In re Lizbeth J. CA4/1

Filed 4/18/14 In re Lizbeth J. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re LIZBETH J., a Person Coming Under
the Juvenile Court Law.
D064856
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. NJ14618B-C)
Plaintiff and Respondent,

v.

JOSE J.,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Michael J.

Imhoff, Commissioner. Affirmed.

Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and

Appellant.

Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy and

Patrice Plattner-Grainger, Senior Deputy Counsel, for Plaintiff and Respondent.
 Jose J. appeals a juvenile court judgment terminating his parental rights to his

children, David J. and Lizbeth J., and choosing adoption as the appropriate permanent

plan under Welfare and Institutions Code1 section 366.26. Jose contends he did not

receive the required statutory notice of the section 366.26 hearing. He also challenges the

sufficiency of the evidence to support the court's finding that the beneficial relationship

exception to the adoption preference is inapplicable. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In April 2012, the San Diego County Health and Human Services Agency

(Agency) filed petitions on behalf of 21-month-old David and four-month-old Lizbeth, as

well as their older half sibling, Angie H. Although Angie has a different father, she

referred to Jose as her father.2 The petitions alleged Jose had sexually and physically

abused Angie and that the younger siblings were at substantial risk of abuse.

Angie had bruises on her arms, legs, and thigh. She told the examining nurse Jose

hit her with his fists and touched her genitalia and buttocks. At the conclusion of the

jurisdictional hearing, the court sustained the petitions. The court subsequently declared

all three children dependents, removed physical custody from the parents, placed them in

foster care, and ordered supervised visits for the parents.3 This Court affirmed the

1 Statutory references are to Welfare and Institutions Code unless otherwise
specified.

2 On April 9, 2012, the juvenile court found Jose to be the presumed father of David
and Lizbeth.

3 The court ordered no contact between Jose and Angie.
2
juvenile court's jurisdictional and dispositional findings and orders in an unpublished

opinion in case number D062478. (In re David J. (Jan. 11, 2013, D062478) [nonpub.

opn.].)

The Agency's six-month review report dated February 6, 2013, recommended

reunification services for the parents be terminated based on their lack of progress. Jose

had not participated in sexual abuse treatment and his attendance in individual therapy

had been sporadic. The parents had been fairly consistent in their supervised visitation.

During the preceding six months, Jose was depressed and on one occasion

reported cutting himself with a razor blade. He also went to the emergency room after

undergoing an anxiety attack. The parents remained married, but had reportedly been

separated since October 2012. The social worker doubted the parents' claim of remaining

separated since they had been observed together holding hands after visits and were seen

together on other occasions.

A subsequent addendum report indicated staff at the Casa De Amparo visitation

center stated on April 23, 2013, Jose failed to show or call to cancel his appointment for

the third time and his visitation at that facility would be terminated. In April 2013, a

restraining order was issued against Jose, which listed the mother as the protected person.

Jose had become violent with the mother by slapping and pushing her. The social worker

continued to recommend termination of reunification services.

At the conclusion of the six-month review hearing on April 26, 2013, the court

found the services provided had been reasonable. It also found a return of the children to

parental custody would be detrimental and the parents had not made substantive progress

3
with the provisions of the case plan. It terminated court-mandated reunification services

and scheduled a hearing under section 366.26 to select and implement a permanent plan.

On May 2, 2013, Jose filed a notice of intent seeking to challenge the juvenile

court's findings and orders entered at the six-month review. This Court subsequently

dismissed the matter after Jose's counsel indicated there were no viable issues for review.

The Agency prepared an addendum report dated May 30, 2013, in support of its

request for a special hearing. The social worker noted Angie and David had been placed

together in the same home since August 17, 2012, and Lizbeth had been in her separate

placement since July 24, 2012. The children had maintained their relationships through

sibling visits. The social worker recommended transitioning the children into a home

willing to care for all three on a long-term basis, but the attorney for the children opposed

the request. On July 31, 2013, the court appointed counsel for the two oldest children

and a different attorney for the youngest child.

The Agency's addendum report dated August 1, 2013, provided additional

information to the court regarding placement options. The social worker recommended

Lizbeth be placed together with her siblings in a prospective adoptive home.4 The

siblings had maintained twice weekly visits. The worker noted that since Lizbeth had

been in the same placement for the preceding year, the child had formed an attachment

with the caregivers. However, the worker opined the benefits of being placed in the same

home with her siblings would outweigh any temporary separation anxiety the child might

4 The court subsequently denied the Agency's request to move Lizbeth to the same
home as the siblings.
4
experience. Another factor to consider was the fact the prospective adoptive parents for

David and Angie were primarily Spanish speaking and Lizbeth had been raised in an

English speaking home.

The Agency prepared an assessment report dated August 26, 2013. The report

stated the following. Angie and David had adjusted well to their prospective adoptive

home, where they had been placed together since June 7, 2013. Lizbeth continued to

thrive in her foster home, where she had resided since July 24, 2012. With respect to

parental contact and visitation, the social worker noted visits had remained supervised

throughout the case. The report's author had personally observed several visits since his

assignment to this matter. The first hour of the visit on June 12, 2013, he observed the

children interact with the mother, then Jose. When Jose arrived, he hugged both David

and Lizbeth. He was attentive to the children and took turns holding each of them. The

children had no reaction when it was time for the visit to end.

The visit on June 19, 2013 was held at a local park. Jose attended to both children

and took David to the restroom. He took Lizbeth to the water fountain when she was

thirsty. At the conclusion of the visit, Jose hugged the kids and said goodbye. The

children had no reaction to Jose leaving.

The visit on June 26, 2013 took place at a local park and was similar to the one on

June 19. The children displayed no signs of distress when it was time to separate from

Jose. David cried when his foster father left at the beginning of the visit.

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 At the visit on July 3, 2013 both parents were present. The parents switched

children and each spent time individually with David and Lizbeth. The parents interacted

with the children and supervised them on the play structure.

The social worker recommended adoption as the most appropriate permanent plan.

The prospective adoptive parents of David and Angie had an approved adoptive home

study and were interested in adopting Lizbeth as well. Additionally, the foster caregivers

of Lizbeth wanted to adopt her. There were 13 out-of-county approved adoptive homes

interested in adopting a sibling set similar to Angie, David, and Lizbeth.

The social worker opined it would not be detrimental to terminate parental rights.

Although the parents had maintained regular visits, the social worker concluded the

benefits of adoption outweighed the benefit the children would receive from maintaining

a relationship with their parents. The social worker noted the relationship David and

Lizbeth had with their parents was positive and the children seemed to enjoy the visits.

However, the social worked stated he does not believe the parents have a strong

relationship with Lizbeth. And the social worker did not think any of the children shared

a parent-child relationship with either parent. Ultimately, the social worker opined the

permanency and stability of adoption was in the children's best interests.

The matter came before the court for a section 366.26 hearing on August 26, 2013.

The court found notice had been given as required by law. The parents' attorneys set the

case for trial. The court ordered counsel for the parents to notify their clients of the next

hearing date and continued the matter on the contested hearing calendar.

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 The court held the contested section 366.26 hearing on October 10, 2013. The

court received into evidence the Agency's August 26, 2013 assessment report. The

author of the report was present and available for cross-examination, but none of the

parties chose to examine him. After considering the evidence presented and hearing

argument of counsel, the court found by clear and convincing evidence the children were

likely to be adopted and none of the statutory exceptions applied. It terminated parental

rights and ordered a permanent plan of adoption for the children.

Jose timely appealed.

DISCUSSION

Jose raises two issues in this appeal. First, he contends he did not receive

adequate notice of the section 366.26 hearing. He argues that the defective notice

violated his due process rights and constituted a structural defect requiring automatic

reversal. Second, Jose maintains that the juvenile court erred when it did not apply the

beneficial relationship exception to preserve his relationships with both David and

Lizbeth. We reject both of these contentions.

I

NOTICE OF THE SECTION 366.26 HEARING

"[P]arents are entitled to due process notice of juvenile proceedings affecting their

interest in custody of their children. [Citation.] And due process requires 'notice

reasonably calculated, under all the circumstances, to apprise interested parties of the

pendency of the action and afford them an opportunity to present their objections.'

[Citation.]" (In re Melinda J. (1991) 234 Cal.App.3d 1413, 1418.)

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 Section 294 concerns notice to a dependent child's parents of the hearing

terminating parental rights or establishing guardianship under section 366.26. As

relevant here, the statute provides, "If the parent is present at the hearing at which the

court schedules a hearing pursuant to Section 366.26, the court shall advise the parent of

the date, time and place of the proceedings, their right to counsel, the nature of the

proceedings, and the requirement that at the proceedings the court shall select and

implement a plan of adoption, legal guardianship, or long-term foster care for the child.

The court shall direct the parent to appear for the proceedings and then direct that the

parent be notified thereafter by first-class mail to the parent's usual place of residence or

business only." (§ 294, subd. (f)(1).) The statute also allows personal service to the

parent named in the notice. (§ 294, subd. (f)(3).) "Regardless of the type of notice

required, or the manner in which it is served, once the court has made the initial finding

that notice has properly been given to the parent, or to any person entitled to receive

notice pursuant to this section, 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. However, if the

recommendation changes from the recommendation contained in the notice previously

found to be proper, notice shall be provided to the parent, and to any person entitled to

receive notice pursuant to this section, regarding that subsequent hearing." (§ 294,

subd. (d).)

8
 Jose argues he did not receive proper notice of the section 366.26 hearing. Our

review of the record indicates the following. At the conclusion of the six-month review

hearing on April 26, 2013, the court made certain findings:

"And further by clear and convincing evidence, [the court finds] that
the parents have not made substantive progress with their case plans.
The parents have gone to the appointments as indicated before. But
for the reasons identified by the Court, the mere attendance has not
been sufficient to gain any kind of traction to address the assessed
risk. [¶] I do find by clear and convincing evidence that there's not a
substantial probability that the children can be returned to the
parents by the permanency hearing date. Again, the denial is still
very significant. The parents have recently engaged in a domestic
violence incident. So I will order that a selection implementation be
held on August 26 at 8:30. Both parents are ordered to return."

The court further explained to the parents what would occur at the August 26

section 366.26 hearing:

"In addition, I'm required by statute to inform you, that on August 26
of this year, the Court will be conducting a selection and
implementation hearing. Each of you are [sic] entitled to have an
attorney represent you . . . the CPO division is representing the
mother. Ma'am, they will remain your attorneys throughout. [¶]
And the PPO division is representing father. Sir, they will remain
your attorneys throughout. [¶] The Agency will be preparing an
assessment report with a set of recommendations. Each of you will
be informed of those recommendations prior to the next hearing. If
either of you are in agreement with the recommendations, you do
have a separate entitlement to set that matter for a contested hearing.
[¶] The recommendation may be for what's called long term foster
care, legal guardianship with a third person or relative, or request
that the Court find that the children are likely to be adopted. If the
evidence supports the latter recommendations, then the Court would
have to determine whether or not the rights as parents should be
terminated to facilitate adoption."

At the end of the six-month review hearing, the court ordered the parents to stay in

the courthouse so the social worker could provide notice.

9
 The record contains a notice of hearing on selection of permanent plan that states a

hearing will be held on August 26, 2013 at 8:30 a.m. in department nine. The documents

states "Notice to [Jose]." It is signed and dated April 26, 2013. The related proof of

service states that the document was served by personal service, but does not indicate the

date or time of service. The proof of service is also signed April 26, 2013 (the same day

as the six-month review hearing).

In addition, the record contains an amended proof of service that states Jose was

personally served with the notice of the section 366.26 hearing on April 26, 2013 at

3:38 p.m. at 325 S. Melrose Drive, Vista, California 92081. This is the address of the

court.

A copy of the court's minute order after the April 26 six-month review hearing was

mailed to Jose. The report included the date and time of the section 366.26 hearing.

Jose was not present at the August 26, 2013 hearing, but his attorney appeared at

the hearing. At the parents' request through their counsel, the court continued the hearing

to October 10, 2013 at 1:30 p.m. The court then asked, "Counsel, if contacted, would

you advise their clients of the trial date?" Jose's attorney responded, "Yes, your honor."

A copy of the minute order from the August 26, 2013 hearing was mailed to Jose.

That order indicated the contested section 366.26 hearing was set for October 10, 2013 at

1:30 p.m. in department nine.

At the October 10 hearing, Jose was not present, but was represented by his

attorney. The court asked if there were any preliminary matters to be addressed. Jose's

10
attorney did not object to the notice or raise any issue about Jose's absence from the

hearing.

The Agency contends Jose has forfeited his claim by failing to raise the issue with

the juvenile court. Jose does not dispute that he did not raise the issue below, but instead,

attempts to distinguish the cases the Agency cites. We agree with the Agency.

Because Jose did not raise the notice issue with the juvenile court, he has forfeited

this issue on appeal. (In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1528

(Davenport) ["Preliminarily, we note that Jill's argument as to the Judicial Council form

was not made below, and thus is waived or forfeited."]; City of San Diego v. D.R. Horton

San Diego Holding Co., Inc. (2005) 126 Cal.App.4th 668, 685 ["contentions or theories

raised for the first time on appeal are not entitled to consideration"]; Amato v. Mercury

Casualty Co. (1993) 18 Cal.App.4th 1784, 1794 ["It must appear from the record that the

issue argued on appeal was raised in the trial court. If not, the issue is waived."].) This is

especially true here where there is disagreement between the parties regarding personal

service and whether Jose's attorney provided him with notice of the continued hearing

date. If this issue was brought to the juvenile court's attention, it could have addressed

the issue by taking evidence and resolving the factual disputes Jose raises on appeal.

Having not done so, Jose asks us to address the issue on a cold record that has not been

fully developed on the subject issue. As such, he has forfeited this issue on appeal.

Further, the record shows that Jose had actual notice of the August 26, 2013

hearing date for the section 366.26 hearing. Jose was present at the April 26 hearing

when the court set the section 366.26 hearing on August 26 at 8:30 a.m. Also, the record

11
contains an amended notice indicating that Jose was personally served with notice of the

hearing at the courthouse on April 26, 2013 at 3:38 p.m. Personal service on that date is

consistent with the transcript of the hearing where the court ordered the parents to remain

at the courthouse so they could be personally served. We also note that Jose was served

via mail with the minute order of the April 26 hearing that stated the section 366.26

hearing would be held on August 26, 2013 at 8:30 a.m. in department nine. Therefore, if

we did address Jose's argument on the merits, we would determine he had notice of the

August 26 hearing.

The record, however, is less clear regarding whether Jose had notice of the

continued hearing date on October 10. Parents remain entitled to notice of the continued

hearing date. (In re Phillip F. (2000) 78 Cal.App.4th 250, 258-259.) Here, although Jose

did not appear at the August 26 hearing, he, along with the children's mother, through

counsel, requested a continuance of the hearing. The court continued the hearing to

October 10 and requested that counsel provide notice to their respective clients. Jose was

represented by the same counsel throughout the proceeding, and the juvenile court could

have reasonably concluded that ordering Jose's attorney to provide Jose with notice was

reasonably calculated to provide Jose with notice of the continued hearing. (See § 294,

subd. (d).) Moreover, Jose was mailed a copy of the August 26 minute order detailing

the continued date of the hearing.

Yet, we do not reach this issue for two reasons. First, as we discuss above, we

find that Jose forfeited this issue by not raising it with the juvenile court. (See

Davenport, supra, 194 Cal.App.4th at p. 1528.) Second, any error associated with a

12
failure to provide notice to Jose of the continued hearing date would be harmless beyond

a reasonable doubt under the Chapman5 standard.

Jose asserts the failure to give notice is a structural error that requires automatic

reversal. To this end, he cites In re Jasmine G. (2005) 127 Cal.App.4th 1109. However,

that case is distinguishable from the instant matter because the court in Jasmine

addressed a failure to even attempt to give the parents statutory notice of the original

section 366.26 hearing. (See id. at p. 1116 [holding "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."].) As we previously discussed, this is not the

case here. Jose had notice of the original hearing date. The record is less clear whether

he had notice of the continued hearing date. Yet, even if we would assume that Jose did

not receive notice of the continued hearing date, in reviewing the effect of that error, we

apply the Chapman harmless error standard. (See In re Angela C. (2002) 99 Cal.App.4th

389, 395 ["Here, we find the lack of notice of a continuance is in the nature of a trial

error."].)

Having reviewed the record under the Chapman standard, we conclude any failure

to notify Jose of the continued section 366.26 hearing date was harmless beyond a

reasonable doubt. "The primary issue in a section 366.26 hearing is whether the

dependent child is likely to be adopted." (In re Angela C., supra, 99 Cal.App.4th at

p. 395.) Jose's only challenge to the juvenile court's determination that the children were

5 Chapman v. California (1967) 386 U.S. 18.
13
likely to be adopted is that it did not apply the beneficial relationship exception to

preserve his relationship with David and Lizbeth. We address this issue in the next

section wherein we determine Jose's argument is without merit. Moreover, the Agency's

assessment of the children's adoptability satisfied statutory requirements. We therefore

find beyond a reasonable doubt that any error in notice was harmless as to the court's

finding of the children's adoptability.

II

THE BENEFICIAL RELATIONSHIP EXCEPTION

The juvenile court may terminate parental rights if there is clear and convincing

evidence of adoptability. (§ 366.26, subd. (c)(1).) After the court determines a child is

likely to be adopted, the burden shifts to the parent to show the termination of parental

rights would be detrimental to the child under one of the four exceptions listed in section

366.26, subdivision (c)(1)(B). (In re C.F. (2011) 193 Cal.App.4th 549, 553.) An

exception to the termination of parental rights exists when "[t]he parents have maintained

regular visitation and contact with the child and the child would benefit from continuing

the relationship." (§ 366.26, subd. (c)(1)(B)(i).)

"The parent must do more than demonstrate 'frequent and loving contact[,]'

[citation] an emotional bond with the child, or that parent and child find their visits

pleasant. [Citation.] Instead, the parent must show that he or she occupies a 'parental

role' in the child's life." (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) The parent

must also show that his or her relationship with the child " 'promotes the well-being of

the child to such a degree as to outweigh the well-being the child would gain in a

14
permanent home with new, adoptive parents.' " (Ibid., quoting In re Autumn H. (1994) 27

Cal.App.4th 567, 575 (Autumn H.).)

We review the juvenile court's ruling under the substantial evidence test, viewing

the evidence in the light most favorable to the prevailing party. (Autumn H., supra, 27

Cal.App.4th at p. 576.) We do not attempt to resolve conflicts in the evidence or evaluate

the weight of the evidence; rather, we must draw all reasonable inferences in support of

the court's findings and affirm the order even if there is substantial evidence supporting a

contrary finding. (In re J.I. (2003) 108 Cal.App.4th 903, 911.)

Here, Jose does not challenge the juvenile court's finding that David and Lizbeth

are adoptable. Instead, he argues his parental rights should not have been terminated

given the beneficial nature of his ongoing relationship with the children. The Agency

acknowledges that Jose had regular visitations with the children. Nonetheless, the

Agency asserts Jose did not show he occupied a parental role in his children's lives and

failed to show his relationship with the children outweighed the benefits of adoption.

(See Autumn H., supra, 27 Cal.App.4th at pp. 575-577.) Examining the evidence in the

light most favorable to the judgment, we agree with the Agency.

David and Lizbeth were taken into protective custody as infants and had been in

out-of-home care for 18 months when the court held the section 366.26 hearing. In the

August 26 addendum report, a social worker who observed Jose's visits with David and

Lizbeth wrote the children appear to have a positive relationship with their parents and

enjoy their visits with them. The social worker noted the children do not ask about their

parents before or after visits. Also, in one visit, David did not want to be with Jose and

15
turned away from him and went toward his current caretakers. Additionally, the social

worker stated that the parents do not have a strong relationship with Lizbeth. Ultimately,

the social worker opined on balance the children would benefit more from a permanent

plan of adoption.

Jose largely ignores the social worker's observations and conclusions in the

addendum report, and instead argues his "frequent and loving visits with his son and

daughter" evidence a significant bond. He thus insists this case is analogous to In re S.B.

(2008) 164 Cal.App.4th 289 (S.B.). We are not persuaded.

In S.B., supra, 164 Cal.App.4th 289, we concluded the beneficial relationship

exception does not require that a parent establish that a child's primary attachment was to

him or her. (Id. at p. 299.) Nonetheless, since we issued our opinion in S.B., we have

discouraged the improper and inaccurate use of that opinion. (See In re Jason J. (2009)

175 Cal.App.4th 922, 937.) Further, we expressly limited the holding of S.B.: "[W]e

once again emphasize that S.B. is confined to its extraordinary facts. It does not support

the proposition a parent may establish the parent-child beneficial relationship exception

by merely showing the child derives some measure of benefit from maintaining parental

contact." (In re C.F., supra, 193 Cal.App.4th at pp. 558-559.)

Further, S.B, supra, 164 Cal.App.4th 289 is factually distinguishable from the

instant matter. In S.B., the record included a bonding study by a doctor who described

the bond between the father and the child as fairly strong and opined that there was

potential for harm if the child lost her parental bond with the father. (Id. at pp. 295-296.)

Here, the record is devoid of any evidence from a mental health provider, social worker,

16
or bonding expert that terminating parental rights so that David and/or Lizbeth could be

adopted would cause either child emotional or psychological detriment.

Accordingly, we conclude substantial evidence supports the juvenile court's

finding that the beneficial relationship exception did not apply here.

DISPOSITION

The judgment is affirmed.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

McINTYRE, J.

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