In re J.C.

Filed 10/7/08 In re J.C. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Kenneth Fernandez, Temporary Judge. (Pursuant to Cal. Const., art. VI,  21.) Affirmed.

Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant.

Joe S. Rank, County Counsel, and Sophia H. Choi, Deputy County Counsel, for Plaintiff and Respondent.

R.C. (the father) appeals from an order terminating his parental rights to his two children. All of his appellate contentions arise out of the denial of a continuance, which the fathers counsel requested on the ground that a social worker he had purportedly subpoenaed had not appeared.

That social worker, however, was not the one who had written the report for the hearing; the fathers counsels offer of proof did not indicate that she could give any relevant testimony. In any event, it does not appear that the subpoena was properly served. Accordingly, we find no error.

I

FACTUAL AND PROCEDURAL BACKGROUND

R.C. and C.C. (the mother) have one daughter and one son together. As of March 2006, their daughter, J.C., was four, and their son, S.C., was one. Both children were living with the mother in Hemet. The father was living at a halfway house in Sun City. He was on probation for felony child endangerment (Pen. Code,  273a, subd. (a)) and possession of a controlled substance (Health & Saf. Code,  11377, subd. (a)). The mother had a restraining order against him.

In March 2006, the mother was found to have multiple severe bruises, inflicted by her live-in boyfriend. J.C. indicated that she had seen the boyfriend punch and pinch her mother. She also reported that, when she and her little brother got in trouble, the boyfriend hit them with a belt. The children were detained, and the Department of Public Social Services (the Department) filed a dependency petition concerning them. They were placed almost immediately with the mothers mother and stepfather (the maternal grandparents).

As the Department investigated further, it discovered that the father was a paranoid schizophrenic, that he used methamphetamine, and that he had accidentally injured J.C. twice. It also became apparent that the mother was mildly mentally retarded, which impaired her ability to parent. In June 2006, the juvenile court found jurisdiction based on failure to protect. (Welf. & Inst. Code,  300, subd. (b).)

In May 2007, the fathers mother (the paternal grandmother) filed a petition pursuant to Welfare and Institutions Code section 388 (section 388), asking to be considered for placement. She also filed a request for de facto parent status.

In June 2007, at the 12-month review hearing, the juvenile court terminated reunification services and set a hearing pursuant to Welfare and Institutions Code section 366.26 (section 366.26). It denied the paternal grandmothers request for de facto parent status. It did order that her home be evaluated for placement pursuant to the Interstate Compact on the Placement of Children (ICPC),^[1] but otherwise, it denied her section 388 petition. Later in June 2007, the Department did initiate ICPC proceedings. By October 2007, however, a home study still had not been completed. The Department reported that it had decided to proceed with adoption by the maternal grandparents.

In November 2007, the father substituted private counsel an attorney admitted in California, whose office was in Nevada.

A week later, at the section 366.26 hearing, the juvenile court found that the children were adoptable and that none of the exceptions to termination of parental rights applied. It therefore terminated parental rights.

II

DISCUSSION

A. Additional Factual and Procedural Background.

Social worker Crisandra Riggs wrote the jurisdictional/dispositional report.

Around June 2006, social worker Renee Sandecki took over the case. Sandecki wrote the six-month review report, addendum reports dated January 2007, March 2007, and May 2007, and the 12-month review report.

In June 2007, social worker Rosita Reyes took over the case. Accordingly, she wrote the section 366.26 report. In November 2007, at the section 366.26 hearing, the Department offered Reyess section 366.26 report into evidence. This discussion ensued:

[FATHERS COUNSEL]: Your Honor, we would object, and we would ask that the matter be continued . . . so we can take evidence from the social worker that I previously subpoenaed for todays hearing, who has not shown up.

THE COURT: All right. The offer of proof with regard to what you would hope to present with social worker testimony?

[THE DEPARTMENTS COUNSEL]: Your Honor, if I may be heard briefly regarding that?

THE COURT: Yes.

[THE DEPARTMENTS COUNSEL]: [The fathers counsel] indicated she did subpoena the social worker and she did not show up. However, the subpoena was never received by the social worker. I received a subpoena today from [the fathers counsel]. It was sent to a fax number . . . . [A]ccording to [the fathers counsel], that was the number given to her by our downtown office, but I did not receive a subpoena, neither did Ms. Sandecki.

THE COURT: All right. Well, Im getting a request for a continuance of the hearing. And so without deciding whether or not Ms. Sandecki was properly subpoenaed, what would be your offer of proof, [fathers counsel], for calling Ms. Sandecki as a witness on a [section] 366.26 hearing?

[FATHERS COUNSEL]: My offer of proof would be the fact that to place the children for adoption would be detrimental to them at this time and that she has provided information in the written reports that corroborate [sic] that.

THE COURT: All right. Which report is that?

[FATHERS COUNSEL]: She wrote four reports. It would be in all four of them.

The trial court asked the fathers counsel to cite a specific report. She cited the jurisdictional/dispositional report that had been filed in April 2006. Although that report had been written by social worker Riggs, the fathers counsel explained:

[FATHERS COUNSEL]: I would imagine that when [Sandecki] took over the case she reviewed this report. She had that information, and, subsequently, she made documentation with regard to that.

THE COURT: All right. Do you have any other piece of relevant information that Ms. Sandecki would be testifying to at a [section] 366.26 hearing?

[FATHERS COUNSEL]: The fact that on several occasions when the children were brought to the visits that they had bruises on them.

THE COURT: And youre bringing that to the Courts attention with regard to what issue to be addressed at a [section] 366.26 hearing?

[FATHERS COUNSEL]: Detriment of the adoption.

THE COURT: Detriment of adoption as a permanent plan for the children or questioning the specific placement of the children with the relative prospective adoptive parents?

[FATHERS COUNSEL]: The placement.

The juvenile court denied a continuance. It admitted Reyess section 366.26 report.

B. The Disentitlement Doctrine.

The father contends that, because the social worker failed to appear in court pursuant to a valid subpoena, the Department should be precluded from participating in this appeal.

The father relies on the disentitlement doctrine. Under the disentitlement doctrine a reviewing court applying equitable principles may exercise its inherent power to dismiss an appeal by a party who has refused to comply with trial court orders. [Citation.] The disentitlement doctrine is based on the equitable notion that a party to an action cannot seek the assistance of a court while the party stands in an attitude of contempt to legal orders and processes of the courts of this state. [Citations.] [Citation.] A formal judgment of contempt, however, is not a prerequisite to exercising our power to dismiss; rather, we may dismiss an appeal where there has been willful disobedience or obstructive tactics. (Citation.) (In re Baby Boy M. (2006) 141 Cal.App.4th 588, 596, quoting In re Claudia S. (2005) 131 Cal.App.4th 236, 244.)

We may assume, without deciding, that the disentitlement doctrine could be applied against the respondent in an appeal. Even if so, there is an even more basic problem with the fathers contention the record fails to show that the social worker did, in fact, fail to comply with a valid subpoena. The father had the burden of proving valid service. (Evid. Code, 500.) Because he introduced no evidence on this issue, he necessarily failed to carry this burden. He claims that the trial court would not permit a hearing on the issue, but in fact he did not ask for one.

We may accept the representations that the Departments counsel made to the trial court, particularly as the fathers counsel did not dispute them. (People v. Medina (1995) 11 Cal.4th 694, 731.) According to those representations, the fathers counsel claimed to have faxed a subpoena to a fax number given to her by county counsels downtown office. However, neither the Departments counsel nor the social worker had actually received a subpoena before the hearing.

A subpoena in a dependency case is subject to the rules applicable to civil subpoenas generally. (Welf. & Inst. Code,  341, citing Code Civ. Proc.,  1985.) A subpoena must be served by delivering a copy . . . to the witness personally . . . . (Code Civ. Proc.,  1987, subd. (a).) The alleged service here was doubly deficient it was made on the Department, not on the social worker, and it was made by fax. While a witness can waive personal service and can agree to be served by fax or otherwise (see Cal. Rules of Court, rule 2.306(a)(1)), there is no evidence of any such agreement here.

In any event, this is a tempest in a teapot. Even if we were to preclude the Department from participating in this appeal, the result would be the same. The juvenile courts judgment is presumed to be correct, and it is appellants burden to affirmatively show error. [Citation.] (In re S.C. (2006) 138 Cal.App.4th 396, 408.) Hence, if the respondent fails to file a brief, the judgment is not automatically reversed. . . . [T]he better rule . . . is to examine the record on the basis of appellants brief and to reverse only if prejudicial error is found. [Citations.] (In re Bryce C. (1995) 12 Cal.4th 226, 232-233, quoting Votaw Precision Tool Co. v. Air Canada (1976) 60 Cal.App.3d 52, 55.) Thus, we would still have to consider any and all arguments for affirmance of the challenged order.

C. Denial of Cross-Examination.

The father contends that the trial court erred by refusing to let him cross-examine social worker Sandecki.

We recognize, of course, that in a dependency proceeding, there is a due process right to confront and cross-examine adverse witnesses. (Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 1513; In re Matthew P. (1999) 71 Cal.App.4th 841, 849.) It does not violate due process, however, to require a party to subpoena such witnesses. (In re Malinda S. (1990) 51 Cal.3d 368, 383-385.) Here, the father failed to do so.

Accordingly, the trial court did not refuse to let the father cross-examine Sandecki; it simply refused to grant him a continuance so that he could subpoena her. [T]he denial of a continuance may be so arbitrary as to deny due process. [Citation.] However, not every denial of a request for more time can be said to violate due process, even if the party seeking the continuance thereby fails to offer evidence. [Citation.] (People v. Beames (2007) 40 Cal.4th 907, 921.)

Continuances shall be granted only upon a showing of good cause . . . . (Welf. & Inst. Code,  352.) The decision whether to grant a continuance of a hearing to permit counsel to secure the presence of a witness rests in the sound discretion of the trial court. [Citations.] To establish good cause for a continuance, [a party has] the burden of showing that he had exercised due diligence to secure the witnesss attendance, that the witnesss expected testimony was material and not cumulative, that the testimony could be obtained within a reasonable time, and that the facts to which the witness would testify could not otherwise be proven. [Citation.] [Citation.] (In re Chuong D. (2006) 135 Cal.App.4th 1303, 1312-1313, quoting People v. Roybal (1998) 19 Cal.4th 481, 504, quoting People v. Howard (1992) 1 Cal.4th 1132, 1171.)

We may assume, without deciding, that if Sandecki had been present, the trial court could not have required an offer of proof before allowing the father to cross-examine her. (See In re Thomas R. (2006) 145 Cal.App.4th 726, 732; but see In re Jeanette V. (1998) 68 Cal.App.4th 811, 817.) However, because Sandecki was not present, obtaining her presence would require a continuance; accordingly, the trial court was entitled to require the fathers counsel to make an offer of proof so that it could determine whether [her] expected testimony was material and not cumulative and whether the facts to which [she] would testify could not otherwise be proven.

That offer of proof was inadequate. The only issues open to contest at the section 366.26 hearing were whether the children were adoptable and, if so, whether any of the statutory exceptions to adoption applied. (In re Erik P. (2002) 104 Cal.App.4th 395, 401, fn. 2.) The fathers counsel represented that Sandeckis testimony would not pertain to either of these issues, but rather to whether the foster parents were appropriate prospective adoptive parents. That decision, however, was not up to the court; it was up to the Department, subject only to review for abuse of discretion. (Fresno County Dept. of Children & Family Services v. Superior Court (2004) 122 Cal.App.4th 626, 649-650; In re Jacob E. (2004) 121 Cal.App.4th 909, 921-922; In re Hanna S. (2004) 118 Cal.App.4th 1087, 1092; In re Harry N. (2001) 93 Cal.App.4th 1378, 1397; Los Angeles County Dept. of Children etc. Services v. Superior Court (1998) 62 Cal.App.4th 1, 10-11; Department of Social Services v. Superior Court (1997) 58 Cal.App.4th 721, 731-734.)

Finally, the father was not entitled to a continuance for a separate and additional reason his counsel had not used reasonable diligence to subpoena Sandecki. Admittedly, the trial court did not rely on this lack of diligence; it denied a continuance solely because the fathers offer of proof was inadequate, without deciding whether or not [the social worker] was properly subpoenaed . . . . Nevertheless, in light of this failure to serve a timely and proper subpoena, if it had granted a continuance, it would have erred.^[2]

D. Admission of the Social Workers Reports.

The father contends that the trial court erred by admitting the social workers reports because the social worker was not available for cross-examination.

In juvenile dependency proceedings generally, a social workers report is admissible under Welfare and Institutions Code section 281. (In re Malinda S., supra, 51 Cal.3d at pp. 376-382; see also Welf. & Inst. Code,  355, subd. (b), 366.26, subd. (b).) Welfare and Institutions Code section 355, which applies solely to jurisdictional hearings, further provides that the social worker who prepared the report must be made available for cross-examination upon a timely request by any party. (Welf. & Inst. Code,  355, subd. (b)(2).) By contrast, at a section 366.26 hearing, the admissibility of social worker reports is not expressly conditioned upon availability of the author for cross-examination. [Citations.] (In re Jeanette V., supra, 68 Cal.App.4th at p. 816.)

Of course, at a section 366.26 hearing, a party has a due process right to call and to cross-examine the social worker. In part II.C, ante, we held that this right was not violated. Even if it was, however, that violation would be an error in its own right. The fact that the social workers report was admitted might be relevant to whether the error was prejudicial, but it would not be an error in itself. (See In re Matthew P., supra, 71 Cal.App.4th at p. 849, fn. 3.)

Separately and alternatively, we note an even more fundamental flaw in this argument. The trial court admitted only one social workers report Reyess report for the section 366.26 hearing. Reyes was in court and available to be cross-examined. The Department did not offer, nor did the trial court admit, any of Sandeckis earlier reports. Accordingly, the trial court did not prevent the father from cross-examining the author of any report that was admitted.

III

DISPOSITION

The order appealed from is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI

J.

We concur:

McKINSTER

Acting P.J.

KING

J.

Publication Courtesy of California attorney directory.

Analysis and review provided by Oceanside Property line Lawyers.

San Diego Case Information provided by www.fearnotlaw.com

^[1] The paternal grandmother had a home in California, but it appears that her primary home was in Nevada.

^[2] In a single sentence in his reply brief, the father contends for the first time that, if his trial counsel did fail to effect valid service, that failure constituted ineffective assistance. He forfeited this contention by failing to raise it in his opening brief. (In re J.N. (2006) 138 Cal.App.4th 450, 459, fn. 5.) Even if not forfeited, it lacks merit, because, on this record, he cannot show that, if Sandecki had testified, he would have enjoyed a more favorable result. (In re N.M. (2008) 161 Cal.App.4th 253, 270.)