Filed 8/30/21 In re C.K. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re C.K. et al., Persons Coming B307983
Under Juvenile Court Law.
_______________________________ (Los Angeles County Super.
LOS ANGELES COUNTY Ct. No. DK22840A-C)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
MONICA Q.-B.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Stephen C. Marpet, Commissioner. Affirmed.
Anne E. Fragasso, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Tracey Dodds, Principal Deputy
County Counsel, for Plaintiff and Respondent.
_____________________
INTRODUCTION
Mother appeals after the juvenile court denied her Welfare
and Institutions Code section 388 petitions.1 Mother contends
that the juvenile court erred when it refused to grant her a
continuance and a hearing. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Jurisdiction Based on Parental Drug Use and
Domestic Violence
The family consists of mother, father, and her three
children (born in 2003, 2011, and 2014).2 Father is the biological
father to the youngest child. He is a stepfather to the two older
children. At the time of these dependency proceedings, he was in
Kern State prison. Father is not at issue in this appeal and we
therefore do not discuss facts pertaining to him any further.
The family came to the Los Angeles County Department of
Children and Family Services’ (DCFS) attention when mother
was arrested for driving a stolen car; the children were in the car
at the time of the arrest. On May 5, 2017, after discovering
mother was on parole for felony assault, DCFS detained the
children from mother. On May 10, 2017, DCFS filed a petition
pursuant to section 300, subdivisions (a) and (b), alleging
1 All subsequent statutory references are to the Welfare and
Institutions Code.
2 The eldest child turned 18 years old while this appeal was
pending. In a June 9, 2021 order regarding this child, the court
wrote: “Minor is anticipated to be a Non-Minor Dependent as
defined under [section] 11400 [subdivision] (v) by the next court
hearing and the court transfers the case to 21ccjp02716.” The
court then set a hearing for her as a non-minor dependent in
December 2021. We understand from this record that the
juvenile court currently maintains jurisdiction over the eldest
child.
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jurisdiction over the children based on the parents’ drug use and
domestic violence.
On July 11, 2017, the juvenile sustained allegations under
section 300, subdivisions (a) and (b), that the parents committed
domestic violence in front of the children, parents had an
extensive history of substance abuse, and they were current users
of amphetamines, methamphetamines, and marijuana, which
rendered them incapable of caring for the children.
The court ordered reunification services for mother,
including a 6-month inpatient drug program, a 12-step program,
weekly drug testing, a 52-week batterer’s intervention program,
individual counseling to address case issues, and a psychiatric
evaluation.
2. Termination of Reunification Services
Over the next 15 months, mother entered and was
discharged from 11 different drug rehabilitation programs,
mostly because she continued to test positive for drugs. (Mother
was also expelled from some programs for breaking other house
rules.)
On October 9, 2018, the juvenile court terminated mother’s
reunification services as to all three children, and set the matter
for a section 366.26 hearing. The recommended permanent plan
for the children was legal guardianship. On May 6, 2019, the
juvenile court placed the two younger children in kinship
guardianships.3 The court then terminated its dependency
3 “When the juvenile court establishes a kinship
guardianship as it did here [for the two younger children], it
dismisses its jurisdiction under section 366.3 in recognition of the
fact that the kinship guardianship is a permanent plan for the
child and there is no need for ongoing scheduled court and social
services supervision of the placement. (§§ 11361, 11386,
subd. (e).) However, the juvenile court still maintains
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jurisdiction over them. The eldest child remained under the
juvenile court’s jurisdiction.
3. Mother’s First Section 388 Petition
Fifteen months after reunifications services were
terminated, on January 31, 2020, mother filed a section 388
petition, requesting the juvenile court reinstate reunification
services with her eldest child. Mother alleged that following the
court’s October 2018 order terminating reunification services, she
completed a parenting class and domestic violence program,
obtained a mental health assessment, participated in individual
counseling, completed a drug rehabilitation program with after
care, and had regular daily visitation with her eldest child.
Mother declared that it was in the child’s best interest to be
raised by mother. She attached various letters showing she
completed programs. On February 3, 2020, the juvenile court
denied mother’s petition on the grounds that the request did not
state new evidence or a change of circumstances.
4. Mother’s Section 388 Petition at Issue on Appeal
Five weeks after the filing of the first section 388 petition,
on March 5, 2020, mother filed section 388 petitions for each of
her children, alleging that she had maintained her sobriety since
November 2019. Mother attached a letter from a sober living
program showing that she had been residing there since
November 28, 2019, and her children could stay with her until
permanent housing could be arranged. Mother also attached a
letter from her latest drug rehabilitation program, dated March
4, 2020, stating mother was still attending the program. Mother
jurisdiction over the child as a ward of the legal guardianship
and can vacate its order dismissing its dependency jurisdiction.
(§§ 366.3, subds. (a) & (b), 366.4.)” (In re Priscilla D. (2015)
234 Cal.App.4th 1207, 1216.)
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requested reinstatement of reunification services, and
unmonitored visitation or placement with mother.
In its August 3, 2020 report, DCFS reported that mother
stated she last used methamphetamines on June 2, 2019, and
that she no longer saw any of the people with whom she used to
do drugs. Mother also stated that she had completed the court-
ordered drug rehabilitation programs with aftercare, and the
other court-ordered programs.
The juvenile court set a hearing on mother’s section 388
petitions. The hearing was continued several times for various
reasons, but eventually took place on August 12, 2020. A day
before the hearing, on August 11, 2020, DCFS filed a last minute
information report for the court, which stated that on Monday,
August 3, 2020, mother had tested positive for methamphetamine
at her sober living facility. Facility staff tested mother because
she had come in after curfew that night. After the positive result,
staff administered a back-up/follow-up test, which was also
positive for methamphetamine. Mother denied using drugs, and
said that she had been around friends who were using, and she
got smoke in her system. Following the positive results, the
facility discharged mother.4
4 There is some confusion about the date of the tests. The
DCFS report states that mother “yielded a positive result for
methamphetamines on 8/3/20.” Later in the same report is, “On
8/5/20 DCFS received information from [the director of the sober
living home where mother was residing]. He reported that on
8/2/20 mother was discharged from the sober living home due to a
positive test for methamphetamines. According to him, mother
came in late on Sunday evening after curfew and it was decided
by staff to test her. A back-up and follow-up test was
administered after that and again the tested [sic] came back
positive for methamphetamine.” Whether the tests were
5
At the beginning of the hearing on August 12, 2020, the
juvenile court stated: “We’re here on calendar for a hearing on a
388 with a .26 trailing as to [the eldest child]. [¶] We’re here on
a hearing on a 388 filed by mother on the three children.” The
court asked mother’s counsel if she wished to be heard.
Mother’s counsel then requested a continuance, stating
mother never acknowledged the relapse and that the positive test
results were not confirmed. Her attorney stated that mother’s
treatment at a hospital emergency room for an asthma attack the
Wednesday before her positive test may have accounted for the
results. Counsel also requested that the juvenile court grant a
continuance so that mother could get a hair follicle test to
disprove the positive drug test. The eldest child’s counsel joined
in mother’s request for a continuance; she later argued in favor of
granting mother’s section 388 petition.
DCFS acknowledged that the test results attached to the
last minute report were poorly uploaded, but asserted that they
were confirmed test results and that the “isomer information”
showed the tests were for illicit drugs, not prescription
medications. DCFS stated the information before the court
should be sufficient but that it could obtain a complete copy of the
test results if needed.
The juvenile court denied mother’s request for a
continuance. The court stated: “I’m not looking at one test. I’m
looking at two tests. Both tests show that mother tested positive
for methamphetamine and this was done at the program where
mother was living. According to this report, [mother]
acknowledge[d] everything, packed up her bags, walked out and
didn’t make a fuss or a fight or say it didn’t happen. And, now,
administered the same day or on consecutive days is immaterial
to our analysis.
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you’re telling me that she doesn’t believe it happened. But if you
wish to be heard regarding the actual 388, I’m happy to listen.”
Mother’s counsel then requested mother be granted
monitored visits for all of the children in the home of the eldest
child’s caretaker. After entertaining brief oral argument, the
juvenile court denied the section 388 petitions as to all the
children based on mother’s relapse. The court found the eldest
child appropriately placed and that her permanent plan was to be
emancipated with a caring adult to serve as a life-long mentor.
On September 30, 2020, mother filed a timely notice of
appeal.
DISCUSSION
Mother argues the juvenile court erred when it denied (1) a
hearing on her section 388 petitions and (2) the request to
continue the hearing. We disagree.
Taking mother’s contentions in reverse order, we first
observe that the juvenile court did in fact hold a hearing on
mother’s section 388 petitions. At the August 12, 2020 court
appearance, the court stated “We’re here on the hearing on a 388
filed by mother on the three children.” The court then asked
mother’s counsel if she wished to be heard on the matter.
Counsel then addressed the juvenile court. We reject mother’s
argument on this point.5
5 It is unclear what the court may have meant when,
according to the reporter’s transcript, it stated at the hearing, “I
see no need to go forward – to deny it. I’m not talking – I’m not
looking at one test. I am looking at two tests.” Regardless, the
court next said, “But if you wish to be heard regarding the actual
388, I’m happy to listen.” Counsel for mother, the eldest child,
and DCFS argued briefly. No witnesses were called.
The minute order for the August 12, 2020 hearing is also
unclear: “The 388 WIC petition filed is denied without a hearing.
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Mother’s central argument is that the court abused its
discretion in denying her request for a continuance of the
August 12, 2020 hearing. Section 352 governs continuances in
dependency hearings and requires the party seeking a
continuance to file “written notice . . . 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.” (§ 352, subd. (a)(3).) Only for good cause will the
trial court entertain an oral motion for continuance. (Ibid.) The
juvenile court may grant a continuance if it is not contrary to the
minor’s interests and “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.”
(§ 352, subd. (a)(2).) The statute requires the court to “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).) “We review the denial of a
continuance for abuse of discretion.” (In re Giovanni F. (2010)
184 Cal.App.4th 594, 605.)
Mother argues that because she did not receive the last
minute information for the court until the day of the hearing, she
was in no position to refute the test results.6 Although DCFS
[¶] The court initially denies mother’s counsels [sic] request for a
continuance. [¶] The court after reviewing the evidence and
hearing oral argument will deny the mother’s 388 Petition
finding that it’s not in the child’s best interest to grant the
Petition noting the mother’s positive drug tests.” The reporter’s
transcript shows the court in fact held a hearing.
6 The report was electronically filed with the court on
August 11, 2020, the day before the hearing.
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was apparently slow in serving mother with the report – DCFS
admits it received test information on August 5, 2020 – the
juvenile court did not abuse its discretion in denying mother’s
request for a continuance. Mother was aware of her positive test
on either August 2 or August 3, 2020, nine or 10 days before the
section 388 hearing. She was immediately discharged from her
sober living arrangement. It would have been foolhardy to
believe that DCFS would not alert the court to the positive tests,
and, of course, it did. Mother had adequate time to challenge the
test or arrange for one of her own, including the hair follicle test
to which counsel referred at the hearing. Even though we do not
decide the appeal on this ground, mother was in a position to
comply with the statutory requirement that a motion to continue
must be made in writing two days before a hearing. (§ 352,
subd. (a).) Even if she did not have time to challenge the tests or
to re-test before the hearing, mother knew by August 3 that she
had failed two drug tests and had been discharged from her
residence—enough to know that she might need a continuance of
the upcoming hearing. The trial court reasonably could have
rejected mother’s unsupported statements at the hearing that she
was exposed to secondhand smoke, or that the positive test was
attributable to medication she received at an emergency room for
an asthma attack the Wednesday before her Monday drug test.
We conclude that mother was given, and participated in, a
hearing under section 388, and the juvenile court did not abuse
its discretion in denying a continuance.
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DISPOSITION
The juvenile court’s orders are affirmed.
RUBIN, P. J.
WE CONCUR:
MOOR, J.
KIM, J.
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