In re George R.

Filed 11/30/05 In re George R. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re GEORGE R., a Person Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. N. V., Defendant and Appellant.	E037563 (Super.Ct.No. RIJ106401) OPINION

APPEAL from the Superior Court of Riverside County. Robert W. Nagby, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant.

Joe S. Rank, County Counsel, and Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.

Julie E. Braden, under appointment by the Court of Appeal, for Minor.

N. V. (mother) contends the juvenile court abused its discretion in refusing to vacate jurisdictional and dispositional findings and orders regarding her son, George R., which it made in her absence, and denying her request for a continuance so that she could have a contested hearing. We disagree and affirm.

FACTS AND PROCEDURAL HISTORY

George R., born in September 1989, was first removed from mother’s home in July of 2003, amidst allegations of physical and emotional abuse and unsuitable living conditions. Following a detention hearing, George was released to the custody of his father, George, Sr., with whom he had not previously had much of a relationship. However, George, Sr., who was never married to mother, had been paying child support pursuant to an April 1998 family law court order.

In December, George was declared a dependent of the court and returned to mother’s home under a plan of family maintenance. In January 2004, a supplemental petition was filed pursuant to Welfare and Institutions Code section 387.^[1] According to the social worker, mother had been uncooperative in permitting visits to her home, and George had not been enrolled in school. When mother refused to allow the social worker to inspect the home despite police assistance, George was taken into protective custody. The following day, George, who had a history of running away from foster homes, was en route to a shelter home when he jumped out of the car and fled the scene. During the next few months, the whereabouts of both mother and George were apparently unknown.

In April, after George was detained in Los Angeles due to a pending assault with a deadly weapon charge, the social worker asked the court to authorize a group home placement. However, on May 5, 2004, the court terminated the dependency, ostensibly because mother continued to be uncooperative with the Department of Public Social Services (Department). Thereafter, George remained in mother’s custody except that he did run away from home during August and stayed with friends for about four weeks.

In late September, George and mother engaged in a heated argument. George told mother that if she did not stop her verbal onslaught, he would kill himself. While mother continued to tell him that he was “nothing but trouble” and that she wished that he had never been born, George went into the garage, found an extension cord, and tied it to some rafters. When George’s grandmother realized what was going on, she called the police, after which George was taken to the Children’s Emergency Services Unit (CESU) for observation. George did not meet the criteria to be placed on a hospital hold, however, and when he was ready to be discharged, mother adamantly refused to pick him up. As a result, another dependency petition was filed on September 2 8, 2004. It alleged not only that mother refused to pick up George from CESU, but also that she lacked appropriate discipline skills, that George was unwilling to return to mother’s home, and that George’s father was unable to provide him with adequate food, clothing, and shelter, all placing the child at substantial risk of physical harm and/or injury. The petition also alleged that George was at risk of serious emotional damage by reason of mother’s ongoing verbal abusive statements and his recent evaluation for suicidal ideations. George was placed in a confidential shelter home.

A jurisdictional/dispositional hearing was scheduled for October 21, 2004. The social worker recommended that George remain in out-of-home care and that family reunification services be provided to both parents. The hearing was continued several times^[2] and eventually proceeded on January 10, 2005.

In the interim, the social worker had virtually no contact with mother, who did not answer her telephone and apparently did not employ a telephone answering device. Nor did George have any contact with mother. He did, however, have frequent telephone contact with his father. Between October 21st and November 22nd of 2004, George had been moved to three different foster homes. He was doing better in the most recent home; however, the social worker indicated that if that home did not work out, the next step was a group home, and George was so informed. George told the social worker that he “hates the system” and wants to reside with his father or sister.^[3]

Mother was not visiting with George and failed to cooperate with the Department. According to the social worker, mother was not motivated to cooperate in an effort to reunify with George. The social worker opined, “At this time, it appears appropriate to

continue George in out-of-home care to stabilize his behavior so that he can be returned

to the care of his father.”

The social worker finally spoke to mother on December 30, 2004. She reported that mother was not interested in receiving information regarding reunification with her son, but rather, was only interested in making threats to the Department. She continued to state that George is a liar and that none of the information written in the reports was true. The social worker informed mother that she had been calling her home approximately two times each week for the last month to set up visitation with her son. Mother responded, “I don’t have to answer my phone, I don’t have to be at your beck and call, this is not my problem.” And when the social worker informed mother that she would need to enroll in services such as parenting and counseling to reunify with her son, mother retorted, “I don’t have to do anything you say. I don’t need any of those things and I am not going to waste my time doing things I don’t need.”

Meanwhile, George’s behavior had stabilized since he was placed in his then current home, and he was expected to begin counseling in January 2005. He was adamant that he did not want to be in mother’s care. And, he was tired of being “in the system.”

On January 10, 2005, mother did not appear in court at the scheduled time. In her absence, her attorney indicated that when they last spoke, mother said that she would not be attending the hearing that day. Mother’s guardian ad litem informed the court that she had spoken to mother many times prior to the hearing on January 6th but that she had not

heard from her since that date. George, Sr., signed a waiver of rights form, and the court found that he had made a knowing, voluntary and intelligent waiver of his rights. The deputy county counsel submitted the matter to the court based upon the Department’s reports, and mother’s counsel voiced no comment with regard to the court’s receipt of those reports in evidence. The court then made jurisdictional and dispositional findings and orders. It found the allegations of the petition to be true by a preponderance of the evidence and that George came within the provisions of section 300, subdivisions (b), (c) and (g). It also found by clear and convincing evidence that there was a substantial danger to George’s physical health, safety, protection, physical and emotional well-being if returned home. Both parents were to be offered reunification services. In addition, mother was to undergo a psychological evaluation.

While announcing its findings, the court learned from its clerk that mother had telephoned to say she “will be late. She is catching the bus.” The court stated: “I’m going to complete the findings, and if mother arrives, we’ll vacate the findings. If not, the findings will stand.” Later, the court stated, “We’ll put this matter on further call should mother appear in the matter. If she does appear, we’ll vacate the findings, and we’ll go on from there.”

At approximately 2:30 p.m., the court recalled the matter, noting that mother was now present, although her guardian ad litem had left at 11:00 a.m. Mother’s attorney asked the court to continue the matter “in order to present evidence” (but did not specify the nature of that evidence) and to vacate the previous orders. The deputy county counsel, joined by minor’s counsel, urged the court not to continue the matter: “The child has been disrupted several times now. This matter has been going on for four months. I don’t know what another continuance is going to do to resolve this matter. All of the evidence is in. The mother can present her case today, and we can go forward today.” Minor’s counsel indicated she believed that mother was being disingenuous with the court in that she had asserted inconsistent reasons for her lateness. The court and mother then engaged in the following colloquy:

THE COURT: “The reason that you weren’t here this morning is that your mother was ill?

THE MOTHER: “My mother is ill. I didn’t have any way to get here. I tried to get a bus here. I called up here, and tried to get here for two hours, on the phone.

THE COURT: “Hold on. You’re giving me more information than I need. Let me ask you the questions, and just answer the questions that I’m asking you. [¶] Would your mother have driven you down here? Was your mother your ride?

THE MOTHER: “No. No. My mother is 87 years old. I was with my mother. She got real ill. I couldn’t come this morning anyway because the streets were flooded and her car didn’t work, and I had to try to catch the bus. I had to walk like 30 blocks to catch four buses to get here.

THE COURT: “Where do you live?

THE MOTHER: “I was in Sun City at the time.

THE COURT: “You had to walk 30 blocks to get a bus?

THE MOTHER: “I had to walk 30 blocks in the pouring down rain, yes.

THE COURT: “What time did you leave?

THE MOTHER: “Pardon?

THE COURT: “What time did you leave your home?

THE MOTHER: “I don’t know, after I got you guys on the phone. I don’t know. I’ve been here early every day. These people have not been here. I have been here, stuck here Thursday all day long. I don’t think this is fair at all. I don’t even know why I’m here. I haven’t done anything. My son wants to register for this gang. These people don’t know nothing. They’re just the county people. They don’t know anything about me. You have to prove that I’m guilty of something. I haven’t heard any proof that I’m guilty about anything. There is nothing on me.”

Commenting that mother was giving it “information about the facts of the case” rather than the reason for her delay, the court indicated it was not going to set aside the findings. “The court is going to maintain the findings previously made. The court does so for the following reasons: [¶] I find no good cause to set the matter aside. Initially, we did receive inconsistent information that mother was late because of a bus from Sun City. We’re now receiving different information, and there doesn’t appear to be good cause to set the findings aside. Therefore, the findings will stand.”

Mother’s notice of appeal was filed on February 17, 2005.

DISCUSSION

Mother contends the court abused its discretion when, after she arrived in court more than six hours after the scheduled start time, it denied her request for a continuance and refused to vacate its findings and orders made that morning. Insisting that she had “cogent excuses” for her lateness, she points out that this was her first and only request for a continuance, that she had appeared for each and every court date for the contested hearing, and that the matter had been continued a number of times but never at her request. She also contends a continuance was in her son’s best interests, arguing that “[w]hile disruption to the minor was cited as a reason for not continuing the hearing [citation], that had not stood in the way of prior continuances.”

A continuance shall be granted only upon a showing of good cause and shall not be granted if it is contrary to the minor’s best interests. (§ 352, subd. (a).)^[4] In considering a request for a continuance, the court must “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.” (Ibid.) Indeed, the juvenile dependency statutory scheme requires that dependency petitions be heard and decided rapidly, and continuances are discouraged. (Jeff M. v. Superior Court (1997) 56 Cal.App.4th 1238, 1242.) An order denying a continuance may be reversed only upon a showing of abuse of discretion. (In re Ninfa S. (1998) 62 Cal.App.4th 808, 810-811.)

Further, “[t]he juvenile court has the power to ‘control all proceedings during the hearings with a view to the expeditious and effective ascertainment of the jurisdictional facts and the ascertainment of all information relative to the present condition and future welfare of the person upon whose behalf the petition is brought.’ [Citation.] The dependency system seeks to keep to a minimum the amount of potential detriment to a minor resulting from court delay. [Citation.] ‘[D]elay disserves the interests of the minor, the parents, and the courts, and is clearly inconsistent with the intent of the Legislature.’ [Citation.]” (Renee S. v. Superior Court (1999) 76 Cal.App.4th 187, 193.)

Applying the foregoing principles, we conclude that the court acted well within its discretion in refusing to set aside its findings and orders and in denying a continuance. There is no indication that the court would not have been willing to hear evidence that same day had such a request been made. Mother’s counsel’s request for a continuance “to present evidence” was accompanied by not even a suggestion as to the nature of that evidence, not to mention any explanation as to why she was not in a position to proceed that day. More importantly, George had been “in the system” since July 2003, when he was 13 years old. Now, at age 15, he wanted nothing more than to be “out” of the system. Moreover, he had no interest at all in returning to the custody of his mother who, from the very beginning, had utterly failed to cooperate with the Department. Time was therefore of the essence. George’s need for stability trumped any notion that another continuance would harm no one. In short, his best interests required that the matter proceed without any further delay.

Additionally, subdivision (b) of section 352 provides that “unless the court finds exceptional circumstances requiring one, it shall not grant a continuance that would result in the disposition hearing being completed longer than 60 days after the detention hearing.” (Renee S. v. Superior Court, supra, 76 Cal.App.4th at p. 196.) Here, the detention hearing was held on September 29, 2004, while the jurisdictional/dispositional hearing was ultimately held on January 10, 2005—a total of 104 days later. Accordingly, and notwithstanding the court’s belief that there was not good cause for a continuance, resolution of the issue presented is also “a matter of legislative mandate. The Legislature has directed that, absent a showing of exceptional circumstances justifying a continuance, the adjudicatory phase of dependency proceedings must be concluded within a narrow time frame, ordinarily within no more than 60 days of detention. (§ 352, subd. (b).)” (Ibid.)

Mother also contends, citing In re Malinda S. (1990) 51 Cal.3d 368, 382-385, that she was denied her right to due process in that she was not afforded the opportunity to challenge the social worker’s reports, upon which the court relied in making its findings. And, citing In re Julian L. (1998) 67 Cal.App.4th 204, 208, she asserts, “The denial of a right to fair hearing is itself cause for reversal. Prejudice is presumed.”

We first note that In re Julian L. is distinguishable on its facts. In that case, the appellant mother was not given notice of a hearing under section 366.26. Moreover, her attorney had been assigned to the case just one week earlier and thus had not had sufficient time to consult with her client. (Ibid.) In contrast, not only did mother herein have notice of the hearing, but her attorney had been appointed more than three months earlier. Accordingly, in light of the fact that mother did appear in court on previously scheduled dates and that her attorney was also present on all but perhaps one of those occasions, we must presume that mother was afforded ample opportunity to talk to her attorney about the case. Accordingly, because mother had notice of the hearing and was afforded effective legal representation, we cannot say she was denied her right to a hearing.

As for mother’s contention she was denied her due process right to challenge the contents of the social worker’s reports, it is significant that she has failed to identify on appeal any evidence she would have introduced, or witnesses she would have called, to alter the outcome of the hearing. Our Supreme Court has declared that the state has a “legitimate interest in providing an expedited proceeding to resolve the child’s status without further delay.” (In re Malinda S., supra, 51 Cal.3d at p. 384.) Thus, were we to remand this matter for a contested hearing, “[t]hat goal would be thwarted if the proceeding had to be redone without any showing the new proceeding would have a different outcome.” (In re Jesusa V. (2004) 32 Cal.4th 588, 625.) Indeed, the relevant issues involved in the dependency action had been explored in various reports prior to the hearing, and counsel had an opportunity to discuss those points with mother and to arrange for any necessary witnesses. We therefore conclude that, even assuming error, there is no reasonable probability that the result would have been any different had mother been present at the time the court made its findings. Under these circumstances, mother’s absence from the hearing did not prejudice any constitutional right.

DISPOSITION

The juvenile court’s orders and findings are affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ Ramirez

P.J.

We concur:

/s/ McKinster

J.

/s/ Richli

J.

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^[1] Further statutory references are to the Welfare and Institutions Code.

^[2] Mother appeared in court on November 22, 2004. The matter was continued to December 9, 2004, because her attorney was ill. Mother was again present on December 9, 2004, when the matter was continued to January 6, 2005, apparently because her attorney refused to stipulate to a temporary judge. Mother appeared on January 6, 2005, when the hearing was again continued to January 10, 2005.

^[3] Unfortunately, the Department could not consider George’s sister as a placement resource because she had a “prior Child Welfare history.”

^[4] Section 352 states:

“(a) Upon request of counsel for the parent, guardian, minor, or petitioner, 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 his or 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. Neither a stipulation between counsel nor the convenience of the parties is in and of itself a good cause. Further, neither a pending criminal prosecution nor family law matter shall be considered in and of itself as good cause. Whenever any continuance is granted, the facts proven which require the continuance shall be entered upon the minutes of the court. [¶] 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.

“(b) Notwithstanding any other provision of law, if a minor has been removed from the parents’ or guardians’ custody, no continuance shall be granted that would result in the dispositional hearing, held pursuant to Section 361, being completed longer than 60 days after the hearing at which the minor was ordered removed or detained, unless the court finds that there are exceptional circumstances requiring such a continuance. The facts supporting such a continuance shall be entered upon the minutes of the court. In no event shall the court grant continuances that would cause the hearing pursuant to Section 361 to be completed more than six months after the hearing pursuant to Section 319.

“(c) In any case in which the parent, guardian, or minor is represented by counsel and no objection is made to an order continuing any such hearing beyond the time limit within which the hearing is otherwise required to be held, the absence of such an objection shall be deemed a consent to the continuance. The consent does not affect the requirements of subdivision (a).”