In re J.M. CA1/5

Filed 8/1/13 In re J.M. CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION FIVE
In re J.M., a Person Coming Under the
Juvenile Court Law.
CONTRA COSTA COUNTY
CHILDREN & FAMILY SERVICES
BUREAU, A137248
Plaintiff and Respondent,
v. (Contra Costa County
Super. Ct. No. J11-00061)
JAMES M. et al.,
Defendants and Appellants.
James M. (Father)1 and Marilyn L. (Mother) appeal from the juvenile court’s order
terminating parental rights to J.M. (Minor) following a hearing held pursuant to Welfare
and Institutions Code section 366.26.2 Mother claims she received inadequate notice of
the possibility that her parental rights could be terminated at the hearing, and both parents
contend there was an insufficient showing that Minor is adoptable. We affirm.
BACKGROUND
In January 2011, the Contra Costa County Children & Family Services Bureau
(Bureau) filed a section 300 dependency petition alleging that Minor (born in June 2006)
1 James M. is not J.M.’s biological father, but the juvenile court granted James M.
presumed father status.
2 All undesignated section references are to the Welfare and Institutions Code.
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is within the jurisdiction of the juvenile court. The January petition and subsequent
amended petitions alleged as the bases for jurisdiction, among other things, Minor’s
parents’ drug abuse, domestic violence in the home, and extensive sexual abuse of Minor
by parents.
At the July 2011 contested jurisdictional hearing, the juvenile court sustained the
allegations in the section 300 petition, as amended. At the November dispositional
hearing, the court adjudged Minor a dependent of the court and denied both parents
reunification services and visitation. The court also scheduled the section 366.26
permanency planning hearing.
The Bureau’s report for the March 2012 section 366.26 hearing indicated Minor
was healthy and developmentally on target. She was in her fourth placement, which
began on November 1, 2011. The report stated that Minor is adoptable, explaining
“[Minor] is a young child who has been seriously damaged by the actions of her mother
and the presumed father. [Minor] has had many behaviors that show how she is
processing this abuse, and trying to heal from it and form positive, healthy relationships.
[Minor] is getting a lot of support in this process, and she has responded well to this
support. [Minor] is a young child who has many strengths, not the least of which is her
bright, engaging personality. [Minor] desires to connect and receive love, and she is
eager to be a part of a family. In this respect, [Minor] is a highly adoptable child.” The
Bureau recommended a 180-day continuance of the hearing to provide the Bureau an
opportunity to locate an adoptive home. The juvenile court continued the hearing to
August 2012.
In an August 2012 addendum report, the Bureau recommended another
continuance of 90 days. Minor was healthy, performing at grade level, and there were no
reported behavioral problems at school or home. Minor was participating in “Intensive
Therapeutic Foster Care Services” to address self-esteem and personal boundary issues,
as well as symptoms of anxiety and hyper vigilance. Minor had begun overnight visits
with a prospective adoptive parent in June 2012, but the prospective adoptive parent
declined to proceed further because of Minor’s hyperactivity, need for constant attention,
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defiance, and tantrums. Thereafter, Minor’s behavior regressed, including in regard to
“sexually acting out.” The Bureau reported that Minor’s current caretakers had expressed
interest in the possibility of adopting Minor, and the Bureau indicated it needed
additional time to explore that possibility.
The court continued the hearing to November 28, 2012. The Bureau’s September
notice to Mother regarding the hearing had a box checked indicating the recommended
plan was “Long Term Foster Care.” The notice also included the following in boldface
print: “IMPORTANT NOTICE [¶] A hearing under Welfare and Institutions Code
section 366.26 has been set for the date and time below. At the hearing the court may
terminate parental rights and free the child for adoption . . . .”
In a November 1, 2012 memo, the Bureau reported Minor’s foster parents had
made a commitment to adopt her and “[t]he Bureau plans to recommend that parental
rights be terminated at the continued 366.26 hearing on 11/28/2012.”
In a third addendum report prepared for the section 366.26 hearing, filed on the
day of the hearing, the Bureau stated Minor had been in the same foster home since
November 1, 2011, and the foster parents had made a commitment to adopt her. The
Bureau recommended that the juvenile court find Minor adoptable and terminate parental
rights. Mother was not present at the November 28, 2012 hearing. The parents’
attorneys argued Minor was not adoptable and objected to the order terminating parental
rights. Minor’s counsel agreed with the Bureau’s recommendation to terminate parental
rights.
The juvenile court found by clear and convincing evidence that it is likely Minor
will be adopted, stating “And practically by definition [Minor] is an adoptable child.
[¶] Not only because of the description of her and her disposition and her progress, in
general, but also because I think there is a specific family in mind who is committed to
adopting her and she’s been with them for over a year now.” The court terminated
parental rights.
This appeal followed.
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DISCUSSION
I. Mother Forfeited Her Claim Based on the Adequacy of Notice
Mother contends the order terminating her parental rights must be reversed
because she was not given notice that adoption was the Bureau’s recommendation for the
section 366.26 hearing.
Section 294 obligated the Bureau to give Mother notice of the section 366.26
hearing, including 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, the Bureau’s notice failed to inform Mother that its recommended plan was
adoption. Also, the Bureau provided notice by regular mail, but Mother argues it was
obligated to provide notice by certified mail, because its recommended plan was
adoption. (§ 294, subd. (f)(2) & (6).)
Even assuming Mother did not receive notice comporting with section 294, she
has, as the Bureau argues, forfeited her claim because she did not object on that basis
below. Although Mother was not present at the November 28, 2012 hearing, she was
represented by counsel at the hearing. Her counsel raised no objection based on the
failure to provide Mother adequate notice. As explained by the Second District in In re
Wilford J. (2005) 131 Cal.App.4th 742: “An appellate court ordinarily will not consider
challenges based on procedural defects or erroneous rulings where an objection could
have been but was not made in the trial court. [Citation.] Dependency cases are not
exempt from this forfeiture doctrine. [Citations.] The purpose of the forfeiture rule is to
encourage parties to bring errors to the attention of the juvenile court so that they may be
corrected. [Citation.] Although forfeiture is not automatic, and the appellate court has
discretion to excuse a party’s failure to properly raise an issue in a timely fashion
[citation], in dependency proceedings, where the well-being of the child and stability of
placement is of paramount importance, that discretion ‘should be exercised rarely and
only in cases presenting an important legal issue.’ [Citation.]” (Id. at p. 754.) In re
Wilford J. continued, “A defect in notice, as we have discussed, is a most serious issue,
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potentially jeopardizing the integrity of the entire judicial process. However, when a
parent had the opportunity to present that issue to the juvenile court and failed to do so,
appellate courts routinely refuse to exercise their limited discretion to consider the matter
on appeal. This is precisely because defective notice and the consequences flowing from
it may easily be corrected if promptly raised in the juvenile court. [Citation.]” (Ibid.)
Mother’s reply brief argues in passing that counsel’s failure to object constituted
ineffective assistance of counsel. However, assuming counsel’s representation fell below
an objective standard of reasonableness in that regard, there is no reasonable probability
that, but for counsel’s deficient performance, the result of the section 366.26 hearing
would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 686-687;
People v. Williams (1997) 16 Cal.4th 153, 215.) Although the Bureau’s notice contained
inaccurate information about its ultimate recommendation, Mother had actual notice of
the possibility of adoption and termination of parental rights, and constructive notice
through her counsel that the Bureau was seeking a plan of adoption. Nevertheless,
Mother failed to attend the November 28, 2012 hearing. She has not shown she would
have conducted herself differently had the Bureau provided accurate information about
its recommendation in the September notice.
More fundamentally, there is no reasonable likelihood Mother could have done
anything to prevent termination of parental rights, in light of the egregious history of
sexual abuse of Minor and because Mother had not even had reunification services or
recent visitation with Minor. Once a juvenile court finds a likelihood of adoption (see,
post, part II.), termination of parental rights is required unless one of several specified
exceptions applies. (§ 366.26, subd. (c)(1).) Mother does not contend that any of the
exceptions were applicable. Counsel’s failure to object on the basis of the inadequacy of
the notice was harmless.3
3 Relying on In re Jasmine G. (2005) 127 Cal.App.4th 1109, 1116, Mother contends
any error as to notice was structural error requiring automatic reversal. In re Jasmine G.
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. (In re Jasmine
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II. The Juvenile Court’s Adoptability Finding Is Supported by Substantial Evidence
Father, joined by Mother, contends there was no clear and convincing evidence
that Minor is likely to be adopted. (§ 366.26, subd. (c)(1).) We review the juvenile
court’s determination for substantial evidence. (In re Gregory A. (2005) 126 Cal.App.4th
1554, 1561-1562.) “We give the court’s finding of adoptability the benefit of every
reasonable inference and resolve any evidentiary conflicts in favor of affirming.
[Citation.]” (Id., at p. 1562.)
In the present case, the Bureau’s disposition report, filed in November 2011,
indicated that Minor had exhibited aggressive and sexualized behavior with other
children. Minor had been through several placements before being placed with her
current caretakers in November 2011, and there was an unsuccessful attempt in summer
2012 to connect Minor with a different adoptive family. Afterward, according to the
Bureau’s August 2012 addendum report, Minor “regressed in some areas, including the
sexual acting out.” Nevertheless, the same addendum stated, “There were no reported
behavior problems at school or at home.” Minor was in good physical health,
developmentally normal, social, and doing well in school. Thus, the evidence supported
an inference that Minor’s emotional and behavioral problems were not so severe as to
render her unadoptable.
Moreover, Minor had been with her current caretakers for over a year by the time
of the section 366.26 hearing, and they had committed to adopting her. “Usually, the fact
that a prospective adoptive parent has expressed interest in adopting the minor is
evidence that the minor’s age, physical condition, mental state, and other matters relating
to the child are not likely to dissuade individuals from adopting the minor. In other
G., at pp. 1113-1114, 1116; see also In re J.H. (2007) 158 Cal.App.4th 174, 183 [stating
that In re 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 also In re A.D. (2011) 196 Cal.App.4th 1319, 1326-1327
[declining to follow In re Jasmine G. in light of In re James F.].)
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words, a prospective adoptive parent’s willingness to adopt generally indicates the minor
is likely to be adopted within a reasonable time either by the prospective adoptive parent
or by some other family. [Citation.]” (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-
1650.)
Father points out that the Bureau failed to present expert evidence supporting its
claim that Minor is adoptable, but he cites no authority any such evidence is required.
The juvenile court’s adoptability finding is supported by substantial evidence.
DISPOSITION
The juvenile court’s orders are affirmed.
SIMONS, J.
We concur.
JONES, P.J.
NEEDHAM, J.
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