Opinion
F043336.
10-28-2003
In re GREGORY A. et al., Persons Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. JANETH G., Defendant and Appellant.
Catherine Campbell, under appointment by the Court of Appeal, for Defendant and Appellant. Phillip S. Cronin, County Counsel, and Richard W. Bailey, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
THE COURT
Janeth G. appeals from an order terminating her parental rights (Welf. & Inst. Code, § 366.26) to her sons Gregory and Christian A. She does not raise any issue directly related to the termination order. Rather, she challenges a six-month status review hearing at which the court terminated reunification services and set the section 366.26 hearing (the setting order). Because appellant did not receive any notice of the setting order, this court will consider her challenge on this appeal. (In re Cathina W. (1998) 68 Cal.App.4th 716.)
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Specifically, appellant contends: respondent Fresno County Department of Children and Family Services (the department) violated her right to notice that services could be terminated at that review hearing; there was insufficient evidence to support the order terminating services; the court erroneously relieved her counsel at the review hearing; and prior to the order relieving counsel, her attorney was ineffective. On review, mistakes no doubt were made but appellant suffered no resulting prejudice to warrant reversal. As discussed below, we will affirm.
PROCEDURAL AND FACTUAL HISTORY
In December 2001, the Fresno County Superior Court adjudged one-year-old Gregory and infant Christian dependent children of the court and removed them from parental custody. The court previously determined the children came within its juvenile dependency jurisdiction under section 300, subdivision (b) on account of appellants inability to adequately care for them due to her substance abuse. At birth, both boys tested positive for methamphetamine and appellant did not comply with voluntary family maintenance services in the form of substance abuse treatment after Gregorys birth.
At the December 2001 dispositional hearing, the court ordered reunification services for appellant, including random drug testing, parenting classes, evaluations for anger management, domestic violence, and substance abuse treatment, a mental health assessment and a risk assessment psychological evaluation along with participation in any recommended treatment. The court further ordered appellant to appear at a mediation hearing related to the status of those services in February 2002. It then set a review hearing, referred to as an "RDS," for July 11, 2002.
The mother did not attend the mediation hearing. According to the departments report for the mediation, appellants only apparent effort towards reunification was her sporadic visits with the children.
By the July 2002 status review hearing, appellant had not completed any component of her reunification case plan and her whereabouts had been unknown for four months. At best, appellant attended a February 13th meeting with a social worker to discuss her case plan and completed a February 18th substance abuse evaluation, which led to a recommendation for intensive outpatient treatment. Prior to the February 13th meeting, the department made numerous service referrals for appellant and other efforts to contact her, without much, if any, success.
At the February 13th meeting, appellant claimed the phone number and address the department had for her were no longer "good." Appellant signed a department document dated February 13th, reflecting she understand some of the referrals the social worker made on her behalf, her responsibility to keep in contact weekly with her social worker by phone or face-to-face, that she would receive additional service referrals by mail and she was to update her social worker of "any address changes right away." The social worker in turn made new referrals to which appellant did not respond. Appellant also failed to drug test on the 13th as requested. The social workers subsequently mailed reminders went unheeded.
In the four months leading up to the status review hearing, appellant only visited three times with her children even though she could visit with them any time in her mothers home. When appellants whereabouts became unknown to the department, it initiated an unsuccessful parent search. The department also prepared a notice of a July status review hearing for appellant but did not mail it to her last known address.
Needless to say, appellant did not attend the status review hearing. Her counsel conceded she had "not done anything" towards reunification and there was a declaration of search for her. Counsel was apparently referring to a "DECLARATION OF DUE DILIGENCE" prepared by the social worker. After counsel expressed his desire to be relieved, the court relieved him from further representing appellant.
Having read and considered the departments report detailing appellants lack of effort and recommending termination of services, the court found the childrens out-of-home placement remained necessary, return of the children would be detrimental and reasonable reunification efforts had been made. It then terminated reunification services, set a section 366.26 hearing and authorized the department to notify appellant of the section 366.26 hearing by publication. A minute order for the July hearing which the court signed also included findings that appellants whereabouts were unknown, a due and diligent search had been made for her, and there was no substantial probability the children could be returned to appellants home within six months.
Despite the order for notice by publication, the department was able to personally serve appellant with notice of the section 366.26 hearing in September 2002. Nevertheless, appellant did not attend the originally scheduled hearing in November 2002. That hearing was continued at the fathers request to December 2002. Appellant came to the court on the December date but left before the hearing commenced. The December hearing culminated in an order for bonding study between the father and the children and a continuance to late January 2003. Appellant did attend the January hearing at which the court appointed new counsel for her and included her in the bonding study, which had yet to commence. The court eventually continued the section 366.26 hearing in progress five additional times for the bonding study. Appellant attended each of those hearings with her counsel. Notably, however, appellant never voiced any of the concerns about the July 2002 hearing that she now raises on this appeal.
The court previously denied the father services due to his incarceration. Upon his release in September 2002, the father began to visit the children, visits on which appellant accompanied him.
The court concluded the section 366.26 hearing in May 2003. At the final hearing, appellant took the stand and admitted, in relevant part, that her whereabouts were unknown in the four months preceding the July 2002 review hearing. Having found it likely that the children would be adopted by maternal relatives, the court terminated parental rights.
DISCUSSION
I. Notice of the July 2002 Status Review Hearing
Appellant contends the department violated both her statutory and constitutional right to notice that her reunification services could be terminated. There can be no doubt on this record that in fact the department did not give appellant notice of the July 2002 status review hearing or its recommendation that the court terminate reunification services. In lieu of mailing such notice, the department submitted a declaration claiming due diligence to locate her, along with its report to the court stating appellants whereabouts had been unknown for four months.
Section 366.21, subdivision (b), as it read in 2002, required the social worker to mail notice of the status review hearing to the mother, among others, her last known address and that the notice should contain a statement regarding the nature of the hearing to be held and any recommended change in the custody or status of the child.
Having read the record, we reject appellants claim that the department submitted its due diligence declaration for a different purpose, i.e. to support its recommendation to terminate services. (See Discussion, II., post.)
Appellant, however, takes exception to the departments declaration. She first argues there is no statutory authorization permitting the trial court to disregard the notice requirement based on a claim that the parents whereabouts are unknown. Alternatively, she challenges the sufficiency of the declaration, claiming it did not disclose any effort to locate her at the address she last gave the department or through her relatives.
We will assume, for the sake of appellants argument, that the law did not excuse the department from mailing notice of the status review hearing to appellants last known address. Nevertheless, we conclude under the facts of this case the lack of notice was harmless under any standard. After the error in notice of the July 2002 hearing, appellant attended six hearings in this case and was represented by counsel at each of those hearings. Never once, at any of those subsequent hearings, did she or her counsel voice any complaint or allege any prejudice about the July 2002 proceedings, whether it be about the issue of notice, the departments claim of due diligence, or the courts findings and orders at that hearing.
In addition, appellant personally admitted during the section 366.26 hearing that her whereabouts were unknown during the four months preceding the July 2002. In light of the document she signed in February 2002 promising to update her social worker of "any address changes right away," the reasonable inference to be drawn from appellants admission was that she had moved and failed to keep the department appraised of her whereabouts in those months leading up to the status review hearing. Thus, the departments mistake made no difference in the outcome of this case.
II. Termination of Services
Next, appellant disputes the courts order terminating reunification services. Assuming that the court terminated services on grounds that her whereabouts were unknown, she argues there was insufficient evidence to terminate on that basis and it was unauthorized.
Without going into the particulars of appellants argument, we conclude it fails because it is based on a faulty premise. The record does not support her assumption that the court terminated services because her whereabouts were unknown. Although the court did not expressly state on the record its grounds for terminating services, the only reasonable inference to be drawn from the record is that the court terminated services based on appellants noncompliance with the service plan.
In its status review report, the department recommended that the court terminate services for "the mother as she ha[d] not complied with any of the case plan components despite the Department[]s efforts." The report documented appellants noncompliance, as summarized above. The last page of the report bears the judges signature acknowledging that he read and considered it. Then, at the start of the hearing, the court observed the recommendation was "to terminate services for the mother and go to a permanent plan." Counsel for all the parties in turn submitted the matter. Nowhere was any comment or remark made that the court could or should terminate services because the department did not know her whereabouts.
Specifically, counsel for appellant as well as counsel for the childrens father submitted "under Ronald R." an apparent shorthand reference to In re Ronald R. (1995) 37 Cal.App.4th 1186 and appellants lack of contact with her attorney. As respondent points out, it was appellants duty to stay in contact with her attorney. (Janice J. v. Superior Court (1997) 55 Cal.App.4th 690, 692.)
Under the circumstances of this case, that is, the children were under the age of three when they were initially removed, appellant failed to participate regularly and make substantive progress in the court-ordered treatment program, and the court found there was no substantial probability that the children could be returned to appellant within another six months, the court could properly terminate reunification services and issue its setting order for a section 366.26 hearing. (& sect; 366.21, subd. (e).)
Accordingly, we find no merit in appellants claim of error.
III. Counsel
Last, appellant also contends the trial court erroneously relieved her trial counsel at the July 2002 status review hearing and prior to that her counsel was ineffective. We agree the court erroneously relieved appellants trial counsel based on her nonappearance at the July 2002 status review hearing. (In re Malcolm D. (1996) 42 Cal.App.4th 904, 915 & 918-919.) However, appellant fails to show any resulting prejudice. Her further claim of ineffective assistance is based on her faulty assumption that the court terminated services because her whereabouts were unknown. (See Discussion, II, ante.) Thus, her ineffective assistance contention is groundless.
Aside from the fact that counsel as well as the court should have followed the procedure laid out by this court in In re Malcolm D., supra, 42 Cal.App.4th at pages 918-919 before the court relieved counsel, appellant fails to demonstrate it is reasonably probable a result more favorable to her would have been reached absent her counsels or the courts mistake (People v. Watson (1956) 46 Cal.2d 818, 836).
DISPOSITION
The order terminating parental rights is affirmed.