In re I.D.

Filed 9/24/07 In re I.D. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

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

Merrill Lee Toole, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Tracey F. Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.

______________________________

INTRODUCTION

Mother appeals from the judgment terminating her parental rights. She contends that she was denied due process when she was not given notice of the continued Welfare and Institutions Code section 366.26 hearing, after she had failed to appear at the properly noticed initial hearing.[1] We find the error harmless beyond a reasonable doubt and affirm the judgment.

BACKGROUND

I.D. was detained shortly after birth in October 2005, when he tested positive for methamphetamine, as did appellant. Appellant admitted to the social worker she had been using methamphetamine and marijuana for two years. Appellant failed to appear at the detention hearing, at which the Department of Children and Family Services (Department or DCFS) was ordered to provide her with referrals to drug rehabilitation with random testing and individual counseling. I.D. was placed in confidential foster care.

The social worker was unable to locate appellant for approximately one month, finally reaching her by telephone after calling the cell phone number of a friend of appellants. She informed appellant of the next hearing, and written notice was mailed to appellants last known address. Appellant promised the social worker she would call the next day for a telephone interview, but failed to do so, and failed to appear on the next hearing date, November 28, 2005. I.D. was adjudicated a ward of the juvenile court on that date, and the court ordered reunification services, permanency planning and an adoptive home study.[2] Appellant was ordered to participate in individual counseling, drug counseling, random drug testing and a parenting course. The matter was continued to February 27, 2006, for a progress report.

On February 27, the social worker reported she had left five telephone messages for appellant and had sent a certified letter to her last known address, requesting that she contact the Department, but had received no response. Appellant did not appear at the progress hearing, and the matter was continued to May 1, 2006. In the meantime, the social worker attempted to locate appellant by going to the address she had given, but appellant was unknown there. The social worker spoke to a neighbor, a long time resident of the apartment next door, but he did not know who appellant was or whether she had ever lived there. The social worker searched the child support divisions parent locator database, as well as records of the Los Angeles County jail, state prison and the Department of Motor Vehicles. She searched probation and parole records, requested an address correction from the postal service and telephoned the registrar of voters. She was unable to locate appellant.

On May 1, 2006, when appellant again failed to appear, the juvenile court found the notice defective and ordered the Department to establish further due diligence. By that time, I.D. had been placed with prospective adoptive parents, and the matter was continued to May 30, 2006 for a permanent plan hearing. Prior to the continued hearing, the social worker conducted a similar search, and sent notice of hearing to appellants last known address, but was unable to locate her. On May 30, 2006, the matter was continued to June 26, 2006, for further due diligence.

On June 26, the Department was notified by appellants drug counselor that appellant had entered an in-custody drug treatment program May 26, 2006, and was scheduled to be released to a residential program July 5. Appellant appeared at the continued six-month review hearing on June 26, and the matter was scheduled for a contested hearing at appellants request on July 24, later continued to August 16, 2006. Appellant was present on July 24, and requested the continuance. The contested review hearing went forward August 16, 2006.

After hearing the evidence, the juvenile court found the Department had provided reasonable services, but appellants progress had been minimal, and returning I.D. to appellants physical custody would create a substantial risk of detriment to his safety and physical and emotional well-being. Finding there was little likelihood that I.D. would be returned to appellant by the 12-month review date of November 28, 2006, the court ordered reunification services terminated, and set a hearing for December 12, 2006, to consider termination of parental rights and a permanent plan pursuant to section 366.26. The court ordered appellant to return on that date without further order, notice or subpoena.[3]

Nevertheless, in addition to the courts order directing appellant to appear, she was served with notice of the December 12 hearing by certified mail, delivered October 26, 2006. Appellants signature appears on the postal receipt. In addition, appellant was personally served. Despite notice, appellant failed to appear at the December 12 hearing, and her attorney asked the court to set a contested hearing, in order to give counsel time to contact appellant. The juvenile court set the hearing for January 4, 2007, and ordered appellants counsel to notify her.

Appellant did not appear January 4, and her attorney requested a continuance, as she had not been able to reach appellant, and had received no direction from her. The court denied the request, found I.D. adoptable and found that he had been placed with approved prospective parents willing to adopt him. The court terminated appellants parental rights, and scheduled an adoption progress hearing for June 7, 2007. Appellant timely filed a notice of appeal February 20, 2007, signed on her behalf by her attorney.

DISCUSSION

Appellants sole contention on appeal is that notice of the continued section 366.26 hearing was defective, as there was no evidence she had been properly served with written notice or that she had actual notice of the hearing on January 4, 2007. Appellant concedes she was personally served with notice of the initial section 366.26 hearing, set for December 12, 2006. She contends she was entitled to similar notice of the continued hearing, and that the social worker was required to serve such notice in the manner set forth in section 294, subdivision (f), viz., certified mail, personal delivery or substituted service followed by first class mail.

Appellant is mistaken. Section 294, subdivision (f) sets forth the required service for the initial section 366.26 hearing, notice of which she concedes was properly given. The notice required for a continued hearing under such circumstances is found in section 294, subdivision (d), which provides that among other methods, subsequent notice of a continued section 366.26 hearing may be made by any other means that the court determines is reasonably calculated, under any circumstance, to provide notice of the continued hearing.

The courts chosen method of notifying appellant -- ordering counsel to give notice -- did not succeed. On January 4, 2007, counsel represented to the court she had been unable to reach appellant, and the record contains no proof of service by mail or any other method. Nevertheless, the court expressly found notice to be good. The court erred, as a parent who fails to appear at a properly noticed section 366.26 hearing must be notified of the continued hearing. (In re Phillip F. (2000) 78 Cal.App.4th 250, 258 (Phillip F.).) Absent some evidence of actual notice, such as by first class mail or notification by counsel, or evidence the parent knows of the continued hearing, reversal is required unless the reviewing court finds the error harmless. (In re Angela C. (2002) 99 Cal.App.4th 389, 395 (Angela C.).)

Appellant does not address the issue of harmless error, but contends instead that the error is structural, requiring reversal without regard to prejudice. We disagree. [T]he lack of notice of a continuance is in the nature of a trial error . . . not structural; however, because the continued hearing implicates due process, it must appear the error was harmless beyond a reasonable doubt, under the standard of Chapman v. California (1967) 386 U.S. 18, 24. (Angela C., supra, 99 Cal.App.4th at p. 395; see also id. at pp. 391, 394-395.) Appellants reliance on In re Jasmine G. (2005) 127 Cal.App.4th 1109, is misplaced. In that case, the lack of notice was reversible per se, because unlike here, the social worker had made no effort to notify the parent of the initial hearing, despite having had regular contact with her and knowing her address. (See id. at pp. 1114-1115, 1118.)

Under facts nearly identical to those in this case, the court in Angela C. observed that had the court proceeded on the originally scheduled hearing date, as it had every right to do with respect to appellant, that hearing too would have been uncontested in that appellant failed to attend the hearing as originally noticed or notify anyone as to her position. (Angela C., supra, 99 Cal.App.4th at p. 395.) The court concluded that a harmless error assessment should include the appellants prior participation in the proceedings, as well as her election not to attend the originally scheduled termination hearing. . . .  [Citation.] (Ibid.) Here, appellant has not shown or suggested she would have appeared on January 4, 2007, had notice been served by mail. Appellants history of failing to maintain contact with the Department, her failure to appear at several hearings despite notice and her failure to keep the Department, the court or her attorney apprised of her current addresses, militate against such a probability.[4]

Moreover, there is no reason to believe appellant would have contested the issues at the January hearing, as the sole issues in a section 366.26 hearing are whether the minor is adoptable and whether any exceptions to adoption are applicable. (In re Christopher M. (2003) 113 Cal.App.4th 155, 160.) Once the juvenile court found I.D. adoptable and likely to be adopted, termination of appellants parental rights was required, unless appellant met her burden to establish one of the statutory exceptions, leading the court to find termination would be detrimental to I.D.s best interests. (See 366.26, subd. (c)(1); Angela C., supra, 99 Cal.App.4th at p. 396.) As respondent points out, because the court found I.D. adoptable and likely to be adopted, the only exception appellant might possibly have advanced at a contested section 366.26 hearing would have been a claim that she had maintained regular visitation and contact with I.D. (See  366.26, subd. (c)(1)(A); see also Judith P. v. Superior Court (2002) 102 Cal.App.4th 535, 554, fn. 13 [distinguishing between burden on DCFS at pre-permanency planning stage, and burden on parent at section 366.26 hearing to show exception applied to overcome presumption that adoption was the best permanency plan, by demonstrating not only that some other plan was in the childs best interests, but also that she had maintained regular visitation with the child].) However, appellant had already admitted at the August 2006 hearing that she had not visited I.D. between November 2005 and her arrest in April 2006. Between August and October 2006, appellant had four monitored visits with I.D., cancelled a fifth and failed to appear for a scheduled visit in late November. By the time of the initial section 366.26 hearing in December 2006, I.D. had been with his prospective adoptive parents for more than six months. Appellant had actual notice of these facts and failed to appear or contact her attorney, the social worker or the court.

On this record, we fail to see how appellant could have demonstrated that she had maintained regular contact and visitation with I.D. Accordingly, we conclude the lack of actual notice of the continued section 366.26 hearing was harmless beyond a reasonable doubt. (See Angela C., supra, 99 Cal.App.4th at pp. 394-395.)

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

WILLHITE, Acting P. J. SUZUKAWA, J.

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

[2] I.D.s father, Edgar D., was never located, despite a diligent search, and is not a party to this appeal.

[3] After appellant filed a petition for writ of mandate to review the order of August 16, we issued an order to show cause, and directed further briefing. In a published opinion, we denied the petition November 28, 2006. (See Tonya M. v. Superior Court (2006) 145 Cal.App.4th 125, review granted Feb. 21, 2007, S149248.) Review is still pending in the California Supreme Court, and no stay has been issued.

[4] The address listed on the notice of appeal as appellants is that of her attorney, suggesting the possibility of an unauthorized appeal, which would justify dismissal. (See In re Steven H. (2001) 86 Cal.App.4th 1023, 1029.) However, counsel submitted a declaration stating appellant had requested that she file the notice of appeal. She did not explain the use of her address, but evidence in the record indicates that appellant has had periods of homelessness.