Alejandro G. v. Superior Court

Filed 11/30/09 Alejandro G. v. Superior Court CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

ORIGINAL PROCEEDINGS; application for a writ of mandate. Writ denied.

Alejandro G., in pro. per., for Petitioner.

No appearance for Respondent.

Office of the Los Angeles County Counsel, James M. Owens, Assistant County Counsel, and Tracey Dodds, Principal Deputy County Counsel, for Real Party in Interest.

Petitioner Alejandro G. (petitioner) and J.O. (mother) are the parents of L.G. (L., born Sept. 2007) and K.O. (K., born Aug. 2008). After the court set a permanency planning hearing for both children, petitioner filed a request for extraordinary relief.[1] We deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

In December 2007, three-month-old L. was detained by the Department of Children and Family Services (Department) after she was brought to the emergency room because she was not breathing. A CT and skeletal scan revealed that L. had brain hemorrhaging, a build-up of fluid in her head, several fractured ribs, and old injuries that were at different stages of healing. Initially, petitioner told the social worker he did not know how the child was injured. However, two days later, he admitted to police that he had been physically abusing L.[2]

On January 3, 2008, the Department filed a petition pursuant to Welfare and Institutions Code section 300,[3] alleging that petitioner had physically abused L. and that petitioner and mother had a history of substance abuse that placed the child at risk of physical harm. On May 22, 2008, an amended petition was sustained, and at the June 19 dispositional hearing, petitioner was denied reunification services. He was present and represented by counsel at both hearings.

After mother gave birth to K. in August 2008, the Department filed a second section 300 petition. Petitioner and his counsel were present at the October 30 hearing, during which the petition was sustained and petitioner was denied reunification services.

For reasons not pertinent to this appeal, mothers reunification services were terminated in June 2009, and a section 366.26 permanency planning hearing was set for October 15, 2009. The court ordered that petitioner be present for that hearing unless he waived his presence.

On September 15, 2009, petitioner filed a petition for extraordinary relief. He contends: (1) he was denied the right to be present at certain hearings; (2) he had no contact with his attorney and was prevented from presenting his position with respect to the children; (3) adoption is not necessary, as he has family members who may accept the children; (4) the Department failed to investigate whether the children could be placed with his relatives; (5) he was granted reunification services and the Department has not provided them; and (6) he is entitled to visitation.

On September 18, 2009, we filed an order to show cause and stayed the October 15 section 366.26 hearing.

DISCUSSION

I. Petitioners Right to be Present at All Hearings

Relying on Penal Code section 2625, petitioner argues he had a right to be present at all of the hearings conducted by the dependency court. He is incorrect. Penal Code section 2625 requires a court to order a prisoner-parents temporary removal and production before the court only where the proceeding seeks to terminate the parental rights of [the] prisoner under Welfare and Institutions Code section 366.26 or Family Code section 7800 et seq. or to adjudicate the child of a prisoner a dependent child. [Citations.] (In re Jesusa V. (2004) 32 Cal.4th 588, 599.) As we have noted, petitioner was present at the jurisdictional and dispositional hearings for both of his children, and the section 366.26 hearing where the court will determine whether petitioners parental rights should be terminated is yet to be held. Petitioners claim that he had a statutory right to be present at the various review hearings is without merit.

Petitioner also claims he had a due process right to be present at all hearings. We disagree. It is clear that prisoners have a constitutional right of access to the courts (Payne v. Superior Court (1976) 17 Cal.3d 908, 914); however, that does not mean they have a constitutional right to be personally present at every type of hearing. Due process guarantees notice and opportunity for [a] hearing appropriate to the nature of the case. (Boddie v. Connecticut (1971) 401 U.S. 371, 378.) Petitioner has cited no authority for the proposition that incarcerated parents have a due process right to be present at dependency proceedings. To the contrary, as long as the incarcerated parent is represented by counsel at the hearing (as petitioner was), he or she is not denied an opportunity to participate in the hearing. (In re Jesusa V., supra, 32 Cal.4th at p. 602.) Moreover, petitioner cannot explain why his participation at the hearings at issue was necessary, much less required. Petitioner was denied reunification services. The hearings that were conducted out of his presence involved inquiry into mothers compliance with her case plan. Under the circumstances, we cannot conclude that petitioners physical absence at any of the hearings deprived him of a meaningful opportunity to be heard.

For the same reason, petitioners claim that he had no contact with his attorney is without merit. He does not explain why it was necessary for the court to hear his views on the question of mothers compliance with her case plan. In any event, he fails to allege that he was prevented from contacting his attorney. He concedes he knew his attorneys name and does not suggest he lacked the means to communicate with her.

II. The Placement of the Children

Petitioner asserts that adoption of his children is not necessary, as he has relatives who may be willing to become legal guardians of L. and K. As the trial court has not yet selected a permanent plan for the children, we need not address this issue. Petitioner also alleges the Department failed to investigate whether the children could be placed with his relatives. The Department argues petitioner lacks standing to pursue his claim. We agree.

Petitioner suggests that his relatives have standing to request that the children be placed with them. The problem is that the record does not reflect that any of his relatives has stepped forward and expressed such a desire to the trial court. Thus, the issue of standing with respect to the relatives is moot.

As to petitioner, in order to establish standing he must show that his personal rights are affected by the courts failure to consider placing the children with his relatives. (In re Vanessa Z. (1994) 23 Cal.App.4th 258, 261.) In dependency proceedings, a parents interest is in reunification and maintaining the parent-child relationship. (See In re Devin M. (1997) 58 Cal.App.4th 1538, 1541.) In light of petitioners denial of reunification services, we cannot see how the issue of where his children will be placed affects his personal rights. We conclude petitioner has no standing to raise the issue of relative placement. (See Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1035 [father whose reunification services were terminated had no standing to contest juvenile courts decision with respect to relative placement of his child].)

III. Petitioners Right to Reunification Services

After L. was declared a dependent child, petitioner was denied reunification services because he was deemed responsible for inflicting severe physical harm on her. As a result, such services were also denied as to L.s sibling, K. He did not contest the denial of reunification services in either case. Now, seizing on one line in the transcript of the June 23, 2009 hearing, he claims the juvenile court ordered the Department to provide him reunification services. We are not persuaded.

According to the reporters transcript, in the course of rendering its findings with respect to mother, the court stated, Father has been granted reunification services. The Department contends that either the court misspoke or the court reporter erred. We agree. At the beginning of the hearing, the Departments counsel stated there were issues beyond the question of reunification services that he wanted to address. The court responded, Lets deal with those that go[] to the crux of whether were going to terminate [family reunification]. Were talking about family reunification services for mother. Father [petitioner] was not granted reunification services pursuant to according to the dispo. We decline to interpret one statement by the court (assuming it was accurately transcribed) as expressing an intent to change an order denying petitioner reunification services issued a year prior.

IV. Visitation Rights

Petitioner requests that this court issue an order for visitation. His request is in the wrong forum. Once a child is declared a dependent of the juvenile court, it is that court which is vested with the discretion to fashion a dispositional order that will best serve and protect the childs interest. (See In re Neil D. (2007) 155 Cal.App.4th 219, 225.) At no time did petitioner ask the trial court to allow visitation. Nor did he seek timely review of the courts failure to order visitation at the childrens dispositional hearings. (In re Pedro N. (1995) 35 Cal.App.4th 183, 189-191 [dispositional order is appealable and may not be challenged after statutory time for filing an appeal has passed].) Thus, we have no jurisdiction to issue the requested order.

DISPOSITION

The petition is denied. The stay of the section 366.26 hearing is vacated.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

SUZUKAWA, J.

We concur:

EPSTEIN, P.J. WILLHITE, J.

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[1]Mother is not a party to the petition.

[2]Petitioner was arrested and eventually pled guilty to charges of child abuse. He is currently serving a 10-year prison sentence. He is to be deported upon completing his term.

[3]All further statutory references are to the Welfare and Institutions Code.