Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. JD19817
PREMO, J.
I. INTRODUCTION
G.V. (appellant) appeals from an order of the juvenile court filed April 14, 2010, terminating jurisdiction over appellant’s son I.V. (minor), giving minor’s mother (mother) physical and legal custody of minor, and allowing appellant professionally supervised two-hour visits with minor one time per week. (Welf. & Inst. Code, §§ 302, subd. (d), 362.4.) Appellant argues that the juvenile court abused its discretion and deprived him of due process when it denied his motion for a continuance of the trial at which appellant planned to challenge the proposed visitation order. Appellant also argues that the evidence is insufficient to support the trial court’s requirement that the visits be supervised and that the order was an abuse of discretion because he cannot afford to pay for supervision. We reject the arguments and affirm.
Unless otherwise specified, further section references are to the Welfare and Institutions Code.
II. Facts
On September 4, 2009, the juvenile court in Santa Cruz County sustained a dependency petition alleging that minor, who was then one year old, came within the provisions of section 300, subdivisions (b) and (j) due, among other things, to mother’s failure to protect minor “from ongoing and untreated domestic violence between her and [appellant].” Minor remained in mother’s custody with family maintenance services. Appellant, who had never lived with minor, did not receive reunification services but the court did allow three weekly supervised visits with minor. Under the order of the Santa Cruz County juvenile court, the Santa Cruz County Human Services Department was to supervise one visit per week; appellant could have two additional weekly visits provided that he paid for professional supervision. Appellant appealed from that order and in a nonpublished opinion filed July 30, 2010, this court affirmed.
We have taken judicial notice of the record in the prior case. (In re I.V. (July 30, 2010) H034768 [nonpub. opn.].)
Mother moved to Santa Clara County and the case was transferred there. Transfer orders filed in Santa Clara County on October 1, 2009, contained a case plan for appellant that included the Santa Cruz court’s visitation orders and orders that appellant obtain general counseling services, domestic violence services, including a 52-week batterers’ program, anger management classes, and individual counseling or a “Men Overcoming Abusive Behavior” support group, and a parent education program. The Santa Clara County juvenile court accepted the transfer on October 20, 2009. The court revised the visitation order to two supervised visits per week and added the requirement that appellant complete a 16-week “Parenting Without Violence” class. Other than that, the Santa Cruz orders were to remain in place.
An interim review report dated January 21, 2010, revealed that the Santa Clara County Department of Family and Children’s Services (Department) had scheduled twice-weekly supervised visits for appellant and minor, to begin the first week of November 2009. Appellant cancelled or simply did not appear for the first four visits in November, began visiting on November 20, 2009, and visited consistently through December and January. Visit reports indicate that appellant was “appropriate” during the visits and that minor “seems attached and is responsive to him.” Because appellant was unemployed, the Department gave him a small amount of money to defray mileage costs.
In a report dated February 11, 2010, the social worker described a February 5 meeting with appellant. Appellant had objected to the requirement he pay for professionally supervised visitation because he could not afford it. The social worker asked appellant for information about appellant’s parents and his pastor because appellant had said they might be able to supervise visitation. Appellant refused to provide the information, directing the social worker to the court file. Thereafter, the social worker was unable to find the information in the court file. The social worker asked appellant to have his parents contact her but they never did. Appellant and the social worker exchanged voicemail messages on February 8, 9, and 10 but by the time the social worker wrote her report on February 11, she had not heard back from him. Appellant also declined to provide contact information for his pastor, telling the social worker that he would have to check on the pastor’s availability to supervise weekday visits. Although appellant was given contact information for private visitation monitors, he refused to contact them because, he said, he could not pay the cost.
The social worker discussed with appellant the various programs the court had ordered him to attend. Appellant provided proof of his participation in such programs in connection with a case involving his older child but he had not participated in any such programs since minor was born. Appellant refused to attend the WAVES (Working Against Violence Educational Services) batterers’ program unless the Department paid the cost but the Department was willing to pay only 12 of the 52 weeks required. The social worker told appellant that the San Benito County Family Resource Center had a similar program and gave him what she said was the center’s telephone number. As to the required parenting class, although the social worker assured appellant that there was no fee, he refused to sign the referral form, which was necessary to trigger the process, because it did not explicitly state that the class was free. Appellant resisted the requirement that he obtain psychotherapy, again citing his lack of income. The social worker referred him to the San Benito Family Resource Center.
The social worker’s March 25, 2010 report revealed that appellant had not followed through on any counseling or other programs and that he had not seen minor since his February 5, 2010 visit. With regard to the case plan, the social worker had personally contacted providers with San Benito County and forwarded information about their programs to appellant by means of a certified letter. Appellant left a telephone message for the social worker indicating that the information she had provided was not correct and again complaining that he could not afford to pay anything. He said that he called the number he had been given for the San Benito County Behavioral Health Services Department but the number was wrong, it went to a company that made airbags. He learned that the parenting class had already started so that he was too late for that. The social worker followed up with the San Benito providers, both of whom had contacted appellant. Appellant was on the waiting list for the parenting class. According to a letter from the parent educator in San Benito County, when she told appellant that the class had been filled since December, he “became upset and demanded that I inform him when the class began.” He also “became angry” after she told him that the class had been full before she had received his referral. The person in charge of the batterers’ program had received the referral, telephoned appellant, and left instructions about how to set up an intake appointment. There is no indication that appellant followed up on those instructions.
Visitation was no more successful. Appellant did not appear for visits scheduled on February 8, 12, 18, 22, or 26 and only twice telephoned explaining his nonappearance. Accordingly, he was dropped from the visitation schedule and the social worker telephoned him to say that he would have to meet with the social worker before visits would be reinstated. There is no suggestion in the record that appellant had been required to pay for the visitation the Department arranged or that he missed the visits on account of their cost. The only excuses he gave were his having car problems or having to be in court on other matters. As of March 25, appellant had not arranged for a meeting to reinstate visits and still had not put the social worker in contact with his parents or his pastor.
Since mother had been doing well and minor was thriving in her care, the social worker recommended that the juvenile court dismiss the case with family court orders for full physical and legal custody to mother and with supervised visitation for appellant. Appellant contested the recommendation. In particular, appellant wanted joint custody of minor and “short of that a more liberal visitation order.” He requested a trial, intending to show why he had not complied with his case plan and that supervised visitation was not required. Trial was set for April 2, 2010 at 10:30 a.m.
On April 2, trial did not commence until after lunch. Appellant was present, as were his sister, his mother, and his grandmother. The court recessed the trial at 2:30 p.m. because appellant had a job interview with Chili’s in Gilroy at 3:30 p.m. and he needed to get home to change his clothes first. Accordingly, the only evidence introduced that day was the testimony of the social worker.
The social worker recommended that appellant have supervised visits with minor one time per week for two hours. The social worker felt that minor should have a continuing relationship with appellant. She conceded that her recommendation that visits remain supervised was not because appellant had been inappropriate during the visits he did have with minor. However, all the visits had taken place in a secure and supervised environment. He had never had any unsupervised visits. Of concern to the social worker was the fact that appellant had done nothing to comply with the plan designed to ameliorate the problems that brought him to the court’s attention in the first place. The reason he gave for the failure was his lack of money and the fact that he completed the same types of programs before minor was born. The social worker had discussed with appellant having visitation supervised by unpaid family or friends but he had refused to give her contact information for the people he had suggested and none of those people had contacted her. Thus, she was unable to determine whether they would be appropriate to supervise visits.
The juvenile court set April 12, 2010, for the continued hearing. On that day, appellant’s counsel appeared and explained that there had been a death in appellant’s family on April 6. On April 11, 2010 (a Sunday), appellant contacted counsel and told her that the funeral would be on April 13 or 14 and that he had to go to the funeral home on April 12 at 9:30 a.m. to make the final arrangements. Accordingly, counsel requested a continuance of the hearing. The juvenile court inquired about appellant’s relationship to the decedent and was told that he was a cousin. The court also questioned appellant’s counsel about whether appellant expected the continuance would be granted. Counsel assured the court that she had told appellant that there was a “very strong possibility” that the court would deny the request. The court found that appellant had no legal obligation to make funeral arrangements for a cousin and the hearing had already been continued once on account of appellant’s having made another conflicting appointment. The court found no good cause for a continuance and denied the request. Appellant’s counsel had intended to call appellant, his mother, and his pastor as witnesses. Since none of those persons were present, she had no evidence to present.
The trial court entered an order dated April 14, 2010, dismissing the case and ordering that appellant have supervised visitation with minor one time per week for two hours. The order requires appellant to pay for supervision at a professional visitation center. All arrangements “for visitation and transportation including cancellation of visits, dates[, ] times and location to be arranged through” one L. Herrera and that appellant keep L. Herrera “informed of his current contact information at all times.” Appellant appeals from this order.
III. Discussion
A. The Continuance
Appellant argues that the juvenile court abused its discretion and violated appellant’s right to due process of law when it refused a continuance of the hearing. We review the denial of a motion for continuance under the abuse of discretion standard of review. (In re Elijah V. (2005) 127 Cal.App.4th 576, 585.)
Continuances in dependency cases are governed by section 352, which provides at subdivision (a): “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. Neither a stipulation between counsel nor the convenience of the parties is in and of itself a good cause. Further, neither a pending criminal prosecution nor family law matter shall be considered in and of itself as good cause. Whenever any continuance is granted, the facts proven which require the continuance shall be entered upon the minutes of the court.
“In order to obtain a motion for a continuance of the hearing, written notice shall be filed at least two court 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.”
In this case, appellant had sought the continuance on the day the hearing was set. The cause he alleged was a 9:30 a.m. meeting at a funeral home to make arrangements for his cousin’s funeral. Appellant gave no reason why the meeting could not have been scheduled before or after the time set for the hearing nor was there any explanation as to why the decedent’s immediate family or another family member could not have made the arrangements. Moreover, the continued hearing was necessary due to appellant’s having scheduled a job interview for the afternoon on the first day of the hearing, so that this was his second request for delay. Thus, the evidence showed only that appellant had voluntarily chosen to attend to administrative matters surrounding funeral services for a cousin instead of appearing for a rescheduled hearing to decide whether and how he could visit with his son. The juvenile court did not abuse its discretion in concluding that this choice was not good cause for a continuance.
The juvenile court’s order also properly considered minor’s interests. The court was prepared to dismiss the case altogether. Minor had been thriving in mother’s care and she was to be given full physical and legal custody. Appellant had not been receiving reunification services so that there would be no prejudice to the potential for reunification. Although appellant argues that the juvenile court did not consider minor’s interest in visiting with appellant, dismissal of the case did not preclude the opportunity for visitation. To the contrary, the Department’s recommendation was that appellant continue to have visits with minor. Furthermore, minor objected to the continuance and urged the court to adopt the Department’s recommendations and dismiss the case, allowing appellant the opportunity to modify the visitation orders in subsequent family court proceedings if circumstances warranted. The court’s ruling favored minor by insuring the prompt resolution of the case while allowing appellant to maintain a relationship with his son. There was no abuse of discretion.
We also reject appellant’s contention that the juvenile court’s order denied him his right to due process. The procedural due process requirement focuses upon the fairness of a procedure that would deprive the individual of important rights. Parties whose rights are to be affected are entitled to be given notice at a meaningful time and the opportunity to be heard in a meaningful manner. (Fuentes v. Shevin (1972) 407 U.S. 67, 80.) Due process requirements in the context of child dependency litigation have similarly focused principally on the right to a hearing and the right to notice. (In re Crystal J. (1993) 12 Cal.App.4th 407, 412-413.) There is no question that appellant was given adequate notice and that he had at least two opportunities to be heard, both of which he voluntarily declined. This was not a denial of due process.
“When a parent is absent without good cause at a properly noticed hearing, the court is entitled to proceed in the parent’s absence. (In re Christopher A. (1991) 226 Cal.App.3d 1154, 1162.) A parent’s failure to appear will not normally constitute the good cause necessary to justify a continuance (In re Gerald J. (1991) 1 Cal.App.4th 1180, 1187), because substantial importance is attached to ‘the child’s need for a prompt resolution of the matter’ (Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2005 ed.) § 2.104[5], p. 2-169, citing § 352, subd. (a)). An unjustified failure to appear at a duly noticed hearing reflects a parent’s choice not to attend. (In re Gerald J., supra, at p. 1187.) A court may properly treat this choice as a waiver of the right to be present at that hearing and of the benefits of being present. Imposing this waiver is a sensible and limited response to the parent’s decision to be absent. Further, allowing the court to proceed in the parent’s absence should ensure that the court, the minor and the other parties are not unduly disadvantaged.” (In re Vanessa M. (2006) 138 Cal.App.4th 1121, 1131-1132, fn. omitted.)
In Vanessa M., the juvenile court had refused to allow the parent to put on evidence as a punishment for his prior failures to appear. That, the appellate court held, was a denial of the opportunity to be heard, justifying reversal in that case. (In re Vanessa M., supra, 138 Cal.App.4th at pp. 1133-1134.) Here, in contrast, the juvenile court’s decision was not an arbitrary punishment but was, in effect, a finding that appellant had waived his right to be present at that hearing. The court confirmed that counsel had told defendant “[t]here was a very strong possibility that the court would deny the continuance” so that he had been warned that the matter would likely be concluded in his absence. Nevertheless, appellant neither altered his plans nor insured that witnesses on his behalf (appellant’s mother and his pastor) would appear and testify about their availability to supervise visits. Under the circumstances, appellant was afforded all the process he was due.
B. The Order Requiring Professionally Supervised Visits
1. Sufficiency of the Evidence
Appellant argues that the juvenile court erred in ordering that his visits with minor be professionally supervised because there is insufficient evidence that supervision was required. We reject the argument.
“When the juvenile court terminates its jurisdiction over a dependent child, section 362.4 authorizes it to make custody and visitation orders that will be transferred to an existing family court file and remain in effect until modified or terminated by the superior court.” (In re Roger S. (1992) 4 Cal.App.4th 25, 30.) In so doing, the juvenile court is entitled to consider evidence relevant to that task. (Ibid.) The juvenile court’s focus is not upon the parents’ needs or convenience but upon the best interests of the child. “[T]he juvenile court has a special responsibility to the child as parens patriae and must look at the totality of the child’s circumstances.” (Id. at pp. 30-31.) In reviewing the order for substantial evidence, our role is to decide whether there is any substantial evidence, contradicted or not, which will support the conclusion of the juvenile court, resolving all conflicts and indulging all legitimate inferences in favor of the court’s ruling. (In re Katrina C. (1988) 201 Cal.App.3d 540, 547.)
Here, appellant never had any unsupervised visits with minor. All his visits had been professionally supervised. It is true, as appellant argues, that the visits he did have went well and that he was observed as having appropriate interactions with minor. But the issue whether unsupervised visitation was in minor’s best interests involved more than simply reports of positive, supervised visits. There is evidence throughout the record of this case documenting concerns by the Department with appellant’s cooperation and dependability. Appellant missed a number of visits in February and March and had not cooperated, in spite of repeated requests, in obtaining family supervision. Evidence that professionally supervised visits, when they occurred, were positive was sufficient to support the juvenile court’s finding that it was in minor’s best interest that subsequent visits be supervised as well.
2. Abuse of Discretion
Appellant argues that the juvenile court abused its discretion and denied him his right to substantive due process by requiring supervised visits that he cannot pay for. He claims that the order effectively terminates his relationship with minor. Again, we disagree.
The juvenile court’s “power under section 362.4 require[s] it to make an informed decision concerning the best interests of the child.” (In re John W. (1996) 41 Cal.App.4th 961, 972.) Our review of the juvenile court’s determination is for abuse of discretion, which warrants a very high degree of deference to the decision of the juvenile court. (In re J.N. (2006) 138 Cal.App.4th 450, 459.) We do not disturb a juvenile court’s ruling unless we find the court exceeded the limits of its legal discretion by making an arbitrary, capricious, or patently absurd determination (In re K.D. (2004) 124 Cal.App.4th 1013, 1018).
Appellant’s failure to cooperate with the social worker to provide contact information for family members he identified as willing to supervise his visitation, his refusal to sign referral forms, his failure to appear for visits without notice and without explanation, and his unexplained failure to offer the evidence he claimed would support his objections to the order combine to convince us that the trial court acted within its legal discretion in continuing to require professional supervision. The order is not, as appellant argues, tantamount to a termination of his parental rights. The order will be filed in the pending family court proceedings and appellant is entitled to have it modified if he can show that “there has been a significant change of circumstances since the juvenile court issued the order and the modification is in the best interests of the child.” (In re Marriage of David & Martha M. (2006) 140 Cal.App.4th 96, 101.) On this record, the court’s order for professionally supervised visitation is not arbitrary or capricious.
IV.DISPOSITION
The juvenile court’s order filed April 14, 2010, dismissing the dependency, granting custody to mother, and ordering supervised visitation for appellant is affirmed.
WE CONCUR: Rushing, P.J., Elia, J.