Filed 6/28/17 In re Cindy A. CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

In re CINDY A., a Person Coming Under the Juvenile Court Law.

MERCED COUNTY HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

v.

CYNTHIA M.,

Defendant and Appellant.

F074728

(Super. Ct. No. 16JP-00041-A)


OPINION

APPEAL from a judgment of the Superior Court of Merced County. Brian L. McCabe and Donald E. Shaver, Judges.* (Judge Shaver is a retired judge of the Stanislaus Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
S. Lynne Klein, under appointment by the Court of Appeal, for Defendant and Appellant.
James N. Fincher, County Counsel, and Claire S. Lai, Deputy County Counsel, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Cynthia M. (mother) is the mother of Cindy A. (born April 2016); Cindy’s presumed father is Leroy A. (father) and is not a party on appeal. Cindy was removed from mother and father (collectively, parents) shortly after her birth and became a dependent of the juvenile court due to parents’ ongoing, untreated mental health and substance abuse problems. Mother now appeals from the court’s October 11, 2016, order terminating her parental rights over Cindy under Welfare and Institutions Code section 366.26.
On appeal, mother contends the juvenile court’s jurisdictional and dispositional orders must be reversed because she received inadequate notice of the continued jurisdiction/disposition hearing held on May 24, 2016. Neither parent attended the hearing at which the juvenile court found ordering reunification services was not appropriate under the bypass provision of section 361.5, subdivision (b)(10) and set a section 366.26 hearing based on parents’ failure to reunify with Cindy’s sibling Hazel A. (born April 2015), who, like Cindy, was removed from parental custody as a newborn due to parents’ untreated substance abuse and mental health issues.
Assuming notice of the jurisdiction/disposition hearing was defective and mother did not waive her defective notice claim by failing to file a writ petition after the hearing, issues we do not decide, we conclude any error in providing mother with notice of the hearing was harmless beyond a reasonable doubt. Accordingly, we affirm the juvenile court’s order terminating parental rights.
FACTUAL AND PROCEDURAL BACKGROUND
In view of mother’s claim that the defective notice was not harmless because, if she had attended the May 24, 2016, jurisdiction/disposition hearing, she might have been able to show she made a reasonable effort to treat the problems that led to the removal of Cindy’s sibling, Hazel, we emphasize facts relevant to that claim in our recitation of the factual and procedural background.
A. Prior Dependency Case
In April 2015, while pregnant with Hazel, mother went to the Atwater Police Department and informed staff she needed help because she felt like she was going to hurt herself. Mother was placed on a 72-hour “5150 hold” and transported to the Marie Green Psychiatric Facility (Marie Green). While still on the 5150 hold, mother was transported from Marie Green to a hospital to give birth to Hazel.
When the social worker for Hazel’s case arrived at the hospital, mother locked herself in the bathroom of her hospital room. After security and nursing staff talked mother out of the bathroom, father and the paternal grandmother—both of whom “appeared to be under the influence of a controlled substance”—were asked to leave the room.
Nursing staff told the social worker they observed father be “ ‘pushy’ ” towards mother and force her to hold Hazel. They also reported hearing mother tell father she did not feel she could take care of Hazel. Father reportedly denied mother’s statements, insisting she could take care of and wanted to hold the baby.
The social worker then talked to mother. Mother told the social worker that she had been diagnosed with bipolar disorder, depression, and anxiety and prescribed medications for her conditions by a physician, but she had stopped taking the medications approximately three years earlier. Mother also reported a history of methamphetamine and marijuana use but denied using while she was pregnant.
Additionally, mother told the social worker she was hearing voices in her head telling her she could not care for Hazel. Mother said that, while she wanted the baby, she did not want to live any longer. Following her conversation with the social worker, mother was placed on another 72-hour hold and transferred back to Marie Green, where she remained for approximately eight more days.
The Merced County Human Services Agency (Agency) took Hazel into protective custody and filed a dependency petition on her behalf. At the jurisdiction/disposition hearing on June 2, 2015, the juvenile court declared Hazel a dependent of the court and granted parents reunification services.
At a continued six-month review hearing held on March 8, 2016, at which both parents failed to appear, the juvenile court adopted Agency’s recommendation to terminate reunification services and set a section 366.26 hearing. In its written order filed after hearing, the court summarized its findings, in relevant part, as follows:
“The Court finds by clear and convincing evidence that the father . . . and the mother . . . have failed to contact and visit [Hazel] for the past six months and [I] therefore find[] that further reunification services are not appropriate pursuant to . . . section 361.5[, subdivision ](a)(2)(B). [¶] . . . The Court finds that the extent of progress made by the mother toward alleviating or mitigating the causes necessitating placement has been none. [Mother] has not engaged in any of her case plan services and she has not maintained contact with [Hazel].”
At a continued section 366.26 hearing on July 20, 2016, which was uncontested, the juvenile court denied father’s counsel’s request to continue the hearing and terminated mother’s and father’s parental rights over Hazel.
B. The Current Dependency Case
In mid-April 2016, Agency received a referral alleging general neglect by mother and father concerning Hazel’s newborn sibling, Cindy. The social worker assigned to Cindy’s case went to the hospital where Cindy was born and contacted nursing staff, who informed her that father had been the primary caregiver in the hospital and they had not seen mother hold Cindy that day.
In the detention report for Cindy’s case, Agency reported that mother had diagnoses of bipolar disorder, anxiety, and depression, and that she had requested to go to Marie Green during labor. When the social worker spoke with mother, mother stated: “ ‘I would rather see her with her father. I know I can’t do it.’ ” Mother further stated that she had “plans to get an IUD” and knew she was “not ready to have children.” Father reportedly contradicted mother’s statements, saying he had faith in mother, she was able to care for Cindy, and he wanted her to hold the baby. Father also said that if mother was going to give up her rights, he would too.
In talking to the social worker, mother said she had been under the care of a physician and prescribed psychotropic medication, however, she had “not gone to mental health since June 2015.” Mother also reported a history of methamphetamine use, but she was unable to tell the social worker when was the last time she had used methamphetamine except that it was over a month ago.
Mother told the social worker she found out she was pregnant in July 2015, and stopped using methamphetamine around halfway through her pregnancy. Mother further stated that, “around mid-pregnancy she was using daily for about a week and before that was using methamphetamine every month.” Mother said that she used methamphetamine “due to depression.”
After the social worker left the hospital, hospital staff contacted and informed the social worker that parents were threatening to leave with Cindy. The social worker returned to the hospital and arranged for Cindy to be taken into protective custody.
In the detention report, Agency further reported that mother had another non-dependent child who lived with her maternal grandmother because mother was unable to provide adequate care for the child due to mother’s mental health and substance abuse issues. Agency reported the child was eight years old and mother had not had any contact with the child since birth, nor was mother in contact with the maternal grandmother with whom the child lived.
The detention report concluded that, despite having recurring interactions with child welfare and having Hazel removed from their care the previous year, parents had made no effort in the reunification process for Hazel but continued to abuse drugs and live a risky and unstable lifestyle, placing newborn Cindy at risk of abuse and neglect.
On April 20, 2016, Agency filed a dependency petition on Cindy’s behalf, alleging Cindy fell within the provisions of section 300, subdivisions (b) (failure to protect) and (j) (abuse of sibling).
Parents did not appear at the April 21, 2016, detention hearing, at which the juvenile court appointed to represent parents the same attorneys who were representing them in Hazel’s case and set the jurisdiction/disposition hearing for the current case for May 12, 2016.
On May 11, 2016, Agency filed its jurisdiction/disposition report, recommending the juvenile court deny parents reunification services under section 361.5, subdivision (b)(10) and set a section 366.26 hearing. The report reflected that the social worker’s efforts to obtain statements from parents had been unsuccessful. The report further stated that parents had “ ‘made no effort in the reunification process for their one[ ]year old child Hazel’ ” and continued to “ ‘abuse drugs and live an unstable and risky lifestyle.’ ”
Regarding the history of the prior dependency case involving Hazel, the jurisdiction/disposition report stated that parents had been ordered to participate in reunification services and that their case plans “consisted of mental health treatment services, substance abuse treatment services as well as visitation with [Hazel].” Parents failed, however, to engage or participate in reunification services and services were terminated on March 8, 2016.
Neither mother nor father attended the jurisdiction/disposition hearing on May 12, 2016. Regarding mother’s nonappearance, her counsel advised the court: “[S]he is local and I believe that she would, I believe she is contesting this. I think it’s just her lack of appearance here is sort of a passive aggressive approach . . . .” The juvenile court noted that it appeared the court in Hazel’s case had “made a finding that [The Indian Child Welfare Act of 1978] did not apply” and “took judicial notice of that case.” The court then continued the jurisdiction/disposition hearing to May 24, 2016.
When parents again failed to appear at the continued jurisdiction/disposition hearing on May 24, 2016, the juvenile court declined to order further continuation of the hearing and adopted Agency’s recommendations, which, as mentioned above, included bypassing parents for reunification services under section 361.5, subdivision (b)(10). The court then set a section 366.26 hearing for September 15, 2016.
In its written order after hearing, the juvenile court stated:
“The Court finds by clear and convincing evidence that offering Family Reunification Services to the mother . . . and the father . . . is not appropriate pursuant to . . . [section] 361.5[, subdivision ](b)(10), because the parents have previously had Court ordered Family Reunification Services terminated for a sibling or half-sibling of this minor because the parents failed to reunify with that sibling, and the parents have not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half-sibling of this minor from these parents.”
In its section 366.26 report filed on September 12, 2016, Agency recommended terminating parental rights and ordering a permanent plan of adoption for Cindy, who was placed in the same foster home with Cindy’s sibling, with prospective adoptive parents who wanted to adopt both siblings.
The section 366.26 report noted that mother had not had any visits with Cindy since her birth. Although the social worker had attempted to contact mother to set up visitation, mother had failed to make herself available to Agency until August 17, 2016, when she showed up at the county visitation center and requested a visit with Cindy.
When the social worker asked mother why she had not been in contact with Agency prior to this date to set up visits, mother responded that she had been “in and out of” Marie Green. The same day, mother told the social worker she wanted to “fight for [Cindy].”
On September 15, 2016, mother appeared at the section 366.26 hearing with mother’s counsel, but father failed to appear and the juvenile court granted the request of father’s counsel to continue the hearing.
At the beginning of the continued section 366.26 hearing on October 11, 2016, father’s counsel advised the juvenile court that father was in local custody but refusing transportation to the court to attend the hearing. Mother was also absent at the beginning of the hearing and the court unsuccessfully tried to reach her by phone at the request of mother’s counsel.
After the parties submitted the matter, and as the juvenile court was beginning to make its findings and orders, mother appeared at the hearing and the court granted her request to testify. According to her testimony, mother was aware Cindy had become a dependent of the juvenile court and that mother had been given a case plan of things she could try to do to get Cindy back. However, she had not done any work on her case plan or visited Cindy since the case started.
It was admittedly an unusual occurrence for mother to call the social worker. Though mother provided the social worker with a contact telephone number to reach her, mother did not keep in regular contact with the social worker and did not keep the social worker informed of her current address.
Notwithstanding her failure to visit Cindy or participate in her case plan, mother confirmed she still wanted “to continue to fight for the ability to have Cindy back.” When asked how she planned to complete her case plan, mother testified, “I would go to parenting classes.” Mother stated her depression was the reason she never started parenting classes but confirmed she never told the social worker this reason.
Following mother’s testimony, the juvenile court terminated parental rights and ordered a permanent plan of adoption for Cindy, finding “this results from the untreated mental illness and untreated substance abuse issues that directly inhibit the ability to meet the minor’s basic needs.”
DISCUSSION
A. Applicable Legal Principles
“Notice is both a constitutional and statutory imperative. In juvenile dependency proceedings, due process requires parents be given notice that is reasonably calculated to advise them an action is pending and afford them an opportunity to defend.” (In re Jasmine G. (2005) 127 Cal.App.4th 1109, 1114 (Jasmine G.); accord, In re DeJohn B. (2000) 84 Cal.App.4th 100, 106.) “Unless there is no attempt to serve notice on a parent, in which case the error has been held to be reversible per se [citations], errors in notice do not automatically require reversal but are subject to the harmless beyond a reasonable doubt standard of prejudice.” (In re J.H. (2007) 158 Cal.App.4th 174, 183 (J.H.).) Thus, the lack of strict compliance with notice requirements in a dependency proceeding does not render subsequent proceedings void in the absence of prejudice. (See In re Jesusa V. (2004) 32 Cal.4th 588, 625-626; In re Daniel S. (2004) 115 Cal.App.4th 903, 912-913 (Daniel S.).)
Application of a harmless error standard to failure of notice in dependency proceedings is particularly appropriate because such proceedings must strike a balance between the rights and interests of parents and children, which are sometimes in conflict. (See e.g., Adoption of Daniele G. (2001) 87 Cal.App.4th 1392, 1403-1404.) “Children need stability and permanence in their lives, not protracted legal proceedings that prolong uncertainty for them.” (In re Justice P. (2004) 123 Cal.App.4th 181, 191; accord, Daniel S., supra, 115 Cal.App.4th at pp. 913-914 [“Time is of the essence in dependency matters [citation], because childhood does not wait for the parent to become adequate [citation]. . . . [C]hildren in protective custody have an interest in the prompt resolution of their custody status. [Citation.] . . . Given the[] strict time lines, neither the court nor the Agency could wait for an indefinite period of time . . . .” [fn. omitted]].) This is especially true for infants, such as Cindy, whose dependency proceedings are accelerated relative to those for older children. (See Tonya M. v. Superior Court (2007) 42 Cal.4th 836, 843, 846.)
B. Analysis
The parties agree that the harmless error standard set forth above is the applicable standard for evaluating mother’s claim that the failure to provide her with adequate notice of the continued jurisdiction/disposition hearing constituted reversible error. Applying that standard, we find no basis for reversing the jurisdictional and dispositional orders of the juvenile court. Even if we accept mother’s dubious assertion that proper notice would likely have resulted in her appearance at the continued jurisdiction/disposition hearing, it appears beyond a reasonable doubt that mother would not have been able to avoid the bypass provision of section 361.5, subdivision (b)(10) by showing she made a reasonable effort to treat the problems that led to the removal of Cindy’s sibling, Hazel, which is the basis of mother’s claim of reversible error.
Ordinarily, reunification services must be provided whenever a child is removed from a parent’s custody. (§ 361.5, subd. (a).) “Reunification services need not be provided,” however, “when the [juvenile] court finds, by clear and convincing evidence,” that any one of a number of statutory bypass provisions applies. (Id., subd. (b).) “[T]he party seeking bypass of reunification services under section 361.5, subdivision (b) has the burden of proving that reunification services need not be provided.” (In re Angelique C. (2003) 113 Cal.App.4th 509, 521.)
The relevant bypass provision applies if (1) the juvenile court has ordered termination of reunification services for the child’s sibling or half sibling based on the parent’s failure to reunify after the sibling’s or half sibling’s removal, and (2) the parent “has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling.” (§ 361.5, subdivision (b)(10).) If the provision applies, the court cannot order services unless it finds by clear and convincing evidence “that reunification is in the best interest of the child.” (Id., subd. (c)(2), italics added.)
“Section 361.5 reflects the Legislature’s desire to provide services to parents only where those services will facilitate the return of children to parental custody. The exceptions in subdivision (b) to the general mandate of providing reunification services ‘demonstrate a legislative determination that in certain situations, attempts to facilitate reunification do not serve and protect the child’s interest.’ [Citation.] Certainly, it cannot serve a child’s best interest to unnecessarily prolong the lengthy dependency process when there is no chance of successful reunification because of circumstances that make it ‘fruitless to provide reunification services . . . .’ ” (In re Joshua M. (1998) 66 Cal.App.4th 458, 470.)
Here, the evidence compelled the juvenile court to rule as it did and to deny mother reunification services under section 361.5, subdivision (b)(10) at the jurisdiction/disposition hearing on May 24, 2016. The record demonstrates mother’s reunification services for Hazel were terminated on March 8, 2016, and mother did not subsequently address the problems leading to Hazel’s removal. Instead, in April 2016, just over a month after her services for Hazel were terminated, mother gave birth to Cindy, who was removed from mother’s custody due to the exact same problems that led to Hazel’s removal the previous year, namely, mother’s untreated mental health and substance abuse issues. Moreover, there is no evidence indicating that reunification would have been in Cindy’s best interest, which mother would have had to show in the absence of evidence she made a reasonable effort to treat the problems leading to Hazel’s removal.
Mother does not claim Agency failed to meet its burden of establishing the applicability of the bypass provision of section 361.5, subdivision (b)(10) at the jurisdiction/disposition hearing. Instead, mother argues that, if she had appeared at the hearing, she might have been able to make a counter showing that she did in fact make a reasonable effort to treat the problems that led to Hazel’s removal. Mother’s argument hinges on her own reported statement to the social worker on August 17, 2016, that the reason she did not try to schedule a visit with Cindy before that time was because she had been “in and out” of Marie Green. Mother interprets this statement as evidence that she actively received treatment for her mental health problems at Marie Green and that she might have also received substance abuse treatment to which she could have testified to at the jurisdiction/disposition hearing and thereby persuaded the court to find section 361.5, subdivision (b)(10) did not apply and grant her reunification services.
Mother’s interpretation of her statement to the social worker is unsupported by the record. It overlooks undisputed evidence in both the prior and current dependency cases that mother was hospitalized at Marie Green before and after Hazel’s birth pursuant to 5150 holds.
“The term ‘5150 hold’ derives from section 5150. Section 5150, subdivision (a) applies when a person is a danger to him- or herself or is gravely disabled because of a mental health disorder. Certain professionals ‘may, upon probable cause, take, or cause to be taken, the [endangered] person into custody for a period of up to 72 hours for assessment, evaluation, and crisis intervention.’ (§ 5150, subd. (a).)” (Fenimore v. Regents of University of California (2016) 245 Cal.App.4th 1339, 1343, fn. 3; italics added.)
As can be seen, 5150 holds are by definition involuntary and for a limited duration and purpose. Evidence mother was hospitalized at Marie Green under 5150 holds around the time of Hazel’s birth gave rise to an inference that the psychiatric facility provided the types of mental health services described in section 5150. Indeed, Agency offered mother’s undisputed hospitalization at the facility under a 5150 hold as evidence of the problems necessitating Hazel’s removal from mother because the suicidal ideation rendering mother statutorily eligible for involuntary confinement resulted directly from her failure to treat her longstanding substance abuse and mental health problems and contributed directly to her inability to care for Hazel. On the other hand, there is no evidence the psychiatric facility ever provided, or that mother ever received at the facility, regular non-crisis mental health or substance abuse treatment, which would provide support for her claim on appeal that she might have been able to show she made a reasonable effort to treat the problems leading to Hazel’s removal sometime between termination of her reunification services for Hazel and the continued jurisdiction/disposition hearing in the current case.
Because mother offers nothing to undermine the juvenile court’s finding at the May 24, 2016, jurisdiction/disposition hearing that after reunification services for Hazel were terminated on March 8, 2016, mother failed to make a reasonable effort to treat the problems that led to Hazel’s removal as a newborn in April 2015 (i.e., the same problems leading to Cindy’s removal as a newborn in April 2016), the allegedly inadequate notice resulting in mother’s failure to attend the jurisdiction/disposition hearing was harmless beyond a reasonable doubt. In short, mother has failed to demonstrate reversible error.
DISPOSITION
The order terminating parental rights is affirmed.



DETJEN, Acting P.J.
WE CONCUR:



PEÑA, J.



MEEHAN, J.