Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Ct.No. SWJ009323, Michael J. Rushton, Judge.
Teri A. Kanefield, under appointment by the Court of Appeal, for Defendant and Appellant S.H.
Lori A. Fields, under appointment by the Court of Appeal, for Defendant and Appellant A.D.
Pamela J. Walls, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for Minor.
OPINION
MILLER J.
T.H. (minor) (born June 2007) came to the attention of the Riverside County Department of Public Social Services (the department) in the instant case on June 17, 2009, when the department received a report that S.H. (father) and A.D. (mother) (collectively parents) were using methamphetamine and marijuana in front of minor, that minor had access to parents’ drugs and drug paraphernalia, and that minor played with parents’ drug paraphernalia. A social worker and a deputy responded to the home, where they found methamphetamine, marijuana, drug paraphernalia, a dirty home, little food, and minor in an unclean state. Father was on probation. The department had intervened with parents on three previous occasions regarding reports of the use of controlled substances, general neglect, and unsafe conditions. Parents were arrested. On August 3, 2010, at the scheduled Welfare and Institutions Code section 366.26 hearing, parents failed to appear. The juvenile court terminated parents’ parental rights. On appeal, parents contend the juvenile court deprived them of their due process rights by prohibiting them of any meaningful opportunity to present their case via their respective attorneys. We hold that the juvenile court afforded parents requisite due process and, therefore, affirm the judgment.
All further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL HISTORY
On June 8, 2009, the department received a child abuse report, which was upgraded to an immediate response request on June 17, 2009. Several small bags of methamphetamine were found in mother’s purses. Marijuana was also found; father admitted that it was his. Methamphetamine and marijuana pipes were found in the home; one of the pipes was found on the floor adjacent to the mattress on which minor slept. Mother admitted using methamphetamine since she was 16 years old, but denied using in minor’s presence. Father denied any current use of methamphetamine, but admitted using marijuana occasionally, twice a week during the last couple weeks. He denied ever using in front of minor. Minor and the home were unkempt. At the detention hearing on June 22, 2009, the juvenile court found probable cause supported minor’s detention. The court directed that parents have twice weekly visits with minor.
The jurisdictional and dispositional (J/D) report reflected interviews with parents’ extended family. Paternal grandmother stated that mother lacks “‘parenting and life skills.’” Maternal grandmother stated that “mother and father are young and immature[, ] parents and are trying their best. She said that they could benefit from parenting classes.” Paternal great-grandfather noted that when parents lived with him, “mother was appropriate with [minor], but appeared that it was more of [a] chore and that she did not enjoy being a mother. [He] would have to remind [mother] to feed [minor] and check on him to see that he was okay.” He opined that mother was “young and was not ready to be a parent.” Mother visited with minor on June 29, and July 7, 2009; both times she was observed to sit on the sofa during the entire visit while minor played. On the former visit, mother brought a friend and the friend’s child, the latter with whom minor played during the entire visit. Mother failed to show for a scheduled visit set for July 6, 2009. Father visited on June 24, and July 1, 2009; father’s interaction with minor was deemed “appropriate” and “very affectionate.” Father became emotional when he was required to leave the visits. The social worker recommended authorizing a return of minor to father’s home so long as father enrolled in an outpatient drug treatment program and individual counseling. Father requested a contested J/D hearing, which was continued twice to September 1, 2009.
Neither parent appeared at the originally scheduled contested J/D hearing on July 30, 2009. The parties stipulated to a continuance. Father’s counsel alleged father had been unable to attend because he had been involved in a car accident.
In the interim, the department prepared two addendum reports. In the first, filed July 24, 2009, the social worker noted father had tested positive for marijuana on July 10, 2009. Father had missed the visitation with minor scheduled for July 15, 2009, allegedly because father’s dog had been hit by a car and had to be taken to the veterinarian. Furthermore, father had been arrested for a probation violation on July 20, 2009. Mother visited with minor on July 13, 2009; the social worker observed that mother interacted appropriately with minor; she got down on the floor and played with him.
In the second report filed August 26, 2009, the social worker noted that mother admitted to smoking marijuana within the past few weeks. Mother indicated that “she will continue to try and refrain from drug use; however, she cannot predict the future.” Mother visited on July 30, August 7, and 17, 2009; the social worker deemed the visits “appropriate, ” affectionate, ” and “attentive.” Father had not visited for several weeks; however, father showed up at mother’s visit with minor on August 17, 2009.
As amended, the juvenile dependency petition alleged that mother abused controlled substances, placing minor at risk of suffering serious harm; that father abused controlled substances, limiting his ability to provide adequate care for minor; and that father knew mother was abusing controlled substances while caring for minor, placing minor at risk of serious harm. (§ 300, subd. (b).) At the J/D hearing on September 1, 2009, parents entered denials but submitted on the reports. Father’s counsel requested the court reconsider the department’s recommendation that father undertake a substance abuse program, noting that father only admitted to occasional use of marijuana and had only one positive drug test. The juvenile court found clear and convincing evidence to remove minor from parents’ custody and ordered twice weekly visits, one of which was to occur in Idyllwild where parents lived. The court approved parents’ case plan requiring that they refrain from the use of controlled substances, comply with all ordered random drug tests, complete a parenting class, and complete a drug abuse treatment program.
The status review report filed February 10, 2010, reflected that “mother... has failed to participate in case plan services and has self reported to continue to abuse illegal substances.” Mother admitted to using marijuana weekly and methamphetamines a couple of times, one month earlier. Mother missed two group sessions in family preservation court, failed to submit to substance abuse testing on July 6 and 21, 2009, and was terminated from the program. Mother failed to submit to subsequent drug testing scheduled for January 27, and February 1, 2010. Mother failed to contact any programs to which she was referred or to show up for any appointments scheduled for her: Mother “has yet to participate in a parenting education program.” Mother visited with minor on September 1, 14, 21, October 5, November 12, 16, 23, 30, December 16, 23, 2009, and January 25, 2010; the social worker characterized mother as affectionate and attentive; the social worker noted a strong bond between mother and minor. Nevertheless, mother missed numerous visits because she failed to return calls made by the social worker to schedule visits.
Father visited minor on September 1, 14, 21, and October 5, 2009; the social worker noted a strong bond between the two. Despite numerous messages left for father in an effort to aid him in his enrollment in the ordered services, father failed to return any calls. On November 5, 2009, father was picked up for another violation of the terms of his probation. The department concluded there was no substantial probability of return to either parent and recommended termination of reunification services.
An addendum report dated March 30, 2010, reflected that mother had failed to submit to a substance abuse test scheduled for March 15, 2010. Neither mother nor father had enrolled in any court ordered services. At the contested status review hearing on April 5, 2010, both parents were present. The parties stipulated that mother would testify that transportation problems were the reason she had been unable to begin services or make visits with minor; mother lived in Idyllwild while the services offered were in Indio and Palm Desert. Mother had attended “some AA/NA meetings, but she does not currently have court cards.” Father’s stipulated testimony reflected that he had been in a substance abuse program during the past month for three hours a day, five days a week; the entire program was three months long and he was scheduled to graduate in May. Father indicated he was also attending AA once a week. Father had no documentation to support his attendance at the programs delineated in his stipulated testimony. Father testified that he was also half way through a self-administered book program on parenting that he started three weeks earlier. He remained incarcerated on a violation of the terms of his probation. Parents argued that the department had provided insufficient services or, in the alternative, that parents deserved an extension of services. The juvenile court found reasonable services had been offered, terminated parents’ reunification services, and reduced visitation to twice monthly. Parents were ordered to return to court for the scheduled section 366.26 hearing.
The selection and implementation (S/I) and postpermanency status review report filed July 19, 2010, reflected that mother did not visit with minor in April and visited once in May, June, and July respectively. Father visited minor once in June and once in July. At the contested S/I hearing on August 3, 2010, neither parent appeared. Parents’ counsel requested that the court find whether parents had been properly noticed of the hearing; the juvenile court found that they had. The juvenile court concluded, “As a result, due to the fact that there is good notice, I am going to go ahead and make the orders and findings in this matter.... [¶]... [¶] Inasmuch as I don’t have any of the parties here in court today, I’m simply going to adopt the orders and findings set forth in [the department’s report] as my orders and findings in this matter, terminating parental rights in this case as to both parents....”
DISCUSSION
Parents contend that the juvenile court’s direct movement from finding proper service after noting parents’ absence, to ordering termination of their parental rights, deprived them of due process because the court failed to give their respective counsel an opportunity to present a defense to the allegations contained in the department’s reports. We hold that parents’ counsel had ample opportunity to present any defense they wished, to the extent they had one at all; thus, parents were not deprived of due process.
“[A] parent has a right to ‘due process’ at the hearing under section 366.26 which results in the actual termination of parental rights. This requires, in particular circumstances, a ‘meaningful opportunity to cross-examine and controvert the contents of the report.’ [Citations.] But due process is not synonymous with full-fledged cross-examination rights. [Citation.] Due process is a flexible concept which depends upon the circumstances and a balancing of various factors. [Citation.] The due process right to present evidence is limited to relevant evidence of significant probative value to the issue before the court.” (In re Jeanette V. (1998) 68 Cal.App.4th 811, 816-817.) “‘The consequences of a parent’s failure to appear at a scheduled hearing... do not include the deprivation of [a] due process right....’ [Citation.]” (In re Nemis M. (1996) 50 Cal.App.4th 1344, 1352 (Nemis M.).) “Juvenile courts may not deprive a parent of her or his procedural due process rights simply because the parent failed to appear.” (In re Vanessa M. (2006) 138 Cal.App.4th 1121, 1130 (Vanessa M.).)
Parents initially appear to maintain that they were improperly noticed of the hearing; however, the record belies any such contention. At the conclusion of the contested status review hearing on April 5, 2010, the juvenile court noted: “The likely date by which the child in this matter may be placed for adoption, legal guardianship, or an identified placement will be the 120-day date in this matter, August 3, 2010.” The court continued: “Both parents are ordered to return to court on that date. If father is out of custody, he’s ordered to appear under his own power. If father is in custody, he will be transported.” The minute order for the hearing reflects that “Mother [is] ordered to appear at said time without further notice.” Likewise, “Father is[] ordered to appear at said date/time without further notice.” Both parents were present at that hearing and did not object to oral notice of the hearing. The juvenile court had similarly given oral notice to appear at an earlier juncture in the case with no complaint from parents. Furthermore, the record establishes that the department mailed actual notice of the hearing to the address at which parents repeatedly asserted throughout the case was proper for their notice. Indeed, the department mailed notice to father at both his post office box and his then current place of incarceration. The department noted at the hearing, “I have supplied the Court with proof of mailed notice as well.” Thus, parents received adequate notice of the hearing¸ both in date and substance.
Moreover, the record fails to reflect any indication on the part of parents’ counsel that they had any defense to present. Neither parent requested that the social worker be present for cross-examination at the hearing, nor did the court order that the social worker be present for the hearing. (In re Dolly D. (1995) 41 Cal.App.4th 440, 446 (Dolly D.).) Thus, parents cannot contend they intended to cross-examine the social worker with regard to the content of any of the reports admitted into evidence. Furthermore, contrary to parents’ assertion, counsel had an adequate opportunity to present any defense they intended. Prior to the court’s order, both counsel requested that the court render a finding regarding whether notice was proper. The court investigated the matter and found that it was. This provided ample occasion for counsel to indicate any intent to offer a defense; none was proffered. Additionally, after rendering its order, the juvenile court asked counsel: “Is there anything else on this matter?” Mother’s counsel replied, “Are counsel for the parents relieved.” The court acquiesced. Had either counsel any intention of arguing the merits of the matter, this provided yet another opportunity to do so. Neither counsel utilized the occasion to object to the court’s order. Thus, parents were not deprived of their due process right to meaningful representation.
Mother contends that any objection to the court’s finding after it had been rendered would have been futile because the court had no power thereafter to set it aside. (§ 366.26, subd. (i)(1) [“After making the order, the juvenile court shall have no power to set aside, change, or modify it....”].) Nevertheless, we do not regard the order as having been rendered until after the juvenile court found no debate on its substance following its express request for input from parents’ counsel. Indeed, in this vein, the juvenile court’s order was more akin to a tentative ruling upon which it invited response; having received none, the order became final thereafter.
Parents’ citations to the contrary are readily distinguishable. In Judith P. v. Superior Court (2002) 102 Cal.App.4th 535 (Judith P.), the court found that “the mere availability of counsel is meaningless if counsel has no meaningful opportunity to actually represent [a] clients’ interests.” (Id. at p. 549.) However, the context of that unavailability involved the fact that the department had not provided the review report at issue until the day of the hearing; the applicable statute provided that the report must be provided to the parent at least 10 days prior to the hearing; the juvenile court had previously ordered the department to provide such reports at least two days before any hearing; the report indicated that the parent had failed to document her compliance with court ordered services, and counsel requested a continuance asserting that the mother, in fact, had documentation reflecting completion of such services, but simply did not have it with her. (Id. at pp. 543-544.) Thus, the mother in Judith P. had a defense to at least some of the allegations contained in the report, and conveyed that defense to the court; nevertheless, the court denied the request for a continuance and terminated the mother’s reunification services. Here, the applicable report was filed well before the S/I hearing, neither parents’ counsel indicated any potential defense to the allegations therein, and neither parents’ counsel requested a continuance.
Likewise, additional relevant cases are equally distinguishable. In Vanessa M., supra, 138 Cal.App.4th at page 1123, the contested jurisdictional hearing took place over several days. The father failed to appear on the first two days of the hearing, but testified on the third. On the fourth day, the father failed to appear, but the hearing was continued. On the fifth day, the father appeared more than two hours late. The father’s counsel intended to continue examination of the father, but the juvenile court barred the father’s further testimony as a sanction or default for his absences. (Id. at p. 1126-1127.) The appellate court held that the father had been deprived of due process. (Id. at pp. 1130, 1132.)
The father had a history of failing to appear at numerous previous hearings both with and without explanation. (Id. at pp. 1125-1126.)
In Nemis M., supra, 50 Cal.App.4th at page 1351, the parents attended a multi-day dispositional hearing; they left court on the fifth day without permission. Over the father’s attorney’s objection, the court admitted a report containing hearsay statements made by the minor. (Id. at pp. 1351-1352.) Due to his absence, the juvenile court barred the father from cross-examining one of the witnesses who testified as to minor’s previous statements. The father had previously indicated he had witnesses whom he wished to call; he was not permitted to call those witnesses. (Id. at p. 1355.) The juvenile court found jurisdiction over the minor and removed her from the home. (Id. at p. 1352.) The appellate court reversed the juvenile court’s order as the result of a deprivation of the father’s due process rights. (Id. at pp. 1355-1356.)
In Dolly D., supra, 41 Cal.App.4th at page 442, the case was set for a pretrial resolution conference prior to the jurisdictional hearing; the father failed to appear. The juvenile court found him in default. The matter was continued for mediation; the father appeared for the mediation, but it did not take place due to a scheduling conflict. The father failed to appear at the date set for the next continued mediation hearing; the father’s counsel requested a “default prove-up” so that he would be able to cross-examine the social worker regarding the allegations in the petition. The juvenile court denied the father’s request. The juvenile court proceeded by way of default on the basis of the report prepared by the department, sustained an allegation in the petition, and removed the minor from the father’s custody. (Id. at pp. 442-443.) The appellate court held that the juvenile court erred in depriving the father of his right to confront and cross-examine the social worker who prepared the report. (Id. at pp. 444-445.)
Here, again, unlike any of the cases discussed above, parents made no showing they had any affirmative evidence to offer, anyone to cross-examine, or any argument relevant to the issues at hand. Thus, the juvenile court did not deprive parents of their due process right to present a defense.
In any event, to the extent the juvenile court could be deemed to have committed any error, we hold any such error harmless. (Nemis M., supra, 50 Cal.App.4th at p. 1355 [due process deprivation subject to determination ofwhether error was harmless beyond a reasonable doubt]; accord, Dolly D., supra, 41 Cal.App.4th at pp. 446-447; Vanessa M., supra, 138 Cal.App.4th at p. 1133; M.T. v. Superior Court (2009) 178 Cal.App.4th 1170, 1181-1182; but see In re Anna M. (1997) 54 Cal.App.4th 463, 469 [implying “fundamentally flawed” due process procedural error is structural error subject to per se reversal]; Judith P., supra, 102 Cal.App.4th at p. 557 [same].) Here, parents essentially contend that had their respective counsels been permitted to argue below, they could have successfully established a basis for the “beneficial parental relationship” exception to bar termination of their parental rights. We disagree. In order for the beneficial parental relationship to apply, parents have the burden of establishing that they “have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).) “‘The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent.’ [Citation.]” (In re S.B. (2008) 164 Cal.App.4th 289, 297.)
Here, both parents missed a number of visits with minor; thus they failed the crucial requirement of the exception that they maintain regular visitation. The juvenile court initially granted parents twice weekly visitation. Mother missed a visit on July 6, 2009, and missed numerous subsequent visits because she failed to return calls made by the social worker to schedule visits. On April 5, 2010, mother stipulated that she had been unable to visit with minor due to transportation problems, despite the department’s arrangement that at least one of the twice weekly visits would take place in Idyllwild, where mother lived. After the juvenile court reduced visitation to twice monthly, mother stilled failed to visit with minor at all in April and visited only once in May, June, and July. Father missed the visitation with minor scheduled for July 15, 2009, allegedly because his dog had been hit by a car and had to be taken to the veterinarian. Father did not visit minor for several weeks between July 24, 2009, and August 26, 2009. Father was incarcerated during two separate periods prior to the order terminating parental rights, making any visitation throughout those phases impossible. After the juvenile court reduced visitation to twice monthly on April 5, 2010, despite having been released from incarceration, father visited minor only once in June and once in July. Thus, parent’s sporadic visitation with minor hardly amounted to the type of “day-to-day interaction, companionship and shared experiences” involving parents’ “attention to the child’s needs for physical care, nourishment, comfort, affection and stimulation” which would result in such a significant attachment that the “beneficial parental relationship” exception would apply. (In re S.B., supra, 164 Cal.App.4th at p. 297.) Thus, any error was harmless beyond a reasonable doubt.
DISPOSITION
The judgment is affirmed.
We concur: McKINSTER Acting P. J., RICHLI J.