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In re Guillermo L.

Court of Appeals of California, Second Appellate District, Division Two.
Nov 25, 2003
No. B165167 (Cal. Ct. App. Nov. 25, 2003)

Opinion

B165167.

11-25-2003

In re GUILLERMO L. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. MARIANA G., Defendant and Appellant.

Harry Zimmerman, under appointment by the Court of Appeal, for Defendant and Appellant. Lloyd W. Pellman, County Counsel and Kim Nemoy, Deputy County Counsel for Plaintiff and Respondent. Craig E. Arthur, under appointment by the Court of Appeal, for Guillermo L. et al.


Appellant Mariana G. (Mother) appeals the termination of her parental rights to two of her children under Welfare and Institutions Code section 366.26 and the denial of her section 388 petition for modification. Mother contends (1) her due process rights were violated by a lack of proper notice of the section 366.26 hearing, and (2) her trial counsel rendered ineffective assistance by failing to object to the lack of notice or to seek a continuance of the hearing. We affirm.

All statutory references shall be to the Welfare and Institutions Code, unless otherwise noted.

FACTUAL AND PROCEDURAL BACKGROUND

The Section 300 Petitions

On January 28, 2000, the Department of Children and Family Services (Department) filed a section 300 petition on behalf of Guillermo L. (born in 1995) and his sister Dolores L. (born in 1996), after Mother attempted suicide by slashing her wrists. The suicide attempt occurred after Mother and her boyfriend engaged in a violent confrontation in Dolores presence. The petition alleged that Mother was a frequent user of cocaine and marijuana. The children were detained and placed with a maternal aunt. Mother was permitted monitored visits. The childrens father, who was incarcerated out of state on an immigration hold, was ordered not to have contact with them.

On March 8, 2000, the Department filed another section 300 petition on behalf of Mothers newborn son, Paul B. (born in 2000). Paul, who does not have the same father as Guillermo and Dolores, was placed with his siblings. He is not the subject of this appeal.

After Mother waived her right to trial, the court declared the children dependents and ordered reunification services for the parents. The court also ordered Mother to participate in domestic violence counseling, individual counseling, drug rehabilitation with random drug testing, and parent-education classes. Shortly before the court made the orders, Mother and Pauls father were arrested for robbery. Mother was sentenced to nine months in custody, where she participated in the programs ordered by the court.

The Review Hearings

By the 12-month review hearing, Mother had been released from custody, but was still on probation. The Department reported that she had regularly visited the children in the caretaker aunts home, three to four days per week, and that the visits lasted between 20 minutes to an hour. The court ordered reunification services to continue. Thereafter, the Department reported that while Mother had completed her parenting courses and attended domestic-violence counseling, she still had not enrolled in substance abuse counseling, she had tested positive for marijuana use three times, and she had failed to report for drug testing seven times. At the 18-month review hearing on October 29, 2001, the court terminated reunification services and set the matter for a section 366.26 hearing to select and implement a permanent plan for the children.

The First Section 366.26 Hearing

Following a trial on February 28, 2002, at which Mother and the case social worker testified, the court found that Mother had regularly visited the children and that terminating parental rights would be detrimental to the children because they shared a significant, parental relationship with Mother. The court granted the caretaker aunt legal guardianship and allowed her to determine Mothers future visitation schedule.

The Second Section 366.26 Hearing

At the six-month August 15, 2002 review hearing, the Department reported that according to the childrens caretaker aunt, Mothers visits with the children in the preceding six months had precipitously dropped off: Mother visited the children five times in March, three times in April, twice in May, not at all in June and only once in July for half an hour. At the Department and caretakers request, the court set the matter for another section 366.26 hearing on December 12, 2002. The court stated to Mother: "Youre ordered to be here on December 12 for a hearing for me to decide whether adoption, long-term foster care, or guardianship is appropriate. [¶] Do you understand?" Mother stated that she did and confirmed that the social worker had given her notice in writing of its plan for adoption.

In preparation for the second section 366.26 hearing, the Department submitted a report in December 2002 documenting Mothers visits since the August 15 review hearing, as recorded by the caretaker: Following the hearing, Mother visited the children five times in August, five times in September, three times in October and once in November. In the preceding nine months, Mother had an opportunity to visit the children 60 times, but only made 19 visits. Mother also failed to show up for visits during which the social worker had informed Mother that she would be present. According to the maternal grandmother, Mother was living in Tijuana, Mexico with Guillermo and Dolores father, and she returned to the United States on weekends to visit the children. The Department also reported that while Guillermo and Dolores liked visiting with Mother, their preference was to live with their aunt, who they said took care of them, helped them with homework, bought them toys and clothes and did not yell at them like Mother. The caretaker aunt and her husband wanted to adopt all of the children.

On December 12, 2002, Mother filed a section 388 petition requesting the court to reinstate reunification services based on a "change of circumstance." Mother identified as her changed circumstances that she was in compliance with the case plan and visiting the children regularly. The court granted a hearing on the petition and gave written notice of the February 13, 2003 hearing date to the attorneys of record and to Mother, but at an incorrect address.

Section 388, subdivision (a) provides in relevant part: "Any parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court."

The court granted a hearing on the petition during a hearing held on January 7, 2003. The record contains a written order of the January 7 hearing, stating that the parties waived a reporter. The attorneys appeared without their clients. Written notice was sent to Mother at 522½ East 83rd Street in Los Angeles. At the time, Mothers address was 522½ East 33rd Street in Los Angeles.

Mother was present at the section 366.26 hearing on December 12, 2002, along with her attorney, her mother and several sisters. At her attorneys request, the court agreed to continue the hearing for a fully contested hearing since the attorney for Guillermo and Dolores father was not present and "everyone isnt prepared to respond to all the people that came in, [Mothers] witnesses. So everybody needs time to fully prepare." Initially, the court continued the matter to January 29, 2003 stating, "Mothers ordered back for January 29. [¶] The caretakers ordered back for January 29. Thats the date well have the hearing for me to decide whether adoption, long-term foster care, or guardianship is appropriate. Its very important that you be here." Later, during the same proceeding and while Mother was still present, the court changed the continued hearing date to February 13, 2003: "All right. The review findings, services are appropriate. Placement is appropriate, continue to be appropriate. The Departments goal at this point — Im sorry. Counsel, the RPP, the review hearing is 2/13. Lets use that for the .26 hearing. February 13. This is just a .26 hearing that I have to continue."

In preparation for the continued 366.26 hearing, the Department submitted a report dated February 13, 2003, in which Guillermo and Dolores were quoted as saying that Mother had promised to visit them and bring gifts and that she had done neither. Dolores called Mother a "liar," and Mother responded by saying that she would not love Dolores anymore if she called her that. Both children indicated that they did not want to live with Mother in Tijuana, Mexico. According to the caretaker aunt, Mother had not visited the children since December 13, 2002 and had not contacted them since December 31, 2002. The social worker noted that in the past 12 months, Mother had an opportunity to visit the children 77 times, but only made 20 visits. The social worker concluded that Mother was not making an effort to visit the children and no longer had a parental relationship with them. The report also indicated that while Mother had enrolled in substance abuse counseling in November 2002, she was terminated in May 2002 due to consistent, unexcused absences. The report also stated that Mother had begun drug testing in December 2000, but had been terminated from testing in July 2002 when she failed to report for testing on 12 consecutive occasions.

Mother did not appear at the February 13, 2003 combined sections 366.26 and 388 hearings, nor did any of her witnesses. After finding that Mother had been given adequate notice of the hearing, the court inquired as to Mothers absence. Mothers attorney stated that after the last hearing, she sent Mother a letter reminding Mother of the February 13 hearing date, and that she tried calling Mother, whose telephone number had been disconnected. Mothers attorney was informed by the social worker on February 12 that Mother was living in Tijuana, but that telephone number had also been disconnected. Mothers attorney stated, "I have not received any messages from my client, so I have no idea where she is." The court proceeded with the matter in Mothers absence. Mothers attorney argued that at the last section 366.26 hearing, the court found that terminating parental rights would be detrimental to the children because of their close relationship with Mother, and that although Mothers visits had recently become sporadic, the children still had a significant, parental relationship with Mother. Mothers attorney did note that it was hard to make an argument or put on a contest without Mother present.

The court denied Mothers section 388 petition, finding that Mother had not shown by a preponderance of the evidence that reinstating reunification services would be in the childrens best interests. The court stated that Mother "disappointed the children, upset the children, because she didnt visit." The court terminated Mothers parental rights to Guillermo and Dolores. The court found that the exception to termination under section 366.26, subdivision (c)(1)(A) did not apply because Mother had not regularly visited the children. The court stated, "And even if I assume that this was an aberration and she would get back to visiting, at this point, continued contact with the mother is not beneficial to the children. Shes disappointing them. They want to stay where they are and she has demonstrated a lack of understanding, maturity, commitment to the children and an unwillingness to visit when given the opportunity." The court found by clear and convincing evidence that the children were likely to be adopted and that terminating Mothers parental rights would not be detrimental to them.

The court continued the matter as to Paul B. so that his father could be given proper notice.

An exception to the termination of parental rights exists under section 366.26, subdivision (c)(1)(A), where "The parents or guardians have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship."

Postjudgment Evidence

Both Mother and the Department filed motions on appeal asking the court to consider evidence of postjudgment events pursuant to Code of Civil Procedure section 909 and former California Rules of Court, rule 23(b) (now rule 22(b)). We granted these motions. The evidence shows that subsequent to the juvenile courts termination of parental rights, the children were removed from the home of their caretaker aunt based on allegations of excessive physical discipline by the aunts husband. On August 5, 2003, the children were placed in the home of another maternal aunt, and reunification services were ordered to continue with the prior caretaker. Also, at another section 366.26 hearing on April 23, 2003 regarding her son Paul, Mother admitted that she was aware of the hearing on February 13, 2003 to address terminating her parental rights and that it was her intention to appear at the hearing with her mother and sisters, but she was in the hospital with high blood pressure during another pregnancy, and she did not inform her family of her whereabouts until a week later. She also stated that she had been living in Tijuana, Mexico since December.

Code of Civil Procedure section 909 provides: "In all cases where trial by jury is not a matter of right or where trial by jury has been waived, the reviewing court may make factual determinations contrary to or in addition to those made by the trial court. The factual determinations may be based on the evidence adduced before the trial court either with or without the taking of evidence by the reviewing court. The reviewing court may for the purpose of making the factual determinations or for any other purpose in the interests of justice, take additional evidence of or concerning facts occurring at any time prior to the decision of the appeal, and may give or direct the entry of any judgment or order and may make any further or other order as the case may require. This section shall be liberally construed to the end among others that, where feasible, causes may be finally disposed of by a single appeal and without further proceedings in the trial court except where in the interests of justice a new trial is required on some or all of the issues."

Former rule 23(b) of the California Rules of Court provided that a proceeding for the production of additional evidence on appeal be made by separate motion.

DISCUSSION

Alleged Violation of Due Process

1. Notice Was Proper

Mother contends that she "was not clearly given notice of the date for the continued section 366.36 hearing" and that such inadequate notice violated her due process rights. We disagree.

The Legislature has specified in detail the requirements for serving parents with notice of a section 366.26 hearing. Under former section 366.23 in effect at the time of the juvenile courts rulings (which has been repealed and replaced with section 294), if a parent is present at the hearing at which the court schedules a section 366.26 hearing, the court shall advise the parent of the time and place of the hearing, their right to counsel, the nature of the proceedings and that at the proceedings the court will select and implement a plan of adoption, legal guardianship or long-term foster care. (§ 366.23, subd. (a)(6).) The court shall also order the parent to appear at the hearing and then direct that the parent be notified by first-class mail at the parents usual place of business or residence. (Ibid.)

Mother concedes that at the August 15, 2002 review hearing, she was given proper notice of the original date of December 12, 2002 for the section 366.26 hearing. She was advised of this hearing date and the nature of the proceedings orally by the court, and the record reflects that written notice was mailed to her at the courts last known address for her. Mother also concedes that at the December 12, 2002 section 366.26 hearing during which she was present, "the juvenile court arguably had substantially complied with the first part of the section 366.23 notice requirement when it orally advised appellant of a January 29, 2003 continued section 366.26 hearing." But Mother contends that the court failed to comply with the statute when it changed the date of the section 366.26 continued hearing to February 13, 2003, because the court failed to order Mother to appear on that date, provide the necessary notice details and direct that she receive written notice by first-class mail.

But having conceded, as she must, that the court gave proper notice of the continued January 29, 2003 hearing date when Mother was present in court, there is no merit to Mothers contention that it was necessary for the court to repeat the same notice requirements when the court simply orally changed this date to February 13, 2003. "Provided a parent has received notice of the original section 366.26 hearing date in compliance with section 366.23, renotice to that parent pursuant to the precise terms of section 366.23 is not necessary under certain circumstances to satisfy due process." (In re Angela C. (2002) 99 Cal.App.4th 389, 392, citing In re Phillip F. (2000) 78 Cal.App.4th 250, 258-259.) "For example, if the parent who received the original notice is present in court when the trial court continues the hearing date, the in-court notice is proper and satisfies the parents due process rights." (Angela C., supra, at pp. 392-393, citing In re Malcolm D. (1996) 42 Cal.App.4th 904, 913.) "When, on the date of the noticed hearing, the hearing is simply continued, however, there is no reason to require the parent to be served anew pursuant to section 366.23 merely to provide notice of the continued date." (Phillip F., supra, at p. 258.)

Moreover, there is nothing in the record to indicate that Mother was actually confused as to whether the hearing was taking place on January 29 or February 13, other than the fact that she failed to show up on February 13 when she had routinely appeared for prior hearings. Indeed, the record does not suggest that Mother mistakenly went to court on January 29. Had she done so, most likely the clerk would have provided her with the correct date. To the contrary, Mothers own admission at a postjudgment hearing belies her claim that she was not given adequate notice. Pursuant to Code of Civil Procedure section 909 and California Rules of Court, rule 23(b), we have evidence of this hearing, at which Mother admitted that she was aware of the February 13 date and was planning to attend, but was unable to do so due to her hospitalization.

2. Harmless Error

Even assuming the notice given was improper, we find the error to be harmless beyond a reasonable doubt. (See In re Angela C., supra, 99 Cal.App.4th 389 applying Chapman standard of harmless beyond a reasonable doubt.)

Chapman v. California (1967) 386 U.S. 18.

Under section 366.26, if the juvenile court determines that it is likely that a dependent child will be adopted, the court "shall" terminate parental rights, unless a parent can establish a statutory exception. Here, Mother contends that she could have prevailed at the section 366.26 hearing by establishing the exception under subdivision (c)(1)(A), where the parents or guardians have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.

Mother points to the fact that at the first section 366.26 hearing, the court found that she had regularly visited the children and that terminating parental rights would be detrimental to them. But as the Department points out, circumstances can change, and had done so by the time of the second section 366.26 hearing, a year later. In the intervening year between the two hearings, Mother had visited the children only 20 times out of a possible 77 opportunities, and had had no contact with the children in the 6 weeks prior to the hearing. Mother claims that at the December 12, 2002 hearing, her own mother and sisters were prepared to testify about the frequency of Mothers visits, having accompanied her on various visits, and that they would have provided this same testimony at the February 13, 2003 hearing. But the court was well aware that Mother had long disputed the caretaker aunts recordation of the number of Mothers visits, since this was an issue at the first section 366.26 hearing. At that time, the court found that the aunts testimony in this regard was credible. At the first section 366.26 hearing, the court stated: "The aunt has been very supportive of the mother, has never stood in the mothers way regarding visits, and reports fairly accurately over the years how the visits go. So I dont think that theres any reason to dispute the aunts testimony or stipulated testimony." Moreover, by the time of the second section 366.26 hearing, Mother had voluntarily moved to Mexico to live with Guillermo and Dolores father and had not provided the social worker nor her own attorney with her new contact information. By doing so, Mother demonstrated she was more interested in maintaining a relationship with the childrens father than she was with the children. Thus, the evidence established that Mother could not meet the first prong of the exception that she had regularly maintained contact and visitation.

The evidence also established that Mother could not demonstrate that termination of parental rights would be detrimental to Guillermo and Dolores. Both children had been living with their caretaker aunt for more than two years, they loved their aunt, whom they regarded as a mother, and they wanted to continue living with her. They were disappointed by Mothers repeated, unfulfilled promises to visit them and did not want to live with her in Mexico.

Mother suggests that the new evidence that the children were removed from their caretaker aunts custody due to physical abuse and placed with another aunt indicates that the children are not likely to be adopted. In a recent decision filed August 4, 2003, our Supreme Court in In re Zeth S. (2003) 31 Cal.4th 396 concluded that "consideration of postjudgment evidence of changed circumstances in an appeal of an order terminating parental rights, and the liberal use of such evidence to reverse juvenile court judgments and remand cases for new hearings, would violate both the generally applicable rules of appellate procedure, and the express provisions of section 366.26 which strictly circumscribe the timing and scope of review of termination orders, for the very purpose of expediting the proceedings and promoting the finality of the juvenile courts orders and judgment." (Id. at p. 413.)

We find this evidence irrelevant on the issue of adoptability. As the Department notes, the relevant inquiry with regard to whether a child is likely to be adopted does not focus on the adoptive parents, but on the child. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1650.) Here, there is nothing in the record to suggest that Guillermo and Dolores are not suitable for adoption. The children are still young, both under the age of 10, and there is no indication of physical impairment, mental disability or antisocial behavior. Nor do the children have special needs that can only be met by Mother. "[A] prospective adoptive parents willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family." (Id. at p. 1650, citing In re Scott M. (1993) 13 Cal.App.4th 839, 844.) We conclude that ample evidence supported the courts finding that the children were likely to be adopted and that terminating parental rights would not be detrimental to them. We are satisfied that even if Mothers notice of the continued section 366.26 hearing had been perfect, it would not have changed the outcome of the proceedings rendering any error harmless beyond a reasonable doubt.

Ineffective Assistance of Counsel

Mother also contends that she was denied effective assistance of counsel when her trial counsel failed to object to the lack of notice of the continued section 366.26 hearing or to seek a continuance of the hearing to ascertain her whereabouts when she had diligently appeared at each of the previous hearings.

Under section 317.5, a parent is entitled to competent counsel at dependency proceedings. Mother asserts that in addition to her statutory right to effective counsel, she was also entitled to effective counsel under her due process constitutional right. The Department disputes that Mother had any constitutional right to effective assistance of counsel. However, assuming this to be the case, the Department notes that the test for determining ineffective assistance of counsel is the following: (1) trial counsel failed to act in a manner expected of reasonably competent attorneys acting as diligent advocates, and (2) had counsel rendered competent service the outcome of the hearing would have been more favorable to the client. (Adoption of Michael D. (1989) 209 Cal.App.3d 122, 136.) Mother agrees that she is required to meet this test. We therefore evaluate Mothers claim accordingly.

First, based on our finding that Mother received proper notice of the continued section 366.26 hearing, there is no merit to Mothers contention that her counsel was incompetent by failing to object to the notice. Mother also claims that her counsel should have asked for a short continuance so that she and her witnesses could appear and testify. But Mothers counsel had made attempts to contact Mother prior to the February 13, 2003 hearing to no avail because Mother herself had failed to keep her own attorney or the social worker apprised of her new contact information after moving to Mexico. (§ 316.1, subd. (a) ["Upon his or her appearance before the court, each parent or guardian shall designate for the court his or her permanent mailing address. The court shall advise each parent or guardian that the designated mailing address will be used by the court and the social services agency for notice purposes unless and until the parent or guardian notifies the court or the social services agency of a new mailing address in writing"].) At the time of the February 13, 2003 hearing, Mothers attorney was still unaware of Mothers whereabouts, and there was nothing in the record to indicate how quickly Mothers attorney could track her down, if at all.

Moreover, at the February 13, 2003 hearing, Mothers counsel argued vigorously on Mothers behalf. This was the same attorney who had represented Mother since October 2000 and had succeeded in persuading the court not to terminate Mothers parental rights at the first section 366.26 hearing. Indeed, at that first hearing, the court noted that Mother began complying with her case plan after her attorney had spoken to her. The record does not support the conclusion that Mothers attorney failed to act in a manner expected of reasonably competent attorneys acting as diligent advocates.

Second, even assuming that Mothers counsel had been ineffective, the record does not suggest that the outcome of the hearing would have been more favorable to Mother. As stated above, Mother could not prove the exception to termination of parental rights under section 366.26, subdivision (c)(1)(A). Thus, we conclude that Mother is unable to prove an ineffective assistance of counsel claim.

DISPOSITION

The orders are affirmed.

We concur: NOTT, Acting P.J. and ASHMANN-GERST, J.


Summaries of

In re Guillermo L.

Court of Appeals of California, Second Appellate District, Division Two.
Nov 25, 2003
No. B165167 (Cal. Ct. App. Nov. 25, 2003)
Case details for

In re Guillermo L.

Case Details

Full title:In re GUILLERMO L. et al., Persons Coming Under the Juvenile Court Law…

Court:Court of Appeals of California, Second Appellate District, Division Two.

Date published: Nov 25, 2003

Citations

No. B165167 (Cal. Ct. App. Nov. 25, 2003)