In re Emily R.

Filed 2/25/08 In re Emily R. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an Order of the Superior Court of Los Angeles County.

David S. Milton, Judge. Reversed.

Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James Owens, Assistant County Counsel, and Judith A. Luby, Principal Deputy County Counsel, Attorneys for Respondent Los Angeles County Department of Children and Family Services.

_________________________

Father Gabriel R. appeals from the dependency courts order appointing a guardian for his two children. Gabriel contends the dependency court erred in delegating visitation decisions to the guardian, and that the Department of Children and Family Services failed to serve him with notice of the Welfare & Institutions Code[1]section 366.26 hearing and give him a copy of the report. We reverse and remand.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Gabriel is the father of Eddie R. (born 1996) and Emily R. (born 1998) with mother Regina T. Minor Danny G. (born 1992), is mothers son with Danny G., Sr.[2]

On August 10, 2005, the Los Angeles Police Department executed a search warrant at Gabriel and Mothers home in connection with an ongoing investigation that they were engaged in high-volume drug trafficking. The police believed that Gabriel moved approximately 10 pounds of methamphetamine every few days.

Upon entry into the home, police officers found approximately nine pounds of a crystal substance that resembled methamphetamine, a loaded nine-millimeter handgun, additional ammunition, seven bottles of methadone in the refrigerator, a bullet proof vest, scale, baggies, and a police radio scanner. The drugs were accessible to the minors Eddie, Emily, and Danny, who were in the home at the time of execution of the search warrant. Mother denied any knowledge of the drugs, weapons and other paraphernalia found in the home. Mother asserted that Gabriel worked for the DuPont Company. Gabriel maintained that the drugs had just arrived at the home, which was why they were out on the counter. He denied habitually bringing the drugs to the home, contending this was the first time he had done so. He admitted to using methamphetamine on a daily basis, and told officers that Mother was not involved in selling drugs.

The children were taken into protective custody and placed in foster care. Both parents were arrested and charged with child endangerment (Pen. Code,  273) and possession for sale (Health & Saf. Code,  11378).

The Department filed a section 300 petition on August 15, 2005, alleging both parents failure to protect ( 300, subd. (b).) On August 15, 2005, the dependency court ordered the children detained in foster care.

The Departments August 23, 2005 report indicated that Gabriel had previous arrests for grand theft auto, attempted robbery, carrying a concealed weapon, and convictions for carrying a concealed weapon and first degree robbery dating from the early 1990s. Gabriel served six years in prison on the robbery conviction.

The jurisdictional hearing was held on September 13, 2005. The Departments report stated that Mother had identified Gabriel as the birth father of Eddie and Emily. The maternal grandmother Olga T. informed the Department she owned the home where Gabriel and Mother had been living, but denied any knowledge of narcotics sales. Mother was out on bail pending her next court hearing, and Gabriel was incarcerated at the Mens Central Jail pending sentencing. The Department recommended reunification services for Mother, who had enrolled in parenting classes and individual counseling. At the hearing, the court ordered the children placed with their maternal grandmother Olga.

The Department filed an amended petition October 21, 2005, alleging failure to protect under section 300, subdivision (b). The petition additionally alleged that Gabriel had a substance abuse problem.

The Departments report for the November 16, 2005 hearing, prepared to address the parents progress and visits, stated that Mother had been participating in parenting classes and individual therapy, and she had been working full time as a receptionist. Mother had a hearing scheduled for December 7, 2005 in connection with the drug charges against her, and hoped to get probation. Mother visited the children at Olgas home on Wednesdays, Thursdays, and Fridays, and had dinner with them. The children had been visiting Gabriel at Mens Central Jail and were happy to see him. No reunification services were available to Gabriel at the jail.

On December 21, 2005, Mother and Gabriel submitted on the petition. At the hearing held the same date, the dependency court sustained the petition as to Counts b1, b3, and b5. The court ordered that the children remain placed with their maternal grandmother, and that Mother have monitored visitation until she had four clean, consecutive random drug tests; after 10 clean tests, no further testing would be necessary, but if Mother submitted a dirty test, then the court would order further testing and a drug rehabilitation program. The court ordered that the Department prepare a removal order for Gabriel for May 17, 2006.

The status report for the six-month review hearing on May 17, 2006 stated that the children remained placed with their maternal grandmother Olga; Gabriel remained incarcerated; Mother had been visiting the children and participating in drug testing and a counseling program, and had submitted two negative tests. However, on April 19, 2006, Mother was arrested by the F.B.I. and was incarcerated at a federal facility in Los Angeles, California. Mother had signed an affidavit giving full custody of the children to Olga.

At the review hearing, the court found that Mother and Gabriel were not in compliance with the case plan, and terminated reunification services.[3] The court set a permanency planning hearing for September 13, 2006.

The section 366.26 report stated that the children continued to reside with Olga. Olga did not wish to adopt them, but wished to become their legal guardian. Mother had been released on August 19, 2006.

Gabriel was served by mail with notice of the hearing.

At the hearing, the court found notice of the proceedings had not properly been given to Gabriel, and continued the matter for appropriate notice and a removal order for Gabriel. The matter was continued to December 13, 2006.

The Departments interim review report stated that Gabriel had been served by mail; it had been unable to serve him personally at the jail because the Sheriff did not provide process services to the Department. The Department attempted to ascertain the law enforcement agency authorized to enter the jail, and had been directed to contact the U.S. Marshals office. The notice served on Gabriel stated the report was served on him; further, notice and a copy of the report was served on Gabriels attorney.

At the hearing, the court noted that the U.S. Marshal had a strict protocol to follow in order for Gabriel to be served. The court trailed the matter to December 14, 2006 to determine if Gabriel wanted to appear at the hearing. On December 14, 2006, the court found notice had not been given to Gabriel, there was no way to give notice to Gabriel without removing him from the facility, and continued the matter to March 15, 2007 in order to give the Department time to prepare the proper writ for his removal.

In January 2007, Gabriel was moved to the San Bernardino Central Jail in San Bernardino for his safety, and remained under federal jurisdiction. The social worker visited Gabriel in jail, and found him to be tight lipped and reluctant to talk about the case, but Gabriel did state he wanted the children to remain with Olga because she was a good teacher. The Department had made several unsuccessful attempts to contact the U.S. Marshal regarding making arrangements for Gabriels appearance.

Notice of the March 15, 2007 hearing, without any report attached, was served by personal service on January 29, 2007. In court, Gabriels counsel requested a hearing because Gabriels appearance had not been secured. The Department pointed out that where guardianship or long-term foster care were recommended, pursuant to section 294, subd. (f)(6), service could be made by first-class mail; furthermore, under Penal Code section 2625, removal of a prisoner was only required where the purpose of the proceeding was to terminate parental rights. Gabriels counsel pointed out that he had not waived his clients appearance. The court noted that Gabriel had been served with notice and interviewed by the social worker, and wanted the children to remain with Olga.

The court found notice was proper with respect to the first-class mailing to the detention facility. Gabriels counsel advised the court he did not believe Gabriel had received the section 366.26 hearing report. Olga testified that Gabriels offense was very serious, and he had not told her when he would be released. She also testified that Mother had been visiting the children since her release, and her relationship with Gabriel was good.

After noting that the matter had been continued three times, the court found sufficient notice to Gabriel. Gabriels counsel objected for the record. The court noted that attempts to have Gabriel removed for hearing had been unsuccessful, the copy of the notice for the March 15, 2007 hearing indicated a copy of the report was not sent to Gabriel, and it was in the best interest of the children to proceed. The court granted guardianship to Olga.

Counsel for Gabriel requested the court to make a more explicit visitation order, and to allow visitation to take place even though Gabriel was incarcerated. The court ordered monitored visitation after Gabriel was released, with visitation during his incarceration left to the discretion of the legal guardian in the best interests of the children, and terminated jurisdiction.

DISCUSSION

I. SERVICE WAS PROPER.

Gabriel contends that the Departments failure to serve him with a copy of the section 366.26 report and secure his presence at the section 366.26 hearing was prejudicial error because the social worker wrongfully claimed in the report that the children were not visiting with him or Mother, and if Gabriel had been accorded the opportunity to appear in court, he could have refuted these claims. He contends that a continuance was necessary and would not have harmed the children because they were already in a stable placement, and contends that the court abused its discretion in failing to secure his presence.

California Rules of Court, rule 5.725(c), requires: Before the [section 366.26] hearing, petitioner [the Department] must prepare an assessment under section 366.21(i). At least 10 calendar days before the hearing, the petitioner must file the assessment, provide copies to each parent or guardian and all counsel of record, and provide a summary of the recommendations to the present custodians of the child, to any CASA volunteer, and to the tribe of an Indian child. If the Department is recommending guardianship or long-term foster care, the report may be served by first-class mail. ( 294, subd. (f)(6).) Here, the notice, along with a report, was served on Gabriel at the detention facility in preparation for the initial hearing. No new section 366.26 report was prepared, so the lack of service of the report on Gabriel in connection with the March 15, 2007 hearing was not error.

Even if we were to agree that notice was improper, Gabriel cannot demonstrate prejudice based upon the assertion that he was unable to contest the representations the Department made in the report concerning visitation. Although not explicit, the record supports a fair inference that the courts order of guardianship was not based upon Gabriels lack of visitation, but the fact that he was incarcerated, unable to obtain reunification services, and his release from detention was likely not imminent. In addition, Olga testified at the hearing that her relationship with Gabriel was good, and the court acknowledged that Gabriel could have visitation, although as discussed infra, without making appropriate orders.

Gabriel also argues that Penal Code section 2625 required his presence at the hearings. That section requires a prisoner to be transported to court where the proceeding seeks to terminate parental rights or to adjudicate the child a dependent of the court. (Pen. Code,  2625, subd. (b), (d); In re Jesusa V. (2004) 32 Cal.4th 588, 599.) Although the court had ordered Gabriel produced, the record demonstrates that obtaining his appearance while detained in federal custody had presented numerous unforeseen obstacles to the Department, which made its best efforts to comply. In any event, as discussed above, Gabriels inability to attend the hearing did not prejudice him, although in the future the court and the Department should make every effort to ensure that Gabriel is able to attend hearings. (In re Jesusa V., supra, 32 Cal.4th at p. 602 [lack of prejudice from failure to produce incarcerated parent].)

II. THE DEPENDENCY COURT ERRED IN VESTING THE GUARDIAN WITH DISCRETION TO DETERMINE VISITATION.

Gabriel contends the courts visitation order giving the childrens legal guardian discretion to determine the amount of visitation was improper. The Department concedes this point.

Absent detriment, an incarcerated parent has a right to visitation. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1010.) Although the court may not delegate the decision whether visitation will occur, it may delegate decisions as to the time, place and manner of visitation. (In re M. R. (2005) 132 Cal.App.4th 269, 274.) Section 366.26, subdivision (c)(4)(C) requires the dependency court to make orders for visitation rights.

Here, the dependency court found it would not be detrimental for Gabriel to visit the children while incarcerated, but left visitation entirely within the guardians discretion. The matter must be remanded for an appropriate order specifying Gabriels visitation.

DISPOSITION

The order of the superior court is reversed. The matter is remanded for further proceedings consistent with this opinion.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ZELON, J.

We concur:

PERLUSS, P. J.

WOODS, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by El Cajon Property line attorney.

[1] All statutory references herein are to the Welfare and Institutions Code, unless otherwise noted.

[2] Mother and Danny G., Sr. are not parties to this appeal.

[3] The notice for the hearing indicated no change in status was sought. Under the circumstances, termination of reunification services at this stage in the proceedings appears extraordinary; however, as no party seeks relief on this issue, we will not resolve it.