In re Renee O

Filed 3/2/06 In re Renee O. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from orders of the Superior Court of San Diego County, Hideo Chino, Referee. Affirmed.

Susan O. appeals orders terminating her reunification services and visitation with her daughters, Renee O. and Kristina O., designating permanent plans for Renee and Kristina, and denying her request for a continuance. Susan contends she was denied due process because she did not receive proper notice of the issues considered at the 12-month review hearing. She also contends she did not receive reasonable reunification services and the court abused its discretion by denying her request for a continuance. We affirm the orders.

FACTUAL AND PROCEDURAL BACKGROUND

Renee was born in 1988 and Kristina in 1990. In 1991 and 1992, services were offered to the family because Susan used drugs and neglected her children. In March 1993, the San Diego County Health and Human Services Agency (the Agency) petitioned under Welfare and Institutions Code section 300, subdivision (b),^[1] alleging Renee, Kristina, and their older brother, Brian O.,^[2] were at risk of harm after Susan was arrested for being under the influence of an illicit drug and possessing a cocaine pipe. Susan's history included homelessness, domestic violence and arrests for prostitution and drug possession. Renee and Kristina were placed in foster care. After Susan participated in services, the girls were returned to her care and the family moved to Los Angeles County. Renee and Kristina reported that after they moved to Los Angeles County Susan resumed using drugs.

In 2003 Susan left Renee and Kristina in the care of their maternal aunt and uncle in San Diego County and went to Mexico. She later returned to the aunt and uncle's home, caused disturbances, and the police were called. Renee and Kristina said they did not want to return to Susan's custody. The aunt obtained a restraining order against Susan.

By March 2004, Kristina was at Bayview Hospital because she attempted to commit suicide and had thoughts of hurting her 15-month-old cousin. Renee admitted she had been cutting herself and wanted to commit suicide. The aunt and uncle could no longer provide care for them. Renee and Kristina said that when they lived with Susan she used illegal drugs and alcohol and physically abused them; Kristina said Susan tried to molest her; and Renee said Susan allowed her to drink alcohol. On March 30, the Agency petitioned under section 300, subdivision (b) based on Susan's drug use. The court made prima facie findings on the petitions, detained Renee and Kristina in out-of-home care and ordered supervised visitation.

Susan appeared in court on April 20, 2004. The court noted her address in Lancaster, California.

Susan's case plan required her to have counseling, parenting education, a psychological evaluation and an evaluation by the Substance Abuse Recovery Management System (SARMS). The social worker recommended foster care for Renee and residential treatment for Kristina. Renee was dependent on those around her. She had trouble adjusting to living in a safe environment with her aunt and uncle, and acted out by drinking and mutilating herself. Kristina suffered from depression and posttraumatic stress disorder. Susan did not appear at the jurisdictional hearing on May 21, 2004, but was represented by counsel. Her counsel said Susan intended to remain in Los Angeles County. The court found the allegations of the petitions true and ordered visitation to be supervised, with Renee and Kristina's wishes regarding visitation to be considered.

At the June 10, 2004 disposition hearing, Susan appeared by telephone. The court declared Renee and Kristina dependents, and placed Kristina in a group home and Renee in foster care. It ordered Susan to comply with the provisions of her case plan. Her attorney noted Susan's corrected address in Lancaster.

For the six-month review hearing, the social worker reported that since May 2004 Kristina had been living in a group home and in June 2004 Renee had returned to live with her aunt and uncle. The social worker had made numerous telephone calls to Susan and left messages, but was unable to contact her. Renee and Kristina said they did not want further contact with Susan.

Susan did not attend the six-month review hearing on December 7, 2004. Her attorney reported Susan was concerned because no services had been arranged for her in the Los Angeles area. The court found reasonable services had been provided, continued Renee and Kristina in out-of-home care, and continued services. The court commented: "Well, it sounds like we're heading towards reunification."

In the 12-month review hearing report, the social worker recommended another six months of services. The social worker had referred Susan to services near her home in Lancaster. Although the social worker traveled to Lancaster to meet with Susan, she had only telephone contact with her. The social worker noted that some months earlier a Lancaster attorney called to tell her that Susan had hired him to represent her. She said she referred the attorney to Susan's appointed counsel. Renee and Kristina said they did not want to see Susan. They talked with her by telephone with their therapists, but the telephone calls did not go well. Susan blamed Renee and Kristina for what had happened and hung up on them.

At the scheduled 12-month hearing on May 25, 2005, Renee's and Kristina's counsel disagreed with the social worker's recommendation to continue services to the 18-month date and requested a continuance. Susan was not present at the hearing. The court set the continued 12-month hearing for June 13. However, the address on the notice of the hearing mailed to Susan contained an error and was returned.^[3]

Susan did not appear at the June 13, 2005 hearing. Her counsel told the court she had spoken with Susan and told her of the date of the hearing, and Susan said she would attend. The court denied her attorney's request for a continuance. At the hearing, Renee testified she did not believe reunification services should continue because Susan had made no effort with the services she had been offered. Renee said she did not want further contact with Susan.

The court terminated services and visitation. Because Renee and Kristina were not adoptable and no one was willing to accept guardianship, it established "[other] permanent planning living arrangement[s]."

DISCUSSION

I

Notice

Susan contends she was denied due process because she did not receive substantive notice of the issues considered at the July 13, 2005 12-month hearing. She argues she was not given notice of that hearing and the notice sent to her of the originally scheduled May 25 hearing did not state the court was considering terminating her reunification services and visitation, but, rather, stated the Agency was recommending "[n]o change in the custody, status or any existing court ordered permanent plan for the child."

"[D]ue process requires 'notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.' " (In re Melinda J. (1991) 234 Cal.App.3d 1413, 1418.) "The essence of due process is fairness in the procedure employed . . . ." (Ingrid E. v. Superior Court (1999) 75 Cal.App.4th 751, 757.)

Susan has not shown she was denied due process by a lack of notice. Although notice of the July 13, 2005 hearing was sent to the wrong address, the record shows that Susan had actual notice of the hearing and of the issues that would be before the court. Her counsel stated Susan knew of the hearing and had told her she intended to be present. Counsel further stated:

"At this point the mother would be submitting on the recommendation to continue with six more months of reunification services. However, if that recommendation were to change to not offer mother services she would argue that she has not been given reasonable services as she has not received any referrals for services and has had limited contact with the Agency."

Her counsel's remarks suggest Susan was aware of the hearing being held that day and the possibility that the recommendation for continuing services would change. Further, at the disposition hearing in June 2004, Susan was advised she would have only 12 months to reunify with Renee and Kristina, and the minute order from the six-month hearing contains a warning that it appeared the girls would not be returned home by the next review hearing and a permanent plan would need to be selected.

Susan's reliance on In re DeJohn B. (2000) 84 Cal.App.4th 100 is misplaced. There, the reviewing court reversed orders made at a six-month hearing that terminated reunification services and set a section 366.26 hearing because the social services agency had made no effort to notify the mother of the hearing. (In re DeJohn B., at pp. 104, 110.) The court stated: "Where SSA fails even to make an effort to provide mother the procedural safeguard of notice, reversal is mandated." (Id. at p. 110.) Here, by contrast, Susan had written or actual notice of all of the dependency proceedings and she was cautioned that she would have 12 months to reunify with Renee and Kristina. She had appointed counsel throughout the proceedings. Although in the notice of the 12-month hearing the Agency recommended the court continue services, Susan's counsel was present on May 25, 2005, when Renee's and Kristina's counsel objected to that recommendation and a date was set for a contested hearing. Susan's counsel informed her of the date of the hearing. The Agency attempted to provide notice of all the proceedings. The holding of In re DeJohn B. does not support Susan's argument.

The error in the address of the notice sent to Susan was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)^[4] Susan has offered no argument about how she was prejudiced by not being present at the hearing. She had counsel throughout the proceedings. Her counsel attended the hearing on May 25, 2005, and told her of the new date for the hearing. At the July 13 hearing, Susan's counsel argued services should not be terminated and Susan had not received reasonable services. Susan argues only that she might have attended had she known the issues to be decided. She has not shown there would have been any different result had she received written notice. She has not shown prejudice.

II

Reunification Services

Susan asserts she did not receive reasonable reunification services or regular visitation with Renee and Kristina. She claims the Agency did not provide referrals for services in the Lancaster area and faults the social worker for not making adequate attempts to maintain contact with her.

"[W]e must indulge in all reasonable inferences to support the findings of the juvenile court [citation], and we must also '. . . view the record in the light most favorable to the orders of the juvenile court.' [Citation.]" (In re Luwanna S. (1973) 31 Cal.App.3d 112, 114.) In determining the sufficiency of reunification services, the role of the appellate court is to decide "whether the record discloses substantial evidence which supports the juvenile court's finding that reasonable services were provided or offered. [Citations.]" (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.) A service plan must take into account the specific needs of the family. (In re Riva M. (1991) 235 Cal.App.3d 403, 414.) The standard is not that the best possible services were provided, but that reasonable services were provided under the circumstances. (In re Misako R. (1991) 2 Cal.App.4th 538, 547.) The appellant bears the burden to show the evidence is insufficient to support the court's findings. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

Susan has not shown the court erred by finding she was provided reasonable services. The Agency made a reasonable effort to provide services in the Lancaster area. We grant the Agency's motion to augment the record on appeal with additional evidence, which includes a June 22, 2004 letter and service referrals the social worker sent to Susan. Acceptance of this evidence is not prohibited by In re Zeth S. (2003) 31 Cal.4th 396. In In re Zeth S., the California Supreme Court held the appellate court had erred by accepting evidence of subsequent events presented through unsworn statements of counsel, which evidence was irrelevant to the issues before the juvenile court, and using that evidence for the purpose of reversing the judgment. (Id. at pp. 410, 412-413.) The social worker's letter and the list of referrals she sent to Susan were relevant evidence to the issue before the juvenile court of whether Susan was offered reasonable services. It is not in the form of unsworn testimony and it is presented for the purpose of upholding, rather than reversing, the orders. The motion to augment the record on appeal with additional evidence is granted.

In the May 25, 2005 status review report the social worker reported Susan had been provided with a list of available services near the Lancaster area, including parenting classes, substance abuse programs and services of therapeutic intervention, including individual therapy and a psychological evaluation. The social worker additionally reported that in January and February 2005 she traveled to Lancaster to meet with Susan, but was not able to see her. The evidence included in the motion to augment the evidence on appeal includes a letter the social worker sent to Susan, dated June 22, 2004, in which she states she has attached an extensive list of service referrals in the Lancaster/Los Angeles area. The evidence also includes numerous pages downloaded from a Los Angeles website of health and human services agencies in Los Angeles County. This evidence shows Susan was provided with reasonable service referrals, but there was no evidence she utilized any of the referrals the social worker sent to her.

We also reject Susan's argument that visitation was inadequate. Throughout the dependency period Renee and Kristina continued to insist that they did not want to visit Susan. Susan's claim that there was a time when Kristina wanted to see her is based only on Susan's own statement. The social worker reported Kristina continued not to want contact with Susan. The telephone calls between Susan, Renee, Kristina and their therapists were not successful. Susan became angry during the calls and even hung up on them.^[5] Renee testified she did not want further contact with Susan. Susan has not shown she did not receive reasonable reunification services or visitation.

III

Denial of Request for Continuance

Susan asserts the court abused its discretion by denying her request for a continuance so she could be present at the July 13, 2005 12-month hearing. The juvenile court may grant a continuance only on a showing of good cause. "[T]he court shall give substantial weight to a minor's need for prompt resolution of his or her custody status." (§ 352, subd. (a).) "Continuances are discouraged [citation] and we reverse an order denying a continuance only on a showing of an abuse of discretion [citation]." (In re Ninfa S. (1998) 62 Cal.App.4th 808, 810-811.)

Susan has not shown an abuse of discretion. At the July 13, 2005 hearing, Susan's counsel stated she expected Susan to attend and she did not know why she had not appeared. There was no showing of good cause to allow the court to continue the hearing. Although Susan lived some distance from San Diego, were she not able to be present in person she could have appeared by telephone as she did at the hearing on June 10, 2004. She did not make arrangements to do so. There was no abuse of discretion.

DISPOSITION

The orders are affirmed. The motion to augment the appeal record is granted.

McDONALD, J.

WE CONCUR:

BENKE, Acting P. J.

IRION, J.

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

^[2] Brian is not a subject of this appeal.

^[3] The notice was mistakenly addressed to 8287 West Avenue in Lancaster, instead of 828 West Avenue.

^[4] The Agency relies on Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 1514-1515 to argue that should the misaddressed notice be deemed error, an error of this type is better analyzed under the standard of whether the error is harmless by clear and convincing evidence. Because we conclude the error here was harmless beyond a reasonable doubt, we do not discuss whether it should be evaluated under the lesser standard of whether it was harmless by clear and convincing evidence.

^[5] The social worker noted in the 12-month report that Renee's and Kristina's therapists believed Susan continued to take no responsibility for her own actions and to blame the girls for what had happened to them. Renee and her therapist commented Susan appeared to be under the influence of a drug during a supervised telephone call that occurred 10 months after the court ordered her to comply with her reunification plan.