Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Tulare County, Ct. No. JJV064053B, Charlotte A. Wittig, Commissioner.
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant.
Kathleen Bales-Lange, County Counsel, John A. Rozum and Jason Chu, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Cornell, J., and Franson, J.
INTRODUCTION
Devin W. (father) appeals from the juvenile court’s order terminating his parental rights pursuant to Welfare and Institutions Code section 366.26 as to his child, Miles W. Father contends that notice of the hearing was not sent to his residence, which he asserts on appeal was the county jail. We reject this contention and affirm the juvenile court’s orders terminating father’s parental rights and selecting adoption as the permanent plan.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
STATEMENT OF THE CASE
Miles W. was born in 2008. When his mother gave birth to twins nearly a year later, she tested positive for methamphetamine. An amended dependency petition was filed on July 10, 2009, by the Tulare County Health and Human Services Agency (agency), alleging father failed to protect the twins from the mother’s use of a controlled substance and both parents’ substance abuse left them unable to provide regular care for Miles.
At the July 13, 2009 detention hearing, father was present and was appointed counsel. Father completed a form JV-140 indicating his mailing address. Father was advised by the court to inform the social worker in writing if he needed to use a different mailing address for purpose of receiving notices. Father indicated he understood this obligation.
Father’s listed address was a particular street address in Tulare County. To maintain confidentiality, we do not state it here other than to refer to it as father’s home. The mother and father shared the same home address.
At the uncontested jurisdiction hearing on August 13, 2009, the court found the allegations in the petition true. At the conclusion of the disposition hearing on September 3, 2009, the children were removed from both parents and the parents were granted reunification services. The parents were advised that a consequence of failing to make progress in the treatment plans and availing themselves of reunification services could be termination of their parental rights and their children could be placed for adoption.
On October 30, 2009, father and the mother filed new JV-140 forms indicating their home as their address. On February 9, 2010, the social worker learned father had a warrant for his arrest and that father failed to respond to the social worker’s attempts to contact him. Father was not present at the March 11, 2010 combined sections 364 and 366.21, subdivision (e) hearings, but was represented by his counsel. The court terminated father’s reunification services. Miles remained in the mother’s care under family maintenance services. A hearing was set for July 9, 2010.
At the July 9, 2010 hearing, the paternal grandfather informed the court that father was in county jail with a release date of August 25, 2010. The case was continued. On July 14, 2010, a new petition was filed pursuant to section 387 alleging that the mother failed to comply with family maintenance services because she had multiple positive tests for methamphetamine.
A hearing was conducted on July 15, 2010, in which the mother denied the allegations in the petition. Although father was incarcerated at that time, he appeared at the hearing. Father told the court his release date from jail was set for midnight on August 21, 2010. The parents were instructed to appear for hearings on July 20, 2010, and on August 12, 2010. The court ordered that father be transported to court from jail for both hearings. On July 19, 2010, the court received the father’s JV-140 notice that his address was the county jail in Tulare County.
On July 20, 2010, the court conducted a hearing on the mother’s section 388 petition. Father was present in court, but did not join in the mother’s petition.
The section 387 hearing for Miles was continued from August 12, 2010. The mother was sent notice of the new hearing date to the parents’ home. Father was sent notice on August 16, 2010, to the county jail. On August 26, 2010, the court conducted the section 387 hearing. Both parents were present at the hearing. The parents both executed a form waiving their rights to a contested hearing. The parents acknowledged executing the waiver forms and expressly waived their rights to a contested hearing on the petition. The court found the petition true by a preponderance of the evidence.
The parties stipulated to an offer of proof as evidence from father’s counsel that father was incarcerated from February 4, 2010, until August 21, 2010, and had weekly visits with Miles through the glass of the pretrial facility of the county jail. The court accepted the stipulation. The court stated that it was accepting adoption as the permanent plan for Miles. In the presence of both parents, the court set the case for a section 366.26 hearing on December 17, 2010, at 8:30 a.m., in the same department. The parents were advised of their right to file a writ.
The social worker’s report for the section 366.26 hearing prepared in December 2010, indicated that father’s address was the county jail. The proof of service for the December 17, 2010 hearing was sent on October 15, 2010 to father’s home rather than to the county jail. The social worker’s report indicated Miles was adoptable and was likely to be adopted and recommended the termination of parental rights. Counsel for father was present. Father did not attend the termination hearing on December 17, 2010. The court terminated parental rights and found Miles was likely to be adopted.
DISCUSSION
Father contends that the juvenile court lacked jurisdiction because he did not receive notice of the termination hearing at his last stated address, the county jail. Father also contends the trial court failed to properly advise him of the consequences of a termination hearing. We do not find merit to father’s contentions and affirm the juvenile court’s orders.
Parents are entitled to notice of section 366.26 hearings. (In re Angela C. (2002) 99 Cal.App.4th 389, 392.) Section 294, subdivision (f), provides that parents may be noticed of a section 366.26 hearing in the following ways: (1) advisement by the juvenile court to a parent of the date, time, and place of a hearing as well notice of their right to counsel, the nature of the proceedings, and the requirement of the proceeding to select a permanent plan of adoption, legal guardianship, or long-term foster care for the child; (2) by certified mail, return receipt requested to the parent’s last known mailing address; (3) personal service; (4) delivery to a competent person at least 18 years of age at the parent’s usual place of residence or business and thereafter mailed to the parent by first-class mail; (5) if the residence of the parent is out of state, by methods 1, 3, or 4 or by certified mail, return receipt requested; (6) service by first-class mail if the recommendation of the social worker is for legal guardianship or long-term foster care; or (7) by sworn affidavit by the petitioner if the parent’s whereabouts cannot be determined after reasonable diligence.
At the hearing on July 15, 2010, father told the court that he would be released from county jail on August 21, 2010. During the August 26, 2010 hearing, father’s counsel entered into a stipulation with the agency that father was incarcerated from February 4, 2010, until August 21, 2010, and had weekly visits with Miles through the glass of the pretrial facility of the jail. The stipulation was accepted by the juvenile court. The only inference that can be drawn from this factual stipulation is that father was no longer in custody when he attended the August 26, 2010 hearing. We therefore reject father’s argument in his reply brief that the record does not indicate whether or not he was in custody.
The August 26, 2010 hearing established that father was no longer in custody. Father thereafter failed to change his address from the county jail to his residence. This deficiency cannot be attributed to the agency. Although the social worker’s report noted that father’s residence was still the county jail, this appeared to be an oversight by the social worker, not evidence that father was back in jail. The only evidence adduced at the hearing on August 26, 2010, was that father had been released from jail. There was no evidence of a different residence, including the county jail, during or after the hearing on August 26, 2010. The agency fulfilled its duty of notifying father of the termination hearing when it sent the notice to his last known address prior to when he was incarcerated in accordance with section 294, subdivision (f)(2). A contrary holding in this case would place form over substance. (See In re Malcolm D. (1996) 42 Cal.App.4th 904, 913.)
The paternal grandfather had made an earlier representation to the court that father would be released on August 25, 2010. If this unsworn statement could be considered evidence, it indicates that father was released from county jail prior to the August 26, 2010 hearing.
Father was further notified by the court at the August 26, 2010 hearing of the date, time, and place of the termination hearing. The termination hearing was not continued to a different date. The court also informed father that the likely outcome of the hearing would lead to Miles being adopted.
Father argues that the court failed to inform him of his right to counsel and of the nature of the termination hearing. We disagree. Father was represented throughout the proceedings by counsel and was so represented at the termination hearing itself. Although the court did not give father a detailed explanation of the nature of the proceedings, the court informed father that Miles could be adopted, clearly the most important component of an explanation of the nature of the proceedings. During the September 3, 2009 hearing, the juvenile court gave the parents a thorough advisement of the nature of the proceedings, including the likely outcome that they would lose their parental rights and the children would be adopted if they failed to receive treatment and comply with their reunification plans. We reject father’s argument that he was not properly informed of the nature of the proceedings in a termination hearing. We find that the notice requirements of section 294, subdivision (f)(1), were satisfied by the juvenile court’s verbal advisements to father during the hearing on August 26, 2010.
Relying on In re Jasmine G. (2005) 127 Cal.App.4th 1109, 1117-1118 (Jasmine G.), father also argues the absence of notice constitutes structural error. Jasmine G., unlike this case, involved the total absence of any notice to the parent and is, therefore, factually inapposite to the instant action.
DISPOSITION
The orders of the juvenile court terminating father’s parental rights and selecting adoption as the permanent plan for Miles are affirmed.