Opinion
A166644
08-02-2023
In re X.G. et al., Persons Coming Under the Juvenile Court Law. v. C.D., Defendant and Appellant. HUMBOLDT COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent,
NOT TO BE PUBLISHED
(Humboldt County Super. Ct. Nos. JV2200139, JV2200140)
BANKE, J.
In September 2022, the Humboldt County Department of Health and Human Services (Department) filed a juvenile dependency petition alleging that C.D.'s (mother) children, X.G. and R.G., were at risk under Welfare and Institutions Code section 300, subdivisions (b)(1) and (c). At the time of filing, father and minors had moved from the family home to a confidential location. Meanwhile, mother's whereabouts were unknown, although she was believed to be camping in her car in the area.
Detention, jurisdiction, and disposition hearings were held in September and October, respectively. Mother did not appear, but her counsel did. At each hearing, the juvenile court determined the Department had provided notice of the hearings as required by law-that is, it had made substantial efforts to locate mother and provide the statutorily specified notice-and counsel made no objection. The court eventually granted father sole legal and physical custody of the children and ordered no reunification services or supervised visits for mother.
On appeal, mother complains she did not receive the statutorily required notice for the detention, jurisdiction, and disposition hearings and therefore her statutory and constitutional due process rights were violated. We conclude mother forfeited her challenges to notice and further conclude she has failed to establish ineffective assistance of counsel (IAC), and accordingly affirm the challenged orders.
BACKGROUND
Detention Hearing
Welfare and Institutions Code section 290.2 states, "Upon the filing of a petition by a probation officer or social worker, the clerk of the juvenile court shall issue notice, to which shall be attached a copy of the petition." Such notice may not be served electronically. (Id., subd. (c)(3).) When, as here, a parent does not have custody of the minor, notice is to be given at least 10 days prior to the date of the hearing. (Id., subd. (c)(2).) The notice must include the date, time, and place of the hearing, and the name of the child. (Id., subds. (d)(1)-(2).)
All further statutory references are to the Welfare and Institutions Codes unless otherwise indicated.
There is no dispute the Department did not comply with these statutory requirements. But this was not for want of trying to locate mother.
The detention report stated mother was "noticed of the hearing and provided Juvenile Court Zoom instructions on 09/02/2022" (six days before the hearing) and that the instructions were delivered via "text."
The subsequent jurisdiction report further explained that the day before the detention hearing, two social workers "drove around Arcata for approximately one hour trying to locate [mother]. [The social workers] drove to all the possible daycares in Arcata per the description from [father] of the mother's possible location. [The social workers] were unable to locate her." In addition, that same day, one of the social workers "called the second number provided for the mother. A woman answered the phone. [The social worker] asked if she was speaking to [mother]. The woman confirmed she was [mother]. [The social worker] asked if she could meet and she said no, she was working. [The social worker] asked if it was a good time to talk and she said no, she was working. [The social worker] asked when she would be off of work but she was unable to provide a time. [The social worker] asked if she could call back after 05:00pm and she said she would be off work then." At approximately 5:15 p.m., the social worker tried calling mother at the "number she had answered earlier that day," but the "phone went directly to voicemail." The social worker then sent mother photos of the court information for the detention hearing.
Father had told the social workers mother was not at the family home and he believed she was camping in her car.
At the detention hearing, at which mother's counsel was present, the social worker stated, "[t]he Department did attempt to notice the mother; and we were unable to notice her in person of today's hearing. We did send a text message to her phone after we contacted her yesterday; and she indicated she was at work and was unable to speak with us, so I'm not sure she had notice of today's hearing. And I just wanted to make sure everybody knew that." Mother's counsel then stated, "Your Honor, I'll acknowledge receipt of the petition and the detention report, though I'm not able to defer on my client's behalf.... I have not had direct contact with her. And it appears . . . [the social workers] haven't had direct contact with her either. That being said, being that she's not here this morning, I would ask that the Court follow what the Department originally outline in their detention report, which is to provide supervised visitation."
The court declined to order visitation at that time and found "notice of the hearing today was given as required by law," i.e., that the Department had made reasonable efforts to locate her and provide statutory notice. Mother's counsel made no objection.
Jurisdiction Hearing
Section 291 states that after the initial hearing, the clerk of the court shall notice the required persons of the jurisdiction hearing. (§ 291.) If the child has been detained, as in the instant case, the notice shall be given as soon as possible, and at least five days before the hearing. (Id., subd. (c)(1).) If the child is detained and the persons required to be noticed are not present at the initial hearing, they shall be noticed by personal service or by certified mail, return receipt requested. (Id., subd. (e)(1).) The notice shall include a copy of the petition, and information such as the nature of the hearing and the date, time and place of hearing. (Id., subd. (d)(1)-(7).)
Again, there is no dispute the Department did not comply with these statutory requirements. But again, this was not for want of trying to locate mother.
At a pretrial hearing 10 days before the jurisdiction hearing, counsel for the Department and mother's counsel apprised the court of the efforts to contact mother. Counsel for the Department reported that a social worker and her supervisor "tried to contact the mother on or about September 7th and the mother informed them she was at work and could not talk.... On September 9th, [the social worker] also tried to contact the mother by phone. The mother did answer, but hung up after [the social worker] explained why she was calling and identified herself being from the Department. No one has heard from the mother since." Mother's counsel stated, "I have not been able to make direct contact or get direction from my client."
The jurisdiction report similarly recounted that on "09/20/2022, [the social worker] called the number listed for the mother and left a voicemail." The social worker "left her name and number in the voicemail and stated that the number was able to receive texts and calls."
The record also establishes mother was noticed of the jurisdiction hearing on September 22, 2022, via first class mail sent to her last address. The notice included the date, time, and location of the jurisdiction hearing. A copy of the petition was not attached.
At the jurisdiction hearing, mother's counsel continued to report she had "no contact or direction from this mother since my appointment. It seems the Department has also been trying to get in touch with her and have had little to no luck."
The court again found mother had received notice of the jurisdiction hearing as required by law. Mother's counsel made no objection.
Disposition Hearing
The statutory notice requirements that applied to the jurisdiction hearing also applied to the disposition hearing. Namely, where the child has been detained, notice shall be given as soon as possible, or at least five days before the hearing via personal service or by certified mail, return receipt requested. (§ 291, subds. (c)(1), (e)(1).) The notice shall include the nature of the hearing, the date, time, and place of the hearing, and a copy of the petition, among other details. (Id., subd. (d)(1)-(7).)
The disposition report stated that "[o]n or about 10/06/2022, [two social workers] went to an address that law enforcement had provided [social worker] as a possible address for the mother." However, the "address belonged to the maternal grandmother" and "[t]he maternal grandmother stated that the mother is aware that CWS has been attempting to contact her." Thereafter, an absent parent search was initiated on or about October 17, 2022, to locate mother but it was unsuccessful.
At the disposition hearing, father's counsel observed "[w]e know she's in the community. [Father]'s seen her out and about."
The court found "there's clear and convincing evidence that the whereabouts of the mother remains unknown," and as before, concluded she had received the notice required by law.
DISCUSSION
"In juvenile dependency proceedings' "[n]otice is both a constitutional and statutory imperative,"' with the constitutional dimension requiring' "notice that is reasonably calculated to advise [a parent] an action is pending and afford them an opportunity to defend." '" (In re A.H. (2022) 84 Cal.App.5th 340, 363.)
The state has a "constitutional duty to exercise reasonable diligence" to locate a parent if their "whereabouts are unknown." (In re A.H., supra, 84 Cal.App.5th at p. 369, italics added.)" 'The child welfare agency must act with diligence to locate a missing parent. [Citation.] Reasonable diligence denotes a thorough, systematic investigation and an inquiry conducted in good faith.' [Citation.] 'However, there is no due process violation when there has been a good faith attempt to provide notice to a parent who is transient and whose whereabouts are unknown for a majority of the proceedings.'" (In re R.A. (2021) 61 Cal.App.5th 826, 835-836; see In re A.H., supra, at p. 369 [" '[R]easonable diligence "denotes a thorough, systematic investigation and an inquiry conducted in good faith." [Citation.] It includes searching not only "standard avenues available to help locate a missing parent," but" 'specific ones most likely, under the unique facts known to the [Agency], to yield [a parent's] address.'"' "].)
If a parent cannot be located despite reasonable search efforts, due process notice requirements will be deemed to have been met and failure to give actual notice will not render the proceedings invalid. (In re Melinda J. (1991) 234 Cal.App.3d 1413, 1418-1419.)
Which standard of prejudice applies where notice has been found to be deficient is "an issue on which the appellate courts are divided (compare [In re] J.R. [(2022)] 82 Cal.App.5th [569,] 591; [In re] Mia M. [(2022)] 75 Cal.App.5th [792,] 806; In re Marcos G. (2010) 182 Cal.App.4th 369, 387 . . .; In re J.H. (2007) 158 Cal.App.4th 174, 183-184 . . .; In re Justice P. (2004) 123 Cal.App.4th 181, 193 . . . [applying Chapman standard] with In re A.J. (2019) 44 Cal.App.5th 652, 665-666 . . .; [In re] Daniel F. [(2021)] 64 Cal.App.5th 701, 716 [applying Watson standard])." (In re A.H., supra, 84 Cal.App.5th at p. 372.)
Chapman v. California (1967) 386 U.S. 18, 24 (error must be harmless beyond a reasonable doubt).
People v. Watson (1956) 46 Cal.2d 818, 836 (it is reasonably probable that absent the error the defendant would have received a more favorable result).
Forfeiture
The Department maintains we need not, and should not, reach the merits of mother's complaints about notice because her counsel appeared at the hearings at issue and made no objection that the Department had failed to make reasonable efforts to locate and notice mother pursuant to the applicable statutes.
And, indeed, failure to object to assertedly deficient notice is a well-recognized ground of forfeiture. "An appellate court ordinarily will not consider challenges based on procedural defects or erroneous rulings where an objection could have been but was not made in the trial court. [Citation.] Dependency cases are not exempt from this forfeiture doctrine. [Citations.] The purpose of the forfeiture rule is to encourage parties to bring errors to the attention of the juvenile court so that they may be corrected." (In re Wilford J. (2005) 131 Cal.App.4th 742, 754; see In re S.B. (2004) 32 Cal.4th 1287, 1293, superseded by statute on other grounds as stated in In re S.J. (2008) 167 Cal.App.4th 953, 962 [given paramount importance of permanency and stability for children in dependency proceedings, "appellate court's discretion to excuse forfeiture should be exercised rarely and only in cases presenting an important legal issue"].)
Thus, the forfeiture rule has been applied specifically to claims of defective notice in dependency proceedings. (See, e.g., In re B.G. (1974) 11 Cal.3d 679, 689 [absence of notice of jurisdictional hearing in violation of mother's due process rights was forfeited on appeal where mother appeared with counsel at subsequent hearings and failed to raise the issue]; In re Wilford J., supra, 131 Cal.App.4th at p. 754 [father forfeited claim of defective jurisdictional notice where he appeared at dispositional hearing with counsel and did not object]; Marlene M. v. Superior Court (2000) 80 Cal.App.4th 1139, 1149 [mother's failure to object to proceeding with dispositional hearing waived defective notice claim on appeal].)
Here, mother was represented by counsel who was fully apprised of the Department's efforts to locate her and give statutory notice. Counsel also appeared at each of the hearings but made no objection, either orally or by way of motion, that the Department's notice efforts were fatally deficient.
Pointing out that she claims deficient notice violated her constitutional due process rights, as well as her statutory rights, mother asks that we exercise our discretion to reach the merits of her notice claims even if we would otherwise deem them forfeited. She asserts the alleged defects in notice present a legal issue based on undisputed facts.
It is true that forfeiture is not automatic, and appellate courts have discretion to excuse a party's failure to properly raise an issue in a timely fashion. (In re S.B., supra, 32 Cal.4th at p. 1293; In re Wilford J., supra, 131 Cal.App.4th at p. 754.) However, we are hard pressed to do so here.
"[I]n dependency proceedings, where the well-being of the child and the stability of placement is of paramount importance," an appellate court's discretion to excuse forfeiture" 'should be exercised rarely.'" (Wilford J., supra, 131 Cal.App.4th at p. 754; see In re S.B., supra, 32 Cal.4th at p. 1293.) Accordingly, "when a parent had the opportunity to present [a notice] issue to the juvenile court and failed to do so, appellate courts routinely refuse to exercise their limited discretion to consider the matter on appeal. This is precisely because defective notice and the consequences flowing from it may easily be corrected if promptly raised in the juvenile court." (Wilford J. at p. 754.)
Furthermore, far from being a purely legal issue, whether mother received constitutionally adequate notice of the hearings, i.e., whether the Department made reasonable efforts to locate and serve her, is a factual question that may not have been adequately developed in the court below. We know mother was aware the children had been detained and a dependency action had been initiated. We know mother was aware the Department was trying to contact her. And, indeed, we know the Department actually did contact her by phone and asked her to call back, which she never did. We do not know, however, the particulars of what else mother might have known or what she may have faced, although she plainly was given the opportunity to, and was expressly asked to, contact the Department.
We therefore conclude mother forfeited her claims of deficient notice of the detention, jurisdiction and disposition hearings.
In her closing brief, mother asserts In re Janee J. (1999) 74 Cal.App.4th 198, held that "a defect in notice that violates due process is not subject to forfeiture." The case holds no such thing. It involved an appeal from a termination of parental rights, wherein the mother raised a multitude of issues. (Id. at pp. 205-206.) Among other things, the Court of Appeal discussed and applied the "waiver rule" to all issues the mother could have raised had she appealed from prior appealable orders. (Id. at pp. 206-209.) In responding to the mother's claim that the "waiver rule" means any claim of ineffective assistance of counsel is foreclosed, impairing her due process right to competent representation, the court explained the rule is not absolute and a court can choose not to apply it where errors by counsel so "fundamentally undermined the statutory [dependency] scheme . . . that the parent would have been kept from availing himself or herself of the protections afforded by the scheme as a whole." (Id. at p. 208.) The court went on to conclude none
Ineffective Assistance of Counsel (IAC)
Anticipating that we might well conclude mother forfeited her complaints about the adequacy of the Department's notice efforts, mother advances an IAC claim based on her counsel's failure to object.
"To establish ineffective assistance of counsel in dependency proceedings, a parent 'must demonstrate both that: (1) his appointed counsel failed to act in a manner expected of reasonably competent attorneys acting as diligent advocates; and that (2) this failure made a determinative difference in the outcome, rendering the proceedings fundamentally unfair in that it is reasonably probable that but for such failure, a determination more favorable for [the parent's] interests would have resulted.' [Citations.] In short, [the] appellant has the burden of proving both that his [or her] attorney's representation was deficient and that this deficiency resulted in prejudice." (In re Dennis H. (2001) 88 Cal.App.4th 94, 98, capitalization omitted; accord, In re Daisy D. (2006) 144 Cal.App.4th 287, 292-293; In re Diana G. (1992) 10 Cal.App.4th 1468, 1479.)
Thus, to prove deficient representation, mother" 'must "affirmatively show that the omissions of defense counsel involved a crucial issue, and that the omissions cannot be explained on the basis of any knowledgeable choice of tactics." '" (In re Dennis H., supra, 88 Cal.App.4th at pp. 98-99; In re Daisy, supra, 144 Cal.App.4th at p. 293.) Moreover, where, as here, "counsel's trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless of the mother's claims fell within this exception, including her claim that she failed to receive timely formal notice, as statutorily required, that her parental rights could be terminated within six months if she failed to comply with the reunification conditions and requirements imposed by the court. (Id. at pp. 209-210.) there could be no conceivable reason for counsel's acts or omissions." (People v. Weaver (2001) 26 Cal.4th 876, 926.)
There are any number of sensible reasons why mother's counsel did not object to lack of statutorily required notice, none of which are dispelled by the record. Counsel may have been aware of evidence mother had actual notice, or that, even if she had received statutorily proper notice, she would not have appeared. Counsel may also have been convinced that had mother appeared, the juvenile court's rulings would not have been any different than they were. Notably, mother does not challenge on appeal the merits of any of the court's substantive rulings. In other words, even assuming the notice provided by the Department did not comply with all statutory requirements and its efforts to locate mother were insufficient, mother's counsel may have been convinced mother's presence would not have been to her benefit in any significant respect.
Moreover, even were we to assume counsel's failure to object constituted so great an error that the representation fell below an objective standard of reasonableness under prevailing professional norms, reversal would not be appropriate because mother has failed to demonstrate a reasonable probability that such an objection would have resulted in a more favorable outcome for her. (See In re Daisy, supra, 144 Cal.App.4th at pp. 293-294; In re Diana G., supra, 10 Cal.App.4th at p. 1479.) It is not enough for mother to speculate her attorney's supposed errors could have had some conceivable effect on the outcome of the proceeding. Rather, she must show"' "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" " (In re Dennis H., supra, 88 Cal.App.4th at p. 103; accord, In re Jackson W. (2010) 184 Cal.App.4th 247, 261.)
Mother has made no showing in this regard. Nor is this surprising given the record before the juvenile court.
DISPOSITION
The juvenile court orders are AFFIRMED.
We concur: Humes, P.J., Margulies, J.