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In re Joseph P.

In re Joseph P.
02/06/10



In re Joseph P.



Filed 1/27/10 In re Joseph P. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 JOSEPH P., a Person Coming Under the Juvenile Court Law.



SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY,



Plaintiff and Respondent,



v.



JAVIER T.,



Defendant and Appellant,



JESSICA P.,



Respondent.



D055573



(Super. Ct. No. NJ14012)



APPEAL from a judgment of the Superior Court of San Diego County, Blaine K. Bowman, Judge. Reversed.



In August 2008 Jessica P. was arrested after selling drugs in the presence of one of her children. The San Diego County Health and Human Services Agency filed a dependency petition for Jessica's other child, two-year-old Joseph P. Joseph was detained in foster care. In September the court entered a true finding and ordered him placed in foster care. In October Joseph began a 60-day visit with Jessica. The visit became a placement in December.



In July 2009 the court held a hearing to consider Jessica's request for legal and physical custody of Joseph with no visitation for Joseph's father, Javier T. There is no indication in the record that either Javier or his attorney was given notice. Neither was present at the hearing. Counsel for the father of Jessica's other child stated she was "making . . . appearances today" for Javier's attorney. Counsel asked that the hearing be continued for one day, if the existing order for supervised visits was to be changed, so Javier's counsel could argue. The court denied the continuance request, awarded legal and physical custody of Joseph to Jessica, denied visitation to Javier, terminated dependency jurisdiction and directed the custody order be placed in the family court file.



Javier appeals, contending he was a presumed father entitled to notice of the hearing; his statutory and due process rights were violated because he was not given notice; the lack of notice was a structural error requiring automatic reversal; the court abused its discretion by denying his request for a continuance; and the visitation denial was an abuse of discretion because it was not supported by substantial evidence. The Agency and Joseph concede the lack of notice requires reversal. Jessica "submits the matter for decision based on the briefs . . . ."[1]



Because there is no indication in the record Javier was given notice of the hearing, we reverse. We need not address his remaining contentions.[2]



DISPOSITION



The judgment is reversed.





IRION, J.



WE CONCUR:





McINTYRE, Acting P. J.





AARON, J.



Publication courtesy of California free legal advice.



Analysis and review provided by Carlsbad Property line attorney.



San Diego Case Information provided by www.fearnotlaw.com







[1] Additionally, Joseph's appellate counsel and Jessica oppose visitation by Javier. The Agency states it contacted Joseph's appellate counsel regarding a stipulation for immediate issuance of the remittitur and counsel agreed the remittitur should issue immediately. No stipulation has been filed.



[2] Javier requests judicial notice of an uncertified copy of a petition to establish parental relationship and its attached paternity declaration (dated April 19, 2006), which he says were filed in family court on September 19, 2006. We deny the request as moot.





Description In August 2008 Jessica P. was arrested after selling drugs in the presence of one of her children. The San Diego County Health and Human Services Agency filed a dependency petition for Jessica's other child, two-year-old Joseph P. Joseph was detained in foster care. In September the court entered a true finding and ordered him placed in foster care. In October Joseph began a 60-day visit with Jessica. The visit became a placement in December.
In July 2009 the court held a hearing to consider Jessica's request for legal and physical custody of Joseph with no visitation for Joseph's father, Javier T. There is no indication in the record that either Javier or his attorney was given notice. Neither was present at the hearing. Counsel for the father of Jessica's other child stated she was "making . . . appearances today" for Javier's attorney. Counsel asked that the hearing be continued for one day, if the existing order for supervised visits was to be changed, so Javier's counsel could argue. The court denied the continuance request, awarded legal and physical custody of Joseph to Jessica, denied visitation to Javier, terminated dependency jurisdiction and directed the custody order be placed in the family court file. The judgment is reversed.



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