Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. CK 58282. Jacqueline H. Lewis, Referee.
Judy Weissberg-Ortiz, under appointment by the Court of Appeal for Appellant Au.J.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, Frank J. Da Vanzo, Principal Deputy County Counsel for Respondent.
ZELON, J.
Mother Au.J. appeals from five post-permanency orders of the dependency court. She contends that those orders, and all orders entered subsequent to the jurisdictional order, must be reversed as structural error because she did not receive DCFS’s reports prior to the hearings as required by Welfare & Institutions Code section 366.21. We affirm.
All statutory references herein are to the Welfare & Institutions Code.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A portion of the facts herein are taken from our opinion in In re Maya S. (No. B183298, March 22, 2006 [nonpub. opn.].)
Au. (Mother) is the mother of A.J. (born 1989), C.E. (born 1995), and Maya S. (born 2005). At the time of the March 2005 dependency petitions filed on behalf of her children, Mother, who is a registered nurse, had overcome previous alcohol abuse problems and was living with her children in a three-bedroom home. Her father and a 14-year-old cousin lived in the back house on the same property.
The children all have different fathers. Maya was born with serious birth defects and passed away on March 18, 2007; on March 28, 2007, the dependency court terminated jurisdiction over her.
A. Background and Prior Appeal.
Mother got along well with C.E., but her relations with A.J. were tumultuous, and they fought often. Baby Maya suffered from numerous birth defects and had been sent home from the hospital shortly after birth with “do not resuscitate” (DNR) instructions because doctors believed that she would die in a few days. In spite of this, Mother took care of Maya, taking her to the pediatrician and educating herself on Maya’s birth defects.
The event precipitating the dependency proceedings took place shortly after Maya’s birth when A.J. ran away from home. She called Mother the next day to inform her that she was pregnant. Mother went to A.J.’s school several days later; they had a loud confrontation in the school hallway and Mother pulled A.J.’s hair. The police were called, and a referral was made to DCFS.
At the detention hearing, A.J. was detained and placed in a maternity home; Mother was given monitored visitation with A.J. C.E. and Maya were released to Mother’s custody. Mother brought Maya to a hearing in April 2005, and called paramedics because Maya was having trouble breathing. Maya was taken by ambulance to the hospital. After Mother told doctors at the hospital that caring for Maya was very stressful, the doctor placed Maya on hospital hold, and a social worker thereafter detained Maya.
The next day, DCFS and law enforcement went to Mother’s home and found no one there. The house was disorganized and cluttered. C.E. told them Mother was stressed. DCFS detained C.E., who wanted to return home when Mother was better.
In April 2005, Mother visited Maya in the hospital, and concerned with her care, removed her nasal feeding tube. The nursing staff thereafter barred Mother from visiting Maya in the hospital. On April 14, Mother went to the hospital to visit Maya, and after she became combative, the police were called and Mother was placed on a 72-hour psychiatric hold.
On April 15, 2005, DCFS filed an amended petition, and the dependency court ordered C.E. and Maya detained. At the April 25 detention hearing, the dependency court ordered monitored visits for Mother and the children. At the May 18-19 adjudication hearing, the court heard testimony from A.J. concerning Mother’s relationship with her and Mother’s father, and sustained the petition as to the majority of counts. The matter proceeded immediately to disposition, and the court ordered visitation, parenting education, counseling, and participation in a psychiatric evaluation.
We affirmed on appeal the dependency court’s jurisdictional and dispositional orders. (In re Maya S. (No. B 183298, March 22, 2006) [nonpub. opn.].)
B. The Current Appeal.
1. Events Prior to the Six-Month Review Hearing.
A June 17, 2005 interim review report indicated that C.E. remained in foster care, while Mother’s behavior continued to be erratic. Mother visited C.E. unexpectedly at school; she was disruptive at Maya’s hospital and at A.J.’s maternity home. On June 17, 2005, DCFS also filed an application for an order that Mother stay away from Maya, on the grounds that Mother’s disruptive behavior put her at risk.
The interim review report dated July 14, 2005 disclosed that Maya was ready for discharge from the hospital, and that A.J. had given birth prematurely to a baby boy. Mother was receiving individual counseling and joint counseling with A.J., and had enrolled in parenting classes. Mother had maintained contact with her children, either in person or by telephone.
Mother’s therapist reported in August 2005 that Mother had acknowledged her history of alcohol and drug abuse, previous psychiatric admissions, and prostitution. Mother’s therapist found her “understandably overwhelmed as a result of her youngest daughter’s condition, the parent-child problems she has experienced with her oldest daughter, and the long-term effects of a life history replete with trauma and self-defeating, miscalculated attempts to cope. While her [psychological] test results do not point to a clear pattern of mental illness, her life history and presentation suggest difficulties of a paranoid nature.”
On August 18, 2005, DCFS obtained an order limiting Mother’s right to make educational decisions for C.E.
On September 16, 2005, DCFS obtained an order ending Mother’s visits with Maya due to Mother’s inappropriate physical handling of Maya at the hospital. Mother completed parenting classes in September 2005.
2. The Six-Month Review Hearing.
(a) The October 13, 2005 Hearing.
In October 2005, DCFS reported that Maya’s condition had worsened, and that she was suffering from pneumonia; C.E. continued to reside in her foster home and was flourishing; and A.J. continued to reside at the maternity home and her premature baby boy remained in the hospital, although he was doing well. A.J. had returned to school, but had trouble maintaining her curfew at the maternity home. Mother was served with notice of the October 13, 2005 hearing and attended the hearing.
At the hearing, the court noted that the reports had not been sent out, and therefore continued the matter.
(b) The November 14, 2005 Hearing.
The interim review report for the November 14, 2005 continued six-month review hearing discussed DCFS’s efforts to obtain a DNR order for Maya, whose condition and prognosis were poor, and whether a second opinion concerning her condition could be obtained. Notice of the hearing was given to Mother by mail, and Mother attended the hearing.
The court found that Mother had consistently and regularly visited with Maya and had made significant progress towards resolving the issues necessitating removal, had demonstrated the capacity and ability to complete the objectives of her reunification plan, and that there was a substantial likelihood Maya would be returned to Mother within the next period of review. The court advised Mother that if the children could not be returned home by May 8, 2006, reunification services could be terminated.
The November 23, 2005 interim review report stated that Maya’s doctor had no objection to DCFS obtaining a second opinion concerning her condition. Mother was present at the hearing, where the court ordered that all reports were to be submitted to the court two days prior to the hearing and that DCFS was to provide verification that all parties had been served with a copy of the report 10 days prior to the hearing.
3. The 12-Month Review Hearing.
(a) The April 10, 2006 Hearing.
The report for the April 10, 2006 12-month review hearing stated that Maya continued to reside in the hospital, C. E. was on track developmentally, and A.J. continued to reside at the maternity home with her nine-month-old son. Mother had not been in therapy since September 2005, and her therapist was unable to provide a letter of progress because Mother refused to sign a release form. Mother has been consistent in visiting her children, and C.E. wished to return home. However, DCFS did not recommend that the children be returned to her. The notice of hearing, but not DCFS’s report, was served on Mother. Mother attended the hearing.
The court continued the hearing because DCFS had not sent out appropriate notice, including the report, and continued the matter to May 24, 2006.
(b) The May 24, 2006 Hearing.
The special interim review report prepared for the May 24, 2006 hearing stated that C.E. was unsure where she wanted to be placed; the potential placements for her had not materialized. DCFS was recommending the current foster mother, who would be willing to assume legal guardianship, as a possible long-term placement for C.E. On May 2, 2006, Maya was denied transfer from the hospital to a chronic-care facility because Mother had called the staff and was abusive. Notice of the hearing, but not the report, was served on Mother. Mother attended the hearing.
At the May 24, 2006 hearing, DCFS submitted the status review report of April 10, 2006 and the interim review report of May 24, 2006. The court found that although Mother had been participating in programs and visiting the children regularly, there was no indication she had made any progress in resolving the problems that led to their removal. The court found the department had complied with the case plan, and that Mother’s failure to make progress supported a finding that returning the children to her would be detrimental. The court concluded that setting a 366.26 hearing with respect to A.J. and Maya was unrealistic because they were not the proper subjects for adoption and there was no one willing to adopt them. Therefore, the court identified a permanent plan for A.J. of placement at the maternity home with selection of a caring adult to serve as a lifetime connection. With respect to Maya, the court stated it could not identify a permanent plan for Maya because she was too ill, and ordered a review of her situation every six months. The court set a 366.26 hearing for September 20, 2006, and identified as C.E.’s permanent plan foster care with guardianship as the goal. The court terminated reunification services for Mother, and advised her of her right to writ review of its order setting the 366.26 hearing.
3. Mother’s May 31, 2006 Section 388 Petition.
On May 31, 2006, Mother filed a notice of intent to file a writ petition contesting the setting of the 366.26 hearing. She also filed a section 388 petition seeking to set aside the court’s order limiting her medical rights to Maya and terminating family reunification services. She asked that Maya be released to her care. Mother’s section 388 petition was summarily denied without a hearing. Mother did not file a writ petition seeking review of the setting of the section 366.26 hearing.
4. C.E.’s September 20, 2006 Section 366.26 Hearing.
DCFS’s section 366.26 report stated that the permanent plan for C.E. was legal guardianship with her current foster mother. Notice of hearing, but not the report, was served on Mother. Mother attended the hearing.
At the September 20, 2006 hearing, the court found by clear and convincing evidence that C.E. was not adoptable and that it was in her best interests that guardianship be granted. The court identified a permanent plan of legal guardianship with the goal of terminating jurisdiction. Mother was given supervised visitation with C.E., and the court set the post-permanency hearing for February 21, 2007. Letters of guardianship for C.E.’s foster mother were issued.
5. The Post-Permanency Plan Review Hearings.
(a) The October 25, 2006 Hearing.
DCFS’s status review report for the October 25, 2006 section 366.3 post-permanent plan review hearing stated that Maya had been transferred to a care facility. Mother had been arrested for trespassing because she went to the facility without waiting for the social worker, and became aggressive. The care facility had suspended Mother’s visitation rights. A.J. had been arrested for assault and placed in a group home without her son. Mother was served with notice of the hearing, but not the report.
At the hearing, although Mother was present, the court continued the matter to November 9, 2006 because Mother’s counsel did not appear.
(b) The November 9, 2006 Hearing.
At the continued hearing on November 9, 2006, DCFS informed the court that A.J. had used her weekend pass to stay with Mother. The court once again continued the matter to December 4, 2007.
On November 30, 2006, DCFS filed a section 388 petition seeking to terminate Mother’s visitation with Maya. The court set a hearing for January 5, 2007.
(c) The December 4, 2060 Hearing.
DCFS’s special report prepared for the December 4, 2006 hearing stated that A.J. had been given a seven-day notice from the group home for her failure to return after her weekend pass, and was currently residing with Mother. DCFS was having difficulty finding a suitable placement for A.J. because A.J. refused to be placed without her son. At the hearing, which Mother attended, the court continued the matter pending DCFS’s section 388 petition, and warned Mother that it might discontinue her visitation with Maya.
(d) The January 5, 2007 Hearing.
At the hearing on the section 388 petition, A.J.’s counsel advised the court that she had applied for a group home where she could live with her son. Currently, she was waiting for an interview. A.J. advised the court she had been staying with Mother, and the court continued the matter to January 12, 2007. Maya’s social worker testified that Mother had been harassing the staff at Maya’s facility and causing problems with the placement. Mother testified, and disputed the social worker’s account, although she admitted being arrested at the facility for trespass. DCFS, joined by Maya’s counsel, requested that Mother’s visits with Maya be terminated because they were jeopardizing the placement. The court found it was in Maya’s best interests that Mother’s visitation be terminated, but that if Mother demonstrated she could comply with her case plan, the court would reconsider the matter on a section 388 petition. The court identified permanent placement at the care facility as Maya’s permanent plan, with the matter to be reviewed every six months. The court ordered A.J. into individual counseling and parenting classes, and set January 12, 2007 for a progress report hearing.
(c) The January 12, 2007 Hearing.
At the hearing, which Mother attended, DCFS advised the court that A.J. had agree to go to a foster home without her baby, who was in the care of his paternal grandmother. A.J. wished to become emancipated and was attending beauty college. The court warned A.J. that she was not to stay with Mother, and continued the matter to January 19, 2007.
(d) The January 19, 2007 Hearing.
DCFS’s interim report prepared for the hearing stated that A.J. was in a foster home, with the social worker continuing to work with her to find transitional housing with her baby. At the hearing, counsel informed the court A.J. was pleased with her placement. The court continued the matter to June 8, 2007.
(e) The February 21, 2007 Hearing.
DCFS’s status report stated that C.E. was obtaining individual counseling and was having unmonitored visitation with Mother and A.J. C.E. was doing well in her placement, but Mother was upset that C.E. had gotten acrylic nails, and had taken away the cell phone she had gotten C.E. Notice of the hearing, but not the report, was served on Mother. At the hearing, the court received DCFS’s reports, and continued the matter to June 8, 2007 for further review. Mother’s section 388 petition filed February 21, 2007 was denied on the grounds no changed circumstances were demonstrated.
C. Mother’s Notices of Appeal.
On February 14, 2007, Mother filed a notice of appeal from the December 4, 2006, January 5, 2007, January 12, 2007, and January 19, 2007 orders.
On February 21, 2007, Mother filed a notice of appeal from the December 4, 2006, January 5, 2007, January 12, 2007, January 19, 2007 and February 21, 2007 orders.
DISCUSSION
Although her notices of appeal specify five of the post-permanency planning orders entered after the September 20, 2006 section 366.26 hearing for C.E., Mother’s brief contends that because none of DCFS’s reports were provided to her in advance of the hearings, all proceedings undertaken since the prior appeal in this matter, including orders made during the reunification period, must be reversed, and the matter remanded for further proceedings. (See Judith P. v. Superior Court (2002) 102 Cal.App.4th 535 (Judith P.).)
1. No Appeal May be Taken from Appealable Orders Entered More than 60 Days Prior to Mother’s Notice of Appeal.
Mother challenges all of the orders made in the dependency proceedings since the last appeal. However, Mother cannot challenge orders made more than 60 days prior to her filing of the notice of appeal on February 14, 2007, because the time to appeal those orders has expired. (Cal. Rules of Court, rule 8.400 (d)(1).) Section 395 makes the dispositional order in a dependency proceeding the appealable “judgment.” (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150.) Therefore, all subsequent orders are directly appealable without limitation, except for orders setting a section 366.26 hearing when the circumstances specified in section 366.26, subdivision (l), exist. (In re Edward H. (1996) 43 Cal.App.4th 584, 590-591.) A consequence of section 395 is that an un-appealed post-disposition order is final and binding and may not be attacked on an appeal from a later appealable order. (In re Meranda P., supra, 56 Cal.App.4th at p. 1150.)
We liberally construe Mother’s notice of appeal to include all possible appealable orders given the arguments made in her brief. (Cal. Rules of Court, rule 8.100(a)(2).)
Further, Mother makes no cogent argument in her brief that the waiver rule should be relaxed in her case. (In re Janee J. (1999) 74 Cal.App.4th 198, 208-209 [setting forth standards for relaxation of waiver rule].) We therefore only consider orders made less than 60 days before Mother’s notice of appeal, and also review for clarity the order made at the September 20, 2006 section 366.26 hearing.
2. Mother Waived Error with Respect to Lack of Service of the Reports at the Section 366.26 Hearing.
At every stage of the proceedings in connection with the hearings held in dependency court, DCFS is required to prepare and file reports and serve parents with notice. During the reunification stage, at the six- and 12-month review hearings, the social worker must file supplemental reports with the court and provide copies to all parties at least 10 days before each scheduled hearing. (§ 366.21, subd. (c).) In connection with the section 366.26 hearing, DCFS must prepare an assessment. (§ 366.21, subd. (i).) Notice of the section 366.26 hearing must be made 45 days before the hearing date, and the report must be served on the parents at least 10 calendar days before the hearing. (§ 294, subd. (c)(1); Cal. Rules of Court, rule 5.725(b) and (c) (former rule 1463).)
Section 366.21, subdivision (c) provides in relevant part that “At least 10 calendar days prior to the hearing the social worker shall file a supplemental report with the court. . . . The social worker shall provide the parent or legal guardian, counsel for the child, and any court-appointed child advocate with a copy of the report, including his or her recommendation for disposition, at least 10 calendar days prior to the hearing.”
California Rules of Court, rule 5.725(c) provides, “At least 10 calendar days before the hearing, the petitioner must file the [section 366.26] assessment, provide copies to each parent or guardian and all counsel of record, and provide a summary of the recommendations to the present custodians of the child, to any CASA volunteer, and to the tribe of an Indian child.”
At the reunification stage, a parent is entitled to receive DCFS’s reports prior to the hearing; failure to serve six- and 12-month review reports in accordance with section 366.21 constitutes structural error, requiring reversal. (Judith P., supra, at pp. 556-557.) Judith P. reasoned that because the focus at the reunification stage was the return of the child to his or her parents, early and complete notice was part of the legislative scheme, and the function of the reports was to alert the parents to matters that needed to be addressed at the hearings, service of the status report in strict conformity with the statute’s express terms was required. (Id. at pp. 546-548.) Therefore, because a fundamental constitutional right was at issue, Judith P. concluded that absent either a continued hearing or an express waiver, the failure to provide parents with a copy of the status review report was per se reversible error. (Id. at pp. 557-558.)
However, at the post-reunification stage, where a section 366.26 hearing has been set, the burden is no longer on the petitioning agency as it is during reunification to establish return of the child to the parent would be detrimental. (See Judith P., supra, at p. 546.) After the setting of the section 366.26 hearing, the burden shifts to the parent to establish that the statutory presumption of adoption should not apply. (See § 366.26, subds. (b), (c).) At that stage in the proceedings, the provision of reports to the parents does not have the same critical impact, as it is the parent at this point who must come forward with evidence to establish that parental rights should not be terminated. (See § 366.26, subd. (c).) Therefore, at that stage, any failure of the petitioning agency to serve the relevant reports on the parents is waivable.
Under waiver principles, an appellate court ordinarily does not consider challenges based on procedural defects where objection to such defect could have been made, but was not, in the trial court. (In re Wilford J. (2005) 131 Cal.App.4th 742, 754.) Thus, although defects in notice are a serious issue, “when a parent had the opportunity to present that 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.” (Ibid.) Here, Mother received notice of the hearing and was present, but failed to object to DCFS’s failure to serve her with the report.
3. No Requirement to Provide Mother with Reports at the Post-Permanency Planning Stage.
Finally, parents are entitled to notice of, and to participate in, post-permanency hearings. (§ 366.3, subds. (a), (e).) However, they are not statutorily entitled to any reports prepared in connection with such hearings. (See, § 295; Cal. Rules of Court, rule 5.740 (former rule 1465).) Therefore, Mother has established no error in any failure to serve her with reports.
DISPOSITION
The orders of the superior court are affirmed.
We concur: PERLUSS, P. J., WOODS, J.