IN RE: JUSTIN C. et al.

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Court of Appeal, Second District, Division 1, California.

IN RE: JUSTIN C. et al., Persons Coming Under the Juvenile Court Law. Los Angeles County Department of Children and Family Services, Plaintiff and Respondent, v. Thomas C., Defendant and Appellant.

No. B121691.

Decided: March 03, 1999

Stephanie M. Davis, Marina Del Rey, under appointment by the Court of Appeal, for Defendant and Appellant. Lloyd W. Pellman, County Counsel, Sterling Honea, Principal Deputy County Counsel, and Auxiliary Legal Services, Inc., Judy German for Plaintiff and Respondent.

Thomas C., father of Justin C., born June 18, 1989, and Jennifer C., born February 26, 1992, appeals from the jurisdictional and dispositional findings and orders in this dependency case.   Because two years and seven months passed between the filing of the Welfare and Institutions Code section 300 petition on July 12, 1995, and the first adjudication (trial), which began February 23, 1998, we reverse.1

BACKGROUND

After the July 12, 1995, petition filing, the adjudication was, by our count, continued at least 17 times.   Various continuances arose because of the absence, frequently due to illness, of the attorneys for the children, mother, and father.   Once Department counsel was absent.   Once the parties stipulated to a continuance.   Approximately 11-1/2 months of the delay of the adjudication hearing was wholly or partly attributable to court congestion.

The section 300 petition alleged, among other charges, that father had sexually abused the children.   Throughout these proceedings, they stayed with their mother, who had been awarded physical custody by the family law court.   Marital dissolution proceedings were pending when dependency proceedings began.   At the detention hearing, the court ordered monitored visits for father, with the minors' consent.

On February 22, 1996, a stand-in attorney appeared for the children.   Apparently, the children's counsel was ill.   The court announced the adjudication could not begin because a trial was in progress and “at least four no-time-waiver” trials were trailing.   Stating that although he understood the need to continue because of court congestion and counsel's illness, father's counsel objected.   His grounds were visitation problems and that the matter had been pending since July 1995.   Counsel represented to the court that father had been unable, for a variety of reasons, to visit the children since the case's inception.   Father had sent holiday cards and gifts, but the Department investigator had told father he would not be allowed to see the children until the case was resolved.   Father had been told by the Department that mother said the children did not want to see him.   Father's contention throughout these proceedings was that mother was the source of that claim, having encouraged the children to say negative things about father and thwarting visitation.

On September 19, 1996, the court announced that because Department counsel was not available and due to court congestion, the matter could not be heard that day.   Father's counsel pointed out the case was now one year old.   The children were present and father was seeing them for the first time in 15 months.   Counsel faulted the Department for not assisting father in arranging visits, despite father's many efforts to obtain its help.  “[W]e want to get this case heard as soon as possible.”   The court set the matter for the next available date, October 30.

On January 22, 1997, the court announced it was involved in three ongoing contests and preferred that one of those be concluded before beginning a matter that could not be completed in one day.   Asked if this matter could be completed that afternoon, counsel for the children said it could not and asked for a supplemental department report.   Father's counsel objected to a continuance because of the length of time the case had been in the system.   He asked for the earliest possible date.   He agreed with the supplemental report request.   The court ordered a supplemental report addressing the children's progress in therapy and contact, if any, with father, and continued the matter to April 4.

On April 4, 1997, father's counsel, anticipating another continuance, advised the court the matter had been pending since July 1995.   He asked the court to dismiss the matter, reiterating father's contention that because of the marital dissolution, mother was the cause of the allegations against him.   The one time he saw his children in two years, they hugged him.

The children's counsel did not respond directly to the motion to dismiss.   Instead, she complained of conflicting information concerning the children's relationship and contact with father and expressed concern that mother seemed “to move a lot” and that the children “are under a number of therapists' care.”   The court suggested counsel prepare an updated joint statement or trial brief.   They would select a trial date as a “backup,” and try to set an earlier date as a “long cause date.”

The court set May 1 for a mandatory settlement conference and receipt of a supplemental report, and set July 17 for trial, with the expressed hope the matter would be heard before then on a long-cause basis.2  The court again ordered the Department to facilitate visitation.   The court did not respond to father's request to dismiss the petition.

On July 17, 1997, when it appeared the case was going to be continued, father's counsel again pointed out how long it had been pending.   He said, again, that father had visited only once with the children since July 1995.   He proposed an Evidence Code section 730 evaluation.   The children's counsel expressed the same concern about the time the adjudication had been pending, calling it “terrible.”   She also explained she was getting conflicting information about the children's feelings about seeing their father.   She was not opposed to a section 730 evaluation, but thought “an adjudication as soon as we can get to it would be even more valuable.”

The court wanted an evaluation on the subject of visitation, the allegation of mother's influence, and father's relationship with the children.   Michael P. Ward, Ph.D. was selected as the section 730 evaluator.   The parties forecast one day for the adjudication.   The court declined father's request that the matter be set for long cause, ordered the section 730 evaluation, and continued the matter to December 18, 1997.   At father's request, the court also modified the visitation order.   The Department was ordered to arrange a monitored visit for father and the children in a neutral location.   If the children reacted favorably to that visit, father was to be provided similar visitation no less than twice a month.

The adjudication began February 23, 1998.   When the adjudication concluded, on April 20, 1998, the court sustained count 1 of the petition, that father had sexually abused the children.   Proceeding immediately to the disposition hearing, the court ordered the children remain with mother and ordered family maintenance services for her and family reunification services for father.   Father and Justin were ordered to participate in joint counseling, and monitored visits were ordered for father and both children.   Justin's visits were to occur only with his consent.

DISCUSSION

 Under the statutory scheme and related court rules, section 300 petitions must be heard and decided quickly.  “The petition must be set for hearing within 30 days of the date that it is filed.  (§ 334 [‘Upon the filing of the petition, the clerk of the juvenile court shall set the same for hearing within 30 days․'];   Cal. Rules of Court, rule 1447(a) [‘If the child is not detained, the clerk shall, upon the filing of the petition, set the petition to be heard, and the hearing shall be begun within 30 calendar days from the date the petition is filed.’].)” (Jeff M. v. Superior Court (1997) 56 Cal.App.4th 1238, 1241, 66 Cal.Rptr.2d 343.)

 As Jeff M. also points out, continuances are intended to be difficult to obtain.   Section 352 circumscribes the discretion it grants trial courts to order a continuance.3  California Rules of Court, rule 1422(a) follows the statute and, indeed, goes a bit further.4  “Violation of [the restrictions in section 352 and rule 1422(a) ] requires the court to dismiss the entire petition.  (Cal. Rules of Court, rule 1447(d) [‘Absent a continuance granted under section 352 or a time waiver by the parties, when a jurisdiction hearing is not begun within the time limits of subdivision (a) [30 days] ․, the court shall order the petition dismissed.’].)” (Jeff M. v. Superior Court, supra, 56 Cal.App.4th at p. 1243, 66 Cal.Rptr.2d 343.)

 As in Jeff M., we are aware that overworked juvenile court judges do their best with grossly inadequate resources to juggle enormous caseloads.   Until the executive branch and the Legislature address this alarming situation and provide essential resources, we are compelled to issue orders such as this to enforce the law on dependency proceedings.

We reluctantly acknowledge that the reality of the juvenile court operation in Los Angeles renders it difficult, if not impossible, to begin an adjudication within the statutory 30 days.   We do conclude, however, that the passage of over two years and seven months between the filing of a section 300 petition and the beginning of an adjudication is well beyond any degree of rationality.5

We recognize, as well, that the court ultimately found, in what it described as “not an easy case,” that father had sexually abused the children.6  We also realize that our ruling may produce additional strain on the children.

However, one of the cornerstones of a child's best interests is timely judicial evaluation of his situation.   If the court finds the allegations not established, the uncertainty inherent in the judicial process ends for the child and his family.   If the allegations are timely found true, efforts to remedy whatever problems may be found can be set in motion with some hope of success, all to the end of providing stability and certainty for the child in a healthy family setting.   Undue delay prolongs uncertainty for the child, and the passage of time alone may be enough to ensure that contact with a parent is effectively severed permanently.

In his November 1997 comments on visitation between father and the children, Dr. Ward, the Evidence Code section 730 evaluator, wrote that “with extremely rare exceptions, I have been strongly opposed to the kind of lack of contact between children and their parents that has occurred in this case.”

Ward sympathized with the position in which such circumstances place the juvenile courts.   Those courts receive reports of children who do not want to see their father and are on medication for sleep difficulties, etc., which some people attribute to the alleged abuse.  “However, while this seems unfortunately unavoidable in many regards, it may also have very unfortunate negative consequences, especially depending on what is ultimately decided in terms of adjudication.   Furthermore, these unfortunate negative consequences often become extremely magnified the longer this process takes.   In this case, once again, it must be kept in mind that these children have had only one visit with their father in two and a half years.  [¶] Now the problem here is that while adults may well have some capacity for suspending judgment over that length of time, we cannot realistically expect children to do so.   More critically, I must tell the Court that it has been my definite experience, which is part of the reason I have almost always opposed this kind of restrictiveness [on visitation], especially over such a long period of time, that such lengthy lack of contact seems to only exacerbate negative feelings and reactions on the part of the children.”

Ward continued to describe the effect on children of such a long separation, concluding, “In short, it is simply unreasonable and unrealistic to expect children to keep their feelings in abeyance for two and a half years while a legal process goes through its motions, for whatever reasons it takes that long.   The net result in these situations is almost always extremely negative towards the person about whom the allegations have been made.”

When the petition was filed, Justin was five years old, almost six.   Jennifer was three and a half.   When the first trial began, Justin was eight years, eight months old.   Jennifer was six.   Justin is now nine and a half.   Jennifer is seven.   We do not know the status of the relationships between father and the children.   We do know, however, that for over two years, despite repeated requests by father, he saw the children only once, following a court appearance.   We cannot know what orders the juvenile court might have crafted had the adjudication occurred timely.   The court might well have ordered what it ultimately ordered here in an effort to restore a relationship between father and the children:  monitored visitation with both children, with visitation with Justin to occur only with his consent, and joint counseling for father and Justin.   In a situation where a parent's contact with his or her child is cut off, the path to reunification is far more difficult after the passage of more than two years than it would have been after, for example, the passage of a few months, particularly when that period covers a child's early years.

We are mindful, too, of the statutory directive that “[t]he judge of the juvenile court shall control all proceedings during the hearings with a view to the expeditious and effective ascertainment of the jurisdictional facts and the ascertainment of all information relative to the present condition and future welfare of the person upon whose behalf the petition is brought․ ” (§ 350.)

We know, from the court's comments at various points during these proceedings, of its frustration with the pace at which this matter moved.   However, we are directed by legislative mandate to do what we can to ensure that the juvenile courts of Los Angeles serve our dependent children well.   It is true these children remained with their mother, but the passage of time alone may have cost them any hope of a normal relationship with their father.   The complete lack of procedural timeliness compels a dismissal of the petition.   We agree with Dr. Ward's statement, “In fairness to this father and these children in this case situation, this has actually gone on much longer than normal or beneficial.   While there may well be some legitimate reasons for this case being in limbo for approximately two and a half years, there really is no excuse for the lack of contact between these minors and their father over this period of time, especially given the almost automatic negative implications this has for how children are going to view that parent in their absence, and given that they are also under a number of other influences or factors that almost always have a negative view of the alleged perpetrator.”

In concluding that the petition must be dismissed, we express no opinion on the merits of the case.   The Legislature has set forth a statutory scheme that must be obeyed.   Here, it was flagrantly violated.

DISPOSITION

The juvenile court is ordered to vacate its jurisdictional and dispositional orders of April 20, 1998, and to dismiss the petition.

FOOTNOTES

1.   Undesignated section references are to the Welfare and Institutions Code.

2.   The information in this paragraph of text and the one preceding it comes from the reporter's transcript of proceedings dated April 4, 1998, on its first page.   However, both the content of that day's proceedings and the reporter's certificate included as the last page of the relevant volume establish the correct year was 1997.

3.   Section 352 provides:  “(a) Upon request of counsel for the parent, guardian, minor, or petitioner, the court may continue any hearing under this chapter beyond the time limit within which the hearing is otherwise required to be held, provided that no continuance shall 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 statute, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements.  [¶] Continuances shall be granted only 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.   Neither a stipulation between counsel nor the convenience of the parties is in and of itself a good cause․ Whenever any continuance is granted, the facts proven which require the continuance shall be entered upon the minutes of the court [¶] In order to obtain a motion for a continuance of the hearing, written notice shall be filed 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, unless the court for good cause entertains an oral motion for continuance. [¶] ․ [¶] (c) In any case in which the parent, guardian, or minor is represented by counsel and no objection is made to an order continuing any such hearing beyond the time limit within which the hearing is otherwise required to be held, the absence of such an objection shall be deemed a consent to the continuance.   The consent does not affect the requirements of subdivision (a).”  (Italics added.)

4.   Rule 1422(a) provides:  “(1) The court shall not continue a hearing beyond the time set by statute unless the court determines the continuance is not contrary to the interests of the child.   In considering the child's interests, the court shall give substantial weight to a child's needs for stability and prompt resolution of custody status, and the damage of prolonged temporary placements.  [¶] (2) Continuances shall be granted only on a showing of good cause, and only for the time shown to be necessary.   Stipulation between counsel of parties, convenience of parties ․ are not in and of themselves good cause.  [¶] ․ [¶] (4) In order to obtain a continuance, written notice with supporting documents shall be filed and served on all parties at least two court days prior to the date set for hearing, unless the court finds good cause for hearing an oral motion.  [¶] (5) The court shall state in its order the facts requiring any continuance that is granted.”  (Italics added.)

5.   We reject the Department's assertion that father should have asked the court to trail the adjudication from day to day or should have filed a petition for extraordinary relief with this court when the court granted the two continuances on January 22 and April 4, 1997.   Our opinion in Jeff M. was not published until August 1997.   While it would have been appropriate, nonetheless, for father to have sought writ review, where a decision is frequently swift, a maxim of writ lore is that only a small fraction of such petitions are successful.   Similarly, we will not deem father to have waived his right to raise due process claims on appeal by his failure to include them in his closing argument.   Counsel's repeated objections to continuances and his well-founded request for dismissal were sufficient to preserve the issue of timeliness for our review.

6.   When the court ruled, on April 20, 1998, it referred to a mistrial which occurred after the adjudication finally had begun, when counsel for the children declared a conflict and the court appointed a lawyer to represent each child.   During the first trial, Justin denied the sexual abuse alleged against father.   During the retrial, Justin recanted and testified to instances of abuse.   The court admitted into evidence in the retrial, transcripts of Justin's earlier testimony.   As the court noted, “[T]he crux of this case very clearly is the credibility of Justin since his testimony in February was that he denied the sexual abuse ․ and then in March he ․ gave diametrically opposed testimony.”The dispositional orders directed that the children remain with mother under Department supervision.   The court ordered individual counseling for Jennifer and joint counseling for father and Justin.   If Justin's therapist felt joint counseling was harmful to Justin, the matter was to be “walked on for [the] court to rule.”   Visitation with both children was to be monitored.   Father's visits with Justin were to be with Justin's consent.   Family reunification services were to be provided to father.   Family maintenance services were to be provided to mother.   The six-month review was set for October 1998.

ORTEGA, Acting P.J.

MIRIAM A. VOGEL, J., and MASTERSON, J., concur.