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In Re Gloria S., A Person Coming Under the Juvenile Court v. Adriana P

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA


December 17, 2010

IN RE GLORIA S., A PERSON COMING UNDER THE JUVENILE COURT LAW.
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, PLAINTIFF AND RESPONDENT,
v.
ADRIANA P., DEFENDANT AND APPELLANT.

Super. Ct. No. J516610B APPEAL from an order of the Superior Court of San Diego County, Yvonne E. Campos, Judge. Affirmed.

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

In re Gloria S. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Adriana P. appeals a juvenile court order terminating her parental rights to her minor daughter, Gloria S., under Welfare and Institutions Code section 366.26.*fn1 Adriana contends her due process rights were violated when notice of the section 366.26 selection and implementation hearing was not given to her in a "meaningful" way that she could understand in light of her intellectual disabilities. Adriana further contends the court abused its discretion by denying her request for a continuance. We affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

In December 2008 the San Diego County Health and Human Services Agency (Agency) filed a petition in the juvenile court under section 300, subdivision (b), alleging five-day-old Gloria was at substantial risk of harm because her parents, Adriana and Richard S. (together, the parents),*fn2 were incapable of providing her with regular care due to their mental illnesses and limited intellectual functioning. The petition also alleged the parents lost custody of another child, R.S., and failed to reunify with him because of unresolved issues related to the parents' diagnoses. The court detained Gloria in out-of-home care.

Adriana has cerebral palsy, is mildly mentally retarded and walks with the assistance of a walker. Richard has various personality disorders and borderline intellectual functioning. The parents received 18 months of services in R.S.'s case, including San Diego Regional Center and in-home support services, therapy, psychological evaluations, parenting education and visitation. When the parents were unable to reunify with R.S., the court terminated their parental rights to him.

At a contested jurisdiction and disposition hearing concerning Gloria, the parents were present and represented by counsel. The court sustained the allegations of the petition, declared Gloria a dependent and placed her in licensed foster care. The court declined to follow Agency's recommendation for no services, and ordered reunification services for the parents, including supervised visits with Gloria.

In a six-month review report, social worker Anthony Scheri stated the parents had not consistently shown they could safely parent Gloria. Scheri recommended the court terminate reunification services and set a section 366.26 selection and implementation hearing. He also recommended the parents' visitation with Gloria remain supervised based on his concerns about the parents' ability to safely care for her in an unsupervised setting.

Social worker Jo Miller reported that during a visit she supervised, the parents asked if Agency's permanent plan recommendation for Gloria was still adoption. Miller said she was still recommending the court "terminate services and set a .26 hearing." During a later visit, Adriana again asked Miller if she was still recommending adoption for Gloria. Miller explained to Adriana that she was "recommending termination of reunification services and setting a .26 hearing to terminate parental rights." Miller reminded Adriana "this is what the upcoming trial is about." Adriana seemed upset and said that if she had her way she would "snag" Gloria from the social worker.

The parents were present at the contested six-month review hearing. The court found by clear and convincing evidence that returning Gloria to parental custody would be detrimental to her physical and emotional well-being, and there was no substantial probability Gloria would be returned to her parents in the next six months. Finding the parents had not made substantive progress with their case plans, the court terminated services, set a hearing to select and implement a permanent plan under section 366.26, and ordered the parents to return for that hearing on May 11, 2010.

Immediately after the hearing, Adriana was personally served with notice of the selection and implementation hearing.*fn3 The notice informed Adriana that the social worker was recommending termination of parental rights and implementation of a plan of adoption. One of the pages, entitled "IMPORTANT NOTICE," provided that a section 366.26 hearing had been set, at which the court could terminate parental rights and free Gloria for adoption, establish legal guardianship, or place Gloria in a planned permanent living arrangement. The notice also informed Adriana she had the right to be present at that hearing and have an attorney represent her.

At the selection and implementation hearing on May 11, 2010, the parents were not present, but were represented by counsel. Richard's counsel informed the court that Richard declined to attend the hearing and was not in agreement with the recommended permanent plan of adoption for Gloria. Adriana's counsel said Adriana "was pretty much in agreement with [Richard]." The court found both parents had been notified of the hearing, but voluntarily chose to not attend. Adriana's counsel then requested a continuance so that Adriana could review the social worker's reports. Again noting Adriana had received notice and chose to not come to the hearing, the court denied the request for a continuance.

After considering the evidence and argument of counsel, the court found Gloria was adoptable and none of the exceptions to adoption applied. The court terminated parental rights and referred Gloria for adoptive placement.

DISCUSSION

I

Adriana contends her constitutional right to due process was violated because notice of the selection and implementation hearing was not given to her in a meaningful way that she could understand. Conceding she received actual notice of the hearing, Adriana asserts the notice was deficient because it did not: (1) take into account her unique circumstances and disabilities; (2) consider Richard's control over her; or (3) express the gravity and finality of the proceedings as they related to her parental rights. She argues the lack of due process notice was a fatal error in the court's jurisdiction and requires reversal of the order terminating parental rights.

A

As Agency points out in its Respondent's Brief, Adriana did not raise the issue of due process notice in the juvenile court. Ordinarily, a parent's failure to object or raise certain issues in the juvenile court prevents the parent from claiming error on appeal. (In re S.B. (2004) 32 Cal.4th 1287, 1293.) Application of the so-called "forfeiture rule," although not automatic, is designed to keep litigants from acquiescing and later seeking relief for error that could have been prevented or cured. (Ibid.; In re Riva M. (1991) 235 Cal.App.3d 403, 412.) " ' "The law casts upon the party the duty of looking after his [or her] legal rights and of calling the judge's attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his [or her] objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal." [Citation.]' [Citation.]" (In re Christina L. (1992) 3 Cal.App.4th 404, 416.) Even a claim that the due process right to notice was violated may be forfeited by not asserting that claim in the trial court. (People v. Marchand (2002) 98 Cal.App.4th 1056, 1060; People v. Barnum (2003) 29 Cal.4th 1210, 1223-1224; In re Desiree M. (2010) 181 Cal.App.4th 329, 334 [mother forfeited right to challenge notice received by minors by not objecting in the juvenile court]; In re Dakota H. (2005) 132 Cal.App.4th 212, 222 [mother forfeited due process claim by not bringing it to juvenile court's attention].)

Although we have discretion to excuse forfeiture, we exercise that discretion rarely and only in cases presenting an important legal issue. (In re S.B., supra, 32 Cal.4th at p. 1293.) Failure to enforce the forfeiture rule is manifestly unfair to the adverse party and the court because it would permit a parent to deliberately remain silent and permit the proceedings to reach a conclusion in which the parent could acquiesce if favorable and avoid if unfavorable. (In re Riva M., supra, 235 Cal.App.3d at p. 412.) This is especially true in dependency proceedings where "considerations such as permanency and stability are of paramount importance." (In re S.B., supra, at p.1293.)

B

Adriana's argument on appeal--that her disabilities and Richard's control over her required a different kind of notice, one that was meaningful to her--points out the necessity for bringing this issue to the juvenile court's attention in the first instance. Had an objection been made, the juvenile court could have taken evidence and weighed the various factors relevant to whether Adriana received the type of notice to which she believes she is entitled, and thereby created a factual basis for our review.*fn4 Adriana's counsel, who represented Adriana throughout these proceedings, did not claim or even suggest she was incapable of understanding the gravity, meaning or finality of the hearing because of her limited intellectual functioning or Richard's control over her. Consequently, the juvenile court had no opportunity to cure any notice deficiency. By her silence and acquiescence, Adriana has forfeited her right to claim error on appeal. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330,1339.)

C

Even had the issue not been forfeited, no due process violation occurred. Due process requires notice that is reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of an action and afford them an opportunity to object. (In re Melinda J. (1991) 234 Cal.App.3d 1413, 1418; In re Justice P. (2004) 123 Cal.App.4th 181, 188.) Due process is a flexible concept that depends on the circumstances of the case and a balancing of various factors. (In re Earl L. (2004) 121 Cal.App.4th 1050,1053.)

Here, Adriana was present in court when a hearing was set to select and implement a permanent plan for Gloria. The court ordered Adriana to return for that hearing on May 11, 2010. She was personally served with written notice of the selection and implementation hearing, which informed her of the date and time, her right to be present, and the social worker's recommendation to terminate parental rights and implement a plan of adoption for Gloria. Had Adriana been confused about the nature and gravity of the hearing, as she now claims she was, she had the benefit of counsel to clarify what was meant by the notice she received.*fn5 Adriana's due process rights were not violated because she had actual notice of, and the opportunity to participate in, the selection and implementation hearing.

Moreover, despite Adriana's disability and intellectual limitations, the record shows she was aware of the gravity of the upcoming hearing at which the court could terminate her parental rights. On two occasions before she received notice, Adriana asked the social worker if she was still recommending adoption for Gloria. The social worker explained her recommendation to have the court set a hearing to terminate parental rights had not changed, which caused Adriana to become upset and threaten to abscond with Gloria. Once Adriana was served with notice of the selection and implementation hearing, she informed the social worker she would not be there, insisting she was capable of caring for Gloria and did not want her to be adopted. The social worker encouraged Adriana to attend the hearing so her opinion could be heard. Further, this was not the first time Adriana faced the prospect of losing her parental rights. After Adriana received 18 months of services for R.S., her parental rights were terminated and R.S. was referred for adoptive placement. Based on these circumstances, a reasonable inference could be drawn that Adriana was aware of the nature of the selection and implementation hearing, including its gravity and finality, and her absence from that hearing was voluntary rather than the result of deficient notice. (Cf. In re Anna M. (1997) 54 Cal.App.4th 463, 467 [mother was twice deprived of notice of what was at stake at selection and implementation hearing].) No due process violation occurred.

II

Adriana contends the court abused its discretion by denying her request for a continuance. She asserts: (1) a continuance would have ensured she received proper notice; and (2) there was no showing a brief continuance would have been contrary to Gloria's best interests.

A

Under section 352, the juvenile court may grant a continuance of any hearing only on a showing of good cause and only if the continuance is not contrary to a minor's best interests. In considering the minor's interests, "the court shall give substantial weight to a minor's need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements." (§ 352, subd. (a); In re Ninfa S. (1998) 62 Cal.App.4th 808, 810.) Because "time is of the essence" for dependent children, continuances in juvenile cases are discouraged. (In re Josiah Z. (2005) 36 Cal.4th 664, 674; Jeff M. v. Superior Court (1997) 56 Cal.App.4th 1238, 1242.) We reverse an order denying a continuance only on a showing of an abuse of discretion. (In re Giovanni F. (2010) 184 Cal.App.4th 594, 605; In re Elijah V. (2005) 127 Cal.App.4th 576, 585.)

B

Here, Adriana's counsel sought a continuance so that Adriana could review Agency's reports and provide counsel with input. At no time did counsel suggest a continuance would have ensured Adriana's presence at the selection and implementation hearing. Indeed, the evidence showed Adriana did not intend to be present. Thus, she cannot now argue a continuance would have given her the opportunity to attend and participate in the hearing.

Further, as the court found, Adriana was "voluntarily, knowingly, willfully, and intelligently" absent from the selection and implementation hearing. The court noted: "This is a process that [the parents have] understood because of their prior flawless attendance at the many court hearings. I understand that the nature of today's proceeding, the .26 hearing, is distasteful to them as they are in strong opposition to it. But we will go forward." Because Adriana had actual notice of the hearing and chose not to attend, the court could reasonably find she had not shown good cause for a continuance.

Adriana argues a brief continuance would not have disrupted Gloria's "home life." However, this ignores both the court's obligation to control its calendar and the impact any delay would have on Gloria's custody status. A continuance of the selection and implementation hearing, regardless of how brief, was not in Gloria's best interests because it would have impacted her need for prompt resolution of her custody status and to have her placement made permanent and secure. The court acted well within its discretion by denying Adriana's continuance request.

DISPOSITION

The order is affirmed.

WE CONCUR: MCCONNELL, P. J. MCINTYRE, J.


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