Alexandra S. v. Super Ct.

Filed 8/8/07 Alexandra S. v. Super Ct. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL - FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

PROCEEDINGS in mandate after referral to a Welfare and Institutions Code section 366.26 hearing. Cynthia Bashant, Judge. Petition denied.

Alexandra S. seeks review of a juvenile court order setting a hearing under Welfare and Institutions Code section 366.26.^[1] She contends the San Diego Health and Human Services Agency (Agency) did not exercise a reasonably diligent parent search for her and therefore, the court erred when it found that her whereabouts were unknown. Alexandra also asserts she did not receive proper notice of the six-month review hearing or of the Agency's recommendations to bypass reunification services and set a section 366.26 hearing.

FACTUAL AND PROCEDURAL BACKGROUND

Alexandra S. gave birth to a baby girl in March 2006. She advised hospital personnel she was interested in voluntarily relinquishing her parental rights and placing the child for adoption. Noreen Harmelink, an Agency social worker, met with Alexandra the day after the baby's birth. Alexandra signed a voluntary placement agreement and chose an adoptive family for her daughter. At Alexandra's request, the baby was placed directly with the prospective adoptive family Alexandra had selected. The family named the baby "Mia."

Alexandra informed the social worker that her family, including her husband and two children, had not been aware of her pregnancy. Alexandra did not want them to know of the child's birth. She and Harmelink discussed the need to complete the relinquishment documents, and Alexandra said she would contact the social worker. She gave Harmelink her date of birth, social security number and current address, but told her that she would be moving. Alexandra also gave the social worker her aunt's telephone number.

When Alexandra did not contact her, Harmelink telephoned the aunt's home and left messages for Alexandra on March 23, April 6, and May 9, 2006. On May 9, Harmelink received a voicemail message from Alexandra, stating that she would contact the social worker in person or by telephone by the end of that week. Alexandra asked Harmelink not to contact her at the aunt's home.

Harmelink did not hear from Alexandra. On September 1, 2006, Harmelink telephoned the aunt's home and spoke to Alexandra's cousin. The cousin did not have an address for Alexandra but said the Agency could send mail to Alexandra at the aunt's home at 4225 F[] Street.^[2] On September 5, Harmelink went to the address Alexandra had given her, but she did not find anyone at the home.

On September 6, 2006, the Agency filed a petition under section 300, subdivision (g), alleging the whereabouts of the parents of Babygirl S. ("Mia") were unknown
and reasonable efforts to locate the parents were unsuccessful.^[3] On September 12 the clerk of court sent notice of the petition to Alexandra at 4225 C[] Avenue. On September 22, the Agency sent notice of its recommendation to bypass reunification services and set a section 366.26 hearing to Alexandra at 4221 F[] Street, the address identified through its parent search for Alexandra.

On September 26, 2006, the court found that reasonable search efforts were made to locate and notify the parents of the dependency proceedings. The court made a true finding on the petition. On October 2, the court placed "Mia" with the prospective adoptive family and bypassed reunification services under section 361.5, subdivision (b)(9). The court set a section 366.26 hearing for January 29, 2007. The clerk of court sent the certificate of service of order and findings to Alexandra at 4225 C[] Avenue and 4221 F[] Street.

In December 2006 the Agency filed a petition for modification under section 388, seeking modification of the court order bypassing reunification services under section
361.5, subdivision (b)(9).^[4] The Agency sent notice of its section 388 petition to "Alejandra S[]" at 4221 F[] Street. On January 9, 2007, the court granted the Agency's section 388 modification hearing, and ordered the Agency to conduct a reasonable search for the parents and to provide a case plan as soon as the parents were located. The court set a six-month review hearing for March 26, and asked the Agency to submit a report of its parent search efforts at that hearing.

At the six-month review hearing held on March 26, 2007, the court found that the whereabouts of the parents remained unknown and that, at the previous hearing, no services had been provided to the parents under section 361.5, subdivision (b)(1). The court set a section 366.26 hearing for July 23, 2007. On March 27, the clerk of court sent the certificate of order and findings and explanation of right of rehearing and appeal rights to "Alejandra [S.]" at 4225 M[] Avenue.

On April 27, 2007, Alexandra filed a notice of intent to file a writ petition (notice of intent) and filed a request for appointed counsel. She listed her address on both forms as 4451 M[] Avenue. On May 7, 2007, this court dismissed the writ proceeding as untimely filed.

On May 14, 2007, at a special hearing, Alexandra appeared in court with a retained attorney who was not certified in juvenile law. (See  317.6; Super. Ct. San Diego, Local Rules, rules 6.3.1 through 6.3.4, ch. 3, discussing "Attorney Screening and Standards of Representation" in juvenile dependency court.) Alexandra filed a written waiver of her right to be represented by a certified juvenile dependency attorney.

On May 14, 2007, Alexandra filed a second notice of intent challenging the court's order of March 26. She attached the court's order of May 14 to her notice of intent, which showed the March 26 order had been sent to 4225 M[] Avenue, rather than to her actual address at 4451 M[] Avenue. Because of the discrepancies in the addresses, out of an abundance of caution, this court did not dismiss the case as untimely. On May 31, in its order to show cause, this court noted the record had been prepared and lodged with this court, and directed the petitioner to file the writ petition within 10 days of the date of its order.

On June 25, 2007, the Agency filed a motion to strike Alexandra's petition for extraordinary writ for failure to cite to the record as required by California Rules of Court, rule 8.452(b)(3).^[5]On June 27, this court granted the motion to strike the petition and memorandum of points and authority, and granted Alexandra five days in which to file a new petition and memorandum complying with rule 8.452.^[6]Alexandra filed a petition for extraordinary writ and memorandum, the Agency responded, and the parties waived oral argument.

DISCUSSION

A

Introduction

Alexandra contends the Agency did not exercise reasonable diligence when it tried to locate her and therefore the court erred when it set a section 366.26 hearing to select and implement a permanency plan for "Mia." She also argues she did not receive notice of the six-month review hearing or of the Agency's recommendations to bypass reunification services.

The Agency contends Alexandra's second notice of intent was untimely and should be dismissed. The Agency asserts the court correctly determined that Alexandra's whereabouts were unknown, and thus the court did not err when set the section 366.26 hearing.

B

Timeliness

Absent some showing of good cause, the timelines for the filing of a notice of intent to file a writ petition under rule 8.452 are mandatory. (Rule 8.450(e).) If the party was notified of the order setting the hearing only by mail, as here, the notice of intent must be filed within 12 days after the date the clerk mailed the notification. (Rule 8.450(e)(4)(B).) The reviewing court may grant extensions of time under these rules for exceptional good cause. (Rule 8.450(d); see, e.g., Jonathan M. v. Superior Court (1995) 39 Cal.App.4th 1826, 1831, and In re Cathina W. (1998) 68 Cal.App.4th 716, 722-723 [recognizing that a late notice of intent may be filed on a showing of exceptional circumstances not under the petitioner's control].)

Here, the information contained in Alexandra's second notice of intent showed the March 26, 2007, order setting a section 366.26 hearing was sent to 4225 M[] Avenue, rather than to her actual address at 4451 M[] Avenue. Because of the possibility Alexandra did not receive timely notice of the March 26 order and her right to file a notice of intent, this court did not dismiss the second notice of intent as untimely. In addition, the Agency did not object to this court's order of June 27, directing Alexandra to file a new petition and memorandum of points and authorities within five days, which she did. We conclude there is some showing of good cause and we decline to dismiss the notice of intent as untimely. (Jonathan M. v. Superior Court, supra, 39 Cal.App.4th at p. 1831; In re Cathina W., supra, 68 Cal.App.4th at pp. 722-723.)

C

The Agency Conducted A Reasonably Diligent Search For Alexandra

Alexandra contends the Agency did not conduct a reasonably diligent search for her. She argues insufficient evidence supports the court's finding her whereabouts were unknown.

In assessing whether substantial evidence exists, we view all factual matters in the light most favorable to the prevailing party, resolving all conflicts and indulging all reasonable inferences from the evidence to support the judgment. (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053.) The evidence must be reasonable in nature, credible, and of solid value. (DiMartino v. City of Orinda (2000) 80 Cal.App.4th 329, 336.) The party challenging the finding bears the burden of showing that there is insufficient evidence to support the ruling. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

Family reunification services play a critical role in dependency proceedings. (In re Alanna A. (2005) 135 Cal.App.4th  555, 563.) Unless a specific statutory exception applies, the juvenile court must provide services designed to reunify the family within the statutory time period.^[7] ( 361.5, subds. (a), (b); 360; 42 U.S.C.  629a(a)(7); see Alanna A., supra, at p. 563-564.) The statutory exceptions to providing reunification services under section 361.5, subdivision (b) have been referred to as reunification "bypass" provisions. (See, e.g., Francisco G. v. Superior Court. (2001) 91 Cal.App.4th 586, 595; Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 874.)

Here, the applicable exception to providing reunification services states:

"Reunification services need not be provided to a parent . . . when the court finds, by clear and convincing evidence, . . .[] . . . [t]hat the whereabouts of the parent or guardian is unknown. A finding pursuant to this paragraph shall be supported by an affidavit or by proof that a reasonably diligent search has failed to locate the parent or guardian. The posting or publication of notices is not required in that search." ( 361.5, subd. (b)(1).)

As the Agency points out, section 361.5, subdivision (b)(1) does not necessarily bypass reunification services; rather, it relieves the court and Agency from mandatory reunification efforts as long as the parent's whereabouts remain unknown. Section 361.5, subdivision (d) provides: "If reunification services are not ordered pursuant to paragraph (1) of subdivision (b) and the whereabouts of a parent become known within six months of the out-of-home placement of the child, the court shall order the social worker to provide family reunification services in accordance with this subdivision."

At the special hearing on January 9, 2007, the court granted the Agency's petition to modify the disposition order bypassing reunification services under section 361.5, subdivision (b)(9). The court ordered the Agency to conduct "a reasonable search to locate and notify PARENTS of these proceedings" and to provide a case plan for the parents as soon as they were located. This order was fully consistent with the requirements of section 361.5, subdivisions (b)(1) and (b)(9).

At the six-month review hearing on March 26, 2007, the court found "[t]hat the child was declared a dependent child of the Juvenile Court under Section 300(g) . . . and that by clear and convincing evidence the whereabouts of the parents are still unknown." The record shows the court's finding that the parents' whereabouts were unknown was adequately supported by proof that a reasonably diligent search had failed to locate the parent, as required by section 361.5, subdivision (b)(1).

In the report prepared for the six-month review hearing, Harmelink stated she received the final parent search results from the Agency's parent search clerk on January 2, 2007. On January 19, Harmelink attempted to notify Alexandra of the opportunity to receive reunification services by mailing a letter to Alexandra at the address identified by the most recent parent search, 4221 F[] Street, which was the address next door to Alexandra's aunt. The letter was returned to the social worker, with a new address noted of 4225 M[] Avenue.

On February 15, Harmelink personally visited the three addresses she had on file for Alexandra: 4221 F[] Street, 4225 C[] Avenue, and 4225 M[] Avenue. Harmelink did not obtain any information about Alexandra at these addresses. However, when she was at 4221 F[] Street, she went next door to the home of Alexandra's aunt at 4225 F[] Street. Alexandra's cousin said she did not know where Alexandra lived. Harmelink left her name and telephone number and asked the cousin to give the information to Alexandra.

We conclude the court's finding that Alexandra's whereabouts were unknown is supported by substantial evidence. The Agency's parent search unit conducted a search in September 2006 and January 2007. Although, as Alexandra points out, the procedures and results of the parent searches are not detailed in the record, the Agency had Alexandra's social security number, date of birth, last known address and an address of a relative. We infer the searches were conducted according to the Agency's customary procedures. In addition to the parent searches, social worker Harmelink personally visited the homes at the addresses she had on file for Alexandra, and asked the current tenants for information about Alexandra's whereabouts. Harmelink also went to the home of Alexandra's aunt and left a message for Alexandra. The social worker persevered in her efforts to locate Alexandra, and the record clearly supports the finding that the Agency's efforts were reasonably diligent.^[8]

The Agency instituted dependency proceedings only when its efforts to locate Alexandra were unsuccessful. As the court's jurisdictional findings indicate, Alexandra's whereabouts were unknown in September 2006. In addition to the social worker's efforts to locate Alexandra, the clerk of court or the Agency attempted to notify Alexandra of every hearing in the dependency proceedings concerning her daughter. As discussed above, Alexandra's whereabouts were still unknown in March 2007, despite the efforts to contact and locate her. As a dependent of the juvenile court, "Mia" was entitled to a determination of her permanency plan within the statutory time frame. ( 361.5, subd. (a)(2), 366.21, 366.22, 366.26; In re Dakota H. (2005) 132 Cal.App.4th 212, 228 ["If reunification is not possible within the statutory timeframe, the child must be provided a stable, permanent home by adoption, guardianship or placement in long-term foster care"].) The court did not err when it referred the case to a permanency plan selection and implementation hearing under section 366.26.

Alexandra also asserts the court erred when it set a section 366.26 hearing before "the statutory period had expired." She does not support her argument with citation to supporting authority. (Rule 8.452(b)(2); McComber v. Wells (1999) 72 Cal.App.4th 512, 522-523.)

Even were we to assume Alexandra is referring to the six-month statutory period under section 361.5, subdivision (d), which directs the court to offer reunification services to a parent whose whereabouts become known within six months of the out-of-home placement of the child, we would not be persuaded by her argument. The record shows Alexandra's whereabouts were not known to the juvenile court until April 27, 2007, when she filed her first notice of intent. Thus Alexandra's whereabouts were unknown for more than six months after the court placed "Mia" in out-of-home care at the disposition hearing on October 2, 2006. ( 361.) Error, if any, was harmless.

D

The Claim of Inadequate Notice Is Forfeited on Review

Citing section 388, Alexandra requests this court vacate the March 26, 2007, order setting a section 366.26 hearing. She contends she did not receive notice of the six-month review hearing or of the Agency's recommendations to bypass reunification services until after the hearing had occurred.

Here, Alexandra's reliance on section 388 is misplaced. The reviewing court does not decide questions of fact. (In re Zeth S. (2003) 31 Cal.4th 396, 405 [the trial court decides questions of fact; the appellate court decides questions of law].) A petition for modification under section 388 is filed in the trial court. ( 388; rules 5.560, 5.570.) Had Alexandra filed a petition for modification under section 388, the trial court could have considered her claim that she did not have adequate notice of the six-month review hearing or of the Agency's recommendations to bypass reunification services. The trial court's findings of fact and conclusions of law would then be subject to review by this court. ( 395.)

A party forfeits the right to claim error as a ground for reversal on review when he or she did not raise the objection in the trial court. (In re Dakota H., supra, 132 Cal.App.4th at pp. 221-222.) Alexandra did not raise the issue of inadequate notice in the trial court through the mechanism of a section 388 petition. (In re Justice P. (2004) 123 Cal.App.4th 181, 189 ["A section 388 motion is a proper vehicle to raise a due process challenge based on lack of notice"].) She has forfeited this issue on review.

DISPOSITION

The petition is denied.

BENKE, Acting P. J.

WE CONCUR:

McDONALD, J.

O'ROURKE, J.

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^[1] Unless otherwise specified, all statutory references are to the Welfare and Institutions Code.

^[2] For purposes of confidentiality, initials are used to designate the names of streets and avenues mentioned in this opinion. The same initial represents the same street or avenue.

^[3] The Agency initiated a parent search through International Liason Child Welfare Services for the presumed father and the alleged father of the baby. The Agency also notified the Mexican Consulate of the dependency proceedings. On March 8, 2007, the International Liaison notified the Agency that it did not have sufficient information to conduct a search for the fathers, and asked the Agency to resubmit the request with more information.

^[4] Section 361.5, subdivision (b)(9), allows the court to deny reunification services to a parent who has willfully abandoned a child. By its express terms, this subdivision excludes "actions taken in good faith by the parent without the intent of placing the child in serious danger" and does not apply to a parent who voluntarily places a child with the Agency for adoption. (Ibid.)

^[5] Further rule references are to the California Rules of Court, unless otherwise specified.

^[6] "Trial counsel is encouraged to seek assistance from, or consult with, attorneys experienced in writ procedures." (Rule 5.600(g); see, generally, Glen C. v. Superior Court (2000) 78 Cal.App.4th 570, 584.)

^[7] If a child is under three years of age at the time of the initial removal from parental custody, as here, court-ordered services must not exceed a period of six months from the date the child entered foster care. ( 361.5, subd. (a)(2).)

^[8] The record also supports the finding Harmelink's efforts to locate Alexandra were exceptionally diligent.