In re Kai F. CA2/2 ( 2021 )

Filed 9/30/21 In re Kai F. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re KAI F., a Person Coming B310934
Under the Juvenile Court Law. (Los Angeles County Super.
Ct. No. 20CCJP01233)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
MICHELLE M.,
Defendant and Appellant.
APPEAL from an order the Superior Court of Los Angeles
County, Lisa A. Brackelmanns, Judge Pro Tempore. Affirmed.
William Hook, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and William D. Thetford, Principal
Deputy County Counsel, for Plaintiff and Respondent.
******
Michelle M. (mother) challenges the juvenile court’s denial
of her attorney’s request to continue the dispositional hearing.
Because this was mother’s second nonappearance in a row
(despite proper notice), the court did not abuse its discretion in
denying the request. We accordingly affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
Michelle M. (mother) and Art F. (father) have one child, Kai
F. (born June 2017).
For the first six months of his life, Kai lived with his
parents in a trailer located on the back portion of the paternal
grandparents’ property. During this period, mother and father
used marijuana on a daily basis in Kai’s presence. Father would
also enter the paternal grandparents’ home, steal and pawn
items, and use the proceeds to purchase prescription pills and
alcohol to ingest along with marijuana. Mother and father also
had heated verbal arguments in Kai’s presence, and those verbal
disputes sometimes became physical; on one occasion, mother
inflicted a cut on father’s neck.
When Kai was approximately six months old, the paternal
grandparents became so concerned for his well-being that they
took him into their home. Mother and father terminated their
romantic relationship around that time, and mother started
living in abandoned buildings.
On February 10, 2020, father got into a verbal fight with
paternal grandfather and left with Kai. Father, mother and Kai
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then started living together again as they moved from motel room
to motel room.
II. Procedural Background
A. Petition
On March 2, 2020, the Los Angeles Department of Children
and Family Services (the Department) filed a petition asking the
juvenile court to exert dependency jurisdiction over Kai. In the
operative first amended petition, the Department alleged that
jurisdiction was warranted because (1) mother and father each
have a “history of substance abuse including marijuana and
alcohol” that renders them “incapable of providing regular care
and supervision” and thus places Kai “at risk of serious physical
harm” (thereby rendering jurisdiction appropriate under Welfare
and Institutions Code section 300, subdivision (b)(1)),1 and (2)
mother and father have a “history of domestic violence including
the parents engaging in heated arguments that include yelling,
screaming and cursing the presence of the child” and thus places
Kai “at risk of physical and emotional harm, damage and danger”
(thereby rendering jurisdiction appropriate under section 300,
subdivision (b)(1)).
At a hearing on March 3, 2020, the juvenile court ordered
Kai detained from parents and placed with the paternal
grandparents. The court also told the parents that “it is very
important that you be [at future proceedings] . . . These are very
important proceedings that we want you to be a part of.”
1 All statutory references are to the Welfare and Institutions
Code unless otherwise indicated.
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B. Statements and conduct prior to the
jurisdictional hearing
Mother admitted to using marijuana. Father initially
admitted to using marijuana, but later disavowed any drug use
and also denied having a criminal record, despite having suffered
a documented 2018 conviction for driving under the influence of
alcohol and drugs.
Mother and father denied any domestic violence. Neither
mother nor father showed up to any of the random drug tests the
juvenile court ordered at the detention hearing.
C. Jurisdictional hearing
The juvenile court conducted the jurisdictional hearing on
September 25, 2020, and both mother and father were present.
The juvenile court sustained all of the allegations in the first
amended petition, and set the dispositional hearing for November
18, 2020.
D. Dispositional hearings
Both mother and father attended the hearing on November
18, 2020. Mother requested a continuance to explore the
propriety of naming the paternal grandparents as Kai’s legal
guardians by parental consent pursuant to section 360,
subdivision (a). Over the Department’s objection, the juvenile
court granted mother’s request, ordered the Department to
investigate the paternal grandparents’ fitness to serve as legal
guardians and continued the dispositional hearing to January 4,
2021. The court expressly ordered both parents to return to court
on January 4, 2021.
The Department conducted its investigation, concluding
that the paternal grandparents were “committed to” Kai and
were “appropriate for [l]egal [g]uardianship.”
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Mother was present for the January 4, 2021 hearing, but
father was not. The juvenile court concluded that service on both
parents had been proper, but continued the hearing until
February 4, 2021, so that father could be re-served.
Neither mother nor father showed up for the February 4,
2021 hearing, despite proper service of the notice of hearing and
mother being present at the prior hearing when the February 4
date was set. The court emphasized the need to obtain both
parents’ waiver of reunification services and both parents’
consent to the creation of the legal guardianship. The court
“continue[d] the hearing” to the “next week,” and asked the
Department to give notice, asked mother’s and father’s attorney
to contact their clients, and asked the parental grandfather to
notify the parents of the upcoming hearing during their next
visitation with Kai. The court indicated that, if the parents did
not appear at the next hearing, “we might have to proceed
another way.”
On February 11, 2021, father appeared but mother did not.
Mother’s attorney proffered no explanation for mother’s absence.
Mother’s attorney nevertheless said that her “last instruction”
from mother was to (1) ask for a further continuance, or,
alternatively, (2) for a dispositional order that (a) placed Kai back
with mother and father or granted them unmonitored visitation,
and (b) had a minimal case plan for mother. The juvenile court
implicitly denied the continuance request; instead, the court
ordered reunification services for mother and father, removed Kai
from their custody and placed him with the paternal
grandparents, and laid out a case plan for mother that required
her to attend a drug and alcohol program, to attend parenting
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classes, to participate in mental health counseling, and to
participate in individual counseling.
E. Appeal
Mother filed this timely appeal.
DISCUSSION
Mother argues that the juvenile court erred in denying her
February 11 request to continue the dispositional hearing to
allow her an additional opportunity to show up, waive her right
to reunification services, and consent to a legal guardianship
with the paternal grandparents. We review the denial of a
continuance for an abuse of discretion. (In re D.Y. (2018) 26
Cal.App.5th 1044, 1056.)
A juvenile court has the discretion to continue a
dependency proceeding upon a showing (1) of “good cause,” and
(2) that a continuance is “not contrary to the interest of the
[child],” which gives “substantial weight” to (a) the child’s “need
for prompt resolution of [the child’s] custody status,” (b) “the need
for provide children with stable environments,” and (c) “the
damage to a [child] of prolonged temporary placements.” (§ 352,
subds. (a)(1) & (a)(2); Cal. Rules of Court, rule 5.550(a).) Where,
as is the case here, a parent seeks to continue the dispositional
hearing of a non-Indian child more than 60 days after the hearing
at which the child was first ordered detained, the requirement of
“good cause” is elevated to a requirement of “exceptional
circumstances.” (§ 352, subd. (b); Cal. Rules of Court, rule
5.690(d).) Because time is of the essence with children,
continuances in juvenile dependency cases are “discouraged” and
“difficult to obtain.” (In re Emily D. (2015) 234 Cal.App.4th 438,
448; Jeff M. v. Superior Court (1997) 56 Cal.App.4th 1238, 1242;
see generally, § 352, subd. (a)(1) [juvenile court must “give
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substantial weight to [the child’s] need for prompt resolution of
his or her custody status”].)
The juvenile court did not abuse its discretion in denying
mother’s continuance request in this case.
The juvenile court did not abuse its discretion in concluding
that there was no “good cause”—and certainly no “exceptional
circumstances”—to continue the dispositional hearing. By the
time of the February 11 hearing, the juvenile court had already
continued the dispositional hearing twice (on January 4 and on
February 4) because one or both parents did not show up despite
proper notice. Having both parents present was critical because
the court was considering ordering a legal guardianship pursuant
to section 360, subdivision (a). That provision empowers a court
to order a legal guardianship at the dispositional hearing (and
hence prior to a period of reunification), but conditions the
exercise of that power upon obtaining the custodial parent(s)’s
personal waiver of their rights to reunification services and
personal consent to the legal guardianship. (§ 360, subd. (a); In
re Summer H. (2006) 139 Cal.App.4th 1315, 1321 [“Section 360
. . . is a parent-driven statute” contingent upon “the parent’s
consent”]; cf. In re L.A. (2009) 180 Cal.App.4th 413, 418-419, 427
[requiring waiver and consent of “the custodial parent”].)
Because both mother and father had custody of Kai at the time
this case was initiated, the juvenile court’s authority to grant a
legal guardianship over Kai hinged on having both parents
present to obtain their waivers and consent. Mother’s absence
from the February 11 hearing was insufficient, on its own, to
justify a continuance. (E.g., Nahas v. Nahhas (1955) 135
Cal.App.2d 440, 442 [“The mere absence of a party standing alone
is insufficient to compel the court to grant a continuance”].)
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What is more, the juvenile court had ample reason to believe that
granting even a short continuance would have been fruitless: By
the time mother was a “no show” at the February 11 hearing, the
juvenile court had already explained to her the importance of
attending every hearing; mother had already not shown up at the
February 4 hearing despite being explicitly told by the juvenile
court to attend; and all of the court’s efforts to secure mother’s
attendance at the February 11 hearing—by sending proper notice
as well as asking mother’s attorney and paternal grandfather to
tell mother about the hearing—had already proven to be
insufficient to secure mother’s attendance. Mother’s sole
response on appeal is to suggest that her absence was
“understandable” because she thought her prior written waiver
and consent obviated any need to attend, but this suggestion flies
in the face of the juvenile court’s repeated personal orders to
mother to show up to court hearings. It also distinguishes this
case from In re John M. (2006) 141 Cal.App.4th 1564, which held
that a juvenile court erred in denying a first-time request for a
continuance to allow an investigation of a noncustodial parent’s
home for placement. (Id. at pp. 1571-1572.)
The juvenile court also did not abuse its discretion in
determining that a further continuance was contrary to Kai’s
interests. To be sure, an order granting legal guardianship to
paternal grandparents would have more promptly resolved Kai’s
custody status, provided him with a stable environment, and
avoided any danger of temporary placement—which are the
factors to be given “significant weight.” But, as described above,
the juvenile court had no reason to believe that granting a third
continuance would have resulted in mother showing up to the
yet-again-postponed hearing. All of the court’s prior efforts had
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failed. Thus, the court’s choice was between (1) ordering
reunification services for mother and father, and thereby moving
the case forward toward the permanency planning stage where a
legal guardianship could be ordered without the parents’ consent
(§ 366.26, subd. (b)(3)), or (2) postponing the dispositional hearing
again, and possibly again and again, thereby delaying any
forward movement of the case. As between these two options, the
former option was the one that would more promptly resolve
Kai’s custody stages, provide him with a stable environment and
avoid any danger of temporary placement; this is especially so
where, as here, Kai is to remain with the paternal grandparents
while the parents are receiving reunification services.
* * *
In light of our rationale, we have no occasion to reach the
Department’s argument that mother had forfeited her right to
object to the denial of her continuance request or mother’s
argument that the erroneous denial was prejudicial because the
entry of a dispositional order forecloses the statutory availability
of section 360, subdivision (a).
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
CHAVEZ
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