Suzanne S. v. Superior Court

Filed 7/30/07 Suzanne S. v. Superior Court CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Jane A. Cardoza, Judge.

Paul Hinkly, Acting Public Defender and Cheryl K. Turner, Deputy Public Defender, for Petitioner.

No appearance for Respondent.

Dennis A. Marshall, County Counsel and William G. Smith, Deputy County Counsel, for Real Party In Interest.

-ooOoo-

Petitioner Suzanne S. seeks an extraordinary writ (Cal. Rules of Court, rule 8.450-8.452) to vacate the orders of the juvenile court terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing^[1]as to her son I. We will deny the petition.

STATEMENT OF THE CASE AND FACTS

Petitioner has a history of drug and alcohol abuse as well as convictions for drug-related offenses. In July 2006, while an inmate, petitioner gave birth to I. at eight months gestation. She admitted using crack cocaine and drinking Vodka on a daily basis for the first seven months of her pregnancy. Unsure whether she wanted to keep I., petitioner signed a 30-day voluntary placement agreement with an adoption agency (agency). The agreement required the agency to return I. to petitioners custody if, after 30 days, petitioner did not finalize the adoption.

On August 18, 2006, petitioner was released from jail and court-ordered to complete drug treatment at the Spirit of Women, a six-month residential drug treatment program. Instead, she became homeless and resumed using drugs. After 30 days elapsed without any word from petitioner, the agency attempted unsuccessfully to contact her. Lacking the authority to retain custody of I., the agency turned him over to the Fresno County Department of Children and Family Services (department) who in turn placed him in foster care. The department also filed a dependency petition pursuant to section 300, subdivisions (b) (substance abuse) and (g) (parental whereabouts unknown).

On September 5, the court formally detained I. pursuant to the petition and found petitioner was not notified of the detention hearing because her whereabouts were unknown. The court ordered the department to offer petitioner the following services when she contacted the department: parenting, substance abuse and mental health evaluations and recommended treatment and random drug testing.

On September 11 and 12, the department searched for petitioner through the official databases correctly inputting her middle and last names and birth date but misspelling her first name as Susanne. Notably, this was not the first time the department misspelled petitioners name. Even though the departments service logs from August reflect the correct spelling of petitioners first name, the department misspelled her name (Susanna) on the dependency petition and on the departments detention report.

The search yielded seven listings through the sheriffs department database, three of which matched petitioners birth date, and the correct spelling of her first and last name and her middle initial. It also listed five addresses, three of which were virtually identical with respect to the street name and address. Continuing in its misspelling of petitioners name, the department addressed letters to Susanna S. at three of the addresses but received no response.

Over the next several months, petitioners whereabouts remained unknown as dependency proceedings continued. On September 26, the department filed a declaration averring that a diligent search for Susanne S. failed to locate petitioner. That same day, at the jurisdictional hearing, the court found proper notice was given and adjudged I. a dependent pursuant to the petition. At the dispositional hearing on October 24, the court denied petitioner reunification services because her whereabouts were unknown ( 361.5, subd. (b)(1)). The court also denied services to I.s alleged father and set the six-month review hearing for February 27, 2007.

In late November 2006, the department located petitioner in jail after her four-year-old son M. was removed from his father and detained by the juvenile court. In December, the juvenile court consolidated M. and I.s cases and, at M.s jurisdictional hearing on December 27, 2006, appointed the attorney representing petitioner in M.s case to also represent her in I.s case. The court also granted petitioner weekly visitation with I. and set M.s dispositional hearing for January 24, 2007.

In mid-January, a departmental review panel met and concluded petitioner should be denied reunification services under section 361.5, subdivision (e)(1) for M. and I. because of her incarcerated status and additionally under section 361.5, subdivision (b)(13) as to I. because of her drug history and resistance to treatment. The panel also concluded providing services would be detrimental to I. because petitioner had not established a relationship with him, intended to adopt him and had only been able to visit him in jail through the glass partitions.

Petitioners attorney contested the departments recommendations and filed an ex parte application, asking to join in M.s dispositional hearing set for February on the grounds that the departments misspelling of petitioners first name deprived her proper notice of the pendency of I.s case. The court denied the request and, at M.s dispositional hearing, ordered petitioner reunification services.

In its report for the February 27 six-month review hearing as to I., the department reported petitioner was participating in the life skills and life changing programs and working on her General Education Degree while in jail. She also completed a substance abuse evaluation for the department, which resulted in a recommendation she complete residential drug treatment. However, given the unavailability of drug treatment at the jail and petitioners scheduled release date of April 21, 2007, the department concluded she would not be able to complete treatment and reunify with I. within another six months. Consequently, the department recommended the court deny petitioner reunification services and set a section 366.26 hearing.

On February 27, the court convened and continued the six-month review hearing as to I. to allow petitioner to be interviewed by the staff at the Spirit of Women. The court reconvened the hearing several times in March during which it set a contested review hearing, ordered paternity testing for I.s alleged father and ordered petitioner to file a statement of contested issues. Meanwhile, in mid-March 2007, petitioner was released from custody into the Spirit of Women.

In her statement of contested issues, petitioner argued the departments misspelling of her name deprived her notice of the hearings prior to December 2006. She also argued the department should have complied with the courts detention order by providing her services as soon as her whereabouts became known. Finally, she argued, the subdivisions of section 361.5 offered by the department to deny her services were inapplicable because she was no longer incarcerated and because she was participating in drug treatment.

On April 20, at the first of two hearings addressing petitioners issues, the court granted county counsels request to change the departments recommendation from denial of reunification services to termination of reunification services. The entirety of the hearing centered on whether the departments search using the misspelling of petitioners first name rendered notice defective. After extensive argument, the court continued the matter to allow petitioner to file a declaration detailing her whereabouts from the inception of the case.

In her declaration, petitioner stated she believed I. had been adopted until she appeared at M.s jurisdictional hearing on December 27 and was told by her attorney that I. was the subject of dependency proceedings. She also stated that she was homeless at all times subsequent to her release from custody in August except for the nights of September 13 and October 30, which she spent in custody, as well as a period of incarceration from November 2 until March 13, 2007.

The contested six-month review hearing resumed and concluded on April 27, 2007. Petitioners attorney continued to argue the misspelling of petitioners first name prevented the department from locating her through other sources such as the county jail but could not refute that she was homeless when the department conducted its initial search and when the dispositional hearing was conducted. Petitioners attorney also argued one of the addresses listed but not utilized by the department belonged to petitioners grandparents. Had the department sent petitioner notice at that address, her attorney stated, perhaps petitioner would have received it. Nevertheless, her attorney could not dispute that such a claim was speculative. On the issue of petitioners participation in drug treatment, she submitted a letter from her case manager dated April 20, stating her attendance and participation was more than satisfactory. !(CT 162)! Further, petitioner was scheduled to complete the residential phase of the program in September 2007 followed by six months of aftercare.

Following argument, the court found notice was proper. The court also found I. could not be safely returned to petitioners custody and the department provided her reasonable services but she failed to regularly participate in and make substantive progress in her court-ordered services. Consequently, the court terminated petitioners reunification services and set a section 366.26 hearing. The court also found paternity testing established the biological paternity of I.s alleged father. This petition ensued.

DISCUSSION

I. Petitioners due process right to notice was not violated.

Petitioner argues the department failed to exercise due diligence because it misspelled her first name and did not send the notice letter to her grandparents address. Consequently, she contends, she was deprived her due process right to notice. We disagree.

In order for the juvenile courts orders leading up to the section 366.26 hearing to be accorded finality, due 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 Emily R. (2000) 80 Cal.App.4th 1344, 1351; citing Mullane v. Central Hanover Tr. Co. (1950) 339 U.S. 306, 314.) Such notice requires the department to undertake a thorough, systematic investigation and inquiry conducted in good faith. (David B. v. Superior Court (1994) 21 Cal.App.4th 1010, 1016.)

Where, as in this case, the department alleged petitioners whereabouts to be unknown, the issue becomes whether due diligence was used to locate her. (In re EmilyR., supra, 80 Cal.App.4th at p. 1352; citing Mullane v. Central Hanover Tr. Co., supra, 339 U.S. at pp. 317 & 319.) If a party conducting the investigation ignores the most likely means of finding the parent, the service is invalid. (In re Arlyne A. (2000) 85 Cal.App.4th 591, 598.)

Further, since the court found the department exercised due diligence to locate petitioner and since petitioner bears the burden of demonstrating error on appeal (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632), she must show the courts finding was not supported by substantial evidence. On review, we conclude petitioner failed to satisfy her appellate burden.

The record reflects, and petitioner concedes, the department searched all the usual databases, including the county jail. However, on the days it searched, September 11 and 12, petitioner was not in custody. Further, even though there is no evidence the department made any other attempts to search, petitioner admitted she was homeless at all times between the detention hearing on September 5 and the dispositional hearing on October 24, with the exception of the one overnight stay in jail on September 13. Even if petitioner had been in county jail during this timeframe, she provided no evidence that the misspelling of her first name would have prevented the department from locating her there.

Further, while there is no explanation as to why the department did not attempt to notify petitioner using the address she claimed was her grandparents, there is also no evidence that doing so would have located her. Petitioner did not present evidence she maintained direct contact with her grandparents or anyone else who did.

Thus, given the limited information it had, we conclude the departments efforts were reasonably calculated under the circumstances to notify petitioner of the proceedings. There 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. (In re Justice P. (2004) 123 Cal.App.4th 181, 188.)

II. The juvenile courts failure to appoint petitioner counsel at the

dispositional hearing did not violate her statutory right to counsel

or violate her due process right to counsel.

Building on her argument the juvenile court erred in finding the department exercised due diligence in locating her, petitioner argues the court also erred in conducting the dispositional hearing without appointing her counsel. In essence she argues, had the court continued the dispositional hearing and forced the department to step up its efforts to locate her, she probably would have eventually been located in jail. Once located in jail, she would have appeared at the dispositional hearing, been appointed counsel and the court would have ordered reunification services as it did in M.s case. Under that scenario, she also argues she was prejudiced by the courts erroneous finding and failure to appoint counsel.

All the would haves required to set forth petitioners argument portend the speculation required to make it. Moreover, certain legal principles, which she ignores, and the facts of the case are problematic to her claim.

First of all, we concluded the department exercised due diligence in attempting to locate petitioner. Therefore, the real issue is whether petitioner was entitled to counsel at the dispositional hearing even though her whereabouts were unknown. We are guided by the following well-settled principles.

An indigent parent has the statutory right to appointment of counsel in dependency proceedings. ( 317; In re Kristin H. (1996) 46 Cal.App.4th 1635, 1659.) Section 317, subdivision (a)(1) provides: When it appears to the court that a parent or guardian of the child desires counsel but is presently financially unable to afford and cannot for that reason employ counsel, the court may appoint counsel as provided in this section. Implicit in the statute is the requirement the indigent parent manifest his or her desire for representation. (In re Ebony W. (1996) 47 Cal.App.4th 1643, 1647.) In the absence of some indication the parent desires counsel, the court is not obligated to appoint counsel. (Id. at p. 1648.) Further, in addition to his or her statutory rights, an indigent parent may in some cases have a due process right to counsel where the termination of parental rights may result. (In re Kristin H., supra, 46 Cal.App.4th at p. 1659.)

In this case, the court appointed petitioner counsel when petitioner first appeared in the proceedings at M.s jurisdictional hearing. Prior to that, her whereabouts were unknown and she was homeless. Consequently, the court had no statutory obligation to appoint counsel to represent her at the dispositional hearing. Further, petitioners parental rights were not at risk at the dispositional hearing. Therefore, the courts failure to appoint her counsel did not violate her right to due process.

Finally, even assuming error, petitioner fails to show there would have been a more favorable outcome; i.e. that appointment of counsel would have resulted in a grant of services. (In re Ronald R. (1995) 37 Cal.App.4th 1186, 1195.) According to the record, the department contemplated recommending denial of services under section 361.5, subdivision (b)(13) under which the juvenile court can deny reunification services when it finds by clear and convincing evidence the parent has a history of extensive, abusive, and chronic use of drugs or alcohol and has resisted prior treatment for this problem during a three-year period immediately prior to the filing of the petition that brought that child to the courts attention. Suffice it to say that petitioner made no attempt to dispute the applicability of this statute in her contested statement of issues nor did she provide much by way of mitigation. She simply argued she was participating in drug treatment. Consequently, to argue appointment of counsel would have given her a chance at reunifying with I. is speculative at best. We find no error in the courts failure to appoint counsel at the dispositional hearing.

III. The juvenile court properly terminated petitioners

reunification services at the six-month review hearing.

Petitioner argues the department unreasonably delayed in offering her services. Consequently, she claims the court erred in finding she was provided reasonable services and in terminating them. We disagree.

On a challenge to the juvenile courts reasonable services finding, we view the evidence in a light most favorable to the respondent, indulging in all legitimate and reasonable inferences to uphold the verdict. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) If substantial evidence supports the juvenile courts finding, we will not disturb it. (Ibid.)

In this case, it is undisputed petitioner was incarcerated from early November 2006 until she was released to residential drug treatment in mid-March 2007. There is no evidence that the services ordered for petitioner were available to her during that time. Therefore, she cannot argue any delay on the part of the department, assuming it occurred, was unreasonable. Further, the record reflects the department arranged for petitioner to complete a substance abuse evaluation which resulted in her placement in the residential drug treatment program. From this, we conclude the departments efforts to assist petitioner in accessing services were reasonable and the court did not err in so finding.

In light of the reasonable services offered, the juvenile court had no choice but to proceed to permanency planning since I. was under the age of three when initially removed from petitioners custody. ( 366.21, subd. (e).)^[2] Accordingly, we affirm the juvenile courts orders terminating reunification services and setting the section 366.26 hearing.

DISPOSITION

The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.

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^*Before Vartabedian, Acting P.J., Levy, J., and Cornell, J.

^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] As a caveat, were the juvenile to have found a substantial probability I. may have been returned to petitioners custody within another six months, it would have been required to continue services to the 12-month review hearing. ( 366.21, subd. (g)(1).) However, petitioner did not make that argument at the six-month review hearing or on appeal.