Opinion
NOT TO BE PUBLISHED
Appellant, the mother of the minor, appeals from the juvenile court’s order terminating her parental rights. (Welf. & Inst. Code, §§ 366.26, 395; further undesignated section references are to the Welfare and Institutions Code.) Appellant asserts she was not provided adequate notice of the hearing at which her parental rights were terminated. Concluding that any error was harmless, we affirm the order. Super. Ct. No. J30128
HULL, J.
Factual And Procedural Background
A juvenile dependency petition was filed in January 2003 concerning the five-year-old minor after a search of the father’s residence, where the minor was living, uncovered methamphetamine and items consistent with its manufacture. The petition also alleged that appellant and the father suffered from drug addiction and mental disorders. The petition was sustained and reunification services were ordered. The minor was placed with the paternal grandfather.
Visits between appellant and the minor were problematic, with the minor’s “anger and complex issues regarding [appellant] mak[ing] visits strained and painful at times.” The minor showed “anger, disinterest and profound parentification in dealing with [appellant].” According to the minor’s therapist, the minor had “been put in a parenting role with her [parents] since she was a small child,” which had led “to major discord between [the minor] and [appellant].”
Although appellant diligently worked on her case plan, her continuing mental health problems and the effect this had on her ability to parent the minor resulted in the termination of her services in May 2005. However, the juvenile court determined that the minor’s father had not been provided reasonable services, and an additional six months of services were ordered for him.
Prior to the next review hearing, the paternal grandfather required heart bypass surgery, and placement of the minor with a paternal aunt in Minnesota was being pursued. Meanwhile, appellant’s visits with the minor had improved once appellant accepted that the minor could not return to her care.
In November 2005, the father’s reunification services were terminated and a hearing was set pursuant to section 366.26 to select and implement a permanent plan for the minor. The report prepared for the hearing noted that appellant had a bond with the minor. The juvenile court stated it was “likely that the recommendation is going to be guardianship” and excused the parties from appearing if that was the recommendation. Appellant was present at this hearing.
In December 2005, notice was sent to appellant of the section 366.26 hearing date, which included a statement that the social worker was recommending termination of parental rights and a permanent plan of adoption.
The section 366.26 hearing was continued numerous times. Appellant was sent notices that continuances were being sought, but she did not appear at the hearings. A written notice was sent to appellant when the matter was reset for hearing for November 7, 2006. The notice again included a statement, this time in boldface, that the social worker was recommending termination of parental rights and a permanent plan of adoption.
According to the social worker’s report for the section 366.26 hearing, the minor had been placed with her aunt in Minnesota in December 2005. The minor, who was now nine years old, “very much want[ed] to be adopted, and sincerely appreciate[d] the stability her aunt ha[d] provided her since being placed in her care.”
The minor had contact with appellant by telephone, although the calls occasionally upset the minor. The attorney for the social services agency later informed the court that appellant was “crying on the telephone and there’s a lot of pressure on [the minor] with regard to her decision.”
At the hearing on November 7, 2006, the matter was again continued. Appellant did not appear at this hearing, and there is nothing in the record to indicate appellant received notice of the continuance. The matter was continued two more times and, again, the record does not reflect any notice was given to appellant of the new dates. At one of these hearings, appellant’s attorney informed the court that he had not had contact with appellant.
The section 366.26 hearing went forward in January 2007. Appellant’s attorney again reported he had not had contact with appellant but stated, “I know that she’s opposed to termination of parental rights.” The juvenile court terminated appellant’s parental rights and ordered a permanent plan of adoption. The minor’s father had signed a relinquishment.
Discussion
Appellant claims she was denied due process because she did not receive notice that the recommendation had changed to adoption or of the continued hearing date. As appellant was provided notice of the changed recommendation, we reject her first claim. And as we conclude the failure to provide appellant notice of the continued hearing date was harmless error, we reject her second claim.
“Since the interest of a parent in the companionship, care, custody, and management of his children is a compelling one, ranked among the most basic of civil rights [citations], the state, before depriving a parent of this interest, must afford him adequate notice and an opportunity to be heard.” (In re B.G. (1974) 11 Cal.3d 679, 688-689.) “[D]ue process requires ‘notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’ [Citation.]” (In re Melinda J. (1991) 234 Cal.App.3d 1413, 1418.)
Appellant’s claim she did not receive notice that the recommendation had changed from guardianship to adoption is not supported by the record. After the section 366.26 hearing initially was set, appellant was sent notice that the social worker was recommending adoption. The notice sent to appellant of the November 7, 2006, hearing date reiterated that this was the social worker’s recommendation.
Further evidence that appellant had actual notice of the recommendation for adoption was the report that the minor was upset by appellant’s telephone calls because appellant would cry during the calls and the minor felt pressured “with regard to her decision.” It reasonably can be inferred that the “decision” in question was whether the minor wanted to be adopted. Additionally, at the section 366.26 hearing, appellant’s attorney reported that appellant was opposed to the termination of her parental rights. Accordingly, appellant’s contention that she was never notified of the change in the social worker’s recommendation is unsupported by the record.
On the other hand, appellant is correct that the record fails to establish she received notice of the continued hearing date. When a section 366.26 hearing is continued, “parents remain entitled to notice of the continued hearing date.” (In re Angela C. (2002) 99 Cal.App.4th 389, 392 (Angela C.).) Although it is unnecessary to comply with all the statutory requirements when providing such notice, there must be proof of actual notice of the new hearing date. (Id. at p. 393.) Thus, while further notice is not required for a parent who is present when the section 366.26 hearing is continued (In re Phillip F. (2000) 78 Cal.App.4th 250, 257; In re Malcolm D. (1996) 42 Cal.App.4th 904, 913), “a parent who fails to appear at a properly noticed section 366.26 hearing must be notified of the continued hearing.” (In re Phillip F., supra, at p. 258.)
Here, the record contains no evidence that either the court or the social services agency provided appellant with actual notice of the date to which the section 366.26 hearing was continued. Moreover, appellant’s attorney informed the court that he had not had contact with appellant. There is no other information in the record to support that appellant might have received actual notice of the new date for the hearing. (Cf. In re Phillip F., supra, 78 Cal.App.4th 259-260 [reasonable inference that parent had actual notice of hearing based on other circumstances].)
The error in failing to provide appellant notice of the continued hearing date is subject to review under a harmless-beyond-a-reasonable-doubt standard. (Angela C., supra, 99 Cal.App.4th at p. 395.) It is on this basis that appellant’s claim fails.
Appellant does not dispute that the minor was adoptable, which is “[t]he primary issue in a section 366.26 hearing.” (Angela C., supra, 99 Cal.App.4th at p. 395.) Instead, she claims she was prejudiced by the lack of notice because she was prevented from establishing an exception to adoption under section 366.26, subdivision (c)(1)(A), the beneficial parental relationship exception.
To establish an exception under section 366.26, subdivision (c)(1)(A), a parent must show she has “maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” However, the benefit to the child must promote “the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) The preference for adoption is overcome only “[i]f severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed.” (Id. at p. 575.)
Initially, we note that appellant did not appear before the juvenile court to present this claim, even though she was served notice of earlier settings of the section 366.26 hearing and that the social worker was recommending her parental rights be terminated at that hearing. In fact, appellant did not appear at any of the numerous settings of the section 366.26 hearing. The record contains no basis to conclude that actual notice would have secured appellant’s appearance at the final hearing when she had forfeited all earlier opportunities in this regard.
In any event, it is inconceivable that the juvenile court would have concluded the detriment the minor might suffer from severing her relationship with appellant outweighed the benefit she would derive from being adopted. By the time of the section 366.26 hearing, the minor had been out of appellant’s custody for at least four years. Permanence for the minor was long overdue. Moreover, the minor’s anger toward appellant and appellant’s inability to respond appropriately to the minor’s behavior resulted in problematic visits throughout most of the reunification period. Although visits improved once appellant accepted that the minor would not be returning to her custody, there continued to be problems, as evidenced by the fact that appellant’s telephone calls to the minor in Minnesota upset her. On this record, it is implausible that the juvenile court would have found “a substantial, positive emotional attachment such that the [minor] would be greatly harmed” if appellant’s relationship with her were terminated. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) In addition, the minor had expressed a strong desire to be adopted by her aunt.
Under these circumstances, it is unimaginable that the juvenile court would have determined that the minor’s relationship with appellant was sufficiently compelling to override the strong legislative preference for adoption. Accordingly, we conclude the error in failing to provide appellant with notice of the continued section 366.26 hearing date harmless beyond a reasonable doubt.
Disposition
The juvenile court’s orders are affirmed.
We concur:
SCOTLAND, P.J., CANTIL-SAKAUYE, J.