Opinion
A152483
08-06-2018
In re N.D., a Person Coming Under the Juvenile Court Law. CONTRA COSTA COUNTY CHILDREN AND FAMILY SERVICES BUREAU, Plaintiff and Respondent, v. SARAH D., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J16-00277)
This appeal follows the termination of Sarah D.'s (Mother) parental rights over her six-year-old daughter, N.D., under Welfare and Institutions Code section 366.26. Mother's claim on appeal is that she was not provided with reasonable services during the reunification period, during the bulk of which she was incarcerated here in California or in Pennsylvania. Specifically, she claims she was given no visitation with N.D., not even telephone contact, throughout the entire reunification period. Having failed to seek writ relief at the appropriate time, Mother is precluded from raising this issue on appeal from the order terminating her rights.
Statutory references, unless otherwise indicated, are to the Welfare and Institutions Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
This dependency arose out of a family disagreement over who should be allowed to raise Mother's two daughters, N.D., then age four and a half (born September 2011), and A.D., age 15 months (born December 2014). For most of their lives, Mother had left the two girls with her own parents, Victoria and David D., because she did not have stable living arrangements. By early February 2016, Mother believed N.D. was showing signs of having been touched inappropriately. Mother renewed an allegation that David had molested her when she was six years old. Mother had disclosed the sexual abuse when she was 14, but then recanted, and no action was taken. Mother also claimed David was a frequent intravenous drug user who left needles lying around the house. She also heard from her mother that David had overdosed recently and had to be taken by ambulance to the hospital. She was sure he had overdosed in front of the children. Mother also said her father throws things when he is angry with Victoria, and he had hit the children with thrown objects. Mother decided to take her children back.
For protective nondisclosure and other reasons, we refer to those involved in this dependency by first name only. No disrespect is intended.
Her parents resisted giving up the girls, and a physical altercation ensued in which Mother claims her father grabbed her by the shoulders and her mother pushed her down the steps while she held A.D. in her arms. The confrontation escalated further, with Victoria climbing on top of Mother's car to try to prevent her from taking the girls, and Mother pushing her off the car (or hitting her, according to Victoria) with a baseball bat. Mother took the girls in her car without having appropriate child car seats and dropped them with two friends behind an abandoned CVS store, where transients were known to gather.
For their part, Victoria and David accused Mother of being a heroin addict then involved in a romantic relationship with Cory M., her former pimp, who they claimed had been arrested for sexually molesting an underage girl and holding her against her will, but he was out on bail. They said Mother and Cory worked with girls in the sex trade, renting out rooms to them. The police confirmed Cory had prior convictions for a weapons violation and distribution of illegal substances. Victoria obtained a restraining order against Mother on February 29, 2016. Mother had collapsed veins indicating long-term intravenous drug use, and she admitted using heroin since her teenage years. She said her father introduced her to heroin. Mother also reported previously using cocaine and prescription opioids. She claimed to have been clean from drugs for three or four years, but Victoria said it was really only a few weeks. Mother further reported she had a history of bipolar disorder, anxiety, and a personality disorder. Law enforcement allowed the grandparents to keep the children temporarily because Mother had forcibly removed them from the grandparents' care.
On March 8, 2016, Mother got into another altercation with Victoria at a grocery store when she tried again to reclaim her children, despite the restraining order. Mother reportedly put Victoria in a "strangle hold" to "break Victoria's grip on the car seat." The police were called, and three patrol cars responded. The police reportedly allowed Mother to take the children home with her. The Contra Costa County Children and Family Services Bureau (Bureau) set up a team decision meeting, but neither Mother nor Victoria showed up with the children.
Against this backdrop of accusations, counter-accusations, and burgeoning violence, on March 14, 2016, the Bureau petitioned the court to exercise dependency jurisdiction over N.D. and A.D. This appeal concerns only N.D. The petition for N.D., as later amended, alleged: "The child's mother, who has untreated mental health issues, has placed the child at risk for substantial harm. [¶] The child's mother has a serious and chronic substance abuse problem that impairs her ability to parent. [¶] The child's mother has engaged in episodes of domestic violence with the child's grandparents in front of the child, despite an existing restraining order, placing the child at risk for substantial harm." On March 16, 2016, the court ordered N.D. detained and ordered supervised visitation for Mother for a minimum of one hour a week. Among the orders imposed on Mother was the duty to keep the court and the Bureau apprised of her current address at all times.
Although the girls were detained together, they were shortly thereafter placed into two different foster homes due to N.D.'s behavioral issues. Only N.D.'s dependency is the subject of this appeal. The family now interested in adopting N.D. plans to maintain her sibling relationship with A.D.
Just a week after the children were detained, Mother was arrested on a warrant from Pennsylvania for a parole violation relating to a past conviction for drug distribution. While still in California, at the jurisdictional hearing, Mother pleaded no contest to the amended allegations. The court declared N.D. a dependent child and formally ordered her removed from Mother's custody. On April 27, 2016, Mother was extradited to Pennsylvania, where she served less than two months in custody.
In the disposition report dated June 7, 2016, the social worker noted difficulties in coordinating communication with Mother and in setting up telephone visitation for Mother and N.D., but did not detail efforts made by the Bureau to afford Mother telephone visitation with her children. Ten days after the report was signed, Mother was released from jail on probation in Pennsylvania. Mother was initially prevented by the terms of her probation from returning to California. She gave the social worker the telephone number of a Pennsylvania friend through whom she could be reached. But when the social worker called that number sometime during the next three weeks, the friend said Mother could no longer be contacted at that number. Thus, it appears Mother was not regularly in touch with the social worker during the three-week period after she was released from jail in Pennsylvania.
The disposition hearing was not held until July 14, 2016, when Mother was still in Pennsylvania. She appeared by telephone. The disposition report recommended that Mother receive reunification services, and that visitation be conducted on a weekly basis by mail. At the disposition hearing, because Mother was then out of custody, the court did not adopt the mail contact provision, and instead ordered that Mother be granted visitation with N.D. "for a minimum of 1 hour 4 times per month and must be supervised, when in California . . . ." Sometime around the end of July 2016, Mother returned to California. Mother testified that she met with the social worker in mid-August 2016, and the social worker told her she was arranging for the first face-to-face visit Mother would have had with N.D.
Unfortunately, Mother was again arrested on August 19, 2016, on charges of 18 felonies in California, apparently related to aiding and abetting Cory M.'s commission of human trafficking and rape of a 16-year-old girl, as well as charges of pimping and pandering, and dissuading a witness. After her arrest, Mother was initially housed in the Contra Costa West County jail. She requested that N.D. and A.D. be brought to the jail for visitation, but the social worker visited the jail and, in consultation with N.D.'s therapist and therapeutic behavioral service worker, found the proposed visitation setting was inappropriate and not conducive to parent-child bonding, and arranged no in-jail visitation.
The social worker wrote: "Face-to-Face visitations have not been completed due to [Mother] being incarcerated. This Social Worker did make efforts to have [Mother] visit her children and talked to West County Jail Staff regarding the possibility to have a room where the children and [Mother] could freely and comfortably visit. A room was shown to the Social Worker; however, it was not conducive to a visit with two active young children. Bolted chairs filled the room, it lacked space to freely move and toys would not be allowed during the visit either. . . . The environment was cold and drabby, not encouraging bonding and attachment." "However, [Mother] does write and draw pictures to [A.D.] and [N.D.]. [N.D.] has been encouraged to write [Mother] letters with the assistance of the Foster Mother."
The children's attorney agreed with the social worker and asked the court on January 9, 2017, to suspend visits "at least until mom is out of jail" because she thought N.D. "would be very upset by seeing her mom in that setting." N.D.'s attorney reminded the court that Mother was allowed to have written and telephone contact with N.D., "[b]ut she's not doing that either. But she could do that." Mother's attorney objected to the court's limiting her visits. The court suggested the parties discuss the issue again at the next court date, remarking, "I think it would actually be very detrimental and harmful to [N.D. and A.D.] to visit mother under the current circumstances." On February 2, 2017, the court ordered reunification services continued for Mother, as she was presumptively entitled to 12 months of services (§ 361.5, subd. (a)(1)(A)), but visitation remained suspended.
In March 2017, the social worker reported having minimal contact with Mother, but was able to locate her at the women's prison facility in Chowchilla, where she had been transferred on March 6, 2017. By early April 2017, the social worker had given Mother a telephone number where she could contact A.D., but Mother testified it was disconnected. N.D. had been moved to a new foster home days earlier, and N.D.'s new foster parent was "open . . . to phone . . . contact." Still, there is no evidence telephone contact was arranged for Mother and N.D. Mother testified she had requested a telephone number to contact N.D. and was not given one.
Mother eventually escaped charges in California for the most serious of the offenses, with all counts being dismissed except one count of dissuading a witness, to which she pleaded guilty. There is some indication in the record she received a three-year sentence. She remained in custody from August 2016 until the appeal was filed, with a scheduled release date of November 17, 2017. She was in local custody from August 19, 2016, until March 6, 2017, when she was transferred to state prison in Chowchilla, roughly 150 miles from the Martinez courthouse.
We take judicial notice on our own motion of the approximate distance between Martinez and Chowchilla, a fact readily determined and not open to genuine dispute. (Evid. Code, § 452, subd. (h).) Mother requested that we take judicial notice of the addresses of the men's and women's correctional facilities in Chowchilla. We deny the request as unnecessary and not made in accordance with rule 8.252(a), California Rules of Court. (Further citations to rules are to the California Rules of Court.) There is no dispute the notice was sent to the wrong prison.
At the 12-month hearing on April 13, 2017, the juvenile court found reasonable services had been rendered, terminated reunification services, allowed visitation for Mother one time per quarter "when the mother presents to the Court and is approved for visits," and set a selection and implementation hearing for August 10, 2017. (§ 366.26.) Mother's attorney argued: "Unfortunately, mother has spent the bulk of the reunification period in custody. And she was very limited in what she was able to do on her care plan while in custody." Her hope was to go into residential treatment as part of her sentence, but that could take some time before it occurred. "So mother would ask for additional time in order to be released to a program and tell the Court that she can parent this child and recover from the issues that brought this case before the court. But I don't have any further evidence to offer the Court at this time." Mother's counsel said Mother had not had any visits at all since she had been in custody. Mother was not present at the April 13 hearing and was sent notice of the section 366.26 hearing by mail. Mother did not file notice of her intention to file a petition for extraordinary writ under section 366.26, subdivision (l) and rule 8.450 and did not file a writ petition (rule 8.452).
On August 3, 2017, one week before the section 366.26 hearing was scheduled, Mother filed a petition under section 388, seeking restoration of visitation with N.D., alleging changed circumstances and past failure to provide reasonable services. She alleged not only that she had been denied reasonable services during the reunification period, but also emphasized she had participated in programs in state prison and made progress in sobriety and self-awareness that constituted changed circumstances warranting a change in the court's prior orders (1) terminating her reunification services, and (2) setting a hearing under section 366.26.
By then Mother had been seeing a therapist, although not formally in therapy, on a regular basis from March 2016 until she was extradited to Pennsylvania, and again from September 9, 2016, to at least the hearing on February 2, 2017, and possibly beyond. That therapist reported Mother was "at the best place she probably has been in a really long time. She is drug free and emotionally stable." Mother's section 388 petition explained she was then actively recovering from substance abuse, but only since March 2017 had she "been able to engage [in] substance abuse treatment after being transferred to State Prison"; such programs were "not available to her while she was in local custody." Mother had "also engaged in job training" and had "sought out programs to assist her when she is released from custody." She attached certificates of achievement and letters of commendation from various authority figures in her substance abuse and other services, including her substance abuse counselor, who summarized that she had shown "growth in her development of emotional regulation, distress tolerance and coping skills," in addition to remaining drug-free.
The court conducted a hearing on September 7, 2017, at which Mother appeared and testified to her participation in programs at Chowchilla and her unsuccessful efforts to have contact with her children. When she wrote letters to N.D. through her social worker she rarely got any response, or got a response from the social worker but not N.D. She claimed she had received no letters from the children since their detention. There had been no in-person visitation and no telephone contact.
The court denied the section 388 petition, terminated Mother's parental rights under section 366.26, and set adoption as the permanent plan for N.D. The court observed of Mother, "the only time she seems to show interest is when she's in custody." The court found it "horrifying" that Mother left her children in the care of her own molester, and was troubled by the serious nature of the crimes allegedly committed in California (even though most charges had been dismissed). The judge considered Mother's lifestyle while with Cory M. to be "very frightening." Although Mother had "taken steps" in custody to address the issues, the "bottom line" was that the court could not conceive how Mother's request "would benefit this child because I don't trust what would happen to this mother the minute she's out of custody."
Although N.D. had initially presented with considerable behavioral issues and concerning sexualized conduct, by the time of the hearing under section 366.26, she was placed with a family who loved her and wanted to adopt her. They also planned to maintain visitation for the sisters, so as to maintain the sibling relationship.
Mother appeals the order terminating her parental rights and the order denying her section 388 petition, alleging they both rely on the unsupported finding on April 13, 2017, that reasonable services were rendered. Mother contends she did not receive reasonable services because the Bureau "failed to facilitate any visitation or telephone contact between N.D. and her mother during the entirety of the case."
II. DISCUSSION
If Mother wanted to challenge the reasonable services finding and the order setting the 366.26 hearing, she was required to file a writ petition under section 366.26, subdivision (l) and rules 8.450 and 8.452. "An order setting a section 366.26 hearing is not appealable; rather review of such an order may be had only by filing a petition for an extraordinary writ. (In re Cathina W. (1998) 68 Cal.App.4th 716, 719.) The juvenile court must provide oral notice to all parties present at the setting hearing and notice by mail to all other parties that such a writ may be filed. (Cal. Rules of Court, rule [5.590(b)(2)].) When notice is not given, the parents' claims of error occurring at the setting hearing may be addressed on review from the disposition following the section 366.26 hearing." (In re Harmony B. (2005) 125 Cal.App.4th 831, 838.) A parent notified by mail has 12 days (running from the date the court clerk sent the notice) within which to file a notice of intent to file a writ petition. (Rule 8.450(e)(4)(B).)
Mother claims she was not given proper notice of the writ requirement. Indeed, the Bureau admits the court clerk sent the notice to the wrong prison; it was sent to the men's prison in Chowchilla instead of the women's facility. The address did not include Mother's inmate number; neither the court nor any of the participants at the April 13 hearing, not even Mother's attorney, knew her inmate number. The notice was also sent late in that it should have been sent within one day after the setting of the section 366.26 hearing (rule 5.590(b)(2)), but it was not sent until the fifth day after the order.
Because of these irregularities, Mother argues she was not properly notified of the requirement of a writ petition, and we must therefore proceed to the merits of the reasonable services issue now, on appeal from the order terminating her parental rights, citing the following cases: In re A.A. (2016) 243 Cal.App.4th 1220, 1240-1243 [writ requirement not enforced where notice served late, not sent to last known address, and returned to court undelivered]; In re Frank R. (2011) 192 Cal.App.4th 532, 539 [court did not "duly advise" father of his writ remedy, but it appears no notice given at all]; In re Lauren Z. (2008) 158 Cal.App.4th 1102, 1110 [appellate remedy not waived where mother "did not receive notice"]; In re Harmony B., supra, 125 Cal.App.4th at p. 839 [no evidence any notice was ever sent]; In re Maria S. (2000) 82 Cal.App.4th 1032, 1038 [no notice given at all]; In re Rashad B. (1999) 76 Cal.App.4th 442, 450 [no notice given because mother indicated she was homeless and court had failed to secure a permanent mailing address for her]; In re Cathina W., supra, 68 Cal.App.4th at pp. 722-726 [writ requirement excused where notice was sent four days late, mother alleged she never received it, and the notice was returned to the court with a forwarding address].
At the time Cathina W. was decided, it appears the rule required filing of the notice of intent within seven days of the setting hearing, regardless of when the notice was mailed. (In re Cathina W., supra, 68 Cal.App.4th at pp. 721-723.)
But in each of those cases there was evidence suggesting not only a technical defect in notice, but the real possibility the parent received no notice at all of the writ requirement. The record in those cases either contained return envelopes reflecting the mailing had not been delivered (In re A.A., supra, 243 Cal.App.4th at pp. 1231-1232; In re Cathina W., supra, 68 Cal.App.4th at p. 723), or else the social service agency conceded that no notice was given at all (In re Lauren Z., supra, 158 Cal.App.3th at p. 1110; In re Harmony B., supra, 125 Cal.App.4th at p. 839; In re Maria S., supra, 82 Cal.App.4th at p. 1038; In re Rashad B., supra, 76 Cal.App.4th at p. 450). Where technical or procedural defects alone were involved, courts have not been so generous in allowing relief from the writ requirement. (See In re Hannah D. (2017) 9 Cal.App.5th 662, 678-683 [parent personally served with information sheet and Judicial Council forms JV-820 and JV-825, not relieved of writ requirement merely because court failed to orally advise him]; In re X.Z. (2013) 221 Cal.App.4th 1243, 1248-1252 [parent orally advised of requirements but without deadline, held sufficient]; In re A.H. (2013) 218 Cal.App.4th 337, 346-348 [where parents walked out of hearing at which § 366.26 hearing was set, and written notice sent to last known address was returned without forwarding address, good cause not shown to relieve parents of writ requirement]; In re T.W. (2011) 197 Cal.App.4th 723, 729-731 [notice timely served, but address missing zip code; held, no relief from writ requirement].)
In this case we conclude we should not relieve Mother of the requirement of filing a petition for a writ under rule 8.452. As far as the clerk's delay in sending the notice is concerned, the rule itself takes care of that irregularity by making the deadline for filing a notice of intent run from the date of mailing rather than the date of the setting order. (Rule 8.450(e)(4)(B).) Consequently, Mother cannot show she was prejudiced by the clerk's delay in mailing the notice.
In arguing the notice issue, Mother explains why it would complicate and delay actual notice to have the notice addressed to the men's prison instead of the women's prison, but she does not allege she did not receive actual notice of the section 366.26 hearing and the writ requirement. In fact, the regulations governing prisons' receipt of incorrectly addressed mail from a court suggest the mail would have been redirected to Mother through the litigation coordinator and that such reconciliation occurs on a "daily basis." (Cal. Code Regs., tit.15, art. 4, § 31 3(g) (available at <http://www.cdcr.ca.gov/Regulations/Adult_Operations/docs/Title15_2017.pdf >, last accessed August 6, 2018.) We may presume this official duty was regularly performed. (Evid. Code, § 664.) Although Mother testified at the hearing on September 7, 2017, she never testified that she did not receive the court's notice of the section 366.26 hearing or that she received it after the 12-day deadline for filing a notice of intent had passed. (Cf. In re T.W., supra, 197 Cal.App.4th at p. 730 ["[I]n the published cases that have permitted a parent to challenge the merits of a referral order after failing to take a writ, it is clear that the court in fact failed to give the oral advisement (when the parent was present) or that the written advisement (when the parent was not present) was not sent to or received by the parent"].)
Moreover, Mother was out of compliance with the order that she consistently keep the social worker advised of her current address. Her attorney had been advised at the disposition hearing on July 14, 2016, to file an updated notification of Mother's mailing address. Although Mother filed a form showing a Pennsylvania mailing address on July 18, 2016, no such updated form showing her correct address in Chowchilla is found in the record. Nor does Mother allege facts showing she was prevented from filing an appropriate writ petition by reason of the mistakes made by the clerk. Mother testified at the section 366.26 hearing but said nothing about late receipt or nonreceipt of the court's notice. There is no evidence in the record that the notice was returned to the court. In the absence of a claim of nonreceipt of notice or delay so substantial as to prevent the filing of a writ petition, a claim of clerical error does not lead inexorably to the elimination of the writ requirement.
III. DISPOSITION
The orders of the juvenile court denying Mother's section 388 petition and terminating Mother's parental rights to N.D. are affirmed.
/s/_________
Streeter, Acting P.J. We concur: /s/_________
Reardon, J. /s/_________
Smith, J.
Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------