Opinion
E053016
12-09-2011
In re K.P. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. R.C., Defendant and Appellant.
Brent Riggs, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, and Jeffrey L. Bryson, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.Nos. J226059 & J232865)
OPINION
APPEAL from the Superior Court of San Bernardino County. Barbara A. Buchholz, Judge. Affirmed.
Brent Riggs, under appointment by the Court of Appeal, for Defendant and Appellant.
Jean-Rene Basle, County Counsel, and Jeffrey L. Bryson, Deputy County Counsel, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant and appellant R.C. (Mother) is the mother of five children. Her two youngest—K.P., born in March 2009, and Da.P., born in May 2010, are the subjects of this appeal. The juvenile court terminated parental rights to the children on February 16, 2011, and placed them for adoption. (Welf. & Inst. Code., § 366.26.) Mother appeals.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
At the time of the February 16, 2011 hearing, Mother was in custody awaiting trial on charges she murdered her second oldest child, Ke.B., who died in July 2008 at the age of five while in Mother's care. Ke.B. had severe cerebral palsy and intermittent asthma. He had always been underweight, had difficulty taking nutrition and fluids, and was hospitalized several times for dehydration and pneumonia. His autopsy report concluded he died of "severe malnutrition due to neglect," with cerebral palsy a contributing factor. His death was ruled a homicide.
Mother's sole claim on this appeal is that the juvenile court abused its discretion in denying her counsel's request—made by her counsel during closing argument at the section 366.26 hearing—to continue the hearing for at least six months, or until the murder charges had finally been resolved. By that time, counsel argued, the children could be "on a path" to reunifying with Mother. Given the circumstances, including the young ages of K.P. and D.P. and their paramount need for stability, we find no abuse of discretion. Accordingly, we affirm the challenged orders.
II. FACTS AND PROCEDURAL HISTORY
A. Background
Mother's history with the San Bernardino County Children and Family Services (CFS) began in February 2008. At that time, Mother had three children, S.B., born in March 2002, Ke.B. born in December 2002, and Ka.B. born in August 2007. The boys have the same father, S.B., Sr. Mother's two younger children, K.P. and Da.P. were born in March 2009 and May 2010. D.P. is K.P.'s father and the alleged father of Da.P.
In February 2008, at the age of five, Ke.B. suffered from "total body involved cerebral palsy," with extreme contractures of all four extremities. He was slow to eat and respond to feedings, and had the developmental abilities of a five-month-old child. Throughout his life, he was nonambulatory and nonspeaking.
Around February 12, the staff at Ke.B's school noticed he had recently lost weight and appeared to be lethargic and dehydrated. The staff contacted CFS after they were unable to reach Mother. Ke.B. was taken to a local hospital and was later admitted to Children's Hospital of Orange County (CHOC). On February 22, Ke.B. was discharged from CHOC to Mother's care, with "special instructions" that he be seen weekly by his pediatrician and that a home health nurse visit him twice weekly to monitor his weight. Medical attention was to be sought immediately if he did not eat, was not gaining weight, or if other symptoms worsened. He was also to be seen at a gastrointestinal and spasticity clinic. There were no signatures on the discharge instructions showing who, if anyone, received them.
In February 2008, S.B., Ke.B., and Ka.B. were declared dependents and placed in Mother's care pursuant to a family maintenance plan. CFS believed the boys would be safe in Mother's care because it intended to closely monitor Ke.B's medical care and ensure that Mother was "following through on all treatments." Ke.B. did not receive adequate medical care after February 2008, however. He died July 3, 2008, in Mother's care and while the family maintenance plan was still in place. B. The Circumstances of Ke.B.'s Death
On July 3, 2008, Mother attended a parenting class and returned to her apartment around noon to 1:00 p.m. While she was away from the apartment, Mother left all three boys in the care of her sister (Aunt), who also lived in the apartment with Aunt's six-year-old daughter. Aunt left the apartment around noon to buy groceries and returned within an hour. According to Aunt, Mother returned while Aunt was putting the groceries away.
At 1:16 p.m., Mother called 911 and reported Ke.B. was not breathing. Minutes later, a sheriff's deputy and paramedics arrived while Mother and others were attending to Ke.B. on the kitchen floor. Ke.B. was in full cardiac arrest, was rushed to a local hospital, and was pronounced dead at 1:54 p.m.
Mother later reported that when she returned home she found Ke.B. lying in his bed, in her bedroom, smelling of feces. She picked him up to clean him, and he appeared to breathe his last breath. Aunt reported that D.P. had been in the bedroom with Ke.B. for around an hour before Mother found Ke.B. D.P. told investigators he had been smoking marijuana in the bedroom where Ke.B. had been sleeping.
When the deputy who responded to Mother's 911 call approached the apartment, he smelled a strong odor of marijuana smoke coming through the front door. When he later entered Mother's bedroom where Ke.B. was found, he smelled an even stronger odor of marijuana smoke.
An autopsy report, issued in December 2008, ruled the death of Ke.B. a homicide. The cause of death was "severe malnutrition due to neglect," with cerebral palsy a contributing factor. Ke.B. also had a history of intermittent asthma. Ke.B. weighed 20.24 pounds when discharged from CHOC in February 2008. He weighed 15.2 pounds at the time of his death. C. The Events Following Ke.B.'s Death on July 3, 2008
S.B. and Ka.B were taken into protective custody on July 3. Subsequent (§ 342) and supplemental (§ 387) petitions were filed alleging Mother had negligently caused the death of Ke.B. by leaving him in the care of "irresponsible adults," and S.B. and Ka.B. were at risk of abuse or neglect. In January 2009, the court sustained amended petitions, finding among other things that Ke.B.'s death would not have ordinarily occurred but for Mother's failure to adequately maintain medical care for him.
Mother received reunification services for S.B. and Ka.B. after July 2008, and her services were continued at the boys' January 2009 dispositional hearing. The boys appealed, claiming insufficient evidence supported the court's finding that their best interests would be served by granting Mother additional services. (In re K.B. (Dec. 14, 2009, E047557) [nonpub. opn.].) We upheld the dispositional order in December 2009, finding substantial evidence supported the court's best interest finding. (Ibid.)
On April 22, 2011, we took judicial notice of the record filed in case No. E047557.
Meanwhile, K.P. was born in March 2009. D.P. is her father. K.P. was removed from Mother's care shortly after her birth and was placed in the same foster home as S.B. and Ka.B. At that time, S.B. was age seven and Ka.B. was 19 months old. S.B. was described as "excited and happy" to have K.P. living with him and his brother Ka.B.
K.P. was declared a dependent in May 2009, and Mother was granted reunification services for K.P. K.P. appealed the dispositional order, claiming, as her brothers had, that insufficient evidence supported the court's finding that her best interest would be served by granting Mother services. (In re K.P. (Feb. 3, 2010, E048772) [nonpub. opn.].) In February 2010, we upheld the May 2009 order granting Mother services for K.P. (Ibid.)
On April 22, 2011, we also took judicial notice of the records and briefs filed in case No. E048772.
In August 2009, CFS recommended terminating Mother's services for S.B. and Ka.B. and placing the boys with their father, S.B., Sr. The court terminated Mother's services for the boys in September 2009, and placed them with their father pursuant to a family maintenance plan. In March 2010, the court discharged the boys as dependents and dismissed their dependency cases. S.B., Sr. had completed his family maintenance plan and was granted physical custody. Joint legal custody was granted to Mother and S.B., Sr., and Mother was granted supervised visitation.
After Mother's services for S.B. and Ka.B. were terminated in September 2009, Mother inconsistently participated in her case plan for K.P., and in visiting K.P. In November 2009, the social worker did not believe Mother and D.P. were able to appropriately care for K.P., and Mother had yet to complete her case plan for K.P. D.P.'s services for K.P. were terminated in December 2009, but Mother's were continued.
By April 2010, K.P. was not meeting her developmental milestones. She suffered from a stiff neck, "floppy arms and decreased truncal tone." In April 2010, CFS recommended terminating Mother's services for K.P. Mother was living with D.P. and was receiving welfare and food stamps.
Da.P. was born in May 2010. Six days later, Mother was arrested for the murder of Ke.B. and jailed in lieu of $1 million bail. Shortly thereafter, Da.P. was taken into protective custody and placed in foster care with K.P. Following a May 26, 2010 preliminary hearing, Mother was held to answer on the murder charge.
On August 13, 2010, while Mother was still in local custody, the court terminated her services for K.P. On the same date, the court declared Da.P. a dependent and denied Mother services for Da.P. (§ 361.5, subds. (b)(4), (6), (10), (e)(1). D.P. was also denied services for Da.P. A section 366.26 hearing was set for K.P. and Da.P. D. The Section 366.26 Hearing for K.P. and Da.P.
Mother did not challenge the termination of her services for K.P. or the denial of services for Da.P., by extraordinary writ. (Cal. Rules of Court, rule 8.452.)
The section 366.26 hearing for K.P. and Da.P. was held on February 16, 2011. The children were in the same placement, and their foster parents were willing to adopt them. K.P. did not have cerebral palsy. She was nearly two years old, and "happy [and] friendly." She had delayed motor skills and was receiving speech services. Da.P. was nearly one year old and developmentally on target. The court took judicial notice of its prior findings, orders, and judgments, and received into evidence CFS reports dated December 10, 2010 and February 16, 2011. CFS was recommending termination of parental rights and adoption as the permanent plan for the children.
Mother testified. She was still in custody and had been for nine months. She was visiting with K.P. at the time of her arrest. She was due in criminal court on March 2 to set a trial date on her murder charge. She had not been able to see K.P. or Da.P. following her arrest and incarceration. Still, she believed there was a bond between herself and K.P. Prior to her arrest, she had been visiting K.P. for two hours every other weekend. She did not want her parental rights terminated, and disagreed her children should be placed for adoption. She wanted "the chance" to bond with her children, and believed she would be getting out of custody in the near future.
In closing argument, county counsel argued that the uncontroverted evidence showed the children were adoptable. Counsel for the children agreed, and noted Mother had not shown that any exception to the statutory adoption preference applied. In addition, no section 388 petition had been filed.
Mother's counsel argued against terminating parental rights and placing the children for adoption. He said Mother had been doing "very well" with her services following the death of Ke.B., and was "arguably" on the verge of having K.P. returned to her care when she was arrested in May 2010. He asked that the court "keep the case open for at least, . . . six months to allow Mother's criminal matter to have some finality . . . . [¶] [And] to see whether or not, when [Mother] gets out of custody, if she does, the children could again be on the path to reunifying" with her.
At the conclusion of the hearing, the court, addressing Mother, noted the cases were "at the statutory time frames" and the court now had to focus its attention on providing the children with a permanent and stable home. The court thus terminated parental rights, found the children were likely to be adopted, and that no statutory exception applied. Mother appeals.
On May 27, 2011, while Mother's appeals were pending, Mother requested that we take judicial notice of certain records and reporter's transcripts in her murder case, San Bernardino County Superior Court case No. FVI1000879. We denied the request on June 6. None of the records were presented to the juvenile court, and none are relevant to whether the court abused its discretion in denying Mother's request to continue the section 366.26 hearing.
We note, however, that according to Mother's counsel, Mother was released from custody on May 5, 2011, nearly three months after the section 366.26 hearing, with credit for 359 days served. And, according to a local newspaper article attached to Mother's May 27 request for judicial notice, Mother pled guilty to involuntary manslaughter in the death of Ke.B., and was placed on five years' formal probation.
III. DISCUSSION
Mother claims the juvenile court abused its discretion in denying her request to continue the section 366.26 hearing for K.P. and Da.P. for at least six months, or until after her murder charge had finally been resolved. We find no abuse of discretion.
A juvenile dependency hearing may be continued "only upon a showing of good cause" and only if the continuance is not "contrary to the interest of the minor." (§ 352, subd. (a).) In considering whether the continuance would be contrary to the interest of the minor, the court is to give "substantial weight" to three factors: the "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.; In re Giovanni F. (2010) 184 Cal.App.4th 594, 604.)
We review the juvenile court's denial of a continuance request for an abuse of discretion. (In re Giovanni F., supra, 184 Cal.App.4th at pp. 604-605.) Here, the court did not by any means abuse its discretion in denying the continuance request. First, the request was not made until during closing argument at the hearing. The lateness of the request, standing alone, justified its denial. (Id. at p. 605, citing In re Z.N. (2009) 181 Cal.App.4th 282, 294.)
Second, under section 352, "a pending criminal prosecution" shall not be "considered in and of itself as good cause" to continue a dependency hearing. (§ 352, subd. (a).) Thus a continuance cannot be granted if the sole showing of good cause is that the party requesting the continuance (here, Mother) is facing criminal prosecution. Yet this is the sole reason Mother's counsel gave in requesting "at least" a six-month continuance of the section 366.26 hearing, during his closing argument at the hearing. He asked the court to "keep the case open for, at least, . . . six months" to allow Mother's pending criminal prosecution for the murder of Ke.B. to reach a final disposition. In terminating parental rights and placing the children for adoption, the court implicitly denied the continuance, and properly recognized that Mother's pending criminal prosecution was an insufficient ground for continuing the hearing.
Third, continuances are disfavored in dependency cases, particularly when they would require the hearing to be conducted after its statutory time limit. (In re David H. (2008) 165 Cal.App.4th 1626, 1635.) At the conclusion of the hearing, the court indicated the statutory time frame for holding permanency hearings for the children had already elapsed. Indeed it had. At the time of the February 16, 2011 hearing, more than 120 days had elapsed since August 13, 2009, when the court terminated services for K.P and denied services for Da.P at the permanency planning hearing for the children. (§§ 361.5, subd. (f), 366.22, subd. (a).) Thus any continuance of the hearing would have meant holding it well beyond the 120-day statutory time limit.
Fourth, and as the court also pointed out, the purpose of the hearing was to select permanent plans for the children, and once Mother's services were terminated, "the focus of the case shifted away from reunification to providing a permanent, stable placement for the children." (In re Marilyn H. (1993) 5 Cal.4th 295, 304, 309.) Mother's interest in reunifying with the children, or the extent to which she had made any progress in her case plan for K.P. prior to her May 2010 arrest and incarceration, were not matters for the court to consider at the time of the hearing. As the children's counsel pointed out, no section 388 petition was before the court.
Mother relies on In re Michael R. (1992) 5 Cal.App.4th 687 (Michael R.)for the proposition that "the Legislature enacted section 352 to allow a hearing's postponement to permit the parent 'to acquire the facts necessary to be able to make an adequate showing to obtain a section 388 hearing . . . .'" More specifically, Mother argues her request to continue the hearing should have been granted to allow her time to get out of local custody and show she could reunify with the children. Mother reads too much into Michael R., which is distinguishable on its facts.
In Michael R., the section 366.26 hearing was scheduled to take place three months before the mother could complete her residential drug treatment program. (Michael R., supra, 5 Cal.App.4th at p. 692.) Before the hearing, the court denied the mother's section 352 request to continue the hearing, believing it had no authority to do so given the "limited purposes" of the section 366.26 hearing. (Michael R., supra, at pp. 691-692.) And unlike here, where the children's counsel opposed continuing the hearing, the minor's counsel in Michael R. did not oppose the continuance. (Id. at p. 692.)
Division One of this court reversed, concluding the juvenile court prejudicially erred in failing to exercise its discretion to continue the hearing to allow the mother time to seek reinstatement of her reunification services. (Michael R., supra, 5 Cal.App.4th at p. 695, citing §§ 366.3, 385, 388.) The court emphasized that section 352 allows any hearing, including a section 366.26 hearing, to be continued, and reasoned that continuing a section 366.26 hearing may well serve the best interest of the minor when the continuance will allow the parent to "acquire the facts necessary to be able to make an adequate showing to obtain a section 388 hearing and ultimately, depending on the facts, to prevail in such a proceeding." (Michael R., supra, at p. 694.)
Michael R. is distinguishable in several respects. First, the mother in Michael R. asked the court to continue the section 366.26 hearing before the hearing; here, Mother's counsel waited until closing argument to request an open-ended continuance of the hearing for "at least" six months. As noted, the lateness of Mother's continuance request was itself a sufficient reason to deny it. (In re Giovanni F., supra, 184 Cal.App.4th at p. 605.)
Additionally, the juvenile court in Michael R. mistakenly believed it had no discretion to continue the hearing, given its "limited purposes." Here, by contrast, the juvenile court understood that it generally had discretion to continue the hearing under section 352, but it also understood its discretion was circumscribed by the fact the statutory time limit for holding the hearing had expired or was about to expire. (§§ 361.5, subd. (f), 366.22, subd. (a).) In Michael R., remand was necessary to allow the juvenile court to exercise its discretion to continue the hearing. Here, remand is unwarranted because the court exercised its discretion in denying the continuance.
Most significantly, Mother's continuance request was open-ended. Her counsel asked the court to continue the hearing for "at least" six months "[t]o see whether or not" Mother would be released from custody, and whether at that indefinite point in time she could be "on the path" to reunification. The mother's continuance request in Michael R. was more definite. She expected to complete her residential treatment program in three months, and at that time expected to be able to show that reinstating her services would serve the best interests of her child. Here, by contrast, at the time of the hearing no one, including Mother or Mother's counsel, knew when or whether Mother would be released from custody. For this reason, and the additional reasons discussed, the court did not abuse its discretion in denying Mother's continuance request.
Lastly, Mother's reliance on In re Brittany S. (1993) 17 Cal.App.4th 1399 is also misplaced. There, Division Three of this court held that insufficient evidence supported the juvenile court's finding that reasonable services had been offered to an incarcerated mother because the mother's case plan failed to provide for visitation. (Id. at pp. 1406-1407.) By not providing for visitation, the case plan "virtually assured the erosion (and termination) of any meaningful relationship" between the mother and her child. (Id. at p. 1407.)
Here, by contrast, when Mother was arrested and incarcerated shortly after the birth of Da.P. in May 2010, she had enjoyed over one year of services for K.P., since K.P. was born in March 2009. Though she had completed her case plan for K.P., in CFS's view she had not sufficiently benefited from her services. She was living with D.P., who was present when Ke.B died, and D.P. had not completed "any services" for K.P. Mother had not been "forthcoming and honest" with CFS about her "current life situation" and the birth of Da.P. Thus, Mother had more than a year following the birth of K.P. to show she could reunify with K.P. and could also effectively parent Da.P. She did not do so. The court presumably took this into account in refusing to continue the section 366.26 hearing for K.P. and Da.P.
IV. DISPOSITION
The section 366.26 orders terminating parental rights and placing K.P. and Da.P. for adoption are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
King
J.
We concur:
Ramirez
P.J.
McKinster
J.