California Court of Appeal Jul 30, 2013 No. D063372Unpublished
Filed 7/30/13 In re Mary B. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re MARY N. B., a Person Coming Under the Juvenile Court Law. D063372 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. Nos. NJ013869) Plaintiff and Respondent,
v.
ROBERT W.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Michael J. Imhoff, Commissioner. Affirmed.
Neale B. Gold, under appointment by the Court of Appeal, for Defendant and
Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Paula J. Roach, Deputy County Counsel, for Plaintiff and Respondent.
Suzanne F. Evans, under appointment by the Court of Appeal, for Minor.
Robert W. appeals an order issued at a contested six-month review hearing that
resulted in his daughter, Mary, remaining in out-of-home care. He appeals, contending
the juvenile court improperly (1) denied his motion for a directed verdict, (2) continued
the hearing, and (3) allowed the San Diego County Health and Human Services Agency
(Agency) to reopen its case-in-chief. He also asserts the evidence did not support the
juvenile court's finding that returning Mary to his custody posed a risk of detriment.
the following: "At any hearing in which the probation department bears the burden of
proof, after the presentation of evidence on behalf of the probation department and the
minor has been closed, the court, on motion of the minor, parent, or guardian, or on its
own motion, shall order whatever action the law requires of it if the court, upon weighing
all of the evidence then before it, finds that the burden of proof has not been met." In his
reply brief, Robert concedes that section 350 is the applicable statute.
In a nutshell, Robert contends the juvenile court had no choice but to grant his
motion for a "directed verdict" under section 350 because at the time he made the motion,
the Agency recommended Mary's return to his custody. This is incorrect. Although the
Agency recommended Mary's return, it is the duty of the juvenile court to weigh the
evidence and consider the credibility of witnesses in ruling on the motion. (In re
Roberto C., supra, 209 Cal.App.4th at pp. 1252–1253.) Thus, even assuming the trial
court erred in denying the motion, we would remand the matter to allow the juvenile
court to rule on the motion after weighing the evidence and considering the credibility of
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witnesses. (Ibid.) Dependency matters, however, are fluid in nature and circumstances
must be assessed based on the facts that actually exist when the motion is renewed, rather
than on the facts that existed at the time of the challenged order.
Moreover, a section 350 motion cannot be granted until the Agency and the minor
have presented their evidence. (§ 350, subd. (c).) Here, minor's counsel indicated at the
hearing that she had not yet had the opportunity to speak to Mary and requested a
continuance to do so. Although Robert is correct that minor's counsel did not ask for a
continuance to present evidence, minor's counsel had a statutory duty to interview Mary,
assess her well-being, determine her wishes and advise the court of her wishes. (§ 317,
subd. (e)(2).) Notably, minor's counsel may present evidence, "make recommendations
to the court concerning the child's welfare, and participate further in the proceedings to
the degree necessary to adequately represent the child." (§ 317, subd. (e)(1).) Here,
minor's counsel sought the continuance to comply with her statutory obligation and make
a recommendation to the court at closing argument. When ruling in dependency
proceedings, the welfare of the minor is the paramount concern of the court. (In re
Jason L. (1990) 222 Cal.App.3d 1206, 1214.) Under these unique circumstances, we
cannot find the trial court erred in denying Robert's motion for "directed verdict" under
section 350.
B. Continuance
Robert asserts the juvenile court erred when it granted the continuance requested
by Mary's counsel because no good cause existed. We disagree.
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Although continuances are discouraged in dependency cases (In re Giovanni F.
(2010) 184 Cal.App.4th 594, 604), the juvenile court has discretion to grant a
continuance upon a showing of good cause if it is not contrary to the best interest of the
child. (§ 352, subd. (a).) We review the court's ruling on a continuance request for an
abuse of discretion. (In re Giovanni F., supra, at p. 605.)
At the start of the six-month hearing in early October, Mother's counsel requested
a continuance because Mother was late. In hearing from other counsel regarding the
request, Mary's counsel noted, "[M]y office has had an incredibly difficult time making
contact with the caregiver and with my client. They have, over the past two months,
attempted at least a dozen times to meet with Mary and get an update on Mary and have
been unable to do so because of the current caregiver." Mary's counsel suggested the
court proceed with trial, but that it set argument for another date to allow counsel to
check on Mary. The court denied Mother's continuance request, and deferred ruling on
the request of Mary's counsel. At the end of the hearing, the juvenile court continued the
hearing for 11 days to allow Mary's counsel to contact Mary before closing argument.
While it is troubling that Mary's counsel was not able to meet with Mary despite
repeated attempts, it appears the fault lies with the caregiver and not Mary's counsel.
Again, minor's counsel is required to interview the child and may present evidence or
make recommendations to the court. (§ 317, subd. (e)(1), (2).) Here, the juvenile court
did not abuse its discretion in granting the brief 11-day continuance to allow Mary's
counsel the time to discharge her statutory duties and make a recommendation to the
court at closing argument.
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C. Reopening Case-in-Chief
Robert contends the juvenile court erred in granting the Agency's request to reopen
its case at the continued hearing because the Agency was not diligent in its investigation
and the request unnecessarily protracted the trial.
"A request to reopen for further evidence is addressed to the discretion of the trial
court whose determination is binding on appeal in the absence of palpable abuse."
(Guardianship of Phillip B. (1983) 139 Cal.App.3d 407, 428.) Generally, the better
practice is to consider all information bearing on the best interests of a child. (Ibid.)
However, a court may consider the extent to which the trial may be protracted if the
request is granted. (Ibid.)
Here, after the juvenile court continued the hearing from October 12 to
October 23, the Agency appeared for argument with an addendum report changing its
recommendation to continued out-of-home care based on "serious violations of court
orders." Based on this change, the Agency sought to reopen its case. While the parents
opposed the request, Mary's counsel believed that the new information justified
reopening the case. After reading the October 23 addendum report, the trial court found
good cause to grant the motion.
The October 23 addendum report notes that on October 16, the social worker
learned from the caretaker that Robert's aggressive behavior had been escalating over the
past couple of weeks. The caretaker informed the social worker "of his aggressive
behavior now because she is concerned for [Mary]. She stated that she doesn't know if
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[Robert] is able to control himself while [Mary] is in his care and is scared that [Mary]
could get hurt if [Robert] becomes enraged." The caretaker stated, "[I]t has gotten to the
point where she is nervous about doing visitation exchanges" with Robert and that she
drops her daughter off beforehand in case he " 'loses it.' "
On October 18, the social worker learned from Mother that Mary was with her
during Robert's overnight visits and that Mary had spent the night with Robert only once.
Mother also informed the social worker that Robert "still gets very angry and aggressive
toward her," and that she did not tell the social worker about her concerns earlier because
she was worried that Robert would " 'ruin her socially or worse.' "
This information does not support Robert's claim that the Agency changed its
recommendation based on a failure to diligently investigate the case. Rather, after the
social worker prepared the October 12 addendum report, she interviewed the caretaker
and Mother, with both individuals relaying information they had previously withheld
based on continuing concerns regarding Robert's behavior. Based on this new
information, the social worker recommended continued out-of-home care. The social
worker timely presented this information in her October 23 addendum report and the
relatively brief delay did not unduly protract the proceedings. Moreover, the overriding
issue was ensuring Mary's physical and emotional well-being. (§ 300.2.) On this record,
we cannot find that the juvenile court's decision to reopen the case constituted a palpable
abuse of discretion. (Guadalupe A. v. Superior Court (1991) 234 Cal.App.3d 100, 106
["When ruling in dependency proceedings, the welfare of the minor is the paramount
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concern of the court. [Citation.] . . . Consequently, a trial court should not restrict or
prevent testimony on formalistic grounds. On the contrary, the court should avail itself of
all evidence which might bear on the child's best interest. [Citation.]"].)
II. Detriment Finding
Robert asserts the evidence did not support the juvenile court's finding that
returning Mary to his custody posed a risk of detriment.
At the six-month review hearing, the court is required to return the child to the
parent's physical custody unless the Agency proves, by a preponderance of the evidence,
that return would create a substantial risk of detriment to the child's physical or emotional
well-being. (§ 366.21, subd. (e).) We review the evidence most favorably to the
prevailing party and indulge in all legitimate and reasonable inferences to uphold the
court's ruling. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) "The failure of the
parent or legal guardian to participate regularly and make substantive progress in court-
ordered treatment programs shall be prima facie evidence that return would be
detrimental." (§ 366.21, subd. (e).)
In reviewing whether the record contains substantial evidence that returning Mary
to Robert's custody would have been detrimental to her, we must keep in mind that the
purpose of the reunification plan is "to overcome the problem that led to removal in the
first place." (Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, 1748.) While it is
clear that Robert is making progress in alleviating the domestic violence and anger issues
that led to the dependency petition, the evidence viewed most favorably to the Agency
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supports the finding that returning Mary to Robert's care created a substantial risk of
detriment.
First, Robert and Mother have a history of engaging in domestic violence in
Mary's presence and failing to comply with court orders. As early as December 2011,
Robert agreed that his yelling and anger affected Mary and acknowledged a need to
control his anger. Since that time, Robert has participated in services, including a
domestic violence course and individual therapy. Nonetheless, in October 2012, when
Mary was not returned to him, Robert readily admits that he went into a "tailspin." Mary
reported that Robert " 'yells a lot' " and that upsets Mother. Among other things, Mother
remained scared of Robert when he exhibited anger, he left angry messages with the
caregiver and Mother and sought to violate a court order by texting Mother asking to see
Mary or meet with her.
On November 1, Robert's therapist reported to the social worker that Robert
"minimizes," "does not think he has an anger problem," and "has no clue how his anger
affects others." On November 20, Robert's therapist told the social worker that Robert
had a "complete attitude change" at his last session, but reported "it [was] hard to tell if
he [was] putting on an act." On December 3, Mother reported that things have been
"good" for the last month, but expressed concern that "down the road [Robert] will not be
able to maintain his 'good behavior.' " As a result, the social worker concluded in her
January 4, 2013, report that neither parent could safely parent Mary and recommended
additional reunification services.
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When the court made its detriment finding, it noted that Robert "appears to now be
participating more sincerely in his therapy and his domestic violence classes," but noted
that the facilitator and Robert's therapist questioned "his credibility in those pursuits."
As a result, the juvenile court expressed concern that while the parents have engaged in
services, it was difficult to gauge the information received from those services or point to
any one specific issue. Putting the court's statements into different words, while Robert
had exhibited positive change, it was too soon to say whether he had actually changed.
As a result, there remained a substantial risk of harm to Mary should she be returned to
Robert's care. The evidence amply supported the court's detriment finding.
DISPOSITION
The order is affirmed.
MCINTYRE, J.
WE CONCUR:
MCCONNELL, P. J.
IRION, J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the juvenile court's order continuing a child in out-of-home care, holding that the court did not abuse its discretion in its procedural rulings or err in finding that returning the child to parental custody posed a substantial risk of detriment.
Issues
Did the juvenile court err in denying the father's motion for a directed verdict?
Did the juvenile court abuse its discretion by granting a continuance to allow minor's counsel to interview the child?
Did the juvenile court err in allowing the Agency to reopen its case-in-chief?
Was there substantial evidence to support the finding that returning the child to parental custody posed a risk of detriment?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The juvenile court has discretion to grant a continuance upon a showing of good cause if it is not contrary to the best interest of the child.”
“When ruling in dependency proceedings, the welfare of the minor is the paramount concern of the court.”