Opinion
D041585.
7-15-2003
In re A. B., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. TAMI B., Defendant and Appellant.
Tami B., the mother of A. B., appeals the termination of her parental rights pursuant to Welfare and Institutions Code section 366.26. Tamis primary contention is she was denied due process by the juvenile courts failure to give her proper notice with respect to (1) the contested jurisdictional/dispositional hearing and (2) her right to challenge the order setting the section 366.26 hearing (setting order) by extraordinary writ review. Tami also contends the court erred in denying her request for continuance of the jurisdictional/dispositional/referral hearing.
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
A single contested hearing was held on July 11, 2002, on the issues of jurisdiction, disposition and whether the case should be referred to a permanency planning hearing. At the July 11 hearing, the court determined the case should be referred to a permanency planning hearing and set a date for the hearing.
We affirm.
PROCEDURAL AND FACTUAL BACKGROUND
In May 2002, Tami gave birth to A.B. The following day a hospital hold was placed on A.B. because of a positive toxicology screen for cocaine and marijuana. Tami tested positive for cocaine when A.B. was born and during a prenatal visit in February. Tami admitted to social workers that she used drugs during the pregnancy.
A.B. was Tamis seventh child. Two of the other children also tested positive at birth. Tami, who had a history of criminal offenses including prostitution and drug possession, failed to reunify with any of her previous six children.
In 1996 one of these children, who was born with a positive toxicology for cocaine, died of sudden infant death syndrome just shy of his one-month birth date. After the death, Tamis three other children were removed. One child was placed with her father. Tami failed to reunify with the other two children after 18 months of services; they are in long-term foster care. Another child, born with a positive toxicology for cocaine in December 1998, was adopted. Tami relinquished her parental rights to her sixth child, born in 2000.
On May 30, the San Diego County Health and Human Services Agency (Agency) filed a petition under section 300, subdivision (b), alleging A.B. was at risk because of her mothers substance abuse and the whereabouts of her father were unknown. Tami was present at the detention hearing the same day, when the court appointed counsel for her, ordered A.B. to be detained in an out-of-home placement, referred Tami to SARMS and drug court, and ordered supervised visitation. The court scheduled a jurisdictional/dispositional hearing for June 24. Pursuant to section 316.1, Tami provided the court with a mailing address — the residence of the maternal grandmother.
Agency recommended no services be provided to Tami with an assessment for adoption or permanent placement. Tami did not appear at the June 24 hearing, but was represented by counsel, who requested a trial be set. The court found notice was given as required by law; counsel did not object to this finding. The contested hearing was set for July 11. The certificate of service for the minute order of the June 24 hearing does not show Tami was served personally or by mail.
Tami did not appear in court on July 11. Tamis counsel indicated he had spoken with Tami the previous day and expected her to attend the proceeding. The court denied counsels request for a continuance and found notice was given as required by law. Counsel did not object to the notice finding. After taking judicial notice of the court files of A.B. s siblings, the court sustained the petition by clear and convincing evidence, ordered no reunification services were to be provided to Tami pursuant to section 361.5, subdivisions (b)(10) and (13), and scheduled a permanency planning hearing for November 6. A copy of the minute order of the July 11 hearing was mailed to Tami at the maternal grandmothers address. After noting the court ordered a section 366.26 hearing, the minute order stated: "The parties are advised that the purpose of such hearing is to implement a permanent plan for said child of long-term foster care, guardianship, or adoption. The parties are further advised that a petition for extraordinary writ review must be filed in order to preserve any right to appeal the findings and orders made by the court in setting a hearing pursuant to section 366.26 of the Welfare and Institutions Code."
In August, Tamis whereabouts became unknown. On August 12, the maternal grandmother told a social worker that Tami stopped living there on July 17. The social workers attempts to locate Tami were unsuccessful, and on September 9 the worker signed a declaration of due diligence detailing her attempts. Agency also searched for Tami through several local and statewide database systems and with the United States Post Office.
On September 11, Agency served Tami, through counsel, notice of the permanency planning hearing by certified mail and return receipt. On September 12, the court issued an Order for Notice on Counsel of Record, finding Tami could not, with reasonable diligence, be served in any other manner.
Throughout the dependency, Tami had only two visits with A.B. since detention. Meanwhile A.B. was developing normally, with no health or behavioral problems. Agencys adoption assessment worker opined A.B. was likely to be adopted based on her age, good health, and normal development. A.B. s foster family had applied to adopt her and there were 34 approved prospective families who would be interested in adopting a child like A.B..
Tami appeared with counsel in court on November 6. The court found notice was given as required by law, and ordered Tami to return for the section 366.26 hearing on January 13, 2003. Tami was personally served notice of the continued hearing date. Between November 6 and December 26, Tami made arrangements to visit A.B., but did not follow through.
On January 13, Tami did not appear, but her counsel set the matter for trial. On January 27, the contested permanency planning hearing was continued one day in order to produce Tami from jail. The court received Agencys reports without objection. Tami objected to the adoption recommendation, but did not cross-examine the social worker. Tami did not mention the notice she had received for earlier hearings.
The court found, by clear and convincing evidence, that A.B. was likely to be adopted; none of the circumstances listed in section 366.26, subdivision (c)(1), which made termination of parental rights detrimental to the child, applied; and adoption was in A.B. s best interests. The court terminated Tamis parental rights and selected adoption as A.B. s permanent plan.
DISCUSSION
I
Agencys Arguments for Dismissal Are Unavailing
Initially, we address Agencys arguments urging us to dismiss the appeal. Agency contends Tami waived the notice issues because she failed to raise them below. Agency also contends the appeal has been abandoned because Tami has not challenged any of the findings or orders made at the section 366.26 hearing. Neither contention has merit.
Agencys waiver argument with respect to the defective notice of the applicable review process for the setting order is a legal non sequitar. It does not logically follow that Tamis failure to complain about this defective notice when she appeared at the section 366.26 hearing constitutes a waiver. If Tami never received proper notice of the review process — as required by law — the fact she appeared at a subsequent hearing does not mean she necessarily was made aware of the review process. In other words, the later appearance was not a de facto opportunity to raise the notice issue if she never received notice and never knew there was an issue to be raised. For a waiver to be legally recognized, it must be knowingly made. "" Waiver requires a voluntary act, knowingly done, with sufficient awareness of the relevant circumstances and likely consequences. [Citation.] There must be actual or constructive knowledge of the existence of the right to which the person is entitled. [Citation.]" [Citation.] There must be ". . . an actual intention to relinquish it or conduct so inconsistent with the intent to enforce that right in question as to induce a reasonable belief that it has been relinquished." [Citation.] [Citation.]" (In re Rodger H. (1991) 228 Cal. App. 3d 1174, 1185-1186, 279 Cal. Rptr. 406.) "Courts examine the defense of waiver carefully in order to ensure the protection of a partys rights, especially when these rights are statutorily based." (Oakland Unified School Dist. v. Public Employment Realtions Bd. (1981) 120 Cal. App. 3d 1007, 1011, 175 Cal. Rptr. 105.)
However, as will be seen in part III, post, we find Tami waived the issue concerning the claimed defective notice concerning the jurisdictional/dispositional hearing.
As to the abandonment argument, Agency urges us to dismiss the appeal on the theory that Tamis failure to assign error to the section 366.26 hearing is equivalent to abandoning her appeal of the judgment terminating parental rights. When a party does not articulate any pertinent legal argument in his or her opening brief, the appellate court may, in its discretion, deem this failure to be an abandonment of the appeal justifying dismissal. (In re Jerry M. (1997) 59 Cal.App.4th 289, 293, fn. 3; Berger v. Godden (1985) 163 Cal. App. 3d 1113, 1119, 210 Cal. Rptr. 109.) We decline to exercise this discretion.
As discussed more fully in part II, post, Tami should be allowed to raise issues dealing with the setting order that are not normally cognizable on appeal because she was not properly notified of the proper review process. Waiver rules apply unless enforcing them would result in a denial of due process. (In re Janee J. (1999) 74 Cal.App.4th 198, 208.) A denial of due process is established if a defect in the proceeding fundamentally undermined the statutory scheme and prevented the parent from availing himself or herself of the protections afforded by the scheme as a whole and was not merely an error that might have been held reversible had it been timely reviewed. (Id. at pp. 208-209.)
II
Defective Notice of Review Process for Challenging Order Renders Issue
Cognizable on Appeal
Section 366.26, subdivisions (l)(1) and (2) provide appellate review of a setting order is not available unless a petition for extraordinary writ review was filed in a timely manner, the petition substantively addressed the challenged issues and was supported by an adequate record, and the petition was summarily denied or otherwise not decided on the merits. (See also Ronald S. v. Superior Court (1995) 34 Cal.App.4th 1467, 1468-1469; Cal. Rules of Court, rule 39.1B(e) [failure to file petition for extraordinary writ review precludes party from obtaining appellate review of findings and orders made in setting a hearing under section 366.26].)
All rule references are to the California Rules of Court.
Tami acknowledges the above-stated law, but contends the failure to provide proper notice of her right to file a writ petition violated her due process rights and allows this court to review the setting order in this appeal. The contention has merit.
Section 366.26, subdivision (l)(3)(A) states:
"A trial court, after issuance of an order directing a hearing pursuant to this section be held, shall advise all parties of the requirement of filing a petition for extraordinary writ review as set forth in this subdivision in order to preserve any right to appeal in these issues. This notice shall be made orally to a party if they are present at the time of the making of the order or by first-class mail by the clerk of the court to the last known address of a party not present at the time of the making of the order."
Rule 1460(f)(7) states:
"When the court orders a hearing under section 366.26, the court must advise orally all parties present, and by first class mail for parties not present, that if the party wishes to preserve any right to review on appeal of the order setting the hearing under section 366.26, the party must seek an extraordinary writ by filing a Notice of Intent to File Writ Petition and Request for Record form (JV-820) or other notice of intent to file a writ petition and request for record and a Writ Petition — Juvenile form (JV-825) or other petition for extraordinary writ. Within 24 hours of the hearing, notice by first class mail must be provided by the clerk of the court to the last known address of any party who is not present when the court orders the hearing under section 366.26. Copies of Judicial Council form Writ Petition — Juvenile (JV-825) and Judicial Council form Notice of Intent to File Writ Petition and Request for Record (JV-820) must be available in the courtroom and must accompany all mailed notices of the advice."
When a court fails to give a parent proper notice of his or her right to file a writ petition challenging the findings and orders made at the referral hearing, the parent may challenge those findings in the appeal of the termination of parental rights. (In re Cathina W. (1998) 68 Cal.App.4th 716, 724; see also In re Rashad B. (1999) 76 Cal.App.4th 442; In re Maria S. (2000) 82 Cal.App.4th 1032.)
The record establishes that Tami did not receive proper notice of her right to challenge the setting order by writ review. The only notice that was sent to Tamis last known address was a copy of the minute order for the July 11 referral hearing, which recited:
"The parties are further advised that a petition for extraordinary writ review must be filed in order to preserve any right to appeal the findings and orders made by the court in setting a hearing pursuant to section 366.26 of the Welfare and Institutions Code."
Although we have some doubts that this advisement, which took two lines in a single-space minute order that exceeded one page, was likely to be read and comprehended by a layperson, it nonetheless met the requirement of section 366.26, subdivision (l )(3)(A). However, the notice was defective for it did not include the Judicial Council forms required by rule 1460(f)(7).
Was this a material defect? Yes. Rule 39.1B, which was adopted to implement the statutory requirement of seeking writ review (§ 366.26, subd. (l)), contains explicit and detailed directions for filing the writ petition, including strict time limits. (See Karl S. v. Superior Court (1995) 34 Cal.App.4th 1397, 1402-1403.) The rule 39.1B time limits are mandatory. (Karl S., at p. 1404.) The Judicial Council forms set forth the mandatory time limits. For example, JV-820 contains the following notice in boldface type:
"The court has set a hearing to make a permanent plan for this child. If you wish to preserve your right to appeal the courts decision, a petition for extraordinary writ must be filed. If you intend to file the petition for a writ, a notice of intent to file a writ petition and request for record must be filed with the juvenile court clerk within 7 days of the date specified in item 5a. If you received this notice by mail only, the period for filing a notice of intent to file a writ petition and request for record shall be extended 5 days. You may use this form to notify the court. The petition for extraordinary writ must be served within 10 days after the record is filed."
Item 5a of the form reads: "On (date): the juvenile court made an order setting a hearing under Welfare and Institutions Code section 366.26. I intend to file a petition for extraordinary writ to challenge the findings and orders made by the court on that date and request that the clerk assemble the record." The clerk is to specify in item 5a "the date on which the court made its setting order, so that the party may calculate the deadline for filing the notice of intent and request for record." (In re Cathina W. , supra, 68 Cal.App.4th at p. 722.)
The Judicial Council forms thus explain how a party can preserve issues related to the setting order. It is for this reason that rule 1460(f)(7) requires the Judicial Council forms to be mailed along with notice of the right to seek writ review.
Agency is mistaken in arguing Tami must show she was prejudiced by the defective notice before she should be allowed to challenge the setting order on appeal. (In re Cathina W., supra, 68 Cal.App.4th at p. 724.)
Because the trial court did not fulfill its duties of advisement, Tami is relieved from the restrictions of section 366.26 and rule 39.1B regarding the need to seek writ review and is entitled to pursue relief by way of an appeal. (In re Cathina W., supra, 68 Cal.App.4th at pp. 722-723.) Good cause having been shown for the failure to comply with the requirements of rule 39.1B, we will address the merits of Tamis contentions. (In re Cathina W. , at p. 721 [parent in default of filing for writ relief "may obtain relief from that default for good cause shown"].)
III
Lack of Notice of Contested Jurisdictional Hearing Harmless
Tami contends she is entitled to a per se reversal on due process grounds because she did not receive notice of the contested jurisdictional/dispositional hearing. The contention is without merit.
Parents are entitled to due process notice of juvenile proceedings affecting their interest in custody of their children. (In re Melinda J. (1991) 234 Cal. App. 3d 1413, 1418, 286 Cal. Rptr. 239.) Due process requires "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." (Ibid., quoting Mullane v. Central Hanover Tr. Co. (1950) 339 U.S. 306, 314, 94 L. Ed. 865, 70 S. Ct. 652; In re Phillip F. (2000) 78 Cal.App.4th 250, 258.)
Tami was present at the detention hearing when the jurisdictional/dispositional hearing was set for June 24. She did not appear on June 24 when the court set the matter for trial on July 11. The record does not reflect she was provided notice of the trial date as required by former section 337 (see now § 291, subd. (e)(1)). (See also In re Phillip F., supra, 78 Cal.App.4th at p. 258-259 [when it is necessary to continue section 366.26 hearing, parents entitled to notice of continued hearing date].) The certificate of service form for the June 24 hearing minute order does not show Tami was served. The inescapable conclusion on this record is that Tami did not receive notice of the July 11 hearing as required by law.
However, Tamis counsel did not object to the courts finding at the start of the July 11 hearing that notice had been given as required by law. This constituted a waiver of the defective notice. Having failed to claim noncompliance below, Tami is precluded from asserting it for the first time on appeal. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1152; see In re Christopher B. (1996) 43 Cal.App.4th 551, 558; In re Gilberto M. (1992) 6 Cal.App.4th 1194, 1200.)
Furthermore, on July 11 Tamis counsel represented to the court that he had spoken with her the previous day and expected her to attend the hearing. Thus, the record provides a second inescapable conclusion: Tami was aware of the July 11 hearing but chose not to attend. Thus, putting aside the waiver issue, the error would be harmless under any standard. We are convinced beyond a reasonable doubt the error in providing notice of the contested jurisdictional/dispositional hearing to Tami was harmless. (Chapman v. California (1967) 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824.)
IV
No Error in Denying Continuance
Tami contends the court erred in denying her counsels request for a continuance of the contested jurisdictional/dispositional/referral hearing. (See fn. 2, ante.) The contention is without merit.
A juvenile court may continue a dependency hearing at the request of a parent for good cause and only for the period of time shown at the motion hearing to be necessary. ( § 352, subd. (a); rule 1422(a)(2).) Courts have interpreted this policy to be an express discouragement of continuances. (See, e.g., In re Emily L. (1989) 212 Cal. App. 3d 734, 743, 260 Cal. Rptr. 810.) In the juvenile court system, delay does not serve the interests of the minor. (See In re Sean E. (1992) 3 Cal.App.4th 1594, 1597.) A juvenile courts determination of a motion for continuance will not be overturned on appeal, absent an abuse of discretion. (See In re Angela R. (1989) 212 Cal. App. 3d 257, 265-266, 260 Cal. Rptr. 612.) Discretion is abused when a decision is arbitrary, capricious or patently absurd and results in a manifest miscarriage of justice. (People v. Jordan (1986) 42 Cal.3d 308, 316, 228 Cal. Rptr. 197, 721 P.2d 79; People v. Franco (1994) 24 Cal.App.4th 1528, 1543.)
Counsel did not make a showing of good cause for the continuance. Counsel merely stated that the matter should be continued because Tami was not present. Counsel did not explain her absence and made no representation that her absence was caused by lack of notice. To the contrary, counsel only related that a day earlier Tami had told him that she was going to attend the hearing. Also, counsel did not explain her absence. Furthermore, counsel did not at the time the continuance was requested — and Tami does not now on appeal — suggest what purpose her presence would serve, such as an offer of proof of her testimony.
Without a showing of good cause by Tami, the court did not abuse its discretion in denying the requested continuance. (§ 352, subd. (a); In re Ninfa S. (1998) 62 Cal.App.4th 808, 810-811.) The unexplained absence of a party by itself is not sufficient good cause to require a continuance. (See In re Marriage of Teegarden (1986) 181 Cal. App. 3d 401, 405-406, 226 Cal. Rptr. 417.) Under these circumstances, the court did not abuse its discretion in denying the continuance. (See In re J. I. (2003) 108 Cal.App.4th 903, 911-912.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: MCDONALD, J., and MCINTYRE, J.