Opinion
F078680
09-11-2019
In re HEAVEN B. et al., Persons Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. TABITHA S., Defendant and Appellant.
Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Kevin A. Stimmel, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17CEJ300100-1, 17CEJ300100-2)
OPINION
THE COURT APPEAL from orders of the Superior Court of Fresno County. Gary Green, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Kevin A. Stimmel, Deputy County Counsel, for Plaintiff and Respondent.
Before Franson, Acting P.J., Peña, J. and Meehan, J.
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Tabitha S. (mother) appeals from the juvenile court's orders terminating her parental rights to her now 13-year-old daughter, Heaven B., and nine-year-old son, Daniel B., Jr. The orders were made at what was scheduled and noticed as a settlement conference but that the court converted into a permanency planning hearing (Welf. & Inst. Code, § 366.26) when mother failed to appear. Mother contends she was not informed of the consequences of her absence and therefore she was denied due process. We agree and reverse.
Statutory references are to the Welfare and Institutions Code.
INTRODUCTION
The section 366.26 hearing represents the most critical juncture in dependency proceedings. Where the state's recommendation is termination of parental rights, it potentially marks the end of a parent's legal relationship with his or her child. A parent wishing to challenge the state's evidence has a due process right to do so. The practice employed in this case was violative of that right because the juvenile court conducted the hearing without notice to the mother. This is not the first time we have reviewed and disapproved of this practice. We did so recently.
In re Blake H. (May 7, 2019, F078202) [nonpub. opn.].
While we understand dependent children need an expedient resolution and the press of court business requires efficiency, it is inappropriate to deprive a parent due process to accommodate the juvenile court's schedule.
PROCEDURAL AND FACTUAL SUMMARY
In April 2017, law enforcement placed a protective hold on then 10-year-old Heaven and six-year-old Daniel after finding them living with mother in a shed with no electricity or running water. Mother and the children's father, Daniel B., Sr., (father), were divorced and sharing custody of the children. Father was aware of the conditions in which the children were living.
Mother told a social worker from the Fresno County Department of Social Services (department) she smoked marijuana every day. If the children were home, she went across the street to smoke it. Daniel told the social worker that mother smoked "weed," which he described as "small green grass" that she kept in a red jar. He described how she made "little cigarettes, out of white paper." Heaven said mother smoked marijuana outside. The children felt safe with mother but not father because he yelled and spoke disparagingly about their mother. The social worker took the children into protective custody and placed them in foster care.
In May 2017, the juvenile court exercised its dependency jurisdiction over the children, removed them from parental custody and ordered the parents to participate in reunification services, including weekly supervised visitation. Father subsequently waived his reunification services and asked to surrender his parental rights. The department placed the children with their paternal uncle and his wife (caregivers), where they remained.
By the six-month review hearing scheduled for October 2017, mother had completed a parenting class and was participating in outpatient substance abuse treatment, mental health counseling and random drug testing. However, she continued to use marijuana, claiming she needed it for medicinal purposes, but had not provided the necessary documentation. She also tested positive for cocaine in May 2017. When confronted with the test results, she denied using cocaine, stating she had not used it for 14 years and began yelling and acting erratically. She regularly visited the children but was at times inappropriate, having side conversations with them and making promises about the future.
The juvenile court found mother made moderate progress in achieving her case plan objectives and continued reunification services to the 12-month review hearing scheduled for April 2018.
Meanwhile, mother continued to use marijuana and was adamant that she needed it. As a result, the staff at WestCare, where she was receiving outpatient substance abuse treatment, discharged her and the department refused to advance her to unsupervised visits. In June 2017, she submitted a letter from a doctor stating she used marijuana for anxiety, depression, attention deficit hyperactivity disorder and diverticulosis, and it seemed to be effective. The doctor asked that she be allowed to continue to use marijuana.
Social workers met with mother and informed her the doctor's note was insufficient because it was a recommendation not a prescription. During their meeting, the social workers raised the subject of her positive result for cocaine and an altercation she had with the police. She responded by storming out of the room, prompting the social workers to recommend she complete the higher level of intensive outpatient treatment.
WestCare staff met with mother in September 2017 after she obtained a medicinal marijuana card. They told her the card was insufficient and suggested she discuss alternative treatment options with her doctor or obtain a doctor's prescription detailing the dosage, diagnosis and side effects. They pointed out the department did not contract with agencies that allowed marijuana use. Mother continued to participate in WestCare's outpatient treatment program, which she was scheduled to complete on October 18. However, she left the program before completing it and was discharged on October 16.
Mother did not obtain a doctor's prescription and stopped drug testing. At a meeting in December 2017, she explained to the social worker and substance abuse specialist she did not have the money to drug test and exhausted her fee waivers. The substance abuse specialist referred her to Pathways, an intensive outpatient treatment program, and for drug testing. Mother was denied treatment at Pathways after she produced her marijuana card and said she used marijuana daily.
The caregivers supervised mother's visits, which took place at a park or McDonalds. Mother usually arrived between five to 15 minutes late and missed a few visits. She continued to tell the children she was going to get them back and make promises to them. According to the caregivers, the children seemed to shut down during visits. However, social workers monitored a visit at McDonalds in March 2018 and observed mother engaging appropriately with the children. She bought them food and helped them with their homework. Heaven was quiet and did not talk much but Daniel sat next to mother and discussed school and selling candy bars.
In its report for the 12-month review hearing, the department recommended the juvenile court terminate reunification services and set a section 366.26 hearing to consider a permanent plan of adoption for the children with their caregivers.
Mother appeared with her attorney at the 12-month review hearing and requested a contested hearing on the department's recommendation to terminate services and set a section 366.26 hearing. The juvenile court set a settlement conference on May 21, 2018, and a contested review hearing on June 18. Mother did not appear at the May 21 settlement conference and the court terminated her reunification services and ordered that visits remain weekly and supervised for a minimum of one hour. The reporter's transcript of the hearing is not contained in the record, but the minute order reflects that the court found "good cause as stated on the record" to proceed in her absence. The court set the section 366.26 hearing for September 10, 2018. Mother did not challenge the court's setting order by extraordinary writ petition. (Cal. Rules of Court, rule 8.450.)
In July 2018, the social worker supervised a visit with mother and the children. Mother arrived before the children and waited for them. The children greeted her with a hug and a kiss. While in the elevator on the way to the visitation room, Heaven leaned her head onto mother's chest and mother held her tight by placing one of her hands on Heaven's head and wrapping her other arm around her. Mother explained to the social worker that Heaven had motion sickness. Mother and the children ate pizza and cheese bread that mother brought. While eating, they conversed about their week and activities. Mother told them she had four weeks left to complete a trade school she was attending. The children discussed their excitement for the next school year. Mother brought out paper, markers and pens from her backpack and engaged the children in drawing characters and playing tic tac toe. Mother talked to Daniel about football and to Heaven about books she was reading. They danced to songs mother played on her phone. The children appeared happy and content with mother and were very talkative to her. They told her they loved her and missed her cooking and watching movies together. At the end of the visit, they told her they loved her and hugged and kissed her.
The children's visits with mother in August 2018 were very similar. They were affectionate and loving toward each other. Mother was very engaging with the children and praised and encouraged them. She described what they looked like as babies, what they liked and did not like to eat and how they learned to walk. They kissed and hugged each other at the end of the visit and expressed their love for each other. At another visit, mother brought the children their favorite snacks and the children described the outfits they planned to wear for their first day of school. Heaven was very talkative and comfortable with mother. She put her feet on mother's lap and leaned into her for affection and hugs. They laughed together at Daniel, who stacked his crackers and cheese and tried to stuff it all in his mouth. Mother played the theme song for the movie Jaws on her phone and asked the children to identify different sharks and their characteristics. Three times during the visit, Heaven asked the social worker what time it was, stating she did not want the visit to end. The visit ended as had the others with mother hugging Heaven tightly on the elevator and mother and the children hugging and kissing each other and saying they loved each other.
The department recommended the juvenile court terminate parental rights and select adoption as the children's permanent plan in its report for the section 366.26 hearing. Heaven appeared to understand the concept of adoption but was conflicted because she had a connection to both her caregivers and mother. On several occasions, the social worker attempted to ask Heaven how she felt about the possibility of being adopted and whether she felt comfortable with making that decision. Heaven was unable to give the social worker a clear answer as to how she felt. Her therapist said she was very dedicated to her mother and avoided discussing adoption as a permanent plan. On one occasion, Heaven cried when asked but was comforted by the caregivers, who rubbed her back and tousled her ponytail. In September, she told the social workers she agreed with the plan of adoption. Daniel also appeared to understand the concept of adoption and like Heaven had mixed feelings because he had developed a close relationship with his prospective adoptive parents and maintained a connection with his mother.
The department considered the children to be adoptable because their caregivers wanted to adopt them, but they were hard to place because of their ages. The children appeared to enjoy interacting with their caregivers and had developed a trusting relationship with them. Although mother regularly visited the children and they appeared to recognize her as their parent, the agency did not believe mother could provide the children the stability and continuity they needed. The caregivers were willing to allow mother monthly visits with the children, but not indefinitely because she had not resolved the issues that caused the children to be removed.
Mother appeared on September 10, 2018, represented by counsel who objected to the department's recommendation and requested a contested hearing. The juvenile court stated it received the department's section 366.26 report that morning. The court set a settlement conference for November 14, 2018, and a contested section 366.26 hearing for November 26, 2018. The court directly addressed mother, stating:
"[Y]ou'll need to come to court. I'm going to set some dates: .... Now, the dates that you need to come back to court, ..., are November 14 at 8:00 o'clock for a settlement conference, and then if the case goes to trial, the trial will be on November 26 at 1:30 in this department.
"If you do not come back to court on either November 14 or November 26, I can make the decision that you are not able to testify, that you are not able to assist your attorney to present evidence, and I could make my decision based on the Department's written reports. It's very important that you come to court."
Mother's attorney filed a statement of issues, raising the applicability of the beneficial parent-child relationship exception to adoption (§ 366.26, subd. (c)(1)(B)(i)) and asking the juvenile court to consider legal guardianship or long-term foster care as an alternative to termination of parental rights. He asserted the exception applied because mother maintained regular visitation and contact with the children and had a strong, parental bond with them. He specifically identified four potential witnesses, including mother.
Mother did not appear at the settlement conference on November 14. Her attorney stated he had contact with her but had no explanation for her absence and requested a continuance. Asked whether he confirmed the date of the hearing with her, he stated they discussed the case and she understood the court date was for a settlement conference. The department and minors' counsel objected to a continuance for lack of good cause. The court denied the request, adding that the children had been placed with their prospective adoptive parents since April 7, 2017, and were thriving in their placement. The court also stated that there was insufficient evidence based on the department's report to apply the beneficial parent-child relationship exception. Mother's attorney objected to the department's recommendation. The court terminated parental rights and ordered the children placed for adoption.
After reviewing the record, we directed the parties to file supplemental briefing under Government Code section 68081, addressing whether mother's due process rights were violated when the juvenile court terminated her parental rights at the settlement conference on November 14, 2018, after she failed to appear. Having reviewed the supplemental briefing, we conclude it did and reverse on that issue.
DISCUSSION
Parents have a fundamental and compelling interest in the companionship, care, custody, and management of their children. (Stanley v. Illinois (1972) 405 U.S. 645, 651.) Due process entitles them to notice of juvenile proceedings affecting their interest in custody of their children. (In re Melinda J. (1991) 234 Cal.App.3d 1413, 1418.) "[D]ue process requires 'notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.' " (Ibid.)
"A parent's fundamental right to adequate notice and the opportunity to be heard in dependency matters involving potential deprivation of the parental interest [citation] has little, if any, value unless the parent is advised of the nature of the hearing giving rise to that opportunity, including what will be decided therein. Only with adequate advisement can one choose to appear or not, to prepare or not, and to defend or not." (In re Stacy T. (1997) 52 Cal.App.4th 1415, 1424 (Stacy T.).) Thus, it is not enough to merely inform the parent of the date, time and place of a hearing; the parent has a due process right to be informed of the nature of the hearing, including what will be decided at the hearing, in order that the parent may make an informed decision whether to appear and contest the matter. (In re Wilford J. (2005) 131 Cal.App.4th 742, 751 (Wilford J.); Stacy T., at p. 1424; see also In re Anna M. (1997) 54 Cal.App.4th 463, 468 [notice regarding the setting of a section 366.26 hearing must notify the parent "of what [is] truly at stake in the section 366.26 hearing"].)
Mother contends the juvenile court conducted the section 366.26 hearing without notice when she failed to appear at the settlement conference. Respondent concedes it would be error for the court to proceed with a statutory hearing if it was not set to occur in combination with a settlement conference, which is exactly what happened in this case. Nevertheless, respondent contends the section 366.26 hearing was a continuing matter, involving three court dates and mother was advised that her failure to appear at any one of those dates would result in the termination of her parental rights. Such a contention on these facts verges on the frivolous.
On May 21, 2018, the juvenile court set a section 366.26 hearing for September 10, 2018. Mother was served notice of the date and time of the hearing. The notice form advised her the juvenile court could terminate her parental rights at the September 10 hearing and that she had a right to be present and have an attorney represent her. This is the first of the three advisements respondent contends mother received with regard to the court's ability to terminate her rights at a section 366.26 hearing. However, practically speaking, the court could not have terminated mother's parental rights on September 10 because she appeared and requested a contested hearing.
At the September 10 hearing, the juvenile court advised mother she needed to return to court on November 14 for a settlement conference and on November 26 if the case went to trial. The court stated that if mother did not come to court on either of those dates, it could decide she would not be able to testify and assist her attorney in presenting evidence and could make its decision based on the department's report. The minute order for the September 10 hearing indicates the court set a settlement conference on the section 366.26 hearing for November 14 and a contested section 366.26 hearing for November 26. Respondent argues the court's oral statement constitutes the second and third advisements to mother that it could terminate her parental rights at the settlement conference or the contested hearing. We disagree.
On the September 10, 2018 minute order, the November 14, 2018 hearing is designated as "SC.26" and the November 26, 2018 hearing is designated as "C.26."
The juvenile court previously told mother a trial was scheduled for November 26 and the case would go to trial if no settlement was reached on November 14. The court did not state, even assuming it would have been appropriate to do so, that it would proceed to a section 366.26 hearing on November 14 and terminate her parental rights if she did not appear. The only "decision" the court stated it would make in mother's absence was whether she could testify or assist in the presentation of evidence, which is patently insufficient to notify her that the section 366.26 hearing would be accelerated to the settlement conference. Moreover, the deprivation of mother's right to the contested hearing she requested is an improper sanction for her failure to appear at a settlement conference. Neither is it appropriate to impose evidentiary sanctions that effectively deprive mother of her right to be heard and present evidence at the scheduled contested hearing.
We note that the nature of a settlement conference is to determine whether the matter may be resolved voluntarily and, if so, on what terms. The parties are not required to agree and, generally, the court makes no decisions or issues orders concerning the merits of the case. It is not proper to conflate the settlement conference with the contested hearing for purposes of making final dispositional orders.
Appellate courts have found due process violations in similar circumstances where a parent failed to appear at a settlement or pretrial conference. (Stacy T., supra, 52 Cal.App.4th 1415; Wilford J., supra, 131 Cal.App.4th 742.) Wilford J. is illustrative for our purposes.
In Wilford J., supra, 131 Cal.App.4th 742 the father, who did not appear at the detention hearing, was given a "generic notice" of the next hearing which advised him of basic rights but did not advise him of the nature of the proceedings. The proceedings were in fact a pretrial resolution conference. Father, who was not represented, did not appear, and the court proceeded with a jurisdictional hearing. On appeal, the father contended that his due process right to notice had been violated. The appellate court agreed: "Converting a noticed [pretrial resolution conference] into an unscheduled jurisdictional hearing, absent appropriate waivers from the parties or their counsel, deprives parents of vitally important procedural protections that are essential to ensure the fairness of dependency proceedings." (Id. at pp. 746-747.) "Although the failure to respond to a court order to attend a [pretrial resolution conference] may serve as the basis for an award of sanctions (Local Rule 17.22(a); see Code Civ. Proc., § 177.5), nonappearance at a [pretrial resolution conference] does not justify conducting an entirely different proceeding or entry of the absent party's 'default' on the allegations of the section 300 petition." (Id. at p. 750.)
Thus, the Wilford J. court found the father was deprived due process. However, the court concluded the father forfeited the error on appeal by failing to address it in subsequent proceedings and affirmed the juvenile court's orders. (Wilford J., supra, 131 Cal.App.4th at pp. 754-755.)
Nevertheless, the Wilford J. court disapproved of the juvenile court's practice, stating:
"The persistence of the practice of conducting unscheduled jurisdictional hearings following the nonappearance of a parent at a mediation or settlement conference appears to be an understandable, but mistaken, effort to implement the well-founded principle that the best interests of the children demand that dependency proceedings move forward in a timely manner. [Citation.] The commendable goal of efficiently proceeding in dependency cases, however, cannot be accomplished by sacrificing a parent's due process and statutory rights to meaningful notice." (Wilford J., supra, 131 Cal.App.4th at pp. 752-753.)
We conclude mother was deprived due process in this case. She was not informed that the settlement conference would proceed immediately to a section 366.26 hearing instead of on the scheduled date, and that her parental rights could be at stake. Most importantly, she was not informed of the most important consequence of not appearing, that as far as the court was concerned, she would forfeit her parental rights.
Finally, we reject respondent's contention mother waived her right to participate in the section 366.26 hearing "scheduled" for November 26 by failing to appear at the November 14 hearing. Mother's desire for a contested section 366.26 hearing was clear. She appeared with her attorney to request it and her attorney filed a statement of contested issues. Her failure to appear at the settlement conference of a hearing yet to occur is no indication she had no intention of participating in the trial.
Designating the hearing as "scheduled" would seem to undermine respondent's own argument the November 14 hearing was intended and understood to be the section 366.26 hearing.
In sum, mother was deprived of her due process right to a contested section 366.26 hearing. Accordingly, we reverse the order terminating mother's parental rights, which necessitates we also reverse the order terminating father's parental rights (Cal. Rules of Court, rule 5.725(a)(1)), and remand for a new, properly noticed and contested section 366.26 hearing as to both parents.
DISPOSITION
We reverse the juvenile court's orders terminating mother and father's parental rights. We remand for the juvenile court to set a contested section 366.26 hearing.