Opinion
E033457.
7-10-2003
JOANN S., Petitioner, v. THE SUPERIOR COURT OF THE COUNTY OF SAN BERNARDINO, Respondent; DEPARTMENT OF CHILDRENS SERVICES, Real Party in Interest.
William E. Drake, for Petitioner. No appearance, for Respondent. Alan K. Marks, County Counsel, and Donna L. Carlson, Deputy County Counsel, for Plaintiff and Respondent.
Joann S. (mother), filed a writ petition pursuant to California Rules of Court, rule 39.1B. Mother contends that the juvenile court violated her right to due process in failing to notify her of the removal of her daughter, Hannah (the child), from the legal guardians, and of the filing of a Welfare and Institutions Code section 300 petition. She further claims that the court improperly set a section 366.26 hearing. We deny mothers petition.
All further statutory references will be to the Welfare and Institutions Code, unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
First Dependency Case (No. J167364)
On February 26, 2000, the child was removed from her parents care. The child was two years old at the time. A witness had observed mother push the child off her stroller, which caused the child to hit the cement, face first. Mother then walked over to the child and slapped her in the face several times.
The childs father is not a party to this petition.
On February 29, 2000, the Department of Childrens Services (DCS) filed a section 300 petition, alleging that the child came within section 300, subdivisions (a), (b), and (g). Specifically, the petition alleged that the child suffered serious physical harm while in the care and control of her parents, that her parents were unable to care for the child because they suffered from substance abuse, and that the child had been left without any provision for support, since her parents were both arrested for willful cruelty to a child.
At the detention hearing on March 2, 2000, the court found that a prima facie case for detention out of the home had been established, placed the child in the temporary custody of DCS, and detained the child in foster care. Reunification services were ordered to be provided. The matter was continued to March 23, 2000, for a jurisdictional/dispositional hearing.
In the jurisdictional/dispositional report, the social worker stated that the childs maternal grandparents had expressed an interest in caring for the child, and that their home had been evaluated and found appropriate. Mother asked, and the social worker recommended, that the child be placed with the grandparents. At the jurisdictional/dispositional hearing, the court found that the allegations in the amended section 300 petition were true, and found that the child came within the provisions of section 300, subdivisions (b) (her parents could not care for her because they suffered from substance abuse), and (g) (the child was left with no provision for support). The child was declared a dependent of the court and placed in the custody of DCS. The matter was continued to September 25, 2000, for a six-month review.
Subsequently, on May 1, 2000, the child was placed with the grandparents.
Six-Month Review Hearing
The social worker also reported that mother had been incarcerated but was released on July 13, 2000. Since her release, mother had failed to contact DCS, and thus, had not taken part in the reunification services ordered for her. Mother had not shown any effort in completing the court-ordered plan. Mother had maintained some contact with the child and the grandmother, but mothers whereabouts remained unknown. The social worker reported that mother was unemployed, homeless, and living in parks. Mother did not appear at the six-month hearing, although she was represented by counsel. The court continued the child as a dependent of the court, and maintained the child in the grandparents home. Although mother had not made progress in her reunification plan, the court ordered services to continue. The matter was continued to March 23, 2001, for a 12-month review hearing.
Twelve-Month Review Hearing
The social worker reported that she had "just recently" been able to make contact with mother, and that mother was incarcerated in the California Institution for Women (CIW). Her expected release date was February 2003. Although mother had completed several components of her court-ordered service plan and had maintained contact with the child via letters and drawings, mother had been unable to resolve her criminal problems and was unable to provide for the child. Since being incarcerated in CIW, mother had not enrolled in any classes or participated in any services. The social worker informed mother that, due to the length of her sentence, she would be recommending that a permanent plan be put in place for the child. Mother stated that she wanted the child to remain with the grandparents. The social worker recommended that services be terminated, that a section 366.26 hearing be set, and that the grandparents be appointed legal guardians.
The record does not reveal how long she had been incarcerated in CIW.
At the 12-month hearing, the court found that mother had failed to complete her court-ordered treatment plan, and that there was no substantial probability that the child could be returned to mother within the statutory time frame. The court ordered that reunification services be terminated and set a section 366.26 hearing for August 27, 2001.
Section 366.26 Hearing
The section 366.26 hearing was held on November 27, 2001. Mother was in custody and waived her appearance at the hearing. The court appointed the grandparents as guardians, but found that termination of mothers parental rights would be detrimental to the child since the child was living with relatives who were unwilling to adopt her, but were willing to provide a stable and permanent home for her. (§ 366.26, subd. (c)(1)(D).) The court then dismissed the case.
Second Dependency Case (No. J186188)
On January 16, 2003, a second dependency petition was filed. The child was removed from the custody of the grandparents when it was reported that the grandfather sexually abused the child while he was under the influence of alcohol. This petition alleged that the child came within section 300, subdivisions (b) and (d). Specifically, it alleged that the child had suffered serious harm when she was left in the grandfathers care and he fondled her, that the child had been sexually abused by him, and that the grandmother knew or reasonably should have known that the child had been sexually abused, but failed to take adequate measures to protect her. The petition erroneously stated that mothers parental rights had been previously terminated.
In the detention report, the social worker also erroneously stated that mothers parental rights had been terminated. The report stated that grandmother told the social worker that mother had been released from prison in August 2002 and had been to the grandparents house at Christmas 2002. The grandmother told the social worker that mother accused the grandfather of molesting the child, and there was a horrible argument. DCS received a referral on January 2, 2003, concerning the sexual abuse. The grandmother assumed that mother had initiated the referral.
At the detention hearing on January 17, 2003, the child was placed in the temporary custody of DCS and was detained with a paternal aunt and uncle. Because the social workers report and petition erroneously stated that mothers parental rights had been terminated, the court did not reappoint counsel for mother.
Mothers whereabouts were unknown at that time. Even though the social worker believed that mothers parental rights had been terminated, she nonetheless initiated an absent parent search on January 21, 2003. In addition, at a further detention hearing on January 21, 2003, the court reappointed as counsel for mother the same attorney who had represented her in the previous dependency case. The court continued the matter for a further detention hearing on January 22, 2003. At the January 22, 2003 hearing, mother did not appear, but was represented by counsel. The court set the jurisdictional/ dispositional hearing for February 10, 2003.
At the jurisdictional/dispositional hearing on February 10, 2003, mothers counsel simply stated that mother was not present. The jurisdictional/dispositional report was written by the next social worker assigned to the childs case. In his recount of the childs legal history, this social worker did not mention whether or not mothers parental rights had been terminated. The social worker recommended that the court find the allegations in the section 300 petition to be true, that the court remove the child from the custody and care of the grandparents, and order that reunification services be provided to the grandparents. The social worker reported that mothers whereabouts were still unknown and her desire to assume custody was not known. Inquiries had been made with mothers family, including the grandmother and the aunt. No one knew where mother could be located. At the hearing, the childs counsel objected to the social workers recommendation that reunification services be provided to the grandparents and set the matter for contest. A pretrial settlement conference was set for March 21, 2003, and the contested jurisdictional/dispositional hearing was set for April 3, 2003.
At the March 21, 2003 pretrial settlement conference, mother was not present, but was represented by counsel. Counsel for DCS informed the court that the matter had been resolved. DCS asked the court to terminate the grandparents guardianship of the child, reinstate the previous dependency case (case No. J167364), and set another section 366.26 hearing on case No. J167364, not limited to guardianship or long-term foster care, with the agreement that the child be placed with the aunt and uncle. The court asked all the attorneys present if there were any objections to DCSs request. Mothers counsel, as well as the attorneys representing the grandparents, had no objections. The court then ordered that the guardianship be terminated, and that the previous dependency case be reinstated. The court set the section 366.26 hearing for July 21, 2003 and, therefore, vacated the April 3, 2003 contested jurisdictional/dispositional hearing. At that point, mothers counsel reminded the court that writ rights had to be sent to mother. Mothers counsel told the court that mother was in custody, and confirmed that fact with the social worker. Three days later, writ petition forms were sent to mother at CIW.
Mother timely filed this writ petition on June 9, 2003.
ANALYSIS
I. Mother Was Not Deprived of Due Process
Mother asserts that she did not receive notice of DCSs removal of the child from the grandparents custody, the filing of the second dependency petition, the termination of the grandparents guardianship, or the proposed change in the childs permanent plan to adoption by the aunt and uncle, until after the pretrial settlement conference. Mother further contends that trial court improperly set a second section 366.26 hearing without providing her with notice, and thus denied her the right to due process and a fair hearing. Ultimately, mother contends that the juvenile courts order setting the section 366.26 hearing must be reversed.
A. Mother Was Absent and, Under the Circumstances, DCS Reasonably Attempted to Locate Her to Provide Notice of the Proceedings
Mother first contends that she was not properly notified of the removal of the child from the grandparents and the filing of the second dependency petition. She broadly argues that such lack of notice violated her constitutional right to due process.
Section 366.3 governs postpermanency planning status review hearings. Subdivision (a) provides that "following a termination of parental rights the parent or parents shall not be a party to, or receive notice of, any subsequent proceedings regarding the child." Unfortunately, the social worker who filed the second section 300 petition mistakenly stated in the petition and the detention report that mothers parental rights had been terminated in the first dependency proceeding. Accordingly, at the detention hearing, the court believed that mothers parental rights had been terminated. Thus, the court understandably concluded that mother had no right to notice or to participate in the proceeding.
Although mothers parental rights were not terminated in the first dependency proceeding, mothers reunification services were previously terminated, and the grandparents were named the legal guardians. The second section 300 petition only concerned the removal of the child from the grandparents. Mother was not a party to the petition. Furthermore, mothers whereabouts were unknown at the time of the removal of the child and the filing of the petition on January 16, 2003. Mother had been released from prison in August 2002 and had been to the grandparents house at Christmas 2002. However, her relatives did not know her whereabouts. Moreover, mother had a history of homelessness.
Even though the social worker and the court believed mothers parental rights had been terminated, the social worker attempted to notify mother by initiating an absent parent search on January 21, 2003 — only four days after the child was detained. Furthermore, the court reappointed as counsel for mother the same counsel that had represented her in the previous dependency case. Thereafter, mothers interests were represented at all subsequent hearings by her counsel, while DCS was searching for her.
Mother complains that DCS was not diligent in its absent parent search — otherwise it would have discovered sooner that she was at CIW. Apparently, mother was released from her previous period of incarceration there in August 2002. However, there is no evidence of when she was reincarcerated at CIW, or that she could have initially been found there at the time the child was removed from the grandparents home or even when DCS began its search for her on January 21, 2003.
Mother correctly asserts that parents are entitled to due process notice of juvenile proceedings affecting their interest in custody of their children. Due process requires "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. [Citation.]" DCS promptly initiated an absent parent search. Thus, under the circumstances, DCS reasonably tried to apprise mother of the proceedings. DCS did eventually locate mother, apprised her of the proceedings and she now has an opportunity to present her objections at the section 366.26 hearing. (See post,$ S I.C.) She was not deprived of due process.
In re Melinda J. (1991) 234 Cal. App. 3d 1413, 1418, 286 Cal. Rptr. 239.
B. Mother Was Properly Notified of the Termination of the Guardianship
Mother next claims that she did not receive notice of the termination of the grandparents guardianship or of the proposed change in the childs permanent plan to adoption by the aunt and uncle, until after the pretrial settlement conference.
Mother cites section 366.3 to support her assertion that parents, whose parental rights have not been terminated, have the right to notice and an opportunity to present evidence that they should be considered as placement alternatives, if a legal guardianship has been terminated. We agree that section 366.3 provides for such notice and opportunity. Mother has been given proper notice, pursuant to section 366.3.
1. DCS Did Not Initially Seek Termination of the Grandparents Guardianship
Section 366.3, subdivision (b) provides: "If the court has dismissed dependency jurisdiction following the establishment of a legal guardianship . . . and the legal guardianship is subsequently revoked or otherwise terminated, the county department of social services or welfare department shall notify the juvenile court of this fact. The court may vacate its previous order dismissing dependency jurisdiction over the child. [P] . . . Prior to the hearing on a petition to terminate legal guardianship pursuant to this paragraph, the court shall order the county department of social services or welfare department to prepare a report, for the courts consideration, that shall include an evaluation of whether the child could safely remain in the legal guardians home, without terminating the legal guardianship, if services were provided to the child or legal guardian."
In the instant case, DCS never filed a petition to terminate the grandparents guardianship. To the contrary, in the jurisdictional/dispositional report, dated January 10, 2003, the social worker recommended that the court find the allegations in the section 300 petition to be true, that the court remove the child from the custody and care of the grandparents, and order thatreunification services be provided to the grandparents . Thus, the plan was not to terminate the grandparents guardianship.
However, at the jurisdictional/dispositional hearing, the childs counsel objected to the social workers recommendation that reunification services be provided to the grandparents and set the matter for contest. A pretrial settlement conference was set for March 21, 2003, and the contested jurisdictional/dispositional hearing was set for April 3, 2003.
The plan changed at the March 21, 2003 pretrial settlement conference. Mother was not present, but was represented by counsel. Counsel for DCS informed the court that the matter had been resolved. DCS asked the court to terminate the grandparents guardianship of the child, reinstate the previous dependency case (case No. J167364), and set a section 366.26 hearing on case J167364, not limited to guardianship or long-term foster care and with the agreement that the child be placed with the aunt and uncle. (DCS had not yet decided on the permanent plan.) The court asked all of the attorneys if there were any objections. Mothers counsel was thoroughly familiar with her case and was there to represent mothers interests, in her absence. Mothers counsel, as well as counsel representing the grandparents, had no objections to the new plan. The court then ordered the guardianship terminated, reinstated the previous dependency case, and set the section 366.26 hearing for July 21, 2003. The court stated that the permanent plan was not limited to long-term foster care, guardianship or adoption. The court vacated the April 3, 2003, contested jurisdictional/dispositional hearing.
Section 366.3, subdivision (b) further provides that "if the court has dismissed dependency jurisdiction following the establishment of a legal guardianship . . . and the legal guardianship is subsequently revoked or otherwise terminated . . . the court may vacate its previous order dismissing dependency jurisdiction over the child." (Italics added.) Furthermore, "the juvenile court may resume dependency jurisdiction over the child, and may order the county department of social services or welfare department to develop a new permanent plan."
Section 366.3, subdivision (b) (italics added).
Thus, contrary to mothers additional contention that the court "lacked jurisdiction to sustain the second dependency proceedings without notice to her," the court never "sustained" the second petition. The court properly dismissed the second petition, reinstated the first dependency case, and resumed its jurisdiction over the child.
2. Mother Was Timely Notified of the Termination of the Guardianship
At the pretrial settlement conference, after the court terminated the guardianship and set the section 366.26 hearing, mothers counsel reminded the court that writ rights had to be sent to mother. Mothers counsel informed the court that mother was in custody, and confirmed that fact with the social worker. (Apparently, mother had been located at some time between January 10, 2003, when the jurisdictional/dispositional report was filed, and March 21, 2003, the date of the pretrial settlement conference; the record does not specify when she was located.) Three days later, writ petition forms were sent to mother at CIW.
Section 366.3, subdivision (b) clearly provides that: "Unless the parental rights of the childs parent or parents have been terminated, they shall be notified that the legal guardianship has been revoked or terminated and shall be entitled to participate in the new permanency planning hearing. The court shall try to place the child in another permanent placement. At the hearing, the parents may be considered as custodians but the child shall not be returned to the parent or parents unless they prove, by a preponderance of the evidence, that reunification is the best alternative for the child. The court may, if it is in the best interests of the child, order that reunification services again be provided to the parent or parents." (Italics added.)
This statute only requires that mother be notified after the guardianship "has been" terminated. (We also note that the statute does not require that mother be given notice that the child has been removed from the guardians home or that a section 300 petition has been filed.) Although the record does not make clear when mothers whereabouts were discovered, mothers counsel was present at the pretrial settlement conference and agreed to the plan of terminating the guardianship and setting the section 366.26 hearing to determine a permanent plan for the child. In addition, mother was promptly sent notice that the guardianship had been terminated after the pretrial settlement conference, and that a section 366.26 hearing had been set. (See post, § I.C.) Thus, the statutory requirement that mother be notified that the guardianship "has been" terminated was met.
Section 366.3, subdivision (b).
C. Mother Has Been Given Notice of the Section 366.26 Hearing and Has the Opportunity to Show that Reunification Services Should Be Provided to Her
Mother cites section 366.3, subdivisions (b) and (c) to support her contention that the "Legislature intended for parents, whose rights have not been terminated, to [have] notice, and an opportunity to present evidence that they should be considered as possible placement alternatives." We agree.
Section 294 subdivision (c)(1) provides that notice of a section 366.26 hearing must be given 45 days before the hearing date. Here, mother was sent notice of the section 366.26 hearing and her writ rights on March 24, 2003. The section 366.26 hearing date is July 21, 2003. Therefore, mother was given timely notice.
Contrary to mothers claim she has been denied "the opportunity to be heard on whether or not she should have family reunification services . . . [or] the opportunity to have custody of her daughter," mothers opportunity awaits her at the section 366.26 hearing on July 21, 2003. Pursuant to section 366.3, subdivision (b), mother may be considered as a custodian, at that hearing, and also has the chance to have the child returned to her, if she can prove, by a preponderance of the evidence, that reunification with her is the best alternative for the child. Furthermore, mother has had notice since March 24, 2003, that the court set a hearing to make a permanent plan for the child. She also has counsel representing her. Mother could have filed a section 388 petition to show that her circumstances have changed and asked that the court modify its previous orders and order that reunification services be provided to her.
Section 366.3, subdivision (b).
Thus, mother has not been deprived of due process. She is currently on notice of the 366.26 hearing on July 21, 2003. Pursuant to section 366.3, subdivision (b), mother will be provided, at that time, with a chance to show that reunification with her is in the best interests of the child.
DISPOSITION
The writ petition is denied.
We concur: Hollenhorst Acting P.J. and Gaut J.