In re J.M.
Filed 7/14/09 In re J.M. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 J.M., a Person Coming Under the Juvenile Court Law. | |
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. R.J., Defendant and Appellant. | E047601 (Super.Ct.No. J218968) O P I N I O N |
APPEAL from the Superior Court of San Bernardino County. Wilfred J. Schneider, Jr., Judge. Affirmed.
Melissa A. Chaitin, under appointment by the Court of Appeal, for Defendant and Respondent.
Ruth E. Stringer, County Counsel, and Danielle E. Wuchenich and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.
Linda Rehm, under appointment by the Court of Appeal, for Minor.
I. INTRODUCTION
R.J. (Father) appeals from the January 12, 2009, juvenile court orders denying his request to continue the Welfare and Institutions Code section 366.26[1]hearing for his son, J.M., born in February 2007 and currently age two, terminating parental rights to J.M., and placing him for adoption. Father contends only that the juvenile court abused its discretion in denying his request to continue the hearing. We find no abuse of discretion and affirm the orders.
II. BACKGROUND
J.M. was taken into protective custody in December 2007 when he was only 10 months old. Several weeks earlier, the mother of J.M. left him with Father and Fathers wife S., who were living in a motel room. Father, then age 45, was a registered sex offender and was taken into custody for violating his probation or parole.[2] Father had failed to register as a sex offender at his new residence and was not to be around children, including his own. Father claimed he was unaware of the terms and conditions of his probation or parole, and said he had always taken care of J.M. due to the mothers drug abuse. He wanted custody of J.M. According to S., the mother had often left J.M. with Father and S. for long periods of time. At the time he was taken into protective custody, J.M. was dirty and hungry, and had a cold, running nose, and congested chest. The few possessions he had were in a diaper bag.
At the jurisdictional/dispositional hearing on February 20, 2008, the court found that J.M. came within Welfare and Institutions Code section 300, subdivisions (b) (failure to protect) and (g) (no provision for support). The court further found that Father was not entitled to services because (1) he was an alleged father, and (2) he had been convicted of a violent felony as defined in Penal Code section 667.5, subdivision (c). (Welf. & Inst. Code, 361.5.) J.M. was continued in foster care, and the mother was granted six months services. The mother failed to participate in her case plan and her services were terminated in August 2008.[3]
The section 366.26 hearing was scheduled for December 22, 2008. The San Bernardino County Children and Family Services (CFS)[4]recommended terminating parental rights and selecting adoption as the permanent plan. At the time of the December 22 hearing, Father was still in state prison but was transported to court. This was the first and only time Father appeared at any of the juvenile court proceedings. Through his counsel, Father advised the court that he wished to contest the permanent plan recommendation. The mother joined. The court set the matter contested and continued the section 366.26 hearing to January 12, 2009. Also on December 22, Father waived his right to appear at the January 12 hearing.
At the time of the January 12 hearing, Father was still in prison. Although he had waived his right to appear at the hearing and had been served with notice of the hearing, at the time of the hearing counsel for Father requested a continuance on the ground Father had telephoned him and said he had changed his mind and wanted to be present. Counsel suggested the matter should be continued to a date shortly after Fathers scheduled release from prison in late February 2009. CFS objected to the continuance on the grounds that Father had waived his right to be present, had been served with notice, and was only an alleged father.
The court denied the continuance request and proceeded with the hearing. Neither the mother nor Father offered any affirmative evidence. Minors counsel agreed with the recommendation to terminate parental rights and place J.M. for adoption. After receiving CFSs reports into evidence and taking judicial notice of all prior findings, orders, and judgments in the proceeding, the court terminated parental rights and placed J.M. for adoption. Father appeals.
J.M. had lived in two foster homes since December 2007. On February 6, 2008, he was hospitalized due to severe neglect in his first foster home. Following his release from the hospital on February 22, 2008, he was placed in a new foster home where he continued to live at the time of the January 12, 2009, section 366.26 hearing. He was thriving in his new foster home and showed no signs of developmental delays. He was bonded with his new foster parents and viewed them as parental figures. The new foster parents had become very attached to J.M. and were willing to adopt him. J.M. was then 23 months old.
III. DISCUSSION
Father contends the juvenile court abused its discretion in denying his request to continue the January 12, 2009, section 366.26 hearing for J.M. We find no abuse of discretion.
A. Applicable Law
Section 352 governs requests to continue juvenile dependency hearings. The statute allows a juvenile court to continue a hearing only upon a showing of good cause and expressly states that the convenience of the parties is not in and of itself good cause. (Ibid.) The statute further provides that no continuance shall be granted that is contrary to the interest of the minor. (Ibid.) In considering the interest of the minor, the court is to give substantial weight to three factors. (Ibid.; In re Dolly A. (1986) 177 Cal.App.3d 195, 199.) These are: [1] minors need for prompt resolution of his or her custody status, [2] the need to provide children with stable environments, and [3] the damage to a minor of prolonged temporary placements. ( 352.) An appellate court may not reverse an order denying a request for a continuance, absent a showing of an abuse of discretion. (In re C.P. (1985) 165 Cal.App.3d 270, 274.)
B. Analysis
Father argues that his continuance request was justified and reasonable, none of the three factors set forth in section 352 concerning the interest of the child were present, and the denial of the continuance deprived him of any opportunity to be heard concerning his right to the continuation of his parent-child relationship with J.M. Father further argues that a continuance of the hearing from January 12 to late February 2009 would have prejudiced no one, including J.M.
CFS argues that Fathers appeal is frivolous and must be dismissed because, as an alleged father, Father has no standing to appeal the order denying his continuance request or the orders terminating parental rights and placing J.M. for adoption. CFS further argues that Father forfeited his right to appeal the order denying the continuance because he did not object when the court denied the request. Alternatively, CFS maintains the court did not abuse its discretion in refusing to continue the January 12 section 366.26 hearing.
Setting aside the issues of standing to appeal and forfeiture, we agree that the court did not abuse its discretion in denying Fathers request to continue the hearing. Indeed, and as CFS points out, Father did not offer the court any good cause for a continuance. Fathers last minute change of mind and new-found desire to be present at the hearing, after having waived his right to be present, was the sole reason offered for the continuance and did not, in and of itself, constitute good cause. In effect, Father was asking the court to continue the hearing for Fathers convenience, which the statute expressly prohibits. ( 352 [the convenience of the parties does not in and of itself constitute good cause to continue a hearing].)
Furthermore, it does not matter whether, as Father argues, any of the three factors set forth in section 352, which the court is required to weigh in considering the interest of the child, were present. When, as here, no good cause is offered for the continuance, it is unnecessary to consider whether the continuance is contrary to the interest of the child. (Cf. In re Dolly A., supra, 177 Cal.App.3d at pp. 200-201 [juvenile court abused discretion in denying parents request to continue jurisdictional hearing, because the risk of injury to the childs interest was slight and the infringement upon parents rights was a clear and serious danger.].)
Moreover, Father has not shown he was prejudiced by the courts refusal to continue the hearing. Father was represented by counsel at the January 12 hearing and presented no affirmative evidence. He is not arguing he would have presented any evidence had the hearing been continued. Nor was his incarceration an impediment to his ability to appear and testify on January 12 or present any other evidence. Most significantly, Father has not demonstrated a reasonable probability that, had the hearing been continued, he would have realized a more favorable result. (In re Celine R. (2003) 31 Cal.4th 45, 59-60 [reversal warranted only if reviewing court finds reasonable probability the appealing party would have realized more favorable result but for the alleged error].) At the time of the hearing, J.M. was only 23 months old, was clearly adoptable, and was living in a stable and loving prospective adoptive home. There was no evidence that Father had a parental bond with J.M. And, as a registered sex offender, Father was unable to have custody of J.M. or even visit him.
IV. DISPOSITION
The orders denying Fathers request to continue the January 12, 2009, section 366.26 hearing, terminating parental rights, and placing J.M. for adoption are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
/s/ King
J.
We concur:
/s/ Hollenhorst
Acting P.J.
/s/ McKinster
J.
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[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
[2] It is unclear from the record whether Father was on probation or parole in December 2007 when J.M. was taken into protective custody.
[3] The mother filed a petition for an extraordinary writ. (Cal. Rules of Court, rule 8.452(a).) This court dismissed the petition following our receipt of a letter from the mothers counsel stating there were no legal or factual issues upon which the petition could be based.
[4] Formerly known as San Bernardino County Department of Childrens Services.
