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In Re G.M., A Person Coming Under the Juvenile Court Law. v. J.H


January 25, 2011


Super. Ct. No. JD229644

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

In re G.M. CA3


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Appellant, the mother of the minor, appeals from the juvenile court's order terminating parental rights. (Welf. & Inst. Code, §§ 366.26, 395.)*fn1 She contends that her due process and statutory rights were violated when the juvenile court ruled on her request for modification in her absence without proper notice. We agree with this contention, rendering it unnecessary to reach appellant's other claim. Accordingly, we shall reverse the order terminating parental rights and remand the matter for a hearing on appellant's request for modification.


In April 2009 a dependency petition was filed on behalf of the Sacramento County Department of Health and Human Services (the Department) concerning the 10-month-old minor, which, as later amended, alleged appellant had "a substance abuse problem dating back to at least 1997," she tested positive twice for methamphetamine in March 2009, marijuana was found in her home, and the minor tested positive for methamphetamine at the time of her removal. It was further alleged that, in 2001, the minor's three half siblings had been adjudicated dependents of the court based on appellant's substance abuse, and her parental rights to two of these children were subsequently terminated.

Although appellant initially was inconsistent in attending visitation, she acted appropriately at the visits that did occur and was assessed as having a positive bond with the minor. Nonetheless, the social worker recommended against offering appellant services, based on her belief that appellant could not rehabilitate from her substance abuse problem in time to reunify with the minor.

In June 2009 the juvenile court sustained the allegations in the petition and denied appellant reunification services, based on her chronic substance abuse and her failure to reunify with her other children. (§ 361.5, subd. (b)(10), (11) & (13).) The minor's father was granted services. A few days later, the minor was moved to a foster-adopt home to provide permanence in the event that reunification efforts failed.

In November 2009 appellant filed a request to modify the juvenile court's previous order, seeking reunification services. She alleged she had not used drugs since March 2009, was living in a shelter program, and was attending substance abuse counseling and 12-step meetings. The juvenile court set the matter for a hearing.

Appellant did not appear at the hearing on her modification request, which was set on the same date as the six-month review hearing. Noting that appellant's failure to appear for the hearing was "cause for concern" as to her ability to meet the minor's needs and to "continue to stay on track," the juvenile court found it would not be in the minor's best interests to offer appellant reunification services. At the same hearing, the court terminated the father's services and set the matter for a hearing pursuant to section 366.26 to select and implement a permanent plan for the minor.

While the section 366.26 hearing was pending, appellant filed another request for modification, again seeking reunification services. She alleged, in part, that she had not used drugs for more than a year, was fully compliant with the drug court program, was attending 12-step meetings, and had stable housing. She attached documentation and pictures to verify these assertions. Appellant alleged that offering her services would be in the minor's best interest because appellant had achieved stability and the minor responded "in a very positive manner" to visits with her. The juvenile court set the matter for a hearing on the date set for the section 366.26 hearing.

According to the social worker's report for the section 366.26 hearing, appellant had two-hour visits once per month with the minor. The social worker had observed a recent visit, during which the minor was "engaged" the whole time but was happy when reunited with her foster mother. Later reports stated that the minor spent the first half of the visit "more focused on playing with the toys than interacting with [appellant] or [the maternal] grandmother" and that she separated "quite easily" from appellant at the end of the visit. The social worker characterized the visit as "more of a 'playdate' interaction than a parent-child interaction." Meanwhile, the minor "appear[ed] to have developed a close relationship" with her foster parents.

Appellant was present on the date scheduled for the section 366.26 hearing. Her attorney described the evidence he would present to establish changed circumstances and stated he hoped to demonstrate that there was a bond between appellant and the minor by "evaluat[ing] the previous visitations." The juvenile court stated that it was going to allow appellant to call witnesses at the hearing on her modification request prior to the section 366.26 hearing, but that it did not see "much evidence with regard to the best interest." In addition to setting a trial date, the court set the matter for a readiness conference and instructed appellant's attorney that he would need to present "a pretty well-developed offer of proof" regarding his witnesses' testimony. Although the reporter's transcript does not reflect that the court ordered appellant to be present at either of these hearings, the minute order from the hearing states she was ordered to personally appear at both hearings. A certificate of mailing reflects that appellant was sent a copy of the "Court's Order" from this hearing.

Appellant's attorney filed a pretrial statement, generally setting forth the steps appellant had taken to address her substance abuse problem and asserting that there was a "visible bond" between appellant and the minor during visits.

Appellant did not appear at the readiness conference. Her attorney stated he had spoken to her earlier in the week and did not know why she was not present, but he speculated that she may have thought she did not need to attend the readiness conference. The juvenile court stated it was "very troubled" by appellant's absence because she failed to appear for the hearing on her previous request for modification. The court noted it had checked the minute order from the previous hearing, which reflected that appellant was ordered to be present.

Appellant's attorney described the testimony he expected from various witnesses regarding appellant's substance abuse recovery. He stated that appellant would testify that she had remained "clean and sober" and no longer had mental health problems, and that she had "a new house . . . a new job, a new car, driver's license, [and] car insurance." The attorney planned to call the visit supervisor regarding the bond between appellant and the minor.

The juvenile court commented that, while there was evidence appellant had "come a long way in terms of . . . her own stability and functioning," it was "difficult to overlook" her absence from the hearing. The court noted "the minute order was very clear that she needed to be here" and that this was ordered "because it was key in terms of the Court either ruling on the [modification request] or granting trial." The court stated that, while appellant appeared close to being able to establish changed circumstances, "the key issue" was whether modification would be in the minor's best interest, an issue on which "[n]one of the witnesses really have anything to offer." The court acknowledged the visit supervisor would testify that visits had gone well, but the reports before the court already established this. The court then stated it was "going to deny the contested proceeding," noting: "I think I would have benefited probably the most from hearing what mother's testimony was going to be, but mother is not here today. So she really kind of hurt her own circumstances by failing to appear today." The court stated if there was a good reason why appellant had not appeared, it would reconsider whether to permit a contested hearing.

The court then proceeded to hear arguments on appellant's modification request, after which it denied her request for reunification services. The court based its ruling on the minor's age, the time she had been out of appellant's home, and her "familial attachment" to her current caretakers and not appellant. In addition, based on appellant's significant history of drug abuse and failing to reunify with other children, the court noted: "[T]o disrupt this child's permanency and bond with her current caretaker with the hope that [appellant] will this time truly have resolved the issues and be able to parent the child is just too speculative."

Appellant was present at the section 366.26 hearing the following month, at which time new counsel substituted in for her. Appellant testified she felt she had a bond with the minor, explaining that she was with the minor every day before the minor was removed. Appellant described her first two visits with the minor as "kind of rough," in that the minor cried and held her the entire time. According to appellant, at the beginning of each visit, the minor came up to her and wanted to be picked up. If the minor became distressed during a visit, she would come to appellant. Appellant testified that, until the last visit, the minor cried when she left. The maternal grandmother also testified that there was a bond between appellant and the minor.

During a discussion of whether photographs of appellant's home were relevant, appellant's attorney explained that they were asking the court "not to terminate [appellant's] parental rights" and to "consider . . . giving her reunification services." The court responded: "The opportunity to present information about reopening reunification was at the hearing on the [modification request]. That was held a while back. Unfortunately, [appellant] did not appear for that hearing." Appellant then stated that she was told she did not need to be present. The court replied: "[W]e're not going to get into that. That issue has already been adjudicated as to return and reopening of reunification services."

Following testimony, appellant's attorney argued that an exception to adoption applied based on appellant's beneficial parental relationship with the minor. Relying on the observations of the visit supervisor and the social worker, the juvenile court concluded that severing the minor's relationship with appellant would not deprive her "of such a substantial positive attachment that the [minor] will be greatly harmed." Accordingly, the court ordered adoption as the permanent plan and terminated parental rights. The court encouraged appellant to continue with the progress reflected in her modification request, stating that it had "made its decision based on the information" it had and it could not "go back as to why you were or were not here."


Appellant argues that her due process and statutory rights were violated when the juvenile court ruled on her modification request in her absence on the date the matter was set for a readiness conference. We agree.

When a hearing is ordered on a request for modification, prior notice of the hearing is required. (§ 388, subd.(d).)

Likewise, due process mandates "notice 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 [94 L.Ed 865, 873].) "[T]he central meaning of procedural due process [is] clear: 'Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.'" (Fuentes v. Shevin (1972) 407 U.S. 67, 80 [32 L.Ed.2d 556, 569-570].)

The juvenile court here ordered a hearing on appellant's request for modification. Accordingly, appellant had both a statutory and a due process right to notice of when the hearing would occur and affording her an opportunity to be heard. She was denied these rights when the juvenile court proceeded with the hearing in her absence at the readiness conference. (See In re Wilford J. (2005) 131 Cal.App.4th 742, 750; In re Nemis M. (1996) 50 Cal.App.4th 1344, 1352; In re Dolly D. (1995) 41 Cal.App.4th 440, 446.) Contrary to the Department's contention, it is immaterial whether appellant was ordered to be present at the readiness conference. "[N]onappearance at a [pretrial readiness conference] does not justify conducting an entirely different proceeding . . . ." (In re Wilford J., supra, 131 Cal.App.4th at p. 750.)

The Department raises numerous arguments as to why appellant's notice claim should fail. We are unpersuaded.

According to the Department, appellant's claim was forfeited when her first attorney failed to request a continuance at the readiness conference and her second attorney did not seek to reopen the hearing on appellant's modification request at the subsequent hearing. It is true that "when a parent ha[s] the opportunity to present [a lack of notice] issue to the juvenile court and fail[s] to do so," the issue may be deemed forfeited. (In re Wilford J., supra, 131 Cal.App.4th at p. 754.) However, appellant never truly had the opportunity to object to the notice problem. She was not present at the readiness conference, and based on her attorney's comments regarding his conversation with her, it cannot be inferred that she knowingly and intelligently waived adequate notice and her right to be present at the hearing on her modification request. At the subsequent hearing, appellant appeared with a new attorney, who attempted to present evidence on the modification issue. This suggests that neither appellant nor her new counsel was aware of the anomalous procedure followed by the court at the previous hearing. Appellant's attempt to explain her absence at the previous hearing -- akin to an objection -- was rejected by the court without consideration. Under such circumstances, we will not deem appellant's failure to formally object to the hearing proceeding in her absence to be a forfeiture of the issue.*fn2

Next, the Department argues that at the readiness conference, the juvenile court merely reversed its earlier order granting appellant a hearing based on her attorney's "insufficient" offer of proof. We do not agree with this characterization of events.

A parent may petition the juvenile court for a hearing to modify a prior order "upon grounds of change of circumstance or new evidence." (§ 388, subd. (a).) The court is required to order a hearing "[i]f it appears that the best interests of the child may be promoted by the proposed change of order." (§ 388, subd. (d).) "The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing." (In re Marilyn H. (1993) 5 Cal.4th 295, 310; see Cal. Rules of Court, rule 5.570(d) & (f) [undesignated rule references are to the California Rules of Court].)

Here, the juvenile court set a hearing on appellant's written request for modification, impliedly finding that appellant had set forth a prima facie showing of changed circumstances and that modification might be in the minor's best interest. Once a prima facie showing was made, appellant was entitled to a hearing on her request for modification.

At the readiness conference, the juvenile court did not purport to reverse its prior finding that appellant had set forth a prima facie showing sufficient to warrant a hearing. Rather, the court concluded that witness testimony would not add anything to the documentary evidence already received by it. A juvenile court is not necessarily required to proceed by way of witness testimony at a hearing on a modification request (see rule 5.570(f)), but it is required to give prior notice and afford the parties an opportunity to be heard. Even though the juvenile court stated it would have benefited from hearing what appellant had to say with regard to her modification request, it deprived her of that opportunity by proceeding with the hearing in her absence on a date other than when it had notified her that the trial would take place.

Finally, the Department maintains that any error that may have occurred is subject to a harmless-beyond-a-reasonable-doubt analysis and that, under such analysis, no error can be shown. Even if we assume the Department is correct as to the standard of review on appeal (compare, e.g., In re Daniel S. (2004) 115 Cal.App.4th 903, 912 [notice errors do not automatically require reversal] with In re Jasmine G. (2005) 127 Cal.App.4th 1109, 1116 [failure to provide notice of the section 366.26 hearing requires automatic reversal]), we cannot deem the error harmless under this standard. On the date scheduled for the readiness conference, the juvenile court repeatedly commented on appellant's absence from the hearing, stating at one point that it "would have benefited probably the most from hearing what [her] testimony was going to be." At the end of the section 366.26 hearing, the court noted the progress reflected in appellant's modification request, commenting that it could not consider why she had been absent at the previous hearing and that it had ruled based on the information before it. All of these statements suggest that appellant's presence at the readiness conference quite possibly could have affected the court's determination.

The Department argues that appellant's petition for modification was not "legally sufficient to require a full hearing" because it did not establish that providing her services would be in the best interests of the minor. But appellant's petition was only required to allege facts showing "the best interests of the child may be promoted by the proposed change of order." (§ 388, subd. (d), italics added.) As already discussed, the juvenile court impliedly found a prima facie case to this effect when it set the matter for a hearing. Only once the matter was set for a hearing was appellant obligated to "show" that the minor's best interests would be served by offering appellant reunification services. Because the court conducted the hearing in appellant's absence without notice, she was never afforded the opportunity to make this showing. Accordingly, we will remand the matter for this purpose.


The juvenile court's order terminating parental rights is reversed. The order denying appellant's request for modification is also reversed, and the matter is remanded with directions to the court to conduct a new hearing on the request for modification, preceded by proper notice. If, after a hearing, the juvenile court does not find changed circumstances and that a modification would be in the minor's best interests, the order terminating parental rights shall be reinstated.

We concur:



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