Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge, Super.Ct.No. RIJ110142
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant.
Joe S. Rank, County Counsel, and Sophia H. Choi, Deputy County Counsel, for Plaintiff and Respondent.
Karen J. Dodd, under appointment by the Court of Appeal, for Minors.
OPINION
RICHLI, Acting P.J.
Defendant and Appellant Courtney A. (Mother) is the mother of five-year-old L.H. and two-year-old S.H. Mother appeals from an order terminating her parental rights as to her children (Welf. & Inst. Code, § 366.26), contending that the juvenile court abused its discretion in denying her request for a continuance to file a section 388 petition and that the denial of the continuance corrupted the findings and orders entered under section 366.26 and failed to comport with the requirement of due process. As explained below, we reject these contentions and affirm the judgment.
All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
I
FACTUAL AND PROCEDURAL BACKGROUND
On April 28, 2005, the Riverside County Department of Public Social Services (DPSS) received a referral alleging that there were domestic violence issues between Mother and John H. (Father) and that S.H. was born drug exposed. Mother tested positive for marijuana at the time of S.H.’s birth and was suspected to be under the influence shortly thereafter. Not wanting any contact with DPSS, Mother hid from DPSS at an address in Moreno Valley.
On May 4, 2005, the social worker attempted to make contact with Mother at the known address but was unsuccessful. Mother subsequently called and left a message with DPSS, stating that she had already given legal guardianship of the children to the maternal grandmother, that Father was after her, and that she was hiding from him.
The social worker attempted to contact Mother at the known address again on May 24, 2005, to no avail. On May 31, Mother contacted the social worker and stated that she was in Lancaster; that she had no address to give to the social worker because she was living from place to place in an attempt to hide from Father; and that there was extensive domestic violence between her and Father, with the last incident on March 31, 2005. In that incident, Father pulled out the stitches from Mother’s Cesarean incision; in another, he threw a “cocktail bomb” inside L.H.’s bedroom, causing L.H.’s bed catch on fire. The social worker asked Mother to come to the DPSS office on June 3 for a further interview and intervention; however, Mother failed to show up.
The maternal grandmother informed the social worker that the children were no longer at her home, as Mother had picked them up a week earlier, and that she did not know their whereabouts. The maternal grandmother also stated that when Mother came to pick the children up, she noticed Mother to have a swollen jaw and suspected that Mother may have been beaten by Father. The maternal grandmother confirmed that Father had thrown a cocktail bomb inside Mother’s home but indicated that Mother had refused to press charges. She further confirmed the extensive abuse of Mother by Father, including Father breaking into Mother’s bedroom and beating her up. The maternal grandmother also reported that Mother had a habit of leaving the children with her for several days at a time, during which time she did not know Mother’s whereabouts. She had asked Mother for legal guardianship of the children, but Mother had refused. Mother had a prior history with DPSS with allegations of general and severe neglect.
In June 2005, the social worker discovered that Mother was homeless, and she and the children were living at a friend’s house. Mother stated that she was no longer living at the Moreno Valley address, as Father had shown up there with a gun. The following day, the social worker interviewed Father, who denied all the domestic violence incidents alleged by Mother and claimed Mother was the one who committed domestic violence.
On June 16, 2005, DPSS filed petitions on behalf of the children pursuant to section 300, subdivisions (b) and (g). The following day, the juvenile court formally detained the children and placed them with their maternal grandmother.
In July 2005, the maternal grandmother again confirmed the severe domestic violence between Mother and Father, explaining that Father had been “abusive physically, emotionally, [and] verbally” to Mother and, indirectly, to the children. On July 8, Mother went to Father’s house, and she ended up in the hospital after he severely beat her up and threatened to kill her with a gun. Father was eventually arrested. By July 7, neither parent had made themselves available to the social worker to address their issues or to schedule a visit with the children. After the latest domestic violence incident, Mother claimed to cut off contact with Father; however, the social worker questioned Mother’s motives, as Father was incarcerated and unavailable to her. The social worker was concerned about Mother’s lack of insight into her relationship with Father and opined Mother was minimizing the severity of the physical abuse she received.
By September 2005, Mother was still homeless and living with friends, but she reported that she had found an apartment and was waiting for it to be ready and that she was moving forward with pressing charges against Father. Nonetheless, the social worker was still concerned about Mother’s relationship with Father, as Mother had continued to express denial regarding Father’s severe abuse. The social worker also expressed concern about Mother’s ability to safely parent her children. On a positive note, Mother had visited her children, and the visits went well. She interacted well with the children and engaged them in play.
On October 5, 2005, during a combined jurisdictional/dispositional hearing, Mother submitted on the social worker’s recommendation. The juvenile court thereafter found the allegations in the petitions true and declared the children dependents of the court. Mother was provided with reunification services and ordered to participate.
After the hearing, Mother was accepted into the drug court program and tested negative for drugs over the next several months. In January 2006, Mother began missing group sessions and court dates and was terminated from the program. However, in February 2006, because of her past progress, she was readmitted. She had also continued to attend her parenting program and demonstrated she was willing to protect her children by cooperating in the criminal proceedings against Father. In addition, Mother had consistently visited her children, and the visits had gone well. She interacted appropriately with the children and spent time with each of them. The children were happy to see their mother.
On the other hand, Mother was still unemployed and did not have any financial means to support herself. She had relied on friends for housing throughout the reporting period. By February 14, 2006, Mother was residing in a shelter but expressed a desire to live with the maternal grandmother. The maternal grandmother indicated she was willing to allow her daughter to live in her home as long as she maintained sobriety and continued to work toward reunification. Mother still needed to complete her substance abuse and parenting programs, complete domestic violence counseling, and attain adequate housing.
At the March 16, 2006, six-month review hearing, the children were maintained in the maternal grandmother’s home, and Mother was provided with an additional six months of reunification services.
Father’s reunification services were terminated, as he faced a possible 40 years in state prison, remained incarcerated, and was unable to participate in services.
Following the six-month review hearing, Mother’s progress with reunification came to a halt, and she reverted back to her old ways. She failed to make contact with DPSS and her children and was again homeless. She continued to be unemployed and did not have any financial means to support herself. In addition, she had relapsed, reported that she was having difficulties maintaining sobriety, and admitted using methamphetamine. She was also terminated from her substance abuse program and anger management counseling. The social worker recommended terminating Mother’s services.
Meanwhile, the children continued to do well in the care of their maternal grandmother; they had been placed with their maternal grandmother since June 14, 2005, and had been provided with a stable, loving, and nurturing home. The social worker therefore recommended that the children be adopted by the maternal grandmother, who had indicated her willingness to adopt the children and provide them with permanency.
At the September 18, 2006, 12-month review hearing, the court found that Mother had failed to ameliorate the problems that led to intervention, terminated her reunification services, and set the matter for a section 366.26 hearing. Mother did not object to the findings and orders entered at this hearing, but her counsel indicated Mother’s intention to file a section 388 petition before the section 366.26 hearing.
In a section 366.26 report, the social worker reported that the children were adoptable and that the maternal grandmother was willing and able to adopt them. The children had been residing with their grandmother for the previous year and a half as of January 2007 and had been provided with a loving, nurturing, secure, and stable home.
Meanwhile, Mother had attempted to make changes. She had begun to visit the children regularly and had interacted positively with them. The children were “always happy to see her.” In addition, Mother had enrolled in domestic violence counseling and a substance abuse treatment program. However, because Mother had failed “to make these efforts on a consistent basis” and had “not demonstrated that she c[ould] provide her children with a stable and safe environment,” the social worker recommended the children be adopted by their maternal grandmother.
On January 16, 2007, the court held the section 366.26 hearing. Mother, inexplicably, was not present in court. Her counsel informed the court that Mother wanted to file a section 388 petition, but counsel had not been in contact with her since the 12-month review hearing. Counsel thereafter requested a continuance to allow Mother to file a section 388 petition. The court denied the request without explanation, found the children to be adoptable, and terminated parental rights. This appeal followed.
II
DISCUSSION
A. Denial of Continuance to File a Section 388 Petition
Mother contends the juvenile court abused its discretion in denying her counsel’s request for a continuance to file a section 388 petition because “the record shows that [her] circumstances had changed to a point which may have affected the interests of the [children], and even the need for a [s]ection 366.26 hearing . . . .” We disagree.
Section 352, subdivision (a) provides that continuances shall be granted only on a showing of “good cause” and that “written notice shall be filed at least two 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.” Moreover, “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.” (Ibid.; accord, Cal. Rules of Court, rule 5.550(a).)
The policy articulated in section 352 has been interpreted as “an express discouragement of continuances. [Citation.] The court’s denial of a request for continuance will not be overturned on appeal absent an abuse of discretion. [Citation.] Discretion is abused when a decision is arbitrary, capricious or patently absurd and results in a manifest miscarriage of justice. [Citation.]” (In re Karla C. (2003) 113 Cal.App.4th 166, 179-180; accord, In re Ninfa S. (1998) 62 Cal.App.4th 808, 810-811; In re Emily L. (1989) 212 Cal.App.3d 734, 743.)
In the present case, Mother and/or her counsel failed to comply with (or give a reasonable explanation of why she did not comply with) the statutory requirement that requests for continuances be in writing and filed at least two court days before the hearing. (See § 352, subd. (a).) Mother obviously had sufficient time to file a section 388 petition in regard to the children: At the 12-month review hearing, which was held some four months prior to the section 366.26 hearing, counsel indicated Mother would file such a petition. Mother therefore had at least four months to file the petition prior to the section 366.26 hearing. In making the request for a continuance, Mother’s trial counsel offered the court no reasonable explanation why the section 388 petition was not filed in a timely way. Moreover, “delay of the [section 366.26] hearing would have interfered with [the children’s] need for prompt resolution of [their] custody status and [their] right to a permanent placement.” (In re Ninfa S., supra, 62 Cal.App.4th at p. 811.) As the juvenile court noted, it was “past time to wait for [Mother]” and instead focused on the children’s best interests.
The juvenile court did not abuse its discretion when it implicitly denied the oral request for a continuance at the section 366.26 hearing. (See In re Karla C., supra, 113 Cal.App.4th at pp. 179-180; In re Ninfa S., supra, 62 Cal.App.4th at pp. 810-811.)
B. The Denial of the Continuance Did Not Violate Due Process
Mother next claims that the court’s failure to grant the continuance to allow Mother to file a section 388 petition “increased the risk of erroneous findings under [s]ection 366.26, failed to comport with the precise requirements of due process, and undermined the constitutionality of the [s]ection 366.26 proceedings.”
Initially, we note “[t]he matter of continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process . . . .” (Ungar v. Sarafite (1964) 376 U.S. 575, 589 [84 S.Ct. 841, 11 L.Ed.2d 921], italics added.) In addition, as a general rule, a party may not assert theories in the appellate court that were not raised at the trial court level. (Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478, 1489.) A constitutional question must be raised at the earliest opportunity, or it will be deemed waived. (In re Marriage of Christie (1994) 28 Cal.App.4th 849, 865.) Here, Mother and/or her counsel did not challenge at trial the court’s denial of her request for a continuance as a violation of her due process rights.
Even were the issue not forfeited, we would reject this claim. Mother was represented by counsel throughout the proceedings. (Lassiter v. Department of Soc. Serv. of Durham Cty. (1981) 452 U.S. 18, 31-34 [101 S.Ct. 2153, 68 L.Ed.2d 640] (Lassiter); In re O.S. (2002) 102 Cal.App.4th 1402, 1407.) She had notice and an opportunity to be heard and file a section 388 petition prior to the section 366.26 hearing, but she simply chose not to avail herself of that opportunity. (See In re Crystal J. (1993) 12 Cal.App.4th 407, 412-413.)
Given the due process protections afforded Mother, the status of the case, Mother’s lack of meaningful progress or change in circumstance, and the court’s prior findings and orders, the risk of an erroneous decision by the court concerning the custody status of the children was minimal. (Lassiter, supra, 452 U.S. at p. 27, citing Mathews v. Eldridge (1976) 424 U.S. 319, 335 [96 S.Ct. 893, 47 L.Ed.2d 18]; see also Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 256 [the “precise and demanding substantive and procedural requirements the petitioning agency must have satisfied before it can propose termination of parental rights are carefully calculated to constrain judicial discretion, diminish the risk of erroneous findings of parental inadequacy and detriment to the child, and otherwise protect the legitimate interests of the parents”].) “‘The dependency scheme, when viewed as a whole, provides the parent due process and fundamental fairness while also accommodating the child’s right to stability and permanency.’” (In re Hunter S. (2006) 142 Cal.App.4th 1497, 1507-1508, quoting In re Marilyn H. (1993) 5 Cal.4th 295, 307.) “Significant safeguards are built into the dependency scheme.” (Hunter S., at p. 1508.) Though once reunification services terminate and the “‘“escape mechanism”’ provided by section 388 is, effectively, the final opportunity available to a parent to demonstrate the possibility circumstances m[a]y have changed enough to warrant further reconsideration of reunification” (ibid.), Mother here cannot show changed circumstances, new evidence, or that a changed order is in the children’s best interests. Under these circumstances, we conclude the court did not violate Mother’s right to due process or undermine the constitutionality of the section 366.26 proceedings when it denied her motion for a continuance to file a section 388 petition.
“Under section 388, a person with an interest in a dependent child may petition the court to change, modify, or set aside a previous court order. The petitioning party has the burden of showing, by a preponderance of the evidence, that there is a change of circumstances or new evidence, and the proposed modification is in the child’s best interest. [Citations.]” (In re Daniel C. (2006) 141 Cal.App.4th 1438, 1445.) Since Mother has the burden of proof (In re Andrew L. (2004) 122 Cal.App.4th 178, 190), “[a]bsent indisputable evidence [in her favor] -- evidence no reasonable trier of fact could have rejected -- we must . . . affirm the juvenile court’s determination.” (In re Sheila B. (1993) 19 Cal.App.4th 187, 200.)
III
DISPOSITION
The judgment is affirmed.
We concur: GAUT, J., KING, J.
The juvenile court here reasonably could find that Mother had not shown either changed circumstances or that the proposed change was in the children’s best interests. She still had not completed her reunification services plan. After relapsing, she had as recently as October 2006 entered a substance abuse treatment program, had begun domestic violence counseling, and had begun visiting the children. That was only about two months prior to the section 366.26 hearing, and as the social worker noted, Mother had “failed to make these efforts on a consistent basis.” There was no evidence that there had been change of circumstances.
Similarly, there was no evidence to show that it would be in the children’s best interest to grant a section 388 petition. “After reunification services have been terminated, the parents’ interest in the care, custody and companionship of the child are no longer of overriding concern. [Citation.] The focus then shifts to the child’s need for permanency and stability, and there is a rebuttable presumption that continued foster care is in the child’s best interests. [Citations.] . . . When, as here, the permanent plan is adoption, that presumption is even more difficult to overcome. [Citation.]” (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 448-449.) Though the children enjoyed the visits with Mother and Mother had begun to visit them regularly, these interactions do not amount to proper parenting or show that she was able to provide the children with a stable and safe environment. Indeed, there was no evidence that Mother had secured a job to financially meet the children’s needs or had obtained stable housing.