Filed 2/10/21 In re G.G. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re G.G., a Person Coming Under
the Juvenile Court Law.
D077948
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY, (Super. Ct. No. J519977)
Plaintiff and Respondent,
v.
ROSA C.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Rohanee Zapanta, Judge. Reversed and remanded with instructions.
Michelle D. Peña, under appointment by the Court of Appeal, for
Defendant and Appellant.
Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy
County Counsel and Jesica N. Fellman, Deputy County Counsel, for Plaintiff
and Respondent.
Rosa C. (Mother) appeals from a Welfare and Institutions Code section
366.261 hearing at which the juvenile court terminated her parental rights
over two-year-old G.G., found no applicable exceptions to the termination of
parental rights, and referred G.G. to the San Diego County Health and
Human Services Agency (Agency) for adoptive placement. Mother contends
the court reversibly erred in proceeding with the contested section 366.26
hearing in her absence. She was incarcerated at the time of the hearing and
did not waive her right to participate under Penal Code section 2625.
Mother’s counsel, who was present at the hearing, requested a continuance so
that Mother could participate, and further, objected to a termination of
parental rights. The Agency concedes the juvenile court’s error but argues
the error was harmless. We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
Mother has a history of serious mental illness, including schizoaffective
disorder bipolar type and severe depression. Her conditions would stabilize
when she took her prescribed medication, but Mother had poor medication
adherence. She was prone to mental health episodes or crises when she was
not taking her medication. As a teenager, Mother also experimented with
different illicit drugs.
In 2018, Mother was raped and became pregnant. In November 2018,
she was hospitalized in a mental health facility for suicidal ideation. During
the last few months of her pregnancy, Mother lived with her mother, the
maternal grandmother (Grandmother); received prenatal care and
psychiatric treatment; and took her medication. Grandmother reported that
1 Further unspecified statutory references are to the Welfare and
Institutions Code.
2
Mother acted “fine” and “normal” when she was taking her medication and
that Mother was happy at the thought of having a baby.
In February 2019, Mother gave birth to a healthy girl, G.G. Mother
exhibited concerning behaviors in the hospital, did not provide appropriate
care for the baby, and appeared depressed and/or overwhelmed. The hospital
placed her on a 14-day psychiatric hold due to decompensating mental
health. The Agency filed a petition on behalf of G.G., alleging the child was
at significant risk of serious physical harm due to Mother’s mental illness
and inability to provide regular care. (§ 300, subd. (b).) Mother told the
assigned social worker that she had stopped taking her medication and did
not believe she needed to take it anymore. The juvenile court detained G.G.
in foster care and granted Mother liberal supervised visits.
In late February, Mother acknowledged to the Agency that she suffered
mental health issues yet maintained that she could care for G.G. Mother was
receiving weekly psychiatric treatment and taking her medication.
Grandmother provided emotional and financial support to Mother and
encouraged Mother to take her medication.
In April 2019, the court made a true finding on the petition, continued
G.G.’s placement in foster care, and ordered reunification services for Mother.
G.G. could not be placed in Grandmother’s home at the time because Mother
was also living there.
During the ensuing six-month period, Mother had weekly supervised
visits with G.G., often accompanied by Grandmother. Mother was frequently
observed holding her child but struggled to recognize and respond to the
baby’s cues. When the baby cried, Mother appeared overwhelmed; she was
further agitated by the social worker’s presence during visits. Mother was
able to meet her baby’s needs when guided by Grandmother.
3
Mother made some, but insubstantial, progress in her services. She
enrolled in KIVA for drug treatment, but self-discharged from the program
one or two days later. Despite participating in individual therapy and
receiving psychiatric treatment, Mother suffered three mental health
episodes that required her admittance to a mental health facility. At one
point, Mother began renting a room on her own, yet before long was asked to
leave the home for using drugs and alcohol. In October 2019, Mother began
staying at a sober living facility. In the same timeframe, G.G. was placed in
the home of Grandmother, where the child continuously lived thereafter.
In November 2019, following a contested six-month review hearing at
which both Mother and Grandmother were present, the court terminated
reunification services and set a section 366.26 permanency planning hearing.
Subsequently, Mother obtained stable housing, managed her mental
health symptoms, and continued participating in supervised visits with G.G.
Mother was preparing for G.G. to be returned to her care and believed that
their visits were going well. The Agency reported that Mother played with
her daughter and performed caregiving tasks at Grandmother’s direction, but
the child primarily looked to Grandmother for comfort and reassurance.
In early March 20202 at the scheduled section 366.26 hearing, the
Agency requested a 30-day continuance so that it could further assess the
best permanent plan for G.G. Mother and Grandmother were present at this
hearing. The Agency was considering whether a plan of guardianship would
be in the child’s best interest. G.G.’s counsel (minor’s counsel) supported a
continuance to see whether guardianship might be appropriate. The court
granted the continuance request and set a new hearing date in April. Later,
2 Further unspecified date references occurred in 2020.
4
the April hearing date was reset to July 14 due to the COVID-19 global
pandemic and related court disruptions.
The Agency submitted an addendum report, recommending adoption
as G.G.’s permanent plan. According to this report, Mother last visited with
G.G. in late May 2020, when Mother accompanied her daughter to a medical
appointment. Two days after the visit, Mother had “what appeared to be
difficulty with her mental health,” allegedly broke the windows of her
apartment, and threatened the responding law enforcement officers. The
officers shot Mother in the abdomen during an altercation. She was admitted
to a hospital in critical condition and needed about five surgeries, with the
last one scheduled for late June. When she was not in the hospital, Mother
was in custody at Las Colinas Detention and Reentry Facility (Las Colinas).
On July 9, the juvenile court issued an order directing the sheriff to
produce Mother for the section 366.26 hearing (order to produce).
On July 14, Mother was not produced or present for the hearing.3 The
court and counsel discussed Mother’s situation and that there appeared to be
a telephone at the hospital, which she could access. The court confirmed that
notice of the hearing had been effectuated but believed that Mother could not
be produced due to her medical condition. Mother’s counsel requested a
continuance, and there was no objection. Minor’s counsel indicated that then
one-year-old G.G. would suffer no detriment and would be “relatively
unaffected” by a continuance. The court continued the hearing and issued
another order to produce Mother on the date set in August.
On August 10, the date of the rescheduled section 366.26 hearing,
Mother was, once again, not produced or present. Grandmother was also
3 Because of COVID-19 restrictions, juvenile court hearings were
conducted virtually. Party appearances were made by video or telephone.
5
absent from the proceeding. Mother’s counsel (Regina Ryu) requested a
continuance so that Mother could participate in the hearing. Ryu recounted
her client’s circumstances—Mother was incarcerated but being moved “back
and forth” between the jail and hospital, and “the hospital was not even able
to tell me whether [Mother] is staying there.”
Attorney Ryu stated that she did not have “an impression one way or
the other” whether Mother was physically capable of making contact. Ryu
“simply” had no information about Mother’s status. The juvenile court
nonetheless believed that Mother was not precluded from contacting counsel
if she wished to. The court searched certain records and confirmed that
Mother was an “inmate at Las Colinas” but “for whatever reason,” had not
been made available to attend the hearing. Based on counsel having made
herself available to be contacted, the juvenile court denied the request for a
continuance.
The court proceeded to receive the Agency’s reports in evidence without
objection. There was no live testimony. The Agency argued in favor of
terminating parental rights and selecting adoption as G.G.’s permanent plan.
Minor’s counsel supported adoption by Grandmother, noting that Mother
would continue to have a relationship with G.G. if her mental health was
stable. Attorney Ryu asserted an objection on Mother’s behalf to terminating
parental rights. The court found G.G. was adoptable and there were no
applicable exceptions to terminating parental rights; terminated parental
rights; and referred G.G. to the Agency for adoption.
Mother’s appeal followed.
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DISCUSSION
Mother contends the juvenile court’s proceeding with the section 366.26
hearing in her absence violated Penal Code section 2625. It is undisputed
Mother did not waive her right to be present at the hearing. Additionally,
Mother argues the error was not harmless because she was unable to
meaningfully present her position, personally or through counsel.
The Agency concedes the court erred in proceeding with the contested
section 366.26 hearing but argues the error was harmless under People v.
Watson (1956) 46 Cal.2d 818 (Watson).
“A proceeding may not be held under . . . Section 366.26 of the Welfare
and Institutions Code . . . without the physical presence of the prisoner or the
prisoner’s attorney, unless the court has before it a knowing waiver of the
right of physical presence signed by the prisoner or an affidavit signed by . . .
a designated representative stating that the prisoner has, by express
statement or action, indicated an intent not to appear at the proceeding.
(Pen. Code, § 2625, subd. (d); In re Jesusa V. (2004) 32 Cal.4th 588, 623-624
(Jesusa V.) [interpreting statutory provision to mean that both the prisoner
and the prisoner’s attorney must be present].)
Although dependency cases should be resolved expeditiously, the
juvenile court may grant a continuance for good cause and if it is not contrary
to the child’s interest. (§ 352; In re Hunter W. (2011) 200 Cal.App.4th 1454,
1464-1465.)
We conclude the juvenile court erred in conducting the contested
section 366.26 hearing in Mother’s absence, as the Agency acknowledges. In
July, the court seemingly recognized the need to secure Mother’s presence at
the hearing, yet in August decided to move forward anyway despite her
absence and having no additional information on her status. The rationale
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for proceeding was convoluted. If Mother was physically incapable of
contacting counsel, then it did not matter whether counsel had made herself
available to be contacted. Even if Mother could contact counsel, that did not
explain why the sheriff had not complied with the order to produce her.4 The
court confirmed Mother was a prison inmate.
Moreover, a continuance would not have been contrary to G.G.’s
interest, and good cause existed for a continuance. The child was in a long-
term placement with Grandmother, who was prepared to become an adoptive
parent or legal guardian. Mother did not execute a “knowing waiver” of her
right to be present (Pen. Code, § 2625, subd. (d)). There is nothing in the
record to suggest that Mother was purposely delaying the case. It bears
emphasizing that her parental rights were at stake. Prior to the incident
with law enforcement, Mother consistently appeared at court hearings and
indicated her desire to reunify with G.G. A continuance should have been
granted.
The parties dispute the proper disposition of the case given the juvenile
court’s error. Mother argues she was deprived of due process and the case
must be reversed per se, or, reversed under the standards set forth in
Chapman v. California (1967) 386 U.S. 18, or Watson, supra, 46 Cal.2d 818.
The Agency argues the court’s error was harmless under Watson. The
Agency submits that parental rights were properly terminated because
Mother failed to demonstrate the applicability of the beneficial relationship
exception to termination of parental rights (§ 366.26, subd. (c)(1)(B)(i)).
We need not determine whether Mother’s due process rights were
violated because we are able to resolve this case under Watson.
4 Mother points out on appeal that she did not even need to be physically
transported to court; she would have participated remotely.
8
Our Supreme Court in Jesusa V., supra, 32 Cal.4th 588, held that a
violation of Penal Code section 2625, subdivision (d), was not jurisdictional
and, therefore, not reversible per se. The court applied a harmless error
analysis pursuant to Watson. (Jesusa V., supra, at p. 625; see also In re M.M.
(2015) 236 Cal.App.4th 955, 963-964 (M.M.) [applying Watson and finding
prejudice where there were disputed facts and the mother could not testify
due to her absence].)
Under Watson, reversal is required if “it is reasonably probable that a
result more favorable to the appealing party would have been reached in the
absence of the error.” (Watson, supra, 46 Cal.2d at p. 836; see generally In re
Celine R. (2003) 31 Cal.4th 45, 59-60 [discussing propriety of applying the
Watson harmless error test in dependency cases].)
At a section 366.26 hearing, once the juvenile court finds by clear and
convincing evidence that the child is likely to be adopted within a reasonable
time, the court is required to terminate parental rights and select adoption as
the permanent plan, unless the parent shows that termination of parental
rights would be detrimental to the child under one of several statutory
exceptions. (In re Michael G. (2012) 203 Cal.App.4th 580, 589.) One of these
statutory exceptions is the beneficial parent-child relationship exception to
adoption, which applies when it would be detrimental to the child to
terminate parental rights in that “[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).)5 Mother had the
5 “Regular visitation exists where the parents visit consistently and to
the extent permitted by court orders.” (In re I.R. (2014) 226 Cal.App.4th 201,
212.) “Sporadic visitation is insufficient to satisfy the first prong of the
parent-child relationship exception to adoption.” (In re C.F. (2011) 193
Cal.App.4th 549, 554 (C.F.).)
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burden of producing evidence to establish this exception. (In re Bailey J.
(2010) 189 Cal.App.4th 1308, 1314 (Bailey J.).)
If a parent meets his or her burden to establish the requirements of the
beneficial relationship exception, the juvenile court may choose a permanent
plan other than adoption if it finds the beneficial relationship to be “a
compelling reason for determining that termination would be detrimental to
the child.” (§ 366.26, subd. (c)(1)(B); see Bailey J., supra, 189 Cal.App.4th at
p. 1315.) If the beneficial relationship exception applies, the court “shall
order that the present caretakers or other appropriate persons shall become
legal guardians of the child . . . .” (§ 366.26, subd. (c)(4)(A).)
On the record before us, we cannot conclude the juvenile court’s
proceeding with the section 366.26 hearing in violation of Mother’s right to be
present was harmless. In the Agency’s report filed March 26, the assigned
social worker noted that he would “recommend adoption or guardianship.”
(Italics added.) For most of G.G.’s life, Mother visited with the child on a
weekly basis except when Mother was in mental health or drug treatment.
The Agency did not dispute Mother’s love for her daughter. Mother also had
a close relationship with Grandmother, with whom G.G. was placed after
October 2019. If Mother had been present at trial, she could have testified
about the nature of her relationship with G.G. Further, Mother could have
described the extent of her medical incapacity after May. There is a
reasonable likelihood that she would have obtained a more favorable result,
e.g., a legal guardianship, if she had been present at trial. “We, like the
juvenile court, have only read the [Agency’s] account of [Mother’s] story.”
(M.M., supra, 236 Cal.App.4th at p. 964.)
The Agency’s position essentially ignores any evidence Mother would
have presented, had she been allowed to do so. Attorney Ryu’s inability to
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specifically argue the applicability of the beneficial relationship exception
underscores the importance of securing Mother’s presence at the contested
hearing; counsel had been unable to learn any new information about her
client and expressly requested a continuance. Notably, Grandmother was
absent as well and therefore unable to provide information or testimony
about the mother and child. Under the circumstances, the court reversibly
erred in proceeding with trial. (See M.M., supra, 236 Cal.App.4th at p. 964
[live testimony plays a “vital role” in court’s assessment of credibility and its
evaluation of conflicting evidence].)
DISPOSITION
The juvenile court’s order terminating parental rights and referring
G.G. for adoption is reversed. The case is remanded for the court to hold a
new section 366.26 hearing consistent with the views expressed in this
opinion.
BENKE, J.
WE CONCUR:
McCONNELL, P. J.
O'ROURKE, J.
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