In re J.S.

Filed 3/20/07 In re J.S. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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K.S. (appellant), the mother of J.S. (the minor), appeals from the juvenile courts order establishing a guardianship of the minor. (Welf. & Inst. Code, 366.26, 395; further unspecified section references are to this code.) Appellant contends the juvenile court committed prejudicial error in finding the minor was served properly with notice of the selection and implementation hearing and in failing to inquire why the minor was absent from that hearing. For the reasons that follow, we affirm the order.

FACTS AND PROCEEDINGS

In June 2004, the juvenile court adjudged the minor a dependent child of the court, based on appellants failure to provide proper care for the minor. The minor was removed from appellants custody. However, appellant and the minor visited each other regularly, and the minor indicated he wished to be returned to appellants custody.

Although it recognized the existence of a strong bond between appellant and the minor, Department of Health and Human Services (DHHS) did not recommend reunification of the minor with appellant. The reason for that position was appellants failure to complete all of the counseling required of her by her reunification plan. According to DHHS, the most appropriate permanent plan for the minor was guardianship.

Neither the minor nor appellant was present at the September 8, 2006, section 366.26 hearing. The juvenile court found the minor was 10 years of age or older and was notified properly of his right to be present at the hearing. Counsel for appellant objected to the proposed guardianship. Minors counsel did not oppose the guardianship recommendation. At the conclusion of the hearing, the juvenile court ordered guardianship as the minors permanent plan.

DISCUSSION

Appellant contends the juvenile court committed reversible error in finding the minor was served properly with notice of the section 366.26 hearing and in failing to inquire about the absence of the minor from that hearing. According to appellant, the record does not reflect that the minor ever was served with notice of the hearing. Citing the details of visitation as a critical issue, appellant argues she was prejudiced by the absence of the minor from the hearing, as his input and opinion pertaining to visits with appellant allegedly could have assisted the juvenile court in its determination regarding future contact between appellant and the minor. For purposes of addressing appellants claims, we presume appellant has a sufficient legal interest to make her contentions pertaining to the minor. (Cf. In re Jenelle C. (1987) 197 Cal.App.3d 813, 818.)

Section 366.26, subdivisions (h)(1) and (h)(2), state: At all proceedings under this section, the court shall consider the wishes of the child and shall act in the best interests of the child. [] (2) In accordance with Section 349, the child shall be present in court if the child or the childs counsel so requests or the court so orders. If the child is 10 years of age or older and is not present at a hearing held pursuant to this section, the court shall determine whether the minor was properly notified of his or her right to attend the hearing and inquire as to the reason why the child is not present.

Contrary to appellants claim, the record reflects, in the form of a social workers report, the minor and his caretakers were served with notice of the section 366.26 hearing. It is true the record does not contain copies of the notice sent to the minor and his caretakers. However, we presume the reason for that omission from the record is the fact the address of the minor and caretakers is confidential. (Evid. Code, 664.) Accordingly, the juvenile courts finding that the minor was notified properly of the hearing is supported by the record. As the minor was 10 by the time of the section 366.26 hearing in this case, subdivision (h)(2) of section 366.26 was applicable to the proceedings. There was no error.

Appellant also claims the juvenile courts failure to inquire into the reason for the absence of the minor from the section 366.26 hearing is reversible error.

The difficulty with appellants claim in this case is that the record does not reveal counsel for appellant, or appellant herself, tendered in the juvenile court any objection to the absence of the minor from the section 366.26 hearing. The record reflects appellant had ample opportunities to bring that issue to the attention of the juvenile court if she had wished to do so. Yet she failed to avail herself of that opportunity, never even mentioning the minors absence.

The California Supreme Court has stated, An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been, but was not, presented to the lower court by some appropriate method . . . .

The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver . . . . Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1, italics in Doers.) The purpose of the general doctrine of waiver is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had . . . . (People v. Walker (1991) 54 Cal.3d 1013, 1023.) No procedural principle is more familiar to this Court than that of a constitutional right, or a right of any other sort, may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it. [Citation.] [Citation.] (People v. Saunders (1993) 5 Cal.4th 580, 589-590; cf. In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2 [stating that the correct legal term for loss of right based on failure to assert it in a timely fashion is forfeiture, not waiver].)

Here, as the record shows, at no time did appellant tender any objection to the juvenile courts failure to inquire as to the minors absence from the section 366.26 hearing. Thus, appellant is precluded from raising the claim here. (In re Erik P. (2002) 104 Cal.App.4th 395, 403; In re Dakota S. (2000) 85 Cal.App.4th 494, 501-502; In re Gilberto M. (1992) 6 Cal.App.4th 1194, 1198-1200.) Appellant has forfeited her claim. (In re S.B., supra, 32 Cal.4th at p. 1293, fn. 2.)

DISPOSITION

The order of the juvenile court is affirmed.

HULL, J.

We concur:

DAVIS, Acting P.J.

ROBIE , J.

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