In re S.A. CA3 ( 2021 )

Filed 3/17/21 In re S.A. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Sutter)
----
In re S.A., a Person Coming Under the Juvenile Court C091787
Law.
SUTTER COUNTY HEALTH AND HUMAN (Super. Ct. No.
SERVICES DEPARTMENT, DPSQ190000023)
Plaintiff and Respondent,
v.
J.A. et al.,
Defendants and Appellants.
J.A. (father) and W.M. (mother), parents of the minor, appeal from the juvenile
court’s order terminating parental rights and freeing the minor for adoption. (Welf. &
Inst. Code, §§ 366.26, 395.)1 Without challenging the sufficiency of the evidence to
support the court’s order, the parents assert the court erred in holding the section 366.26
1 Undesignated statutory references are to the Welfare and Institutions Code.
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hearing at all, failed to meet minimum standards for remote appearances, and precluded
the parents from effectively participating. Finding no error, we will affirm the juvenile
court’s order.
BACKGROUND
In light of the parents’ narrow claim, we need not provide a detailed recitation of
the facts or procedural history in the dependency proceedings. Specific facts will be
provided where relevant to the discussion.
Butte County Proceedings
The family came to the attention of the Butte County Department of Employment
and Social Services in February 2018 after reports that the two-year-old minor, S.A., was
suffering emotional abuse and neglect as a result of the parents’ domestic violence. The
minor was dirty and unbathed, and appeared to have speech and developmental delays.
The family home was “filthy” with trash and dirty diapers on the floor, baby bottles with
rotting milk inside, and minimal food. It also became clear that mother might have
untreated mental health issues. Mother told the social worker there was ongoing
domestic violence and that father hit the minor when he was angry and isolated mother
from her family. Father admitted to ongoing domestic violence but claimed it was
mother who was the aggressor. Father was arrested on domestic violence charges.
Thereafter, mother was arrested for being under the influence of methamphetamine.
On February 13, 2018, the Butte County Department of Employment and Social
Services filed a dependency petition on behalf of the minor pursuant to section 300,
subdivisions (b) and (g). The following day, the Butte County juvenile court ordered the
minor detained. Following a contested jurisdiction hearing on May 3, 2018, the court
sustained the allegations in the petition and adjudged the minor a dependent of the
juvenile court.
The six-month review hearing was continued several times. On February 14,
2019, the court found reasonable services were not provided to the parents during their
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period of homelessness following their move to Sutter County. On March 1, 2019, the
court ordered transfer of the case to Sutter County.
Sutter County Proceedings
The Sutter County court conducted a transfer-in hearing and, on March 26, 2019,
accepted transfer of the case from Butte County. The Sutter County Department of
Health and Human Services (Department) prepared a transfer-in report and a new case
plan.
At the continued 18-month review hearing on October 29, 2019, the court
terminated services and set the matter for a section 366.26 hearing for February 20, 2020.
The parents filed petitions for writ relief on December 24, 2019. This court denied
those petitions on February 14, 2020.
The Department’s section 366.26 report and subsequent addendum report both
recommended termination of parental rights with a permanent plan of adoption and no
further visits due to the stress and trauma experienced by the minor after visits with the
parents.
The section 366.26 hearing was continued several times and eventually
commenced on March 24, 2020. Both parents appeared by telephone pursuant to their
request. The Department made an ex parte request to continue the matter that the court
denied, noting the section 366.26 hearing was considered a “critical function” despite
COVID-19 restrictions. The court also denied the parents’ section 388 petitions. As for
the section 366.26 hearing, the court terminated parental rights with a finding that
adoption was the appropriate permanent plan and denied the parents’ requests for a final
visit with the minor.
DISCUSSION
Father contends the court erred in holding the section 366.26 hearing because the
minimum standards for remote court appearances were not met and thus his due process
rights to a fair hearing were violated because he was unable to effectively participate in
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the hearing. Mother contends that a reversal of the court’s order terminating parental
rights as to father requires a reversal as to her as well. As we will explain, father’s claim
lacks merit and we therefore need not address mother’s claim.
As the Department argues, the parents requested to appear by telephone and did
not object to their telephonic appearance at any time during the section 366.26 hearing.
“[A] reviewing court ordinarily will not consider a challenge to a ruling if an objection
could have been but was not made in the trial court.” (In re S.B. (2004) 32 Cal.4th 1287,
1293.) “The purpose of this rule is to encourage parties to bring errors to the attention of
the trial court, so that they may be corrected.” (Ibid.) Had the parents or their respective
counsel objected to commencement of the hearing via telephone, the court could have
immediately addressed their concerns and determined whether any action was necessary.
They did not. Instead, they confirmed it was their request to participate telephonically, as
the court expressly found without objection. Further, when the court denied the
Department’s ex parte request to continue the matter and asked if anyone wished to be
heard, neither the parents nor their counsel objected or commented further. As a result,
they forfeited their ability to raise the claim on appeal.
In any event, even if the claim was not forfeited, we are not persuaded that the
juvenile court erred. “ ‘[S]tate intervention to terminate the relationship between [a
parent] and [the] child must be accomplished by procedures meeting the requisites of the
Due Process Clause.’ [Citations.]” (Santosky v. Kramer (1982) 455 U.S. 745, 753
[71 L.Ed.2d 599, 606], quoting Lassiter v. Department of Social Services (1981) 452 U.S.
18, 24-32, 37 [68 L.Ed.2d 640, 647-652, 656]; see In re Z.K. (2011) 201 Cal.App.4th 51,
64-65 [“Santosky establishes minimal due process requirements in the context of state
dependency proceedings”].) Father contends there were difficulties in communication
throughout the proceeding and those difficulties were so significant they prevented both
parents from hearing the entire proceeding or “fairly litigat[ing]” the beneficial
relationship exception to adoption. The record belies father’s claim.
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At the start of the section 366.26 hearing, counsel for the parents, the minor, and
the Department made their appearances in the courtroom and the parents made theirs
from their telephones at home. The court confirmed that the parents were in the same
room but on different phones with their respective attorneys. The court noted both
parents were coming through the phone of father’s attorney but not through that of
mother’s attorney. Father placed the court on speaker so both he and mother could hear.
At that point, both parents confirmed they could hear the court and both confirmed they
understood that the court would hear the parents through father’s attorney’s phone, that a
court reporter was taking down testimony, and that both parents would have an
opportunity to speak at some point during the hearing. They also confirmed that they
were not feeling well and that they wished to appear by telephone.
The court denied the Department’s request for a continuance and asked if anyone
wished to be heard. Parents’ counsel declined or submitted. The court disposed of the
parents’ section 388 petitions and then asked counsel to state their respective clients’
positions regarding the Department’s recommendation to terminate parental rights.
Counsel for the Department began but was interrupted by the court who sought to
confirm that the parents could hear counsel speaking. Father said, “No.” The court
directed counsel to speak into the microphone. Counsel requested that the court follow
the recommendation to terminate parental rights, stated there was clear and convincing
evidence that the minor was adoptable, and argued none of the exceptions to adoption
applied. When the court asked father if he could hear counsel speaking, father
responded, “Not really but I disagree with him.” The court replied, “So you did hear
enough to know that he is asking the Court to follow the recommendation and he does not
-- well, actually, [counsel], I’m going to have the phone handed to you and I want you to
speak into the phone.” Counsel for the Department restated the Department’s position
almost verbatim. Father confirmed he heard counsel but stated he could no longer hear
the court. When the court asked mother whether she heard counsel’s comments, mother
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responded, “I understand. The father is indicating or letting me know what’s happened.”
The court asked why father needed to communicate to mother if they were both on
speakerphone. Mother told the court, “I’m hard of hearing” and “I hear things
underwater. So I can hear. I hear everything underwater.” When the court noted it was
trying to make sure mother heard and asked whether she would have the same hearing
issues if she were present in court, mother replied, “Yes.”
Next, the court handed the phone to mother’s attorney for his comments and stated
that if counsel or mother wished to present any evidence, “we’re going to do that. We’re
kind of passing the phone around because I want to make sure that you hear everybody.”
Mother responded, “Yes.” Mother’s counsel argued against termination of parental
rights, objected to the adoption assessment, and argued there was a beneficial parental
relationship between mother and the minor and a sibling relationship, and that
termination of parental rights and termination of the sibling relationship would be
detrimental to the minor. The court then passed the phone to father’s counsel who made
a similar argument and further disagreed with the Department’s assessment that the
parents had not made sufficient progress in services. At that point, the court confirmed
that father could hear and that mother understood.
The court turned next to the proper standard of proof regarding the likelihood of
adoption and noted it was the parents’ burden to prove the applicability of an exception,
confirming that all parties were in agreement. The court then passed the phone to counsel
for the Department who argued the parents had not met their burden as to the
applicability of any exception to adoption and that there was sufficient evidence to
support the adoptability report. Counsel for the parents submitted on the issue but argued
the parents had a right to make a statement.
The court informed father it was “your time to make a statement” and instructed
him to speak slowly for the benefit of the court reporter. Father began to explain what he
had done prior to and since transfer of the case from Butte County, his participation in
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visitation and court hearings, and why he felt termination of parental rights would be
detrimental to the minor. The court reporter interrupted and asked for clarification, and
the court asked father to repeat the last portion of his statement. Father explained he had
a bond with the minor, and that the minor told him she wanted to come home. Father was
in the middle of answering a question posed by the court when the reporter interrupted a
second time requesting clarification, resulting in the following colloquy:
[THE COURT: You’re kind of cutting out. Are you holding the phone in the
same way, because sometimes we get you very clearly, other times you cut out.
“[FATHER]: Yeah, I get the same thing.
“THE COURT: Do you have a hard phone that we can call you on or do you only
have a cell phone?
“[FATHER]: Only the cell phone. Sorry.
“THE COURT: Okay. Let’s try it again. If need be, we might want to try calling
[mother’s] phone but go ahead.”
Father continued to explain his efforts in services. The reporter interrupted twice
for clarification and the court asked father to clarify or repeat himself. Father did so,
completed his statement, and informed the court that mother wished to speak.
Mother said “hello” and the court instructed her to begin but then stated, “Hold on
for one second. Will you guys give me your phone number, please. [¶] . . . [¶ I’m going
to hang up right now and call you back on a different phone.” The court called the
parents back and mother answered. The court noted it was calling from the court phone
and could “hear you very clearly now.” Mother proceeded to discuss her participation in
counseling and talk about the evidence she provided to her attorney in addition to that
which was attached to the section 388 petition. The court explained that it read and
considered the petition and the attachments and denied the petition for lack of a prima
facie showing of changed circumstances or that the requested change was in the minor’s
best interest. When asked if she had any other comments, mother stated she was not told
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what to file with the petition and she was unable to submit everything she wanted to
submit. The court invited mother to present any information she wished to present and
stated the court would consider it. Mother stated she did not want her parental rights
terminated and felt it would be harmful to the minor not to reunite with her parents.
Next, the court noted the “connection is so much better” and offered father another
opportunity to speak and “say everything that you wanted to say.” Father reiterated his
previous statements about his participation in services. When the Department and
minor’s counsel objected for lack of relevance, the court noted the objection but allowed
father to proceed, explaining to father as follows: “What you’re saying isn’t relevant to
this proceeding because the Court is making a determination of whether or not the child
is likely to be adopted; and then if there is an exception to the adoption rule, you would
present evidence. But what I’ve indicated to them I’ve overruled the objection. Go
ahead and make your comments.” Father proceeded to discuss his efforts to participate in
the case plans in Butte and Sutter Counties and complained that the Department never
told him exactly what he was required to do.
When father finished, the court asked the parents if they could both hear the court.
Mother responded affirmatively. The court then asked if the parents could hear the
attorneys. When father responded, “I’m not sure if I can hear them,” the court stated, “So
we’re going to start and we’re going to start by going down the room. I want to hear
comments at this point. The Court has taken the information in.” The court began with
counsel for the Department. Before moving on to minor’s counsel, both parents
confirmed they could hear the attorneys speaking. Minor’s counsel requested the court
follow the recommendation to terminate parental rights and argued the parents did not
meet their burden to show that an exception to adoption applied. Counsel for each parent
submitted on their earlier arguments and noted their client’s objections to termination of
parental rights.
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In making its findings and orders, the court found it issued the order authorizing
the parents to appear via telephone at the request of the parents, noting “that was
accommodated and actually that second phone call we can hear crystal clear at this
point.” The court found the minor was likely to be adopted and terminated parental
rights.
Contrary to father’s characterization of events, the record makes plain that, at
every turn, the court undertook significant efforts to determine if the parents could hear
and, if not, to resolve the problem and ensure their full participation in the hearing.
When the reporter interrupted and asked for clarification, an occurrence not at all
uncommon during any given hearing on any given day, the court stopped and asked that
whoever was speaking repeat their previous statements. When the phone connection
became choppy or cut out, the court generated a new call on a different telephone with a
clearer connection. Father was able to give a full statement, yet the court offered him a
second opportunity to speak again on a clearer connection, which father accepted. The
court also considered statements from father that were otherwise irrelevant to the issues
at hand in order to allow father (and mother) to be fully heard. At every opportunity, the
court checked in with the parents to confirm that they could hear or, in mother’s case, that
she understood what was happening through father. Mother confirmed her auditory
issues caused no greater problems over the telephone than if she had been present in the
courtroom.
Further, counsel for each of the parents argued the beneficial parental relationship
exception applied. In that vein, father’s statement included his claim that he had a bond
with the minor and both parents stated the minor would suffer detriment if parental rights
were terminated.
Father asserts the court should have continued the matter to another time to allow
for technological developments to better accommodate telephonic appearances. He
speculates, without any evidence, that the court simply wanted to “clear its crowded
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calendar and expedite” the section 366.26 hearing. But father neither requested a
continuance nor did he object when the court denied the Department’s request for a
continuance. As for why the court denied the request for continuance, the court stated it
was under a shelter-in-place order issued by the Governor and was “doing must-hear
matters in court.” The court added, “We are here for the [section 366].26 hearing.
Pursuant to judicial order issued by myself on March 20th of 2020 we are at critical
functions for the Court. This is a critical function.” The court noted its March 20, 2020
order detailed the social distancing requirements and asked if anyone objected to that
order. Neither the parents nor their counsel objected.
Father argues the court failed to ensure the parents were able to communicate
confidentially with their respective attorneys during the hearing pursuant to California
Rules of Court, rule 5.531(b), which provides in relevant part that the juvenile court must
implement procedures or protocols to “[e]nsure that the party appearing by telephone is
able to communicate confidentially with his or her attorney (if any) during the proceeding
and provide timely notice to all parties of the steps necessary to secure confidential
communication.” (Cal. Rules of Court, rule 5.531(b)(9) [formerly rule 5.531(b)(8)].) We
are not persuaded. As a preliminary matter, we assume the court provided the parents
with timely notice of the steps necessary to secure confidential communication with their
attorneys. “On appeal, we presume the trial court performed its duties in a regular and
correct manner absent a clear showing to the contrary.” (In re Amber D. (1991)
235 Cal.App.3d 718, 724; see Evid. Code, § 664 [“It is presumed that official duty has
been regularly performed”].) In any event, there is nothing in the record to suggest, nor
does father claim, that the parents were prohibited from having confidential
communications with their attorneys during the hearing. It is not at all uncommon for
parties and/or their attorneys to appear by telephone for a court proceeding. It is also not
uncommon during a hearing for an attorney to request a moment to speak with his or her
client in confidence. At no point during the section 366.26 hearing did the parents or
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their respective counsel request to do so. Indeed, the court repeatedly asked the parents
whether they understood what was being discussed and twice invited counsel the
opportunity to speak confidentially with their clients (the parents). Counsel apparently
did not find a need to do so.
Finally, father raises various arguments regarding whether reasonable services
were provided. That issue was not relevant to the issues at hand at the section 366.26
hearing and, as noted by the Department, this court denied the parents’ petitions for writ
relief regarding that issue on February 14, 2020. We therefore need not address father’s
claims.
We conclude the juvenile court did not err in conducting the section 366.26
hearing.
DISPOSITION
The juvenile court’s orders are affirmed.
/s/
RAYE, P. J.
We concur:
/s/
BLEASE, J.
/s/
HOCH, J.
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