In re Ruben O.




Filed 12/2/10 In re Ruben O. CA2/8







NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

In re RUBEN O., a Person Coming Under the Juvenile Court Law.	B224751
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. EUGENE R., Defendant and Appellant.	(Los Angeles County Super. Ct. No. CK70088)

APPEAL from an order of the Superior Court of Los Angeles County. Marguerite Downing, Judge. Affirmed.

Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant.

Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Deborah L. Hale, Deputy County Counsel, for Plaintiff and Respondent.
__________________________

Eugene R. (father) appeals from the order terminating his parental rights to his son, Ruben O. (Ruben). He contends: (1) it was an abuse of discretion to deny father’s request for a continuance of the Welfare and Institutions Code section 366.26 hearing and (2) he was denied due process as a result of that hearing going forward in his absence. We affirm.[1]

FACTUAL AND PROCEDURAL BACKGROUND

In December 2006, Ruben was born prematurely at 26 weeks, suffering from several diverse medical problems; he remained hospitalized until May 2007. During that time mother visited Ruben infrequently. Father visited Ruben just once, when he accompanied mother on a visit in April 2007. The hospital referred Ruben to the Department of Children and Family Services (DCFS) because mother had not bonded with him and there was concern about her ability to care for his medical needs if he were to be released to her. Mother signed a Voluntary Placement Agreement and later a Voluntary Family Reunification Case Plan.[2] Upon discharge from the hospital, Ruben was first placed in a non-medical foster home but a month later was placed with the foster parents who later became his prospective adoptive parents. Meanwhile, father was incarcerated a few months after Ruben was discharged from the hospital. Mother told the social worker that the reason she visited Ruben so infrequently was that father, who had been abusive towards her, would not allow her to visit more often.
In September 2007, DCFS filed a section 300 petition. Paragraph a-1 of the petition alleged that father had engaged in domestic violence against mother and that father’s violent conduct endangered Ruben’s physical and emotional health, and placed Ruben at risk of physical and emotional harm (§ 300, subd. (a)); paragraph b-1 of the petition alleged that mother did not have the training to care for Ruben’s medical problems, as a result of which Ruben was at risk of physical and emotional harm; paragraph b-2 repeated the allegations of paragraph a-1 (§ 300, subd. (b)). According to the petition, father was incarcerated at Maricopa State Prison. At the detention hearing, father was found to be a presumed father.
Father was still incarcerated when he made his first appearance in the proceedings on December 5, 2007, at which time he was appointed counsel. Father was still incarcerated, but appeared at the continued adjudication hearing in February 2008, and submitted on the petition. The dependency court sustained the section 300(b) petition and dismissed the remaining allegations.
Father did not appear at a May 2008 hearing. Because father had not been ordered to be present at the hearing, yet in the interim had been paroled, the dependency court continued the matter to June 2008 so that father could be properly noticed. Notice of the June hearing was mailed to father at his last known address. Father did not personally appear in June, but was represented by counsel at the hearing. The court ordered father to attend a 52-week domestic violence program, domestic violence counseling, and training to care for Ruben; father was also given monitored visitation.
Father did not appear at the next scheduled hearing in November 2008 hearing, but was represented by counsel. According to the DCFS report for the hearing, father had never contacted the social worker and his whereabouts were unknown. Ruben’s foster parents wanted to adopt him. Father did not appear at proceedings held in December 2008 and January 2009. At the later hearing, father’s counsel acknowledged that he had lost contact with father and therefore did not know whether father had complied with the case plan; counsel nevertheless objected to termination of father’s parental rights. Over father’s counsel’s objection, the dependency court found notice proper, reasoning that father had been legally noticed for the November 2008 hearing but since then had not been in contact with his counsel. The dependency court terminated reunification services for both parents and selected adoption as the permanent placement plan.
The section 366.26 hearing (.26 hearing) was set originally for April 2009 but then continued twice, ultimately to October, because DCFS was having difficulty obtaining Ruben’s birth certificate. In the interim father appeared at a progress hearing on February 19. He was again in custody and had had no contact with Ruben. On June 1, 2009, father’s counsel filed a section 388 petition seeking reinstatement of reunification services. Father did not appear at the 388 hearing which was originally scheduled for July 9, 2009. His counsel requested a continuance, explaining that he did not know whether or not father was incarcerated. The dependency court eventually set both the 388 hearing and the .26 hearing for October.
In a letter received by the court on September 24, 2009, father asked the court to postpone “this matter” for a year, until September 1, 2010, when father expected to be released from prison. If postponement was not possible, father asked that he be brought to court to appear. It is unclear whether by “this matter” father was referring to the hearing on his section 388 petition or the .26 hearing. Although the envelope had a Terminal Island return address, father stated in the letter that he expected to be “heading up state this week.”
Father did not appear at the October hearing. Counsel for the department and the minor both opposed father’s section 388 petition. The dependency court denied the petition, finding that Ruben’s best interests would not be served by father’s proposed change inasmuch as father had no relationship with Ruben, much less any idea of Ruben’s special needs. On appeal, father does not assert any error attributable to the trial court’s ruling on the 388 petition. Although the dependency court found proper notice had been given for the .26 hearing, that hearing did not go forward in October and was continued several times because of the ongoing difficulties obtaining a birth certificate.
The birth certificate problem was finally resolved in February 2010. The .26 hearing was then set for April 12, 2010 nearly a year, after the original .26 date. Notice of that hearing was served on father by mail sent to a prison address in Delano, California on March 30, 2010. Father did not appear at the hearing, but was represented by counsel. Without objection, the dependency court found proper notice had been given to all parties. At both parents’ request, the matter was continued to April 30, 2010, for a contested .26 hearing. Father’s counsel did not mention that he had once again lost contact with father.
At the April 30 .26 hearing, the dependency court denied father’s counsel’s request for another continuance. Counsel argued: “I’ve attempted to contact my client through multitude of letters. I haven’t received a response from him. As a result, I have lost contact with my client. [¶] Nevertheless, in order to preserve his appellate rights, I would object to the termination of his parental rights.” The dependency court was not persuaded. It terminated all parental rights to Ruben.
Father filed a timely notice of appeal.

DISCUSSION

A. Denial of Father’s Request for a Continuance Was Not an Abuse of Discretion

Father contends the dependency court abused its discretion in denying his request for a continuance of the April 30, 2010 .26 hearing to give his counsel an opportunity to find father, with whom he had lost contact, and arrange for father to be present at the hearing.[3] He argues that the fact counsel had lost touch with father constituted good cause for a continuance. He asserts the dependency court denied the request without even allowing counsel to state his grounds, thus demonstrating that the court’s ruling was arbitrary and capricious. We find no abuse of discretion.
Section 352, which governs continuances in dependency proceedings, provides: “In order to obtain a motion for a continuance of the hearing, written notice shall be filed at least two court days prior to the date set for hearing, together with affidavits or declarations detailing specific facts showing that a continuance is necessary, unless the court for good cause entertains an oral motion for continuance.” We review the denial of a request for a continuance for abuse of discretion. (In re Givanni F. (2010) 184 Cal.App.4th 594, 604; In re Ninfa S. (1998) 62 Cal.App.4th 808 [continuance of hearings to terminate parental rights are discouraged and an order denying a continuance will be reversed only on a showing of abuse of discretion].)
Here, father’s counsel did not file the requisite written motion. On appeal, father has not shown good cause for the failure to do so. Accordingly, he has not shown that the trial court abused its discretion in denying the oral request. Even assuming an oral motion was sufficient, father had not shown why a continuance was necessary. This was not the first time father failed to keep in contact with his counsel during the dependency proceedings. The touchstone of father’s participation in the dependency proceedings over 2 ½ years was indifference to Ruben and unwillingness to stay in contact with counsel. It was father’s duty to communicate with DCFS and his counsel, not counsel’s duty to track down father each time he was released or incarcerated once again. (In re Raymond R. (1994) 26 Cal.App.4th 436, 441; § 316.1.) Father’s counsel had already sent father “a multitude of letters” to which father had not responded. Nothing in the record indicates what else counsel could have done to locate father.
And finally, even assuming error, father has not shown any prejudice. As in Jesusa V., supra, 32 Cal.4th at pages 625-626, father has not shown what evidence he would have presented or points he would have made if he had been present at the .26 hearing.

B. Father Was Not Denied Due Process

Father contends he was denied due process because the .26 hearing proceeded in his absence. He does not argue lack of notice, only that he had a due process right to a continuance so that his counsel could locate him and arrange for him to be transferred to court from prison.
A parent, absent due to incarceration, is generally not denied constitutional due process as long as he or she is represented by counsel at a dependency proceeding. (In re Axsana S. (2000) 78 Cal.App.4th 262, 269, disapproved of on other grounds in Jesusa V., supra, 32 Cal.4th at p. 624, fn. 12; In re Iris R. (2005) 131 Cal.App.4th 337, 342.) In Jesusa V., our Supreme Court explained that although a parent has a statutory right to be present at certain dependency proceedings, there is no denial of due process where a prisoner-parent is unable to attend because he or she is in custody. (Jesusa V., at p. 626.)
Here, father was represented by counsel at the .26 hearing. As we have already observed, father has not explained what evidence he would have presented that would have led to a different result; thus, any error was harmless. (In re Jesusa V., supra, 32 Cal.4th at p. 626.)

DISPOSITION

The order is affirmed.




RUBIN, ACTING P. J.
WE CONCUR:




FLIER, J.




GRIMES, J.



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