In re Tiffany B.

Filed 9/27/06 In re Tiffany B. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Tuolumne County. Eric L.

Du Temple, Judge.

Catherine Campbell, under appointment by the Court of Appeal, for Defendant and Appellant.

Gregory J. Oliver, County Counsel, and Sarah Carrillo, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

Sandra C. appeals from orders terminating her parental rights (Welf. & Inst. Code, § 366.26) to her three minor children.^[1] She does not dispute the court’s decision. Instead, she asks this court to review a sealed transcript of an in camera conversation between her adolescent daughter Tiffany and the trial judge which occurred after he made his findings and orders to terminate parental rights.

Originally, appellant sought to augment the appellate record with the transcript in order to assess whether error occurred. This court denied the request as moot because the sealed transcript was already a part of the appellate record. To the extent appellant requested a copy of the transcript, we denied her request without prejudice to asking this court to examine the sealed transcript and determine the propriety of the trial court’s action. (People v. Collins (1986) 42 Cal.3d 378, 395.)^[2] We noted in passing that the trial court already ruled in the case before its in camera conversation with the dependent child.

Having examined the sealed transcript as well as the balance of the appellate record, we conclude the trial court did not err in terminating parental rights. While we further conclude the court did not violate the law in speaking, after the fact, with Tiffany, we add that any error was harmless.

PROCEDURAL AND FACTUAL HISTORY

As appellant admits in her opening brief, her intractable addiction to methamphetamine and failure to protect her daughters from abuse by her boyfriend led to the children’s dependency and out-of-home placement in 2003. After nearly two years of reunification efforts, the court authorized the children’s placement with appellant through a family maintenance services plan. However, less than six months later, the combination of appellant’s resumed methamphetamine abuse, domestic violence and appellant’s suicide attempt led to the children’s redetention as well as the court’s termination of reunification efforts and decision to set a section 366.26 permanency planning hearing. In anticipation of the section 366.26 hearing, respondent Tuolumne County Department of Social Services (the department) assessed the children as adoptable and recommended the court terminate parental rights. On May 2, 2006, the date originally set for the section 366.26 hearing, appellant requested a contested hearing, resulting in a two-week continuance. In a written addendum dated May 11, 2006, to the department’s assessment, an adoption specialist with the California Department of Social Services reported Tiffany “had a negative interaction with appellant at the last court hearing on May 2, 2006.” The specialist went on to explain:

“Tiffany has a great deal of anxiety regarding her birth mother and the court process. Tiffany is aware that her birth mother blames her for her and her sibling’s current dependency. Tiffany reports a great deal of guilt and does not want to disappoint or hurt her birth mother by expressing her wishes. Tiffany agrees with the undersigned that her birth mother can not care for her or her siblings. She wants what is best for all of them and is hopeful the court will follow the recommendation of the county and state adoptions social workers.”

On the continued hearing date, appellant was present as were Tiffany and her foster father. At the hearing, the department submitted the matter on its assessment. Counsel for Tiffany and her younger siblings advised the court that his clients had no evidence to present and would submit on the department’s assessment. Appellant’s trial counsel called her to testify in support of her claim that termination would be detrimental to the children based on their relationship with her.

Part of appellant’s testimony related to the addendum’s reference to the “negative interaction.” Thereafter, the department called the foster father to describe what he witnessed outside the courtroom on May 2nd. Tiffany was “crying uncontrollably” as appellant kneeled down in front of her. He overheard appellant say to Tiffany “[t]he only reason I was using was because of you.”

Following the evidentiary phase, county counsel on behalf on the department and counsel for the children urged a finding that the children were adoptable as well as an order terminating parental rights. Appellant’s counsel argued for a finding of detriment. Following county counsel’s rebuttal argument and submission, the judge inquired if the other attorneys submitted. They did.

The judge then made his findings and orders following the department’s recommendation to terminate parental rights. Notably, the judge twice remarked that it was his decision, not Tiffany’s, and neither she nor the other children were “responsible for what’s happened here.”

After the judge completed ruling in the case, the children’s counsel addressed the judge as follows:

“Your Honor, I’m sorry, my client has indicated, at least through the social worker to me, that she wishes to address the Court. I would ask that that testimony be taken in chambers pursuant to 366.26 because I believe that my client is intimidated by the formal courtroom setting, and that she does have concerns about testifying in front of her mother, but she does want to make her wishes known to you. I realize it’s kind of rather late in the proceedings.”

Tiffany added “I’d like to speak to you alone.”

While the court was inclined to hear Tiffany, it asked counsel to address the issue.

“[County Counsel]: Your Honor, I would agree that this setting would be too intimidating for [Tiffany] to testify and I would agree to have her testify in chambers and -- but I’d also ask that the Court, when it comes back, would let us know what occurred in chambers, especially if it turns out that it’s a -- if she expresses a wish that’s contrary to what’s been expressed.

“THE COURT: Mr. Price [trial counsel for appellant].

“MR. PRICE: We’ll submit.”

The judge thereafter recessed and reconvened in chambers with his court staff and Tiffany. The children’s counsel was also present. At the conclusion of Tiffany’s conversation with the judge, the clerk advised that the other attorneys were concerned with the presence of the children’s counsel in chambers.

Having reconvened in open court, the judge heard from appellant’s counsel, who claimed the process violated appellant’s right of confrontation and moved for a new section 366.26 hearing. County counsel suggested a readback of the in camera conversation with only counsel present.

The judge denied both requests and ordered the record sealed. While he took responsibility for misinterpreting what counsel agreed to, the judge advised that the children’s attorney did not participate, a fact which is reflected in the record. The judge also voiced his thinking in agreeing to hear from Tiffany:

“The Court also had already made its order and I allowed [Tiffany] to talk to the Court on her request more out of consideration for [Tiffany’s] concerns; that it in no way impacted the Court’s decision, which had already been made. That decision the Court still affirms and it was based on the evidence submitted to this Court, not on anything that the Court heard from [Tiffany]. So the Court’s ruling stands, and the Court has already indicated that.”

In response to a further inquiry by county counsel, the judge stated:

“There’s nothing that the Court heard in chambers that was contrary to the Court’s decision, recommendation of the department and material that had been submitted in support of terminating parental rights and ordering the long-term plan as adoption.”

The judge thereafter set a six-month, post-permanency review and advised appellant of her appellate rights.

DISCUSSION

At the point that the judge took a recess to speak with Tiffany in chambers, he had already made the requisite findings to support the selection of adoption as the permanent plan for appellant’s minor children and had ordered parental rights terminated. Appellant has not identified any alleged error up through that point in the proceedings. Because an appealed-from judgment or order is presumed correct and appellant has not raised a claim of reversible error or other defect as to the decision to terminate parental rights, we are presented with no reason to reverse. (In re Sade C. (1996) 13 Cal.4th 952, 994.) Accordingly, we conclude the order terminating parental rights was correct.

Nonetheless, appellant asks this court to review the sealed transcript in light of her objection to the judge’s action and section 366.26, subdivision (h). Having done so, we conclude, as discussed below, the in camera proceeding after-the-fact did not violate section 366.26, subdivision (h).

Subdivision (h) of section 366.26 (subdivision (h)) mandates that the court consider the wishes of the child and act in the best interests of the child in all section 366.26 proceedings. In a case where the child testifies, subdivision (h) also authorizes the taking of the child’s testimony in chambers and outside the presence of the child’s parent or parents under certain circumstances provided counsel for the child’s parent(s) is present. (§ 366.26, subd. (h)(3).) The rationale for such in chambers testimony acknowledges the reality for many dependent children, that is, testimony in chambers may be necessary to ensure truthful testimony, the child may be intimidated by a formal courtroom setting or the child may be afraid to testify in front of his or her parent or parents. (See § 366.26, subd. (h)(3)(A)(i-iii).) Subdivision (h) and its predecessor (§ 366.26, subd. (g)) manifest the Legislature’s obvious intent that courts consider, when possible and feasible, the minor’s wishes before ruling in termination proceedings. (In re Laura H. (1992) 8 Cal.App.4th 1689, 1694.) If those wishes are to be personally expressed by the child to the court, the statute requires that the parent’s counsel be present. That statutory requirement reflects the Legislature’s concern for a parent’s due process right of confrontation. (Ibid.) In other words, subdivision (h) assumes the court will take the child’s in chambers testimony or personal expression, as the Laura H. court labeled the child’s testimony, into account in rendering its decision.

In this case, the record was replete with evidence regarding the children’s wishes at the time the court issued its decision to terminate parental rights. However, the court obviously did not consider Tiffany’s in camera remarks since she did not utter them until after the court had ruled. Therefore, given that Tiffany spoke with the judge after he ruled in the matter, appellant’s confrontation rights -- statutory or constitutional -- were not violated .

Finally, our review of the sealed transcript supports the judge’s statement that nothing said in chambers was contrary to the trial court’s decision, recommendation of the department and material that had been submitted in support of terminating parental rights and ordering the long-term plan of adoption. Therefore, even assuming the court committed some error in its handling of the situation, appellant was not prejudiced.

DISPOSITION

The order terminating parental rights is affirmed.

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

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

^[2] In our order, we miscited a footnote from the opinion as No. 22, when it was our intent to cite footnote No. 20 of the Collins opinion which addresses the care courts should exercise in divulging information following in camera hearings.