California Court of Appeal Aug 27, 2014 No. D065531Unpublished
Filed 8/27/14 In re Daniel M. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 DANIEL M., JR., a Person Coming Under the Juvenile Court Law. D065531 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. J518556) Plaintiff and Respondent,
v.
DANIEL M., SR., et al.,
Defendants and Appellants.
APPEALS from an order of the Superior Court of San Diego County, Kimberlee
A. Lagotta, Judge. Affirmed.
Lelah S. Fisher, under appointment by the Court of Appeal, for Defendant and
Appellant Daniel M., Sr.
Christopher R. Booth, under appointment by the Court of Appeal, for Defendant
and Appellant Danielle M.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Paula J. Roach, Deputy County Counsel, for Plaintiff and Respondent.
Daniel M., Sr., and Danielle M. appeal a juvenile court order denying Danielle's
request for a continuance of the Welfare and Institutions Code, section 366.261 hearing
in the dependency proceeding for their son, Daniel M., Jr.2 The parents contend the
hearing should have been postponed until the evaluation of the prospective adoptive
home of their son was completed. We affirm the order.
One-month-old Daniel was taken into protective custody by the San Diego County
Health and Human Services Agency (Agency) after Daniel M. told workers at his
methadone clinic he would hurt the infant if he did not get help caring for him. Daniel
tested positive for methadone at birth and at one month old was still being weaned off the
drug. Just a week before Daniel was taken into custody, Danielle was incarcerated on
charges of grand theft and burglary and faced extradition to New York for crimes
committed there. Both parents had a history of substance abuse. Once in custody, a
social worker found a large bruise on Daniel's left leg. Daniel was examined by a
physician who concluded the bruise resulted from physical abuse.
Upon Daniel's detention by the Agency, Danielle reported she was a registered
member of the Tuscarora Tribe in New York. At the detention hearing, the court found
1 Statutory references are to the Welfare and Institutions Code unless otherwise indicated.
2 Daniel M., Jr., is referred to as Daniel, while his father is referred to as Daniel M. 2
the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) applied. The Agency
gave notice to the Tuscarora Tribe of the proceedings. Shortly thereafter, Daniel M.
moved to New York to be close to his family. Danielle was also extradited to New York
and sentenced to prison until January 30, 2017. At the contested jurisdiction and
disposition hearing, the juvenile court declared Daniel a dependent of the court, removed
him from his parents care, placed him in a licensed foster home and ordered reunification
services for both parents.
By this time, one of Danielle's relatives, a member of the Tuscarora Tribe, came
forward and expressed a willingness to care for Daniel. The Agency requested an
evaluation of the relative under the Interstate Compact on the Placement of Children
(ICPC) (Fam. Code, § 7901 et seq.). Before the six-month review hearing, however, the
Agency expressed concern that the relative was no longer interested in caring for Daniel
and was working with Tuscarora representatives to find other placement options. By the
six-month review hearing, the Agency had disqualified the relative for failing to
participate in the process. The tribe identified three other potential families to care for
Daniel, including Danielle's cousin, and the Agency began the ICPC evaluation process
for the cousin.
The Agency's report for the six-month hearing recommended terminating services
for the parents and setting a section 366.26 hearing. The Agency noted that while Daniel
M. expressed a desire to regain custody of his son, he did not engage in any of the
services required by his case plan, failed to visit Daniel (despite the Agency purchasing
him an airline ticket to come to San Diego) and showed no insight into the substance
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abuse and mental illness that brought Daniel into the dependency system. The juvenile
court followed the Agency's recommendation and, at the conclusion of the review
hearing, terminated services for the parents and set the permanency planning hearing.
After the six-month review hearing, Danielle's cousin decided she was no longer
interested in adoption. The tribe's clan mother put the Agency in contact with another
family that was interested in adoption and the Agency initiated the ICPC process for this
family.
In advance of the section 366.26 hearing, the Agency filed its report
recommending termination of parental rights so Daniel could be placed for adoption. At
that time, the family recommended by the clan mother was still undergoing the ICPC
evaluation. At the start of the contested hearing, Danielle's counsel requested a
continuance until Daniel, who remained in the custody of a non-Native American San
Diego foster family, was placed with a Native American family. Daniel M.'s counsel
joined in the request. Counsel for both the Agency and Daniel opposed the request on the
grounds the parents had not shown good cause and that delaying the hearing was not in
Daniel's best interests. The juvenile court denied the request.
During trial, the tribe's clan mother appeared telephonically. She stated the tribe
agreed with the permanent plan of adoption for Daniel and that the tribal family
undergoing the ICPC evaluation should be considered Daniel's adoptive parents. There
was no indication at the hearing that the family would not be approved for Daniel's
placement. After consideration of the evidence and counsels' arguments, the juvenile
court found Daniel was specifically and generally adoptable. The court rejected
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Danielle's argument that severing her parental bond with Daniel was not in his best
interests. The court also found that none of the other circumstances set forth in section
366.26, subdivision (c)(1) that would make termination of parental rights detrimental to
Daniel existed and terminated parental rights.
DISCUSSION
Daniel M. argues the juvenile court erred by denying Danielle's request to
continue the permanency planning hearing until after the prospective tribal adoptive
family had completed the ICPC evaluation process. Danielle joins in this argument. The
parents assert good cause for a continuance existed because termination of their rights
before the prospective adoptive family was assessed left Daniel with two less advocates
for his placement within the tribe. They contend that because the ICPC evaluation had to
be complete before Daniel's permanent plan of adoption could be implemented,
continuing the section 366.26 hearing would not cause delay. Therefore, continuing the
hearing was not contrary to Daniel's best interests.
Under section 352, the juvenile court may grant a continuance of any hearing only
on a showing of good cause and only if the continuance is not contrary to a minor's best
interests. 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); In re Ninfa S. (1998) 62 Cal.App.4th 808, 810.) Because
"time is of the essence" for dependent children, continuances in juvenile cases are
discouraged. (In re Josiah Z. (2005) 36 Cal.4th 664, 674; Jeff M. v. Superior Court
5
(1997) 56 Cal.App.4th 1238, 1242.) We reverse an order denying a continuance only on
a showing of an abuse of discretion. (In re Giovanni F. (2010) 184 Cal.App.4th 594,
605; In re Elijah V. (2005) 127 Cal.App.4th 576, 585.)
We do not find the juvenile court's denial of a continuance constituted an abuse of
discretion. The court's conclusion that Danielle did not establish good cause was
reasonable. As the Agency points out, the results of the ICPC evaluation were not
relevant to the court's decision on whether or not to terminate parental rights. Even if the
prospective tribal adoptive family is not approved to adopt Daniel, the juvenile court
must still follow the statutory placement preferences set forth by ICWA. (25 U.S.C.
§ 1915(a) ["In any adoptive placement of an Indian child under State law, a preference
shall be given, in the absence of good cause to the contrary, to a placement with (1) a
member of the child's extended family; (2) other members of the Indian child's tribe; or
(3) other Indian families."]; see also § 361.31.) In addition, delaying the proceeding
could be detrimental to Daniel. A petition for adoption may not be granted until the
appellate rights of the natural parents are exhausted. (§ 366.26, subd. (j).) Continuing
the termination of parental rights would extend the time to appeal the ruling and,
therefore, could result in a delay of Daniel's adoption. If the prospective tribal adoptive
family is approved, Daniel will be freed for adoption sooner.
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DISPOSITION
The order is affirmed.
BENKE, Acting P. J.
WE CONCUR:
MCDONALD, J.
MCINTYRE, J.
7
AI Brief
AI-generated · verify before citing
Holding. The court held that the juvenile court did not abuse its discretion in denying a continuance of the permanency planning hearing, as the pending ICPC evaluation of a prospective tribal adoptive family was not relevant to the decision to terminate parental rights and delaying the hearing was contrary to the child's interest in prompt resolution.
Issues
Did the juvenile court abuse its discretion by denying a request to continue the section 366.26 hearing until the completion of an ICPC evaluation for a prospective adoptive family?
Disposition. affirmed
Quotations verified verbatim against the opinion
“The court's conclusion that Danielle did not establish good cause was reasonable. As the Agency points out, the results of the ICPC evaluation were not relevant to the court's decision on whether or not to terminate parental rights.”
“We do not find the juvenile court's denial of a continuance constituted an abuse of discretion.”