In re Kelly P.

Filed 7/18/07 In re Kelly P. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Robert G. Fowler, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Neil R. Trop, under appointment by the Court of Appeal, for Defendant and Appellant.

Ruth E. Stringer, County Counsel, and Jeffrey L. Bryson, Deputy County Counsel, for Plaintiff and Respondent.

Amanda Benedict, under appointment by the Court of Appeal, for Minor.

M.P. (mother) appeals the order of the juvenile court terminating her parental rights to her infant daughter and freeing the child for adoption. We affirm the order.

FACTUAL AND PROCEDURAL HISTORY

Kelly P., born in December 2005, in San Bernardino County, was taken into protective custody on January 18, 2006. Police had arrested mother for possession of illegal drugs. She was allegedly packaging heroin while breast-feeding the baby. Her bra contained heroin. Police also found large amounts of cocaine and methamphetamine in her home, along with scales, packaging materials, cell phones and fake IDs. R.R., later determined to be Kellys presumed father, was also arrested that night on the same charges. Both parents were nationals of El Salvador and not United States citizens. Both were convicted of felonies during the pendency of the dependency proceedings and were incarcerated throughout the proceedings. Both were expected to be deported.[1]

Kelly was detained and placed in a foster home. The court sustained the dependency petition, which alleged failure to protect and no provision for support.[2] (Welf. & Inst. Code, 300, subds. (b) & (g).) (All statutory citations refer to the Welfare and Institutions Code.) Because both parents would be incarcerated beyond the maximum statutory reunification period, the court found that offering reunification services would be detrimental to Kelly. It denied reunification services and set a hearing pursuant to section 366.26 to consider termination of parental rights and to determine a permanent plan for Kelly. The court found that there were no suitable relatives available for placement. The court advised the parents of their writ rights and of the date for the section 366.26 hearing.

The section 366.26 hearing was continued to allow for mother to be transported from prison. On January 16, 2007, the next date set for the hearing, mother was not present. Her attorney stated that he had received a letter from her indicating that she suspected she would be released from prison that month. He stated that there might also have been an INS hold. He did not say that he was unable to contact her or arrange for her attendance at the hearing. He stated that she objected to termination of her parental rights and that she requested a continuance. The court denied the continuance. It found clear and convincing evidence that Kelly would be adopted, and found that it was likely that she would be adopted by her foster parents within one year. It terminated all parental rights.

Mother filed a timely notice of appeal.

LEGAL ANALYSIS

MOTHER WAS GIVEN LEGALLY SUFFICIENT NOTICE OF THE SECTION 366.26 HEARING

Mother contends that she did not receive legally sufficient notice of the section 366.26 hearing because neither the judges oral notification at the jurisdiction and disposition hearing nor the written notice mailed to her by the Department of Childrens Services (DCS) satisfied the requirements of section 294. She contends that these omissions violated her due process rights as well as her statutory rights.

DCS contends that any objection to the sufficiency of notice was forfeited by mothers failure to assert this objection in the juvenile court. DCS is correct that mother did not object, even though she had the opportunity to do so her attorney was present at both the originally scheduled section 366.26 hearing and at the continued hearing. Her attorney indicated that he had been in contact with her. He did not inform the court that mother was unaware of the date of the hearing or of the issues to be addressed at the hearing.

[A] reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court. [Citation.] The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected. [Citation.] [] Dependency matters are not exempt from this rule. [Citations.] (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. omitted.) Forfeiture is not automatic, however, and the rule does not deprive the appellate court of the authority to address the merits of the issue. In general, the appellate courts discretion to excuse forfeiture should be exercised rarely and only in cases presenting an important legal issue. [Citations.] (Ibid.) Nevertheless, because dependency matters involve the well-being of children, appellate discretion must be exercised with special care. (Ibid.) Therefore, even though mother had the opportunity to object to the sufficiency of the notice but did not do so, we will address her contentions.

Mother contends that the oral notification did not contain all of the information required by section 294, and that the written notice, which did contain the information required by section 294, nevertheless did not satisfy the statutes requirements because the record contains no signed return receipt or other evidence that she received the notice. (She does not deny that she did receive it, however.)

As pertinent here, section 294 provides as follows:

The social worker or probation officer shall give notice of a selection and implementation hearing held pursuant to Section 366.26 in the following manner: [] (a) Notice of the hearing shall be given to the following persons: [] (1) The mother. [] . . . [] (e) The notice shall contain the following information: [] (1) The date, time, and place of the hearing. [] (2) The right to appear. [] (3) The parents right to counsel. [] (4) The nature of the proceedings. [] (5) The recommendation of the supervising agency. [] (6) A statement that, at the time of hearing, the court is required to select a permanent plan of adoption, legal guardianship, or long-term foster care for the child. [] (f) Notice to the parents may be given in any one of the following manners: [] (1) If the parent is present at the hearing at which the court schedules a hearing pursuant to Section 366.26, the court shall advise the parent of the date, time, and place of the proceedings, their right to counsel, the nature 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 parents usual place of residence or business only. [] (2) Certified mail, return receipt requested, to the parents last known mailing address. This notice shall be sufficient if the child welfare agency receives a return receipt signed by the parent.

Mothers second contention, that a signed return receipt or other proof of actual receipt of the written notice was required, can be disposed of easily: A return receipt is required only if the parent was not present at the hearing at which the court set the section 366.26 hearing. If the parent was present at the hearing and was given oral notice of the section 366.26 hearing, written notice need be sent only by first-class mail. There is no requirement for a return receipt. ( 294, subd. (f)(1).)

Mothers remaining contention is that the courts oral notice was defective because the court failed to include all of the elements required by section 294, subdivision (e): the date, time, and place of the proceedings, their right to counsel, the nature 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. ( 294, subd. (f)(1).) However, she acknowledges that the written notice subsequently mailed to her by DCS did contain all of the required language and information.

Mother contends that the courts failure to comply strictly with the requirements of section 294 violated her constitutional right to due process. However, notice is sufficient to satisfy the requirements of due process if it is reasonably calculated to advise the parent that an action is pending and to afford her an opportunity to present her objections or defend the action. (In re Jasmine G. (2005) 127 Cal.App.4th 1109, 1114; In re B.G. (1974) 11 Cal.3d 679, 688-689.) The notice must fairly apprise the parent of the charges she must meet and what [is] truly at stake in the proceeding. (In re Anna M. (1997) 54 Cal.App.4th 463, 468.) Here, the courts oral notification informed mother that a hearing was to be held on a specified date, and that the court would make a permanent plan for Kelly. It stated that the plan could include the termination of parental rights and that it was not limited to guardianship or placement with a relative or foster parent. The court did not explicitly state that adoption was an option. The written notice stated that the social worker recommended termination of parental rights. It also stated that the court could terminate parental rights and free the child for adoption, or establish a guardianship or place the child in a planned permanent living arrangement.

Mother cites no authority, and we are aware of none, which holds that strict compliance with section 294 is required in order to comport with the requirements of due process. On the contrary, as stated above, due process is satisfied if the parent receives actual notice which is sufficient to apprise her of what was truly at stake in the hearing and to give her the opportunity to appear and assert her interests. (In re Anna M., supra, 54 Cal.App.4th at p. 468.) Taken together, the oral and written notices mother received were sufficient to apprise her of the date and time of the hearing and of the issues to be decided.[3] Mother therefore did receive due process.

THE COURT DID NOT FIND THAT MOTHER WAIVED HER RIGHT

TO BE PRESENT

Mother contends that she did not validly waive her right to be present at the section 366.26 hearing on January 16, 2007. She argues that a written waiver of appearance, dated December 19, 2006, which she signed, is invalid because it does not state the date or nature of the hearing for which she was waiving her presence. She does not, however, cite to any portion of the record where the court found that she did waive her right to be present. In fact, the court did not address any question of waiver. Rather, at the hearing on January 16, 2007, the court found that notice had been given as required by law and that mother was not present. It declined to continue the hearing as requested by her attorney. Because there is no order which was based on an allegedly erroneous finding of waiver, there is no error for us to review.

DENYING THE CONTINUANCE WAS NOT AN ABUSE OF DISCRETION

Finally, mother contends that the court abused its discretion by denying her request to continue the section 366.26 hearing. She contends that the courts failure to grant the continuance prevented her from appearing at the section 366.26 hearing and presenting evidence which would establish that it would be in Kellys best interest to return her to mothers custody.

A court may continue any hearing in dependency proceedings, including a section 366.26 hearing. ( 352, subd. (a); In re Michael R. (1992) 5 Cal.App.4th 687, 694.) We review an order denying a continuance for abuse of discretion. (In re Michael R., supra,at p. 694.)

Section 352 provides, in part, Continuances shall be granted only upon a showing of good cause and only for that period of time shown to be necessary by the evidence presented at the hearing on the motion for the continuance. Neither a stipulation between counsel nor the convenience of the parties is in and of itself a good cause. . . . Whenever any continuance is granted, the facts proven which require the continuance shall be entered upon the minutes of the court. [] In order to obtain a motion for a continuance of the hearing, written notice shall be filed at least two court days prior to the date set for hearing, together with affidavits or declarations detailing specific facts showing that a continuance is necessary, unless the court for good cause entertains an oral motion for continuance. ( 352, subd. (a).)

Here, there was no showing of good cause either for the continuance or for the last-minute oral motion. The hearing had previously been continued to January 16 in order to allow mothers attorney to make arrangements to have her transported from prison. At the hearing on January 16, counsel did not say that he had submitted a transportation order which had not been complied with, and he gave no reason for his clients absence. He also made no offer of proof as to any evidence mother would provide, if the hearing were continued, which would have justified a decision not to terminate her parental rights. In the absence of a showing of good cause, the court is not authorized to grant a continuance. ( 352, subd. (a).) Thus, the court did not abuse its discretion by declining to do so here.

DISPOSITION

The order terminating parental rights and freeing Kelly P. for adoption is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

J.

We concur:

/s/ Hollenhorst

Acting P.J.

/s/ Richli

J.

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[1] R.R. is not a party to this appeal.

[2] An amended petition alleging failure to protect on the part of mothers estranged husband, then the presumed father of the child, was stricken when it was determined that he was not in fact the childs father.

[3] Although mother had a Spanish interpreter throughout the proceedings, she does not contend either that the written notice was inadequate because it was not in Spanish or that she did not understand either the oral or written notices.