Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. J05001154
Haerle, J.
I. Introduction
Mother, Jasmine A., appeals from an order terminating her parental rights to her daughter Y.B. under Welfare and Institutions Code section 366.26. Mother contends that she was denied her right to due process because counsel did not receive the social worker’s report 10 days before the hearing. She also argues that the court abused its discretion in denying her requested continuance. In a supplemental opening brief, Mother contends that the failure to provide counsel with the report prior to the section 366.26 hearing violated California Rules of Court, rule 5.725(c). We conclude that, although the report was not timely provided to counsel, this error was not prejudicial under People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). We thus affirm the order.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
All further rule references are to the California Rules of Court.
II. Factual and Procedural Background
In an earlier appeal, we affirmed the court’s dispositional and jurisdictional orders regarding Y.B. Because Mother’s appeal in this matter is largely concerned with a procedural error, we discuss the facts of this matter only briefly.
The court assumed jurisdiction over Y.B. on June 9, 2005, after finding true the allegations in a petition filed by the Alameda County Social Services Agency (Agency) that Y.B. had been sexually abused, or there was a substantial risk of sexual abuse. At a dispositional hearing held immediately after the jurisdictional hearing, the court adjudged Y.B. a dependent of the court and ordered that reunification services be provided to Mother, including supervised visitation.
At the six-month review hearing held on November 23, 2005, after a status review report noted Mother’s ambivalence about engaging in her case plan and the discontinuance of visitation, the court ordered continued supervised visitation between Y.B. and Mother. In an interim review report filed on January 24, 2006, the Agency reported that Mother was not attending therapy and had missed two appointments with the social worker.
On May 4, 2006, the Agency filed a status review report recommending that reunification services be terminated. In its report, the Agency stated that Mother had shown only minimal compliance with the case plan, although Mother’s therapist had reported that Mother presented herself in a much more positive way than she had in the past and seemed like a “ ‘completely different person.’ ” Mother was told at a case planning meeting on March 27, 2006, that the likely recommendation at the 12-month review hearing would be that family reunification services be terminated.
At the 12-month review hearing, held on June 7 and June 15, 2006, the court terminated reunification services to Mother and adopted the agency’s recommended findings and orders, including adoption as a permanent plan for Y.B. A section 366.26 hearing was scheduled for October 4, 2006.
The Agency filed a report for the section 366.26 hearing on September 25, 2006. There is no proof of service establishing that Mother’s counsel was sent a copy of this report. At the October 4, 2006, hearing, Mother’s counsel informed the court that he had not received a copy of the report for the section 366.26 hearing and requested that the hearing be continued. Counsel explained that he needed the continuance because he was not aware that “a crucial part of this report—the visitation study was done by Carolina Mariposa, who works for Alternative Family Services.” Not realizing she was “involved,” counsel did not ask her to be present for cross-examination.
The Agency objected to the request for a continuance, pointing out that the report had been sent out on September 21, and that the reference to Mariposa was to her involvement in 2005, which was not new information, but rather “a summary of information that’s contained in the [section 366.26] report.”
The court denied the request for a continuance, informing counsel that if he wanted to subpoena Mariposa, he would have time to do that in the morning or afternoon of that day, the time that had been already set aside for the hearing.
Counsel called Mother to testify at the hearing. Mother stated that she had visited the minor four times in the period since the last hearing and had been attending therapy during that period. Her therapy, according to Mother, was “going great.” Mother was asked if she had seen the report prepared for the hearing. She replied that she had seen that report, although she had not read it. Mother stated that the minor had always called her “mommy.”
Mother did not call any other witnesses.
Social worker David Hess testified as a rebuttal witness for the Agency. Hess described the three visits between Mother and the minor as having gone well generally, but after the last visit, Y.B. had been acting out sexually at her preschool. Hess testified that he was concerned “that the visits could possibly be triggering [Y.B]. And any visits—future visits, I think, would need to be very carefully and therapeutically supervised.”
The court found that there had been no “evidence shown today that would be sufficient to show that there is a parental bond that’s required under the law.” The court terminated Mother’s parental rights and this timely appeal followed.
II. Discussion
A. The Section 366.26 Report
Section 366.21, subdivision (i), provides that “[w]henever 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 . . . .” The section 366.26 hearing in this case was scheduled for October 10, 2006. The Agency provided notice of this hearing and filed proofs of service of that notice on September 25, 2006. On the same day, the Agency filed the report required under section 366.21, subdivision (i). The record, however, does not contain proofs of service regarding this report.
As Mother points out in her supplemental briefing, rule 1463(c) (now rule 5.725 (c)) was in effect when the section 366.26 hearing was held in this case. This rule provides that a copy of the assessment required under section 366.21, subdivision (c) must be provided to the parent and counsel “at least 10 calendar days prior to the hearing.” The Agency concedes that there is no proof of service in the record to show that the Agency served a copy of the report on either Mother or her counsel.
The report summarizes the jurisdictional disposition report of May 11, 2005, and the addendum report of June 8, 2005, including a discussion of visitation between Mother and Y.B. supervised by Carolina Mariposa, who was then the visitation therapist. The report also discusses visitation between Mother and Y.B. from June 8, 2005 to the present. As reported in the status review report for the six-month section 366.26 hearing on November 23, 2005, visitation between Mother and Y.B. was discontinued by the court on August 23, 2005. In that report, as well as in the report of September 25, 2006, Mariposa described Mother’s performance during visitation in generally negative terms: Mother “appeared unable to tolerate or cooperate with the supervised visitation structure and ground rules limiting physical contact. Additionally the mother did not cooperate or tolerate suggestions and interventions made by Ms. Mariposa . . . . The [c]ourt discontinued visitation between [Y.B.] and her mother until the mother engaged in treatment shortly before the June 15, 2006, [12-]month hearing.”
B. Applicable Standard of Prejudice
The Agency argues that no prejudice can be shown from its failure to provide counsel with a timely-served copy of the assessment report for the section 366.26 hearing because (a) it is clear from the record that Mother did receive a copy of the report and was familiar with its contents and (b) counsel was already aware of Carolina Mariposa’s analysis of Mother’s progress during visitation and, therefore, counsel’s claim that he was unaware of Mariposa’s involvement and therefore unable to call her as a witness at the hearing was not compelling. Mother, on the other hand, citing Judith P. v. Superior Court (2002) 102 Cal.App.4th 535 (Judith P.), contends that this error is structural in nature and is reversible per se. We hold that this error must be evaluated under Watson, supra, 46 Cal.2d at p. 836.
In In re Celine R. (2003) 31 Cal.4th 45, 59-60 (Celine R.), our Supreme Court stated that, “The California Constitution prohibits a court from setting aside a judgment unless the error has resulted in a ‘miscarriage of justice.’ (Cal. Const., art. VI, § 13.) We have interpreted that language as permitting reversal only if the reviewing court finds it reasonably probable the result would have been more favorable to the appealing party but for the error. (People v. Watson, [supra,] 46 Cal.2d 818, 836 . . . .) We believe it appropriate to apply the same test in dependency matters.”
The court explained that this standard of prejudice is particularly appropriate in the dependency context “[a]fter reunification efforts have failed [and] it is not only important to seek an appropriate permanent solution—usually adoption when possible—it is also important to implement that solution reasonably promptly to minimize the time during which the child is in legal limbo. A child has a compelling right to a stable, permanent placement that allows a caretaker to make a full emotional commitment to the child. (In re Marilyn H. [(1993)] 5 Cal.4th [295, 306].) Courts should strive to give the child this stable, permanent placement, and this full emotional commitment, as promptly as reasonably possible consistent with protecting the parties’ rights and making a reasoned decision. The delay an appellate reversal causes might be contrary to, rather than in, the child’s best interests.” (Celine R., supra, 31 4th at p. 59.) In Celine R., therefore, the court held that an adoption order would not be “mechanically set aside . . . because of error in not giving that child separate counsel; the error must be prejudicial under the proper standard before reversal is appropriate.” (Ibid.)
Here, as in Celine, the court had already terminated reunification services and had moved into the stage of choosing an appropriate permanent solution for the child, a stage in which the child’s “compelling right to a stable permanent placement” (In re Marilyn H., supra, 5 Cal.4th at p. 306) is paramount. We conclude, therefore, that any error in serving counsel with a copy of the report for the section 366.26 hearing is subject to the Watson standard of prejudice.
Mother, however, argues that the failure to properly serve counsel with this report is a due process violation that amounts to structural error and requires per se reversal. In making this argument she relies on In re Jasmine G. (2005) 127 Cal.App.4th 1109; Judith P., supra, 102 Cal.App.4th 535; and In re DeJohn B. (2000) 84 Cal.App.4th 100. We disagree.
In re DeJohn B. and In re Jasmine G. are inapplicable because each involves the different issue of the failure to give any notice to a parent of a hearing prior to the termination of reunification services (In re DeJohn B., supra, 84 Cal.App.4that p. 102) and prior to a section 366.26 hearing (In re Jasmine G., supra, 127 Cal.App.4that p. 1114). The failure to give notice raises fundamentally different issues from the failure to serve counsel with a copy of a report prior to a properly-noticed hearing in which Mother and Mother’s counsel were present and Mother’s interests were fully and properly represented.
Nor is Judith P. helpful to Mother. In that case, the juvenile court terminated a mother’s reunification services at a six-month status review hearing despite the fact that the mother had not been given a copy of the six-month review report. (Judith P., supra, 102 Cal.App.4th at pp. 543-544.) The Court of Appeal concluded that this error was structural in nature and required reversal of the court’s order because the mother had been prevented from preparing her opposition to the Agency’s recommendation that reunification services be terminated. (Id. at pp. 553-558.) The Judith P. court relied, in reaching this conclusion, on a parent’s strong interests at the prepermanency planning stage. In this case, however, the prepermanency planning stage was at an end, and the balance of interests had shifted to the child’s need for a stable, permanent placement.
Moreover, at least one court has pointed out that Judith P. was decided prior to the Supreme Court’s clear statement in Celine R., supra, 31 Cal.4th at pages 58-59, that procedural errors in juvenile matters are generally subject to the Watson harmless error standard. This court points out that Judith P. “relied heavily on criminal cases in holding the tardy delivery of the status report constituted structural error. The following year, our Supreme Court in In re Celine R., [supra,] 31 Cal.4th 45, 58-59, criticized case law that analogized criminal cases to dependency cases; the high court observed that such an analogy was inapt.” (In re Sabrina H. (2007) 149 Cal.App.4th 1403, 1420, fn. 14.)
Therefore, in assessing the impact of this error, we apply the standard of Watson.
C. The Late Service of the Section 366.21 Report Was Harmless Error
In determining whether the late service of the section 366.26 report constitutes reversible error we must determine whether it is “reasonably probable the result would have been more favorable to the appealing party but for the error. ([Watson, supra,] 46 Cal.2d [at p.] 836.)” (Celine R., supra, 31 Cal.4th at p. 30.) We conclude it is not.
Adoption is the permanent plan preferred by the Legislature. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.) Section 366.26, subdivision (c)(1), requires the juvenile court to terminate parental rights if it finds by clear and convincing evidence that a child is likely to be adopted, unless it finds “a compelling reason for determining that termination would be detrimental to the child” under one of five enumerated statutory exceptions. The exception at issue here is whether termination would be detrimental because “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(A).) The parent bears the burden of demonstrating that the exception applies. (In re Derek W. (1999) 73 Cal.App.4th 823, 826.)
Mother contends that the section 366.26 report contained information pertinent to her visitation in the form of statements by Carolina Mariposa, who was the visitation therapist supervising Mother’s visitation with Y.B. Mother argues that, had she been aware of this, she would have cross-examined Mariposa at the section 366.26 hearing. However, the information regarding visitation had long been available to Mother, because it was also contained in the status review report for the six-month section 366.26 hearing on November 23, 2005. In that report, as well as in the report of September 25, 2006, Mariposa described Mother’s performance during visitation in generally negative terms, such as: Mother “appeared unable to tolerate or cooperate with the supervised visitation structure and ground rules limiting physical contact. Additionally the mother did not cooperate or tolerate suggestions and interventions made by Ms. Mariposa.”
The court discontinued visitation between Y.B. and Mother until the Mother engaged in treatment shortly before the June 15, 2006, 12-month hearing ~(ibid)~and Mother, therefore, had only three or four visits with Y.B. between August 17, 2005, and the section 366.26 hearing, visits about which social worker Hess was available to testify at the hearing. It is apparent from the record that, even had Mariposa been available to testify about the eight visits between Mother and Y.B. that Mariposa observed in 2005, Mother could not have met her burden of showing that, pursuant to section 366.26, subdivision (c)(1)(A) she had “maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(A).) Error in service of the section 366.26 report is, therefore, not prejudicial.
C. Denial of Continuance
Mother also contends that the trial court abused its discretion in denying her a continuance in order to subpoena Carolina Mariposa. We disagree.
Former rule 1422 (now § 352, subd. (a)), which was applicable at the time of the hearing in this matter, provides that a continuance shall be granted only upon a showing of good cause, and only if not contrary to the minor’s best interests. Continuances are discouraged (In re Axsana S. (2000) 78 Cal.App.4th 262, 272) and must be requested in writing at least two courts days prior to the hearing, along with affidavits or declarations detailing the facts establishing good cause. The court may, however, entertain an oral motion for continuance, upon good cause.
Here, Mother did not comply with these procedural requirements and offered no reason for her failure to do so. Certainly, counsel was able to make such a motion, given that the report was due in his office 10 days before the hearing date. On this ground alone the court had the discretion to deny Mother’s motion, there being no good cause shown for an oral motion at the beginning of the hearing. Further, the information attributed to Mariposa had long been known to counsel who was able, if he wished, to subpoena Mariposa to appear at the afternoon session, an offer made by the court in response to the requested continuance.
We conclude that the court did not abuse its discretion in denying the request for a continuance.
IV. Disposition
The order appealed from is affirmed.
We concur: Kline, P.J., Lambden, J.