In re A.G. CA1/1

Filed 6/10/21 In re A.G. CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

In re A.G., a Person Coming Under
the Juvenile Court Law.

SONOMA COUNTY DEPARTMENT A161105
OF HUMAN SERVICES,
(Sonoma County
Plaintiff and Respondent, Super. Ct. No. DEP-5841-01)
v.
M.D.,
Defendant and Appellant.

M.D. (Mother) appeals from the juvenile court’s order terminating her
parental rights and freeing A.G. (minor) for adoption. (Welf. & Inst. Code,1
§ 366.26.) Mother contends she did not receive legally sufficient notice of the
August 12, 2020 hearing that resulted in the termination of her parental
rights. She further contends her parental rights were terminated without
due process, and the juvenile court abused its discretion in refusing to
continue the hearing. We affirm the order.

All statutory references are to the Welfare and Institutions Code
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unless otherwise specified.
 I. BACKGROUND
A. The Petition and Reunification Efforts
The Sonoma County Department of Human Services (Department) filed
a petition under section 300, subdivision (b)(1), alleging Mother has chronic
substance abuse issues and is unable to safely care for minor. The petition
further alleged minor’s father (father) has a history of substance abuse,
facilitated Mother’s use of drugs during her pregnancy, and failed to take
action to protect minor. The court subsequently detained minor.
Prior to the jurisdiction hearing, the Department recommended
providing reunification services to Mother but bypassing services to father.
The Department’s report noted father has an extensive history of substance
abuse, has not complied with testing despite drug treatment being a
condition of his parole, and is in denial that he has addiction issues. Father
subsequently waived reunification, and the court adopted the Department’s
recommendation.
During the approximate 18-month reunification period, Mother made
progress in obtaining housing, regaining sobriety, and attending individual
therapy. However, Mother consistently struggled to create and maintain
healthy boundaries with father. The Department attempted two separate
trial home visits (THV’s) for minor in Mother’s home. During the first THV,
Mother appeared attentive to minor and reported she was not having contact
with father. However, Mother subsequently disclosed she was having contact
with father, she observed father using drugs, and she had taken minor to
visits with father while he was in custody. The Department subsequently
terminated THV’s.
The Department recommended another THV at the 12-month review
hearing because Mother appeared to be invested in her therapy to help

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disengage from father and visits with minor were going well. However, the
Department again terminated THV’s with Mother after she had allowed
father into her home, observed him using drugs, and was unable to maintain
appropriate boundaries for minor’s safety. The Department’s 18-month
review report explained Mother maintained telephonic contact with father
while he was in prison, did not inform the Department of her ongoing contact
with father, allowed him into her home after he was released from prison,
and denied law enforcement entry to investigate an injury on minor because
of father’s presence in her home. The report noted Mother displayed behavior
changes, communication challenges, and shifts in her capacity to safely
parent minor when residing with father, which resulted in a termination of
care letter from minor’s day care due to unpredictable patterns of attendance
and other issues.
Despite informing the Department she had a “wake up” call, Mother
continued to visit father in prison under fake names, maintained telephone
communication with him, and, after his release, allowed him access to her
home and vehicle.
Mother was not present at the 18-month review hearing because she
allegedly had a flat tire. Mother instructed her counsel to proceed in her
absence, despite the court’s willingness to wait two hours, and she withdrew
her contest of the termination of reunification services.
B. Section 366.26 Hearing
In advance of the section 366.26 hearing, the Department submitted a
report recommending the court terminate parental rights and order a plan of
adoption for minor. Minor had been residing with the maternal grandparents
for the majority of her life, and they were committed to adopting her. The
Department noted minor had a close relationship with both grandparents,

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appeared happy and content, and sought them out for care and comfort. The
Department concluded minor was likely to be adopted and deserved a
permanent and stable home.
The initial hearing date on May 14, 2020 was continued to allow for a
contested hearing. At the continued, July 6, 2020 hearing date, all parties,
including Mother and her counsel, appeared via Zoom. Mother’s counsel
requested a continuance because Mother was allegedly distraught regarding
a recent vehicle accident. The court found good cause for the continuance,
despite objections from the Department’s and minor’s counsel, and ordered
Mother to provide medical and discharge records and police reports regarding
the accident to minor’s counsel or the Department. The court thus continued
the matter to August 12, 2020 at 1:30 p.m. Shortly thereafter, the court
mailed notices changing the hearing time to 2:30 p.m.
Mother did not appear for the August 12, 2020 hearing. When the
court inquired about Mother’s presence, her counsel responded, “Your Honor,
I’m having some technical . . . difficulties. I’ve sent her the Zoom link a
couple of times and actually sent it for the third time. She’s trying to log in if
I could just have a moment to figure out what the problem is.” The court
responded, “Sure,” and went off the record.
When the court went back on the record, it noted efforts to reach
Mother had been unsuccessful. Specifically, it noted, “Mother supposedly has
been trying to call in. We have not received a call. We had two numbers to
call for mother. Neither of those numbers worked. First one didn’t work at
all. The second one went straight to voicemail.” Mother’s counsel also was
“unable to connect the mother.” The court further noted Mother had not
provided any documentation of her alleged accident to either the Department
or counsel, despite multiple requests that she do so. The court thus indicated

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it would proceed with the hearing over Mother’s counsel’s objection. The
court denied her counsel’s motion to continue and, at the conclusion of the
hearing, terminated parental rights. Mother timely appealed.
II. DISCUSSION
A. Notice
Mother contends the order terminating parental rights must be
reversed because she was not provided actual notice of the continued
section 366.26 hearing at which the order was entered. This claim is waived
because it was not raised below. Moreover, we conclude Mother received
actual notice of the continued hearing.
1. Waiver
“A ‘reviewing court ordinarily will not consider a challenge to a ruling if
an objection could have been but was not made in the trial court. [Citation.]
The purpose of this rule is to encourage parties to bring errors to the
attention of the trial court, so that they may be corrected. [Citation.] [¶]
Dependency matters are not exempt from this rule.’ [Citation.] The
appellate court has discretion to excuse forfeiture, but it should be exercised
rarely and with special care. [Citation.] Because juvenile dependency
proceedings ‘involve the well-being of children, considerations such as
permanency and stability are of paramount importance. (§ 366.26.)’ ” (In re
X.V. (2005) 132 Cal.App.4th 794, 804, fn. omitted; see also In re Wilford J.
(2005) 131 Cal.App.4th 742, 754 [“[W]hen a parent had the opportunity to
present [a defect in notice] to the juvenile court and failed to do so, appellate
courts routinely refuse to exercise their limited discretion to consider the
matter on appeal. This is precisely because defective notice and the
consequences flowing from it may easily be corrected if promptly raised in the
juvenile court.”].)

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 Here, Mother failed to appear at the continued section 366.26 hearing
on August 12, although her attorney was present. When both the court and
Mother’s counsel failed to reach her via telephone, the court asked Mother’s
counsel, “Did you want to object for the record and ask for a continuance, Ms.
Johnson?” Mother’s counsel responded affirmatively, stating, “I can’t get
ahold of her, and . . . I don’t know what else to do. So I am objecting to the
court proceeding. I can’t really do a whole lot without her here.” While her
counsel objected to the hearing proceeding without Mother present, no
objection was raised as to the adequacy of the notice. Nor did Mother’s
counsel indicate Mother was unaware of the proper date and time of the
hearing or how to attend. To the contrary, Mother’s counsel informed the
court she had provided Mother with the Zoom information three separate
times, and Mother was attempting to appear but was having technical issues.
Accordingly, Mother waived any claim of defective notice. (See, e.g.,
Marlene M. v. Superior Court (2000) 80 Cal.App.4th 1139, 1149 [mother
waived lack of notice argument by failing to object in juvenile court]; In re
Gilberto M. (1992) 6 Cal.App.4th 1194, 1198 [the father, claiming lack of
notice of dependency proceedings, waived issue on appeal when he failed to
make that objection at the § 366.21 hearing].) In any event, even if Mother
had not waived her claim of defective notice, we conclude she had actual
notice of the hearing as discussed below.
2. Sufficiency of Notice
Mother argues she did not receive adequate notice because the hearing
notices did not provide information on virtual access and were mailed to an
outdated address. We disagree.
Parents are entitled to statutory notice when the juvenile court initially
schedules a section 366.26 hearing. (§ 294.) If the hearing is continued,

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however, there is no requirement to provide the parent with the identical
statutory notice. (In re Phillip F. (2000) 78 Cal.App.4th 250, 258 (Phillip F.).)
Renotice of a continued hearing must be “ ‘ “ ‘reasonably calculated, under all
the circumstances, to apprise interested parties of the [continued] pendency
of the action and afford them an opportunity to present their objections.’ ” ’ ”
(Ibid.) Thus, interested parties need only receive actual notice of the
continued hearing date, which may be shown when they are notified by first
class mail, written notice from counsel, or oral notice in court. (Id. at p. 259.)
Mother does not challenge the validity of the notice given with respect
to the initial section 366.26 hearing set for May 14, 2020. Nor does she
challenge the validity of the notice given as to the contested section 366.26
hearing set for July 6, 2020. Nor does she challenge the validity of the notice
as to the date of the continued section 366.26 hearing on August 12, 2020.
However, she contends no meaningful notice was provided as to the time of
the hearing and how the parties would virtually appear before the court.
The record before this court does not contain any information regarding
how the court transmitted Zoom information to the parties and their counsel
for hearings operating under COVID-19 protocols. This lack of information,
however, is not dispositive. To this end, we find Phillip F., supra,
78 Cal.App.4th 250, instructive. In Phillip F., the mother was served with
notice of the initially scheduled section 366.26 hearing. (Phillip F., at p. 255.)
At the time of the hearing, however, the mother did not appear, although her
counsel did. (Id. at p. 254.) The hearing was continued, and the social
services agency mailed written notice of the continued hearing date to the
mother at an outdated address. (Id. at p. 256.) The mother’s counsel, but not
the mother, appeared at the continued hearing. Counsel requested the court
to set the matter for a contested hearing. At the date of the contested

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hearing, once again, the mother did not appear but her counsel did. (Ibid.)
The court found that proper notice had been provided to the mother and
terminated her parental rights. (Id. at pp. 255–256.)
The Court of Appeal explained that while a parent must be notified of a
continued section 366.26 hearing date, courts did not need to follow the
statutory notice requirements. (Phillip F., supra, 78 Cal.App.4th at p. 258.)
Rather, the court emphasized “actual notice of the continued hearing date
will suffice.” (Id. at p. 259.) The appellate court further explained that while
there was no direct evidence of such notice in Phillip F., the juvenile “court
could have inferred that [the mother] had actual notice of the continued
hearing because her appointed counsel had notified her of the continued
hearing dates in conformance with counsel’s statutory obligation to provide
competent representation.” (Ibid.) The court said such an inference was
reasonable because (1) “the court’s stated assumption at the . . . hearing that
counsel would notify [the mother] in writing of the continued hearing date”;
(2) counsel indicated at the first continued hearing that her client wanted the
matter set for a contested hearing; (3) “counsel’s silence in response to the
court’s finding . . . that proper notice had been provided to [the mother]”; and
(4) because the mother’s “request for modification of the court’s orders [was]
on the ground she was unable to attend, not that she was unaware of, the
continued hearing.” (Ibid.) The appellate court also noted that the mother
did not contend that she lacked actual notice of the continued hearing. (Id. at
p. 260.)
Here, the record provides a reasonable inference that Mother had
actual notice of the August 12, 2020 hearing. As noted above, Mother and
her counsel appeared at the prior section 366.26 hearing on July 6, 2020, via
Zoom. The record does not indicate Mother was unaware of how to appear by

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Zoom or that she had any difficulties doing so, despite the fact that notice of
the July 6 hearing date was sent to the “outdated” Cloverdale address and
did not contain any Zoom information.
Then, at the July 6 hearing, Mother requested a continuance, which the
court granted over the Department’s and minor’s counsel’s objections, and the
court continued the hearing to August 12, 2020. Mother was thus provided
with proper oral notice of the continued hearing date in court. (See
Phillip F., supra, 78 Cal.App.4th at p. 259.) As to the rescheduled hearing
time and the Zoom information, an inference of actual notice is appropriate.
First, notice was provided to Mother in the same manner as was provided for
the July 6 hearing—which Mother attended without problem. Second,
Mother’s counsel informed the court she provided the Zoom hearing
information to Mother on three occasions. Furthermore, Mother’s counsel
represented Mother was attempting to log onto Zoom at the time of the
hearing. Finally, we note that although Mother assails the adequacy of the
notice provided by the court, she does not claim she lacked actual notice of
the hearing.
The record before us, like the record in Phillip F., contains evidence
sufficient to permit an inference that Mother had actual notice of the
continued hearing date. (See In re Desiree M. (2010) 181 Cal.App.4th 329,
335.) Under all these circumstances, it was reasonable for the court to
conclude Mother had sufficient notice to satisfy due process.
B. Section 366.26 Hearing
Mother next contends the juvenile court should have granted her
counsel’s request to continue the section 366.26 hearing so she could be
present. She claims the court’s refusal to do so violated her due process

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rights and constituted an abuse of discretion. We address each argument in
turn.
1. Due Process
Mother first asserts she is entitled to substantive and procedural due
process, and those rights were violated when the court conducted the
section 366.26 hearing in her absence. While parents certainly have due
process rights in dependency proceedings, we disagree that Mother’s rights
were violated.
“[D]ue 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.’ ” (In re Melinda J.
(1991) 234 Cal.App.3d 1413, 1418; see In re Matthew P. (1999) 71 Cal.App.4th
841, 851 [“In juvenile dependency litigation, due process focuses on the right
to notice and the right to be heard.”].) A parent’s right to due process in a
dependency hearing generally includes the right to testify or present other
evidence. (See In re Armando L. (2016) 1 Cal.App.5th 606, 620–621.)
Due process, however, is “a flexible concept dependent on the
circumstances.” (In re Tamika T. (2002) 97 Cal.App.4th 1114, 1122.) “When
a parent is absent without good cause at a properly noticed hearing, the court
is entitled to proceed in the parent’s absence.” (In re Vanessa M. (2006)
138 Cal.App.4th 1121, 1131.) “A parent’s failure to appear will not normally
constitute the good cause necessary to justify a continuance [citation],
because substantial importance is attached to ‘the child’s need for a prompt
resolution of the matter’ [citation]. An unjustified failure to appear at a duly
noticed hearing reflects a parent’s choice not to attend. [Citation.] A court
may properly treat this choice as a waiver of the right to be present at that
hearing and of the benefits of being present.” (Id. at pp. 1131–1132.)

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 Here, Mother failed to appear at the August 12 hearing despite, as
discussed in part II.A.2, ante, receiving actual notice of that hearing. Mother
argues she was not “intentionally absent” because “[i]t is clear that [Mother]
was attempting to connect on August 12 to the hearing.” All the record
reflects, however, is that Mother informed her counsel that she was
attempting to connect. Mother does not explain why she was unable to
connect despite receiving the Zoom information three times from her counsel.
Nor does she make any effort to explain why she did not call the court or her
counsel. Nor does she explain why she failed to answer the various telephone
calls made by the court and her counsel. She must have been near a
telephone because she initially contacted her counsel to report her alleged
Zoom log in problems. However, rather than explain these circumstances,
Mother merely acknowledges all attempts to contact her by telephone were
unsuccessful.
In light of the proper notice provided to Mother, her failure to appear,
and the attempts made by her counsel and the court to reach her, we find no
error in the court’s decision to proceed with the section 366.26 hearing. The
court reasonably considered Mother’s absence as a “choice not to attend” and
“a waiver of the right to be present at that hearing and of the benefits of
being present.” (In re Vanessa M., supra, 138 Cal.App.4th at pp. 1131–1132.)
Mother’s unjustified absence did not constitute a denial of due process.2

2 Because we conclude the juvenile court did not err in conducting the
section 366.26 hearing in Mother’s absence, we need not address whether
Mother was harmed by being unable to testify in support of the beneficial
relationship exception. However, we note Mother offers no facts or evidence
she would have presented that was not otherwise encompassed in the record.

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 2. Denial of Continuance
Finally, Mother contends the court abused its discretion by denying her
counsel’s request for a continuance. She argues nothing in the record
suggests a short continuance of a few days would have been harmful to
minor.
Section 352 provides, in part: “Continuances shall be granted only
upon a showing of good cause and only for that period of time shown to be
necessary by the evidence presented at the hearing on the motion for the
continuance. Neither a stipulation between counsel nor the convenience of
the parties is in and of itself a good cause. . . . Whenever any continuance is
granted, the facts proven which require the continuance shall be entered
upon the minutes of the court. [¶] . . . In order to obtain a motion for a
continuance of the hearing, written notice shall be filed at least two court
days prior to the date set for hearing, together with affidavits or declarations
detailing specific facts showing that a continuance is necessary, unless the
court for good cause entertains an oral motion for continuance.” (§ 352,
subd. (a)(1)–(2).)
A court may continue any hearing in dependency proceedings,
including a section 366.26 hearing. (§ 352, subd. (a); see also In re Michael R.
(1992) 5 Cal.App.4th 687, 694.) However, “[c]ontinuances in juvenile
dependency proceedings are disfavored, particularly when they infringe on
maximum time limits under the code.” (In re David H. (2008)
165 Cal.App.4th 1626, 1635.) The moving party has the burden to
demonstrate good cause for a requested continuance. (Evid. Code, §§ 500,
550, subd. (b).) We review an order denying a continuance for abuse of
discretion. (In re Michael R., at p. 694.)

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 Here, Mother failed to show good cause for the requested continuance.
While Mother asserts she was attempting to appear at the August 12
hearing, and a short continuance was needed to ensure she was able to do so,
the juvenile court expressed doubt about her veracity. The court noted
Mother had made no effort to contact the court by telephone. Nor did she
answer telephone calls made to her by the court and her counsel. The court
further noted it granted Mother’s last request for a continuance and, in
connection with that continuance, ordered her to produce evidence supporting
her claim that she was in a vehicle accident. However, Mother failed to
produce any such evidence to either her counsel or the Department’s counsel
despite multiple requests that she do so. In light of these facts, the court
could reasonably have doubted Mother’s claimed inability to connect to Zoom.
While Mother argues the continuance could have been for a few days,
her comment is mere speculation. We have nothing before us to indicate the
court, counsel, or other witnesses would have been available on short notice
to appear again a few days later. Moreover, at this point in the proceedings,
the juvenile court’s focus is on “ ‘the needs of the child for permanency and
stability.’ ” (In re Celine R. (2003) 31 Cal.4th 45, 52.) After 18 months of
failed reunification efforts and a prior continuance of the section 366.26
hearing on Mother’s behalf, the juvenile court did not abuse its discretion in
denying Mother’s requested continuance. (See In re C.F. (2011)
198 Cal.App.4th 454, 466 [juvenile courts have “ ‘inherent powers’ to ‘enable
them to carry out their duties and ensure the orderly administration of
justice’ ”].)
III. DISPOSITION
The order is affirmed.

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 MARGULIES, J.

WE CONCUR:

HUMES, P. J.

BANKE, J.

A161105
In re A.G.

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