In re Michael P. CA3 ( 2014 )

Filed 11/18/14 In re Michael P. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Glenn)
----
In re Michael P. et al., Persons Coming Under the C076250
Juvenile Court Law.
GLENN COUNTY HUMAN RESOURCES (Super. Ct. Nos. 13JP00652,
AGENCY, 13JP00680)
Plaintiff and Respondent,
v.
M.P.,
Defendant and Appellant.
M.P., the mother of the minors Michael P. and N.F., appeals from the juvenile
court’s orders terminating her parental rights. (Welf. & Inst. Code, §§ 366.26, 395.)1
She contends she was not given adequate notice of the six-month review hearing for
Michael and the jurisdictional and dispositional hearings as to N.F., and that these issues
are not forfeited. She claims the juvenile court erred in terminating reunification services
1 Undesignated statutory references are to the Welfare and Institutions Code.
1
as to Michael and in denying reunification services as to N.F. She also claims the
juvenile court failed to rule on that portion of her petition for modification requesting the
minors’ return or additional reunification services. We shall affirm the juvenile court’s
orders.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2013 seven-year-old Michael and four-year-old N.F. were placed in
the custody of child welfare services after mother was admitted to a mental health facility
for a 72-hour evaluation. Mother admitted to using drugs within two or three days of the
minors’ removal, and to having used marijuana and methamphetamine since 2007. Both
children tested positive for methamphetamine.
The detention report listed an address for mother in Orland (Orland address No. 1)
and a phone number beginning with the telephone prefix 988.2 Michael was involved in
a Butte County reunification case in 2007, and Michael and N.F. were in a Glenn County
reunification case in 2011.
The Glenn County Human Resources Agency (the Agency) filed a dependency
petition on behalf of the minors in March 2013. The juvenile court detained the minors
the next day. The juvenile court advised mother at the detention hearing that it was “very
important” for her to keep her attorney, the Agency, and the juvenile court apprised of
her current address and telephone number. Mother was given a document packet that
included a form for change of address or phone number. The juvenile court orally
notified mother of the jurisdiction hearing in Orland later that month.
Mother was present at the March 2013 jurisdiction hearing and submitted on the
petition, which the juvenile court sustained. Michael was placed in foster care and the
court granted reunification services to mother. N.F.’s case was dismissed with sole legal
2 While certain addresses and telephone numbers are relevant in this case, we omit the
actual numbers and addresses to preserve the minors’ privacy.
2
and physical custody given to N.F.’s father. Mother was given oral notice by the juvenile
court of the April 2013 disposition hearing in Orland.
The April 2013 disposition report was served on mother by mail to Orland address
No. 1. The report noted that mother had already begun drug and mental health services.
Michael was placed in foster care with N.F.’s father.
Mother attended the April 2013 disposition hearing, where the juvenile court
continued her services. The juvenile court gave oral notice to mother that the six-month
review hearing for Michael was scheduled for October 3, 2013, at 8:30 a.m. in Orland.
In August 2013 Michael and N.F. were placed in protective custody after N.F.’s
father left the minors in the care of a relative who subsequently allowed mother to take
custody of them. Father told the social worker he was “done” and “[couldn’t] do it
anymore,” and that “the children [were] not getting their emotional needs met” in his
care. The Agency filed a dependency petition alleging jurisdiction over N.F. later that
month.
The application for protective custody warrant alleged that mother was not
participating in services at the time and had been “elusive, making it extremely difficult
for this social worker to locate her.” The application also alleged that mother’s
whereabouts were “unknown.”
The August 2013 detention report listed no address for mother and showed a new
telephone number with a 936 prefix. Mother was notified of the August 12, 2013,
detention hearing by telephone on August 9, 2013. Mother did not appear at the hearing,
at which N.F. was detained. The juvenile court found mother had been notified of the
hearing and instructed mother’s counsel to tell mother to keep the court and the social
worker “advised at all times of [her] address and phone number.”
On August 30, 2013, an Agency supervisor left a voice mail message for mother at
the 936 telephone number notifying her of the jurisdiction hearing for N.F. in Orland on
September 5, 2013. The September 2013 jurisdiction report related that N.F. and
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Michael were placed with a nonrelated extended family member in Colusa County.
Mother had not submitted to random drug testing since May 2013.
Mother did not appear at the September 5, 2013, jurisdiction hearing on N.F.’s
petition. Mother’s counsel told the juvenile court that she last had contact with mother
“probably a month before jurisdiction or the last detention hearing.” Counsel tried to call
mother but had no information from her. The juvenile court found mother had been
notified and sustained the petition. The juvenile court set the disposition hearing for the
same time as the six-month review hearing for Michael—October 3, 2013.
In the October 2013 reports for the combined hearing, the Agency recommended
terminating mother’s reunification services. She had not visited the minors for nearly
two months. Mother continued to be difficult to contact. The social worker wrote: “This
social worker has contacted the mother and several people including maternal aunt, foster
mother, paternal grandmother, [N.F.’s] father, and services providers ([drug and alcohol
counselor, parents anonymous group facilitator, mental health counselor, and others]) in
order to know her whereabouts and what services she might be participating in.” No one
had contact with mother other than the parents anonymous group facilitator once per
month in May, July, and August and the foster mother through mother’s once-weekly
phone calls to the minors. The social worker asked the foster mother to encourage
mother to contact the Agency and the social worker.
On September 17, 2013, mother called the social worker from the 936 number to
set up visitation. The social worker asked mother for a physical and mailing address.
Mother said she did not have a physical address as she stayed with different people, but
she provided Orland address No. 1 as her mailing address. The social worker informed
mother of the recommendation to terminate services and of the date, time, and location of
the combined hearings.
Mother was not present for the October 3, 2013, combined six-month review and
disposition hearings. Mother’s counsel told the juvenile court, “I have made two
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appointments and only been able to talk to her once throughout September. And she
missed both appointments, and I have not heard from her since.” The juvenile court
terminated services for mother as to Michael and continued N.F.’s hearing to October 17,
2013.
Mother was not present at the continued hearing, where reunification services for
N.F. were not offered pursuant to section 361.5, subdivisions (b)(10), (b)(13), and
(b)(15). At both hearings, the juvenile court set a section 366.26 hearing for January 16,
2014, and informed mother through counsel that failure to file a petition for extraordinary
writ would forfeit mother’s right to appeal the proceedings.
On October 23, 2013, mother was notified by mail at Orland address No. 1 of the
section 366.26 hearing. Since mother no longer lived there, she was also personally
served with notice of the hearing on November 13, 2013, at the sheriff’s office in
Willows.
In December 2013 mother filed a petition for modification (§ 388) seeking
reinstatement of reunification services and alleging improper notice as to the six-month
review and disposition hearings. At a hearing on the petition later that month, the parties
stipulated to vacating the section 366.26 hearing and giving mother an additional three
months of services, and the juvenile court so ordered. After meeting with counsel for all
parties, the juvenile court vacated the order and set a hearing on mother’s section 388
petition. At the January 2014 hearing on mother’s petition, the juvenile court found
mother was not entitled to additional reunification services as a matter of law and set a
new section 366.26 hearing.
Mother filed another section 388 petition in February 2014. The petition alleged a
lack of notice as to the combined hearings and additional evidence supporting a change to
the juvenile court’s order. Mother sought to relitigate the denial of services at the
combined hearings, or to be offered additional time for services she undertook on her
own, or for the minors’ return to her custody.
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The February 2014 section 366.26 report included a response to mother’s
section 388 petition. The Agency set forth a timeline of the relevant notifications and
appearances as follows:
On August 9, 2013, a social worker signed a proof of service for the August 12,
2013, detention hearing stating that she informed mother of the hearing by telephone at
the 936 number. Mother did not attend the detention hearing. On August 30, 2013, a
supervisor left a voice message at the same number informing mother of the date and
time for the jurisdiction hearing. The Agency could not notify mother by mail at the time
because she was homeless. Mother was not present at the September 5, 2013, jurisdiction
hearing, where mother’s counsel noted that she had not been in contact with mother since
prior to the recent detention.
During the September 17, 2013, call with mother, the social worker informed
mother of the time, date, and location of the combined disposition and six-month review
hearing. The social worker also asked mother for a physical address and a mailing
address. Mother said she had no physical address but gave Orland address No. 1 as her
mailing address. A copy of the jurisdiction report was mailed to mother at this address
on September 26, 2013. The report was not returned by mail to the Agency.
Mother was not present at the combined six-month review and disposition hearing
on October 3, 2013. The disposition report was mailed to mother at Orland address No. 1
the following day, but the report was returned to the Agency on November 14, 2013, with
a post office stamp stating: “Return to Sender/Moved, Left no address, unable to return
to sender.” Mother was not present for the continued disposition hearing on October 17,
2013. Mother’s counsel said she tried to meet with mother, but she “no showed.” On
October 30, 2013, the Agency tried to personally serve mother at Orland address No. 1
with notice for the January 16, 2014, section 366.26 hearing. Service was unsuccessful
because mother did not live there.
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On October 31, 2013, mother called the Agency and provided her new address,
which was in Sacramento (Sacramento address No. 1). Research by the Agency
determined this was not a valid address. A social worker called mother and told her that
Sacramento address No. 1 was invalid. The social worker arranged with mother to have
her pick up the notice of the section 366.26 hearing. Mother picked up the notice at the
sheriff’s office in Willows on November 13, 2013.
On December 18, 2013, mother met with a social worker and gave her a new
mailing address in Orland (Orland address No. 2); her phone number was still the 936
number. Mother provided another new address in Orland (Orland address No. 3) on
January 23, 2014. On February 10, 2014, mother gave the Agency yet another new
address in Orland (Orland address No. 4). Four days later, mother told the Agency that
the last address was wrong and her address was actually Orland address No. 3.
The section 366.26 report noted that a potential adoptive family had been
identified and it appeared to be a very good match. The Agency recommended
terminating parental rights and moving forward with a permanent plan of adoption.
Mother was present at the combined section 388 and section 366.26 hearing on
March 20, 2014. She testified that she was aware of the initial dependency petition when
the second petition was filed. At that time she lived at Orland address No. 1. She next
lived at the Westside Domestic Violence Shelter from April 16, 2013, to May 2013. She
stayed with a friend in May 2013 and then moved to an address in Sacramento
(Sacramento address No. 2) on June 7, 2013.3
Via telephone, mother told social worker Wyjay Carson of the move but did not
spell the street name for Sacramento address No. 2. Sacramento address No. 1, which
had been determined to be an invalid address, was apparently a misspelling of the street
3 Mother brought in a lease agreement for Sacramento address No. 2 dated June 7, 2013.
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name in Sacramento address No. 2. Mother was absent from Sacramento address No. 2
for about three weeks from July to the beginning of August 2013 because she had gone
back to Glenn County to address father’s anticipated abandonment of the minors. Mother
was aware the Agency was filing a new petition after father abandoned the minors. She
tried to call social worker Nancy Garcia at the time but did not get a return call. Mother
could not remember whether she left Garcia a message.
Mother changed her telephone number from the 988 number to the 936 number on
August 3, 2013, and informed Carson of the change. She was not advised of any
upcoming hearings during this conversation with Carson. Carson called her on August 9,
2013, and informed her “that there was court,” but mother did not know where to go and
Carson told mother she did not need to attend.
Mother did not receive the supervisor’s voice mail on August 30, 2013, because
she could not access her voice mail that month. When Carson left at the end of
August 2013 Garcia was assigned as mother’s new social worker. In September 2013
Garcia told mother she was recommending termination of reunification services but did
not give her the date and time of the relevant hearing. Mother gave Garcia Sacramento
address No. 2 and did not tell her that she was homeless. She resided at Sacramento
address No. 2 until December 2013 but did not receive any notice of the hearings at that
address.
On October 3, 2013, mother got a call from a friend that her children’s case was
being called at court. She went to the courthouse but did not get there in time. Mother
called the Agency on October 31, 2013, and gave them Sacramento address No. 2. She
got a voice mail telling her to pick up a notice at the sheriff’s office in Willows, where
she got the notice of the section 366.26 hearing. This was her first notice of the
section 366.26 hearing. She would have come to all hearings had she been given proper
notice.
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The juvenile court found insufficient evidence of a lack of notice and denied
mother’s petition. The court then heard argument related to the section 366.26 hearing
and terminated parental rights.
DISCUSSION
I
Mother contends she was not given notice of the combined six-month review
hearing for Michael and disposition hearing for N.F., and for N.F.’s jurisdiction hearing.
She further contends the juvenile court erred in terminating reunification services in
Michael’s case and denying services in N.F.’s case. These issues arose out of a combined
hearing at which the juvenile court terminated services and set a section 366.26 hearing.
Section 366.26, subdivision (l) states in pertinent part: “An order by the court that
a hearing pursuant to this section be held is not appealable at any time unless all of the
following apply:
“(A) A petition for extraordinary writ review was filed in a timely manner.
“(B) The petition substantively addressed the specific issues to be challenged and
supported that challenge by an adequate record.
“(C) The petition for extraordinary writ review was summarily denied or
otherwise not decided on the merits.” That section further directs the Judicial Council to
adopt a rule to ensure the juvenile court will provide notice to the parties, orally if the
parties are present and by mail if they are not, of the requirements to be met to satisfy the
statute. (§ 366.26, subd. (l)(3).)
“After the juvenile court makes an order setting a section 366.26 hearing, the court
must advise all parties, including a parent, of section 366.26’s requirement of filing a
petition for extraordinary writ review. ([Cal. Rules of Court, r]ule 5.590(b); see § 366.26,
subd. (l)(3)(A).) The court must give an oral advisement to parties present at the time the
order is made. (Rule 5.590(b)(1); see § 366.26, subd. (l)(3)(A).) The court must explain
that the party is required to seek an extraordinary writ by filing a Notice of Intent to File
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Writ Petition and Request for Record (form JV-820) and a Petition for Extraordinary
Writ (form JV-825). (Rule 5.590(b).) ‘Within one day after the court orders the hearing
under Welfare and Institutions Code section 366.26, the advisement must be sent by first-
class mail by the clerk of the court to the last known address of any party who is not
present when the court orders the hearing under Welfare and Institutions Code
section 366.26.’ (Rule 5.590(b)(2).) Copies of Petition for Extraordinary Writ (form JV-
825) and Notice of Intent to File Writ Petition and Request for Record (form JV-820)
‘must accompany all mailed notices informing the parties of their rights.’
(Rule 5.590(b)(4).) Judicial Council form JV-820 contains an advisement about the need
to file the notice of intent form to obtain Court of Appeal review of an order setting a
section 366.26 hearing and provides important information regarding completion and
filing of the form, filing of the writ petition, and specific deadlines.” (In re A.H. (2013)
218 Cal. App. 4th 337, 346-347.)
Mother contends she is excused from the writ petition requirement because the
juvenile court did not advise her personally or by mail, instead advising her through
counsel at the combined hearing. Her argument overlooks an important exception to this
requirement.
A parent who is not available to receive an oral advisement and who does not file
a written notification of a change in mailing address is not excused from the writ petition
requirement absent a showing of “exceptional circumstances.” (In re A.H., supra,
218 Cal.App.4th at pp. 348-349.) The cases excusing a parent from the writ requirement
all involve parents who could have been advised through reasonable means. “Further, in
the published cases that have permitted a parent to challenge the merits of a referral order
after failing to take a writ, it is clear that the court in fact failed to give the oral
advisement (when the parent was present) or that the written advisement (when the parent
was not present) was not sent to or received by the parent. [Citation.]” (In re T.W.
(2011) 197 Cal. App. 4th 723, 730.) Therefore, a juvenile court is not required to take
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futile or extraordinary measures to inform a parent of the writ requirement if the parent
cannot be found.
Mother did not appear at the combined hearing on either of the dates it took place,
October 3 and October 17, 2013, even though on September 17, 2013, a social worker
orally informed her of the time, date, and nature of the hearing. The address listed for her
at the beginning of the dependency was Orland address No. 1. At the detention hearing,
mother was advised to make the Agency and the juvenile court aware of any changes to
her address or telephone number and was given a form for change of address and
telephone number. There is no record of mother ever filling out the form. Nonetheless,
mother did orally inform a social worker on September 17, 2013, that she was homeless
but that Orland address No. 1 was a valid mailing address for her.
Since mother was not at the combined hearing, the juvenile court could not
personally advise her of the writ petition requirement. Although she had the Orland
address No. 1 mailing address, the juvenile court’s failure to mail notice there is harmless
beyond a reasonable doubt. (See In re J.H. (2007) 158 Cal. App. 4th 174, 183-185 [notice
errors subject to harmless beyond a reasonable doubt standard].) The day after the first
day of the combined hearing the Agency mailed a copy of the disposition report to that
address, but it was returned by the post office with no forwarding address on
November 14, 2013. The Agency tried to personally serve mother at Orland address
No. 1 on October 30, 2013, but failed as she did not live there. Mother gave a new
mailing address to the Agency on October 31, 2013, but that address was invalid. Since
mother did not have a valid mailing address on file with the Agency or the juvenile court
at the time, she could not be prejudiced by the juvenile court’s failure to mail the
advisement to a mailing address where she no longer received mail.4
4 Although mother’s testimony states that she kept the Agency advised of her change in
location and that she had never been informed of the combined hearing, the juvenile court
11
The juvenile court’s solution, giving notice to mother through counsel, was the
best solution available, even though mother had previously not appeared at meetings with
counsel. Mother’s failure to inform the Agency and the juvenile court of an address
where notice could be mailed and her failure to attend the combined hearings left the
juvenile court with no other reasonable means for notifying mother of the writ petition
requirement. The court was accordingly excused from having to give notice by other
means.
Since the juvenile court adequately advised mother of the writ requirement,
mother’s failure to petition for extraordinary writ relief forfeits her contentions regarding
lack of notice for the combined hearing and that the denial of services was erroneous.
II
Mother claims the juvenile court erred in failing to rule on the portion of mother’s
section 388 petition requesting the minors’ return or additional services.
On December 2, 2013, mother filed a section 388 petition asking the juvenile court
to change its previous order denying reunification services. As new information in
support of the petition, mother alleged she had never been given adequate notice of the
combined six-month review and disposition hearing. Mother wanted the juvenile court to
change its order denying services and to allow mother to continue services. After the
juvenile court vacated and then reinstated the initial denial of services, mother filed a new
section 388 petition in February 2014, requesting the opportunity to prove she was never
given proper notice and to litigate the denial of services or, in the alternative, to have the
minors placed with her or be given additional time for the services she had been
participating in on her own volition. At the hearing on the petition, the juvenile court
implicitly rejected her testimony when it found adequate notice at the hearing on
mother’s section 388 petition. We defer to this credibility finding. (D.M. v. Superior
Court (2009) 173 Cal. App. 4th 1117, 1128.)
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found mother received adequate notice but did not address whether she was entitled to
additional services or the minors’ return to mother’s custody.
A parent petitioning the juvenile court under section 388 for a modification of a
court order must allege facts showing the existence of new evidence or changed
circumstances and that the proposed modification would be in the child’s best interests.
(In re Daijah T. (2000) 83 Cal. App. 4th 666, 671-672.) The parent has the burden of
proof by a preponderance of the evidence on both points. (Cal. Rules of Court,
rule 5.570(h)(1).)
We review the juvenile court’s ruling denying a section 388 petition for abuse of
discretion. (In re S.R. (2009) 173 Cal. App. 4th 864, 866.) We reverse only if the ruling
exceeded the scope of the court’s discretion or if, under all the evidence (including
reasonable inferences from the evidence), viewed most favorably to the ruling, no
reasonable judge could have made that ruling. (Great West Contractors, Inc. v. Irvine
Unified School Dist. (2010) 187 Cal. App. 4th 1425, 1459; In re Jasmine D. (2000)
78 Cal. App. 4th 1339, 1351.)
The alleged lack of notice was the only new evidence alleged in the first
section 388 petition and was in the second petition as well. While the second petition
also alleged mother continued services on her own after they had been terminated, this
did not oblige the juvenile court to address whether mother was entitled to additional
services or to the minors’ return after it found she had been properly notified. The bare
allegation that mother continued services on her own was not listed as new information
that supported changing the juvenile court’s order; the only new information alleged in
the petition was the alleged lack of notice. The additional services undertaken by mother
and the request for more time for services or the minors’ return were in an attachment
specifying mother’s proposed changes to the prior orders.
The rulings mother claims the juvenile court failed to make were contingent on its
first finding that mother had not been properly notified of the combined hearing. Since
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the juvenile court found mother failed to carry her burden on that essential contention, it
did not have to rule on the other requests, which addressed proposed rulings based on a
finding of inadequate notice.5
DISPOSITION
The juvenile court’s orders are affirmed.
RAYE , P. J.
We concur:
BLEASE , J.
BUTZ , J.
5 Although mother elsewhere contends she was not properly notified of the combined
disposition/six-month hearing, she does not contest the juvenile court’s findings at the
section 388 hearing that she had been properly notified.
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