In re Angel v. CA2/4 ( 2020 )

Filed 11/4/20 In re Angel V. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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 FOUR
In re ANGEL V., a Person Coming B302405
Under Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No. CK92098)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
WENDY V.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Jana Seng, Judge. Dismissed.
Janette Freeman Cochran, under appointment by the
Court of Appeal, for Defendant and Appellant.
Office of the County Counsel, Mary C. Wickham,
County Counsel, Kristine Miles, Assistant County Counsel,
and Aileen Wong, Deputy County Counsel, for Plaintiff and
Respondent.
_______________________________________
INTRODUCTION
In an order dated October 2, 2019, the juvenile court
terminated the parental rights of appellant Wendy V.
(Mother) over minor Angel V. (born October 2005), pursuant
to Welfare and Institutions Code section 366.26 (Section
366.26). Mother purports to appeal from this order, but her
sole argument on appeal is that the court erred in issuing an
order nearly two years earlier, on November 7, 2017,
terminating family reunification services and setting the
Section 366.26 hearing. As both parties acknowledge, on
appeal from an order terminating parental rights under
Section 366.26, an appellant may not seek review of the
order setting the Section 366.26 hearing unless she has
previously filed a petition for extraordinary writ challenging
the setting order. (Welf. & Inst. Code, § 366.26, subd.
(l)(1)(A).)1 In May 2020, the Los Angeles County
Department of Children and Family Services (DCFS) filed a
motion to dismiss Mother’s appeal. We deferred ruling on
1 All further statutory references are to the Welfare and
Institutions Code.
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the motion until the appeals were fully briefed. Because we
find no good cause excused Mother’s failure to file the
petition for extraordinary writ, Mother is barred from
challenging the November 7, 2017 order. We therefore grant
DCFS’s motion to dismiss.
STATEMENT OF RELEVANT FACTS
In July 2016, DCFS filed a petition under section 300,
subdivisions (a) and (b)(1), alleging Mother had “a history of
engaging in violent and assaultive behavior” in Angel’s
presence, and had mental and emotional problems. The
court found a prima facie case to detain Angel and released
him to his maternal grandparents (Mother’s mother and
stepfather). In September 2016, the original petition was
amended to add an additional count under section 300,
subdivision (b), alleging Mother’s drug and alcohol use
endangered Angel.
On July 19, 2016, Mother filed a JV-140 form listing
her mailing address as the grandparents’ home in Burbank.
On October 7, 2016, DCFS was informed that the
grandparents had been “turning away” Mother’s mail. A
notice of an October 24, 2016 hearing sent to the Burbank
address was returned to DCFS. The court was informed of
this in two last minute information reports before the
October 24 hearing.
On October 24, 2016, the court found jurisdiction over
Angel under section 300, subdivision (b), removed him from
Mother, and released him to his maternal grandmother. The
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court ordered family reunification services. Mother
challenges neither the jurisdictional nor dispositional orders.
In April 2017, three weeks before the six-month review
hearing, DCFS spoke with Mother, who stated she had been
renting an attic in Highland Park. DCFS sent notice of the
six-month review hearing to an address Mother provided on
North Avenue 65 in Highland Park, and the status review
report for that hearing listed Mother’s address as the one on
North Avenue 65. Mother appeared at the six-month review
hearing.
DCFS also served Mother notice of the 12-month
review hearing (to be held on November 7, 2017) at the
North Avenue 65 address, and the status review report for
that hearing again listed Mother’s address as on North
Avenue 65. Mother did not appear at that hearing, and the
court terminated reunification services and set a Section
366.26 hearing. The next day, the court clerk sent notice to
Mother at the North Avenue 65 address. Among the
material sent was a notice advising Mother that “[t]he case
involving you and your child has been set for a hearing
pursuant to section 366.26 . . . . [¶] You are advised that if
you wish to preserve your right to appeal the order setting
the hearing under section 366.26 WIC, you are required to
seek an extraordinary writ . . . .” The notice also set forth
the deadlines and procedures to do so. On November 23,
2017, the court’s notice was returned, marked “RETURN TO
SENDER [¶] ATTEMPTED - NOT KNOWN [¶] UNABLE
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TO FORWARD.”2 Mother did not file a petition seeking
extraordinary writ.
On October 2, 2019, the court terminated Mother’s
parental rights to Angel. In November 2019, Mother filed a
notice of appeal, specifying the order appealed from as the
“October 2, 2019 Termination of Parental Rights.” On
appeal however, her sole contention of error is that “the
court erred on November 7, 2017 when it terminated
[Mother]’s reunification services and set a section 366.26
hearing” because Mother “did not receive 12 months of
reunification services.”3
In May 2020, DCFS filed a motion to dismiss the
appeal, citing, inter alia, Mother’s failure to challenge the
2 On December 14, 2017, the court mailed a notice to appear
to Mother at the Burbank Address listed on her JV-140 form.
That notice was returned marked “RETURN TO SENDER [¶]
NOT DELIVERABLE AS ADDRESSED [¶] UNABLE TO
FORWARD.”
3 Even had Mother shown good cause excusing her failure to
seek writ review, she would not be entitled to relief. As noted,
her notice of appeal identified only the October 2, 2019 order --
issued nearly two years after the one she now purports to
challenge. Moreover, had she properly identified the November
7, 2017 order, she forfeited her right to challenge the adequacy or
duration of reunification services by failing to raise the argument
below. Finally, even had she shown error, she could not show
prejudice: the record reveals she barely participated in the
services provided, tested positive for drugs multiple times, failed
to appear for testing multiple times, and did not visit her son
when she was out of custody.
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termination of reunification services by extraordinary writ.
In June 2020, we deferred ruling on the motion until the
matter was fully briefed.
DISCUSSION
No party may seek review of an order setting a Section
366.26 hearing unless she previously filed a timely petition
for extraordinary writ challenging that order. (In re Cathina
W. (1998) 68 Cal.App.4th 716, 720 [“An aggrieved party may
seek review of the setting order by appeal from the order
subsequently made at the section 366.26 hearing, but only if
. . . the party filed a timely petition for extraordinary writ
review of the setting order”]; § 366.26, subd. (l)(1) [“An order
by the court that a hearing pursuant to this section be held
is not appealable at any time unless . . . [¶] . . . [a] petition
for extraordinary writ review was filed in a timely
manner”].) Therefore, unless good cause exists to relieve
Mother of this requirement, the order setting the Section
366.26 hearing is unreviewable.
“When the court orders a hearing under [Section
366.26], the court must advise . . . the child’s parent . . . that
if the party wishes to preserve any right to review on appeal
of the order setting the hearing under [Section 366.26], the
party is required to seek an extraordinary writ . . . . [¶] . . .
[¶] . . . If a party is not present when the court orders a
hearing under section 366.26, within 24 hours of the
hearing, the advisement must be made by the clerk of the
court by first-class mail to the last known address of the
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party . . . .” (Cal. Rules of Court, rule 5.590(b)(2); § 366.26,
subd. (l)(3)(A)(ii) [same].) If the court fails to comply with
this rule, “in most cases the parent has good cause to be
relieved of the requirement. Thus, even though the parent
failed to file a writ petition, he or she can still challenge, on
appeal, the order setting a section 366.26 hearing.” (In re
Athena P. (2002) 103 Cal.App.4th 617, 625.)
Mother contends she has demonstrated good cause to
be relieved of the writ requirement because the court was
required to send an advisement of the necessity to file a writ
to the Burbank address listed on her JV-140 form, which it
did not do. But the rule requires notice to be sent to the
party’s “last known address,” not the address listed on the
JV-140 form. (Cal. Rules of Court, rule 5.590(b)(2); § 366.26,
subd. (l)(3)(A)(ii) [same].)
We agree with the reasoning set forth in In re A.H.
(2013) 218 Cal.App.4th 337, on which Mother purports to
rely. There, the mother had filed a JV-140 form designating
an address in San Jose. (In re A.H., supra, 341.) But the
status report for the 18-month review hearing “stated a
Campbell address for mother.” (Ibid.) When the juvenile
court subsequently terminated family reunification services
and set a hearing under Section 366.26 outside the mother’s
presence, notice of the writ requirement was mailed to the
Campbell address. (In re A.H., at 344.) The notice was
returned to the court stamped: “‘Return to Sender [¶]
[mother’s name] [¶] [S. Market Street address] [¶] Return to
Sender.’” (Id. at 345.) On appeal, the mother argued she
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should be excused from her failure to file a petition for
extraordinary writ because she was not properly advised of
the requirement to do so. (Id. at 346-347.) The appellate
court disagreed, finding that although “the clerk mailed a
Notice of Intent to File Writ packet to mother at her
Campbell address (reported in the Jan. 2012 status review
report for the 18-month review) instead of the designated
permanent mailing address [on the JV-140 form] . . . [i]t can
be inferred that the Campbell address was mother’s last
known address.” (Id. at 349.) Although the juvenile court
never mailed the notice to the address designated on the JV-
140 form, the Court of Appeal nevertheless concluded the
mother had not shown good cause to excuse the writ
requirement and declined to consider her contentions
concerning the order terminating family reunification
services and setting a Section 366.26 hearing. (Id. at 349,
351.)
Mother’s other authorities do not assist her. In In re
A.A. (2016) 243 Cal.App.4th 1220, the appellate court found
the juvenile court did not comply with the notice
requirement by sending the notice to an address the court
knew was no longer valid. (Id. at 1243 [notice did not
comply with rule because “juvenile court knew for almost
seven months that neither mother nor the father lived at the
6th Street address, yet the court clerk mailed the
advisement of writ review rights to that address”].) Here,
nothing in the record suggests the court knew the North
Avenue 65 address was no longer good. In In re J.R. (2019)
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42 Cal.App.5th 513, the court held that a juvenile court
complied with the notice requirement by sending the notice
to the address specified on the JV-140 form when it had no
reason to know the mother had a different address. (In re
J.R., supra, at 528.) But In re J.R. did not hold that the only
way for a juvenile court to comply with the notice
requirement was to mail the notice to the address listed on
the JV-140 form.
As in In re A.H., the juvenile court here mailed Mother
the requisite notice at the address set forth in the status
report submitted for the hearing (i.e., the North Avenue 65
address). This was the same address listed for Mother in the
status report submitted for the six-month review hearing,
and the same address to which notice for the six-month
review hearing had been sent; Mother appeared at that
hearing. Further, the court had previously been advised
that the address appearing on Mother’s JV-140 form (the
Burbank address) was no longer valid -- that address
belonged to the maternal grandparents, and they had been
“turning away” mail sent to Mother.4 On these facts, we find
the court complied with the requirement to send notice of the
writ requirement to Mother’s “last known address.” (Cal.
Rules of Court, rule 5.590(b)(2).) Mother has failed to
demonstrate good cause to excuse her failure to file a
4 An October 2016 notice sent to her at the Burbank address
had been returned to sender. A subsequent December 2017
notice was returned as well.
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petition for extraordinary writ, and therefore the November
7, 2017 order is unreviewable on appeal.
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DISPOSITION
DCFS’s motion to dismiss Mother’s appeal is granted.
The appeal is dismissed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
MANELLA, P. J.
We concur:
WILLHITE, J.
CURREY, J.
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