In re C.T.

Filed 8/29/06 In re C.T. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

Appeals from an order of the Superior Court of Los Angeles County, Joan Carney, Juvenile Court Referee. Affirmed.

John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant James W. Jr.

Jill Regal, under appointment by the Court of Appeal, for Defendant and Appellant Debra C.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and William D. Thetford, Senior Deputy County Counsel, for Plaintiff and Respondent.

Debra C., the mother of C.T. and James W. III, and James W., Jr., the father of James W. III, appeal from an order terminating their parental rights pursuant to Welfare and Institutions Code section 366.26.[1] We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. C.T.’s Detention and Return to Debra’s Custody

C.T. was born in February 2000 with a positive toxicology screen for cocaine. Debra, who had an on-going history of drug use and was homeless, also tested positive for cocaine at C.T.’s birth. As a result, the Los Angeles County Department of Children and Family Services (Department) filed a petition to declare C.T. a dependent child of the juvenile court under section 300, subdivisions (b), (g) and (j),[2] alleging failure to protect, failure to provide support and the risk of abuse or neglect as a consequence of Debra’s abuse or neglect of C.T.’s sibling Devon S., who had previously been declared a dependent child of the court.[3]

At a detention hearing on February 15, 2000 the juvenile court ordered C.T. detained and family reunification services provided. Debra was incarcerated from March to September 2000 on a parole violation. After her release from prison, however, she made substantial progress in her case plan: She participated in counseling, consistently tested negative for drugs, visited C.T. regularly and had married James, Jr., a parolee also with a history of substance abuse, who had completed a parenting class, obtained stable housing and employment and was passing his drug tests. On August 14, 2001 the court returned C.T. to Debra’s custody under Department supervision. Juvenile court jurisdiction was terminated on February 2, 2002.

2. James III’s Initial Detention and Redetention; the Redetentions of C.T.

In December 2002 Debra gave birth to her ninth child, James III. James, Jr. had entered a residential substance abuse program in Los Angeles in May 2003. In June 2003 Debra was arrested in San Diego on charges of theft and possession of drug paraphernalia and for parole violations. C.T. and James III were detained and section 300 petitions were filed on their behalf in San Diego County. On August 15, 2003 the San Diego County juvenile court sustained amended petitions and ordered the matter transferred to Los Angeles County.

In August 2003 Debra entered a 12-month residential drug treatment program affiliated with the California Department of Corrections that required her children be placed with her. At the disposition hearing on November 5, 2003 the juvenile court placed the children with Debra on the condition she remain in the program. The court ordered that she and James, Jr. receive reunification services and complete a drug rehabilitation program and a parent education program as well as participate in individual counseling.^[4]

At a six-month review hearing on March 2, 2004 the Department reported Debra was in compliance with her drug treatment program and progressing well. James, Jr., however, had not visited the children; and there was no evidence he had participated in any of the court ordered programs. The court ordered an additional six months of reunification for Debra and termination of reunification services for James, Jr.

In April 2004 Debra tested positive for alcohol. Pursuant to the terms of the drug treatment program, she was returned to prison. The children were again detained and placed in the foster home of Cherry H. Shortly thereafter Debra entered a sober living transitional housing program in Los Angeles; but in September 2004 she was detained in San Diego by her parole officer and subsequently failed a drug test. At the 12-month review hearing on September 22, 2004 (§ 366.21, subd. (f)), the court terminated reunification services for Debra and set a hearing for January 19, 2005 pursuant to section 366.26 to consider selection and implementation of a permanent plan for C.T. and James III. The court also ordered that a home study be initiated for Cherry H., who had indicated an interest in adopting the children.[5]

4. Efforts to Permanently Place the Children; Termination of Debra’s and

James, Jr.’s Parental Rights

James, Jr. attended the section 366.26 permanency planning hearing on January 19, 2005. Debra failed to attend because she was afraid she would be arrested on an outstanding parole violation warrant. Before the court realized James, Jr. was present, it indicated it could not make a finding of proper notice as to either father;[6] because there was some uncertainty whether Debra had been properly served and the home study had not been completed, the court continued the hearing to April 20, 2005. The court advised James, Jr. it would decide at the next hearing whether adoption by Cherry H., who had been successfully caring for the children, was appropriate and whether his and Debra’s parental rights should be terminated. James, Jr. confirmed he understood; and the court ordered that only courtesy notice need be sent to James, Jr. for the continued hearing.[7]

The section 366.26 hearing was thereafter continued numerous times (from April 20, 2005 to May 18, 2005, to July 13, 2005, to August 31, 2005, to September 21, 2005, to October 12, 2005, to November 16, 2005 and finally to December 16, 2005) without appearances by James, Jr. or Debra, who had been arrested for burglary in April 2005 and was incarcerated. At the July 13, 2005 hearing the Department reported Cherry H. was slow in providing documents necessary for the adoption and little progress had been made in completing her home study. At the September 21, 2005 hearing Cherry H., who had begun vacillating on adoption, confirmed she was not willing to adopt the children but stated she was interested in becoming their legal guardian. By the November 16, 2005 continued hearing the Department had found an approved adoptive family and had begun the placement process. For the December 16, 2005 hearing notice was sent to Debra at prison and to her attorney of record. Notice to James, Jr. was sent to his attorney of record and the worker at the Veterans Administration. Prior notices had also been sent to James, Jr. in care of the worker without objection by James, Jr.’s attorney.

Debra did not attend the December 16, 2005 hearing because no order to transport her from prison had been issued. James, Jr. also did not attend; and it was reported at the hearing he was incarcerated. (Debra had told the Department on December 8, 2005 that he was incarcerated.) Notwithstanding objections by counsel for Debra and James, Jr. to proceeding in their absence, the court terminated their parental rights.

DISCUSSION

1. The Order Terminating Debra’s Parental Rights Was Proper

a. Failure to order Debra transported from prison to the hearing terminating her parental rights was harmless error

Although Debra was properly served with notice of the continued section 366.26 hearing held on December 16, 2005, the Department concedes the juvenile court erred in conducting the hearing and terminating her parental rights without ordering Debra transported from prison or obtaining a waiver or affidavit indicating her intent not to appear pursuant to Penal Code section 2625, subdivision (d).[8] The Department correctly insists, however, the error was harmless because Debra failed to demonstrate any likelihood of prejudice.

In In re Jesusa V. (2004) 32 Cal.4th 588, 624-625, the Supreme Court held the denial of a prisoner’s statutory right to be present at a dependency hearing considering termination of his or her parental rights is subject to harmless error analysis:[9] “[W]e have regularly applied a harmless-error analysis when a defendant has been involuntarily absent from a criminal trial. [Citations.] We do not believe the Legislature intended a different result in the analogous circumstance here, when a prisoner is involuntarily absent from a dependency proceeding.” (Id. at p. 625.) Citing to People v. Watson (1956) 46 Cal.2d 818, 836 and In re Melinda J. (1991) 234 Cal.App.3d 1413, 1419 (lack of strict compliance with statutory notice requirement, in the absence of prejudice, does not render proceedings void), the Court in Jesusa V. at page 625 further held “our familiar harmless-error test” is applicable -- that is, reversal is proper only if “it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (Watson, at p. 836.)

The burden in the first instance is on the appellant to demonstrate prejudice. (See In re Jesusa V., supra, 32 Cal.4th at p. 625 [the appellant “has never asserted that he was actually prejudiced by appearing at the hearing only through his attorney”].) “‘The burden is on the appellant in every case to show that the claimed error is prejudicial; i.e., that it has resulted in a miscarriage of justice.’ [Citation.] Injury is not presumed from error, but injury must appear affirmatively upon the court’s examination of the entire record. ‘But our duty to examine the entire cause arises when and only when the appellant has fulfilled his duty to tender a proper prejudice argument. Because of the need to consider the particulars of the given case, rather than the type of error, the appellant bears the duty of spelling out in his brief exactly how the error caused a “miscarriage of justice.”’” (In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337.) Although arguing the juvenile court erred in proceeding with the section 366.26 hearing on December 16, 2005 without her presence or a valid waiver, Debra fails to present any argument she was actually prejudiced by appearing at the hearing only through her counsel. Accordingly, the presumption the juvenile court’s error in proceeding to terminate her parental rights without her presence or a valid waiver was harmless is unrebutted.[10]

b. Debra has forfeited her argument regarding application of the parent child relationship exception to the termination of parental rights

Section 366.26 directs the juvenile court in selecting and implementing a permanent placement plan for a dependent child. The express purpose of a section 366.26 hearing is “to provide stable, permanent homes” for dependent children. (§ 366.26, subd. (b).) If the court has decided to end parent-child reunification services, the legislative preference is for adoption. (§ 366.26, subd. (b)(1); In re Celine R. (2003) 31 Cal.4th 45, 53 [“if the child is adoptable . . . adoption is the norm. Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances provides a compelling reason for finding that termination of parental rights would be detrimental to the child.”]; see In re Marilyn H. (1993) 5 Cal.4th 295, 307 [once reunification efforts have been found unsuccessful, the state has a “compelling” interest in “providing stable, permanent homes for children who have been removed from parental custody” and the court then must “concentrate its efforts . . . on the child’s placement and well-being, rather than on a parent’s challenge to a custody order”].) When the court finds by clear and convincing evidence that the child is likely to be adopted, the statute mandates judicial termination of parental rights unless the parent opposing termination can demonstrate that one of five enumerated exceptions applies. (§ 366.26, subd. (c)(1); see In re Matthew C. (1993) 6 Cal.4th 386, 392 [when child adoptable and declining to apply one of the statutory exceptions would not cause detriment to the child, the decision to terminate parental rights is relatively automatic].)

To satisfy the parent-child relationship exception to termination set forth in section 366.26, subdivision (c)(1)(A), a parent must prove he or she has “maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(A); see In re Derek W. (1999) 73 Cal.App.4th 823, 826 [“parent has the burden to show that the statutory exception applies”].) The “benefit” prong of the exception requires the parent to prove his or her relationship with the child “promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) “Because a section 366 .26 hearing occurs only after the court has repeatedly found the parent unable to meet the child’s needs, it is only in an extraordinary case that preservation of the parent’s rights will prevail over the Legislature’s preference for adoptive placement.” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.)

Debra contends her close contact with the children throughout the dependency proceedings supports application of the parent-child relationship exception to the termination of parental rights set forth in section 366.26, subdivision (c)(1)(A), and also argues the court erred in failing to ascertain the children’s feelings about their genetic parents, foster parents and prospective adoptive parents pursuant to section 366, subdivision (h)(1).[11] The record fails to demonstrate that Debra occupied a parental role in her children’s lives. (See In re Jasmine D., supra, 78 Cal.App.4th at p. 1350 [“[A] child should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree but does not meet the child’s need for a parent.”].) Moreover, Debra has forfeited this argument because she has raised it for the first time on appeal. (In re Aaron B. (1996) 46 Cal.App.4th 843, 846 [“‘[A] party is precluded from urging on appeal any point not raised in the trial court. [Citation.] Any other rule would “‘”permit a party to play fast and loose with the administration of justice by deliberately standing by without making an objection of which he is aware and thereby permitting the proceedings to go to a conclusion which he may acquiesce in, if favorable, and which he may avoid, if not.”’ [Citations.]” [Citation.]’”].)[12]

2. Any Error in Providing Notice to James, Jr. and Terminating His Parental Rights Without His Presence or a Valid Waiver Was Harmless

James, Jr. asserts the court erred by terminating his parental rights at the December 16, 2005 hearing because he was not given proper notice of the hearing and did not waive his right under Penal Code section 2625, subdivision (d), to be transported from prison to the hearing.[13] The court plainly erred in conducting the hearing without a valid waiver of James, Jr.’s presence, as it did in proceeding without a waiver for Debra. Given James, Jr.’s presence at the initial section 366.26 hearing and the adequacy of the court’s notice to him of the first continued hearing date (see § 294, subd. (f)(1)), however, it does not appear that subsequent mailed notice to James, Jr. of further continuances of the hearing date was inadequate.[14] Nevertheless, we need not definitively resolve this issue because any error -- whether in providing James, Jr. adequate notice (In re Angela C. (2002) 99 Cal.App.4th 389, 392, 395 [applying harmless error standard under Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705]) or proceeding without a valid waiver of his presence (In re Jesusa V., supra, 32 Cal.4th at pp. 624-625 [applying harmless error standard under People v. Watson, supra, 46 Cal.2d at p. 836 to statutory violation of Penal Code section]) -- was harmless beyond a reasonable doubt.

James, Jr. argues the lack of adequate notice and failure to transport him to the section 366.26 hearing prejudiced him because he was unable to testify about his relationship with James III and the role he had played in his son’s life -- information essential to establish his entitlement to the exception to termination of parental rights identified in section 366.26, subdivision (c)(1)(A). James, Jr. also asserts that his testimony may have persuaded the court to allow James III to remain with Cherry H. as his legal guardian because he could describe how James III had bonded with her.

Based upon the overwhelming evidence actually in the record regarding James, Jr.’s relationship with James III and his complete failure to identify any additional facts about that relationship he could have provided, we are convinced beyond a reasonable doubt his presence at the hearing would not have resulted in the court recognizing the parent-child exception to termination of parental rights. (Cf. In re Jesusa V., supra, 32 Cal.4th at pp. 625-626 [genetic father “has never identified -- whether by way of petition for modification [citation] in the juvenile court or in this appeal -- the evidence he claims he would have offered had he been present”].) In the six months prior to termination of reunification services for James, Jr. in March 2004, he had not visited James III; and there is no evidence he attended the court ordered drug rehabilitation program, parenting class or individual counseling. During the two years following termination of reunification services, James, Jr. was unable either to control his substance abuse problem or begin to establish a relationship with James III. He was in and out of transitional housing and drug treatment programs and was ultimately incarcerated once again. By August 2005 the extent of his efforts to establish a relationship with James III was a series of long messages left on Cherry H.’s telephone answering machine about how he missed James III and intended to get him back in his care. Such a record -- even if James, Jr. had been able to testify to some contact or bond with James III that had escaped the attention of the Department -- falls well short of demonstrating the type of “extraordinary case [in which] preservation of the parent’s rights will prevail over the Legislature’s preference for adoptive placement.” (In re Jasmine D., supra, 78 Cal.App.4th at p. 1350.)[15]

Implicitly recognizing the inadequacy of his effort to show prejudice, James, Jr. alternatively asserts, citing In re Jasmine G. (2005) 127 Cal.App.4th 1109, no prejudice is required because the lack of notice constitutes structural error mandating automatic reversal. The lack of notice in Jasmine G., however, was a “mistake of constitutional dimension” (id. at p. 1115) and the holding of the court quite narrow: “[T]he failure to attempt to give a parent statutorily required notice of a selection and implementation hearing is a structural defect that requires automatic reversal. . . . The absence of any reasonable attempt to give notice goes well beyond trial error. It is not merely a mistake that hinders a party’s ability to present the case effectively, but rather a flaw in the systemic framework that denies the party the opportunity to be heard at all.” (Id. at p. 1116.) Indeed, the Orange County Social Services Agency “never even tried to give [mother] notice of the selection and implementation hearing, despite having been in regular contact with her and having a current address. That is the difference between a sound structure which fails due to human error and an unsound structure which can never support a fair process.” (Id. at p. 1118.)

In the case at bar, as in In re Angela C., supra, 99 Cal.App.4th 389, in which the court held “the lack of notice of a continuance is in the nature of a trial error . . . not structural[,]” James, Jr. was provided proper notice of the initial permanency planning hearing held on January 19, 2005, and he appeared at that hearing together with his counsel. When the court continued the hearing, the court informed him of the new hearing date and time and advised him the court would decide whether his and Debra’s parental rights should be terminated at the continued hearing. Multiple attempts were made to serve James, Jr. -- who was intermittently homeless and incarcerated -- with notices of the further continued hearing dates; and his attorney, who asserted he did not know his client’s whereabouts, was properly notified of each new date, including the December 16, 2005 hearing now at issue. Thus, any deficiency in the notice for the continued December 16, 2005 was “in the nature of trial error . . . not structural.” (Ibid.)

DISPOSITION

The order terminating James, Jr.’s and Debra’s parental rights is affirmed.

PERLUSS, P. J.

We concur:

JOHNSON, J.

WOODS, J.

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[1] Statutory references are to the Welfare and Institutions Code unless otherwise indicated.

[2] C.T.’s alleged father Carl T. is not a party to this appeal.

[3] C.T. is Debra’s eighth child. Debra’s eldest child (born in 1979) has lived with her father since she was very young. Debra’s other six children, including Devon, had been removed by a juvenile court from the care and custody of Debra or their father, although apparently only Devon was the subject of a petition in the Los Angeles Superior Court. All six of these children received permanent placement services.

[4] James, Jr. had been arrested on October 20, 2003 for possession of drug paraphernalia.

[5] Neither Debra nor James, Jr. filed a petition for extraordinary relief with this court to review the juvenile court’s order setting the hearing under section 366.26. Accordingly, none of the findings made in connection with that order is reviewable on appeal. (§ 366.26, subd. (l)(2).)

[6] Notice had been delivered to James, Jr. at Step Up on Second, an organization that provides services to homeless individuals, and was also sent to James, Jr. by first class mail. James, Jr. in fact, appeared at the hearing with counsel and made no objection to the adequacy of notice.

[7] Section 294, subdivision (f)(1), provides notice of the selection and implementation hearing held pursuant to section 366.26 may be given to a parent, if the parent is present in the court when the hearing is set, by “advis[ing] the parent of the date, time, and place of the proceedings . . . and the requirement that at the proceedings the court shall select and implement a plan of adoption, legal guardianship, or long-term foster care for the child. The court shall direct the parent to appear for the proceedings and then direct that the parent be notified thereafter by first-class mail to the parent’s usual place of residence or business only.” The record indicates James, Jr. was thereafter served with notice of the continued April 20, 2005 hearing by first-class mail sent to him in care of a worker at the Veterans Administration who assisted him on occasion, as well as to his counsel of record.

[8] Penal Code section 2625, subdivision (d), states, “Upon receipt by the court of a statement from the prisoner or his or her attorney indicating the prisoner’s desire to be present during the court’s proceedings, the court shall issue an order for the temporary removal of the prisoner from the institution, and for the prisoner’s production before the court. No proceeding may be held under . . . Section 366.26 of the Welfare and Institutions Code and no petition to adjudge the child of a prisoner a dependent child of the court pursuant to subdivision (a), (b), (c), (d), (e), (f), (i), or (j) of Section 300 of the Welfare and Institutions Code may be adjudicated without the physical presence of the prisoner or the prisoner’s attorney, unless the court has before it a knowing waiver of the right of physical presence signed by the prisoner or an affidavit signed by the warden, superintendent, or other person in charge of the institution, or his or her designated representative stating that the prisoner has, by express statement or action, indicated an intent not to appear at the proceeding.” Notwithstanding the statute’s use of the word “or,” normally construed to be disjunctive rather than conjunctive, the Supreme Court in In re Jesusa V. (2004) 32 Cal.4th 588, 622-624, held this provision requires the presence of both the prisoner and his or her attorney absent a knowing waiver of the right of physical presence by the prisoner. “Only by requiring the prisoner either to be present or to have executed a waiver of his or her appearance can the court ensure the prisoner actually received the notice.” (Id. at pp. 623-624.)

[9] The Court in Jesusa V. rejected the claim that failure to transport a prisoner-parent to court constituted a denial of due process when the prisoner is represented by counsel at the dependency proceeding. (In re Jesusa V., supra, 32 Cal.4th at pp. 625-626.)

[10] Debra’s opening brief fails to address prejudice, and she filed no reply brief responding to the Department’s assertion any error in proceeding in her absence was harmless.

[11] Debra also contends the order terminating her parental rights should be reversed because the children’s fundamental right to a familial relationship was violated when they were removed from Cherry H.’s home, where they had bonded with Cherry H. and her family, when she vacillated on committing to adoption. She lacks standing to challenge the children’s removal from the home of their former (unrelated) foster parent. (In re Devin M. (1997) 58 Cal.App.4th 1538, 1539 [mother had no standing to contest termination of her parental rights on ground order resulted in severance of her child’s relationship with foster family].)

[12] Debra has not suggested that, had she been transported from prison to the section 366.26 hearing, she would have raised the applicability of the subdivision (c)(1)(A) exception, let alone indicated what additional evidence she might have introduced at the hearing had she been present.

[13] The Department contends James, Jr. forfeited both these arguments by failing to make sufficient objections during the juvenile court proceedings. Immediately after Debra’s counsel had argued Debra should have been transported from prison, James, Jr.’s counsel stated, “[I]t’s indicated that mother informed the social worker that the father is in the North Kern County Prison. I don’t know that we have been able to locate him. I don’t know since this was just information they found out on the 8th, that was only a week ago. I don’t know what has been done in an attempt to contact him for proper notice regarding his child.” Counsel also stated, “[S]ince we actually seem to know where he might be, I think he would at least deserve courtesy notice that the plan for his child is adoption” and later joined Debra’s counsel’s objection to the adequacy of notice for the continued section 366.26 hearing. Although neither a model objection nor a comprehensible and accurate statement of the law, the comments by James, Jr.’s counsel were nevertheless sufficient to apprise the court James, Jr. objected to proceeding in his absence.

[14] Section 294, subdivision (d), provides in part, once the juvenile court has made an initial finding that notice of the section 366.26 hearing 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 . . . or by any other means that the court determines is reasonably calculated, under any circumstances, to provide notice of the continued hearing.” Moreover, section 294, subdivision (j), provides, except in certain situations in which the parent’s whereabouts are unknown, if the parent’s attorney of record is present at the time the court schedules a section 366.26 hearing, no future notice is required.

[15] Because Debra did not raise the parent-child relationship exception at the section 366.26 hearing, James, Jr.’s testimony would not have aided her, even if James, Jr. has standing to raise this point on appeal.