In re Teresa N.
Filed 4/10/13 In re Teresa N. CA4/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
In re TERESA N., a Person
Coming Under the Juvenile Court Law.
SAN DIEGO
COUNTY HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
A.N.,
Defendant and Appellant.
D062998
(Super. Ct.
No. CJ001006)
APPEAL from
orders of the Superior Court
of
County, Laura J. Birkmeyer, Judge. Affirmed.
A.N.
appeals an order denying his motion for a continuance of the Welfare and
Institutions Code
title="">[1]
section 366.26 hearing concerning his daughter, Teresa N., and the order
terminating his parental rights to
Teresa. He contends the court abused its
discretion by denying his request for a continuance and by not hearing his oral
section 388 motion.
FACTUAL
AND PROCEDURAL BACKGROUND
In June
2011, nine-month-old Teresa was placed in protective
custody when her parents, A.N. and T.F., violated a mutual restraining
order that had been put into place after a domestic violence incident in
March. The
Agency (the Agency) petitioned on Teresa's behalf under section 300,
subdivision (a), alleging she was at substantial risk of serious physical harm
from domestic violence. The court named
A.N. as Teresa's presumed father and ordered Teresa detained.
At the
jurisdictional/dispositional hearing on August
8, 2011, the court found the allegations of the petition to be
true, declared Teresa a dependent child of the court, removed custody from her
parents and ordered her placed in foster care.
A.N.'s court-ordered reunification plan included counseling, a domestic
violence prevention program, parenting education, substance abuse services and
supervised visitation. He was in and out
of custody during the months of Teresa's dependency.
At the
six-month review hearing in April 2012, the court terminated reunification
services and set a section 366.26 hearing for August 15. The section 366.26 hearing was continued and
finally took place on November 9, 2012. A.N. was incarcerated again by this time and
he participated by telephone. At the
hearing, his counsel requested a continuance to allow her to file a section 388
petition or that the court entertain an oral section 388 petition. A.N.'s counsel reported that one day earlier
A.N. had contacted her with information regarding his completion of a parenting
class and an anger management program and of his participation in substance
abuse treatment, and she had contacted the other counsel in the case to inform
them she would be requesting a continuance.
The court denied the motion and denied A.N.'s request to present an oral
section 388 petition. It then considered
the evidence and argument by counsel, and found Teresa was adoptable and no
statutory exceptions were present to preclude adoption. It terminated parental rights and designated
adoption as the permanent plan.
DISCUSSION
A.N.
contends the court abused its discretion by denying his request for a
continuance of the section 366.26 hearing.
He asserts he made a good cause showing that a continuance was
appropriate. He also argues the court
erred by not allowing him to present an oral section 388 petition.
The juvenile court may grant a continuance only on a showing of good
cause. "[T]he court shall give
substantial weight to a minor's need for prompt resolution of his or her
custody status . . . ." (§ 352, subd. (a).)
"Continuances are discouraged [citation] and we reverse an order
denying a continuance only on a
showing of an abuse of discretion [citation]." (In re Ninfa S. (1998) 62
Cal.App.4th 808, 810-811.)
Once a
court terminates reunification services, the focus of the proceedings shifts from family reunification to the
needs of the child for permanency
and stability. (In re Marilyn H. (1993) 5
Cal.4th 295, 309.) The court "must
recognize this shift of focus in
determining the ultimate question before it, that is, the best interests of the
child." (In re
Stephanie M. (1994) 7
Cal.4th 295, 317.)
A.N. has
not shown an abuse of the court's discretion by the denial of the motion for a continuance. A.N. had adequate notice of the hearing. Counsel had been appointed for him in July
2011. In May 2012, he was served with
notice of the section 366.26 hearing to be held on August 15, and he was
informed that the Agency was recommending his parental rights be
terminated. On August 15, the court
granted the Agency's request for a continuance so T.F.'s counsel could locate
and personally serve T.F. Then, at the
continued hearing on September 25, the court granted A.N.'s attorney's motion
for a continuance so A.N. could be produced from prison. By the time of the hearing on
November 9, A.N. had had ample time to contact his counsel and to provide
information about the services in which he was participating.
The court
did not err by finding that delaying the hearing would not serve Teresa's best
interests. Teresa was nine months old
when she was first detained. By the time
of the section 366.26 hearing, she was two years old and had spent much of her
life in foster care. A.N.'s argument
that his loving relationship with Teresa should be protected is not convincing. He had visited her only five times while she
was in foster care and he had been in custody for much of her life. Although Teresa went to him easily the time
she visited him in jail on September 15, 2011, and spent much of the visit with
her head on his shoulder, it was reported that after the visit she cried more
frequently, was afraid of the dark and afraid of being left alone. A.N. has not shown that he has a strong
relationship with Teresa deserving of protection at the expense of delaying her
permanency.
A.N.
misplaces reliance on In re B.C.
(2011) 192 Cal.App.4th 129, where the reviewing court held the juvenile court
had abused its discretion by granting a mother's request for a continuance on
the day set for the section 366.26 hearing.
(Id. at p. 140.) In our view, contrary to A.N.'s argument, he
is like the mother in In re B.C. and
was attempting to make "a last-minute 'end-run' around an anticipated
termination of parental rights." (
A.N. also
has not shown the court erred by finding he had not sustained his burden to
make a prima facie showing triggering a right to a full hearing on an oral
section 388 petition.
To obtain
the relief sought in a section 388 petition, the petitioner must show both a
change of circumstances or new evidence and that the change sought is in the child's
best interests. (§ 388; Cal. Rules
of Court, rule 5.570(e)(1); In re Michael B. (1992)
8 Cal.App.4th 1698, 1703.)
" ' "The parent need only make a prima facie showing
to trigger the right to proceed
by way of a full hearing." ' [Citations.]" (In re Aljamie D. (2000)
84 Cal.App.4th 424, 432.)
"[I]f the petition presents any evidence that a hearing would promote the best
interests of the child, the court must order the hearing." (In re
Angel B. (2002) 97
Cal.App.4th 454, 461.) However, a
last-minute filing of a section 388 petition just before a section 366.26
hearing is generally disfavored. (
Cal.App.4th 584, 594.) Further, a
"court is not required to entertain an oral motion under section 388 at
the time set for the section 366.26 hearing." (In re
Baby Boy L. (1994) 24 Cal.App.4th 596, 609.) A hearing on a last minute oral motion could
unnecessarily delay permanency for a child who is in need of a stable,
permanent home. (Ibid.)
A.N. waited
until the eve of the hearing to provide information about his participation in
services. Moreover, as the court noted,
the hearing had been delayed for some months and A.N.'s description of having
completed parenting and anger management classes and participated in substance
abuse treatment showed at most changing, not changed, circumstances, as
required by the statute, and by the 18-month date, A.N. would still be in
prison and unable to assume custody.
A.N. has not shown an abuse of the court's discretion.
DISPOSITION
The orders
are affirmed.
BENKE, J.
WE CONCUR:
McCONNELL, P. J.
HUFFMAN, J.
name="_ftn1" title="">[1] Statutory references are to the Welfare and Institutions
Code.
