In re Andrea B.
Filed 8/23/12 In re Andrea B. CA2/2
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
TWO
In re Andrea B., a Person Coming Under the Juvenile Court Law.
B234551
(Consolidated with B236585)
(Los Angeles
County
Super. Ct.
No. CK69784)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
P.H.,
Defendant and Appellant.
APPEAL from findings and orders of
the Superior Court of
County. Donna Levin, Juvenile Court
Referee. Affirmed.
Marissa Coffey, under appointment
by the Court of Appeal, for Defendant and Appellant.
John F. Krattli, Acting County
Counsel, James M. Owens, Assistant County Counsel, and William D. Thetford,
Deputy County Counsel, for Plaintiff and Respondent.
_________________________
P.H. (grandmother), the paternal
grandmother of Andrea B. (Andrea, born Nov. 2006), challenges the juvenile
court’s findings and orders sustaining three counts of a four-count Welfare and
Institutions Code section 387 petition,
custody, denying her reunification
services, and terminating her legal guardianship.
We affirm.
The Family
Andrea’s parents are S.M. (mother) and Andre B.
(father). They are not parties to this
appeal. The grandmother is father’s
mother.
Section 300 Petition and
Proceedings
On August 30, 2007, the
(DCFS) removed Andrea, who was born with congenital abnormalities, from her
parents’ custody. She was placed with
her grandmother on October 17, 2007.
For the six-month review hearing, DCFS reported that
Andrea was an active and engaging young child who appeared to be thriving in
her grandmother’s care. The social
worker observed that Andrea had a close bond with her grandmother and paternal
uncle, Maurice B. (uncle). Moreover, the
grandmother was attending to Andrea’s medical and developmental needs,
including multiple cardiac
surgeries and taking her to the Regional Center for services.
The grandmother hoped that father would one day be
able to care for Andrea and, for that reason, did not want to pursue
adoption. DCFS therefore recommended
that the grandmother become Andrea’s legal guardian. On May 18, 2009, the juvenile court appointed
the grandmother as Andrea’s legal guardian and terminated dependency
jurisdiction.
On January 7, 2011, DCFS received a referral alleging
general neglect of Andrea by the grandmother.
The referral indicated that the grandmother had called law enforcement
and reported that the uncle was going to kill her and had broken a window at
the home. Deputy Sheriff Baker responded
to the grandmother’s home and found it filthy and unsanitary, with trash and
food wrappers on the floor throughout.
There was broken furniture, and the sofas were dirty. The kitchen wall and cabinets were
dirty. The kitchen floor was dirty, with
broken glass everywhere. Rotten food was
found on the kitchen counter. Andrea was
sleeping on a dirty mattress, and the child was wearing a white T-shirt that
was so dirty it appeared to be black in color.
Emergency response
social worker Tanya Francis (Francis) interviewed Deputy Baker, who stated that
he had responded to a call that the uncle had threatened to harm the
grandmother. When he arrived at the
home, he observed Andrea sleeping on a filthy mattress. There was food and trash next to the mattress
and the home did not have a refrigerator.
Deputy Baker also found a marijuana pipe in the home; he learned that a
resident in the home was on probation for a drug conviction.
Francis spoke to the
grandmother by telephone. She explained
that the uncle had come home late in the night and began banging on the door,
prompting her to call the police. She
stated that her mortgage went up to $3,504 per month and she could not afford
it. She had shipped some of her
furniture to Mississippi and put the rest in the garage. The mattress on which Andrea was found
sleeping had been found by the uncle on the street. The grandmother stated that she was involved
in an automobile accident 10 years ago and sustained brain damage.
Francis went to the home
and met with the grandmother and Andrea.
Andrea appeared to be hyperactive and delayed in speech. Francis observed marks on Andrea’s back. The grandmother said that Andrea had an
appointment with the VIP Clinic the following Monday. The grandmother explained that Andrea had
undergone heart surgery when she was nine months old. Although she was not taking any medication,
she had regular check-ups every six months.
The grandmother then
informed the social worker that the police were harassing her because they were
looking for her daughter, who was on probation.
She had no money to go to a hotel and she was waiting for her sister to
send her some money so that she could go to Mississippi.
Francis inspected the
home and found two rooms with no furniture.
There was a mattress in one bedroom that was dirty. There was food on the floor next to the
mattress. There was a gallon of milk on
a shelf. The bathroom was dirty, with a
brown ring in the tub and cut hair on the shower floor. There was a dirty couch in the living room
and cigarette butts on the floor. There
was trash on the kitchen floor. There
was no refrigerator. It appeared as if
the home had been abandoned.
Francis believed that
the home’s condition was hazardous and immediately threatening to Andrea’s
health and that the grandmother’s emotional instability seriously impaired her
ability to supervise, protect, or care for the child. Thus, Francis removed Andrea from the
grandmother’s custody and placed the child in a foster home.
Based on the foregoing,
DCFS filed a section 387 petition, alleging that a drug pipe had been found in
the grandmother’s home within Andrea’s reach; the home was found in a filthy
and unsanitary condition with old food, cigarette butts and trash scattered
throughout the house and a dirty couch in the living room; and a filthy
mattress on which Andrea slept.
Francis asked that the
juvenile court order a mental health/developmental assessment of Andrea and a
multidisciplinary assessment of the grandmother.
The juvenile court found that DCFS had made reasonable
efforts to prevent the removal and that there were no services available to
prevent further detention. The juvenile
court placed Andrea in the temporary care of DCFS pending disposition. It ordered monitored visits for the
grandmother and Andrea’s parents. It
further ordered that Andrea receive a Regional Center evaluation and a Public
Health Nurse (PHN) assessment and that the grandmother receive an up-front
assessment.
The matter was set for a pretrial resolution
conference on February 14, 2011.
On February 9, 2011,
dependency investigator Darlene Moore (Moore) interviewed the grandmother at
the DCFS office. The grandmother
reported that she had difficulty with short-term memory because she had been
involved in a car accident in 1996. She
had been diagnosed with short-term amnesia.
She stated that she wanted to continue being Andrea’s legal guardian and
was willing to participate in any court-ordered programs.
Regarding the condition of the home, the grandmother
explained that half of her furniture had been shipped to Mississippi and the
other half was stored in her garage. She
said that her home had been without any furniture, refrigerator, or stove for
three weeks; they would order out for food every day or a friend would take
them to the store to get food. In the
mornings, the uncle would walk to the store and buy Andrea cereal and milk for
breakfast. The grandmother denied that
the home was filthy and that Andrea’s shirt was dirty.
As for Andrea’s heart condition, Andrea had undergone
two heart surgeries. After her second
surgery, the grandmother had been told that Andrea needed to be seen by the
doctor every six weeks. She could not
remember Andrea’s last appointment. She
explained that she could not recall Andrea’s appointments because her
short-term memory was impaired; instead, she depended on the uncle to remember
the appointments for her.
Regarding the drug pipe, the grandmother explained
that it belonged to someone named “Tommy.â€
Tommy only smoked tobacco out of it.
The grandmother denied using drugs.
Moore then interviewed Andrea, who was able to answer
simple questions. However, Moore could
not obtain any statement from Andrea regarding the allegations.
Andrea’s foster mother reported that Andrea had made
some improvement with her speech and was no longer mumbling her words. She was not potty trained and was unable to
say when she needed to use the bathroom or articulate her needs. The foster mother also reported that the
grandmother had telephoned Andrea every day since February 6, 2011, and,
although she would tell Andrea that she was coming to visit, she never did.
Moore recommended that Andrea remain in foster care,
that family reunification services be provided to the grandmother, and that the
grandmother participate in parenting education classes and individual
counseling.
Jurisdiction/Disposition
Report
DCFS provided information from PHN Patricia Nance
(Nance). Nance conducted an assessment
of Andrea’s health and development on January 16, 2011. Her speech appeared to be delayed. The child was observed to occasionally
stumble and fall. Nance recommended that
Andrea be reassessed for Regional Center services.
When Andrea’s diaper was changed during the
assessment, she pointed to her public and buttocks areas and stated, “‘Andre
[father] spanked me.’†A forensic exam
conducted that same day did not confirm or rule out sexual abuse.
Interim Review Report
On March 8, 2011,
Andrea’s foster mother reported that Andrea said that father had touched her
“‘privates’†and “‘opened it up.’†The
foster mother tried to get Andrea to tell the social worker what had happened
by asking her leading questions, like “‘Didn’t [father] touch your privates?’†While Andrea responded in the affirmative,
the social worker instructed the foster mother to stop questioning the child.
At Andrea’s most recent
cardiology appointment, it was determined that a heart valve still leaked and
further surgery might be necessary.
Andrea was given a 24-hour heart monitor. In a subsequent letter from the cardiologist,
the doctor indicated that Andrea required follow-up appointments every three to
six months; the grandmother had failed to bring Andrea for her appointments on
May 12, 2008, March 16, 2009, December 14, 2009, and January 18,
2010.
On April 8, 2011, the
grandmother advised the social worker that she and father were going to
Mississippi and would be returning on May 11, 2011. During that conversation, the grandmother
advised the social worker that she and father had not been truthful to the
social worker about where mother and Andrea’s half-sibling, Aaron M. (Aaron),
were staying. The grandmother admitted
that they had been staying with her and father and sometimes with mother’s
godmother. The grandmother informed the
social worker that Aaron was unkempt; she said that she would notify the social
worker of mother and Aaron’s whereabouts so DCFS could “‘do [its] job.’†On April 20, 2011, the social worker learned
that mother and Aaron had accompanied the grandmother and father to Mississippi
and would not be returning until May 11, 2011.
Because of her trip to
Mississippi, the grandmother had not participated in the court-ordered
assessment of her emotional and cognitive delays. However, the grandmother informed the social
worker that she was willing to be assessed upon her return.
In the meantime, Andrea
was seen by the Regional Center for a psychological testing/assessment on April
12, 2011. Regarding Andrea’s past
Regional Center services, DCFS learned that a psychological testing/assessment
appointment was scheduled on four separate occasions and that the grandmother
had failed to take Andrea to any of them.
Thus, Andrea’s case was closed and Andrea had not received Regional
Center services. Despite advice that the
grandmother take Andrea to a preschool for an evaluation, the grandmother had
failed to do that as well.
At the same time,
Andrea’s sibling, Ariel M. (Ariel), had been removed from her parents’ custody
and a hearing on her section 300 petition was set for June 7, 2011. DCFS was searching for a placement where
Andrea and Ariel could be placed together.
Andrea could not be placed with Ariel in Ariel’s current foster home
because Ariel’s foster parent was not approved for Andrea’s special needs and
because she had no room for Andrea.
First Amended Section 387
Petition
On May 2, 2011, DCFS
filed a first amended section 387 petition, adding a count alleging that the
grandmother had failed to obtain the necessary and timely medical follow-up
appointments for Andrea and a count alleging that the grandmother had failed to
protect Andrea from sexual abuse by father.
On May 9, 2011, the Regional Center informed DCFS that
Andrea had been diagnosed with mild mental retardation and was eligible for
services.
Moore interviewed Andrea
on May 31, 2011. She was unable to tell
the difference between a lie and the truth.
Andrea said that father, the uncle, mother, and Aaron lived with her at
the grandmother’s house. Moore asked
Andrea to point to her “‘private parts’†and she immediately pointed to her
vaginal area and said, “‘[r]ight there . . . and my butt!’†When asked if anyone had ever touched her
private parts, Andrea replied, “‘Yes . . . [Father].’†Andrea said that she would run to the
bathroom when it happened. Andrea was
shown drawings of a boy and a girl and she identified their private areas. When asked if father was a boy or a girl,
Andrea said that he was a boy. Moore
then asked her if father had ever touched his private part to her private part,
and Andrea responded, “‘Yes . . . [Father] touched my private
and [uncle] touched my legs with a belt.’â€
She then began drawing pictures of what she meant by private-to-private
touching. Andrea’s foster mother told
Moore that about a week earlier, she found Andrea masturbating in a bathtub and
Andrea told her that father had “‘hurt [her] down there’†and that father had
“‘put his mouth down there.’â€
Moore contacted father,
who was still in Mississippi. He denied
sexually abusing Andrea or living with the grandmother. He accused the foster mother of coaching
Andrea of what to say.
The grandmother said that the allegation that father
had sexually abused Andrea was a lie and that Andrea had never told her that
someone hurt her private area. Regarding
the alleged medical neglect, the grandmother explained that she did not have
transportation. Although she said that
the doctor’s office told her that she needed to call Long Beach Memorial
Hospital to set up the appointments, she never did.
The grandmother stated that she had not obtained a
mental health evaluation because most of the physicians she had contacted would
not take Medi-Cal insurance. It was the
grandmother’s plan to move to Mississippi to live permanently.
Mother informed Moore that Andrea had told her a few
times that her private area hurt and that the uncle was the one who had hurt
her. Later, mother asked Moore to keep
the information confidential because she did not want any problems with the
grandmother.
June 7, 2011, Hearing
At the hearing, the
juvenile court accepted the various DCFS reports into evidence. Then the grandmother testified. She said that Andrea’s doctor told her that
the child needed follow-up appointments every six months. In accordance with his instructions, the
grandmother brought Andrea to the doctor every six months; she never canceled
an appointment but she could not remember the dates of the appointments.
When the police went to
her house on January 7, 2011, the rooms were empty. Half of the furniture was in the garage and
the other half had been sent to Mississippi.
There was a box spring, a mattress, and a television in the master
bedroom. There had been no furniture for
about a month. The grandmother had been
planning to move to Mississippi on January 9, 2011. The grandmother said that she had not seen a
drug pipe in her home. She had a cousin
who had a metal pipe that he used to smoke tobacco, but she claimed that there
was no drug pipe.
The grandmother further
testified that Andrea had never told her about someone touching her private
parts. The grandmother did not believe
that anyone had sexually abused Andrea because Andrea was with her at all times,
she had never been left with father, and, in any event, father loved the child
and would never do such a thing.
The grandmother
acknowledged that she suffered from short-term memory loss, but explained that
when she wanted to remember something she remembered it. She denied having told the police that she
was handicapped and had difficulty caring for others. However, she admitted the
accident affected her balance. She
favored her right side and could not lift anything very heavy. She needed help mopping floors because it
made her lower back hurt. When asked if
she was “handicapped,†she admitted being “disabled.â€
The grandmother denied that she told Francis that the
uncle had found the mattress where Andrea slept on the street. She denied that mother and father lived with
her. She denied that she failed to take
Andrea to four Regional Center assessment/testing intake appointments. She denied saying that Andrea’s doctor told
her to set up an appointment through Long Beach Memorial Hospital and that she
failed to do so.
Finally, the grandmother testified that Andrea got the
scars on her body from falling while riding a skateboard.
After entertaining oral argument, the juvenile court
sustained counts one and two as pled and counts three and four as amended in
the section 387 petition. Although the
juvenile court believed that the grandmother had the best of intentions, it found
that because of her disabilities and her inability to recognize the true extent
of Andrea’s needs, it was difficult for her to care for the child. The juvenile court determined that Andrea’s
placement with the grandmother was no longer effective in the protection or
rehabilitation of the child and that she should therefore be removed from the
grandmother’s home.
Andrea’s attorney then argued that the juvenile court
had discretion as to whether to grant the grandmother reunification
services. The juvenile court
responded: “There [are] no [reunification
services] in a 387 petition. This is
about do we allow a six-month period for the legal guardian to possibly reunify
or not so the disposition is really the 387.
The disposition is removal from the legal guardian’s home. [¶]
Now, the question is do we allow the legal guardian to have I guess you
could call it ‘family reunification?’ It
is not the same as when a [section] 300 petition is sustained.â€
Andrea’s attorney then argued that it would not be in
Andrea’s best interest to provide the grandmother with reunification
services. The juvenile court noted that
DCFS had recommended reunification services.
But, county counsel informed the juvenile court that DCFS was going to
file a section 388 petition to terminate the guardianship and that she would
have it filed by the end of the day.
County counsel then stated that she was unaware of any services that
could benefit the grandmother because the grandmother suffered from a
disability. The juvenile court
agreed. Ultimately, county counsel asked
the juvenile court to order no services for the grandmother and advised that
DCFS would seek to terminate the guardianship.
Andrea’s attorney joined in that request.
In response, the grandmother’s attorney argued that
the grandmother had made every effort to provide Andrea with a safe and
appropriate home and desired to continue to do so. The juvenile court stated that it could not
think of any services that would help the grandmother, noting that there were
deeper problems.
Thereafter, the juvenile court found, by clear and
convincing evidence, that the grandmother would not benefit from services. It further found that there was a compelling
reason that a section 366.26 hearing would not be in Andrea’s best interest and
ordered a planned permanent living arrangement.
A progress hearing was set for July 11, 2011, and a review hearing was
set for December 6, 2011.
DCFS’s Section 388 Petition
On June 7, 2011, DCFS
filed a section 388 petition, seeking to terminate the grandmother’s legal
guardianship. The matter was set for
hearing on July 11, 2011.
The Grandmother’s Appeal
On July 5, 2011, the
grandmother timely filed a notice of
appeal.
Hearing on DCFS’s Section
388 Petition
After numerous continuances, the hearing on the
section 388 petition took place on September 22, 2011. On that date, the social worker filed a
report responding to several questions posed by the juvenile court. Specifically, regarding Andrea’s placement, a
former social worker reported that the caretaker spoke negatively about Andrea
and often complained about the child’s behavior. The current social worker similarly reported
that the caretaker complained of Andrea and spoke of her negatively, even as
recently as August 2011. However, the
social worker indicated that there were no safety concerns and, after the
caregiver began receiving Regional Center rates for Andrea, she stopped calling
to complain. The social worker also
noted that Andrea had asked to go to the caretaker’s home in the grandmother’s
presence.
Furthermore, the DCFS adoptions unit was searching for
an adoptive home where Andrea and Ariel could be placed together; Andrea’s case
was being transferred to the adoptions social worker handling Ariel’s adoption.
Regarding Andrea’s
behavior at school, her kindergarten teacher reported that she was doing well;
there were no major concerns regarding aggressiveness and she was one of the
best-behaved children in the class.
Andrea’s therapist stated that the child had made good progress and,
although she continued to display developmental delays, her verbal and social
skills had improved and her aggressive behaviors had decreased.
The grandmother was not
present at the September 22, 2011, hearing.
Her attorney
name="_ftnref2" title="">[2] stated that the grandmother was in Mississippi
due to a death in the family; she requested a continuance and for the matter to
be set for contest. The juvenile court
indicated that it had already found that it was appropriate to terminate the
guardianship after a hearing where the grandmother had testified and that
notice for this hearing was proper.
Thus, the juvenile court denied the request for a continuance. The grandmother’s attorney objected to the
juvenile court’s order terminating the guardianship.
Thereafter, the juvenile
court granted DCFS’s section 388 petition and terminated the grandmother’s
legal guardianship of Andrea. It then
noted that a section 366.26 hearing for Andrea had been set for November 7, 2011.
The Grandmother’s Appeal
On October 6, 2011, the
grandmother filed another notice of appeal.
DISCUSSION
I.
Andrea from her grandmother’s care
A section
387 petition requires a bifurcated hearing.
(Cal. Rules of Court, rule 5.565(e)(1); In re Jonique W. (1994) 26 Cal.App.4th 685, 691.) In the first phase, following the procedures
for a jurisdictional hearing on a section 300 petition, the juvenile court
determines whether the factual allegations of the section 387 petition are
true. “The ultimate ‘jurisdictional
fact’ necessary to modify a previous placement with a parent or relative is
that the previous disposition has not been effective in the protection of the
minor.†(In re Jonique W., supra, at p. 691.)
If the allegations are found true, a
disposition hearing must be conducted following the procedures for a
disposition on a section 300 petition.
(Cal. Rules of Court, rule 5.565(e)(1) & (2).)
Here, the grandmother argues that
substantial evidence does not support the juvenile court’s order sustaining
counts s-1, s-3, and s-4 in the first amended section 387 petition. She does not challenge jurisdiction based on
the allegations sustained under count s-2.
“When a
dependency petition alleges multiple grounds for its assertion that a minor comes
within the dependency court’s jurisdiction, a reviewing court can affirm the
juvenile court’s finding of jurisdiction over the minor if any one of the
statutory bases for jurisdiction that are enumerated in the petition is
supported by substantial evidence. In
such a case, the reviewing court need not consider whether any or all of the
other alleged statutory grounds for jurisdiction are supported by the
evidence. [Citations.]†(In re
Alexis E. (2009) 171 Cal.App.4th 438, 451.)
It follows
that the sustained allegations against the grandmother under count s-2 bring
Andrea within the jurisdiction of the juvenile court. As long as there is one unassailable
jurisdictional finding, it is immaterial that another might be
appropriate. (Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 72;
873, 875–876.)
Having
determined that the juvenile court properly sustained the section 387 petition,
we next consider whether the juvenile court erred in removing Andrea from grandmother’s
care. In light of the unchallenged
sustained allegation that the grandmother’s home was filthy, unsanitary, and
placed Andrea at risk, we readily find no error.
II.
to leave Andrea in the grandmother’s care with services
The
grandmother argues that the juvenile court erred in failing to consider what
services could have been provided to ensure maintenance of the legal
guardianship.
It is
well-established that a legal guardian is not entitled to reunification
services. (In re Carlos E. (2005) 129 Cal.App.4th 1408, 1418–1419.) That said, “the Legislature intended that the
juvenile court at least consider whether services are available to ameliorate
the need for modification of the permanent plan. [Citation.]
This is consistent with the overall intent of the dependency scheme,
which is to protect children from abuse or neglect and to provide permanent,
stable homes if those children cannot be returned home within a set period of
time†(In re Jessica C. (2007) 151 Cal.App.4th 474, 483; see also § 366.3,
subd. (b); Cal. Rules of Court, rule 5.740.)
Under the plain meaning of section 366.3, as well as in consideration of
the objectives and purpose of the dependency statutes, reunification services should
be given to a legal guardian when the juvenile court determines that “such
services are necessary and that keeping the child in the legal guardian’s home
is in the child’s best interests.†(
1281.)
Here, the juvenile
court considered whether services could have been appropriate and then
determined that the grandmother would not have benefitted from them.
the grandmother’s home was filthy and unsanitary, and that that home
environment put Andrea at risk of harm, we conclude that there was no abuse of
discretion. (In re Jessica C., supra,
151 Cal.App.4th at p. 482.)
The
grandmother claims that she was “blindsided†by the juvenile court’s decision
not to order services recommended by DCFS.
We cannot agree. Nothing requires
the juvenile court to “rubber stamp†recommendations made by DCFS. (See In
re Z.C., supra, 178 Cal.App.4th
at p. 1280.)
relies, is readily distinguishable. In
that case, there was no evidence that any evaluation of services was made
available; the social worker never considered whether services would have been
appropriate. (Id. at p. 482.) In
contrast, in the instant case, DCFS did prepare a report, which the juvenile
court considered.
III.
the grandmother’s request for a continuance
Finally, the grandmother argues
that the juvenile court erred in denying her request for a continuance of the
hearing on DCFS’s section 388 petition.
Section 352, subdivision (a)
provides, in relevant part: “Upon
request of counsel for the . . . guardian
. . . the court may continue any hearing under this chapter
beyond the time limit within which the hearing is otherwise required to be
held, provided that no continuance shall be granted that is contrary to the
interest of the minor. In considering
the minor’s interests, the court shall give substantial weight to a minor’s
need for prompt resolution of . . . her custody status, the need
to provide children with stable environments, and the damage to a minor of
prolonged temporary placements. [¶] Continuances shall be granted only upon a
showing of good cause and only for that period of time shown to be necessary by
the evidence presented at the hearing on the motion for the continuance.†(See also Cal. Rules of Court, rule 5.550;
912.)
A party requesting a continuance of
a hearing must file a written notice of motion “at least two court days prior
to the date set for the 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.†(§ 352, subd. (a).)
The juvenile court did not abuse
its discretion in denying the grandmother’s request for a continuance of the
hearing on DCFS’s section 388 petition.
(In re Karla C. (2003) 113
Cal.App.4th 166, 180.) Procedurally, we
note that the grandmother did not comply with the steps for seeking a
continuance. Substantively, the
grandmother did not show good cause for the continuance. While she claims that she was unable to
attend the hearing because of a death in the family, there is no evidence to
support this assertion. (
629, 646, fn. 13 [attorney’s statement is not evidence].) And, the record contradicts this
contention. In June 2011, the
grandmother informed the social worker that she planned to move to Mississippi
permanently; her testimony at the hearing on the section 387 petition confirmed
her intent. Later, on September 1, 2011,
the grandmother told the social worker that she was in Mississippi and that she
had “medical problems†that prevented her from attending the hearing. Thus, the juvenile court was free to
disregard the grandmother’s attorney assertion that the grandmother needed the
continuance because she was only in Mississippi for a funeral.
Without citing legal authority, the
grandmother claims that she was entitled to have her court-appointed attorney,
Mr. Alaynick, present in court to represent her. Section 317 mandates that the grandmother be
represented by an attorney and she was.
An attorney from Mr. Alaynick’s office appeared and argued on the
grandmother’s behalf. She never
indicated that she was unprepared to proceed and represent the
grandmother. Moreover, Mr. Alaynick
received notice of the hearing; there is no evidence or argument as to why he
could not be there and why his presence was required.
The grandmother also contends that
matter have been set for contest. Again,
there is no legal authority offered to support this argument.
Finally, we note that the
grandmother has not shown prejudice by the juvenile court’s denial of her
request for a continuance. (Cal. Const.,
art. VI, § 13; In re Celine R. (2003)
31 Cal.4th 45, 59–60.) When the
grandmother’s attorney requested a continuance, she did not provide any offer
of proof as to what the grandmother would testify to at a continued
hearing. And, on appeal, the grandmother
still neglects to inform us as to how the outcome of the proceeding would have
been different had she been present at the hearing. It follows that there is no basis to reverse
the juvenile court’s order.
The juvenile court’s findings and orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________________,
J.
ASHMANN-GERST
We concur:
_______________________________,
P. J.
BOREN
_______________________________,
J.
further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
grandmother. While he was not present at
the September 22, 2011, hearing, another attorney from his law firm (Ms.
Jacobo) appeared and represented the grandmother.
