California Cases October 16, 2023: Riverside Cnty. Dep't of Pub. Soc. Servs. v. J.J. (In re I.J.)

Case Description

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NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County Super. Ct. No. SWJ2200225 Michael J. Rushton, Judge. Affirmed.

William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant.

Minh C. Tran, County Counsel, Teresa K.B. Beecham, and Prabhath Shettigar, Deputy County Counsel, for Plaintiff and Respondent.

OPINION

CODRINGTON J.

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I.

INTRODUCTION

J.J. (Mother) appeals the juvenile court's order terminating her parental rights to her infant son, I.J. We affirm.

II.

FACTUAL AND PROCEDURAL BACKGROUND

The Riverside County Department of Public Social Services (the Department) received a referral that Mother and I.J. tested positive for amphetamines when I.J. was delivered. Hospital staff also found drugs and drug paraphernalia on Mother, and she admitted that she used methamphetamine on the day of I.J.'s birth.

Shortly afterward, the Department filed a petition on I.J.'s behalf under Welfare and Institutions Code section 300, subdivisions (b)(1) (general neglect) and (g) (father's whereabouts unknown). The juvenile court later ordered I.J. detained, removed from Mother's care, and placed in the hospital, and Mother was granted supervised visits twice per week. The court advised the mother that she must keep the court, the agency, and her attorney informed of her current address and telephone numbers and provide written notification of any changes to her mailing address. The court thus ordered Mother to file a completed JV-140 "Notification of Mailing Address Form," providing the court with her address. Mother did so later that day.

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The juvenile court set a jurisdictional hearing and notified Mother of the hearing at the address on her JV-140 form. In its report for the hearing, the Department recommended that the court bypass services for Mother under section 361.5, subdivision (b)(10) and set the matter for a section 366.26 hearing.

Mother was not present at the jurisdictional hearing, but her attorney attended the hearing and asked for it to be set for a contested jurisdiction hearing. The court agreed to do so. The Department thus mailed notice of the hearing to Mother at her JV-140 address. The hearing was continued again, and the Department again sent notice of the hearing to Mother at her JV-140 address.

Mother, however, did not appear at the contested jurisdiction hearing. Without objection from Mother's counsel, the juvenile court found there had been "good notice" of the hearing given to Mother. The court then found the section 300 petition's allegations true, adjudged I.J. a dependent, ordered the child removed from parental custody, and denied services to the alleged fathers under subdivisions (a) and (b)(1) of section 361.5 and to Mother under subdivision (b)(10) of section 361.5 while reducing Mother's visits with I.J. to once per month. The court then set the matter for a section 366.26 hearing.

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The Department mailed notice of the section 366.26 hearing to Mother at her JV-140 address. The Department also unsuccessfully tried three times to personally serve Mother notice of the section 366.26 hearing at that address.

At the hearing, the juvenile court found the Department had not properly served Mother, so the court continued the hearing. The Department then filed a "Declaration of Due Diligence" outlining its attempts to locate Mother. The Department checked the Riverside County Jail, Orange County Jail, San Diego County Jail, Imperial County Jail, San Bernardino County Jail, Los Angeles County Jail, California Department of Corrections and Federal Department of Prisons. The Department reviewed California's statewide automated welfare system, the medical eligibility data system, the child welfare services/case management system, and the Voter Registration check, all of which showed Mother's JV-140 address as her address. The Transunion government data search and location tool uncovered three addresses for Mother, two of which were not valid addresses, but the third was her JV-140 address. The Riverside superior court civil and criminal dockets showed no record for Mother, and she did not have a Facebook account. The Department also sent letters of inquiry to Mother's JV-140 address, her email address, and her trial counsel.

Nonetheless, the Department once again sent notice of the section 366.26 hearing to Mother's JV-140 address and unsuccessfully tried to personally serve her at the address three times. The Department thus personally served Mother's counsel with a copy of the Department's request for (1) a finding from the juvenile court that the

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Department had performed its due diligence in trying to locate Mother and (2) authorization to serve Mother through her counsel (see § 294, subd. (f)(7)(A)). The court granted both requests, thereby authorizing the Department to serve Mother notice of the upcoming section 366.26 hearing via her counsel. The Department thus served notice of the section 366.26 hearing on Mother through her counsel about a month before it took place.

At the section 366.26 hearing, Mother's counsel asked that the hearing be trailed because Mother was incarcerated in the Las Colinas Detention Center in San Diego County. Counsel explained that she had received two voicemails from Mother the day before, which "was the first time [counsel] had heard from her in quite some time." The paternal grandmother then confirmed that Mother was in Las Colinas and her release date was about 10 months away. At the Department's request, the juvenile court found "good notice" of the section 366.26 hearing to Mother, but then continued the hearing for eight days while ordering that no further notice to Mother was necessary.

Mother was not present at the continued section 366.26 hearing. Again at the Department's request, the juvenile court found that the Department had properly given Mother notice of the hearing. Mother's counsel then explained: "On behalf of the [M]other, I would indicate I had asked for a continuance in order to reach out to the mother. She had called my office several times and left messages. I attempted to call her back at three different numbers on multiple occasions with no success. [¶] I would just

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be objecting for the record and indicating that the mother has been participating in services while she's been in custody and very much wants to reunify with her child."

The juvenile court reiterated that it found "good notice" to Mother, and then proceeded with the section 366.26 hearing. Without an objection or anything further from Mother's counsel, the juvenile court found "none of the exceptions apply," terminated Mother's parental rights, and freed I.J. for adoption. Mother timely appealed.

III.

DISCUSSION

Mother argues the juvenile court erred by terminating her parental rights to I.J. because she did not receive proper notice of the section 366.26 hearing and she was not present at it because she was incarcerated at the time. We conclude Mother forfeited her notice argument and the court's error in holding the section 366.26 hearing without her, if any, was harmless.

A. Notice of the section 366.26 Hearing

Mother first argues that the juvenile court erred in holding the section 366.26 hearing because she did not receive proper notice. The Department disagrees, arguing that its service of the hearing on Mother's counsel was proper under section 294, subdivision (f)(7)(A). This provision allows the Department to serve notice of a section 366.26 hearing on a parent's attorney if the parent's "whereabouts are unknown" and the parent "cannot, with reasonable diligence" be served by another approved method. On the other hand, Mother, argues Penal Code section 2625, subdivision (b) controls,

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because the Department and the juvenile court learned at the originally scheduled section 366.26 hearing that Mother was incarcerated. That provision states that the juvenile court must order service of notice of a section 366.26 hearing on a prisoner to be "transmitted to the prisoner."

We need not decide which provision controls and whether Mother received proper notice of the section 366.26 hearing because Mother forfeited any argument that she did not receive proper notice. The originally scheduled section 366.26 hearing began with the Department agreeing with Mother's counsel's request to trail the hearing while asking the court to make a finding of "good notice" of the hearing. Mother's counsel did not object, but instead only asked for a continuance so she could inform Mother "of what is happening" since counsel had just learned that Mother was incarcerated in San Diego County. The court agreed to trail the section 366.26 hearing for a week, but "waiv[ed] further statutory notice, finding good notice to all parents," and thus would "not requir[e] any additional notice." The hearing then concluded without objection from Mother's counsel.

The trailed section 366.26 hearing the next week began with the Department asking the juvenile court to find, and the court finding, that Mother had received sufficient notice of the hearing. Mother's counsel did not object. When the juvenile court asked to hear from Mother's counsel on the Department's recommendation to terminate parental rights, counsel did not object that there was insufficient notice. Mother's counsel instead only "object[ed] for the record" because "[M]other has been

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participating in services while she's been in custody and very much wants to reunify with her child." Because Mother's counsel never objected on the basis of improper notice, Mother forfeited her argument on appeal that she did not receive proper notice of the section 366.26 hearing. (See In re Z.S. (2015) 235 Cal.App.4th 754, 771, disapproved on other grounds by In re A.R. (2021) 11 Cal.5th 234, 251, fn. 2; In re Desiree M. (2010) 181 Cal.App.4th 329, 334; see also In re Gilberto M. (1992) 6 Cal.App.4th 1194, 1198; In re P.A. (2007) 155 Cal.App.4th 1197, 1207-1209.)

B. Holding the section 366.26 Hearing Without Mother

Mother contends the juvenile court violated Penal Code section 2625, subdivision (d) by holding the section 366.26 hearing in her absence. That provision states in relevant part: "Upon receipt by the court of a statement from the prisoner or the prisoner's attorney indicating the prisoner's desire to be present during the court's proceedings, the court shall issue an order for the temporary removal of the prisoner from the institution, and for the prisoner's production before the court. A proceeding may not be held under . . . [s]ection 366.26 of the Welfare and Institutions Code and a petition to adjudge the child of a prisoner . . . without the physical presence of the prisoner or the prisoner's attorney" unless the prisoner has waived the right to be present. (Pen. Code, § 2625, subd. (d); see also In re Christopher L. (2022) 12 Cal.5th 1063, 1072; In re Jesusa V. (2004) 32 Cal.4th 588, 622-624.)

The Department argues that even if the juvenile court violated Penal Code section 2625, subdivision (d), the error was harmless. We agree any error was harmless, so we

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likewise assume without deciding that the juvenile court violated Penal Code section 2625, subdivision (d), by holding the section 366.26 hearing without Mother.

At a section 366.26 hearing, the juvenile court selects and implements a permanent plan for the dependent child. ( In re K.P. (2012) 203 Cal.App.4th 614, 620.) The options include (1) adoption, which requires terminating parental rights, (2) guardianship, or (3) long-term foster care. (§ 366.26, subds. (c)(1), (4)(A); In re J.C. (2014) 226 Cal.App.4th 503, 528.) If the court finds the child is adoptable, it "'shall terminate parental rights'" and select adoption as the child's permanent plan, unless it finds that one or more exceptions to the statutory adoption preference applies. ( In re K.P. , supra , at p. 620; see § 366.26, subd. (c)(1)(A)-(B).) These exceptions "permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption." ( In re Celine R. (2003) 31 Cal.4th 45, 53.)

Mother's counsel never argued at the section 366.26 hearing that one of the exceptions to adoption applied. Counsel's only relevant argument was that Mother had "been participating in services while she's been in custody and very much wants to reunify with her child." Counsel made no further attempt to explain why Mother's parental rights should not be terminated. When the juvenile court found that "none of the exceptions apply" and ordered Mother's parental rights terminated, Mother's counsel did not object.

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Mother now argues for the first time on appeal that the beneficial parental relationship exception applied. This exception applies when "'[t]he court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [¶] (i) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) ( In re Caden C. (2021) 11 Cal.5th 614, 631.) For the exception to apply, the parent must prove three elements: "(1) regular visitation and contact , and (2) a relationship , the continuation of which would benefit the child such that (3) the termination of parental rights would be detrimental to the child." ( Ibid .)

Mother contends her testimony was critical to establishing that the exception applied because she could have testified about her relationship with I.J. Although Mother seemingly argues she visited I.J. regularly (and thus satisfied the exception's first element), she makes no attempt to explain how continuing her relationship with I.J. would have benefitted him or how terminating her parental rights was detrimental to him. She thus fails to show, as she must for the exception to apply, that she and I.J. have such a "substantial, positive attachment" that the harm in severing the parental relationship would "outweigh[] 'the security and the sense of belonging a new family could confer.'"

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( In re Caden C. , supra , 11 Cal.5th at p. 636.) More importantly, Mother does not explain how she would have made either showing had she testified at the section 366.26 hearing.

In short, nothing in the record suggests that Mother would have satisfied her burden of proving the beneficial parental relationship exception had she testified at the section 366.26 hearing about her relationship with I.J., and she does not argue any other exception applies. Because Mother fails to show that it is reasonably probable that she would have received a better outcome had she testified at the section 366.26 hearing, any error in holding the hearing and terminating her parental rights in her absence was harmless. (See In re Jesusa V. , supra , 32 Cal.4th at pp. 624-625; People v. Watson (1956) 46 Cal.2d 818, 836.)

IV.

DISPOSITION

The juvenile court's order terminating Mother's parental rights to I.J. is affirmed.

We concur RAMIREZ P. J., MENETREZ J.