Opinion
G039620
8-7-2008
In re I.B. et al., Persons Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. R.B. et al., Defendants and Appellants.
Konrad S. Lee, under appointment by the Court of Appeal, for Defendant and Appellant R.B. Diana W. Prince, under appointment by the Court of Appeal, for Defendant and Appellant B.D. Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Margaret E. Eastman, Deputy County Counsel, for Plaintiff and Respondent.
Not to be Published
R.B. (father) and B.D. (mother) appeal from the juvenile courts order terminating their parental rights and freeing I.B. (born in April 2001) and L.B. (June 2002) for adoption. (Welf. & Inst. Code, § 366.26; all further unlabeled section references are to this code.) Father complains he did not receive legally sufficient notice of the November 1, 2007, hearing that resulted in the termination of his parental rights. He also complains the juvenile court substituted appointed counsel without notifying him, and new counsel provided ineffective representation. Finding no basis to overturn the juvenile courts conclusion, we affirm the termination order.
Mother noticed an appeal and we appointed counsel for her. Her lawyer submitted a letter joining and adopting fathers brief to the extent it benefits her. (Cal. Rules of Court, rule 8.200.) If father succeeds in reversing the order terminating his parental rights, she contends we also must reverse the order terminating her parental rights.
I
FACTUAL AND PROCEDURAL BACKGROUND
In late September 2003, while the family resided in Las Vegas, the childrens mother fled to a Las Vegas womens shelter after a "heated altercation" with father. About a week later, the parents agreed father could take the children to Disneyland until October 8. On October 3, father left the children at an Anaheim motel with two prostitutes while he left on a business trip to New Orleans. A few days later, he sent a 17-year-old female, who later claimed to be fathers girlfriend, to care for the girls. The police arrested the prostitutes after their altercation with the girlfriend, and took the children into protective custody. The girlfriend claimed father was a pimp and a subsequent investigation revealed an outstanding North Carolina warrant for father and that he had been arrested in California for prostitution-related activities.
Orange County Social Services Agency (SSA) filed a jurisdictional petition (§ 300, subd. (b)) alleging the father placed the children at risk of harm based on fathers alleged prostitution activities and leaving the children in the care of two prostitutes. Father denied involvement in prostitution activity or placing his daughters in a high-risk situation. Mother stated father had been abusive during the relationship but denied knowledge of his involvement with prostitution.
At a November 2003 hearing, father provided an address in Columbia, South Carolina. The court advised father legal notices would go to that address and to inform SSA of any changes in writing. He was warned the "court will proceed on your case without you being here." Father said he understood.
In December 2003, the juvenile court declared the children dependents of the court under section 300, subdivision (b), and ordered reunification services. Father appeared for the jurisdictional hearing. The children were placed with foster parents. Father moved to Louisiana, but visited the children and began court-ordered services, including drug testing, domestic violence, and parenting courses. I.B. subsequently began suffering seizures and was diagnosed with a brain disorder.
In early January 2004, SSA notified father at an address in Metairie, Louisiana, of available family reunification services. In March, father enrolled in a Louisiana domestic violence program and completed a parenting class. He stated he planned to remain in Louisiana.
Father did not appear at the May 12, 2004, six-month review. SSA reported the domestic violence program terminated him for nonattendance and he had not submitted to drug testing since February 17. He visited the children three times during the period. The court extended reunification services for an additional six months.
Father did not attend the October 12, 2004, 12-month review. Father had not communicated with the social worker, who was unsure whether he continued to reside in Louisiana. Neither parent visited the children during this reunification period. Nor did father participate in court-ordered services.
In January 2005, SSA had information father was living in San Bernardino County. The parents visited the children in February 2005. By SSAs count, father had visited the girls a total of 10 times since December 2004. SSA requested funding for drug-testing and a 52-class domestic violence program.
Father attended the April 4, 2005, 18-month review hearing. SSA reported father had not participated in court-ordered services, and had not been diligent in communicating with SSA. The hearing was continued to May 24. Also in May, the children were released on a trial basis to mother.
Father did not appear at the May 24 hearing. In June, father informed SSA he was in New Orleans, although his car had been seen at mothers San Bernardino home.
SSA again detained the children on July 24. Although events as related in SSAs report are confusing, the parents essentially abandoned the girls, who ended up at an Inglewood (Los Angeles County) police station, dirty, tired, and hungry. Police officers reported father had numerous outstanding warrants in South Carolina for prostitution and procurement. Neither parent attended a court hearing on July 27.
On August 2, SSA recommended termination of reunification services and setting the matter for a section 366.26 selection and implementation (section .26) hearing. The court trailed the 18-month review hearing several times because the parents failed to appear. On August 18 the court, over the objection of fathers lawyer, terminated reunification services and set a section .26 hearing for December 14, 2005. The parents did not attend the August 18 hearing.
Neither parent petitioned for writ review.
In October, SSA submitted search declarations stating it could not locate either parent. The court found SSA had exercised due diligence to find them and authorized SSA to notify parents through counsel. (See § 294, subd. (f)(7)(A).) Father did not appeal this finding.
By December 14, SSA had still not located the parents. SSA requested a continuance of the hearing to March 2006 to investigate placing the children with a paternal aunt in New York. SSA sent notice of the new hearing date to fathers attorney.
Neither parent attended the March 15, 2006, section .26 hearing. The children had not been placed with the aunt because her suitability was in question. The court found termination of parental rights would not be detrimental and there was a probability of adoption, but the children were difficult to place. (§ 366.26, subd. (c)(3).) The court set the matter for another hearing in September 2006.
Section 366.26, subdivision (c)(3), provides that if the court finds termination of parental rights would not be detrimental to the child and the child has a probability for adoption but is difficult to place and there is no identified or available prospective adoptive parent, the court may identify adoption as the permanent placement goal and, without terminating parental rights, order SSA to locate an appropriate adoptive family for the child, within the state or out of the state, within a period not to exceed 180 days. At the expiration of the 180-day period, the court shall proceed pursuant to paragraph (1) (termination of parental rights) or (4) (appointing a nonrelative legal guardian for the child and order that letters of guardianship issue) of subdivision (b).
On August 13, SSA placed the children in New York with their aunt, Frances B. Father subsequently telephoned the children and reported to SSA that Frances was homeless and abused the children. He provided an address for himself in Orlando, Florida.
On September 6, the court ordered the children removed from Francess custody. She absconded with the children to New Jersey. New York social workers finally regained custody on September 19 and the children returned to California. Neither parent appeared for court dates on September 11, September 28, or October 18.
Father, apparently in town from Florida, appeared in court on October 19. Although represented by counsel, he personally objected to termination of parental rights and informed the court he had relied on his wife and aunt to "get [the] children back," and saw himself as the childrens last hope now that those placements had failed. The court set a hearing for October 25 to allow counsel time to consider whether to file a modification petition. (§ 388.) Father stated he could not attend court the next day.
Neither parent appeared at the October 25 hearing. But a different paternal aunt, C.H., and a paternal great-grandmother appeared. The court authorized a Christmas visit with these relatives.
In November, SSA initiated the Interstate Compact for the Placement of Children (ICPC) procedure to assess C.H.s home. The court continued the matter to evaluate the outcome of the holiday visit with C.H. Neither parent attended a November 30 hearing.
At a January 10, 2007, court hearing, SSA reported the visit with C.H. went well and the children still resided with her, although the ICPC investigation had not been completed. On January 12, notice of a March 12 section .26 hearing date was mailed to each parent. Later in January, the children returned to California after C.H.s husband requested their removal, although he later changed his mind.
On March 12, the ICPC report was still pending and SSA asked the court to continue the section .26 hearing. On March 20, notice of the May 7 section .26 hearing date was mailed to each parent.
On May 7, SSA reported the children resided with California foster parents who wished to adopt them, but SSA continued to consider placement with C.H. Neither parent appeared at the hearing. On May 25, SSA mailed notice of a June 25 section . 26 hearing date to each parent.
On June 25, the ICPC investigation was still pending. Mother appeared at the hearing, but father did not attend. Mothers counsel declared a conflict and the court appointed the public defender. The court ordered both parents, through counsel, to return on August 7.
The children began a visit with C.H. on July 26. Father appeared at the hearing on August 7. Because the ICPC investigation was still pending, the court continued the matter to October 2 and ordered father to return.
Neither parent appeared on October 2. Based on the approved ICPC investigation, the children had been placed with C.H. and her husband in New York. SSA asked the court to find the children adoptable and to terminate parental rights. Counsel for the parents moved for a continuance. Fathers lawyer informed the court her client had telephoned that morning and stated he was "interested" in coming to court, but he was in Florida. She requested a continuance so father could attend the hearing and assist her in preparation of a modification petition.
The court noted the parents should have been present and asked why father had not called earlier. The judge asked "[h]ow long have [the children] been in the system?" and remarked father "hasnt done anything really." Counsel stated father was uneasy and did not feel certain the paternal relatives would adopt the children. The court trailed the matter to October 5.
Neither parent appeared in court on October 5. Fathers counsel declared a conflict and the court appointed substitute counsel. The court continued the .26 hearing to October 31 and directed counsel to provide their clients notice of the new date.
Neither parent appeared on October 31. The court trailed the hearing to the following day. Again, neither parent appeared. Fathers counsel stated she had tried to contact father since October 5 but had not heard from him. Counsel sent letters and attempted to telephone him, leaving messages. The court denied mothers request for continuance. The parties submitted on SSAs reports. The court found by clear and convincing "notice of the hearing was given to all required parties." The court then terminated parental rights and freed the children for adoption.
II
DISCUSSION
A. Father Received Actual Notice of the Section .26 Hearing
Father argues he failed to receive legally adequate notice of the section .26 hearing and the courts order terminating his parental rights in his absence violated his due process rights. We disagree.
Father does not dispute he received legally sufficient notice of the original December 14, 2005, section .26 hearing date. There is also no dispute notices for the continued hearing dates through August 7 were properly mailed to him at his Florida address. He received actual notice of the August 7 date because he appeared in court that day. On August 7, the court notified him of the continued hearing date on October 2 and directed him to appear. He failed to do so. The court trailed the matter to October 5, and on that date continued the hearing to October 31. On October 31, the court trailed the case to the following day. On November 1, the court terminated the parental rights of mother and father. The issue before us is whether father received legally adequate notice of the hearing.
Parents are entitled to statutory notice when the juvenile court initially schedules a section .26 hearing. (§ 294.) If the hearing is continued, however, there is no requirement to provide the parent with the identical statutory notice. (In re Phillip F. (2000) 78 Cal.App.4th 250, 258 (Phillip F.).) Of course, proceeding to hear the contested matter on the date set by the continuance without some proof the absent party has been notified violates due process. (Id. at p. 257.) Renotice of a continued hearing must be "`"`reasonably calculated, under all the circumstances, to apprise interested parties of the [continued] pendency of the action and afford them an opportunity to present their objections."" (Id. at p. 258.) Phillip F. concluded actual notice of the continued hearing date will suffice. Actual notice is shown when the parent is notified by first class mail, written notice from the parents attorney, or oral notice in court. (Id. at p. 259.)
Phillip F. is analogous to the present case. There, the juvenile court had found that proper notice had been provided to the absent parent. The appellate court agreed, noting that although direct evidence did not show the parent received actual notice, the juvenile court reasonably "could have inferred that [the parent] had actual notice of the continued hearing because her appointed counsel had notified her of the continued hearing dates in conformance with counsels statutory obligation to provide competent representation." (Phillip F., supra, 78 Cal.App.4th at p. 259.) The court in Phillip F. concluded that inference was reasonable based on the following circumstances: the juvenile courts stated assumption at the earlier hearing that counsel would notify the parent in writing of the continued hearing date; counsels response at the penultimate hearing to the courts question "`[H]ow does your client wish to proceed in this matter?" with "`Set it for contested hearing, your Honor"; counsels silence in response to the courts finding at the April 2 hearing that proper notice had been provided to the parent, and the parents subsequent request for modification of the courts orders on the ground she was unable to attend the continued hearing and not that she was unaware of the rescheduled proceeding. (Ibid.)
Here, father was represented by counsel at every hearing date. On October 5, the court directed counsel to notify her client the court had reset the hearing for October 31. After the matter trailed for one day, fathers counsel on November 1 stated she had "sent father letters, attempted to call him, left messages and have not heard from him." Based on counsels representations and fathers spotty attendance throughout the long pendency of this case, the juvenile court could reasonably infer father received actual notice from counsel of the November 1 hearing and voluntarily chose not to attend. (See Phillip F., supra, 78 Cal.App.4th at p. 260 [noting parents "long history of not appearing at court hearings . . . even though she had been properly notified"].)
Father argues "it is unclear from the record whether [counsels] letters ever reached appellant or that appellant was aware of what the letters contained. . . . Indeed, since appellant may have been unaware of the new appointment of counsel and letters to him from an unknown attorney, even if received, may have been discarded, ignored, or easily misunderstood." This is sheer speculation, not a legal argument. There is no evidence fathers contact information had changed, and therefore the court could assume counsel used fathers current contact information to notify him of the new hearing date. Presumably, substituted counsels letters and calls informed father of her representation of him. Father had a duty to exercise diligence and he could not simply ignore letters and calls from an "unknown" attorney. Substantial evidence supports the juvenile courts finding fathers counsel provided legally adequate notice of the November 1 hearing. Consequently, we discern no due process violation.
Finally, even if evidence of actual notice was lacking, "[t]he error at most affects the manner in which the court conducts the termination hearing in that it becomes an uncontested hearing. However, had the court proceeded on the originally scheduled hearing date, as it had every right to do with respect to appellant, that hearing too would have been uncontested in that appellant failed to attend the hearing as originally noticed or notify anyone as to [his] position. Also, given appellants prior participation in the proceedings, as well as [his] election not to attend the originally scheduled termination hearing, we can quantitatively assess the error in the context of other evidence presented in order to determine whether the error was harmless . . . ." (In re Angela C. (2002) 99 Cal.App.4th 389, 395 (Angela C.).)
Based on fathers conduct and attendance record throughout these proceedings, it is unlikely father would have attended the hearing. The children were placed with paternal relatives who intended to adopt and fathers statements in October 2006 reflected his amenability to placement with paternal relatives.
Father argues had he been present he could have made a credible argument the children were not adoptable as a sibling set because I.B. suffered from a possible neurological disorder. He asserts that even though he had not participated recently in his daughters lives, he may have been able to show application of the benefit exception. (§ 366.26, subd. (c)(1)(B)(i); former § 366.26, subd. (c)(1)(A).) He also relies on his trial lawyers statement on October 2 that her client wished to file a modification petition and attend the section .26 hearing. As counsel explained, father had been interested in attending the court hearing but his employer would not give him time off to travel to California.
As the court noted, the childrens case had been languishing for four years. Father waited until the day of the hearing to convey his difficulties and his last-minute excuse rang hollow given that he had known about the hearing since August 7. In any event, nothing in the record suggests father had a viable claim to modify any previous order (§ 388) in his favor. As in Angela C., father had long since given up any effort to be a parent to his daughters. (In re Angela C., supra, 99 Cal.App.4th 396.) Even assuming error, we conclude beyond a reasonable doubt father suffered no prejudice when the court proceeded with the hearing.
B. The Juvenile Court Did Not Violate Due Process by Substituting Fathers Counsel Without a Noticed Hearing
Relying on In re Julian L. (1998) 67 Cal.App.4th 204 (Julian L.), father argues the court prejudicially erred on October 5 when it appointed substitute counsel to represent him without a noticed hearing. As noted above, fathers previous appointed counsel declared a conflict and the court immediately appointed a new lawyer.
In Julian L., the incarcerated mother had not challenged termination of reunification services and waived her right to appear at the originally scheduled section .26 hearing. At the hearing, the court granted the request of mothers attorney to be relieved, declared it would appoint new counsel for mother and continued the hearing for four months. Over three months later, the court appointed new counsel. At the continued hearing, counsel moved for a continuance because he had not had an opportunity to adequately review the file or to contact mother. The court denied the continuance, explaining the mothers waiver of attendance at the earlier hearing also applied to the continued hearing. The court found the childs adult sister would likely adopt the child and terminated parental rights.
The Julian L. court concluded the trial court erred in relieving the original attorney. "An attorney may be relieved in a noticed hearing upon substitution of another attorney or for cause. [Citations.] None of these conditions were met." (Julian L., supra, 67 Cal.App.4th at pp. 207-208.) The court also held the mother had not waived her appearance for the subsequent hearing. The trial court exacerbated the error in failing to notify mother of the hearing when it failed to timely appoint substitute counsel and refused to grant a continuance when new counsel, who had been assigned to the case for one week, informed the court that he had not had an opportunity to ascertain mothers wishes. (Ibid.) Although Julian L. recognized the focus at the permanency planning stage is on the childs interest in obtaining the benefits of a permanent and stable home, the court concluded "a short continuance" would not have affected these goals and mother would have received an opportunity to demonstrate why termination of her parental rights would not serve the interest of her child. (Id. at pp. 208-209.)
Fathers reliance on Julian L. is misplaced. Section 317, subdivision (d), provides that a parents appointed counsel shall represent the parent throughout the proceedings "unless relieved by the court upon the substitution of other counsel or for cause." Unlike the factual scenario in Julian L., the juvenile court here followed the mandates of section 317 and immediately appointed new counsel to represent father and continued the hearing three weeks to allow fathers new attorney to contact father and prepare for the hearing. And unlike the parents lawyer in Julian L., fathers new attorney did not request a continuance at the hearing. In sum, father received continuous legal representation throughout the proceedings and was not entitled to a statutorily noticed hearing concerning the courts substitution of new counsel under section 317, subdivision (d). Father forfeited any conceivable right to a hearing on the substitution when he failed to object to his new attorney.
In any event, father suffered no prejudice by not receiving advance notice of the appointment of new counsel. As discussed above, father received actual notice from counsel of the new hearing date and chose not to respond or appear, or to object to counsels substitution. Under these circumstances, counsel received ample time to prepare; she did not state she needed a further continuance. Significantly, and in contrast to Julian L., SSAs recommendation did not change after substitution of counsel. Absent prejudice, the substitution furnishes no basis for reversal.
C. No Evidence Supports the Claim Father Received Ineffective Assistance of Counsel at the Section .26 Hearing
Father claims counsel rendered ineffective assistance (§ 317.5) by failing to mention fathers concerns about adoptability and his desire to file a modification petition, and to request a continuance for that purpose. He also complains counsel did not request more time to ascertain fathers whereabouts, inquire into fathers current position concerning SSAs recommendation, or procure fathers attendance. He argues "[c]ounsels actions, or inactions, were hardly in line with [father]s wishes . . . ." He also complains counsel failed to make an issue of lack of notice to father and "virtually conceded all issues" and "simply `gave away the case" by submitting on SSAs reports and failing to object to the courts findings and orders.
A parent bears the burden of showing counsel failed to act in a manner to be expected of reasonably competent attorneys practicing in the field of juvenile dependency law. The parent must also establish that the claimed error was prejudicial, i.e., that it is "`reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1668.)
Counsel was not required to renew previously rejected arguments or make spurious objections. The record does not show counsel rendered ineffective assistance. Indeed, nothing in the record shows father desired to challenge the adoptability of his children. In any event, father candidly admits in his opening brief his chances for success at the section .26 hearing were "slim." It is not reasonably probable that a result more favorable for father would have been reached had counsel acted as father now claims she should have.
III
DISPOSITION
The order of the juvenile court terminating parental rights is affirmed.
WE CONCUR:
FYBEL, J.
IKOLA, J.