Opinion
B229722
08-17-2011
In re JULIAN E. et al., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. JESSICA M. et al., Defendants and Appellants.
Eva E. Chick, under appointment by the Court of Appeal, for Defendant and Appellant Jessica M. Michael A. Salazar, under appointment by the Court of Appeal, for Defendant and Appellant Gerardo E. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel and Peter Ferrera, Senior 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CK68784)
APPEAL from orders of the Superior Court of Los Angeles County. Anthony A. Trendacosta, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Eva E. Chick, under appointment by the Court of Appeal, for Defendant and Appellant Jessica M.
Michael A. Salazar, under appointment by the Court of Appeal, for Defendant and Appellant Gerardo E.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel and Peter Ferrera, Senior Deputy County Counsel for Plaintiff and Respondent.
Jessica M. (mother) and Gerardo E. (father), also known as Alfredo M. appeal from the order terminating their parental rights over Julian E. (Julian). Mother also appeals from the order denying her petition under Welfare and Institutions Code section 388, seeking the return of her children, Julian, Jennifer L. (Jennifer), and Joshua M. (Joshua) (Julian, Jennifer and Joshua collectively the Children), or, alternatively, reinstatement of reunification services. Father also appeals from the order denying his motion to set aside the default judgment taken against him.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Father was only Julian's parent. Jennifer and Joshua had different fathers, who are not involved in this appeal.
Mother contends with respect to the termination of her parental rights over Julianthat (1) the section 366.26 hearing was improperly scheduled without considering the sibling group factors specified in section 366.21, subdivision (e), (2) there is insufficient evidence that Julian was adoptable, (3) there is insufficient evidence to support the juvenile court's finding that the sibling-relationship exception (§ 366.26, subd. (c)(1)(B)(v)) was inapplicable and did not preclude termination of parental rights, and (4) there is insufficient evidence to support the juvenile court's finding that the parent-relationship exception (§ 366.26, subd. (c)(1)(B)(1)) was inapplicable and did not preclude termination of parental rights. Mother contends with respect to the Children that (5) the juvenile court abused its discretion in denying her section 388 petition, seeking their return or, alternatively, reinstituting reunification services. Father contends with respect to the termination of his parental rights over Julian that (6) the juvenile court abused its discretion in denying his motion to set aside the default against him because he did not receive proper notice, (7) the judgment is void, (8) he was deprived of due process, and (9) if his motion to set aside the default was untimely, he suffered ineffective assistance of counsel.
The record before us reflects that mother's parental rights were terminated only as to Julian, and not as to Jennifer or Joshua.
Mother and father each join in the contentions of the other to the extent applicable to him or her.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Background
Mother is the parent of Julian, born March 2001, Jennifer, born January 2004, and Joshua, born December 2005. She had a history of substance abuse and three prior referrals to the Department of Children and Family Services (DCFS). The allegations of only one referral were substantiated when, in 2001, mother was placed in juvenile hall for prostitution. In 2006, mother was convicted of robbery and extortion and was sentenced to three months in jail. She was thereafter, and at the time of filing the section 300 petition in this matter (Petition), on probation. Father's whereabouts were unknown.
Between March and June 2007, mother was hospitalized on four occasions with depression, suicidal ideation, and Schizoaffective disorder, for attempting to kill herself after hearing voices telling her to do so. When the Children made noise, it made her "feel like [her] ears [were] going to explode." During this time, mother was unable to care for the Children, and maternal grandmother acted as their primary caretaker. Maternal grandmother told children's social worker (CSW) that mother loved the Children, but depression prevented her from caring for them.
On April 27, 2007, with mother's agreement, a safety plan was implemented whereby the Children would stay with maternal grandmother, and mother would not be left alone with them.
On June 11, 2007, mother voluntarily entered a residential treatment center, where she agreed to live for one year. She said she loved the Children, and it hurt her to be away from them. However, she needed to be well to care for them.
The Petition and detention
On June 15, 2007, the Petition under section 300, subdivisions (b) and (g) was filed, alleging that mother was unable to provide the Children with regular care because of her mental and emotional problems and substance abuse and that the Children's fathers, whose whereabouts were unknown, had failed to provide the Children with the necessities of life.
At the June 15, 2007 detention hearing, the allegations in the Petition were denied. Mother identified father as Julian's father, whom she believed was in prison, but she did not know where. She had not seen him since 15 days after Julian's birth. She also believed he had family in Los Angeles, but did now know their location.
The juvenile court found that a prima facie case had been presented and detained the Children with maternal grandmother, vested temporary custody in DCFS, accorded mother reasonable visitation monitored by maternal grandmother and ordered reunification services. It found father to be the presumed father and ordered DCFS to locate him or prepare a due diligence declaration.
July 16, 2007 jurisdiction/disposition report and hearing
On July 16, 2007, mother entered a no contest plea to the Petition and admitted that she was incapable of caring for the Children. She also admitted substance abuse seven years earlier, for one year, but claimed no current use. She reported that she was not currently taking her psychotropic medication, and refused to do so, because she felt better without it.
The Jurisdiction/Disposition report indicated that Julian stated that his "mom has something in her head, in her brain. She hears stuff. . . . She cries and I cry too because she says that stuff." He confirmed that mother was loving and utilized appropriate punishments. Julian said he wanted to live with her and maternal grandmother.
DCFS reported that it could not locate father and provided a due diligence declaration. The juvenile court found the declaration "accurate and appropriate" and that notice had been given "as required by law." It ordered a disposition plan providing family reunification for mother, but not for father because his whereabouts were unknown. (See § 361.5, subd. (b)(1) [reunification services unnecessary when whereabouts of parent unknown].) It ordered mother to random drug test, attend counseling for mental health issues, and take prescribed medication. Pursuant to DCFS's recommendation, the juvenile court ordered the Children to remain with maternal grandmother, with mother to have monitored visitation. DCFS was given discretion to liberalize.
The details of the due diligence declaration are discussed in part IE1, infra.
January 14, 2008, six-month review report and hearing (§ 366.21, subd. (e))
The Children were doing well in the clean and suitable home of maternal grandmother, to whom they were very attached. Maternal grandmother's daughter and two sons resided with them. According to the CSW, maternal grandmother was doing a "great job in meeting the [C]hildren's mental and physical needs." Julian was attending therapy and doing well, though he reported to his therapist feeling guilty about mother's mental problems and suicide attempts and worrying about her.
Mother continued to be homeless and had not complied with court ordered programs, claiming she had no money and could not find housing because of her undocumented status. She had, however, established a good relationship with the Children. She attempted suicide again and agreed she was unable to care for the Children and that maternal grandmother should adopt them. Seeing mother in the hospital adversely affected the Children. Father's whereabouts remained unknown. The juvenile court continued mother's reunification services an additional six months.
July 14, 2008, 12-month permanency report and hearing (§ 366.21, subd. (f))
By the time of the July 14, 2008 section 366.21, subdivision (f) hearing, mother was going downhill. She failed to appear for this hearing, and her visits with the Children were inconsistent. She was not in compliance with the juvenile court orders, including drug testing, which was also a condition of her parole. Though she wanted the children to be with maternal grandmother, mother became upset with discussions that maternal grandmother wanted to adopt the Children.
The record is unclear whether mother was on parole or probation.
The Children continued to do well in maternal grandmother's care. They were bonding with maternal grandmother's children. Julian continued doing well in therapy.
The DCFS recommended terminating mother's family reunification services and scheduling a section 366.26 hearing, with adoption being the permanent plan. The juvenile court ordered DCFS to initiate search efforts for mother and father, whose whereabouts were still unknown, and continued the hearing. Mother's counsel set the matter for a contested hearing.
September 15, 2008 contested section 366.21, subdivision (f) report and hearing
Mother again failed to appear at the continued section 366.21, subdivision (f) hearing. DCFS filed declarations of due diligence regarding unsuccessful efforts to locate mother and father. Maternal grandmother reported that mother had been running away and may have been using drugs.
The juvenile court found the notice proper to all parties. It terminated mother's family reunification services because she was not complying with the case plan, scheduled a section 366.26 hearing, and ordered publication of notice of that hearing for the Children's fathers. The permanent plan for the Children was adoption by the maternal grandmother, whom the Children treated as their mother, and the juvenile court ordered DCFS to provide the Children permanent placement services.
Section 387 petition against maternal grandmother
On September 18, 2008, DCFS filed a section 387 petition against maternal grandmother, seeking to remove the Children, and maternal grandmother's children, from her care. Maternal grandmother had knowingly harbored a fugitive involved in sex trafficking from federal authorities in her home with the children. The juvenile court detained the Children, ordering them placed in shelter care, with reasonable monitored visitation for maternal grandmother. It gave DCFS discretion to liberalize visitation, including returning the Children to her.
October 23, 2008 pretrial resolution report and conference on section 387 petition
The Children were detained in the home of Mr. and Mrs. A. Maternal grandmother consistently visited them for two hours a week at a local restaurant. Mrs. A. reported that maternal grandmother was appropriate, caring and attentive to the Children and that Julian was performing adequately on his subjects in school and doing well at home. However, he exhibited behavioral problems at school, including fighting in the school yard.
Mother failed to attend this hearing, and DCFS failed to ascertain father's whereabouts and filed a lengthy declaration of due diligence. The juvenile court found notice to all parties proper, sustained the section 387 petition and continued the case to the section 366.26 hearing. The following month, the juvenile court signed orders authorizing service of notice of the section 366.26 hearing on father by publication.
This due diligence declaration is discussed in part IE1, infra.
January 12, 2009 section 366.26 report and hearing
On January 12, 2009, at the initial section 366.26 hearing, DCFS reported that mother was arrested on November 9, 2008, and was pregnant. The Children remained placed with Mr. and Mrs. A. and, according to DCFS, were "highly adoptable," though there was no prospective adoptive family for the sibling set. The matter was continued to locate a home for the Children. The juvenile court ordered that if DCFS was unable to locate a home for all three Children together, it was to discuss legal guardianship with the caregiver.
March 16, 2009 review of permanent plan (§ 366.3) report and hearing
Mr. and Mrs. A. indicated that they were interested in adopting the younger two children and would consider legal guardianship of Julian. The social worker informed them that the Children were a sibling group, and the plan was to place them together. Julian's therapist reported that Julian had become very depressed and defiant with foster parents and had thoughts of hurting himself because of his removal from maternal grandmother's care. Maternal grandmother was visiting the Children consistently with her sons. Julian referred to maternal grandmother's sons as his "'brothers.'" After these visits, he became aggressive, and his behavior deteriorated at school and at home. Consequently, Julian's therapist believed that mother's and maternal grandmother's visits should be terminated.
Mother was out of custody on parole, which she violated by leaving her rehabilitation treatment center program and living in her boyfriend's car. She also ignored the social worker's directive that she not bring her boyfriend to the visits with the Children.
March 23, 2009 continued review of permanent plan hearing (§ 366.3)
At a March 23, 2009 hearing, Julian's attorney reported that Julian was depressed due to the separation from his maternal grandmother and that the Children needed to remain together and be returned to maternal grandmother. The juvenile court therefore ordered DCFS to reassess maternal grandmother under the Adoption Safe Family Act (ASFA) to see if she could qualify to adopt the Children.
May 11, 2009 continued 366.26 report and hearing
Maternal grandmother was not approved for adoption by ASFA, but Julian still wanted to return to her. His attorney asked that they have more time together. DCFS opposed giving her overnight visits with Julian, fearing it would jeopardize adoption recruitment and was causing him depression. During her visits, maternal grandmother improperly discussed with Julian his returning to her, raising false hopes. Mother resumed monitored visits.
Julian began having problems living with Mr. and Mrs. A., as they negatively singled him out because they preferred the younger children. They were not committed to him and did not want him permanently placed with them. Therefore, both Julian's therapist and DCFS recommended that a different prospective adoptive family should be located.
September 21, 2009 continued section 366.26 and 366.3 hearings
At the time of the September 21, 2009 hearing, the Children were doing well with Mr. and Mrs. A., who were now willing to adopt all of them and were identified as the prospective adoptive parents. Julian did not inquire about mother between visits, nor did he ask for visits. He called Mr. and Mrs. A. "mom" and "dad." "The Children [did] not perceive their mother as a parent-figure." Julian displayed behavioral problems after visits with her. He said that if he could not be with his maternal grandmother, he wanted to be with Mr. and Mrs. A.
Julian's therapist wrote a letter to the court that mother's visits were detrimental to Julian. She was telling him to misbehave, hoping it would lead to his return to her. It also led to repeated disappointment for Julian and post-visit aggressive and disruptive behavior. The therapist recommended that mother only have monitored visitation. Based on that letter, DCFS requested that mother's visits and rights be terminated. Mother set the section 366.26 for a contested hearing.
The juvenile court ordered that mother's visits with the Children be monitored at the DCFS offices.
November 13, 2009 contested section 366.26 hearing
During mother's visits, despite admonitions that she not do so, she continued telling Julian to misbehave with Mr. and Mrs. A., which he did. He then felt guilty for doing so. He also began hitting another foster child in the foster home.
Julian's paternal aunt and paternal grandfather were located and expressed an interest in having Julian, but not his siblings, placed with them. Paternal aunt reported father's location and use of the alias, "Alfredo M." DCFS was willing to determine whether paternal aunt or grandfather qualified for placement, though DCFS did not believe it would be best for Julian to be separated from his siblings. Mother had given birth to Jefferson, who was detained by DCFS. The juvenile court ordered DCFS to give notice to father and ordered his appearance at the next hearing.
On December 16, 2009, father was located in prison under the name "Alfredo M." Because of an "extensive criminal background," ASFA would not approve paternal aunt or paternal grandfather as adopters. Paternal aunt was living at that time with her five biological children and her parents.
February 2, 2010 addendum report
A report on January 14, 2010, by Julian's therapist reflected "major concerns about current foster parents," including their parenting strategies and ability to meet Julian's needs. The therapist concluded that there was a poor prognosis for improvement. Mr. and Mrs. A. singled Julian out for bad behavior, negatively affecting his emotional state and behavior and adversely affecting his bond with his siblings. Mr. and Mrs. A. were not committed to working through therapy or mentoring with Julian and only agreed to adopt him when informed that they could not adopt his younger siblings without adopting him. Julian was characterized by the therapist as "a friendly, bright, and thoughtful child who responds well to acknowledgment and individual attention." Because of the problems, DCFS asked that the Children be placed in a more appropriate foster-adopt home.
February 23, 2010 continued section 366.26 hearing
On February 23, 2010, father first appeared in these proceeding, in custody. He had been in prison for eight years and was not expected to be released until 2012. Counsel for father indicated that paternal aunt, who was in court, was then interested in placement of all three Children. The Children's counsel reported that the Children desperately wanted to be placed with a family. DCFS was looking for a new placement for them.
Re-placement of Children
On March 19, 2010, the Children were placed with Mr. and Mrs. K., who expressed interest in adopting all of them. This placement was disrupted, however, because Mr. and Mrs. K. reported that the Children engaged in "sexually acting out" behaviors. Julian was therefore placed in the home of Mr. and Mrs. P, Jennifer with Mr. and Mrs. B and Joshua with Mr. and Mrs. R. DCFS still found it "highly likely" they would be adopted and noted that they had a tremendous number of "transitions and disruptions."
July 22, 2010 continued section 366.26 hearing and report
At the time of the July 22, 2010 hearing, the Children remained in the three separate foster homes. Julian wanted to be adopted by Mr. and Mrs. P., who had already obtained an approved case study. DCFS said Julian was very comfortable being adopted by them and preferred being placed alone so that he did not get into trouble with his siblings. DCFS recommended that he remain placed alone and that parental rights be terminated.
Father and paternal aunt requested visits with Julian, which Julian also wanted. DCFS recommended against it because of the instability caused by placement changes. The juvenile court referred the matter to the consortium of maternal and paternal relatives, the caregivers and recommendation of the minor's therapist for a family group decision "as to any meaningful relationships with the relatives and a visitation schedule for the relatives."
September 8, 2010 section 366.26 hearing
At the September 8, 2010 hearing, it was reported that the Children were stable in their respective foster homes. Julian was happy and showed no signs of emotional disturbance. Mr. and Mrs. P. wanted to adopt him, and he wanted to be adopted by them. He repeated this desire to CSW on multiple occasions, though he also wanted to be with his birth family. Mr. and Mrs. P. agreed to allow him continued contact with his biological relatives after the adoption. At a meeting at the DCFS office, paternal aunt, paternal grandfather and maternal grandfather expressed their agreement with Julian being adopted and provided contact information to Mr. and Mrs. P.
After the Children's March 19, 2010 re-placement, mother's visits had been reduced by DCFS to two-hour, bi-monthly meetings. During the Team Decision Making Meeting, it was decided to suspend her visitation for three months, though the therapist recommended that they be suspended for up to a year. Mrs. P. said that Julian's last visit with father disturbed Julian because father told him that he would only be at the adoptive home for two years. Julian's therapist noted that Julian was having difficulty choosing between his biological and new families and did not realize that adoption is permanent. He wanted his siblings placed with him. The Children were in therapy working through their trauma and "sexual acting out."
DCFS believed it to be "highly likely" that Julian would be adopted by Mr. and Mrs. P., when parental rights were terminated. It rejected the idea of placing Jennifer and Joshua with Mr. and Mrs. P., at that time, because it was in the best interests of Julian to remain the only child, while the Children were working on their issues in therapy.
December 6, 2010 366.26 hearing
On November 18, 2010, Joshua was placed with Mr. and Mrs. P., who indicated their desire to adopt all three Children. Julian was happy and stable in their care and doing well. He was also happy to have his brother with him. Julian's counsel, county counsel and the juvenile court agreed that the Children were closely bonded, leading the juvenile court to comment, "[T]here's no question . . . that this is a bonded set of Children." DCFS was looking for matches for Jennifer and Joshua who would maintain sibling ties. Mr. and Mrs. P. were excellent in adhering to the regular weekly sibling visits.
The Children were attending joint therapy together. Their therapist said that they were bonded together and that Julian was "thriving" under the care of Mr. and Mrs. P. Jennifer seemed most happy when visiting Julian. Mother and father had no parent-child bond with the Children, and the therapist recommended fewer visits with mother and biological relatives. Mother was unemployed with no visible means to support five children, though she seemed to show interest in compliance.
After giving birth to Jefferson, mother had another child.
The juvenile court found by clear and convincing evidence that Julian was adoptable and terminated parental rights only as to him, implicitly finding that none of the exceptions in section 366.26 was applicable. It continued the section 366.26 hearing as to Joshua and Jennifer.
DISCUSSION
I. Termination of parental rights over Julian
A. Improper setting of section 366.26 hearing
1. Background
Julian's counsel, the county counsel and the juvenile court all believed that the Children were a sibling group. On September 15, 2008, at the section 366.21, subdivision (f) hearing, the juvenile court scheduled a section 366.26 hearing.
2. Contentions
Mother contends that in setting the section 366.26 hearing, neither the DCFS report nor the juvenile court's order and findings complied with the statutory requirements of section 366.21, subdivision (e), governing placement of a sibling group in a permanent home. She argues that despite the undisputed evidence that the Children were a sibling group, the factors set forth in section 366.21, subdivision (e) that are to be considered in making a decision to schedule the section 366.26 hearing were not addressed. Mother therefore urges that the section 366.26 hearing be vacated.
The DCFS contends that (1) mother forfeited this claim by failing to raise it in the juvenile court, (2) the juvenile court set the section 366.26 hearing from a section 366.21, subdivision (f) hearing, which did not require the sibling group reports and findings, not from a section 366.21, subdivision (e) hearing, which did, and (3) the DCFS report contained sufficient information on the Children's lives together to comply with the statute.
We lack jurisdiction to consider this contention.
On June 29, 2011, we sent the parties a Government Code section 68081 letter, requesting additional briefing on the question of whether we have jurisdiction to consider this claim in light of section 366.26, subdivision (1). On July 7, 2011, DCFS and mother filed supplemental briefs on this issue.
3. Jurisdiction
Section 366.21, subdivision (e) provides that the DCFS report and the juvenile court's findings in determining to schedule a section 366.26 hearing must address a number of factors relating to whether or not to maintain the sibling group together in a permanent placement.
Section 366.21, subdivision (e) provides in part: "For the purpose of placing and maintaining a sibling group together in a permanent home, the court, in making its determination to schedule a hearing pursuant to Section 366.26 for some or all members of a sibling group, as described in subparagraph (C) of paragraph (1) of subdivision (a) of Section 361.5, shall review and consider the social worker's report and recommendations. Factors the report shall address, and the court shall consider, may include, but need not be limited to, whether the sibling group was removed from parental care as a group, the closeness and strength of the sibling bond, the ages of the siblings, the appropriateness of maintaining the sibling group together, the detriment to the child if sibling ties are not maintained, the likelihood of finding a permanent home for the sibling group, whether the sibling group is currently placed together in a preadoptive home or has a concurrent plan goal of legal permanency in the same home, the wishes of each child whose age and physical and emotional condition permits a meaningful response, and the best interest of each child in the sibling group. The court shall specify the factual basis for its finding that it is in the best interest of each child to schedule a hearing pursuant to Section 366.26 in 120 days for some or all of the members of the sibling group." Section 361.5, subdivision (a)(1)(C) defines a sibling group as "two or more children who are related to each other as full or half siblings."
Section 366.26, subdivision (1) provides that an order setting a section 366.26 hearing is not appealable unless a petition for extraordinary writ review is first timely filed and summarily denied or not decided on the merits. One purpose of section 366.26, subdivision (1) "is to ensure that error in the proceedings underlying the order setting a section 366.26 hearing does not fatally infect that hearing." (Joyce G. v.
Subdivision (1) of section 366.26 provides: "(1) An order by the court that a hearing pursuant to this section be held is not appealable at any time unless all of the following apply: [¶] (A) A petition for extraordinary writ review was filed in a timely manner. [¶] (B) The petition substantively addressed the specific issues to be challenged and supported that challenge by an adequate record. [¶] (C) The petition for extraordinary writ review was summarily denied or otherwise not decided on the merits. [¶] (2) Failure to file a petition for extraordinary writ review within the period specified by rule, to substantively address the specific issues challenged, or to support that challenge by an adequate record shall preclude subsequent review by appeal of the findings and orders made pursuant to this section."
Superior Court (1995) 38 Cal.App.4th 1501, 1514.)
Subdivision (l)(3)(A) of section 366.26 provides that in order to preserve any right to appeal the setting of the section 366.26 hearing, the juvenile court must advise the parties of the requirement of filing a petition for extraordinary writ review, either orally at the hearing setting the section 366.26 hearing, or if the person is not present, then by first class mail.
Subdivision (1)(3)(A) of section 366.26 states: "A trial court, after issuance of an order directing a hearing pursuant to this section be held, shall advise all parties of the requirement of filing a petition for extraordinary writ review as set forth in this subdivision in order to preserve any right to appeal in these issues. This notice shall be made orally to a party if the party is present at the time of the making of the order or by first-class mail by the clerk of the court to the last known address of a party not present at the time of the making of the order."
The Legislature has spoken and unequivocally provided that an order setting a section 366.26 hearing is not appealable at any time unless a writ petition addressed to that issue has been timely filed, addresses the specific issue challenged and has been summarily denied or otherwise not decided on the merits. Here, the record fails to indicate that a writ was taken from either the section 366.21, subdivision (e) or (f) hearings. Consequently, we have no jurisdiction to consider this contention.
Mother argues that she should be relieved of the obligation to have first filed a petition for extraordinary writ because she did not receive the notice required by section 366.26, subdivision (l)(3)(A) in that she was not present at the hearing at which the section 366.26 hearing was set and notice was not sent to her last known address by first-class mail. We disagree.
Here, the juvenile court set the section 366.26 hearing at the September 15, 2008, section 366.21, subdivision (f) hearing. Mother did not attend the hearing and a declaration of due diligence in searching for her was submitted and did not reveal her whereabouts. The juvenile court found that mother's whereabouts were unknown and ordered that future notices be sent to her in care of her attorney. That same day, the court sent by first-class mail notice to mother regarding the requirement of filing a petition for extraordinary writ in care of her attorney. Such notice was far more likely to assist mother in protecting her rights than a letter sent to a last known address for a person who was homeless and whose whereabouts were unknown.
B. Insufficient evidence of adoptability
1. Background
At the December 6, 2010 section 366.26 hearing, the juvenile court found by clear and convincing evidence that Julian was specifically and generally adoptable and that the exceptions to adoptability were inapplicable. It terminated parental rights to Julian pursuant to section 366.26, subdivision (c)(1), gave custody and control over him to DCFS for purposes of adoption planning and placement and ordered that the permanent plan of placement for Julian be adoption by Mr. and Mrs. P.
It continued the section 366.26 hearing as to Jennifer and Joshua without terminating parental rights as to them in order to provide time for adoptive parents to be secured.
2. Contention
Mother contends that there is insufficient evidence to support the juvenile court's finding that Julian was adoptable. She argues that this showing must be by clear and convincing evidence, and the fact that Julian was placed in a prospective adoptive home is only one factor, which does not meet the elevated standard of proof. When Julian's age, strong connections to his biological family and emotional issues are considered, the court's conclusion of adoptability "must be questioned." This contention lacks merit.
3. Standard of review
We review the factual basis of an order terminating parental rights, in this case whether a child is adoptable, under the substantial evidence standard. (See In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) A finding of adoptability requires clear and convincing evidence that the child is likely to be adopted within a reasonable time. (In re Valerie W. (2008) 162 Cal.App.4th 1, 13.) We give the juvenile court's adoptability finding the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of the judgment. (Ibid.)
4. Adoptability
At the section 366.26 hearing, the juvenile court is required to select and implement a permanent plan for the dependent child, with adoption being the preferred plan. (§ 366.26, subds. (b) & (b)(1); In re Celine R. (2003) 31 Cal.4th 45, 53 (Celine R.)["[I]f the child is adoptable . . . adoption is the norm"].) Section 366.26, subdivision (c)(1) requires that the juvenile court terminate parental rights if it determines by clear and convincing evidence that it is likely that a child adjudicated a dependent of the juvenile court will be adopted, unless the juvenile court finds a compelling reason for determining that termination of parental rights would be detrimental to the child. (§ 366.26, subd. (c)(1)(B); Celine R., supra, at p. 53.)
In making a determination of adoptability, the juvenile court must focus on the child, including the child's age, physical condition, emotional state and other factors that would make it difficult for the child to be adopted. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649 (Sarah M.).) There are two alternative methods to demonstrate adoptability. A child is considered "'generally'" adoptable when the child's personal characteristics—such as "'[a] child's young age, good physical and emotional health, intellectual growth and ability to develop interpersonal relationships'" (In re I.W. (2009) 180 Cal.App.4th 1517, 1526)—are sufficiently appealing that an adoptive family likely will be located in a reasonable time, regardless of whether a prospective adoptive family has yet been found. In contrast, a child is considered "specifically" adoptable when a specific prospective adoptive family is interested in adopting the child, but it might be difficult to locate other prospective adoptive families because, for example, the child is part of a sibling group, or has a physical or mental disability requiring a high level of care, or is relatively old. Such a child is likely to be adopted in a reasonable time only because a specific adoptive family has committed to adoption. (Ibid.; see also In re Carl R. (2005) 128 Cal.App.4th 1051, 1060-1061; Sarah M., supra, at pp. 1649-1650.)
The juvenile court found that Julian was both generally and specifically adoptable. Substantial evidence supports this finding. In support of his general adoptability, DCFS stated that Julian was an active, mature nine year old, reaching his developmental milestones. One of his therapists described him as "a friendly, bright and thoughtful child who responds well to acknowledgement and individual attention." He was happy and stable with Mr. and Mrs. P., and his therapist described him as doing very well there. There is no indication in the record that he had any physical or mental disabilities or other characteristics that would call into question his desirability as an adoptee. While Julian had displayed some emotional problems, they occurred earlier in his detention, when he was separated from his mother, placed with his maternal grandmother, with whom he was close, and then taken from her and placed into the foster care of Mr. and Mrs. A. Those foster parents were not committed to Julian, attributed negative behavior to him, favored his siblings, and used parenting strategies that concerned Julian's therapist. When placed with Mr. and Mrs. P, with whom his therapist was extremely impressed as adoptive parents, Julian not only did well, he thrived.
The fact that several potential parents wanted to adopt Julian, including Mr. and Mrs. P., at one point, Mr. and Mrs. A. and the paternal aunt and maternal grandmother, is further evidence that Julian was generally adoptable. "[T]he fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor's age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. . . . [A] prospective adoptive parent's willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family." (Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.)
There was also evidence that Julian was specifically adoptable. At the time mother's parental rights were terminated, he had been living with Mr. and Mrs. P., for close to a year. This gave them ample opportunity to assess whether Julian was a right fit for them to adopt, and they concluded that he was. They already had an approved home study, making it unlikely there would be any impediment to adoption. This led mother's counsel to state, "With respect to adoptability, it's hard to argue then in the sense that there is an approved home study and people that are willing to adopt Julian." Mr. and Mrs. P. were viewed very highly by Julian's therapist, and there was no reason to believe the adoption would not be concluded.
When a child is deemed adoptable so as to require termination of parental rights only because a particular caretaker is willing to adopt, the analysis shifts away from the characteristics of the child to whether there is any legal impediment to the prospective parents' adoption and whether he or she is able to meet the needs of the child. (In re R.C. (2008) 169 Cal.App.4th 486, 494.) Having failed to argue in the juvenile court that there was some legal impediment to Mr. and Mrs. P. adopting Julian, mother failed to preserve that claim for appeal. (In re G.M. (2010) 181 Cal.App.4th 552, 563-564.)
C. Sibling-relationship exception (§366.26, subd. (c)(1)(B)(v))
1. Contention
Mother contends that there was insufficient evidence to support the juvenile court's finding that the sibling-relationship exception to termination of parental rights and adoption, within the meaning of section 366.26, subdivision (c)(1)(B)(v), was inapplicable. This contention is meritless.
2. Standard of review
There is disagreement among appellate courts as to the standard of review applicable to a juvenile court's finding rejecting a claim that one of the adoption exceptions applies. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314 (Bailey J.).) Most of the courts that have considered the issue have applied the substantial evidence standard. (Ibid.; see, i.e., In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.)["A finding of no exceptional circumstance exists is customarily challenged on the sufficiency of the evidence"]; In re Fernando M. (2006) 138 Cal.App.4th 529, 535 [appearing to accept the substantial evidence test].) Other courts have applied the abuse of discretion standard (see, i.e., In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 (Jasmine D.) ["The juvenile court is determining which kind of custody is appropriate for the child. Such a decision is typically reviewable for abuse of discretion"]; In re Emmanuel R. (2001) 94 Cal.App.4th 452, 535) or a hybrid standard, utilizing both standards (see Bailey J., supra, at pp. 1314-1315 [substantial evidence standard applies to factual questions, but question of whether there is a compelling reason not to terminate parental rights because of the detriment to the child is "'quintessentially'" a discretionary decision subject to the abuse of discretion standard]).
While it appears to us that there is substantial logic in the hybrid standard, we need not decide this question for "[t]he practical differences between the two standards of review are not significant. '[E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. Broad deference must be shown to the trial judge. The reviewing court should interfere only "'if [it] find[s] that under all the evidence, viewed most favorably in support of the trial court's action, no judge could reasonably have made the order that he did.'. . . . "'" (Jasmine D., supra, 78 Cal.App.4th at p. 1351.) In either event, "[t]he juvenile court's opportunity to observe the witnesses and generally get 'the feel of the case' warrants a high degree of appellate court deference." (Ibid.) In the facts presented here, under either standard, mother's contention must be rejected.
3. The sibling-relationships exception
As previously stated, a parent opposing termination of parental rights and adoption must demonstrate that termination would be detrimental to the minor under one of the enumerated exceptions. (In re Jessie G. (1997) 58 Cal.App.4th 1, 6; § 366.26, subd. (c)(1)(A)-(D).) "At this stage of the dependency proceedings, 'it becomes inimical to the interests of the minor to heavily burden efforts to place the child in a permanent alternative home. [Citation.]' The statutory exceptions merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption." (Celine R., supra, 31 Cal.4th at p. 53.)
One exception to terminating parental rights is where "[t]here would be substantial interference with a child's sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child's best interest, including the child's long-term emotional interest, as compared to the benefit of legal permanence through adoption." (§ 366.26, subd. (c)(1)(B)(v).) The Legislature apparently contemplated that this exception would rarely be applied, particularly when the proceedings concern young children whose needs for competent, caring and stable parents are paramount. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 950 (L.Y.L.).)
To apply this exception the parent has the initial burden of showing (1) that a significant sibling relationship exists and that its severance would substantially interfere with that relationship and therefore would be detrimental to the child. (In re Jacob S. (2002) 104 Cal.App.4th 1011, 1017, disapproved on other grounds in In re S.B. (2009) 46 Cal.4th 529, 537 fn. 5), and (2) even if detrimental, the benefit from continuing the sibling relationship outweighs the benefit from adoption. (L.Y.L., supra, 101 Cal.App.4th at pp. 951-952.)
a. Strength of Julian's sibling relationship
In evaluating the strength of the sibling relationship, the court must consider the above-quoted factors set forth in section 366.26, subdivision (c)(1)(B)(v). (L.Y.L., supra, 101 Cal.App.4th at p. 951.) "Many siblings have a relationship with each other, but would not suffer detriment if that relationship ended. If the relationship is not sufficiently significant to cause detriment on termination, there is no substantial interference with that relationship." (Id. at p. 952)
Mother presented substantial evidence that Julian had a sibling bond with Jennifer and Joshua. The Children had lived together, with mother, maternal grandmother or Mr. and Mrs. A., for all but the last nine months before the December 6, 2010 section 366.26 hearing. Julian expressed a desire to be with his siblings. At that hearing, Julian's counsel, DCFS's counsel and the juvenile court acknowledged that the Children were a sibling group, leading the court to state, "There's no question . . . that this is a bonded set of children." It is clear, as the People now concede, that a sibling-group relationship existed.
It is less clear, however, whether the relationship of this sibling group was sufficiently strong so that Julian would suffer detriment by its severance. He was nearly three years older than Jennifer and five years older than Joshua. Age disparity sometimes affects the closeness of the bond. The Children hardly shared good times together, but rather shared the chaos of a severely dysfunctional family and mentally ill mother. The Children had problems interacting, as Julian became alienated from his brother and sister as a result of Mr. and Mrs. A.'s disparate treatment of him and favoritism towards his siblings. With Mr. and Mrs. K., the Children acted out sexually, causing DCFS to separate them into different placements for their safety. When placed with Mr. and Mrs. P., DCFS and Julian's therapist believed that it would be in Julian's best interests to remain there without his siblings, so he could receive the attention that he needed. While Julian stated that he wanted to be with his brother and sister, he thrived with Mr. and Mrs. K. without them. There was little evidence that he suffered from their absence during his separate placement.
b. Best interests of Julian
We need not decide whether severance of Julian's sibling group would cause him detriment because, even if it would, we conclude that there was substantial evidence, and the trial court did not abuse its discretion in finding, that any detriment Julian would suffer was far outweighed by the benefits of adoption. The sibling-relationship exception was therefore inapplicable. (L.Y.L., supra, 101 Cal.App.4th at pp. 952-953.) In weighing these considerations, the juvenile court must take into account the Legislature's preference for adoption. That preference is reflected in the statutes "'strong language creating a heavy burden for the party opposing adoption. It only applies when the juvenile court determines that there is a "compelling reason" for concluding that the termination of parental rights would be "detrimental" to the child due to "substantial interference" with a sibling relationship.' [Citation.] Indeed, even if adoption would interfere with a strong sibling relationship, the court must nevertheless weigh the benefit to the child of continuing the sibling relationship against the benefit the child would receive by gaining a permanent home though adoption. [Citation.]" (Celine R., supra, 31 Cal.4th at p. 61.)
At the time parental rights were terminated, Julian had been in the dependency system for more than three years, with its lack of stability and permanence, and experienced the disruption caused by multiple placements; first with maternal grandmother, then with Mr. and Mrs. A., followed by a stint with Mr. and Mrs. K and finally with Mr. and Mrs. P. "When custody continues over a significant period, the child's need for continuity and stability assumes an increasingly important role. [Citation.] That need often will dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child." (In re Angel B. (2002) 97 Cal.App.4th 454, 464 (Angel B.); In re Stephanie M. (1994) 7 Cal.4th 295, 317.)
In addition, when Julian was in the care of Mr. and Mrs. A., he exhibited emotional problems, including depression and thoughts of hurting himself. After experiencing several unsatisfactory placements, Julian had finally received a placement which appeared to be an excellent match. Mr. and Mrs. P. were excellent adoptive parents, with whom Julian was doing well and thriving. Julian stated on multiple occasions that he wanted to be adopted by them. (In re Aljamie D. (2000) 84 Cal.App.4th 424, 432 ["While a child's wishes are not determinative of her best interests, the child's testimony that she wants to live with her mother constitutes powerful demonstrative evidence that it would be in her best interest to allow her to do so"].) Further Julian was the oldest of the Children. He was nine years old, and as he grew older it would likely become progressively more difficult for him to be adopted.
In any event, termination of parental rights and adoption was unlikely to sever Julian's sibling relationship. Mr. and Mrs. P. were aware of the importance to Julian of maintaining contact with his biological relatives and had agreed to facilitate those contacts. To that end, they obtained contact information from maternal and parental relatives and were conscientiously working to arrange regular sibling visitation. Also, Mr. and Mrs. P. had indicated a desire to adopt Julian and his siblings, and Joshua was already placed with them, with Jennifer's move to that placement being planned. Thus, there was a strong likelihood that Julian's adoption would not disturb the sibling bond. Considering Julian's age, his prior lengthy history of unsatisfactory placement and his finally obtaining a placement that appeared to be well-suited and likely to occur, it was most appropriate not to disrupt it.
D. Parent-relationship exception (§ 366.26, subd. (c)(1)(B)(i))
1. Background
At the section 366.26 hearing, it was stipulated that mother would testify as follows: Once mother was released from custody in February 2009, she visited Julian once a week until he was re-placed. Her visits were suspended between March 29, 2010, and April 12, 2010, after which, she visited every other week until limited by the juvenile court. Mother took Julian to church to pray, played with him, brought food for him and talked to him about school. Julian told mother he missed and loved her, said he wanted to return to her and maternal grandmother and talked about family during visits. Mother did not believe Julian understood what it meant to be adopted.
2. Contention
Mother contends that there is insufficient evidence to support the juvenile court's finding that the parent-relationship exception to termination of parental rights and adoption, within the meaning of section 366.26, subdivision (c)(1)(B)(i), was inapplicable. She argues that Julian had a strong bond to his biological relatives, the preference of the law is to reunite children with their natural families whenever possible, and she maintained regular visitation and contact with him. This contention lacks merit.
3. Standard of review
As discussed in part IC2, ante, while there is disagreement as to whether the substantial evidence or abuse of discretion standard of review applies to reviewing a finding that the parent-relationship exception does not apply, under either standard mother's contention must be rejected.
4. Parent-relationship exception
Another exception to terminating parental rights raised by mother is the parent-relationship exception within the meaning of section 366.26, subdivision (c)(1)(B)(i). It provides that the juvenile court should not terminate parental rights if "[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)(B)(i).) Factors that the juvenile court should consider include the age of the child, the portion of the child's life in the parent's custody, the positive and negative effects of interaction with the parent, and the child's particular needs. (Autumn H., supra, 27 Cal.App.4th at pp. 575-576.)
"When contesting termination of parental rights under the statutory exception that the parent has maintained regular visitation with the child and the child will benefit from continuing the relationship, the parent has the burden of showing either that (1) continuation of the parent-child relationship will promote the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents [citation] or (2) termination of the parental relationship would be detrimental to the child. [Citation.]" (Angel B., supra, 97 Cal.App.4th at p. 466.) The parent must show that termination would "deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed. [Citations.] A biological parent who has failed to reunify with an adoptable child may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent. [Citation.] A child who has been adjudged a dependent of the juvenile court should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree, but that does not meet the child's need for a parent. [Citation.]" (Ibid.) The parent must have more than an emotional bond, frequent and loving contact or pleasant visits with the child. The parent must occupy a parental role in the child's life. (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108.)
a. Strength of parent-child relationship
Mother has failed to demonstrate that her visits with Julian established the kind of parental relationship that would promote Julian's well-being to such a degree as to outweigh the benefit he would gain by adoption or that termination of the relationship would be detrimental to him.
Julian's pre-detention experiences with mother were undoubtedly negative. He felt guilty for her mental problems and suicide attempts and was negatively impacted by seeing her in the hospital. Julian stated to CSW that "mom has something in her head, in her brain. She hears stuff. . . . She cries and I cry too because she says that stuff."
Mother's visits with Julian after he was detained failed to provide any assurance that she would be able to competently parent him or his siblings any time soon. During the visits, mother failed to fill the parental role. (In re Andrea R., supra, 75 Cal.App.4th at p. 1108.) She did not act like a parent who was capable of assuming the care of the Children. She lacked control and supervision over them, even at monitored visitations, requiring the CSW's assistance and causing DCFS concern for their safety if returned to mother.
Mother argues that she visited with Julian to the extent she was permitted. Though those visits were, for the most part, pleasant, and Julian told mother that he loved and missed her and wanted to return to her, afterwards he was often upset. While mother claimed she was bonded with the Children, DCFS found otherwise, stating, "The Children are aware that Jessica M. is their mother but do not have a strong bond with their mother. Joshua is the least attached regularly calling mother 'Jessica.' Julian and Jennifer enjoy their visit with their younger siblings and mother but are more attached to maternal grandmother than biological mother." Julian called mother by her first name.
A therapist believed mother's conduct during visits was detrimental to Julian. She instructed him to misbehave with the foster parents so she could get him back, creating false hope that Julian would return to her and resulting in him repeatedly suffering disappointment, acting aggressively and being confused about his loyalties. Mother's minimal visitation, without more, did not preclude adoption as the permanent plan for the child. (In re Jeremy S. (2001) 89 Cal.App.4th 514, 522-523, disapproved on other grounds in In re Zeth S. (2003) 31 Cal.4th 396, 414.)
By the time mother's parental rights over Julian were terminated, he had already been detained and out of her custody for three and one-half years. Mother had even stopped caring for him before he was detained, leaving maternal grandmother as his primary caretaker. Given the seriousness of mother's mental problems and the comparatively short duration of her efforts to rehabilitate, it is doubtful she would ever be able to reunify with Julian, and if she would, it would take a significant period of time. This would leave Julian subject to the vicissitudes of the dependency system for a potentially lengthy additional period. (Angel B., supra, 97 Cal.App.4th at p. 464 [the longer the period of detention of a dependent child, the greater the need for continuity and stability].) If they did reunify, mother still presented a significant risk of relapse.
Further, mother had two additional children after the Children were made dependents of the court, one of which was currently residing with her. Her living arrangements afforded no space for the Children, and she had no financial means to support them.
b. Best interests of Julian
For the reasons discussed in part IC3b, when balanced against the benefit Julian would realize from the impending adoption by Mr. and Mrs. P., the scale tips overwhelmingly in favor of terminating parental rights and allowing the adoption to proceed. The weight of the evidence convinces us that mother's relationship did not promote Julian's well-being but interfered with his well-being and future. (Autumn H., supra, 27 Cal.App.4th at p. 575.)
E. Jurisdiction over father
1. Background
At the June 15, 2007 detention hearing, mother reported that she did not know father's whereabouts, had not seen him since days after Julian's birth, but believed he was in prison. She also thought father had family in Los Angeles, but did not know where.
On July 16, 2007, at the jurisdiction/disposition hearing, DCFS submitted a declaration of due diligence detailing its unsuccessful efforts to locate father. The declaration stated that DCFS checked with the various branches of the military, the county jail, the DMV and the postal service, conducted internet searches of the Lexis data base, a parent locator site, the Inmate Information Center of the Los Angele County Jail Sheriff's Booking, the Federal Bureau of Prisons, the AT&T utility company, and a voter registration site, and made telephone calls to the Department of Corrections and the Department of Probation and Parole. The juvenile court found the due diligence declaration accurate and appropriate and that notice was given by law.
On September 15, 2008, and October 21, 2008, DCFS filed additional declarations of due diligence, showing that additional efforts to locate father were made. Attached to the declaration filed on October 21, 2008, was an eight-page report from a Child Support Division search, which listed the following names: "Gerardo Israel E[.]," designated as having a "status" of "primary;" "Alfredo M [.]," designated as having a "status" of "secondary;" and "Gerardo E[.]," also with a "status" of "secondary." No active addresses or working phone numbers were found for father under any name.
The next month, the juvenile court signed orders authorizing service of notice of the section 366.26 hearing on father by publication. The application for that order included only five pages of the attachment to the due diligence declaration provided at the October 23, 2008 hearing, but not the pages with father's name on it.
Shortly before the November 13, 2009 continued section 366.26 hearing, a DCFS "P-3" worker located Julian's paternal aunt and paternal grandfather, both of whom expressed an interest in placement of Julian with them, but not his siblings. DCFS was willing to determine whether they qualified for placement, though it did not believe it would be best for Julian to be separated from his siblings. Paternal aunt reported that father was incarcerated in Tehachapi, under the alias, Alfredo M. DCFS obtained a continuance to give proper notice to him. He had been in prison for eight years and was expected to be released in 2012. Father had a United States Immigration hold placed on him, suggesting that he would be deported upon his release from prison.
On February 23, 2010, father made his initial appearance in these proceedings and Jennifer Meister (Meister) was appointed his counsel. In September 2010, she realized that she had a conflict of interest, and, on September 16, 2010, John Newman (Newman) was appointed new counsel.
On October 13, 2010, Newman filed a motion, purportedly pursuant to section 385, to set aside the default judgment taken against father and the jurisdictional and dispositional findings as to Julian. He asked the juvenile court "to go back in time two-and-a-half years and start [the proceedings] from scratch." The motion was heard on December 6, 2010. Father argued that the default entered against him was "defective [due to an] insufficient, 'due diligence' search," as evidenced by the fact that a DCFS "P-3" worker subsequently located him. This, he argued, demonstrated that a diligent search earlier would have found him. While his attorney acknowledged that father could not obtain custody of the Children, he argued that the children should be placed with paternal aunt.
DCFS opposed the motion on the grounds that it was untimely, as father first appeared in this action on February 23, 2010, did not make a special appearance to contest jurisdiction, and did not file the motion until October 13, 2010. Though DCFS exercised due diligence, it could not locate father because he was in prison under an alias name. Finally, any error in noticing father was harmless as the Children were with maternal grandmother at the time of the original search, and there was no reason to believe that that placement would have been disrupted. The paternal aunt and paternal uncle had extensive criminal backgrounds and could not have been approved to adopt the Children under ASFA guidelines. Father was not a placement option as he was incarcerated, had not bonded with Julian and faced possible deportation upon his release from prison.
The juvenile court concluded that the motion was actually a section 388 petition. It denied the petition, finding that DCFS had exercised due diligence in trying to locate father and that it was irrelevant that a later DCFS "P-3" worker located him. Father did nothing to find Julian, to communicate with him or to support him until Julian was nearly nine years old, and father appeared in this action. He still delayed 11 months before making the motion. Julian's right to due process entitled him to a safe and stable home at the earliest opportunity.
2. Denial of motion to set aside
a. Contention
Father contends that the juvenile court abused its discretion by denying his motion to set aside the adjudicatory and dispositional findings and orders. He argues that DCFS did not exercise due diligence in its searches to locate him, resulting in lack of proper notice.
DCFS contends that father forfeited this contention by contesting the proceedings on the merits without making a special appearance to contest jurisdiction. We agree with DCFS that father forfeited this contention, but also conclude that even if there was no forfeiture, this contention is without merit.
While the People use the term "waiver" in reference to defendants' failures to preserve their instructional claims for appeal because they did not raise them in the court below, the correct term which we use in this opinion is "'forfeiture.'" "'Waiver'" is the express relinquishment of a known right whereas "'forfeiture'" is the failure to object or to invoke a right. (In re Sheena K. (2007) 40 Cal.4th 875, 880, fn. 1.)
b. Forfeiture
Father first appeared in these proceedings in February 2010. His counsel did not make a special appearance to contest jurisdiction, instead stating that paternal aunt was interested in placement of the Children. At the July 2010 section 366.26 hearing, father and paternal aunt requested visits with Julian, and father objected to termination of parental rights. The court then set a date for a contested section 366.26 hearing. Not until October 2010, did father file the motion challenging jurisdiction and disposition. Appearance in an action and participation on the merits, without raising a challenge to jurisdiction with regard to the propriety of service of the petition or other notices constitutes a forfeiture of that issue. (In re Gilberto M. (1992) 6 Cal.App.4th 1194, 1198; In re B. G. (1974) 11 Cal.3d 679, 689.)
c. Section 388
Father filed his motion to set aside the default under section 385, but the juvenile court properly considered it made pursuant to section 388. (Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 481 (Ansley); In re Justice P. (2004) 123 Cal.App.4th 181, 189 (Justice P).) Section 388 provides in part: "(a) Any parent . . . [of] a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. . . ." Subdivision (d) of section 388 provides that "[i]f it appears that the best interests of the child may be promoted by the proposed change of order . . . the court shall order that a hearing be held. . . ."
Section 388 is an "'"escape mechanism"'" for parents when they complete a reformation in the period after termination of reunification of services and before the actual termination of parental rights. (In re Kimberly F. (1997) 56 Cal.App.4th 519, 528.) That being said, "[i]t is not enough for a parent to show just a genuine change of circumstances under the statute. The parent must show that the undoing of the prior order would be in the best interests of the child." (Id. at p. 529; § 388, subd. (b).)
d. Standard of review
We review the denial of a section 388 petition for an abuse of discretion. (In re B.C. (2011) 192 Cal.App.4th 129, 141.)
e. No error in finding DCFS conducted a due diligent search
Notice at each step of a dependency proceeding is required until parental rights are terminated. (David B. v. Superior Court (1994) 21 Cal.App.4th 1010, 1019.) To comport with due process, a parent is entitled to notice that is reasonably calculated to apprise him or her of the dependency proceedings and afford an opportunity to be heard. (In re Melinda J. (1991) 234 Cal.App.3d 1413, 1418.) DCFS must act diligently in seeking to locate a missing parent. (Justice P., supra, 123 Cal.App.4th at p. 188.) "Reasonable diligence denotes a thorough, systematic investigation and an inquiry conducted in good faith." (Ibid.)But there is no due process violation when a good faith attempt has been made to provide notice to a parent who is a transient and whose whereabouts are unknown for the majority of the proceedings. (Ibid.)Service by publication is sufficient notice and opportunity to be heard in proceedings to terminate parental rights when a parent's whereabouts remain unknown despite a reasonably diligent search. (David B. v. Superior Court, supra, at p. 1016.)
Our review of the record in this matter convinces us that the juvenile court did not abuse its discretion in finding that DCFS exercised due diligence in attempting to locate father. At the detention hearing, mother stated that she did not know father's whereabouts, but believed he was incarcerated. She also believed he had relatives living in Los Angeles, but did not know where. DCFS had no social security number for father or other information that might assist in locating him.
In early July 2007, DCFS commenced a rigorous search for father, which included, among other actions, checking with the different branches of the military, checking with the county jail, conducting an internet search of the Inmate Information Center of the Los Angeles County Jail Sheriff's Booking, checking with the DMV, the postal service, the Federal Bureau of Prisons, the Department of Corrections and Department of Probation and Parole, a utility company search through AT &T, and voter registration internet records, all without success. A second search was conducted in July 2008, with similar results.
Finally, in October 2008 a third search was conducted. It yielded a cryptic eight page report from the Child Support Division which listed the following names: "Gerardo Israel E[.]," designated as having a "status" of "primary;" "Alfredo M[.]," designated as having a 'status" of "secondary;" and "Gerardo E[.]," also with a "status" of "secondary." No active addresses or working phone numbers were found for father under any name. Without the benefit of hindsight, we do not believe that DCFS failed to exercise due diligence because it failed to interpret the cryptic Child Support Division report to indicate that father was in prison under an alias. Moreover, nothing in the record suggests that the failure to recognize this information and its import was an act of bad faith by DCFS.
Not until November 2009, over a year later, did a DCFS "P-3" worker locate father's sister, who informed the DCFS that he was in prison in Tehachapi under the name Alfredo M. Appellant argues that because DCFS overlooked the information on the Child Support Division report, and the "P-3" worker was able later to locate father's sister, DCFS's previous searches were inadequate. If properly conducted, he contends, DCFS could have obtained that same information earlier. We disagree.
We assess due diligence by what has been done to attempt to locate the parent, not by what might have been done differently. (People v. Diaz (2002) 95 Cal.App.4th 695, 706 [in context of due diligence in procuring a witness for criminal trial, the Court of Appeal stated, ["An appellate court 'will not reverse a trial court's determination [under [Evid. Code], § 240] simply because the defendant can conceive of some further step or avenue left unexplored by the prosecution. Where the record reveals, . . . that sustained and substantial good faith efforts were undertaken, the defendant's ability to suggest additional steps (usually, as here, with the benefit of hindsight) does not automatically render the prosecution's efforts "unreasonable." [Citations.] The law requires only reasonable efforts, not prescient perfection'"].) The fact that a different investigator did something different than previous investigators which yielded information instrumental in locating father, does make the previous investigation deficient.
f. Julian's best interests
Even if we were to conclude that DCFS did not exercise due diligence in its earlier searches for father, the juvenile court nonetheless properly denied the section 388 motion. Father failed to shoulder his burden of establishing that granting the petition and returning these proceedings to square one was in the best interests of Julian. (Justice P., supra, 123 Cal.App.4th at p. 188.)
After reunification is no longer an issue, the focus is on the child's interest in a permanent and stable placement, not the parent's interest in reunification. (See In re Marilyn H. (1993) 5 Cal.4th 295, 309.) As previously stated, at the December 6, 2010 hearing, after a long period in unsatisfactory dependency proceedings, Julian was in a beneficial foster care arrangement with Mr. and Mrs. P, who wanted to adopt him and had an approved home study. Julian wanted to be adopted by them and was thriving with them. His therapist extolled Mr. and Mrs. P.'s virtues as adoptive parents. They were interested in also adopting Joshua, who was then living with them, and Jennifer.
Father's motion effectively sought to begin the dependency proceedings over again. As his counsel stated in arguing the section 388 motion, "What I'm asking your Honor to do is an untidy request. I'm asking you to go back in time two-and-a-half years and start from scratch," subjecting Julian to possibly years of further uncertainty and instability.
Furthermore, father was in no position to obtain custody of Julian. He left mother and Julian 15 days after Julian's birth, failing to communicate with Julian or support him. He had no parental bond with Julian, having only spoken with him after one of the dependency hearings. He was currently incarcerated and not scheduled for release until July 2012. At that point, there was an immigration hold against him, which was likely to result in his being deported.
Paternal aunt and paternal grandfather presented no brighter prospects for Julian. Though they indicated a desire to adopt him, it was unlikely to happen because of their criminal history and inability to qualify for adoption under the ASFA. Furthermore, they had no contact with Julian for most of his life, and it was questionable whether he had bonded with them. Paternal aunt already lived with her five biological children and her parents.
Father failed to establish that Julian's best interests would be served by trading Julian's well-fitted placement and adoption by Mr. and Mrs. P. for additional time in the dependency system, with the unlikely prospects that father or his relatives would ever be in a position to adopt him.
Relying on language in Ansley, supra, 185 Cal.App.3d 477, father argues that "it was in Julian's best interests to grant [Father's] motion, to enable the parties and the court to adjudicate this matter with participation of all parties and all pertinent information, and to effectuate a disposition plan which was properly and narrowly tailored to suit this family's current needs." In essence, he argues that any time a party does not participate in dependency proceedings, it is not in the child's best interests. We disagree.
Father's argument derives from the language in Ansley that, "a judgment [in dependency proceedings] that is proven void due to lack of due process notice suffers from a fatal jurisdictional defect. It may not be perpetuated on the rationale that setting it aside would not, in the court's view, be in the best interests of the child." (Ansley, supra, 185 Cal.App.3d at p. 490.) "[I]t is implicit in the juvenile dependency statutes that it is always in the best interests of a minor to have a dependency adjudication based upon all material facts and circumstances and the participation of all interested parties entitled to notice." (Id. at pp. 490-491.)
This language does not support father's argument. Ansley is distinguishable from the matter before us in that the social services agency in that case made no efforts to give notice to the father. Here, as discussed in part IE2e, ante, DCFS used due diligence and expended considerable efforts in trying to locate father in order to give him notice. Moreover, "the very nature of determining a child's best interests calls for a case-by-case analysis, not a mechanical rule. [¶] The automatic rule . . . bas[ed on] the Ansley language is not in keeping with section 388 as interpreted in case law." (Justice P., supra, 123 Cal.App.4th at p. 191.)
g. Harmless error
Even if DCFS failed to give due process notice of Julian's dependency case, such error was harmless beyond a reasonable doubt. (In re Angela C. (2002) 99 Cal.App.4th 389, 394; Chapman v. California (1967) 386 U.S. 18, 24.) First, there is no evidence that father's earlier presence in the proceedings would have led to a different result. He was in prison during these proceedings and not scheduled for release until July of 2012. Because there is an immigration hold on him, he is likely to be deported when released from prison. Hence, it was unlikely he could ever assume the custodial parental role for Julian. In the nearly nine years that he was absent from Julian's life, he made no effort to contact or support him, until he appeared at the dependency proceedings.
Parental aunt and parental grandfather similarly were unlikely to be able to assume parental roles for Julian, having criminal records and having failed to qualify to adopt under the AFSA. They too had no contact with Julian for his entire life until these proceedings.
Furthermore, father argues that he was deprived of the opportunity to seek Julian's placement with paternal aunt. But he received notice of these proceedings and appeared in court on February 23, 2010, when Julian's placement with Mr. and Mrs. K. was failing. DCFS was looking for new relative placement or foster placement, before Julian had been placed with Mr. and Mrs. P., and nine months before the juvenile court terminated parental rights. Father or paternal aunt could have argued for placement.
1. Void judgment
Relying on the same arguments made in contesting the juvenile court's denial of his section 388 petition to set aside the judgment and jurisdictional and detention findings, father contends that the judgment against him is void because notice of the proceedings was improper and insufficient.
Where a dependency judgment is rendered without jurisdiction of the person, it is void. (David B. v. Superior Court, supra, 21 Cal.App.4th at p. 1016.) It follows from our previous discussion that DCFS exercised due diligence in attempting to locate father and that the judgment was therefore not void.
2. Due process
Father contends that he was deprived of due process because he was not given adequate notice of the proceedings against him pertaining to his fundamental right as a parent to the custody of his child. (In re Marilyn H., supra, 5 Cal.4th at p. 306.) This contention is without merit.
There is no due process violation when a good faith attempt has been made to provide notice to a parent who is a transient and whose whereabouts are unknown for the majority of the proceedings. (Justice P., supra, 123 Cal.App.4th at p. 188.) Based upon our conclusions in parts IE2b and IE2e, ante, that appellant forfeited his challenge to the lack of notice he received and that DCFS exercised due diligence in attempting to serve him, this contention is rejected.
3. Ineffective assistance of counsel
a. Contention
Father contends that if he forfeited his jurisdictional objections by not timely filing them, he was deprived of his statutory and constitutional rights to effective assistance of counsel. He argues that his first attorney failed to make a special appearance on his behalf to challenge the lack of notice to father. Father also argues that the prejudice from counsel's delay is manifest as Julian was not yet in adoptive placement. This contention lacks merit.
b. Applicable principles
The standard for establishing ineffective assistance of counsel is well settled. The "'defendant bears the burden of showing, first, that counsel's performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms. Second, a defendant must establish that, absent counsel's error, it is reasonably probable that the verdict would have been more favorable to him.'" (People v. Hernandez (2004) 33 Cal.4th 1040, 1052-1053; see also Strickland v. Washington (1984) 466 U.S. 668, 687, 694.)
Because we have concluded that father received due process, he cannot show that absent counsel's error, if there was any, it is reasonably probable that the verdict would have been more favorable to him. As we discussed in part IE2e, ante, DCFS utilized due diligence in attempting to locate father. Thus, his attorney's failure to challenge the jurisdiction and disposition at the earliest opportunity was harmless. Had she done so, her objections would have been properly rejected. Moreover, even if there was a defect in service on father, he was not harmed because it is not reasonably probable that a different result would have ensued. For that reason also, her failure to make a prompt challenge to jurisdiction did not affect the outcome.
II. Mother's section 388 petition regarding the Children
A. Background
On October 28, 2010, mother filed a section 388 petition, seeking the return of the Children to her care, or, alternatively, reinstatement of reunification services. On November 18, 2010, the juvenile court granted a hearing on the petition. Mother argued that circumstances had changed because she resided in a sober living facility with her fifth child, was attending all meetings and working with her sponsor. Her new baby was well cared for and content. Mother had shown tremendous growth in her attitude and willingness to change her life and had been testing clean and sober. She also enrolled in an intensive outpatient program on October 27, 2010, which included random drug testing. Mother claimed that there was a strong bond between her and the Children, and Julian loved and missed her and wanted to return to her and maternal grandmother's care.
DCFS responded that the Children "remained stable and suitably placed." Joshua moved in with Mr. and Mrs. P. on November 18, 2010, and was adjusting well. Julian's therapist reported that Julian was happy to have his brother with him. The Children did not have a strong bond with mother. Joshua referred to her by her first name. Julian and Jennifer enjoyed visits with mother but were more attached to maternal grandmother. During visits with the Children, mother did not act in a parental role and supervise the Children, as the CSW had to do so when the Children were acting out. DCFS believed the Children would be at risk if returned to her. Mother was unemployed and her current living conditions did not provide sufficient room for the Children.
The juvenile court denied mother's petition. It was not convinced that there was any significant, long-term change in circumstances because mother had only recently begun her programs, and that was done to comply with conditions of her parole. The juvenile court was concerned that she would not have the same incentive to continue with the programs once her parole was completed because they would no longer be needed to stay out of jail. The juvenile court concluded that "even giving the mother the benefit of the doubt as to whether or not there has in fact been changed circumstances, there is just no evidence of that it is in the Children's best interest at this point to grant the 388 petition, as these Children have had a very, very, very chaotic life."
B. Contentions
Mother contends that that the juvenile court abused its discretion in denying her section 388 petition. She makes substantially the same arguments made in the juvenile court in support of the petition. This contention lacks merit.
C. Section 388 petition
As previously discussed in part IE2c, ante, the moving party on a section 388 petition must (1) show a change in circumstances or new evidence requiring a change order, and (2) that changing the placement is in the best interests of the child. (Justice P., supra, 123 Cal.App.4th at p. 188.) In evaluating a section 388 petition, the juvenile court should consider (1) the seriousness of the problem leading to dependency, (2) the relative strength of the parent-child and child-caretaker bonds, (3) the time the child has been in the system, (4) the nature of the change of circumstances, (5) the ease by which it could be obtained, and (6) the reason it did not occur sooner. (In re Amber M. (2002) 103 Cal.App.4th 681, 685; In re B.D. (2008) 159 Cal.App.4th 1218, 1229.) The court may consider the entire factual and procedural history of the case. (Justice P., supra, 123 Cal.App.4th at p. 189.)
D. Burden of proof and standard of review
At the beginning of the dependency proceedings, the statutory scheme reflects a presumption in favor of keeping parents and children together, and the burden is on DCFS to show that an out-of-home placement is necessary. (In re Jasmon O. (1994) 8 Cal.4th 398, 420.) A child who is a subject of dependency proceedings has a constitutional interest in stability. (In re Manolito L. (2001) 90 Cal.App.4th 753, 762.) "Once services have been terminated, the juvenile court's focus shifts from family reunification to the child's permanent placement and well-being, and the burden accordingly shifts to the parent to show that a termination of parental rights is not in the child's best interests. [Citations.]" (In re Nolan W. (2009) 45 Cal.4th 1217, 1235; In re Angel B., supra, 97 Cal.App.4th at p. 464.) The burden of proof in a section 388 petition is on the moving party to show by a preponderance of the evidence that there are changed circumstances or new evidence that makes a change in placement in the best interests of the child. (In re Stephanie M., supra, 7 Cal.4th at p. 317.)
Determination of a section 388 petition to modify an order made in a dependency proceeding is committed to the sound discretion of the juvenile court and, absent a showing of a clear abuse of discretion, the decision of the juvenile court must be upheld. (In re B.C., supra, 192 Cal.App.4th at p. 141.) We uphold such a petition unless it exceeds the bounds of reason. (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505.)
1. Change of circumstances
As stated above, a section 388 petition must establish a "substantial change in circumstances" or new evidence. (In re Heraclio A. (1996) 42 Cal.App.4th 569, 577.) We agree with the juvenile court that such change has not been demonstrated here.
Mother claims that she took numerous steps to rehabilitate herself and make her capable of caring for her Children. She was living at a treatment center with her fifth child, who had not been detained by DCFS, and was apparently doing well, had completed her case plan, including a drug program and parenting education classes, received clean drug tests, and was meeting with a sponsor.
While these steps are commendable, they must be evaluated against the duration and severity of the problems they were aimed at correcting, the amount of time the rehabilitation had been successfully in place, and the point in the dependency proceedings at which the petition was made. Here, the record fails to demonstrate that any of mother's efforts had been ongoing long enough to instill confidence that they reflected long-term and durable change, rather than temporary, ephemeral improvement. A recent, short-term change may not be sufficient, depending on the severity of the problem changed. (See In re C.J.W. (2007) 157 Cal.App.4th 1075, 1081.) Given the severity of mother's addictions and mental problems, the latter problems requiring faithful and consistent taking of psychotropic drugs, a lengthy period of conscientious rehabilitation programs would be necessary to provide confidence that she could give the Children the long-term stability they required and were entitled to.
Furthermore, as the juvenile court observed, the changes made by mother were required as conditions of parole. A failure to comply would have subjected mother to prison. There is no assurance mother would feel the same sense of necessity to comply when her parole was over. Given the Children's long period of detention in the dependency system and the severity of mother's mental issues, we do not find that mother's belated changes constitute "substantial change" (In re Heraclio A., supra, 42 Cal.App.4th at p. 577) so as to justify granting her section 388 petition.
2. Best interests of the Children
Even if we give mother the benefit of the doubt that there were substantial changed circumstances, we would nonetheless reject this contention. Any modification of a prior order in a child dependency proceeding must promote the interests of the child. (In re S.R. (2009) 173 Cal.App.4th 864, 871.) It is the parent's burden to show that a return to parental custody is in the child's best interest. (In re Nolan W., supra, 45 Cal.4th at p. 1235.) A primary consideration in determining the child's best interests is the goal of assuring stability and continuity. (Angel B., supra, 97 Cal.App.4th at p. 464.) Mother has failed to meet her burden of showing that the changes she seeks in her section 388 petition are in the Children's best interest.
Here, the trial court did not abuse its discretion by concluding that mother failed to prove by a preponderance of the evidence that granting her section 388 motion and returning the Children to her, or reinstituting family reunification services, was in the Children's best interests. The Children had been in the dependency system for over three years and had suffered the trauma of multiple placements with different foster parents. At this point in the dependency proceedings, their statutory and constitutional rights to stability and permanency took prominence over mother's interests in reunification.
As discussed in part ID4a, ante, mother's relationship with the Children was tenuous, at best, and could benefit the Children little. As discussed in part IB4, ante, Julian was both generally and specifically adoptable and part IC3b, ante, adoption at this point in the proceedings were in his best interests. Thus, the evidence is overwhelming that returning the Children to mother or reinstating reunification was not in their best interests. In light of their current adoption status and living arrangements, Julian and his siblings' prospects were bright, and it was not in their interests to jeopardize this bright future for the uncertain prospects that mother only belatedly presented.
DISPOSITION
The orders appealed from are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
J.
ASHMANN-GERST
We concur:
Acting P. J.
DOI TODD
J.
CHAVEZ