Marissa T., a Minor

In re MARISSA T., a Minor. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Petitioner and Respondent, v. LORA R., Objector and Appellant. No. B113351 (Super. Ct. No. CK08512) In re LORA R., on Habeas Corpus. No. B115793 California Court of Appeal Second Appellate District Division Seven Filed April 7, 1998
        ORIGINAL PROCEEDING; application for writ of habeas corpus considered with an appeal from an order of the Superior Court of Los Angeles County. Owen Lee Kwong, Judge. Writ denied. On appeal reversed and remanded with instructions.
        Stephanie M. Davis, under appointment by the Court of Appeal, for Objector and Appellant.
        De Witt W. Clinton, County Counsel, Jill Regal and Holly R. Bryan Powell for Petitioner and Respondent.

        In her writ petition, Lora R. claims the trial court erred in finding she had received adequate notice of the Welfare and Institutions Code section 366.21 ¹ review hearing concerning the dependency status of her daughter Marissa T. She also asserts she was denied notice of her right to seek extraordinary writ review of the trial court's rulings at the section 366.21 hearing. Lora R. further argues she received ineffective legal representation throughout the dependency proceedings. We agree the notice of Lora R.'s right to seek appellate writ review was inadequate. Nonetheless, the error is harmless. The court committed no cognizable error warranting writ relief. Accordingly, we deny the writ.
        Lora R. also appeals the order terminating her parental rights under section 366.26. She contends the order violated her right to due process because she was not given proper notice of the section 366.26 hearing. We agree and, accordingly, reverse the judgment terminating her parental rights and remand for a new section 366.26 hearing.

FACTUAL AND PROCEDURAL HISTORY         In late October 1995, the Department of Children and Family Services (DCFS) filed a petition alleging Marissa T. and her two younger siblings ² should be declared dependents under section 300 of the Welfare and Institutions Code. According to the petition Lora R., their mother, endangered the children by using and selling illicit drugs in their presence. At the detention hearing the children were taken into protective custody and placed in the care of their respective grandmothers. ³ Lora R. did not appear at the detention hearing. ⁴
        At the subsequent dependency hearing in mid-November 1995, Lora R., who was not present, was appointed legal counsel. Lora R.'s lawyer along with the children's legal counsel set the matter for a disposition hearing. The court ordered DCFS to provide Lora R. with notice of the hearing.
        At the disposition hearing in February 1996, the court declared Marissa T. and her siblings "dependents" pursuant to section 300, subdivision (b). The court found Lora T., who was not present, had been properly served with notice of the hearing. The court ordered reunification services for Lora R. and scheduled a six-month review hearing pursuant to section 366.21.
        Pursuant to section 366.21, DCFS sent Lora R. notice of the status hearing. The notice indicated DCFS recommended "no change in the child's placement, custody or status." Lora R. did not attend the section 366.21 status review hearing. Lora R. was, however, represented by counsel and the court found Lora R. had been given proper notice of the proceeding. At the hearing, the court was informed Lora R. had not contacted Marissa T. during the previous six months, nor had Lora R. participated in court-ordered drug counseling and parenting classes. Thus, Marissa T.'s counsel asked the court to "fast track" the case and immediately set a section 366.26 hearing "for the purpose of possibly terminating parental rights." Consequently, the court terminated the reunification services as to Marissa T. ⁵ and referred the matter for a permanency planning hearing pursuant to section 366.26. Specifically, the court ruled:

"As to Marissa, the court finds -- as to all the children the court finds that return of the minor to parents would create substantial risk of detriment to minors' physical and emotional well being. As to the minor Marissa, the court further finds that it is not likely the minor will be reunited with the mother should we go to the 12 and or eighteen month dates. I think the facts of the Monica S. [sic] [(1993) 21 Cal.App.4th 677] case are -- let's put it this way, the facts of this case are within the ambit of the Monica S. [sic] case. So we're going to set a [366].26 hearing date concerning Marissa, family reunification services as to her are to cease and permanent placement services are to begin."

        The court did not order the clerk to provide Lora R. notice of the requirement of filing a petition for extraordinary writ review to preserve her right to appeal the court's order setting the section 366.26 hearing. The court did, however, order DCFS to attempt to locate Lora R. and Marissa T.'s father to provide them with notice of the 366.26 hearing and to detail the efforts in a due diligence report.
        The efforts to locate Lora R. and Marissa T.'s father proved unsuccessful. On January 22, 1997, the date set for the 366.26 hearing, the court continued the matter until April 22, 1997, to allow for service of notice on Marissa T.'s father by publication and service on Lora R. to be effected upon her counsel pursuant to the notice provisions of section 366.23.
        On February 13, 1996, at the 12-month review hearing for Marissa T.'s siblings, Lora R.'s and the children's respective counsel, informed the court and DCFS that Lora R. was incarcerated and had contacted her mother (Marissa T.'s caretaker). The court therefore ordered DCFS to conduct due diligence concerning the place of Lora R.'s incarceration. If Lora R. was found to be incarcerated, the court indicated it would order her removal for the "next hearing."
        On April 22, 1997, the court conducted the 366.26 hearing. Lora R. did not appear at the hearing, nor was any mention made concerning whether anyone undertook additional efforts to provide Lora R. notice at her place of incarceration. Instead, the court observed: "notice appropriate as to all parties, proof of service, the publication to the father. The court hereby finds notice is proper, service having been given to the mother's attorney. . . ." The court ordered the termination of Lora R.'s parental rights.
        Lora R. filed a petition for a writ of error coram vobis ⁶ challenging the court's rulings at the section 366.21 status review hearing.
        In addition, Lora appeals the trial court's order at the section 366.26 terminating her parental rights.

DISCUSSION
I.        Issues Asserted in the Writ Petition

        Lora R. sets forth the following arguments in her writ petition:
        1.        The failure to provide Lora R. with notice of the requirement of filing a writ petition to preserve her right to appeal the court's order setting the section 366.26 hearing denied Lora R. due process.
        2.        At the section 366.21 hearing the court: (1) erroneously found Lora R. had been provided with adequate notice of the section 366.21 hearing; (2) failed to state the basis for the termination of reunification services; and (3) lacked sufficient evidence to conclude Lora R. had no contact with Marissa T. for the previous six months.
        3.        Lora R.'s legal counsel was ineffective in failing to object to the errors at the section 366.21 hearing and in failing to ensure Lora R. received notice of her right to seek writ review.

II.        Issues Asserted on Appeal

        On appeal Lora R. asserts:
        1.        Lora R. was deprived of her right to due process because DCFS failed to comply with the notice requirements of section 366.23 dictating that once the location of a parent becomes known the parent (rather than legal counsel) must be served with notice of the section 366.26 hearing.
        2.        Lora R.'s legal counsel was ineffective in failing to ensure Lora R. received proper notice of the section 366.26 hearing.
        3.        Termination of Lora R.'s parental rights was not in Marissa T.'s "best interest."

III.        The Writ Petition

        Lora R. argues the trial court failed to apprise her of the requirement to file a writ petition to challenge the court's rulings at the section 366.21 hearing, including the order scheduling a section 366.26 hearing. Lora R. maintains the court's error deprived her of due process. She is correct.
        Pursuant to section 366.26, subdivision (l), after issuance of an order directing a permanency placement hearing be held, the trial court must advise all parties of the "requirement of filing a petition for extraordinary writ review . . . in order to preserve any right to appeal" of findings and rulings made by the court in connection with the order setting a section 366.26 hearing. (Welf. & Inst. Code, § 366.26, subd. (l)(3)(A).) "This notice shall be made orally to a party if they are present at the time of the making of the order or by first-class mail by clerk of the court to the last known address of the party not present at the time of making the order." (Ibid.) (Emphasis added.)
        Here the court did not satisfy the notice requirements of section 366.26, subdivision (l). Lora R. was not present at the section 366.21 status review hearing when the court scheduled the section 366.26 hearing. The court did not, however, direct the clerk to provide Lora R. with notice of the requirement of filing a writ petition. In addition, while the record contains a proof of service indicating "writ petition" forms were mailed, the proof of service fails to document the writ forms were sent to Lora R. at her "last known address" or any other address. Consequently, the court failed to apprise Lora R. of her right to file a writ petition, and therefore we conclude Lora R. was denied due process.
        This conclusion, however, is not dispositive. Unless Lora R. can show she would have prevailed on a writ petition, the failure to provide notice of the requirement to file a writ is, under these circumstances, irrelevant. Thus the issue becomes whether we would have granted her petition for extraordinary writ review. To answer this query we now turn to Lora R.'s other claims of error.

        A.        The Court Properly Found Lora R. Received Adequate Notice of The Section 366.21 Status Review Hearing
        Lora R. claims the court erred in finding she had received adequate notice of the section 366.21 status review hearing. Specifically she argues the notice was defective because it failed to apprise her that the court could terminate reunification services as well as set a section 366.26 hearing at the status review hearing. We disagree.
        Under section 366.21, notice of a status review hearing "shall contain a statement regarding the nature of the hearing to be held and any change in the custody or status of the minor being recommended by the supervising agency." (Welf. & Inst. Code, § 366.21, subd. (b); emphasis added.) ⁷ Sufficient notice requires warning of nothing more. There is no statutory or case law mandate the parent be given "notice" of what another party, such as the child, will seek at the status hearing.
        The notice here complied with section 366.21, subdivision (b). It apprised Lora R.: (1) a status hearing was scheduled concerning the current placement of her children; and (2) DCFS, the supervising agency, recommended "no change" in the placement, custody or status. Thereafter at the hearing, Marissa T., not DCFS, asked the court to terminate reunification services and schedule a section 366.26 hearing. Furthermore there is nothing in the record to suggest any conspiracy or collusion between Marissa T. and the DCFS to circumvent notice provisions by having Marissa T. rather than DCFS make the request. Consequently, because DCFS did not recommend any change in Marissa T.'s custody or status, we conclude the court did not err in finding Lora R. had received proper notice of the hearing.

        B.        The Court Did Not Err in Terminating Reunification Services or in Finding Lora R. Had No Contact With Marissa T. During The Prior Six Months
        The court may terminate family reunification services and schedule a section 366.26 permanency placement hearing when the parent has failed to participate in the reunification services and has made no effort to contact the child in the previous six months. (In re Monique S., supra, 21 Cal.App.4th at pp. 682-683; see Welf. & Inst. Code, § 366.21, subd. (e); Cal. Rules of Court, rule 1460.)
        Lora R. argues the trial court erred when it failed to state the basis for the termination for reunification services and lacked sufficient evidence to conclude she had no contact with Marissa T. Lora R. correctly points out the court did not expressly state its rationale for terminating reunification services nor did the court declare it had found by clear and convincing evidence Lora R. had no contact with Marissa T. Based on the record, however, such errors are harmless.
        First, concerning the reasons for terminating reunification services, the trial court articulated "it is not likely the minor will be reunited with the mother should we go to the 12 and or eighteen month dates. I think the facts of the Monica S. [sic] [(1993) 21 Cal.App.4th 677] case are -- let's put it this way, the facts of this case are within the ambit of the Monica S. [sic] case." Thus, the court stated it was terminating Lora R.'s reunification services for the same reasons as those services were terminated in In re Monique S. ⁸ Consequently, the reference to In re Monique S. indicates the court's rationale for terminating reunification services.
        In addition, the "Case Plan Updates" DCFS provided to the court also support the implicit finding that Lora R. had not participated in family reunification services. Lora R. has never offered any evidence to refute this finding.
        Second, with respect to the lack of contact between Lora R. and Marissa T., there is ample evidence in the record that Lora R. had absolutely no contact with the child during the six months prior to the section 366.21 hearing. According to the Children's Services Worker's Reports and the Judicial Review and Case Plan Updates, Lora R. had contact with Marissa T. only twice since she was declared a dependent in October 1995; Lora R.'s last attempted contact was in January 1996, nine months prior to the section 366.21 hearing. Thus, even though the court did not state its finding in terms of "clear and convincing evidence," we are convinced such evidence existed. Accordingly, we conclude the trial court had sufficient evidence to support its order terminating parental rights and scheduling a section 366.26 hearing.
        In sum, because Lora R.'s claims of error lack merit, any petition for extraordinary writ review would have proved unsuccessful. ⁹ Therefore, we deny her writ petition.

IV.        The Appeal
        On appeal Lora R. argues the trial court improperly terminated her parental rights because she was not given proper notice of the 366.26 hearing. ¹⁰ We agree.
        The juvenile court may terminate parental rights at a hearing pursuant to section 366.26. (See Welf. & Inst. Code, § 366.26.) Because, however, a parent's interest in the custody, care and management of his or her children ranks among the most paramount fundamental rights, the state cannot terminate parental rights without affording the parent the essential ingredients of due process, including adequate notice and an opportunity to be heard. (In re B.G. (1974) 11 Cal.3d 679, 688-89; David B. v. Superior Court (1994) 21 Cal.App.4th 1010, 1016.)
        Pursuant to section 366.23, subdivision (a), once a section 366.26 hearing is scheduled, notice must be given to the parent of a minor in one of the ways listed in subdivision (b): personal or substituted service, or by personal service or certified mail if the parent resides out of state. If, however, the parent's whereabouts are unknown, the court determines that there has been due diligence in attempting to locate and serve the parent, and the child welfare agency such as DCFS does not limit the recommendation to legal guardianship or long-term foster care, the court must order service to the parent by certified mail to counsel for the parent. (See Welf. & Inst. Code, § 366.23, subd. (b)(5)(B).)
        According to the DCFS's due diligence report, Lora R. could not be located to provide her with timely notice of the section 366.26 hearing. Therefore, on January 22, 1997, the court ordered service on Lora R. through her counsel pursuant to section 366.23. ¹¹ DCFS complied with court's order, serving Lora R.'s counsel. Normally this would end our inquiry. However, on February 13, 1996, several weeks prior to section 366.26 hearing both the court and DCFS were apprised Lora was incarcerated. Information concerning Lora R.'s whereabouts triggered additional notice obligations under section 366.23, namely, "[i]n case of service to the parent . . . on counsel of record where the residence of a parent becomes known, notice shall immediately be served upon the parent. . . ." (Welf. & Inst. Code, § 366.23, subd. (b)(5)(B).)
        Notwithstanding this requirement, there is nothing in the record to indicate any efforts were extended by DCFS or anyone else to serve Lora R. once it became known that she was incarcerated. Instead, the matter proceeded to the section 366.26 hearing where the court found service upon Lora R.'s counsel proper. However, in light of the court's rulings at the February 13 hearing, (i.e., the directive to DCFS to conduct "due diligence" on Lora R.'s incarceration, and an order of removal to obtain Lora R.'s attendance at the "next hearing") the court's subsequent acceptance of service upon Lora R.'s counsel was erroneous. Equally inexcusable was Lora R.'s counsel silence on this issue. Had counsel raised this issue, the court would have had to either continue the hearing to provide proper service upon Lora R. in prison, and/or order DCFS to submit a due diligence report on the matter as previously directed at the February 13 hearing. But, based on the record before us it appears that the court, and DCFS ignored the statutory mandate to provide Lora R. with notice once they learned her whereabouts. We, therefore, conclude Lora R. was denied her due process right to notice of the section 366.26 hearing. ^{12 1  2  3  4  5  6  7  8  9  10  11  12} N

        The writ petition is denied. On appeal, the juvenile court's April 22, 1997, order terminating Lora R.'s parental rights as to Marissa T. is reversed. The case is remanded to the juvenile court to conduct a section 366.26 hearing concerning Lora R.'s parental rights. Upon remand, Lora R. shall be afforded notice of the hearing pursuant to Welfare and Institutions Code section 366.23, subdivision (b). If Lora R. cannot be served as provided in paragraphs (1) - (4) of subdivision (b), the DCFS shall prepare the documentation specified in section 366.23, subdivision (b)(5) to set forth the efforts to locate and serve Lora R. The juvenile court shall make specific findings on the record concerning DCFS's "due diligence" efforts to locate and serve Lora R. If the court determines that there has been "due diligence" the court is directed to order Lora R. be served pursuant to section 366.23, subdivision (b)(5)(B). Lora R. is entitled to costs on appeal.


We concur:
        JOHNSON, Acting P.J.
        NEAL, J.


1         All statutory references are to the Welfare and Institutions Code unless otherwise noted.

1         Marissa T.'s siblings were included in the petition, but are not involved in this appeal.

1         Marissa T.'s siblings have a different father than Marissa T. Marissa T. was placed with her maternal grandmother. Marissa T.'s siblings were placed with their paternal grandmother.

1         Marissa T.'s father could not be located by DCFS, was not represented by counsel, never appeared during any of the proceedings and is not a party to this appeal.

1         Marissa T.'s siblings' father had participated in the reunification services, the court, therefore continued the matter as to them for a 12-month review hearing.

1         A "petition for a writ of error coram vobis" is the improper procedural vehicle for Lora R.'s legal challenges. (See In re Kristin H. (1996) 46 Cal.App.4th 1635, 1642.) In the interest of justice we have deemed her writ application as one for a writ of habeas corpus.

1         We note California Rules of Court, rule 1460, promulgated to implement the objectives of section 366.21, does not contain the terms "supervising agency." Instead, it provides, in pertinent part: "The notice shall [specify] the nature of the hearing, and any recommended change in custody or status." This notwithstanding, we interpret rule 1460 as consistent with section 366.21. (See In re Monique S. (1993) 21 Cal.App.4th 677, 682 ["Rules relating to the juvenile court are 'designed to implement the purposes of the juvenile court law by promoting uniformity in practice and procedure and by providing guidance to judges, referees, attorneys . . . and others participating in the juvenile court.' (Rule 1400(b).) 'Insofar as these rules are substantially the same as existing statutory provisions relating to the same subject matter, these rules shall be construed as restatements of those statutes . . . .'"].) Consequently, rule 1460, like section 366.21, requires the "recommended change in custody or status" come from a "supervising agency."

1         In Monique S. the court set the section 366.26 hearing at the six month status review hearing because the mother had made no effort to participate in the family reunification services, nor any effort to contact the child in the prior six months. (In re Monique S., supra, 21 Cal.App.4th at pp. 682-83.)

1         In view of our conclusions here, we reject Lora R.'s claims of ineffective assistance of counsel. Because the trial court committed no cognizable errors at the status review hearing, Lora R.'s counsel was not "ineffective" for failing to object.

1 DCFS does not refute the merits of Lora R.'s contention. Instead, DCFS argues that Lora R. waived her right to contest this issue because she failed to file a timely appellate writ pursuant to section 366.26, subdivision (l). We reject this argument. A claim that a parent did not receive proper notice of the section 366.26 hearing can be asserted on appeal from an order terminating parental rights. (E.g. In re Malcolm D. (1996) 42 Cal.App.4th 904, 908.) "In juvenile dependency matters, all orders starting chronologically with the dispositional order, are with one exception, appealable judgments. [Citations.] The notable exception is an order setting a section 366.26 hearing," which can only be reviewed upon a petition for an extraordinary writ. (Wanda B. v. Superior Court (1996) 41 Cal.App.4th 1391, 1395; emphasis added; In re Arturo A. (1992) 8 Cal.App.4th 229, 234.) In her appeal, Lora R. challenges the notice of the 366.26 hearing, not the court's order scheduling the hearing. Accordingly, we conclude Lora R.'s challenged is cognizable on appeal.

1 As Lora R. correctly points out, nothing in the transcript of the January 22, 1996, hearing discloses the court's express findings concerning the adequacy of the DCFS's due diligence efforts to locate her. Nonetheless, the court's decision to require service upon counsel implies the court accepted DCFS's due diligence efforts.

1         In view of this conclusion, we do not reach the merits of the other issues Lora R. has raised on appeal.