Opinion
F084285
02-24-2023
In re A.R., a Minor. v. AMANDA R., Objector and Appellant. EARL E. et al., Petitioners and Respondents,
Amanda R., in pro. per., for Objector and Appellant. Sarah Birmingham Law and Sarah J. Birmingham for Petitioners and Respondents.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County, Nos. FL-20-000470 & PR-18-000422, Alan K. Cassidy, Judge.
Amanda R., in pro. per., for Objector and Appellant.
Sarah Birmingham Law and Sarah J. Birmingham for Petitioners and Respondents.
OPINION
PENA, Acting P. J.
Appellant Amanda R. (mother) appeals from the trial court's order terminating parental rights to her daughter A.R. pursuant to Family Code section 7822 (undesignated references are to the Family Code) and Probate Code section 1516.5. David R. (father) is deceased. The petition to terminate mother's parental rights was brought by maternal grandfather Earl E. and his fiancee Deborah B. (collectively, the grandparents) who obtained guardianship of A.R. after mother left her in their care following father's death.
On appeal, mother, who is representing herself, raises issues related to (1) the settled statement of the trial, (2) the effectiveness of trial counsel, (3) the former section 7851 investigative report, (4) the grandparents' application for service by publication, (5) hearing continuances, and (6) the permanent guardianship order. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
All oral proceedings leading up to, and including trial were not transcribed. Therefore, the facts are derived from the clerk's transcript, consisting primarily of minute orders, court orders, and reports. The record also includes a court-certified settled statement summarizing the testimony and evidence presented at trial.
On June 15, 2016, A.R.'s father died in an industrial accident. That day mother left then two-year-old A.R. in the grandparents' care. Prior to that, A.R. lived with mother and father.
Grandparents' Petition for Guardianship
On August 13, 2018, the grandparents filed a petition for temporary guardianship of A.R., asserting she had been in their physical custody since the date of her father's death. By this time, A.R. was now four years old. The court granted the grandparents' petition and continued the matter for the completion of a court investigation. A few days after the grandparents were granted temporary guardianship, mother signed a "Consent to the Appointment of Guardian and Waiver of Notice" form (GC-211), consenting to the guardianship and waiving notice of the petition and hearing.
On November 14, 2018, a court investigator filed a preappointment report making a recommendation on the guardianship of A.R. According to the report, after father's death, "mother turned to a life of illegal drug use and several violent relationships." The grandparents reported mother was pregnant again and abusing illegal substances, including methamphetamine, heroin, and opiates. She was not receiving prenatal care and was homeless. Mother received social security income and social security death benefits for A.R. but frequently asked the grandparents for extra money. She had not had visits with A.R. since September 2018.
The investigator concluded A.R. appeared to be thriving in the grandparents' care and should continue in their care. He noted mother was in agreement with the proposed guardianship and signed a consent form. He recommended the grandparents be appointed guardians of A.R. and that visits with mother be supervised and at the grandparents' discretion. Further, he recommended mother provide proof of completion of a parenting class, a negative hair follicle drug test result, a stable environment for 12 months, stable employment for 12 months, and clearance from any parole or probation terms prior to petitioning the court for modification of visitation or termination of the guardianship.
On November 26, 2018, the court granted the grandparents permanent guardianship of A.R. and ordered that visitation with mother be at the grandparents' sole discretion.
Grandparents' Petition for Termination of Parental Rights
On February 4, 2020, the grandparents filed a petition to declare A.R. free from parental custody and control pursuant to section 7822. A.R. was now approximately five-and-a-half years old. The initial hearing on the petition was scheduled for April 2, 2020.
On March 25, 2020, the trial court, on its own motion, continued the hearing due to the COVID-19 pandemic.
On June 23, 2020, the hearing was again continued to perfect service.
On July 7, 2020, the grandparents filed an application to serve mother by publication after they hired a private investigator to serve her at her last known address without success. The trial court granted their request.
On August 4, 2020, mother appeared at the continued hearing. She asserted the grandparents had her address and had been in electronic contact with her recently. Mother requested court-appointed counsel, but the trial court denied her request without prejudice because it found she had not been served and time for service had not yet elapsed. The hearing was continued to perfect service.
On August 26, 2020, mother appeared at the continued hearing and was appointed counsel. Mother provided her mailing address, residential address, and phone number. She agreed to accept service at her residential address. The hearing was again continued to perfect service.
On September 5, 2020, the grandparents' private investigator personally served mother at her residence.
On September 17, 2020, at the continued hearing, the trial court referred the matter to Dr. Weston Lange for the completion of an investigative report pursuant to former section 7851. The hearing was continued pending completion of the report.
On November 16, 2020, at the continued hearing, the trial court was informed the parties had just recently contacted Dr. Lange and the evaluation had not yet occurred. The hearing was continued.
On January 11, 2021, at the continued hearing, Dr. Lange requested an additional 60 days to complete the investigative report. The hearing was continued.
On March 5, 2021, Dr. Lange filed the investigative report. He interviewed the grandparents, A.R., and mother as part of his evaluation. Earl E. reported he had been taking care of A.R. since her father's death. Mother stayed with the grandparents intermittently and spent time with A.R. but never provided overnight care. At some point mother began using illegal substances and entered into multiple physically violent relationships. Earl E. and A.R. had not had contact with mother since approximately January 2018. Prior to that, mother had been visiting A.R. about every 10 days. Earl E. said he stopped contact with mother when she became pregnant with her second child, Gavin, and continued to use drugs. After Gavin's birth, a social worker contacted the grandparents and informed them Gavin had been exposed to drugs during pregnancy.
A.R. referred to the grandparents as both "dad and mom" and "peepaw and grandma." She had a close relationship with Earl E. and a moderately close relationship with Deborah B. She said "'dad David'" was in heaven and that she did not remember "'mom Amanda.'" She was not sure if she wanted to see mother and did not express interest in being included in a court hearing.
A.R. reported she liked to watch movies and play, had a good relationship with her teacher, had many friends, and her favorite place was horse camp, which she attended with Deborah B. She had her own bedroom, but did not like to be alone and usually coslept with Earl E. A.R.'s routine consisted of Earl E. waking her up in the morning, eating meals prepared by Earl E., and taking a bath with the grandparents' help. Her bedtime routine was "somewhat unstructured" as she often forgot to brush her teeth, would stay up late, and fall asleep in the living room. She considered her aunt and uncle important members of her support network.
Mother acknowledged she had struggled with drug addiction, but said she had recently "'got [herself] back together.'" She had been living with a roommate-an older woman whom she had met through friends-for the past year, and was not in a relationship. She was not employed but was receiving survivor benefits and wanted to start a career as a paralegal.
Mother confirmed she had a second child. Gavin was almost two years old and was in foster care. Child protective services had removed him from her care approximately one year prior and she was participating in reunification services. She said she completed a parenting class, treatment for addiction, and a domestic violence program. She was still participating in therapy, attending daily AA meetings, and submitting to monthly drug tests. She was also receiving treatment for her bipolar disorder and posttraumatic stress disorder and was taking several prescribed psychotropic medications. Mother estimated Gavin spent approximately 50 percent of the time with her and believed he would be returned to her care soon. She added she had completed parent-child labs and supervised visits as part of her reunification plan, and child protective services made unscheduled visits to her home.
After October 2018, mother only had contact with A.R. for approximately one month and then Earl E. began cancelling visits. She doubted she would have been able to challenge the guardianship. Her last contact with the grandparents was in May 2020, but said she continued to try to contact them.
Dr. Lange concluded A.R. was thriving in the grandparents' care. However, he said the question regarding termination of parental rights was complex. A.R. had not had contact with mother for approximately three years and she had little to no memory of her. Mother had displayed periods of instability, including untreated mental health conditions, drug addiction, involvement in violent relationships, and had Gavin removed from her care. Dr. Lange noted he did not verify mother's participation in the reunification plan or her completion of services. However, if mother achieved long-term stability, he opined it would be beneficial for A.R. to have a relationship with her even if the grandparents remained her guardians. Accordingly, he recommended mother's parental rights not be terminated, but there should be no contact at that time as it would be premature. He recommended the decision to terminate parental rights be postponed pending the outcome of Gavin's dependency case. If mother reunified with Gavin within six months, he recommended mother be allowed to petition for therapeutic visits with A.R. and that Gavin be allowed to participate. However, if she did not achieve reunification, he recommended parental rights to A.R. be terminated. Ultimately, mother did not reunify with Gavin and her parental rights over him were terminated.
On March 8, 2021, at a continued hearing, the trial court confirmed all parties had received and considered Dr. Lange's investigative report. The court set trial for October 4, 2021, and a settlement conference.
On August 25, 2021, mother's attorney, Anna R. Evans, moved to be relieved as counsel. She declared there had been a breakdown in the attorney-client relationship. Evans had been unable to reach mother and could not adequately prepare for trial.
On September 10, 2021, at the settlement conference, Evans withdrew her motion to be relieved as mother's counsel after she and mother had a discussion in court. Evans proposed a trial continuance because she had not had meaningful communication with mother. The court declined her request but continued the settlement conference to allow mother and Evans time to discuss trial.
On September 27, 2021, at the continued settlement conference, the court continued both the settlement conference and the trial date over the grandparents' objection.
On January 21, 2022, at the continued settlement conference, trial was confirmed for March 3, 2022.
Trial
On March 3, 2022, Earl E. was present at trial with attorney Kenneth Mello. Deborah B., who was also represented by Mello, was not present. Her appearance was excused. Mother was present and represented by Evans. Mello requested the petition be amended to also include termination of parental rights pursuant to Probate Code section 1516.5. Evans did not object and the trial court granted the request. Both mother and Earl E. testified. The grandparents admitted into evidence two exhibits (exhibits 1 and 2), and mother admitted into evidence seven exhibits (exhibits A through G). The grandparent's exhibits consisted of text messages between Earl E. and mother dated March 2019 (exhibit 1) and a letter from a reunification program clinician providing an update of mother's progress in reunification services with Gavin (exhibit 2). Mother's exhibits consisted of photos of a child (exhibit A), mother's signed consent form to the guardianship (exhibit B), text messages from one of the grandparents dated January 2019 (exhibit C), an unfiled request for order requesting visitation with A.R. dated February 2020 (exhibit D), an undated text message from one of the grandparents (exhibit E), a certificate that mother attended parenting classes (exhibit F), and more pictures (exhibit G). The court found it was in A.R.'s best interest to terminate parental rights and granted the petition. Mello was directed to prepare the judgment.
On March 16, 2022, the trial court signed the judgment terminating parental rights. The findings and orders were outlined as follows:
"1. Mother has failed to contact the child for more than one year with the intent to abandon her.
"2. The mother has failed to support the minor child for more than one year with the intent to abandon her.
"3. The mother has failed to support the minor child for more than on[e] year with the intent to abandon her.
"4. It is in the best interest of the child to terminate the parental rights of the above-named [m]other so that the adoption of the child may proceed."
Appeal and Settled Statement
On April 28, 2022, mother filed a notice of appeal.
On August 5, 2022, mother filed with this court an application to have a settled statement of the trial proceedings prepared. The grandparents objected, but this court granted mother's application and ordered her to prepare a settled statement and file it with the trial court.
On August 22, 2022, mother filed a proposed settled statement (APP-014) with the trial court. Item 2 of the form asked for the reasons for the appeal. Mother stated she did not agree "there was enough clear and convincing evidence to make several findings and orders in the final judgment" and there were "defects in the procedural handling of [the] matter from start to finish." She identified the following errors: (1) the trial court did not allow questioning of mother's bond with A.R., (2) the grandparents' trial exhibits were incomplete, (3) mother was ordered to disclose confidential documents pertaining to her reunification plan in the dependency case, (4) the issues with service led to unjust delays, (5) the permanent guardianship order improperly gave the grandparents sole discretion over visitation, and (6) there were procedural errors with the investigative report. Mother attached an 18-page summary of the testimony and evidence at trial.
On September 12, 2022, the grandparents filed a response to mother's proposed settled statement (APP-020), requesting mother's summary of the testimony and evidence at trial be stricken and replaced with an attached two-page summary. They argued mother's summary was inaccurate, omitted essential factual elements that supported the judgment, and included long narratives of mother's testimony that could not be verified. The grandparents also requested the trial court include the exhibits that were presented at trial with the record as they believed mother was attempting to submit documents on appeal that had not been submitted at trial.
On September 19, 2022, the trial court set a hearing on the proposed settled statement.
On September 21, 2022, the Honorable Alan K. Cassidy, the same judge who presided over the trial, conducted the hearing on the proposed settled statement. (We take judicial notice of the reporter's transcript of this proceeding pursuant to mother's request and Evid. Code, §§ 452, subd. (d), 459, subd. (a).) Mother appeared in propria persona. The grandparents appeared with their trial counsel, Mello, and their new attorney, Sarah Birmingham. The court noted there were documents included in mother's proposed settled statement that were not part of the original trial process. The court found mother's proposed settled statement contained "some inappropriate matters" and "a good bit of argument." The court explained the trial proceedings could not be augmented or supplemented by argument or evidence and the reviewing court was bound by the proceedings as they occurred. The court found the grandparents' proposed settled statement provided an accurate summary of the proceedings. However, mother objected to certain statements in the grandparents' statement. The court then allowed mother and attorney Birmingham time to confer so they could review the grandparents' proposed settled statement.
Before the parties conferred, the court informed Mello he could stay or exit the proceedings. Mello stated, "I'm not sure I can really add anything to these proceedings. I'm happy to standby [sic], but unless the Court has some questions to direct to me, I think that it's in Ms. Birmingham's capable hands." The court asked Birmingham and mother if they had any questions for Mello and they both stated they did not. Mello then exited the hearing.
After conferring, Birmingham said she had "a very pleasant discussion" with mother. She said they went through each individual paragraph of the grandparents' proposed settled statement, and she believed they had reached "some resolution," but there were a couple of issues they were requesting a decision on from the court. Birmingham offered to go through each paragraph in court so that mother could raise any issues. Mother was agreeable to that.
There were a total of 14 paragraphs in the grandparents' proposed settled statement. Mother had no objections to paragraphs 1, 2, 3, 6, 8, 9, 12, and 13. The court addressed issues with paragraphs 4, 5, 7, 10, 11, and 14. He heard mother's objections and heard both parties' points before offering a decision.
For example, mother did not agree with the language in paragraph 4, which stated, "The undisputed evidence presented at trial was that [mother] had not provided support for [A.R.] for more than one year. This evidence was obtained from the testimony of both [mother] and [Earl E.] during trial. [Mother] also testified that she received a $100,000 advance of her worker's compensation death claim for [A.R.'s] father during this time period. [Mother] testified that she had not used any of these funds for [A.R.] and had used most of the money for drugs, including prescription drugs and methamphetamine." Mother objected to the word "most" in the last sentence and requested it be substituted with the word "some," and Birmingham agreed to the change. The following colloquy ensued:
"THE COURT: Give me just a second please.
"Okay. I think my recollection is that sentence could be fairly modified to read '[mother] testified she had not used any of the funds for [A.R.] and had used the money for drugs including prescription drugs and methamphetamines and other non-child related matters.'
"[MOTHER]: Not what I testified to, though.
"THE COURT: Okay. Well, that was with respect sort of our problem not having a transcript. We were going to rely upon our respective memories.
"[MOTHER]: Well, I admitted to some of it but I never said I never used any money for her.
"THE COURT: Okay. [Mother], is there anything you wish to add just on that sentence?
"[MOTHER]: No.
"THE COURT: Ms. Birmingham.
"MS. BIRMINGHAM: [Mother] also-going with what [mother] had just said overall with the statement made in paragraph four, it's her memory that she testified that prior to the guardianship she had used some of those funds for the child. I told her I have no information about that. I didn't know that it was relevant, but I did tell her I would disclose that to the Court.
"THE COURT: Okay."
Ultimately, the last sentence of paragraph 4 was corrected to read exactly as mother had requested: "[Mother] testified that she had not used any of these funds for [A.R.'s] benefit and had used some of the money for drugs, including prescription drugs and methamphetamine." (Italics added.)
Mother did not agree with paragraph 5 either, which stated: "[Mother] testified that she had been sober since May 19, 2019. She also testified to a relapse and went into a program on May 29, 2019. [Mother] did not present any evidence that once she became sober she sought to modify or terminate the guardianship or reestablish contact with [A.R.] prior to the adoption petition and parental rights termination actions being filed. She testified that she attempted to do so in February 2020 after the current action had been filed." Mother stated she had filed text messages with the court showing she asked to see A.R. She said, "So it's not that I didn't do anything to not to reestablish contact. It was I didn't do anything in the court at that time." The court addressed mother's objection as follows:
"THE COURT: What's taking me a moment is that while my recollection is while [mother] did offer that she had tried to reconnect with [A.R.] her effort-I was not finding those to be productive or competent [sic]. Particularly based on the text messages, it did not appear to me to rise to the level as [mother] would interpret it.
"[MOTHER]: But is that going off of the portion of it or does that go off of all the text messages?
"THE COURT: It goes off of the text messages that I received. You know obviously, [mother], that I was not priv[y] to all of the communications that went on between the parties. I had only the evidence that was presented.
"On paragraph number five we're going to modify the second sentence. The second sentence will now read that '[Mother] did not present any evidence that once she became [sober], she sought to modify or terminate the guardianship and the court found that she had not made a competent effort to establish [c]ontact with [A.R.] prior to the adoption petition and parental rights termination action being filed.'
"And I'm going to modify the last sentence in the paragraph. In the last sentence I'm going to modify that to read 'she testified that she attempted to' and I will insert 'reestablish contact with [A.R.],' end of insert, 'in February 2020 after the current action had been filed.' [¶] Anything else on that paragraph, [mother]?
"[MOTHER]: No.
"THE COURT: Ms. Birmingham.
"MS. BIRMINGHAM: No. Number five, that summarizes everything."
The court addressed other issues in the same manner, making sure to obtain the parties' input. After going through each paragraph, the court asked mother, "[Is] there anything else you're asking the Court to do today?" Mother responded, "I would like more of the summary of what was testified to at trial, but I don't think that is going to happen today." Birmingham stated she had "[n]othing further." At the conclusion of the hearing, the court ordered Birmingham to prepare a corrected proposed settled statement incorporating the changes they addressed.
Two days after the hearing, the grandparents submitted the corrected settled statement. The trial court deemed the corrected settled statement an accurate summary of the testimony and evidence at trial and certified it for appeal.
DISCUSSION
I. Deficiencies with Mother's Opening Brief
Before we discuss mother's contentions on appeal, we pause to make note of deficiencies in mother's opening brief. Mother's opening brief raises multiple issues in a confusing and disjointed manner. It is replete with factual assertions unaccompanied by citations to the record, and so far as we can determine, are unsupported by the record. Further, her arguments are not properly developed, often lacking legal authority or meaningful analysis.
"'A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.'" (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) "It is the appellant's burden to demonstrate the existence of reversable error." (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 766.)
"To demonstrate error, appellant must present meaningful analysis supported by citations to authority and citations to facts in the record that support the claim of error." (In re S.C. (2006) 138 Cal.App.4th 396, 408.) With respect to citations to the record, the appellant must "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears." (Cal. Rules of Court, rule 8.204(a)(1)(C); further rule references are to the California Rules of Court.) "If a party fails to support an argument with the necessary citations to the record, that portion of the brief may be stricken and the argument deemed to have been waived." (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.) As the reviewing court, we will not perform an independent, unassisted review of the record in search of error or grounds to support the judgment. (McComber v. Wells (1999) 72 Cal.App.4th 512, 522.) The appellant must also cite to supporting legal authority and not merely make conclusory claims. (See City of Monterey v. Carrnshimba (2013) 215 Cal.App.4th 1068, 1094, fn. 23 ["We need not address ... claim[s] for which no supporting legal authority is provided"]; see also WFG National Title Ins. Co. v. Wells Fargo Bank, N.A. (2020) 51 Cal.App.5th 881, 894 [reviewing court "may disregard conclusory arguments that are not supported by pertinent legal authority"].)
Additionally, the appellant must "[s]tate each point under a separate heading or subheading summarizing the point ...." (Rule 8.204(a)(1)(B).) "This is not a mere technical requirement; it is 'designed to lighten the labors of the appellate tribunals by requiring the litigants to present their cause systematically and so arranged that those upon whom the duty devolves of ascertaining the rule of law to apply may be advised, as they read, of the exact question under consideration, instead of being compelled to extricate it from the mass.'" (In re S.C., supra, 138 Cal.App.4th at p. 408.) "Failure to provide proper headings forfeits issues that may be discussed in the brief but are not clearly identified by a heading." (Pizarro v. Reynoso (2017) 10 Cal.App.5th 172, 179.)
Nevertheless, we recognize the important interests at stake here for both mother and A.R. Accordingly, we will do our best to address mother's arguments to the extent we can reasonably discern them.
II. Settled Statement
Mother argues "the settled statement failed to follow all procedural guidelines pursuant to all subsections of ... rule 8.137." (Capitalization and emphasis omitted.) We disagree.
A. Legal Principles
"A settled statement is a summary of the superior court proceedings approved by the superior court." (Rule 8.137(a).) "An appellant may . use a settled statement as the record of the oral proceedings in the superior court, instead of a reporter's transcript" if "[t]he designated oral proceedings in the superior court were not reported by a court reporter." (Rule 8.137(a)-(b)(1)(A).) "The purpose of a settled statement is to provide the appellate court with an adequate record from which to determine contentions of error." (In re Marriage of Fingert (1990) 221 Cal.App.3d 1575, 1580.) An appellant's proposed settled statement must include "a statement of the points the appellant is raising on appeal," and "a condensed narrative of the oral proceedings." (Rule 8.137(d)(1)-(2).) "The condensed narrative must include a concise factual summary of the evidence and the testimony of each witness relevant to the points that the appellant states . are being raised on appeal." (Rule 8.137(d)(2)(A).)
A respondent may propose amendments to the proposed statement. (Rule 8.137(e)(1).) The judge may order a hearing if "there is a factual dispute about a material aspect of the trial court proceedings." (Rule 8.137(f)(1).) Within 10 days of the hearing, the trial court judge must either make corrections or modifications to the statement, or identify the necessary corrections and modifications and order the appellant to prepare a corrected statement. (Rule 8.137(f)(4)(B).) The "judge must not eliminate the appellant's specification of grounds of appeal from the proposed statement." (Rule 8.137(f)(5).) After addressing any disagreements about the contents of the statement and settling it, the trial court must then certify it for use on appeal. (Rule 8.137(h).)
When an appellant elects to proceed with a settled statement on appeal, "full and plenary powers over such a record is reposed in the trial judge, subject only to the limitation that he does not act arbitrarily." (Keller v. Superior Court (1950) 100 Cal.App.2d 231, 234, italics omitted.) "[W]hen the litigant fails to convince the trial judge that his [or her] proposed statement accurately reflects the proceedings in question, the action of the judge who heard and tried the case must be regarded as final." (Cross v. Tustin (1951) 37 Cal.2d 821, 826; see Burns v. Brown (1946) 27 Cal.2d 631, 634-635 [we do not determine if appellant's statement of evidence is accurate when the trial court found it was not].)
B. Analysis
Here, the record shows that after receiving mother's proposed settled statement and the grandparents' response, the trial court set a hearing to address their disputes. At the hearing, the court rejected mother's proposed settled statement because it was argumentative and contained inappropriate matters, but found the grandparents' proposed statement provided an accurate summary of the trial proceedings. The parties conferred and addressed disagreements mother had with the grandparents' proposed settled statement. Although they were able to resolve many of their issues, they requested a decision on some remaining contentions. The court went through all 14 paragraphs of the statement with the parties, heard their objections, offered changes to the language based on its recollection of the proceedings, and solicited input from both parties. The court then instructed Birmingham to prepare and file a corrected statement. After receiving and reviewing the grandparent's corrected statement, he deemed it an accurate summary of the evidence and testimony at trial and certified it as such.
Mother does not articulate how the settled statement fails to conform with "all subsections" of rule 8.137. From what we can discern, mother raises two complaints: (1) she did not have an opportunity to object to the grandparents' corrected statement because she was not served with a copy of it in violation of rule 8.137(g)(1), and (2) the trial court eliminated her specification of grounds for appeal in violation of rule 8.137(f)(5).
Rule 8.137(g)(1) provides: "If [after a hearing on the proposed settled statement] the trial court judge orders the appellant to prepare a statement incorporating corrections and modifications, the appellant must serve and file the corrected or modified statement within the time ordered by the court." (Italics added.) However, in the present case, the court did not order mother to prepare a corrected statement. Regardless, even if it was error not to serve mother with the corrected statement after the hearing and before certification, the court had already heard and addressed mother's objections. Both parties had ample opportunity to be heard. In her opening brief, mother admits she "raised several objections" at the hearing and "made it known" that she did not agree with the statements. On appeal, mother raises the same issues the court had already addressed at the hearing. Mother proposes certain testimony should have been included and many details were left out.
As previously noted, when the appellant "fails to convince the trial judge that his [or her] proposed statement accurately reflects the proceedings in question, the action of the judge who heard and tried the case must be regarded as final" (Cross v. Tustin, supra, 37 Cal.2d at p. 826, italics added), unless the judge acted arbitrarily. (Keller v. Superior Court, supra, 100 Cal.App.2d at p. 234.) "[The judge's] familiarity with the trial and knowledge of what took place there make him uniquely qualified to determine what the evidence was and whether it has been correctly stated." (Burns v. Brown, supra, 27 Cal.2d at p. 636.) "In excluding statements on that ground [that they are not objective or truthful,] a trial judge is not refusing to perform his duty in settling the statement; he is simply insisting that the proposed statement is incorrect and should be revised to present an accurate picture of the proceedings." (Id. at p. 634.)
Comparing the transcript of the hearing to the certified settled statement itself, it is clear Birmingham corrected the language almost exactly as articulated by the court at the hearing. The circumstances would be different if the certified settled statement included changes mother never had the opportunity to object to, but that is not the case here. Thus, any error in failing to serve mother the corrected statement prior to its certification was harmless.
We also find mother's argument that the court eliminated her specification of grounds of appeal unpersuasive. (Rule 8.137(f)(5).) Mother argues "[t]here were countless occurrences in the hearing in which [she] states that points she intended to raise on appeal had been left out of the [grandparents'] version of the settled statement." Mother provides no citation to the record of these "countless occurrences." On the contrary, the statements in the certified settled statement go directly to the points mother intended to raise on appeal. For example, the settled statement addressed the evidence presented at trial pertaining to the elements of abandonment under section 7822 (whether she had been in contact with A.R. or provided for her support). Mother agreed to many of those statements.
Accordingly, we conclude the trial court judge did not act arbitrarily in settling the statement.
III. Ineffective Assistance of Counsel
Mother next contends she received ineffective assistance of counsel because trial counsel failed to present certain evidence at trial or elicit certain testimony. Mother's argument is not supported by any legal authority and relies on facts not contained in the record. Essentially, mother makes a conclusory claim of ineffective representation and offers a list of things counsel "should have" done.
Because mother does not "develop the argument with any legal analysis or citation to legal authority or to the record, and [does] not make any attempt to support the contention[s] by discussing the application of relevant legal authority to the facts of this case[,] [w]e ... consider the argument forfeited." (Gerlach v. K. Hovnanian's Four Seasons at Beaumont, LLC (2022) 82 Cal.App.5th 303, 311-312.)
IV. Section 7851 Investigative Report
Mother further argues the investigative report failed to comply with the content requirements of former section 7851. We disagree.
A. Legal Principles
In proceedings under both section 7822 and Probate Code section 1516.5, an investigative report must be rendered to the trial court with a recommendation of the proper disposition. (Former § 7851, subd. (a); Prob. Code, § 1516.5, subd. (b).) The report must include: "(1) A statement that the person making the report explained to the child the nature of the proceeding to end parental custody and control. [¶] (2) A statement of the child's feelings and thoughts concerning the proceeding. [¶] (3) A statement of the child's attitudes towards the child's parents and particularly whether or not the child would prefer living with the parent . . .. [¶] (4) A statement that the child was informed of the child's right to attend the hearing on the petition and the child's feelings concerning attending the hearing." (Former § 7851, subd. (b)(1)-(4).) "If the age, or the physical, emotional, or other condition of the child precludes the child's meaningful response to the explanations, inquiries, and information required by subdivision (b), a description of the condition shall satisfy the requirement of that subdivision." (Former § 7851, subd. (c).) "The court shall receive the report in evidence and shall read and consider its contents in rendering the court's judgment." (Former § 7851, subd. (d).) "The 'statutory purpose of the report is to inform the court of the best interests of the child.'" (In re Noreen G. (2010) 181 Cal.App.4th 1359, 1380 (Noreen G.).) The focus is "on obtaining the 'child's feelings and thoughts' on the proceeding as a means of evaluating the child's best interests." (Ibid.)
B. Analysis
Although mother did not object to the adequacy of the investigative report below, we exercise our discretion to review its sufficiency. (Noreen G., supra, 181 Cal.App.4th at pp. 1379-1380 [although parents "forfeit[] their right to complain of inadequacies in the report by failing to object at trial," a reviewing court can exercise its discretion to review its sufficiency].) We note mother's argument consists of a conclusory claim that nearly "each and every aspect" of the statutory requirements were "neglected and missing" from the report. Mother does not develop her argument or explain how these alleged deficiencies prejudiced her. Instead, she primarily focuses on rebutting the grandparents' statements contained in the report. We now turn to mother's claim.
The investigative report summarized Dr. Lange's interview with A.R. A.R. had little to no recollection of mother, whom she had not had contact with in approximately three years. She said she did not remember "'mom Amanda'" and did not know if she wanted to see her. A.R. expressed no interest in participating in the proceedings. The report did not specifically state Dr. Lange explained the proceedings to A.R. (former § 7851, subd. (b)(1)) or that she was informed of her right to attend the hearing (former § 7851, subd. (b)(4)). However, in stating A.R. "did not express interest in being included in a court hearing," it may be inferred Dr. Lange explained the proceedings to her and informed her of the right to attend. Moreover, the report included a statement about A.R.'s attitude towards mother-she did not remember her and was not sure if she wanted to see her. (Former § 7851, subd. (b)(3).)
Mother also argues Dr. Lange's recommended disposition was inadequate. In his report, Dr. Lange recommended mother's rights not be terminated, but also recommended a decision on the petition should be deferred pending the outcome of mother's dependency case. Dr. Lange then provided a clear disposition-if mother reunified with Gavin within six months, he recommended parental rights not be terminated. If mother did not reunify, then he recommended termination proceed.
Mother contends Dr. Lange's recommendation of deferring a decision on the petition for six months violated section 7870, which requires judicial proceedings to terminate parental rights be fully determined as expeditiously as possible. (§ 7870, subd. (a).) We note mother's argument is undeveloped and fails to provide any meaningful analysis.
In Noreen G., supra, 181 Cal.App.4th at page 1380, the court found "the failure of the report to provide a recommendation of the proper disposition constitutes procedural noncompliance with the statute." There, the investigator deferred "formal recommendation on the petition until the hearing and therapeutic evaluation of the minors were completed." (Id. at p. 1379.) In other words, the investigative report did not include a recommendation on the disposition of the matter. (Id. at p. 1380.) The circumstances differ here because Dr. Lange did provide a recommended disposition- that mother's rights not be terminated. Admittedly, Dr. Lange's recommendation was confusing because he followed up with a second recommendation that a decision on the petition be postponed pending the outcome in the dependency case-but, even so, he did articulate a recommended disposition for both possible outcomes. Thus, the report did include a recommended qualified disposition for the case.
Regardless, the record shows the trial court interpreted the report in mother's favor. At the hearing on the proposed settled statement, mother raised an objection to language in the settled statement that pertained to the investigative report. The trial court responded, "[T]he report is actually in your favor. So I cannot recall and cannot think of any reason why that would be objected to, the report offered." Thus, even if the report contained an inadequate recommendation on the proper disposition of the case, mother was not prejudiced by the error.
V. Service by Publication and Service Issues
Next, mother contends she was denied due process of law because she was not properly served. Additionally, she argues the grandparents obtained an order for publication through false information without a showing of due diligence to locate her. We disagree.
A. Legal Principles
Section 7881, subdivision (a), provides that "[n]otice of the proceeding shall be given by service of a citation on the [parent] of the child, if the place of residence of the [parent] is known to the petitioner. If the place of residence of the [parent] is not known to the petitioner, then the citation shall be served on the grandparents and adult brothers, sisters, uncles, aunts, and first cousins of the child, if there are any and if their residences and relationships to the child are known to the petitioner."
"If the parent of the child ... cannot, with reasonable diligence, be served as provided for in Section 7881, or if the parent's place of residence is not known to the petitioner, the petitioner or the petitioner's ... attorney shall make and file an affidavit stating the name of the parent . . . and their place of residence, if known to the petitioner, and the name of the parent . . . whose place of residence is unknown to the petitioner." (§ 7882, subd. (a); see In re Beebe (1974) 40 Cal.App.3d 643, 646 "[A] showing of due diligence to locate and serve the parent [is] a prerequisite to [obtaining] an order for service ... by publication"].) "Upon the filing of the affidavit, the court shall make an order that (1) the service shall be made by the publication of a citation requiring the parent . . . to appear at the time and place stated in the citation and (2) the citation shall be published pursuant to Section 6064 of the Government Code in a newspaper to be named and designated in the order as most likely to give notice to the parent . . . to be served." (§ 7882, subd. (b).) "Service is complete at the expiration of the time prescribed by the order for publication or when service is made as provided for in Section 7881, whichever event first occurs." (§ 7882, subd. (e).)
B. Analysis
The record shows the grandparents filed the petition to terminate parental rights in February 2020. That same month, they hired a licensed private investigator to serve mother at her last known address on Carpenter Road. He attempted to serve her three times in February 2020 but was unsuccessful. In March 2020, the grandparents attempted to effectuate service by serving "Edith and Jeff R[.]" with the petition by mail. (§ 7881, subd. (a) ["If the place of residence of the [parent] is not known to the petitioner, then the citation shall be served on the grandparents and adult brothers, sisters, uncles, aunts, and first cousins of the child, if there are any and if their residences and relationships to the child are known to the petitioner"].) Finally, in July 2020, after repeated unsuccessful attempts to serve mother, the grandparents filed an application to serve her by publication.
The record does not disclose who these individuals are, but they share a common last name with A.R. and father. Therefore, they appear to be paternal family members.
In their application, the grandparents attached a declaration of due diligence signed by the private investigator detailing his attempts to serve her at her last known address. The grandparents stated mother's last known address was the Carpenter Road address where their investigator tried to serve her, and that they last had contact with her in April 2019. By hiring a private investigator for the sole purpose of serving her shows the grandparents exercised due diligence. (See In re Beebe, supra, 40 Cal.App.3d at p. 646 [due diligence requires more than a conclusory allegation that the parent's address is unknown].) Mother claims the grandparents had her address and "knew of an exact location in which [she] should be present" are not supported by the record. Moreover, mother's suggestion that she could have been served at a hearing in June 2020 is also unsupported by the record. Mother appears to argue she was physically present at that hearing and cites to the minute order. However, the minute order does not reflect mother was present at that hearing. Mother's first appearance in court was in August 2020.
In any event, mother received proper notice of the proceedings when the grandparents' private investigator personally served her at her residence after she provided her address in court and agreed to accept service there. (§ 7882, subd. (e) ["Service is complete at the expiration of the time prescribed by the order for publication or when service is made as provided for in Section 7881, whichever event first occurs"].) Thus, we find mother received proper notice of the proceedings.
VI. Continuances
Mother also contends the grandparents caused repeated continuances in the proceedings, which led to unnecessary and improper delays. We disagree.
"It is the public policy of this state that judicial proceedings to declare a child free from parental custody and control shall be fully determined as expeditiously as possible." (§ 7870, subd. (a).) "Notwithstanding any other provision of law, a proceeding to declare a child free from parental custody and control pursuant to this part shall be set for hearing not more than 45 days after the filing of the petition." (§ 7870, subd. (b).) "If any interested person appears to contest the matter, the court shall set the matter for trial. The matter so set has precedence over all other civil matters on the date set for trial." (Ibid.) The court may continue the proceeding for good cause. (§§ 7870, subd. (c), 7871.)
Here, the initial hearing on the petition was set for April 2, 2020. However, the trial court, on its own motion, continued the hearing due to the COVID-19 pandemic. Continuances due to COVID-19 have been held to constitute good cause. (People v. Breceda (2022) 76 Cal.App.5th 71, 92-93.) Thereafter, the hearing was continued three times to perfect service and three times for the completion of an investigative report. Once a trial date was set, it was continued once over the grandparents' objection, but mother did not object. Nothing in the record suggests the grandparents requested or were at fault for any of the continuances, and at no time did mother object to the continuances. On the contrary, the only request for a continuance from the parties themselves came from mother's attorney so that she could prepare for trial because she had been unable to make contact with mother. However, the trial court denied her request. Mother provides no authority to support a conclusion that continuances to perfect service or for the completion of a section 7851 investigative report do not constitute good cause. Both notice and an investigative report are crucial in a proceeding to terminate parental rights. Mother's claim, unsupported by legal authority, is without merit.
Mother suggests the continuances related to the investigative report can be attributed to the grandparents because they did not contact Dr. Lange in a timely manner. The record does not support such a claim. The only relevant information in the record is that in November 2020 the trial court continued a hearing because the investigative report had not been completed. The minute order noted, "The Court has been made aware that parties only recently contacted Dr. Lange, and a [section] 7851 evaluation has not yet occurred." However, there is no information as to who "the parties" refers to. It could have included mother.
VII. Permanent Guardianship Order
Finally, mother challenges the order granting permanent guardianship because it gave the grandparents sole discretion over mother's visitation; however, the time for appellate review of this order has passed. "An order granting the letters of guardianship is final and appealable under Probate Code section 1301, subdivision (a). [Citation.] A notice of appeal must ordinarily be filed 60 days after the date of service of a notice of entry of judgment or 180 days after entry of judgment." (Adoption of Myah M. (2011) 201 Cal.App.4th 1518, 1531.) Here, the order granting letters of permanent guardianship was issued in November 2018. Therefore, mother's challenge to the guardianship order is untimely and we do not have jurisdiction to review that order.
DISPOSITION
The trial court's judgment terminating parental rights is affirmed.
WE CONCUR: SMITH, J., DE SANTOS, J.