In re S.A. CA4/2 ( 2015 )

Filed 4/10/15 In re S.A. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re S.A., a Person Coming Under the
Juvenile Court Law.
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, E061583
Plaintiff and Respondent,
v. (Super.Ct.No. J253275)
B.A.,
Defendant and Appellant. OPINION
In re S.A., a Person Coming Under the
Juvenile Court Law.
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, E061906
Plaintiff and Respondent,
v.
K.D.,
Defendant and Appellant.
In re S.A., a Person Coming Under the
Juvenile Court Law.
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, E062123
Plaintiff and Respondent,
v.
B.A. et al.,
Defendants and Appellants.
1
APPEAL from the Superior Court of San Bernardino County. Lily L. Sinfield and
Lynn M. Poncin, Judges. Affirmed.
Grace Clark, under appointment by the Court of Appeal, for Defendant and
Appellant B.A.
Liana Serobian, under appointment by the Court of Appeal, for Defendant and
Appellant R.C.
Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and
Appellant K.D.
Jean-Rene Basle, County Counsel, Dawn M. Messer, Deputy County Counsel, for
Plaintiff and Respondent.
INTRODUCTION
In these appeals,1 the biological parents of S.A. and his paternal grandmother
challenge various orders of the juvenile court. In case Nos. E061583 and E061906,
father contends the juvenile court abused its discretion by denying father’s petition under
Welfare and Institutions Code2 section 388, without conducting an evidentiary hearing on
father’s request that S.A. be placed in his custody, and both father and paternal
1 By order dated November 3, 2014, we consolidated the appeals in case Nos.
E061583 and E061906. On March 10, 2015, we consolidated the appeal in E062123 with
the other two cases. The appeals were consolidated for purposes of briefing, oral
argument and decision only. Case No. E061583 is designated the master file.
2Unless otherwise indicated, all undesignated statutory references are to the
Welfare and Institutions Code.
2
grandmother contend the county social worker did not assess paternal grandmother for
placement and the juvenile court erred by not applying the relative placement preference
found in section 361.3. Finally, in case No. E062123, mother (joined by father)
challenges the order terminating her parental rights to S.A. on the ground she was not
transported from state prison for the Welfare and Institutions Code section 366.26
hearing, in violation of her rights under Penal Code section 2625.
We conclude the juvenile court did not abuse its discretion by denying father’s
modification petition. Although father made a prima facie showing of changed
circumstances, he did not show that placing S.A. in father’s or paternal grandmother’s
custody would be in S.A.’s best interest. With respect to paternal grandmother, we
conclude paternal grandmother was properly assessed and the juvenile court was not
required to apply the relative placement preference. Also, even if the juvenile court
erred, the error was harmless because father and paternal grandmother did not show that
the placement of S.A. with grandmother was in S.A.’s best interest. Finally, although
mother had a statutory right to be present at the section 366.26 hearing, termination of
mother’s parental rights in her absence was harmless because mother’s testimony at the
hearing would not have changed the result.
3
I.
FACTS AND PROCEDURAL BACKGROUND
Detention
While in pretrial detention in county jail, mother was transported to a local
hospital and gave birth to S.A. Two days later, San Bernardino County Children and
Family Services (CFS) received a referral from the hospital alleging mother’s incapacity
to care for S.A. because mother had been returned to county jail and signed an
authorization to release the child to CFS. It was also reported that father’s whereabouts
were unknown. The reporting party told a social worker with CFS that mother agreed to
release S.A. to CFS or to S.A.’s paternal grandmother, but the form she signed only
authorized his release to CFS. The reporting party also said that, when first contacted,
paternal grandmother indicated she did not want to take S.A. but, later,3 changed her
mind and called to say she did want to take the child. Father had also called the hospital
requesting that S.A. be released to him, but his request was denied because mother had
only authorized release to CFS
When interviewed over the telephone, paternal grandmother admitted she initially
told someone at the hospital that she did not want S.A., but then changed her mind after
she learned S.A. was named a “Jr.” Paternal grandmother denied having a criminal
record, but reported that her children were taken from her and later returned to her after
3 The reporting party indicated that paternal grandmother called back “a few
hours later,” but paternal grandmother told the social worker that she called back “about
an hour and a half later.”
4
she went to “rehab.” The social worker tried unsuccessfully to contact father using the
telephone number given to her by the reporting party. Paternal grandmother told the
social worker she had no way of contacting father other than going to the home of
father’s other child or looking for him on the streets, that father calls her using different
telephone numbers each time, and that he was somewhere in Barstow. After conducting
a risk assessment meeting, CFS concluded S.A. had no appropriate caregiver, and the
child was placed in the custody of a foster family.
CFS filed a petition alleging S.A. was a dependent child under section 300,
subdivisions (b), (g), and (j). CFS recommended that S.A. be removed from mother’s
custody and placed in a foster home. Mother did not appear at the detention hearing, so
the juvenile court continued the hearing and ordered that mother be transported from
county jail. Mother appeared at the continued detention hearing, entered a denial of the
allegations, and submitted on the issue of detention. The juvenile court adopted CFS’s
recommendations, ordered that S.A. be detained in the custody of CFS, and ordered that
mother by transported for the jurisdictional and dispositional hearing.
Jurisdictional and Dispositional Hearing
In a report prepared for the jurisdictional hearing, CFS reported that father’s
whereabouts were still unknown. CFS also reported that while paternal grandmother was
in the process of being assessed for relative placement, she called CFS “stating she no
longer wanted placement and she would be unable to care for [S.A.]” CFS recommended
that S.A.’s placement with the foster family be continued, that the juvenile court declare
S.A. to be a dependent, and that the juvenile court set a hearing pursuant to section
5
366.26 to determine a permanent plan for S.A. with the goal of adoption. Mother did not
appear for the jurisdictional hearing because she had been transferred from local custody
to state prison, so the juvenile court continued the hearing. Mother did not appear at the
continued jurisdictional hearing, and the juvenile court once again ordered that she be
transported. The juvenile court also granted a request from counsel for CFS that the
minutes of mother’s criminal case and prison sentence be attached to its dispositional
report.
Mother appeared for the continued jurisdictional hearing. Her attorney objected to
the allegations in the petition, but offered no affirmative evidence. Counsel also asked
the court to consider relative placement with mother’s cousin. The juvenile court
declared S.A. to be a dependent of the court, ordered him removed from mother and to
remain in the care of his foster family, ordered that mother receive no family
reunification services, set a hearing pursuant to section 366.26 to determine a permanent
plan, and directed CFS to conduct an adoption assessment. The juvenile court stated on
the record that mother would be transported for the hearing.
Father’s Section 388 Petition
Father made an appearance in this dependency case after the jurisdictional hearing
and filed a modification petition under section 388. Father did not indicate which order
of the juvenile court he wanted modified, but informed the juvenile court that he was
almost certain S.A. was his biological son and that he wanted S.A. to be placed in his
custody. The juvenile court set the petition for a nonevidentiary hearing and authorized
CFS to conduct paternity testing. In a report prepared for the hearing on father’s petition,
6
CFS reported that, if a paternity test established that S.A. was father’s son, father
requested the child be placed with paternal grandmother. Father did not request family
reunification services, and CFS recommended that, until paternity testing was completed,
father remain the alleged father. At the hearing on father’s petition, father’s attorney
denied the allegations in the section 300 petition, submitted on the detention order, and
requested that paternal grandmother be assessed for placement if the paternity test
established S.A. was father’s biological son. The court continued the hearing until the
result of the paternity test was received. The test result subsequently came back positive.
At the continued hearing, father’s attorney explained to the juvenile court that
father’s petition did not ask that S.A. be placed in father’s custody, but instead was “a
plea” to have the child placed with paternal grandmother. Counsel acknowledged that
paternal grandmother initially declined to take S.A. because she was caring for a sick
relative, but informed the court that paternal grandmother was now willing and able to
care for S.A. Although S.A. had been living in his foster home since his detention and
had never lived with father’s family, counsel argued that placing S.A. with paternal
grandmother would be in his best interest.
The court noted that counsel’s strongest point in support of the petition was that
father was shown to be the biological father, but stated it was inclined to deny an
evidentiary hearing on the issue of placing S.A. with paternal grandmother because
counsel had not addressed whether such placement would be in S.A’s best interest.
Counsel responded that placement with paternal grandmother would provide S.A. with
the “real benefit” of being raised by his biological family. When the juvenile court
7
indicated that father had not requested placement with paternal grandmother in his
written petition, counsel told the court father was willing and able to have S.A. placed
with him. After hearing from counsel for CFS and from counsel appointed for S.A., the
juvenile court found that, although father had made a prima facie showing of changed
circumstances based on the result of the paternity test, he had not made a prima facie
showing that a new placement for S.A. would be in the child’s best interest. Therefore,
the juvenile court denied the petition. Father timely appealed.4
Paternal Grandmother’s Section 388 Petition
Paternal grandmother filed her own section 388 petition seeking an order placing
S.A. in her custody, and the juvenile court set a nonevidentiary hearing. At the hearing
on her petition, paternal grandmother informed the juvenile court that she loved S.A. and
believed S.A. should be placed with her. Father’s counsel argued in favor of the petition,
informing the juvenile court paternal grandmother had been assessed for placement and
was found suitable. Counsel argued that, although S.A. may have bonded with his
caregivers, he would benefit from being placed with blood family.
Counsel for S.A. asked the juvenile court to deny the petition because S.A. had
been with his caregivers since his removal from mother and had bonded with his
caregivers, and because paternal grandmother had initially declined to take S.A.
Moreover, counsel for S.A. argued that, because paternal grandmother’s petition was
4 Paternal grandmother and S.A.’s paternal aunt also filed notices of appeal. By
order dated August 11, 2014, we dismissed both appeals. Paternal aunt made no further
appearances in these appeals.
8
filed after the jurisdictional order, the relative placement preference no longer applied.
Counsel for CFS also opposed the petition, arguing that paternal grandmother had been
assessed for placement but declined to take the child, and placement of S.A. with paternal
grandmother would not be in the child’s best interest. The juvenile court found that
paternal grandmother did not make a prima facie showing of changed circumstances for
relief under section 388 and denied the petition. Paternal grandmother timely filed a
notice of appeal.
Termination of Parental Rights
In a report prepared for the selection and implementation hearing, CFS
recommended the juvenile court terminate mother’s and father’s parental rights and select
adoption as the permanent plan for S.A. CFS reported that S.A., who had lived in the
home of his prospective adoptive family since his detention, had developed a significant
emotional bond with the family, and that he was suitable for adoption.
Mother did not appear for the selection and implementation hearing, so the
juvenile court continued the hearing. Although the juvenile court signed two orders
directing that mother be transported for the continued hearing, she was not transported
and did not appear at the continued hearing. Counsel for father, appearing specially for
mother’s appointed attorney, entered into the record mother’s objections to the
termination of her parental rights and to adoption as a permanent plan.
9
Father’s counsel presented no affirmative evidence on behalf of father, but
objected to the termination of father’s parental rights. Counsel argued that father had
been hamstrung in the case from the beginning because mother had not informed him of
her pregnancy or of S.A.’s birth, and he had not learned about S.A.’s birth until after the
jurisdictional hearing, which resulted in his being offered no family reunification services
and, consequently, his inability to establish a bond with S.A. Counsel argued that
termination of parental rights would not be in S.A.’s best interest because the child would
lose the real benefit of being raised by his biological family.
Counsel for S.A. argued that the child was highly adoptable, and that because
father received no family reunification services and did not form a bond with the child,
the court should adopt the recommendation of CFS, terminate parental rights, and find
the child to be adoptable.
Counsel for CFS argued the sole issues before the juvenile court were whether
S.A. was adoptable and whether an exception to termination of parental rights applied.
Because there was no evidence of a bond between father and S.A., counsel for CFS
argued father could not show that termination of his parental rights would be detrimental
to the child.
After hearing arguments from counsel, the juvenile court found that S.A.
was likely to be adopted, and the beneficial interest exception to section 366.26,
subdivision (c)(1)(B)(i), did not apply because father had established no bond with S.A.
The court then terminated mother’s and father’s parental rights. Mother and father timely
appealed the termination order.
10
II.
DISCUSSION
A. The Juvenile Court Did Not Abuse Its Discretion by Denying Father’s
Section 388 Petition Without Conducting an Evidentiary Hearing (Case Nos. E061583 &
E061906)
Father contends the juvenile court abused its discretion by denying his section 388
petition without conducting an evidentiary hearing. Because we conclude father did not
make a prima facie showing that modification of S.A.’s placement would be in the child’s
best interest, we find no abuse of discretion and affirm the order.
“A juvenile court order may be changed, modified or set aside under section 388 if
the petitioner establishes by a preponderance of the evidence that (1) new evidence or
changed circumstances exist and (2) the proposed change would promote the best
interests of the child. [Citation.] The parent bears the burden to show both a legitimate
change of circumstances and that undoing the prior order would be in the best interest of
the child. [Citation.] Generally, the petitioner must show by a preponderance of the
evidence that the child’s welfare requires the modification sought. [Citation.]” (In re
A.A. (2012) 203 Cal.App.4th 597, 611-612 [Fourth Dist., Div. Two].)
“The juvenile court shall order a hearing [on a section 388 petition] where ‘it
appears that the best interests of the child . . . may be promoted . . .’ by the new order.
(§ 388, subd. (d).) Thus, the parent must sufficiently allege both a change in
circumstances or new evidence and the promotion of the child’s best interests. [Citation.]
[¶] A prima facie case is made if the allegations demonstrate that these two elements are
11
supported by probable cause. [Citations.] It is not made, however, if the allegations
would fail to sustain a favorable decision even if they were found to be true at a hearing.
[Citations.] While the petition must be liberally construed in favor of its sufficiency
[citations], the allegations must nonetheless describe specifically how the petition will
advance the child’s best interests. [Citations.]” (In re G.B. (2014) 227 Cal.App.4th
1147, 1157.)
“This court reviews a juvenile court’s decision to deny a section 388 petition
without a hearing for abuse of discretion. [Citation.]” (In re G.B., supra, 227
Cal.App.4th at p. 1158.) “. . . ‘“The appropriate test for abuse of discretion is whether the
trial court exceeded the bounds of reason. When two or more inferences can reasonably
be deduced from the facts, the reviewing court has no authority to substitute its decision
for that of the trial court.”’ [Citations.]” (In re Stephanie M. (1994) 7 Cal.4th 295, 318-
319.)
Technically speaking, father’s petition did not allege any changed circumstances
whatsoever. Rather, father alleged he was “99.9” percent sure S.A. was his son, and he
wanted to raise, protect, and provide proper guidance to S.A. Father alleged placing S.A.
in his custody would be in the child’s best interest because “he [is] my son and I want to
love him and raise him.” On those bare allegations, the juvenile court could have
summarily denied the petition without holding any hearing. Instead, the juvenile court
set the petition for a nonevidentiary hearing.
12
Although the petition only requested S.A. be placed with father, at the initial
hearing on the petition, father’s counsel asked that paternal grandmother be assessed for
placement in the event the paternity test established biological parentage. The juvenile
court continued the hearing so it could consider the result of the paternity test. At the
continued hearing, father’s counsel again informed the juvenile court father was actually
requesting that S.A. be placed with paternal grandmother. After hearing arguments from
counsel, the juvenile court indicated it was not inclined to conduct a full evidentiary
hearing on the petition. Although the result of the paternity test was father’s “strongest
point” in support of the petition, the juvenile court noted it had not yet heard any
indication that placing S.A. with paternal grandmother would be in the child’s best
interest.
Father’s counsel responded, “the benefit is obviously being with your own
biological family,” a benefit that counsel recognized was “intangible” and unquantifiable.
When the juvenile court asked counsel why father was asking for placement with paternal
grandmother when the petition itself only requested placement with father, counsel
informed the court that father was willing and able to take the child. The juvenile court
found that the positive result of the paternity test was a changed circumstance, but
concluded father did not meet his burden of showing that modifying S.A.’s placement
would be in the child’s best interest. The court noted that CFS exercised due diligence in
trying to locate father from the beginning, but father did not appear until late in the case
and therefore had not been assessed for placement. The court stated, “I don’t know the
13
status of whether or not [father] is adequate as a parent or not,” and, therefore, denied the
petition.
In his brief, father contends he made a prima facie showing in his petition that a
modification of S.A.’s placement would be in the child’s best interest, and that denial of
an evidentiary hearing violated his due process rights. He contends denial of an
evidentiary hearing was “egregious” because he did not learn of the proceedings until late
in the process, and a full hearing on his petition would be his only opportunity to present
the juvenile court with evidence of his fitness as a parent. We disagree.
As noted, father’s petition alleged he wanted to raise, care for, and provide proper
guidance to S.A. In the petition, father did not allege how removing S.A. from his foster
family and placing him in father’s care would be in the child’s best interest. Nor did
father’s counsel articulate how the proposed change would be in S.A.’s best interest. At
most, counsel argued S.A. would gain a “real” yet “intangible” benefit from being raised
by his biological family. Such vague allegations of a benefit to the child did not meet
father’s burden of making a prima facie showing that removing S.A. from his prospective
adoptive parents, with whom he had already bonded and was well cared for, and placing
him with father, who had never been assessed for placement, would be in S.A.’s best
interest.
With respect to father’s allegations he was entirely blameless for his absence from
the early stages of the proceedings, the record indicates otherwise. Father called the
hospital when S.A. was born and asked that the child be placed in his custody, but the
hospital could not release the child to him because mother had only authorized release to
14
CFS. As the juvenile court noted, the record indicates CFS exercised due diligence to
locate father and serve him with the section 300 petition, but father could not be located.
When father surfaced, the juvenile court had already entered its jurisdictional order, and
S.A. had already been in his prospective adoptive home for several months.
On the record before this court, we find no abuse of discretion.
B. Paternal Grandmother Was Properly Assessed for Relative Placement, and
the Juvenile Court Properly Declined to Place S.A. with Paternal Grandmother (Case
Nos. E061583 & E061906)
Father and paternal grandmother argue CFS never properly assessed paternal
grandmother for placement, and the juvenile court erred by not applying the relative
placement preference and denying their requests to place S.A. with paternal grandmother.
We disagree.
Section 361.3 mandates that, when a child is taken from the physical custody of
his or her parents, “preferential consideration shall be given to a request by a relative of
the child for placement of the child with the relative . . . .” (§ 361.3, subd. (a).) The
county social worker and the juvenile court must consider, inter alia, whether placement
of the child with the relative is in the child’s best interest. (§ 361.3, subd. (a)(1).)
“Once a child is placed in the home of a nonrelative at the dispositional hearing,
the relative placement preference does not arise again until ‘a new placement of the child
must be made.’” (In re N.V. (2010) 189 Cal.App.4th 25, 31, quoting § 361.3, subd. (d);
see In re Lauren R. (2007) 148 Cal.App.4th 841, 854; but see In re Joseph T. (2008) 163
Cal.App.4th 787, 793-798 [rejecting the argument that, after the dispositional hearing, the
15
relative placement preference only applies when a new placement is necessary]; In re
R.T. (2015) 232 Cal.App.4th 1284, 1300 [noting the split in authority].) Failure to apply
the relative placement preference is only reversible if the error was prejudicial, meaning
it resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13; In re N.V., at p. 31; In re
Joseph T., at p. 798.)
Upon receiving the initial referral, CFS properly considered whether S.A. could be
placed with a relative. The reporting party informed one of the social workers that
mother agreed to release S.A. to CFS or to paternal grandmother, although the release
signed by mother only authorized release to CFS. Both social workers visited the home
of S.A.’s maternal grandmother, and learned that she was already caring for three other
children and had been confined to a wheelchair after suffering a stroke. When the social
worker first spoke to paternal grandmother, she declined to take the child. It was only
later, when she learned S.A. was named a “Jr.,” that paternal grandmother called back to
say she did want the child. Paternal grandmother told the social worker that she was
employed as a janitor for the federal court, and that she was willing and able to care for
S.A. Paternal grandmother denied having a criminal history. She told the social worker
that her own children had been taken from her, but later returned after she went to
rehabilitation. CFS held a risk assessment meeting to determine where to place S.A. and
concluded he had no appropriate caregiver. Therefore, S.A. was placed in a foster home.
16
Contrary to the suggestion in father’s and paternal grandmother’s briefs, CFS did
continue to assess relative placement after the initial detention. In the report prepared for
the jurisdictional hearing, the social worker informed the juvenile court that paternal
grandmother was in the process of being assessed for relative placement when she called
to say “she no longer wanted placement and she would be unable to care for [S.A.]” At
the jurisdictional hearing, counsel for mother argued for placement of S.A. with her
cousin, and the juvenile court authorized such a placement if the cousin was found
suitable. After the hearing, CFS conducted an assessment and concluded the cousin was
not suitable. Finally, during the hearing on paternal grandmother’s section 388 petition,
counsel for father argued S.A. should be placed with paternal grandmother because “[t]he
grandmother was assessed and found suitable.” In other words, despite changing her
mind again and telling CFS she could not take S.A., CFS completed its assessment of
paternal grandmother.
Nor did the juvenile court err by not considering placing S.A. with paternal
grandmother. As indicated, throughout the proceedings, grandmother gave CFS
conflicting signals about whether she wanted to or was able to care for S.A., so placing
S.A. with paternal grandmother at the dispositional hearing would not have been in the
child’s best interest. Paternal grandmother filed her section 388 petition after the juvenile
court entered its jurisdictional order, and at no time during the remainder of the
proceedings did the need arise to change S.A.’s placement. To the contrary, all the
reports filed with the juvenile court indicated S.A. was thriving in his foster home and
bonding well with his prospective adoptive family. Therefore, after S.A.’s initial removal
17
from mother and the jurisdictional hearing, the relative placement preference never arose
again. (In re N.V., supra, 189 Cal.App.4th at p. 31; In re Lauren R., supra, 148
Cal.App.4th at p. 854.)
Even if we were to conclude that the relative placement preference applied
throughout the proceedings (see In re Joseph T., supra, 163 Cal.App.4th at pp. 793-798),
and that the juvenile court erred by not considering placement with paternal grandmother
during the hearings on father’s and paternal grandmother’s section 388 petitions and at
the section 366.26 hearing, we would find no prejudice. “The overriding concern of
dependency proceedings . . . is not the interest of extended family members but the
interest of the child. ‘[R]egardless of the relative placement preference, the fundamental
duty of the court is to assure the best interests of the child, whose bond with a foster
parent may require that placement with a relative be rejected.’ [Citation.] Section 361.3
does not create an evidentiary presumption that relative placement is in a child’s best
interests. [Citation.] The passage of time is a significant factor in a child’s life; the
longer a successful placement continues, the more important the child’s need for
continuity and stability becomes in the evaluation of her [or his] best interests.
[Citation.]” (In re Lauren R., supra, 148 Cal.App.4th at p. 855.)
To repeat, paternal grandmother did not consistently request that S.A. be placed
with her. Paternal grandmother initially declined to take the child; she changed her mind
when she learned he was named a “Jr.” and wanted to take the child; she later told the
social worker she no longer wanted to take the child because she could not care for him;
and finally, she changed her mind once again and requested that S.A. be placed with her.
18
Although paternal grandmother had no criminal history, she did admit to having her own
children taken from her in juvenile court proceedings, apparently because of neglect and
drug use, and returned to her after completing a rehabilitation program. This mixed
record does not instill confidence that placement of S.A. with paternal grandmother
would be in his best interest. Contrarily, the record amply demonstrates that leaving S.A.
in the care of his prospective adoptive family, with whom he had bonded and in whose
care he was thriving, was very much in his best interest. Therefore, even if the juvenile
court erred by not considering the relative placement preference during the hearing on
father’s and paternal grandmother’s section 388 petitions and during the section 366.26
hearing, the error was harmless.
C. Termination of Mother’s Parental Rights in Absentia Was Harmless Error
(Case No. E062123)
Finally, mother contends the juvenile court erred by terminating her parental rights
in her absence.5 Although we conclude mother did not waive her right to be present for
the section 366.26 hearing, and the juvenile court should not have terminated mother’s
parental rights in her absence, mother could not have introduced any evidence at the
hearing to establish that S.A. was not adoptable or to establish the parent-child benefit
exception to termination of parental rights. Therefore, we conclude the error was
harmless.
5Father filed a brief in mother’s appeal, but only to protect and preserve the
arguments he made in his own appeal.
19
When a proceeding is brought under the Family Code or under Welfare and
Institutions Code section 366.26 to terminate the parental rights of a prisoner, or brought
under Welfare and Institutions Code section 300 to determine whether a child of a
prisoner is a dependent of the court, the court “shall order notice of any court proceeding
regarding the proceeding transmitted to the prisoner.” (Pen. Code, § 2625, subd. (b).) If
the juvenile court receives a statement from the prisoner or the prisoner’s attorney that
the prisoner desires to be present for the hearing to declare the child a dependent or to
terminate the prisoner’s parental rights, the court must order that the prisoner be
transported for the hearing. (Pen. Code, § 2625, subd. (d).) The court may not conduct
the hearing in the prisoner’s or the prisoner’s attorney’s absence unless the court receives
a written waiver signed by the prisoner or by another authorized person. (Ibid.) We
review failure to comply with Penal Code section 2625 for harmless error and reverse
only if the error resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13; In re
Jesusa V. (2004) 32 Cal.4th 588, 624-625; In re Marcos G. (2010) 182 Cal.App.4th 369,
385-386.)
There is no dispute that mother never waived her right to be physically present
during the section 366.26 hearing. Nor is there any doubt that, notwithstanding the
juvenile court’s written orders that mother be transported from prison to be present
during the section 366.26 hearing, she was not transported and did not appear. Moreover,
mother’s counsel was not present for the hearing either. Instead, father’s attorney,
appearing specially for mother’s attorney, entered mother’s objections to termination of
her parental rights. Finally, there is no doubt that the juvenile court conducted the section
20
366.26 hearing in mother’s absence and terminated her parental rights. Therefore, we
must conclude the juvenile court erred by not complying with Penal Code section 2625,
subdivision (d).
Although we conclude the juvenile court erred by terminating mother’s parental
rights in her absence, we conclude the error was harmless. As CFS contends in its brief,
the issues before the juvenile court at the section 366.26 hearing were extremely limited.
“Section 366.26 provides that if parents have failed to reunify with an adoptable child,
the juvenile court must terminate their parental rights and select adoption as the
permanent plan for the child. The juvenile court may choose a different permanent plan
only if it ‘finds a compelling reason for determining that termination [of parental rights]
would be detrimental to the child [because]: [¶] (i) The parents have maintained regular
visitation and contact with the child and the child would benefit from continuing the
relationship.’ (§ 366.26, subd. (c)(1)(B)(i).)” (In re Marcelo B. (2012) 209 Cal.App.4th
635, 642.)
Mother does not argue that, had she been present for the hearing, she could have
presented evidence that S.A. was not likely to be adopted. The record amply supports the
juvenile court’s finding that S.A. was adoptable. (See In re J.I. (2003) 108 Cal.App.4th
903, 913 [assuming error under Pen. Code, § 2625, mother suffered no prejudice from
being absent from the Welf. & Inst. Code, § 366.26 hearing because she could not have
introduced evidence that the child was not adoptable].) Nor could mother have presented
any evidence at the hearing to establish the parent-child benefit exception to termination
of parental rights under Welfare and Institutions Code section 366.26,
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subdivision (c)(1)(B)(i), existed. Mother received no reunification services because of a
prior adjudication of abuse or neglect of a sibling and because, in light of her
incarceration, services would not be in the best interest of the child. (Welf. & Inst. Code,
§ 361.5, subds. (b), (e).) Mother did not visit with S.A. either. In other words, mother
could not have demonstrated that terminating her parental rights would have been
detrimental to S.A. for the simple fact that she had not formed a bond with the child.
Therefore, we “can say with confidence that ‘[n]o other result was possible’ even if
[mother] had been present. [Citation.]” (In re Jesusa V., supra, 32 Cal.4th at p. 626.)6
6 In her brief, mother argues the “substitution” of her attorney for father’s
attorney at the section 366.26 hearing was erroneous because her interests conflicted with
father’s interest. Father’s counsel appeared specially for mother’s attorney solely to enter
mother’s denials and was never substituted for mother’s counsel, formally or otherwise.
Nor did mother’s and father’s interests at the hearing necessarily conflict. Although
father’s counsel argued father had not learned earlier about mother’s pregnancy or S.A.’s
birth because mother kept it from him, those statements were made in the context of
arguing for placement of S.A. with paternal grandmother. Father’s counsel never argued
in favor of terminating mother’s parental rights. In any event, like mother, father
received no reunification services and never visited S.A., so he too could not have
established that he had a strong bond with the child or that termination of his parental
rights would be detrimental to the child.
Mother also argues the substitution of father’s counsel for her attorney was
inadequate because father’s counsel failed to object under Penal Code section 2625,
subdivision (d), to the juvenile court proceeding in her absence. To the extent mother
raises a claim of ineffective assistance of counsel, we must reject it. As we conclude in
the text, the result would have been the same even if mother had been present for the
Welfare and Institutions Code section 366.26 hearing. Therefore, counsel’s failure to
object was harmless. (In re Jackson W. (2010) 184 Cal.App.4th 247, 261 [“we may
reject a claim of ineffective assistance of counsel if the parent does not show the result
would have been more favorable but for trial counsel’s failings”].)
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III.
DISPOSITION
The orders of the juvenile court are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J.
We concur:
RAMIREZ
P. J.
KING
J.
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