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In re Desiree M.

January 26, 2010

IN RE DESIREE M. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW.
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
v.
REBECCA M., DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of San Diego County, Gary M. Bubis, Judge. Affirmed. (Super. Ct. No. SJ11870).

The opinion of the court was delivered by: Aaron, J.

CERTIFIED FOR PUBLICATION

Rebecca M. appeals the judgment terminating her parental rights over 14-year-old Desiree M. and 12-year-old Denise M.*fn1 Rebecca contends that Desiree and Denise were not properly notified of the continued Welfare and Institutions Code*fn2 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 Agency) 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.*fn3 The court found that "[n]notice 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.

II. 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."*fn4 (§ 294, subd. (d).)

If 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, disapproved on other grounds by In re Chantal S. (1996) 13 Cal.4th 196, 203-204.) " 'For a valid appeal one must be injuriously affected by the court's ruling in an immediate and substantial manner, and not as a ...


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