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In re Rene N.

Court of Appeal of California, First District, Division Five.
Oct 10, 2003
No. A099584 (Cal. Ct. App. Oct. 10, 2003)

Opinion

A099584.

10-10-2003

In re Rene N. et al., Persons Coming Under the Juvenile Court Law. SONOMA COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent, v. RENE N. et al., Defendants and Appellants.


Rene N. (father) and Armida O. (mother) (collectively hereafter parents) appeal juvenile court orders terminating their parental rights and finding their sons Rene N. and Eric N. likely to be adopted. (Welf. & Inst. Code, § 366.26.)[] Both parents contend there is insufficient evidence that the minors are adoptable, and the court failed to consider the wishes of the minors. Father also contends that the court erroneously failed to apply the continued beneficial relationship exception to adoption. (§ 366.26, subd. (c)(1)(A).) In addition, mother contends she received insufficient notice of the section 366.26 hearing (hereafter .26 hearing). We reject these contentions and affirm.

All undesignated section references are to the Welfare and Institutions Code. All rule references are to the California Rules of Court.

BACKGROUND

Rene, born in March 1998, and Eric, born in March 1999, were declared dependents of the court in March 2000 based on drug use by mother and the parents domestic violence and neglect of the minors sibling, Sierra.[] In October 2000, the minors were placed with foster parents George and Stacy P. (hereafter the foster parents). In May 2001, the court terminated reunification services for both parents and set a .26 hearing for September 2001.[]

Parental rights over Sierra are not the subject of this appeal.

Thereafter, this court denied fathers rule 39.1B writ petition and request for a stay.

The Sonoma County Human Services Department (the Department) submitted a .26 hearing report by its permanency planning social worker, Carol Robinett, and by state adoptions worker, Vicki Campbell, in August 2001. The report included an adoptability assessment pursuant to section 366.21, subdivision (i). The report noted that in April and May 2000, both minors had social, speech and language delays, and received services from the North Bay Regional Center (Regional Center) because they were at risk for developmental disability. Erics behavior was withdrawn and Renes was aggressive. However, as of August 2001, the minors were no longer being followed by the Regional Center because their development and social integration skills had sufficiently improved to disqualify them from services. In addition, their language skills had improved. The minors mental and emotional status appeared to be "fairly intact" despite their early neglect and Erics prenatal drug exposure. The minors symptoms of attachment impairment had also lessened. Campbell interviewed the minors about their desire to be adopted, but was unable to consider their wishes due to their young age and their inability to understand the concept of adoption. The foster parents indicated a desire to adopt the minors and a preliminary assessment of the foster parents indicated an excellent potential for adoption. The minors accepted the foster parents as psychological parents and had a bonded relationship with them. The report concluded that the minors were likely to be adopted if parental rights were terminated and recommended adoption as the permanent plan.

Combined Section 388 and Original .26 Hearing

At the commencement of the September 2001 .26 hearing, father contested the social workers report and submitted a petition under section 388 seeking to modify the prior order terminating reunification services. Thereafter, the .26 hearing was continued to October 2001 and the foster parents were granted de facto parent status. In October 2001, father filed an addendum to his section 388 petition detailing his compliance with his reunification plan. The court determined that father had made a sufficient showing in his section 388 petition and that the issues raised in the section 388 petition would be considered at the time of the .26 hearing, which was continued to December 2001.

The Departments November 2001 report prepared by Robinett and Campbell included another adoptability assessment. The report noted that the minors development and abilities had "greatly improved" and Renes aggressive behavior had "decreased dramatically" since the minors placement with the foster parents. Rene also had noticeable improvement in self-esteem and the minors were better able to engage in cooperative play. The minors were now able to speak and understand English and Spanish. Despite his prenatal drug exposure, Eric did not appear to be delayed in any area. Both minors displayed some symptoms of children who are attachment-impaired and have experienced a lack of consistency, although this had lessened considerably. The report concluded that the minors were likely to be adopted if parental rights were terminated. The report once more recommended termination of parental rights and adoption of the minors by the foster parents. Again, the minors wishes were not considered due to their age and level of understanding.

Father submitted a bonding study of him, the minors, and the foster parents prepared by psychologist Betsy Hall, which opined that the minors would experience harm, confusion over identity and self-esteem problems from severing the bonds with father. Dr. Hall noted that although the minors are loved by the parents and the foster parents, the minors "best hope . . . of integrating both their traumatic beginnings and their positive attachments lies with their father." Dr. Hall recommended the retention of fathers parental rights, that father work toward reunification and have increased visitation with the minors, and that mother have supervised visitation with the minors if her visitation is consistent. At the hearing, Dr. Hall testified that the minors have a very strong father-son bond with father, and terminating fathers parental rights would deprive the minors of a substantial positive emotional attachment with father.

The Department submitted a November 2001 attachment and bonding study of the minors, the foster parents and father by psychologist Jacqueline Singer. Dr. Singer opined that the minors attachment to their foster parents is stronger than their attachment to father, and that the minors would experience severing their relationship with the foster parents as a traumatic loss that might result in diminishing their capacity to form another attachment relationship, especially if they required another placement prior to returning to father. Dr. Singer opined that the attachment between the minors and mother is weak. Dr. Singer concluded that the positive aspects of fathers bond with the minors is outweighed by the minors need for stability in their attachment relationships. Dr. Singer acknowledged that the foster parents decision to change Renes name to Georgie "has resulted in some confusion about [Renes] identity," and the foster parents would not be entirely supportive of the minors contact with father if they were adopted by the foster parents. At the hearing, Dr. Singer testified that the minors view the foster parents as their psychological parents and view father more like an uncle or other relative than as a parent. Dr. Singer saw "very little" evidence of the minors attachment to mother. She opined that the minors love and have a strong attachment to the foster parents and want permanency within the foster parents home, which provided them consistency, stability and ongoing care. She recommended that the minors be adopted by the foster parents and opined it would not be detrimental to the minors to terminate parental rights. Dr. Singers recommendation was based on the minors stronger attachment to the foster parents than to father and because the foster parents are better able to provide the minors what they need developmentally to "move them through the difficulties they had in their early life." Dr. Singer also stated that even if the foster parents were unwilling to allow the minors contact with father, adoption by the foster parents would still be in the minors best interests.

State adoptions worker Campbell testified that after considering the minors special needs due to their developmental, and speech and language delays, she and other members of the Department staff concluded that the minors were adoptable as a sibling set. After reviewing 50 home studies, Campbell and the Department staff narrowed the search to five prospective adoptive families and ultimately selected the foster parents as the most appropriate prospective adoptive family. Campbell testified that the adoptability opinion she rendered early in the case was still accurate based on the minors progress. Campbell also opined that based on the minors age, developmental status and emotional and physical status, and their "dramatic progress," they would likely be adopted by another family if not adopted by the foster parents. She noted that the minors special needs had "almost completely subsided."

In February 2002, following the combined contested section 388 and .26 hearings, the court granted fathers section 388 petition after finding he had demonstrated changed circumstances and granted his motion to vacate the prior order terminating reunification services. The court granted father three months of reunification services subject to the conditions that he submit to random drug testing and receive counseling from an experienced codependency counselor to deal with his codependence with mother. The court set a May 9, 2002 three-month status review hearing. The parties stipulated that the .26 hearing would be continued for three months, rather than vacated, so that if reunification services to father were subsequently terminated, evidence from the original .26 hearing could be considered at a continued .26 hearing, and only updated information would be provided.

Three-Month Review Hearing

The Department social workers May 1, 2002 three-month review hearing report noted that in late March the minors were placed with father on a trial home visit. Father was aware that any contact with the mother could result in the minors being removed from his care. The report noted that father was in compliance with his reunification plan, and that the permanent plan of the minors return to fathers home continued to be appropriate.

On the morning of the May 9, 2002 three-month review hearing, fathers reunification social worker, acting on a tip that mother and father were again in a relationship, made an unannounced visit to fathers home where she found mother asleep. The minors were removed from fathers home. The Department filed an addendum to its earlier .26 hearing report, recommending termination of fathers reunification services. The matter was continued to May 28 for a contested 18-month review hearing regarding father. Thereafter, mother submitted a section 388 petition seeking modification of the order terminating her reunification services.

18-Month Review Hearing

At the outset of the 18-month review hearing, the court denied the mothers section 388 petition. Thereafter, Dr. Hall, whose earlier bonding study had favored father, testified that at the time she conducted her study she understood that mother and father were separated and that father understood that he was not to have a relationship with mother. Dr. Hall agreed with the Departments removal of the minors from fathers home after mother was found there, and opined that the minors return to the foster parents was in the minors best interests.

On May 31, 2002, at the conclusion of the contested 18-month review hearing, the court terminated reunification services to father, continued the matter to June 26 to set a date for the continued .26 hearing, and ordered the Department to prepare an updated adoption assessment.

Continued .26 Hearing

The Departments June 21, 2002 addendum to its November 2001 . 26-hearing report stated that in mid-May, the minors had an enjoyable supervised visit with father, who was "appropriate." The visit was supervised by Fred Barnes, a social worker with the supervising adoption agency. According to Barnes, while living with father during the trial visit, Rene "became disappointed that their reunion and daily life together was not what he had hoped for." Barnes reported that the minors have been back in contact with the foster parents since being removed from fathers home. The minors look forward to moving back to the foster parents home when the foster parents return from a previously planned vacation.[] According to Barnes, since the trial home visit with father failed, Rene has been more accepting of the foster parents. The foster parents continue to be very committed to the minors and want to adopt them. The foster parents will enter into a postadoption contact agreement with father. The report concluded that the minors have an "attached and loving relationship" with the foster parents which meets the needs of the minors, and the minors would benefit from being adopted by them. The report again noted that the minors wishes had not been considered due to their age and level of understanding.

At the time of the continued .26 hearing, the minors were back with the foster parents.

At the commencement of the continued .26 hearing on July 12, 2002, the Department agreed to submit the matter on the basis of its June 2002 addendum. Campbell testified that she had had no contact with the minors since she interviewed them for the November 2001 .26-hearing report. Since then, Barnes has had contact with the minors, and Campbells information for the June 2002 addendum came from Barnes a week before the addendum was written. Campbell said that in November 2001, when she interviewed the minors regarding their desire to be adopted, they were two and three years old, respectively, and were too young to understand the concept of adoption. Campbell said that based on the minors ages at the time of the current hearing, she did not think they understood the concept of adoption. Based on her experience, Campbell considered it "highly unlikely" that children aged two and three, or two and one-half or three and one-half years of age, would have an understanding of the complexities of adoption. Campbell also said that none of the events in the minors lives which occurred between November 2001 and June 2002 changed her original opinion that the minors are adoptable. Campbell acknowledged that in some ways the minors are hard to place because they are a sibling set, members of a minority group and have a lot of issues regarding their adverse parental background. However, she still considered them "very adoptable," because of their young age and the established familial bond between them and the foster parents. Campbell again opined that even if the foster parents decided not to adopt them, the minors would still be adoptable. Father testified that he last visited the minors about seven weeks previously and would visit them again in a couple of days.

At the conclusion of the hearing, the court issued its ruling which included a review of the evidence and issues in the case. The court noted that the core issue in fathers reunification plan was overcoming his codependency toward mother and putting the minors needs before hers. The court found the minors were adoptable and that given their young ages, the Departments efforts were sufficient to infer their wishes about adoption. The court noted that it gave more weight to Dr. Singers perception of the situation than to Dr. Halls perception. The court acknowledged that, although the minors have a bond with father, their need for stability and their view of the foster parents as their psychological parents were predominating factors. The court found that father maintained regular visitation, but the benefit to the minors of maintaining their parental relationship with father did not outweigh the benefit of adoption. The court found by clear and convincing evidence that the minors were likely to be adopted and that termination of mothers and fathers parental rights would not be detrimental to them. The court ordered parental rights terminated and adoption as the permanent plan.

DISCUSSION

I. Adoptability

Both parents contend that there is no substantial evidence supporting the courts finding that the minors were likely to be adopted.

"We review the factual basis of a termination order to determine whether the record contains substantial evidence from which a reasonable trier of fact could find a factual basis for termination by clear and convincing evidence." (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) In considering a claim of insufficiency of the evidence, we review the record in the light most favorable to the juvenile courts findings and draw all inferences from the evidence that support the courts determination. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1177.)

Where possible, adoption is the permanent plan preferred by the Legislature. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.) Where the court finds a minor cannot be returned to his or her parent and is likely to be adopted if parental rights are terminated, it must select adoption as the permanent plan unless it finds that termination of parental rights would be detrimental to the minor under one of five enumerated exceptions. (& sect; 366.26, subd. (c)(1); In re L.Y.L., at p. 947.)

"The issue of adoptability requires the court to focus on the child, and whether the childs age, physical condition, and emotional state make it difficult to find a person willing to adopt. [Citations.]." (In re Brian P. (2002) 99 Cal.App.4th 616, 624.) There must be convincing evidence that it is likely that adoption will take place within a reasonable time. (Ibid. ) The existence of a prospective adoptive family is relevant, since the willingness of a prospective adoptive parent to adopt the child generally suggests that the childs characteristics are not likely to dissuade persons from adopting the child and indicates the likelihood that the child will be adopted within a reasonable time, by the identified prospective adoptive family or by some other family. (In re Lukas B., supra, 79 Cal.App.4th at p. 1154; In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650.)

A. Adequacy of the Adoption Assessment

Mother first asserts that the adoptability finding was made without a current adoption assessment, and therefore the court failed to consider "the emotional toll that the reunification with [father] and [its] subsequent failure had on the [minors]." In essence, mothers claim is that the adoption assessment presented to the juvenile court failed to comply with section 366.21, subdivision (i).[] She concedes that her trial counsel failed to object to the adequacy of the adoption assessment below. It is well established that objections to the adequacy of an adoption assessment are waived if raised for the first time on appeal. (See In re Brian P., supra, 99 Cal.App.4th at pp. 622-623; In re Urayna L. (1999) 75 Cal.App.4th 883, 885-886; In re Aaron B. (1996) 46 Cal.App.4th 843, 846.) Consequently, we do not review this claim of error.

Section 366.21, subdivision (i) provides, in relevant part: "Whenever a court orders that a hearing pursuant to Section 366.26 shall be held, it shall direct the agency supervising the child and the licensed county adoption agency, or the State Department of Social Services when it is acting as an adoption agency in counties that are not served by a county adoption agency, to prepare an assessment" that must include various statutorily enumerated analyses and evaluations relevant to the adoptability of the child.

B. Substantial Evidence of Adoptability

The parents argue the evidence established that, due to the minors special needs, it is not reasonably likely they will be adopted. In addition, mother argues that the court did not consider whether the minors emotional status or ability to form attachments had changed in light of events between February and July 2002, and, therefore, evidence of the minors adoptability was insufficient to support the courts finding. Finally, mother argues that the adoptability finding was based "solely" on the foster parents willingness to adopt.

The record before us fails to support the parents contention that the minors special needs render them not likely to be adopted. Instead, the record establishes that when the minors were one and two years of age, respectively, they were at risk of developmental delay, and exhibited speech, language and behavioral problems, and received Regional Center services. However, at the time of the Departments November 2001 report, at ages two and one-half and three and one-half, respectively, the minors had made tremendous improvement in all areas and no longer qualified for Regional Center services. Although they continued to display some symptoms of attachment impairment, such symptoms had lessened considerably. At the continued . 26 hearing, Campbell testified that the minors were adoptable as a sibling set, and were generally adoptable, even if not adopted by the foster parents. Thus, we reject the assertion that the adoptability finding was based "solely" on the foster parents willingness to adopt. Finally, Campbell opined that the minors trial placement with father and their subsequent removal therefrom did not affect her opinion regarding the minors likelihood of adoption. Consequently, we reject mothers assertion that such events were not considered.

II. Minors Wishes for Adoption

Both parents contend the Department failed to provide the juvenile court with information regarding the minors wishes as required by section 366.21, subdivision (i)(5), and the court erred in failing to consider the wishes of the minors as required by section 366.26, subdivision (h). Parents also contend that counsel rendered ineffective assistance of counsel in failing to interview the minors to determine their wishes as required by section 317, subdivision (e).

A. Minors Wishes

Section 366.21, subdivision (i)(5) provides that prior to a . 26 hearing an adoption assessment must be prepared which "shall" include information regarding "[t]he relationship of the child to any identified prospective adoptive parent or legal guardian, the duration and character of the relationship, the motivation for seeking adoption or guardianship, and a statement from the child concerning placement and the adoption or guardianship, unless the childs age or physical, emotional, or other condition precludes his or her meaningful response, and if so, a description of the condition." (Italics added.)

Section 366.26, subdivision (h) provides the court "shall consider the wishes of the child and shall act in the best interests of the child." This section has been construed to mean that the juvenile court just consider the childs wishes "`"to the extent ascertainable."" (In re Amanda D. (1997) 55 Cal.App.4th 813, 820; In re Leo M. (1993) 19 Cal.App.4th 1583, 1591.) The court may receive evidence of the childs wishes by direct testimony in court or in chambers, in communication with the court on or off the record, or from court reports prepared for the hearing. (In re Amanda D., at p. 820.) What is required is a "reasonable basis for inferring the [childs] wishes." (Ibid.) "What the court must strive to do is `to explore the minors feelings regarding his/her biological parents, foster parents, and prospective adoptive parents, if any, as well as his/her current living arrangements . . . . [A]n attempt should be made to obtain this information so that the court will have before it some evidence of the minors feelings from which it can then infer his/her wishes regarding the issue confronting the court." (Ibid., quoting In re Leo M., at p. 1592.)

The minors were two and three years old, respectively, when Campbell first interviewed them for her August 2001 report and determined they were too young to understand the concept of adoption. At the continued .26 hearing, Campbell testified that based on information from Barnes, the minors, then ages three years four months and four years five months, respectively, were still too young to understand the complexities or concept of adoption. Although the minors ages made them too young to provide a meaningful statement regarding their wishes for adoption, their wishes regarding placement were adequately reflected in the Departments reports and the bonding studies submitted to the court for the .26 hearing. (See In re Cody S. (1997) 56 Cal.App.4th 230, 233-234 [four-year-seven-month-old child may be too young to provide meaningful statement regarding adoption].)

The Departments November 2001 report stated that the minors appeared to relate to the foster parents as their psychological parents, and sought out and received love and nurturing from them. In addition, Dr. Singers November 2001 bonding study stated that the minors appear to perceive the foster parents not only as their primary caretakers, but as "mom" and "dad" and perceive "themselves together as a family unit." Dr. Singer testified that the minors view father more like an uncle or other relative. The Departments June 2002 addendum to the November 2001 report stated that since the minors were removed from fathers home, Eric had no significant problem transitioning back to the foster parents and Rene was more accepting of the foster parents and "his place within their family." The addendum stated that during the trial visit with father, Rene became disappointed that their life together was not what he had hoped for. The record provides substantial evidence that the minors wishes were adequately reflected in reports submitted to the court. In addition, the record supports the courts finding that the minors wishes were considered.

B. Ineffective Assistance of Counsel

Section 317, subdivision (e) concerns counsels representation of a child in a dependency proceeding, and provides in part: "In any case in which the child is four years of age or older, counsel shall interview the child to determine the childs wishes and to assess the childs well-being, and shall advise the court of the childs wishes."

Parents argue that the minors appointed counsel failed in her statutory obligation by not determining the minors wishes, and therefore rendered ineffective assistance of counsel. To succeed in this claim, parents must establish they were prejudiced by any failure by counsel to determine the wishes of the minors. (In re L.Y.L., supra, 101 Cal.App.4th at pp. 955-956.)

In support of their defective representation claim, parents refer to the following comments by the minors counsel at the continued .26 hearing: "[T]he Court must consider the wishes of the child and act in the childs best interest when its able to determine directly from the child what that is. But its in no way required by case law to elicit direct responses from children, particularly of this age." Later, in her closing argument, counsel stated: "Now let me go back to the issue of consideration of the childrens wishes. Theres absolutely no requirement that Ms. Campbell go back and interview these little boys directly on the issue of their concept of adoption and whether or not they want their parental rights to be terminated. Thats ludicrous. A child may be too young to understand or express his wishes regarding adoption." Based on these comments by the minors counsel, parents conclude that the minors counsel did not personally interview the minors as to their wishes. However, these comments refer only to the efforts by Campbell to interview the minors, and shed no light on whether counsel interviewed the minors as to their wishes. Parents claim fails because it is not supported by the record.[]

In a footnote in his reply brief, father concedes that the Department is correct that the transcript does not establish that the minors counsel stated she had not interviewed the minors. While this suggests an abandonment by father of his incompetence of counsel claim, such abandonment is not made clear.

III. Continuing Beneficial Relationship

Subdivision (c)(1) of section 366.26 provides that if the juvenile court finds the child adoptable, "the court shall terminate parental rights and order the child placed for adoption . . . unless the court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [¶] (A) The parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship."

Here, it is undisputed that father maintained regular visitation and contact with the minors. The courts finding that father failed to establish the continuing beneficial relationship exception under section 366.26, subdivision (c)(1)(A) was expressly based on that subdivisions second prong. In re Autumn H. (1994) 27 Cal.App.4th 567, 575 has interpreted the exception to apply when "the relationship promotes 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 determining the second prong, "the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging that a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parents rights are not terminated." (Ibid. ) The determination is made on a "case-by-case basis," after considering the many variables which affect a parent/child relationship, such as the childs age, the portion of the childs life spent in the parents custody, the effect of interaction between the parent and child and the childs particular needs. (Id. at pp. 575-576; accord, In re Zachary G. (1999) 77 Cal.App.4th 799, 811.) Numerous cases have followed the Autumn H. standard in determining the applicability of this exception. (See, e.g., In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350 [more than mere friendly or familiar relationship required]; In re Derek W. (1999) 73 Cal.App.4th 823, 827 [pleasant and emotionally significant relationship not as determinative as consistent, daily nurturing]; In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1341-1342 [balancing process can include balancing childs bond with prospective adoptive parents as compared to childs bond with parent]; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1420 [frequent and loving contact, without occupying parental role, not sufficient].)

Autumn H. applied the substantial evidence test in reviewing the courts findings under this exception. (In re Autumn H., supra, 27 Cal.App.4th at pp. 575-576.) With one exception (see In re Jasmine D., supra, 78 Cal.App.4th at p. 1351),[] cases subsequent to Autumn H. have employed that standard of review. (See, e.g., In re Amber M. (2002) 103 Cal.App.4th 681, 689; In re Jerome D. (2000) 84 Cal.App.4th 1200, 1207; In re Brandon C. (1999) 71 Cal.App.4th 1530, 1533-1534, 1538.)

In Jasmine D., Division Three of this court held that the abuse of discretion standard applies. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) Jasmine D. has not been followed on this point by any published decision thus far. (See also, Seiser & Kumli, Cal. Juvenile Courts: Practice and Procedure (2003) § 2.171[5][a][i], p. 2-276 [criticizing In re Jasmine D. and stating that substantial evidence review is the better test].) In any case, as Jasmine D. noted, both standards of review give broad deference to the trial courts judgment. (In re Jasmine D., at p. 1351.)

Father argues the juvenile court erred in finding that the exception was not proven. He asserts that the evidence establishes that in addition to maintaining regular visitation with the minors, he successfully completed his reunification plan, and was strongly bonded with the minors. He also argues that Dr. Halls bonding study included "very serious concerns" about the foster parents and concluded that the minors would benefit from continuing their relationship with father.

Under the substantial evidence standard of review, we determine whether substantial evidence exists to support the lower courts findings. That substantial evidence may also exist to support a contrary finding is irrelevant for purposes of our review.

The record supports the courts acknowledgement that father had made "Herculean" efforts to reunify with the minors. Despite such efforts, Dr. Hall testified that father understood that he was at risk of reengaging in a codependent relationship with mother and that having any contact with her could cost him his parental rights. Although Dr. Halls September 2001 bonding and attachment study recommended the minors placement with father, her opinion at the May 2002 18-month review hearing was that the minors were properly removed from fathers home after mother was found there, and it was in the minors best interest to be returned to the foster parents. What father characterizes as a single "slip" by him, was viewed by the Department social workers and by Dr. Hall as father creating the potential for more contact with mother which the court had previously determined to be fathers greatest obstacle to reunification. Dr. Singer opined that the minors attachment to the foster parents was stronger than their attachment to father; the minors viewed the foster parents as their psychological parents and viewed father more like an uncle or other relative than as a father. Dr. Singer concluded that given the strength of the minors attachment to the foster parents and their need for stability, the foster parents were better able to provide for the minors developmental needs. Finally, Barnes reported that after being removed from fathers home, the minors were looking forward to returning to the foster parents home, and Rene was more accepting of the foster parents.

We conclude the record contains substantial evidence to support the juvenile courts finding that father failed to establish that the minors would benefit to such a degree from continuing their relationship with him that they would be harmed if his parental rights were terminated.

IV. Mothers Notice of the Continued .26 Hearing

For the first time on appeal, mother contends she received no statutory notice under former section 366.23[] of the continued .26 hearing which commenced on July 12, 2002.[] In a footnote in its respondents brief, the Department requests that we impose sanctions on mothers appellate counsel for raising a frivolous issue on appeal. We decline the request for sanctions since it was not made by separate motion supported by a declaration supporting the amount of sanctions sought. (Rule 27(e); Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2002) § 5:37a, p. 5-12.)

Effective January 1, 2002, former section 366.23 was repealed and replaced with section 294. (See Stats. 2002, ch. 416, §§ 1, 11, pp. 2016, 2020-2022, 2029.)

Although mothers opening brief asserts that she was never properly noticed of the original . 26 hearing which commenced in September 2001, and the court erred by setting the continued .26 hearing for a date which did not afford the requisite 45 days notice under former section 366.23, subdivision (a), those issues are expressly abandoned in her reply brief.

The Department argues that mother waived the notice issue by failing to raise it below. While there is support for the waiver argument (see In re Lukas B., supra, 79 Cal.App.4th 1145, 1152 [improper notice of .26 hearing claim waived]), we address the issue on the merits.

"Parents are entitled to special notice of a section 366.26 hearing pursuant to [former] section 366.23, which specifies in considerable detail the necessary contents, timing and methods for service of the notice." (In re Angela C. (2002) 99 Cal.App.4th 389, 392.)[]

Former section 366.23, subdivision (a) provided, in relevant part: "Whenever a juvenile court schedules a hearing pursuant to Section 366.26 regarding a minor, it shall direct that the [father] . . . and mother of the minor . . . shall be notified of the time and place of the proceedings and advised that they may appear. The notice shall also advise them of the right to counsel, the nature of the proceedings, and of the requirement that at the proceedings the court shall select and implement a plan of adoption, legal guardianship, or long-term foster care for the minor. . . . Service of the notice shall be completed at least 45 days before the date of the hearing. . . . If the petitioner is recommending termination of parental rights, notice of this recommendation shall be either included in the notice of a hearing scheduled pursuant to Section 366.26 and served within the time period specified in this subdivision or provided by separate notice to all persons entitled to receive notice by first-class mail at least 15 days before the scheduled hearing."

On May 31, 2002, mother was present and represented by counsel at the 18-month review hearing. However, while the court was making its ruling, mother left the hearing and was not present when the court stated it was terminating reunification services to father and would set a .26 hearing. The court also stated that a copy of its order would be served on mothers counsel and mailed to mother at her last known address on Coffey Lane, in Santa Rosa. The court continued the matter to June 26 for placement on the courts master calendar to set the .26 hearing.

The Departments June 21, 2002 amended .26 hearing report noted that mothers current address was unknown. It also stated that three unsuccessful attempts had been made to serve notice of the .26 hearing on mother at the Coffey Lane address, and that mothers relatives residing at that address said mother no longer lived there.

At the June 26, 2002 hearing, mother was present and specially represented by fathers counsel, since mothers counsel was on vacation. After the court announced the matter was "on for master calendar," a colloquy ensued regarding setting "this matter," which the Departments counsel clarified was "the continued .26 hearing." The court set the .26 hearing for July 12 and tentatively denied the parents motion to obtain new counsel. The court gave parents seven days to brief the issue of associate counsel, and stated that it would calendar the counsel issue only if persuaded by the supplemental briefing. However, the court made clear that if unpersuaded on the counsel issue, "were just going on as we are," and then stated, "Im going to keep this on track because I believe Im correct. Were not going to change any date unless theres a showing Im incorrect on that."

At the July 12, 2002 hearing, mother was not present but was represented by counsel. After the court denied parents request for new counsel, the .26 hearing commenced. Before closing arguments the court stated, "mother was here at the last hearing when this was the date set for trial. She still remains absent from the Court. So the Court is going to find that she has voluntarily absented herself." The .26 hearing was continued to July 15 for issuance of the courts ruling. On July 15, mother was not present, but was represented by counsel. After stating it was terminating parental rights, the court found: "Notice has been given as required by law. And I would note that mom was noticed to be here for the last appearance where we scheduled this one and she voluntarily absented herself and remains voluntarily absent." At no time did mother or her counsel raise the issue of improper notice below.

Mothers argument is based on the premise that the .26 hearing which commenced on July 12, 2002, was a new. 26 hearing. However, the record before us clearly establishes that the July hearing was not a new .26 hearing, but a continuation of the .26 hearing that originally commenced in September 2001. Former section 366.23 governs notice when a .26 hearing is first set; it does not apply when a .26 hearing is merely continued. (In re Phillip F. (2000) 78 Cal.App.4th 250, 257-258; In re Malcolm D. (1996) 42 Cal.App.4th 904, 913.)

However, some notice of the continuance must be given to satisfy due process. (In re Phillip F., supra, 78 Cal.App.4th at pp. 252, 257; In re Julian L. (1998) 67 Cal.App.4th 204, 208.) "Due process merely requires that the parent receive notice `"`reasonably calculated, under all the circumstances, to apprise interested parties of the [continued] pendency of the action and afford them an opportunity to present their objections." [Citation.]" (In re Phillip F., at p. 258.) Phillip F. held that actual notice of the continued . 26 hearing will satisfy due process requirements. (Id. at pp. 257-259; see Seiser & Kumli, Cal. Juvenile Courts: Practice and Procedure, supra, § 2.171[2], p. 2-272 [If the parent has been properly noticed for the .26 hearing and the matter is continued, the full requirements of former section 366.23 for notice are not mandated for each continuance. Instead, so long as the recommendation has not changed, notice may be provided by such means as first class mail, a written notice from the parents attorney, or an oral notice if the parent appears in court].)

On June 26, 2002, mother was present in court and represented by counsel when the court set the continued .26 hearing, and therefore had actual notice of the continued hearing date. Had mother not been represented by counsel at that June 26 hearing, we would be troubled by the fact that the setting of the continued .26 hearing was not more clearly articulated. The court and counsel were most focused on the issue of the parents entitlement to new counsel and setting a schedule to brief that issue while setting the continued .26 hearing. However, we are entitled to assume that mothers counsel at the June 26 hearing sufficiently explained to mother that the .26 hearing was continued to July 12, in conformance with counsels statutory obligation to provide competent representation. (& sect; 317.5; see In re Phillip F., supra 78 Cal.App.4th at p. 259.) In addition, at the July 12 hearing, mothers counsel was silent in response to the courts finding that mother was in court when the matter was set for trial and was voluntarily absent therefrom. Mothers counsel again was silent in response to the courts finding at the continued July 15 hearing that proper notice had been given to mother. We conclude that mother has failed to demonstrate due process error.

DISPOSITION

The orders terminating parental rights are affirmed.

We concur: STEVENS, Acting P.J. and GEMELLO, J.


Summaries of

In re Rene N.

Court of Appeal of California, First District, Division Five.
Oct 10, 2003
No. A099584 (Cal. Ct. App. Oct. 10, 2003)
Case details for

In re Rene N.

Case Details

Full title:In re Rene N. et al., Persons Coming Under the Juvenile Court Law. SONOMA…

Court:Court of Appeal of California, First District, Division Five.

Date published: Oct 10, 2003

Citations

No. A099584 (Cal. Ct. App. Oct. 10, 2003)