Case Information
*1 Filed 11/14/13 In re X.Z. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT
DIVISION FOUR
In re X.Z., A Person Coming Under the
Juvenile Court Law. B247449 LOS ANGELES COUNTY (Los Angeles County DEPARTMENT OF CHILDREN AND Super. Ct. No. CK86090) FAMILY SERVICES,
Plaintiff and Respondent,
v.
JASMIN S.,
Defendant and Appellant. APPEAL from an order of the Superior Court of Los Angeles County, Marguerite Downing, Judge. Diane Reyes, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Lori A. Fields, under appointment by the Court of Appeal, for Defendant and Appellant.
John F. Krattli, Office of the County Counsel, James M. Owens, Assistant County Counsel and William D. Thetford, Deputy County Counsel, for Plaintiff and Respondent.
Appellant Jasmin S. (Mother) filed this appeal after the juvenile court’s December 4, 2012 order terminated her parental rights over her infant daughter X.Z. under Welfare and Institutions Code section 366.26. Mother seeks to revive issues arising out of the court’s decision to terminate her reunification services at the September 12, 2011 six-month review hearing based on its understanding that Mother would be incarcerated for a period that exceeded the maximum reunification time permitted by statute. She contends reasonable reunification services were not provided prior to September 2011, that the caseworker misled the court about when she was likely to be released from prison, and that the court failed to make statutorily-mandated findings.
Mother does not dispute that orders terminating reunification services are ordinarily reviewable solely by way of writ, or that the court provided notice at the September 2011 hearing of the writ review requirement. She contends she is entitled to raise issues related to the reunification period in this proceeding because the notice the court provided did not inform her of the deadline to file a notice of intent to seek a writ. We conclude that Mother received sufficient notice of the writ requirement to preclude her from raising issues pertaining to the September 2011 order at this late date, and that, in any event, she raises no issues with respect to the September 2011 order requiring reversal. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND In January 2011, the family home was raided by police and a large quantity of methamphetamine and chemicals for the manufacture of methamphetamine Undesignated statutory references are to the Welfare and Institutions Code. *3 were found. [2] X.Z., then two months old, was detained by the Department of Children and Family Services (DCFS), along with her two half-siblings. [3] After a brief period in foster care, X.Z. was placed with Mother’s sister, Conseulo M. A few days after the detention hearing, Mother was arrested and charged with possession of methamphetamine and child endangerment.
On February 16, 2011, the caseworker reported that Mother’s case was about to be submitted to the district attorney’s office for felony filing consideration. The court ordered a supplemental report to address the status of both parents’ criminal cases before the jurisdictional/dispositional hearing, but the caseworker was unable to obtain further information.
At the March 14, 2011, jurisdictional/dispositional hearing, the court found that Mother and Father “created a detrimental and endangering home environment for the children” by (1) “possess[ing] toxic, flammable, hazardous chemicals, used in the manufacture of methamphetamine in the children’s home, within access of the children” and exposing the children to such chemicals; (2) keeping eight and one-half pounds of methamphetamine in the children’s home, within access of the children; and (3) exposing the children to illicit drug trafficking in the home and in their presence. At the same hearing, the court addressed disposition for Mother and ordered reunification services. Mother’s plan required her to participate in a parenting class and individual counseling to address case issues and drug awareness.
Hector A., the girl’s father, was arrested and charged with possession of methamphetamine for sale, transportation of a controlled substance, manufacture of methamphetamine, and manufacture of methamphetamine in the presence of a child. He is not a party to this appeal. X.Z.’s half-siblings, a 13-year old boy and a nine-year old girl, were ultimately
placed with their father and are not the subjects of this appeal.
On April 20, 2011, a new caseworker met with Mother, then incarcerated at Twin Towers. Mother advised her that the facility did not offer any programs for parents, and that she would be unable to make progress on the reunification plan until she was transferred to a state prison. Mother further reported that she anticipated receiving a four-year sentence and serving half or less. On June 8, the caseworker talked to Mother’s probation officer, who reported he was working on the probation report and that Mother was likely to face a sentence of three to six years. [4] A few days later, on June 17, Consuelo told the caseworker she had spoken with Mother and that Mother had said she was going to serve 14 months in state prison and would enroll in classes once she arrived at the prison. [5] In mid-July, Mother was transferred to the California Institute for Women. In August, the caseworker left a message with Mother’s correctional counselor asking for Mother’s release date, but received no return call.
The September 2011 report, filed in advance of the six-month review hearing, stated that in June, Mother had been convicted of possession of a controlled substance for sale and child endangerment and that the court had imposed sentences of three years for the former crime and four years for the latter. The report did not indicate whether the sentences were to run consecutively or concurrently and gave no estimate of Mother’s release date. It described the caseworker’s unsuccessful effort to obtain Mother’s precise release date from the correctional counselor. The report stated that maternal relatives were bringing X.Z. for prison visits, but that due to her incarceration, Mother had been unable to At the time of her arrest, Mother was on probation for taking drugs into a prison facility. Reports of these three conversations were in the delivered service log, which was
not before the court at the six-month review hearing. The log was not filed until October 19, 2011.
participate in court-ordered programs. The report said it was “highly unlikely” Mother would be able to reunify with her children, even if additional reunification services were ordered. Therefore, it was recommended that reunification services be terminated.
At the September 12, 2011 six-month review hearing, the court stated it was inclined to terminate reunification services with respect to X.Z. due to her age (less than a year old). Counsel for Mother stated: “I understand Mother will be incarcerated longer than the statutory period of reunification; however, I’m going to enter an objection today to terminating her services.” The court expressed its understanding that both parents objected, but found that “since both parents will be incarcerated longer than the reunification period . . . [¶] . . . there is not a substantial probability that [X.Z.] may be returned to her parents by the 12-month permanency hearing.” The court further found that the parents were unable to “complete any of the disposition case plan” due to their incarceration or to “demonstrate[] the capacity or ability to complete the objectives of the treatment plan and to provide for the child’s safety, protection, physical and emotional health.” The court terminated services and set a section 366.26 hearing for January 9, 2012. The minute order stated that the court found by a preponderance of the evidence that return of the minors to the physical custody of the parents would create a substantial risk of detriment to their physical or emotional well-being, that DCFS had complied with the case plan, that Mother was not in compliance with the case plan, and that reasonable services had been provided to meet the needs of the minors.
After terminating reunification services and setting the section 366.26 hearing, the court provided the following advisement: “[T]he court advises all The parties stipulated to Diane Reyes acting as a temporary judge at this hearing. *6 parties present and directs the clerk of the court to forward written advisement to parties not present that to preserve any right to review on appeal of the court’s order setting a hearing to select and implement a permanent plan under 366.26, the party must seek an extraordinary writ by filing a notice of intent to file writ petition and request for record, or other notice of intent to file writ petition and request for record, and a writ petition-juvenile form, or other petition for extraordinary writ. [¶] I would advise you to speak to your attorney.”
Mother did not seek writ review of the September 2011 order. After multiple continuances, the section 366.26 hearing was held on December 4, 2012. Mother presented no evidence, but objected to termination of her parental rights. The evidence presented established that Consuelo, Mother’s sister and X.Z.’s guardian since shortly after the detention, had repeatedly expressed her desire to adopt X.Z., and that X.Z. was thriving in Consuelo’s care. The adoption home study was completed in August 2012. On December 4, the court found by clear and convincing evidence that X.Z. was adoptable, and that no exception to adoption applied. The court issued an order terminating parental rights over X.Z. Mother filed a notice of appeal from the order. Mother was released from prison in January 2013.
In the interim between the September 12, 2011 hearing and the December 4, 2012 hearing, Mother provided evidence of having participated in various programs in prison, including Alcoholics and Narcotics Anonymous, a behavioral transformation program and a parenting program. From the evidence presented, it appears her participation in such programs began in October 2011. In addition, the evidence indicated Mother had monthly visits with X.Z., until October 2012, when prison officials objected to contact visitation and Mother stated she did not wish to visit her daughter behind glass.
DISCUSSION
An order terminating reunification services and setting a section 366.26
hearing is “not appealable” unless “(1) A petition for extraordinary writ review
was filed in a timely manner.[ ] [¶] (B) The petition substantively addressed the
specific issues to be challenged and supported that challenge by an adequate
record. [¶] (C) The petition for extraordinary writ review was summarily denied
or otherwise not decided on the merits.” (§ 366.26, subd. (
l
)(1); see § 366.26,
subd. (
l
)(2);
In re Cathina W
. (1998)
Rule 8.450(e)(4) of the California Rules of Court sets out the various time limits for those seeking writ review. The shortest time limit applies to a party “present at the hearing when the court ordered [the] section 366.26 [hearing]”: such party must filed a notice of intent to file a writ petition and a request for the record within seven days of the order. (Rule 8.450(e)(4)(A).) It is undisputed that Mother was present at the September 2011 hearing when the court set the section 366.26 hearing for January 9, 2012.
Section 366.26, subdivision ( l ) requires the court, after terminating reunification and issuing an order setting a section 366.26 hearing, to “advise all parties of the requirement of filing a petition for extraordinary writ review as set forth in this subdivision in order to preserve any right to appeal in these issues.” (§ 366.26, subd. ( l )(3)(A).) The notice must be “made orally to a party if the party is present at the time of the making of the order or by first-class mail by the clerk of the court to the last known address of the party not present at the time of the making of the order.” ( Ibid .) Rule 5.590(b) of the California Rules of Court similarly provides: “When the court orders a hearing under . . . section 366.26, the court must advise all parties and if present, the child’s parent, guardian, or adult relative, that if the party wishes to preserve any right to review on appeal of the order setting the hearing under . . . section 366.26, the party is required to seek an extraordinary writ by filing a Notice of Intent to File Writ Petition and Request for Record . . . (form JV-820) or other notice of intent to file a writ petition and request for record and a Petition for Extraordinary Writ . . . (form JV-835) or other petition for extraordinary writ. [¶] (1) the advisement must be given orally to those present when the court orders the hearing under . . . section 366.26. [¶] (2) Within one day after the court orders the hearing under . . . section 366.26, the advisement must be sent by first-class mail by the clerk of the court to the last known address of a party who is not present when the court orders the hearing under . . . section 366.26.” (Italics omitted.)
Rule 5.590(b) of the California Rules of Court goes on to state that “[t]he advisement must include the time for filing a notice of intent to file a writ petition” and that “[c]opies of Petition for Extraordinary Writ . . . (form JV-825) and Notice of Intent to File Writ petition and Request for Record . . . (form JV-820) must be available in the courtroom and must accompany all mailed notices informing the *9 parties of their rights.” (Cal. Rules of Court, rule 5.590(b)(3) & (4), italics omitted.)
Mother contends the oral notice provided was defective because the court failed to indicate the time for filing a notice of intent. Citing cases in which the juvenile court failed to advise the parent of his or her right to writ review of the order setting the section 366.26 hearing, she contends she must be permitted to raise issues related to a hearing that took place two years ago. For the reasons discussed, we conclude otherwise.
Although the minute order stated that the court directed the clerk to send written information about writ procedures to the parents by first class mail to their last known address and that the clerk mailed the information, there is no proof of service in the record indicating that the information was actually mailed, and respondent does not suggest it was. In a separate motion to dismiss the appeal, respondent contended that we must presume the forms required by California Rules of Court, rule 5.590(b)(4) -- “Petition for Extraordinary Writ” and “Notice of Intent to File Writ Petition and Request for Record” -- were available in the courtroom. (See Evid. Code, § 664.) We do presume they were available and take judicial notice that the Notice of Intent, form JV- 820, states on its face “[i]n most cases, you have only 7 days from the court’s decision to file a Notice of Intent” and adds on the reverse side: “If you were present when the court set the hearing to make a permanent plan, you must file the Notice of Intent within 7 days from the date the court set the hearing.” However, there is no indication in the record that the presence of such forms was made clear to Mother or that Mother was actually provided a form.
While this appeal was pending, Mother’s counsel brought to our attention the
recent decision in
Maggie S. v. Superior Court
(2013)
Courts have held that where the juvenile court fails entirely to advise a
parent of his or her right to seek writ review of an order terminating reunification
services and setting a section 366.26 hearing, claims of error relating to provision
of reunification services are cognizable on appeal from the order terminating
parental rights. (
In re Frank R
. (2011)
No case of which we are aware has held that failure to inform a party of the
deadline, standing alone, justifies disregarding section 366.26, subdivision (
l
) and
permitting a parent to re-open reunification issues by an appeal filed after the
permanent plan has been implemented. Nor do we believe such a rule would be
wise. It is not at all unusual for dependency proceedings to move slowly after
termination of reunification services, as the focus shifts to determining a child’s
adoptability and considering potential permanent homes. A year or more may pass
*11
before the necessary investigations and paperwork are completed and the final plan
approved by the court, during which time the child becomes increasingly
accustomed to a new environment and new caregivers. Any rule allowing a parent
to belatedly raise issues relating to the reunification phase should be drawn as
narrowly as possible. Where no information about the writ review requirement
was provided by the court, such a rule is a necessary evil required to protect
fundamental due process despite its detrimental impact on the goals of expedition,
finality and stability. (See
In re Frank R
.,
supra
,
Moreover, even were we to reach the merits, we would not reverse the
September 2011 order. Pointing out that the statutory provision governing six-
*12
month review hearings for children under the age of three (§ 366.21, subd. (e))
requires the court to continue the case to the 12-month permanency hearing if it
finds that “reasonable services have not been provided [to a parent],” Mother
contends that she was provided no services prior to the six-month review hearing
and that no reunification plan was ever developed. Preliminarily, we note that
Mother did not raise these issues at the September 11 hearing. “A parent’s failure
to raise an issue in the juvenile court prevents him or her from presenting the issue
to the appellate court.” (
In re Elijah V
. (2005)
not begin to participate in prison programs until late 2011, after the hearing
terminating reunification services and setting the section 366.26 hearing. Mother’s
failure to make progress in the programs assigned her within the six months
following the dispositional hearing was not the fault of the caseworker, but was a
consequence of Mother’s criminal conduct -- resulting in her incarceration for the
first four months in a facility with no services -- and of her failure even to begin
the programs available following her transfer in July. (See
In re Lauren Z
.
, supra,
Mother also contends that the caseworker misled the court by indicating in the September 2011 report that she would be imprisoned longer than was expected. The record indicates that when Mother and the caseworker met in April 2011, Mother anticipated being incarcerated for a total of two years. The probation officer had estimated three to six years. The caseworker attempted to determine the precise date Mother was scheduled to be released, but was unable to reach the appropriate prison official. In the meantime, the caseworker heard from Consuelo that Mother believed she would serve 14 months, but did not include this information in the September 2011 report. The caseworker was not required to report secondhand speculation which, in any event, proved to be incorrect. The caseworker included in the September 2011 report the only concrete information she had: the length of the two sentences imposed for the two offenses Mother committed. Based on the information provided, the court presumed -- correctly -- that Mother would be incarcerated longer than the one-year period of reunification generally applicable to children under the age of three. (See § 361.5, subd. (a)(1).) Mother was present in court, with her counsel, and could have corrected any misapprehension on the court’s part. Instead, Mother’s counsel agreed she would *14 be “incarcerated longer than the statutory period of reunification.” In fact, Mother was not released until January 2013 and would not have been in a position to reunify with X.Z., even if the court had waited to terminate services and set a section 366.26 hearing until the 12-month or 18-month review dates. Under these circumstances, any misinformation in the September 2011 report about Mother’s period of incarceration did not prejudice her.
Mother contends the court failed to make statutorily-mandated findings at
the September 2011 hearing, specifically, a finding that reasonable services were
provided to Mother or a finding by clear and convincing evidence that Mother
“‘failed to participate regularly and make substantive progress in a court-ordered
treatment plan.’” The last paragraph of section 366.21, subdivision (e) provides
that if the child is not returned to his or her parent or legal guardian, “the court
shall determine whether reasonable services that were designed to aid the parent or
legal guardian in overcoming the problems that led to the initial removal and the
continued custody of the child have been provided or offered to the parent or legal
guardian.” (See also Cal. Rules of Court, rule 5.708(e)(1).) Although not
articulated at the hearing, the minute order reflects that the court made this finding.
(See
In re Merrick V
. (2004)
The court must also find “by clear and convincing evidence that the parent
failed to participate regularly and make substantive progress in a court-ordered
treatment plan” if it terminates reunification services and sets a section 366.26
hearing, as it did here. (§ 366.21, subd. (e).) Although the court found that Mother
was not in compliance with the case plan, it erroneously made the finding under
the preponderance of the evidence standard. We do not, however, believe this
constitutes ground for reversal. The evidence was undisputed that Mother had
made no progress and Mother offered no excuse for her lack of progress or failure
to enroll in the programs available. Accordingly, assuming Mother had not
Mother contends that DCFS’s alleged failure to provide reasonable services during
the six-month post-disposition period and the court’s alleged failure to find that
reasonable services were provided at the September 2011 hearing precluded the court
from terminating parental rights over X.Z. at the December 4, 2012 section 366.26
hearing. (See § 366.26, subd. (c)(2)(A);
In re T.M
. (2009)
forfeited her right to appellate examination of these issues by failing to seek writ review, we would find no basis for reversing the September 2011 order terminating services and setting the section 366.26 hearing.
DISPOSITION
The order terminating parental rights is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS MANELLA, J.
We concur:
EPSTEIN, P. J.
WILLHITE, J.