Opinion
F074173
03-16-2017
In re SHANE A., a Person Coming Under the Juvenile Court Law. KERN COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. C.C., Defendant and Appellant.
Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant and Appellant. Mark Nations, Interim County Counsel, and Bryan C. Walters, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JD135515)
OPINION
APPEAL from an order of the Superior Court of Kern County. Peter A. Warmerdam, Juvenile Court Referee. Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant and Appellant. Mark Nations, Interim County Counsel, and Bryan C. Walters, Deputy County Counsel, for Plaintiff and Respondent.
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C.C. (mother) appeals from a Welfare and Institutions Code section 366.26 order terminating her parental rights to her then nine-month-old son Shane A.. Mother argues the order must be reversed because she was not given notice that the Kern County Department of Social Services (Department) had changed its recommendation for Shane's permanent plan from legal guardianship to adoption. We affirm.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
The family came to the Department's attention in October 2015, when mother and Shane tested positive for methamphetamine at Shane's birth. Shane, who was born seven weeks premature, was transferred from a Bakersfield hospital to Children's Hospital Los Angeles (CHLA) due to respiratory complications. Shane was diagnosed with congenital syphilis, pulmonary hypertension, respiratory problems, a hernia, and patent ductus arteriosus (PDA), a heart problem that results from abnormal blood flow between two of the major arteries to the heart.
Mother, who was 27 years old and admitted to having used methamphetamine on and off since she was 13, agreed to participate in a voluntary family maintenance (VFM) program, which included participating in substance abuse counseling or treatment and voluntary drug testing. Mother had an older child who was adopted by her mother, Beverly, and Beverly's husband, Robert C.. Mother was living with her boyfriend Nathan A.'s mother, Debra A.. Nathan, who mother said was Shane's father, was in prison.
The juvenile court found that Nathan was an alleged father, and he was denied reunification services on that basis. Nathan is not a party to this appeal.
Mother, however, did not comply with VFM services. On November 27, 2015, the Department placed a protective hold on Shane, who was released from the hospital that day. The Department filed a dependency petition alleging Shane came within the provisions of section 300, subdivision (b), due to mother's history of substance abuse, the lack of electricity at mother's home, and mother's failure to obtain adequate provisions for Shane. Mother was present at the detention hearing, where Shane was detained from mother and placed in foster care. Mother was given one hour supervised visits three times per week. Debra and Beverly both applied for placement of Shane.
On January 8, 2016, the social worker spoke with mother about family reunification services. Mother wanted Debra to obtain guardianship of Shane, but she did not want to waive family reunification services. The social worker told mother guardianship was not an option at that time, since the court was involved, and if she did not complete or progress in any of her case plan components, Shane could be placed for adoption.
All subsequent references to dates are to dates in 2016.
Mother was not present at the January 15 combined jurisdiction/disposition hearing. Mother's attorney, who had been in contact with mother, submitted on the reports after the juvenile court granted the Department's request to dismiss the allegations regarding the state of mother's home and her failure to obtain provisions for Shane. The juvenile court found true the remaining allegations regarding mother's substance abuse. The matter proceeded to disposition. The juvenile court adjudged Shane a dependent, removed him from mother's custody, and ordered reunification services for mother, which included substance abuse counseling, parenting and neglect counseling, and random drug testing. Mother was given supervised visitation three times per week for one hour.
On February 5, mother's attorney filed a section 388 petition regarding the juvenile court's order for reunification services. The petition stated that mother did not wish to receive reunification services. Mother wanted the juvenile court to set aside the dispositional findings and allow Shane to be placed in a plan of guardianship with Beverly pursuant to section 360 or set a hearing under section 366.26 to pursue a plan of guardianship with Beverly. Mother asserted this would be better for Shane since Beverly had guardianship of Shane's older sibling and was prepared to commit to guardianship of Shane. Moreover, mother was not interested in receiving reunification services and it would benefit Shane to have a permanent plan as soon as possible, rather than wait six months for services to be terminated. The juvenile court set a hearing on the petition for March 4.
Both the C.'s and Debra were approved for placement of Shane. At a February 17 team decision meeting, the Department determined the most suitable placement for Shane was with the C.'s, who were in the process of adopting Shane's half-sibling. Shane was placed with the C.'s that day. A social worker spoke with mother on February 19 regarding waiving reunification services. Mother told the social worker she wanted reunification services and had never said she wanted to waive them. Based on this, the Department recommended the section 388 petition be denied.
Mother was present at the March 4 hearing with her attorney. Mother's attorney asked for a continuance because, while the social worker said mother did not want to waive services, the attorney had numerous conversations with mother about the issue and mother wanted to waive services, go back to disposition, and hopefully do a "360 guardianship." Mother's attorney asserted the issue was who the guardianship would be with, and asked the juvenile court to take mother's waiver and ultimately go to a "360 guardianship." The Department joined in the request for a continuance. The juvenile court granted the continuance and set the continued hearing for April 4.
In a report prepared for the continued hearing, the social worker stated the Department was of the opinion that Shane should remain with Beverly and his older half-sibling, as it was determined at a team decision meeting that placement with Beverly was the most suitable placement. The Department recommended the juvenile court deny mother's request to have Shane placed in a plan of guardianship with Debra pursuant to section 360, but grant mother's request to waive family reunification services and set a section 366.26 hearing.
Mother and her attorney were present at the April 4 hearing. Mother's attorney told the juvenile court that mother wanted to waive services regardless of who Shane was placed with, and asked the court to either grant the petition, set aside the dispositional findings, set a new disposition hearing, and take mother's waiver, or grant the petition and set a section 366.26 hearing. Mother's attorney said that mother was not able to complete a reunification plan, as she was in the process of moving to another state to get into a program, and did not want reunification services.
County counsel responded that the Department did not object to mother waiving services and the setting of a section 366.26 hearing. County counsel asked the juvenile court to deny the petition's request for a "360 guardianship," but grant the request to set a section 366.26 hearing. Mother's attorney stated that was "fine," as the petition asked for either remedy, and again asked the juvenile court to set aside the dispositional findings because mother did not want a finding she failed reunification services. County counsel agreed that if mother waived services there would not be a finding that services were terminated and it would not be held against her in the future.
The juvenile court then reviewed the "Waiver of Reunification Services" form that mother initialed and signed. Among the items that mother placed her initials next to were the following statements: (1) "I understand that if no services are ordered, the court may . . . set the matter for a hearing to decide on the best permanent plan for the child"; (2) "I understand that if I sign this form and the court is satisfied that I understand my rights and the consequences of giving them up, at the hearing to select a permanent plan for the child, the court may terminate parental rights and have the child placed for adoption"; and (3) " I have discussed my rights with my attorney, and I knowingly and intelligently waive these services."
The juvenile court confirmed with mother that she had reviewed the form with her attorney; her initials and signature were on the form and she was familiar with its contents; she understood the consequences if the court accepted the waiver; she did not need more time to think about it or talk to her attorney; no one had induced or threatened her to sign the form; and she understood what was going to happen now. The juvenile court found mother knowingly, intelligently, freely, and voluntarily waived reunification services, and she understood the consequences of that. The juvenile court stated that all prior orders would remain except for mother's reunification services, and set a section 366.26 hearing for August 2. The juvenile court advised mother of the notice of the permanency planning hearing and that its purpose "is to select and implement a permanent plan of adoption, legal guardianship or long-term foster care for your child." In making these orders, the juvenile court granted the petition with respect to the waiver of reunification services, but denied the request for a new disposition hearing.
The Department served a "Notice of Hearing on Selection of a Permanent Plan" on mother and Nathan on April 8. The notice advised them of the date of the permanency planning hearing; that at the hearing the juvenile court would consider the social worker's recommendation and make an order concerning Shane; and that the social worker recommended establishment of a legal guardianship.
The Department served a different "Notice of Hearing on Selection of a Permanent Plan" on the C.'s on May 17, which advised that a hearing would be held on July 15 at which the juvenile court would consider the social worker's recommendation, which was termination of parental rights and implementation of a plan of adoption. The Department served a second notice of the section 366.26 hearing on the C.'s on May 24, with the correct hearing date of August 2, but with the same recommendation of adoption.
Nathan was personally served with a second "Notice of Hearing on Selection of a Permanent Plan" on July 14, which advised of the August 2 hearing date and that the social worker's recommendation was termination of parental rights and implementation of a permanent plan of adoption. Nathan signed a form waiving his right to receive 45 days' notice of the hearing.
In a report prepared for the section 366.26 hearing, the Department recommended termination of parental rights and that Shane be freed for adoption. The report stated that notice of the hearing was served on mother on April 8, on the C.'s on May 24, and on Nathan on July 14, and a copy of the report would be mailed to mother and Nathan on the date the report was signed, which was July 19.
Many of Shane's conditions had improved. His PDA had closed and his hypertension had resolved; the findings from an abdomen and umbilical region ultrasound were normal; and labs completed in relation to his congenital syphilis showed he was infection free. He was scheduled for plastic surgery the following month to correct his syndactyly on his hands and feet, which is a condition where fingers or toes are wholly or partly united. Shane, however, was experiencing involuntary movements and possible seizure activity, for which he saw a neurologist; an electroencephalogram was scheduled to detect abnormalities related to electrical activity of the brain. An ophthalmologist determined Shane had delayed vision and recommended he participate in vision therapy. He also was being referred to a gastroenterologist due to his persistent vomiting. Shane was found to be eligible for early start services, as he had global delays secondary to prematurity.
Mother had visited Shane 18 of the 87 visits available to her since Shane's detention. The visits mother did attend were of good quality and no problems were noted. The social worker stated that, despite mother's appropriateness during visits, mother had never provided daily care for eight-month-old Shane. Accordingly, Shane looked to the C.'s as the primary parental figures in his life. The adoption social worker recommended termination of parental rights, as the benefits of permanency outweighed the detriment to Shane if parental rights were terminated. The Department further opined that, considering Shane's age and his lack of relationship with mother and Nathan, the best permanent plan was adoption. Shane, who was specifically adoptable given his medical issues, was with the C.'s, who were committed to adoption since they had adopted Shane's half-sibling and wanted to keep Shane and his half-sibling together.
The social worker noted that a significant relationship had developed between Shane and the C.'s, who were consistently meeting his needs. The C.'s told the adoption social worker they wanted the opportunity to provide Shane with a safe and stable home, and that Shane was part of their family and they loved him unconditionally. It was evident to the social worker that Shane had integrated well into the C.'s lives. The C.'s were provided information concerning adoption and legal guardianship on May 13 and wanted to formalize their commitment to Shane through the permanency of adoption.
At the August 2 section 366.26 hearing, at which mother and her attorney were both present, mother's attorney told the juvenile court that mother was "pretty surprised that it's a recommendation for adoption since she voluntarily waived services so that her mother could do guardianship." The attorney added that mother waived services because Beverly had said "she'd do guardianship." Mother was "pretty frustrated with the recommendation[,]" but the attorney acknowledged they were at the 366.26 hearing and she was not sure what the court wanted to do about that. The juvenile court responded that it had to go forward, as mother had made a knowing, intelligent and voluntary waiver, and while Beverly may have indicated she intended a legal guardianship, that was not a binding statement of intent and "the court does advise about the possibility of adoption." Mother's attorney recognized that and stated there was not really anything else they could present at that point. The juvenile court found proper notice had been provided, terminated parental rights, and ordered a plan of adoption.
DISCUSSION
Mother contends the juvenile court erred in terminating her parental rights because she was not notified that the social worker had changed the recommendation from guardianship to adoption, which is both a statutory and due process violation. She asserts the juvenile court should have inquired further as to whether she was properly noticed and continued the hearing so she could explore her legal options. She argues the error was not harmless because the lack of notice of the change was itself prejudicial and denied her the opportunity to file a section 388 petition to either reinstate reunification services or regain custody of Shane, or to seek any other applicable relief. The Department concedes it failed to give notice to mother of the change in recommendation as required by section 294, but argues the error was harmless beyond a reasonable doubt. We agree with the Department.
Parents have a due process right to reasonable notice of hearings at which their parental rights may be affected. (In re Anna M. (1997) 54 Cal.App.4th 463, 468 (Anna M.).) "[D]ue 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." (In re Angela C. (2002) 99 Cal.App.4th 389, 393 (Angela C.).) In addition, California mandates the means by which notice must be effected for a section 366.26 hearing. Section 294, subdivision (e), requires the notice of the section 366.26 hearing to include, among other things, the nature of the proceedings, the recommendation of the supervising agency, and a statement that the court is required at the hearing to select a permanent plan of adoption, legal guardianship, or long-term foster care. (§ 294, subds. (a), (e).)
In the present case, while mother was given notice of the social worker's initial recommendation of guardianship, she was not provided notice that the social worker had changed the recommendation to termination of parental rights and adoption. Whether the failure to apprise mother of the change in recommendation was a statutory or due process violation, the error is subject to analysis under the harmless beyond a reasonable doubt standard of prejudice. (In re J.H. (2007) 158 Cal.App.4th 174, 183 (J.H.); see Angela C., supra, 99 Cal.App.4th at p. 391 [failure to give notice of continued section 366.26 hearing is a trial error subject to review under the harmless beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S. 18 (Chapman)].) Prejudice is not presumed even if error is shown, and it is mother's burden to show both error and injury from that error. (Marina County Water Dist. v. State Water Resources Control Bd. (1984) 163 Cal.App.3d 132, 139.)
Relying on In re Jasmine G. (2005) 127 Cal.App.4th 1109, 1116 (Jasmine G.), mother contends the error was structural error requiring automatic reversal. Jasmine G., however, is distinguishable; in that case the mother's location was unknown and there was no effort made to locate her and provide her notice of the section 366.26 hearing. (Jasmine G., at pp. 1113-1114, 1116; see J.H., supra, 158 Cal.App.4th at p. 183 [stating that Jasmine G. applies where "there is no attempt to serve notice on a parent"].) In any event, the California Supreme Court subsequently rejected the proposition that the type of error in the present case constitutes structural error. (In re James F. (2008) 42 Cal.4th 901, 918 [in dependency context, stating "[i]f the outcome of a proceeding has not been affected, denial of a right to notice and a hearing may be deemed harmless and reversal is not required"]; see In re A.D. (2011) 196 Cal.App.4th 1319, 1326-1327 [declining to follow Jasmine G. in light of James F.].) --------
Having reviewed the record under the Chapman standard, we find the failure to notify mother of the social worker's change in recommendation was harmless beyond a reasonable doubt. Mother asserts she was denied the opportunity to explore her legal options, but as the Department points out, mother had only three legal options available to her to prevent the termination of her parental rights: (1) contest Shane's likelihood of adoption; (2) argue the beneficial parent-child relationship to termination of parental rights applied; or (3) file a section 388 petition seeking either return of Shane or the provision of reunification services.
Mother does not even attempt to argue the first two options would have succeeded and for good reason - (1) all of the evidence pointed to Shane's likelihood of being adopted (see, e.g., In re Josue G. (2003) 106 Cal.App.4th 725, 733-734); and (2) there was no evidence that Shane would benefit from a continued relationship with mother, as she had not maintained regular visitation and contact, or that he would suffer detriment if parental rights were terminated (§ 366.26, subd. (c)(2)(B)(1)).
Mother does contend that had she had notice of the adoption recommendation she could have filed a section 388 petition seeking either return of Shane or reunification services. Given mother's reluctance to participate in services and her failure to regularly visit Shane, there was no possibility that such a petition would have been granted. Even if mother could show changed circumstances, it would not have been in Shane's best interest to grant such a petition, since he did not have a significant relationship with mother and he was in a stable placement with the C.'s, who wanted to adopt him, had adopted his half-sibling, and were providing him with the support he needed.
Mother argues this case is similar to Anna M., supra, 54 Cal.App.4th 463, in which the appellate court reversed an order terminating parental rights. There, the appellant mother was present when the juvenile court set a section 366.26 hearing after she received 18 months of reunification services; at the time, the social services agency recommended legal guardianship for the dependent children. (Id. at pp. 465-466.) The mother had a strong bond with the children, who were placed with relatives who had agreed to guardianship, and the mother, who was unable to seek immediate return of the children due solely to the lack of adequate income and housing, did not object to the guardianship. (Id. at pp. 468-469.)
In setting the section 366.26 hearing, the juvenile court emphasized at least three times the likelihood of guardianship as the permanent plan, although it did not guarantee that result, and failed to advise the mother that at the next hearing it was required to " 'select and implement a plan of adoption, legal guardianship, or long-term foster care for the minor,' " as required by section 294, subdivision (f)(1). (Anna M., supra, 54 Cal.App.4th at p. 468.) In addition to the insufficiency of the oral notice, there was a "complete lack of written notice" of the hearing. (Id. at p. 469.) Three days before the scheduled hearing, the social services agency changed its recommendation to termination of parental rights and adoption for the children after the relatives decided they could no longer take the children. (Id. at pp. 466-467.) The mother did not appear at the hearing and the juvenile court denied her counsel's request for a continuance. (Ibid.)
The Court of Appeal held the lack of statutorily required notice deprived mother of a fair hearing. (Anna M., supra, 54 Cal.App.4th at p. 465.) Addressing the social service agency's argument that the mother was not prejudiced, the appellate court concluded that even if the mother was required to show prejudice, the juvenile court's disregard of the statutory notice requirements and her counsel's ineffectiveness resulted in prejudice that "virtually leaps from the record." Accordingly, the appellate court remanded the matter "for proceedings comporting with due process." (Id. at pp. 465, 469.)
In contrast here, prejudice does not leap from the record. Mother signed a form in which she acknowledged that by waiving reunification services, the court could terminate parental rights and place Shane for adoption. The juvenile court gave the statutorily required oral notice at the setting hearing that the purpose of the section 366.26 hearing was to select a permanent plan of adoption, legal guardianship or long-term foster care, and did not give an indication or guarantee that any one plan ultimately would be adopted. While the Department failed to serve mother with a new notice that the social worker's recommendation had changed to adoption, the outcome of the proceedings would have been the same even had she received such notice. As we have already explained, mother did not have a significant bond with Shane, who was placed with relatives who had adopted his half-sibling and also wanted to adopt him. Mother could not have shown that it would have been in Shane's best interest to return him to her custody or provide her with reunification services. She also could not have shown that Shane was not adoptable or that she had a beneficial relationship with him that precluded his adoption.
In sum, the failure to notify mother of the change in recommendation was harmless beyond a reasonable doubt. Since mother has failed to show any injury from the error, we affirm the order terminating her parental rights.
DISPOSITION
The order terminating parental rights is affirmed.
/s/_________
GOMES, Acting P.J. WE CONCUR: /s/_________
DETJEN, J. /s/_________
PEÑA, J.