Opinion
E065878
02-28-2017
In re I.D. et al., Persons Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. J.D. et al., Defendants and Appellants.
William D. Caldwell, by appointment of the Court of Appeal, for Defendant and Appellant J.D. Sharon S. Rollo, by appointment of the Court of Appeal, for Defendant and Appellant F.Q. Gregory P. Priamos, County Counsel, and James E. Brown, Guy B. Pittman, and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. SWJ002941) OPINION APPEAL from the Superior Court of Riverside County. Judith C. Clark, Judge. Affirmed. REQUEST FOR JUDICIAL NOTICE. Denied William D. Caldwell, by appointment of the Court of Appeal, for Defendant and Appellant J.D. Sharon S. Rollo, by appointment of the Court of Appeal, for Defendant and Appellant F.Q. Gregory P. Priamos, County Counsel, and James E. Brown, Guy B. Pittman, and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
J.D. (father) and F.Q. (mother) appeal from an order terminating their parental rights to their son P.G. and their daughter I.D. (collectively children). They contend:
1. The father was not given notice of most of the hearings in the dependency, including the hearing at which the juvenile court terminated parental rights.
2. The relative placement preference (Welf. & Inst. Code, § 361.3) was not properly applied.
Finding no reversible error, we will affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
The mother has seven children. The father is both the presumed and biological father of the two youngest children — P.G. and I.D. P.G., a boy, was three when this dependency began and is now five. I.D., a girl, was one when this dependency began and is now five.
Before the dependency, the three younger children, including P.G. and I.D., lived with the mother; the maternal grandmother had legal guardianship of the four older children. It does not appear that, at that point, the father was living with the mother or with any of the children.
In April 2014, the maternal grandmother was hospitalized. Meanwhile, the mother was evicted, so she moved into the maternal grandmother's home. Soon afterward, however, she left and did not come back. The mother's sister and cousin cared for all seven children for a couple of days, but they were not willing to do so on a long-term basis. Accordingly, the Riverside County Department of Public Social Services (Department) detained all seven children and filed a dependency petition as to them.
The mother contacted the Department. It had been reported that she had used methamphetamine since she was 17 (she was then 29). She denied any abandonment or drug use. However, she refused to drug test.
The father also contacted the Department. He admitted that he was currently using methamphetamine.
At the detention hearing, the three younger children were placed in foster care; the four older children were placed back with the maternal grandmother. In July 2014, the petition as to the four older children was dismissed.
In August 2014, at the jurisdictional/dispositional hearing, the juvenile court found that it had jurisdiction over the three younger children based on failure to protect (Welf. & Inst. Code, § 300, subd. (b)). It formally removed all three children from the parents' custody. It denied the father reunification services because his whereabouts were unknown. (Welf. & Inst. Code, § 361.5, subd. (b)(1).)
The petition also alleged failure to support (Welf. & Inst. Code, § 300, subd. (g)), as to the father only. The juvenile court failed to make a finding on this allegation.
As the father points out, the juvenile court removed I.D., but not P.G., from his physical custody. This differential treatment seems to have been merely a clerical error. In any event, as the juvenile court placed both children in the legal custody of the Department, and as neither of the children was living with the father at the start of the dependency (see Welf. & Inst. Code, § 361, subd. (c)), we cannot see how the differential treatment had any practical effect.
In April 2015, at the six-month review hearing, the juvenile court terminated reunification services and set a hearing pursuant to Welfare and Institutions Code section 366.26.
In August 2015, the foster parents expressed interest in adopting all three children.
In April 2016, at the section 366.26 hearing, the juvenile court found that the children were adoptable and that there was no applicable exception to termination; accordingly, it terminated parental rights.
II
NOTICE TO THE FATHER
Both parents contend that the father was not given proper notice, as required by due process and by statute, of the proceedings below.
A. Additional Factual and Procedural Background.
1. Notice of the detention hearing.
In May 2014, when the children were first detained, the father contacted the Department voluntarily. He said that he was renting a room in Winchester, but "he was unable to provide the address." The social worker gave him oral notice of the detention hearing. However, he did not appear.
2. Notice of the jurisdictional/dispositional hearing.
After the detention hearing, the Department submitted a parent locator request for the father. The parent locator search produced the following address:
"25966 Tamarisk Dr.
Hemet, CA 92544"
A social worker visited the Tamarisk address and found the father's sister living there. She said the father had moved to Homeland. She did not have his address or phone number. However, according to his sister, he was still receiving mail at the Tamarisk address.
The Department did not give the father any notice of the jurisdictional/dispositional hearing.
In August 2014, at the jurisdictional/dispositional hearing, the father was not present. The juvenile court denied him reunification services because his whereabouts were unknown. (Welf. & Inst. Code, § 361.5, subd. (b)(1).)
3. Notice of the six-month review hearing.
The Department also did not give the father any notice of the six-month review hearing in April 2015. Thus, he was not present.
4. Notice of the section 366 .26 hearing.
a. The initial section 366 .26 hearing.
Later in April 2015, the Department once again submitted a parent locator request for the father. This time, the parent locator search did not produce any usable contact information for the father.
In July 2015, the juvenile court found that the Department had exercised due diligence in attempting to locate the father.
In August 2015, however, on the date then set for the section 366.26 hearing, the father appeared in court. The juvenile court appointed counsel for him. His newly appointed counsel requested discovery; the juvenile court ordered that he be provided with discovery.
The father filed a Judicial Council form JV-140 giving his mailing address as:
"92544 Tamariks Dr.
Hemet, CA 92544"
In other words, "Tamarisk" was misspelled, and the house number was the same as the zip code. The father stated that this was his sister's address. He added that he had moved one day earlier and did not know his new address, but he would stay in contact with his sister.
The juvenile court continued the section 366.26 hearing. It ordered the father to return, and it dispensed with further notice.
b. The first continued section 366 .26 hearing.
The father was given notice of the continued section 366.26 hearing by mail, at "92544 Tamariks."
In December 2015, on the date of the continued section 366.26 hearing, the father appeared in court. His counsel said he had not received any discovery yet and requested discovery again. The juvenile court once again ordered that he be provided with discovery, continued the hearing, and dispensed with further notice.
c. The final section 366 .26 hearing.
The father was given notice of the continued section 366.26 hearing by mail, at "92544 Tamariks."
In January 2016, the Department submitted one last parent locator request for the father. This time, the parent locator reported that "92544 Tamarisk" was not a valid address.
On February 1, 2016, the father phoned the parent locator. He said he had just moved to Romoland. He did not know his new address, but he promised to call back and provide it. He did provide his phone number. He confirmed that he was aware of the date of the continued section 366.26 hearing.
The father never called the social worker back with his address.
A social worker visited the Tamarisk address. Once again, the father's sister was living there. She said the father had been staying there, but he had just left and moved to Romoland. She did not have his address or phone number.
On the date of the continued section 366.26 hearing, the father did not appear. However, his appointed counsel was present. The father's counsel pointed out that the Department had filed a declaration of due diligence and stated, "I would ask that the court find good notice." The juvenile court found that good notice had been given as to the father.
B. General Legal Principles.
"'Parents have a fundamental and compelling interest in the companionship, care, custody, and management of their children. [Citation.] "[T]he state also has an urgent interest in child welfare and shares the parent's interest in an accurate and just decision. [Citation.]" [Citation.] To ensure that result, "[u]ntil parental rights have been terminated, both parents must be given notice at each step of the proceedings. [Citation.]"' [Citation.]" (In re J.H. (2007) 158 Cal.App.4th 174, 182.)
"The means employed to give a party notice for due process purposes must be such as one, desirous of actually informing the party, might reasonably adopt to accomplish it. [Citation.]" (In re Claudia S. (2005) 131 Cal.App.4th 236, 247.)
"If the whereabouts of a parent are unknown, the issue becomes whether due diligence was used to locate the parent. [Citation.] The term 'reasonable or due diligence' '"denotes a thorough, systematic investigation and inquiry conducted in good faith."' [Citation.] Due process notice requirements are deemed satisfied where a parent cannot be located despite a reasonable search effort and the failure to give actual notice will not render the proceedings invalid. [Citation.]" (In re Claudia S., supra, 131 Cal.App.4th at p. 247.)
C. Notice of the Jurisdictional/Dispositional Hearing.
The parents contend that the father was not given due notice of the jurisdictional/dispositional hearing. As mentioned, he was given no notice of the jurisdictional/dispositional hearing. As a result, as he points out, he also was not given notice, as required by statute, that the Department was recommending the denial of reunification services. (Welf. & Inst. Code, § 358, subd. (a)(3).)
The Department responds that it was not required to give any notice to the father because his whereabouts were unknown. However, it did have his sister's address, on Tamarisk; moreover, his sister said that he was receiving mail there. It was just as if the Department did not have his residence address, but did have his post office box number. The Department failed to use the means of giving notice that a person who truly wanted to reach the father would have used.
We also note that Welfare and Institutions Code section 291, the statute governing notice of a jurisdictional or dispositional hearing, provides that notice must be given: "[i]f there is no parent or guardian residing in California, or if the residence is unknown, then to any adult relative residing within the county . . . ." (Welf. & Inst. Code, § 291, subd. (a)(7), italics added.) Thus, even aside from the notice constitutionally required by due process, the Department was statutorily required to give notice to the father's sister.
The Department responds that the father forfeited his contentions regarding notice. As to this, we agree.
"To preserve a claim to defective notice of a . . . hearing, the objection must be raised at the earliest opportunity . . . . [Citations.]" (In re Marriage of Obrecht (2016) 245 Cal.App.4th 1, 13.)
"A defect in notice . . . is a most serious issue, potentially jeopardizing the integrity of the entire judicial process. However, when a parent had the opportunity to present that issue to the juvenile court and failed to do so, appellate courts routinely refuse to exercise their limited discretion to consider the matter on appeal. This is precisely because defective notice and the consequences flowing from it may easily be corrected if promptly raised in the juvenile court. [Citation.]" (In re Wilford J. (2005) 131 Cal.App.4th 742, 754; accord, In re Lukas B. (2000) 79 Cal.App.4th 1145, 1152.)
In In re B.G. (1974) 11 Cal.3d 679, the social services agency failed to give the mother notice of the jurisdictional hearing. (Id. at pp. 688-689.) The Supreme Court held, however, that she forfeited the error, in part because, when she did appear in the case, through counsel, two years later, "she did not seek to terminate jurisdiction or challenge the validity of the [jurisdictional] order." (Id. at p. 689.)
Here, the father was not able to object at the jurisdictional/dispositional hearing, because he was not given notice and he was not present. For the same reasons, he was not able to object at the six-month review hearing. At the initial section 366.26 hearing, however, he was personally present, and counsel was appointed for him. The same was true at the first continued section 366.26 hearing. At the final section 366.26 hearing, although the father was not personally present, his appointed counsel was present. Nevertheless, his counsel did not raise any notice issue at any of these hearings.
The father argues that his counsel was unable to raise the notice issue because the Department failed to provide him with discovery. At the initial section 366.26 hearing and at the first continued section 366.26 hearing, the father's counsel said that he had not received discovery; at the final section 366.26 hearing, however, he did not mention discovery at all. "If discovery has been refused, counsel for the party seeking discovery should bring the matter to the court's attention, orally if necessary . . . , and either seek a continuance to file a formal motion [citation], or orally seek appropriate sanctions. [Citation.] [¶] The matter should be brought to the court's attention as soon as practicable . . . . If a motion is not made, any objection to the lack of discovery may be deemed waived." (Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2016) § 3.38 at p. 208.) Here, we must conclude that the father's counsel did receive discovery.
At oral argument, the father's appellate counsel argued that the notice issue was "difficult to catch." Quite the contrary. Even if trial counsel knew nothing else about the case, he did know that (1) the case was set for a section 366.26 hearing, and (2) he had only just been appointed as counsel for his client. Obviously, his client had missed a bunch of hearings. His first order of business should have been to find out whether the Department had exercised due diligence to locate and to give notice to his client.
We can only speculate as to why counsel did not raise a notice issue below. The father does not contend that counsel's failure to do so constituted ineffective assistance, so that issue is not before us. If only out of an excess of caution, however, we note that there could be several satisfactory explanations for counsel's inaction. For example, he may have been aware of evidence that, even if the father had been given notice, he would not have appeared, and therefore the lack of notice was harmless. (See In re James F. (2008) 42 Cal.4th 901, 918 ["If the outcome of a proceeding has not been affected, denial of a right to notice and a hearing may be deemed harmless and reversal is not required."].)
D. Notice of the Six-Month Review Hearing.
The parents contend that the father was not given due notice of the six-month review hearing. Once again, he was given no notice of this hearing. And once again, because the Department had a mailing address for him, this was error.
However, as discussed in part II.C, ante, the father forfeited the error by failing to raise it in the trial court.
As the father points out, the juvenile court also failed to give him notice, as required, that he could appeal from its order setting a section 366.26 hearing and could challenge that order only by writ. (Welf. & Inst. Code, § 366.26, subd. (l)(3)(A); Cal. Rules of Court, rules 5.590(b), 5.708(n)(6).) However, while this was error, it was not reversible error. It simply meant that the father was relieved of the writ requirement. Thus, he remains entitled to challenge the order setting a section 366.26 hearing in this appeal. (In re Merrick V. (2004) 122 Cal.App.4th 235, 248.) He does not need any additional appellate remedy.
E. Notice of the Section 366 .26 Hearing.
The father contends that he was not given due notice of the section 366.26 hearing. He argues that sending notice by mail to "92544 Tamariks" — the address he had written on his form JV-140 — was not valid, because that address contained obvious typographical errors and because the Department's files already contained the address "25966 Tamarisk."
We need not decide whether the mail notice was valid. Somehow or other, the father managed to appear at the initial section 366.26 hearing. This constituted a general appearance; it forfeited any objection based on lack of notice and it gave the juvenile court personal jurisdiction over him. (In re R.L. (2016) 4 Cal.App.5th 125, 146; In re Vanessa Q. (2010) 187 Cal.App.4th 128, 135.) Moreover, each time the juvenile court continued the hearing, it ordered the father to return on the continued date. This was sufficient notice of the continued hearings. (Welf. & Inst. Code, § 296.)
Separately and alternatively, at the final section 366.26 hearing, the father's own counsel asked the juvenile court to find that good notice had been given. Accordingly, even assuming the juvenile court erred, the error was invited. (See In re G.P. (2014) 227 Cal.App.4th 1180, 1193-1196.)
III
PLACEMENT WITH THE MATERNAL GRANDMOTHER
The parents contend that the juvenile court and the Department failed to adequately assess placement with the maternal grandmother.
A. Additional Factual and Procedural Background.
In May 2014, at the detention hearing, the four older children were returned to the maternal grandmother. Later that month, the maternal grandmother expressed an interest in having the three younger children placed with her.
In July 2014, the Department submitted a relative assessment referral regarding the maternal grandmother.
Also in July 2014, counsel for the Department advised the juvenile court that the maternal grandmother was being assessed. Counsel for the mother commented, "That is where my client would like the children to be placed."
In August 2014, at the jurisdictional/dispositional hearing, counsel for the Department reported that the assessment of the maternal grandmother was "ongoing." The juvenile court stated, "I'll . . . ask the Department to provide periodic updates with regard to the assessment with regard to maternal grandmother."
In November 2014, the Department held a team decision-making meeting regarding placement, which was attended by the mother, the maternal grandmother, and the foster mother. The Department decided not to place the children with the maternal grandmother, for four reasons: (1) she was in poor health; (2) her ability to care for seven children was questionable; (3) her two-bedroom home did not have enough room for seven children; and (4) if the children were placed with her, the mother would be less motivated to reunify.
In December 2014, the maternal grandmother's home was red-tagged. As a result, the four older children were detained and a further petition was filed regarding them. They were placed with the mother's sister; they were still in her care as of August 2015.
B. Request for Judicial Notice.
The Department has asked us to take judicial notice of documents from the dependency of the four older children showing that the maternal grandmother's guardianship of those children has been terminated and a new guardian has been appointed. The parents have not opposed the request. Nevertheless, we deny the request, for two reasons.
First, these documents were not before the trial court. "'Reviewing courts generally do not take judicial notice of evidence not presented to the trial court' absent exceptional circumstances. [Citation.]" (Haworth v. Superior Court (2010) 50 Cal.4th 372, 379, fn. 2.)
And second, these documents reflect events after this appeal was filed. As a "general rule[,] . . . postjudgment evidence is inadmissible in a juvenile dependency appeal from an order terminating parental rights." (In re Zeth S. (2003) 31 Cal.4th 396, 414, fn. 11.) The Department has not argued that there is any applicable exception to this general rule (e.g., to show mootness).
C. Standing.
Preliminarily, the Department argues that the father lacks standing to raise this issue.
In general, at least until parental rights are terminated, "parents have standing in dependency cases to raise issues regarding placement . . . . [Citations.]" (In re A.S. (2012) 205 Cal.App.4th 1332, 1339-1340.) This is because placement, particularly with a relative, can affect the parent's interests, including his or her chances of reunification. (In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1053-1054; Los Angeles County Dept. of Children & Family Services v. Superior Court (2007) 158 Cal.App.4th 1562, 1568, fn. 2.)
Here, the mother has standing to argue that the Department failed to adequately consider placement with the maternal grandmother; indeed, the Department does not argue otherwise. However, the father also has standing, because, assuming the order terminating the mother's parental rights must be reversed, then the order terminating the father's parental rights must also be reversed. (See Cal. Rules of Court, rule 5.725(g) [subject to exceptions not applicable here, "the court must not terminate the rights of only one parent . . . ."].)
D. Forfeiture.
Also preliminarily, the Department argues that the parents forfeited this issue by failing to raise it below. This time, we agree.
"In dependency litigation, '[a] party forfeits the right to claim error as grounds for reversal on appeal when he or she fails to raise the objection in the trial court. [Citations.]' [Citation.]" (In re T.G. (2013) 215 Cal.App.4th 1, 14.)
The mother had appointed counsel from the detention hearing on. In July 2014, her counsel stated that she would like the children placed with the maternal grandmother. At that time, however, the Department's assessment was ongoing. The mother's counsel never raised the particular claims that the father is raising in this appeal — that the Department and the juvenile court failed to carry out an adequate assessment.
The father likewise never raised any issue regarding placement. He claims he was unable to do so because he was not given proper notice of the proceedings. Nevertheless, as we discussed in part II.C, ante, he did appear at the initial section 366.26 hearing, when counsel was appointed for him. Moreover, while his counsel did claim at one point that he had not received discovery, he did not reiterate this claim at the final section 366.26 hearing. Thus, there is no apparent reason why he could not have raised any placement issues at that point.
Admittedly, the Department has taken the position that relative placement is not an issue at a section 366.26 hearing. Even so, the father could have argued that he was not given due notice of the previous hearings, and therefore the juvenile court should vacate the setting of the section 366.26 hearing, reconsider reunification services, and reopen all placement issues. (See Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 487 [parent can raise claim that notice was not given, as required by due process, by way of a petition to modify prior orders].) His failure to do so was a forfeiture.
E. Merits.
Finally, the Department also argues that the parents' contention lacks merit. We reach this argument as an alternative ground for rejecting the contention.
Under the so-called relative placement preference, "[i]n any case in which a child is removed from the physical custody of his or her parents pursuant to [Welfare and Institutions Code] Section 361, preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative, regardless of the relative's immigration status." (Welf. & Inst. Code, § 361.3, subd. (a).)
"When it applies, [Welfare and Institutions Code] section 361.3 requires social workers and juvenile courts to give 'preferential consideration' to a request by a relative for placement of a dependent child with the relative. [Citation.] '"Preferential consideration" means that the relative seeking placement shall be the first placement to be considered and investigated.' [Citations.] The relative placement preference established by section 361.3 does not constitute 'a relative placement guarantee.' [Citation.]" (In re K.L. (2016) 248 Cal.App.4th 52, 66, fn. 4.) Here, the Department did consider placing the children with the maternal grandmother, but ultimately it decided not to do so.
Welfare and Institutions Code section 361.3, subdivision (a) also lists a number of factors to be considered in determining whether placement with a relative is appropriate. One is "[t]he ability of the relative to . . . [¶] . . . [¶] [f]acilitate court-ordered reunification efforts with the parents." (Welf. & Inst. Code, § 361.3, subd. (a)(7)(E).) As mentioned, one of the reasons why the Department decided not to place the children with the maternal grandmother was that it felt that, if it did so, the mother would not be motivated to reunify. The parents argue that the statute required the Department to assume that living with a relative will facilitate reunification. Not so. It only requires the Department to consider whether living with a relative will facilitate reunification. In this case, the Department concluded that it would actually hamper reunification.
The parents also complain that, after a new petition regarding the four older children was filed, a social worker told the maternal grandmother that this prevented the three younger children from being placed with her. They claim this was false, because Welfare and Institutions Code section 361.3 does not absolutely prohibit the placement of a child with a parent or guardian who is a party to an open dependency. However, the statute does require the Department to consider the ability of the relative to "[p]rovide a safe, secure, and stable environment for the child." (Welf. & Inst. Code, § 361.3, subd. (a)(7)(A).) Thus, the removal of other children is impossible to ignore; it will preclude placement in the vast majority of instances, even assuming it is not an absolute bar. The parents cannot show that the Department abused its discretion.
More to the point, however, even assuming the social worker misinformed the grandmother, the Department had already decided not to place the children with her for other reasons. Nothing about those reasons had changed. Thus, there was no prejudice.
Finally, the parents claim that the Department failed to document its assessment of the grandmother, as required. (See Welf. & Inst. Code, § 361.3, subd. (a).) However, they do not explain how they come to this conclusion. It does not appear that any pertinent information is missing from the reports. Once the Department decided not to place the children with the maternal grandmother and explained its reasons, it was not required to regurgitate this information in subsequent reports.
IV
DISPOSITION
The order appealed from is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: MILLER
J. SLOUGH
J.