L. A. Cnty. Dep't of Children & Family Servs. v. S.F. (In re S.F.)

In re S.F. et al., Persons Coming Under the Juvenile Court Law.

LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. S.F., Defendant and Appellant.

B313125

California Court of Appeals, Second District, Second Division

April 14, 2022

NOT TO BE PUBLISHED

APPEAL from the orders of the Superior Court of Los Angeles County. No. 18CCJP05482A-B Steff R. Padilla, Judge Pro Tempore. Affirmed.

Amy Z Tobin, under appointment by the Court of Appeal, for Defendant and Appellant.

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Kimberly Roura, Deputy County Counsel for Plaintiff and Respondent.

HOFFSTADT, J.

Stephanie F. (mother) argues that she did not receive proper notice of the permanency planning hearing at which the juvenile court terminated her parental rights over her two children because the Los Angeles Department of Children and Family Service (the Department) sent the notice via certified mail rather than certified mail with a return receipt requested. This defect in notice is harmless because mother's presence at the hearing could not have changed its outcome. We accordingly affirm.

FACTS AND PROCEDURAL BACKGROUND

I. Facts

Mother and Mario G. (father) have two children-Sebastian (born May 2018) and Nehemiah (born April 2019).

In April 2018, father was arrested after he pushed mother repeatedly, causing her to fall to the ground. Mother was nine months pregnant at the time. Father also has a history of domestic violence with his prior partner, which resulted in the permanent placement of Sebastian and Nehemiah's half siblings in a prior proceeding. In July 2018, mother and father shoplifted from a store using Sebastian's stroller (with him in it) to hide the merchandise. Father has a long history of substance abuse and was currently abusing "morphine, codeine, amphetamine, methamphetamine and marijuana."

II. Procedural History

A. Proceedings regarding Sebastian through the termination of reunification services

In August 2018, the Department filed a petition asking the juvenile court to exert dependency jurisdiction over Sebastian due to his parents' domestic violence, their shoplifting with him, and father's substance abuse. The petition alleged that this conduct placed Sebastian at substantial risk of serious physical harm, rendering jurisdiction appropriate under subdivisions (a) and (b)(1) of Welfare and Institutions Code section 300.^[1], ^[2]

Mother appeared at the detention hearing, and was appointed the Law Offices of Rachel Ewing (the Ewing Firm) as her attorney of record; Olga Matemotja appeared from that firm.

In January 2019, the juvenile court held a jurisdictional hearing. Mother's attorney of record appeared; despite receiving proper notice, mother did not appear. The juvenile court sustained all three grounds for jurisdiction, but did so solely under subdivision (b)(1) of section 300.

In March 2019, the juvenile court held a dispositional hearing. The court removed Sebastian from mother's custody and ordered the Department to provide mother with reunification services.

In March 2020, the juvenile court held the 12-month review hearing to assess mother's progress with reunification services. Attorney Lori Davis of the Ewing Firm appeared; despite receiving proper notice, mother did not appear. After concluding that mother was not adhering to the case plan assigned to avail herself of the reunification services, the juvenile court terminated those services and set a permanency planning hearing for June 29, 2020.

B. Proceedings regarding Nehemiah through the termination of reunification services

In June 2019, the Department filed a petition asking the juvenile court to exert dependency jurisdiction over Nehemiah on the same grounds alleged in the petition for Sebastian, except that the Department urged the court to exercise jurisdiction under subdivisions (b)(1) and (j) of section 300. The Department filed an amended petition later that month, adding a new allegation regarding mother's conviction for felony evading a peace officer.

Mother appeared at the detention hearing, and Ewing Firm was appointed as her attorney of record; Lori Davis appeared from the firm.

In July 2019, the juvenile court held back-to-back jurisdictional and dispositional hearings regarding Nehemiah. Mother and her attorney of record appeared. The court sustained jurisdiction on all alleged grounds, but did not remove Nehemiah from mother's custody (as he was not yet three months old). The court ordered the Department to provide family maintenance services.

After mother used methamphetamines in October 2019, the Department filed a supplemental petition alleging that jurisdiction was also warranted due to mother's use of drugs while caring for Nehemiah and seeking to remove him from her custody. In January 2020, the juvenile court held a hearing on the supplemental petition. Mother's attorney of record, the Ewing Firm appeared; despite receiving proper notice, mother did not appear. The court sustained the petition, removed Nehemiah from mother's custody, and ordered the Department to provide mother reunification services.

On January 8, 2021, the juvenile court held the 18-month review hearing to assess mother's progress with the reunification services. Mother's attorney of record, the Ewing Firm appeared; despite receiving proper notice, mother did not appear. Mother was not in compliance with the case plan-she had not drug tested, and had not visited Nehemiah. The court concluded mother's progress was unsatisfactory, terminated reunification services and set a permanency planning hearing for May 4, 2021.

C. Post-termination proceedings

On May 8, 2020, and due to the COVID-19 pandemic, the juvenile court issued a minute order continuing the permanency planning hearing scheduled for Sebastian on June 29, 2020, to February 3, 2021.

At the February 3, 2021 hearing, mother's attorney of record, the Ewing Firm appeared; despite receiving proper notice, mother did not appear. The juvenile court continued the permanency planning hearing for Sebastian to May 4, 2021-the same day already set for Nehemiah's permanency planning hearing.

In anticipation of the permanency planning hearings for Sebastian and Nehemiah, the Department served mother with notice of those hearings by mailing her notice through certified mail, but the Department did not request a return receipt.

On May 4, 2021, the juvenile court held the permanency planning hearings for both Sebastian and Nehemiah. Mother's attorney of record the Ewing Firm was present, albeit a different lawyer from the firm appeared than had appeared previously. Mother did not appear, and her attorney did not raise any defect in the notice given mother or express in any way that she was not prepared for the hearings. The court found both children adoptable, found no applicable exception, and terminated mother's parental rights over each child.

D. Appeal

Mother filed this timely appeal to both termination orders.

DISCUSSION

Mother argues that the orders terminating her parental rights over Sebastian and Nehemiah must be vacated because the Department did not comply with the notice requirements set forth in section 294 and because this lack of compliance amounts to a violation of due process.^[3] Our review is de novo because mother's arguments raise questions of statutory and constitutional interpretation (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 225 [statutory interpretation]; Aquila, Inc. v. Superior Court (2007) 148 Cal.App.4th 556, 568 [constitutional analysis of notice]) and involve the application of that law to undisputed facts (Boling v. Public Employment Relations Bd. (2018) 5 Cal.5th 898, 912-913).

I. Applicable Law

In juvenile dependency proceedings, "[n]otice is both a" "statutory" and "constitutional" "imperative." (In re J.H. (2007) 158 Cal.App.4th 174, 182 (J.H.); In re Jasmine G. (2005) 127 Cal.App.4th 1109, 1114 (Jasmine G.).)

A. Statutory notice requirements

The permanency planning hearing is the last step in a juvenile dependency proceeding. It occurs only after the juvenile court has exerted dependency jurisdiction over a child (see § 300), after the court has removed the child from the parent (see § 361, subd. (c)), and after reunification services have been terminated (or, in narrow, statutorily defined circumstances, bypassed altogether) (see § 361.5). In other words, the permanency planning hearing occurs only after the juvenile court has determined that the parent is either unwilling or unable to address the issues that necessitated dependency jurisdiction in the first place. And its purpose is to decide: If the child is not to be reunited with the parent, what other option is in the child's best interest? Our Legislature gives the juvenile courts a number of options (including guardianship and long-term foster care), but the presumptive (and hence preferred) option is to terminate the parent's rights over the child and place the child up for adoption. (§ 366.26, subd. (b)(1) [termination of parental rights and adoption is the first in the "order of preference"]; In re Jose V. (1996) 50 Cal.App.4th 1792, 1799 [noting the "strong preference for adoption"].)

Because it is possible-and, indeed, presumptively preferred-that a parent's legal ties to their progeny will be permanently severed at the permanency planning hearing, our Legislature has specified by statute how notice must be given for this particular type of hearing. That statute is section 294.

Section 294 first delineates to whom notice must be given- namely, to the child's mother, the child's father (whether alleged or presumed), the child himself or herself if they are at least...