Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from orders of the Superior Court of Tulare County No. 62097, Charlotte A. Wittig, Commissioner.
Darlene Kelly, under appointment by the Court of Appeal, for Defendant and Appellant.
Kathleen Bales-Lange, County Counsel, and Konstantine Demiris, Deputy County Counsel, for Plaintiff and Respondent, Tulare County Health and Human Services Agency.
Paula T. Abiss, for Respondent, I.R.
OPINION
Before Gomes, A.P.J., Dawson, J., and Hill, J.
E.F. appeals from an order terminating parental rights (Welf. & Inst. Code, § 366.26) to her half-brother, I.R. Appellant, also a dependent child, contends we must reverse because respondent Tulare County Health and Human Services Agency (Tulare County) failed to provide her statutory notice of the termination hearing (§ 294, subd. (a)(4)). In appellant’s view, Tulare County’s error deprived her of due process so that it is either per se reversible or not harmless beyond a reasonable doubt. She also joins in her mother’s claim of a beneficial parent/child relationship in a separate appeal the mother brought from the same order.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
On review, we will affirm. We hold Tulare County’s error was neither constitutional in nature nor prejudicial in any event. As to appellant’s joinder to her mother’s appellate issue, we have concluded in the mother’s appeal that the court did not abuse its discretion. The mother failed to maintain regular visitation and contact with I.R. over the course of his dependency.
PROCEDURAL AND FACTUAL HISTORY
In January 2007, then three-year-old I.R. was left outside and unsupervised in Bakersfield for approximately 20 minutes. The outdoor temperature was 33 degrees and the toddler had on neither a pair of shoes nor a jacket. His mother regularly left him and appellant, who was then 12 years old, unattended. Meanwhile, the family’s home had been without utilities for approximately two weeks and was deemed unsafe and unfit for occupancy. The family had been evicted as well. The mother regularly used drugs and had a history of using controlled substances despite court-ordered substance abuse treatment. Between 2001 and 2002, she also lost custody of and eventually parental rights to three other children due to her lack of supervision, physical abuse, and substance abuse. Those three children were younger than appellant but older than I.R.
The mother also lost custody of appellant through those 2001-2002 dependency proceedings. A court returned appellant to the mother’s care after it terminated her rights to the other children.
Consequently, the Kern County Department of Human Services (Kern County) detained appellant and I.R. as well as initiated dependency proceedings on their behalf. In February 2007, the Kern County Superior Court exercised its dependency jurisdiction (§ 300, subds. (b) & (j)) over the children.
During this pre-dispositional phase, appellant and I.R. shared a foster care placement and were doing well there. Neither child could be placed with their respective fathers and only one relative, I.R.’s paternal grandmother, had applied for relative placement.
Although I.R.’s paternal grandmother was approved for placement in mid-March 2007, Kern County did not immediately place I.R. with her. Initially, it had the following concerns. The paternal grandmother disclosed an unwillingness to care for appellant such that I.R. and appellant would be separated should relative placement occur. The paternal grandmother also lived in neighboring Tulare County which could impede sibling and parental visitation. Further, I.R.’s father, R.R. was often in the paternal grandmother’s home and, according to appellant, R.R. once molested her. In addition to the agency’s concerns, the mother objected to placing I.R. outside of the county.
Appellant had volunteered to a Kern County social worker when she was first detained that I.R.’s father raped her when she was nine.
Meanwhile, Kern County prepared a social study in which it recommended the court remove the children from their mother’s custody and deny her reunification services. Kern County cited the mother’s failure to reunify with her three older children, the termination of her rights to those children, and her subsequent and continued failure to make a reasonable effort to treat the problems that led to those children’s removal as grounds for no services (§ 361.5, subd. (b)(10) & (11)). Not only did the mother fail to make any current effort or progress towards sobriety, she did not take advantage of court-ordered visitation.
Kern County also initially recommended no reunification services for either child’s father. In the case of R.R., I.R.’s father, Kern County believed he was an alleged father and thus not entitled to services (§ 361.5, subd. (a)). However, instead of recommending a permanency planning hearing for the children, Kern County urged the court to find there was no clear and convincing evidence that the children were likely to be adopted and there was no one willing and appropriate to accept legal guardianship of them such that a planned permanent living arrangement in foster care was appropriate. Notably, Kern County did not offer any evidence in its social study to support such recommendations.
In any event and for reasons which are unclear from the record, the court continued the children’s dispositional hearing more than once. In the interim, Kern County submitted three supplemental reports. Relevant to this appeal, those supplemental reports, as well as earlier reports, disclosed additional information regarding the children’s placement and appellant’s molestation allegation.
The children’s foster parents expressed a willingness to obtain legal guardianship of the children. Meanwhile, the children’s social worker denied the paternal grandmother’s placement request based on the mother’s opposition. Kern County also learned that the mother and R.R. were married to one another and thus he might be entitled to presumed father status as to I.R.
In interviews with R.R., a Kern County social worker also inquired about appellant’s allegation that he had molested her. R.R. denied any molestation and claimed the mother made the accusation at a time when I.R. was in his care and in an effort to gain custody of I.R. R.R. admitted a judge placed I.R. with his mother but that the court did so not because of the molestation allegation but on account of a warrant for R.R.’s arrest. That warrant was apparently for domestic violence charges from 2004. R.R. admitted he was convicted of one such charge.
A review of criminal justice information system records for R.R. revealed he had a lengthy history of arrests and some convictions which were predominantly related to drugs and alcohol use. His record included two 2004 domestic violence charges (Pen. Code, § 273.5), the disposition of which was unknown. However, the records check did not disclose any arrest for sexual assault.
R.R. also reported to the children’s social worker that he was very ill and had days when he could not get out of bed. As a result, he was concerned about whether to request reunification services and was ambivalent about requesting placement and services. He consistently favored, however, I.R.’s placement with the paternal grandmother.
The Kern County social worker further investigated and reviewed a December 2004 referral to Tulare County child welfare services regarding appellant’s molestation claim. That referral indicated appellant was receiving counseling services and R.R. allegedly touched other children as well as appellant. According to the Kern County social worker, “the referral was evaluated out, as the mother was protective, and the child no longer had interaction with [R.R.]”
Notably, there had been 2001 and 2002 referrals, as well, involving appellant and possible molestation. During appellant’s previous dependency, the court placed her with her father. When she started living with her father and stepmother in 2001, there was a referral that appellant, then approximately seven years old, complained of frequent stomach and private parts hurting and she would not touch herself when bathing because she was afraid that it would hurt again. The symptoms reportedly stopped when the referral was made. The allegations were “substantiated” and appellant was “in therapy.” She remained out of her mother’s home and in her father’s care. Then, in 2002, after appellant was returned to her mother’s care, appellant claimed that, three to four years earlier, a teenage relative of her stepmother touched appellant’s vagina while they were playing “‘mommy and daddy.’”’ The social worker investigating the referral found it was unclear, from appellant’s presentation during an interview and her history, if the allegation was true. It was possible that during play “something may have occurred but given [appellant’s] age at the time of the incident, and her ability to rearrange the truth, it doesn’t appear that there is anything concrete.”
Meanwhile, starting in April 2007, I.R. had supervised visits with his paternal grandmother as well as his father. Although it took time, I.R. warmed up to his relatives and played with them. There were no concerns about the relatives’ appropriateness with I.R. In addition, although the paternal grandmother acknowledged she was in the process of moving R.R. into her residence, she also volunteered they would maintain separate residences should it be necessary for placement purposes.
As of late April 2007, Kern County recommended offering R.R. reunification services but not placement and leaving the issue of relative placement open for 30 days. The county hoped the time would facilitate a bond between I.R. and his paternal grandmother and lead to a gradual transition to I.R.’s placement into her home. According to Kern County, the additional time would also provide I.R. an opportunity to say goodbye to appellant.
Based on this latest recommendation, the children’s attorney at a May 1, 2007, hearing declared there was a conflict of interest between her young clients and asked to be relieved. The court relieved the attorney as counsel of record for I.R. Having appointed new counsel to represent I.R., the court continued I.R.’s dispositional hearing to May 16. On May 2nd, Kern County served written notice on appellant and her foster mother of I.R.’s May 16 dispositional hearing and their right to be present and the court’s authority to proceed whether or not they were present.
According to a further supplemental report, visits meanwhile continued between I.R., his father, and his paternal grandmother. I.R. was very happy to see them. Following a May 9, 2007, overnight stay with his paternal grandmother, I.R. did not want to leave and started to cry. When he returned to his foster home, I.R. was very angry about having to return. According to his foster mother, he told appellant “‘I’m sorry, I don’t want to stay with you, I want to go to my grandma’s. I want to live with my grandma.’”
The court conducted its dispositional hearing as to I.R. on May 16, 2007. Neither appellant nor her attorney attended the hearing. At the start of the hearing, the court addressed the placement issue, asking if the mother ever responded to Kern County’s recommendation that I.R. be placed with his paternal grandmother. According to the county counsel, there had been no response. The court then asked if R.R. still intended to live in his mother’s home. His attorney responded that R.R. was not currently living there and had no intention of living with her unless the court placed I.R. with him subject to family maintenance services. The reason R.R. wanted to live with his mother was so she could help him care for I.R.
I.R.’s attorney in turn argued against placement with the father. The child’s attorney also urged the court to order the father into counseling for both appellant’s sexual abuse allegation and the father’s substance abuse history.
R.R.’s attorney argued in opposition. She also requested, regardless of whether the court ordered family maintenance or family reunification services, that the court “transfer the matter to Tulare County where he resides because the only services being offered are to the [f]ather. The mother is not receiving services. And he will have better access to services if the matter is transferred out.”
The court in turn asked a series of questions. It learned the grandmother’s residence was in Tulare County, the father’s health conditions were “long-lasting” and transferring the case to Tulare County was appropriate according to county counsel. With the matter submitted, the court adjudged I.R. a dependent child and removed him from the mother’s custody. It next denied the father’s request for placement but offered him reunification services including parenting counseling and random drug tests. If he had a positive drug test for drugs or alcohol, he was to enroll in either substance abuse or alcohol counseling depending on what the test results showed. It also denied the mother reunification services pursuant to section 361.5, subdivisions (b)(10) and (11). As for visitation, the court ordered supervised visits for the mother once a month and supervised visits for the father twice a month. The court made no specific order for sibling visitation. It concluded by ordering the matter transferred to Tulare for further hearing. The court’s minute order added that the court ordered I.R. placed with his grandmother and that transfer of the child’s case was in his best interests.
The Tulare County Superior Court accepted transfer of the case in late May 2007 and set the case for a case plan adoption and status review hearing. Although the court mailed notice of the transfer-in hearing to the mother, father, and paternal grandmother as well as Tulare County and its county counsel, it did not serve appellant with such notice. Tulare County thereafter served the parties notice of subsequent hearings on I.R.’s dependency. However, it did not serve appellant with such notice.
In advance of the case plan adoption hearing, Tulare County prepared a “Disposition Report.” In it, Tulare County informed the court that I.R. was placed with his paternal grandmother in late May 2007 and, according to her, he was adjusting well and there were no problems. The paternal grandmother also wanted to be considered for guardianship or possibly adoption if the father failed reunification services. Tulare County meanwhile was unable to locate the father. He had traveled out of state where he was then hospitalized, apparently for internal bleeding, for a week.
Tulare County also reported that the Kern County Superior Court had ordered sibling visits to occur twice monthly for one hour. Tulare County further recommended that, in addition to the services ordered by the Kern County Superior Court, the father should attend individual counseling “to address the issue of abuse of a 9 year old child.” This recommendation followed Tulare County’s recital of the Kern County social study and supplemental reports, including Kern County’s investigation of appellant’s report that R.R. molested her in 2004.
The court adopted Tulare County’s recommendations, including the abuse counseling, at a June 2007 hearing attended by county counsel, the social worker, I.R., his attorney, and his grandmother. The court also set its six-month status review for mid-August 2007.
According to Tulare County’s status review report, I.R.’s father remained out of state. According to the paternal grandmother, he was still feeling ill and had been readmitted to the hospital. As a result, he had not complied with the case plan.
Meanwhile, I.R. continued to do well in his grandmother’s care. He reported he liked living at his grandmother’s house. During four social worker visits to the home, the child appeared to feel comfortable with his grandmother and always had a smile. “His smiles appear[] to be a sign of how much he loves being at his grandmother’s house.” The grandmother had not reported any concerns and, as of early August 2007, stated she wanted to adopt I.R.
Under the category of “Sibling Visits,” Tulare County reported according to the Kern County Superior Court orders: “Sibling visits are to occur twice monthly for one hour. On 8/3/07, [I.R.] had his visit with [appellant] in the city of Tulare at Del Taco from 10-1.”
At the August 2007 six-month status review hearing in I.R.’s case, his father waived further reunification services. In turn, the court accepted the waiver and set the matter for a December 2007 section 366.26 hearing to select and implement a permanent plan for I.R. During the hearing, the court also asked the paternal grandmother who was present whether it was her desire to adopt I.R. She replied “Yes, it is.” In its written findings and orders, the court found the appropriate and anticipated permanent plan for I.R. would be that of adoption. It also found visits between the siblings were consistent with the children’s best interests. It ordered supervised sibling visits for two hours but did not clarify whether those visits were to occur weekly or monthly. It also continued its order for twice-weekly supervised visits for two hours each between I.R. and his father.
In advance of the section 366.26 hearing, the agency prepared a report in which it assessed I.R. as likely to be adoptable and recommended the court order termination of parental rights. I.R. was in good health and developmentally on target. He did not, as yet, attend school. However, his grandmother, who was a retired schoolteacher, was teaching him his colors, letters, and numbers. He knew how to count to seven and was learning to write his name. He did not receive any mental health services. The grandmother, who also had been identified as his prospective adoptive parent, described I.R. as sleeping well and having a good appetite. He had a good relationship with an eight-year-old cousin who also lived in the grandmother’s home. Although I.R. was shy, he was able to engage in conversation when prompted.
In assessing I.R. as adoptable and recommending adoption as the permanent plan, an adoptions social worker with Tulare County reported I.R. was not a member of a sibling group. However, she added:
“[H]is maternal half sister, [appellant] age 12, lives with the child’s maternal grandmother. The records indicate the children lived together prior to his detention. This Social Worker observed that the children appeared to get along. Both grandparents have stated that visitation still continue as they mature. [The Court records indicate that the maternal half sister [appellant], a dependent of Kern County, is in Family Reunification with her mother.] It does not appear that termination of paternal rights would interfere with the sibling relationship with [appellant].”
The reference to “paternal rights” in this and another sentence is not a misprint in this opinion. Appellant speculates it may not have a misprint in the original report. Given the context, we disagree with appellant’s speculation.
In another portion of the 366.26 WIC Report, the Tulare County social worker summarized the history of contacts between I.R. and his family. Relevant to this appeal, the grandmother stated I.R. saw his father twice a week and she was the designee to supervise those court-ordered visits. They took place either at her house or the father’s house. The adoption social worker also noted the court had ordered two-hour visitation between I.R. and appellant but added, “The order does not indicate if it is two hours per week or month.”
The visits with appellant were at the same time as I.R.’s visits with his mother. The adoption social worker supervised such visits on September 28 and October 25. Another visit was scheduled for November 2007. According to the adoption social worker, appellant prompted I.R. to engage in conversation and give her a hug and a kiss. By contrast, according to the social worker, I.R. was happy to see his mother and was able to initiate conversation and affection with her. During the visit, appellant sat quietly in a corner while I.R. and the mother engaged in activities. At the end of the visit, appellant asked I.R. for a hug goodbye and he reciprocated. Although I.R. appeared to enjoy visiting his mother and appellant, his primary bond appeared to be with his paternal grandmother.
I.R. was too young to make a statement regarding his placement and possible adoption. However, the adoption social worker reported she had observed that he and the grandmother appeared close to one another. It also did not appear to the adoption social worker that “termination of paternal rights would be detrimental to the minor.”
The mother made her first appearance in the Tulare County proceedings on the date originally set for the section 366.26 hearing. The court appointed counsel to represent her and consequently continued the hearing to January 2008.
On the continued hearing date, the mother and both grandmothers were present. Tulare County and I.R.’s counsel argued in favor of terminating the parents’ rights while the mother argued against termination, claiming she had a beneficial parent/child relationship with I.R. Having read and considered the “366.26 WIC Report,” the court found I.R. likely to be adopted and terminated parental rights. It also rejected the mother’s argument. The court declared future visitation between I.R. and his parents was within the discretion of the social worker. The court made no specific reference to sibling visits. The court did, however, declare all prior orders not in conflict with its order to terminate parental rights remained in full force and effect.
Augmented Record Regarding Appellant’s Dependency
During the record-preparation stage of this appeal, this court authorized the preparation of a limited record of appellant’s Kern County dependency proceedings based upon her request. That supplemental record consists of: a section 388 request for modification which appellant’s trial counsel filed in June 2007 with the Kern County Superior Court; a Kern County Superior Court minute order for August 7, 2007, and a reporter’s transcript of the August 7, 2007 hearing.
The supplemental record reveals that in June 2007 appellant’s trial counsel petitioned (§ 388) the Kern County Superior Court to place both children, presumably together, in a planned permanent living arrangement. Trial counsel alleged that on May 1, 2007, the court set both appellant’s case and I.R.’s case for an August 7, 2007, permanency planning hearing, ordered appellant be given notice of any future hearing for I.R. regarding permanency planning, and order sibling visits of four hours, two times a month. She alleged circumstances had changed because the plan as of May 1 was that the foster parents would take guardianship of both children. However, each child had been removed from the foster home with appellant going to “Jamison,” a group home, and I.R. being placed with his paternal grandmother. According to appellant’s trial counsel, the children were removed from the foster parent’s home after I.R. allegedly reported to appellant that the foster parents were hitting him. He also allegedly complained his penis hurt. Appellant in turn inspected her brother’s penis and found what appeared to bite marks. Allegedly, she reported the abuse to a social worker, the children were removed and the foster home decertified. Appellant’s trial counsel did not attach any documentary evidence in support of her request. She did notice the attorneys for each parent and Kern County but did not notice the attorney, previously appointed by the Kern County Superior Court, for I.R.
The Kern County Superior Court granted a hearing on the petition even though appellant’s trial counsel failed to set forth how the requested change in orders would be in the best interest of either child. The court conducted its hearing on the same day as a scheduled permanency planning hearing for appellant. At that hearing, appellant’s trial counsel acknowledged her awareness that I.R.’s dependency had been transferred to Tulare County Superior Court. She also requested that Kern County contact Tulare County about arranging visits and possibly requesting another placement for I.R. with other family members in that area. Appellant did not introduce any evidence at the trial either in support of the petition or counsel’s other requests. Nonetheless, the court ordered telephone contact and directed Kern County to investigate “the appropriateness and facilitation of sibling visits.” Otherwise, the court found by clear and convincing evidence that there was no one willing to adopt appellant nor willing to accept the legal responsibilities of guardianship. It in turn selected long-term foster care as the appropriate permanent plan for appellant.
Post-Termination Evidence Submitted by Request for Judicial Notice
Later, during the briefing stage of this appeal, respondent asked this court to take judicial notice of a minute order for and a reporter’s transcript of a recent May 2008 hearing, conducted by the Tulare County Superior Court in I.R.’s dependency. We deferred ruling on the request and gave appellant an opportunity to respond. In her reply brief, appellate counsel states she does not object to this court considering such documents and asks that we grant respondent’s request.
The minute order and reporter’s transcript reveal that on May 30, 2008, the Tulare County Superior Court considered a petition, brought by appellant, apparently asking the court to make a formal sibling visitation order and to order Tulare County to investigate the possibility of an ongoing visitation plan for the children post-adoption. Appellant’s attorney advised the court that this appeal was pending and that appellate counsel could not find a visitation order in the record. The court also considered testimony from appellant.
We say “apparently” based on counsel’s argument to the trial court. Neither side asked this court to consider the actual petition filed by appellant’s trial counsel.
Appellant, who by this point was 13 years old, testified she lived with I.R. “[m]ostly his whole life.” They had been separated for a little over a year and prior to that always lived together. According to appellant, she cared for I.R. by bathing and feeding him. She felt as though he was “half my baby” because when her mother “was doing drugs” appellant would take care of him. She also claimed she took care of I.R. when her mother went out “to get stuff.”
When the two of them were first detained in a foster home, they lived together in the same home for four or five months, they were happy and the foster parents were going to assume guardianship of them. She testified she was removed from that foster home because the foster dad was touching I.R. She knew it was true because I.R. told her so and she saw that I.R.’s penis was red and had “like marks, too.” Appellant testified she reported this to her social worker and her attorney. Then, I.R. went to live with his grandmother and appellant moved to Jamison, “where all the kids go.”
Appellant testified she next visited I.R. around February 2008. The visits since then had occurred at a Visalia fast-food restaurant and were supervised by social workers. The visits in her view went well and I.R. seemed happy to see her. He ran up to her and hugged as well as kissed her. He also played with her and seemed happy.
Appellant later corrected herself to add she also saw I.R. twice while she lived with her grandmother. According to appellant, her grandmother lived to close to where I.R.’s paternal grandmother lived. Appellant did not testify when she went to live with her grandmother but did state she was removed from her grandmother’s home “since December” 2007 due to her grandmother’s health. Appellant was again in foster care.
Appellant also testified I.R.’s father raped her when she was nine years old. She further denied ever inappropriately touching I.R.
In its ruling, the court stated that on December 7, 2007, it ordered supervised, two-hour visits between the children and its intent was that the two hour visits occur monthly. Appellant’s trial counsel then modified her visitation request to visits twice a month for one hour. The court left its visitation order at once a month for a minimum of two hours. It further stated it could not order post-adoption contact but it could and would direct the social worker to explore post-adoption contact with the paternal grandmother. Appellant did not appeal that decision to this court.
DISCUSSION
It is undisputed respondent Tulare County failed to give appellant notice of her brother’s section 366.26 hearing, not to mention the previous hearings conducted since the transfer of I.R.’s dependency to the Tulare County Superior Court. Respondent’s lapse violated section 294, specifically subdivision (a)(4). Section 294, subdivision (a)(4) requires notice of a section 366.26 hearing be given to, in relevant part, “[a]ny known sibling of the child who is the subject of the hearing if that sibling either is the subject of a dependency proceeding or has been adjudged to be a dependent child of the juvenile court.” If, as in this case, the sibling is 10 years of age or older, notice should be given to the sibling, the sibling’s caregiver, and the sibling’s attorney. (§ 294, subd. (a)(4).)
This notice provision, as well as other notice provisions pertaining to siblings who are dependent children, have been in effect since 2004. (Stats. 2003, ch. 558 (A.B. 579) § 6.) According to legislative history submitted by appellant in a request for judicial notice, the purpose of these notice requirements is to ensure courts receive important information that a sibling might be able to provide regarding the sibling relationship or the extended family. (Assem. Com. on Judiciary, Analysis of Assem. Bill No. 579 (2003-2004 Reg. Sess.) April 1, 2003.)
To date, there is little published case law regarding this requirement and none regarding appellant’s essential claim, that is: her statutory right to notice should be entitled to the same constitutional due process protection afforded to a parent’s right to notice. Appellant acknowledges there is no published case law addressing the standard of prejudice applicable to a failure to notice a dependent sibling under section 294. She nevertheless contends the lack of notice to her was fundamentally unfair, constitutes structural error, and is per se reversible error.
A. Standing
Before we reach the merits of appellant’s contention, we consider respondent’s preliminary claim that appellant lacks to standing to challenge the order terminating parental rights to I.R. because she was neither a party to his dependency proceedings nor was she aggrieved. (Marsh v. Mountain Zephyr, Inc. (1996) 43 Cal.App.4th 289, 295.) It is undisputed that appellant was not a party to her brother’s dependency. The parties debate, however, whether appellant nonetheless has a significant interest in her sibling relationship with I.R., which is adversely affected by the court’s decision to terminate parental rights. (Ibid.) Although appellant acknowledges the decision to terminate parental rights does not terminate her sibling relationship (In re Miguel A. (2007) 156 Cal.App.4th 389, 394-396), she claims the court’s decision nonetheless substantially interferes with the sibling relationship. Respondent argues otherwise citing the record that visits have continued despite the termination order. Appellant also cites cases in which nonparties, such as a grandparent (Charles S. v. Superior Court (1985) 168 Cal.App.3d 151, 153; In re Aaron R. (2005) 130 Cal.App.4th 697, 702-705) or a child’s caretakers (Wayne F. v. Superior Court (2006) 145 Cal.App.4th 1331, 1336) have been afforded standing to appeal a dependency court ruling.
Notwithstanding appellant’s and respondent’s arguments, we are struck by the fact respondent bears at least some responsibility for the standing issue. Had respondent provided appellant with the requisite notice of the section 366.26 hearing, she could have applied, in turn, to the trial court under section 388, subdivision (b) for the opportunity to be heard before the court determined and implemented I.R.’s permanent plan. Section 388, subdivision (b) provides:
“Any person, including a child who is a dependent of the juvenile court, may petition the court to assert a relationship as a sibling related by blood, adoption, or affinity through a common legal or biological parent to a child who is, or is the subject of a petition for adjudication as, a dependent of the juvenile court, and may request visitation with the dependent child, placement with or near the dependent child, or consideration when determining or implementing a case plan or permanent plan for the dependent child or make any other request for an order which may be shown to be in the best interest of the dependent child. The court may appoint a guardian ad litem to file the petition for the dependent child asserting the sibling relationship if the court determines that the appointment is necessary for the best interests of the dependent child. The petition shall be verified and shall set forth the following:
“(1) Through which parent he or she is related to the dependent child.
“(2) Whether he or she is related to the dependent child by blood, adoption, or affinity.
“(3) The request or order that the petitioner is seeking.
“(4) Why that request or order is in the best interest of the dependent child.”
Further, had appellant petitioned to be heard and the court denied her request, she could have appealed that decision. (See In re Hector A. (2005) 125 Cal.App.4th 783.) Had the court granted her petition, but nonetheless rejected her substantial interference claim, appellant most likely would have standing to appeal that decision as well. (See Charles S. v. Superior Court, supra, 168 Cal.App.3d at p. 153; In re Aaron R., supra, 130 Cal.App.4th at pp. 702-705.)
Under these circumstances, we will reject respondent’s standing argument.
B. A Statutory, Not a Constitutional Right to Notice
It is well established that notice to parents of their children’s dependency proceedings is not only statutorily required but constitutionally compelled. (In re B.G. (1974) 11 Cal.3d 679, 688-689; In re Antonio F. (1978) 78 Cal.App.3d 440, 447-448.) The state must afford a parent adequate notice and an opportunity to be heard. The total absence of such notice cannot comport with the requirements of due process. (In re B.G., supra, 11 Cal.3dat p. 689, citing Mullane v. Central Hanover Tr. Co. (1950) 339 U.S. 306, 314-315.) The reason for such due process protection is a parent’s compelling interest, ranked among the most basic of civil rights, in the companionship, care, custody and management of his or her children. (In re B.G., supra, 11 Cal.3d at pp. 688-689, citing Stanley v. Illinois (1972) 405 U.S. 645, 651.) Indeed, parental rights are a fundamental liberty interest. (Santosky v. Kramer (1982) 455 U.S. 745, 753-754; see also Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 251.)
The same, however, has not been said of a child’s interest as a sibling. To the extent the United States Supreme Court or the California Supreme Court has addressed constitutional protections afforded to children, the courts have not defined a child’s sibling relationship as a compelling interest. Rather, they have focused on a child’s interest in a parent/child relationship, protection from harm, and a stable and permanent placement. A child and his or her parents share a vital interest in preventing an erroneous termination of their relationship until the state has established parental unfitness. (Santosky v. Kramer, supra, 455 U.S. at p. 760.) By the point of a section 366.26 hearing to select and implement a child’s permanent plan, the interests of the parent and the child have diverged. (Cynthia D. v. Superior Court, supra, 5 Cal.4th at p. 254.) Indeed, children have a fundamental independent interest in belonging to a family unit and they have compelling rights to be protected from abuse and neglect and to have a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child. (In re Marilyn H. (1993) 5 Cal.4th 295, 306, see also In re Jasmon O. (1994) 8 Cal.4th 398, 419.) Neither the United States Supreme Court nor the California Supreme Court has broadened their declaration of fundamental and therefore constitutionally-protected interests of children to include the sibling relationship.
Nonetheless, appellant cites Judith P. v. Superior Court (2002) 102 Cal.App.4th 535, 557-558 (Judith P.), for the proposition it is “fundamental unfair” to terminate a child’s familial relationship when the child was not given a meaningful opportunity to be heard. If by this reference appellant infers a child’s familial relationships include a sibling relationship, we disagree.
Judith P. involved a department’s failure to provide a mother, her counsel and her children’s counsel with copies of a status review report. According to the status review report, the department did not know if the parent was in compliance with her case plan and recommended the court terminate services and set a section 366.26 hearing to free the children for adoption by their foster family. (Judith P., supra, 102 Cal.App.4th at pp. 542-543, 558.) The trial court denied the parent a continuance as well as a contested hearing on the recommendation to terminate services. (Judith P., supra, 102 Cal.App.4th at pp. 543-544.)
The appellate court ruled the department’s failure to provide copies of its report violated constitutionally-required due process in that it deprived the parent reasonable notice of the issues raised by the report as well as the opportunity to rebut the evidence. (Judith P., supra, 102 Cal.App.4th at p. 558.) In so doing, the court referred to the parent’s constitutional right to parent and the children’s right to be raised by their families of origin, citing Cynthia D. v. Superior Court, supra, 5 Cal.4th at p. 255 and noting the case was still in the reunification stage when the parent’s and children’s interests remained aligned. (Judith P., supra, 102 Cal.App.4th at pp. 545-546 & 554, fn. 13.)
It was under these circumstances that the Judith P. court made the statement “[i]t is fundamentally unfair to terminate either a parent’s or a child’s familial relationship if the parent and/or child has not had an adequate opportunity to prepare and present the best possible case for continuation of reunification services and/or reunification.” (Judith P., supra, 102 Cal.App.4th at pp. 557-558.) Appellant’s reliance on this statement to claim a due process right to notice of I.R.’s termination hearing is misplaced in that she takes the Judith P. statement out of its context and ignores the premise of the due process right at stake, that is the parent’s right to parent and a child’s right to be raised by his or her family of origin up until the permanency planning stage.
We also note that in the legislative history, cited by appellant, underlying the notice requirements for dependent siblings, such as section 294, subdivision (a)(4), there is no statement that such notice is compelled because children have a constitutionally-protected interest in their sibling relationships. Rather, as previously mentioned, the purported goal of the legislation was to ensure courts receive important information that a sibling might be able to provide regarding the sibling relationship or the extended family. (Assem. Com. on Judiciary, Analysis of Assem. Bill No. 579 (2003-2004 Reg. Sess.) April 1, 2003.)
Nothing we say here is intended to minimize the importance of sibling relationships, the statutory protections afforded such relationships when children must be removed from parental care, or the error committed here. However, given the rationale of the United States Supreme Court and the California Supreme Court in declaring due process rights for parents and children in dependency proceedings and in particular a child’s compelling interest, not in a sibling relationship, but rather a parent/child relationship and short of that a stable and permanent placement, we conclude violation of a dependent child’s statutory right to notice of a sibling’s dependency proceedings does not violate due process. In any event, the error cannot be characterized as structural such that prejudice would be irrelevant and reversal deemed essential to vindicate the right at issue. (In re James F. (2008) 42 Cal.4th 901, 917.) In a dependency proceeding prejudice is a relevant question when the welfare of the child is at issue and delay in resolution of the proceeding is inherently prejudicial to the dependent child. (Ibid.) If the procedural error caused no actual harm so that outcome of a proceeding has not been affected, denial of a right to notice and a hearing may be deemed harmless and reversal is not required. (Id. at pp. 916-918.)
C. Harmless Error
To assess prejudice on appellant’s claim of error, we have considered the augmented record from appellant’s dependency proceeding as well as the post-termination evidence, namely the May 2008 hearing on appellant’s section 388, subdivision (b) petition in addition to the rest of the appellate record as summarized above. We do so noting that both appellant and Tulare County have invited, if not urged, our consideration of such additional evidence. Also, such additional evidence assists us in evaluating appellant’s claims as to what she could or would have argued had she received notice and been granted the opportunity to be heard. In this regard, we are mindful of the state Supreme Court’s prohibition of an appellate court considering postjudgment evidence to find error and reverse a dependency court ruling (In re Zeth S. (2003) 31 Cal.4th 396, 405). Under the present circumstances, however, we do not believe consideration of the postjudgment evidence to evaluate prejudice runs afoul of the rule in In re Zeth S., supra.
Appellant claims she could have provided the court important information on five issues, any one of which might have compelled a different result. We have reviewed the record regarding each of those potential issues and conclude the failure to give appellant notice was harmless under any prejudice standard. (In re James F., supra, 42 Cal.4th at pp. 916-918.)
1. Sibling Relationship Evidence
First and foremost, appellant contends she could have raised the “sibling relationship” exception to termination of parental rights, contained in section 366.26, subdivision (c)(1)(B)(v). This exception permits the trial court to consider possible detriment to an adoptive child, but not a sibling of that child. (In re Celine R. (2003) 31 Cal.4th 45, 54.) The sibling’s view of the relationship may be relevant as indirect evidence of the effect adoption may have on the adoptive child. (Id. at p. 55.)
Section 366.26, subdivision (c)(1)(B)(v) authorizes a trial court to find a compelling reason for determining that termination would be detrimental to the child if
As the California Supreme Court explained in In re Celine R., supra, 31 Cal.4th at page 61:
“[T]he ‘sibling relationship exception contains strong language creating a heavy burden for the party opposing adoption. It only applies when the juvenile court determines that there is a “compelling reason” for concluding that the termination of parental rights would be “detrimental” to the child due to “substantial interference” with a sibling relationship.’ (In re Daniel H. [(2002)] 99 Cal.App.4th [804,] 813, quoting § 366.26, subd. (c)(1).)”
Appellant cites the time she and I.R. previously lived together, essentially the first four years of his life, and claims throughout that period it was she who took care of I.R. She also notes the record evidence from Kern County that as of the spring of 2007 I.R. was “very close” with her as well as the mother and the county’s initial concern about placing the children in separate homes. Appellant further contends her testimony at the May 2008 hearing demonstrates the strength of their sibling bond. Based on this showing, appellant suggests the court might have ordered a bonding study and in turn selected a permanent plan short of adoption for I.R. We disagree.
First, appellant overstates the appellate record. For example, at least briefly in 2006, she lived with her father and not with I.R. Also a 2005 referral, upon which appellant relies, that the mother always left the children alone leaving appellant to provide care was closed as unfounded.
Appellant also overlooks the evidence of I.R.’s happiness in his placement with his grandmother and the ease of his transition despite his separation from appellant. She also fails to mention that, as the placement transition occurred in 2007, I.R. was angry about having to return to his foster home with appellant and told her so.
We note there was also the social worker’s description of some of their subsequent visits, namely that it was appellant who prompted I.R. to talk to her as well as to show her affection. Also, during their visits which they had shared with their mother, appellant sat quietly in a corner while I.R. and the mother engaged in activities.
No doubt I.R. was happy to see appellant during visits. However, the evidence does not support a conclusion that they had such existing close and strong bonds by the time of permanency planning that adoption would cause substantial interference. (§ 366.26, subd. (c)(1)(B)(v).)
In addition, appellant argues she could have introduced evidence that termination would substantially interfere with their relationship because (1) there was no assurance I.R.’s paternal grandmother and prospective adoptive parent would facilitate the relationship; and (2) appellant no longer lived with her grandmother, who along with I.R.’s paternal grandmother were in agreement, according to Tulare County’s evidence, about future contact between the siblings. Rarely can there be any assurance that sibling visits will be facilitated upon adoption. That is because post adoption sibling contact is voluntary and cannot be enforced. The lack of such assurance in our view cannot be dispositive on the issue of the sibling relationship exception; otherwise, application of the exception would be a regular occurrence, despite the strong language of section 366.26, subdivision (c)(1)(B)(v). (In re Celine R., supra, 31 Cal.4th at p. 61.) Furthermore, the fact that appellant was no longer placed with her grandmother says little about the future for contact between appellant and I.R.
In any event, the trial court must also balance whatever benefit, emotional or otherwise, the child would obtain from ongoing contact with the sibling against the benefit of legal permanence the child would obtain through adoption. (§ 366.26, subd. (c)(1)(B)(v); see In re L.Y.L. (2002) 101 Cal.App.4th 942, 949.) We note in this regard I.R. was still a very young child in comparison to appellant and faced more than half of his remaining childhood without the legal permanence and stability adoption would provide. The lack of notice caused no actual harm in this regard.
2. Appellant’s Report of Molestation by R.R.
Appellant next contends she would have raised her claim that she was previously molested by I.R.’s father and that this information might have led the court to order an assessment of the paternal grandmother’s ability to protect I.R. from his father and whether she believed her son was a child molester. Yet, the court already had been informed of her molestation claim in the various reports prepared both by Kern County and Tulare County over the course of I.R.’s dependency. Nevertheless, this information did not prompt the court to order such an assessment. At most, the court previously ordered that I.R.’s father participate in abuse counseling. It did not question the paternal grandmother’s ability to protect I.R.
At oral argument, appellant asserted it was unclear whether the Tulare County Superior County ever considered her report of molestation, among other evidence previously reported, at the termination hearing. The appellate record’s silence on this point does not support appellant’s assertion. (Wilson v. Sunshine Meat & Liquor Co. (1983) 34 Cal.3d 554, 563 [all intendments and presumptions are indulged to support the judgment on matters as to which the record is silent].)
Furthermore, appellant testified before the court on this subject at the May 2008 hearing. Notably, the court did not order the assessment or take any similar action in furtherance of I.R.’s best interests which appellant argues it might have had she received notice and been granted the opportunity to be heard at the earlier termination hearing.
3. Appellant’s Claim that I.R. was Physically and Sexually Abused While in Foster Care
Appellant next contends she would have offered to the court her description of why she and I.R. were removed from foster care in 2007. Had the court heard her explanation, appellant suggests the court might have ordered a mental health assessment of I.R. and any recommended treatment to address the alleged abuse and any grief associated with his separation from appellant.
However, appellant did testify to the court on this point at the May 2008 hearing and her description did not prompt the court to issue such an order to promote I.R.’s best interest. Thus, we are not persuaded by appellant’s claim of prejudice in this regard.
4. Lack of Sibling Visits
Appellant further claims there was evidence disputing the paternal grandmother’s commitment to continued sibling contact. Appellant contends the record shows the paternal grandmother and appellant’s grandmother did not facilitate sibling visitation between May 2007 and August 2007 despite a Kern County order for twice-a-month visits. She also points out, according to her May 2008 testimony, she no longer lived with her grandmother by the time of I.R.’s termination hearing.
We question appellant’s characterization of the appellate record. It does not support her contention. At most, the record shows according to the August 2007 status review report in I.R.’s case that he and appellant had a three-hour visit on August 3, 2007. Also, according to appellant’s testimony at her own section 366.26 hearing in August 2007, she had been placed at Jamison since May 2007; she apparently was not placed with her maternal grandmother until sometime thereafter. Further, we note appellant did not complain, let alone submit any evidence, to the Kern County Superior Court at the August 2007 hearing that the paternal grandmother was not facilitating visits or that, assuming she was informed of the court’s order, she was not complying.
Although the Tulare County Superior Court was unaware at the time of the termination hearing in I.R.’s case that appellant was no longer placed with her maternal grandmother, it did become aware of that fact during the May 2008 hearing. Once again, however, the new information did not prompt the court to issue any new or different visitation order in furtherance of I.R.’s best interest.
5. The Paternal Grandmother’s Preference
Last, appellant contends the paternal grandmother may have preferred to become I.R.’s legal guardian rather than his adoptive parent. Because the termination hearing was conducted in January 2008, appellant adds, the law had changed such that the court could have appointed the paternal grandmother with whom I.R. lived as his legal guardian, rather than terminate rights, if that was the paternal grandmother’s preference. (§ 366.26, subds. (b)(2) & (c)(1)(A).)
Appellant’s claim about the paternal grandmother’s preference is not only speculative, it ignores the relative’s repeated statements, both in the written reports and in response to a direct question from the court that she wanted to adopt I.R. In addition, appellant fails to explain how, had she been able to address the court at the January 2008 termination hearing, this issue might have been litigated such that the court would not have terminated parental rights.
One final note on the question of prejudice. There is an obvious irony here. Appellant claims had she received notice of the termination hearing she would petition for the opportunity to be heard. However, when she did receive notice of her brother’s disposition hearing, at which she could have petitioned the court not to do anything to jeopardize her sibling relationship, appellant took no action.
At oral argument, appellate counsel suggested there may have been no reason to appear because her concerns were already reflected in the social worker reports. If that was the case then, how is it not the same by the termination hearing, that is, the evidence of those concerns remained in the record. Thus, we question, having foregone these opportunities, appellant’s claim of prejudice.
D. Cumulative Error Claim
Appellant finally claims there was cumulative error in that she did not receive notice of the request to transfer I.R. case to the Tulare County Superior Court, the Kern County Superior Court erred in transferring I.R.’s case, and she did not receive notice of the intervening hearings conducted in the Tulare County Superior Court leading up to the termination hearing. Assuming for the sake of argument that at least some of these claims are reviewable on appeal from the termination order, we are not persuaded that appellant is entitled to any relief.
First, the Kern County Superior Court order transferring out I.R.’s case arose in response to his father’s request made in the midst of the May 2007 dispositional hearing. By this point the children’s cases had been bifurcated; but, appellant had received proper notice of I.R.’s dispositional hearing. However, neither appellant nor her attorney attended the dispositional hearing. Also, appellant did not petition under section 388, subdivision (b), for an opportunity to be heard regarding the court’s disposition of her brother’s dependency.
Further, the augmented record shows her attorney was aware, i.e. had actual notice, that I.R.’s case had been transferred. However, the attorney apparently took no action in response. Thus, we also question why we should overlook that silence and still evaluate appellant’s claims in this regard.
Finally, although it is undeniable that Tulare County did not provide appellant with notice of the other hearings to be held in Tulare County Superior Court, she fails to establish prejudice in terms of the outcome. I.R. had a chance for at first a relative placement and later an adoptive placement, neither of which was effectively available to appellant. This is regrettable, as is the tension between these preferred placements for I.R. and the sibling relationship. However, in the end, we have no doubt that a court in balancing the children’s respective interests would have reached the same conclusion had appellant received earlier notice.
DISPOSITION
The parties’ respective requests for judicial notice are granted. The order terminating parental rights is affirmed.
“There would be substantial interference with a child’s sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child’s best interest, including the child’s long-term emotional interest, as compared to the benefit of legal permanence through adoption.”