Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of San Diego County No. J511465A&C, Cynthia A. Bashant, Judge.
HALLER, J.
P.A. contends he was denied due process of law when the juvenile court denied his request for an evidentiary hearing under Welfare and Institutions Code section 366.26. We affirm.
Unless otherwise specified, further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
KR W., now 11 years old, has been the subject of two dependency proceedings. KR's current case began in 2008 after P.A. severely physically abused KR and several of his siblings, and displayed abnormal behaviors that placed KR and his siblings at risk of sexual abuse. KR was afraid of P.A. and did not want to visit him. Further details of the case are set forth in In re P.A. (Jul. 16, 2009, D054070 [nonpub. opn.]).
P.A. makes no claim of error as to his daughter, P'J.A.
In October 2008, the juvenile court issued a no contact order between P.A. and five of his children, including KR, ordered a plan of reunification services for KR's mother and denied reunification services to P.A. KR was placed in foster care.
KR's mother was unable to reunify with him. At the 18-month review hearing, the court set a section 366.26 hearing for March 15, 2010.
In her section 366.26 report to the court, the social worker recommended a permanent plan of long-term foster care for KR. She stated KR had numerous behavioral and emotional difficulties that might make it difficult to find an adoptive home for him, but he was adoptable. He was personable and engaging. KR strongly objected to his adoption and wanted to remain with his foster parent. Because of the many services KR required, the foster parent was unwilling to adopt KR or become his guardian, and wanted the continued support of staff and services from the San Diego County Health and Human Services Agency (the Agency) and another agency.
At the March 15 hearing, the court stated it had read and considered the section 366.26 report. P.A. was present. He requested a trial on whether long-term foster care was in KR's best interests. Minor's counsel objected to a contested hearing. The court continued the matter to May 3, 2010.
P.A. was present in court on May 3. On motion of mother's attorney, the court rescheduled the section 366.26 hearing for June 9, 2010.
P.A. did not appear at the June 9 hearing. His attorney asked the court to continue the hearing because P.A. was not present in court and objected to KR's placement in long-term foster care. P.A. wanted custody of KR. The court stated P.A. could file a section 388 petition for custody at any time and denied the motion.
Without formally admitting the Agency's section 366.26 report into evidence, the court adopted the report and found that KR was adoptable but the circumstances made termination of parental rights detrimental to him. The court identified KR's permanent plan as long-term placement with his foster parent.
DISCUSSION
P.A. argues his due process rights to a fair hearing were violated by the juvenile court's refusal to grant his request for a continuance. P.A. contends he is entitled to a full evidentiary hearing on the selection of KR's permanency plan and was denied a legitimate opportunity to present evidence in support of his position. (Mullane v. Central Hanover Bank & Trust Co. (1950) 339 U.S. 306, 314.) P.A. acknowledges an evidentiary hearing may not have resulted in the selection of a permanent plan more favorable to his interests. He argues that if he had received an evidentiary hearing, the court may have issued a more favorable visitation order, restored his right to make educational decisions for KR or found that KR was not adoptable.
We are not persuaded.
"An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is 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." (Mullane v. Central Hanover Bank & TrustCo., supra, 339 U.S. at p. 314.) Here, P.A. received notice of the proceedings and had the opportunity to appear in court and present his objections. P.A. did not appear. He was represented by counsel. The court was not required to delay the section 366.26 hearing in P.A.'s absence. " 'In dependency cases, as in other civil cases, personal appearance by a party is not essential; appearance by an attorney is sufficient and equally effective.' [Citations.]" (In re Jesusa V. (2004) 32 Cal.4th 588, 602.)
Further, a parent is not necessarily entitled to the right to full confrontation and cross-examination at every hearing. A parent's due process right to present evidence, cross-examine witnesses and controvert the contents of the Agency's report may be limited to relevant evidence of significant probative value before the court at that hearing. (In re Thomas R. (2006) 145 Cal.App.4th 726, 733.) Here, P.A. objected to the selection of long-term foster care as KR's permanency plan. When asked to explain the basis for his objection, P.A. stated he sought KR's return to his custody. The selection of a permanent plan is limited to adoption, guardianship or long-term foster care; return to parental custody is not before the court at a section 366.26 hearing. (In re Taya C. (1991) 2 Cal.App.4th 1, 7.) Thus the court did not violate P.A.'s due process rights when it determined the custody issue was not relevant at the section 366.26 hearing. (In re Thomas R., supra, at p. 733.)
Although the proceedings were brief and the court should have observed the formality of admitting the section 366.26 report in evidence, P.A. was not prejudiced by the lack of a full evidentiary hearing or formal admission of the report. (People v. Watson (1956) 46 Cal.2d 818, 836.) The court read and considered the section 366.26 report and adopted its recommendations, without objection to the court's procedure. P.A.'s parental rights were not terminated. He does not explain how the finding that KR was adoptable might prejudice him. (See § 366.3, subd. (i) [the agency must prepare a new adoption assessment when the court orders a section 366.26 hearing for a child in long-term foster care].) P.A. would have had to file a section 388 petition to restore his right to make educational decisions for KR; that issue is not before the court at the section 366.26 hearing. With respect to visitation, P.A. had not had contact with KR since 2008, and KR steadfastly maintained his position he did not want to have any contact with P.A. In view of P.A.'s extensive physical abuse of KR, and KR's wishes, there is no reasonable probability a contested hearing would have resulted in a more favorable visitation order to P.A. (People v. Watson, supra, at p. 836; see § 366.26, subd. (c)(4)(C) [court shall order parental visitation for a child in long-term foster care unless it finds visitation would be detrimental to the child].)
To the extent there was a due process violation, we conclude that the truncated section 366.26 proceeding and the selection of a permanency plan of long-term foster care did not affect P.A.'s interest in the care and custody of his son, with whom he had had no contact since 2008, and did not prejudice P.A.'s due process right to file a section 388 petition seeking custody of KR, a modified visitation order or restoration of his educational rights on a showing of changed circumstances and best interests of the child. Thus error, if any, was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; In re Mark A. (2007) 156 Cal.App.4th 1124, 1145-1146.)
DISPOSITION
The order is affirmed.
WE CONCUR: McCONNELL, P. J., AARON, J.