In re J.R. CA3 ( 2014 )

Filed 12/24/14 In re J.R. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Lassen)
----
In re J. R. et al., Persons Coming Under the Juvenile C076659
Court Law.
LASSEN COUNTY DEPARTMENT OF HEALTH (Super. Ct. Nos. J4848 &
AND SOCIAL SERVICES, J5706)
Plaintiff and Respondent,
v.
J. R.,
Defendant and Appellant.
J.R., father of the minors, appeals from orders terminating his parental rights.
(Welf. & Inst. Code, §§ 366.26, 395 [further undesignated statutory references are to the
Welfare and Institutions Code].) Father argues notice of the termination hearing was
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defective and the juvenile court erred in failing to grant his request for a continuance of
the hearing. We will affirm the juvenile court orders terminating father’s parental rights.
BACKGROUND
The minors, J.R., age nine, and C.R., age seven, were detained in November 2013
based on allegations of neglect, substance abuse, domestic violence and sexual abuse of
the half-siblings and an unrelated child who lived in the home. At disposition, the
juvenile court bypassed services based on the parents’ ongoing substance abuse, failure to
reunify with the half-siblings in a prior case and termination of parental rights as to the
half-siblings. The juvenile court set a section 366.26 hearing to select a permanent plan
for the minors.
The social worker’s report for the section 366.26 hearing, filed and served on
April 25, 2014, recommended termination of parental rights and a permanent plan of
adoption. The report stated that the assessment of the California Department of Social
Services (CDSS) was not complete and that CDSS wanted a continuance.
On May 1, 2014, mother filed a petition for modification (§ 388) seeking an order
for reunification services.
At the section 366.26 hearing on May 5, 2014, mother was not present. Both
mother’s counsel and CDSS requested a continuance which the juvenile court granted.
Pending the continued hearing, the social worker filed an addendum to the prior
report. The addendum stated mother had not visited the minors since the last hearing.
Father had been released from custody in Lassen County and transported to Mineral
County, Nevada, for criminal matters pending there. The completed CDSS assessment
was attached to the addendum and agreed with the social worker’s earlier
recommendation of termination of parental rights with a permanent plan of adoption for
the minors. The addendum and CDSS assessment were served by mail on the parties on
May 28, 2014. Father was in custody in Nevada at the time.
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The combined hearings on the petition for modification and the section 366.26
issues commenced June 2, 2014. All counsel had copies of the two reports. Mother was
not present and father remained in custody in Nevada. After argument, the juvenile court
denied mother’s petition for modification. Father’s counsel requested a continuance
based on father’s ongoing incarceration. Counsel had no idea when father would be
released and was not asking for a contested hearing, father just wanted to be present at
the hearing. The juvenile court denied the request for continuance. Father’s counsel
entered a general objection to the recommendation to terminate parental rights. The
juvenile court found the minors were likely to be adopted, terminated parental rights and
selected a permanent plan of adoption for the minors.
DISCUSSION
I
Father contends notice was defective because the section 366.26 assessment
required by section 361.5 was untimely and did not contain revised proposed
recommendations.
When services are bypassed and the juvenile court orders “that a hearing shall be
held pursuant to Section 366.26 . . . it shall direct the . . . county adoption agency, or the
State Department of Social Services when it is acting as an adoption agency, to prepare
an assessment” of the child’s relationships and likelihood of adoption to assist the
juvenile court in selecting a permanent plan for the child. (§§ 361.5, subd. (g); 366.26,
subd. (a), (b).) “At least 10 calendar days before the hearing, the petitioner must file the
assessment, provide copies to each parent or guardian and all counsel of record . . . .”
(Cal. Rules of Court, rule 5.725(c).)
In this case, CDSS was acting as the adoption agency in the case. Thus, while the
social worker’s report was filed and served more than 10 days prior to the section 366.26
hearing, the CDSS assessment and recommendation was not. However, father’s counsel
did not raise the issue in the trial court and did not ask for a continuance on the basis of
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the late report. Any deficiencies in serving the assessment and providing statutory notice
to father have been forfeited for failure to raise them in the juvenile court. (In re
Joseph E. (1981) 124 Cal.App.3d 653, 657; In re Aaron B. (1996) 46 Cal.App.4th 843,
846; In re Dakota S. (2000) 85 Cal.App.4th 494, 501-502.)
II
Father contends the juvenile court abused its discretion in denying his request for a
continuance.
The juvenile court has discretion to continue the section 366.26 hearing.
(In re Michael R. (1992) 5 Cal.App.4th 687, 694.) However, the exercise of the juvenile
court’s discretion is guided and limited by section 352 which provides: “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.” (§ 352, subd. (a).)
Here, father asked for a continuance of undetermined length so that he could be
present. He had no evidence to present and did not seek a contested hearing to attack the
CDSS assessment. Counsel had no information as to when father might be released from
Nevada custody. The juvenile court considered both the minors’ need for a stable
permanent home and father’s desire to be present for the hearing at some unknown future
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date. Father failed to demonstrate good cause for a continuance and no abuse of
discretion appears.
DISPOSITION
The juvenile court orders terminating father’s parental rights are affirmed.
MAURO , J.
We concur:
HULL , Acting P. J.
ROBIE , J.
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