In re G.C.

Filed 10/18/06 In re G.C. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION TWO

D.C. (Mother) appeals from the order terminating her parental rights over her infant son G.C. in accordance with Welfare and Institutions Code section 366.26.[1] Mother advances two contentions. She first contends that the juvenile court erred in determining she had been given notice of the combined jurisdictional and dispositional hearing as required by law. We conclude that this contention is not only procedurally barred, it is also without merit. Mother’s second contention is that there is not substantial evidence to support the finding, made by the court at the termination hearing, that G.is likely to be adopted. We conclude that this contention is also without merit. In light of these conclusions, we affirm.

BACKGROUND

The following events occurred in 2005:

On June 16, respondent Contra Costa County Children and Family Services Bureau (Bureau) filed a petition pursuant to section 300. The Bureau alleged that G. should be declared a dependent child because there was a substantial risk that he would suffer physical harm or illness as a result of Mother’s inability to protect and provide for him. The pertinent allegations were as follows:

“The child’s mother failed to protect the child and the child has suffered harm in that: The child [when] . . . born . . . had a positive toxicology screen for methamphetamine. The child’s mother admitted to using methamphetamine two days prior to the birth of the child. The child’s mother has a chronic substance abuse problem that impairs her ability to care [for], supervise and protect the child. The child’s mother was arrested [two days before G.’s birth] for being under the influence of an illegal substance. The child’s mother and alleged father . . . have domestic violence issues that put the child at substantial risk of harm. The most recent incident of domestic violence occurred on February 13, 2005, in which the mother sustained a split [lip]. The child’s mother had paternal rights terminated on the child’s half sibling, Dominic [C.], on May 4, 2004 after failing Family Reunification Services. The child’s alleged father failed to protect the child from the mother’s substance abuse problems.”[2]

Mother appeared at the initial detention hearing held on June 17, and was referred to the public defender to secure counsel. G. was temporarily detained, and the hearing was continued to June 20. At the conclusion of the June 20 hearing--at which neither Mother nor counsel for her appeared--the detention order was reaffirmed.

A combined jurisdictional and dispositional hearing was held on August 9. Mother’s counsel appeared but told the court, “I have never heard from the mother.” Mother’s counsel made a pro forma objection to admission of the social worker’s study.[3] The social worker recommended that (1) G. be declared a dependent child; (2) G. be retained in foster care; (3) Mother be given no reunification services because she had her parental rights terminated with respect to G.’s sibling and made no reasonable effort to treat the problems which led to that termination (§ 361.5, subd. (b)(10)); and (4) the court schedule a termination hearing pursuant to section 366.26. Counsel presented no evidence or argument on behalf of Mother.

The juvenile court sustained all of the allegations of the Bureau’s petition, and accepted the social worker’s dispositional recommendations. The court set the termination hearing for November 30, and directed the clerk to mail notice to Mother.[4] Notice of the termination hearing was mailed to Mother, and personally served on her on August 21.

The termination hearing was held as scheduled on November 30. Mother did not appear. The social worker’s recommendations were for termination of Mother’s parental rights and for adoption as the permanent placement plan. In the course of agreeing with those recommendations, counsel for G. advised the court that he was “thriving” in his foster placement, and his foster parents were “willing to adopt him if . . . he is not able to be placed with his brother in Texas.”

Mother’s counsel objected to the recommendations and called the social worker, Michelle Colbert, to the stand. Ms. Colbert testified that Mother had been served with notice of hearing, and also that Mother had not had any visitation with G. Ms. Colbert’s recommendation for adoption was based on G.’s “age; he is in good health; he’s very engaging; and if he were not to be adopted by his great-aunt and uncle in Texas or the [foster] family who he’s currently with, there would be no problem finding another adoptive home for him.” After Mother’s counsel declined to present argument, the court adopted Ms. Colbert’s recommendations and terminated Mother’s parental rights.

On January 13, 2006, Mother’s counsel filed a timely notice of appeal on her behalf from the termination order.

DISCUSSION

I

The Bureau has a pending motion to dismiss the appeal on the same ground it reiterates in its brief: that the appeal is defective because there is no proof that it was actually authorized by Mother. Based on the undisputed evidence that Mother did not attend any proceedings after the initial detention hearing, that her counsel was often unable to establish contact with her, and that Mother did not personally execute the notice of appeal, the Bureau concludes that we should not accept the representation of Mother’s trial counsel--who did execute the notice--that the appeal was in fact authorized by Mother. We are not convinced.

The rule of court governing the filing of notices of appeal in dependency cases provides: “To appeal from a judgment or appealable order under these rules, the appellant must file a notice of appeal in the superior court. The appellant or the appellant’s attorney must sign the notice.” (Cal. Rules of Court, rule 37(c)(1).) “Because an attorney cannot appeal without the client’s consent, a notice of appeal shown to have been signed by an unauthorized attorney is ineffectual in preserving the right to appeal.” (In re Alma B. (1994) 21 Cal.App.4th 1037, 1043.)

It is true that there is no direct evidence in the record on appeal as originally filed that Mother expressly consented to, or authorized, her attorney executing the notice of appeal on her behalf. And it is equally true that Mother was not present at the termination hearing, a factor deemed significant in several decisions dismissing an appeal, on the theory that “A lack of consent is shown when a parent, through his or her actions, demonstrates no true interest in preserving parental rights.” (In re Sean S. (1996) 46 Cal.App.4th 350, 352-353; In re Alma B., supra, 21 Cal.App.4th 1037, 1043.)

On the other hand, forfeiture of the right to appeal, particularly where such important interests as the irremediable loss of parental rights are at stake, is not lightly ordered. This has led to the rule that “In the absence of a satisfactory showing that the party did not authorize counsel to sign the notice of appeal, we presume that . . . counsel had the necessary authority to do so.” (In re Asia L. (2003) 107 Cal.App.4th 498, 505; accord, In re Malcolm D. (1996) 42 Cal.App.4th 904, 910.)

As part of her opposition to the Bureau’s motion to dismiss, Mother’s appellate counsel (who did not represent Mother in the juvenile court) submitted a declaration in which she stated: “After receiving and reviewing Respondent’s Brief, I contacted [Mother] on August 7, 2006 to ascertain whether she consented to the filing of an appeal in this case. She informed me that [she] wants to keep her parental rights as to G. and consents to this appeal.” Although the issue of “consenting” to an appeal may not be synonymous with “authorizing” an appeal, this declaration is sufficient to demonstrate that Mother has “demonstrate[d] . . . interest in preserving parental rights.” (In re Sean S., supra, 46 Cal.App.4th 350, 352.) It also bolsters the presumption that Mother’s trial counsel was authorized to execute the notice of appeal.

In accordance with the policy of liberally construing a notice of appeal in favor of its sufficiency (Cal. Rules of Court, rule 1(a)(2)), we conclude that the issue should be resolved in favor of Mother being allowed to prosecute this appeal. (In re Malcolm D., supra, 42 Cal.App.4th 904, 910.) We therefore deny the Bureau’s motion to dismiss the appeal, and turn to Mother’s contentions.

II

Mother’s major contention is that the juvenile court erred in finding, at the combined jurisdictional and dispositional hearing, that “notice has been given as required by law” to Mother, a contention made with candid recognition that there are impediments to our reaching the merits of this claim.

In the usual case, a dispositional order in a dependency case is appealable, and ordinarily the failure to appeal from such an order precludes subsequent consideration of any matter that could have been reviewed at that time. The issue is commonly treated as one where review has been waived because it was not timely sought. This court has twice explained that the rule serves important interests: “The waiver rule as applied in dependency cases flows from section 395, under which the dispositional order is an appealable judgment, and all subsequent orders are directly appealable without limitation, except for post-1994 orders setting a .26 hearing, which are subject to writ review [Cal. Rules of Court, rule 38.1] and related limitations (§ 366.26, subd. (l)). A consequence of section 395 is that an unappealed disposition or postdisposition order is final and binding and may not be attacked on an appeal from a later appealable order. [Citations.] In other words, ‘A challenge to the most recent order entered in a dependency matter may not challenge prior orders for which the statutory time for filing an appeal has passed.’ [Citation.] The rule serves vital policy considerations of promoting finality and reasonable expedition, in a carefully balanced legislative scheme, and preventing late-stage ‘sabotage of the process’ through a parent’s attack on earlier orders. [Citation.]” (In re Jesse W. (2001) 93 Cal.App.4th 349, 355; accord, In re Janee J. (1999) 74 Cal.App.4th 198, 206-207.)

But this is not the usual case. Here, the dispositional order was made at the same time as the order setting the termination hearing. Mother could have appealed from the dispositional order, but not from the order setting the termination hearing, because the latter order is reviewable only by a writ petition. Mother availed herself of neither of these avenues for review. She would thus appear to be subject to the waiver rule for the appeal, and to the corresponding forfeiture rule for writ petitions. (§ 366.26, subd. (l)(2).) However, as a matter of practical reality, in cases such as this, where the termination-setting order is made contemporaneously with the dispositional order, the writ is given priority as the preferred method of seeking review. (In re Harmony B. (2005) 125 Cal.App.4th 831, 838; In re Rashad B. (1999) 76 Cal.App.4th 442, 447-448; In re Anthony B. (1999) 72 Cal.App.4th 1017, 1023.)

The forfeiture rule for writ petitions is subject to an important qualification, because it is premised on the parent being advised of the right to file a petition. (§ 366.26, subd. (l)(3)(A); Cal. Rules of Court, rules 1435(e), 1436.5(d).)[5] If the parent does not receive the required notice, the forfeiture rule does not apply. (E.g., In re Merrick V. (2004) 122 Cal.App.4th 235, 248-249; In re Athena P. (2002) 103 Cal.App.4th 617, 625; In re Rashad B., supra, 76 Cal.App.4th 442, 447-448.) Mother contends she did not receive the proper notice of this right. The record shows otherwise.

Dianna Graves, the social worker who handled the case before Ms. Colbert, stated in a declaration that on June 14, Mother “stated her address as 762 Shell St. #3, Martinez, CA 95443.” Three days later, when Mother appeared at the initial detention hearing, the court was required to get a mailing address from her, and to advise her that the address she provided “will be used by the court, the clerk, and the social services agency for purposes of notice of hearings and the mailing of all documents related to the proceedings” (Cal. Rules of Court, rule 1412(l)(1)) “unless and until the parent . . . notifies the court or the social services agency of a new mailing address in writing.” (§ 316.1, subd. (a).) We must, and do, presume that the juvenile court complied with this duty. (Evid. Code, § 664.) Support for this presumption may be found in the fact that the Shell Street address was used thereafter by the clerk and the Bureau.

It was to the Shell Street address that the clerk, as directed by the court (see fn. 4, ante), forwarded notice on August 9 of Mother’s right to seek review of the order setting the termination hearing.[6] More importantly, it was at the Shell Street address that Mother was personally served with notice of the termination hearing on August 21.[7] If Mother told Ms. Greaves that she (Mother) lived at Shell Street as of June 14, and if Mother was personally served at that address on August 21, it is reasonable to conclude that notices addressed to Mother during that period reached her and provided her notice. (See Evid. Code, § 641.) If Mother wished to argue otherwise, it was incumbent upon her to tell the court, in writing, of her new address. (§ 316.1, subd. (a).) Because she did not, she is presumed to have been advised of her right to seek extraordinary relief by writ. Because she did not use that remedy, matters occurring at the combined jurisdictional and dispositional hearing--including the court’s finding that “notice has been given as required by law”--cannot be reviewed here. (§ 366.26, subd. (l)(A)(2); In re Rashad B., supra, 76 Cal.App.4th 442, 447-448.)

California Rules of Court rule 38(d) specifies that the reviewing court may extend the time for filing a dependency writ petition, but only upon “an exceptional showing of good cause.” Anticipating that her notice argument may be found to be time-barred, Mother asks that she be granted such an extension by treating this appeal as a de facto petition. Mother views the alleged failure to provide her with notice of the combined jurisdictional and dispositional hearing as so obvious and so serious that it virtually guarantees reversal.

We do not agree that Mother’s situation qualifies as “an exceptional showing of good cause.” She did not miss the deadline by a few days, or even a few weeks. As of now, a petition would be more than a year late. In any event, although Mother does not refer to it, this court has developed an analytic template for identifying types of error that will not be barred by the failure to file a timely writ petition. We now apply that approach.

In In re Janee J., supra, 74 Cal.App.4th 198, we considered a mother’s appeal from an order terminating her parental rights. She argued on her appeal that her right to counsel had been infringed by a trial counsel who failed to object at a number of hearings prior to the actual termination hearing. We began by noting the general rule that all matters occurring at the hearing setting a termination hearing are reviewable only by writ. After reviewing a number of decisions, we discerned the principle that “the waiver rule will be enforced unless due process forbids it.” (Id. at p. 208.) We concluded that In re Meranda P. (1997) 56 Cal.App.4th 1143, and In re Cathina W. (1998) 68 Cal.App.4th 716, implied certain guidelines for relaxing the waiver rule. “First, there must be some defect that fundamentally undermined the statutory scheme so that the parent would have been kept from availing himself or herself of the protections afforded by the scheme as a whole. Lack of notice of rule [38.1] rights was one such example in Cathina W. Second, to fall outside the waiver rule, defects must go beyond mere errors that might have been held reversible had they been properly and timely reviewed. To allow an exception for mere ‘reversible error’ of that sort would abrogate the review scheme [citation] and turn the question of waiver into a review on the merits. Meranda P. recognized that error unfavorable to a parent’s interests during the course of dependency may well prove irremediable [citation], yet applied the waiver rule anyway.” (In re Janee J., supra, at pp. 208-209.)

Without question, notice is important as a component of due process. Parents are entitled to notice of juvenile proceedings affecting their interest in custody of their children. (In re B. G. (1974) 11 Cal.3d 679, 688-689.) 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 Melinda J. (1991) 234 Cal.App.3d 1413, 1418, quoting Mullane v. Central Hanover Tr. Co. (1950) 339 U.S. 306, 314.)

Important as it is, notice, or rather the lack of it, has not warranted a per se exception to the waiver rule. Keeping in mind that once a parent is aware a dependency action has commenced, the parent has some responsibility for keeping in contact with the juvenile court and the social services agency (In re Larry P. (1988) 201 Cal.App.3d 888, 895), numerous reviewing courts have found that a lack of notice of a particular hearing during the course of a dependency proceeding can be waived, does not constitute an exception to the waiver rule, or can be harmless. (E.g., In re B. G., supra, 11 Cal.3d 679, 688-689 [parent did not receive notice of jurisdictional hearing, but issue waived by absence of subsequent challenge in juvenile court]; Marlene M. v. Superior Court (2000) 80 Cal.App.4th 1139, 1148-1149 [defective notice issue raised by juvenile court, but waived by parent not objecting and proceeding with disposition hearing]; In re Lukas B. (2000) 79 Cal.App.4th 1145, 1152-1153 [parent claimed lack of notice of 1997 termination hearing, but did not raise issue in subsequent proceedings prior to actual termination order in 1999]; In re Janee J., supra, 74 Cal.App.4th 198, 209-210 [parent’s lack of notice re termination of reunification services for nonparticipation waived because not raised until appeal from termination order]; In re Jesse C. (1999) 71 Cal.App.4th 1481, 1491 [lack of notice re termination of appointed counsel waived by failure to object ]; In re Cynthia C. (1997) 58 Cal.App.4th 1479, 1491 [lack of notice of detention hearing waived because parent did not raise issue in juvenile court or writ petition]; In re Gilberto M. (1992) 6 Cal.App.4th 1194, 1198 [parent did not receive notice of jurisdictional hearing, but issue waived by failure to raise issue at six-month review].)

As important as parental interests undoubtedly are, they are not the only factor. “Nowhere is timeliness more important than in a dependency proceeding where a delay of months may seem like ‘forever’ to a young child.” (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1667.) “Of the many private and public concerns which collide in a dependency proceeding, time is among the most important . . . . The state’s interest in expedition and finality is ‘strong.’ [Citation.] The child’s interest in securing a stable, ‘normal’ home ‘support[s] the state’s particular interest in finality.’ “ (In re Meranda P., supra, 56 Cal.App.4th 1143, 1152, quoting In re Sade C. (1996) 13 Cal.4th 952, 993.) And we must remember that matters had progressed in the juvenile court to the point where G.’s needs were more important than Mother’s interests in the care, custody, and companionship of her son. (E.g., In re Stephanie M. (1994) 7 Cal.4th 295, 317; In re Marilyn H. (1993) 5 Cal.4th 295, 309; In re Kristin H., supra, at p. 1664.)

We conclude the balance here tilts against Mother. She had actual notice of the dependency from the time she appeared at the initial detention hearing. Moreover, she was no stranger to the dependency process, having only the previous year had her parental rights terminated with respect to another child. Mother had counsel appointed to represent her by the court at the detention hearing, yet she appears to have made no effort to stay in contact with him, manifest, for example, by counsel’s admission at the combined jurisdictional/dispositional hearing that he had “never heard” from Mother.[8] So far as the record before us indicates, Mother also made no effort to stay in touch with either court or the Bureau, despite the fact she was admonished to keep both advised should she change her address. When the jurisdictional/dispositional hearing ended with the court setting the termination hearing, Mother was personally served with (1) notice of the termination hearing, (2) documents acquainting her with what had happened at the jurisdictional/dispositional hearing, and (3) the forms for seeking immediate relief by writ petition. She did nothing. (See In re Janee J., supra, 74 Cal.App.4th 198, 210 [“it is the parent . . . who has the burden to pursue appeal rights, particularly in the rule [38.1] setting”].) Finally, at the termination hearing, Mother’s counsel had the opportunity to raise the issue of whether she received adequate notice, yet he made no mention of the matter. In sum, there were two opportunities prior to this appeal for Mother to raise the issue.

Mother does not cite a single instance where lack of notice of a jurisdictional or a dispositional hearing has resulted in reversal on appeal from a termination order. On the other hand, as shown above, there is a substantial body of precedent holding that lack of notice does not require reversal. Lack of notice thus appears to constitute a species of what we have termed “mere errors that might have been held reversible had they been properly and timely reviewed.” (In re Janee J., supra, 74 Cal.App.4th 198, 209.) Accordingly, we conclude, as we did in In re Janee J., that application of the waiver rule does not violate due process.

It is also clear that, even if the issue had been preserved for initial review at this time, Mother would not prevail. Mother argues that she received notice of the combined jurisdictional and dispositional hearing as originally scheduled, but not notice that it had been continued to August 9. The original social worker submitted a declaration in which she stated: “On July 29, 2005, I sent a letter noticing the Mother, D.[C.], of the August 9, 2005 jurisdictional/dispositional hearing.” Although the clerk of the juvenile court had the duty to provide Mother notice of the rescheduled jurisdictional and dispositional hearing (§ 290.2, subd. (a)(1)), the social worker had the duty to give Mother notice of all subsequent hearings (§§ 292-294). The fact that notice came from the social worker instead of the clerk is immaterial. Mother received the notice she was due, that is “ ‘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 Melinda J., supra, 234 Cal.App.3d 1413, 1418, quoting Mullane v. Central Hanover Tr. Co., supra, 339 U.S. 306, 314.).

III

Mother’s other contention is that the record does not support the court’s finding, based on clear and convincing evidence, that G. was likely to be adopted (§ 366.26, subd. (c)(1)). She is mistaken.

Subdivision (c)(1) of section 366.26 provides in pertinent part: “If the court determines, based on the [social worker’s] assessment . . . and any other relevant evidence, by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption.” “The issue of adoptability posed in a section 366.26 hearing focuses on the minor, e.g., whether the minor’s age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor. [Citations.] Hence, it is not necessary that the minor already be in a potential adoptive home or that there be a proposed adoptive parent ‘waiting in the wings.’ [Citation.] Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor’s age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parent’s willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family. [Citation.]” (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650.)

Although the juvenile court is required to use the “clear and convincing” standard, that is not the standard for the reviewing court. In reviewing the juvenile court’s finding, our sole function is to determine “whether the record contains substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that [G.] was likely to adopted within a reasonable time.” (In re Erik P. (2002) 104 Cal.App.4th 395, 400; see 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 365, p. 415.)

The testimony of Ms. Colbert obviously qualifies as substantial evidence. (Evid. Code, § 411.) Ms. Colbert’s testimony was the same as her assessment study, in which she advised the court that “G. is an adorable, happy and friendly baby. G. is on target developmentally and he does not have any health issues.” Regarding the possibilities for adoption, Ms. Colbert’s assessment was as follows: “Currently G. is residing in a licensed Contra Costa County Foster Home. His maternal aunt and uncle, who reside in Texas, are very interested in adopting G. Currently they are in the process of adopting his maternal half brother, Dominick. The appropriate documentation has been completed and sent to Texas . . . in order to assess the maternal aunt and uncle’s home, as well as assess the family to be sure that they are able and willing to care for and adopt G. If for some reason the maternal aunt and uncle are unable to adopt G., the current caregivers are more than willing and able to provide G. with a permanent home via adoption. Additionally, there are many homes currently waiting to adopt a child such as G.”

Although Mother frames her contention in terms of substantial evidence, she has a more precise, and narrow, argument. She asserts that the assessment is “totally lacking” in specifics about the potential adoptive parents to support its conclusion that G. was likely to be adopted. Mother’s counsel called Ms. Colbert to the stand, and questioned her about her recommendation. Mother’s counsel made no response when the court asked all present if there were any “Any additions, corrections, deletions to the report?”

Thus, it is apparent had Mother had an opportunity to inquire into perceived deficiencies with Ms. Colbert’s assessment, but did not do so. The validity of the assessment therefore cannot be questioned for the first time on appeal. (E.g., In re L Y. L. (2002) 101 Cal.App.4th 942, 956, fn. 8; In re Amos L. (1981) 124 Cal.App.3d 1031, 1038.) In any event, as shown above, the issue is not whether it is certain that G. will be adopted by either his maternal relatives or by his foster parents; the issue is whether he is reasonably likely to be adopted by someone. The fact that Ms. Colbert could point to a number of potential adoptive families demonstrates that likelihood. (In re Sarah M., supra, 22 Cal.App.4th 1642, 1649-1650.)

DISPOSITION

The order terminating parental rights is affirmed.

_________________________

Richman, J.

We concur:

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Kline, P.J.

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Lambden, J.

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[1] Statutory references are to this code unless otherwise indicated.

[2] The alleged father apparently voluntarily absented himself before the combined jurisdictional and dispositional hearing. Despite extensive efforts, the Bureau was unable to locate him. Mother initially identified this person as G.’s father, but then changed her mind, telling the social worker that she (Mother) did not know who the father was, but it was not this man.

[3] “Your Honor, on behalf of my client, I have never heard from the mother, nor has she ever appeared in court with me, and this is my third court appearance. So, for all I know, she would be in agreement with the [Bureau’s] recommendation. However, on her behalf, I will object to the [study].” Counsel’s objection was so general that it did not preserve for review any reason for excluding any portion of the study (§ 355).

[4] With respect to the issue of notice of the termination hearing, the court stated: “we will indicate that both parents should be--must be served personally and advised of the nature of the 000.26 hearing, that the requirement--that the Court, pursuant to that section, is going to select and implement a plan of adoption, legal guardianship or long-term foster care for the child. Further, I will advise the clerk of this court to mail the parents, advising them of their writ rights and their ability to file a writ, or seek extraordinary relief, if they disagree with this Court’s ruling. They must file a Request for Record form JV-820, or other notice of intention to file a writ petition and request for record, and a Writ Petition Juvenile Form JV-825 or other petition for extraordinary writ. That must be done within 12 days after the party receives notice by mail, and I will direct the clerk of this court to mail both mother and father who, again, have not appeared in these proceedings, and I don’t know if they have ever appeared in these proceedings.”

[5] Section 366.26, subdivision (l)(3)(A) provides: “A trial court, after issuance of an order directing a hearing pursuant to this section be held, shall advise all parties of the requirement of filing a petition for extraordinary writ review as set forth in this subdivision in order to preserve any right to appeal in these issues. This notice shall be made orally to a party if the party is present at the time of the making of the order or by first-class mail by the clerk of the court to the last known address of a party not present at the time of the making of the order.”

Rules 1435(e) and 1436.5(d) of the California Rules of Court each specify that “When the court orders a hearing under section 366.26, the court shall advise orally all parties present, and by first class mail for parties not present, that if the party wishes to preserve any right to review on appeal of the order setting the hearing under section 366.26, the party is required to seek an extraordinary writ by filing a Notice of Intent to File Writ Petition and Request for Record form (JV-820) or other notice of intent to file a writ petition and request for record and a Writ Petition--Juvenile form (JV-825) or other petition for extraordinary writ. Within 24 hours of the hearing, notice by first class mail shall be provided by the clerk of the court to the last known address of any party who is not present when the court orders the hearing under section 366.26. Copies of Judicial Council forms Writ Petition--Juvenile form (JV-825) and Judicial Council form Notice of Intent to File Writ Petition and Request for Record form (JV-820) shall be available in the courtroom, and shall accompany all mailed notices of the advice.”

[6] The notice told Mother: “the Court hereby advises you that a hearing pursuant to 366.26 is set and that if you wish to preserve any right to review on appeal of the order setting the hearing under section 366.26, you are required to seek an extraordinary writ by filing a Notice of Intent to File Writ Petition and Request for Record form (JV-820) or other notice of intent to file a writ petition and request for record within twelve days of the date of mailing of this notice and a Writ Petition-Juvenile form (JV-825) or other petition for extraordinary writ.” The clerk states in her proof of service that she sent Mother the above notice, the two Judicial Council forms mentioned therein, and a copy of the minute order for the combined jurisdictional and dispositional hearing.

[7] Out of an abundance of caution, the juvenile court also authorized service by publication.

[8] Even so, Mother’s counsel seems to have performed as well as could be expected.