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Name: In re Alexander B.
Case #: C039584
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 06/27/2002
Subsequent History: Rehg. granted 7/23/02 & opn. vacated

Alexander and his four siblings, who are not participants in this appeal, were removed in 1999 because the parents had substance abuse problems. Reunification for the mother with Daniel was ended in November 2000 and for the father in March 2001. When the Welfare and Institutions Code section 366.26 termination hearing was first heard the mother was incarcerated, but she appeared at the hearing under an “order for prisoner’s appearance.” The hearing was continued but the mother was not present at the continued hearing. At the continued hearing the mother’s attorney, who told the court the mother was incarcerated, called no witnesses. The minor’s father and the foster parent for the minor’s siblings testified. The minor was found adoptable and the parents’ rights terminated. On appeal the mother asserts her due process rights were violated because she was not present at the termination hearing and her attorney was ineffective for not securing her presence. Both parents asked the matter be remanded to determine if the recently enacted sibling relationship addition to the statutory exceptions to adoption applied. In the published portion of this case the Court of Appeal holds that the mother’s due process rights were not violated by her absence from the termination hearing because she was represented by an attorney at the continued hearing. The appellate court, however, held that the trial court erred under Penal Code section 2625 providing for presence of incarcerated parents at Welfare and Institutions Code section 366.26 hearings when it failed to obtain a written waiver by the mother of an appearance at the continued hearing. The error, though, was deemed harmless. In unpublished paragraphs the appellate court holds the newly enacted amendment to Welfare and Institutions Code section 361.5 does not apply retrospectively.