Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Super.Ct.No. RIJ109023, William A. Anderson, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant.
Joe S. Rank, County Counsel, and Sophia H. Choi, Deputy County Counsel, for Plaintiff and Respondent.
Frank O. Tetley for Movants and Respondents.
Janette Freeman Cochran, under appointment by the Court of Appeal, for Minor.
OPINION
RICHLI, Acting P.J.
Lisa F. (the mother) appeals from an order terminating parental rights to her infant son, Isaac L. Her sole appellate contention is that her right to due process was violated because the Department of Public Social Services (the Department) was recommending a continuance, and hence she did not have adequate notice that the termination hearing would actually proceed. We will hold that she forfeited this contention by failing to raise it below and that, even if not waived, it lacks merit.
Isaac’s birth certificate identifies him as “Issac.” So does the detention report. The initial petition, however, and all other reports give his name as “Isaac.” His prospective adoptive parents, who have cared for him since birth, also spell his name “Isaac.” We therefore conclude that “Isaac” is the correct spelling, either because the birth certificate contains a typographical error or because there has been a common-law name change. (See Code Civ. Proc., § 1279.5, subd. (a).)
I
FACTUAL AND PROCEDURAL BACKGROUND
When Isaac was born, both he and the mother tested positive for amphetamines, opiates, and tranquilizers. The mother admitted being addicted to methamphetamine. She also admitted using methamphetamine and “pain killers” while pregnant (although she claimed she did so only once). As a result, in August 2006, Isaac was detained, and this dependency was filed.
According to the mother, Isaac’s father was John L. (the father). The couple had two other children together. One of those children had similarly been born exposed to methamphetamine; as a result, both children had been removed from the parents’ custody, and parental rights to them had been terminated. Those children were living with the father’s parents (the paternal grandparents).
When a social worker first phoned the father, he refused to provide his address; he avoided all further contact with the social worker and failed to appear at any of the hearings.
Almost immediately after birth, Isaac was placed with Mr. and Mrs. S., who were interested in adopting him. At the time, the paternal grandmother declined to have Isaac placed with her, explaining that she already felt “overwhelmed” by caring for Isaac’s older siblings.
At an uncontested jurisdictional hearing, the juvenile court found jurisdiction based on failure to protect (Welf. & Inst. Code, § 300, subd. (b)) and abuse of a sibling (id., subd. (j)). Later, after a contested dispositional hearing, it denied reunification services (Welf. & Inst. Code, § 361.5, subd. (b)(10) & (11)) and set a hearing pursuant to Welfare and Institutions Code section 366.26 (section 366.26 hearing).
In February 2007, the juvenile court granted the prospective adoptive parents de facto parent status. It then went on to hold the section 366.26 hearing. It found that Isaac was adoptable. It therefore terminated parental rights.
II
REFUSAL TO CONTINUE THE SECTION 366.26 HEARING
The mother contends that her right to due process was violated when the juvenile court refused to continue the section 366.26 hearing.
A. Additional Factual and Procedural Background.
The juvenile court originally set the section 366.26 hearing for February 1, 2007. On that date, however, it continued the hearing to February 26, 2007.
In the initial report for the section 366.26 hearing, the social worker recommended adoption as the permanent plan and hence also recommended termination of parental rights. Meanwhile, however, the paternal grandparents asked to be considered as prospective adoptive parents. The Department questioned whether the father was really Isaac’s father -- i.e., whether the paternal grandparents were really Isaac’s grandparents. However, it did arrange for the paternal grandparents to have a visit with Isaac.
As a result of these developments, the social worker filed an addendum report on February 22, 2007, recommending that the section 366.26 hearing be continued because “the issue of placement . . . has not yet been resolved.”
At the section 366.26 hearing, the mother’s counsel stated:
“[MOTHER’S COUNSEL]: Your Honor, I was going to ask to have this matter continued . . . .
“There’s so much controversy swirling around Isaac’s placement and what is going to happen to him, as well as paternity issues that have not been resolved.
“And I’m a little concerned because there are siblings involved in this case who are with the paternal grandparent. And I need more information from the Department as to what’s going on with this placement of this child and the permanent placement issues. I know that he’s in a foster/adopt home, but there has [sic] not been any decisions made as to whether or not those people are going to be adopting him. . . . [¶] . . . [¶]
“Having read the Department’s memo I was prepared to have the matter put over for at least a short period of time to get some information from the Department as to what its intent is with regard to this child and how that would be affecting the siblings.”
Counsel for the Department stated that he was “ready to proceed today.” Minor’s counsel likewise indicated that he was willing to proceed.
The mother’s counsel then asked again that “the matter be continued so that there be an assessment regarding the adoption or what is going to happen with the current caretakers as well as the fact that the child’s paternity is up for question and there’s some talk about having a paternity test.”
The juvenile court denied the request for a continuance.
B. Analysis.
The mother argues that the juvenile court’s refusal to continue the hearing violated due process because she lacked notice that the hearing was actually going to proceed.
1. Waiver/forfeiture.
Preliminarily, the Department argues that the mother forfeited her present contention by failing to raise it at the hearing. We agree. “‘As a general rule, a party is precluded from urging on appeal any point not raised in the trial court. Any other rule would permit a party to play fast and loose with the administration of justice by deliberately standing by without making an objection of which he is aware. [Citation.]’ [Citation.]” (In re S.B. (2005) 130 Cal.App.4th 1148, 1158-1159 [Fourth Dist., Div. Two], quoting In re Richard K. (1994) 25 Cal.App.4th 580, 590.) Even a lack of notice that would otherwise violate due process can be waived by failing to raise the issue below, so long as there has been an opportunity to do so. (In re Miguel E. (2004) 120 Cal.App.4th 521, 540; In re Janee J. (1999) 74 Cal.App.4th 198, 209-210; In re Grayden N. (1997) 55 Cal.App.4th 598, 605.)
Admittedly, the mother’s counsel did request a continuance. The gist of this request, however, was that it would be useful to have more information as to which family -- the prospective adoptive parents or the paternal grandparents -- should adopt. She did not claim that she lacked notice that the hearing might go forward; she did not claim that she had relied on the social worker’s recommendation; she did not claim (as the mother now does) that she was “caught off guard . . . .” While she did say she “was prepared to have the matter put over,” that is a far cry from saying she was unprepared if it was not.
We therefore conclude that the mother’s contention has not been preserved for appeal.
2. Merits.
Separately and alternatively, we also reject the mother’s contention on the merits.
“‘In juvenile dependency litigation, due process focuses on the right to notice and the right to be heard.’ [Citation.]” (In re Vanessa M. (2006) 138 Cal.App.4th 1121, 1129, quoting In re Matthew P. (1999) 71 Cal.App.4th 841, 851.) “‘A parent’s fundamental right to adequate notice and the opportunity to be heard . . . has little, if any, value unless the parent is advised of the nature of the hearing giving rise to that opportunity, including what will be decided therein. Only with adequate advisement can one choose to appear or not, to prepare or not, and to defend or not.’ [Citation.]” (In re Wilford J. (2005) 131 Cal.App.4th 742, 746, original italics omitted, italics added, quoting In re Stacy T. (1997) 52 Cal.App.4th 1415, 1424.)
Here, the mother had notice, from the original report for the section 366.26 hearing, that the Department was recommending adoption and termination of parental rights. True, she also had notice that the Department was requesting a continuance; however, there was no indication that the Department’s ultimate recommendation was going to change. The reasons for the Department’s request went to which family should adopt, not to whether adoption was the appropriate permanent plan.
Indeed, the Department had not made much of a case for a continuance. Ordinarily, at a section 366.26 hearing, no placement issues are presented. (See Welf. & Inst. Code, § 366.26, subd. (c)(1).) The trial court could properly select adoption as the permanent plan, terminate parental rights, and leave any questions about which family should adopt to be decided later. (See Welf. & Inst. Code, § 366.26, subd. (j).)
Most important, there was no guarantee that the Department’s request for a continuance would be granted. This was a matter committed to the juvenile court’s discretion. (In re Karla C. (2003) 113 Cal.App.4th 166, 180.) Thus, if the mother (or her counsel) did rely on the Department’s request for a continuance, that reliance was unreasonable. Certainly the mother had notice that the juvenile court might proceed with the section 366.26 hearing.
This is not a case like In re Stacy T., supra, 52 Cal.App.4th 1415. There, the mother was given notice of a “settlement conference . . . .” (Id. at p. 1420.) However, when she failed to appear on the date set, the juvenile court entered her “default” and proceeded to hold a jurisdictional and dispositional hearing. (Id. at p. 1421.) The appellate court held that this violated due process. (Id. at pp. 1421-1425.)
This case also is nothing like In re Wilford J., supra, 131 Cal.App.4th 742. There, the father was merely given notice of “a hearing . . . .” (Id. at pp. 746, 748.) The hearing was actually supposed to be a settlement and status conference. (Id. at pp. 746, 748, 750-751.) However, when the father failed to appear, the juvenile court proceeded to hold a jurisdictional hearing. (Id. at pp. 746-748.) The appellate court held that this violated the father’s “due process and statutory rights to meaningful notice.” (Id. at p. 753.)
In sum, then, in both Wilford J. and Stacy T., the parent had no notice of the particular type of hearing -- a jurisdictional hearing -- that the juvenile court actually held. Indeed, in Wilford J., the parent was given no notice of the nature of the hearing whatsoever. Here, by contrast, the mother was given notice of a section 366.26 hearing (albeit accompanied by notice of a pending request to continue the hearing), and the juvenile court proceeded to hold a section 366.26 hearing.
We therefore conclude that the juvenile court did not err by denying the mother’s counsel’s request for a continuance.
III
DISPOSITION
The order appealed from is affirmed.
We concur: GAUT, J., KING, J.