Opinion
C089582
03-10-2020
In re M.M., a Person Coming Under the Juvenile Court Law. SAN JOAQUIN COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. M.M., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. STKJVDP20180000020)
Appellant, the biological father of the minor, appeals from the juvenile court's orders terminating parental rights and freeing the minor for adoption. (Welf. & Inst. Code, §§ 366.26, 395.) He contends (1) he was denied due process because he was not properly noticed of certain hearings and, in particular, the six-month review hearing at which the section 366.26 hearing was set and (2) the juvenile court did not properly consider paternal relatives for placement. We shall affirm.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
On January 17, 2018, the San Joaquin County Human Services Agency (Agency) filed a dependency petition on behalf of newborn M.M. under section 300, subdivisions (b)(1) and (g). The petition alleged the minor's mother tested positive for amphetamine and marijuana at the time of the minor's birth, had a history of such use, received limited prenatal care, and that mother had three other children not in her care. The petition further alleged there were two possible fathers who failed to provide for the child: (1) mother's husband, M.F., who was incarcerated, and (2) another man mother named, M.D., whose whereabouts were unknown at the time. The minor was detained.
The jurisdiction hearing was held on February 21, 2018, at which the juvenile court sustained the petition. On March 13, 2018, the minor's birth certificate showing appellant as the minor's father was filed with the court. The Agency's May 29, 2018 disposition report showed appellant had not established paternity. A visitation schedule was not established for appellant because he was in custody. The report also stated that neither the mother, nor any relatives, had contacted the Agency for visits with the minor.
The next hearing took place on May 30, 2018. At that hearing, the juvenile court was advised mother had provided the Agency with the incorrect name for father and the correct name was that of appellant, as listed on the minor's birth certificate. The court then found appellant to be an alleged father until paternity could be resolved and ordered appellant, who was incarcerated in the county jail, transported to the next hearing.
The disposition hearing took place on June 13, 2018. The juvenile court adjudged the minor a dependent child of the court, ordered the minor removed from mother's custody, and provided mother with reunification services. The six-month review hearing was set for November 29, 2018. Appellant appeared in custody at the November 29 hearing and informed the court he was to be released in 74 days. Appellant indicated his interest in being an active parent to the minor and was ordered to submit to a paternity test. The court asked appellant about his mailing address upon his release from custody and was provided with the paternal grandparents' address and appellant's employer's telephone numbers. The court then ordered appellant to appear at the August 1, 2018 hearing on paternity.
Appellant did not appear at the August 1, 2018 hearing. No one could confirm if appellant remained in custody. The court noted appellant's absence and proceeded with the hearing. The Agency informed the court the paternity test found appellant to be the minor's biological parent. The court found appellant to be the minor's biological father.
The Agency's August 20, 2018 report showed an inmate search for appellant was conducted following the August 1, 2018 hearing. The Agency learned appellant was released from San Joaquin County Jail, on June 27, 2018, and transferred to Deuel Vocational Institution State Prison (DVI) in Tracy. The Agency noted appellant had recently established paternity but, due to his incarceration, had not established a relationship with the minor. Furthermore, because of appellant's extensive pattern of criminal behavior, he was not deemed a responsible, safe parent capable of providing a safe environment for the minor. The Agency opined it would not benefit the minor to offer reunification services to appellant and recommended bypassing reunification services pursuant to section 361.5, subdivision (a).
Appellant was not present at the August 29, 2018 hearing. Counsel was appointed for appellant and the court continued the matter to September 12, 2018. Appellant and his counsel appeared at the September 12, September 19, and October 16, 2018 hearings, but did not appear at the November 6, 2018 hearing at which the matter of reunification services for appellant was to be determined. The juvenile court declined to offer appellant reunification services and confirmed the November 29, 2018 review hearing.
The juvenile court also, as we shall explain, erroneously referred to the hearing as a disposition hearing and erroneously adjudged the minor a dependent child of the court for a second time. The juvenile court had already adjudged the minor a dependent child of the court at the June 13, 2018 disposition hearing.
Appellant's counsel appeared at the November 29, 2018 review hearing. Appellant was not present. The court set the matter for a contested review hearing as to mother to take place December 20, 2018. The court ordered that mother be transported to the hearing but excused appellant and his counsel from appearing.
Neither appellant nor his counsel appeared at the December 20, 2018 contested review hearing. Mother testified and requested continued reunification services. The juvenile court denied her request, terminated mother's reunification services, and set a section 366.26 hearing for April 17, 2019. The court ordered the clerk to mail a writ advisement packet to father within 24 hours. The proof of service, however, indicates it was instead mailed to and in care of appellant's counsel six days later.
The Agency sent notice of the section 366.26 hearing to various addresses and eventually personally served the notice on appellant at the county jail. Appellant's counsel appeared at the April 17, 2019 hearing. A contested hearing was requested and set for May 15, 2019, and the court ordered that appellant be transported to the hearing.
The record is not clear why appellant was served in county jail instead of DVI.
Appellant and his counsel were present at the May 15, 2019 section 366.26 hearing. Mother did not appear. Appellant testified at the hearing, requesting that the court not terminate parental rights and seeking placement of the minor with his relatives so he would be able to reunify with the minor at a later date. The juvenile court found the minor adoptable and terminated parental rights.
DISCUSSION
I
Due Process
Appellant contends he was denied due process because the juvenile court excused his and his attorney's presence at the December 20, 2018 continued six-month review hearing and, accordingly, he was not transported to the hearing. We conclude any error is forfeited and, in any event, harmless.
A.
Appealability
As a preliminary matter, we accept the Agency's concession that, because appellant was not properly provided the required writ advisement after the juvenile court scheduled the section 366.26 hearing, he may raise challenges to the orders entered at the December 20, 2018 setting hearing. The juvenile court sent the writ advisement to appellant's attorney (although belatedly), but not to appellant's address of record.
"An order terminating reunification services and setting a hearing under [section] 366.26, is 'not appealable' unless '(1) a petition for extraordinary writ review was filed in a timely manner.' " (§ 366.26 (l) (1); In re X.Z. (2013) 221 Cal.App.4th 1243, 1248-1249.) "Failure to file a petition for extraordinary writ review within the period specified by rule, to substantively address the specific issues challenged, or to support that challenge by an adequate record shall preclude subsequent review by appeal of the findings and orders . . . ." (§ 366.26 (l)(2); In re Anthony B. (1999) 72 Cal.App.4th 1017, 1021-1022.) When the juvenile court sets the section 366.26 hearing, it is obligated to advise parents of the requirement to file a writ to secure appellate review. (§ 366.26, subd. (l)(3)(A); Cal. Rules of Court, rule 5.590(b).) Where, as here, a parent is not given notice of the right to file a writ petition, and that failure of notice is attributable to an error of the court, that parent's claims of error are cognizable on appeal. (In re Rashad B. (1999) 76 Cal.App.4th 442, 450.)
B.
Merits
"[P]arental rights cannot be terminated without due process. Because parents enjoy a fundamental liberty interest in the care, custody and control of their children, a parent must be afforded adequate notice and a meaningful opportunity to be heard before being deprived of his [or her] parental interest. [Citations.]" (In re Axsana S. (2000) 78 Cal.App.4th 262, 269.) Due process requires notice and an opportunity to be heard. (In re Melinda J. (1991) 234 Cal.App.3d 1413, 1418.) "Whether a right to due process is violated, however, will vary according to the facts of each case." (In re Daniel C. H. (1990) 220 Cal.App.3d 814, 833.) Despite the constitutional status of due process claims, they may be forfeited by failure to object. (In re A.E. (2008) 168 Cal.App.4th 1, 4-5; People v. Saunders (1993) 5 Cal.4th 580, 589-590.)
With respect to appellant's claim that he was denied due process because the juvenile court excused his and his attorney's presence at the December 20, 2018 continued six-month review hearing, that contention has been forfeited. Appellant's counsel was present at the November 29, 2018 review hearing where the juvenile court set the matter for a contested review hearing and excused appellant and his counsel from appearing. Appellant's counsel did not object on due process or any other grounds. Thus, the claim of denial of due process was forfeited because it was not raised in the juvenile court. (In re Dakota H. (2005) 132 Cal.App.4th 212, 222.)
In any event, even assuming it was error to excuse his presence at the December 20, 2018 hearing and the due process claims were not forfeited, appellant has not established prejudice. The California Constitution provides: "No judgment shall be set aside, or new trial granted, in any cause, . . . for any error as to any matter of pleading, . . . unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13.) In the context of dependency proceedings, even due process violations have been held subject to the harmless beyond a reasonable doubt standard of prejudice. (See In re Kobe A. (2007) 146 Cal.App.4th 1113, 1121-1123 [noncompliance with notification requirements of section 316.2]; In re Angela C. (2002) 99 Cal.App.4th 389, 395 [inadequate notice of the termination of parental rights hearing]; Andrea L. v. Superior Court (1998) 64 Cal.App.4th 1377, 1386-1388 [denial of contested permanency planning hearing]; In re Dolly D. (1995) 41 Cal.App.4th 440, 446 [denial of right to confront and cross-examine witnesses]; In re Laura H. (1992) 8 Cal.App.4th 1689, 1696 [absence of parent's attorney during examination of minor in termination of parental rights proceeding]; In re Monique T. (1992) 2 Cal.App.4th 1372, 1377 [parent's waiver of rights].)
Here, having been bypassed for reunification services six weeks earlier, appellant makes no argument his presence would have affected the court's decision to terminate mother's reunification services and schedule the section 366.26 hearing.
With respect to appellant's other claims he was not properly noticed of or transported to other hearings, we note that, after being found the minor's biological father at the August 1, 2018 hearing, appellant was appointed counsel and counsel attended each hearing thereafter, with the exception of the December 20, 2018 for which appellant's and his attorney's presence was excused. "The general rule is that personal appearance by a party at a civil proceeding is not essential; appearance by an attorney is sufficient and equally effective. [Citations.]" (In re Dolly D., supra, 41 Cal.App.4th at p. 445.) It was incumbent on appellant's attorney to object if appellant was not notified of the hearing and to make a record in the juvenile court as to why appellant's attendance was necessary.
We note the Agency did not, for the most part, serve notice of hearings on appellant at his place of incarceration or the paternal grandparents' address.
In any event, this appeal is from the order terminating parental rights for which appellant concedes he was given proper notice and attended. Also, because he did not receive a writ advisement, he is entitled to raise errors that occurred at the December 20, 2018 hearing at which the juvenile court scheduled the section 366.26 hearing -- which we have addressed. The other hearings and orders are not properly a subject of this appeal. If appellant believed there were noticing errors or that he was improperly denied transport for those hearings, he was required to raise those issues on appeal at that time. (In re Elizabeth M. (1991) 232 Cal.App.3d 553, 563; § 395.)
II
Relative Placement Preference
Appellant contends the Agency and juvenile court did not comply with the relative placement preference statutes because "they never considered the paternal grandparents or paternal aunt and uncle for placement of [the minor] although these relatives came forward prior to the disposition hearing." We disagree with the premises for appellant's conclusion and conclude the contention is untimely.
The section 361.3 relative placement preference requires "preferential consideration" be given to a relative's request for placement of a dependent child. (§ 361.3, subd. (a).) " 'Preferential consideration' means that the relative seeking placement shall be the first placement to be considered and investigated." (§ 361.3, subd. (c)(1).) "Preferential consideration 'does not create an evidentiary presumption in favor of a relative, but merely places the relative at the head of the line when the court is determining which placement is in the child's best interests.' [Citation.]" (In re Antonio G. (2007) 159 Cal.App.4th 369, 376.) "[T]he statute express[es] a command that relatives be assessed and considered favorably, subject to the juvenile court's consideration of the suitability of the relative's home and the best interest of the child." (In re Stephanie M. (1994) 7 Cal.4th 295, 320.) But this command is not a guarantee of relative placement. (In re Joseph T. (2008) 163 Cal.App.4th 787, 798.)
Here, the relative placement preference did not come into play until August 1, 2018, when appellant was found to be the minor's biological father. (§ 361.3, subd. (c)(2) [defining relative as "an adult who is related to the child by blood, adoption, or affinity within the fifth degree of kinship"].) By this time, as we have discussed, disposition had already occurred and the minor had been living with the de facto/foster parents since her birth in January 2018.
The first request that the paternal grandmother be considered for placement occurred at the November 6, 2018, hearing at which appellant was bypassed for reunification services. Appellant's counsel stated the paternal grandmother was the current foster parent of two great-grandchildren and was asking for placement of the minor. The Agency stated it had looked into possible placement and was prepared to present additional information on the subject.
It was the Agency's position that it was in the minor's best interests to remain in her current placement. The Agency had concerns that the paternal grandmother had recently had a stroke, required assistance to get around, and was already the caregiver for a four-year-old child and a two-year-old child. The Agency was concerned that placing the minor infant in the home would potentially overload the paternal grandparents and risk the placement of the two great-grandchildren already placed there. In addition, the minor was thriving and had significantly bonded with her caregivers, with whom she had been placed since her birth 10 months earlier. Minor's counsel also opposed a placement change, adding that the minor had been struggling with visits with new people and, although visits with the paternal grandmother had improved, the minor was still uncomfortable during the visits and struggled with the transitions.
The juvenile court declined to change the minor's placement and indicated that if father or the paternal grandmother wanted the court to consider it further, they would need to file a motion with the court, with accompanying points and authorities. Thus, we reject appellant's contention the paternal relatives were never considered for placement.
Six months later, on May 6, 2019, the paternal grandmother filed a section 388 request to change the court order, seeking placement of the minor. This request was filed 10 days before the section 366.26 hearing. While the section 388 request was filed by the paternal grandmother, much of the supporting documentation, including the detailed Resource Family Approval report, addressed the paternal aunt and uncle and their suitability for placement. The request was denied.
To the extent appellant contends that decision was in error, it was incumbent upon him to appeal from that order. He did not. The claim is not cognizable in the instant appeal. (In re Elizabeth M., supra, 232 Cal.App.3d at p. 563; § 395.)
III
Holding Separate Hearings in Dependency Cases
In this case, San Joaquin County appeared to hold jurisdiction, disposition, and/or review hearings "as to mother" and "as to father" separately. Although not an issue raised by the parties, we note this procedure is unauthorized and erroneous. (See In re Joshua G. (2005) 129 Cal.App.4th 189, 202-203.)
Jurisdiction is taken over the child, not over or "as to" the parent(s). (See §§ 300, 355, subd. (a) [at jurisdiction hearing, court considers whether minor is a person described by section 300 and considers evidence "relevant to the circumstances or acts that are alleged to bring the minor within the jurisdiction of the court"].) " '[A] jurisdictional finding good against one parent is good against both. More accurately, the minor is a dependent if the actions of either parent bring [the minor] within one of the statutory definitions of a dependent. [Citation.] This accords with the purpose of a dependency proceeding, which is to protect the child, rather than prosecute the parent. [Citation.]' " (In re Alexis H. (2005) 132 Cal.App.4th 11, 16.) The court gains personal jurisdiction over a parent when the parent is properly noticed. (In re Daniel S. (2004) 115 Cal.App.4th 903, 916.) Likewise, disposition is made of the child. (See § 355, subd. (a); § 358 [proper disposition is made "of the child"]; see also § 355.1.)
To the extent this procedure is being used, we suggest the juvenile court and Agency reexamine the manner in which dependency cases proceed.
DISPOSITION
The orders of the juvenile court (terminating parental rights) are affirmed.
/s/_________
HOCH, J. We concur: /s/_________
HULL, Acting P. J. /s/_________
KRAUSE, J.