In re Dante L.

Filed 7/26/07 In re Dante L. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from orders of the Superior Court of Los Angeles County, Jacqueline Lewis, Temporary Judge. (Pursuant to Cal. Const., art. VI,  21.) Affirmed.

Michael A. Salazar, under appointment by the Court of Appeal, for Defendant and Appellant.

Kimberly A. Knill, under appointment by the Court of Appeal, for Minor.

Raymond G. Fortner, Jr., County Counsel, and Kim Nemoy, Deputy County Counsel, for Plaintiff and Respondent.

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A mothers parental rights were terminated and the childs father was granted legal and physical custody, with monitored visits for the mother. The mother appeals. We affirm.

FACTS

By the time Danielle O. was 15, she was addicted to drugs. By the time she was 29, she was pregnant and still using drugs. In 1997, she gave birth to a child, Destiny M., who tested positive for cocaine. Danielle, Destiny, and Destinys father (Attica M.) were the subject of prior dependency proceedings that culminated in the termination of Danielles and Atticas parental rights with regard to Destiny. (In re Destiny M. (Jan. 26, 2001, B140106) [nonpub. opn.].)

While the prior proceedings were pending, Danielle met Peter L. in a sober living home. They married in 1998, and had a son, Dante L., in October 1999. Danielle and Peter separated in 2003 and thereafter shared custody of Dante. Between 2004 and 2006, the Department of Children and Family Services received five general referrals about Dante. Danielle and Peter were divorced in 2006.

Danielle was arrested for misdemeanor battery in July 2006 (a domestic violence incident with her boyfriend, Brent P., which culminated in Danielles conviction, for which she was placed on probation). Dante was taken into protective custody. Danielle refused to give the social worker any information about Peter (Dantes father) but he was ultimately located with information provided by Dantes grandparents. A petition was filed, alleging that Danielle and her boyfriend had a history of domestic violence and substance abuse, that she had a history of mental and emotional problems rendering her unable to care for Dante, and that she had lost her parental rights to another child (Destiny). The petition advised Danielle that the Department might seek an order denying reunification services and an immediate permanency planning hearing.

Peter appeared at the detention hearing but Danielle did not. The dependency court found that notice had been given to Danielle, released Dante to Peter, and scheduled a hearing for August 15. Danielle was served with notice of the August 15 hearing, and the notice informed her that the court would determine at that hearing whether the petitions allegations were true, and that the court would make further orders about Dantes placement. A return receipt shows that Danielle received and signed for the notice on August 2.

A social worker spoke with Danielle by telephone on August 7, at which time Danielle denied all of the allegations and claimed that Destinys positive cocaine screen at birth was not due to her addiction but rather to the fact that Destinys father had used cocaine in Danielles presence while she was pregnant. Danielle, who had been in and out of psychiatric hospitals in the past, was arrested two more times during July.

Peter appeared at the August 15 hearing but Danielle did not. The petition was sustained as amended but the disposition issues were continued to August 28 for a further investigation by the Department. Peter appeared at the August 28 disposition hearing but Danielle did not. The Department recommended that no reunification services be provided to Danielle (Welf. & Inst. Code, 361.5, subd. (b)),[1] but that family maintenance services should be provided to Peter and that Dante should remain with Peter. The dependency court found that notice had been given to all parties, that Danielle was not entitled to reunification services ( 361.5, subds. (b)(10), (11), (13)), and that there was no reason for the dependency courts jurisdiction to continue. The court terminated jurisdiction and entered a family law order giving Peter sole legal and physical custody of Dante, with monitored visits for Danielle.

DISCUSSION

I.

We summarily reject Danielles contention that she did not have notice of the jurisdiction hearing. Her claim that the signature on the return receipt is not hers is nothing more than a conclusory assertion by appellate counsel raised for the first time on appeal, which is not evidence of anything, and there is nothing in the record to support this assertion. ( 291, subd. (d); In re Heather H. (1988) 200 Cal.App.3d 91, 95.)

We also reject Danielles related contention that the notice of the August 15 hearing was insufficient because it did not specifically advise her of the fact that Peter might be granted sole custody of Dante. The notice advised her that the court might remove custody from the parents and make orders about placement. No more was required. (In re Wilford J. (2005) 131 Cal.App.4th 742, 750-751.)

Although we agree with Danielle that the Department failed to notify her when the August 15 proceedings were continued to August 28 (the social worker was supposed to call Danielle but did not), we conclude that, by any standard, the error was harmless. Danielle did not appear at any of the earlier hearings, and there is no reason to believe she would have appeared on August 28. Her assertion that the result might have been different had she been present is unsupported by an offer of proof about what she possibly could have said or done that would have made a difference -- and on the basis of this record, we cannot see what she possibly could have said or done. Without prejudice, we will not reverse. (In re Daniel S. (2004) 115 Cal.App.4th 903, 912-914.)

II.

We summarily reject Danielles contention that the trial court abused its discretion when it granted sole legal and physical custody to Peter. ( 361.2, subds. (a), (b).) There is nothing in Danielles brief or in the record to suggest, let alone show, abused discretion. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 421.)

DISPOSITION

The orders are affirmed.

NOT TO BE PUBLISHED.

VOGEL, J.

We concur:

MALLANO, Acting P.J.

JACKSON, J.*

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*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

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