Opinion
C093732
03-02-2022
In re N.G., a Person Coming Under the Juvenile Court Law. v. N.G., Defendant and Appellant. SACRAMENTO COUNTY DEPARTMENT OF CHILD, FAMILY AND ADULT SERVICES, Plaintiff and Respondent,
NOT TO BE PUBLISHED
(Super. Ct. No. JD240544)
HOCH, J.
Father of the minor N.G. appeals from the juvenile court's March 8, 2021, order terminating his reunification services and setting a permanency review hearing. (Welf. & Inst. Code, § 366.21, subds. (e) & (f).) Father contends reversal is required because the court failed to provide him with (1) timely and valid notice of the March 2021 hearing and (2) a copy of the status report. We will affirm the juvenile court's orders.
Undesignated statutory references are to the Welfare and Institutions Code.
Given our conclusions, we deny father's request to take judicial notice of the juvenile court's November 8, 2021, order terminating father's parental rights.
FACTUAL AND PROCEDURAL BACKGROUND
Initial Detention
In April 2020, the Sacramento County Department of Child, Family and Adult Services (the Department) filed a dependency petition pursuant to section 300, subdivision (b)(1). The petition alleged that both mother (who is not a party to this appeal) and minor tested positive for amphetamines at the time of minor's birth in March 2020. According to the petition, mother's untreated substance abuse problem placed minor at substantial risk of physical harm, abuse, and/or neglect. The mother denied using drugs but agreed to voluntary drug testing. Mother and father, who planned to live with the baby at the maternal great-grandparents' home, also agreed to a safety plan that included informal supervision.
In May 2020, the court ordered mother to participate in services, including alcohol and drug testing. The court allowed minor to remain in mother's care.
The Department filed an amended petition in June 2020 under section 300, subdivision (b)(1), alleging mother failed to abide by the court's orders or engage in the safety plan. Earlier that month, mother had tested positive for methamphetamine and amphetamine, and she also failed to test as directed. Later that month, the court denied the Department's request for protective custody. In a June 2020 report, the social worker noted father was living with mother and minor at the maternal great-grandparents' home. Father said he did not have a working cell phone, but he could be contacted through mother's phone. Subsequent attempts to contact mother and father through mother's phone were unsuccessful.
During a June 2020 hearing, the court ordered minor detained and found father to be the presumed father. The court noted father had designated a mailing address on the JV-140 form, which was filed with the court on June 26, 2020. The court advised father that the court and the Department would use the designated mailing address for the purpose of notice of hearings and mailing all documents related to the proceedings. In addition, father was required to file with the court and serve upon the Department written notification of any change of mailing address. Father was present during the hearing.
In an August 2020 report, the social worker noted father was currently living between the maternal great-grandparents' home and the paternal great-aunt's home. Father had not yet provided the parental great-aunt's address to the Department. Father was participating in some services, including parenting classes and drug testing. Father also attended two visits with minor.
In a September 2020 report, the social worker noted that father appeared to be living with mother at the home of the maternal great-grandparents. Still, father had not yet provided the Department with the address of his formal residence. Father was inconsistent with his services and failed to drug test or follow through with counseling and substance abuse treatment. Father also failed to visit consistently with minor. The report recommended against placing minor with father.
Father was not present at the September 2020 jurisdiction/disposition hearing, although he was represented by counsel. The court sustained the petition and adjudged minor to be a dependent child of the court. The court also found that there would be substantial danger to minor's physical or emotional well-being if he were to live with father. The court ordered services and visitation for mother and father. The court set a six-month review hearing (§ 366.21, subd. (e)) on February 22, 2021. A copy of the minute order from the hearing was provided to counsel and mailed to father at the address he provided on the JV-140 form.
The required report for the six-month review was not filed in time, so, on February 22, 2021, the court continued the matter to March 8, 2021. On February 24, 2021, a copy of the minute order (which included the new hearing date) was provided to counsel and mailed to father at the address he provided on the JV-140 form.
The Department filed a status review report on February 26, 2021. The report recommended continuing services for mother but terminating services for father, given his lack of progress and inconsistent visitation. Father had completed parenting classes and an alcohol and other drug (AOD) assessment, but he had not engaged in substance abuse treatment or general counseling. Father had been discharged from his outpatient treatment program in August 2020 because he had missed his treatment sessions. His visits with minor were inconsistent, and he only had three in-person visits from September through December 2020, and no visits in January 2021. Father told the social worker he wanted to reunite with minor. The social worker reported mother and father were living with the maternal great-grandparents. The report listed mother's address as confidential and father's address as a post office box. Between September and December 2020, father had six face-to-face contacts with the social worker and three telephone contacts. Still, the social worker unsuccessfully attempted to reach father five times between September and December 2020, and two additional times in January 2021.
The report noted father was provided notice of the hearing by certified or return receipt requested on January 29, 2021. The record does not contain a copy of a form JV-280 indicating notice was provided of the six-month review hearing, nor does it contain a copy of a form JV-510 indicating the Department sent father a copy of the report.
Father was not present at the March 8, 2021, hearing, although he was represented by counsel. The court found notice of the date, time, and location of the hearing was given as required by law. Father's counsel objected to terminating father's services, arguing the court could not do so without also terminating mother's services and setting a hearing to terminate parental rights. (§ 366.26.) The court found father's progress was minimal and terminated his services. The court ordered continued services for mother and set the matter for a 12-month review hearing in June 2021. (§ 366.21, subd. (f).)
Father timely appealed. Father's counsel prepared his notice of appeal and provided the same address for father as was provided on the JV-140 form.
DISCUSSION
Despite the juvenile court's finding that notice had properly been given for the hearing, father contends the orders should be reversed because the Department failed to give him the required notice of the review hearing and failed to provide him with a copy of the Department's status review report. We disagree.
A presumed father must be provided notice of a six-month review hearing no more than 30 or less than 15 days before the hearing. (§§ 366.21, subd. (b), 293, subd. (c).) The Department must also file and provide a parent with a copy of any supplemental report at least 10 calendar days prior to the hearing. (§ 366.21, subd. (c).)
Despite father's contentions, substantial evidence supports the trial court's finding that notice had properly been given, including a copy of the Department's status report. The Department stated in its status report that it had provided father with notice of the hearing on January 29, 2021, by certified or return receipt requested, which is within the required time frame for the original hearing date. On February 24, 2021, the juvenile court also notified father of the changed hearing date. And, the Department filed its status report on February 26, 2021, which is 10 calendar days prior to the hearing. Although the record does not contain a copy of the actual notice that was sent or a copy of forms JV-280 and JV-510, we decline father's invitation to presume error, especially since his counsel did not object during the hearing. (See Evid. Code, § 664 [we presume that the duty to send notice was properly performed]; see also In re James F. (2008) 42 Cal.4th 901, 918 ["[w]e assume that juvenile courts make every effort to follow required procedures"].)
Regardless, as explained in In re A.D. (2011) 196 Cal.App.4th 1319, any failure to provide notice of a hearing and a required report is harmless where there was "no basis" for further services in light of the parent's "fail[ure] to participate meaningfully in [his or] her case plan or maintain contact with the social worker." (Id. at p. 1327.) Here, although father said he wanted to reunite with minor and had completed parenting classes and an AOD assessment, he had not engaged in substance abuse treatment or general counseling. He also visited with minor inconsistently, with only three in-person visits between September 2020 and January 2021. Father also did not maintain regular contact with the social worker. Given this record, there was "no basis on which the juvenile court could have found more services would have been in [minor's] best interests." (Ibid.)
While father contends any error was structural and per se reversible, our Supreme Court "has cautioned against using the structural error doctrine in dependency cases." (In re A.D., supra, 196 Cal.App.4th at p. 1326; see In re James F., supra, 42 Cal.4th at p. 918.) Accordingly, we conclude the present case is amenable to a harmless error analysis.
DISPOSITION
The juvenile court's orders are affirmed.
We concur: HULL, Acting P. J., KRAUSE, J.