Opinion
A149721
01-31-2017
In re L.B., a Person Coming Under the Juvenile Court Law. Q.M., Petitioner, v. THE SUPERIOR COURT OF SAN FRANCISCO COUNTY, Respondent; SAN FRANCISCO HUMAN SERVICES AGENCY, Real Party in Interest.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. JD163260)
Q.M. (Mother) petitions this court for extraordinary relief from dependency court orders denying family reunification services for her infant child L.B. and setting a hearing under Welfare and Institutions Code section 366.26 to select a permanent plan for the child.
All further unspecified statutory references are to the Welfare and Institutions Code.
The court denied reunification services under section 361.5, subdivision (b)(11), which applies when parental rights over a child's sibling have been terminated and the "parent has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling." (§ 361.5, subd. (b)(11).) Mother had previously given birth to eight other children who were not in her care, including L.B.'s two next-older siblings, M.M., born in 2012, and S.M., born in 2014. Mother's parental rights as to M.M. and S.M. were terminated as a result of Mother's mental health issues, the same problem that led to L.B.'s removal. Substantial evidence indicated that Mother consistently denied that the problem existed and had made no efforts to treat it. Mother does not contest the evidentiary basis of the bypass decision.
Mother argues that she did not have proper notice of the hearings at which the dependency court made its jurisdictional and dispositional determinations, and that the dependency court erred in refusing to grant a continuance upon her counsel's request made at the disposition hearing. We conclude that any defects in notice were waived or were harmless beyond a reasonable doubt and that the dependency court acted within its discretion in denying the request for continuance; therefore, we will affirm the dependency court's orders.
FACTUAL AND PROCEDURAL BACKGROUND
A. L.B. Is Detained
L.B. was born in August 2016 at San Francisco General Hospital and detained the next day from the hospital. The San Francisco Human Services Agency (Agency) filed a petition alleging that L.B. came within the jurisdiction of the juvenile court under section 300, subdivisions (b)(1), failure to protect; (g), no provision for support; and (j), abuse of sibling. The petition alleged that L.B. was at risk of physical harm or illness because of Mother's history of mental health issues requiring assessment and treatment, and because of Mother's anger management issues. The petition further alleged that Mother was incarcerated, Mother had failed to identify L.B.'s father, and had made no provision for L.B.'s care and support, and that Mother had failed to protect five of L.B.'s siblings, "as evidenced by CPS involvement and the mother's failure to reunify with at least four of her older children."
According to the detention/jurisdiction report, filed the same day as the petition, Mother gave permission for L.B. to be detained the day after the birth; then, two days later, Mother was returned to the San Francisco County Jail. While in the hospital, Mother refused to allow nurses to bathe the baby, threatened to come back and kill one of the nurses, and did not provide information about discharge planning for L.B. Mother was "5150'd" after giving birth because of her lack of responsiveness and failure to cooperate with hospital staff, and the next day informed the social worker that she had no mental health diagnosis or history. Mother was diagnosed with Adjustment Disorder before being taken back to jail, and the social worker learned from San Francisco Jail Behavioral Services that Mother was assessed in jail a few weeks before and diagnosed with "Personality Disorder NOS and PTSD." The report stated that Mother previously failed to reunify with four of L.B.'s siblings, including S.M., born in 2014, for whom adoption was pending.
According to a screener narrative prepared at the time of S.M.'s birth in 2014 and attached to the detention report, Mother was apparently homeless, had no means to care for S.M., was verbally hostile and uncooperative, and presented as mentally unstable, appearing not "to understand reality at times or why people are asking her questions."
Mother did not appear at the detention hearing, held on August 17, 2016. The dependency court appointed counsel for her, entered denials to the petition, ordered L.B. detained, ordered supervised visitation, and scheduled a hearing on August 31, to be followed by two settlement conferences and a trial. B. First Amended Petition and Mother's Appearance at Court
On August 30, 2016, the Agency filed a First Amended Petition, adding allegations under section 300, subdivision (b)(1), for failure to protect, that Mother was currently incarcerated for a probation violation after a conviction of domestic violence and vandalism. The probation violation involved an arrest for vandalism in June 2016: Mother said she believed her ex-boyfriend was stalking her, so she smashed all the windows of his vehicle. The petition also alleged that Minnesota Child Protective Services records indicated that Mother was the perpetrator of domestic violence with the father of three of her children, and that while Mother was pregnant with L.B., Mother refused to eat and made statements to jail staff that it would be better if the baby did not live, because the baby would not be with Mother. The amended petition also elaborated on the allegations under section 300, subdivision (j), abuse of sibling, including details about Mother's eight previous children. The petition alleged that Mother's parental rights had been terminated as to four of her older children including S.M., L.B.'s immediate older sibling born in 2014, that the other four were in the custody of their fathers, and that Mother was bypassed for reunification services for S.M. under section 361.5, subdivision (b)(11).
Mother was present at the August 31, 2016 hearing with counsel. Mother appeared in custody, pursuant to the dependency court's August 19 Order for Prisoner's Appearance at Hearing Affecting Parental Rights. At the hearing, Mother confirmed her mailing address and declined to identify L.B.'s father, and her counsel entered denials to the First Amended Petition. The court told Mother that she was ordered back for settlement conferences on September 13 and October 28, and for trial on November 9.
Notice of the September 13, 2016 Dispositional Hearing, along with the First Amended Petition, was sent to Mother in custody by certified mail on September 7. The notice stated that the hearing was scheduled pursuant to section 358, that Mother had the right "to be present at the hearing [and] to present evidence," and that the Agency would seek to bypass reunification services pursuant to section 361.5, subdivision (b), "for the reasons set forth more fully in the attached report," presumably the Disposition Report that had been filed that day. The notice also stated if reunification services were bypassed, a permanency planning hearing would be held at which Mother's parental rights may be terminated. The Disposition Report, which we discuss further below, explained that the bypass recommendation "is being made because: the mother has failed to reunify when provided with services with her older children and the mother was bypassed for services as recently as in 2014. The mother has also not addressed the issues of parenting, domestic violence, mental health, and neglect, which [led] to the prior and current CPS cases." C. Disposition Report
The Disposition Report summarized information from CPS case histories from San Diego County, Sonoma County, and Alameda County and from Dakota County, Minnesota about Mother's eight older children. The two eldest were removed from Mother in 2000 because of general neglect and caretaker incapacity. Mother did not participate in reunification services, and her parental rights as to those two children were terminated. Mother's third child was removed from her care in 2001 and custody was given to the child's father because of Mother's failure to participate in reunification services with the two older children. Mother's fourth child was taken into protective custody in 2008 when Mother was arrested for an outstanding warrant. The child was later released to Mother, who refused family maintenance services. Later that year, child protective services received a referral that mother and fourth child's father were engaged in domestic violence while mother was pregnant with her fifth child. Mother required medical attention at that time, but left the hospital against medical advice. In 2009, Mother's fourth child and fifth child were taken into protective custody when they and Mother were found wandering in Fairfield, California. The children lacked appropriate clothing and were unkempt; Mother was incoherent and unaware of her surroundings. The children were returned to Mother's care.
Mother's seventh child, M.M. was born in Minnesota in 2012. Mother and her fourth, fifth and sixth children (then aged 5, 3 and 2, respectively) were homeless at the time. Mother gave birth to M.M. in a hotel room bathtub. Mother's fourth child helped with the birthing, wrapped M.M. in a blanket and held M.M. before paramedics arrived. Mother had not received prenatal care while pregnant, and did not call 911 when M.M. was born. A friend called 911 despite Mother's instructions not to do so. M.M. was unresponsive at birth, and was taken by ambulance to the hospital, and placed on life support. Mother did not allow hospital personnel to provide medical care for the child; Mother was observed tampering with the child's umbilical arterial line; Mother turned off one of the devices keeping M.M. alive; and Mother was observed to be incoherent and exhibit paranoia. M.M. was taken into protective custody, and mother was ordered to work with social services to reunify with the child. Mother did not participate in services, but instead left Minnesota and returned to California without providing an address to social services. Mother's parental rights as to M.M. were terminated, and the child was adopted.
Mother's fourth, fifth and sixth children were placed in the custody of their father, where they remain.
S.M., Mother's eighth child, had been found to be at substantial risk of harm due to Mother's mental health problems and homelessness, as well as Mother's arrest for outstanding warrants without providing support for the newborn S.M. Mother was bypassed for services for S.M., who was in permanency planning at the time of the Disposition Report, and was expected to be adopted.
The Disposition Report outlined records showing that Mother exhibited significant mental health issues, including at the times her three youngest children, M.M., S.M. and L.B., were delivered; those issues included paranoia and delusions and threats of violence. Yet Mother denied having a history of mental health issues. Mother reported that she had been abused by her mother's disciplinary practices, and by her grandmother, who duct-taped her arms and mouth and locked her in the bathroom, and that she had run away from home. Mother also reported that she had been diagnosed with epilepsy, that she can have grand mal seizures, and that she has not taken medication for her epilepsy for years.
According to the Disposition Report, Mother was subject to two restraining orders, one protecting her fourth, fifth and sixth children and their father, and one protecting a man with whom she had been involved.
The Agency's liaison with the San Francisco Jail met with Mother on September 2 and reported that Mother presents as delusional. Mother insisted that all of her children were in her custody, being cared for by her mother. The social worker and Mother's clinician from San Francisco Jail Psychiatric Services expressed concerns that it would not be safe to allow Mother to visit with L.B., for fear that Mother may try to harm L.B. or cause trauma to L.B. if she cannot "emotionally regulate herself and she becomes agitated and paranoid." D. September 13, 2016 Hearing/Settlement Conference on Jurisdiction and Disposition
A court order was issued to transport Mother to court on September 13, 2016, because Mother remained in custody, but Mother did not appear at the hearing. Her counsel reported that Mother refused to be transported and also refused to sign the declaration stating that she did not want to be transported. Mother's counsel also reported that based on her conversations with Mother, she did not believe a settlement would be possible in light of the Agency's bypass recommendation. The dependency court found that Mother was given the notice required by law and willfully failed to appear, and proceeded to hold a "Dolly D." on jurisdiction. Testimony was taken from the social workers who wrote the detention and disposition reports, and the reports were entered into evidence. The dependency court found that the allegations of the First Amended Petition were true, and that L.B. was a person described by section 300, subdivisions (b), (g), and (j). The court stated that the matter would be put over for disposition, at which time the Agency's counsel stated, "And with respect to the Agency's recommendation, [Mother's counsel] is correct. We are recommending bypass of reunification services for the mother, and we are proceeding under 361.5 of the Welfare and Institutions Code subsection (b)(11)." The matter was continued for disposition to the previously scheduled date of October 28. At no time in the hearing did Mother's counsel make any objection to the notice that had been provided to her client, or to any other aspect of the proceedings. E. Disposition
A "Dolly D." is a dependency court hearing on jurisdiction and/or disposition that goes forward when a parent fails to appear in court despite notice to do so. (See In re Dolly D. (1995) 41 Cal.App.4th 440 (Dolly D.).) The parent's attorney may cross-examine and confront witnesses in the absence of the parent. (Id. at pp. 444-445.) --------
The Agency filed an Addendum Report on October 11, 2016. The reported stated that Mother was still incarcerated. The Agency's liaison at the jail met with Mother on September 22, and reported that Mother's "thought process is not linear or logical. She has difficulty understanding what is currently taking place in her CPS case and difficulty processing and answering questions. She is not accepting of what is happening in her case or where her other kids are and why they are not with her." The Agency continued to recommend that Mother be bypassed for reunification services.
On October 25, 2016, the Agency filed a Request for Judicial Notice, attaching documents from the court files for the cases concerning M.M. and S.M. The notice stated that Mother's parental rights had been terminated in both cases, and that the Agency would rely on the records to support its recommendation to bypass reunification services for Mother pursuant to section 361.5, subdivision (b)(11).
A court order was issued to transport Mother to court on October 28, because Mother remained in custody, but Mother did not appear, having declined to be transported to court for the hearing, and having refused to sign the declaration stating that she did not want to be transported. Mother's counsel objected to moving forward with disposition on the grounds that neither the Disposition Report nor the Addendum Report identified the subdivision of section 361.5 under which bypass was sought. The Agency conceded that the reports did not list subdivision (b)(11) of section 361.5, but argued that the omission was cured by its statement at the previous hearing identifying that subdivision as the basis for its recommendation. Mother's counsel also objected that Mother was not aware that the dependency court could issue an order resulting in bypass at the settlement conference. The Agency argued that at the beginning of the case, the dependency court had informed Mother that the court can move forward on issues affecting her parental rights if Mother was not present, but the Reporter's Transcript of the hearing on August 31, 2016, which Mother attended, does not reflect any such statement being made by the dependency court on the record.
In response to questioning by the dependency court, the deputy who had attempted to transport Mother to court explained that Mother was aware of the dependency court hearing, set for 9:00 a.m., but refused to attend because she had a criminal matter on calendar for the afternoon. The deputy testified, "What she told me was she had a criminal matter in the afternoon, and that was more important. I couldn't guarantee—she asked me if she would be back in time for that; and I said, I don't know. I don't know how long these proceedings take. [¶] She says, Well, the criminal matter is more important. [¶] I said, Are you going to come with me? And she didn't want to come out of her cell. I asked her to sign the refusal paper, and she said she wasn't going to sign. So I left it at that and I left." On the basis of that testimony, Mother's counsel stated that Mother had been given a difficult choice: "whether she should come to a hearing affecting her parental rights or a hearing affecting her criminal matter; and the officer was not able to tell her that she might be able to attend both."
Over the objections of Mother's counsel, the court moved forward with the disposition hearing. The Disposition Report and Addendum Report were admitted into evidence, and the request for judicial notice was granted and the documents attached to it were admitted into evidence. Mother's counsel declined to cross-examine the social worker, had no new evidence to present, and offered no argument, other than the objections to notice. The dependency court then made findings by clear and convincing evidence, pronounced orders. Among other things, the dependency court ordered that L.B. be placed in foster care, bypassed Mother for reunification services under section 361.5, subdivision (b)(11), and found that visitation would be detrimental to L.B. The court set the section 366.26 selection and implementation hearing for February 23, 2017.
This petition followed. By an order issued on January 4, 2017, this court stayed the section 366.26 hearing.
DISCUSSION
A. Notice
1. Applicable Law and Standard of Review
Section 291, subdivision (d) sets forth the requirements for notice after an initial hearing. The notice must identify "[e]ach section and subdivision under which the proceeding has been initiated" (§ 291, subd. (d)(3)) and a statement that if the parent or other noticed individuals "fail to appear, the court may proceed without them." (§ 291, subd. (d)(6)(A).) Further, case law is clear that the notice to a parent must identify the nature of the hearing: without that, the statement that a ruling may be issued in the parent's absence "does little to inform the parent of the nature of the hearing or afford a meaningful opportunity for making an informed choice whether or not to appear." (In re Wilford J. (2005) 131 Cal.App.4th 742, 752 (Wilford J.).) Although a defect in notice "is a most serious issue," challenges to such defects are forfeited when the issue is not promptly presented to the juvenile court, so that the notice can be corrected. (Id. at p. 754.)
We review notice errors in dependency proceedings under the "harmless beyond a reasonable doubt standard of prejudice." (In re J.H. (2007) 158 Cal.App.4th 174, 183.) "If the outcome of a proceeding has not been affected, the denial of a right to notice and a hearing may be deemed harmless and reversal is not required." (In re James F. (2008) 42 Cal.4th 901, 918 (James F.).)
2. Analysis
Mother argues that the notice of the September 13, 2016 hearing, which was sent to her on September 7, was inadequate because it did not include information required by section 291, subdivision (d), specifically the section under which the proceeding was initiated, and a statement that the court could proceed if mother failed to appear.
The Agency concedes that the Notice of Dispositional Hearing that was sent to Mother on September 7 did not include a statement that if Mother failed to appear, the court could proceed without her. The notice identified the section under which the proceeding was initiated, section 358, as required by section 291, subdivision (d)(3). The notice also stated that the Agency would recommend that reunification services be bypassed under section 361.5, subdivision (b), and although the Disposition Report explained the basis of that recommendation, neither the notice nor the disposition report specifically identified subdivision (b)(11).
Mother's counsel was present with Mother at the August 31, 2016 hearing, at which Mother was ordered back to court for September 13 and October 28. Mother's counsel was also present, this time without Mother, at the September 13 hearing. At that hearing, Mother's counsel made no objection to notice or anything else. She acknowledged that Mother had declined to be transported to the court and expressed her belief that no settlement would be possible with Mother, "based on my previous conversations with her . . . due to the bypass recommendation." She did not object to the court going forward with a Dolly D. hearing in Mother's absence. She cross-examined the social workers, and agreed that disposition would be put over to October 28. In these circumstances, Mother has forfeited any challenge to the notice she was provided for the September 13 hearing. (Wilford J., supra, 131 Cal.App.4th at p. 754 [dependency cases are not exempt from the forfeiture doctrine, the purpose of which "is to encourage parties to bring errors to the attention of the juvenile court so that they may be corrected"].)
Although Mother was personally ordered by the dependency court on August 31, 2016, to appear at a settlement conference on October 28, the record does not show that Mother personally received any notice that the disposition hearing was continued to October 28, or that the statutory provision under which the Agency sought to bypass reunification services was subdivision (b)(11) of section 361.5, or that the dependency court might rule on the provision of such services on October 28. Mother argues that in these circumstances, she did not receive adequate notice of the October 28 proceedings. As the Agency concedes, the dependency court could have been more clear when it ordered Mother to appear for subsequent proceedings and characterized the September 13 and October 28 proceedings as "settlement conferences" without explaining that actions might be taken in her absence. And certainly the notice of the September 13 hearing should have stated that the court could proceed without Mother if she did not attend. (§ 291, subd. (d)(6)(A).)
However, in the circumstances here, we disagree with Mother's conclusion that notice of the October 28, 2016 proceedings was inadequate. First, Mother was informed through the extensive and detailed Disposition Report that the Agency was recommending that reunification services be bypassed because of her failure to reunify with her older children and because she had not addressed the issues that led to the removal of those children and L.B. Second, Mother chose not to attend the September 13 hearing, where she would have learned that the disposition hearing was continued, and that the Agency sought bypass specifically under subdivision (b)(11) of section 361.5. Third, Mother cites no authority to suggest that section 291 requires additional notice of a continuance beyond the in-court announcement at a noticed hearing, where her counsel was present and the continuance was to a date on which Mother had already been ordered to appear. Fourth, Mother was represented by counsel, who was in communication with her, and who was present at the September 13 hearing. Mother supports her argument that notice was inadequate with just one case, Wilford J., which she cites for the proposition that notice to a parent in a dependency proceeding must explain "the nature of the hearing" in order to give the parent "a meaningful opportunity for making an informed choice whether or not to appear." (Wilford J., supra, 131 Cal.App.4th at pp. 742-752.) Wilford J. is inapposite, primarily because the complained-of notice was sent to a parent who was not represented by counsel. (Id. at p. 746.) Here, Mother was represented by counsel. Her counsel appeared at all the court proceedings, including the disposition hearing, and told the court at that disposition hearing that she had met with her client.
In any event, any defects in the notice were harmless beyond a reasonable doubt. Mother's petition does not suggest that the outcome of the October 28 2016 hearing could have been different if Mother had received different notice, nor does our review of the record support that conclusion. (James F., supra, 42 Cal.4th at p. 918.) Mother was represented by counsel at the October 28 hearing, and although her counsel elected not to present evidence or cross-examine witnesses, Mother was not deprived of her due process right to cross-examine and confront witnesses. (In re Stacy T. (1997) 52 Cal.App.4th 1415, 1421 (Stacy T.); see also Dolly D., supra, 41 Cal.App.4th at p. 446.) Mother does not argue that the dependency court's findings that section 361.5, subdivision (b)(11) applies are not supported by substantial evidence. (A.A. v. Superior Court (2012) 209 Cal.App.4th 237, 244 [substantial evidence standard applies when the court makes factual findings that a bypass section applies].) Nor could she reasonably make such an argument, in the face of court orders terminating Mother's parental rights as to M.M. and S.M., reports detailing the mental health issues that led to the removal of M.M., S.M., and L.B., and reports providing evidence that Mother has made no efforts whatsoever to address the problems that led to those removals and even denies that the problems exist. The suggestion in Mother's petition that she might have testified as to "her attempts to ameliorate the conditions leading to the current and previous dependencies" is sheer speculation. Mother points to nothing in the record to indicate that she would testify in that way, and proffers no evidence that she made any efforts to address her very serious problems.
We conclude that any deficiencies in notice here were harmless. B. Request for Continuance
1. Applicable Law and Standard of Review
"The juvenile court may continue a dependency hearing at the request of a parent for good cause and only for the time shown to be necessary. (§ 352, subd. (a); Cal. Rules of Court, rule [5.550(a)(2)].) Courts have interpreted this policy to be an express discouragement of continuances. (See, e.g., In re Emily L. (1989) 212 Cal.App.3d 734, 743.)" (In re Karla C. (2003) 113 Cal.App.4th 166, 179-180 (Karla C.).) "[N]o continuance shall be granted that is contrary to the interest of the minor. In considering the minor's interest, 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).) Written notice of a request for continuance "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." (§ 352, subd. (a).)
"The court's denial of a request for continuance will not be overturned on appeal absent an abuse of discretion. (See In re Angela R. (1989) 212 Cal.App.3d 257, 265-266.) Discretion is abused when a decision is arbitrary, capricious or patently absurd and results in a manifest miscarriage of justice. (People v. Franco (1994) 24 Cal.App.4th 1528, 1543.)" (Karla C., supra, 113 Cal.App.4th at p. 180.)
2. Analysis
Mother was present in court on August 31, 2016 when the dependency court ordered her to appear at 10:30 a.m. on September 13 and at 9:00 a.m. on October 28. Throughout the proceedings, Mother was represented by counsel who attended every hearing and who met with her. On August 31, her counsel made no objection to the notice and admonitions provided by the court, and on September 13, when Mother did not appear, her counsel made no objection to the written notice that had been provided. Mother did not inform the court, the social worker, or her attorney that she had a criminal court appearance scheduled for the afternoon of October 28. It is not clear that she told anyone until after a sheriff's deputy "told her she needed to wake up and get ready for court" at 8:20 that morning. In these circumstances, where Mother failed to appear on September 13, and refused to sign documents stating she declined transportation to the court; where Mother failed to inform anyone in advance of her potential court conflict on October 28; where Mother's parental rights had been terminated as to two other children within the past four years; and where no evidence or argument was presented as to how long a continuance might be appropriate or necessary, or what end would be served by a continuance other than Mother's possible presence at the hearing, the dependency court did not abuse its discretion in concluding that the disposition hearing should go forward on October 28.
We are not persuaded by Mother's argument that in denying her request for a continuance the dependency court deprived her of her due process right to appear and be heard at the disposition hearing. Mother relies on Stacy T., supra, 52 Cal.App.4th at page 1424, which is inapposite. In Stacy T., the parent's counsel was not permitted to cross-examine the authors of the reports that the court considered. (Id. at pp. 1424-1425.) Here, in contrast, Mother's counsel had the opportunity to cross-examine the social worker, but declined to do so. In Stacy T. the parent had no opportunity to present her own evidence (id. at p. 1424), but here Mother had that opportunity. Mother's counsel said she had no evidence to present, and made no offer of proof as to whether or how Mother might have testified if she had been present. Furthermore, even if we agreed with Mother that the failure to grant a continuance was a denial of due process here—and we do not—we would conclude that the failure was harmless beyond a reasonable doubt. (Id. at p. 1426.) As we discussed above, Mother's argument that a continuance might have allowed her to testify about her efforts to ameliorate her mental health problems and led to a different result on the bypass ruling is entirely speculative, especially because the record is replete with evidence that Mother consistently denied having any mental health issues
DISPOSITION
The petition for extraordinary writ is denied and the stay of the dependency court's section 366.26 hearing is lifted. Our decision is final as to this court immediately. (Cal. Rules of Court, rules 8.450(a), 8.490(b)(2)(A).)
/s/_________
Miller, J. We concur: /s/_________
Kline, P.J. /s/_________
Stewart, J.