IN RE: ARABELLA L. et al. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

Mother Cynthia R. (Mother) appeals from a juvenile court order terminating parental rights to her two youngest children, Julian L. and Arabella L., claiming that defective notice to her of a continued hearing in which her parental rights were ordered terminated requires reversal of the order terminating parental rights.   We find that Mother's failure to object to notice as defective in the juvenile court forfeits the claim of error on appeal, that the notice to Mother complied with the requirements of Welfare and Institutions Code section 294, subdivision (d),¹ and that even if error because of defective notice occurred, that error was harmless.   We affirm the order terminating parental rights.

FACTUAL AND PROCEDURAL HISTORY

Section 300 Petition and Detention :  On June 17, 2008, the Department of Children and Family Services (DCFS) filed a section 300 petition alleging that two-year-old Julian L. and six-month-old Arabella L. (and Mother's two older children, 13–year–old Jasmine A. and eight-year-old Nicholas R.² ) were persons described by section 300, subdivision (a), in that Mother's companion and the father of Julian and Arabella, Augusto L. (Father), inappropriately disciplined Jasmine and Nicholas, placing them and Julian and Arabella at risk of harm.   The petition alleged that the children were persons described by section 300, subdivision (b), in that Mother and Father had a history of domestic disputes in which Father had pushed Mother, and Mother failed to protect the children by allowing Father to have access to the children at their home in violation of a restraining order against Father, which placed the children at risk of harm.   The petition alleged that Father was diagnosed with bipolar disorder, schizophrenia, and auditory hallucinations, and failed to take his psychotropic medication, causing him to be unable to care for the children.   The petition alleged that Mother had a history of substance abuse, including heroin and marijuana, which rendered her incapable of providing regular care for the children.

The children were detained after the DCFS received a referral alleging Father's physical abuse of Jasmine by hitting her on her head during an argument.   Father was arrested for violating the restraining order.

At the June 17, 2008, detention hearing, the juvenile court stated that Mother and Father provided the same address as that on the petition, and advised them that the court would use those addresses for notice and that if the parents moved they were required to notify their attorneys and the DCFS. The juvenile court found that a prima facie case was established to detain the children as persons described by section 300, subdivisions (a) and (b) and ordered all four children detained.

Adjudication and Disposition :  Julian and Arabella were placed in their paternal grandparents' home.   Family members were interviewed about the events giving rise to the petition.

Father arrived at the children's home, became upset when he learned that Jasmine planned to take her brother swimming, and struck Jasmine on her head.   Mother heard Jasmine yelling and entered the room, Father got mad, yelled at Mother and pushed her.   When Nicholas was eight years old, Father hit him on the face and pushed him.   On September 4, 2007, Father accused Mother of seeing someone else and they argued.   Father put his hands around Mother's throat, and she was scared and did not know if he was going to choke her, and Father hit her face, which left a mark.   When Mother was pregnant with Arabella, Father slammed her head on the counter.   Mother stated that Father's violent behavior surfaced only when he did not take his medication.   Father heard voices in the walls, and began taking psychotropic medication in mid–2005.   Father did not like how his medication made him feel, however, and had difficulty taking his medication regularly.

Mother started using heroin when she was 16, but had stopped when she was arrested in 2004 for possession of marijuana, and was now on medical methadone.   She was currently on administrative detox to wean her off methadone.

On August 16, 2008, Father broke into Mother's residence and attacked Mother.   Father was arrested for violation of the domestic violence restraining order, domestic battery, burglary, and outstanding arrest warrants.   He was incarcerated until his release on October 17, 2008.

Mother regularly visited the children, attended parenting class, and received drug counseling.   Her drug counselor reported, however, that Mother had attendance problems, and diluted the specimen of her random drug test on August 21, 2008.   Mother was terminated from enrollment in drug counseling for non-compliance with program requirements, failure to attend for more than 30 days, several abnormally diluted tests, and failing to return to the program after stating she would return to the program.   Mother also failed to submit to an on-demand drug test.

At the adjudication on November 6, 2008, the juvenile court sustained the petition as amended, declared Jasmine, Nicholas, Julian, and Arabella dependent children of the juvenile court, ordered Julian and Arabella placed with the DCFS, and ordered the DCFS to provide family reunification services to Mother, Father, and the children.

Six–Month Review Hearing :  Arabella and Julian continued living with their paternal grandparents.   Mother was unemployed and was being evicted from the trailer home where she lived, which was owned by the paternal grandmother.   A Torrance Police Department police report reported foot and vehicle traffic at Mother's trailer home, a “known drug house.”   Mother was arrested for possession of narcotics paraphernalia on December 6, 2008.

Father was arrested on August 16, 2008, served a two-month jail sentence, and on release returned to Ocean View Sober Living home in San Pedro.   On December 9, 2008, Father was arrested for violating the domestic violence restraining order, was incarcerated, was released by January 22, 2009, and was readmitted to Ocean View Sober Living home.   Father did not complete any court-ordered parenting, domestic violence counseling, or psychiatric counseling.   The CSW had not received documentation that he visited his physician or took prescribed medication.

Mother did not complete any court-ordered parenting class, domestic violence counseling, or random drug testing.   After enrolling in an outpatient drug program, Mother had two “dilute drug tests” and was terminated from the program on October 21, 2008.   Mother failed to arrive for a September 25, 2008, on-demand drug test.   Of six drug tests over the next three months, Mother tested positive for alcohol once and had four “no show” reports.   As of February 17, 2009, Mother had not enrolled in an inpatient drug program.   Mother visited Julian and Arabella frequently but missed several visits with the excuse that she had no transportation.

In the February 17, 2009, hearing, the juvenile court found that Mother and Father were not in compliance with their case plans, but ordered reunification services to continue to the 12–month review date.

Twelve–Month Review Hearing :  Mother was evicted from her trailer home on March 10, 2009.   On March 24, 2009, Mother asked the CSW to use maternal grandmother's mailing address as a permanent address.   On April 21, 2009, a CSW spoke with maternal grandmother about Mother's whereabouts, as Mother had not contacted the DCFS and her cell phone was disconnected.   Mother was reported to be homeless as of May 18, 2009.   Mother was a “no show” to six random drug tests from February 4 to April 17, 2009, failed to submit to drug testing in May 2009, and had not participated in court-ordered programs.   The DCFS was unable to locate Mother, who made no contact with the CSW since March 2009 until she spoke with the CSW by telephone from maternal grandmother's home on June 29, 2009.   Mother again gave the maternal grandmother's phone and address as appropriate for contacting her.   The Redondo Beach police had arrested Mother on June 14, 2009, for two outstanding arrest warrants.   Mother was unemployed, homeless, and had no stable home environment to care for her children.

The paternal grandparents expressed their interest in adopting Julian and Arabella.   The DCFS recommended that reunification services be terminated and that adoption be selected as the children's permanent plan.

Mother did not appear at the September 1, 2009, review hearing.   The matter was set for a contested hearing on October 14, 2009, and Mother's attorney was ordered to give notice of that hearing to Mother.

Mother was arrested for possession of methamphetamines and heroin on September 23, 2009, and released on October 6, 2009.   In the police report, Mother admitted to being a current user of heroine and methamphetamines.   The DCFS reported that Mother had not completed any of her court-ordered programs.

The CSW mailed a courtesy notice to Mother on September 28, 2009, while she was incarcerated.   Mother's counsel also sent notice to Mother's last known address.   Mother did not appear at the October 14, 2009, hearing.   The juvenile court found that Mother was in partial compliance with her case plan, was unstable and had not made substantive progress, and had not completed a domestic violence counseling program for victims or parent education, had not submitted to random drug tests, and did not attend a drug rehabilitation program.   The trial court ordered termination of reunification services for Mother and Father, and set the matter for a section 366.26 hearing on February 10, 2010.

Section 366.26 Hearing :  Julian and Arabella continued living with their paternal grandparents, for whom an adoptive home study was approved on February 10, 2010.   Mother's whereabouts were unknown.   She was noticed by certified mail on December 10, 2009, at her last known home address.   The DCFS conducted a due diligence search for Mother.   DMV records gave Mother's last known address as the maternal grandmother's Redondo Beach address.   LexisNexis gave Mother's last known address as the Torrance address where she was living when the section 300 petition was filed, but the U.S. Postal Service indicated that Mother moved from that address and left no forwarding address.   An AT & T directory website gave a possible address for Mother at another location in Torrance, and a DCFS request to the U.S. Postal Service to verify proof of residence was pending.   Notice of the section 366.26 hearing on February 10, 2010, was sent to Mother at the maternal grandmother's address in Redondo Beach.   Notice was also sent to Mother's attorney.

Mother did not appear at the February 10, 2010, hearing.   The juvenile court found that notice was given to all parties as required by law, and continued the hearing to April 14, 2010.   The juvenile court ordered Mother's attorney to give notice to Mother.

For the April 14, 2010, hearing, the DCFS reported that Mother attended sibling visits only “sporadically.”   Neither Mother nor Father had been in contact with the DCFS in this period.

Notice of the April 14, 2010, hearing was sent to Mother at the maternal grandmother's address in Redondo Beach.   Mother and Father did not appear at the April 14, 2010, hearing.   Mother's counsel offered no evidence, but argued that Mother was opposed to adoption, believed she was very bonded with the children, and asked the juvenile court not to terminate her parental rights.   The juvenile court found that notice was given as required by law, that Julian and Arabella were adoptable and that it would be detrimental to return them to the parents, and ordered parental rights terminated.

Mother filed a timely notice of appeal.

ISSUE

Mother claims that the order terminating parental rights must be reversed because notice to her, and to the maternal grandmother, of the section 366.26 hearing was defective and not reasonably calculated to apprise her of the hearing.

DISCUSSION

1. Mother's Failure to Raise Defective Notice Waives This Claim of Error on

Appeal

Although Mother claims on appeal that the order terminating parental rights must be reversed because notice to her was defective, Mother's counsel did not object in juvenile court that notice to Mother, or to the maternal grandmother, was defective.   Failure to raise the issue of improper notice in the lower court, where defective notice and its consequences may be corrected, waives that claim of error on appeal.  (In re P.A. (2007) 155 Cal.App.4th 1197, 1209–1210;  In re Wilford J. (2005) 131 Cal.App.4th 742, 754;  In re Lukas B. (2000) 79 Cal.App.4th 1145, 1152.)

2. Notice to Mother of the Continued Section 366.26 Hearing Complied with

Section 294, Subdivision (d)

The juvenile court found that notice of the February 10, 2010, hearing was given to all parties as required by law.   Mother does not claim that notice of the February 10, 2010, hearing was defective.   The juvenile court continued the hearing to April 14, 2010, and ordered Mother's attorney to give notice to Mother.

Section 294, subdivision (d) states, in relevant part:  “once the court has made the initial finding that notice has properly been given to the parent ․ subsequent notice for any continuation of a Section 366.26 hearing may be by first-class mail to any last known address, by an order made pursuant to Section 296, or by any other means that the court determines is reasonably calculated, under any circumstance, to provide notice of the continued hearing.”   Notice of the April 14, 2010, hearing was sent to Mother at the maternal grandmother's address in Redondo Beach, which is the address Mother had requested the DCFS use as her permanent address.   Mother was advised at the beginning of the case that if she moved she was required to notify her attorney and the DCFS. Notice to Mother's attorney of the continued hearing also constituted a means reasonably calculated to provide Mother with notice.  (See In re Desiree M. (2010) 181 Cal.App.4th 329, 335.)   By the notice sent to Mother at the maternal grandmother's address, because of the order that Mother's attorney was to give notice to mother, and by the notice to Mother's attorney, notice to Mother of the continued April 14, 2010, hearing complied with section 294, subdivision (d).

3. Even If the Continued Section 366.26 Was Held Without Proper Notice to

Mother, Any Error Was Harmless

Even if the continued section 366.26 was held without proper notice to Mother, however, lack of notice of a continued section 366.26 hearing is a trial error rather than a structural error, and is subject to the harmless error analysis.  (In re Angela C. (2002) 99 Cal.App.4th 389, 395.)   That is, we assess the error in the context of other evidence to determine whether the error was harmless beyond a reasonable doubt.  (Ibid.) Although Mother argues on appeal that the DCFS search disclosed a possible Torrance address for Mother in an internet AT & T directory and disclosed multiple listings for Mother with her date of birth, Mother has not established that she lived at any of these addresses and that notice sent to these addresses would have provided her with actual notice.   Mother makes no showing of a compelling reason for determining that termination would be detrimental to Julian and Arabella because of circumstances in section 366.26, subdivision (c)(1)(b).  The error, if any, was harmless beyond a reasonable doubt.

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. Unless otherwise specified, statute in this opinion will refer to the Welfare and Institutions Code..  FN1. Unless otherwise specified, statute in this opinion will refer to the Welfare and Institutions Code.

FN2. Jasmine A. and Nicholas R., whose fathers were Gene A. (who was deceased), and Hector F., are not subjects of this appeal..  FN2. Jasmine A. and Nicholas R., whose fathers were Gene A. (who was deceased), and Hector F., are not subjects of this appeal.

CROSKEY, Acting P. J. ALDRICH, J.