In re Michael H. CA2/6

Filed 5/13/13 In re Michael H. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 SIX
In re MICHAEL H., et al., Persons Coming 2d Juv. No. B244671
Under the Juvenile Court Law. (Super. Ct. Nos. J068242, J068243)
(Ventura County)
VENTURA COUNTY HUMAN
SERVICES AGENCY,
Plaintiff and Respondent,
v.
INEZ P.,
Defendant and Appellant.
Inez P. (mother) appeals the juvenile court's order terminating her parental
rights to her minor children Michael H. and M.H., and selecting a permanent plan of
adoption. (Welf. & Inst. Code, § 366.26.)1 Mother contends her due process rights were
violated because she was not given notice of the date of the continued section 366.26
hearing. We affirm.
FACTS AND PROCEDURAL HISTORY
On March 22, 2011, the Ventura County Human Services Agency (HSA)
filed section 300 petitions as to newborn M.H. and her one-year-old brother Michael.
1 All further statutory references are to the Welfare and Institutions Code.
The petition alleged that both mother and the children's father, Michael H., Sr.,2 had a
significant history of substance abuse and that M.H. was born prenatally exposed to
methamphetamine. It was further alleged that father was unable to care for the children
by reason of his incarceration. The court sustained the petitions and ordered reunification
services for both parents.
In its six-month review report, HSA recommended that parents begin an
extended visit with the children. HSA reported that both parents had completed parenting
classes along with the initial phase of a residential drug treatment program, had provided
clean drug tests, and were participating in counseling and attending AA/NA meetings.
As a condition of the extended visit, the parents were to continue participating in the next
phase of their residential treatment program. The court ordered continued services and
gave HSA discretion to begin its recommended extended visit. The court made clear that
the children would be returned to foster care if the parents left the treatment program
prior to completion.
The extended visit began at the beginning of October 2011. On October
19, mother tried to leave the program with the children but was stopped by the police.
On November 14, 2011, a program staff member was transporting the family in a van
when she noticed that mother had not properly buckled M.H.'s car seat. The staff
member pulled over and counseled mother and father on the proper way to buckle the
seat. Mother and father were angered by this, so they got out of the van and simply
walked away, leaving both children behind. Four days later, the social worker arranged
for the parents to return to the program on the condition that they accept responsibility for
their actions. Both parents refused, insisting that the staff member was to blame.
On November 25, 2011, mother was arrested for being under the influence
of methamphetamine. After leaving the treatment program, she missed four of the five
required drug tests and father missed all of them. Of the 11 possible visits with the
children, mother attended five and father attended only one. Mother did not reenter drug
2 Father is not a party to this appeal.
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treatment until February 15, 2012, while father did not return at all during the reporting
period.
At the 12-month review hearing on March 19, 2012, HSA recommended
that services be terminated for both parents and that the matter be set for a section 366.26
hearing. Mother was present at the hearing, while father did not attend. At mother's
request, the matter was set for a contested hearing.
At the contested hearing, mother testified that she had been sober since
January 31st and was working with a sponsor in a 12-step program. The court terminated
reunification services and set the section 366.26 hearing for August 6, 2012. The court
orally ordered mother to return for the hearing. The social worker also personally served
mother with notice of the hearing.
Mother did not appear at the August 6th hearing. Father was present with
counsel and requested a contested hearing. The matter was accordingly set for a
contested hearing on August 30, 2012. When the court asked mother's counsel whether
mother was joining in the contest, counsel replied, "I don't know at this point." HSA
served mother notice of the August 30th hearing by mail.
Mother did not appear at the August 30th hearing, and counsel gave no
explanation for her absence. The matter was trailed to September 5, 2012, at the request
of father and HSA.
When the matter was called for hearing on September 5, 2012, mother's
counsel once again announced that mother was not present and did not otherwise
comment on her absence. Father was present with counsel. At the outset of the hearing,
the court asked, "do we have proper notice findings for Mom?" Counsel for HSA
responded that mother was actually present when the section 366.26 hearing was initially
set for August 6th. The court then noted that the record expressly reflected that mother
had been given notice of the continued hearing on August 30th, at which she also failed
to appear. No mention was made of whether mother received notice that the hearing had
been continued again until September 5th.
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HSA submitted its report recommending termination of parental rights as to
both children. The report noted among other things that mother had attended only half of
her visits with the children from January 1, through July 25, 2012, while father had
attended only one. Father presented the social worker's testimony indicating that
although Michael H. had behavioral problems, the prospective adoptive parents had no
reservations about adopting both children. Father testified that he had returned to his
residential treatment program almost three months prior to the hearing. Father admitted,
"I let my children down on various occasions" and added, "I'm more focused on getting
myself right and continuing to have a positive relationship with my children and raising
them."
At the conclusion of the hearing, father's counsel argued, "I think he's
aware that the children are where they are for a reason and doesn't expect that things will
change." When asked whether she had anything to add, mother's counsel responded, "I
have no comment, your Honor." Counsel for the children argued that "[HSA's]
recommendation is the only one that's legally appropriate." The court then proceeded to
terminate parental rights and found that the children were adoptable and that no exception
to adoption applied. Mother appealed.3
DISCUSSION
Mother contends the order terminating parental rights must be reversed
because she was not provided actual notice of the continued section 366.26 hearing at
which the order was entered. This claim is forfeited because it was not raised below.
Moreover, the failure to give notice was plainly harmless.
"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. [Citation.] The purpose of
this rule is to encourage parties to bring errors to the attention of the trial court, so that
3 Mother's pro per notice of appeal erroneously refers to a March 22, 2011, order.
No such order was entered on that date; rather, it is the date that the section 300 petition
was filed. Because it is clear that mother sought to appeal the order terminating parental
rights and that HSA was not prejudiced or misled by the erroneous designation, we
liberally construe the notice to protect mother's appeal. (In re Joshua S. (2007) 41
Cal.4th 261, 272; In re Madison W. (2006) 141 Cal.App.4th 1447, 1450-1451.)
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they may be corrected. [Citation.] [¶] Dependency matters are not exempt from this
rule.' [Citation.] The appellate court has discretion to excuse forfeiture, but it should be
exercised rarely and with special care. [Citation.] Because juvenile dependency
proceedings ‘involve the well-being of children, considerations such as permanency and
stability are of paramount importance. (§ 366.26.)' [Citation.]" (In re X.V. (2005) 132
Cal.App.4th 794, 804, fn. omitted.)
Mother' s attorney was present at the hearing of which mother purportedly
had no notice. Counsel gave no explanation for mother's absence, be it due to lack of
notice or otherwise. Because an objection would have cured the error of which mother
complains, her failure to object forfeits the issue. (In re X.V., supra, 132 Cal.App.4th at
p. 804; see In re B.G. (1974) 11 Cal.3d 679, 689 [mother's objection to lack of adequate
notice of dependency proceedings waived by counsel's failure to object and mother's
subsequent stipulation to jurisdiction].)
Mother cites In re Sabrina H. (2007) 149 Cal.App.4th 1403, for the
proposition that "[w]hile the general rule prohibits raising a claim on appeal that was not
raised below, where the claim involves due process, that right is not waived." Sabrina H.
does not so hold. On the contrary, the court expressly found the appellant had waived or
forfeited her notice claim by failing to object below. (Id. at p. 1419.)4 Although the
court went on to address the claim on the merits, it only did so to demonstrate that the
lack of notice was in any event harmless. (Ibid.)
We reach the same conclusion here. "If the outcome of a [dependency]
proceeding has not been affected, denial of a right to notice and a hearing may be deemed
4 The appellant claimed she had not received proper notice under section 361.2,
subdivision (h), which provides: "Whenever the social worker must change the
placement of the child and is unable to find a suitable placement within the county and
must place the child outside the county, the placement shall not be made until he or she
has served written notice on the parent or guardian at least 14 days prior to the placement,
unless the child's health or well-being is endangered by delaying the action or would be
endangered if prior notice were given. The notice shall state the reasons which require
placement outside the county. The parent or guardian may object to the placement not
later than seven days after receipt of the notice and, upon objection, the court shall hold a
hearing not later than five days after the objection and prior to the placement. The court
shall order out-of-county placement if it finds that the child's particular needs require
placement outside the county."
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harmless and reversal is not required." (In re James F. (2008) 42 Cal.4th 901, 918; see
also In re A.D. (2011) 196 Cal.App.4th 1319, 1325 ["[A] failure to give notice in
dependency proceedings is subject to a harmless error analysis"].)
Here, any error in failing to give mother notice of the September 6th
hearing was plainly harmless beyond a reasonable doubt. Mother did not attend the prior
hearings of which she received actual notice, and offers nothing to demonstrate that her
failure to attend the September 6th hearing was due to a lack of notice. Even if she had
attended, everyone agreed that the evidence compelled the court to rule as it did.
According to mother, she could have persuaded the court that the beneficial parental
relationship exception to adoption applied. (§ 366.26, subd. (c)(1)(B)(i).) To make such
a showing, she would have needed to show both (1) that she had maintained regular
visitation and contact with the children; and (2) that the benefit of continuing the parent-
child relationship outweighed the benefits of adoption. (Ibid.) Mother did not maintain
regular visitation with the children. Moreover, M.H. was detained when she was two
days old and Michael H. was only 17 months old. The children were only thereafter in
mother's custody for a six-week period. By contrast, the children had spent the past 15
months in the home of their prospective adoptive parents. Their need for permanency
and stability plainly favored that placement. As the children's attorney argued, HSA's
recommendation that the children be freed for adoption was "the only one that's legally
appropriate." Because mother offers nothing to undermine the court's finding in that
regard, her alleged lack of notice of the hearing at which the court made its findings was
harmless beyond a reasonable doubt.
The judgment (order terminating parental rights) is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P. J.
YEGAN, J.
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Tari L. Cody, Judge
Superior Court County of Ventura
______________________________
Maureen L. Keaney, under appointment by the Court of Appeal, for
Defendant and Appellant.
Leroy Smith, County Counsel, Linda Stevenson, Assistant County Counsel,
for Plaintiff and Respondent.
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