Opinion
F081074
09-21-2020
In re K.W., a Person Coming Under the Juvenile Court Law. TULARE COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. DANIELLE D., Defendant and Appellant.
Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and Appellant. Deanne H. Peterson, County Counsel, John A. Rozum and Amy-Marie Costa, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JJV067077H)
OPINION
THE COURT APPEAL from an order of the Superior Court of Tulare County. Hugo J. Loza, Judge. Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and Appellant. Deanne H. Peterson, County Counsel, John A. Rozum and Amy-Marie Costa, Deputy County Counsel, for Plaintiff and Respondent.
Before Peña, Acting P.J., Meehan, J. and De Santos, J.
-ooOoo-
In this juvenile dependency case, mother, Danielle D. (mother), appeals from the juvenile court's order terminating her parental rights as to minor K.W. pursuant to Welfare and Institutions Code section 366.26. Mother contends she was not properly noticed of the section 366.26 hearing and as such the order terminating her parental rights must be reversed. We affirm.
All further undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
When K.W. was born in June 2019, Child Welfare Services of the Tulare County Health and Human Services Agency (agency) received an immediate response referral stating concerns regarding mother and father, Roy W.'s, ability to provide for K.W. because they had been homeless for over a year and mother had seven other children who were no longer in her care due to previous juvenile dependency actions. Both parents had a lengthy child welfare history stemming from issues of substance abuse, domestic violence, and mother's mental health issues as recent as the previous year. K.W. was detained, but following a "Team Decision Meeting," K.W. was released to the care of mother.
On June 14, 2019, the agency filed a dependency petition on behalf of K.W. alleging he came within the jurisdiction of the juvenile court under section 300, subdivisions (b)(1) and (j). It was alleged under section 300, subdivision (b)(1) that father's substance abuse rendered him unable to provide K.W. with regular care; specifically, it alleged father had used methamphetamine "[o]n or near February 2019, and other occasions." The petition further alleged under section 300, subdivision (j) several prior instances of dependency proceedings relating to K.W.'s siblings and half siblings.
At the detention hearing on June 14, 2019, the court declined to order K.W. be detained but set the matter for a combined jurisdiction and disposition hearing, noting the agency's case was not strong at that point. Mother informed the court she had signed up for services.
In its initial jurisdiction/disposition report, the agency recommended the petition be found true and the parents be granted six months of family maintenance services, including mental health, parenting education, and substance abuse.
On July 5, 2019, the date set for the combined jurisdiction/disposition hearing, mother contested jurisdiction. The court continued the matter and ordered the parents to drug test that day and submit to random drug testing pending jurisdiction with no objection from the parents. The parents were advised to notify the social worker of any new addresses in writing by submitting a notification of mailing address form (JV-140). On July 9, 2019, the parents filed JV-140 forms indicating their mailing address was an apartment in Visalia, California.
The agency subsequently filed an addendum report, which stated that mother had tested negative for drugs on July 10, 2019, but had failed to show for testing on July 12 and 16, 2019. Father failed to show for drug testing on July 12, 13, 15, 16, and 17, 2019. On July 9, 2019, he refused to test and on July 10, 2019, he tested positive for THC. Mother's call-in compliance was reported as 90%, and father's was reported as 30%.
Neither parent was present at the contested jurisdiction/disposition hearing on July 23, 2019. The court granted a continuance because mother had reported a "family emergency." The parents failed to appear at the continued hearing on July 30, 2019. Mother's counsel informed the court that on the last court date, mother had left a message saying she had a "family emergency" but did not further elaborate. Mother's counsel subsequently was not able to get a hold of her after several attempts to inform her of the new date but did inform her by letter mailed to mother's address of record.
The court found the allegations under section 300, subdivision (b)(1) not true and the allegations under section 300, subdivision (j) true. The court continued the disposition portion of the hearing so the parents could be present.
When the social worker attempted to mail a copy of the addendum report to the parents' address of record in Visalia, it was returned with a return to sender/unable to forward sticker on the front of the envelope. The social worker later learned the parents had abandoned the Visalia apartment. The social worker could not make contact with or locate the parents after several attempts until August 14, 2019, when the agency received a referral from law enforcement alleging neglect. Mother, father, and K.W. were found living at a river. It was 100 degrees outside, and K.W. was wrapped in a thick blanket. K.W. was malnourished, sunburned, had diaper rash and insect bites on his body, had dirty finger and toenails, his belly button and neck were sore and irritated, and there were several unexplained scabs on his head. Mother and father were under the influence of methamphetamine. K.W. was placed in protective custody.
On August 15, 2019, the agency filed a subsequent petition pursuant to section 342 alleging K.W. came within the court's jurisdiction under section 300, subdivision (b)(1) as described above.
At the detention hearing on the section 342 petition held on August 16, 2019, the parents' attorneys were present, but the parents were not. The court ordered K.W. detained and set a combined jurisdiction/disposition hearing on the section 342 petition. The court granted mother and father one supervised visit per week for two hours.
In its jurisdiction/disposition report on the section 342 petition, the agency recommended the petition be found true and that K.W. be adjudged a dependent of the juvenile court. The agency recommended both parents be bypassed for reunification services because multiple bypass provisions applied and that a section 366.26 hearing be set. The anticipated permanent plan was adoption. The parents had not participated in any referred services.
On August 21, 2019, mother contacted the social worker. The social worker verbally noticed her and advised her of the jurisdiction/disposition hearing. Mother told the social worker she did not have transportation to get to the hearing, and the social worker responded that she could provide a bus pass or transport them. Mother asked the social worker what was going to happen with the case because she wanted to move to Portland. Mother told the social worker her address was on Crabtree Avenue in Porterville. Mother advised the social worker she had left the Visalia apartment address that was listed on her JV-140 form. The social worker advised mother the agency's intent was to deny her and father services and move towards adoption for K.W. The social worker mailed notice of the jurisdiction/disposition hearing to the parents at the address in Porterville given by mother.
The parents were not present at the jurisdiction/disposition hearing held on September 6, 2019. The parents' attorneys advised the court they had had no contact with the parents. The court found the allegations in the section 342 petition true and noted the parents had not made any appearances on the section 342 petition. The court granted the request to vest K.W.'s Court Appointed Special Advocate with educational and developmental rights because it "needs to be the case, based on [the parents'] lack of involvement." The court set the matter for disposition and granted mother and father one supervised visit per month for one hour.
K.W. was placed with his paternal aunt on September 12, 2019. The agency's disposition report stated K.W.'s care providers had created a strong bond with K.W. and planned to adopt K.W. K.W.'s paternal aunt informed the social worker that mother reached out to them through social media and advised them she and father were in a shelter in Portland, Oregon.
At the disposition hearing on November 5, 2019, the parents were not present, and counsel for both parents submitted on the documents. The court denied reunification services pursuant to section 361.5, subdivisions (b)(10), (11), and (13) as recommended by the social worker and set a section 366.26 hearing.
On November 5, 2019, mother filed a financial declaration with the court with an address on Morton Street in Porterville listed as her address.
On December 16, 2019, notice of the section 366.26 hearing to the parents was attempted by mail to the Visalia address still of record with the court, but the envelope was misaddressed. USPS tracking data indicates the notice was "delivered, to original sender."
Mother called the social worker on December 26, 2019, and left a message requesting her attorney's contact information. The social worker was unable to call mother back because mother had left a number to a shelter. On February 6, 2020, mother called the social worker again, and reported she and father were staying at a shelter in Oregon. Mother reported she and father left for Oregon after K.W. was detained. Mother told the social worker she did not understand why K.W. was detained and that it was because the police officer did not like her. Mother gave the social worker a mailing address on 4th Street in Porterville. The social worker told mother and father the date, time, and location of the hearing, and they reported they would be coming to California for the hearing. The social worker informed mother they were granted one visit per month with K.W. Mother reported she would call the social worker to arrange a visit once they arrived in California but never did. Mother and father did not visit K.W. after he was detained.
An adoptions assessment was completed and K.W. was deemed adoptable. K.W. was reported as thriving in his current placement, and his relative care providers planned to adopt him. The agency's section 366.26 recommendation was termination of parental rights and that adoption with the current care providers as the most appropriate permanent plan. A proof of service of the section 366.26 report was completed for the parents indicating the report was served by first class mail to a "confidential address" the day before the hearing.
The parents were not present at the section 366.26 hearing on February 25, 2020. Counsel for the agency argued K.W. was "clearly adoptable" and that no exception to adoption applied. The court addressed the relative care providers and asked how K.W. was doing. The care providers informed the court he was meeting his milestones and doing great and that they kept in contact with his siblings' foster parent. The other parties submitted on the documents. The juvenile court found K.W. adoptable and that no exception to termination of parental rights applied, and therefore terminated the parents' parental rights and freed K.W. for adoption.
Mother appealed the court's order terminating her parental rights.
DISCUSSION
Mother's sole argument on appeal is that the order terminating her parental rights must be reversed for insufficient notice of the section 366.26 hearing. Mother raises several issues to this effect. She notes the written notice with the statutorily required information mailed by the agency was not addressed properly and was returned, and mother was never subsequently given notice in one of the statutorily approved methods; for these reasons, she also asserts notice was untimely. (§ 294, subds. (c)(1) & (f).) She contends the social worker's oral notice was fatally deficient because there was no evidence on the record it contained the social worker's recommendation of adoption and termination of parental rights nor other statutory requirements. (§ 294, subd. (e)(1)-(6).) In any event, mother points out the social worker's oral notice was untimely as well. Mother also argues the agency erred by failing to send proper notice when they were advised of mother's current mailing address and by failing to do due diligence to locate mother. Mother contends the notice defects constitute structural error which automatically requires reversal.
Respondent first contends mother forfeited the issue below by failing to raise it at trial. In the alternative, respondent concedes error but asserts the error was not structural but rather must be analyzed under a harmless beyond a reasonable doubt standard. Applying this standard, respondent notes that mother had actual notice of the hearing and that proper notice would not have affected the outcome of the case; thus, any error was harmless.
Without deciding whether mother forfeited her claim based on a failure to object, we conclude mother's claim fails on its merits. We agree there are several deficiencies in notice and accept respondent's concession of error. We agree with respondent that the error is not structural in nature and per se reversal is not required. We conclude any errors regarding notice of the section 366.26 hearing in this case were harmless beyond a reasonable doubt.
To support her contention the error is structural and requires per se reversal, mother cites In re Jasmine G. (2005) 127 Cal.App.4th 1109, 1114-1116 (Jasmine G.). In Jasmine G., the parent missed several hearings; the social worker, however, was in regular contact with the parent and had her current address but never attempted to give her notice of the section 366.26 hearing. (Jasmine G., at pp. 1117-1118.) The Jasmine G. court held that "the failure to attempt to give a parent statutorily required notice of a selection and implementation hearing is a structural defect that requires automatic reversal. It denies a parent the opportunity to confer with her attorney, prepare her case, or defend against the loss of parental rights." (Id. at p. 1116.)
Mother also cites In re Anna M. (1997) 54 Cal.App.4th 463 (Anna M.), where the appellate court reversed an order terminating parental rights where the court orally notified the parent of the section 366.26 hearing but indicated that the likely permanent plan would be guardianship. (Id. at pp. 468-469.) Due to an unforeseen medical emergency of the prospective guardian, the agency changed its recommendation to adoption and termination of parental rights. (Id. at pp. 466-467.) The parent, who was described as having a "strong bond" with the children was never notified of the change in recommendation and her parental rights were subsequently terminated at the hearing. (Id. at p. 469.) The Anna M. court suggested the error was structural in nature by noting the respondent argued "without citation to illuminating authority, '[a]ny possible prejudice that might have resulted does not necessitate reversal" and then explaining that "even assuming [the appellant] must show prejudice in face of such a fundamentally flawed procedure, we have no trouble finding prejudice" where the parent had no knowledge of "the true nature of what might happen at the section 366.26 hearing," and the court had concluded the parent was absent due to lack of interest in her child's welfare. (Ibid.)
We first note the error here does not rise to the level of that in Jasmine G. and Anna M. In Jasmine G., the parent had no notice of the hearing. In Anna M., the parent had no notice of the new recommendation that her parental rights be terminated and had expressly been told the likely permanent plan would be guardianship. In both cases, neither the juvenile courts nor the departments made any effort to notify these parents of these critical pieces of information. Here, though we recognize the deficiencies in notice, it is undisputed mother had actual notice of the hearing date and was aware the agency was moving toward adoption as the recommended permanent plan for K.W. Mother even told the social worker she would attend the hearing. We are not persuaded by mother's contention that Jasmine G. and Anna M. are on point.
These distinguishing facts aside, we decline to apply Jasmine G. and Anna M. to the notice deficiencies here in light of more recent California Supreme Court authority cautioning against the application of the structural error doctrine in dependency cases. In In re James F. (2008) 42 Cal.4th 901 (James F.), our Supreme Court reviewed a decision of the Court of Appeal holding there was structural error where the trial court failed to explain to a mentally incompetent father the need for, and effect of, appointing a guardian ad litem in a juvenile dependency proceeding. (Id. at pp. 904-905, 911, 916-917.) The James F. Court of Appeal had concluded the father had not suffered actual prejudice but held the notice defect was structural in nature anyway in reversing the juvenile court's order. (Id. at pp. 916-917.) The Supreme Court reversed the Court of Appeal, holding the procedural error was a trial error amenable to harmless error analysis rather than a structural defect requiring reversal without regard to prejudice. (Id. at p. 915.)
In reaching that conclusion, the James F. court explained the concept of structural error was developed in criminal cases. (James F., supra, 42 Cal.4th at p. 914.) The court observed there were differences between juvenile dependency proceedings and criminal proceedings "in ways that affect the determination of whether an error requires automatic reversal of the resulting judgment." (Id. at p. 915.) The court noted that evidentiary rules are more relaxed, certain constitutional rights given to a criminal defendant are not afforded to a parent, there is no right to a jury trial, and the standard of proof is lower. (Ibid.) The court noted, "the ultimate consideration in a dependency proceeding is the welfare of the child [citations], a factor having no clear analogy in a criminal proceeding." (Ibid.)
The James F. court questioned whether "the structural error doctrine that has been established for certain errors in criminal proceedings should be imported wholesale, or unthinkingly, into the quite different context of dependency cases." (James F., supra, 42 Cal.4th at pp. 915-916.) The court discussed that structural errors were generally errors which "def[ied]" harmless error analysis and that errors which could be " 'quantitatively assessed in the context of other evidence presented in order to determine whether [they were] harmless beyond a reasonable doubt' [citation] generally are not structural defects." (Id. at p. 917.) The court explained that application of the structural error doctrine in cases where the error did not "defy" harmless error analysis was rare, and the United States Supreme Court had not applied that reasoning outside the context of criminal proceedings nor found that harmlessness is irrelevant when the right of procedural due process had been violated. (Id. at p. 917.) The court concluded, "We cannot agree with the Court of Appeal majority that prejudice is irrelevant in a dependency proceeding when the welfare of the child is at issue and delay in resolution of the proceeding is inherently prejudicial to the child." (Id. at p. 917.) "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." (Id. at p. 918.)
Mother insists James F. should not be followed here, as there is a difference between a hearing on whether to appoint a guardian ad litem and a hearing at which parental rights may be terminated. Mother points out the James F. court reasoned the father in that case had not lost his right to participate in the case and the appointment of a guardian ad litem provided the father a benefit. (James F., supra, 42 Cal.4th at p. 916.) We appreciate mother's argument, but conclude the error, like the error in James F., is amenable to harmless error analysis. The error here, as demonstrated by the facts of this case as we later discuss, does not defy the application of the harmless error standard, as it does not require " 'a speculative inquiry into what might have occurred in an alternate universe.' " (Id. at p. 915.) We follow the James F. court's caution against applying the structural error doctrine to dependency cases where the paramount concern is the best interest of the child. This concern is particularly present when the proceedings have already reached the stage of selecting a permanent plan for the child. By the time of the section 366.26 hearing, the child's needs for permanency and stability is the primary concern; focus has shifted from reunification. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) At this stage, parental unfitness has been shown and the focus of dependency proceedings is determining proper placement for the child. (In re Z.S. (2015) 235 Cal.App.4th 754, 772.) Delay of permanency at this stage in the proceedings can be especially detrimental to the child. We therefore decline to find structural defect and instead apply a harmless error analysis. (See James F., at p. 918.)
We conclude that under the facts of this case, any error was harmless beyond a reasonable doubt. First, we again point out that mother was aware of the date of the hearing and the agency's intent to recommend adoption, and stated she would attend the hearing. As she had not participated in the dependency proceedings since K.W. was detained, had not visited or attempted to visit K.W., and failed to appear at other properly noticed hearings, it can be inferred from the record she chose not to attend and that proper notice would have had no effect on whether she participated in the section 366.26 hearing.
Further, there is no reasonable doubt the outcome here would not have been any different had mother been present. At a section 366.26 hearing, if the court finds by clear and convincing evidence the child is adoptable, " ' "termination of parental rights ... is relatively automatic." ' " (In re Z.S., supra, 235 Cal.App.4th at pp. 772-773.) That is, the court must terminate parental rights unless the parents can show a statutory exception applies by clear and convincing evidence. (§ 366.26, subd. (c)(1)(B).) Mother does not argue that K.W. would not have been found adoptable or that her parental rights would not have been terminated had she been present. Here, the juvenile court's finding that K.W. was adoptable was supported by the record as he was thriving in his placement with relative care providers who wished to adopt him.
There is no exception to terminating parental rights that could have been argued much less proven by clear and convincing evidence. The exceptions to termination of parental rights are statutorily limited to the following: (1) that the child is living with a relative who is unable or unwilling to adopt the child for reasons not related to unwillingness to accept legal or financial responsibility but is willing and capable of being a legal guardian or (2) that the child would suffer detriment due to one or more of the following circumstances:
(1) The parents have maintained regular visitation with the child and the child would benefit from continuing the relationship;
(2) A child 12 years of age or older objects to termination of parental rights;
(3) The child is placed in a residential treatment facility, adoption is unlikely or undesirable, and continuation of parental rights will not prevent the child a permanent family placement if the parents cannot resume custody when residential care is no longer needed;Here, K.W. was detained from the parents when he was only two months old, and the parents never visited or attempted to visit K.W. during the dependency proceeding. K.W. was living with relative care providers who were willing and able to adopt him. K.W. was clearly under 12 years of age, was not placed in a residential treatment facility, was not facing substantial interference with a sibling relationship, and was not an Indian child. There is no evidence mother could have presented that would have prevented her parental rights from being terminated on this record. For these reasons, there is no reasonable doubt the hearing would not have resulted in the termination of the parents' parental rights. Therefore, any error in notice requirements was harmless, and reversal is not required.
(4) The child is living with a foster parent who is unable to adopt the child because of exceptional circumstances;
(5) There would be substantial interference with a child's sibling relationship; or
(6) Other exceptions that apply to Indian children only. (§ 366.26, subd. (c)(1).)
The juvenile court found the Indian Child Welfare Act (ICWA) did not apply.
DISPOSITION
The juvenile court's order is affirmed.