In re Lucero

Filed 2/16/06 In re Lucero S. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County.

D. Zeke Zeidler, Judge. Affirmed.

Jesse F. Rodriguez, under appointment by the Court of Appeal, for Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Pamela S. Landeros, Deputy County Counsel, for Respondent.

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In this appeal from an order terminating parental rights (Welf. & Inst. Code, § 366.26), [1] appellant Dorothy F. raises a single issue, contending that she had inadequate notice of the continued section 366.26 hearing. We find that any lack of notice was harmless, and affirm, as we explain:

Appellant's daughter, Lucero, was born in October 2003, with a positive toxicology screen for amphetamines and methamphetamines. A section 300 petition was filed a few days later, and a detention hearing was held on October 22. The critical hearing terminating parental rights took place on August 20, 2005.

Appellant was represented by counsel at every hearing during the dependency. She herself attended some, but not all, of the hearings. She also moved several times during the dependency. She was advised of her obligation to notify DCFS and the court of any change of address, in writing, but never did so. (§ 316.1, subd. (a).) Nevertheless, DCFS learned of several of the moves. Thus, notices were sent to various addresses.

At the detention hearing, the trial court found that appellant's permanent mailing address was the one on the petition, on Burkett Road in El Monte. She was advised that notices would be sent to that address and that "If you change your address . . . you must inform the court, the social worker and your attorney in writing."

Lupe S., Lucero's father,[2] gave his parents' address, also on Burkett Road, as his permanent mailing address, although he soon moved to appellant's Burkett Road home.

In December, Lucero was placed with Lupe's parents. She remained there throughout the dependency and that home has been identified as her potential adoptive home.

Notice of the next hearing was sent to appellant's Burkett Road address. She was present at the hearing, which was on November 25, and was ordered back for the next hearing, in December. She was present at that hearing and pled no contest to the petition. In her presence, a six-month review hearing was set for June 29, 2004.

In January 2004, appellant told DCFS that she and Lupe would soon be evicted from her Burkett Road home. The social worker reminded her that she had to give DCFS her new address. The eviction took place in April. In May, the social worker twice found appellant and Lupe at the paternal grandparents' home, sleeping in the living room. They said that they did not live there, and were living in their car.

Notice of the June 29 hearing was sent to appellant's Burkett Road address. The notice specified that the hearing would consider termination of reunification services. Appellant did not appear at that hearing. The case was continued until July 8 because the DCFS report was late. Appellant was not present on July 8. At that hearing, the court terminated reunification services, set the section 366.26 hearing for November 4, and asked the paternal grandparents if they knew where appellant and Lupe were living. They did not.

DCFS then received conflicting information about appellant's address. In July, Lupe told DCFS that he and appellant were living at an address on Workman Street in West Covina. Later, the paternal grandmother told DCFS that, according to Lupe, he and appellant were living with a friend in Malibu. DCFS sent notice of the November 4 hearing to appellant's official Burkett Road address.

Appellant was not present on November 4. The section 366.26 hearing was continued until March 3, 2005, at DCFS's request.

Notice of the March hearing was sent to appellant at a different address, on Fineview Street in El Monte. The DCFS report for the hearing does not explain the change, but we know from earlier reports that the address is appellant's sister's -- Lucero was briefly placed there early in the dependency.

Appellant was present at the March 3 section 366.26 hearing. During the hearing, the recommendation changed from guardianship to adoption, and the case was continued until July 13 for an adoptive home study and a further section 366.26 hearing. Appellant was given actual notice of the continued hearing date and was ordered to return on that date. The court told her "If you're not here, I'll proceed without you, that could include terminating your parental rights and going to a plan of adoption."

In addition, DCFS sent appellant written notice of the July 13 hearing. That notice was sent an address on Granada Avenue in El Monte. Our record does not fully explain the change of address. DCFS's Status Review report for the July 13 hearing lists the paternal grandparents' address as appellant's address. DCFS's Interim Review report of that same date also lists the grandparent's address, but then states that in May, appellant's whereabouts were unknown and that in June she contacted DCFS and said that she was staying with her maternal aunt.

Appellant was not in court on July 13. The case was continued until August 30. The court ordered "courtesy notice" to both parents.

Notice of the August 30 hearing was sent to appellant at the Fineview Avenue address. Appellant was not present at the hearing. The court found that notice was proper and that Lucero was adoptable, and terminated parental rights.

On her notice of appeal, appellant gave the Granada Avenue address as her address.

On these facts, appellant argues that she was denied proper notice of the August 30 continued section 366.26 hearing, that the lack of notice violated her Federal Constitutional due process rights, and that the error is a structural defect requiring reversal per se.

Notice of a section 366.26 hearing is governed by section 294, which provides that if notice of the original section 366.26 hearing is proper (which is not challenged here) "subsequent notice for any continuation of a Section 366.26 hearing may be by first-class mail to any last known address, by an order made pursuant to section 296, or by any other means that the court determines is reasonably calculated, under any circumstance, to provide notice of the continued hearing."

(§ 294, subd. (d).) Section 294 sets out notice requirements which satisfy due process. (In re Phillip F. (2000) 78 Cal.App.4th 250, 258.)

Appellant's argument is that notice to Fineview Avenue was not reasonably calculated to provide notice, and that notice should have been sent to her permanent address on Burkett Road, or to her last known address, at her aunt's. She contends that DCFS mistakenly believed that the Fineview Avenue address, which was Lucero's aunt's address, was her aunt's address.

We begin by noting that while we might wish that the DCFS reports included more explanation of the addresses given for appellant, it was appellant who made notice in this case complicated. She was told to keep DCFS informed of her address if she moved, but she did not do so.

DCFS may well have been confused about the Fineview Avenue address, but it is also true that notice of the March 3 hearing was sent to that address, and that appellant attended that hearing. We do not see that notice should have been given to appellant at her Burkett Road address, despite the fact that it was her official permanent address, given that she was evicted from that home more than a year before the August 30 hearing.

More to the point, even if notice was defective, we agree with the reasoning and result of In re Angela C. (2002) 99 Cal.App.4th 389, which held that defective notice of a continued section 366.26 hearing is not structural error which is reversible per se, but is subject to a harmless-beyond-a-reasonable-doubt analysis. (Id. at p. 395, see also In re Daniel S. (2004) 115 Cal.App.4th 903 [harmless beyond a reasonable doubt standard applies to notice of jurisdictional and dispositional hearings and hearing to appoint a guardian ad litem], but see In re Jasmine G. (2005) 127 Cal.App.4th 1109 [failure to give statutorily required notice of initial section 366.26 hearing is a structural defect which requires automatic reversal].)

Angela C. reasoned from the principle that constitutional error as a general rule does not automatically require reversal, and that appellate courts instead apply a harmless error standard to most constitutional error. That Court found that "An error in the trial process itself does not require automatic reversal because a court may quantitatively assess such an error in the context of other evidence presented in order to determine whether the error was harmless beyond a reasonable doubt. [Citation.] . . . [¶] 'By comparison, "structural" error . . . affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself' defies analysis by a harmless error standard."

(In re Angela C., supra, 99 Cal.App.4th at p. 394.) Angela C. concludes that "we find the lack of notice of a continuance is in the nature of a trial error. To the extent structural error implicates the fundamental fairness of judicial proceedings, we reason the error in this case is not structural." (Id. at p. 395.)

We agree, and under that standard, we do not hesitate to conclude that any failure to notify appellant of the continued section 366.26 hearing was harmless.

The issues at a section 366.26 hearing are whether the child is adoptable and whether there is a statutory exception to adoption. (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 250, 254.) There is no question but that Lucero was adoptable. For one thing, her grandparents wanted to adopt her. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650.)

Appellant argues, however, that if she had been present at the hearing, she could have made an argument under section 366.26, subdivision (c)(1)(A), which allows the court to depart from the statutorily preferred plan of adoption if "the court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances" (§ 366.26, subd. (c)(1)), to wit, that "The parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(A))

The subsection does not apply unless the parent shows that "severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed." ( In re Angel B. (2002) 97 Cal.App.4th 454, 466.)

In support of her argument that she had such a relationship with Lucero, appellant cites the evidence that she made some effort toward compliance with her case plan, and the evidence concerning her visits.

We do not see that the evidence could have established that the "visits exception" applied here. Nothing in appellant's history of visits or her compliance with her case plan so much as suggests that she could establish that she formed a connection with Lucero such that Lucero would be harmed by termination of parental rights.

Appellant's case plan, established in December, called for drug rehabilitation, random drug testing, domestic violence counseling, and parent education, but by the time family reunification services were terminated, in July 2004, her only proof of compliance was a February 26, 2004 letter showing proof of completion of ten sessions of counseling through the El Monte Police Department, and a certificate of the same date from the same source showing completion of 20 sessions of parenting education. As the trial court noted, this was not substantive progress in the treatment plan, but amounted to "some parenting," and "some counseling," with nothing to show the content of the counseling. Moreover, as the trial court also noted, DCFS records show that on repeated dates between October of 2003 and March of 2004 (when she stopped testing) appellant either failed to show up for drug tests or tested positive for amphetamines and methamphetamine. As to appellant's contention that she had completed additional classes by March 2005, our record includes only the trial court's description: "at this point, the mother has done only six sessions of a domestic violence program. She's done a couple substance abuse group sessions through the El Monte Police Department. She did 10 classes and then 10 classes and completed that program. That's not the level of a drug rehab program that's envisioned in the case plan." The court questioned appellant about her classes with the El Monte Police Department, and her attendance at AA or NA or any 12 step meetings, and on learning that appellant only attended one 12 step meeting a week, determined that appellant had not sought out the necessary resources and had not done the kind of drug rehabilitation contemplated in the case plan.

On visits, appellant cites the March 2005 DCFS report that she was visiting Lucero two or three times a week. She also argues that there was conflicting evidence concerning her visits between April and June 2005, so that her evidence, at a contested hearing, could have made a difference.

Examination of the entire record reveals that appellant's visits were not such as to suggest the requisite connection with Lucero.

Appellant visited Lucero twice a week when she was first detained, but after Lucero was placed with her grandparents, in December 2003, appellant's visits became inconsistent. In July, 2004, Lucero's grandmother told DCFS that appellant visited "a few times a week," but by November, the report was that appellant visited "only once in a while," perhaps twice a month, "for a few minutes." By March, visits were back to two or three times a week.

As appellant argues, reports for the next period are inconsistent. In July, DCFS reported that, according to Lucero's grandmother, appellant had been visiting once a week, but also reported that appellant visited more often in March and April but did not visit at all in June.

Appellant's argument is that she should have been given the opportunity to present evidence about visits in this period. However, she does not tell us what that evidence would be. Moreover, she was given an opportunity to present evidence, through her counsel.

On the question of visits, appellant also cites the evidence that her visits "went well." That is what Lucero's grandmother reported, but those few words do not amount to evidence that appellant's connection with Lucero was sufficiently substantial so as to invoke the "visits exception."

On this record, appellant's presence at the hearing could not have made a difference. Any error was harmless.

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, J.

We concur:

TURNER, P.J.

KRIEGLER, J.

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[1] All further statutory references are to that code.

[2] He is not a party to this appeal.