Opinion
B305436
06-22-2021
In re MASON W., a Person Coming Under Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. R.D., Defendant and Appellant.
Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the County Counsel, Rodrigo A. Castro-Silva, County Counsel, and Kim Nemoy, Assistant County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. 17CCJP00325C Stephen Marpet, Judge Pro Tempore. Affirmed.
Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the County Counsel, Rodrigo A. Castro-Silva, County Counsel, and Kim Nemoy, Assistant County Counsel, for Plaintiff and Respondent.
MANELLA, P. J.
INTRODUCTION
The juvenile court declared infant Mason W. a dependent of the court and scheduled a permanency planning hearing, without ordering reunification services for the child's mother, appellant R.D. (Mother). Mother, who did not attend the hearing, petitioned the court under Welfare and Institutions Code section 388 to vacate its findings and orders. She claimed that the Los Angeles County Department of Children and Family Services (DCFS) had failed to provide her proper written notice of the hearing and thus violated her right to due process. The juvenile court denied Mother's petition, and she challenges this decision on appeal.
Undesignated statutory references are to the Welfare and Institutions Code.
Assuming, without deciding, that Mother received inadequate notice of the hearing, we conclude that any error was harmless beyond a reasonable doubt: the record establishes that Mother would not have attended the hearing regardless of any additional notice, and that even if she had, the result of the hearing would not have been different. We therefore affirm.
BACKGROUND
A. The Family and Prior Dependency Proceedings
Mother has three children: K.D. (born January 2009), A.M. (born January 2017), and Mason W. (born April 2019). In 2012, the juvenile court sustained allegations that Mother had endangered K.D. in various ways. Three-year-old K.D. was removed from Mother's custody, but Mother apparently succeeded in reunifying with her, and the court terminated jurisdiction in 2013. In 2018, the juvenile court sustained allegations that K.D., then eight, suffered from “emotional problems including auditory and visual hallucinations” but that Mother had failed to ensure the child's participation in psychological services. The court further sustained allegations that Mother's neglect of A.M., an infant, resulted in the child suffering significant physical injuries. The court removed K.D. and A.M. from parental custody and ordered family reunification services.
B. The Initiation of Current Proceedings Involving Mason and Mother's Attempt to Flee
Mason was born in April 2019. Shortly after his birth, Mason tested positive for amphetamine and methamphetamine. Several days later, Mother arrived with Mason to DCFS's office in Lancaster for a monitored visit with K.D. and A.M.. After a social worker told Mother that her visit had been cancelled because she had failed to confirm it the day before, Mother returned to her car and drove off, with Mason being held by a front seat passenger. On April 26, at DCFS's request, the juvenile court issued an expedited removal order for Mason. That same day, a DCFS social worker served the order on Mother following her visit with the siblings at the DCFS office, but Mother claimed that the document was “fake, ” refused to release Mason to the social worker, and left with him. A few days later, DCFS filed a juvenile dependency petition under section 300 based on Mason's toxicology report, Mother's drug use, her driving Mason without placing him in a car seat, and her prior neglect of A.M.. In May 2019, the juvenile court terminated Mother's reunification services for Mason's siblings.
Mother and Mason's whereabouts remained unknown for more than a month. In early June 2019, they were found in Nevada, squatting in a vacant home. The homeowner called the police, who arrested Mother. Mother admitted to having an open dependency case in California but provided a false name for Mason. Nevada authorities notified DCFS, who retrieved Mason and placed him in foster care with his siblings. The juvenile court sanctioned Mason's placement in foster care and ordered DCFS to notify Mother of the upcoming, July 26, 2019, jurisdiction/disposition hearing.
C. Mother's Visits with the Children and DCFS's Attempts to Notify Her of the Hearing
After returning to California, Mother's whereabouts remained unknown, except when she visited the children at the DCFS office. On June 25, 2019, Mother missed a scheduled visit with the children. At her next weekly visit, Mother yelled at DCFS social workers in the children's presence after she was informed she could not take the children outside.
On July 5, Mother was arrested on a robbery charge and remained in custody until July 24. Though DCFS located Mother in custody, it failed to notify her of the July 26 hearing. The juvenile court thus continued the hearing to September 16, 2019. A DCFS social worker then notified mother by phone of the September 16 hearing. In August, DCFS sent written notice of the hearing by certified mail to the maternal grandfather's address, and the grandfather signed for it. The notice did not include a copy of the dependency petition. DCFS did not attempt to personally serve Mother with notice of the hearing during her visits with the children at the DCFS office.
Mother had provided the maternal grandfather's address as her mailing address in K.D. and A.M.'s case in March 2019, but DCFS had reason to know that by April 12, before Mason was born, Mother no longer resided there.
At the September 16 hearing, Mother did not appear, but the juvenile court found that she had received proper notice. The court continued the matter to September 20, to secure the presence of Mason's alleged father, who was incarcerated. It ordered DCFS to provide “courtesy notice” to Mother for the continued hearing. On September 17, DCFS sent notice of the September 20 hearing to the maternal grandfather's address by regular mail. This notice, too, did not include a copy of the dependency petition.
The alleged father is not pertinent to this appeal.
That same day, Mother visited the children at the DCFS office. During the visit, Mother wrote a note to K.D., but despite repeated demands, refused to allow the monitoring social worker to read it.
D. The Jurisdiction/Disposition Hearing
Mother did not appear at the September 20, 2019, jurisdiction/disposition hearing (September 20 hearing). Finding that Mother had received proper notice, the juvenile court proceeded with the hearing, sustained the petition as alleged, and declared Mason a dependent of the court. The court ordered Mason removed from parental custody and denied Mother reunification services due to section 361.5, subdivision (b)(10). It ordered monitored visits and scheduled a section 366.26 hearing to select and implement a permanent, out-of-home plan for the child.
As discussed below, section 361.5, subdivisions (b)(10) and (c)(2) provide that a parent is presumptively ineligible for reunification services if he or she has had reunification services terminated for any sibling of the relevant child and has not subsequently made a reasonable effort to treat the problems that led to the sibling's removal. (§ 361.5, subds. (b)(10) & (c)(2).)
E. Mother's Conduct Following the Hearing
In October 2019, Mother was late and therefore missed a weekly visit with the children, and on November 15, she missed a scheduled phone call with K.D. and A.M.. On November 19, Mother attended a scheduled visit with the children. On that occasion, a DCFS dependency investigator attempted to personally serve her with written notice of the section 366.26 hearing. However, Mother refused to accept the documents and stated she did not have an open dependency case. During the visit, Mother told 10-year old K.D. that the dependency case was “‘made up'” and that the paperwork given to Mother was all “fake.” After a social worker intervened in the conversation, Mother became belligerent and attempted to leave with the children. At an ensuing standoff with social workers and security, Mother held Mason and refused to release him to DCFS. Mother continued to insist that she had no open case, that the paperwork she had been given was “fake, ” and that DCFS was holding her children illegally. Mother ultimately agreed to give Mason to K.D.. Unbeknownst to the DCFS, Mother gave K.D. a cellphone during this visit.
During a subsequent visit that same month, Mother again denied having an open dependency case and attempted to leave with the children. When confronted by social workers and security, she held K.D. “in a chokehold manner, ” refused to release her, and claimed that DCFS was kidnapping her children.
F. Mother's Section 388 Petition
In January 2020, Mother, now represented by counsel, filed a petition under section 388, alleging she had not been properly notified of the jurisdiction/disposition hearing. She noted she did not reside with the maternal grandfather and asserted that DCFS was required to personally serve her with notice when she had arrived to visit the children at the DCFS office. She asked the juvenile court to vacate the findings and orders it had made and conduct a new jurisdiction/disposition hearing.
“Section 388 allows a parent or other person with an interest in a dependent child to petition the juvenile court to change, modify, or set aside any previous order. (§ 388, subd. (a).) ‘Section 388 provides the “escape mechanism” that... must be built into the process to allow the court to consider new information.' [Citations.] The petitioner has the burden of showing by a preponderance of the evidence (1) that there is new evidence or a change of circumstances and (2) that the proposed modification would be in the best interests of the child.” (In re Mickel O. (2011) 197 Cal.App.4th 586, 615, italics removed.) Under Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 481, a parent claiming improper notice of a juvenile dependency petition can challenge the resulting dependency judgment by filing a section 388 petition.
Following a hearing, the juvenile court denied Mother's petition. The court did not decide whether Mother had received proper notice but concluded that vacating its prior findings and orders would not be in Mason's best interest. Mother timely appealed.
The juvenile court scheduled the section 366.26 hearing for May 2020. The record does not disclose the outcome of that hearing.
DISCUSSION
Mother challenges the juvenile court's denial of her section 388 petition. We review the court's ruling on the petition for abuse of discretion (In re E.S. (2011) 196 Cal.App.4th 1329, 1335), but consider the underlying determination whether Mother received adequate notice de novo (In re J.H. (2007) 158 Cal.App.4th 174, 183).
“After a petition is filed seeking to have a child declared a dependent of the court, the juvenile court must set a jurisdictional hearing within a specified period. [Citations.] Once the jurisdictional hearing has been set, notice must be given to the appropriate parties (§ 291, subd. (a)) and must include, among other things, the date, time and place of the proceeding and a statement of the ‘nature of the hearing.' (§ 291, subd. (d)(1)-(5).)” (In re Wilford J. (2005) 131 Cal.App.4th 742, 749.) If the child is detained and the person to be noticed was not present at the detention hearing, notice of the jurisdiction/disposition hearing must be served on the person by personal service or by certified mail, return receipt requested. (§ 291, subd. (e)(1).) The notice must include a copy of the petition. (Id., subd. (d)(7).)
In addition to this statutory right, a parent has a due process right to notice of the jurisdiction/disposition hearing. “Since the interest of a parent in the companionship, care, custody, and management of his [or her] children is a compelling one, ranked among the most basic of civil rights [citations], the state, before depriving a parent of this interest, must afford him [or her] adequate notice and an opportunity to be heard.” (In re B.G. (1974) 11 Cal.3d 679, 688.)
To satisfy due process, the notice must be “‘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 Claudia S. (2005) 131 Cal.App.4th 236, 247.) Thus, “[s]ocial service agencies, invested with a public trust and acting as temporary custodians of dependent minors, are bound by law to make every reasonable effort in attempting to inform parents of all hearings.” (In re DeJohn B. (2000) 84 Cal.App.4th 100, 102.) When a hearing is continued, due process entitles a parent to receive notice of the continued hearing, even if he or she had received proper notice of the original hearing. (See In re Angela C. (2002) 99 Cal.App.4th 389, 392-396 [discussing failure to give notice of continued section 366.26 hearing].) As a general matter, a due process violation based on improper notice requires reversal unless it was harmless beyond a reasonable doubt. (E.g., In re J.H., supra, 158 Cal.App.4th at 183; In re Daniel S. (2004) 115 Cal.App.4th 903, 912; In re Angela C., supra, at 393-394.)
DCFS cites In re Celine R. (2003) 31 Cal.4th 45 in support of its contention that a constitutional notice violation is subject to the state prejudice standard, under which reversal is required only if it is reasonably probable that the parent would have received a more favorable outcome but for the error. That case is inapposite, as it involved the right of minors to counsel in dependency cases, a “solely statutory” right. (Id. at 59.)
Mother argues DCFS failed to provide her proper notice of either the September 16, 2019, hearing or the September 20 hearing, noting, inter alia, that she did not reside at the maternal grandfather's address, and that the notices sent there did not include the required copies of the petition. She further notes that notice of the September 20 hearing was not sent by certified mail.
Assuming arguendo that DCFS provided Mother inadequate notice of the September 20 hearing, and further assuming this failure violated due process, we conclude the error was harmless beyond a reasonable doubt. The record shows that Mother would not have attended the hearing regardless of any additional notice. From the filing of the dependency petition until she filed her section 388 motion, months after the September 20 hearing, Mother was unwilling to acknowledge the existence of the proceedings. She continually insisted that she had no open dependency case and that relevant paperwork DCFS had presented to her was “fake, ” despite having informed social workers in Nevada she had an open dependency case in California. She was notified by phone of the September 16, 2019, hearing, but failed to attend. And she refused to accept personal service of notice of the section 366.26 hearing, the same process she complains DCFS failed to use for the jurisdiction/disposition hearing. Given Mother's unrelenting refusal to recognize the existence of the proceeding, it is clear she would not have attended the September 20 hearing even had DCFS attempted to serve her with notice in person. Indeed, Mother does not expressly contend that she would have attended the hearing had she been given additional notice.
Mother argues the lack of notice “implicated her right to counsel, ” noting that she had a statutory right to counsel under section 317, subdivision (b). She claims she might not have understood the nature of the proceedings and thus required counsel to assist her. However, Mother fails to explain how any lack of notice implicated her right to counsel. “Generally, ... counsel is only to be appointed for an indigent parent when that parent ‘appears and requests such appointment or otherwise communicates to the court such a desire.'” (In re Andrew M. (2020) 46 Cal.App.5th 859, 864-865, italics removed.) As discussed, Mother insisted there was no pending proceeding, consistently rejected court documents as “fake, ” failed to attend the September 16, 2019, hearing, of which she been had informed, and later refused to accept personal service of notice for a subsequent hearing. There is thus no basis to conclude that attempting to provide Mother additional notice of the September 20 hearing might have led her to request the appointment of counsel. The very cases Mother cites to show prejudice from the claimed notice error highlight her failure to establish a deprivation of counsel. (See In re A.J. (2019) 44 Cal.App.5th 652, 669 [defective notice deprived father of right to appear and right to counsel where “father unambiguously requested to be present at the jurisdiction and disposition hearing, a request that can reasonably be interpreted as including a request for appointment of counsel”]; In re J.P. (2017) 15 Cal.App.5th 789, 794 [juvenile court erroneously denied parent's request to reappoint counsel].)
Mother does not assert a constitutional right to counsel at the proceedings below.
Moreover, even assuming that with additional notice, Mother would have attended the September 20 hearing and requested counsel, the record negates any suggestion that the result of the hearing would have been different. We disagree with Mother's contention that “absent the notice error and the related denial of legal representation, it is likely that [she] would have been granted reunification services....” “Section 361.5, subdivision (b) contains several reunification ‘bypass provisions' permitting (or, in some cases, requiring) a court to deny a parent reunification services.” (In re Christopher L. (2020) 56 Cal.App.5th 1172, 1189.) Subdivision (b)(10) concerns a finding by clear and convincing evidence that the parent has had reunification services terminated for any sibling of the child and “has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling....” (§ 361.5, subd. (b)(10).) If this subdivision applies, the juvenile court “shall not” order reunification services unless it finds by clear and convincing evidence that reunification is in the best interest of the child. (Id., subd. (c)(2).)
Mother does not contend that absent the claimed notice error, the juvenile court might not have sustained the petition or might not have declared Mason -- who had tested positive for amphetamine and methamphetamine shortly after his birth -- a dependent of the court.
Mason's siblings, K.D. and A.M., were removed from Mother's custody due to her neglect of the two, which resulted in physical injuries to A.M. and failure to ensure K.D.'s participation in mental health services. In May 2019, the juvenile court terminated Mother's reunification services for the siblings, after she absconded with Mason. Mother and Mason were found squatting in a vacant home in Nevada in in early June. Obviously, Mother did not visit the siblings while on the lam. After returning to California, she missed a visit with the children and acted inappropriately during visits she did attend, yelling at social workers in the children's presence and refusing to allow a social worker to read a note she had written to K.D. Given Mother's failure to comply with court orders, to maintain regular visitation with the siblings, and to consider her children's emotional well-being, the juvenile court could not have found that Mother had made reasonable efforts to address the problems that led to the siblings' removal. Nor could counsel have shown it was in Mason's best interest to reunify with Mother. (See In re Christopher L., supra, 56 Cal.App.5th at 1189 [error in conducting jurisdiction/disposition hearing without father or his counsel was harmless beyond reasonable doubt; father failed to reunify with child's siblings based on substance abuse issues and later “continued his drug-related criminality”; thus any evidence of efforts to address these issues could not have supported finding of “‘reasonable effort to[] address, [']” and “even the most competent counsel” could not have shown reunification was in child's best interest].)
Mother's conduct after the September 20 hearing confirms this conclusion. (See In re A.J., supra, 44 Cal.App.5th at 673 [considering post-hearing occurrences in assessing prejudice].) In October and November, Mother missed a visit and a phone call with the children. During one visit she did attend in November, Mother became belligerent toward DCFS staff, attempted to leave with the children, and refused to release them to DCFS during a standoff with staff and security. Mother also secretly provided K.D. with a cellphone during this visit. In a subsequent visit that month, Mother again tried to leave with the children, and when confronted by staff and security, she held K.D. “in a chokehold manner” and refused to release her. Though she implies she might have contested evidence presented by DCFS at the September 20 hearing, on appeal, she contests none of the facts discussed above. Mother's erratic and dangerous conduct established beyond a reasonable doubt that the court would not have ordered family reunification services, even if she had attended the September 20 hearing and had the assistance of counsel.
Mother notes that she was able to reunify with K.D. in the prior dependency proceeding in 2013, “indicating that [she] was capable of complying with court orders and safely parenting her children.” But while Mother's prior reunification with K.D. suggests that she was able to comply with court orders and adequately parent her children in 2013, the evidence recounted above negates any inference that she was able to do so at the time of the September 20, 2019, hearing.
Mother cites In re A.J., supra, 44 Cal.App.5th 652 and In re J.P., supra, 15 Cal.App.5th 789 to support that her appearance with counsel at the September 20 hearing could have led to a different result. Those cases are distinguishable, as neither involved the kind of recent egregious conduct or hostility to the process that Mother displayed, and neither involved a statutory presumption against the parent's position similar to section 361.5's presumption here. (See In re A.J., supra, at 656, 658, 673 674 [inadequate notice was not harmless because it prevented incarcerated father from appearing at jurisdiction/disposition hearing and potentially obtaining reunification services; father was nonoffending parent, had indicated desire to appear at hearing, completed parenting program for prisoner parents following hearing, and maintained regular visits with children for more than two years after his release]; In re J.P., supra, at 800-801 [juvenile court's refusal to appoint counsel for mother who requested unmonitored visits was not harmless; DCFS reports, child's counsel, child's court-appointed special advocate, and child's group home staff all supported mother, and evidence “strongly favored” mother's request (id. at 800)].)
DISPOSITION
The juvenile court's denial of Mother's section 388 petition is affirmed.
We concur: WILLHITE, J., CURREY, J.