Opinion
B299866
03-23-2020
In re N.T. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. V.S., Defendant and Appellant.
Roni Keller, under appointment by the Court of Appeal, for Appellant V.S. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel and Peter Ferrera, Principal Deputy County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a). (Los Angeles County Super. Ct. Nos. 17CCJP02682A-C) APPEAL from a judgment of the Superior Court of Los Angeles County, Daniel Zeke Zeidler, Judge. Affirmed. Roni Keller, under appointment by the Court of Appeal, for Appellant V.S. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel and Peter Ferrera, Principal Deputy County Counsel for Plaintiff and Respondent.
Mother appeals from the termination of parental rights as to three of her children (ages two, three and four). She argues the juvenile court erred in denying her request to continue the Welfare and Institutions Code section 366.26 hearing because there was no interpreter available to translate for her. We find no abuse of discretion and affirm.
All further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2017, the Department of Children and Family Services (Department) filed a petition alleging mother and father had a history of domestic violence, and mother failed to protect the children from father's violent behavior. The children were detained and placed with maternal grandparents.
In May 2018, mother and father pled no contest to the petition. The court declared the children dependents, removed them from parental custody, and ordered reunification services. The children continued to live with maternal grandparents, and appeared "happy and comfortable" in their care.
In November 2018, mother informed a social worker that she intended to remain with father despite continuing domestic violence, including multiple incidents in which he choked her. However, three months later, in February 2019, mother obtained a temporary restraining order against father. She stated that father had headbutted her in the forehead and threatened to kill her. She moved into a domestic violence shelter.
In April 2019, the court terminated reunification services, finding that mother had only been in partial compliance with court-ordered services. Mother withdrew her request for a restraining order, and soon after resumed living with father. The hearing on termination of parental rights was set for August 2019.
Over the next few months, mother inconsistently visited the children. On July 16, 2019, the court granted the Department's petition under section 388 to reduce mother's visits from twice a week to two monitored visits a month. Mother did not appear at the hearing. During the visits mother did attend, she had "minimal engagement with the children" and often occupied them with a tablet or smartphone.
Mother did not appear at the section 366.26 hearing, and her counsel asked for a continuance. Counsel represented that mother, who had used a Samoan interpreter at past hearings, had "indicat[ed]" that her usual Samoan interpreter could not be present for the hearing. The court had ordered that interpreter to attend the hearing, however, mother's counsel said the interpreter "has not checked in and has not contacted the court."
The court inquired, "One, how does your client know the Samoan language interpreter isn't available today? [¶] Two, how does your client know that the court doesn't have any other Samoan language interpreters?" Mother's counsel responded that mother's "understanding" was that "this is the only Samoan interpreter available . . . ." The court noted that mother "was ordered to be here for today's date and informed of the possible outcomes if she wasn't present." Counsel acknowledged that she told mother she "still needed to come to court" even though her usual interpreter was not available. The court declined to continue the hearing.
At oral argument, mother's counsel suggested that in fact there is only one Samoan court interpreter for Los Angeles County, but the record is silent on the point.
The court asked mother's counsel, "So did you tell her that she still needed to come to court?" Counsel replied, "Yes, I did, Your Honor."
The court terminated parental rights, reasoning that the parents' visits had been "sporadic" at times, and "to the extent that the parents have maintained regular and consistent visitation and contact, the court cannot find that it has created a parental role and relationship that outweighs the benefits of permanence in adoption." The court found the children were adoptable and ordered the Department to proceed with adoptive placement. Mother timely appealed.
DISCUSSION
Mother contends the juvenile court erred in declining to continue the section 366.26 hearing. She argues that it is an abuse of discretion to deny a request for a continuance when a brief delay of the hearing would result in "the presentation of significant evidence." She further contends her right to due process was violated because she could not meaningfully participate in the hearing without an interpreter present. We find no abuse of discretion or violation of due process.
"Upon request of counsel for the parent . . . , the court may continue any hearing . . . provided that a continuance shall not 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." (§ 352, subd. (a)(1), emphasis added.) "Continuances shall be granted only upon a showing of good cause . . . ." (§ 352, subd. (a)(2).) "Continuances in juvenile dependency proceedings are disfavored . . . . [Citations.]" (In re David H. (2008) 165 Cal.App.4th 1626, 1635.) "A reviewing court will reverse an order denying a continuance only upon a showing of an abuse of discretion." (In re Gerald J. (1991) 1 Cal.App.4th 1180, 1187.)
In arguing that the juvenile court abused its discretion in denying her request for a continuance, mother makes an assumption that is not supported by the record. She argues the record shows that no Samoan translator was available to assist at the section 366.26 hearing. She points out that prior "hearings had been continued because she required the assistance of the certified Samoan translator and one was not available."
While the record shows that the juvenile court had continued two prior hearings because no Samoan interpreter was available on those dates, the record is silent as to whether another interpreter was available on the date of the section 366.26 hearing. Assuming that mother's usual interpreter was not available for the section 366.26 hearing (as represented by mother's counsel), had mother appeared at the section 366.26 hearing the court undoubtedly would have made an inquiry into whether another interpreter was available to assist.
The record before us shows only, in relevant part, that mother did not appear at the section 366.26 hearing because she believed, for some reason counsel was not able to articulate, that her usual interpreter was unavailable. Based on this record, mother did not show good cause for a continuance and the juvenile court did not abuse its discretion in declining to delay the proceedings.
At oral argument, mother's counsel characterized her client's continuance request as only for "a few days." There is nothing in the record that indicates any of the parties or the court suggested a continuance of any particular length. Given that the hearing was attended by counsel for mother, father, the children, and the Department, there is nothing showing that court time for a contested section 366.26 hearing was available any time soon. We do know "that time is not an unlimited commodity in today's busy juvenile courts." (Ingrid E. v. Superior Court (1999) 75 Cal.App.4th 751, 760.) --------
Mother has also not shown that she was prejudiced by the court's denial. She does not specify what evidence she would have presented to the court had she been granted a continuance. The court gave her counsel the opportunity to present evidence at the hearing, and mother does not identify on appeal that she could have testified to any facts that would have changed the outcome of the proceeding.
In her opening brief, mother points out that at the section 366.26 hearing her counsel argued the parental-child relationship exception applied. The argument was based on the evidence previously filed with the juvenile court that showed mother at times had successful visits with her children. The trial court expressly rejected that argument, stating that visitation was "sporadic" and that the court "cannot find that it has created a parental role and relationship that outweighs the benefits of permanence in adoption." Counsel did not make an offer of proof to the trial court as to what mother would have testified about visitation that was not already in the record.
Nor does she do so on appeal. To the extent mother is arguing that on the record before us, the juvenile court erred in not finding the parent-child relationship precluded termination of parental rights, we reject that argument. This exception applies when "there is a compelling reason that the termination of parental rights would be detrimental to the child. This exception can only be found when the parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. (§ 366.26, subd. (c)(1)(B)(i).)" (In re Anthony B. (2015) 239 Cal.App.4th 389, 394-395.)
Here, mother does not tell us what evidence she could have presented to support the application of this exception to the termination of parental rights. The record showed her visits with the children were sporadic at times, that her direct interaction with the children during visits was minimal, and that she continued to live with an abusive partner despite the risk that presented to her children. The evidence does not show that mother was close to fulfilling either component of the beneficial parent-child relationship exception. (Cf. In re E.T. (2018) 31 Cal.App.5th 68, 77-78 [finding that the beneficial parent-child relationship exception applied where the mother had maintained regular contact and visitation with her children, and the children had a substantial and positive attachment to her].)
Lastly, mother has not shown that she was denied her right to due process. She cites to In re J.P. (2017) 14 Cal.App.5th 616 for the proposition that denial of an interpreter is "tantamount to denial of due process of law" and mandates reversal. In fact, In re J.P. skirted this issue. In that case, the father needed a Burmese interpreter to participate in court-ordered programs, however, the court did not order the Department to "provide an interpreter or other suitable means for father to access treatment." (Id. at p. 626.) The Court of Appeal acknowledged there were due process considerations but held that it was "too early in these proceedings for us to consider whether it would violate constitutional principles to terminate a father's parental rights based on his inability to participate in court-ordered programs in a language he does not understand." (Id. at p. 626.) The court concluded that "at some point the failure to provide services in [father's native language] may rise to a constitutional level." (Ibid., emphasis added.)
Here, the juvenile court did not fail to provide mother with a required interpreter such that her due process rights were implicated. Throughout the dependency proceedings, the court acted to ensure that mother received the translation services she needed—whenever the court determined a translator was unavailable, the court continued the hearing. However, because mother failed to show up at the section 366.26 hearing, we conclude the court was not required to inquire about translator availability as mother was not in the court to take advantage of any interpreter services. As a result, the record does not now show whether, had mother appeared, the court was in a position to provide her with translation services that day. There was no due process violation.
DISPOSITION
The judgment is affirmed.
RUBIN, P. J. WE CONCUR:
BAKER, J.
MOOR, J.