Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Super. Ct. No. CK33130, A. Trendacosta, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant, for Mother, Maria R.
Lisa A. DiGrazia, under appointment by the Court of Appeal, for Defendant and Appellant, for Father, Alfredo V.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Kim Nemoy, Deputy County Counsel, for Plaintiff and Respondent.
CROSKEY, J.
In this dependency matter (Welf. & Inst. Code, § 300 et seq.), the mother of the six dependent children in the case challenges the termination of her parental rights to five of those children. The father of five of the children has also appealed. He does not contend that error was committed when his own parental rights were terminated. Rather, he has joined in the mother’s contentions and arguments respecting the termination of her parental rights to the extent those contentions and arguments inure to his benefit, and he contends that if her parental rights are reinstated then his parental rights must also be reinstated. The petitioner in the case, the Los Angeles County Department of Children and Family Services (the Department), contends that both parents have failed to present a convincing argument for relief.
Unless otherwise indicated, all references herein to statutes are to the Welfare and Institutions Code.
The appeal presents the question whether the Department provided proper section 366.26 notice to the mother for termination of her parental rights. Our review of the appellate record convinces us that notice was proper. Therefore, the terminating order will be affirmed.
BACKGROUND OF THE CASE
1. Initial Dependency Proceedings for the Minors
When this case commenced in May of 2007 with the filing of the section 300 dependency petition, there were five minors of concern to the dependency court. They are Freddy V., who was nine years old at that time, Jasmine V., who was five, Raymond V. who was three, David V. who was two, and Ruby V. who was just 11 months old.
Freddy already had an open dependency case which began in March of 1998. In 1999 the dependency court issued a protective custody warrant for Freddy and an arrest warrant for Freddy’s parents because Freddy had been under a home of parent court order and his parents had disappeared with him. The sustained allegation in Freddy’s own section 300 petition is that his home was found to be in a filthy and unsanitary condition, to have no running water, proper sewage drainage, plumbing, or electricity, to have garbage waste throughout the home, to have dirty walls made of broken dry wall with holes and cracks, and to be without food. Because of Freddy’s earlier dependency petition, the Department filed a section 342 subsequent petition for him when it filed the section 300 petition for his siblings.
The parents of the five minors are Maria R. (Mother) and Alfredo V. (Father). Father was incarcerated in the Men’s Central Jail in Los Angeles when the section 342 and 300 petitions were filed, having been arrested in August of 2006 for domestic violence and an outstanding misdemeanor warrant for possession of methamphetamine. He was also facing a homicide charge.
A sheriff’s report included with the Department’s detention report states that Father is a violent gang member who is into weapons and drugs, had possibly killed people, and had physically abused Mother many times, including at least one act of domestic violence that was very, very violent. As the instant case progressed, Father’s homicide charge came to trial and he was convicted of first degree murder and received a sentence of 50 years to life. According to the appellate record, a man who was to be a witness for the prosecution in the murder and domestic violence cases against Father happened to pass away and thus could not be interviewed by the Department.
The minors were detained by the dependency court on May 30, 2007. At their adjudication/disposition hearing on September 14, 2007, the court sustained the following allegations: (1) the parents failed to follow court orders in minor Freddy’s dependency case to keep the Department and the court advised of the minor’s whereabouts while under the court’s supervision and such action by the parents endangered the minor’s physical and emotional safety, created a detrimental home environment, and placed the minor at risk of harm; (2) in May 2007 all of the minors were found to be living in a filthy and unhygienic condition; they had not been bathed for several days, were not wearing underwear, David’s diaper had not been changed and he had a large amount of feces on his buttocks, and this places the minors at risk of harm; and (3) the parents have a history of domestic violence which also places the children at risk of harm. The court declared that Freddy would remain a dependent child of the court and it terminated the home of parent order that it had issued for him in 1999. The other children were declared dependents of the court, and physical custody of all five children was taken from the parents. Reunification services and monitored visits were ordered.
When they were detained from the parents by the social worker, the minors were taken to an agency office and bathed thoroughly to clean them and remove urine and fecal odor. It was suspected at that time that the family home had no plumbing, running water and electricity because it was the same location at which Mother and Freddy were found in 1998 to be living and the home was in that condition back then. Mother admitted to the social worker that she used a neighbor’s swimming pool to give the children their baths.
2. Summary of Events between Disposition and Termination of Parental Rights
a. Mother’s Participation in the Case
Mother’s visits with the minors were sporadic. There were periods of no visitation and periods of regular visitation. Eventually the visits tapered off to her not visiting the children at all. Her last visit with them was in March of 2009. Her case plan called for a parent education program and individual counseling to address case issues. She completed the parenting class. However, over the course of the case she steadfastly refused to attend a free domestic violence program even though the court sustained the allegation of domestic violence. Her attendance at the low cost individual counseling she was able to secure was sporadic because she said she could not afford the counseling on a regular basis. She lived with and associated with the paternal grandparents who had failed to stop their son from torturing and killing the defenseless three-year-old child. She allowed the paternal grandparents to control her actions in the instant case even though the grandparents’ actions were detrimental to the minors and to Mother’s ability to be reunited with the children. Mother also indicated her desire to resume living with Father even though he committed domestic violence against her and he was convicted of first degree murder.
The Department’s reports are filled with information from which one can reasonably conclude that Mother allowed herself to be under the control of the paternal grandparents, that the paternal grandparents made up stories to control Mother, and that the paternal grandparents, particularly the paternal grandmother, behaved badly towards the foster mother and the social workers and such behavior was disturbing to the minors. Mother’s therapist was of the opinion that Mother should look for work and become more independent. The social worker opined that it would be difficult for Mother to regain custody of the minors so long as she was under the influence of Father or the paternal grandparents.
Although she knew the telephone numbers of the Department and her own attorney, there were long periods of time during which Mother refrained from communicating with them even though it hindered her position in the case. The Department’s reports often stated that Mother’s whereabouts were “unknown.” However, the record shows that at the May 30, 2007 detention hearing the court stated: “Mother has provided an address for mail: 39060 200th Street, in Palmdale, California.” Mother responded: “Correct. That’s only for mail.” The court advised Mother that this Palmdale address would be the address that the Department would use for purposes of notice, and further advised Mother: “Ma’am, if you move or change addresses or change your mailing address, you must notify your attorney and Department of Children Services about the fact that you’ve moved or changed addresses for purposes of mail.” At the September 14, 2007 adjudication/disposition hearing, which Mother attended, the court reminded the parents to keep the Department apprised of their addresses and telephone numbers.
Mother did not advise the court that the Palmdale address should contain the word “East.” Therefore, we reject Mother’s appellate position that the Department should be faulted for leaving out the word “East” in its correspondence and notices to her that were sent to the Palmdale address.
Mother’s whereabouts were “unknown” from January 31 to June 4, 2008, with the social worker’s four letters to her producing no results until June 5, 2008, when Mother left a voice mail for the social worker. The two met and Mother informed the worker that she had moved. Mother provided the social worker with a new mailing address of 9543 East Avenue Q-10, Littlerock, CA 93543. Thus, Mother effectively advised the Department that correspondence and notices for her should be sent to the Littlerock address. The matter of an address for Mother came up again a few months later. The report for the October 2, 2008, 12-month review hearing shows Mother told the social worker she had obtained temporary work as an agricultural field hand and she had “found a place.” However, Mother did not give the social worker a new residence address or a new mailing address. Instead, Mother told the social worker that she gave the social worker’s phone number to the landlord in case the landlord wanted to call the social worker. Thus, the Department continued to use the mailing address that Mother had given to the social worker in June 2008 (the Littlerock address) when it sent notices to Mother, and at a December 4, 2009 hearing Mother’s attorney indicated that the Littlerock address was the correct one for sending notices to Mother.
Mother attended the detention, pretrial resolution, and adjudication/disposition hearings on May 30, July 23, and September 14, 2007, respectively. She did not appear for the other 16 appearance hearings in the case, including all of the section 366.26 hearings. She was personally served with notice for some of the hearings at which she did not appear, including the first section 366.26 hearing. The other hearings at which she did not appear were noticed by mail. Although Mother received bus passes through the Department, at two of the hearings at which Mother did not appear her attorney stated Mother informed her she would not be at the hearings because she did not have transportation to court. At other hearings Mother’s attorney simply stated that she had not heard from Mother and had no direction from her. Mother’s reunification services were terminated at a January 9, 2009 18-month hearing and a section 366.26 hearing was set for May 8, 2009. Mother’s nonappearance at the section 366.26 hearings is at issue in this case in that she asserts the Department’s notice of those hearings was improper and its notice of the final section 366.26 hearing, at which her parental rights were terminated, constituted a denial of due process of law.
Father generally failed to respond to the Department’s letters to him, to make use of his right to call the social worker collect, and to use the prepaid envelopes the social worker would send him from time to time so that he could mail letters to the minors. He attended nearly all of the hearings, being transported to court from his place of incarceration, and was able to visit with the older minors after the hearings if they had come to court. After he received the lengthy sentence for his first degree murder conviction his reunification services were terminated since there was no reasonable likelihood he would be reunited with the minors.
b. The Minors’ Permanent Placement Homes
When the minors were placed with their first foster mother she reported to the Department social worker that she was attempting to teach them basic hygiene because she discovered that their way of cleaning themselves after using the bathroom was to use their hands and then clean their hands by spreading fecal matter on the wall; she would also find mucus spread on the walls near their beds. They did not like wearing underwear, and they had difficulty sleeping in beds and sleeping in their own private spaces. The oldest, nine-year-old Freddy, was tremendously behind in his education because he had never gone to school. The children were replaced to another foster home in February of 2008 because their foster parent was not following through with their immunizations, and nurses at a clinic were worried about the nutrition of three of the minors. The children’s new foster parents were the O’s.
The Department suspected that the parents kept Freddy out of school, and never applied for state aid for the children even though the family was clearly in need of funds, because the parents knew that they had never completed Freddy’s dependency case and therefore did not want to risk the Department finding out where they were located. Mother ultimately admitted that she did not enroll him in school for fear of his being found.
The O’s vacillated as to whether they could adopt all five of the children or just some of them. Eventually, they determined that they would adopt Raymond and Ruby, and they would provide Freddy with a permanent home as his legal guardians because he receives services from Regional Center and the O’s wanted to continue being able to receive the various supportive services that the Department can provide for him. In the meantime the O’s close family friends, the L’s, expressed interest in adopting some of the minors. Ms. L is a licensed foster parent who was used to interacting with the minors on a regular basis because she would babysit for them. Her son would come with her to play with the minors when she went to the O’s house. The son attends the same school as minor Jasmine and the two families live close to each other.
Because of the L’s interest in adopting some of the children, the Department established a visitation schedule so that the children could visit the L’s home. Later, Jasmine and David were placed there. There were two other families who were also interested in adopting all of the five children but the Department determined to further explore permanency with the O’s and the L’s. The adoptions social worker concluded the minors are adoptable.
The home studies for the O’s legal guardianship of Freddy and adoption of Raymond and Ruby, and for the L’s adoption of Jasmine and David, were completed and approved by the Department. The minors were doing well in their placements. The O’s and the L’s indicated they were committed to the minors having visits with each other, and they signed a contract to facilitate sibling visits once per week, alternating visits between their two homes. Letters of Legal Guardianship of Freddy were issued for the O’s on April 16, 2010.
In the meantime, Mother gave birth to another child, minor girl Trinity V., who was born in September of 2009. A report states the Department received a referral regarding newborn Trinity on its child protection hotline and made an inquiry to the hospital regarding the infant’s status. The hospital’s social worker indicated Trinity was able to be discharged because she was determined to be healthy. The Department social worker handling the instant case indicated she had not heard from Mother since February or March of 2009 and was not aware Mother was pregnant, and the only phone number she had for Mother was the same one that was given on the hotline referral, which the Department found was not a working number. Mother called the hospital social worker and was informed that the Department would be picking up Trinity that same day from the hospital and Mother should contact the Department.
The detention report for Trinity lists Mother’s last known address as the Palmdale address and her mailing address as the Littlerock address. At the October 2009 detention hearing for Trinity the court found a prima facie case for detaining the infant and placing temporary care of her with the Department. Monitored visits for Mother were ordered. Based on Father’s having been incarcerated for several years, the court found he is Trinity’s alleged father, and Father later affirmed he is not the minor’s father. At Trinity’s December 21, 2009 adjudication/disposition hearing the court sustained the allegation in the section 300 petition that the Department filed on Trinity’s behalf, to wit, that Mother left Trinity at the hospital without making a plan for the minor’s ongoing care and supervision and thus failed to provide the child with the necessities of life and Mother’s whereabouts were unknown, and this failure to make a plan for the minor endangers the child’s physical and emotional health and safety. The court declared Trinity a dependent of the court and found that removal of the minor from parental custody was necessary. It placed Trinity in the care of the Department, denied reunification services to her unknown father, and denied reunification services to Mother based on Mother’s failure to reunify with the other children and to treat the problems that led to removing them from her care. A section 366.26 hearing was set for April 16, 2010 for Trinity.
Trinity was initially placed with the L’s. When the L’s and the O’s indicated they could not adopt her the Department began a search for an adoptive home. In January 2010 she was replaced to the home of the M’s who indicated that in addition to adopting her they would agree to her having visits with her siblings.
April 16, 2010, was a section 366.26 hearing date for all six of the minors—the original five children and Trinity. It was Trinity’s initial section 366.26 hearing. As noted above, letters of legal guardianship issued for Freddy that day. The section 366.26 hearing was continued to July 19, 2010, and that was the final section 366.26 hearing. Mother’s attorney stated at the final hearing that (1) she (the attorney) received the notice for the hearing that was sent to her by the Department by certified mail as had been ordered by the court at the April 16 hearing, (2) she believed such notice constituted proper notice for Mother for the hearing, (3) she had no direction from Mother regarding the hearing, and (4) she had not heard from Mother. The court found that Mother was given proper notice. The court further found that (a) the minors are adoptable, (b) Mother’s whereabouts were unknown or she had absented herself from the proceeding, (c) Father would be incarcerated for “quite some time, ” (d) adoption for Jasmine, Raymond, David, Ruby and Trinity was the appropriate plan for them, and (e) Freddy’s legal guardianship is the appropriate plan for him. Parental rights were terminated and the L’s, O’s, and M’s were designated prospective adoptive parents. Timely appeals were filed by Father and Mother.
CONTENTIONS ON APPEAL
Mother contends the Department failed to conduct a diligent search for her, and the absence of a diligent search and proper notice of the section 366.26 hearings resulted in a denial her right to due process and therefore the order terminating her parental rights must be reversed. Father contends that if we reverse the order terminating Mother’s parental rights as to Jasmine, Raymond, David and Ruby we must also reverse the order terminating his parental rights to those children.
DISCUSSION
1. Notice of the Section 366.26 Hearings Was Proper
Mother was given notice that a section 366.26 hearing for the original five minors—Freddy, Jasmine, Raymond, David and Ruby—might be close at hand when she was personally served with notice of the January 9, 2009, 18-month review hearing that was scheduled for those children. The Department’s recommendation for that review hearing was that the trial court terminate Mother’s reunification services and set a section 366.26 hearing for the five children. Father’s reunification services had already been terminated. That recommendation was stated in the notice of hearing that was personally served on Mother for the January 9 hearing. The court followed the recommendation. It terminated Mother’s reunification services and set a section 366.26 hearing for the five minors for May 8, 2009.
Article 5.5 of chapter 2 of part 1 of division 2 of the Welfare and Institutions Code is entitled “Notices in Dependent Child Proceedings.” Section 294 in article 5.5 is the statute that provides for notices of selection and implementation hearings held pursuant to section 366.26.
Subdivision (a) of section 294 provides that a minor’s parents must be given notice of the section 366.26 hearing, and subdivision (f) of section 294 provides that notice to parents may be given in several ways, including personal service. Subdivision (c) (1) of section 294 states that “[s]ervice of the notice shall be completed at least 45 days before the hearing date. Service is deemed complete at the time the notice is personally delivered to the person named in the notice or 10 days after the notice has been placed in the mail, or at the expiration of the time prescribed by the order for publication.” In the instant case, Mother was personally served with notice of the May 8, 2009 section 366.26 hearing, which was the first section 366.26 hearing for the original five children. She was served on February 20, 2009. Thus, there was compliance with those provisions in subdivisions (a), (f) and (c) (1) of section 294.
The notice given to Mother stated that the section 366.26 hearing for the five minors would be held on May 8, 2009 at 8:30 a.m. in the courthouse at the address listed on the notice, and it stated the department of the court where the hearing would be held. The notice also stated that at the hearing the court would terminate her parental rights and free the minors for adoption, or it would establish a legal guardianship, or identify another placement with a specific goal. It informed her that she had the right to be present at the hearing with her attorney, and it informed her that the social worker was recommending that parental rights be terminated and a plan of adoption be implemented. By giving that information the notice conformed to subdivision (e) of section 294.
At the May 8, 2009, section 366.26 hearing the court found that the Department complied with the service provisions of section 294 regarding service of notice that a section 366.26 hearing had been set for that day. Nevertheless, Mother did not appear at the hearing.
The court continued the section 366.26 hearing to September 15, 2009, to give the Department more time to prepare for the hearing, and thereafter the section 366.26 hearing was continued additional times. Subdivision (d) of section 294 provides that “[r]egardless of the type of notice required, or the manner in which it is served, once the court has made the initial finding that notice has properly been given to the parent, or to any person entitled to receive notice pursuant to this section, subsequent notice for any continuation of a Section 366.26 hearing may be by first-class mail to any last known address, [or] by an order made pursuant to Section 296 [which permits the court to order a person “who is present in court, to again appear before the court], or by any other means that the court determines is reasonably calculated, under any circumstance, to provide notice of the continued hearing. However, if the recommendation changes from the recommendation contained in the notice previously found to be proper, notice shall be provided to the parent, and to any person entitled to receive notice pursuant to this section, regarding that subsequent hearing.” Here, the only variance from the Department’s initial section 366.26 recommendation that Mother’s parental rights should be terminated and the original five minors should be adopted was the Department’s subsequent recommendation that the O’s become Freddy’s legal guardians. Thus, the recommendation for adoption remained the same for the other four children, and the variance did not impact the parents’ parental rights because they were not terminated as to Freddy.
We therefore find that Mother has no grounds for challenging the Department’s notices to her of the continued section 366.26 hearings for the five minors. The court made a finding that notice of the first section 366.26 hearing was proper and all but one of the subsequent notices for the section 366.26 hearings were made by first class mail to the new mailing address provided by Mother to the social worker on June 9, 2008, the Littlerock address. The only section 366.26 notice that was not sent to the Littlerock address was sent instead to Mother’s original mailing address, the Palmdale address, and that notice was for the September 15, 2009 hearing, which was the one following the May 8, 2009 initial section 366.26 hearing. All subsequent section 366.26 notices were sent to Mother’s Littlerock address, which was the most current mailing address that Mother had provided to the Department.
The record contains no evidence that Mother ever informed the Department or her attorney that the Littlerock address was no longer her mailing address. Moreover, the record does not disclose that the mailings sent by the Department to that Littlerock address kept coming back to the Department. Therefore, we find that Mother’s whereabouts after she gave the social worker notice that her mailing address had changed to the Littlerock address were not unknown for purpose of notice. It is reasonable to conclude that she simply refrained from attending the hearings for which she was sent notice. Although there were some hearings at which her attorney stated Mother informed the attorney she had no transportation to the hearing, we observe that Mother was given bus passes and she was able to go to visits with the minors. She simply stopped communicating by both mail and telephone with the Department and her attorney. The attorney informed the court in December 2009 that it had been nearly a year since she had contact with Mother.
We reject Mother’s contention that there was no due diligence to locate her. There is a provision in section 294 that addresses due diligence in attempting to locate a parent. The due diligence provision comes within subdivision (f), the subdivision that sets out the various means in which notice may be given to a parent when a court sets a section 366.26 hearing. Subdivision (f) (7) (A) provides that when a parent’s identify is known but his or whereabouts are not and thus the parent cannot be served by means of the usual methods of service permitted by subdivision (f) (1) to (6), such as informing the parent at a hearing of the upcoming section 366.26 hearing, giving personal service, serving by certified mail, or serving by substitute service accompanied by mailing notice, then the social services agency can file an affidavit with the court, at least 75 days prior to the hearing, in which the agency sets out the efforts made to locate and serve the parent. If the court determines there was due diligence by the agency in attempting to locate and serve the parent, and if adoption is the recommended plan for a minor, then service may be made to the parent’s attorney of record by certified mail, return receipt requested, and if there is no attorney of record, then service may be made by publication. Here however, personal service of Mother was accomplished for the original section 366.26 hearing on May 8, 2009. Thus, the necessity of the alternatives in subdivision (f) (7) (A) of section 294 did not come into play for the original five children.
Nevertheless, when Mother repeatedly failed to appear for the initial and continued section 366.26 hearings for those five minors, the court ordered a due diligence report to attempt to determine Mother’s whereabouts even though subdivision (d) of section 294 states that notices to Mother of the continued section 366.26 hearings could be made by first class mail. However, that was not the first due diligence ordered by the court for Mother. At Trinity’s October 9, 2009 detention hearing, it ordered a due diligence for Mother. Then on December 21, 2009, at Trinity’s adjudication/disposition hearing, the court again ordered a due diligence on Mother and directed that if Mother was not located the Department should submit a request to publish notice of the section 366.26 hearing that the court was setting for Trinity for April 16, 2010. At the January 11, 2010 combined hearings for the original five minors (the review hearing and the section 366.26 hearing), the subject of due diligence resurfaced when Mother did not appear. When the court inquired whether a due diligence for her had been accomplished, the Department’s attorney reminded the court of the December 21, 2009 order for due diligence, however the attorney did not inform the court that a due diligence on Mother had been done, and so the court replied that the Department should do a due diligence. The court stated that if it did not produce an address for Mother then the Department could serve Mother’s attorney by certified mail.
The section 366.26 hearing for the five minors was continued to April 16, 2010, the same day for which Trinity’s section 366.26 was scheduled. At that April hearing the Department reported Mother’s whereabouts continued to remain unknown. The court found that the previously-made due diligence, which is dated October 21, 2009, was adequate but the court observed that the Department had served Mother’s attorney by first class mail instead of the certified mail that that court had ordered. The court issued the letters of legal guardianship for Freddy and continued the section 366.26 hearing for the other children to July 19, 2010. On that July day that parental rights as to Jasmine, Raymond, David, Ruby and Trinity were terminated.
Due process only requires notice that is reasonably calculated, under the circumstances of a case, to apprise the parents of the hearing and afford them an opportunity to be heard and present their objections. (In re Emily R. (2000) 80 Cal.App.4th 1344, 1351.) We do not find that this additional measure of a due diligence and certified mail notice to Mother’s attorney was necessary for the original five children since notice by first class mail was permitted for the continued section 366.26 hearings for them. However, the additional measure of a due diligence report and the service of Mother’s attorney by certified mail, return receipt requested was not prohibited by section 294 since, as noted above, the same provision that permits service of continued section 366.26 hearings by first class mail also permits service by ordering the parent to appear at the continued hearing when the parent is present in court to hear that order, and by “any other means that the court determines is reasonably calculated, under the circumstances, to provide notice of the continued hearing.”
With respect to serving Mother with notice of Trinity’s initial section 366.26 hearing, which was on April 16, 2010, it was reasonable for the court to use the section 294, subdivision (f)(7)(A) provisions for a due diligence on Mother coupled with service by certified mail on her attorney since Mother was never at a hearing to give verbal notice of the hearing to her, she stopped making personal contact with the social worker and so personal service was not an option, and service at the Littlerock address by certified mail return receipt requested was not likely to produce a return receipt signed by Mother given Mother’s total lack of interest in Trinity after the infant was detained by the Department.
However, Mother objects to the due diligence that the Department undertook. Mother contends that in making the due diligence the Department utilized standard computer based attempts to find Mother such as searching the Lexis/Nexis parent locater data base, DMV records, state, local and federal parole records and incarceration facilities, the AT&T “Any Who” directory, voter registration, welfare department records, and military records. Mother contends the Department’s search should have been more focused on her personal life when it made the due diligence. Mother notes the social worker spoke with a friend of Mother’s for the Department’s May 2007 detention report and the Department should have attempted to contact the friend for the due diligence. Mother asserts the Department should have “made a few phone calls to find out” if Mother belonged to a church, and should have driven to the Palmdale address to see if Mother was there or someone near there knew where she was. We do not agree.
The Department utilized the customary search efforts. Moreover, Mother’s whereabouts were not really unknown. The notices and the correspondence that the Department sent to her Palmdale address and then to the Littlerock address did not come back to the Department. The record supports a conclusion that Mother simply stopped showing any interest in the case, as demonstrated by the fact that although she was personally served with notice of the January 2009 18-month review hearing and personally served with notice of the May 8, 2009 section 366.26 hearing, she did not appear for either of the hearings, and she did not contact her attorney or the social worker about them. Mother demands more effort from the Department than she was willing to make herself. Additionally, the record shows that Mother’s own attorney did not object to the due diligence, and it shows that within two weeks of the date that the court mailed to Mother a copy of the July 19, 2010 minute order containing the termination of her parental rights and a copy of a “Notification of Rights” form, which were sent to the Littlerock and the Palmdale addresses, Mother had filed a notice of appeal from that July 19 order. There is a reasonable conclusion to be drawn that she was receiving mail regarding the dependency court hearings and simply chose to act on the order that terminated her parental rights but not on the notices of the hearings that led up to the terminating order. Moreover, parental rights to Trinity were terminated at the same hearing at which parental rights to Ruby, David, Raymond and Jasmine were terminated, and it is clear that Mother received proper section 294 notices as to that hearing for those four children.
In sum, (1) the Department followed the notice provisions in section 294, (2) it continued to use the Littlerock mailing address given to it by Mother because Mother never gave the Department, or apparently her attorney, a new mailing address, (3) the notices and correspondence the Department sent to the Littlerock address were not returned to the Department as undeliverable, (4) Mother had the Department’s telephone number and address but she stopped communicating with the Department, (5) Mother did not communicate with her own attorney for a year prior to termination of parental rights to determine the status of the case, and (6) despite being personally served with notice of the January 2009 18-month hearing and the May 2009 initial section 366.26 hearing Mother never appeared at those hearings. Whatever reasonable conclusions one might draw from these facts, a denial of due process is not one of them. Moreover, given Mother’s habit of not appearing at hearings for which she was properly served, including personal service of the initial section 366.26 hearing, it would be a stretch to conclude that if she had been personally served with notice of the final section 366.26 hearing she would have attended it. Thus, she suffered no prejudice even if, contrary to our finding of proper notice, notice was not proper. (In re Phillip F. (2000) 78 Cal.App.4th 250, 260.)
2. Mother Cannot Reasonably Claim Harmful Error
In In re Angela C. (2002) 99 Cal.App.4th 389, a mother was personally served with notice of an initial section 366.26 hearing which she did not attend. The hearing was continued but she was not given notice of the continued hearing. The reviewing court held that the lack of notice was a violation of due process. However, it also held that the error of not giving her notice of the continued hearing was harmless beyond a reasonable doubt and therefore the violation of her due process rights did not require the reviewing court to reverse the terminating order. The reviewing court observed that the continued hearing proceeded as an uncontested hearing, but the initial section 366.26 hearing would also have proceeded as an uncontested hearing because Mother was not there and had not notified anyone of her position on the issue of termination. The court also noted that the primary issue in a section 366.26 hearing is whether a minor is likely to be adopted and the evidence before the dependency court indicated the minor was an adoptable child and moreover, there was no evidence that termination of parental rights would be detrimental the minor’s best interests in that although the parent loved the minor and initially maintained visitation with the child, eventually she ceased making contact with the minor. The court stated the parent would not have been able to prevail on a detriment to the child argument had she been given notice and appeared at the continued section 366.26 hearing.
Assuming for purposes of argument only that there was a due process violation with respect to section 366.26 notice in the instant case, the Angela C. analysis applies here. The issues at all of the section 366.26 hearings were whether the minors were adoptable and whether there was any proof that adoption would be detrimental the minors’ best interests. Clearly the children were adoptable, and Mother does not present a convincing argument for a finding in her favor on the best interests issue. The children were content in their placements and their pre-adoptive families were happy with the prospect of adoption and always indicated an intent to facilitate sibling visits. Mother stopped making contact with the minors a long time before her parental rights were terminated; and the record does not disclose the minors would benefit from continuing their relationship with Mother to the degree necessary to thwart termination of parental rights. (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350; In re Autumn H. (1994) 27 Cal.App.4th 567, 575; In re Casey D. (1999) 70 Cal.App.4th 38, 51.) Adoption is the Legislature’s first choice for a permanent plan because it is more secure and permanent than a legal guardianship or long term foster care. (In re Celine R. (2003) 31 Cal.4th 45, 53.) Mother failed to do what was necessary to be reunited with the minors, and the minors were entitled to have this case concluded within a reasonable period of time. The older children were detained by the court on May 30, 2007 and not released from parental control for adoption until July 19, 2010, a period of more than three years during which Mother let the reunification opportunity pass by.
DISPOSITION
The order from which Mother and Father have appealed is affirmed.
We Concur: KLEIN, P. J.ALDRICH, J.
The Department’s jurisdiction/disposition report states that when Mother and Father were minors they were living with Father’s parents and were detained by the Department from that home. They came to the attention of the Department because Father’s older brother had killed his (the older brother’s) girlfriend’s three-year-old child. The report and its attachments show that over the course of many weeks the little girl sustained massive bruising all over her body caused by the older brother’s physical abuse of her. The child was the victim of his repeated hitting, slapping, punching, beating, biting, and kicking. He also threw her, used leather belts on her, applied electric shocks to her, placed things in her anus, hung her up with wire, banged her head, pulled her hair, tied her mouth, hit her over the head with a plate, and shook her violently. His last beating of this child included blunt force traumas to her head that killed her. This sadistic person also physically abused the little girl’s older siblings, hitting them with his fists and belts, kicking and punching them, choking them, and applying electric shocks to them.
The Department’s report also shows that the paternal grandparents of the minors in the instant case witnessed these various acts of brutality and torture by their son and did nothing to intervene other than an occasional remark by the paternal grandmother that her son should stop the abuse. They also did little to nothing to intervene when this same son severely physically abused his girlfriend in their home, and indeed they assisted this torturing/murdering son in keeping his girlfriend hostage in their home. Their home was found to be filthy and to have cockroaches and rats. It had no sewer system so that toilet matter spilled out into the desert where the paternal grandparents live, and there was no running water or electricity. These paternal grandparents had 10 of their own children removed from their care by the dependency court, including Father.
The paternal grandparents had a strong influence over Mother in the instant case. Also, interviews by the Department of Mother and Father and the paternal grandparents during the pendency of the case show that all four of them have difficulty with the concept of “truth.”