Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Super. Ct. No. J219541 Marsha Slough, Judge.
William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruth E. Stringer, County Counsel, and Dawn M. Messer, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
RICHLI, J.
Defendant and appellant M.K. (Father) appeals from the juvenile court’s order terminating his parental rights under Welfare and Institutions Code section 366.26 as to his two-year-old daughter E.K. Father does not challenge any orders made at the section 366.26 hearing. Rather, he contends that he was not adequately notified of the jurisdictional/dispositional and six-month review hearings and, therefore, the judgment terminating his parental rights should be reversed. Although Father was not provided with written notice of these hearings, we find the error to be harmless beyond a reasonable doubt and affirm the judgment.
All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
I
FACTUAL AND PROCEDURAL BACKGROUND
E.K. came to the attention of the San Bernardino County Children and Family Services (CFS) after her mother, B.N. (Mother), refused to take her prescribed medication following E.K.’s birth. There was also concern regarding the child’s older sibling, who was residing with Mother on a 29-day visit. The older sibling had allegedly molested another child while in a foster care placement. E.K. was removed from Mother’s care and placed in a confidential home.
On December 18, 2009, counsel for appellant B.N. filed a brief claiming no error or other defect in the appealed ruling. B.N. filed a personal supplement brief on February 18, 2010. The court found B.N.’s brief failed to present any arguable issues. The appeal was dismissed as abandoned as to appellant B.N. only. (In re Sade C. (1996) 13 Cal.4th 952, 994.)
The record shows that Mother had been diagnosed with “psychosis NOS, ” had experienced “auditory and visual hallucinations, ” and had “significant paranoia” when not taking her prescribed medication. E.K. has five older siblings, who are dependents of the juvenile court due to Mother’s mental illness, physical abuse, and substance abuse.
Father did not live with E.K. and Mother, but was present for E.K.’s birth and when E.K. was removed from Mother’s care. Father admitted to the social worker that he has a substance abuse problem, and that he frequently uses marijuana and alcohol. Father also has a criminal history for burglary, failure to appear, possession of a controlled substance, and unauthorized possession of marijuana. The social worker believed Father’s substance abuse problem placed E.K. at risk of serious physical harm, and that Father was incapable of providing proper care to E.K.
On January 31, 2008, Father was noticed of the detention hearing.
On February 4, 2008, a petition on behalf of the child was filed pursuant to section 300, subdivisions (b) (failure to protect), (d) (sexual abuse), and (j) (abuse of sibling).
The detention hearing was held on February 6, 2008. At that time, both Mother and Father were present. Attorney David Levy was appointed to represent Father. On behalf of Father, attorney Levy waived reading of the petition and statement of rights and entered a denial in the matter. The court found that notice had been given as required by law and formally removed E.K. from parental custody. The parents were provided with visitation two times a week, and services pending the case plan.
At the detention hearing, the court explained to Father, “There’s a document. It’s called a JV-130 form that we have to have completed. And I would ask that you, please, complete that form for us before you head out today. [¶] Also, there’s a document that tells us where you live. I want you to have notice of any and every hearing regarding this case, so I would ask that you complete that document before you leave. [¶] Any time and every time you move, make sure you update that form. Okay?” Father replied, “Yes, ma’am.” The court also expressly stated twice that the jurisdictional/ dispositional hearing was set for February 27, 2008, at 8:30 a.m.
In the jurisdictional/dispositional report dated February 27, 2008, Father’s address was listed as “unknown.” Father desired to care for E.K. and was compliant in visiting E.K. twice a week. The social worker believed that until Father had completed a substance abuse program and complied with drug testing, E.K. could not safely be placed in Father’s care.
Father was not present at the February 27, 2008, jurisdictional/dispositional hearing. Father’s attorney, however, was present. Mother contested the allegations in the petition, and the matter was set contested for March 24, 2008. The court also set a pretrial settlement conference for March 11, 2008, at 8:30 a.m. Father did not appear for that conference, however, his attorney was present and stated, “My part is settled. We’ve agreed on allegations, and I’m not contesting.” Father’s counsel asked the court if he could proceed with Father’s case since Father “agreed on the allegations” and “would be admitting that he has a drug problem.” Father’s attorney asked not to be excused from the March 24, 2008, jurisdictional/dispositional hearing.
In an addendum report dated March 24, 2008, the social worker recommended that the allegations in the petition be sustained and that reunification services be provided to Mother and Father. No address was listed for Father.
Father was not present at the March 24, 2008, jurisdictional/dispositional hearing. Mother was present and waived her rights to a contested hearing. When the court asked Father’s attorney whether he had any evidence to present, attorney Levy responded, “No, your honor, although I had an agreement on the allegation against my client.” Attorney Levy explained, “So he’s admitting that he has a substance abuse problem.” The court found notice had been given as required by law. The court also found the allegations in the section 300 petition true as amended and declared the child a dependent of the court. The court provided the parents with reunification services, continued supervised visitation, and set the six-month review hearing for September 24, 2008.
On September 8, 2008, notice of the six-month review hearing was sent to the parties, including Father’s counsel and Mother. No notice was sent to Father since Father’s address was listed as “unknown.”
By the six-month review hearing, the social worker recommended terminating services for Father. CFS had provided Father with referrals for parenting classes, counseling, a drug treatment program, drug testing, case management services, and crisis intervention services. However, Father had made “little effort in attending any of the aforementioned programs.” He had not requested any gas scripts or bus passes to attend his programs. Although Father had completed several drug tests with negative results, he had failed to comply with random drug testing on “many occasions.” Recently, Father had missed visits with his daughter. The social worker noted that both parents had a “caring attitude toward the infant, ” and the visits “appear to keep the parent/child bond intact.” Nonetheless, the social worker believed that Father had “shown little interest in being a custodial parent.”
Father was not present at the September 24, 2008, six-month review hearing. When the court asked whether counsel wished to be heard, Father’s attorney replied, “I would have no comment. My client is not here....” The court found that Father had failed to participate regularly and make substantive progress in his case plan and terminated his services. Mother’s services were continued. The court also continued Father’s supervised visits with E.K. twice a week and set the 12-month review hearing for March 24, 2009.
Father’s address was still listed as “unknown” in the status review report dated March 24, 2009, and addendum report dated April 27, 2009. The social worker recommended terminating Mother’s services and setting a section 366.26 hearing. Mother had not been benefitting from services and had been attending visits with Father. The social worker believed that there was a probability of Father returning to Mother’s home thereby placing E.K. at risk. The visitation supervisor reported that E.K. enjoyed her visits with her parents and was happy to have their attention, but that she did not become “unduly stressed” when the visits ended and “easily” returned to her foster mother. E.K., who had been residing with her older half-brother in her current foster home for about a year, was attached to her foster mother.
The contested 12-month review hearing was held on May 5, 2009. Father was not present, however, his counsel was. The court reduced Father’s visitation to one time a week without any objection from his attorney. Following presentation of evidence, the court terminated Mother’s reunification services and set a section 366.26 hearing for September 1, 2009.
On May 11, 2009, Mother filed a notice of intent to file a writ petition (case No. E048349). On June 22, 2009, Mother’s counsel filed a “Non-Issue Writ, ” and this court dismissed the writ petition on June 26, 2009.
In a section 366.26 report dated September 1, 2009, CFS recommended terminating parental rights and implementing a permanent plan of adoption for E.K. Three different addresses were identified for Father. The section 366.26 report indicated that Father was notified of the section 366.26 hearing in person. Notice was also sent to Father at Mother’s address. Father and Mother had been attending weekly supervised visits with E.K. together. The prospective adoptive mother remained “open minded” about Father and Mother having continued contact with E.K.
E.K. had been with her prospective adoptive mother since she was one month old and viewed her prospective adoptive mother as her parental figure. E.K. had developed a significant emotional bond with her prospective adoptive mother. The prospective adoptive mother had expressed a strong desire to provide and care for E.K. on a permanent basis. The prospective adoptive mother has provided for the child’s physical, emotional, educational, and medical needs.
Father was present at the September 1, 2009, section 366.26 hearing. Father’s counsel, with Mother’s counsel joining, requested the matter be set contested on the “issue of bonding.” The court thereafter set the pretrial settlement conference for September 10, 2009, and the contested hearing for September 22, 2009.
Father and Mother were both present for the September 10, 2009, pretrial settlement conference. The parents confirmed that the issue to be litigated was parental bonding. The parents also confirmed the trial date of September 22, 2009, and the court ordered them to appear on that date.
Neither Father nor Mother attended the September 22, 2009, section 366.26 hearing. CFS’s counsel requested the court to take judicial notice of the minutes reflecting that Father and Mother were at the September 10, 2009, pretrial conference. The court confirmed that Mother and Father were present in court at the pretrial conference, and were advised of the September 22, 2009, section 366.26 hearing date. Having read and considered the section 366.26 and adoption assessment reports that were admitted into evidence, and having taken judicial notice of all prior findings, orders, and judgments in the proceeding, the court found E.K. adoptable and terminated Mother and Father’s parental rights. The court also found notice was given as required by law.
II
DISCUSSION
Father’s primary contention is that his statutory and due process rights to notice of the jurisdictional/dispositional and six-month review hearings were violated and reversal is required. His related contentions are that CFS’s due diligence search for Father’s address was inadequate, and that CFS’s delay in locating Father’s address was unreasonable.
CFS counters that Father waived his right to review his claim of defective notice for the jurisdictional/dispositional and six-month review hearings, in that he failed to raise the issue before the juvenile court or in a writ petition. In the alternative, CFS claims any error was harmless beyond a reasonable doubt.
In In re Wilford J. (2005) 131 Cal.App.4th 742, 746-747, the appellate court found that the father’s due process right to adequate notice in dependency proceedings had been violated when the court conducted a jurisdictional hearing in his absence, which had not been scheduled or properly noticed. Nonetheless, the court found that because the father appeared with counsel at subsequent hearings and did not challenge the court’s earlier findings, the father had forfeited his right to challenge the jurisdictional order made in his absence. (Id. at p. 754.)
As the court explained: “[W]hen a parent had the opportunity to present [the issue of lack of notice] 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.]” (In re Wilford J., supra, 131 Cal.App.4th at p. 754.) The court further stated that, while an appellate court has discretion to excuse a party’s failure to properly raise an issue in a timely manner, “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.]” (Ibid.)
However, in In re DeJohn B. (2000) 84 Cal.App.4th 100, the appellate court found no waiver of a parent’s right to raise a notice error on appeal of a dependency order. (Id. at pp. 109-110.) The court stated that “‘[t]he county has a constitutional responsibility to use due diligence to notify absent parents before depriving them of that “most basic of civil rights”-the care, custody, and companionship of their children. [Citation.]’ [Citation.]” (Ibid.) Additionally, when the issue first raised on appeal is a pure question of law on undisputed facts, as is the notice issue in the instant case, a court may review it, notwithstanding the litigant’s failure to object below. (Hale v. Morgan (1978) 22 Cal.3d 388, 394.)
In the present matter, it is true that Father’s attorney appeared at the jurisdictional/dispositional and six-month review hearings and did not ask for a continuance because of Father’s absences; his attorney did not object to the court proceeding in his absence. Instead, he argued the case on Father’s behalf. “‘In dependency cases, as in other civil cases, personal appearance by a party is not essential; appearance by an attorney is sufficient and equally effective.’ [Citations.]” (In re Jesusa V. (2004) 32 Cal.4th 588, 602.) “As a general rule, a party is precluded from urging on appeal any point not raised in the trial court. [Citation.]” (In re Riva M. (1991) 235 Cal.App.3d 403, 411-412.) However, as noted above, inasmuch as the defective notice issue herein raises a constitutional due process issue and also presents a pure question of law on undisputed facts, we conclude that Father has not waived the notice issue and has properly raised it on appeal. (Hale v. Morgan, supra, 22 Cal.3d at p. 394; In re DeJohn B., supra, 84 Cal.App.4th at pp. 109-110.)
“‘Parents have a fundamental and compelling interest in the companionship, care, custody, and management of their children. [Citation.] “[T]he state also has an urgent interest in child welfare and shares the parent’s interest in an accurate and just decision. [Citation.]” [Citation.] To ensure that result, “[u]ntil parental rights have been terminated, both parents must be given notice at each step of the proceedings. [Citation.]”’ [Citation.] [¶] ‘At each hearing under section 300 et seq., the court must determine whether notice has been given as required by law and must make an appropriate finding noted in the minutes.’ (Cal. Rules of Court, rule 5.534(k).)” (In re J.H. (2007) 158 Cal.App.4th 174, 182 (J.H.).)
“‘Notice is both a constitutional and statutory imperative. In juvenile dependency proceedings, due process requires parents be given notice that is reasonably calculated to advise them an action is pending and afford them an opportunity to defend.’ [Citation.] ‘The child welfare agency must act with diligence to locate a missing parent. [Citation.] Reasonable diligence denotes a thorough, systematic investigation and an inquiry conducted in good faith. [Citation.] [¶] However, there is no due process violation when there has been a good faith attempt to provide notice to a parent who is transient and whose whereabouts are unknown for the majority of the proceedings. [Citations.]’ [Citation.] Thus, where a parent cannot be located notwithstanding a reasonable search effort, the failure to give actual notice will not render the proceedings invalid. [Citation.]” (J.H., supra, 158 Cal.App.4th at p. 182.)
“‘It is not always possible to litigate a dependency case with all parties present. The law recognizes this and requires only reasonable efforts to search for and notice missing parents. Where reasonable efforts have been made, a dependency case properly proceeds. If a missing parent later surfaces, it does not automatically follow that the best interests of the child will be promoted by going back to square one and relitigating the case. Children need stability and permanence in their lives, not protracted legal proceedings that prolong uncertainty for them. Further, the very nature of determining a child’s best interests calls for a case-by-case analysis, not a mechanical rule.’ [Citation.]” (J.H., supra, 158 Cal.App.4th at pp. 182-183.)
Our review of constitutional issues is de novo. (J.H., supra, 158 Cal.App.4th at p. 183.)
Here, Father was present when CFS removed E.K. from Mother’s care. At that time, Father was personally noticed of the detention hearing. Father appeared at the detention hearing and was appointed counsel. In addition, at the detention hearing, the court instructed Father to disclose in writing where he resided. The court stated, “... there’s a document that tells us where you live. I want you to have notice of any and every hearing regarding this case, so I would ask that you complete that document before you leave. [¶] Any time and every time you move, make sure you update that form. Okay?” Father replied in the affirmative. While the record contains Mother’s “Notification of Mailing Address” form, it does not contain one for Father. Presumably, Father did not fill one out. The court also orally informed Father of the jurisdictional/dispositional hearing at the detention hearing. However, it appears that Father was not noticed of the jurisdictional/dispositional and the six-month review hearings in writing. Nor did CFS make any showing of reasonable diligence in attempting to obtain Father’s address. On this record-which contains no attempt by CFS to demonstrate due diligence or to explain why it continued to state in its report Father’s address as “unknown, ” even though it appears the social worker was in contact with Father or knew how to get in contact with Father, i.e., asking Mother since Mother and Father attended visits together-we have no choice but to view the failure of notice as a complete failure to attempt to serve notice on him.
Section 291 requires that notice of a jurisdiction or disposition hearing be given to certain persons, including parents such as Father, and provides in pertinent part: “After the initial petition hearing, the clerk of the court shall cause the notice to be served in the following manner: [¶] (a) Notice of the hearing shall be given to the following persons: [¶] (1) The mother. [¶] (2) The father or fathers, presumed and alleged. [¶]... [¶] (c) Notice shall be served as follows: [¶] (1) If the child is detained, the notice shall be given to the persons required to be noticed as soon as possible, and at least five days before the hearing, unless the hearing is set less than five days and then at least 24 hours prior to the hearing. [¶]... [¶] (d) The notice shall include all of the following: [¶] [specified information] [¶] (e) Service of the notice of the hearing shall be given in the following manner: [¶]... [¶] (2) If the child is detained and the persons required to be noticed are present at the initial petition hearing, they shall be noticed by personal service or by first-class mail.” (§ 291, subds. (a), (c)-(e).)
A parent’s constitutional due process right to notice was explained in In re Claudia S. (2005) 131 Cal.App.4th 236 as follows: “Parents are entitled to due process notice of juvenile court proceedings affecting the care and custody of their children, and the absence of due process notice to a parent is a ‘fatal defect’ in the juvenile court’s jurisdiction. [Citation.] Due 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.’ [Citation.] The means employed to give a party notice for due process purposes must be such as one, desirous of actually informing the party, might reasonably adopt to accomplish it. [Citations.] [¶] If the whereabouts of a parent are unknown, the issue becomes whether due diligence was used to locate the parent. [Citations.] The term ‘reasonable or due diligence’ ‘“denotes a thorough, systematic investigation and inquiry conducted in good faith.”’ [Citation.] Due process notice requirements are deemed satisfied where a parent cannot be located despite a reasonable search effort and the failure to give actual notice will not render the proceedings invalid. [Citation.]” (Id. at p. 247.)
The standard of prejudice based upon an error in notice in dependency proceedings was addressed in J.H., supra, 158 Cal.App.4th 174. “Unless there is no attempt to serve notice on a parent, in which case the error has been held to be reversible per se [citations], errors in notice do not automatically require reversal but are subject to the harmless beyond a reasonable doubt standard of prejudice.” (Id. at p. 183; see also In re Sabrina H. (2007) 149 Cal.App.4th 1403, 1419 [“[e]rrors in notice of dependency proceedings do not automatically require reversal; instead, we assess such errors to determine whether they are harmless beyond a reasonable doubt”].) The California Supreme Court noted in In re James F. (2008) 42 Cal.4th 901, 918, that “[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.”
In the present matter, Father had actual notice of the dependency proceedings in general and the February 27, 2008, date for the jurisdictional/dispositional hearing, in that he and his attorney were present at the initial detention hearing when the court set the date. Where a parent has had notice of the dependency proceedings from the beginning and an opportunity to be heard, including through appointed counsel, but fails to attend a hearing as originally noticed or notify his or her attorney, CFS, or any other participant as to his or her position in the matter, the fundamental fairness of the proceedings is not implicated. (In re Angela C. (2002) 99 Cal.App.4th 389, 395.) Father, in this case, had such notice and failed to convey his position now on appeal to his attorney or any other participant, even though he attended the initial section 366.26 hearing.
Father’s reliance on In re Megan P. (2002) 102 Cal.App.4th 480 is unavailing. In that case, the appellate court found the due diligence search by the department to be inadequate, and that the juvenile court erred in terminating the father’s parental rights without giving him an opportunity to be heard. (Id. at pp. 489-490.) There, the department knew the father’s name and that he was living in Indiana. The department, however, misspelled the father’s name when conducting the search and failed to search for him in Indiana. In addition, the father was paying child support to a local district attorney’s office, but the department failed to check the records of the other state agency. (Id. at pp. 482, 484-487.) The father was eventually located and his attorney requested a continuance of the section 366.26 hearing. The juvenile court denied the request for continuance, found the father had received sufficient notice of the hearing, and terminated the father’s parental rights. (Id. at pp. 487-488.)
The facts in this case are wholly distinguishable. Father here was present when CFS removed E.K. from Mother’s care. Father was personally noticed of the detention hearing, he appeared at the hearing, and he was appointed counsel. In addition, Father was allowed supervised visits with E.K. throughout the dependency. He was aware of the jurisdictional/dispositional hearing because the court informed all parties of that date at the detention hearing; however, he failed to appear. Father also apparently knew the requirements of his case plan in order to reunify with E.K.; but, he made little effort in completing his case plan with the exception of visiting E.K. The record is clear that Father obviously knew E.K. was a dependent of the court. Father also appeared at the section 366.26 hearing and set the matter contested. He was again present at the section 366.26 pretrial settlement conference, where the court ordered him to appear at the contested section 366.26 hearing. Hence, unlike the father in In re Megan P., supra, 102 Cal.App.4th 480, where the father was clearly unaware of the dependency matter, Father here was aware of the dependency matter and given an opportunity to present a defense. He was also given an ample opportunity to reunify with E.K., and he knew CFS was recommending adoption if reunification efforts failed.
Father claims that he was prejudiced, because “he could have disputed the counts alleged against him in the 300 petition.” He further claims that “adequate notice could have allowed him to dispute the proposed termination of services to him at the six-month status review hearing.” However, the record shows that Father admitted to having a substance abuse problem, and his counsel submitted on the allegations. Father knew about the dependency proceedings, having attended the initial detention hearing. Father chose not to contact his attorney or CFS or otherwise attempt to defend against E.K. being declared a ward of the court under section 300. In fact, there is no evidence to suggest that he disputed the allegations against him in the section 300 petition. Additionally, although Father substantially complied with the visitation order, there is no evidence to demonstrate that he expressed a willingness to reunify with E.K. The record indicates that Father made a minimal effort in attending parenting classes, counseling, a substance abuse program, or random drug testing. Moreover, Father appeared at the section 366.26 hearing and requested the matter be set contested. He was also present at the section 366.26 pretrial settlement conference; and, at that time, the court ordered him to appear at the September 22, 2009, contested section 366.26 hearing. Nonetheless, despite knowing that his parental rights may be terminated, Father chose not to attend the hearing.
In sum, there is no evidence that actual notice to Father would have changed the outcome of the jurisdictional/dispositional and the six-month review hearings. (See J.H., supra, 158 Cal.App.4th at pp. 184-185.) For this reason, we are convinced beyond a reasonable doubt that any deficiency in notice to Father was harmless error and, accordingly, reversal of the court’s order is not warranted. (Id. at pp. 183, 186)
III
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ P. J., KING J.