In re G.R.
Filed 11/15/13 In re G.R. CA4/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 G.R. et al., Persons
Coming Under the Juvenile Court Law.
SAN DIEGO
COUNTY HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
GONZALO R. et al.,
Defendants and Appellants.
D063748
(Super. Ct. No. 518009A-C)
APPEAL from
an order of the Superior Court
of
County, Carol Isackson, Judge.
Affirmed.
Jamie A.
Moran, under appointment by the Court of Appeal, for Defendant and Appellant
Gonzalo R.
Monica
Vogelmann, under appointment by the Court of Appeal, for Defendant and
Appellant Linda D.
Thomas E.
Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and
Kristen M. Ojeil, Deputy County Counsel, for Plaintiff and Respondent.
Gonzalo R. and
Linda D. appeal a juvenile court order terminating their
under Welfare and Institutions Code
name="_ftnref1" title="">[1]
section 366.26. Gonzalo contends the
court violated his due process rights to notice and an opportunity to be heard
when it proceeded with the selection and implementation hearing in his
absence. Linda joins in Gonzalo's
argument. We affirm the order.
FACTUAL AND
PROCEDURAL BACKGROUND
In April
2011, three of Linda's children, including seven-year-old G.R.,
became dependents of the juvenile court under section 300, subdivision (b) and
were removed from parental custody based on findings Linda abused prescription
drugs, left the children with other people without making arrangements for
their care, and failed to provide the children with necessities. Linda admitted she could not care for her
children and asked that they be removed from her custody. Gonzalo had been incarcerated in Nevada
since 2009. The court placed the children
in out of home care, ordered reunification services for Linda, and ordered no
services for Gonzalo under section 361.5, subdivision (e) because he was going
to remain incarcerated for the duration of the reunification period. After Gonzalo was transferred to a
correctional facility that offered services, a case plan was filed for him.
Throughout
the proceedings, Gonzalo was represented by counsel and appeared by telephone
from prison. The court terminated Linda's
services at the 12-month hearing. At the
18-month hearing, the court terminated Gonzalo's services and set a section
366.26 selection and implementation
hearing. The court noted G.R.'s only
contact with Gonzalo during the dependency case was one telephone call in
December 2012, and some letters and photographs G.R. received from
Gonzalo. The court found there was
essentially no relationship between G.R. and Gonzalo. Gonzalo was personally served with notice of
the selection and implementation hearing.
The social
worker assessed the children as generally and specifically adoptable. They had been placed together with caregivers
who wanted to adopt all of them. The
social worker recommended the court terminate parental rights and order adoption
as the children's permanent plans.
Linda, who had been in and out of jail, had not regularly visited the
children and said she was glad to know they were being well cared for. Gonzalo remained incarcerated in Nevada,
and said he was happy to know G.R. was doing well with a family who loves him,
and he understood why it was in G.R.'s best interests to live in a permanent
and loving home.
The
selection and implementation hearing was continued several times, and the court
found notice had been properly given.
Counsel for Gonzalo indicated he did not intend to call any
witnesses. The court authorized Gonzalo
to appear at the contested hearing by telephone or through counsel.
At the
contested selection and implementation hearing, the court again found notice
had been properly given. Gonzalo's
attorney was present, and the court placed a telephone call to Gonzalo at his
detention facility. When no one
answered, the court left a voicemail message stating arrangements had been made
for Gonzalo to appear telephonically and asking that Gonzalo return the call so
that he could participate in the hearing.
The court expressed its hope that Gonzalo would call in, and proceeded
with the hearing. After considering the
evidence and arguments of counsel, the court found the children were adoptable
and none of the exceptions to adoption applied.
The court terminated parental rights and referred the children for
adoptive placement.
DISCUSSION
Gonzalo
contends the court violated his due process rights to notice and an opportunity
to be heard by allowing the selection and implementation hearing to proceed in
his absence. He asserts the court should
have made more of an effort to contact him at his detention facility to ensure
his participation in the hearing by telephone.
Linda joins in this argument to the extent it benefits her.
A
In
has a due process right to
notice and an opportunity to be heard. (In re
Justice P. (2004) 123 Cal.App.4th 181, 188.) Due
process is a flexible concept that depends on the circumstances of the
case and a balancing of various factors. (In re Earl L. (2004) 121
Cal.App.4th 1050, 1053.) For an
incarcerated parent, this entails "meaningful access to the courts,"
and includes being represented by appointed counsel, receiving a copy of the
social worker's report, having an opportunity to call and cross-examine
witnesses, and presenting his or her own testimony in written form. (In re
Jesusa V. (2004) 32 Cal.4th 588, 601; In re Axsana S.
(2000) 78 Cal.App.4th 262, 269.)
name="_ftnref3" title="">[3] " 'In dependency cases, as in other
civil cases, personal appearance by a party is not essential; appearance by an
attorney is sufficient and equally effective.' " (In re
Jesusa V., supra, 32 Cal.4th
at p. 602, quoting In re Axsana S.,
supra, 78 Cal.App.4th at p. 269.) Thus, " 'the due process rights of
a prisoner who has been prohibited from participating in a custody hearing are
not violated where the prisoner was represented by counsel at the hearing and
was neither denied an opportunity to present testimony in some form on his
behalf nor denied the opportunity to cross-examine witnesses.' " (In re
Jesusa V., supra, at p. 602.) Moreover, there is no denial of due process
when a prisoner-parent is unable to attend a hearing because he or she is in
the custody of another state or the federal government and is instead
represented by counsel. (
B
Here, the
record shows Gonzalo had notice of the selection and implementation hearing,
and he does not argue otherwise.
Instead, he claims he was "treated in a fundamentally unfair manner"
when the court proceeded without him.
Gonzalo had arranged through his appointed counsel to participate in the
hearing by telephone from his detention facility in Nevada, but for reasons
unexplained in the record, he was unavailable at the time the court placed the
call and for the duration of the hearing.
Nevertheless, Gonzalo had the opportunity to participate through
counsel, who adequately represented his interests regarding termination of his
parental rights. The court's inability
to reach Gonzalo by telephone did not deprive him of a meaningful opportunity
to be heard, and there was nothing unfair about the manner in which the court proceeded.
C
In any
event, an incarcerated parent must show any claimed violation of his right to
be present at a dependency hearing resulted in prejudice. (In re
Iris R. (2005) 131 Cal.App.4th 337, 343; In re Jesusa V., supra,
32 Cal.4th at pp. 625-626 [harmless error analysis required in light of
legislative imperative that dependency actions be resolved
expeditiously].) Here, Gonzalo's counsel
did not object to the admission of Agency's reports, cross-examine the social
worker, or call any witnesses. Indeed,
counsel submitted the matter on the record, noting Gonzalo's statements and "feelings
about the situation" were contained in Agency's addendum report. In that report, Gonzalo said he was happy to
hear G.R. was doing well with a family who loves him, and although "he
will always care about and love his son, he understands why it is in [G.R.'s]
best interest to reside in a permanent and loving home." The evidence showed Gonzalo had been
incarcerated since before the dependency
petition was filed. His only contact
with G.R. throughout the two years G.R. was a dependent was one telephone call
and some letters and photos Gonzalo sent.
G.R. was likely to be adopted and had no beneficial parent-child relationship
with Gonzalo to preclude terminating parental rights. Gonzalo has provided no explanation of what
he might have said or done to change the court's findings had he appeared by
telephone at the selection and implementation hearing, and we can conceive of
none. Thus, we conclude no other result
was possible even if Gonzalo had participated in the hearing. (In re
Jesusa V., supra, 32 Cal.4th
at p. 626; D.E. v. Superior Court
(2003) 111 Cal.App.4th 502, 514 [even if juvenile court should have exercised its
discretion to continue disposition hearing so incarcerated father could be
present, any error was harmless].)
DISPOSITION
The order
is affirmed.
IRION, J.
WE CONCUR:
HALLER, Acting P. J.
AARON, J.
name="_ftn1" title="">[1] Statutory references are to the Welfare and Institutions
Code unless otherwise specified.
name="_ftn2" title="">[2] Gonzalo is the father of G.R. only. The other children are not subjects of this
appeal.
