In re T.P. CA4/1

• Court: California Court of Appeal
• Decided: April 7, 2016
• Docket: D068618
• Status: Unpublished

Opinion

Filed 4/7/16 In re T.P. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re T. P., A Person Coming D068618 Under the Juvenile Court Law. _____________________________________

SAN DIEGO HEALTH AND HUMAN (Super. Ct. No. NJ014711) SERVICES AGENCY,

Petitioner and Respondent

v.

M. P.,

Defendant and Appellant,

APPEAL from an order of the Superior Court of San Diego County, Michael

Imhoff, Commissioner. Order affirmed.

Neil R. Trop, under appointment by the Court of Appeal, for Defendant and

Appellant.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County

Counsel and Daniela Davidian, Deputy County Counsel, for Plaintiff and Respondent. M.P. (Mother) appeals a juvenile court order terminating parental rights to her

daughter T.P. She contends the San Diego County Health and Human Services Agency

(the Agency) did not exercise due diligence in an effort to locate her before opting to

serve notice of the Welfare and Institutions Code section 366.26 hearing upon her

attorney instead of serving her, and that the failure to provide personal

notice to her in the manner required by statute constituted a violation of her fundamental

due process rights. (Undesignated statutory references are to the Welfare and Institutions

Code.) She also contends the evidence does not show that T.P. was generally adoptable.

We reject her contentions and affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

In September 2012, the Agency filed a petition alleging that T.P. (then 13 years

old) was a minor described by section 300, subdivision (j) because her sister, 17-year-old

K.P., had been sexually abused by their father (Father), Mother had failed to protect K.P.

and T.P. was therefore at substantial risk of being sexually abused. The Agency also

filed petitions for K.P. and T.P.'s six other siblings. T.P. and two of her siblings were

detained in the nonrelated extended family member (NREFM) home of Leigh and Greg

L. T.P.'s other siblings were spread among another NREFM home, as well as the homes

of their two adult sisters.

At the December 2012 contested jurisdictional hearing, the juvenile court

sustained T.P.'s petition. She was later declared a dependent of the juvenile court,

removed from her parents' custody and placed in Leigh and Greg's home. The court

granted Mother unsupervised visits. In the meantime, Father was incarcerated and

2 Mother filed for divorce. At the January 2014 twelve-month review hearing, the court

ordered that T.P. remain in her NREFM placement. The court found that Mother had

made substantive progress with the provisions of her case plan, but it terminated Father's

court-mandated reunification services.

In March 2014, the Agency could not locate Mother and T.P.'s five siblings. At

the April 2014 eighteen-month review hearing, the juvenile court terminated Mother's

court-mandated reunification services. It found that the appropriate permanent plan for

T.P. was another planned permanent living arrangement and continued her NREFM

placement. In a March 2015 report, the social worker stated the Agency had been unable

to notice the parents of the section 366.26 hearing, and she had been informed it was

possible Mother was in South Africa with Father and the younger siblings.

The Agency mailed notice of the August 2015 section 366.26 hearing to Mother's

trial counsel. At the hearing, the juvenile court found that reasonable search efforts had

been made to locate and notify Mother of the proceeding, terminated the parents' parental

rights and found that T.P. was adoptable. Mother timely appealed.

DISCUSSION

I. Notice to Mother

Mother contends the juvenile court erred in failing to notice her and T.P.'s

grandparents of the section 366.26 hearing and in finding that the Agency used due

diligence in attempting to locate her. The Agency asserts Mother forfeited the alleged

error because her attorney never argued the notice in this case was defective or that there

had been a violation of due process. We agree with the Agency.

3 Parents must be notified of all proceedings involving the minor. (§ 302, subd.

(b).) Notice must be "reasonably calculated, under all the circumstances, to apprise

interested parties of the pendency of the action and afford them an opportunity to present

their objections." (Mullane v. Central Hanover B. & T. Co. (1950) 339 U.S. 306, 314.)

Section 294 specifies the necessary contents, timing, and methods for service of the

notice for a section 366.26 hearing. Subdivision (f) of section 294 describes seven

methods by which notice of a section 366.26 hearing may be given to a parent, including,

service on a parent's attorney if the whereabouts of the parent is unknown and there has

first been due diligence in attempting to locate and serve the parent. (§ 366.23, subd.

(f)(7)(A).) Additionally, if the parent's whereabouts are unknown, the Agency is required

to provide notice of a section 366.26 proceeding to the grandparents of the child, if their

address is known. (§ 294, subd. (a)(5).) Nonetheless, a parent can forfeit any

deficiencies in providing statutory notice by failing to raise them in the juvenile court.

(In re Lukas B. (2000) 79 Cal.App.4th 1145, 1152 [failure to object to inadequate notice

forfeited claim on appeal]; In re Joseph E. (1981) 124 Cal.App.3d 653, 657 [points not

raised in trial court may not be urged for first time on appeal].)

Here, at the July 2015 selection and implementation hearing, neither of the parent's

attorneys objected to the notice finding. At the contested section 366.26 hearing in

August 2015, the juvenile court made a finding that notice had been given. The attorneys

for the parents again raised no objection to the notice provided in this case. Mother's

attorney never argued the notice to her or the grandparents was defective or that there had

4 been any violation of due process. Accordingly, Mother forfeited any claimed error in

notice.

In any event, even assuming Mother did not forfeit the issue and notice to her and

the grandparents was deficient, we conclude any deficiency was harmless. (In re A.D.

(2011) 196 Cal.App.4th 1319, 1325 (A.D.) ["a failure to give notice in dependency

proceedings is subject to a harmless error analysis"].) As we shall discuss, even if

Mother or the grandparents had attended the hearing, the evidence compelled the juvenile

court to rule as it did. (Post, pt. II.)

We reject Mother's argument that the notice errors amount to reversible per se

structural errors. In In re James F. (2008) 42 Cal.4th 901, our Supreme Court considered

whether the juvenile court's error in the procedure used to appoint a guardian ad litem for

the father constituted structural error, requiring automatic reversal of an order terminating

the father's parental rights, or instead was trial error subject to harmless error review. (Id.

at p. 910.) Our high court applied the harmless error standard to the due process

challenge and cautioned against use of the structural error doctrine in dependency cases.

(Id. at p. 915.) Analyzing In re James F., the court in A.D. applied the harmless error

standard to evaluate the Agency's alleged failure to provide notice of the 12-month

review hearing. (A.D., supra, 196 Cal.App.4th at p. 1327.)

Mother's reliance on In re Jasmine G. (2005) 127 Cal.App.4th 1109 and In re

DeJohn B. (2000) 84 Cal.App.4th 100 is inapt. In these cases, there was a complete

failure to make any attempt to give notice. (In re Jasmine G., at p. 1116.; In re DeJohn

B. at pp. 102, 110.) Here, the representations of Mother's counsel at the hearing show

5 Mother had notice of the hearing as counsel had communicated with Mother by e-mail

and Mother declined to appear by telephone.

II. Adoptability Finding

At the section 366.26 permanent plan selection and implementation hearing, the

juvenile court has three options: (1) terminate parental rights and order adoption as the

permanent plan, (2) appoint a legal guardian for the dependent child, or (3) order the

child placed in long-term foster care. (In re Fernando M. (2006) 138 Cal.App.4th 529,

534.) Adoption is the permanent plan preferred by the Legislature. (Ibid.) All that is

required to show a dependent child is adoptable is "clear and convincing evidence of the

likelihood that adoption will be realized within a reasonable time." (In re Zeth S. (2003)

31 Cal.4th 396, 406; see § 366.26, subd. (c)(1).) The issue of adoptability focuses on the

child and whether the child's age, physical condition and emotional health make it

difficult to find a person willing to adopt that child. (In re Zeth S., at p. 406.) Once the

juvenile court finds by clear and convincing evidence that the child is likely to be adopted

within a reasonable time, the court is required to terminate parental rights and select

adoption as the permanent plan "unless the parent shows that termination of parental

rights would be detrimental to the child under one of the exceptions listed in section

366.26, subdivisions (c)(1)(A) and (B)." (In re Michael G. (2012) 203 Cal.App.4th 580,

589.)

Here, Mother does not contend that one of the exceptions to adoption apply;

rather, she asserts the juvenile court erred in finding T.P. was generally adoptable. The

standard on review is whether there is substantial evidence to support the finding the

6 child is likely to be adopted within a reasonable time. (In re Zeth S., supra, 31 Cal.4th at

p. 406.) "[T]he law does not require a juvenile court to find a dependent child 'generally

adoptable' before terminating parental rights. All that is required is clear and convincing

evidence of the likelihood that the dependent child will be adopted within a reasonable

time." (In re A.A. (2008) 167 Cal.App.4th 1292, 1313.) The fact that a prospective

adoptive family is willing to adopt the child is evidence that the child is likely to be

adopted by that family or some other family in a reasonable time. (In re Lukas B., supra,

79 Cal.App.4th at p. 1154.)

The record shows that T.P. was specifically adoptable as her caregivers were

committed to adopting her and T.P. wanted to be adopted by her caregivers. The

caregivers had an approved placement and had completed the necessary criminal and

child welfare background clearances. A social worker described T.P. as "a healthy,

smart, active, and sweet 16 year old girl" and assessed her as generally adoptable "due to

her many positive attributes, good health[], and normal development." There were six

possible San Diego County Adoptions families approved to adopt a child matching T.P.'s

characteristics. Thus, the record also supported a finding that T.P. was generally

adoptable despite her age. In summary, the evidence supported a finding that T.P. was

likely to be adopted by her caregivers or by another family.

Mother contends that should T.P.'s caretakers not adopt her, T.P. would not want

to be adopted by strangers and that T.P. should remain at the caregivers' home under a

plan of long-term foster care. Where, as here, a child is adoptable based on a particular

family's willingness to adopt the child, the trial court must determine whether there is a

7 legal impediment to adoption. (In re Carl R. (2005) 128 Cal.App.4th 1051, 1061.) The

court found no legal impediment to adoption existed and Mother cited no evidence

showing the existence of any possible legal impediment to adoption by T.P.'s current

caregivers. T.P.'s caregivers have known her since she was five years old, began tutoring

her twice a week when she was seven years old, maintained contact with her thereafter

and are currently committed to adopting her. It is not reasonably likely that T.P.'s

caregivers will abandon her at this juncture. Thus, we reject Mother's speculative

argument that long-term foster care was the better plan for T.P. as the evidence amply

supported the juvenile court's finding that T.P. was likely to be adopted by her current

caregivers in a reasonable time.

DISPOSITION

The order selecting adoption as T.P.'s permanent plan and terminating parental rights

is affirmed.

McINTYRE, J.

WE CONCUR:

HUFFMAN, Acting P. J.

O'ROURKE, J.