In re Michael H.
Filed 5/13/13 In re Michael H. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE
DISTRICT
DIVISION SIX
>
In re MICHAEL H., et al., Persons Coming Under the Juvenile Court Law. | 2d Juv. No. B244671 (Super. Ct. Nos. J068242, J068243) (Ventura County) |
VENTURA COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. INEZ P., Defendant and Appellant. |
Inez P. (mother) appeals
the juvenile court's order terminating her parental
rights to her minor children Michael H. and M.H., and selecting a permanent
plan of adoption. (Welf. & Inst.
Code, § 366.26.)
name="_ftnref1" title="">[1] Mother contends her due process rights were
violated because she was not given notice of the date of the continued section
366.26 hearing. We affirm.
FACTS AND PROCEDURAL HISTORY
On March 22, 2011, the
County Human Services Agency (HSA) filed section 300 petitions as to
newborn M.H. and her one-year-old brother Michael. The petition alleged that both mother and the
children's father, Michael H., Sr.,
name="_ftnref2" title="">[2] had a significant history of substance abuse
and that M.H. was born prenatally exposed to methamphetamine. It was further alleged that father was unable
to care for the children by reason of his incarceration. The court sustained the petitions and ordered
reunification services for both parents.
In its six-month review
report, HSA recommended that parents begin an extended visit with the
children. HSA reported that both parents
had completed parenting classes along with the initial phase of a residential
drug treatment program, had provided clean drug tests, and were participating
in counseling and attending AA/NA meetings.
As a condition of the extended visit, the parents were to continue
participating in the next phase of their residential treatment program. The court ordered continued services and gave
HSA discretion to begin its recommended extended visit. The court made clear that the children would
be returned to foster care if the parents left the treatment program prior to
completion.
The extended visit began
at the beginning of October 2011. On
October 19, mother tried to leave the program with the children but was stopped
by the police. On November 14, 2011, a program staff member was
transporting the family in a van when she noticed that mother had not properly
buckled M.H.'s car seat. The staff
member pulled over and counseled mother and father on the proper way to buckle
the seat. Mother and father were angered
by this, so they got out of the van and simply walked away, leaving both
children behind. Four days later, the
social worker arranged for the parents to return to the program on the
condition that they accept responsibility for their actions. Both parents refused, insisting that the
staff member was to blame.
On November 25, 2011, mother was arrested for being
under the influence of methamphetamine.
After leaving the treatment program, she missed four of the five
required drug tests and father missed all of them. Of the 11 possible visits with the children,
mother attended five and father attended only one. Mother did not reenter drug treatment until February 15, 2012, while father did
not return at all during the reporting period.
At the 12-month review
hearing on March 19, 2012,
HSA recommended that services be terminated for both parents and that the
matter be set for a section 366.26 hearing.
Mother was present at the hearing, while father did not attend. At mother's request, the matter was set for a
contested hearing.
At the contested
hearing, mother testified that she had been sober since January 31st and was
working with a sponsor in a 12-step program.
The court terminated reunification services and set the section 366.26
hearing for August 6, 2012. The court orally ordered mother to return for
the hearing. The social worker also
personally served mother with notice of the hearing.
Mother did not appear at
the August 6th hearing. Father was
present with counsel and requested a contested hearing. The matter was accordingly set for a
contested hearing on August 30, 2012. When the court asked mother's counsel whether
mother was joining in the contest, counsel replied, "I don't know at this
point." HSA served mother notice of
the August 30th hearing by mail.
Mother did not appear at
the August 30th hearing, and counsel gave no explanation for her absence. The matter was trailed to September 5, 2012, at the request of
father and HSA.
When the matter was
called for hearing on September 5, 2012,
mother's counsel once again announced that mother was not present and did not
otherwise comment on her absence. Father
was present with counsel. At the outset
of the hearing, the court asked, "do we have proper notice findings for
Mom?" Counsel for HSA responded
that mother was actually present when the section 366.26 hearing was initially
set for August 6th. The court then noted
that the record expressly reflected that mother had been given notice of the
continued hearing on August 30th, at which she also failed to appear. No mention was made of whether mother
received notice that the hearing had been continued again until September 5th.
HSA submitted its report
recommending termination of parental rights as to both children. The report noted among other things that
mother had attended only half of her visits with the children from January 1,
through July 25, 2012,
while father had attended only one.
Father presented the social worker's testimony indicating that although
Michael H. had behavioral problems, the prospective adoptive parents had no
reservations about adopting both children.
Father testified that he had returned to his residential treatment
program almost three months prior to the hearing. Father admitted, "I let my children down
on various occasions" and added, "I'm more focused on getting myself
right and continuing to have a positive relationship with my children and
raising them."
At the conclusion of the
hearing, father's counsel argued, "I think he's aware that the children
are where they are for a reason and doesn't expect that things will
change." When asked whether she had
anything to add, mother's counsel responded, "I have no comment, your
Honor." Counsel for the children
argued that "[HSA's] recommendation is the only one that's legally
appropriate." The court then
proceeded to terminate parental rights and found that the children were
adoptable and that no exception to adoption applied. Mother appealed.
DISCUSSION
Mother contends the
order terminating parental rights must be reversed because she was not provided
actual notice of the continued section 366.26 hearing at which the order was
entered. This claim is forfeited because
it was not raised below. Moreover, the
failure to give notice was plainly harmless.
"A 'reviewing court
ordinarily will not consider a challenge to a ruling if an objection could have
been but was not made in the trial court.
[Citation.] The purpose of this
rule is to encourage parties to bring errors to the attention of the trial court,
so that they may be corrected.
[Citation.] [¶] Dependency matters are not exempt from this
rule.' [Citation.] The appellate court has discretion to excuse
forfeiture, but it should be exercised rarely and with special care. [Citation.]
Because juvenile dependency proceedings ‘involve the well-being of
children, considerations such as permanency and stability are of paramount
importance. (§ 366.26.)' [Citation.]" (In re
X.V. (2005) 132 Cal.App.4th 794, 804, fn. omitted.)
Mother' s attorney was
present at the hearing of which mother purportedly had no notice. Counsel gave no explanation for mother's
absence, be it due to lack of notice or otherwise. Because an objection would have cured the
error of which mother complains, her failure to object forfeits the issue. (In re
X.V., supra, 132 Cal.App.4th at p. 804; see In re B.G. (1974) 11 Cal.3d 679, 689 [mother's objection to lack of
adequate notice of dependency proceedings waived by counsel's failure to object
and mother's subsequent stipulation to jurisdiction].)
Mother cites
1403, for the proposition that "[w]hile the general rule prohibits raising
a claim on appeal that was not raised below, where the claim involves due
process, that right is not waived."
Sabrina H. does not so
hold. On the contrary, the court
expressly found the appellant had waived or forfeited her notice claim by
failing to object below. (
claim on the merits, it only did so to demonstrate that the lack of notice was
in any event harmless. (
We reach the same
conclusion here. "If the outcome of
a [dependency] proceeding has not been affected, denial of a right to notice
and a hearing may be deemed harmless and reversal is not required." (In re
James F. (2008) 42 Cal.4th 901, 918; see also In re A.D. (2011) 196 Cal.App.4th 1319, 1325 ["[A] failure to
give notice in dependency proceedings is subject to a harmless error
analysis"].)
Here, any error in
failing to give mother notice of the September 6th hearing was plainly harmless
beyond a reasonable doubt. Mother did
not attend the prior hearings of which she received actual notice, and offers
nothing to demonstrate that her failure to attend the September 6th hearing was
due to a lack of notice. Even if she had
attended, everyone agreed that the evidence compelled the court to rule as it
did. According to mother, she could have
persuaded the court that the beneficial parental relationship exception to
adoption applied. (§ 366.26, subd.
(c)(1)(B)(i).) To make such a showing,
she would have needed to show both (1) that she had maintained regular
visitation and contact with the children; and (2) that the benefit of
continuing the parent-child relationship outweighed the benefits of
adoption. (Ibid.) Mother did not
maintain regular visitation with the children.
Moreover, M.H. was detained when she was two days old and Michael H. was
only 17 months old. The children were
only thereafter in mother's custody for a six-week period. By contrast, the children had spent the past
15 months in the home of their prospective adoptive parents. Their need for permanency and stability
plainly favored that placement. As the
children's attorney argued, HSA's recommendation that the children be freed for
adoption was "the only one that's legally appropriate." Because mother offers nothing to undermine
the court's finding in that regard, her alleged lack of notice of the hearing
at which the court made its findings was harmless beyond a reasonable doubt.
The judgment (order
terminating parental rights) is affirmed.
NOT TO BE PUBLISHED.
PERREN,
J.
We concur:
GILBERT, P. J.
YEGAN, J.
Tari
L. Cody, Judge
Superior
Court County of Ventura
______________________________
Maureen L. Keaney, under
appointment by the Court of Appeal, for Defendant and Appellant.
Leroy Smith, County
Counsel, Linda Stevenson, Assistant County Counsel, for Plaintiff and
Respondent.
name="_ftn1" title="">[1] All further statutory references are to the
Welfare and Institutions Code.
name="_ftn2" title="">[2] Father is not a party to this appeal.
