Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Ct. No. CK72163 Marilyn Mordetzky, Juvenile Court Referee.
Neale B. Gold, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Judith A. Luby, Deputy County Counsel, for Plaintiff and Respondent.
DOI TODD, J.
Jose C. (father) appeals from the juvenile court’s order terminating parental rights to his daughter, Jessica S., on the ground that he was not given proper notice of the hearing at which his rights were terminated. We conclude the reasonable inference can be made that father had actual notice of the hearing, and that any defects in the notice constituted harmless error. We therefore affirm the court’s order terminating father’s parental rights to Jessica.
FACTUAL AND PROCEDURAL BACKGROUND
In July 2008, the Los Angeles County Department of Children and Family Services (the department) filed a petition under section 300 of the Welfare and Institutions Code on behalf of then two-year-old Jessica, alleging that her mother (who is not a party to this appeal) used inappropriate and excessive discipline, had a history of alcohol abuse and was an intermittent user of alcohol, that she and father had a history of violent altercations, that father had failed to provide his daughter with the necessities of life, and that father’s whereabouts were unknown. The mother identified father as Jessica’s birth father, claimed that he raped her and that Jessica was the result of the rape, and that he had taken custody of their two older sons, who were living in Mexico with their paternal grandmother. Jessica was removed from her mother’s custody.
Unless otherwise noted, all statutory references shall be to the Welfare and Institutions Code.
On August 15, 2008, the day after obtaining father’s telephone number from a maternal aunt, the social worker called father, who was living in Colorado. He requested that his contact information remain confidential. The interview was conducted in father’s native language of Spanish. Father stated that he had not been in California since December 2007, and was surprised by the allegations made in the petition and by mother, including her claim that he had tried to choke her in Mexico. He stated that he wanted custody of Jessica and would hire a private attorney if necessary, and that he had been sending money for Jessica’s care. The social worker informed him that the jurisdiction/disposition hearing was scheduled for August 20, 2008, and sent him notice of the hearing by facsimile and certified mail. The social worker also obtained Jessica’s birth certificate, which listed father, and a certificate of marriage between father and Jessica’s mother.
At the August 20, 2008 hearing, the court found that notice to father was proper, and continued the matter to September 2, 2008. Father appeared for the first time on September 2, 2008 and was appointed counsel. He was assisted by a Spanish interpreter. Father and the mother affirmed that they were still married, and the court found father to be the presumed father of Jessica. The court directed father to keep the social worker informed of his confidential address, and stated that all notices would be sent to that address unless father indicated otherwise. The matter was set for a contested hearing on September 17, 2008, and the court ordered the parents to appear on that day without any further order or subpoena. The department was ordered to further interview father and to submit a supplemental report, and to provide monitored visits with Jessica at its office while father was still in town.
In its supplemental report, the department reported that father continued to deny the mother’s allegations that he abused her; he was prepared to have Jessica be with him; he stated that he would attend the next court hearing; and he had tested negative for drugs and alcohol. The department sent him notice by facsimile of the continued jurisdiction/disposition hearing.
Father did not attend the September 17, 2008 hearing. The court ordered his attorney to give him notice of the continued hearing date of October 28, 2008. Father was not present at the October 28, 2008 hearing. His attorney indicated that she did not have his confidential address.
The court ultimately conducted the jurisdiction/disposition hearing on November 4, 2008. Father was not present, but his attorney was present. The court sustained the petition, ordered that Jessica remain detained from her mother, ordered father to participate in department-approved domestic violence counseling and parent education classes, allowed him monitored visits with Jessica, and ordered the department to file papers under the Interstate Compact for the Placement of Children (ICPC) regarding possible placement with father in Colorado.
In preparation for the progress hearing to be held on February 3, 2009, the department reported that Jessica had been placed with a maternal aunt, and that father had enrolled in parenting classes and was planning to meet with a bilingual therapist to discuss domestic violence issues. The department served father and his attorney with notice of the hearing by first-class mail. There is no reporter’s transcript of the hearing in the record, but the minute order indicates that father was present. The court found that the ICPC was not complete and continued the matter to May 5, 2009.
For the May 5, 2009 review hearing, the department reported that father’s mail was being returned. Father had completed his parenting classes, but had stopped attending individual counseling after three sessions. The ICPC coordinator in Colorado informed the department that she had closed father’s case due to his refusal to respond to her contact requests. When the social worker called father at his work number on April 21, 2009, father stated that he did not have a home phone at that time and wanted to be reached at his work number and address, which he provided. He stated that he stopped attending counseling because he had been unable to reach his counselor, despite the fact that her phone number had not changed. He also stated that he did not think he could devote the time and attention that Jessica needed, and that he would have no problem if her caregiver aunt and her husband adopted Jessica or became her legal guardians, but he did not want Jessica adopted by a stranger. He had last visited Jessica in February 2009, when he was in California for the court hearing. The department served father and his attorney notice of the May 5, 2009 hearing by first-class mail on April 23, 2009. The notice stated that the department was recommending termination of family reunification services for both parents, termination of parental rights and implementation of a plan of adoption, and that a section 366.26 hearing be set.
Father was not present at the May 5, 2009 review hearing. The court noted that it was premature for the department to state that it was recommending termination of parental rights. Father’s attorney also objected to the notice on the grounds that it was mailed late and was not written in Spanish. After the mother’s attorney objected to the department’s due diligence on her, the court continued the matter to June 16, 2009 so that proper notice could be given, and ordered the department to provide notice to father in Spanish. The department complied by sending written notice in Spanish to father at the work address he had provided, by first-class mail on May 20, 2009, and stating that the department recommended termination of family reunification services.
At the June 16, 2009 hearing, at which father was not present, his attorney agreed that notice was proper, but stated that she could not agree to any permanent plan because she had no direction from father. The court terminated reunification services for both parents, finding: “The parents have not consistently and regularly visited the child and have not made any significant progress in resolving the problems that led to removal of the child and have not demonstrated the capacity and ability to complete the objectives of the treatment plan to provide for the child’s safety, protection, physical and emotional health and special needs.” The court then set a section 366.26 hearing for October 14, 2009, and ordered the clerk to give written notice. The clerk’s certificate of mailing identifies father’s address as unknown.
The department’s section 366.26 report stated that on August 20, 2009, the social worker called father’s place of employment and was told that father no longer worked there and had left no forwarding address. On October 14, 2009, the department submitted a declaration of due diligence on father, stating that his whereabouts were unknown. The department also reported that the adoption home study of Jessica’s caregivers was approved, that they had developed a strong emotional bond and attachment to her, and that they remained committed to adopting her. Her caregivers, with whom she was placed in December 2008, had known her since birth.
Father was not present at the October 14, 2009 hearing, and the section 366.26 hearing was continued to December 15, 2009. The court granted the department’s request to serve notice of the continued section 366.26 hearing on the parents’ attorneys, since the parents’ addresses remained unknown. The department personally served the attorneys the same day, with the notice indicating that the court may terminate parental rights.
On November 12, 2009, father called the social worker and provided a new phone number and address in Colorado, reported that his circumstances had changed, and that he wanted Jessica to be placed with him. He asked for the phone numbers for his attorney and Jessica’s caregivers. That same day, he called Jessica’s caregivers and informed them that he had remarried and still lived in Colorado. Nearly a month later, he had still not contacted Jessica. On November 17, 2009, five days after father’s call, the department sent notice of the December 15, 2009 hearing by first-class mail to the new address provided by father. The notice was in English, designated the hearing as a “review” hearing, and stated that the social worker recommended no change in orders, services, placement, custody, or status. The service log attached to the department’s December 15, 2009 report indicated that on November 12, 2009 the social worker spoke to father, with the contact purpose described as “Deliver Service to Client.”
Father was not present at the section 366.26 hearing on December 15, 2009. The court found that notice to father was proper. His attorney stated that father had called him the prior day to say that he was seeking placement, that his circumstances had changed, and that he wanted a continuance to be present in court. The court denied the request for a continuance. After finding that Jessica was adoptable and that no exception to adoption existed, the court terminated the parents’ parental rights to Jessica. This appeal followed.
DISCUSSION
I. Section 294 and Notice Here.
Section 294 governs the notice requirements when the court orders a section 366.26 hearing. Service of notice must usually be completed 45 days before the hearing date (§ 294, subd. (c)(1)), and must state the recommendation of the supervising agency, and that the court is required to select a permanent plan of adoption, legal guardianship, or long-term foster care for the child (§ 294, subds. (e)(5) & (6)). When the identity of the parent is known but his or her whereabouts are unknown and the department has shown that it exercised due diligence in attempting to locate the parent, service may be made on the parent’s attorney of record. (§ 294, subd. (f)(7)(A).)
Father was not present at the June 16, 2009 hearing at which the court first set the matter for a section 366.26 hearing. The court then continued the hearing to October 14, 2009, and the department submitted a declaration of due diligence stating that father’s whereabouts were unknown. On October 14, 2009, the court again continued the section 366.26 hearing to December 15, 2009, and permitted the department to personally serve father’s attorney that day with notice of the December 15, 2009 continued hearing. Such notice satisfied the requirements of section 294, subdivision (f)(7)(A).
Father argues that the “pertinent notice issue really stemmed from the events that transpired subsequently, ” when father called the social worker on November 12, 2009 and provided a new address and phone number. He claims that following that call, the department failed to give him notice of the December 15, 2009 section 366.26 hearing. But the record shows that five days after father called, the department sent notice of the December 15, 2009 hearing by first-class mail to the new address provided by father.
Section 294, subdivision (f)(7)(C) provides that when the residence of the parent becomes known, notice shall be immediately served upon the parent. When the parent resides out of state, notice shall be made by either personal service, delivery to a competent person who is at least 18 years of age at the parent’s residence or business followed by first-class mail, or by certified mail, return receipt requested. (§ 294, subd. (f)(7)(C).) The notice of the December 15, 2009 continued section 366.26 hearing sent by the department to father was not served by any of these prescribed methods, and therefore did not technically comply with the statute. The notice was also deficient in that it called the hearing a “review” hearing, failed to state that the department was recommending that father’s parental rights be terminated, and was written in English rather than Spanish.
The department argues that notwithstanding any defects in the notice, the reasonable inference can be made from the record that father had actual notice of the December 15, 2009 section 366.26 hearing. We agree. After the social worker spoke to father on November 12, 2009, she described the purpose of the call in her service log as “Deliver Service to Client.” Father also spoke to his attorney the day before the hearing, and has made no claim that his attorney failed to discuss the termination of his parental rights at that time. Indeed, it can be readily inferred that the possibility of his rights being terminated was the basis for his request of a continuance. Moreover, the department had stated its position that it was recommending termination of parental rights in a notice previously sent to father in April 2009, and had been recommending the termination of his rights and the adoption of Jessica by her relative caregivers since that time. Father has also made no claim that his attorney did not keep him apprised of the department’s position. Additionally, father made his second court appearance at the February 3, 2009 progress hearing after having been served with notice by first-class mail, the same method used by the department to provide notice of the December 15, 2009 hearing. We note the address to which this later notice was sent is the same address used by father on his notice of appeal.
Given these circumstances, we conclude that the trial court could have reasonably inferred that father had actual notice of the December 15, 2009 hearing at which his parental rights to Jessica were terminated.
II. Harmless Error.
Moreover, any defects in the notice would constitute harmless error here. “Unless there is no attempt to serve notice on a parent, in which case the error has been held to be reversible per se [citations], errors in notice do not automatically require reversal but are subject to the harmless beyond a reasonable doubt standard of prejudice.” (In re J.H. (2007) 158 Cal.App.4th 174, 183.) Indeed, the California Supreme Court recently noted in In re James F. (2008) 42 Cal.4th 901 at page 918, that “[i]f the outcome of a proceeding has not been affected, denial of a right to notice and a hearing may be deemed harmless and reversal is not required.”
Father can make no claim that the department did not attempt to serve him with notice. Thus, reversal is not automatic. We also find that reversal is not required under the harmless error test because father’s appearance at the section 366.26 hearing would have made no difference in the outcome.
Pursuant to section 366.26, if a juvenile court finds that a child is likely to be adopted, as the court did here, parental rights must be terminated unless the parent can prove that one of the statutory exceptions to termination applies. Here, the only exception father could have possibly raised at the section 366.26 hearing was that termination of his parental rights would be detrimental to Jessica due to his relationship with her. Section 366.26, subdivision (c)(1)(B)(i) requires a parent to show that he or she has “maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” “Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child’s needs, it is only in an extraordinary case that preservation of the parent’s rights will prevail over the Legislature’s preference for adoptive placement.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)
We agree with the department that this case is not the extraordinary one calling for application of an exception to termination of parental rights. The trial court had already found six months earlier at the June 16, 2009 hearing that: “The parents have not consistently and regularly visited the child and have not made any significant progress in resolving the problems that led to removal of the child and have not demonstrated the capacity and ability to complete the objectives of the treatment plan to provide for the child’s safety, protection, physical and emotional health and special needs.” Nothing changed after the court made this finding that would make the exception applicable.
Jessica was just a little over a year old when father moved out of California in December 2007. Since then, he visited Jessica only during the two trips he made to California for court hearings in September 2008 and February 2009. Nor does the record indicate that he otherwise kept in regular contact with her during the 17 months the dependency case was pending. Thus, father cannot establish that he maintained regular visitation and contact with Jessica.
Nor can he establish that terminating his parental rights would be so detrimental to Jessica so as to derail the plan of adoption by her relative caregivers. Father had an opportunity to reunify with Jessica, but he failed to do so by discontinuing his therapy sessions, refusing to communicate with the ICPC investigators, and failing to keep the department apprised of his whereabouts. As the department notes, these are hardly the actions of a father who has maintained a substantial relationship with his child.
Father points out that he had a “change in circumstances, ” and that the section 366.26 hearing should have been continued so that this development could be more fully addressed. But in the month between his phone call to the department on November 12, 2009 announcing his change in plans and the hearing on December 15, 2009, father failed to file a section 388 petition, which would have been the appropriate vehicle to address any change in circumstances. Even if father’s change of circumstances involved something beyond his having remarried (and it is unclear how he could do so while still married to mother), this would not change the fact that Jessica was in a loving, stable environment and bonded to her caregivers who were strongly committed to adopting her.
Finally, father argues that the harmless error test should not be applied to section 366.26 hearings and orders terminating parental rights because, unlike earlier orders in dependency cases, such an order is permanent. Even so, in the instant case, father was aware that a dependency case involving his daughter was proceeding, that he had to comply with certain court orders to reunify with her, that he had certain rights as a parent, and that he was to keep the department apprised of his whereabouts. Father attended two hearings and was represented by an attorney. In any event, application of a harmless error standard to defects of notice at each stage in the dependency proceedings, including the section 366.26 hearing, is appropriate because such proceedings must strike a balance between the rights and interests of parents and children, which are sometimes in conflict. (E.g., Adoption of Daniele G. (2001) 87 Cal.App.4th 1392, 1404.) “If a missing parent later surfaces, it does not automatically follow that the best interests of the child will be promoted by going back to square one and relitigating the case. Children need stability and permanence in their lives, not protracted legal proceedings that prolong uncertainty for them.” (In re Justice P. (2004) 123 Cal.App.4th 181, 191.)
We are satisfied beyond a reasonable doubt that any deficiency in notice to father was harmless error, and that reversal of the court’s order is therefore not warranted.
DISPOSITION
The order terminating father’s parental rights to Jessica is affirmed.
We concur:BOREN, P. J. CHAVEZ, J.