In re Nicolas O.
Filed 5/7/08 In re Nicolas O. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re NICOLAS O., a Person Coming Under the Juvenile Court Law. | |
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. NICOLE O., Defendant and Appellant. | D052074 (Super. Ct. No. J511841B) |
APPEAL from a judgment of the Superior Court of San Diego County, Gary M. Bubis, Judge. Affirmed.
Nicole O., appeals the judgment terminating her parental rights to her son Nicolas O. under Welfare and Institutions Code section 366.26.[1] Nicole contends her parental rights were terminated without proper notice of the section 366.26 hearing. Nicole also contends the juvenile court abused its discretion by not granting her counsel's request for a continuance of the section 366.26 hearing.
FACTS
On August 26, 2006, police arrested Nicole for being under the influence of alcohol in public and took 11-month-old Nicolas, who was in a stroller, into protective custody. Nicole's blood alcohol level was .19 percent, and she had an outstanding warrant for possession of cocaine. On August 30 the San Diego County Health and Human Services Agency (Agency) filed a dependency petition on behalf of Nicolas. ( 300, subds. (b), (g).)
Nicole told the social worker she wanted to reunify with Nicolas and would enter drug rehabilitation when she was released from jail. Nicole, then 34 years old, said she had begun using drugs and alcohol when she was 19 years old, and had served two years in prison for a drug-related offense. Between December 1991 and July 24, 2002, Nicole had been arrested 22 times on drug and alcohol related charges.
On September 21 the juvenile court sustained the dependency petition, declared Nicolas a dependent, removed him from the physical custody of Nicole and placed him in a licensed foster home. The court ordered Nicole to comply with her reunification case plan.
Nicole had three visits with Nicolas while she was incarcerated at Las Colinas Detention Facility. In November Nicole was transferred to the California Institution for Women in Chowchilla with an anticipated release date of August 2007.
Nicole wrote four letters to the social worker and provided her prison counselor's name and telephone number. However, the social worker was unable to contact the counselor despite numerous attempts.
On May 29, 2007, at the contested six-month review hearing, the court terminated reunification services and set a section 366.26 hearing for September 26. Nicole attended the review hearing and was personally served with written notice of the section 366.26 hearing.
In August 2007 the adoption social worker received two collect call messages from Nicole, stating she had been released on parole that month. Nicole did not make any other attempt to contact the social worker, and her whereabouts were unknown to Agency.
Agency assessed Nicolas as likely to be adopted. He was in good health, appeared to be developmentally on target and was a sociable two-year-old boy. Nicolas had lived with his caregiver for nine months and was bonded to her. The caregiver, who had previously been approved to adopt two other children, wanted to adopt Nicolas, and there was no reason to believe she would not be approved to adopt Nicolas. In addition, 11 approved prospective adoptive families in San Diego County were interested in adopting a boy with Nicolas's characteristics.
On September 26 the matter came before the court for a section 366.26 hearing. The court found notice had been given as required by law. Nicole's counsel set the case for trial.
On October 9 the date for the contested section 366.26 hearing, Nicole's counsel told the court that Nicole had been incarcerated again on September 25. The court continued the section 366.26 hearing to November 26 to allow counsel to produce Nicole. The minute order for the October 9 hearing was sent to Nicole at her last known addressthe prison in Chowchilla. Nicole's counsel prepared an order to produce the mother from prison and filed it with the court on October 31.
On November 7 Nicole was released from custody. She did not attend the contested section 366.26 hearing on November 26. The court denied a request by Nicole's counsel to continue the hearing. On the basis of her last conversation with Nicole, counsel argued for a permanent plan of guardianship or long-term foster care because Nicole did not want her parental rights terminated. Counsel also related that if the court selected adoption as a permanent plan, Nicole preferred that Nicolas's godmother be considered as an adoptive placement.
The court found Nicolas was likely to be adopted and none of the statutory exceptions to adoption applied. The court terminated parental rights and selected adoption as Nicolas's permanent plan.
DISCUSSION
I
Nicole contends she was denied her due process rights when she was not given proper notice of the continuation of the section 366.26 hearing to November 26 and the juvenile court terminated her parental rights.
At the outset, we are not persuaded by Agency's argument that Nicole has forfeited or waived her due process claim regarding notice by not raising the issue below. (See e.g., In re Valerie A. (2007) 152 Cal.App.4th 987, 1001.) As we read the record, Nicole's counsel's request for a continuance at the November 26 hearing was sufficient to preserve the issue for appeal. Trial counsel's failure to use the magic words "due process" was not fatal.
Notice "is both a constitutional and a statutory imperative." (In re Jasmine G. (2005) 127 Cal.App.4th 1109, 1114.) Due process of law in juvenile dependency cases 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.) "Before depriving a parent of his or her parental interest, the state must afford the parent adequate notice and an opportunity to be heard." (In re Christiano S. (1997) 58 Cal.App.4th 1424, 1429-1430.)
Section 294 governs notification of permanency planning hearings.[2] The statute requires Agency to give notice of a section 366.26 hearing to the dependent child's parents. ( 294, subd. (a)(1).) If the parent is not present at the hearing at which the section 366.26 hearing is set, Agency must give notice either by certified mail, return receipt requested at the last known address, established by a signed receipt; personal service; substituted service at the parent's usual place of residence or business, with a second copy sent to that address by first class mail; or, in certain cases not applicable here, by first class mail. ( 294, subd. (f)(2)-(6).)
Nicole was present at the hearing at which the section 366.26 hearing was set and also was personally served with written notice of the section 366.26 hearing. ( 294, subd. (f)(1) & (3).) Nicole, who did not attend the originally set section 366.26 hearing, acknowledges she was properly noticed with respect to that hearing on September 26, 2007; the court duly noted that notice had be given as required by law. At that hearing, her counsel set the matter for trial on October 9.
Section 294 subdivision (d) provides that notice of a continued section 366.26 hearing may be given by first-class mail to the parent's last known address if the Agency's recommendation for a permanent plan has not changed.[3] Thus, when a section 366.26 hearing is continued, an absent parent is entitled to notice of the continued hearing date. (In re Phillip F. (2000) 78 Cal.App.4th 250, 258; In re Angela C. (2002) 99 Cal.App.4th 389, 392.) However, notice of the continued section 366.26 hearing does not need to comply with the strict notice requirements for the initial section 366.26 hearingas long as the notice given satisfies due process. (In re Phillip F., supra, 78 Cal.App.4th at pp. 258-259; In re Angela C., supra, 99 Cal.App.4th at pp. 392-393.)
Here, there is no record the Agency sent any notice to Nicole of the continued hearings pursuant to section 294. The record, however, shows that the court clerk sent a copy of the minute orders for the September 27 and October 9 hearings to Nicole's last known addressthe prison in Chowchilla. The minute orders stated that those hearings had been continued and listed the next hearing date of either October 9 or November 26. Further, at the October 9 hearing, the court, after learning that Nicole had been incarcerated again, instructed her counsel to prepare an order to produce her from prison for the November 26 hearing. On October 31 the court signed the order to produce Nicole.
Although the renotice to Nicole of the continued hearings did not strictly comply with section 294, the notice given satisfied due process. (In re Angela C., supra, 99 Cal.App.4th at p. 392.) "In this regard, 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." (Id. at p. 393.)
Nicole relies on In re Julian L. (1998) 67 Cal.App.4th 204. However, in that case, not only was the mother not notified of the continued section 366.26 hearing, but the court relieved her counsel without making a timely appointment of substitute counsel and she was therefore unrepresented by prepared counsel at the hearing. (Id. at pp. 207-209.) This case does not involve substitution of counsel and the absence of a prepared counsel at the hearing.
Furthermore, even were we to conclude that the renotice did not satisfy due process, we nonetheless would find any defect in notice was harmless beyond a reasonable doubt. (In re Angela C., supra, 99 Cal.App.4th at pp. 394-395 [lack of notice of continuance of termination hearing is "in the nature of trial error," not structural error and thus its impact is assessed under the Chapman (Chapman v. California (1967) 386 U.S. 18) harmless error standard].)
There is no doubt that Nicolas was likely to be adopted. Further, no evidence in the record supported a finding that termination of parental rights would be detrimental to his best interests. (See In re Matthew C. (1993) 6 Cal.4th 386, 392 [when child is adoptable and there are no statutory exceptions that would cause detriment to the child, the decision to terminate parental rights is relatively automatic].) Counsel related Nicole's wishes, gleaned from their last conversation, that her parental rights not be terminated and Nicolas's godmother be considered as an adoptive placement. Had Nicole been noticed and appeared, there was nothing further that counsel could have presented. Any error was harmless beyond a reasonable doubt.
II
Nicole contends the court abused its discretion by denying her counsel's request for a continuance of the November 26 section 366.26 hearing.
Under section 352, the juvenile court may grant a continuance of any hearing only on a showing of good cause and only if the continuance is not contrary to a child's best interests. In considering the child's interests, "the court shall give substantial weight to a [child's] need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements." ( 352, subd. (a); In re Ninfa S. (1998) 62 Cal.App.4th 808, 810.) Continuances in juvenile cases are discouraged. (Jeff M. v. Superior Court (1997) 56 Cal.App.4th 1238, 1242.) We reverse an order denying a continuance only on a showing of an abuse of discretion. (In re Gerald J. (1991) 1 Cal.App.4th 1180, 1187.)
Denial of the continuance here was not an abuse of discretion. Nicole reportedly had been released from custody on November 7. Despite court directives to keep the court and Agency advised of her mailing address ( 316.1, subd. (a)), Nicole did not do so. She did not inform her attorney of her most recent address. Nicole had contacted her attorney and Agency in the past; it is reasonable to assume that she knew how to contact them. Given these circumstances, Nicole has not demonstrated there was good cause to justify a continuance. (In re J.I. (2003) 108 Cal.App.4th 903, 912.)
Moreover, these dependency proceedings began in August 2006 when Nicolas, then 11 months old, was taken into protective custody. During the next 15 months, Nicolas had negligible contact with Nicole, and during the bulk of that period he lived with a caregiver who wanted to adopt him. " '[T]ime is of the essence in offering permanent planning for dependent children.' " (In re Gerald J., supra, 1 Cal.App.4th at p. 1187.) It was not in the best interests of Nicolas to further delay the resolution of his permanent plan.
DISPOSITION
The judgment is affirmed.
McDONALD, J.
WE CONCUR:
HUFFMAN, Acting P. J.
AARON, J.
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[1] Statutory references are to the Welfare and Institutions Code.
[2] Section 294 was enacted in 2002 (stats. 2002, ch. 416, 1, pp. 2020-2022) as part of legislation organizing and clarifying notice provisions relating to dependency proceedings. (See Historical and Statutory Notes, 73 West's Ann. Welf. & Inst. Code (2008 supp.) foll. 290.1, p. 55.) Previously, notice provisions regarding section 366.26 hearings were found in former section 366.23. (Stats. 1987, ch. 1485, pp. 5634-5635.)
[3] Section 294, subdivision (d) reads: "Regardless of the type of notice required, or the manner in which it is served, once the court has made the initial finding that notice has properly been given to the parent, or to any person entitled to receive notice pursuant to this section, subsequent notice for any continuation of a Section 366.26 hearing may be made by first-class mail to any last known address, by an order made pursuant to Section 296, or be any other means that the court determines is reasonably calculated, under any circumstance, to provide notice of the continued hearing. However, if the recommendation changes from the recommendation contained in the notice previously found to be proper, notice shall be provided to the parent, and to any person entitled to receive notice pursuant to this section, regarding that subsequent hearing."
