Opinion
NOT TO BE PUBLISHED
Super. Ct. No. J02351
HULL, Acting P. J.Appellant, mother of A.C. and K.R. (the minors), and E.R., R.R., and Ro.R. (the siblings), appeals from an order of the juvenile court terminating parental rights with respect to the minors. (Welf. & Inst. Code, §§ 366.26, 395; further undesignated references are to this code.) Appellant contends (1) the juvenile court erred when it terminated parental rights over the minors without the written stipulation of the parties accepting an expert witness declaration in lieu of oral testimony, (2) the San Joaquin County Human Services Agency (the Agency) failed to notify her of the continued section 366.26 hearing, and (3) the Agency failed to notify the minors’ siblings of the continued section 366.26 hearing.
We affirm the juvenile court’s orders.
Facts and Proceedings
On March 7, 2001, the Agency filed juvenile dependency petitions on behalf of E.R. (six years old), R.R. (five years old), K.R. (three years old), and Ro.R. (two years old), alleging appellant’s failure to protect, failure to provide support, and abuse of siblings. All four children were detained.
A.C. was born prematurely in May 2001. She tested positive for cocaine at birth. The Agency filed a juvenile dependency petition on her behalf on June 27, 2001, alleging appellant’s failure to protect, failure to provide support, and abuse of siblings. A.C. was detained. First amended petitions were filed on behalf of the four children previously detained.
A representative of the Gila River Indian Community (the Tribe) moved to intervene in the proceedings on October 25, 2001, alleging appellant’s status as an enrolled member of the Tribe.
On December 11, 2001, the juvenile court sustained the allegations in the petitions, adopted the findings and orders in the dispositional report, adjudged the minors and their siblings dependent children of the court, and committed them to the care and custody of the Agency for suitable placement. The court ordered appellant to comply with her case plan and participate in reunification services, and granted the Tribe’s motion to intervene.
By June 2002, appellant was participating in reunification services and making progress in her case plan. Return of the minors was not recommended. However, by August 2002, the court ordered supervised in-home dependency.
In December 2002, the Agency reported that appellant was discharged from the Inner Voice program for noncompliance and was living with the minors and their siblings at a shelter until suitable housing could be found. However, at some point, appellant took the children and moved out of the shelter leaving no forwarding address. Her whereabouts were unknown as of December 9, 2002. The court issued bench warrants for the minors and their siblings and ordered that they be detained.
On December 27, 2002, the Agency filed a section 387 petition on behalf of all five children alleging that appellant left the family shelter with the children, leaving no forwarding address, and was presumed to be homeless.
On February 4, 2003, the court sustained the allegations in the section 387 petition. The following day, the Agency obtained custody of the minors and their siblings and placed them in foster care.
On June 5, 2003, the court terminated appellant’s reunification services.
Services were reinstated for a period of six months on December 15, 2003, during which time the Agency searched for a tribe-approved placement.
On February 12, 2004, appellant was discharged from the Family Ties aftercare program due to unexcused absences. She lost her section 8 housing voucher and was struggling to find appropriate and stable housing. The Agency recommended termination of reunification services. The ICWA case manager requested that the minors find a permanent home to include contact with appellant and cultural affiliation. The Tribe requested a plan of guardianship rather than adoption. Because the Agency was unable to find suitable Native American guardians, the goal was long-term foster care in cooperation with the Tribe.
On May 17, 2004, the juvenile court set long-term foster care as the permanent plan. Thereafter, the matter came on the juvenile court’s calendar regularly for periodic review of the permanent plan.
At the review hearing on March 16, 2005, counsel for the Tribe introduced Byron Donahue as the new Indian Child Welfare Act (ICWA) case manager for the Tribe. The court notified all parties in attendance, including appellant, that a section 366.26 hearing as to the minors, A.C. and K.R., would be set on July 20, 2005, followed by a six-month periodic review of the permanent plan on September 14, 2005.
Appellant did not attend the hearing on July 20, 2005. The court conducted its review, made the recommended findings and orders as set forth in the June 24, 2005 report, and continued the section 366.26 hearing to September 14, 2005. Notice of the continued hearing was sent to appellant and her counsel.
The September 14, 2005, hearing was continued to September 28, 2005, for periodic review of the permanent plan.
The court held regular review hearings every six months from September 28, 2005 through December 17, 2008.
At the December 17, 2008 review hearing, the court calendared the continued section 366.26 hearing for April 15, 2009. Notice of that hearing was sent to appellant. The notice states that the Agency recommends “[t]ermination of parental rights and implementation of a plan of adoption.”
Appellant did not attend the section 366.26 hearing on April 15, 2009, but counsel appeared on her behalf. The court continued the hearing to June 17, 2009. Notice of a June 17, 2009 review hearing was sent to appellant.
Appellant’s counsel attended the June 17, 2009 hearing; appellant did not. The court continued the section 366.26 hearing to August 19, 2009. Notice of the continued hearing was sent to appellant. The notice states that the Agency recommends “[t]ermination of parental rights and implementation of a plan of adoption.”
Appellant attended the section 366.26 hearing on August 19, 2009. The court continued the hearing to December 9, 2009, to permit timely notice to the father. With regard to evidence to be presented at the hearing, the following colloquy took place between appellant’s counsel and counsel for the Agency:
“[APPELLANT’S COUNSEL]: Have you designated an Indian expert?
“[AGENCY’S COUNSEL]: Not yet. They have one they can make available to us.
“[APPELLANT’S COUNSEL]: Are they going to do anything pending the hearing, a declaration?
“[AGENCY’S COUNSEL]: I haven’t talked to her yet. I’m assuming we need a report and declaration.
“[APPELLANT’S COUNSEL]: I assume so.”
Notice of the continued section 366.26 hearing was sent to appellant. The notice states that the Agency recommends “[t]ermination of parental rights and implementation of a plan of adoption.” Notice of the review hearing was also sent to appellant. That notice states that the Agency recommends “[n]o change in orders, services, placement, custody, or status.”
Appellant’s counsel attended the continued section 366.26 hearing and review hearing on December 9, 2009; appellant did not. The court continued the section 366.26 hearing to December 23, 2009. Notice of the continued hearing was sent to appellant.
Appellant attended the continued section 366.26 hearing on December 23, 2009. Counsel for the Agency stated, “The Court asked for a declaration from the tribal representative. I’ve been in contact with them. They’re requesting we continue this to January 27th at 10:30 for the.26 hearing. I would like to proceed on the permanent plan if we can so we don’t have that trailing.” The court conducted the review hearing and continued the section 366.26 hearing to January 27, 2010.
The continued section 366.26 hearing commenced on January 27, 2010. In attendance were, among others, counsel for appellant and counsel for the minors. Counsel for the Tribe and the designated ICWA expert, Byron Donahue, appeared telephonically. Appellant did not attend. The Tribe confirmed its consent to termination of parental rights over the two minors. Appellant’s counsel submitted on the report, “including the Indian expert’s declaration, ” and opposed the recommended termination. The court adopted the recommendations in the section 366.26 report dated August 19, 2009, found notice was given as required by law, and found by clear and convincing evidence that the minors would likely be adopted and that termination of parental rights would not be detrimental to them. The court found that none of the exceptions in section 366.26, subdivision (c)(1) applied. The court acknowledged receipt of the notarized letter from Byron Donahue “which indicates its [the Tribe’s] support for the termination of parental rights and for the adoption by the proposed parents, ” and found the Agency made sufficient efforts to alleviate the circumstances which caused the removal of the minors from the home. On that basis, the court terminated appellant’s and the father, E.R.’s, parental rights as to the two minors. The court also acknowledged that neither appellant nor the father were in attendance despite having been noticed for the hearing.
Appellant filed a timely notice of appeal.
Discussion
I
Stipulation to Accept Declaration
Appellant contends the order terminating parental rights must be reversed because the juvenile court erred by not requiring the parties to enter into a written stipulation to accept the declaration of Byron Donahue, the Indian expert, in lieu of his oral testimony, as required by section 224.6, subdivision (e) which provides: “The court may accept a declaration or affidavit from a qualified expert witness in lieu of testimony only if the parties have so stipulated in writing and the court is satisfied the stipulation is made knowingly, intelligently, and voluntarily.”
Appellant did not object to use of the Donahue declaration in the juvenile court.
“‘“An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been but was not presented to the [trial] court by some appropriate method.... The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver.... Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial.” [Citation.]’” (In re Dakota S. (2000) 85 Cal.App.4th 494, 501, quoting Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1; People v. Gibson (1994) 27 Cal.App.4th 1466, 1468.)
“Moreover, it would be inappropriate to allow a party not to object to an error of which the party is or should be aware, ‘“thereby permitting the proceedings to go to a conclusion which he may acquiesce in, if favorable, and which he may avoid, if not.” [Citation.]’” (In re Dakota S., supra, 85 Cal.App.4th at p. 501.)
Appellate courts have applied the waiver doctrine in dependency proceedings in a wide variety of contexts, including failure to object to noncompliance with the ICWA. (See In re Riva M. (1991) 235 Cal.App.3d 403, 411-412 [failure to object to requirement of expert testimony imposed by ICWA results in waiver of an error not involving the fundamental jurisdiction of the court].)
Here, not only did appellant not object to use of the Donahue declaration, her counsel referred to it as “the Indian expert’s declaration, ” and submitted on that declaration along with the section 366.26 report. In acquiescing to use of the declaration in lieu of oral testimony, appellant affirmatively waived her claim on appeal. (In re Dakota S., supra, 85 Cal.App.4th at p. 501.) In failing to object, appellant forfeited her claim on appeal. (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2 [forfeiture is proper term].)
In any event, any error was harmless. Section 366.26, subdivision (c)(2), provides: “The court shall not terminate parental rights if:... [¶] (B) In the case of an Indian child: [¶]... (ii) The court does not make a determination at the hearing terminating parental rights, supported by evidence beyond a reasonable doubt, including testimony of one or more ‘qualified expert witnesses’ as defined in Section 224.6, that the continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child.”
Donahue authored a two-page, notarized letter dated January 26, 2010, expressing “the [Gila River Indian] Community’s recommendations regarding the adoption of the [minors] under the ICWA.” The letter states, in relevant part, as follows: “I, Byron Donahue, am an ICWA case manager for the tribe and an enrolled member of the Community. Based on my training, background, and experience I have been designated by the Community as an ICWA-qualified expert witness. I have reviewed the facts of the case and offer the following opinion: [¶] 1) The Community does not object to the adoption of [the minors] to the [S.] family. [¶] 2) Based upon my knowledge of the case, the [minors] and the services needed, return of the [minors] to their parents would likely to [sic] result in serious emotional or physical damage to the [minors]. [¶] 3) Based upon my knowledge of the [minors] and the services they received, it is my opinion that the [Agency] made active efforts to alleviate the circumstances which caused the [minors] to be in out-of-home placement. [¶] 4) Although, this placement is not directly in line with the ICWA placement preference under 25 U.S.C. § 1915(a), there exists good cause to depart from these preferences at this time. The [minors] have resided with the [S.] family since 2004 and it is the Community’s opinion that disrupting this placement would not be in the [minors’] best interests.”
The declaration identified Donahue as the designated ICWA expert and contained his expert opinions regarding termination of parental rights regarding the two minors. His opinion that return of the minors to appellant would likely result in serious emotional or physical damage is supported by facts in the record regarding appellant’s continuing problems. The August 19, 2009 section 366.26 report states appellant has been involved with CPS for eight years and, although she was able to complete portions of her reunification program including the Core Drug Treatment Program, she was unable to maintain sobriety or to secure stable housing for herself or her children. She gave birth to another child in February 2003. That child became a dependent of the court as a result of the same problems plaguing appellant in the minors’ dependency proceedings. The report notes that, while appellant visits the minors and their siblings twice a month (weather permitting), and undoubtedly has an emotional attachment to them, she “seems content with visiting her children... and not taking a parental role.” Despite eight years of dependency, “[t]here has been no major action taken by [appellant] to gain custody of these children, after the children were removed from [appellant] for the second time over six years ago.” The report also notes that both minors “wish to be adopted by the current caretakers of the last five years.” The December 9, 2009 status review report reiterates the information in the section 366.26 report. The evidence is clear that attempts to reunify over eight years failed, while the minors’ placement over the last five years was stable and successful.
It is also clear, from the record, that the parties contemplated use of a declaration in lieu of oral testimony long before the January 27, 2010 hearing. The possibility of using a declaration was the subject of a brief discussion between appellant’s counsel and counsel for the Agency at the August 19, 2009 hearing. The issue arose again at the December 23, 2009 hearing.
Moreover, appellant had ample opportunity to obtain information from Donahue, who attended the hearing telephonically and was available for questions or cross-examination.
Any error regarding the use of the declaration of the ICWA expert in lieu of his oral testimony was harmless.
II
Notice
Appellant claims the Agency failed to notify her of the January 27, 2010 hearing. She also claims she “was not on notice that the [Agency] would be requesting the child [sic] be placed for adoption.” The record reveals otherwise.
Section 366.23 requires that a parent receive notice “‘[w]henever a juvenile court schedules a hearing pursuant to Section 366.26....’ There is an exception if a parent is present when the hearing is continued. [Citation.]” (In re Julian L. (1998) 67 Cal.App.4th 204, 208.)
The record shows that appellant was noticed regarding the original section 366.26 hearing on July 20, 2005, but did not attend. The section 366.26 hearing was continued numerous times over the next several years. Notwithstanding the fact that appellant attended some of the continued hearings but not others, she did attend the continued hearing on December 23, 2009, at which time the court continued the matter to January 27, 2010, the date the hearing actually occurred. Based on appellant’s presence at the December 23, 2009 hearing, she received actual notice of the continued hearing scheduled for January 27, 2010. (In re Angela C. (2002) 99 Cal.App.4th 389, 392-393 [if parent who received original notice is present in court when trial court continues hearing date, the in-court notice is proper and satisfies parent’s due process rights].)
Appellant claims the “last notice” she received stated that the Agency would not change the status of the minors. Appellant is confusing the notice regarding the review hearing set for December 9, 2009 with the notice of the section 366.26 hearing also set for December 9, 2009. Despite her claim to the contrary, the last notice she received regarding the section 366.26 hearing stated that the Agency was recommending “[t]ermination of parental rights and implementation of a plan of adoption.” That notice was sent following the August 19, 2009 hearing, and the record contains no evidence of an intervening notice stating the Agency recommended otherwise.
It is worth noting that this was not a one-sided termination hearing. Appellant was represented at the hearing by her attorney, who participated in the hearing and in prior hearings throughout the proceedings.
Appellant received written notice of the Agency’s recommendation for termination of parental rights and implementation of a plan of adoption, and was present at the December 23, 2009 hearing where she received actual notice of the section 366.26 hearing that took place on January 27, 2010. There was no error.
III
Standing
Appellant claims the Agency failed to notify the minors’ siblings of the January 27, 2010 hearing. She argues she has standing to assert the claim on behalf of those children. She does not.
A parent has standing to raise issues affecting her interest in the parent-child relationship. (In re Patricia E. (1985) 174 Cal.App.3d 1, 6, overruled on other grounds in In re Celine R. (2003) 31 Cal.4th 45, 58–60.) “Where the interests of two parties interweave, either party has standing to litigate issues that have a[n] impact upon the related interests.” (In re Patricia E., supra, at p. 6.) Here, appellant’s interests are not interwoven with those of the minors’ siblings.
Appellant relies on In re L.Y.L. (2002) 101 Cal.App.4th 942 (L.Y.L.) to support her contention that she has standing to raise the issue of failure to provide notice of the section 366.26 hearing to the minors’ siblings, R.R., Ro.R., and E.R. In L.Y.L., the appellate court held that a parent who raises the sibling relationship exception to termination of parental rights has standing to do so because the applicability of the exception directly affects whether the parent retains parental rights. (Id. at pp. 948–951; § 366.26, subd. (c)(1)(B)(v).) That is not the case here. Appellant is not asserting an exception to termination of parental rights. She is, instead, attempting to assert the right to notice, i.e., a statutory right that belongs solely to the minors’ three siblings. (Stats. 2008, ch. 166, § 1.) Whether those siblings received notice of the continued section 366.26 hearing is a matter affecting their rights, not appellant’s. (See In re Desiree M. (2010) 181 Cal.App.4th 329, 333-334.) Moreover, the siblings were represented by counsel at the hearing. Their counsel did not raise the issue of notice then, nor have the siblings appealed in that regard. Appellant lacks standing to assert her claim, and we reject it on that basis.
Disposition
The juvenile court’s orders are affirmed.
We concur: BUTZ, J. CANTIL-SAKAUYE, J.