Opinion
A158759
01-23-2020
E.C., Petitioner, v. THE SUPERIOR COURT OF ALAMEDA COUNTY, Respondent; ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. JD031505-01)
Petitioner E.C. (Mother), mother of infant Y.C., challenges the juvenile court's order denying her counsel's request for a continuance of the combined jurisdiction and disposition hearing and setting a permanency planning hearing pursuant to Welfare and Institutions Code, section 366.26. Mother, who was incarcerated at the time of the jurisdiction and disposition hearing, contends the juvenile court violated her right to due process as well as her statutory right under Penal Code section 2625 to be physically present at the hearing in which her child was removed from her custody. We conclude there was no due process violation, and any claimed error under Penal Code section 2625 was harmless because it is not reasonably probable that a result more favorable to Mother would have been reached had she been present at the jurisdiction and disposition hearing. We deny the petition.
All statutory references are to the Welfare and Institutions Code unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
A. Prior Dependency Case
Mother has three children besides Y.C. who were previously removed from her custody. In 2014, real party in interest Alameda County Social Services Agency (the Agency) filed petitions under section 300, subdivisions (b) and (j), on behalf of Mother's two eldest children, A.R. and T.R., and the juvenile court found true the petitions' allegations that Mother failed to protect T.R. due to substance abuse while pregnant and was unable to properly care for and provide for both A.R. and T.R. Mother was offered family reunification services and was referred to a substance abuse treatment program and family drug court. She failed, however, to comply with her case plan, and family reunification services were terminated as to both children.
In August 2015, Mother gave birth to D.C., at which time both tested positive for amphetamines and opiates. The Agency filed a petition under section 300, subdivisions (b), (g), and (j), alleging Mother's substance abuse affected her ability to provide care for D.C. and placed him at risk of physical harm. The juvenile court found the petition allegations true and bypassed family reunification services for D.C. because of Mother's prior failure to reunify with A.R. and T.R. Parental rights as to D.C. were terminated in 2016.
B. Section 300 Petition
Y.C. was born in August 2019. Mother tested positive for amphetamines and opioids at the time of Y.C.'s birth, and Y.C. was in the neonatal intensive care unit with respiratory distress and withdrawal symptoms. Y.C. was also born with a congenital heart defect that would require multiple appointments with a cardiologist, constant monitoring, and major heart surgery to correct. Mother could not articulate a plan to provide shelter, provisions, medical care, or supervision for Y.C. She did not know the name of Y.C.'s alleged father or have any of his contact information.
On August 22, the Agency filed a juvenile dependency petition alleging that Y.C. came under section 300, subdivisions (b)(1), (g), and (j), and that Mother had ongoing substance abuse issues which impaired her ability to provide adequate care to Y.C. and placed Y.C. at substantial risk of harm.
According to the Agency's detention report, Mother participated by telephone in an emergency removal child and family team meeting held on August 21, during which she admitted testing positive for opiates and amphetamines. She reported that she had been clean for about two years until her mother passed away, whereupon she began using substances again. The team explained to Mother that Y.C. had a congenital heart defect requiring weekly or biweekly appointments. The Agency reported that Mother visited Y.C. once after her birth and "has not had many opportunities to spend quality time with [Y.C.] due to [Mother] sleeping during her hospital stay beyond what was expected by hospital staff." The Agency further reported that per Y.C.'s maternal grandfather, the address Mother gave as her residence belonged to Y.C.'s maternal aunt, and Mother "stays there off and on."
Mother was not present at the August 23 hearing in which the juvenile court detained Y.C. Y.C.'s maternal grandfather, who attended the hearing, told child welfare supervisor Stephanie Perron that he believed Mother did not come because she knew there was an outstanding warrant for her arrest. He also reported that Mother had gone " 'back to her same old ways' once she was released from the hospital."
Following the detention hearing, on August 26, child welfare worker Sofia Muscatello contacted Mother by telephone. Mother told Muscatello that she needed to take a nap and would call back in 45 minutes, but she failed to do so. The next day, Muscatello attempted to contact Mother by calling the same telephone number, and a woman answered and told Muscatello she had the wrong number. Muscatello then mailed a letter to Mother at two possible addresses providing contact information, asking Mother to remain in contact, and advising her of upcoming meeting and hearing dates.
C. Mother's Incarceration
On or about August 29, 2019, Mother was arrested on charges of burglary, grand theft, possession of amphetamines, and falsely identifying herself to a police officer. She was incarcerated at Santa Rita Jail. Muscatello learned of the arrest from Y.C.'s maternal grandfather, who again reported that after Mother left the hospital, she "went 'right back into the same' way of living." On September 3, Muscatello sent a letter to Mother at Santa Rita Jail, providing contact information for herself and Perron.
D. Jurisdiction and Disposition Hearing
On September 11, the Agency filed its jurisdiction and disposition report. The report stated that Mother was " 'in and out' " of maternal aunt's home and therefore did not have adequate living arrangements for Y.C.'s care. The Agency further reported that Mother had longstanding substance abuse issues interfering with her ability to safely parent her children, as well as an extensive criminal history, which included one felony and two misdemeanor convictions, and the recent arrest. The Agency recommended that Y.C. be declared a dependent of the court and that family reunification services be bypassed under section 361.5, subdivision (b)(10), (11), and (13).
A combined jurisdiction and disposition hearing was held on September 12, 2019. Mother was not present, and her attorney, Traci Whittemore, told the juvenile court it was due to her mistake that a removal order was not obtained for Mother to appear. The court set the matter for October 22, 2019, for Mother to contest the Agency's recommended bypass of reunification services. On September 17, the court signed a removal order directing that Mother be delivered from Santa Rita Jail to the court for the October 22 hearing.
On October 3, Whittemore signed a substitution of attorney form indicating that Kelly Burns would represent Mother going forward.
In an addendum report filed on October 15, the Agency reported the following events that preceded Whittemore's substitution out of the case. Mother had called Muscatello three times from Santa Rita Jail on September 16, but Muscatello was unable to connect due to a technical issue on her end. After the issue was resolved, Muscatello wrote to Mother at Santa Rita Jail encouraging her to try to contact her again. On September 18, Muscatello received a call from Rebecca Orozco, a perinatal coordinator at Santa Rita Jail, who indicated that Mother was not sure how Y.C. was doing or who her child welfare worker was. Muscatello requested that Orozco encourage Mother to contact her. On September 19, Muscatello sent Mother at letter at Santa Rita Jail updating her on Y.C.'s medical condition, placement, and general wellbeing, and informing Mother of the Agency's recommendation to bypass reunification services. On September 24, Muscatello called Orozco and provided her with the date of the next hearing, contact information for Mother's attorney, and an overview of the Agency's recommendations.
The October 15 addendum report further reported that on September 25, Orozco informed Muscatello that Mother had been transferred to another county. Orozco believed Mother was transferred to Sonoma County, but her name was not yet appearing on the inmate locator. On September 30 and October 8, Muscatello attempted to locate Mother using online inmate locators for the counties of Alameda, Sonoma, and San Mateo, as well as the California Department of Corrections and Rehabilitation Inmate Locator, but she was unable to ascertain Mother's whereabouts.
At the October 22 contested jurisdiction and disposition hearing, Burns requested a continuance on the grounds that no one was able to locate Mother. After an off-the-record discussion, it was determined that Mother had been arrested the evening prior to the October 22 hearing and was once again being held at Santa Rita Jail as of 4:30 a.m. that morning. Burns repeated her request for a continuance, arguing "[w]e don't know if she was going to come today if she's not been arrested. I haven't had contact with her."
The juvenile court expressed doubt as to whether there was good cause for a continuance. The court "assum[ed] Ms. Whittemore explained to [Mother] what the request of the Agency was, or at least assuming what it would be. That it would be bypass for the mother. She's not reached out to her attorneys at all." Burns responded that it was unclear whether Whittemore ever had the opportunity to inform Mother of the Agency's recommendations. The court also found that a continuance was not warranted because "[w]e're right at 60 days, almost at 60 days" after Y.C. was detained. The court observed, based on information in the addendum report, that Whittemore knew her client was in custody and there was no representation that Whittemore tried but could not contact Mother. In the absence of such information, the court found there was no good cause to continue the hearing.
The juvenile court then turned to the Agency's recommendations, to which Burns "object[ed] without evidence." The court found the petition's allegations to be true by a preponderance of the evidence, and further found by clear and convincing evidence that leaving Y.C. in Mother's custody would cause a substantial danger to Y.C.'s physical health, safety, protection, or physical or emotional wellbeing, and that there were no reasonable alternative means to protect the child.
The juvenile court also found by clear and convincing evidence that reunification services should be denied based on the bypass provisions set forth in section 361.5, subdivision (b)(10), (11), and (13). Pursuant to section 361.5, subdivision (b)(10) and (11), the court found that the parental rights of Mother had been previously terminated as to a sibling or half sibling of Y.C., that Mother failed to reunify with the sibling or half sibling after their removal from custody, and that Mother had not made reasonable efforts to treat the problem that led to the removals. As for section 361.5, subdivision (b)(13), the court found that Mother had a history of abusive and chronic use of drugs or alcohol and had at least twice failed or refused to comply with an available and accessible program of treatment required by previous case plans.
The court set a section 366.26 permanency planning hearing for February 18, 2020. Mother petitioned for an extraordinary writ pursuant to California Rules of Court, rule 8.452, and requested an immediate stay of the section 366.26 hearing. We issued an order to show cause in order to decide the matter on the merits. (Cal. Rules of Court, rule 8.452(d).)
DISCUSSION
Because "time is of the essence" in dependency proceedings (In re O.S. (2002) 102 Cal.App.4th 1402, 1409), "[c]ontinuances should be difficult to obtain" (Jeff M. v. Superior Court (1997) 56 Cal.App.4th 1238, 1242) and "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)(2)). A ruling on a request for a continuance is reviewed for abuse of discretion. (In re Elijah V. (2005) 127 Cal.App.4th 576, 585.) That discretion, however, must be exercised in conformity with the applicable law (People v. Mickey (1991) 54 Cal.3d 612, 660), and here, Mother claims the juvenile court's refusal to continue the matter violated Penal Code section 2625, which gives her the right as an incarcerated parent to be physically present at dependency hearings regarding her child. She further contends the juvenile court's decision to conduct the disposition hearing in her absence violated her due process rights.
Penal Code section 2625, subdivision (b), provides that in dependency proceedings brought under sections 300 and 366.26 regarding the parental rights of a prisoner, the superior court must give notice of all proceedings to the prisoner. Penal Code section 2625, subdivision (d), provides: "Upon receipt by the court of a statement from the prisoner or [his or her] attorney indicating the prisoner's desire to be present during the court's proceedings, the court shall issue an order for the temporary removal of the prisoner from the institution, and for the prisoner's production before the court. [No proceeding may be held under] Section 366.26 of the Welfare and Institutions Code and a petition to adjudge the child of a prisoner a dependent child of the court pursuant to subdivision (a), (b), (c), (d), (e), (f), (i), or (j) of Section 300 of the Welfare and Institutions Code may not be adjudicated without the physical presence of the prisoner or the prisoner's attorney, unless the court has before it a knowing waiver of the right of physical presence signed by the prisoner or an affidavit signed by the warden, superintendent, or other person in charge of the institution, or [his or her] designated representative stating that the prisoner has, by express statement or action, indicated an intent not to appear at the proceeding."
We find no merit in Mother's due process argument, which was rejected in D. E. v. Superior Court (2003) 111 Cal.App.4th 502 (D. E.). The court there held that "[a]s long as the parent has meaningful access to the court through appointed counsel, there is no due process violation." (Id. at p. 513.) Here, Mother had meaningful access to the juvenile court through appointed legal representatives who could have called witnesses, cross-examined the child welfare workers, or otherwise presented Mother's case. Although Mother contends her substitute attorney Burns was unable to adequately represent her due to the confusion surrounding Mother's whereabouts between September 25 to October 22, this does not demonstrate a due process violation by the juvenile court. Based on the record, it appears Mother did not reach out to her former or substitute attorneys during her incarceration (stemming from her arrest on August 29) or after her release from jail prior to the October 22 hearing (before she was arrested again on October 21). Although Burns may have been hamstrung in her ability to represent her client, it was not because of any due process violation by the juvenile court.
Mother's former and substitute counsel were both attorneys with East Bay Defenders. Thus, even if Mother reached out to her former attorney, she would have likely been directed to Burns.
As for Penal Code section 2625, we need not address the claimed statutory violation on its merits. As we shall explain, even if we assumed the juvenile court erred in conducting the disposition hearing while Mother was incarcerated, the error was harmless. (In re Jesusa V. (2004) 32 Cal.4th 588, 625 (Jesusa V.) [applying Watson harmless error standard to claimed violation of parent's statutory right to be present at disposition hearing]; D. E., supra, 111 Cal.App.4th at pp. 513-514 [same].)
Reunification services must be provided to the parents of children who are removed from their custody unless a statutory exception applies. (§ 361.5, subd. (a); In re Baby Boy H. (1998) 63 Cal.App.4th 470, 478.) The statutory exceptions are set forth in section 361.5, subdivision (b), which provides that "[r]eunification services need not be provided" if the court finds "by clear and convincing evidence" that any of the 17 enumerated bypass provisions apply. (In re Allison J. (2010) 190 Cal.App.4th 1106, 1111-1112.) Relevant here are the bypass provisions set forth in section 361.5, subdivision (b)(10), (11), and (13). Subdivision (b)(10) allows the court to bypass reunification where the parent previously failed to reunify with a sibling or half sibling and the parent has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling. Subdivision (b)(11) applies where parental rights over any sibling or half sibling have been permanently severed, and the parent has not subsequently made a reasonable effort to treat the problems that led to the removal of the sibling or half sibling. Subdivision (b)(13) applies where the parent has a history of extensive, abusive, and chronic use of drugs or alcohol and has resisted prior court-ordered treatment for this problem during a three-year period immediately prior to the filing of the petition that brought that child to the court's attention, or has failed or refused to comply with an available and accessible program of drug or alcohol treatment described in the case plan on at least two prior occasions.
Once the juvenile court determines that a bypass provision applies, the court "shall not" order reunification unless the court finds, by clear and convincing evidence, that reunification is in the child's best interest. (§ 361.5, subd. (c)(2).) In making this determination, the court considers the parent's current efforts and fitness, the parent's history, the gravity of the problem that led to the dependency, the strength of the bonds between the child and the parent and between the child and the caretaker, and the child's need for stability and continuity. (In re G.L. (2014) 222 Cal.App.4th 1153, 1164 (G.L.).)
We conclude it is not reasonably probable that a result more favorable to Mother would have been reached had she been present at the October 22 hearing. As to the applicability of the bypass provisions set forth above, the juvenile court relied on the Agency's reports, which outlined Mother's continuing struggle with chronic substance abuse and its impact on her fitness as a parent. Mother tested positive for amphetamines and opioids at the time of Y.C.'s birth, and 11 days later was arrested for, among other things, possession of amphetamines. Mother's substance abuse was the same problem that led to D.C.'s removal from Mother's custody in 2015, and T.R.'s removal in 2014. Mother also previously failed to complete substance abuse treatment programs, and failed to reunify with A.R. and T.R. Mother fails to show any error by the juvenile court in relying upon this evidence, nor does she demonstrate the insufficiency of the evidence to support application of the bypass provisions of section 361.5, subdivision (b)(10), (11), and (13).
We also conclude it is not reasonably probable that Mother could have shown by clear and convincing evidence that reunification was in Y.C.'s best interests. (§ 361.5, subd. (c).) Y.C.'s medical needs require her to have regular visits with a cardiologist, constant monitoring, and surgery. Accordingly, she needs a stable home environment that Mother, with her extensive criminal history and unstable housing situation, simply could not provide at the time of the October 22 hearing. Indeed, Mother was arrested and incarcerated twice during the instant dependency proceeding. Her unfitness as a parent has been the subject of multiple dependency proceedings stemming from her extensive history of arrests and substance abuse. Moreover, Mother has had few contacts with Y.C., indeed, she visited her only once after her birth. Based on the record, which reflects Mother's historical and current lack of fitness, the gravity of the problem that led to this dependency proceeding, the lack of a strong bond between Mother and child, and Y.C.'s serious medical needs, we see no reasonable probability that Mother could have obtained a more favorable judgement had she been present at the October 22 hearing. (Jesusa V., supra, 32 Cal.4th at pp. 625-626; see also G.L., supra, 222 Cal.App.4th at p. 1166.)
Mother's counsel offers only vague and speculative contentions that a continuance would have allowed her to engage in a factual analysis of Mother's life circumstances to identify any exceptions to the bypass statute and address the Agency's concerns about Mother's substance use. Mother's counsel makes no offer of proof of the actual testimony Mother would have presented. (Jesusa V., supra, 32 Cal.4th at pp. 625-626 [finding harmless error for alleged violation of Penal Code section 2625 where father's attorney made no offer of proof of father's proposed testimony].) Nor did counsel submit any additional evidence in support of the writ petition setting forth the facts of Mother's proposed testimony. (See McCarthy v. Superior Court (1987) 191 Cal.App.3d 1023, 1030, fn. 3 [reviewing court may consider declaration filed on original petition for mandamus relief].)
This was in spite of the fact that Burns was in contact with Mother after the October 22 hearing, as indicated in Burns' declaration filed in connection with the notice of intent to file the writ petition.
For all of these reasons, we conclude that even if the juvenile court erred in failing to continue the October 22 hearing to allow Mother to be present, any error was harmless. (Jesusa V., supra, 32 Cal.4th at p. 625; D. E., supra, 111 Cal.App.4th at p. 514.)
DISPOSITION
The order to show cause is discharged, and the petition for an extraordinary writ is denied. The request for a stay of the section 366.36 hearing scheduled for February 18, 2020, is also denied. Our decision is final as to this court immediately. (Cal. Rules of Court, rule 8.490(b)(2)(A).)
/s/_________
Fujisaki, J. WE CONCUR: /s/_________
Siggins, P. J. /s/_________
Petrou, J.