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In Re K.G., A Person Coming Under the Juvenile Court Law. v. J.P

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)


July 14, 2011

IN RE K.G., A PERSON COMING UNDER THE JUVENILE COURT LAW. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
v.
J.P., DEFENDANT AND APPELLANT.

(Super. Ct. No. JD228657)

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

In re K.G.

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

J.P., father of the minor, appeals from orders of the juvenile court terminating his parental rights. (Welf. & Inst. Code, §§ 366.26, 395 [undesignated statutory references are to the Welfare and Institutions Code].) Father contends there was insufficient evidence supporting the court's finding that he was provided reasonable reunification services including visitation. Father asserts he may raise this issue on appeal because he was not given notice of his right to writ review of the hearing setting the selection and implementation hearing. We affirm.

FACTS

In November 2008, the five-month-old minor and his half sibling were removed from parental custody due to the mother's neglect and substance abuse. Father was in federal prison in Los Angeles and not due for release until June 2009. The court ordered father to participate in parenting classes and substance abuse services if offered at his facility. While the federal facility did not offer parenting classes, father was able to participate in alcohol and drug education classes.

When father was released from custody, he filed a Notification of Mailing Address form in May 2009, designating the paternal grandmother's address in Sacramento as his mailing address. At a hearing on June 1, 2009, the court ordered the clerk to obtain father's current contact information and thereafter notices and copies of court orders were mailed to father at the paternal grandfather's address in Citrus Heights where he resided.*fn1

The report for the six-month review hearing recommended further services for father, stating he had completed a parenting class, a substance abuse class and a relapse prevention program. Father's case plan included general counseling and avoiding criminal behavior and incarceration. The court adopted the recommended case plan for additional services.

However, by the 12-month review report in December 2009, father had been arrested and was in jail for new charges and for violations of both his federal and state paroles. Father had not participated in all elements of his case plan because he did not feel the need to duplicate the similar services required by his parole. However, the federal parole officer could not share information on father's counseling services or drug testing without a court order. Father admitted he had a presumptive positive test for methamphetamine in November 2009. The report recommended termination of father's services.

Father was not present at the hearing on January 25, 2010, and the matter was submitted on the reports. The court continued the mother's services, terminated father's services and ordered that no visits with the minor were to occur while father remained in custody. A copy of the order was mailed to father at the Citrus Heights address. There is no indication father filed a notice of appeal from these orders.

Notice for the 18-month review hearing was mailed to father at both the Citrus Heights address and Deuel Vocational Institution (DVI) where father was sent for reception processing as a result of his new criminal offenses.

The report for the 18-month review hearing recommended returning the minor to the mother's custody. At the hearing, based on an agreed disposition, the court terminated the mother's services and set a section 366.26 hearing. The clerk mailed father a copy of the order and a notice of his right to writ review of the setting hearing to the Citrus Heights address.

Father was personally served with notice of the section 366.26 hearing at the California Correctional Center (CCC) in Susanville where he had been transferred after his stay at the DVI reception center. A copy of an order to produce father for the hearing filed in August 2010 indicated father was no longer in custody, having been paroled. At the section 366.26 hearing in October 2010, the court stated father was paroled from state custody but was being detained on a federal parole hold.

Father appeared in custody at the contested section 366.26 hearing in November 2010 and asked the court for another opportunity to reunify. The court terminated parental rights and freed the minor for adoption.

DISCUSSION

Father contends there was insufficient evidence at the 12-month review hearing that he was provided with adequate services. Father argues he may raise this issue on appeal from the section 366.26 hearing because he was not given notice of his right to writ review of the orders setting that hearing.

We agree with father that a court's failure to provide notice of the right to writ review after setting the case for a section 366.26 hearing is a violation of its statutory duty. (Cal. Rules of Court, rule 5.590(b); § 366.26, subd. (l)(3)(a).) We further agree that the violation excuses an appellant from filing a writ pursuant to California Rules of Court, rules 8.450 and 8.452 and allows him or her to assert any issues which arose at the setting hearing in an appeal from orders terminating parental rights. (In re Rashad B. (1999) 76 Cal.App.4th 442, 450; In re Cathina W. (1998) 68 Cal.App.4th 716, 722-723.)

Father argues the court did not provide him notice of his writ rights because the notice was sent to the Citrus Heights address at a time when the court and the social worker were aware that he was in custody and notice should have been sent to him in prison.

Father provided a permanent mailing address in Sacramento, later modified to the address in Citrus Heights. A permanent mailing address need not be where a person resides, it only needs to be where a person can receive mail. (In re Rashad B., supra, 76 Cal.App.4th at p. 450.) Father was aware that the Citrus Heights address had been, and would be, used for notice purposes until changed. Based on the record before us, we must conclude father did not provide the court or social worker a new address each time he was moved from jail to DVI to CCC and then to federal custody. Accordingly, the Citrus Heights address was his last known address and could properly be used for mailing notice of his writ rights as required by California Rules of Court, rule 5.590(b)(2).

Even assuming the court failed in its duty to provide notice, father cannot prevail. At most, improper notice permits the appellant to argue issues which arose in the setting hearing. (In re Rashad B., supra, 76 Cal.App.4th at p. 450.) In this case, the setting hearing was the 18-month review hearing. There were no issues affecting father which arose at that hearing and father raises none. The court terminated father's services and suspended his visitation for as long as he was in custody at the 12-month review hearing. In order to review the adequacy of services and the visitation order, father had to have filed a notice of appeal from the 12-month review hearing. (In re Elizabeth M. (1991) 232 Cal.App.3d 553, 563.) He did not do so and the issues are forfeited. (In re Daniel K. (1998) 61 Cal.App.4th 661, 667; John F. v. Superior Court (1996) 43 Cal.App.4th 400, 404-405.)

DISPOSITION

The orders of the juvenile court are affirmed.

We concur: RAYE , P. J. BLEASE , J.


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