In re M.F.

Filed 2/11/10 In re M.F. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

M.F.s mother, J.F. appeals an order of the trial court denying a request for a contested hearing and selecting a permanent plan of guardianship pursuant to Welfare and Institutions Code, section 366.26[1] for M.F. On appeal, J.F. asserts the trial court erred in denying her counsels request for a contested hearing to determine the permanent plan.

Statement of the Facts and Case

M.F. was born in September 2001, and was developmentally disabled. When she was five-years-old, she was determined to be eligible for the services of the San Andreas Regional Center based on her delays in language, learning ability and social skills. At the time, M.F. was considered to have an unspecified level of mental retardation and autism.

The Santa Clara County Department of Social Services (the Department) became involved with M.F. in January 2006, through a cross-report from Solono County, where M.F.s parents sometimes lived. The Department had information that M.F.s mother, J.F. had mental health problems, and was resistant to evaluation of M.F.s developmental problems.

On January 23, 2007, the Department filed a petition alleging M.F. came within section 300, and J.F. suffered from untreated schizophrenia making her unable to meet M.F.s needs. The court detained M.F. with J.F. with home supervision.

On May 18, 2007, the court sustained the petition, continued M.F.s placement with J.F., and ordered services. As part of the services, J.F. was to have a new medication evaluation for her psychiatric issues. During this time, J.F. was not cooperative, and was difficult to assess. The court ordered her to appear at a hearing on September 24, 2007 to evaluate her progress.

At the hearing on September 24, 2007, the Department presented a report stating numerous concerns about J.F.s actions. Specifically, the report stated that J.F. had not completed a medication evaluation, and had unilaterally removed M.F. from school. The court ordered M.F. to be taken into protective custody. At the time, the Department filed a supplemental petition pursuant to section 387 to remove M.F. from J.F.s custody.

Following the hearing in September 2007, M.F. was placed in foster care. On December 5, 2007, the court ordered reunification services that included J.F.s participation in a medication evaluation for her psychiatric issues.

The six-month review hearing was contested, and held in July 2008. The court continued reunification services, and temporarily suspended J.F.s visits with M.F. at the social workers request.

The court set a hearing date of August 15, 2008, to consider whether J.F.s visits with M.F. should continue or be suspended. The social worker claimed J.F. had been disruptive during visits by cursing, shouting and throwing things at the visitation social worker. At the August 15 hearing, the court suspended J.F.s visits with M.F.

The 12-month review hearing was held in November 2008. At the hearing, the Department recommended that the court terminate reunification services and select a permanent plan for M.F. The review hearing and visitation issue were set for a contested hearing in January 2009.

On January 27, 2009, the court adopted the Departments recommendation to terminate reunification services, terminate J.F.s visits and set a hearing to select a permanent plan for M.F. J.F. was present at the hearing.

On March 5, 2009, the Department sent a notice to J.F. that it would recommend guardianship of M.F. as the permanent plan at the section 366.26 hearing, and that the court would proceed with the hearing with or without J.F. present.

On May 12, 2009, the court proceeded with the section 366.26 hearing, and J.F. was not present. The court denied J.F.s counsels initial request for a continuance based on his clients absence. J.F.s counsel, who had been unable to contact his client, requested a contested hearing, without actual knowledge of his clients wishes. The court denied the request, and adopted the Departments recommendation of guardianship as a permanent plan. J.F. filed a timely notice of appeal.

Discussion

On appeal, J.F. asserts the trial court erred in denying her counsels request for a contested hearing on the permanent plan. Specifically, J.F. argues the courts denial in this case violated her due process rights to confront and cross-examine witnesses. (In re Matthew P. (1999) 71 Cal.App.4th 841, 849.)

At the section 366.26 hearing on May 12, 2009, although notified of the court date, J.F. was not present. Moreover, her attorney had been unable to contact her, initially requesting a continuance, and then requesting a contested hearing, stating: We have not been able to get in contact with [J.F.], but wed be able to explain the recommendation and perhaps [we] will be able to go forward by way of submission. But as she is not here, and once again, given my history with this client, my feeling is that she would want to set this matter for a contested hearing. The court inquired of counsel: Has she told you specifically she wanted a trial for this issue before the court today? To which counsel replied: She has not. The court subsequently denied counsels request and adopted the recommendation of the Department.

J.F. asserts the courts denial of her counsels request for a contested hearing denied her due process rights. The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. (Mathews v. Eldridge (1976) 424 U.S. 319, 333.)

Here, the record demonstrates that J.F. received notice of the time and place of the section 366.26 hearing. Specifically, J.F. was present at the referral hearing on January 27, 2009, during which the court ordered her to be present on the May 12, 2009 date. In addition, J.F. filed a notice of intent to file a writ petition, and stated on the notice that the section 366.26 hearing was scheduled for May 12, 2009, evidencing her knowledge of the court date. Finally, the written notice sent to J.F. on May 12, 2009 date specifically stated that the hearing would proceed in her absence.

We find J.F. was not denied her due process rights by the trial courts denial of her counsels request for a contested hearing. The notice provided to J.F. of the May 12, 2009 hearing satisfied due process, in that it gave J.F. the opportunity to be heard. J.F.s unexplained absence did not require the court to set the matter for a contested hearing on her counsels assumption of J.F.s wishes.

If J.F. had attended the hearing, or communicated with her attorney, her social worker or the court, she would have been able to express her wishes regarding whether or not she wanted to proceed with a contested hearing. J.F. was given her due process rights through adequate notice, and effectively exercised those rights through her failure to appear or communicate.

Disposition

The judgment is affirmed.

______________________________________

RUSHING, P.J.

WE CONCUR:

____________________________________

elia, J.

___________________________________

DUFFY, J.

Publication Courtesy of California attorney directory.

Analysis and review provided by Oceanside Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

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