved was whether the children were likely to be adopted, and the parents
had not requested modification of any previous orders. The court also considered that in the context
of the juvenile dependency laws, delay is not in the best interest of the
children. The juvenile court found there
was not good cause for a continuance and further delay of the section 366.26
hearing would not be in the children’s best interest. Accordingly, the juvenile court denied the
request for an additional continuance.
The juvenile court then terminated parental rights as to both parents
and ordered adoption as the permanent plan.
DISCUSSION
Mother
and father contend the trial court abused its discretion in denying the
requested continuance. We disagree.
The
juvenile court may continue a dependency hearing for good cause and only for
the time shown to be necessary. (§ 352,
subd. (a); Cal Rules of Court, rule 5.550(a).) Courts have interpreted this statute as expressly
discouraging continuances. (
166, 179.) Continuances are discouraged,
particularly because a minor’s issues should be resolved expeditiously. (In re
Emily L. (1989) 212 Cal.App.3d 734, 743.) The parent has the burden
to establish good cause.
(Renee S. v. Superior Court (1999) 76 Cal.App.4th
187, 196.) We review the denial of a
request for a continuance for abuse of discretion. (In re
Giovanni F. (2010) 184 Cal.App.4th 594, 604.) In exercising its discretion, the juvenile
court “shall 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.†(§ 352, subd. (a).)
We
conclude the juvenile court did not abuse its discretion in denying the
continuance. The parents did not
establish good cause for the continuance.
The section 366.26 hearing was originally scheduled for March 2013. For a variety of reasons, the parents missed
a number of court dates and received a number of continuances, resulting in a
delay of the section 366.26 hearing of almost four months. The guardian ad litem was appointed in May
and the section 366.26 hearing was not scheduled until July.
The parents
offered no rationale why meeting the father’s guardian ad litem prior to the
day of the scheduled hearing was necessary.
Nor did the parents offer any explanation of why, if they felt such a
meeting was necessary, they had not attempted to meet with the guardian ad
litem before the hearing. If the parents
had appeared as ordered at the June pre-trial conference, they could have met
with the guardian ad litem. The parents
did not object to the appointment of the guardian ad litem or seek his
removal.
The parents did
not suggest there was any evidence missing from the social worker’s reports, offer
any additional witnesses to be called, or proffer testimony they would have
provided on the issue of the children’s adoptability or whether any exception
to adoption applied. They do not offer
any such arguments on appeal. The parents
did not offer any assurances they would be able to attend a subsequently
scheduled hearing. Moreover, the parents
offered no argument why a further delay in the proceedings would be in the
children’s best interest. Delay cannot
be in the children’s best interest if there is no realistic chance the delay
will offer a superior alternative. In
short, the parents offered nothing to support a finding of good cause.
Even
if we assume the juvenile court erred by denying the continuance, to obtain a
reversal the parents must still demonstrate the result of the continued hearing
would have changed in the absence of the error. (See People
v. Watson (1956) 46 Cal.2d 818, 836.) As discussed above, the children were young,
developmentally on target, happy, and healthy.
They did not have any behavioral or medical problems. The children had been living together in the
preadoptive home for the majority of their lives; Martin since he was seven
months old and Nathaniel since he was four months old. There were marked inconsistencies in the
parents’ compliance with the visitation schedule, and only a few of mother’s visits
were unsupervised. The record supports
the conclusion that these children are adoptable. The parents have not established the
existence of any of the section 366.26, subdivision (c)(1), exceptions or even
argued such an exception might apply. They have not suggested there is any evidence that
was not considered by the trial court as a result of the continuance or that
that evidence would have changed the result of the hearing. Accordingly, they have not demonstrated any
prejudice in the juvenile court’s denial of the continuance. To the extent there was any error, it was
harmless.
DISPOSITION
The
order of the juvenile court terminating parental rights is affirmed.
HOCH , J.
We concur:
BLEASE , Acting P.
J.
NICHOLSON , J.
name="_ftn1" title="">[1] Undesignated
statutory references are to the Welfare and Institutions Code.
name="_ftn2" title="">[2] In 2008, the minors’
siblings were declared dependents of the court based on substance abuse and
domestic violence issues and parental rights had been terminated as to those
children.
