Opinion
B229061
08-25-2011
In re DEREK N., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. S.N., Defendant and Appellant.
Matthew I. Thue, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Kim Nemoy, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Los Angeles County Super. Ct. No. CK72583
APPEAL from an order of the Superior Court of Los Angeles County, Jacqueline Lewis, Referee. Reversed.Matthew I. Thue, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Kim Nemoy, Principal Deputy County Counsel, for Plaintiff and Respondent.
INTRODUCTION
S.N. (Mother) appeals from an order terminating parental rights to her child, Derek N. The Department of Children and Family Services (DCFS) failed to provide Mother and Mother's counsel with its assessment 10 days before the hearing on the termination of Mother's parental rights, as it was required to do by California Rules of Court, rule 5.725(c), and the juvenile court denied the request by Mother's counsel for a 10-day continuance of the Welfare and Institutions Code section 366.26 hearing on the termination of Mother's parental rights. We follow Judith P. v. Superior Court (2002) 102 Cal.App.4th 535, in which this court held that failure to provide parents and children with a status report at least 10 days before a status review hearing (§ 366.21) was a denial of due process that was per se reversible. We conclude that the failure to provide a copy of the assessment to Mother and to Mother's counsel at least 10 days before the section 366.26 hearing was a denial of due process that requires reversal and remand of the order terminating parental rights.
Unless otherwise specified, statutes in this opinion will refer to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL HISTORY
Detention and Section 300 Petition: On April 9, 2008, Los Angeles County Sheriff's Department officers served a search warrant for rock cocaine at an address on West 106th Street in Los Angeles, and detained S.N. (Mother) and her seven-month-old son Derek N. inside the house at that location, the home of Derek's maternal grandfather. Mother did not live at the location and was allowed to leave with Derek. A sheriff's detective, however, informed the DCFS that Derek was at the location and requested an investigation into suspected child endangerment. The investigation found that Mother and Derek's father, Daryl W. (Father) failed to protect Derek from a potentially volatile in-home drug trafficking environment in the maternal grandfather's home. Father was wanted for questioning regarding drugs and firearms found in the maternal grandfather's home, and Father had a current warrant for his arrest in a narcotics case. Mother also failed to protect Derek from the maternal grandmother's ongoing mental health issues and failure to take psychotropic medications, which was detrimental to Derek's safety. Mother and Father admitted use of marijuana and cocaine as recently as the date they were interviewed. Father admitted that he and Mother had engaged in serious arguments and had been "physical." Derek was detained and placed in temporary custody on April 9, 2008.
On April 14, 2008, the DCFS filed a petition alleging that Derek was a person described by section 300, subdivision (b). Count 1 alleged that Mother placed Derek in a detrimental and dangerous situation by causing him to visit a residence frequented by illicit drug users and illicit drug activity. Derek was present when police executed a search warrant on the home, where cocaine and marijuana packed for sale, ammunition, and firearms were found within access to the child. Counts 2 and 3 alleged that Mother and Father had a history of substance abuse and were current abusers of marijuana and cocaine, rendering them incapable of providing regular care and supervision for Derek. Count 4 alleged that Mother suffered from mental and emotional problems including depression, suicidal ideation, and PTSD, had been hospitalized for treatment of her psychiatric condition, and was not compliant with her prescribed psychotropic medication, which rendered Mother unable to provide regular care and supervision of Derek. Count 5 alleged that Father and Mother had a history of domestic violence and engaging in violent altercations. These conditions endangered Derek's physical and emotional health and safety.
At the April 14, 2008, detention, hearing, the juvenile court found that a prima facie case was established for detaining Derek as a person described by section 300, subdivision (b), and ordered Derek detained and placed in the care and custody of the DCFS.
Adjudication and Dispositional Hearing on August 15, 2008: Mother had three arrests in 2005 and 2006 for misdemeanor prostitution, one of which resulted in a misdemeanor conviction. Father had a lengthy arrest history, was convicted for felony second degree robbery, and had a current warrant for his arrest. The maternal grandmother was convicted on July 30, 2007, of misdemeanor grand theft. The maternal grandfather, Levonzell N., had a 37-year criminal history with 27 arrests (mostly drug related), four misdemeanor convictions, and one felony conviction.
At the age of 15 years, Mother herself became a dependent child of the juvenile court from 2001 to 2002 following a psychiatric hospitalization for symptoms including homicidal and suicidal ideation, and as a result of the severe mental problems of maternal grandmother Barbara N. Mother had never been married, and Derek was her first child. Mother did not work or attend school. Maternal grandmother and grandfather both had psychiatric histories. Mother's visit with Derek on April 28, 2008, was cancelled because Mother appeared for the visit under the influence. Mother did not return for her next visit on April 29. On May 2, 2008, a makeup visit with Derek was scheduled for Mother, who called to say she would be late and did not appear. The foster mother reported being besieged by calls from Mother or Mother's family.
Mother entered a treatment program at California People Counseling Center, but was discharged on May 22, 2008, because of lack of participation. On June 4, 2008, Mother reported for a visit with Derek, and told a CSW she was no longer seeing her psychiatrist, spoke of having been stabbed in a grocery store, stated that her father had a heart attack the previous week, and rambled from subject to subject. During a June 5, 2008 visit, Mother and maternal grandmother called the fire department, alleging that Derek had burns, bruises, and scratches. Harbor-UCLA Hospital staff examined Derek and concluded that he had dry skin and a minor abrasion.
Father made his first court appearance at a July 9, 2008, adjudication hearing and indicated a desire to reunite with Derek. The juvenile court found Father to be the presumed father of Derek, ordered monitored visit for Father at least two times a week, and ordered the DCFS to refer Father to family reunification services. During the following month, however, Father failed to visit Derek. Father had recently entered a residential drug treatment program.
During a July 10, 2008, visit at the DCFS office, the maternal grandmother again called 911, stating that Derek had been scalded. Examination by paramedics and the DCFS public health nurse, however, determined that Derek had only a mild diaper rash. The DCFS requested that maternal grandmother, who had severe mental health issues, not be permitted visitation. Having been arrested the night before, Mother was not present at the visit. Since the July 10, 2008, incident, neither Mother nor maternal grandmother appeared for scheduled visits or returned the CSW's calls.
As of the August 15, 2008, adjudication and dispositional hearing, Derek was placed with a maternal relative, Zanetta M. In that hearing, the juvenile court found that Derek was a person described by section 300, subdivision (b), declared Derek a dependent child of the juvenile court, and ordered custody taken from the parents and placed in the care of the DCFS for suitable placement with a relative. The juvenile court ordered the DCFS to provide family reunification services for the child and parents, and ordered Father to participate in a counseling program, individual counseling to address case issues, parenting, drug counseling, and random drug testing. Mother was ordered to participate in individual counseling to address case issues, parenting, domestic abuse, drug counseling, and random drug testing.
Six-Month Contested Review Hearing on January 28, 2009: As of August 22, 2008, Derek was placed with a new foster mother, Dionne W. Father visited Derek twice weekly and was interested in working toward reunifying with him. Although Father had enrolled in a substance abuse rehabilitation program, as of December 8, 2008, his counselor reported that Father had stopped participating in the program. His whereabouts were unknown, and since November 17, 2008, he had no contact with the DCFS or with Derek or his caregiver. Mother visited weekly until August 6, 2008, when she stopped attending visits. Mother's phone number was not in service and she had not responded to letters sent to her last known address. By December 15, 2008, Mother's whereabouts remained unknown, and there was no information about Mother's compliance with court-ordered programs. Mother had no contact with Derek, his caregiver, or with the DCFS.
The DCFS reported that on January 14, 2009, Mother had enrolled in a 20-week program of drug and alcohol education, individualized and group counseling, and 12-step meetings. Mother had three visits with Derek in January 2009, and Derek was happy with Mother and showed comfort in her presence.
At the January 28, 2009, hearing, the juvenile court found Mother to be in partial compliance with the case plan, found that Mother had not consistently and regularly visited with Derek, found that Mother had not made significant progress in resolving the problems that led to Derek's removal from her home, and that Mother had not shown the capacity and ability to complete her treatment plan and provide for Derek's safety, protection, well-being and special needs. The juvenile court found that there was not a substantial probability that Derek would be returned to her custody within the next review period, and ordered family reunification services terminated for Mother.
Twelve-Month Review Hearing as to Father on June 15, 2009: The DCFS reported that Father was discharged from his substance abuse rehabilitation program on January 14, 2009, due to continued positive drug tests and sporadic attendance. On May 26, 2009, Father contacted the CSW and stated that he was not enrolled in any programs but was looking for employment. Father had not visited Derek since November 5, 2008, but was contacting the caregiver to set up a visit. Father had not complied with any court orders.
Derek was thriving in the home of his caregiver, who stated she was willing to adopt if family reunification services were terminated. Father did not visit Derek during this six-month period. Father was not enrolled in any programs and had not complied with court orders. In the June 15, 2009, hearing the juvenile court found that Father had made minimal progress toward alleviating the causes necessitating Derek's placement in foster care. The juvenile court found that the parents had not regularly visited Derek, had not made significant progress in resolving the problems that led to Derek's removal from the home, and had not shown the capacity and ability to complete the objectives of their treatment plans and to provide for Derek's safety, protection, well-being, and special needs. The juvenile court ordered family reunification services terminated for Father, and set the matter for a section 366.26 hearing on October 13, 2009. The juvenile court ordered the DCFS to initiate an adoptive home study for Derek's current caregiver.
Section 366.26 Hearings: The DCFS opened a home study of Derek's current caregiver, but on July 16, 2009, the caregiver stated that she did not want to adopt Derek because she planned to adopt another child placed with her in foster care. Derek's paternal aunt, Tangela P., who lived in Nevada, stated she was very interested in adopting Derek. The juvenile court ordered an Interstate Compact on the Placement of Children (ICPC) with Nevada to place Derek with his paternal aunt.
The First Section 366.26 Hearing on October 13, 2009: The DCFS reported that it was likely Derek would be adopted if parental rights were terminated, and identified paternal aunt Tangela P. as Derek's prospective adoptive parent. During this period neither Mother nor Father maintained contact with Derek, but Tangela P. maintained contact with Derek and expressed that she would provide the permanent plan of adoption for him. An adoption home study could not be initiated, nor could Derek be placed in Tangela P.'s home, until an approved ICPC was on file. The juvenile court ordered the permanent plan of planned permanent living with Dionne W. and a specific goal of adoption, and continued the hearing to February 11, 2010.
The Second Section 366.26 Hearing on February 11, 2010: The DCFS reported that Tangela P. had not been in contact with the DCFS to complete documentation necessary to submit the ICPC foster care request, and had not contacted the CSW to schedule visits with Derek. The CSW also explained to Tangela P. that the State of Nevada would not accept an ICPC home study request until after parental rights were terminated. The juvenile court continued the hearing to April 13, 2010.
The Third Section 366.26 Hearing on April 13, 2010: The DCFS reported that Derek continued to live with foster mother Dionne W. In November 2009, an ICPC request was submitted to the State of Colorado to study Derek's maternal aunt, Crystal H. A foster home study by Arapahoe County in Colorado was pending. On April 6, 2010, a CSW spoke with Crystal H., who stated she wanted to adopt Derek. The home study would be requested and completed once the ICPC request was approved and parental rights were terminated.
Mother was given notice of the April 13, 2010, hearing, but did not appear at the hearing. The juvenile court granted a DCFS request for a continuance because the ICPC with the maternal aunt in Colorado was still pending, and continued the matter to October 12, 2010, for a completed ICPC.
The Fourth Section 366.26 Hearing on October 12, 2010: The DCFS reported that a maternal cousin Zanetta M., stated that she would like Derek placed in her home and was interested in adopting him. Crystal H. had not completed training, documentation, a physical examination, and a background check in Colorado. An adoption home study could not be initiated, nor could Derek be placed in Crystal H.'s home, until there was an approved ICPC on file. Mother last visited with Derek on September 9, 2010; her previous visit was on January 13, 2010. Mother did not visit or call Derek on a regular basis. Mother was given notice of the October 12, 2010, hearing by mail.
At the October 12, 2010, hearing, Mother's counsel stated that she was not prepared to go forward on a contested section 366.26 hearing and asked for a brief continuance for the social worker to be present. The juvenile court requested an offer of proof regarding the request for a continuance, and Mother's counsel stated: "regarding Mother's participation in and progress in programs and any written reports regarding the bond attachment." Specifically, Mother's counsel sought the social worker's testimony regarding visitation and what she had observed on Mother's visits. Counsel for the DCFS stated that the record showed that Mother had visited Derek only on January 13, 2010, and on September 9, 2010, and questioned the relevance of testimony about those visits. Mother's counsel then asked the juvenile court to set the matter for a contested hearing so that Mother's counsel could do an independent investigation, objected to holding the hearing in the afternoon, and asserted that based on California Rules of Court, rule 5.725, she was entitled to a 10-day continuance. The juvenile court noted that Mother was advised that the recommendation was termination of parental rights, and denied the request for a continuance on the ground that there was no proof of any exceptions to adoption. Mother also briefly asserted that there was no affirmative showing that Derek was adoptable.
The juvenile court found by clear and convincing evidence that Derek was adoptable, noted that there was a family willing to adopt, and found that the section 366.26, subdivision (c)(1)(B)(1) exception, asserted by Mother, did not apply. The juvenile court ordered the parental rights of Mother and Father terminated, declared Derek free from his parents' custody and control, and ordered custody and control of Derek transferred to the DCFS for adoption planning and placement.
Mother filed a timely notice of appeal.
ISSUES
Mother claims on appeal that the juvenile court committed reversible error by refusing to grant the request for a 10-day continuance of the section 366.26 hearing as required by California Rules of Court, rule 5.725(c).
DISCUSSION
Mother claims that because she and her attorney did not receive the DCFS assessment until the day of the October 12, 2010, section 366.26 hearing, and because the trial court denied the request to continue the hearing for 10 days for the attorney's review of the assessment report, the order terminating parental rights must be reversed.
A. The Statutory Requirements for an Assessment and for Providing the Assessment to the Parent and the Parent's Attorney at Least 10 Days Before a Section 366.26 Hearing
When a juvenile court orders a hearing pursuant to section 366.26 be held, it is required to direct the agency supervising the child to prepare an assessment. (§ 366.21, sub. (i)(1).) The report is to include (1) current search efforts for an absent parent; (2) a review of the amount and nature of contact between the child and his parents and other extended family members since the time of placement; (3) an evaluation of the child's medical, developmental, scholastic, mental, and emotional status; (4) a preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent; (5) the child's relationship to any identified prospective adoptive parent, the duration and character of the relationship, the degree of the child's attachment to the prospective adoptive parent, the adoptive parent's strong commitment to caring permanently for the child, and the motivation for seeking adoption; (6) a description of efforts to identify a prospective adoptive parent; and (7) an analysis of the likelihood the child will be adopted if parental rights are terminated. (Id. at subd. (i)(1)(A) through (G).)
With regard to a section 366.26 hearing, California Rules of Court, rule 5.725(c) states: "Before the hearing, petitioner must prepare an assessment under section 366.21(i). At least 10 calendar days before the hearing, the petitioner must file the assessment, provide copies to each parent . . . and all counsel of record[.]"
The requirement to provide assessments to parents and their counsel is mandatory, and establishes that providing those assessments at least 10 days before the hearing is the reasonable amount of time needed for purposes of due process. (Judith P. v. Superior Court, supra, 102 Cal.App.4th at p. 552.) The 10-day time period allows parents and their counsel the time to review and consider the contents of the assessment and its recommendations, to assemble their evidence which contradicts or explains information in the assessment, to analyze the social service agency's recommendations in light of that other information, and to generate alternative recommendations and persuasive arguments in support of those alternative recommendations. It further allows counsel to subpoena witnesses to testify at the hearing, to prepare for questioning and cross-examination of witnesses, and to consult with their client. (Id. at p. 548.)
B. The Failure to Serve Mother and Mother's Counsel With the Assessment 10 Days Before the Hearing Was Structural Error, Which Requires Reversal of the Order Terminating Parental Rights
i. Mother and Mother's Attorney Were Not Served With the Assessment Before Any of Four Hearings on the Termination of Parental Rights
The record on appeal reflects that Mother was served with a notice of the October 13, 2009, hearing, but the proof of service stated that the social worker's report was not attached. No notice of hearing, and no assessment, was sent to Mother for the February 11, 2010, hearing. A proof of service shows that Mother was served with a notice of hearing of the April 13, 2010, hearing, but the notice of hearing is not in the record and there is no showing that the assessment was sent to Mother for that hearing. Mother was served with a notice of the October 12, 2010, hearing, but the proof of service stated that the social worker's report was not attached.
The record on appeal contains a proof of service of a notice of the April 13, 2010, hearing on Mother's attorney, but the notice of hearing is not in the record and there is no showing that the assessment was sent to Mother's attorney for that hearing. Otherwise the record on appeal reflects no notice of the other three hearings to Mother's attorney, and no service of the assessments for any of the four hearings on Mother's attorney. Mother's attorney appears to have received the assessment only on the morning of the October 12, 2010, hearing.
ii. Failure to Provide Mother and Her Attorney With the Assessment at Least 10 Days Before the Hearing Was Structural Error
Failure to comply with the requirement that a parent and the parent's counsel "must" be provided with the assessment 10 days before a section 366.26 permanency planning hearing was a violation of the constitutional due process standard. (Judith P. v. Superior Court, supra, 102 Cal.App.4th at p. 551.) The question is whether this due process violation is trial error subject to a harmless error analysis or structural error requiring automatic reversal.
Constitutional error does not invariably require automatic reversal. (Arizona v. Fulminante (1991) 499 U.S. 279, 306.) "Trial error" is error that occurs during presentation of the case. This type of error may "be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt." (Id. at pp. 307-308.) Examples of trial error include the admission of involuntary confessions, erroneous admission of evidence, or improper jury instructions. (Id. at p. 310; Judith P. v. Superior Court, supra, 102 Cal.App.4th at p. 557.) "Structural error," by contrast, means "structural defects in the constitution of the trial mechanism[.]" (Arizona v. Fulminante, supra, at p. 309.) Examples include the deprivation of the right to counsel at trial, trial by a judge who is not impartial, unlawful exclusion from a grand jury of members of the defendant's race, and denial of the right to self-representation at trial and of the right to public trial. These constitutional deprivations are structural defects "affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself." (Id. at p. 310.)
The failure to give a parent and the parent's attorney copies of the assessment (and of the information and recommendations therein) and the consequent failure to give the parent and the parent's attorney adequate time to prepare for a section 366.26 hearing are errors that do not occur during that hearing. Instead those errors happen before the hearing, and are defects that affect the structure of the hearing itself; that is, the errors affect the ability of the parent and the parent's attorney to present their evidence and arguments in the hearing. Moreover, effect of the lack of notice of the information, evidence, and recommendations found in the assessment, and the impact of having less than the minimum time mandated by rule 5.725(c) "within which to (1) confer with one's lawyer, (2) contact witnesses, (3) obtain documents, (4) prepare for examination and cross-examination, and (5) hone one's arguments, [are] impossible for either a trial court or an appellate court to assess. Thus, these factors indicate that the error is not a trial error." (Judith P. v. Superior Court, supra, 102 Cal.App.4th at p. 557.)
Judith P. cited "other factors [which] suggest that the failure to give adequate opportunity to prepare for a section 366.21 hearing is a structural error." In a section 366.21 prepermanency planning hearing, the juvenile court may order termination of reunification services and may set the matter for a hearing in which parental rights may be terminated. These "other factors" cited in connection with a section 366.21 prepermanency planning hearing apply with even greater force in a section 366.26 permanency planning hearing, in which the juvenile court selects a permanent plan for the child and may be required to terminate parental rights unless the parent can show an exception under section 366.26, subdivision (c). " 'Structural' errors involve 'basic protections, . . . [without which] a [dependency] trial cannot reliably serve its function as a vehicle for determination of [whether the dependent child is likely to be adopted, and whether the parent has established an exception to the termination of parental rights], and no [termination of parental rights] may be regarded as fundamentally fair.' [Rose v. Clark (1986) 478 U.S. 570, 577-578.] Timely notice of the 'charges' against a parent, and the witnesses who are able to give evidence in support thereof, is a fundamental protection, without which no dependency trial can reliably serve its function as a vehicle by which the trier of fact can determine whether [the dependent child is likely to be adopted and whether the parent has established an exception to the termination of parental rights]. If a section [366.26] hearing does not provide parents . . . with the minimal due process required by statute, the resulting process, in the absence of a knowing and intelligent waiver of the right to such due process, cannot be regarded as fundamentally fair. It is fundamentally unfair to terminate [parental rights] if the parent . . . has not had an adequate opportunity to prepare and present the best possible case for [an exception to the termination of parental rights or for the selection of another permanent plan which does not involve termination of parental rights]." (Judith P. v. Superior Court, supra, 102 Cal.App.4th at pp. 557-558; italics omitted.)
We conclude that the failure to give Mother, and mother's counsel, the minimum required notice of the assessment 10 days before the section 366.26 hearing was a structural error which was per se reversible. We therefore reverse the order denying Mother's request for a 10-day continuance of the section 366.26 hearing, reverse the order terminating parental rights, and remand the matter to the juvenile court with directions to conduct a new contested section 366.26 hearing at least 10 days after the DCFS provides Mother and Mother's counsel with copies of the assessment.
DISPOSITION
The order of October 12, 2010, is reversed and the matter is remanded to the juvenile court with directions to conduct a contested section 366.26 hearing and based on that hearing to redetermine the issues arising in that proceeding.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KITCHING, J.
We concur:
CROSKEY, Acting P. J.
ALDRICH, J.