In re K.A.

Filed 6/1/06 In re K.A. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(Sacramento)

----

Yanie P. (appellant), the mother of K.A., M.P., and M.S. (the minors), appeals from the juvenile court's order terminating her parental rights. (Welf. & Inst. Code, §§ 366.26, 395; further section references are to this code unless otherwise specified.) She contends her due process rights were violated by the court's failure to ensure she was provided with proper notice of the section 366.26 hearing. Appellant also claims the court abused its discretion in failing to apply two statutory exceptions to the termination of parental rights. We shall affirm the order.

FACTS

On August 5, 2004, Sacramento County Department of Health and Human Services (DHHS) filed a juvenile dependency petition on behalf of the minors, alleging in part that they had suffered, or were at substantial risk of suffering, serious physical harm or illness as a result of appellant's failure to supervise or protect them adequately and appellant's inability to provide regular care for the minors because of appellant's substance abuse. (§ 300, subd. (b).) According to the petition, appellant had a history of cocaine use, also used marijuana, and in the past had failed to fulfill the requirements of her case plan.

The juvenile court sustained amended dependency petitions, adjudged the minors dependent children, denied reunification services for appellant, but granted appellant regular visitation with the minors.

M.P. and M.S., ages six and seven respectively, were placed together in the home of an aunt, and K.A., almost four years old, was placed in another relative's home with a younger sibling. The minors' caregivers knew each other and agreed to facilitate continuing visitation among the minors. Monthly visitation between appellant and the minors was problematical. Appellant brought unauthorized persons to visits, talked on her cell phone, and interacted more with some minors than others.

DHHS recommended adoption as the appropriate permanent plans for the minors. Bonding studies of the minors concluded that termination of parental rights would not cause significant emotional detriment to them. The minors were doing well in the homes of their prospective adoptive parents.

Appellant was present at the first scheduled section 366.26 hearing on May 6, 2005. Thereafter, the hearing was rescheduled four times. Appellant was absent from, but her counsel was present at, each rescheduled hearing. Each time the hearing was rescheduled, a clerk of the juvenile court sent appellant a copy of the court's order specifying the new date of the hearing.

At the hearing on September 20, 2005, appellant's counsel stated that appellant objected to the proposed termination of her parental rights, and agreed that the father of M.S. was bonded with the child.

Finding it was likely the minors would be adopted, the juvenile court ordered that appellant's parental rights be terminated.

DISCUSSION

I

Appellant contends the juvenile court violated her right to due process of law by failing to ensure she was provided with proper notice of the rescheduled section 366.26 hearing. Asserting the failure to notify her of the continued hearing denied her the opportunity to confer with counsel and prepare her case, appellant argues the error was prejudicial. According to appellant, she wanted to appear at the hearing to establish both the strong bond existing between the minors and her and the detriment the minors would suffer if her parental rights were terminated.

Appellant's claim lacks merit.

First, as noted by DHHS, counsel failed to tender any claim regarding the adequacy of notice of the rescheduled section 366.26 hearing to appellant. Ordinarily, such a failure constitutes forfeiture of the claim on appeal.^[1] (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2; In re B.G. (1974) 11 Cal.3d 679, 689; In re Gilberto M. (1992) 6 Cal.App.4th 1194, 1200.)

Second, by statute, such notice to appellant was not required because her counsel was present when the juvenile court rescheduled the section 366.26 hearing. (§ 294, subd. (j).)

In any event, the juvenile court mailed to appellant copies of the orders continuing the section 366.26 hearing. (§ 294, subd. (d).) Those orders stated the nature of the hearing, and social worker reports contained the recommendation by DHHS to terminate parental rights. Appellant appeared at the originally scheduled section 366.26 hearing, and the court found that she had been properly noticed. Nothing more by the court was required.

II

Appellant claims the juvenile court abused its discretion by failing to apply two statutory exceptions to termination of parental rights: (1) the beneficial relationship exception contained in subdivision (c)(1)(A) of section 366.26; and (2) the sibling relationship exception contained in subdivision (c)(1)(E) of that section.

According to appellant, a significant bond existed between the minors and herself, and the minors were so attached to each other that separating them would be detrimental to the minors. Appellant has forfeited her claims.

â€