San Diego County Health & Human Services Agency v. Rebecca M.
In re DESIREE M., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, and v. REBECCA M., and
- Area
- dependency
- Panel
- Cynthia Aaron (author)
Analysis
The trial court terminated the mother's parental rights at a continued section 366.26 hearing where the minor children were absent, relying on notice findings made at a prior hearing. The Court of Appeal affirmed, holding that the mother lacked standing to raise the children's notice issues, forfeited the claims by not raising them below, and that any error in the court's failure to inquire into the children's absence was harmless.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Standing to raise notice and inquiry issues regarding the minor children“Whether Desiree and Denise received notice of the continued 366.26 hearing and whether the court failed to inquire as to their absence from that hearing are matters affecting their rights, not Rebecca’s.” | de novo | not reached | agree with court The court held the mother lacked standing because the statutory rights to notice and inquiry belong solely to the children, distinguishing cases where parents assert exceptions to termination that they bear the burden to prove. |
Forfeiture of notice and inquiry issues“Rebecca did not raise the notice and inquiry issues in the juvenile court. She contends that she has not forfeited the right to raise these issues on appeal, arguing that the issues are ones of law, and that the juvenile court had an affirmative, mandatory duty to determine whether Desiree and Denise had received notice, and to inquire as to the reason for their absence from the hearing.” | de novo | not reached | agree with court The court held the issues were forfeited because the mother did not raise them in the juvenile court, noting that the dependency law favors expedited permanency and that the court could have remedied any error if alerted. |
Sufficiency of notice and harmlessness of failure to inquire“In view of the circumstances outlined above, any error was harmless. (See In re Angela C. (2002) 99 Cal.App.4th 389 [120 Cal.Rptr.2d 922] [lack of notice to mother of continued § 366.26 hearing was harmless where she had notice of the proceedings from the outset and the opportunity to be heard, her participation in the proceedings was poor, she was properly notified of original § 366.26 hearing date, and she failed to attend that hearing or notify anyone as to her position].)” | abuse of discretion | not reached | agree with court The court found that notice to the children's counsel was reasonably calculated to provide notice to the children, and that the trial court's failure to explicitly inquire into the absence was harmless given the children's consistent expressed desire for adoption and counsel's representation. |
Authorities
- relied: In re Sarah M. (1991) 233 Cal.App.3d 1486 — An appellant may contest only orders that injuriously affect them; they cannot urge errors affecting only another party who does not appeal.
- relied: In re Joshua S. (1986) 186 Cal.App.3d 147 — For a valid appeal, one must be injuriously affected by the court's ruling in an immediate and substantial manner.
- relied: In re Patricia E. (1985) 174 Cal.App.3d 1 — A parent has standing to raise issues affecting their interest in the parent-child relationship, especially where interests interweave.
- relied: In re L. Y. L. (2002) 101 Cal.App.4th 942 — A parent has standing to raise the sibling relationship exception to termination because it directly affects whether the parent retains rights.
- relied: In re S.B. (2004) 32 Cal.4th 1287 — Issues not raised in the juvenile court are generally forfeited on appeal, as the court could have remedied errors if alerted, consistent with the objective of expedited permanency.
- relied: In re Phillip F. (2000) 78 Cal.App.4th 250 — Notice to counsel can satisfy statutory notice requirements where counsel has a statutory obligation of competent representation.
- relied: In re Angela C. (2002) 99 Cal.App.4th 389 — Lack of notice of a continued section 366.26 hearing is harmless if the party had notice of the proceedings from the outset, had the opportunity to be heard, and failed to attend or notify anyone of their position.
The appellate opinion: sound — The opinion is sound because it correctly applies the standing doctrine to distinguish between a parent's own rights and the statutory rights of the minor children, and it properly applies the forfeiture rule in dependency cases to promote expedited permanency. The harmless error analysis is supported by the record showing the children's consistent desire for adoption and the presence of counsel.
The juvenile court terminated Rebecca M.'s parental rights to Desiree and Denise at a continued section 366.26 hearing at which the children, both over age 10, were absent but represented by counsel, and the court recited that notice findings had been made and preserved without inquiring into the children's absence. The Court of Appeal affirmed, holding that the mother lacked standing to assert the children's statutory notice and inquiry rights, that she forfeited the issues by not raising them below, and that in any event notice to the children through their counsel was sufficient under section 294(d) and the court's failure to inquire under sections 349(d) and 366.26(h)(2) was harmless.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Judgment terminating parental rights, challenged by the mother on the ground that the children were not properly notified of the continued section 366.26 hearing (threshold issues of standing and forfeiture)“Whether Desiree and Denise received notice of the continued 366.26 hearing and whether the court failed to inquire as to their absence from that hearing are matters affecting their rights, not Rebecca’s.” | unclear | correct | agree with court The court applied the general rule from In re Sarah M. and In re Joshua S. that an appellant may assert only errors that injuriously affect her, and distinguished L.Y.L. because the mother was not asserting an exception she bore the burden to prove but a statutory right belonging to the children, who were represented and did not appeal. It also found forfeiture under In re S.B. because the mother never raised the issue below. The standing analysis is defensible, but the opinion does not fully engage the mother's point that a 12-year-old's objection under section 366.26(c)(1)(B)(ii) would directly bar termination, which arguably makes the interests 'interwoven' under In re Patricia E.; footnote 5, however, shows no evidence Denise ever wavered, so the result is sound. |
Finding that notice of the continued July 17, 2009 section 366.26 hearing to the children was sufficient ('notice findings had been made and preserved')“The court could have reasonably inferred that the girls’ counsel had notified them of the July 17 hearing date, in conformance with counsel’s statutory obligation of competent representation.” | substantial evidence | correct | agree with court Under section 294(d), once proper notice of the original hearing is given and the Agency's recommendation does not change, notice of a continuance may be by any means the court determines is reasonably calculated to give notice. The children undisputedly received notice of the May 20 hearing, the recommendation never changed, their counsel was present when the July date was set, and counsel did not object to the notice recital. Relying on In re Phillip F., the court reasonably treated notice through counsel as adequate. One gap is that section 294(d) contemplates a determination by the juvenile court, and the appellate court instead reasoned that the court 'could have' so found; but given the record this is a minor point. |
Failure to inquire, under sections 349(d) and 366.26(h)(2), whether the absent children had been notified of their right to attend and given an opportunity to attend“When Desiree and Denise did not appear for the July 17, 2009, hearing, the court should have inquired whether they had been notified of their right to attend (§§ 349, subd. (d), 366.26, subd. (h)(2)) and had been given an opportunity to attend (§ 349, subd. (d)). The court did not do so.” | de novo | harmless error (procedure) | agree with court The statutes impose a mandatory inquiry when a child 10 or older is absent, and the court concededly did not make it, so the appellate court correctly identified error. The harmlessness conclusion is well supported: the children had been told of their right to attend, had notice through counsel, had consistently expressed a desire to be adopted in reports filed shortly before the hearing, and their counsel confirmed that wish at the hearing, so there is no reasonable probability the outcome would have differed. In re Angela C. supplies an apt analogy for harmless notice error in a continued section 366.26 hearing. |
Authorities
- relied: In re Sarah M. (1991) 233 Cal.App.3d 1486 — An appellant may contest only orders that injuriously affect him or her and cannot urge errors affecting only a nonappealing party.
- relied: In re Joshua S. (1986) 186 Cal.App.3d 147 — For a valid appeal one must be injuriously affected by the ruling in an immediate and substantial manner, not as a nominal or remote consequence.
- relied: In re Patricia E. (1985) 174 Cal.App.3d 1 — A parent has standing to raise issues affecting her interest in the parent-child relationship; where interests of two parties interweave, either may litigate issues impacting the related interests.
- relied: In re L.Y.L. (2002) 101 Cal.App.4th 942 — A parent has standing to assert the sibling relationship exception to termination because the parent bears the burden of establishing it and its applicability directly affects parental rights; distinguished here.
- relied: In re S.B. (2004) 32 Cal.4th 1287 — Dependency issues not raised in the juvenile court are generally forfeited on appeal, because the juvenile court could have remedied the error and permitting late challenges undermines the goal of expeditious permanency.
- relied: In re Phillip F. (2000) 78 Cal.App.4th 250 — Notice of a continued hearing to a party's counsel, coupled with counsel's statutory duty of competent representation and silence when notice findings are made, supports an inference that the party received notice.
- relied: In re Angela C. (2002) 99 Cal.App.4th 389 — Lack of notice to a parent of a continued section 366.26 hearing was harmless where the parent had notice of the proceedings and the original hearing date, had the opportunity to be heard, and did not attend or state a position.
- relied: In re Chantal S. (1996) 13 Cal.4th 196 — Cited only as disapproving In re Sarah M. on other grounds.
- relied: In re Celine R. (2003) 31 Cal.4th 45 — Cited only as disapproving In re Patricia E. on other grounds.
The appellate opinion: sound with gaps — The opinion correctly identifies the governing statutes, applies settled standing and forfeiture principles with appropriate authority, and reaches a well-supported harmless-error conclusion given the undisputed and consistent evidence that both children wanted to be adopted. It is somewhat thin in distinguishing L.Y.L. and Patricia E., since a 12-year-old's objection under section 366.26(c)(1)(B)(ii) would directly affect the parent's rights, and it substitutes its own 'could have found' inference for a section 294(d) determination the juvenile court never made.
Opinion — Aaron
Opinion
AARON, J.J.—Rebecca M. appeals the judgment terminating her parental rights over 14-year-old Desiree M. and 12-year-old Denise M.1 Rebecca contends that Desiree and Denise were not properly notified of the continued Welfare and Institutions Code2 section 366.26 hearing, and that the juvenile court did not make the statutorily required inquiry into the reason for their absence from that hearing. We affirm.
I. BACKGROUND
In September 2007, when Desiree was 12 years old and Denise was 10 years old, the San Diego County Health and Human Services Agency (the *332Agency) filed dependency petitions based on allegations that Rebecca had physically abused Desiree, and had a history of hitting both girls. Desiree and Denise were initially detained at Polinsky Children’s Center, and later, with a relative. In November, the girls were placed with maternal aunt Teresa P.
In January 2009, the court set a section 366.26 hearing for May 20. Desiree and Denise were given notice of the May hearing. The notice informed them of their right to be present and also informed them that the Agency was recommending that parental rights be terminated. In a report filed on May 7, the social worker stated that Teresa wanted to adopt Desiree and Denise, and that both girls wanted Teresa to adopt them. Denise also expressed her love for Rebecca and said that she wanted to continue to have contact with Rebecca.
In an addendum report filed on July 10, 2009, the social worker stated that Desiree and Denise still wanted Teresa to adopt them. The Agency continued to recommend termination of parental rights.
Desiree and Denise were not present at the July 17, 2009, hearing but were represented by counsel at the hearing.3 The court found that “[n]otice findings ha[d] been made and preserved.” Counsel for Desiree and Denise stated that both girls had “verbalized that they want to be adopted by their aunt.” Counsel asked the court to terminate parental rights and to order permanent plans of adoption.
H. DISCUSSION A. The Statutory Framework
A juvenile court dependent is entitled to attend the hearings in his or her case. (§§ 349, subd. (a), 366.26, subd. (h)(2).) The Agency must provide notice of the section 366.26 hearing to “[t]he child, if the child is 10 years of age or older.” (§ 294, subd. (a)(3).) Unless the Agency’s recommendation changes after the court makes its initial finding that notice has been properly given, “subsequent notice for any continuation of a Section 366.26 hearing may be by first-class mail to any last known address, by an order made pursuant to Section 296, or by any other means that the court determines is reasonably calculated, under any circumstance, to provide notice of the continued hearing.”4 (§ 294, subd. (d).)
*333If the dependent child is at least 10 years old and is not present at the section 366.26 hearing, “the court shall determine whether the minor was properly notified of his or her right to attend the hearing . . .” (§§ 349, subd. (d), 366.26, subd. (h)(2)) “and inquire whether the minor was given an opportunity to attend” (§ 349, subd. (d)) and “why the child is not present.” (§ 366.26, subd. (h)(2).) “If that minor was not properly notified or if he or she wished to be present and was not given an opportunity to be present, the court shall continue the hearing to allow the minor to be present unless the court finds that it is in the best interest of the minor not to continue the hearing.” (§ 349, subd. (d).)
B. Rebecca Lacks Standing to Raise the Notice and Inquiry
Issues
In general, “[a]n appellant may contest only such orders which injuriously affect him or her. The appellant cannot urge errors which affect only another party who does not appeal.” (In re Sarah M. (1991) 233 Cal.App.3d 1486, 1503 [285 Cal.Rptr. 374], disapproved on other grounds in In re Chantal S. (1996) 13 Cal.4th 196, 203-204 [51 Cal.Rptr.2d 866, 913 P.2d 1075].) “ ‘For a valid appeal one must be injuriously affected by the court’s ruling in an immediate and substantial manner, and not as a nominal or remote consequence.’ ” (In re Joshua S. (1986) 186 Cal.App.3d 147, 150 [230 Cal.Rptr. 437], citations & italics omitted.)
Rebecca contends that she has standing to raise the issues of notice to Desiree and Denise, and the court’s failure to inquire into their absence from the hearing. A parent has standing to raise issues affecting her interest in the parent-child relationship. (In re Patricia E. (1985) 174 Cal.App.3d 1, 6 [219 Cal.Rptr. 783], disapproved on other grounds in In re Celine R. (2003) 31 Cal.4th 45, 58-60 [1 Cal.Rptr.3d 432, 71 P.3d 787].) “Where the interests of two parties interweave, either party has standing to litigate issues that have a[n] impact upon the related interests.” (In re Patricia E., supra, at p. 6.)
Rebecca argues that the issue of notice to Desiree and Denise directly impacts her parental rights, and that her interests are interwoven with the girls’ interests. Specifically, Rebecca asserts that if Denise had attended the hearing, she might have said that she did not wish to be adopted, and that because Denise was more than 12 years old at the time of the hearing, her objection could have prevented the termination of parental rights. (§ 366.26, subd. (c)(l)(B)(ii).)5
*334Rebecca relies on In re L. Y. L. (2002) 101 Cal.App.4th 942 [124 Cal.Rptr.2d 688] (L.Y.L.) to support her contention that she has standing to raise the issue of the court’s failure to inquire as to the reason for the girls’ absence from the hearing. In L.Y.L., this court held that a parent has standing to raise the sibling relationship exception to termination of parental rights because the applicability of the exception directly affects whether the parent retains parental rights. (Id. at pp. 948-951; § 366.26, subd. (c)(l)(B)(v).) In reaching this conclusion, the L.Y.L. court reasoned that “[i]f the parent has the burden of establishing [an] exceptionf] . . . , the parent must have standing to assert the exception.” (L.Y.L., supra, at p. 949.) L.Y.L. is not controlling under the circumstances of this case, Rebecca is not asserting an exception to termination of parental rights that she bears the burden to establish. Rather, she is attempting to assert a statutory right that belongs solely to Desiree and Denise. (Stats. 2008, ch. 166, § 1.) Whether Desiree and Denise received notice of the continued 366.26 hearing and whether the court failed to inquire as to their absence from that hearing are matters affecting their rights, not Rebecca’s. Desiree and Denise have been represented by counsel at all proceedings in this case, and have not appealed.
C. Rebecca Forfeited Any Right to Raise the Notice and Inquiry Issues
Rebecca did not raise the notice and inquiry issues in the juvenile court. She contends that she has not forfeited the right to raise these issues on appeal, arguing that the issues are ones of law, and that the juvenile court had an affirmative, mandatory duty to determine whether Desiree and Denise had received notice, and to inquire as to the reason for their absence from the hearing. If Rebecca had brought this matter to the attention of the juvenile court, the court could have remedied any error. (In re S.B. (2004) 32 Cal.4th 1287, 1293 [13 Cal.Rptr.3d 786, 90 P.3d 746].) Allowing Rebecca to raise these issues for the first time on appeal would contravene the dependency law’s objective of expediently providing a permanent home for children whose parents have been unable to reunify with them. (Ibid.)
D. Although the Court Should Have Inquired into Desiree and Denise’s Absence from the Continued Hearing, They Were Provided Sufficient Notice, and Any Error Was Harmless
Even if Rebecca had standing and had not forfeited the right to raise the notice and inquiry issues, she would not prevail on the merits.
*335It is undisputed that Desiree and Denise were given notice of the May 20, 2009, section 366.26 hearing. Between May 20 and July 17, the Agency did not change its recommendation that parental rights be terminated. Thus, notice to Desiree and Denise of the July 17 hearing was sufficient if it was done by means reasonably calculated to give the girls notice. (§ 294, subd. (d).) The circumstances show that the notice was sufficient.
Although Desiree and Denise did not attend the May 20, 2009, hearing, their attorney was present at that hearing when the court made its notice finding and set the contested hearing for July 17. The court could have reasonably inferred that the girls’ counsel had notified them of the July 17 hearing date, in conformance with counsel’s statutory obligation of competent representation. (§ 317.5; see In re Phillip F. (2000) 78 Cal.App.4th 250, 259 [92 Cal.Rptr.2d 693] [notice to parent].) The reasonableness of such an inference is bolstered by counsel’s silence after the court’s statement at the July 17 hearing that “[n]otice findings ha[d] been made and preserved.” (In re Phillip F, supra, at p. 259.)
Further, Desiree and Denise were informed of their right to attend hearings. They were present in court on November 6, 2008, when their counsel announced that they wished to attend the next hearing. The court stated that the girls had the right to be present and ordered them to return. Desiree and Denise did not return, apparently due to a misunderstanding regarding the time of the hearing.
When Desiree and Denise did not appear for the July 17, 2009, hearing, the court should have inquired whether they had been notified of their right to attend (§§ 349, subd. (d), 366.26, subd. (h)(2)) and had been given an opportunity to attend (§ 349, subd. (d)). The court did not do so. However, the court could have reasonably found that notice to Desiree and Denise’s attorney of the continued hearing constituted a means reasonably calculated to provide them notice. In view of the circumstances outlined above, any error was harmless. (See In re Angela C. (2002) 99 Cal.App.4th 389 [120 Cal.Rptr.2d 922] [lack of notice to mother of continued § 366.26 hearing was harmless where she had notice of the proceedings from the outset and the opportunity to be heard, her participation in the proceedings was poor, she was properly notified of original § 366.26 hearing date, and she failed to attend that hearing or notify anyone as to her position].)
*336DISPOSITION
Judgment affirmed.
Huffman, Acting P. J., and McIntyre, J., concurred.
The court also terminated Rebecca’s rights to a third child, but Rebecca does not make any contentions regarding that child.
All statutory references are to the Welfare and Institutions Code.
Rebecca did not attend either the May 20 hearing or the July 17 hearing, but was represented by counsel on both dates.
Section 296 allows the court to order that parties who are present at a hearing return to court.
Rebecca’s conjecture that Denise might have changed her mind about adoption is premised on two points: Denise indicated that she wished to continue to have contact with Rebecca, and two months had elapsed since Denise said that she wanted to be adopted. The addendum report, which was written just 15 days before the hearing, stated that Desiree and Denise *334“continually express their desire to be adopted ....’’ The girls’ counsel reiterated that this was the girls’ desire at the hearing. There is no evidence that Denise ever wavered in her desire to be adopted.
Cites, in this corpus
- In Re Celine R. S111138 · 2003-07-07
- In Re LYL D039515 · 2002-10-02
- San Diego County Health & Human Services Agency v. L. L. No. D039515 · 2002-09-04
- In Re Angela C. F039609 · 2002-06-14
- In Re Phillip F. F033413 · 2000-02-15
- Riverside County Department of Public Social Services v. Randall S. No. S046778 · 1996-04-22
- In Re Sarah M. F013598 · 1991-09-10
- In Re Joshua S. F006496 · 1986-09-30
- Sacramento County Welfare Department v. Roy E. Civ. 22649 · 1985-11-06