In re Dixie Lee E.

Filed 8/29/06 In re Dixie Lee E. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

The juvenile court terminated the parental rights of appellant Corbin E. to his daughter Dixie Lee who was born in June 2003. (See Welf. & Inst. Code, § 366.26.)^[1] Corbin appeals this order, contending that (1) he received insufficient notice of the permanency planning hearing; (2) the juvenile court erred by holding the hearing in his absence; and (3) it erred by failing to conduct a Marsden^[2]-type hearing after he requested new appointed counsel. We affirm the order.

I. FACTS

In June 2003, Dixie Lee was born to Jennifer J. and appellant Corbin E., while he was incarcerated.^[3] A premature baby, she remained hospitalized for three months after her birth. During this period, respondent Solano County Health and Social Services Department received a referral about her.^[4] On September 10, 2003, the department filed an original dependency petition on behalf of Dixie Lee, alleging that her parents had a violent relationship and a history of substance abuse. (See § 300, subds. (a), (b), & (g).) Counsel was appointed to represent Corbin in the dependency proceeding. Dixie Lee was ordered to be detained and on her release from the hospital on September 22, 2003, she was placed in foster care.

At an October 2003 jurisdiction hearing, Jennifer submitted to amended allegations of substance abuse and domestic violence, but the allegations about Corbin were continued. On December 17, 2003, Dixie Lee was placed with her maternal grandparents. Corbin was released from prison two days later and was permitted to have supervised visits with her. Dixie Lee was placed with Jennifer on January 5, 2004. Corbin was permitted to have supervised visitation. At Jennifer’s disposition hearing on January 15, 2004, Jennifer submitted to the disposition report. ~(CT 60)~ At Corbin’s jurisdiction/disposition hearing held on February 4, 2004, the court sustained the allegation regarding Corbin’s history of substance abuse, and dismissed the other allegations.

The department learned that Corbin had had regular unsupervised visits with Dixie Lee while she was in Jennifer’s care. Dixie Lee was placed in foster care on March 12, 2004. The department allowed weekly visitation for Corbin.

A subsequent petition was filed on behalf of Dixie Lee on March 16, 2004. (See § 342.) A first amended subsequent petition was filed the next day, alleging that Corbin had been Dixie Lee’s primary caretaker in violation of court orders, and that the social worker believed Corbin and Jennifer were again engaged in domestic violence. Jennifer submitted on the amended subsequent petition in April 2004. In August 2004, the juvenile court dismissed the first amended subsequent petition as to the father, but in return, Corbin submitted to the disposition recommending the continued detention of Dixie Lee and agreed that the facts underlying the petition could be considered when the court made future orders.

By October 2004, Corbin had visited Dixie Lee 10 times in six months. By this time, the department was prepared to recommend termination of Corbin’s reunification services. On October 12, 2004, Jennifer died under suspicious circumstances. Shortly thereafter, Corbin was arrested and charged with his wife’s murder. He remained in custody until charges were dismissed in June 2006.^[5]

At the December 2004 review hearing, the juvenile court found Corbin had made only minimal progress toward alleviating the problems that caused the child to be subject to the jurisdiction of the court. It found he had failed to participate in court-ordered treatment and services, and also found that returning the child to him would create substantial risk of detriment to her physical or emotional well-being. Reunification services were terminated and a permanent plan of adoption was ordered. A permanency planning hearing was set for April 6, 2005.

On March 25, 2005,^[6] Corbin was personally served with notice of the April 6 permanency planning hearing. He did not appear at that hearing. Finding that Corbin did not receive sufficient notice of that hearing, the juvenile court continued it to May 25. On April 12, notice of the May 25 hearing was mailed to Corbin at the Sonoma County jail by first class mail. On April 14, Corbin was personally served with notice of that hearing.

On April 14, he sent a letter to the juvenile court opposing termination of his parental rights and maintaining his innocence of the pending criminal charges. On April 29, the court received a second letter from Corbin, this one requesting a new court date. In this letter, Corbin also claimed that his appointed counsel did not notify him of his court date or of the possibility that he might lose his parental rights. He complained that his attorney had told him that no matter what he did, the court would not return Dixie Lee to him. Corbin sought to fire his attorney and to have new counsel appointed.

On May 10, a second notice of the May 25, permanency planning hearing was sent to Corbin at the Sonoma County jail. On May 16, the court received a third letter from Corbin restating his desire for a new attorney because counsel did not tell him that he would lose his daughter.^[7]

Corbin did not appear at the May 25 hearing. His counsel requested a two-week continuance, citing a breakdown in the attorney-client relationship. Counsel hoped to determine whether Corbin truly wanted new counsel appointed. The court continued the hearing to June 8.

Corbin was not present at the June 8 hearing either. Counsel requested another continuance to resolve the issue of representation. The court continued the hearing to June 29 to allow counsel to obtain a removal order so that Corbin could appear in court. On June 15, the court ordered that Corbin be brought to court for the June 29 hearing.

Corbin was not present at the June 29 juvenile court hearing because he had to appear in criminal court. Counsel had spoken with Corbin and requested another continuance, which the juvenile court granted.

On August 23, Corbin did not appear and counsel again requested a continuance because of his client’s absence. The court asked counsel if the representation issue had been resolved. Counsel replied “Yes. I didn’t mention it because it ha[d] been resolved sometime ago, and in fact it didn’t even arise. [Corbin] and I have no problems. We had a brief problem. I think it related to communication way back several months ago. We have had regular contact since then, both [by] mail and on the telephone. I spoke with [Corbin] yesterday, but we have a really intact relationship. There is no problem whatsoever, so I feel very comfortable [that] should the Court deny my motion [we can] move forward. [Corbin] understands, though he opposes going forward, that the Court may in fact deny his motion” for a continuance. The court denied a further continuance.

The evidence at the permanency planning hearing revealed Corbin’s extensive history of substance abuse and domestic violence. He had failed to consistently visit Dixie Lee. The social worker testified that the level of contact between Corbin and Dixie Lee was insufficient to create a parent-child bond. The social worker and others believed that Dixie Lee did not recognize Corbin’s voice. The juvenile court found that termination of Corbin’s parental rights would not be detrimental to the child. It terminated Corbin’s parental rights to Dixie Lee.^[8]

II. NOTICE

On appeal, Corbin first contends that he was given insufficient notice of the permanency planning hearing, resulting in actual prejudice to him. Parents are entitled to notice of juvenile proceedings affecting their interest in the custody of their children. (In re Melinda J. (1991) 234 Cal.App.3d 1413, 1419.) Due process requires notice that is reasonably calculated to apprise an interested party of the pendency of the action and to afford him or her an opportunity to present any objections. (Mullane v. Central Hanover Tr. Co. (1950) 339 U.S. 306, 314.) In California, a parent must receive notice at least 45 days before the permanency planning hearing date. (See § 294, subd. (c).) Corbin received notice of the May 25 hearing 41 days before it was scheduled to be held. Corbin asserts that the four-day lapse in full notice constituted a violation of his due process rights. ~(AOB 12)~ He also claims that his due process rights were violated when he received no notice of the three continued hearing dates held on June 8, June 29, and August 23.

Assuming arguendo that the defects in notice amounted to constitutional error, we would analyze whether this error was prejudicial. (See In re Jasmine G. (2005) 127 Cal.App.4th 1109, 1115; Judith P. v. Superior Court (2002) 102 Cal.App.4th 535, 554; In re Angela C. (2002) 99 Cal.App.4th 389, 394.) There are two types of error: trial error and structural error. (In re Angela C., supra, 99 Cal.App.4th at p. 394.) Trial error occurs during the presentation of the case. (Ibid.) It does not require automatic reversal because a court may quantitatively assess its impact in the context of other evidence presented at the hearing and determine whether that error was harmless beyond a reasonable doubt. (Ibid.) In such circumstances, the Chapman standard applies to assess prejudice. (Ibid.; see Chapman v. California (1967) 386 U.S. 18, 22 (Chapman).) By contrast, the more serious structural error affects the framework within which the trial proceeds and calls the fundamental fairness of the process into question. (In re Jasmine G., supra, 127 Cal.App.4th at p. 1115; In re Angela C., supra, 99 Cal.App.4th at p. 395.) It is not subject to harmless error analysis and requires automatic reversal. (In re Jasmine G., supra, 127 Cal.App.4th at p. 1115.)

In this matter, even if we assume that late notice of the May 25 hearing and a lack of actual notice of the three continued hearing dates constituted error, we would find these errors to be nonprejudicial trial error. On the late notice issue, providing Corbin with 41 days of notice rather than the full 45 days-although a violation of statute-would not be an error bearing on the fundamental fairness of the judicial proceedings. To conclude otherwise would be to elevate procedure over substance. (See In re Melinda J., supra, 234 Cal.App.3d at p. 1419; see also § 294, subd. (c)(1).) Corbin’s attorney was given full notice of this hearing and successfully obtained a continuance of it. This continuance effectively cured any error flowing from the four-day notice deficiency. As Corbin suffered no prejudice from the lack of full notice of the May 25 hearing, he cannot prevail on appeal on this issue. (See Chapman, supra, 386 U.S. at p. 22.)

We also conclude that any lack of notice to Corbin of the June 8, June 29, and August 23, continued hearings was trial error under the circumstances of this case. Although the record does not show that Corbin received notice of any of these continued hearings, his counsel was notified of them and appeared at each hearing. Lack of notice of a continued hearing is more akin to trial error than structural error. (See In re Angela C., supra, 99 Cal.App.4th at p. 395 [trial error when mother properly notified of original permanency planning hearing date, but not notified of continued hearing date].)

We apply the Chapman harmless error standard to determine if this error was harmless beyond a reasonable doubt. The primary issue at the permanency planning hearing is whether the child is likely to be adopted. (In re Angela C., supra, 99 Cal.App.4th at p. 396.) In this matter, it is undisputed that Dixie Lee is adoptable. Once the court finds a likelihood of adoption, termination of parental rights is required unless a parent proves that termination would be detrimental to the child. (See § 366.26, subd. (c)(1); In re Angela C., supra, 99 Cal.App.4th at p. 396; In re Autumn H. (1994) 27 Cal.App.4th 567, 574; In re Brian R. (1991) 2 Cal.App.4th 904, 923-924.)

The juvenile court may find detriment if a parent establishes that one of five statutory exceptions applies. (See § 366.26, subd. (c)(1).) The only exception that could arguably apply in this matter would require Corbin to show that he had maintained regular visitation and contact with Dixie Lee, and that she would benefit from a continuing relationship with him. (See § 366.26, subd. (c)(1)(A).) This continuing relationship must promote the child’s well-being to such an extent that it outweighs the well-being that the child would gain in a permanent home with adoptive parents. Severing this continuing relationship must deprive the child of a substantial emotional attachment resulting in great harm to the child. A parent’s regular visitation may be an indicator of the child’s significant emotional attachment to that parent. (See In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

In our case, Corbin cannot show detriment because he did not maintain regular visitation and because there is no evidence that the minor might benefit from a continuing relationship with him.^[9] Dixie Lee is only three years old, and Corbin has been incarcerated for most of her life. The only time that Corbin may have had regular contact with his daughter was during the two months when she was placed with her mother. This contact was unauthorized, unsupervised, and at a time when Dixie Lee was not yet a year old. In the remaining 27 months of her life, the evidence shows Corbin visited her only 10 times. There was evidence that the contact between Corbin and Dixie Lee was insufficient to create a parent-child relationship, such that Dixie Lee may not even recognize her father’s voice. On this record, Corbin could not prevail on a detriment argument. As he could not have established an exception to the termination of parental rights, any notice error was harmless beyond a reasonable doubt. (See Chapman, supra, 386 U.S. at p. 22; see also § 366.26, subd. (c)(1).)

III. FATHER’S PRESENCE

Corbin also contends that it was error to hold the August 23 permanency planning hearing without him because he did not expressly waive his right to be present. A hearing to terminate an alleged criminal’s parental rights may not be held in the prisoner’s absence unless he or she expressly waives the right to be present. (Pen. Code, § 2625, subd. (d).) When such statutory error occurs, we determine whether the error was harmless under the Watson standard. (In re Jesusa V. (2004) 32 Cal.4th 588, 623-624; see People v. Watson (1956) 46 Cal.2d 818, 836; cert. den. sub nom. Watson v. Teets (1957) 355 U.S. 846; see also Cal. Const., art. VI, § 13.) The focus at this stage of the dependency proceedings was whether termination of parental rights would be detrimental to Dixie Lee. (See § 366.26, subd. (c)(1).) We have already found that Corbin could not have prevailed on a detriment argument and thus could not establish a statutory exception to termination of parental rights. (See pt. II., ante.) As such, we find that conducting the permanency planning hearing in Corbin’s absence was harmless error.

IV. COUNSEL

Finally, Corbin contends the court erred in not conducting a Marsden-type hearing after he asked the juvenile court to fire his appointed counsel and appoint another attorney for him. A parent has no federal constitutional right to be represented by counsel in termination proceedings. (In re Justin L. (1987) 188 Cal.App.3d 1068, 1073.) Corbin cites no cases entitling him to a Marsden-type hearing in a juvenile dependency case as a constitutional right. ~(See AOB 16-19; ARB 1-5)~ However, he had a statutory right to a hearing as to the competency of his counsel. State law mandates that local courts provide a means for reviewing and resolving complaints by parents regarding the performance of appointed counsel in juvenile matters. (See § 317.6, subd. (a)(3); Cal. Rules of Court, rule 1438(2)(f).) Solano County Superior Court rules permit any party to a juvenile court proceeding to lodge a written complaint with the court concerning the performance of his or her appointed attorney in a juvenile court proceeding. On receipt of a written complaint, the court must review it to determine if the attorney was incompetent. The court may ask the parent for additional information before making this determination. If, after reviewing the complaint, the court finds that the attorney was incompetent, then it must take appropriate action. The court must notify the attorney and the parent of its determination of the complaint. (Super. Ct. Solano County Local Rules, rule 6.2.4 (a)-(e).)

In this case, Corbin sent two complaints to the juvenile court about the performance of his appointed attorney and twice requested that new counsel be appointed for him. These written complaints should have triggered the review procedure set forth in the local court rules. The record is silent about whether this review occurred. Assuming arguendo that the court failed to consider the complaint in violation of local rules, we must determine whether this error would require reversal.^[10] In such circumstances we apply the Watson test for harmless error. (See, e.g., In re Jesusa V., supra, 32 Cal.4th at pp. 623-624; see also People v. Watson, supra, 46 Cal.2d at p. 836.) For the same reasons that Corbin could not establish prejudicial error on his other claims of error on appeal, we find that any assumed error flowing from the juvenile court’s failure to review and rule on his written complaints to be harmless error. (See People v. Watson, supra, 46 Cal.2d at p. 836.)

The order terminating parental rights is affirmed.

_________________________

Reardon, J.

We concur:

_________________________

Ruvolo, P.J.

_________________________

Rivera, J.

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^[1] All statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] People v. Marsden (1970) 2 Cal.3d 118 (Marsden).

^[3] Jennifer and Corbin were not married at the time of Dixie Lee’s birth, but they married nine months later, in March 2004. The juvenile dependency petitions list Corbin as an alleged father. No paternity test was conducted and Dixie Lee’s birth certificate names no father. Corbin accepts paternity, Dixie Lee bears his surname, and the juvenile court seems to have treated Corbin as a presumed father. The department also assumed paternity was established. Thus, we deem Corbin to be Dixie Lee’s biological father.

^[4] The reporting party was uncertain of Jennifer’s ability to care for Dixie Lee, as Jennifer had missed scheduled hospital feedings, was in and out of residential treatment, and had twice tested positive for drugs.

^[5] We take judicial notice of the June 2006 dismissal order. (See Evid. Code, §§ 452, subd. (d)(1), 459, subd. (a).)

^[6] All subsequent dates refer to the 2005 calendar year.

^[7] The two letters from Corbin are inconsistent about whether counsel advised him that he might lose custody of Dixie Lee.

^[8] On October 6, 2005, without an opinion, we denied Corbin’s petition for a writ of prohibition after his parental rights were terminated. (Case No. A111544.)

^[9] Corbin has never identified-either in a petition for modification in the juvenile court, in this appeal, or in his related petition for habeas corpus-what evidence he would have offered on the issue of detriment if he had been present at the permanency planning hearing.

^[10] In a criminal context, it is argued that we cannot review Marsden error on the basis of a silent or incomplete record. In a comparable criminal matter, such a Marsden error would be reversible per se. (See People v. Winbush (1988) 205 Cal.App.3d 987, 991.) However, in this case, the local rules do not require a judge to ask the parent for additional information. As the juvenile court may make its decision based only on the written complaint, it follows that we may review the error based on the complaint alone.