In re D.H.

Filed 12/23/09 In re D.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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Mother appeals from an order of the juvenile court terminating parental rights and establishing adoption as a permanent plan. (Welf. & Inst. Code, 366.26.)[1] We affirm.

FACTS AND PROCEDURAL HISTORY

Only a brief summary of facts is necessary for this appeal. Mother's parental rights to her two children were terminated after hearing on April 30, 2008. Mother's sole contention is that the order must be reversed because the alleged father of one of the children was not given proper notice of the termination hearing.

Throughout the dependency proceedings, the alleged father was in custody at the California Correction Center in Susanville. On April 21, 2008, an order was submitted to the correction center for the transportation of the alleged father to the jurisdiction hearing scheduled for May 8, 2008. He executed a waiver of his right to attend the hearing and to be represented by counsel.

Father was noticed for the disposition hearing by first class mail on June 6, 2008. An order for his transport to the continued disposition hearing on June 19, 2008, was issued, but there is no proof of service or waiver of transport included in the record.

A notice of the section 366.26 hearing to be held on October 30, 2008, was sent to the alleged father by certified mail. The return receipt was signed by the custodial officer. There is no order for transport to the court for this hearing in the record.

At the hearing, the social worker reported that the children were "flourishing" in foster care and their foster parents wanted to adopt them.The agency considered the children to be adoptable and opined that another adoptive home could be found for the children in the event their current placement was disrupted. The juvenile court made the necessary findings and ordered termination of parental rights for both parents.

Only mother appealed from the order. On appeal, mother raises the novel argument that there was insufficient evidence that one of the children was adoptable because the alleged father was not given proper notice of the section 366.26 hearing. She argues that the alleged father could impede the adoption by bringing an action to set aside the adoption for lack of proper notice.

DISCUSSION

Mother Does Not Have Standing to Raise

Notice Issues Regarding the Alleged Father

In In re Caitlin B. (2000) 78 Cal.App.4th 1190, a mother claimed error in the termination of her parental rights on the ground that neither of two alleged fathers had received proper notice of the section 366.26 hearing. The Court of Appeal rejected the mother's claim, holding that she lacked standing. (In re Caitlin B., supra, atpp. 1193-1194.) The Court of Appeal stated, "'Where the interests of two parties interweave, either party has standing to litigate issues that have a[n] impact upon the related interests. This is a matter of first party standing.' [Citation.] In the absence of such intertwined interests, 'a parent is precluded from raising issues on appeal which did not affect his or her own rights.' [Citation.]" (Id. at p. 1194.)

Mother attempts to distinguish In re Caitlin B. on the ground that the court in that case did not address the argument that the failure to notice the alleged father creates a situation where the adoption could be set aside pursuant to Family Code section 9102.[2]^. The argument lacks merit. To obtain a review of a ruling on its merits, a party must establish that he or she is aggrieved. "To be aggrieved a party must have a legally cognizable immediate and substantial interest which is injuriously affected by the court's decision. A nominal interest or remote consequence of the ruling does not satisfy this requirement. [Citations.]" (In re Carissa G. (1999) 76 Cal.App.4th 731, 734.) Issues which do not affect the parent's own rights may not be raised in a parent's appeal. (In re Holly B. (2009)172 Cal.App.4th 1261, 1265.) "An appellant cannot urge errors which affect only another party who does not appeal. [Citations.]" (In re Vanessa Z. (1994) 23 Cal.App.4th 258, 261.) Her argument that the alleged father might someday challenge the adoption is speculative at best and raises only a remote consequence, inadequate to confer standing on her.

We also note that mother has waived the issue by not raising it in the trial court. Even a lack of notice that would otherwise violate due process can be waived by failing to raise the issue below. As stated in In re Wilford J. (2005) 131 Cal.App.4th 742, 754, "A defect in notice . . . is a most serious issue, potentially jeopardizing the integrity of the entire judicial process. However, when a parent had the opportunity to present that issue to the juvenile court and failed to do so, appellate courts routinely refuse to exercise their limited discretion to consider the matter on appeal. This is precisely because defective notice and the consequences flowing from it may easily be corrected if promptly raised in the juvenile court."

Finally, we note the argument has no substantive merit. As the agency points out, the relevant statutes permit process to be served on a jailer who has custody of a prisoner. (Pen. Code, 4013; see also, Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852, 858 [pursuant to Pen. Code,  4013, a sheriff or jailer is authorized by law to receive service of process on behalf of a prisoner in his or her custody].) The record shows that notice was given pursuant to Penal Code section 4013.

The order is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

YEGAN, J.

James E. Herman, Judge

Superior Court County of Santa Barbara

______________________________

Anna L. Ollinger, under appointment by the Court of Appeal, for Defendant and Appellant.

Dennis A. Marshall, County Counsel, Maria Salido Novatt, Sr., Deputy, for Plaintiff and Respondent.

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[1] All statutory references are to the Welfare and Institutions Code unless stated otherwise.

[2] Family Code section 9102, subdivision (a), states that "[a]n action or proceeding of any kind to vacate, set aside, or otherwise nullify an order of adoption on any ground, except fraud, shall be commenced within one year after entry of the order."