Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Ct. No. J517619, Martin W. Staven, Judge. (Retired Judge of the Tulare S.Ct. assigned by the Chief Justice, pursuant to art. VI, § 6 of the Cal. Const.)
NARES, Acting P. J.
D.R. (mother) appeals a judgment terminating her parental rights to her daughter, D.R., under Welfare and Institutions Code section 366.26. Mother contends the judgment must be reversed because notice of the section 366.26 selection and implementation hearing was not mailed to D.R.'s maternal grandmother in accordance with section 294, subdivision (f)(7)(A). We affirm the judgment.
Unless otherwise specified, all statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2009 the San Diego County Health and Human Services Agency (Agency) detained D.R. at birth because she tested presumptively positive for cocaine, and mother admitted using cocaine throughout her pregnancy. D.R.'s father was unknown and reportedly the result of a one-night stand. Mother was engaged to be married to A.W., who considered himself D.R.'s father.
Mother had six other children in Ohio who had been removed permanently from her custody, five of whom had tested positive for cocaine at birth. Ohio child welfare records indicated mother had a history of leaving her children alone for weeks at a time, using and selling drugs, failing to seek medical care for her children, suicidal thoughts, homelessness and solicitation. Mother admitted attending, but not completing, several drug treatment programs. Mother's extensive criminal record for solicitation, possession of controlled substances and paraphernalia and being under the influence of a controlled substance began in Ohio in 2001 and continued after her move to California.
The social worker spoke with mother shortly after D.R. was detained, but despite leaving several telephone messages, was unable to contact mother in the following weeks. The social worker eventually located mother living in a motel and notified her of the jurisdiction and disposition hearing. Mother informed the social worker she wanted to relinquish D.R. for adoption but did not respond to the social worker's scheduled telephone call the following day to provide information to facilitate an adoption.
Mother was not present at the jurisdiction and disposition hearing when the court declared D.R. a dependent, removed her from mother's custody, placed her in foster care and ordered reunification services. Mother was given six months to complete her case plan, which required her to show the willingness and ability to regain custody of D.R., participate in visitation, attend drug and alcohol programs, be drug tested and meet monthly with the social worker.
Mother eluded the social worker until the end of 2009, when she requested and was granted a visit with D.R. Mother told the social worker she wanted to reunify with D.R., but she was not heard from again for several months despite numerous attempts to contact her.
At the April 2010 six-month review hearing, the court found mother had not made substantive progress on her case plan and a permanent plan of adoption for D.R. was appropriate. The court terminated mother's reunification services and scheduled a section 366.26 selection and implementation hearing. Mother did not attend this hearing but, three weeks later, responded to a message left on her telephone by the social worker and requested another visit with D.R. Mother provided the social worker with the same contact information she had provided previously. Mother's visit with D.R. never occurred because mother did not respond to numerous telephone messages left during the next two months by the social worker and the visitation center. It was later discovered that in March, April and June 2010, mother had been charged with additional criminal offenses, including possession of drug paraphernalia, solicitation and being under the influence of a controlled substance.
By August 2010 the Agency was recommending termination of mother's parental rights and a permanent plan of adoption for D.R. Mother had visited D.R. once since her detention and had made no effort to participate in services. D.R. was nine months old and believed to be highly adoptable because she was young, healthy, attractive and had a good disposition. The foster mother had cared for D.R. since she was two days old and expressed a strong commitment to adopt her. There were 24 approved adoptive families interested in adopting a child with D.R.'s characteristics.
The section 366.26 hearing was delayed to give the Agency time to notify mother of the hearing. The Agency submitted declarations of due diligence documenting its extensive efforts to locate mother. Notice of the section 366.26 hearing sent by certified mail to an address mother had provided was returned marked "unclaimed." The Agency conducted an exhaustive search of public records and requested information from the Department of Corrections and Rehabilitation, Department of Motor Vehicles, as well as the San Diego County Probation Department, San Diego County Department of Child Support Services, the San Diego County Sheriff's Department and the San Diego County District Attorney's Office. The Agency's search revealed several addresses associated with mother, but inquiries sent to the United States Postal Service all indicated mother was not known at any of the addresses. On two occasions the social worker drove to the address mother provided with the intent to personally serve her with notice of the section 366.26 hearing. During the initial attempt, the social worker encountered a man who recently had given cash to mother and A.W. to rent a room but was locked out and had not seen them since. Three weeks later, the social worker found an eviction order on the front door in the name of mother's friend who had lived there. The social worker attempted to contact mother twice at the motel, her last known address, but was informed mother had not been there for two or three months.
In June 2010 the court found mother could not be notified with reasonable diligence and ordered the Agency to notify her through publication. Mother was noticed in a newspaper of general circulation once a week for four consecutive weeks. At the section 366.26 hearing in October 2010, the court found notice had been given as required by law and found by clear and convincing evidence D.R. was likely to be adopted and none of the exceptions set forth in section 366.26, subdivision (c)(1) applied. The court terminated mother's parental rights and referred D.R. to the Agency for adoptive placement.
DISCUSSION
Mother does not challenge the sufficiency of the evidence to support the court's findings D.R. was likely to be adopted and none of the statutory exceptions to adoption applied to preclude termination of her parental rights. Mother's only contention on appeal is that her statutory due process rights were violated because notice of the selection and implementation hearing was not mailed to D.R.'s maternal grandmother, as required by section 294, subdivision (f)(7)(A).
Mother has standing to raise the issue of grandparent notification because the notice to grandparents "is intended, at least in part, as an attempt to get notice to the missing parent. Consequently, when that required notice is not given, the parent has standing to raise the issue on appeal." (In re Steven H. (2001) 86 Cal.App.4th 1023, 1033 [addressing former notice section 366.23, subdivision (b)(5)(B)].)
"Since the interest of a parent in the companionship, care, custody, and management of his [or her] children is a compelling one, ranked among the most basic of civil rights [citations], the state, before depriving a parent of this interest, must afford him [or her] adequate notice and an opportunity to be heard." (In re B.G. (1974) 11 Cal.3d 679, 688-689.) "Notice is both a constitutional and statutory imperative. In juvenile dependency proceedings, due process requires parents be given notice that is reasonably calculated to advise them an action is pending and afford them an opportunity to defend." (In re Jasmine G. (2005) 127 Cal.App.4th 1109, 1114.)
When a parent cannot be located, section 294, subdivision (f)(7)(A) specifies the type of notice required for a section 366.26 hearing which might result in termination of parental rights: "If the court determines that there has been due diligence in attempting to locate and serve the parent and the probation officer or social worker recommends adoption, service shall be to that parent's attorney of record, if any, by certified mail, return receipt requested. If the parent does not have an attorney of record, the court shall order that the service be made by publication.... Whether notice is to the attorney of record or by publication, the court shall also order that notice be given to the grandparents of the child, if their identities and addresses are known, by first-class mail." (Italics added.)
The Agency's exhaustive efforts to locate and notify mother of the section 366.26 hearing were both diligent and reasonable. The Agency admits it did not mail notice to D.R.'s maternal grandmother in accordance with section 294, subdivision (f)(7)(A), despite the fact that the grandmother's identity, as well as her Ohio address, could be found in the Agency's record. Because we conclude the maternal grandmother was not properly notified of the section 366.26 hearing, we turn to the question of whether the error requires reversal of the judgment terminating mother's parental rights.
The maternal grandmother's name and address was on the Indian Child Welfare Act form in the Agency's record.
Errors in notice do not automatically require reversal in dependency proceedings. (See In re Desiree M. (2010) 181 Cal.App.4th 329, 335 [failure to notice children of continued hearing harmless error]; In re J.H. (2007) 158 Cal.App.4th 174, 183 [failure to notice parent of jurisdiction/disposition hearing harmless error]; In re Justice P. (2004) 123 Cal.App.4th 181, 193; In re Daniel S. (2004) 115 Cal.App.4th 903, 912-913; In re Angela C. (2002) 99 Cal.App.4th 389, 393-395 [failure to give notice of continued jurisdiction/disposition hearing harmless error]; In re Steven H., supra, 86 Cal.App.4th at p. 1033 [error not harmless where evidence grandparent had ongoing relationship with mother].) Even assuming, without deciding, such errors are reviewed under the heightened harmless beyond a reasonable doubt standardset forth in Chapman v. California (1967) 386 U.S. 18, 24, reversal here is not required.
Our courts have concluded a notice error is reversible per se where there was no attempt whatsoever to notify a parent. (In re B.G., supra, 11 Cal.3d at p. 689 [total lack of notice in any form contravenes due process rights]; In re Jasmine G., supra, 127 Cal.App.4th at pp. 1117-1118 [no attempt to notify parent requires automatic reversal].) These decisions are not applicable here because we conclude the Agency exercised due diligence in attempting to notify mother.
Due diligence "requires only reasonable efforts to search for and notice missing parents." (Justice P., supra, 123 Cal.App.4th at p. 191.) "[T]here 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 the majority of the proceedings. [Citations.]" (Id. at p. 188.) "Thus, where a parent cannot be located notwithstanding a reasonable search effort, the failure to give actual notice will not render the proceedings invalid." (In re J.H., supra, 158 Cal.App.4th at p. 182.)
We conclude the Agency's error in failing to mail notice to D.R.'s maternal grandmother was harmless beyond a reasonable doubt. The record does not show any realistic likelihood that notice mailed to the maternal grandmother would have increased the chance of mother receiving notice of the section 366.26 hearing. This situation is unlike that of In re Steven H., supra, 86 Cal.App.4th 1023, where the court concluded the error was not harmless because there was evidence the mother was in contact with the maternal grandmother. Here, mother does not allege, and there was no evidence to suggest, the maternal grandmother had any contact with mother or any knowledge of her whereabouts.
The undisputed facts in this case also preclude a finding that actual notice to mother would have changed the outcome of the section 366.26 hearing. The evidence suggests mother knew, or should have known, her reunification services had been terminated at the six-month review hearing, because mother responded to the social worker's telephone message three weeks after the hearing. It is significant that mother did not contest termination of her reunification services. "The current legislative scheme recognizes the child's interest in having a stable and permanent home is paramount once the parents' interest in reunification is no longer an issue." (In re Justice P., supra, 123 Cal.App.4th at p. 191.)
In any event, mother was not automatically entitled to reunification services. According to section 361.5, subdivision (b)(10), (11), and (13), reunification services need not be provided to a parent who has had other children/siblings removed when the court finds the parent has not made reasonable efforts to correct the problems which led to a sibling's removal, when parental rights to a sibling have been terminated or when the parent has a history of drug or alcohol abuse and has resisted prior court-ordered or case plan required drug treatment. All of these conditions are present here.
At the selection and implementation stage of the dependency proceedings, return of the child to the parent is not an option, "the standard becomes 'best interests of the child, ' and the parent bears the burden of proving that a particular disposition would be in the child's best interests." (Judith P. v. Superior Court (2002) 102 Cal.App.4th 535, 555; In re Marilyn H. (1993) 5 Cal.4th 295, 304-305.) Although the only purpose of this hearing is "to select and implement a permanent plan for the child, " mother does not contest the court's selection of adoption as the permanent plan for D.R. (Marilyn H., supra, at p. 304.)
Once the court determined D.R. was likely to be adopted, in order to preclude termination of her parental rights, mother was required to establish that termination would be detrimental to D.R. under one of the statutory exceptions. (§ 366.26, subd. (c)(1)(B)(i)-(vi).) However, there was absolutely no evidence from which the court could have found D.R. would benefit from continuing her relationship with mother, or that she would suffer detriment as a result of the termination of mother's parental rights. The evidence here was irrefutable that mother had not "maintained regular visitation and contact" with D.R. in accordance with section 366.26, subdivision (c)(1)(B)(i). Throughout the dependency proceedings mother visited D.R. once, made no effort to participate in her case plan, was consistently unresponsive to Agency requests, did not attend hearings or keep the Agency informed of her whereabouts and continued to engage in the same criminal conduct which caused her to lose custody of her older six children. Accordingly, even if mother had received notice of the continued section 366.26 hearing, she "stood no chance of prevailing on a detriment argument." (In re Angela C., supra, 99 Cal.App.4th at p. 396.)
In view of the circumstances outlined above, we conclude the Agency's error in failing to mail notice to D.R.'s maternal grandmother was harmless beyond a reasonable doubt.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HALLER, J., O'ROURKE, J.