In re K.S.

Filed 10/16/06 In re K.S. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from an order of the Superior Court of Los Angeles County, Marilyn K. Martinez, Court Commissioner. Affirmed.

Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Judith A. Luby, Senior Deputy County Counsel, for Plaintiff and Respondent.

Breanna S. (Mother) is the mother of K. S. (born April 2001). K. S.’s father is unknown and is not a party to these proceedings. Mother appeals from the order of the juvenile court terminating her parental rights, alleging that she did not receive proper notice of the hearing held pursuant to Welfare and Institutions Code section 366.26,[1] and that the trial court erred in failing to set the matter for a contested hearing.

FACTUAL AND PROCEDURAL BACKGROUND

After allegations were made in October 2001 that Mother was a user of methamphetamine, and following Mother’s arrest in November 2002 for possession of and being under the influence of methamphetamines, the Department of Children and Family Services (Department) filed a petition on December 20, 2002, when K. S. was 19 months old, alleging that K. S. would suffer serious physical harm or illness pursuant to section 300, subdivision (b)(1). At the time, K. S. was placed in the custody of her maternal great-grandparents, Don and Nelda C. When the allegations of the petition were sustained and K. S. was declared a dependent of the court in January 2003, she was ordered placed with Don and Nelda. During the reunification period, Mother visited K. S. on a regular basis, but for the most part, did not comply with her reunification plan. Reunification services were terminated on September 5, 2003, and jurisdiction was terminated on July 8, 2004. Don and Nelda were named as K. S.’s legal guardians.

A status review report prepared for the July 2004 hearing indicated that K. S. was thriving in placement, in good physical health, and that Don and Nelda were committed, dedicated, and providing appropriate care and supervision.

On August 19, 2005, Don and Nelda filed a section 388 petition requesting adoption of K. S. The social worker’s report prepared for the October 2005 hearing indicated that Mother had not visited K. S. in over a year and that her whereabouts were unknown. The social worker noted that Don was 74 years old and Nelda was 73, but had extended family members who would be able to step in for them.

At the hearing on the section 388 petition on October 28, 2005, the court set the matter for a section 366.26 hearing and granted the Department the authority to serve Mother by publication. Notices were mailed to various governmental agencies and the notices were published for the permanency planning hearing scheduled for February 28, 2006.

The social worker’s report prepared for the February 2006 hearing indicated that K. S. was “developmentally on target,” that she was attached to Don and Nelda, and that it was likely that she would be adopted. It also stated that Don and Nelda had successfully met K. S.’s medical, educational, and social needs and had the support of their adult daughters in caring for K. S. Finally, it indicated that their adoption home study was approved in June 2005.

Mother appeared at the February 28th hearing and counsel was appointed for her. Counsel promptly moved to quash the service of the notice, arguing that all of Mother’s relatives were aware she was living in Las Vegas but that they had not told the social workers. Mother claimed that she had sent packages to K. S. and that Don and Nelda had sent her videotapes of K. S. opening the packages. Mother said she found out about the hearing from a family friend. She admitted, however, that while she had frequently visited family and friends in Los Angeles, she had not seen K. S. for about a year. She also told the court that she had been living at her current address for only one month and prior to that time lived in an apartment on Warm Springs Road for five months.

the court denied the motion to quash, and Mother moved for a continuance and for a contested hearing. The court denied both motions. The court then terminated Mother’s parental rights.[2]

DISCUSSION

A. Service of the Notice

Mother contends that the court erred in denying the motion to quash because the Department’s efforts at service were deficient.

Section 294, as recently amended, provides that the Department must give notice to a parent of a section 366.26 selection and implementation hearing: in person at a prior hearing; by certified mail, return receipt requested to the parent’s last known mailing address; by personal service; delivery to a competent person at the parent’s usual place of residence or business; or by certified mail, return receipt requested to an out-of-state address. (Subd. (f)(1)--(5).) If the parent cannot be served in any of those ways, the Department must file an affidavit before the hearing describing the efforts made to locate and serve the parents. The court must then make a determination of due diligence and may order notice by publication. (Subd. (g)(2).)

“If the whereabouts of a parent are unknown, the issue becomes whether due diligence was used to locate the parent. [Citations.] The term reasonable or due diligence, ‘denotes a thorough, systematic investigation and inquiry conducted in good faith.’ (David B. v. Superior Court (1994) 21 Cal.App.4th 1010, 1016.) Due process notice requirements are deemed satisfied where a parent cannot be located despite a reasonable search effort and the failure to give actual notice will not render the proceedings invalid. (In re Melinda J. (1991) 234 Cal.App.3d 1413, 1418-1419.)” (In re Claudia S. (2005) 131 Cal.App.4th 236, 247.)

We review a due process claim in a dependency proceeding under the harmless beyond a reasonable doubt standard. (In re Justice P. (2004) 123 Cal.App.4th 181, 193.)

The Department’s declaration of due diligence, executed on December 14, 2005, stated that the Department searched the websites for the District Attorney, the Los Angeles County Sheriff’s Inmate Information Center, the California Youth Authority, the Department of Motor Vehicles, AT & T, Lexis Nexis, the Federal Bureau of Prisons, the Probation Department, Voter Registration, and the Welfare Department. Several notices were sent to Mother’s former addresses in San Gabriel and La Puente, but were returned as unclaimed. A letter sent to Warm Springs Road in Henderson, Nevada, was returned undeliverable as addressed.

Notice was published in the Daily Commerce newspaper on several days in December 2005 and January 2006.

“[T]here is no due process violation when there has been a good faith attempt to provide notice to a parent who is transient and whose whereabouts are unknown for the majority of the proceedings. [Citations.]” (In re Justice P., supra, 123 Cal.App.4th at p. 188.)

The issue here is of the Department’s due diligence. Even if Don and Nelda C. were, as Mother claims, withholding information about Mother’s residence from the Department, there is nothing more the Department could have done. Mother complains that the Department should have conducted a thorough search in Nevada, given that it had an address for her in Henderson. This argument ignores the fact that the letter was returned as undeliverable and the majority of Mother’s known contacts were in California. Mother admitted that she had been at her current address for only one month, and had been living at the Warm Springs Road address when the notice was sent. The fact that the Department was able to identify her last known address indicates that its efforts were reasonable, and Mother raised no facts which would indicate that the Department’s efforts were not in good faith. The determination regarding Mother’s credibility in this matter was properly made by the juvenile court. (In re Emily R. (2000) 80 Cal.App.4th 1344, 1353.) While hindsight may reveal other steps which could have been taken, we conclude the Department made a sincere effort to locate transient Mother.

B. Denial of the Motion to Set for a Contested Hearing Was Not a Violation of Due Process

Mother contends that the court erred in refusing to continue the matter or set a contested hearing and should not have denied her that right based upon the insufficiency of her offer of proof.

This case is very similar to In re Tamika T. (2002) 97 Cal.App.4th 1114, a case from this district in which a mother attempted to argue at a section 366.26 hearing that she had the right to a contested hearing, after being absent with no forwarding address for two years. The mother, as in this case, argued that she should be entitled to present evidence on the regular contact and benefit exception of section 366.26. The court requested an offer of proof from the mother and based on her response, denied her the right to a contested hearing. The mother claimed a violation of her due process rights. The court stated, “Because due process is, as we noted in In re Jeanette V. [(1998)] 68 Cal.App.4th 811, a flexible concept dependent on the circumstances, the court can require an offer of proof to insure that before limited judicial and attorney resources are committed to a hearing on the issue, mother had evidence of significant probative value. If due process does not permit a parent to introduce irrelevant evidence, due process does not require a court to hold a contested hearing if it is not convinced the parent will present relevant evidence on the issue he or she seeks to contest. The trial court can therefore exercise its power to request an offer of proof to clearly identify the contested issue(s) so it can determine whether a parent’s representation is sufficient to warrant a hearing involving presentation of evidence and confrontation and cross-examination of witnesses.” (Tamika T. at p. 1122.)

Mother urges us to rethink Tamika T. and cites In re James Q. (2000) 81 Cal.App.4th 255, in which the appellate court held that the juvenile court cannot require an offer of proof as a condition to a contested hearing. But that case involved a hearing regarding the issue of termination of reunification services. Here, the reunification period has long since ended and the hearing was only necessitated because the guardians had filed a section 388 petition to allow them to adopt. (See David B. v. Superior Court (2006) 140 Cal.App.4th 772, 780, which points out that Tamika T. and Jeanette V. involve section 366.26 hearings.) Given the procedural posture of our case, the rationale of Tamika T. applies here.

Mother’s claim that she could have been better prepared for the hearing had she had proper notice is unpersuasive. Counsel, who was appointed to represent her at the hearing, was the same lawyer she had had throughout the case. Mother was given the opportunity to state her case and make an offer of proof. She did not mention any efforts at rehabilitation nor did she affirmatively state that she was prepared to resume her maternal role. The only relationship she claimed with K. S. was based on their contact over a year earlier. Thus, even if she had been able to prove every one of the representations she made at this hearing, she could not have shown the existence of regular contact and a beneficial relationship which would bring her within the section 366.26, subdivision (c)(1)(A) exception. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 953-955.)

Insofar as the likelihood that K. S. would be adopted (§ 366.26, subd. (c)(1)), the social worker’s reports indicated adoptability was never a contested issue, nor was the suitability of Don and Nelda as adoptive parents. Their home study had been approved, and their age was always known and taken into consideration when the social worker made the recommendation. Mother raised no new facts which would have altered these conclusions. While Mother alleged certain misconduct by the adoptive parents, the juvenile court did not find her mere assertions compelling.

DISPOSITION

The order of the juvenile court terminating Mother’s rights is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

SUZUKAWA, J.

We concur:

EPSTEIN, P.J.

MANELLA, J.

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[1] All further references shall be to the Welfare and Institutions Code.

[2] The court stated, “The most significant finding that the court must make at this stage of the proceedings is whether or not, by clear and convincing evidence, the child is adoptable. That is a very easy finding that this court can make. This child is almost five. This child has resided with her maternal great grandparents basically since she was five months old. She is well cared for by them. She doesn’t have any special needs that might be a barrier to her becoming adopted, and all of her needs are well-known to her caretakers, and they are meeting her needs. She actually calls her caretakers Mommy and Daddy. The court can also consider whether or not there are any factors such that it would be detrimental to terminate parental rights. For example, the child has maintained regular -- the parent has maintained regular visitation with the child such that the child has a relationship with the parent such that that relationship would be detrimental to terminate. I don’t have any evidence to support that. . . . The focus is not on the parent and what the parent has done, what the parent has not done, what the parent feels aggrieved about, whether or not the parent feels that the parent was lulled into accepting a situation. If a parent truly wants to be a part of a child’s life, a parent has a responsibility herself to effectuate that. That has not been done here.”

After Mother’s counsel argued that she had a close relationship with K. S. until about a year ago when Nelda and Don took away her vehicle, Mother then admitted that she had come to California twice a month and had found out about the hearing on one of those visits. The court responded, “That just adds greater support to the court’s indicated and to the current status of the case law. [Mother] comes to this community frequently. She sees relatives, and there isn’t any evidence that she’s made any legal -- taken any legal step to preserve whatever right she has had. I find by clear and convincing evidence it is likely this child will be adopted. This child has lived substantially all of her life with her current caretakers, who do desire to adopt her. They are taking very good care of her. They -- she sees them as her parental figures. She calls them Mommy and Daddy. There isn’t any evidence that there would be any barrier to this adoption becoming finalized. There isn’t any evidence that this child has a relationship with her mother such that it would be detrimental to terminate that relationship. And, therefore, I order that parental rights over this child be permanently terminated.”