Opinion
F074012
03-13-2017
In re ENRIQUE V., et al., Persons Coming Under the Juvenile Court Law. TULARE COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. ENRIQUE M., Defendant and Appellant.
Linda J. Conrad, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen Bales-Lange, County Counsel, John A. Rozum and Amy-Marie Costa, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. JJV051699C, JJV051699D)
OPINION
APPEAL from an order of the Superior Court of Tulare County. Hugo J. Loza, Judge. Linda J. Conrad, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen Bales-Lange, County Counsel, John A. Rozum and Amy-Marie Costa, Deputy County Counsel, for Plaintiff and Respondent.
-ooOoo-
Enrique M. (father) appeals from an order terminating his parental rights to his eight-year-old son Enrique Joseph V.-M. (Joseph) and four-year-old daughter D.V. (collectively the children), under Welfare and Institutions Code section 366.26. Father contends his due process rights were violated because the order was issued in the absence of a voluntary, knowing, and intelligent waiver of his right to a contested section 366.26 hearing. Specifically, father complains the juvenile court did not advise him of the consequences of submitting on the recommendations of the Tulare County Health and Human Services Agency (Agency) without a contested hearing. We find no merit to father's contention and affirm the order.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Father has a long history with the Agency. In 2001, dependency jurisdiction was taken over father's first child, Destiny V., after she tested positive for methamphetamine and opiates at birth. Her mother, Charlene V. (mother), also tested positive for opiates. Mother, whose parental rights to an older child, Manuel, were terminated a few months before Destiny's birth, was not offered reunification services. Although father received reunification services, his services were terminated due to his failure to make progress in his case plan. Father's and mother's parental rights were terminated in April 2003 and Destiny's adoption was finalized in September 2004. Both Manuel and Destiny were adopted by an aunt.
The Agency started receiving referrals concerning father and mother again in 2008, when Joseph was born. Joseph had been diagnosed with sacral agenesis, a condition in which the tailbone does not develop properly, and lower extremity deformity, and would need significant medical treatment for the rest of his life. Mother was incarcerated and father was on disability due to physical problems with his legs and back. Father was concerned about his ability to care for Joseph, but lived with his father and had a niece who was willing to help him care for Joseph. The referral was closed after the social worker determined Joseph was not at risk.
In April 2009, mother was arrested for a parole violation while Joseph was with her. Joseph had recently had surgery for severe club foot, but was not in casts. When father came to the police station, he said he had been trying to find mother to regain custody of Joseph. As soon as Joseph saw father, he reached out his arms and smiled. Joseph was released to father, who said he would file for custody. Father followed through with obtaining needed medical care.
In February 2010, mother was arrested for another parole violation while Joseph was in her care. Father, who said he had been Joseph's primary care provider since Joseph's birth, had not obtained custody orders. Although father had a restraining order against mother due to domestic violence, mother was living in his home because she did not have her own place. Joseph was taken into protective custody, but was returned to father with a safety plan that required him to immediately apply for sole physical and legal custody, protect Joseph from mother, and keep the home clean.
In July 2011, a social worker investigated a referral which reported father had failed to take Joseph to five appointments at California Children's Services and failed to attend an appointment for Joseph to be fitted with a wheelchair. Three-year-old Joseph was found crawling around the living room using his hands and feet in an upside down "V" position. Joseph appeared to be clean and in good health. Joseph waved to the social worker and stood next to father while the social worker discussed the allegations. Father stated he missed appointments because he had transportation problems. Father refused to obtain a wheelchair for Joseph because he did not want Joseph stuck in one for the rest of his life. Joseph was able to use both a child-sized walker and a "stander wheelchair." Mother was incarcerated, but due to be released the following month, and pregnant again. After investigation, Joseph was found not to be at risk and the referral was closed.
The Prior Dependency Case
In March 2012, mother was arrested on outstanding warrants and for being in possession of a small amount of marijuana on an elementary school's premises. Five-month-old D.V. was taken into protective custody and taken to the Agency, where marijuana residue was found on her diaper and mouse feces in the stroller. Father brought Joseph to the Agency's office. Father said he used to live with mother, but he and Joseph moved to the paternal grandfather's home after mother stopped taking her medication and began acting out. He took Joseph with him because mother had never bonded with Joseph and Joseph did not like being around mother. Father said he had bonded with D.V. and cared for her at times when mother allowed him to. Father said mother did not allow to him have contact with D.V. when she had "episodes," and he did not believe he could get custody of D.V. until mother did something wrong. D.V. was laughing and giggling as father talked to her, and Joseph stated he loved father. The children were placed with father.
The Agency filed a dependency petition under section 300, subdivisions (b) (failure to protect), (g) (no provision for support) and (j) (abuse of sibling), regarding both children with allegations against mother only. The petition was later amended to delete the subdivision (g) allegation and to include an allegation against father under subdivision (b), based on his failure or inability to protect the children from mother, and subdivision (j), based on his failure to reunify with Destiny.
Father, who was represented by attorney Karen Bucey, completed a waiver of rights form which stated he was waiving his right to a contested jurisdiction hearing and submitting on the petition based on the social worker's reports. At the jurisdiction hearing, the juvenile court accepted the form after querying father as to his understanding of the rights listed on it. The juvenile court found the petition's allegations true, declared the children dependents, removed them from mother's custody and placed them with father. Mother was denied reunification services, while father was given family maintenance services, including alcohol and other drug treatment, random drug testing, mental health services, and parenting classes.
A Court Appointed Special Advocate (CASA) was appointed for the children. The CASA noted that despite Joseph's physical disabilities, which prevented him from walking, Joseph was very mobile and could move very fast while putting most of his weight on his arms. Joseph was "very alert and smart, and has very good verbal skills." One-year-old D.V. scored well in the fine motor, problem solving and personal-social areas, but scored low in communication and gross motor skills. Joseph had been diagnosed with caudal regression syndrome, which is a disorder where the bones of the lower spine and corresponding sections of the spinal cord are frequently misshapen or missing. Joseph was examined every six months at an orthopedic clinic and was stable.
Father received family maintenance services until May 2013, when the juvenile court terminated dependency jurisdiction and dismissed the case. Father had completed a parenting program and Joseph was found not to need mental health services. Father's drug tests indicated he was taking baclofen and hydrocodone with acetaminophen, which had been prescribed for severe back and leg problems from a work-place accident that often left him unable to move, but no other illegal substances were found. It was determined father did not require substance abuse treatment. Joseph received new braces and a wheelchair, and was receiving weekly physical therapy. He was doing well in father's care, and they had a very strong and healthy relationship. D.V. was also excelling in father's care, and the two had a strong and healthy bond. The juvenile court made custody orders awarding sole legal and physical custody of the children to father.
The Agency received new referrals in March and August 2014, and February 2015, which were all determined to be unfounded. In July 2015, the Agency received a referral that father was using drugs, the home where father and the children were living was filthy and roach-infected, and Joseph, who had also been diagnosed with spina bifida and was unable to control his bowels or bladder due to his medical condition, wore a dirty diaper all day because father would not change it. Allegations of general neglect were substantiated and father agreed to voluntary family maintenance (VFM) services.
Even with voluntary services, the Agency continued to receive referrals. In August and early September 2015, the school reported that Joseph wore the same diaper to school that he went to bed with, there were cockroaches in his diaper and shoe, father would not provide the school with diapers or wipes, and Joseph's clothing was too small. In response, father stated his chronic back pain made it difficult to get out of bed and he believed the school called in the referral because the school "had it out" for him. Father obtained adequate clothing and was connected to certain services. The referrals were closed and the family continued under VFM services. The Agency received referrals on September 29, 2015 and November 30, 2015, which it determined to be inconclusive.
The Current Dependency Case
On December 10, 2015, father was arrested after police responded to father's home, which was known to be a place of interest for gang members, and found father, as well as two other registered members of the Southerners gang, under the influence of methamphetamine. Joseph's bedroom window had been shot during a drive-by shooting that occurred three months before; Northern gang members were suspected in the shooting. Police found the home in deplorable conditions, with piles of trash, soiled diapers, and dog feces on the floor, and there was no food in the home. A police officer recognized that father was exhibiting objective symptoms of recent "CNS stimulant use." Upon questioning, father initially told the officer he had only smoked marijuana, but then admitted snorting methamphetamine three or four days before. Multiple bindles of methamphetamine were found in the living room and master bathroom, and two broken glass pipes were found in father's bathroom. Police called the Agency, as there was no one to provide care for the children.
The social worker came to the home and interviewed father, who said he had attempted to clean the home, but his disability made it difficult to do so. Father claimed he was about to go shopping for food and diapers when police arrived. Father admitted he used marijuana and he might test positive for methamphetamine, but he believed he absorbed the substance through his skin when he touched a large amount of methamphetamine that his friend showed him.
The social worker also interviewed seven-year-old Joseph, who said he had been living with father, D.V., and two adult cousins. Joseph had not seen mother for a long time. When asked whether he knew about illicit drugs, Joseph stated "Grown-ups do drugs[,]" and added that father and his cousins do drugs. Joseph said when they did so, they acted weird, "like mad at each other."
The social worker entered the home and was overwhelmed by the smell of urine and old trash, which was found throughout the home. There was no food in the refrigerator, save for two gallons of milk that appeared to have spoiled. There were knives on the cabinet accessible to the children. Soiled diapers were found on Joseph's bed, in the hallway and on the floor in D.V.'s bedroom. Police found several "plastic squares" in father's bedroom that were used to hold methamphetamine, and another square in the living room. The children's clothes were filthy and their pajamas were wet with urine. Joseph was seen dragging himself down the hallway and he appeared to have bug bites on his leg.
The children were detained and a dependency petition was filed on December 15, 2015, which alleged the children came within the provisions of section 300, subdivisions (b) (failure to protect), (g) (no provision for support) and (j) (abuse of sibling), due to father's substance abuse, his failure to provide the children with adequate food, clothing and shelter, his incarceration, his failure to reunify with Destiny, and his failure to address the issues underlying the juvenile court's jurisdiction in the 2012 dependency case. The petition also alleged that mother's whereabouts were unknown. The children were placed together with their paternal aunt and uncle, Denise and Thomas M. (collectively the M.'s) on December 14, 2015.
Mother eventually was located in New Mexico, where she was living. Although she had not had contact with the children for three or four years, she wanted the children placed with her. Mother, however, failed to keep the Agency or her court-appointed counsel apprised of her whereabouts and she did not participate in any of the proceedings.
Denise took Joseph to a medical appointment on December 16, 2015. He was not in good health. Joseph was seen by a urologist, who stated his bladder needed to be emptied every three hours, which required catheterization. Joseph's kidneys were in "critical condition and could cause an infection or kidney failure." The M.'s were going to be trained at Valley Children's Hospital to assist with Joseph's care.
In the report prepared for the jurisdiction/disposition hearing, the Agency recommended that father and mother both be denied reunification services pursuant to section 361.5, subdivisions (b)(10) and (11), based on their failure to reunify with their older children and treat the problems that led to their removal. A social worker spoke to Joseph on December 29, 2015. Joseph did not like father's friends because "they throw parties and drink beer . . . they sneak into my room and put stuff in my closet[,]" such as knives and clothes. Joseph stated that father and his friends "get high from smoking" and they smoke "cigarettes." Joseph said that father sometimes yelled at him and grounded him "when I hurt people[,]" but he could not give an example of how he "hurt" people. Denise told the social worker she and Thomas were willing to provide permanency for the children, but preferred a plan of legal guardianship, as they wanted Joseph to maintain a relationship with father. Father preferred that the children remain with the M.'s under legal guardianship.
The Agency conducted an assessment of the children for a permanent plan of adoption. The social worker had discussed adoption with the M.'s, but they preferred guardianship. The social worker opined the children were attached to father, who had twice-weekly two hour visits with the children, and the children would benefit from ongoing visitation. Denise wanted to be their guardian and should have discretion over visitation. Based on the assessment, it was determined that the case would not be transferred to the adoptions unit, as termination of parental rights would be detrimental to the children because (1) they were having regular and beneficial contact with father; and (2) the M.'s were unwilling to adopt.
In an addendum report, the social worker indicated some problems with father's visits, which Denise was supervising in her home. Denise told the social worker that while visits generally "went well," she was concerned with father's statements and behavior. Father was "cussing" and speaking in Spanish during visits, and told the M.'s what to say to the Agency, as he did not feel he did anything wrong. During one visit, Alfredo, an associate of father, dropped money off for him. Joseph identified Alfredo as one of father's friends who had been mean to him. During visits, Joseph told father he hated Alfredo because Alfredo had tried to hit him, but father denied that occurred and "just brushed it off." The Agency viewed this as further evidence that father was unable or unwilling to protect the children and continued to maintain relationships that were potentially hazardous to them.
Although the matter was set for a contested hearing, father's attorney, Karen Bucey, advised the juvenile court she had spoken with father and he was willing to submit, noting that the children were placed with his brother. Father signed and submitted a waiver of rights form as to jurisdiction, submitting on the record. The juvenile court questioned father about whether he had reviewed the form with his attorney, including his rights and possible consequences of submitting to jurisdiction, and father agreed that he understood all of that. The juvenile court dismissed the allegation under section 300, subdivision (g) as to father, and found the petition's remaining allegations true.
With respect to disposition, Bucey told the juvenile court she was going to set the matter for a contested hearing, as she had previous dealings with father since he had been her client before, he was closely bonded with the children, the subdivision (j) allegation concerning Destiny was quite old, and father had successfully reunified with the children just a few years earlier. Bucey, however, had a discussion with father and they decided it would be best for him to "do his services," as long as the court and the parties were willing to continue visitation at the same frequency. The juvenile court responded that it would not change the frequency of visitation. Bucey further explained that father needed to deal with his own issues. He was in drug court and, with a plan of guardianship, he would not lose his parental rights. Bucey anticipated filing a section 388 petition in the future, but she was going to submit on the recommendation because she thought it best for all parties.
The children's attorney also submitted on the recommendation. The attorney added that she was not opposed to continuing visitation, since the children had a relationship with father and it was important for them to have contact as long as father remained appropriate during visits. After the Agency also submitted, the juvenile court found the bypass provisions of section 361.5, subdivision (b)(10) and (11) would apply for both mother and father, and adopted the findings and orders. A section 366.26 hearing was set for May 10, 2016. Father's supervised visits were to continue twice weekly, with the social worker given discretion to increase them.
Subsequent references to dates are to dates in 2016 unless otherwise noted.
The section 366.26 report, dated April 22, recommended termination of parental rights and adoption by the M.'s as the permanent plan. The M.'s had apparently changed their minds and were now willing to adopt the children. An adoption assessment was completed on April 22, and the children were found to be adoptable. The social worker opined the children would not suffer significant emotional detriment if parental rights were terminated, the children were not very attached to their parents, and the children would not benefit from continuing their relationship with father.
The children did not have regular contact with their half-siblings, Manuel and Destiny, who were placed with an aunt, but the aunt did not object to contact. The social worker opined it was in the children's best interests to be adopted, as they were in need of a stable and permanent home. The children were thriving with the M.'s and had built a strong attachment to them. The M.'s had a strong commitment to the children and were clear in their desire to adopt. It appeared that the children were thriving due to the stability, involvement and well-structured environment of the M.'s. The social worker explained the responsibilities of adoption to the M.'s on February 24, which they understood. The Agency recommended that father's visits be terminated.
Joseph was receiving therapy from Central Children's Services. He was seen at Valley Children's Hospital's Spina Bifida Clinic. Joseph needed to be catheterized so his bladder could fully drain and required surgery to have a catheter permanently placed. Joseph was attending school and did not have an individualized educational plan. D.V. was healthy. Neither child was a regional center client.
The M.'s had been supervising father's visits, which took place at a local park or restaurant. According to the M.'s, visits went well, although father could be inappropriate by telling the children they would soon be returned to him. Sometimes father cried, which made the children cry. Father had attended 22 of 24 visits; he missed two visits because he was incarcerated.
On May 3, father filed a section 388 petition seeking family reunification services. Father alleged as changed circumstances his enrollment in a drug treatment program through drug court, random drug testing, and involvement in a parenting class. Father asserted that provision of services would be in the children's best interests because he loved the children very much, the children were bonded to him, and according to Thomas, he visited regularly and the children not only looked forward to visits, they wanted to return home. Attached to the petition was a one paragraph handwritten note signed with Thomas' name, which stated: "My brother Enrique, has been visiting regularly with his kids. They look forward to his visit. They also look like they wanna go back to him. Thank you very much!" The juvenile court set the petition for hearing on May 10.
The Agency filed a response, in which it asserted father had not made enough progress in his two-year drug court program or maintained sobriety for a substantial period to show circumstances had changed. The Agency also asserted it was not in the children's best interests to provide father services, as the M.'s were ensuring the children's medical, physical, and emotional needs were being met.
At the May 10 hearing, Bucey informed the juvenile court that father had given her a more detailed letter from the care provider in support of father, which she would be submitting to the court. She asked the court to set a contested hearing on both the petition and permanency planning. She also asked the Agency to discuss with the M.'s the option of legal guardianship in lieu of adoption.
Father subsequently filed two addenda to the petition: (1) the first included a two-page hand printed letter with a cursive signature of Thomas that discussed the relationship and bond between father and the children in glowing terms; and (2) the second was a hand printed letter with the same cursive signature of Thomas, which stated he no longer wanted to adopt the children and instead wanted father to get the children back.
The Agency filed responses to the addenda. The social worker spoke with Denise on May 11, who stated she and Thomas wanted to adopt the children. Denise denied writing a letter supporting father's section 388 petition or changing the permanent plan of adoption to legal guardianship, and she was doubtful Thomas could write such a letter due to his limited reading and writing skills. Denise said father may have written the letter himself and had Thomas sign it, or wrote the letter and had Thomas copy and sign it. According to Denise, father intimidated Thomas and this type of behavior had been going on for many years. Moreover, father was demanding about where and when visits took place, and threatened to take the children away from them if a situation did not go his way.
The social worker spoke with Thomas on May 13. Thomas confirmed he remained interested in adopting the children. When asked if wrote a letter in support of father, Thomas responded that he had less than a seventh grade reading and writing ability. Thomas said father wrote a letter and had him sign it, but he did not know what he was signing due to his limited reading skills.
The social worker contacted Denise again on May 24, and read her the letter allegedly written by Thomas indicating he was not in favor of adoption. Denise said that Thomas could not have written the letter, as he would not have been able to spell most of the words in it. Denise said that father is deceitful and would try anything to get the children back. The social worker called Thomas, but was unable to reach him.
At the May 26 hearing, Bucey made an offer of proof in support of the section 388 petition, which County counsel accepted, that father would testify he wrote the letters in question and read them to Thomas, who then signed them. Bucey acknowledged father's circumstances were changing, rather than changed, and he understood he had "quite a ways to go[,]" but asserted there was no question about the bond between father and the children. County counsel argued the letters were not relevant or credible evidence because father manufactured them to support his petition. County counsel asserted there were sufficient grounds to deny the petition since Bucey admitted father's circumstances had not changed, and it was not in the children's best interest to destabilize their placement.
The juvenile court denied the petition, as there was no basis for it to find changed circumstances. Further, it was not in the children's best interest to grant the petition; while the court did not doubt father had a bond with the children and loved them, the children's current situation was much better than when they were detained. At the request of the children's attorney, the section 366.26 hearing was continued so she could speak to the children about adoption.
Father was present on June 7 at the continued section 366.26 hearing with his attorney, Bucey. The children's attorney informed the court she was able to speak with the children and was ready to proceed. Bucey asked the juvenile court: "Your Honor, may I just have one minute with my client? I spoke with him earlier, but . . . " The court gave her time to speak with father. After speaking with father, Bucey stated: "Your Honor, I've spoken to my client many times about this case, before the 388 and after the 388 was denied, and spoken to Ms. Hernandez who has worked with my client before the filing of the case, and she since worked with my client through the Family Crisis Center. And I've been in contact with her several times over the last couple of weeks. I've spoken with my client several times and even today back and forth, but at this time, we're going to withdraw the contest."
The children's attorney argued that while the children enjoyed visits and cared for father, they deserved and desired permanency. Joseph was clear he wanted the security and permanency of adoption by the M.'s, who clearly loved the children. Even though Joseph worried about father, Joseph's choice as a seven-year-old was to have the permanency of adoption. Joseph wanted to have continued contact and a relationship with father, but the focus of the hearing was on permanency and it was in the children's best interest to terminate parental rights and allow the M.'s to adopt them. The children's attorney cautioned that visits with father would be under the M.'s rules and guidelines. The children's attorney thought it was clear that the children were adoptable and asked the court to follow the Agency's recommendation and terminate parental rights. County counsel joined in the children's attorney's arguments and asked the court to follow the Agency's recommendation, as the children were adoptable, no exception to adoption applied, and there was no compelling reason not to terminate parental rights. Moreover, the children, even at their young ages, understood and wanted stability.
The juvenile court stated this was both a good and an unfortunate situation. It was good in that the M.'s cared for the children, who were doing well with them, and the M.'s were willing to work with father, although it would be up to them to use their discretion and judgment with respect to visits and contact with father. The juvenile court added that they would have the authority with respect to future visits. The juvenile court believed the children were adoptable and it was in their best interests to pursue adoption as the permanent plan. Accordingly, it adopted the recommended findings and orders, and terminated parental rights.
Bucey commented that, while it had nothing to do with the hearing, father appreciated the M.'s willingness to allow him visits while he continued his programs. The juvenile court responded that was extremely important because the frequency of visits and whether the M.'s allowed them at all depended on father's progress. Bucey stated she had explained that to father.
DISCUSSION
Father contends the juvenile court violated his due process rights by not advising him of the consequences of submitting on the Agency's recommendations. He claims the juvenile court should have told him that, upon terminating his parental rights, there was no guarantee that (1) he would continue to receive visitation or that he would see his children again; and (2) his children would be adopted by the M.'s or any other relative. As a consequence, father argues, he did not provide a voluntary, knowing and intelligent waiver of his right to a contested section 366.26 hearing. Father claims this error was not harmless beyond a reasonable doubt.
A parent's fundamental right to the care and custody of his or her child is protected by due process guarantees. (In re Valerie A. (2007) 152 Cal.App.4th 987, 1006; In re Henry V. (2004) 119 Cal.App.4th 522, 525.) Among a parent's due process rights are the right to a trial on the issues raised by the dependency petition, the right to assert the privilege against self-incrimination, the right to confront and cross-examine witnesses and the right to compel the attendance of witnesses. (In re Monique T. (1992) 2 Cal.App.4th 1372, 1376-1377; In re Malinda S. (1990) 51 Cal.3d 368, 383-384.) A parent must be advised of these rights at the initial stages of the proceedings. (Cal. Rules of Court, rules 5.534(g) & 5.682(b); In re Patricia T. (2001) 91 Cal.App.4th 400, 404 (Patricia T.) [discussing waiver of rights under former rule 1449]; In re Joshua G. (2005) 129 Cal.App.4th 189, 200 (Joshua G.) [rules requiring advisal of parent's trial rights apply only at jurisdiction hearing].)
Rule references are to the California Rules of Court.
At the jurisdiction hearing, a parent has the option of waiving these due process rights by: (1) admitting the allegations of the petition; (2) pleading no contest; or (3) submitting the matter to the juvenile court, without a further hearing, based on the information before it. (Rule 5.682(e).) Before the juvenile court can accept a parent's admission of the allegations, it must find and state on the record that it is satisfied the parent understands the nature of the allegations and the direct consequences of the admission, and understands and waives his or her due process rights. (Rule 5.682(b).) After admission, plea of no contest, or submission, the juvenile court must make findings that the parent has knowingly and intelligently waived the right to a trial, the right to assert the privilege against self-incrimination, the right to confront and cross-examine adverse witnesses, and the right to compel the attendance of witnesses. (Rule 5.682(e)(3); Joshua G., supra, 129 Cal.App.4th at p. 200.)
The requirement of a knowing, intelligent and voluntary waiver also applies when a parent states he or she is not interested in reunifying with the child. (§ 361.5, subd. (b)(14).) A parent who does not want to receive reunification services must be represented by counsel and execute a waiver of services form. (Ibid.) The court must advise the parent "of any right to services and of the possible consequences of a waiver of services, including the termination of parental rights and placement of the child for adoption. The court shall not accept the waiver of services unless it states on the record its finding that the parent . . . has knowingly and intelligently waived the right to services." (Ibid.)
In contrast to the requirements of advisal at the jurisdiction hearing and at the time a parent elects to waive reunification services, there is no statutory provision or court rule that requires the juvenile court to advise a parent of his or her right to a contested hearing under section 366.26 or the possible consequences of waiving that right. Nor is there any statute or rule requiring the court to determine whether the parent's choice to waive the right to a contested hearing under section 366.26 was knowing, intelligent and voluntary. (See Joshua G., supra, 129 Cal.App.4th at p. 200 [there is no authority requiring juvenile court to determine whether parent's choice to submit at a referral hearing was knowing and voluntary; rules requiring advisal of parent's trial rights apply only at jurisdiction hearing].)
There is a requirement that notice be sent to the parent informing him or her of the right to appear and be represented by counsel at the section 366.26 hearing. (§ 294, subd. (e).)
Similarly, rule 5.725, which sets out the procedure the juvenile court must use when conducting a section 366.26 selection and implementation hearing, does not require the court to verify that a parent's waiver of the right to a contested hearing was knowing, intelligent and voluntary; it only requires the court to advise the parties of their right to appeal the judgment. (Rule 5.725(h).) Had the Legislature or Judicial Council wanted to specify a duty for the court to ensure a knowing, intelligent and voluntary waiver of the right to a contested selection and implementation hearing, it knew how to do so. (See § 361.5, subd. (b)(14); rule 5.682(b) & (e)(3); In re C.H. (2011) 53 Cal.4th 94, 107 [Legislature knew how to make juvenile sex offense an alternative basis for applicability of statutory provision and chose to use different language].) The omission of a requirement in section 366.26 that the parent knowingly and intelligently waive the right to a contested hearing indicates the Legislature intended to afford parents different protections at different stages of dependency proceedings. (See In re Marquis D. (1995) 38 Cal.App.4th 1813, 1827 [if a statute on a particular subject omits a particular provision, inclusion of that provision in another related statute indicates an intent the provision is not applicable to the statute from which it was omitted].)
Father's contentions do not concern the adequacy of the advisements he received at earlier stages of the proceedings. Father cites no authority, and we have found none, to support his argument the juvenile court was required to explain his right to a contested hearing under section 366.26 or make an express finding as to whether his choice to waive that right was knowingly, intelligently and voluntarily made. (Patricia T., supra, 91 Cal.App.4th at p. 406 [no error occurred when court took waiver of rights despite mother's claim she did not understand her waiver of contested disposition hearing would result in denial of reunification services].)
Father acknowledges there is no case law, rule, or statutory authority that requires the juvenile court to give an advisement of rights when a parent waives the right to a contested section 366.26 hearing. He nevertheless argues the juvenile court had an obligation to determine that his waiver was knowing, intelligent and voluntary under general due process principles. In support, he relies on Tyler v. Children's Home Society (1994) 29 Cal.App.4th 511, in which the court explained that, while parenting is a fundamental right and parental rights cannot be terminated except according to procedures that satisfy due process, "constitutional rights to a parent-child relationship may be waived a long as the waivers are 'voluntary [citations] and knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.' " (Id. at pp. 545-546.)
Even if the juvenile court was required to ensure a knowing, intelligent and voluntary waiver of father's right to a contested section 366.26 hearing, there is nothing in the record to indicate that father's waiver was not knowingly and voluntarily made. Father was represented by counsel throughout the proceedings. He had previously made knowing, intelligent and voluntary waivers of his rights at the jurisdiction hearings in both this proceeding and the prior dependency case. Father was present at the section 366.26 hearing when his attorney was given a break in the proceedings so she could consult with him and, after that consultation, told the juvenile court she had spoken with father many times about the case and they were going to withdraw the contest. Presumably father's attorney explained to him that by withdrawing the contest, the likely outcome would be termination of his parental rights and that visitation or a continued relationship with his children was not guaranteed. If there was any doubt on this point, it was made clear when the juvenile court explained the M.'s controlled whether visitation would occur.
While father claims he should have been advised that there was no guarantee the M.'s would adopt the children, father did not forego the procedural right of a contested hearing on the assurance of a particular outcome in the proceedings. Indeed, he did not have the right to condition his waiver on a guarantee that the M.'s would adopt the children. (In re David H. (1995) 33 Cal.App.4th 368, 380 [parents whose parental rights are terminated do not have the right to choose an adoptive home for the child].) It was up to counsel, not the court, to explain to father he was taking the calculated risk of having his parental rights terminated without any guarantee that the M.'s ultimately would adopt the children.
In sum, the juvenile court's failure to explicitly warn him of the possible consequences of submitting on the Agency's reports at the section 366.26 hearing did not constitute a due process violation. (See In re S.G. (2003) 112 Cal.App.4th 1254, 1258.)
In light of our conclusion there was no error, we need not address whether there was prejudice. --------
DISPOSITION
The juvenile court's June 7, 2016 order is affirmed.
/s/_________
GOMES, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
FRANSON, J.