California Court of Appeal Mar 5, 2021 No. E075391Unpublished
Filed 3/5/21 In re J.H. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re J.H., a Person Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT E075391 OF PUBLIC SOCIAL SERVICES, (Super.Ct.No. RIJ14005318) Plaintiff and Respondent, OPINION v.
C.M.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Cheryl C. Murphy, Judge.
Affirmed.
William D. Caldwell, under appointment by the Court of Appeal, for Defendant
and Appellant.
Gregory P. Priamos, County Counsel, James E. Brown, Anna M. Marchand, and
Prabhath D. Shettigar, Deputy County Counsel, for Plaintiff and Respondent.
1
C.M. (father) appeals from an order terminating parental rights to his toddler-age
son J.H. (sometimes child). He contends that, when the section 366.261 hearing was
continued twice, due to the COVID-19 pandemic, he was not given the constitutionally
and statutorily required notice. He also contends that the juvenile court erred by denying
his counsel’s request to continue the hearing so he could be present.
We will hold that the father was given all notice required by law. The only error
Here, the juvenile court gave notice orally when it set the section 366.26 hearing.
Each time the hearing was continued, the Department gave notice by first-class mail to
the father’s last-known address.
The father complains, however, that the juvenile court never expressly found that
the initial notice had been properly given. He concludes that the subsequent notices by
first-class mail were a nullity.
The Department responds, in part, that the father’s counsel forfeited the asserted
error by failing to object at the section 366.26 hearing. We agree. “It is well-established
that a lack of notice can be forfeited by failure to object, even when it is claimed that it
violated due process. [Citation.]” (People v. Nguyen (2017) 18 Cal.App.5th 260, 271.)
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. (In re S.B. (2004) 32 Cal.4th 1287,
1293.) “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.” (Ibid.) Accordingly, a party forfeits an
asserted lack of notice of a hearing by failing to raise it at that hearing. (In re Z.S. (2015)
235 Cal.App.4th 754, 771; In re Desiree M. (2010) 181 Cal.App.4th 329, 334; Marlene
M. v. Superior Court (2000) 80 Cal.App.4th 1139, 1149; In re Gilberto M. (1992) 6
Cal.App.4th 1194, 1198-1200.)
Admittedly, the father himself was not present at the section 366.26 hearing.
However, his attorney was, and she did not object based on lack of notice. The father
does not contend that this constituted ineffective assistance of counsel.
6
In arguing against forfeiture, the father relies on In re Gladys L. (2006) 141
Cal.App.4th 845. There the appellate court held that the juvenile court erred by
terminating the father’s parental rights because he was a nonoffending parent who had
never been found unfit. (See id. at pp. 847-849.) It also stated: “[The father] did not
forfeit his right to contest the termination of his parental rights by failing to act sooner.
(In re Gerardo A. (2004) 119 Cal.App.4th 988, 993 . . . [waiver rule not enforced where it
conflicts with due process].)” (Id. at p. 849.) Gerardo A., in turn, had refused to apply
the waiver rule because the father had never had an opportunity to raise the issue in the
juvenile court. (In re Gerardo A., supra, 119 Cal.App.4th at p. 993.) By contrast, when a
parent did have an opportunity to raise an issue below, as in Gladys L., our power to
excuse a forfeiture is discretionary, not mandatory. (In re D.H. (2017) 14 Cal.App.5th
719, 728.) We see no reason to exercise it here.
The father also argues, in his reply brief, that an objection would have been futile.
He points out that counsel for the Department represented to the court — incorrectly —
that the hearing had been continued on April 6 (actually on April 1) and again on May 12
(actually on May 8). But all the father’s counsel would have had to do was point out the
error. Defendant does not claim his counsel was unaware of the true facts; certainly she
knew about the May 8 conference call, because she had participated in it. Assuming the
factual error was material at all (but see post), there is no reason to suppose that it would
have been futile for the father’s counsel to object.
7
We conclude that the father’s present contention has been forfeited. Separately
and alternatively, however, we also reject it on the merits.
We agree that the trial court violated section 294 by failing to make an express
finding that initial notice of the hearing, originally set for April 6, had been properly
given. However, the record shows indisputably that it was properly given. The trial
court could give oral notice when it first set the section 366.26 hearing, and it did so. The
father does not claim that there was any defect in the form of the oral notice of the initial
hearing. Accordingly, the failure to make this finding was harmless. (Cf. In re Emily D.
(2015) 234 Cal.App.4th 438, 448 [failure to find good cause for continuance was not
reversible error where record showed good cause on which juvenile court relied].)
In the father’s view, the lack of the required finding rendered the notice
ineffective. Not so. Some statutes governing the service of a summons and complaint
require strict compliance; thus, a failure to comply with the terms of the statute invalidate
the service. (See Calvert v. Al Binali (2018) 29 Cal.App.5th 954, 962.) However, we see
no reason to require strict compliance with the finding requirement here. Even the notice
requirements of the Indian Child Welfare Act demand only substantial compliance. (In
re Jonathon S. (2005) 129 Cal.App.4th 334, 343.)
“‘Where a reasonable attempt has been made to comply with a statute in good
faith, . . . the doctrine of substantial compliance holds that the statute may be deemed
satisfied. [Citation.]’ [Citation.] ‘Substantial compliance means “‘actual compliance in
respect to the substance essential to every reasonable objective of the statute,’ as
8
distinguished from ‘mere technical imperfections of form’” [citation].’ [Citation.]”
(People v. Green (2004) 125 Cal.App.4th 360, 371.) Here, there was actual compliance
with the essential objective of the statute, because the father had, in fact, been given
proper initial notice. The trial court’s failure to make an express finding to that effect did
not defeat that objective.
The father asserts that the error violated his due process right to notice. However,
there was nothing wrong with the notice he was given. All that was wrong was that the
trial court failed to make a finding that was a statutory prerequisite to notice by first-class
mail. If the trial court had realized that it needed to make that finding, it would have. We
fail to see how the mere lack of the requisite finding deprived the father of notice and an
opportunity to be heard.
At oral argument, the father likened the procedure here — advancing the hearing
and then continuing it — to taking it off calendar and then resetting it. We may assume
that, if that were what happened, he would be entitled to a new initial notice (by certified
mail), not merely notice of a continuance (by first-class mail). But that is not what
happened. The hearing remained on calendar at all times.
The father makes much of the fact that, each time the juvenile court continued the
hearing, it first advanced the hearing without notice to him. Thus, he had no notice that
the hearing had been advanced to April 1, on which date the juvenile court ordered a
continuance to May 12; likewise, he had no notice of the conference call on May 8, on
which date the juvenile court ordered a continuance to June 23.
9
He provides no authority and no analysis explaining why this matters. He seems
to assume that he was entitled to notice and an opportunity to be heard before any
continuance. If so, we disagree. “[T]he juvenile court [has] inherent power to manage its
calendar . . .” (In re Jeanette H. (1990) 225 Cal.App.3d 25, 28; see also id. at pp. 34-35;
see generally Code Civ. Proc., §§ 128, subd. (a), 187; People v. Engram (2010) 50
Cal.4th 1131, 1146.) A party is required to give two days’ written notice of a motion for
a continuance (Welf. & Inst. Code, § 352, subd. (a)(3)); the juvenile court is not. It
would be impracticable to require notice and an opportunity to be heard for a continuance
due to an emergency, such as a judge’s illness or death, or, as here, a global pandemic.
Was the juvenile court supposed to hold a hearing during a global pandemic to determine
whether the hearing should be continued due to the global pandemic? Undoubtedly the
father was entitled to notice of the continued hearing, after it was ordered and before it
was held; however, he was duly notified, by first-class mail, in accordance with section
294, subdivision (d).
Finally, the father argues that he was prejudiced because the juvenile court held
the section 366.26 hearing in his absence. He asserts that, had he been present, he could
have testified about his relationship with the child in an effort to invoke the beneficial
parental relationship exception to termination of parental rights. (§ 366.26, subd.
(c)(1)(B)(1).) This assumes that, but for the error, he would have appeared. We repeat,
however, that he received all of the notice that was actually required. He was present
when the section 366.26 hearing was set; the Department sent notice of every
10
continuance by first-class mail to his JV-140 address. Even so, he did not show up. His
attorney evidently was unable to contact him. The only actual error was the trial court
failed to make a required finding. Even if it had made that finding, however, it seems the
father still would not have shown up. Thus, his attempted showing of prejudice fails.
III
THE DENIAL OF A CONTINUANCE
Defendant contends that the juvenile court erred by denying his counsel’s request
for a continuance.
“Although continuances are discouraged in dependency cases [citation], the
juvenile court has discretion to grant a continuance upon a showing of good cause if it is
not contrary to the best interest of the child. (§ 352, subd. (a).) We review the court’s
ruling on a continuance request for an abuse of discretion. [Citation.]” (In re Mary B.
(2013) 218 Cal.App.4th 1474, 1481.)
“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)(3).)
Here, the father’s counsel did not give two days’ written notice. She also did not claim
that she had been unable to do so — much less offer any facts that would support such a
claim. For this reason alone, the juvenile court could properly deny a continuance.
11
Separately and alternatively, the juvenile court could properly find no good cause
for a continuance. The father’s counsel did not specify why, when, or how she had lost
contact with him nor what efforts she had made to locate him. She did not explain what
else she was going to do to locate him; thus, she did not show that, if the juvenile court
did grant a continuance, it was likely that the father would appear. Finally, she did not
explain why his presence was necessary. Conspicuously, she did not argue, as the father
does in this appeal, that his testimony was necessary to show that the beneficial parental
relationship exception applied. She also did not assert that he had not received due
notice.
“The denial of a motion for continuance for absence of a party may constitute an
abuse of discretion by the trial court sufficient to justify reversal only where there is an
affirmative showing of ‘good cause,’ such as serious illness or unforeseen circumstances
which prevented a party from appearing at trial. [Citations.]
“There is, however, no such showing in the case at bench, and the mere absence of
a party standing alone is insufficient to compel a court to grant a continuance. Even the
alleged illness and inability of [a] defendant[] to attend the trial has been held insufficient
grounds for reversal where the trial court denied a request for a continuance in the
absence of supporting affidavits. [Citation.]” (Young v. Redman (1976) 55 Cal.App.3d
827, 831.)
The father has not shown that the denial of the requested continuance was an
abuse of discretion.
12
IV
DISPOSITION
The order appealed from is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAMIREZ P. J.
We concur:
SLOUGH J.
RAPHAEL J.
13
AI Brief
AI-generated · verify before citing
Holding. The court held that the father received all legally required notice for the section 366.26 hearing and that the juvenile court's failure to make an express finding regarding initial notice was harmless error. Additionally, the court held that the trial court did not abuse its discretion in denying a continuance because the father failed to show good cause.
Issues
Whether the father was provided with constitutionally and statutorily required notice for the section 366.26 hearing and its continuances.
Whether the juvenile court's failure to make an express finding regarding initial notice constitutes reversible error.
Whether the juvenile court abused its discretion by denying the father's request for a continuance of the section 366.26 hearing.
Disposition. affirmed
Quotations verified verbatim against the opinion
“The only error was that the juvenile court failed to make an express finding that he had been given proper notice of the initial section 366.26 hearing. That error was harmless — indeed, trivial”
“We will also hold that his counsel failed to show good cause for a continuance.”