Opinion
B206535
10-29-2008
In re C.A., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. G.D., Defendant and Appellant.
John L. Dodd & Associates and John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant. Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.
Not to be Published
INTRODUCTION
G.D. (Mother) appeals from the order of the dependency court finding all allegations in a Welfare and Institutions Code section 300 petition true as to her, ordering her to take a number of programs and participate in counseling, terminating jurisdiction, and granting sole legal and physical custody of her minor son (the Minor) to his father. In the present appeal, Mother contends reversal is required because she was not given notice of the proceedings. We affirm.
All statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
1. Initial facts
Mother is the mother of the Minor and a nine-year-old son (Brother). Father is the non-custodial father of the Minor.
An October 3, 2007, Los Angeles Sheriffs Department incident report states that the Minor, aged 15, reported that he had gone to a friends home after having an argument with Mother. According to the Minor, Mother had hit him in the face with a broom because he was trying to protect Brother from being hit. The Minor had a bump on his head and swelling above his right eye. Brother told the sheriffs that he had been slapped four times by Mother because she was angry that he had not cleaned his room. Brother also stated that Mother hit the Minor numerous times. Mother told the sheriffs that she had disciplinary issues with the Minor, who would leave at 10:00 p.m., go to friends homes, and not return.
In October 2007, Mother had the Minor admitted into a psychiatric hospital, where he stayed for approximately two weeks.
On November 30, 2007, the Department of Children and Family Services (DCFS, or the Department) received information that on that date, Mother struck the Minor with a computer keyboard. The Department had previously investigated the family in relationship to the October 3, 2007 events. Brother told a social worker that Mother had pulled the Minors shirt, but was unsuccessful when she tried to hit the Minor with a computer keyboard. Brother also said that Mother yelled and cursed at the Minor. Brother felt safe being with Mother. The Minor told the social worker that he did not want to live with Mother because she yelled, hit, and cursed him. Mother denied hitting the Minor, although she admitted arguing with him because he was disrespectful and refused to take his medicine. Mother also stated that she did not object to the Minor living with Father.
On December 7, 2007, a meeting with the Minor, Father, Mother, the maternal grandmother, and a DCFS social worker was held at the grandmothers home in Los Angeles. It was agreed that the Minor would live with Father.
On February 6 or 7, 2008, DCFS held a Team Decision Making Meeting during which Mother and Father were extremely hostile to one another. The Minor, who was extremely upset at the acrimonious relationship between his parents, reiterated that he wanted to live with Father. The meeting did not result in an agreement, although Mother did not object to the Minor remaining with Father. DCFS detained the Minor and released him to the care of Father. According to the Departments February 13, 2008, report, "[i]t was apparent after the meeting that the parents acrimonious relationship will make it impossible for them to cooperate in parenting [the Minor]."
2. The detention
On February 8, 2008, the social worker telephoned Mother, but Mother hung up after she was asked to provide her exact address. The social worker had twice telephoned Mother on February 12, 2008, to inform her of the hearing, but there was no answer and no way to leave a message.
On February 13, 2008, DCFS filed a section 300 petition alleging that on November 30, 2007, Mother physically abused the Minor by repeatedly striking him with a computer keyboard. The petition further alleged that Mother emotionally abused the Minor by calling him demeaning and derogatory names, yelling at him, and making disparaging remarks about Father. It also alleged that the Minor had been hospitalized in a psychiatric facility due to Mothers ongoing emotional abuse. This resulted in the Minor being afraid of Mother and refusing to return to her home.
A detention hearing was held on February 13, 2008. The social worker had sent two notifications to Mother to advise her of the February 13, 2008, hearing. The notices were sent to the two addresses where Mother was known to be residing, or where she had been residing. The first was mailed to her on February 22, 2008, at an address in Lawndale. The second was mailed to Mother on February 28, 2008, at the maternal grandmothers home in Los Angeles.
In a February 13, 2008, social worker report, the social worker concluded that the Minors emotional health and safety had been compromised by Mothers abusive treatment. The Department was concerned about the Minors physical and emotional safety.
On February 13, 2008, Mother was present when the calendar was called. However, when the hearing was called, Mother could not be located. Mothers counsel stated that he had discussed the case with Mother. Mothers counsel indicated that Mother presently lived with the maternal grandmother, but Mother was planning to move to Inglewood in the next couple of days. The dependency court found a prima facie case to detain the Minor only as to Mother and released the Minor to Father. The court ordered DCFS to provide reunification services to Mother and granted Mother monitored visits in a therapeutic setting. The court directed Mother not to have contact with Father. The matter was set for a pretrial conference. The court ordered Mothers counsel to notice Mother and stated that if Mother was not present at the next hearing, the hearing would be held without her.
3. The jurisdiction and disposition hearing
DCFS filed a March 12, 2008, jurisdiction and disposition report in which the social worker reported that she had confirmed with the maternal grandmother that Mother no longer resided in Lawndale, but was living with the maternal grandmother in Los Angeles. Mother had not informed DCFS that she had moved and refused to be interviewed by the social worker.
On March 10, 2008, the Department filed a non-detained petition as to Brother. Brother is not a subject of this appeal.
In the March 12, 2008, report, the social worker reported that the Minor had stated the following: Mother was talking on the telephone when the Minor accidentally stepped on a telephone cord, which unplugged the telephone. The Minor also accidentally knocked over Mothers jewelry box and damaged a necklace. Mother then cursed at the Minor and physically abused him by hitting him with a computer keyboard and a few minutes later, with the telephone. The Minor left and went to a friends home. The friends mother contacted the Sheriffs Department. Thereafter, officers took the Minor to the sheriffs station. He was nine years old when Mother began hitting him. At times, she had choked him, hit him with a belt, hit him on the back of his head, and hit him with a wooden board on November 6, 2007. Mother called him demeaning and derogatory names and made disparaging remarks about Father. In October 2007, he was hospitalized at the insistence of Mother, who reported to hospital personnel that he had become angry and crazy. He was afraid of Mother and did not want to live with her.
In its March 12, 2008, report, the Department concluded that the Minor was not safe in Mothers home. The Department recommended that Mother "not be provided with reunification services and that this matter be terminated with a family law order giving [Father] sole physical and joint legal custody of [the Minor]."
The social worker sent Mother two notices of hearing on the petition for the March 12, 2008, hearing. The first notice was mailed on February 22, 2008, to Mother at the maternal grandmothers home in Los Angeles. The second notice was sent on February 28, 2008, to the Lawndale address.
Both notices contained language that a petition had been filed on behalf of the Minor under section 300, subdivisions (a), (b), and (c), Mother had the right to be present and present evidence, Mother had the right to be represented by an attorney, and the dependency court would proceed with the hearing if Mother was not present. Additionally, in paragraph eight, the notice provided that "[a]t the hearing on the petition, the court may receive evidence and determine whether the allegations are true. If any of the allegations are found true, the court may proceed to disposition, declare the child(ren) to be a dependent child(ren) of the juvenile court, remove custody from the parents or guardians, and make orders regarding placement, visitation and services." The social worker attached a copy of the petition. Both notices were sent by certified mail.
The Department also sent notices to Father and the Minor. The record contains return receipts for Father and the Minor, but not for Mother.
When the case was called on Wednesday, March 12, 2008, Mother was not present. Her attorney stated that he expected Mother to be present as she had telephoned him two days earlier, on Monday. Mother did not tell her counsel that she had notice, but she informed her counsel that she was disputing the green card. Mothers counsel also represented to the dependency court that Mother "must have gotten" the social workers report, but he was unsure. Mothers counsel questioned whether the matter could proceed because "I dont know that, procedurally, the court can go from a noticed [pretrial resolution conference] to adjudication."
The following occurred at the hearing:
"Court: . . . [Addressing Mothers counsel,] have you heard from the mother?
"[Counsel for Mother:] Ive actually — shes called and I expected her to be here today. I talked to her — today is Wednesday. I talked to her Monday. Im surprised shes not here.
"Court: Did she say she had notice? That she was aware of todays date?
"[Counsel for Mother:] No. Actually, she was disputing the green card because she told me `thats not my signature. Unfortunately, I dont have anything else with her signature on it. She says she would write something.
"Court: You have the green card?
"[Counsel for Mother:] Thats what she said.
"Court: I dont have a green card."
". . .
"Court: Where did mother see that receipt?
"[Counsel for Mother:] Well, she saw it on the —
". . .
"[The Minors counsel:] Well, she must have gotten the report. . . .
"Court: In that case, the court finds notice proper.
"[Counsel for Mother:] But I dont know.
". . .
"[Counsel for Mother:] Im only speculating that she must have."
The dependency court found notice was proper as it had complied with In re Wilford J. (2005) 131 Cal.App.4th 742 (Wilford). Mothers counsel submitted. The dependency court sustained the petition, finding all allegations true. The court ordered Mother to take a number of programs, including parent education and individual counseling, and to participate in a plan of psychiatric and psychological counseling. Mother was to continue to have monitored visitation at a neutral location. Jurisdiction was terminated pursuant to section 361.2, and Father was granted sole legal and physical custody of the Minor. The court stated that if it were to order reunification services for Mother, it would order parenting, individual counseling, and psychiatric counseling. Additionally, Mothers visitation would not be liberalized until she successfully participated and completed those programs.
Mother timely appealed from the March 12, 2008, order.
DISCUSSION
Mother contends reversal is required because she was not given adequate notice of the March 12, 2008, hearing. We conclude that this contention, premised upon Wilford, supra, 131 Cal.App.4th 742, is not persuasive.
In Wilford, Division Seven of this District held that a notice of a hearing was inadequate. In Wilford, the Department had notified a father that a pretrial resolution conference would be held. The father did not appear for the proceeding and the dependency court immediately proceeded to adjudicate the case. (Wilford, supra, 131 Cal.App.4th at p. 746.) Wilford noted that "[o]nce the jurisdictional hearing has been set, notice must be given to the appropriate parties ([Welf. & Inst. Code,] § 291, subd. (a)) and must include, among other things, the date, time and place of the proceeding and a statement of the `nature of the hearing. (§ 291, subd. (d)(1)-(5).)" (Wilford, supra, at p. 749.) Wilford concluded that the juvenile court could not convert a noticed pretrial conference into a jurisdictional hearing without providing proper notice. Wilford further held that the generic form of the notice had not notified the father of the nature of the hearing as required by section 291, subdivision (d). (Wilford, supra, at pp. 746-747, 750-751.)
Section 291 reads in part:
"After the initial petition hearing, the clerk of the court shall cause the notice to be served in the following manner:
"(a) Notice of the hearing shall be given to the following persons:
"(1) The mother.
"(2) The father or fathers, presumed and alleged.
"(3) The legal guardian or guardians.
"(4) The child, if the child is 10 years of age or older.
". . .
"(6) Each attorney of record unless counsel of record is present in court when the hearing is scheduled, then no further notice need be given.
". . .
"(d) The notice shall include all of the following:
"(1) The name and address of the person notified.
"(2) The nature of the hearing.
"(3) Each section and subdivision under which the proceeding has been initiated.
"(4) The date, time, and place of the hearing.
"(5) The name of the child upon whose behalf the petition has been brought.
"(6) A statement that:
"(A) If they fail to appear, the court may proceed without them.
"(B) The child, parent, . . . is entitled to have an attorney present at the hearing.
"(C) If the parent . . . is indigent and cannot afford an attorney, and desires to be represented by an attorney . . . .
". . .
". . .
"(7) A copy of the petition.
"(e) Service of the notice of the hearing shall be given in the following manner:
"(1) If the child is detained and the persons required to be noticed are not present at the initial petition hearing, they shall be noticed by personal service or by certified mail, return receipt requested.
"(2) If the child is detained and the persons required to be noticed are present at the initial petition hearing, they shall be noticed by personal service or by first-class mail.
"(3) If the child is not detained, the persons required to be noticed shall be noticed by personal service or by first-class mail, unless the person to be served is known to reside outside the county, in which case service shall be by first-class mail.
"(f) Any of the notices required to be given under this section or Sections 290.1 and 290.2 may be waived . . . ."
Wilford also held that the father had forfeited his right to challenge the jurisdictional order because he had appeared at a subsequent disposition hearing and did not challenge the earlier finding. (Wilford, supra, 131 Cal.App.4th at p. 754.)
The warning language contained in the notice of petition in Wilford is identical to the one before us, except in two significant ways. Both notices indicated that the parents (the father in Wilford and Mother in the present case) had the right to be present and present evidence, had the right to be represented by an attorney, and the dependency court would proceed with the hearing if the parent was not present. (Wilford, supra, 131 Cal.App.4th at p. 748.) However, the notice in the present case that was sent to Mother additionally notified her in paragraph eight that "[a]t the hearing on the petition, the court may receive evidence and determine whether the allegations are true. If any of the allegations are found true, the court may proceed to disposition, declare the child(ren) to be a dependent child(ren) of the juvenile court, remove custody from the parents or guardians, and make orders regarding placement, visitation and services." Additionally, unlike Wilford, the notice of a petition that was served on Mother was accompanied by a copy of the petition.
Thus, Mother was specifically informed that at the hearing to be held on March 12, 2008, the dependency court would be adjudicating if the allegations in the petition were true, and if so, the court could proceed to disposition and declare the Minor a dependent child and remove him from her custody. Even though the notice did not use the terminology "jurisdiction hearing" or "disposition hearing," Mother was notified as to what was expected to occur at the hearing. Further, the petition was attached, notifying Mother of the allegations upon which the deprivation of custody could be based. Thus, unlike the father in Wilford, Mother was provided with a description of the nature of the proceedings and provided with adequate notice.
On appeal, Mother states that the notice in Wilford must have contained the language in paragraph eight delineated above because, like the form used in the present case, it was on a standardized form. Mother makes this assertion by assuming that the content of the two forms were the same and that the court in Wilford simply did not discuss the language contained in paragraph eight. However, this argument is based upon speculation and thus is not persuasive.
DISPOSITION
The order is affirmed.
We concur:
CROSKEY, Acting P. J.
KITCHING, J.