RICHLI, Acting P. J.
On September 17, 2012, the Riverside County Department of Public Social Services (Department) filed a juvenile dependency petition under Welfare and Institutions Code
On December 11, 2012, the Department filed a second amended petition. It alleged that under section 300, subdivision (b), the children were at risk of harm because mother and appellant, Amanda K., and Rudy B., the father of the younger three children, were arrested on September 13, 2012, for being under the influence and in possession of a controlled substance for sale, and child endangerment; had prior child welfare histories; neglected the safety and well-being of the children in that Rudy, K., and Ka. were found to have a diaper rash; and mother abused controlled substances. As to Clayton's and M.'s respective fathers, the petition alleged that they failed to provide for the children and that their whereabouts were unknown.
The juvenile court found Rudy B. to be the presumed father of Rudy, K., and Ka.; Juan M. to be the presumed father of Clayton; and Alejandro C.
Mother and Rudy B. denied having Indian heritage.
The Department reported that the children came to its attention because mother was selling controlled substances in the children's presence. When the family home was searched on September 13, 2012, authorities found controlled substances and paraphernalia, which resulted in the arrest of the parents. In May of 2008, Clayton was previously removed from mother's care because of substance abuse issues; mother successfully reunified with Clayton in July of 2009. The Department recommended for the court to find the allegations true, with the exception that mother was currently abusing controlled substances (b-2), and that mother and Rudy B. remained incarcerated (g-1 and g-2).
The Department recommended that the court declare the children dependents of the court, remove them from parental custody, provide mother and Rudy B. reunification services with the children, but deny services to the fathers of Clayton and M. Clayton and Rudy were placed together in one foster home, whereas M., K., and Ka. were placed together in another foster home. The parents visited the children on a regular basis, twice a week; the visits were appropriate.
At the contested jurisdiction and disposition hearing held on December 11, 2012, mother was not present. She, however, was represented by her counsel. The court established jurisdiction and ordered reunification services. The court ordered mother to participate in counseling, parenting education, substance abuse treatment, and substance abuse testing.
On December 27, 2012, mother was arrested and incarcerated through February of 2013. On April 17, 2013, mother was again arrested and incarcerated as a result of federal drug charges. By the time of the six-month review hearing, mother was at the Correctional Corp of America Detention Center in San Diego. Mother was unable to participate in reunification services and visits because of her incarcerations.
Initially, Rudy had been placed with Clayton; and M. had been placed with the twins, K. and Ka. Their placements were switched in December of 2012. Rudy was placed with the twins and M. was moved to share a foster home with Clayton. Clayton and M. fought with each other on a daily basis. M. had also been violent and aggressive with the twins. Rudy and the twins were bonded to their foster family.
On May 24, 2013, mother informed the maternal grandmother that mother had received a letter from the Department advising her that the department was recommending termination of her parental rights. In a status review report filed on May 30, 2013, the department recommended that the court terminate reunification services and set a permanency planning hearing.
On June 14, 2013, the juvenile court signed form JV-450, Order for Prisoner's Appearance, to secure mother's presence at the six-month review hearing.
In an addendum report filed on July 22, 2013, the department indicated that per mother's criminal defense counsel, her criminal charge carried a mandatory five-year sentence, but mother was attempting to plea to one to three years because she was mainly a user at the time, and not very involved in the sale of controlled substances. Rudy B. had pled guilty to the charge and was sentenced to 10 years in prison. The report also summarized various relatives who came forward and wanted to be evaluated for the children's placement. The evaluations were pending and the Department's recommendation remained the same — to terminate family reunification services.
At the July 29, 2013 six-month review hearing, mother was not present but was represented by counsel. The court admitted into evidence a July 11, 2013, letter from mother requesting that the children be placed with family members and that she be permitted contact visits at her facility. Several of the relatives were present at the hearing. The court adopted the Department's recommendations, terminated reunification services for all the parents, and set the section 366.26 hearing. The court permitted reasonable telephone and written communication for all parents. The court granted the foster parents' request to be declared de facto parents of Rudy, K. and Ka.
On August 1, 2013, the clerk sent a written notice to mother's prison facility in San Diego advising her of her writ rights.
On August 14, 2013, the Department sent a notice of the section 366.26 hearing to mother's prison facility in San Diego.
On October 3, 2013, mother was personally served with notice of the selection and implementation hearing.
In the section 366.26 report, the Department recommended that the court find the children adoptable and terminate parental rights, but to continue the hearing for 90 days. All children remained in foster care, except M.; she was placed with her paternal grandparents on October 31, 2013. Clayton continued in therapy twice a week to address his feelings of sadness, anger, and abandonment. M. also continued in twice monthly therapy because of her night terrors and tantrums. Although the night terrors happened less frequently, she continued to have tantrums. On August 19, 2013, Rudy was diagnosed with Autistic Disorder and started receiving services from the Comprehensive Autism Center. K. and Ka. continued to do well and had developmental problems.
The paternal grandmother wanted to adopt M. and the foster parents of the three younger children wanted to adopt them. A maternal uncle was being evaluated for Clayton's placement. The maternal grandmother was told that her studio apartment was too small for placement of any of the children.
Mother and the extended family called the children at a minimum on a monthly basis, and the children would visit the maternal grandmother and great-grandmother every other week. The maternal grandmother was observed by the social worker to be very caring with the children. Clayton, M. and Rudy enjoyed the visits; the twins were fussy during the visits.
At the originally set section 366.26 hearing on November 26, 2013, the Department requested a continuance to complete relative and adoption assessments. The court continued the matter to February 27, 2014.
On December 5, 2013, the court signed an Order for Prisoner's Appearance to secure mother's presence at the hearing in February. The order was addressed to Correct Corp of America. On January 13, 2014, the Department sent notice of the hearing to mother to Correctional Corp of America.
The Department's report for the hearing recommended that the court find Rudy, Ka., and K. adoptable and terminate parental rights. Attached to the report was the preliminary adoption assessment for the foster parents. The foster parents did not have any criminal or child abuse histories, and were willing to adopt the children. The Department recommended a 120-day continuance of the section 366.26 hearing for Clayton and M. in order to complete the adoption assessments for their respective relative caretakers. On February 8, 2014, Clayton was placed with his maternal uncle and was very happy to be with family. M. remained in the home of her paternal grandparents.
At the hearing on February 27, 2014, Rudy's attorney, Ms. McPhee, appeared on behalf of mother's attorney, Mr. Vinson. McPhee requested a continuance because mother was moved to a federal prison and so that her counsel could be present. The Department requested a continuance to complete the adoption assessments. Minors' counsel declared a conflict in representing the younger three children, as well as Clayton and M. The court appointed new counsel for Rudy, K., and Ka. The court continued the hearing to March 3, 2014, for the presence of mother's counsel.
At the March 3, 2014, section 366.26 hearing, mother's counsel requested a continuance of the hearing because he had recently learned that the Department had a different address for mother since she moved from her facility in San Diego and the Department did not previously inform mother's counsel of her move. Mother's counsel stated that his attempts to contact mother at the old facility were unsuccessful and that the Department's notice and report for the hearing were sent to the old facility; hence, mother had not received these documents. Mother's counsel believed that mother would want the sibling relationship to continue and oppose the termination of parent rights. Counsel wanted a continuance for proper notice and to make contact with mother.
Counsel for Rudy, K., and Ka. indicated that according to the children's foster mother, mother had been calling the children about three times a week and had been moved to a new facility around November of 2013. Counsel was not opposed to a brief continuance to send notice to mother's new address. The Department opposed the continuance request stating that it was relieved from giving notice to the parents at the November 26, 2013 hearing.
The court denied the continuance request as to Rudy, K., and Ka.; found them adoptable; denied the sibling relationship exception raised by Clayton and M.; and terminated parental rights. The court continued the matter for Clayton and M.
On appeal, mother contends that the order terminating her parental rights must be reversed because: (1) the termination hearing took place in violation of Penal Code section 2625; (2) her rights to due process were violated by lack of notice; and (3) the court abused its discretion in denying her request to continue the hearing. For the reasons set forth below, we shall affirm the judgment.
Mother contends that the order terminating her parental rights to Rudy, K., and Ka. should be reversed because the juvenile court failed to abide by the requirements of Penal Code section 2625 ("section 2625"). Section 2625 requires a notice of hearing to terminate parental rights to be transmitted to a prisoner. (§ 2625, subd. (b).) Section 2625, however, only applies where the parent is a prisoner incarcerated in a state or county jail. Section 2625, subdivision (a), states:
Nothing in section 2625 indicates that the statute requires notice to be sent to a prisoner in a federal prison. The juvenile court appeared to be aware of this statute when it stated, "Federal authorities will not honor [a] state judge's transportation order." In fact, a parent who is incarcerated in a federal prison does not enjoy an absolute right to be present at a dependency proceeding. (In re Maria S. (1997) 60 Cal.App.4th 1309, 1312.) Therefore, section 2625 does not apply in this case.
Nonetheless, in her reply brief, mother claims that section 2625 applies to her because "[t]he statute does not specify that the prisoner must be in a California state prison, but in `a state prison.' Thus, the statutory language could be reasonably interpreted as any state prison and the juvenile court is required to make the Order for Prisoner's Appearance once the parent's desire is evident to the court. [Citation omitted.]" Mother's argument is without merit. The statute, read as a whole, clearly is meant to apply to California prisons, not all state prisons; and certainly, there is nothing in the statute that pertains to notice being provided to federal prisoners.
"`"[I]t is a settled principle of statutory interpretation that language of a statute should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend." [Citations.] Thus, "the intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act." [Citation.]"'" (Calatayud v. State of California (1998) 18 Cal.4th 1057, 1064-1065, quoting People v. Pieters (1991) 52 Cal.3d 894, 898-899.)
In this case, it would be absurd to interpret section 2625 to apply to prisons in other states or federal prisons, and not just California's prisons. In In re Maria S. (1997) 60 Cal.App.4th 1309, the court stated that "section 2625 establishes a procedure through which state prisoners incarcerated in California are able to attend dependency hearings held in California. There is no statutory equivalent establishing a procedure to facilitate the attendance of out-of-state or federal prisoners." (Id. at p. 1312.)
We also note that, for the first time in her reply brief, mother sets forth the argument that whether mother could have appeared at the proceedings did not matter as long as she received notice. She states: "Now, whether federal or out-of-state authorities abide by the Order for Prisoner's Appearance is the second step of the analysis and this should not be confused with the court's duty to give an incarcerated parent, whether out-of-state, in [a] federal facility, or within the state, an opportunity to appear as there are alternative means to physical appearance, such as telephonic appearance utilized by many courts, including the underlying juvenile court by way of CourtCall."
Mother's argument, however, fails because, as discussed above, the clear statutory language of section 2625 does not include prisoners in federal prisons. Moreover, as will be discussed in more detail below, this is not a case where mother did not have notice about the section 366.26 hearing. Here, mother had been given numerous notices regarding the section 366.26 hearing before she moved to the federal prison facility. She could have contacted either her attorney or the social worker had she been interested in participating in the hearing while she was in prison. For whatever reason, she did not. Furthermore, any alleged error was harmless. (See, infra, § II, subd. (B).)
Mother claims that the court violated her rights to due process in terminating her parental rights without proper notice.
Section 294 sets forth the manner in which the Department must provide notice of a section 366.26 hearing to terminate parental rights. Under section 294, subdivision (a)(1), the Department must personally serve a parent with notice of a selection and implementation hearing. Service must be completed at least 45 days before the hearing date and is deemed complete at the time the person is personally served. (§ 294, subd. (c)(1).) Subsequent notices of any continued hearing may be made by first-class mail to the parent's last known address as long as the court has made an initial finding of proper notice to the parent. (§ 294, subd. (d).)
In this case, notice of the selection and implementation hearing was mailed to mother on August 14, 2013; this notice set forth the recommendation to terminate parental rights. On October 3, 2013, mother was personally served with the notice of the selection and implementation hearing. On October 28, 2013, another notice was mailed to mother.
At the hearing on November 26, 2013, the court found proper notice. Therefore, subsequent notices of the hearing could be mailed to the last known address for continued hearings. (See § 294, subd. (d).)
Sometime thereafter, mother was moved from the federal facility in San Diego, California, to a federal facility in Texas. However, there is nothing in the record as to when mother was moved or when, or if, the Department had been informed. Mother relies on representations made by her counsel at a hearing to support her assertion that the Department knew mother had been moved. Statements by counsel, however, are not evidence. (In re Stephen W. (1990) 221 Cal.App.3d 629, 646, fn. 13.) A parent is obligated to maintain an updated address with the juvenile court for purposes of noticing. (Calif. Rules of Court, rule 5.534(m)(1)-(2).) There is no evidence that mother contacted the Department, her attorney, or the juvenile court regarding her new address.
The first indication that mother was no longer in federal prison in San Diego was made on February 27, 2014, by the father's attorney when she made a special appearance for mother's counsel. The clerk noted, "Continuance requested S. Mcphee for mother, due to mother being moved to federal prison." The Department, however, was mailing notices to mother to the address provided on mother's Notification of Mailing Address filed by mother on September 18, 2012.
In sum, mother was personally served regarding the section 366.26 hearing. When the hearing was continued, the department mailed notices of the continued hearing dates to mother's last known address on file. Therefore, the Department's failure to send the most recently mailed notice to her new address in Texas did not violate her due process rights.
Mother's reliance on In re Jasmine G. (2005) 127 Cal.App.4th 1109 and In re Julian L. (1998) 67 Cal.App.4th 204 is misplaced.
First, in In re Jasmine G., at a review hearing, the Orange County Social Services Agency (SSA) filed a search declaration "and nothing else," indicating that the mother's address and telephone number were unknown. Mother's trial counsel stipulated to SSA's due diligence, "and on this basis the court found SSA had exercised due diligence in its efforts to locate [the mother]. It authorized notice by service on her attorney." (In re Jasmine G., supra, 26 Cal.App.4th at p. 1113.)
In a report filed for the selection 366.26 hearing, the social worker reported that she had spoken with the mother eight times after the setting order and met with her once. However, during ALL of these contacts, no one informed the mother of the upcoming section 366.26 hearing. (In re Jasmine G., supra, 26 Cal.App.4th at p. 1113.) The report also included the mother's new address but did not indicate when it had been obtained. "Nothing in the record indicates SSA even tried to notify [the mother] at the new address, nor that it advised her trial attorney of that address." (Id. at p. 1114.)
At the section 366.26 hearing, the trial court denied a request by the mother's attorney for a continuance to allow him to locate and notify her. Thereafter, the trial court found that the mother had received notice as required by law, terminated the mother's parental rights, and placed the child for adoption. (In re Jasmine G., supra, 26 Cal.App.4th at p. 1114.)
On appeal, the appellate court found that "the failure to attempt to give a parent statutorily required notice of a selection and implementation hearing is a structural defect that requires automatic reversal." (In re Jasmine G., supra, 26 Cal.App.4th at p. 1116.) The court reiterated that SSA "made no attempt, absolutely none, to even look for [the mother] after the six-month review. It simply resubmitted the November 2003 search declaration to show compliance with the later December 2003 order to serve notice of the upcoming hearing. Particularly astonishing is the apparent failure of anyone to even read the declaration — which gave [the mother's] then current telephone number and address (previously unknown to SSA) and identified a friend at one of the known addresses who had delivered prior notices to [the mother]." (Ibid.)
In In re Jasmine G., the court distinguished its case from In re Angela C. (2002) 99 Cal.App.4th 389. In In re Angela C., "a parent had been given proper notice of a selection and implementation hearing but did not appear, and the social services agency failed to give notice of the continued date. The court held this was trial error, and harmless. It said the parent had received notice of the originally scheduled hearing, and the juvenile court could have proceeded without her at that time." (In re Jasmine G., supra, 127 Cal.App.4th at pp. 1117-1118.) The In re Jasmine G. court then stated: "Again, we find the failure here qualitatively different. In this case, SSA never even tried to give [the mother] notice of the selection and implementation hearing, despite having been in regular contact with her and having a current address. That is the difference between a sound structure which fails due to human error and an unsound structure which can never support a fair process. It is the difference between reversible error and error per se, and in this case it requires reversal." (Id. at p. 1118.)
This case is distinguishable. Here, the Department gave mother notice regarding the section 366.26 hearing. On October 3, 2013, mother was personally served with the notice of the selection and implementation hearing. At the noticed hearing on November 26, 2013, the juvenile court found proper notice so that subsequent notices could be mailed to mother's last known address under section 294, subdivision (d). Thereafter, numerous notices of the section 366.26 hearing were sent to mother's last known address. Mother, however, was transferred to another federal prison and failed to inform the Department of her new address. Unlike the mother in In re Jasmine G., supra, 127 Cal.App.4th 1109, who was never given any notice regarding the section 366.26 hearing, in this case, the Department gave notice to mother about the hearing on numerous occasions. Therefore, In re Jasmine G. does not support mother's contention.
Second, in In re Julian L., supra, 67 Cal.App.4th 204, the child's mother, while incarcerated, waived her attendance at a permanency hearing set for October, 1997. The court did not determine a permanency plan at that hearing. Instead, it continued the hearing to February of 1998. The mother was not provided with any notice of the continued hearing. At the February hearing, the court ruled that the mother's waiver of attendance at the October hearing applied equally to the February hearing. Thereafter, the court terminated mother's parental rights (Id. at p. 206-207.)
On appeal, the mother contended, among other things, that she had not been properly notified of the hearing. The appellate court agreed. The court stated: "Mother waived her right to appear at a hearing scheduled October 10, 1997. The waiver was specific, and covered no other hearing. . . . Mother should have received notice of the continued hearing." (In re Julian L., supra, 67 Cal.App.4th at p. 208.)
Again, this case is distinguishable from In re Julian L. because, in this case, the Department noticed mother regarding the section 366.26 hearing via personal service and mailings. Therefore, In re Julian L., supra, 67 Cal.App.4th 204 does not support mother's argument regarding notice.
Based on the personal service of mother followed up by mailed notices to mother's last known address regarding the selection and implementation hearing, we find that mother received proper notice.
Even if the Department should have mailed the notice to her current address in Texas, any error was harmless beyond a reasonable doubt.
In this case, mother contends that the lack of notice prejudiced her because she did not have an opportunity to testify about the children's sibling relationships. (AOB 21) However, as stated above, mother received notice of the selection and implementation hearing before she was moved from the federal California prison. She was served in mid-August 2013, and personally served at the prison on October 3, 2013. Additionally, mother believed that the Department intended to terminate her parental rights as early as the review hearing in May of 2013. Mother had telephoned her mother from the federal facility in San Diego and discussed this belief with her. Subsequently, the selection and implementation hearing was continued two times.
Moreover, mother only speculates as to the information she may have offered if given an opportunity to testify at the hearing. Mother states that she "could have testified in person or by telephone about the children's visits with their siblings, the strength of the relationship they shared, and whether they discussed the siblings during mother's weekly telephone calls." In order to establish that parental rights should not be terminated because of a sibling relationship, a parent must demonstrate that the sibling relationship outweighs the benefits of adoption. (See § 366.26, subd. (c)(1)(B)(v).) In this case, there is no evidence to support mother's contention that she had any insight about the siblings' relationship or that she discussed the older children when speaking to the younger children during her telephone conversations with them.
"Reflecting the Legislature's preference for adoption when possible, the `sibling relationship exception contains strong language creating a heavy burden for the party opposing adoption. It only applies when the juvenile court determines that there is a "compelling reason" for concluding that the termination of parental rights would be "detrimental" to the child due to "substantial interference" with a sibling relationship.' [Citation.] Indeed, even if adoption would interfere with a strong sibling relationship, the court must nevertheless weigh the benefit to the child of continuing the sibling relationship against the benefit the child would receive by gaining a permanent home through adoption. [Citation.]" (In re Celine R. (2003) 31 Cal.4th 45, 61.)
Section 366.26 subdivision (c)(1)(B)(v) applies if the court finds that termination would be detrimental to a child, due to a ". . . substantial interference with a child's sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child's best interest, including the child's long-term emotional interest, as compared to the benefit of legal permanence through adoption."
Here, mother provided no specifics to support her argument regarding any close sibling relationships. The children have not lived together for the entire period of the dependency. The twins were so closely bonded to their caregivers that they did not enjoy sibling visits with extended relatives. The oldest child, Clayton, was the last to be placed into a prospective adoptive home and was happy to find a permanent home. He had been sad to know that his siblings had families while he remained in foster care. The children visited with each other one to two times a month. There is no evidence, however, that the children suffered any kind of negative reactions to either living separately from one another or from participating in minimal visits.
Based on the above, we find any alleged error in failing to give mother proper notice of the section 366.26 hearing to be harmless beyond a reasonable doubt.
Mother contends that the court abused its discretion in denying her counsel's request to continue the permanency planning hearing.
"The juvenile court may continue a dependency hearing at the request of a parent for good cause and only for the time shown to be necessary." (In re Karla C. (2003) 113 Cal.App.4th 166, 179-180; § 352, subd. (a).) Section 352 states, in pertinent part:
The California Rules of Court have similar requirements in granting a request for a continuance. (See Cal. Rules of Court, Rule 5.550(a)(1), (2), (4).)
Here, mother made an oral and untimely motion to continue; and she failed to provide affidavits or declarations detailing specific facts showing that a continuance was necessary, notwithstanding that mother's counsel had information regarding mother's current whereabouts on February 27, 2014, and the hearing was previously continued in order for him to be present in court.
Even if we were to consider mother's argument regarding the court's denial of her motion to continue, any such denial cannot be overturned on appeal absent an abuse of discretion. (In re Karla C., supra, 113 Cal.App.4th at p. 180.) "`The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.' [Citations.]" (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) Continuances should be granted sparingly and are expressly discouraged. (In re Emily L. (1989) 212 Cal.App.3d 734, 743.)
In this case, mother contends that the court abused its discretion because the notice of the section 366.26 hearing mailed to her in January 2014 was sent to the prison from which she had been transferred. Mother, however, had not maintained a current address with the juvenile court and had failed to communicate with her attorney. Notwithstanding, she maintained telephone contact with the children. Moreover, the maternal grandparents had been aware of the hearing; they were present at the hearing on March 3, 2014.
Here, we find that, because notices that were personally served and mailed to mother's last known address and mother failed to communicate with the social worker regarding her move to Texas — despite the fact that mother knew that a section 366.26 hearing was going forward — the trial court did not abuse its discretion in denying mother's request for a continuance.
The judgment is affirmed.
