In re Kaylie C.

Filed 8/24/07 In re Kaylie C. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

Cindy T., mother of the minors, appeals from orders terminating her parental rights. (Welf. & Inst. Code, 366.26, 395 [further unspecified section references are to this code].) Appellant contends reversal is required because she was not given proper notice of the hearing and the hearing was conducted without her personal presence or a waiver of her presence.

This court granted appellant permission to file a petition for writ of habeas corpus, case No. C056147, which further explored the question of inadequate notice as well as ineffective assistance of counsel. We issued an order to show cause returnable in the trial court.

We affirm the orders of the juvenile court.

Facts and Proceedings

The Department of Health and Human Services (DHHS) filed a petition to remove the minors Kaylie, 10 months old, Lexus, 3 years old, and S., 4 years old, from parental custody in July 2005, due to the parents chronic drug use and neglect of the minors despite services in prior family maintenance plans. The minors were detained in the home of the paternal grandparents. Appellant designated a permanent mailing address at the detention hearing. The court sustained the petition and ordered reunification services for appellant.

The six-month review report in December 2005, stated appellant was in custody, having been arrested in November 2005, on charges of second degree murder. The report stated the minors, who remained with the paternal grandparents, had no contact with appellant, who had not attempted to arrange visits. The report recommended termination of services and a permanent plan of adoption.

Notice of the date of the six-month review hearing was mailed to appellant in jail and to her last known address as designated at the detention hearing. Appellants trial counsel sought and received a continuance of the hearing to consult her client in jail. At the continued hearing counsel stated she had spoken to appellant and entered an objection to termination of services on her behalf. Because neither appellant nor her counsel filed a new designation of permanent address, notice of appellants right to writ review was sent to her last known address.

Notice of the section 366.26 hearing was personally served in February 2006 on appellant in jail, and the court subsequently found that proper service had been accomplished. Appellants counsel made no objection to that finding.

The report for the section 366.26 hearing stated appellant was still in custody and had not had any contact with the minors. Based upon evaluations by the MIND Institute, all three minors showed developmental delays. However, the paternal grandparents with whom the minors had been living, were committed to adopting them. DHHS recommended a 90-day continuance to complete a home study. The court continued the matter without objection. A copy of the order was sent to appellants last known address.

An addendum to the report for the section 366.26 hearing stated the home study was pending and that the paternal grandparents had completed adoption classes. The hearing was again continued and the resulting order was again sent to appellants last known address.

A second addendum informed the court that the original home study worker told the paternal grandparents he was leaving for a new position and another worker would be assigned. The paternal grandparents decided to pursue legal guardianship and the home study application was closed. At the subsequent hearing, minors counsel asked for a continuance so that DHHS could assess the adoptability of the minors because counsel could not support the less permanent alternative of guardianship for them. The order continuing the hearing was sent to appellants last known address.

A third addendum stated that the paternal grandparents would like to pursue adoption and requested the adoption homestudy [sic] to be re-opened. The home study was assigned and the paternal grandparents were offered a Correction Action Plan which included a parenting class to learn skills for parenting teenagers in the American culture.

At the section 366.26 hearing in January 2007, minors counsel expressed concerns about the adequacy of the reports assessing adoption as opposed to guardianship. Fathers counsel was concerned about notice in that the recommendation had changed and was unsure the parents had notice of the current recommendation. Appellants counsel requested a continuance because appellant was not present and counsel did not have any information as to why she is not here. Appellants counsel also was concerned that the recommendations had changed from legal guardianship to adoption and stated that if the court is not inclined to grant a continuance, I would enter general objections to termination of her parental rights today. The court observed that the original notice of hearing served on the parents included notice that DHHS could be recommending any one of three different plans, including adoption. The court further stated that notices of the continuances had been sent to the parents last known addresses and concluded notice was sufficient. In response to the courts questions about the paternal grandparents current level of commitment, the social worker stated that there had been extensive discussions about guardianship and adoption, the paternal grandparents were committed to adoption and had wanted to adopt from the beginning but were concerned about working with a new adoptions worker when the last one left and agreed to guardianship at that time. The social worker had reopened the home study after the paternal grandparents made it clear they wished to adopt the minors and DHHS was now working to find resources for them to address better parenting of teenage behavior in the American culture.

The court adopted the recommended findings and orders, thereby terminating parental rights and freeing the minors for adoption. The court found that although the paternal grandparents were willing to accept legal guardianship, the evidence did not indicate that they ever declined to adopt the minors.

Discussion

I

Notice

Appellant contends she was not given notice of the section 366.26 hearing as required by section 294. Appellant suggests the proof of personal service was inaccurate and that subsequent mailings went to an address which the court and DHHS knew was no longer hers.

Section 294 sets forth the requirements for notice of the section 366.26 hearing. Notice must be given to the parents and completed 45 days before the hearing. ( 294, subd. (a), (c).) Notice to a parent may be given in any of several ways, including personal service, which was employed in this case. ( 294, subd. (f)(3).) But, once the court has made the initial finding that notice 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 circumstance, to provide notice of the continued hearing. However, if the recommendation changes from the recommendation contained in the notice previously found to be proper, notice shall be provided to the parent . . . regarding that subsequent hearing. ( 294, subd. (d).)

Appellant argues the affidavit of personal service shows someone else was served with notice of the hearing since the description of the person served does not match her physical characteristics.

There is no evidence in the record to support this claim. Appellants counsel was present at the April 2006 status hearing at which the court found service had been accomplished and did not challenge the proof of service or raise any question about the truth of the affidavit of personal service. On this record, we must conclude that substantial evidence supports the juvenile courts finding that appellant was personally served.

Appellant further argues that minute orders continuing the section 366.26 hearing were improperly mailed to her former address when the court and DHHS were aware she was in custody and this constituted a denial of due process. However, having once found that service of the notice of hearing was proper, the court was allowed to mail notice of any continuance to appellants last known address, in this case, the permanent address designated by appellant at the detention hearing pursuant to section 316.1. ( 294, subd. (d).)

Section 316.1 requires a parent to designate a permanent mailing address and further requires the court to advise the parent the address will be used for notice purposes unless and until the parent . . . notifies the court or the social services agency of a new mailing address in writing.

Appellant designated an address and the court advised her as to how it would be used. Thereafter, neither appellant nor her counsel informed either the court or DHHS that a different address should be used. A permanent mailing address, designated for purposes of receiving notices, need not be the address at which a parent is actually residing. (In re Rashad B. (1999) 76 Cal.App.4th 442, 450.) Thus, while DHHS and the court had information appellant was incarcerated, absent further direction from appellant, neither was entitled to conclude appellant wished to have notices sent to her in custody. The court did not err in sending notices of continuances to appellants last known address.

Appellant argues that, when DHHSs recommendation changed to guardianship and then back to adoption, she should have been afforded new notice as required by section 294, subdivision (d). We disagree.

As noted by the juvenile court, the original notice for the section 366.26 hearing clearly stated that DHHS recommended either termination of parental rights and adoption or legal guardianship or long-term foster care. Accordingly, appellant was on notice that all the three alternatives could be considered by the court at the hearing and that any of the three might be selected as a permanent plan. The subsequent specific recommendations fell within those set forth in the original notice and no new notice was required.

The record on appeal does not establish a denial of due process stemming from any errors in providing appellant notice of the section 366.26 hearing.

II

Appellants Presence at the Hearing

Appellant argues the court erred in proceeding without her presence or waiver in violation of Penal Code section 2625.

When there is a proceeding to terminate parental rights of a prisoner in custody in prison or jail, pursuant to Welfare and Institutions Code section 366.26, the court must order notice of the proceeding be given to the prisoner. (Pen. Code, 2625, subd. (b).) The procedures of Welfare and Institutions Code section 294 dictate the means and contents of service of that notice which include the right to appear. (Pen. Code, 2625, subd. (c).) We previously concluded the juvenile court properly found service was complete and, thus, appellant was advised of her right to be present. Once served, Penal Code section 2625 places the burden upon the prisoner to inform the court of his or her wishes. (Pen. Code, 2625, subd. (d).)

Upon receipt by the court of a statement from the prisoner or his or her attorney indicating the prisoners desire to be present during the courts proceedings, the court shall issue an order for the temporary removal of the prisoner from the institution, and for the prisoners production before the court. No proceeding may be held under . . . Section 366.26 of the Welfare and Institutions Code . . . without the physical presence of the prisoner or the prisoners attorney, unless the court has before it a knowing waiver of the right of physical presence signed by the prisoner . . . . (Pen. Code, 2625, subd. (d).)

After appellant was personally served with notice of the hearing which included notice of the right to be present, neither appellant nor counsel indicated appellant had a desire to attend the section 366.26 hearing. Thus, the court had no duty to order appellant produced from custody to be present at the hearing. Further, because appellants counsel was present at the hearing, no waiver by appellant of her personal presence was required. The juvenile court did not err in proceeding without appellant present. This conclusion, of course, depends upon the evidence that appellant was personally served with notice of the hearing. As noted, that issue is part of the petition for writ of habeas corpus pending in the trial court.

Disposition

The orders of the juvenile court are affirmed.

HULL, J.

We concur:

SIMS , Acting P.J.

ROBIE , J.

Publication Courtesy of California lawyer directory.

Analysis and review provided by Escondido Property line attorney.