Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. JD112727-00, Gerard Walbaum, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Darlene Azevedo Kelly, under appointment by the Court of Appeal, for Defendant and Appellant.
B.C. Barmann, Sr., County Counsel, Jennifer L. Thurston, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Wiseman, J.
PROCEDURAL AND FACTUAL HISTORIES
I.C. was placed into protective custody in November 2006 at the age of three months after his 15-year-old mother, D.C., also a ward of the court, ran away from her placement, leaving I.C. in the care of the group home staff. Respondent Kern County Department of Human Services (Department) filed a petition alleging that I.C. came under the provisions of Welfare and Institutions Code section 300, subdivision (b), in that the mother was unable to supervise or protect the child, having left him behind when she ran away from her placement, and was negligent in providing medical care for the child, having failed to follow medical directions after the child was diagnosed with Respiratory Syncytial Virus (RSV). A subsequent petition alleged that I.C. was at risk due to the mother’s substance abuse, her aggressive behavior, mood swings, major depression, and suicidal tendencies. The mother had been in and out of 14 different placements in the two years prior to the petition.
All further references are to the Welfare and Institutions Code.
The court appointed counsel and a guardian ad litem for the mother. The presumed father, also a minor, was ultimately confirmed to be the biological father of the child. He did not request placement of the child with him and is not a party to the appeal. The allegations of both petitions were found true and reunification services were ordered. During the review period, the mother had been placed in various group homes, but had been on runaway status the majority of the time. I.C. was placed in a foster home, and though visitation had been ordered, visitation with the mother was neither regular nor consistent. At the six-month review hearing, the mother was present, was participating in court-ordered counseling, and appeared to be eager to reunite with I.C. The court set the 12-month review hearing for January 25, 2008.
The mother did not appear at the 12-month review hearing, and the matter was continued until February 14, 2008, and then to March 4, 2008. On January 31, the Department filed a declaration stating that it had searched for the mother with due diligence but had been unsuccessful locating her. The Department had checked all of the available databases without success and had spoken with the mother’s sister, grandmother, mother, maternal aunt, and the child’s father. None of these individuals could provide information on how to contact the mother, although the father said he had talked to her on either January 26 or 27, 2008. The mother had been on the run since October 2007.
At the March 4, 2008, hearing, the Department informed the court that it had checked in with the probation department the day before and that the mother was still on runaway status. The mother was represented by counsel and a guardian ad litem, but neither could confirm her whereabouts. The court found that the mother’s location was unknown and that the Department had made reasonable efforts to locate her. The court also found that attempts at reunification were unsuccessful, terminated reunification services, and set the matter for a permanent plan hearing, shifting the focus from reunification to permanent placement. At the end of the hearing, the court granted the Department’s request to notice the permanent plan hearing by publication.
The permanent plan hearing (.26 hearing) was held on July 1, 2008. Notice of the hearing was provided to the mother by publication on April 5, 12, 19 and 26, 2008, as previously ordered by the court. The mother did not appear, but was represented by counsel and her guardian ad litem. The mother’s attorney told the court that neither she nor the guardian ad litem had had any contact with the mother “at this particular time,” but based on prior information, objected to the recommended permanent plan. No evidence was offered on the mother’s behalf. The court found that proper notice had been given to the mother, and based on the information in the social worker’s report, concluded that the child’s out-of-home placement was necessary and that there was clear and convincing evidence that the child would be adopted. Parental rights were terminated.
Unbeknownst to the court, the mother had been in custody since on or about May 20, 2008, first in the county juvenile justice facility and then in a group home. According to the mother, she had tried between 15 and 20 times to contact her attorney through her probation officer while incarcerated, but she did not know the attorney’s number and probation was unable to locate the attorney for her. She did not remember the name of her guardian ad litem. On June 30, 2008, the mother called the Department and left a message with a social worker who was unaware of the scheduled court hearing on July 1. The message, although picked up on June 30, 2008, at 6:30 p.m. (after work hours), was not addressed by the social worker until the next day, at which time she learned the hearing had already taken place and that parental rights had been terminated. She later advised the mother about the hearing and the court social worker about the mother’s contact.
We use “on or about” May 20, 2008, because the record does not show on what date the mother was picked up on the bench warrant, only that she appeared in court on May 20, 2008, with counsel. A detention hearing must be scheduled within one judicial day of taking a minor into custody on a warrant. (§ 632.) The declaration of the mother’s attorney states that she met with the mother on May 16, 2008, but it appears this is a typographical error, since the reference appears to be to the same date as the court appearance, May 20. If the reference is to an actual meeting on May 16, there are no details of the contact and nothing to establish whether the mother was in custody at the time of the meeting. Therefore, the earliest date we can establish that the mother was in custody with any certainty is on or about May 20.
On July 11, 2008, the mother filed a section 388 petition, asking that the court set aside its orders and allow the mother to present evidence at a “properly noticed hearing” that it would be in I.C.’s best interest to be returned to his mother. The court denied the motion, finding that it had lost jurisdiction to consider the matter. (§ 366.26, subd. (i).)
DISCUSSION
I. Notice by publication
The mother argues that notice by publication failed to comply with due process because the Department had an ongoing duty to look for her even after the court granted permission to give notice by publication and, had it complied with this duty, it would have learned that she was in custody and available for actual notice of the .26 hearing. The mother also argues that notice was improper because the court never ordered notice to I.C.’s grandparents or other relative in accordance with section 294, subdivision (a)(5), which would have facilitated actual notice to her.
Given that a parent has a compelling interest in the companionship, care, custody, and management of his or her children, before depriving a parent of this interest, the state must give a parent adequate notice and an opportunity to be heard. (In re Arlyne A. (2000) 85 Cal.App.4th 591, 598.) “Due process requires that a parent is entitled to notice that is reasonably calculated to apprise him or her of the dependency proceedings and afford him or her an opportunity to object. [Citation].” (In re Justice P. (2004) 123 Cal.App.4th 181, 188; see also In re Jasmine G. (2005) 127 Cal.App.4th 1109, 1114 [due process requires parents be given notice reasonably calculated to advise them dependency action is pending and afford them opportunity to defend].) The requirements of due process must be based on an evaluation of the totality of the circumstances. (In re Emily R. (2000) 80 Cal.App.4th 1344, 1354.)
Notice requirements for a .26 hearing are spelled out in section 294. Section 294, subdivision (f)(7), identifies how a parent whose whereabouts are unknown is to be served with notice of the .26 hearing. The statute states that if the parent is represented, and there has been a showing of due diligence, service shall be made upon the missing parent’s attorney, or if the parent is not represented, by publication once a week in four consecutive weeks in a newspaper designated as the one most likely to give notice to the parent. (§ 294, subd. (f)(7).) Here, the court ordered publication even though the mother was represented and the mother’s attorney had actual notice of the hearing.
Publication occurred on April 5, 12, 19, and 26, 2008, in accordance with section 294, subdivision (f)(7). Since this section requires that the Department file a due-diligence declaration no later than 75 days before the date of the .26 hearing when it does not know the current whereabouts of a parent, the Department had no choice but to pursue permission by publication when it did. (§ 294, subd. (f)(7).)
Publication has long been recognized as a customary substitute for actual notice when it is not reasonably possible to give more adequate notice. (Mullane v. Central Hanover Tr. Co. (1950) 339 U.S. 306, 317 [where person’s whereabouts unknown, use of publication, a probably futile means of notification, creates no constitutional bar to final decree of rights]; In re Manuel J. (1984) 150 Cal.App.3d 513, 521 [notice not excused when no knowledge of parent’s whereabouts, but satisfied by fictional form of notice such as publication].) Due process notice requirements are deemed satisfied by publication where a parent cannot be located despite a reasonable search effort, and the failure to give actual notice will not render the proceedings invalid. (In re Melinda J. (1991) 234 Cal.App.3d 1413, 1418–1419.) At the time of publication here, the mother was still a runaway and the Department was unaware of her location.
The mother contends due process was violated because the Department did not continue to search for her after the 12-month review hearing, did not discover that she was again in custody on or about May 20, and did not provide her with immediate actual notice when she notified them of her location on June 30, 2008. She argues that her contentions are supported by two statutory provisions, section 366.22, subdivision (b)(1), which requires that the social worker’s report for the .26 hearing contain a discussion of the current search efforts for an absent parent, and section 294, subdivision (f)(7)(C), which requires that, in any case where a parent’s whereabouts become known, actual notice is to be given immediately. In this case, the mother contends the Department should have returned her call on the evening of June 30 or, at the very least, before the hearing on the morning of July 1, and told her about the pending .26 hearing. She also claims that the notice given was insufficient because the court failed to order that I.C.’s grandmother or other relative be notified as required by section 294, subdivision (a)(5), which would have facilitated actual notice to her. (In re Steven H. (2001) 86 Cal.App.4th 1023, 1032 [§ 294, subd. (a)(5), requires that if parents’ location is unknown, notice be given to grandparents; purpose of statute is to facilitate notice to absent parent].)
In this case, the grandmother had little to no contact with I.C. or the mother and whose location was unknown as of January 31, 2008, despite attempts to locate her. There can be no prejudice under these circumstances, a point conceded by the mother. The key relative in this case was I.C.’s great grandmother, who had custody of the mother at the time she became a ward of the court and who has a substantial CPS history. Although the statute does not require notice to the great grandparents, the mother argues that notice to the great grandmother would have facilitated notice to her. Since we conclude there is no prejudice resulting from any notice error to the mother, we do not decide whether this assertion is true or whether it is required under an expansive reading of the statute. The Department did contact the great grandmother as part of its due diligence search for the mother, without success, and nothing in the record establishes that the great grandmother knew the mother’s whereabouts at any time prior to her May arrest.
We need not, however, decide these issues. Even if section 366.22, subdivision (b)(1), can be read as establishing an affirmative duty to continue to look for an absent parent, and assuming section 294, subdivision (f)(7)(C), does require immediate actual notice to a parent who has been located prior to the .26 hearing, and even if the court should have ordered notice to the grandparent or great grandparent in this case, there is no prejudice to the mother. Errors in notice do not require automatic reversal, but are reviewed under a harmless-beyond-a-reasonable-doubt standard. (In re Daniel S. (2004) 115 Cal.App.4th 903, 912-913; In re Angela C. (2002) 99 Cal.App.4th 389, 393-394.) Reversal is not required if the error was harmless beyond a reasonable doubt. (In re Sara D. (2001) 87 Cal.App.4th 661, 673.)
The mother had actual notice of the 12-month review hearing but failed to appear, although she was represented by counsel and by her guardian ad litem. At the hearing, it was reported that the mother had not regularly visited the child and had not been participating in reunification because she had been a runaway for most of the review period. This behavior led to dependency in the first instance—the mother ran away from her placements, leaving I.C. to the care of the system and disregarding his needs. As a result of the report and the circumstances as they existed at the 12-month review hearing, reunification services were terminated. The mother has not challenged any of the findings made at the 12-month review hearing. At this hearing, she had her final opportunity to prove that she could address the issues leading to dependency and reunify with her child.
Once reunification services are terminated, the focus of a dependency action shifts to the needs of the children for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) The hearing is designed to protect a child’s compelling right to have a placement that is stable and permanent and that allows the caretaker to make a full emotional commitment to the child. (Id. at p. 306.) At a hearing on a section 388 petition, the burden of proof is on the moving party to show by a preponderance of the evidence that new evidence makes it in the best interest of the child to change prior orders. (§ 388; In re Stephanie M. (1994) 7 Cal.4th 295, 317.) As we have stated, after the termination of reunification services, the parents’ interest in the care, custody, and companionship of the child is no longer paramount. Instead, the focus shifts to the needs of the child for permanency and stability. “A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it .…” (In re Stephanie M., supra, at p. 317.) “It is not enough for a parent to show just a genuine change of circumstances under the statute. The parent must show that the undoing of the prior order would be in the best interests of the child.” (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.)
I.C. is a healthy, happy young toddler with no apparent emotional or mental problems. He has formed an emotional attachment with his current foster mother who wishes to adopt him. The father was not seeking custody and had expressed a wish that the child be adopted. The court found the child adoptable, a finding not challenged on appeal or in the motion to set aside. Once the court finds the likelihood of adoption, termination of parental rights is the preferred permanent plan absent proof that termination would be detrimental to the child’s best interests due to one or more statutory grounds. (§ 366.26, subd. (c)(1); In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1344.) The only ground pertinent in this case is whether termination of parental rights would be detrimental to the child because the mother has maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. (§ 366.26, subd. (c)(1)(A); In re Jesse B. (1992) 8 Cal.App.4th 845, 850-851.) The record does not establish regular visitation between the mother and the child. I.C. last visited with his mother in October 2007. The mother has had no consistent contact with I.C. since removal when he was three months old. She visited with him only 18 out of approximately 144 potential visits over a period of 18 months, with long periods of no contact. Given the child’s young age at the time of removal, and the infrequent contact he has had with his mother since, we are confident that the mother, even had she attended the .26 hearing, could not have prevailed on a detriment argument.
I.C. has been in foster care the majority of his life. He cannot wait for his mother, a child herself, to grow up and provide parenting. The mother was aware that dependency proceedings were going forward. She knew there were to be periodic hearings scheduled, and she had been warned that if she did not comply with the reunification plan within the time allowed, her parental rights could be terminated. It was her responsibility to keep in touch and to participate in the proceedings as they unfolded and to take advantage of the services provided. (See In re Larry P. (1988) 201 Cal.App.3d 888, 897 [due process challenge overlooks fact mother made an initial appearance in dependency hearing, effect of which was to confer upon trial court continuing jurisdiction; mother had burden to remain in contact].)
The mother’s claim that there were grounds she could have shown to allow for reopening of the reunification period, e.g., that she was “stable in a placement which would accept the child with her, and she was participating in services,” was no longer relevant to the court’s inquiry absent a showing that it would be detrimental to I.C. to terminate the parental relationship. (See In re Sabrina H. (1990) 217 Cal.App.3d 702, 713 [court not willing to unwind clock and ignore child’s interest in permanent home given mother’s continued inability during reunification process to fill parental role, finding any lack of formal notice nonprejudicial].) For these reasons, we conclude beyond a reasonable doubt that any error or deficiency in notice was harmless. (In re James F. (2008) 42 Cal.4th 901, 918-919; In re Angela C., supra, 99 Cal.App.4th at p. 396.)
II. Department’s failure to notify the court
In a related argument, the mother contends the Department should be estopped from claiming that notice was sufficient because it concealed the mother’s call on June 30 and failed to act immediately to provide her actual notice. Her contention fails.
The record establishes that the message of the telephone call was received by a social worker at the end of her work day, and that the social worker receiving the call was unaware of the court hearing. There was nothing in the message itself putting the social worker on notice that immediate action was required or that a court hearing was pending. The social worker addressed the message by returning the call and looking up the case information within a reasonable time frame of receiving it. It was only when the social worker returned the call the next day and actually spoke with the mother, that the social worker became aware that a hearing had taken place that morning. At the time the message was picked up, there was no information to suggest that the message was connected to the court hearing or that its contents impacted another social worker’s assignments. There is no evidence that either the attorney for the Department or the social worker appearing in court knew about the phone call. The doctrine of estoppel is not applicable in this situation since there can be no concealment without actual knowledge. (Adoption of Kelsey S. (1992) 1 Cal.4th 816, 853 (conc. & dis. opn. of Mosk, J.) [doctrine of estoppel applies when one party acts to prevent determination of truth].)
We also do not see any extrinsic fraud, another argument raised by the mother in a slightly different context. The mother claims the judgment should be set aside because it was obtained by extrinsic fraud. To be entitled to relief from a judgment on the grounds of extrinsic fraud, a party must show a meritorious defense that could have been raised but for the other party’s wrongful conduct, an intentional or reckless misrepresentation and justifiable reliance on the misrepresentation by the aggrieved party. (In re David H. (1995) 33 Cal.App.4th 368, 381-382.) The mother cannot show any of these elements. As we have already stated, there is no meritorious defense available, because the only showing at a .26 hearing is whether the child is adoptable and whether termination of the parent/child relationship would be detrimental to the child. The mother could not overcome the strong presumption that adoption is the appropriate permanent plan in this case given her lack of involvement during the reunification period and her nonexistent parental relationship with I.C.
Also, she cannot show intentional or reckless misrepresentation because the Department’s representatives in court had no reason to know the mother had called and the Department’s representative receiving the message had no reason to know of the hearing. Lastly, there is no justifiable reliance by the mother on the alleged misrepresentation because the mother’s attorney had notice that the mother was in custody again and because the mother, who knew there was a dependency case pending, was under an obligation to keep in contact with her attorney about the status of the case, something she did not do.
There is no misrepresentation here that affected the fairness of the .26 hearing sufficient to justify setting aside the termination order. If the mother was deprived of an opportunity to present a defense, it was by her own behavior, not that of the Department. In any event, the result would have been the same.
III. Ineffective-assistance-of-counsel claim
For the same reasons, the inability to establish prejudice defeats the mother’s ineffective-assistance-of-counsel claim. The mother claims her attorney was ineffective in not telling her on May 20, when the attorney represented her in the juvenile delinquency hearing, that the .26 hearing had been set and in not informing the court at the .26 hearing that the mother had been taken into custody on or about May 20. On review of ineffective-assistance-of-counsel claims, the appellate court requires a showing that (1) trial counsel failed to act in a manner expected of reasonably competent attorneys, and (2) it is reasonably probable that a more favorable result would have been obtained absent counsel’s failings. (In re Resendiz (2001) 25 Cal.4th 230, 239.) The record must affirmatively demonstrate “‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 389.) When an appellant cannot establish the second prong of this test, it is unnecessary to consider whether counsel’s performance was deficient. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126 [need not determine whether counsel’s performance was deficient before examining the prejudice suffered].) Having concluded the mother cannot show beyond a reasonable doubt that, had she been at the hearing or received actual notice of the hearing that the outcome would have been different, we can safely assume that any deficiency in counsel’s representation did not result in prejudice.
Having found no ground on which the section 388 petition should have been granted, we conclude it properly was denied.
IV. Remaining contention
The mother contends that the juvenile court erred when it concluded that, pursuant to section 366.26, subdivision (i)(1), it had no jurisdiction to reconsider its order terminating parental rights and asks us to reconsider our decision in In re Meranda P. (1997) 56 Cal.App.4th 1143, 1161-1163. We decline to do so since we already have concluded that the section 388 petition properly was denied because the mother was given notice by publication and cannot show prejudice from any failure to provide actual notice. As an appellate court, we review judicial action, not judicial reasoning. (City of National City v. Wiener (1992) 3 Cal.4th 832, 850 [well-settled principle of appellate review that correct decision of trial court must be upheld even if based on erroneous reasoning].)
For this reason, the request for judicial notice filed by the mother on December 2, 2008, and deferred by this court on December 4, 2008, is denied.
DISPOSITION
The order of the juvenile court terminating parental rights and denying the section 388 petition is affirmed. The request for judicial notice filed on December 2, 2008, is denied.
WE CONCUR: Vartabedian, Acting P.J., Hill, J.