In re Michelle K.

Filed 2/9/09 In re Michelle K. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Harry M. Elias, Judge. Affirmed.

Kevin K. appeals a judgment declaring his minor children Michelle K. and Kevin K., Jr., (together, the minors) dependents of the juvenile court under Welfare and Institutions Code section 300, subdivision (b) and removing them from parental custody. (Statutory references are to the Welfare and Institutions Code.) Kevin contends: (1) he was denied due process when he did not receive notice of the jurisdiction and disposition hearing; (2) the court erred by denying his request for a continuance; (3) the evidence was insufficient to support the court's jurisdictional findings and dispositional order; and (4) the court should have considered disposition alternatives less drastic than removal. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In March 2008 the San Diego County Health and Human Services Agency (Agency) filed petitions in the juvenile court under section 300, subdivision (b) alleging eight-year-old Michelle and seven-year-old Kevin, Jr., were at substantial risk of serious physical harm because the family home posed a health and safety hazard in that it was dirty and narcotics were accessible to the minors, Kevin and the minors' mother Martha had a history of drug abuse and had recently been arrested on drug charges, the minors had poor hygiene and Kevin had mental health problems for which he refused to take medication.

According to a detention report, Kevin made a threatening telephone call to the minors' school and, when police went to the home to investigate, they found methamphetamine, marijuana and several pipes. A social worker reported the home was filthy and cluttered. Kevin appeared anxious, had rapid and disorganized speech and exhibited bizarre behavior. He denied having a substance abuse problem or mental health problems, but admitted he heard voices in the night. Kevin said Martha had used methamphetamine for several years, and he smoked marijuana occasionally. A field sobriety test showed Kevin was under the influence of a controlled substance. The police arrested him and found methamphetamine in the home.

The social worker interviewed the minors, who were obese and had poor hygiene and dirty clothes. Michelle said she went to bed hungry most nights, and she was scared because her father yelled a lot. The minors said their parents smoked homemade cigarettes. The court detained the minors in out-of-home care.

In response to the minors' removal, Kevin complained about his treatment by the arresting officer and claimed the minors were being tortured in foster care. During a visit to the parents' home, the social worker noted the home was well-furnished and much cleaner, but still cluttered. Martha said she sometimes stayed with neighbors because of Kevin's mood swings. Kevin blamed Martha and others for the minors' dependencies. He continued to focus on his mistreatment by the police and claimed he had done everything required of him to get the minors back. He denied he needed medication and was not willing to have a psychiatric evaluation. The social worker reported Kevin seemed paranoid and made bizarre statements. She recommended Kevin's case plan include psychotropic medication, a psychological evaluation, counseling, parenting education, substance abuse services and a 12-step program.

Kevin was present and represented by counsel at a jurisdiction and disposition hearing on April 17, 2008. At Kevin's request, the court set a settlement conference for April 30 and a contested jurisdiction and disposition hearing for May 7. The court ordered Kevin to return for that hearing.

The contested jurisdiction and disposition hearing was held on May 7. Kevin was not present but was represented by counsel. The court took a short recess to allow counsel to contact Kevin. Counsel then informed the court Kevin was unaware of the hearing and asked for a brief continuance. The court denied the request, finding Kevin was present in court on April 17 when the court confirmed the trial date and ordered him to return.

After considering Agency's reports and hearing argument of counsel, the court sustained the allegations of the petition, declared the minors dependents, removed them from parental custody and ordered Kevin to comply with his case plan, including participating in the Substance Abuse Recovery Management System (SARMS) program.

DISCUSSION

I

Kevin contends he was denied due process because he did not receive adequate notice of the May 7 jurisdiction and disposition hearing. He asserts the court did not address him directly when it ordered him to return on May 7. He further asserts written notice, mailed to him on May 5, was not reasonably calculated to give him sufficient time to prepare for and attend the hearing two days later.

Due process requires notice that is reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of an action and afford them an opportunity to object. (In re Melinda J. (1991) 234 Cal.App.3d 1413, 1418; In re Justice P. (2004) 123 Cal.App.4th 181, 188.) Due process is a flexible concept that depends on the circumstances of the case and a balancing of various factors. (In re Earl L. (2004) 121 Cal.App.4th 1050, 1053.)

Here, Kevin was present in court on April 17 when the court clerk announced a contested jurisdiction and disposition hearing would be held on May 7 at 1:30 p.m. and when the court ordered Kevin to return for that hearing. If Kevin was confused about the trial date, as he now claims, he had the benefit of counsel to clarify the various matters that were scheduled. Even if written notice was not mailed until May 5, Kevin's due process rights were not implicated because he had actual notice of the May 7 hearing and the opportunity to participate in the proceedings.

II

Kevin contends the court abused its discretion by denying his request for a continuance to allow him to attend the contested hearing. He asserts no prejudice to the minors or parties would have resulted from a brief continuance.

Under section 352, the juvenile court may grant a continuance of any hearing only on a showing of good cause and only if the continuance is not contrary to a minor's best interests. In considering the minor's interests, "the 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); In re Ninfa S. (1998) 62 Cal.App.4th 808, 810.) Because "time is of the essence" for dependent children, continuances in juvenile cases are discouraged. (In re Josiah Z. (2005) 36 Cal.4th 664, 674; Jeff M. v. Superior Court (1997) 56 Cal.App.4th 1238, 1242.) We reverse an order denying a continuance only on a showing of an abuse of discretion. (In re Gerald J. (1991) 1 Cal.App.4th 1180, 1187.)

Here, Kevin sought a continuance because he claimed he did not know about the May 7 hearing. However, because Kevin had actual notice of that hearing, the court could reasonably find he had not shown good cause for a continuance. Although Kevin argues the court and attorneys would be merely "inconvenienced" by a brief continuance, this ignores both the court's obligation to control its calendar and the impact any delay would have on the minors' custody status. There was no abuse of discretion.

III

Kevin challenges the sufficiency of the evidence to support the court's jurisdictional findings. He asserts that at the time of the jurisdiction hearing, the minors were no longer subject to the defined risk of harm because the home was clean, he was scheduled for a psychiatric evaluation and was progressing well in SARMS and Martha was no longer in custody and was participating in drug treatment.

In reviewing the sufficiency of the evidence on appeal, we consider the entire record to determine whether substantial evidence supports the juvenile court's findings. We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or weigh the evidence. Rather, we draw all reasonable inferences in support of the findings, view the record favorably to the juvenile court's order and affirm the order even if other evidence supports a contrary finding. (In re CaseyD. (1999) 70 Cal.App.4th 38, 52-53.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)

Section 300, subdivision (b) provides a basis for juvenile court jurisdiction if the child has suffered, or there is a substantial risk the child will suffer, serious physical harm or illness as a result of the parent's failure to adequately supervise or protect the child or provide adequate medical treatment. In enacting section 300, the Legislature intended to protect children who are currently being abused or neglected, "and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm." ( 300.2.) The Legislature has emphasized that a child's well-being depends on a "home environment free from the negative effects of substance abuse . . . ." (Ibid.) In this regard, the court need not wait until a child is seriously abused or injured to assume jurisdiction and take the steps necessary to protect the child. (In re Heather A. (1996) 52 Cal.App.4th 183, 194-196.)

The court may consider past events when determining whether a child presently needs the juvenile court's protection. (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1135, disapproved on another ground in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.) A parent's past conduct is a good predictor of future behavior. (In re Petra B. (1989) 216 Cal.App.3d 1163, 1169.)

Here, the dirty and cluttered condition of the home was symptomatic of the parents' problems, including their drug abuse and Kevin's mental illness. Although the condition of the home had improved by the time of the contested hearing, the parents had not yet addressed other issues that led to the minors' removal. Kevin had mental health problems, including auditory hallucinations, paranoia and making bizarre statements, and he refused to take his prescribed medication. He was ordered to undergo a medication evaluation but had not yet done so. He admitted using marijuana because it helped his "mind rest." Nevertheless, Kevin denied having a drug problem and took no responsibility for the minors' removal, claiming it was simply a misunderstanding. Although Martha was no longer in custody and was on probation, she had not yet addressed her long-standing drug addiction. Thus, the minors were at risk of serious physical harm or illness without juvenile court intervention. Substantial evidence supports the court's jurisdictional findings.

IV

Kevin challenges the sufficiency of the evidence to support the court's dispositional order. He asserts there was no evidence that removing the minors from his custody was necessary to protect them from harm, and claims that there were reasonable alternatives to removal.

Before the court may order a child physically removed from his or her parent, it must find, by clear and convincing evidence, the child would be at substantial risk of harm if returned home and there are no reasonable means by which the child can be protected without removal. ( 361, subd. (c)(1); In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) The jurisdictional findings are prima facie evidence the child cannot safely remain in the home. ( 361, subd. (c)(1).) The parent need not be dangerous and the child need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child. (In re Diamond H., supra, 82 Cal.App.4th at p. 1136; In re Jamie M. (1982) 134 Cal.App.3d 530, 536.)

In determining whether removal is warranted, the court may consider the parent's past conduct as well as present circumstances. (In re S.O. (2002) 103 Cal.App.4th 453, 461.) We review the court's dispositional findings for substantial evidence. (In re Kristin H., supra, 46 Cal.App.4th at p. 1654.)

The court removed the minors from parental custody because the parents' drug abuse and Kevin's mental illness impacted their ability to properly parent them. The parents were unable to provide the minors with a home "free from the negative effects of substance abuse." ( 300.2.) The parents had just begun to address their drug abuse. Kevin denied having any mental health problems, refused to take his prescribed medication and took no responsibility for the minors' dependencies. The evidence supported a finding the minors were at substantial risk of harm if returned home.

Kevin asserts placing the minors with him under stringent conditions of supervision was a reasonable alternative to removal. However, Kevin's substance abuse and mental health status need to be addressed before the minors can safely be returned to his care. He remains in denial and has not yet participated in treatment programs to stabilize his mental health and maintain his sobriety. From this evidence, the court could reasonably find returning the minors to Kevin's custody was not a feasible alternative.

DISPOSITION

The judgment is affirmed.

McINTYRE, J.

WE CONCUR:

McCONNELL, P. J.

McDONALD, J.

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