Opinion
D073560
06-29-2018
In re A.S., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. C.S., Defendant and Appellant.
Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Lisa Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. EJ3633A) APPEAL from orders of the Superior Court of San Diego County, Kimberlee A. Lagotta, Judge. Affirmed. Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Lisa Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
C.S. (Father) seeks reversal of the juvenile court's orders at a postpermanency planning review hearing regarding his daughter A.S. because he did not receive written notice of the hearing or a copy of the status review report in advance of the hearing. Respondent San Diego County Health and Human Services (the Agency) acknowledges it erred when it failed to provide written notice of the hearing or provide a copy of its status report in advance, but contends the error is harmless. We find this statutory notice violation to be harmless error, and we affirm.
BACKGROUND
On January 4, 2013, the Agency filed a petition under Welfare and Institutions Code section 300, subdivision (b), for minor A.S.'s removal from her parents' home following a domestic disturbance, which A.S. witnessed. The court found jurisdiction and that C.S. is A.S.'s presumed father. It also ordered reunification services and supervised visitation for the parents. The court further ordered Father to complete the Indian Child Welfare Act ICWA-30 form and for the Agency to notice the appropriate tribes.
All further statutory references are to the Welfare and Institutions Code.
In March 2013, the court declared A.S. a dependent under section 360, subdivision (d) and removed her under section 361, subdivision (c). At the dispositional hearing, the court found A.S. to be a dependent and continued her placement with a relative; the court also ordered reunification services. At the six-month review hearing, the court concluded the ICWA did not apply and continued placement with the relative. The court also found parents made progress on their reunification services. Over the next six months, A.S.'s parents continued to make substantive progress on their case plans. At the 18-month review hearing in August 2014, the court found conditions existed to justify its continued jurisdiction, but that parents had made substantive progress. It ordered A.S. placed back with her parents.
In January 2015, the family court issued a temporary restraining order against Father as the result of a domestic violence incident that occurred while he was inebriated. In February, the Agency filed a section 387 petition alleging additional domestic violence and alcohol abuse by the father. At the detention hearing, the dependency court issued a permanent restraining order and maintained A.S.'s placement in Mother's home on the condition Mother follow the terms of the restraining order against Father, which included no contact between the parents and no contact between Father and A.S. outside of supervised visits. Father stated he had new ICWA information, and the Agency sent notices under the ICWA. At the subsequent contested adjudication and disposition hearing in April, the court confirmed its removal of A.S. from her father's custody under section 361, subdivision (c)(1) for concerns over her well-being.
Over the next year, the parents continued to make progress on their case plans. In June 2015, the court ordered unsupervised, separate visitations after considering section 388 petitions filed by each parent. The ICWA notifications were completed as of April 2015, at which time the court found the ICWA did not apply. In January 2016, the court modified the restraining order to permit peaceful contact between the parents, but no contact in front of A.S. outside of scheduled school and medical appointments. It also ordered Father to follow his case plan, attend AA, and attend a domestic violence class. Still, Father routinely visited the family and even slept at home. As a result, in May 2016, the court ordered A.S. removed from the home.
In June 2016, Father submitted new documentation regarding A.S.'s Indian heritage, and in December 2016, the court found A.S. to be an Indian child through the Mesa Grande tribe. At the contested adjudication and disposition hearing in February 2017, after finding the parents had received more than 18 months of reunification services, the court ordered the parents' reunification services terminated and set a section 366.26 hearing for June 2017. That same month, notices regarding the hearing to terminate parental rights and implement an adoption plan were sent to the various parties and representatives.
The court continued the matter of Indian heritage beyond 60 days because the Mesa Grande tribe had requested additional information to verify A.S.'s status.
In June 2017, the Agency and A.S.'s court-appointed special advocate recommended termination of parental rights and adoption as the permanent plan. The Agency noted A.S. was in her seventh placement and expressed concern Father had not addressed issues of alcohol misuse and domestic violence, continuing to deny any alcohol-related problems. The court continued the June 5, 2017 hearing because the tribe changed its position from supporting a traditional adoption to preferring a tribal customary adoption. On June 20, 2017, the Mesa Grande tribe recommended a permanent plan of a tribal customary adoption with the current foster parents, which the Agency supported.
On July 31, 2017, the court held a contested section 366.26 hearing at which it addressed the issues of adoptability and parental involvement in the tribal decision to recommend tribal customary adoption. All parties were present. The court ordered a permanent plan of tribal customary adoption and awarded full faith and credit to the tribal customary adoption order presented at the hearing.
Father appealed the outcome of the July 31, 2017 hearing. We dismissed this appeal after Father filed a brief indicating there were no arguable errors identified.
The tribal customary adoption order stated A.S. "shall now be considered the legal child of the TCA [tribal customary adoption] Parents." It modified Father's parental rights, identifying him as a birth parent, then stating, "The Birth Parents shall no longer be physically, legally, or financially responsible for the child. All such responsibilities are hereby transferred to the TCA Parents." It also identified the nature of the continuing relationship between Father and A.S. by stating, "The Birth Father may have contact with the Minor at the discretion of Tribal Customary Adoptive (TCA) parents. . . . [A]ny contact between Birth Father and Minor may be reduced or terminated at any time by the TCA Parents should such contact become detrimental to the Minor." The adoption order was signed by the tribal council and the tribal customary adoptive parents.
The court set a six-month postpermanency plan review hearing for January 25, 2018, stating, "All parties are on notice and ordered to return."
Prior to the postpermanency plan review hearing, the Agency filed a status review report, which the parents did not receive in advance of the hearing. It stated, "All parties have been properly noticed for this hearing." The Agency recommended the court continue to order tribal customary adoption as the permanent plan for A.S.
At the morning hearing, Father, who was present and represented by counsel, objected because he did not receive written notice regarding the hearing or a copy of the Agency's recommendation. The court trailed the hearing to the afternoon. The court also considered continuing the hearing to "make sure that the notice issue has been addressed properly," but noted it had ordered Father to be present for the hearing, and there was no change in the Agency's recommendation from the previous hearing (in July 2017). The court determined notice was given as required by law.
During the hearing, Father expressed concern he had not visited with A.S. during the preceding six months. The court considered his concerns regarding visitation and identified the social worker Father could speak with regarding facilitating visitation consistent with the tribal customary adoption order. The court also explained it retained jurisdiction for the purpose of finalizing the adoption, but had given full faith and credit to the tribal adoption order, which dictated the terms of visitation.
The court adopted the recommendations attached to the January 25, 2018 status review report, which were to continue A.S. as a dependent and to continue tribal customary adoption as the permanent plan. Father filed a timely notice of appeal.
DISCUSSION
A. Legal Principles
1. Tribal Customary Adoption
Initially, the statutory goals and preferences for dependent children require family preservation as a first priority. (In re Heather B. (1992) 9 Cal.App.4th 535, 541.) However, there is a "legislative policy determination that reunification services should be 'time-limited' in favor of permanency planning at the earliest appropriate time." (Ibid.) When reunification efforts fail, "the court must terminate reunification efforts and set the matter for a hearing pursuant to section 366.26 for the selection and implementation of a permanent plan." (In re Celine R. (2003) 31 Cal.4th 45, 52.) At that point, the focus becomes the best interest of the child, with the goal of protecting a child's right to a stable, permanent home in which the caretaker can make a full emotional commitment to the child. (In re Sadie S. (2015) 241 Cal.App.4th 1289, 1303); In re H.R. (2012) 208 Cal.App.4th 751, 759 (H.R.).) The general statutory preference is termination of parental rights and placement for adoption (§ 366.26, subd. (b)(1)), but "[i]n 2010, legislation was enacted establishing 'tribal customary adoption' as an alternative permanent plan for a dependent Indian child who cannot be reunited with his or her parents. Tribal customary adoption is intended to provide an Indian child with the same stability and permanency as traditional adoption under state law without the termination of parental rights, which is contrary to the cultural beliefs of many Native American tribes." (H.R., at p. 755; § 366.24, subd. (a) [adoption through custom, traditions, or law of an Indian child's tribe does not require termination of parental rights].) When a tribal customary adoption has been selected as the permanent plan, "the court, upon receiving the tribal customary adoption order will afford the tribal customary adoption order full faith and credit to the same extent that the court would afford full faith and credit to the public acts, records, judicial proceedings, and judgments of any other entity." (§§ 366.26, subd. (e)(2); 366.24, subd. (c)(6).)
2. Statutory Notice Requirements
The state has an interest in an accurate and just decision, which is ensured in part by giving parents notice at each step of a proceeding until parental rights are terminated. (In re DeJohn B. (2000) 84 Cal.App.4th 100, 106 (DeJohn B.).) In juvenile dependency cases, due process safeguards are afforded to parents because the termination of parental rights regard a basic civil right of parents. (In re James F. (2008) 42 Cal.4th 901, 904 (James F.).) " '[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." [Citations.]'." (DeJohn B., at p. 106.)
Prior to termination of parental rights, notice of postpermanency hearings is statutorily prescribed. (§§ 295, subd. (a)(1), (2); § 366.3, subds. (a) & (f).) Mothers and presumed fathers must be served with notice of the hearing not more than 30 days before the hearing and not less than 15 days before the hearing. (§ 295, subd. (c).) The notice must contain information regarding the nature of the hearing and any recommended change in custody or status of the child, and for an Indian child, it must be served by registered mail, return receipt requested. (§ 295, subds. (d) & (e).)
Additional notice requirements exist pursuant to section 224.2 regarding notice to the minor's parents or legal guardian, the Indian custodian, and the minor's tribe, which are not relevant to this appeal. (See §§ 224.2; 295, subd. (g).)
The failure to provide proper notice can violate a constitutional right to due process because parents must have an opportunity to be heard before they are denied the "care, custody, and companionship of their children. [Citation.]" (County of Orange v. Carl D. (1999) 76 Cal.App.4th 429, 439.) Notice errors have been held to constitute harmless trial errors or structural errors. (See Judith P. v. Superior Court (2002) 102 Cal.App.4th 535, 554.) Generally, a structural error is one that "def[ies] analysis by 'harmless error' standards." (James F., supra, 42 Cal.4th at p. 917, quoting Arizona v. Fulminante (1991) 499 U.S. 279, 309.) Thus, "[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." (James F., at p. 918.)
Cases finding structural errors have common characteristics: they address the termination or permanent reduction of parental rights in hearings unattended by the parent after the parent failed to receive notice. (DeJohn B., supra, 84 Cal.App.4th at pp. 104, 107, 109 [violation of due process when agency did not provide mother any notice of hearing where reunification services were terminated without the mother's participation]; In re Jasmine G. (2005) 127 Cal.App.4th 1109, 1116-1117 [no attempt to give notice of a selection and implementation hearing]; but see In re Daniel S. (2004) 115 Cal.App.4th 903, 910, 912 [harmless error where agency sent mother notice of jurisdictional and dispositional hearing to wrong location, knowing mother was in different location because "[e]rrors in notice do not automatically require reversal"].) In contrast, courts have found due process satisfied when a parent who received an original notice is present in court at a section 366.26 hearing when the court continues the hearing date without new notice. (In re Angela C. (2002) 99 Cal.App.4th 389, 392-393.) Courts have also held due process to be satisfied when parents have been provided actual notice of a continued section 366.26 hearing. (In re Phillip F. (2000) 78 Cal.App.4th 250, 258.)
B. The Statutory Notice Violation Was Not a Structural Error
Father argues the failure to notice dependency hearings is a structural error, making findings and orders made at the hearing reversible per se. The Agency argues structural error should never apply in dependency cases. We need not and do not decide the propriety of applying structural error analysis in the dependency context because here the error is clearly harmless.
Though Father did not receive written notice as outlined by statute, this case is distinguishable from the line of cases where structural defects were found because it regards a parent who received actual notice, participated in the hearing, and whose parental rights were not at stake. Father received actual notice of the postpermanency planning hearing during the previous hearing when the court ordered his appearance, he attended the hearing, and he was represented by counsel. His attorney raised his concerns about visitation directly with the court. The hearing did not regard the termination or reduction of his parental rights; it occurred well after the termination of reunification services, and parental rights are not terminated under a tribal customary adoption. (See H.R., supra, 208 Cal.App.4th at p. 755.) Additionally, there was no change in recommendation from the previous order, and, like parents at continued section 366.26 hearings, Father had actual notice of the hearing date and time. Thus, Father was apprised of the pendency of the action and he had an opportunity to present objections. (See DeJohn B., supra, 84 Cal.App.4th at p. 106.)
Father also contends the failure to receive a copy of the Agency's written report in advance of the hearing constituted a structural error because he was afforded less than the statutorily-mandated minimum time to prepare for the postpermanency hearing. During reunification, a parent is entitled to a copy of the report before the hearing. (Judith P. v. Superior Court, supra, 102 Cal.App.4th at pp. 556-557.) However, nothing in the statutory scheme addressing postpermanency plan review hearings entitles parents to advance copies of reports prepared for the hearings. (§ 295; Cal. Rules of Court, rule 5.740.) Because the order at issue here concerned a postpermanency plan review hearing, Father was not entitled to the report in advance, so not receiving it does not form the basis for structural error. Even if Father were entitled to an advanced copy of the Agency's report, receiving it at the hearing did not prejudice him because the court trailed the hearing to the afternoon, providing Father time to confer with his attorney regarding any concerns the report may have raised. Additionally, the report did not recommend any changes or modifications in A.S.'s placement or plan.
Father did not argue at the time of the hearing that he needed additional time to prepare any sort of response to the written status review report.
Having concluded this matter does not warrant automatic reversal resulting from a structural error, we turn now to evaluate whether lack of notice as required by statute constituted harmless error.
C. Lack of Written Notice was Harmless Error
To determine whether the lack of written notice constitutes harmless error, we consider whether Father suffered any prejudice as a result of the error. (See James F., supra, 42 Cal.4th at p. 916.) Whether an error undermines the integrity of a proceeding depends on the use of "fair procedures to achieve a just result." (Id. at p. 918.) Prejudice exists when a parent is stripped of participation in the action because he is not able to "express his wishes to the court," "lack[s] actual notice of the proceedings as they unfold [ ]," or his attorney "fail[s] to properly advocate for his parental interests." (Id. at p. 917.) "If 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." (Id. at p. 918; see In re Esmeralda S. (2008) 165 Cal.App.4th 84, 93 (Esmeralda S.) [hearing unaffected by violation is harmless error].) This is supported by the "strong public interest in prompt resolution of these cases so that the children may receive loving and secure home environments as soon as reasonably possible." (James F., at p. 918.)
The Supreme Court declined to determine whether the correct harmless error standard of review for a constitutional error is harmless beyond a reasonable doubt or harmless by clear and convincing evidence. (James F., supra, 42 Cal.4th at p. 911, fn. 1.) Accordingly, we opt to apply the harmless beyond a reasonable doubt standard of review, which is a more cautious approach than perhaps is required. (Esmeralda S., supra, 165 Cal.App.4th 84, 94.) To evaluate whether the father was prejudiced by the lack of statutory notice at the postpermanency hearing, we focus on whether the outcome of the proceeding was affected by the violation. (Ibid.)
Father contends the lack of formal notice prevented him from participation in the hearing because receiving written notice would have permitted him to set the visitation issue for contest, citing In re Kelly D. (2000) 82 Cal.App.4th 433, 438 (Kelly D.). However, Kelly D. is not applicable here.
Kelly D. involved a minor placed in long-term foster care. (Kelly D., supra, 82 Cal.App.4th at p. 435.) In its postpermanency plan review status report, the agency recommended no changes, but then at the hearing changed its recommendation to a reduction in the frequency of visitation. (Id. at p. 436.) The court concluded a notice violation had occurred because subdivision (e) of section 366.3 entitles a parent of a minor in long-term foster care to receive notice of any "proposed departmental modifications to existing juvenile court orders," and the parent had not received notice of the proposed modification in visitation. (Kelly D., at p. 438.) It also concluded there was a notice violation because section 366.3, subdivision (e) permits parents to "challenge departmental proposals and proposed court modifications," and the parent did not have an opportunity to challenge the proposed change in visitation. (Kelly D., at p. 438.) But A.S. is not in long-term foster care; she was placed with a family for a tribal customary adoption. Additionally, the Agency did not recommend any modifications to the juvenile court orders, either in its report or at the hearing. In Kelly D., no section 366.26 hearing had been set, while here the section 366.26 hearing had been completed, and an adoptive home had been identified for A.S. Additionally, unlike the minor in Kelly D., A.S. is an Indian child, subject to a tribal customary adoption plan, which granted to the tribal adoptive parents total discretion in decisionmaking regarding visitation. Because the customary tribal adoption order was afforded full faith and credit at the hearing six months earlier, a challenge to visitation orders was beyond the jurisdiction of the juvenile court, which maintained jurisdiction to expedite adoption finalization. (§ 366.3, subd. (a); Cal. Rules of Court., rule 5.740(a).) Lack of written notice also did not prevent father from raising visitation concerns. His concerns were raised during the hearing, and the court considered and addressed those concerns.
Father further contends he could have requested additional reunification services, pursuant to section 366.3, subdivision (f). Once a permanent plan is selected, if the court maintains jurisdiction, it must conduct periodic reviews under the requirements set forth in section 366.3. (In re Marilyn H. (1993) 5 Cal.4th 295, 305 (Marilyn H.).) The presumption in these reviews is to continue the permanency plan placement. (§ 366.3, subd. (a).) However, section 366.3, subdivision (f) also permits a parent to "prove changed circumstances pursuant to section 388 to revive the reunification issue. Section 388 provides the 'escape mechanism' . . . to allow the court to consider new information." (Marilyn H., at p. 309.) The Agency argues section 366.3, subdivision (f) is inapplicable to an Indian child, and the situation requires application of subdivision (g) instead.
Regardless, the record does not indicate Father offered any evidence, nor that there was change of circumstances, to suggest reunification was in A.S.'s best interest. Father did not file a section 388 petition to change, modify or set aside the order terminating reunification services, which he could have done even in the absence of written notice because he had actual notice. (§ 388, subd. (a).) And Father did not raise the issue of reunification at the hearing. Even had the father done these things, because full faith and credit had been granted previously to the tribal customary adoption order, the juvenile court was bound to enforce the terms of the adoption order. (§ 366.26, subd. (e)(2).)
Given Father's inability to demonstrate how this hearing could have resulted in a different outcome had he received written notice, he cannot demonstrate prejudice. Accordingly, we find the error harmless.
DISPOSITION
The orders are affirmed.
IRION, J. WE CONCUR: McCONNELL, P. J. BENKE, J.