In re H.D. CA4/2

Opinion

Filed 9/16/22 In re H.D. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re H.D., a Person Coming Under the Juvenile Court Law.

RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E077835

Plaintiff and Respondent; (Super.Ct.No. INJ1800331)

v. OPINION

J.H.,

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. Susanne S. Cho, Judge.

Affirmed.

Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and

Appellant.

Teresa K.B. Beecham and Prabhath D. Shettigar, Deputy County Counsel for

Plaintiff and Respondent.

1 This is an appeal taken by the father of H.D. (the child) from an order of the

juvenile court denying his request for a continuance of the child’s Welfare and

Institutions Code section 366.26 permanent plan selection hearing.1 We affirm.

BACKGROUND

The history of the dependency proceedings leading up the setting of the section

366.26 hearing can be found in the record filed in father’s prior appeal (which we

incorporated into this one on our own motion) and our opinion issued in that appeal (In re

C.D. (Aug. 8, 2021, E076214) [nonpub. opn.]).

Suffice to say here that, in October 2018, respondent Riverside County

Department of Public Services took the child (then seven years old), her twin brother, and

their two-year-old sibling into protective custody after it discovered a number of issues in

their home. Both parents suffered from mental health problems, they engaged in

extensive ongoing verbal and physical domestic violence in the children’s presence, and

they neglected the children. In addition, father’s condition of Traumatic Encephalopathy

contributed to his mental health difficulties, which were sufficiently severe to require

section 5150 holds.

The Department placed the children in a foster home.

In January 2019, the juvenile court sustained the Department’s section 300

petition, declared the children dependents of the court, continued their placement in foster

care, and ordered family reunification services. During the first six months of services,

1 All statutory references herein are to the Welfare and Institutions Code.

2 father did not interact with the social worker, initially refusing to attend meetings without

counsel, and then cancelling appointments. He attended only one in-person visit, and his

participation in telephone visits had been inconsistent.

During the next six-month period, father canceled or failed to attend 13 out of 16

scheduled visits with the children, he had not enrolled in any court-ordered services, and

made no progress in his case plan. The court terminated reunification efforts as to him at

the November 2019 12-month review hearing. It continued the mother’s services for an

additional six months.

Within a couple of weeks following the hearing, the behaviors of the child and her

twin took a turn for the worse. The child began acting out and refused to visit the mother,

who had resumed her relationship with father. Her twin’s behavior became so aggressive

that the caregiver requested his removal. After he attacked and injured several staff

members at his school, the Department concluded there were no options available that

would help him, so he was returned to the mother with family maintenance services.

Father filed a section 388 petition seeking reunification or family maintenance

services, which was heard along with the 18-month review held in November 2020, over

two years after the children had been taken from the physical custody of their parents.

The court returned the child’s youngest sibling to the mother with provision of family

maintenance services and continued her twin’s placement in mother’s home. By then, the

child, who had long been struggling with a variety of issues including self-injurious

behavior and aggression toward her mother, was doing well in school and had made

3 significant progress in therapy. She was afraid to be returned home and wanted to remain

with the caregiver. The court set her case for selection of a permanent plan pursuant to

section 366.26.

The court denied father’s section 388 petition and he appealed to this court. We

found the juvenile court had not abused its discretion in denying the petition because,

although father’s efforts to engage in services after termination of family reunification

services were commendable, the court’s concern that his circumstances had not changed

was well founded.

When the contested permanent plan selection hearing for the child commenced in

April 2021, the child’s counsel reported his client wanted to be adopted by her caretaker

but also wanted to continue her relationship with her siblings. The court found a plan of

adoption would cause substantial interference with the child’s sibling relationships and

identified legal guardianship as the permanent plan. It continued the matter to September

so the Department could determine if the caretaker was amenable to a plan of legal

guardianship.

On July 30, 2021, the child ran away from her placement but was found twenty

minutes later. The caregiver reported the incident to the Department and asked for a

mental evaluation of the child because she seemed to be regressing. The child had

disclosed that she had lied when she said sibling visits had been going well, and she had

“marked” herself six or seven times on each of her legs. An assessment of her was

completed five days later, and she was referred to more intensive therapy.

4 The child’s behaviors were reported to the mother at a team meeting held on

August 16, 2021, and she filed a request for an order requiring a psychological evaluation

of the child. A hearing officer, who was not the judge who had been handling the child’s

case since its inception, granted the request, appointed a doctor to conduct the

examination, and directed the report to be submitted to the clerk’s office on or before

September 22, that is, a week before the hearing.

By September 2021, the child had made progress employing coping strategies,

although she would regress some when things did not go her way or when she was

confronted with a plan to see her family. She continued to attend weekly therapy

sessions, and was doing well both in school and at home. Her caregiver was willing to

forego adoption and be the child’s legal guardian. The child was not happy with the plan

because she wanted the caregiver to adopt her.

The parents did not appear at the September 29, 2021 permanent plan selection

hearing and the court’s efforts to reach them by telephone were not successful. Mother’s

counsel, joined by counsel for the father and counsel for the child’s twin, asked to have

the matter continued because their clients were not present and because the psychological

evaluation ordered in response to the mother’s request had not yet taken place.

The court denied the requests for a continuance. It ordered legal guardianship

with the caretaker as the child’s permanent plan and terminated her dependency. Father

appealed.

5 DISCUSSION

Father claims the juvenile court abused its discretion when it denied a continuance

and proceeded with the permanent plan selection hearing. We disagree.

Section 352 governs requests for continuances in juvenile dependency cases. In

relevant part, it authorizes the court to grant a request made by counsel for a party to

continue the hearing beyond the time limit within which the hearing is otherwise required

to be held, so long as the continuance will not be contrary to the interest of the minor.

(§ 352, subd. (a)(1).) The statute directs the court to give substantial weight to three

considerations: the child’s need for prompt resolution of her custody status, the need to

provide the child with a stable environment, and the damage to her of a prolonged

temporary placement. (Ibid.)

The court’s decision on a request for a continuance is reviewed for abuse of

discretion. (In re Karla C. (2003) 113 Cal.App.4th 166, 180.) That is, we will not

overturn a juvenile court’s denial of a continuance unless the decision is arbitrary,

capricious, or patently absurd, and results in a manifest miscarriage of justice. (Ibid.)

Here, the court’s decision not to continue the hearing was properly based upon the

child’s need for permanence, the extreme importance to her of her relationship with the

caregiver, the suitability of that placement, and its conclusion that continuing the case

would cause her stress.

In response to the arguments that it should not select a permanent plan until the

court-ordered psychological report was completed, the court found mother’s request for

6 the evaluation was untimely in view of the child’s three-year history of self-harming

behaviors. The child had suffered fear and stress on account of her parents’ domestic

violence at an early age. The court pointed out the child had been going through

emotional upheaval since the dependency began and that she had been referred for mental

health services “from the very get-go.” Early on in the proceedings she would vomit

whenever she had visits with father, she had been seeing a therapist weekly for nearly

three years, and had also been seen by a psychiatrist and medical doctor during that

period. The court concluded that nothing the evaluation might say would impact the fact

that the trust between the child and the parents had been broken.

The court also rejected arguments that a continuance for the evaluation was

necessary because the child had been unduly influenced or coached by the caregiver,

noting it had heard nothing to that effect from a professional or the child’s counsel.

In his brief on appeal, father argues the court could not have properly considered

permanency options without the benefit of the evaluation and it was an abuse of

discretion not to continue the hearing until it was completed. We are not persuaded.

Father’s claim overlooks that the purpose of evaluation was not to provide

guidance about the child’s placement or opine whether she should be returned to her

parents. Rather, the hearing officer limited the evaluation request to the issue of what the

appropriate treatment for the child should be. And, he made the order without the benefit

of knowing the history of the case and upon the representation of mother’s counsel that

the child’s self-injurious behavior was a new development that needed to be addressed

7 right away and could not wait to be heard at the next hearing scheduled for the next

month.

It is clear the hearing officer was not aware that the Department and the judge who

had been presiding over the case since its inception had long been cognizant of, and had

been addressing, the child’s self-harming and other behavioral issues, including the

specific incident forming the basis of the mother request. The court had ensured the child

was receiving therapy regularly. And, that it recognized changing the permanent plan

from adoption to legal guardianship contrary to her wishes was likely to cause her to

suffer distress is evidenced by it asking the Department to contact her therapist to

determine whether any additional, more intensive trauma therapy was needed.

In short, contrary to father’s claim, the court did not have a “blind spot” in its

information with respect to the child’s mental health issues when it denied the requests

for a continuance. Indeed, it bottomed its decision to go forward with the hearing on its

awareness of those issues and the stress the child was suffering because of the uncertainty

caused by delays in establishing a permanent plan for her.

DISPOSTION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAMIREZ P. J. We concur: SLOUGH J. RAPHAEL J.