Opinion
B234278
01-31-2012
In re J.T., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. JAMES T., Defendant and Appellant.
California Appellate Project, under appointment by the Court of Appeal, Jonathan B. Steiner, Executive Director, and Anne E. Fragasso for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Judith A. Luby, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CK76718
APPEAL from orders of the Superior Court of Los Angeles County. Timothy R. Saito, Judge. Affirmed.
California Appellate Project, under appointment by the Court of Appeal, Jonathan B. Steiner, Executive Director, and Anne E. Fragasso for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Judith A. Luby, Principal Deputy County Counsel, for Plaintiff and Respondent.
James T. (Father) appeals from the juvenile court's order of May 18, 2011, terminating his parental rights over J.T., born in 2008, pursuant to Welfare and Institutions Code section 366.26. Father argues for the first time on appeal that the order must be reversed because he was not given proper notice of the May 18, 2011 hearing at which his parental rights were terminated. We disagree. Father, who failed to maintain contact with the Los Angeles County Department of Children and Family Services (DCFS) and often did not appear at properly noticed hearings, forfeited the issue of notice by failing to raise it below. In any event, any error was harmless beyond a reasonable doubt because Father could not have shown it was in J.T.'s best interests to grant Father a section 388 hearing; J.T. was adoptable; and Father could not have proven the existence of an exception to termination of parental rights based on his relationship with J.T. M.H. (Mother) is not a party to this appeal. We affirm.
Undesignated statutory references are to the Welfare and Institutions Code.
BACKGROUND
On July 6, 2009, DCFS filed a petition on behalf of J.T. pursuant to section 300, subdivision (b) (failure to protect) and subdivision (g) (failure to provide). As amended and sustained, the petition alleged under section 300, subdivisions (b) and (g) that Mother, whose whereabouts were unknown, had left J.T. with paternal cousin Cheryl S., but had failed to provide for J.T.'s continued care and supervision. The petition also alleged that an earlier petition had been filed on March 27, 2009; J.T. had been detained from Mother; and that the March 27, 2009 petition had been dismissed for a program of supervision pursuant to section 301. As amended and sustained, the petition alleged under section 300, subdivision (b) that Father "is currently" unable to provide for J.T. and his "inability" to provide for J.T. endangers J.T.'s physical and emotional health and safety. DCFS detained J.T. with Cheryl.
Father, who was born in 1990, was present at the detention hearing on July 6, 2009. Mother was not present at the hearing. The juvenile court ordered Father to have unmonitored visits with J.T. and to attend the jurisdiction hearing. Father stated that he understood notices would be sent to a 90061 address that was the home of Cheryl's parents, which he had provided previously. He acknowledged that it was his responsibility to notify DCFS of any change of address.
Father appeared at the properly noticed July 27, 2009 jurisdiction hearing. The matter was continued to August 20, 2009, because the juvenile court found that "due diligence [had] not been completed as to Mother." Neither Father nor Mother appeared at the properly noticed August 20, 2009 hearing. The juvenile court sustained the amended petition against Mother and Father, declared J.T. a dependent of the court, denied services to Mother due to her whereabouts being unknown, and ordered Father to participate in individual counseling, including issues of adult and parental responsibilities, and parent education for teenage fathers. Father was ordered to have unmonitored day visits.
DCFS reported that J.T. had resided from birth at the home of Cheryl, who at one time had been Mother's legal guardian. Cheryl was willing to co-adopt J.T. with her adult daughter and had many adults in her home to look after him. Meanwhile, Father failed to respond to DCFS's monthly letters requesting that he contact DCFS to address the court's orders. Father saw J.T. when Cheryl brought J.T. with her to visit her parents. During these visits, Father played with J.T. and helped take care of him. Father had taken J.T. to celebrate his second birthday with relatives. J.T. was aware that Father was his parent and was happy to see him, but J.T. was not upset to leave Father. Father had lost his job and was not in a stable position or able to take care of himself, "much less" J.T. Father told DCFS, "'It's all about me right now.'" DCFS stated that there was "no foreseeable chance" that Father would be in a position to care for J.T. Later, DCFS reported that the adoptive home study of Cheryl and her daughter had been approved. DCFS reported that Cheryl and her daughter were capable of meeting J.T.'s medical, developmental, and physical needs and provided the love and nurturance he required for healthy development. J.T. was happy, comfortable, on target developmentally, and interacted positively with Cheryl and her daughter. J.T. called Cheryl "'Mom.'" J.T.'s attendance at preschool had helped him prepare for the structure of kindergarten. DCFS stated that adoption by Cheryl and her daughter was in J.T.'s best interest because he would be kept in the family. DCFS recommended termination of parental rights and adoption as the permanent plan for J.T.
Father and Mother failed to appear at the properly noticed section 366.21, subdivision (e) hearing on February 18, 2010, and the matter was set for a contested hearing on March 24, 2010. Neither Mother nor Father were present at the properly noticed March 24, 2010 hearing. The juvenile court terminated Father's reunification services, and set the matter for a contested section 366.26 hearing on July 22, 2010.
Father and Mother were not present at the section 366.26 hearing on July 22, 2010. Although DCFS had sent notice of the section 366.26 hearing to Father at the 90061 address and another address, no return receipts were signed by Father. The juvenile court found that due diligence submitted on behalf of Mother had been proper and ordered DCFS to effectuate notice by certified mail on Mother's attorney. The court found that notice to Father was not proper and ordered DCFS to "continue its efforts" to effectuate proper service of Father. The court continued the contested 366.26 hearing to September 22, 2010.
On September 1, 2010, DCFS mailed notice of the hearing on September 22, 2010, to Father at the 90061 address. On September 22, 2010, the juvenile court found that notice to Father was not proper and continued the matter to January 5, 2011. DCFS unsuccessfully attempted to serve Father personally at the 90061 address five times between October 14, 2010, and December 6, 2010. On December 8, 2010, DCFS provided untimely substitute service on Cheryl's father, who confirmed that Father lived at the 90061 address.
On January 5, 2011, Father met with his counsel outside the courtroom prior to the hearing. His counsel, who was unaware that notice to Father was untimely, told him that he did not need to stay for the hearing to set the matter for a contest. Father then left and did not appear at the hearing. The trial court continued the contested 366.26 hearing to March 23, 2011. Notice of the March 23, 2011 hearing was mailed to Father at the 90061 address on February 23, 2011.
Father appeared at the properly noticed hearing on March 23, 2011, but the matter was continued to May 4, 2011, at the request of J.T.'s counsel. Father was ordered by the juvenile court to be present on May 4, 2011. He indicated that he understood. On that same day, DCFS personally served Father with notice of the May 4, 2011 hearing. DCFS also sent a courtesy notice to Father's attorney and to Father at his 90061 address.
After the contested section 366.26 hearing was continued to May 4, 2011, Cheryl reported to DCFS that Mother and Father had threatened and harassed her and that Father had mocked her because "the court gave him another chance." Cheryl stated that if parental rights were not terminated on May 4, 2011, she would pursue guardianship instead of adoption.
Father and Mother did not appear at the properly noticed section 366.26 hearing on May 4, 2011. Because the case file was missing, the matter was continued to May 18, 2011. The juvenile court stated that it "continues to find proper notice" and asked for more information as to visitation.
Mother and Father were not present at the contested section 366.26 hearing on May 18, 2011. Father's counsel stated that Father had told her on March 23, 2011, that he wanted to file a petition pursuant to section 388, but "[h]e was not present at the May 4th hearing and we have been unable to get a hold of him, so I have no further instructions or directions from him." DCFS stated that Father had been personally served on March 23, 2011, for the May 4, 2011 hearing and that the juvenile court had found notice proper to him that day. In response to the juvenile court's question of whether there was any objection to notice, Father's counsel stated, "I don't believe I have any legal basis to object." The court noted that Father had visited J.T. only five or six times in the last six months, and some of those visits were initiated by Cheryl. The court stated that it could not find a compelling reason for determining that termination of parental rights would be detrimental to J.T. because there was no evidence of bonding between Father and J.T. After considering arguments of counsel and the evidence admitted into the record, the court terminated parental rights.
Father filed a notice of appeal on June 10, 2011.
DISCUSSION
Father argues for the first time on appeal that the order must be reversed because he was not given proper notice of the contested section 366.26 hearing held on May 18, 2011, at which his parental rights were terminated. We disagree. Father, who failed to maintain contact with the DCFS and often did not appear at properly noticed hearings, forfeited the issue of notice by failing to raise it below. In any event, any error was harmless beyond a reasonable doubt because Father could not have shown it was in J.T.'s best interests to grant Father a section 388 hearing; J.T. was adoptable; and Father could not have proven the existence of an exception to termination of parental rights based on his relationship with J.T.
An assertion on appeal by a parent that he did not receive proper notice of a continued section 366.26 hearing is forfeited if he failed to raise it below. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1152-1153.) Here, the juvenile court found that proper notice had been given to Father for the May 4, 2011 section 366.26 hearing, at which he did not appear. On May 18, 2011, at the continued section 366.26 hearing, Father's counsel did not raise the issue of notice. And in response to the court's question of whether there was any notice objection, Father's counsel expressly stated there was no legal basis to object. Accordingly, we conclude that by failing to raise the notice issue below, Father has forfeited the issue on appeal.
In any event, as we explain, any error was harmless beyond a reasonable doubt. Parents are entitled to special notice of a section 366.26 hearing pursuant to section 294, including notice of continuances. (In re Angela C. (2002) 99 Cal.App.4th 389, 392.) "Provided a parent has received notice of the original section 366.26 hearing date in compliance with section [294], renotice to that parent pursuant to the precise terms of section [294] is not necessary under certain circumstances to satisfy due process. [Citation.] For example, if the parent who received the original notice is present in court when the trial court continues the hearing date, the in-court notice is proper and satisfies the parent's due process rights. [Citation.] By contrast, if that same parent fails to attend a properly noticed section 366.26 hearing, other proof of actual notice to the parent of the continued hearing date will suffice for due process purposes. [Citation.] In this regard, due process requires notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. [Citation.]" (99 Cal.App.4th at pp. 392-393.) And lack of notice of a continuance of a section 366.26 hearing is not structural error requiring automatic reversal, but is in the nature of a trial error, and subject to the harmless error analysis. (Id. at pp. 394-395.)
Section 294 provides, in pertinent part, that DCFS shall give notice to the parents of a selection and implementation hearing held pursuant to section 366.26. Section 294, subdivision (c)(1) provides that: "Service of the notice shall be completed at least 45 days before the hearing date. Service is deemed complete at the time the notice is personally delivered to the person named in the notice or 10 days after the notice has been placed in the mail . . . ." Section 294, subdivision (d) provides, in pertinent part: "Regardless of the type of notice required, or the manner in which it is served, once the court has made the initial finding that notice has properly been given to the parent, . . . subsequent notice for any continuation of a Section 366.26 hearing may be by first-class mail to any last known address, by an order made pursuant to section 296, or by any other means that the court determines is reasonably calculated, under any circumstance, to provide notice of the continued hearing. . . ."
--------
In In re Angela C., the mother had received proper notice of a section 366.26 hearing, but did not attend. (In re Angela C., supra, 99 Cal.App.4th at p. 393.) That section 366.26 hearing was continued due to problems with publication notice to an alleged father, but the record was silent regarding notice of the continued hearing to the mother. The appellate court noted that the mother "had notice from the dependency proceedings from the outset, as well as the opportunity to be heard," and had received proper notice of the originally scheduled section 366.26 hearing date, but had failed to appear. (99 Cal.App.4th at p. 395.) The appellate court concluded that at most, the error affected the conduct of the termination hearing in that it became an uncontested hearing. But had the juvenile court held the hearing on the originally scheduled date as was within its power, that hearing too, would have been uncontested because the mother did not appear. Reviewing the record under the harmless error standard of Chapman v. California (1967) 386 U.S. 18, 24 , the appellate court noted that the primary issue in a section 366.26 hearing is whether the dependent child is likely to be adopted. The appellate court determined that error in notice was harmless beyond a reasonable doubt as to the juvenile court's finding of the minor's adoptability because the healthy minor, who was in stable placement, was likely to be adopted. (99 Cal.App.4th at p. 396.) The appellate court also found beyond a reasonable doubt that the error in notice was harmless to any detriment claim because the mother had given up on any effort to be a parent and had stopped visiting the minor completely. (Ibid.)
Similarly, here, Father had proper notice of the May 4, 2011 section 366.26 hearing, but did not appear. The juvenile court would have been within its rights to have proceeded that day and terminated Father's parental rights but continued the hearing because the case file was missing. As in In re Angela C., we conclude that failure to give proper notice to Father of the continued hearing was harmless beyond a reasonable doubt. There was no evidence of changed circumstances that would have justified a hearing on a section 388 petition. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610 [mere prima facie showing of "changing" circumstances not enough to require a section 388 hearing].) At the continued section 366.26 hearing, Father's counsel stated that on March 23, 2011, Father had "mentioned" that he wanted to file a section 388 petition, but her efforts to contact him after that day were unsuccessful, so she had no direction from him. And there is no evidence of changed circumstances that would justify a hearing on a section 388 petition. Also, error in notice was harmless beyond a reasonable doubt to the finding that J.T. was adoptable. It was undisputed that J.T. was happy, developmentally on target, thriving in preschool, and had been living from birth with Cheryl and her daughter, who wanted to co-adopt him.
Nor was there any evidence of a compelling reason for determining that termination of Father's parental rights would have been detrimental to J.T. Section 366.26, subdivision (c)(1)(B) sets forth six circumstances where the court may forgo adoption and retain parental rights. One of the reasons is 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).) The evidence showed that Father had an unstable lifestyle, was not employed, and could barely take care of himself, much less J.T. Father told DCFS, "'It's all about me right now,'" and his actions seem to support that statement. Father had been aware of the dependency proceedings from the beginning. But he failed to keep DCFS apprised of his whereabouts and did not contact DCFS regarding court-ordered programs, even though DCFS called him numerous times. When given proper notice of hearings, his appearance was sporadic. He visited J.T. only six times in the six months previous to the May 18, 2011 section 366.26 hearing. All but one of those visits took place because Cheryl visited her parent's home where Father lived. His relationship with J.T. was that of a friendly visitor, and J.T. was not upset when he left Father.
On the other hand, J.T. was closely bonded with Cheryl and called her "Mom." And Cheryl and her daughter met J.T.'s emotional, mental, and physical needs in a loving environment with many adults who could help look after him. The benefit to J.T. from continuing the relationship with Father does not outweigh the benefit he would receive from the permanence of being adopted. Accordingly, we conclude that Father could not have proven the existence of an exception to termination of parental rights based on his relationship with J.T., and therefore error in notice was harmless beyond a reasonable doubt.
DISPOSITION
The juvenile court's order of May 18, 2011, terminating James TVs parental rights over J.T. is affirmed.
NOT TO BE PUBLISHED.
MALLANO, P. J.
We concur:
CHANEY, J.
JOHNSON, J.