In re S.F. CA2/2 ( 2022 )

Filed 4/14/22 In re S.F. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re S.F. et al., Persons B313125
Coming Under the Juvenile (Los Angeles County Super.
Court Law. Ct. No. 18CCJP05482A-B)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
S.F.,
Defendant and Appellant.
APPEAL from the orders of the Superior Court of Los
Angeles County. Steff R. Padilla, Judge Pro Tempore. Affirmed.
Amy Z. Tobin, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Kimberly Roura, Deputy County
Counsel, for Plaintiff and Respondent.
******
Stephanie F. (mother) argues that she did not receive
proper notice of the permanency planning hearing at which the
juvenile court terminated her parental rights over her two
children because the Los Angeles Department of Children and
Family Service (the Department) sent the notice via certified
mail rather than certified mail with a return receipt requested.
This defect in notice is harmless because mother’s presence at the
hearing could not have changed its outcome. We accordingly
affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
Mother and Mario G. (father) have two children—Sebastian
(born May 2018) and Nehemiah (born April 2019).
In April 2018, father was arrested after he pushed mother
repeatedly, causing her to fall to the ground. Mother was nine
months pregnant at the time. Father also has a history of
domestic violence with his prior partner, which resulted in the
permanent placement of Sebastian and Nehemiah’s half siblings
in a prior proceeding. In July 2018, mother and father shoplifted
from a store using Sebastian’s stroller (with him in it) to hide the
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merchandise. Father has a long history of substance abuse and
was currently abusing “morphine, codeine, amphetamine,
methamphetamine and marijuana.”
II. Procedural History
A. Proceedings regarding Sebastian through the
termination of reunification services
In August 2018, the Department filed a petition asking the
juvenile court to exert dependency jurisdiction over Sebastian
due to his parents’ domestic violence, their shoplifting with him,
and father’s substance abuse. The petition alleged that this
conduct placed Sebastian at substantial risk of serious physical
harm, rendering jurisdiction appropriate under subdivisions (a)
and (b)(1) of Welfare and Institutions Code section 300.1, 2
Mother appeared at the detention hearing, and was
appointed the Law Offices of Rachel Ewing (the Ewing Firm) as
her attorney of record; Olga Matemotja appeared from that firm.
In January 2019, the juvenile court held a jurisdictional
hearing. Mother’s attorney of record appeared; despite receiving
proper notice, mother did not appear. The juvenile court
sustained all three grounds for jurisdiction, but did so solely
under subdivision (b)(1) of section 300.
In March 2019, the juvenile court held a dispositional
hearing. The court removed Sebastian from mother’s custody
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2 The petition also alleged that jurisdiction was appropriate
under subdivision (j) of section 300 based on endangerment to
Sebastian’s half siblings due to father’s violent conduct towards
their mother.
3
and ordered the Department to provide mother with reunification
services.
In March 2020, the juvenile court held the 12-month review
hearing to assess mother’s progress with reunification services.
Attorney Lori Davis of the Ewing Firm appeared; despite
receiving proper notice, mother did not appear. After concluding
that mother was not adhering to the case plan assigned to avail
herself of the reunification services, the juvenile court terminated
those services and set a permanency planning hearing for June
29, 2020.
B. Proceedings regarding Nehemiah through the
termination of reunification services
In June 2019, the Department filed a petition asking the
juvenile court to exert dependency jurisdiction over Nehemiah on
the same grounds alleged in the petition for Sebastian, except
that the Department urged the court to exercise jurisdiction
under subdivisions (b)(1) and (j) of section 300. The Department
filed an amended petition later that month, adding a new
allegation regarding mother’s conviction for felony evading a
peace officer.
Mother appeared at the detention hearing, and Ewing Firm
was appointed as her attorney of record; Lori Davis appeared
from the firm.
In July 2019, the juvenile court held back-to-back
jurisdictional and dispositional hearings regarding Nehemiah.
Mother and her attorney of record appeared. The court sustained
jurisdiction on all alleged grounds, but did not remove Nehemiah
from mother’s custody (as he was not yet three months old). The
court ordered the Department to provide family maintenance
services.
4
After mother used methamphetamines in October 2019, the
Department filed a supplemental petition alleging that
jurisdiction was also warranted due to mother’s use of drugs
while caring for Nehemiah and seeking to remove him from her
custody. In January 2020, the juvenile court held a hearing on
the supplemental petition. Mother’s attorney of record, the
Ewing Firm appeared; despite receiving proper notice, mother did
not appear. The court sustained the petition, removed Nehemiah
from mother’s custody, and ordered the Department to provide
mother reunification services.
On January 8, 2021, the juvenile court held the 18-month
review hearing to assess mother’s progress with the reunification
services. Mother’s attorney of record, the Ewing Firm appeared;
despite receiving proper notice, mother did not appear. Mother
was not in compliance with the case plan—she had not drug
tested, and had not visited Nehemiah. The court concluded
mother’s progress was unsatisfactory, terminated reunification
services and set a permanency planning hearing for May 4, 2021.
C. Post-termination proceedings
On May 8, 2020, and due to the COVID-19 pandemic, the
juvenile court issued a minute order continuing the permanency
planning hearing scheduled for Sebastian on June 29, 2020, to
February 3, 2021.
At the February 3, 2021 hearing, mother’s attorney of
record, the Ewing Firm appeared; despite receiving proper notice,
mother did not appear. The juvenile court continued the
permanency planning hearing for Sebastian to May 4, 2021—the
same day already set for Nehemiah’s permanency planning
hearing.
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In anticipation of the permanency planning hearings for
Sebastian and Nehemiah, the Department served mother with
notice of those hearings by mailing her notice through certified
mail, but the Department did not request a return receipt.
On May 4, 2021, the juvenile court held the permanency
planning hearings for both Sebastian and Nehemiah. Mother’s
attorney of record the Ewing Firm was present, albeit a different
lawyer from the firm appeared than had appeared previously.
Mother did not appear, and her attorney did not raise any defect
in the notice given mother or express in any way that she was not
prepared for the hearings. The court found both children
adoptable, found no applicable exception, and terminated
mother’s parental rights over each child.
D. Appeal
Mother filed this timely appeal to both termination orders.
DISCUSSION
Mother argues that the orders terminating her parental
rights over Sebastian and Nehemiah must be vacated because the
Department did not comply with the notice requirements set
forth in section 294 and because this lack of compliance amounts
to a violation of due process.3 Our review is de novo because
mother’s arguments raise questions of statutory and
constitutional interpretation (Harris v. City of Santa Monica
(2013) 56 Cal.4th 203, 225 [statutory interpretation]; Aquila, Inc.
3 The Department argues that mother forfeited her right to
raise the notice issue on appeal because she did not object before
the juvenile court, where any defects in notice could have been
addressed. Although the failure to raise an issue in these
circumstances can constitute a waiver (In re Wilford J. (2005) 131
Cal.App.4th 742, 754), we exercise our discretion to reach the
merits (People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6).
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v. Superior Court (2007) 148 Cal.App.4th 556, 568 [constitutional
analysis of notice]), and involve the application of that law to
undisputed facts (Boling v. Public Employment Relations Bd.
(2018) 5 Cal.5th 898, 912-913).
I. Applicable Law
In juvenile dependency proceedings, “[n]otice is both a”
“statutory” and “constitutional” “imperative.” (In re J.H. (2007)
158 Cal.App.4th 174, 182 (J.H.); In re Jasmine G. (2005) 127
Cal.App.4th 1109, 1114 (Jasmine G.).)
A. Statutory notice requirements
The permanency planning hearing is the last step in a
juvenile dependency proceeding. It occurs only after the juvenile
court has exerted dependency jurisdiction over a child (see § 300),
after the court has removed the child from the parent (see § 361,
subd. (c)), and after reunification services have been terminated
(or, in narrow, statutorily defined circumstances, bypassed
altogether) (see § 361.5). In other words, the permanency
planning hearing occurs only after the juvenile court has
determined that the parent is either unwilling or unable to
address the issues that necessitated dependency jurisdiction in
the first place. And its purpose is to decide: If the child is not to
be reunited with the parent, what other option is in the child’s
best interest? Our Legislature gives the juvenile courts a number
of options (including guardianship and long-term foster care), but
the presumptive (and hence preferred) option is to terminate the
parent’s rights over the child and place the child up for adoption.
(§ 366.26, subd. (b)(1) [termination of parental rights and
adoption is the first in the “order of preference”]; In re Jose V.
(1996) 50 Cal.App.4th 1792, 1799 [noting the “strong preference
for adoption”].)
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Because it is possible—and, indeed, presumptively
preferred—that a parent’s legal ties to their progeny will be
permanently severed at the permanency planning hearing, our
Legislature has specified by statute how notice must be given for
this particular type of hearing. That statute is section 294.
Section 294 first delineates to whom notice must be given—
namely, to the child’s mother, the child’s father (whether alleged
or presumed), the child himself or herself if they are at least 10
years old, to the counsel representing the parents and child, and
to the child’s current caregivers.4 (§ 294, subd. (a)(1), (2), (4), (8),
(10).) Section 294 then delineates what information the notice
must contain—namely, the time, date, and location of the
permanency planning hearing; the parent’s right to appear and
have counsel appointed; the nature of the proceeding (namely,
that it is a permanency planning hearing where the court will
“select a permanent plan of adoption”); and the recommendation
of the supervising agency to the juvenile court regarding which
plan to adopt. (§ 294, subd. (e).) As most pertinent here, section
294 also delineates the timing and methods for giving this notice.
4 In various situations, additional or alternative notice must
be given. Where a parent’s whereabouts are unknown, section
294 requires notice to the grandparents and to the parents
through notice by publication. (§ 294, subd. (a)(7), (9)). Where
the child has a sibling who is or was under the juvenile court’s
dependency jurisdiction, section 294 requires that notice also be
given to the sibling if they are at least 10 years old or to the
sibling’s attorney and caregiver if they are under 10. (Id., subd.
(a)(6).) Where there is reason to know that the child is an
“Indian child” within the meaning of the Indian Child Welfare
Act, section 294 requires notice also be given to the Indian
custodian and the child’s tribe. (Id., subd. (a)(3), (5).)
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When notice is to be served, that service must be completed 45
days before the hearing date (or 30 days before the hearing where
notice is by publication). (§ 294, subd. (c).)
Section 294 does not take a one-size-fits-all approach to the
method for giving notice of a permanency planning hearing.
Instead, the statute starts by defining three general rules for
effecting service depending upon whether the parent’s
whereabouts are unknown and whether the parent was present
at the hearing where the permanency planning hearing was
scheduled:
● If the parent is “present at the hearing at which the
[juvenile] court schedules” the permanency planning hearing,
then section 294 requires that (1) the court orally “advise the
parent” of the upcoming hearing (including all of the necessary
content set forth above) and “direct the parent to appear,” and (2)
the parent thereafter be sent a written notice “by first-class mail”
or “by electronic service” (§ 294, subd. (f)(1)), or certified mail
with return receipt requested if the parent resides out of state
(id., subd. (f)(5));
● If the parent is not present at the hearing when the
permanency planning hearing is scheduled, then section 294
requires that the parent be (1) sent written notice by “[c]ertified
mail, return receipt requested” (id., subd. (f)(2), (5)), (2)
personally served with the notice (id., subd. (f)(3)), or (3) served
via substituted service on a competent person at least 18 years
old at the parent’s residence or business, and thereafter sent
written notice via first-class mail or via electronic service (id.,
subd. (f)(4)); and
● If the parent’s identity is known but “his or her
whereabouts are unknown,” then section 294 requires service to
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be made on the parent’s attorney of record or by publication and
upon the child’s grandparents, but only if the Department has
exercised “reasonable diligence” in trying to locate and serve the
parent. (§ 294, subd. (f)(7)(A).)
Section 294 then layers an additional proviso on top of
these three general rules—namely, if the Department is
recommending a plan other than the termination of parental
rights, the strictness of notice is relaxed: If the parent’s
whereabouts are known but the parent did not attend the
hearing where the permanency planning hearing was scheduled,
service by first-class mail or electronic service will suffice (§ 294,
subd. (f)(6)), and if the parent’s whereabouts are unknown (after
the exercise of due diligence), no further notice beyond notice to
the grandparents is required (id., subd. (a)(7)(B)).
B. Constitutional notice requirements
Because a parent’s “interest . . . in the companionship, care,
custody, and management of his children is a compelling one,
ranked among the most basic of civil rights,” a parent may not be
deprived of that interest through the termination of her parental
rights unless she is accorded due process. (In re B.G. (1974) 11
Cal.3d 679, 688-689.) Due process entitles a parent to “adequate
notice and an opportunity to be heard.” (Ibid.; Today’s Fresh
Start, Inc. v. Los Angeles County Office of Education (2013) 57
Cal.4th 197, 212.) Notice is adequate for due process purposes as
long as it is “‘reasonably calculated, under all the circumstances,
to apprise [the parent] of the pendency of the action and afford
them an opportunity to present their objections.’” (In re Melinda
J. (1991) 234 Cal.App.3d 1413, 1418, quoting Mullane v. Central
Hanover Tr. Co. (1950) 339 U.S. 306, 314.) This standard does
not rigidly prescribe a specific form of notice; that is because due
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process is, by its very nature, “flexible.” (J.H. v. Superior Court
(2018) 20 Cal.App.5th 530, 536.)
II. Analysis
We conclude that the juvenile court’s order terminating
mother’s parental rights need not be vacated.
Even if we accept that the Department erred under section
294 and violated due process in sending mother notice via
certified mail but without return receipt, mother is still not
entitled to relief. That is because defects in notice—whether they
be statutory or constitutional in nature—are subject to harmless
error analysis except in the “narrow category” of cases in which
the party charged with giving notice makes “absolutely” “no
attempt” to do so. (J.H., supra, 158 Cal.App.4th at p. 182; In re
J.P. (2017) 15 Cal.App.5th 789, 798 [“The harmless error analysis
applies in juvenile dependency proceedings even where the error
is of constitutional dimension.”]; In re A.D. (2011) 196
Cal.App.4th 1319, 1327; In re Jesusa V. (2004) 32 Cal.4th 588,
624 [“We typically apply a harmless-error analysis when a
statutory mandate is disobeyed, except in a narrow category of
circumstances . . .”]; In re Daniel F. (2021) 64 Cal.App.5th 701,
715-716 [where agency makes “little to no effort” to provide
notice; harmless error analysis applied]; In re Christopher L.
(2020) 56 Cal.App.5th 1172, 1185; In re R.L. (2016) 4 Cal.App.5th
125, 145-146; cf. Jasmine G., supra, 127 Cal.App.4th at pp. 1115-
1116 [where agency makes “no attempt” to provide notice to
parent, error is structural and reversible per se without
examination of whether error was harmless]; In re DeJohn B.
(2000) 84 Cal.App.4th 100, 108 [same].) In overwhelmingly
favoring a harmless error analysis for defects in notice, the
California courts have heeded the admonition of our Supreme
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Court against an “unthinking” and “wholesale” application of a
rule of automatic reversal; to hit the reset button and re-do a
juvenile dependency proceeding without a predicate showing that
the result could be different is to delay the stability and
permanency that the children at the middle of the proceeding so
desperately need, and such pointless delay is “inherently
prejudicial” to those children. (In re James F. (2008) 42 Cal.4th
901, 917; J.P., at pp. 799-800; Jesusa V., at p. 625.)
The California courts are currently divided regarding the
standard by which harmlessness is to be assessed. Some courts
ask whether the defect in notice was harmless beyond a
reasonable doubt. (In re Steven H. (2001) 86 Cal.App.4th 1023,
1033; In re Mark A. (2007) 156 Cal.App.4th 1124, 1146; In re
Sabrina H. (2007) 149 Cal.App.4th 1403, 1419; In re Justice P.
(2004) 123 Cal.App.4th 181, 193.) Other courts ask whether, had
the defect in notice not occurred, there is a reasonable probability
of a more favorable outcome. (In re Al. J. (2019) 44 Cal.App.5th
652, 665; Daniel F., supra, 64 Cal.App.5th at pp. 715-716; accord,
Jesusa V., supra, 32 Cal.4th at p. 625.)
We need not weigh in on the split because any defect in the
notice given to mother satisfies the more stringent harmless error
test because the notice defect in this case was harmless beyond a
reasonable doubt. As a threshold matter, we reject mother’s
argument that the notice defect in this case is reversible per se.
The shortfall, if any, in the Department’s effort to notify mother
was its failure to request a return receipt; it is undisputed that
the Department sent her notice via certified mail. This is far
from a case where the Department made absolutely no attempt to
notify mother of the upcoming permanency planning hearing.
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Further, the defect in notice here was harmless beyond a
reasonable doubt for two reasons. First, based on mother’s
consistent pattern of opting not to attend prior dependency
hearings even after receiving proper notice, there is no reason to
believe mother would have attended the permanency planning
hearings even if the Department had requested return receipts.
(Accord, James F., supra, 42 Cal.4th at p. 917 [looking to what
the party who did not receive proper notice “would have” done
had they received proper notice].) Second, and more broadly,
there is no possibility that the outcome of the permanency
planning hearing would have been any different had mother
attended. (E.g., In re Angela C. (2002) 99 Cal.App.4th 389, 395-
396 [looking to whether the result of the hearing at issue would
have been different].) The sole issue at the permanency planning
hearings in this case was (1) whether Sebastian and Nehemiah
were adoptable, and (2) whether any exception to adoption
applied. There is no basis to contest that the children were
adoptable and the record forecloses the applicability of the only
relevant exception to adoption—namely, the beneficial parent-
child relationship exception. (§ 366.26, subds. (a) & (c)(1).) This
exception “applies in situations where a child cannot be in a
parent’s custody but where severing the child’s relationship with
the parent, even when balanced against the benefits of a new
adoptive home, would be harmful for the child,” so a court will
find the exception applicable only if the parent “establish[es]” “(1)
regular visitation and contact, and (2) a relationship, the
continuation of which would benefit the child such that (3) the
termination of parental rights would be detrimental to the child.”
(In re Caden C. (2021) 11 Cal.5th 614, 630, 631, original italics.)
Over the two years and three months that the juvenile court
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exerted jurisdiction in this case and that Sebastian or Nehemiah
were removed from mother’s custody, mother did not regularly
visit or contact either child; her sporadic visits, interspersed with
“significant lapses” in visits, do not meet the “regular visitation
and contact” element. (In re A.G.(2020) 58 Cal.App.5th 973, 994-
995; In re I.R. (2014) 226 Cal.App.4th 201, 212.) Nor could
mother produce any evidence at the permanency planning
hearings that would change this historical fact. Indeed, mother
on appeal offers no argument as to how her participation at the
hearings would have had any effect on their outcome. As a
result, any defect in notice in this case was harmless beyond a
reasonable doubt.
DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
CHAVEZ
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