In re Bryce L.
Filed 1/8/13 In
re Bryce L. CA2/7
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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
In re Bryce L.
et al., Persons Coming Under the Juvenile Court Law.
B236755 and B239426
(Los Angeles County
Super. Ct. No. CK84248)
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
BRADLEY L.,
Defendant and
Appellant.
APPEAL
from a judgment of the Superior Court of
County. Marilyn
Mordetsky, Juvenile Court Referee.
Affirmed.
Jack A. Love,
under appointment by the Court of Appeal for Defendant and Appellant.
John F. Krattli,
Acting County Counsel, James M. Owens, Assistant County Counsel, and Jeanette
Cauble, Deputy County Counsel, for Plaintiff and Respondent.
_______________________
In two related appeals, appellant Bradley L. (“Fatherâ€) challenges
the juvenile court’s jurisdiction and disposition orders declaring his three
children dependents of the court and removing them from the custody of Father
(Welf. & Inst. Code
name="_ftnref1" title="">[1] § 300, subd. (b)), and its subsequent orders
terminating jurisdiction and granting sole physical and legal custody of the
children to their mother, Stacy L. (“Motherâ€) (§§ 364, subd. (c), 362.4). Father argues that the juvenile court violated
his statutory and constitutional rights by failing to ensure that Father was
transported from prison to court for the jurisdiction and disposition
hearing. Father also asserts that the
in denying his attorney’s requests for a continuance of two status review
hearings to allow Father a meaningful opportunity to participate in such
hearings. We conclude that Father has
failed to demonstrate any prejudicial error in the juvenile
court’s rulings, and accordingly, affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I.
Section 300 Petition
Father and
Mother are the married parents of 17-year-old Bryce L., 14-year-old Lucas L.,
and 10-year-old Ethan L. The current
matter came to the attention of the Los Angeles County Department of Children
and Family Services (“DCFSâ€) in August 2010 based on a referral alleging
alcohol abuse and domestic violence by Father.
work. Mother told Father to leave the
home because he was drunk, and he responded by hitting Mother across the
face. Mother called the police and
Father was arrested. Following Father’s
arrest, Mother obtained a criminal restraining order prohibiting Father from
coming within 100 yards of Mother or having any personal contact with her.
On August 30, 2010, a DCFS social worker went to the family home to investigate. Father was alone and appeared to be under the
influence of alcohol. When asked about
the August 27,
2010 incident, Father admitted that he had
a couple of drinks and argued with Mother, but denied that he hit Mother or
that the children were present during the argument. He also denied any physical or emotional
abuse of the children. He acknowledged,
however, that he had a prior arrest for domestic
violence.
On September 17, 2010, the social worker met with Mother and the children. Mother stated that Father was a good man and
had been a good provider, but he started drinking after the children’s paternal
grandmother died and spent all of their money.
Mother denied that the children were ever physically abused or were
afraid of Father, but said that she believed Father was emotionally abusing
them with his drinking. She also
reported that Father had two recent arrests in September 2010 for violating the
restraining order and being drunk in public.
The children conveyed that they loved Father, but they did not want him
in the family home because of his drinking.
They denied that Father abused them, but said that he caused problems in
the home whenever he was drunk by being verbally abusive toward Mother. Both Mother and the children often stayed at
the maternal grandmother’s home when Father was drinking.
On October 2, 2010, Father was arrested again for violating the restraining
order. A few days later, on October 7, 2010, he made another attempt to enter the family home. After Mother locked all the doors, Father
walked around the home looking for an open window and yelled obscenities at
Mother when he was unable to get in. He
left the area before the police arrived, but returned a short time later. Father was then arrested and taken back to
jail. On October 8, 2010, the DCFS detained the children from Father and released them to
Mother. The DCFS thereafter filed a
section 300 petition on the children’s behalf, alleging domestic violence and
alcohol abuse by Father and a failure to protect by Mother.
On October 14, 2010, the juvenile
court held a detention hearing. Father
was in county jail at the time and was not transported to court for the
hearing. The court ordered that the
children be detained from Father and allowed to remain with Mother as long as
Father did not reside in the family home.
The court also ordered an arraignment hearing for Father. On October 19, 2010,
Father was transported to court, appointed an attorney, and arraigned on the
section 300 petition. At that time, the
court made an order for Father to be transported to court for a pretrial
resolution conference on November 22, 2010.
II.
Jurisdiction and Disposition
Hearing
For its
Jurisdiction/Disposition report, the DCFS conducted further interviews with
Mother and the children. Mother reported
that, during the August 2010 incident, Father hit her once in the face with an
open hand as they were arguing in the living room. The children were in another room at the time
and heard the argument, but did not see Father hit Mother. In the past, Father had pushed Mother when
they were alone and Father was under the influence of alcohol. Mother stated that Father was a great husband
and father when he was sober and that she did not believe he would harm the
children. Mother also said that she
wanted the children to maintain contact with Father while he was incarcerated,
but she did not intend to resume her relationship with him until she knew he
could remain sober. In their interviews
with the DCFS, all three children denied that Father ever physically abused
them. They had heard Father yell at
Mother in the past, but they never saw any physical violence between them. The children also expressed that they had a
good relationship with Father and enjoyed their time with him when he was
sober. Both Mother and the children
indicated that they wanted Father to receive treatment for his alcohol abuse
before he returned home.
Father was not
interviewed by the DCFS for the Jurisdiction/Disposition report. According to the report, on November 15, 2010, Father was sentenced to three years in state prison following a
conviction for felony stalking in violation of Penal Code section 646.9,
subdivision (b). Father was in county
jail and awaiting transfer to a state prison facility. The DCFS recommended that the children be
declared dependents of the juvenile court, that Mother be provided with family
maintenance services including parenting and domestic violence education, and
that Father be provided with family reunification services including an alcohol
rehabilitation program, on-demand drug and alcohol testing, and parenting and
domestic violence education.
At the November 22, 2010 pretrial resolution conference, Father was present in court
and represented by counsel. The court
decided to continue the matter for a supplemental report on the DCFS’s
interview with Father, which had been conducted that morning. During the hearing, Father’s attorney noted
that Father had not received a copy of the DCFS’s Jurisdiction/Disposition
report.
paperwork he had received, he wanted to be present at the next hearing. The court ordered that Father be transported
to court for the upcoming jurisdiction hearing on January 12, 2011.
In its
supplemental report, the DCFS summarized its interview with Father. Father denied any history of domestic
violence against Mother. He stated that
there were some conflicts in their marriage due to his unemployment and his
belief that a male neighbor was trying to have a relationship with Mother. However, he denied that he hit Mother and did
not understand why there was a restraining order against him. Father admitted that he drank heavily in the
past and had been arrested for some alcohol-related offenses. He described himself as a functioning
alcoholic and insisted that his alcohol abuse only affected him and not his
family. Father also stated that he
believed the restraining order should be lifted because he never hurt
anyone. The DCFS continued to recommend
that Father be offered family reunification services.
On January 12, 2011, the juvenile court continued the jurisdiction hearing because
Father was not present. Father’s
attorney stated that she had not yet spoken to Father about the supplemental
report and did not know if he had been transferred to state prison. The court ordered Father’s attorney to advise
Father that the court did not intend to offer him any family reunification
services because the children had been placed with Mother, and to determine
whether the attorney was authorized to act on Father’s behalf. The court also issued a statewide removal
order for Father to be transported to court for the continued jurisdiction
hearing on February
24, 2011.
The DCFS thereafter prepared a removal order for Father from North Kern
State Prison. However, the statewide
tracking sheet that was returned indicated that Father was at the Substance
Abuse Treatment Facility in Corcoran State Prison and that the removal order
needed to be resubmitted.
On February 24, 2011, the juvenile court again continued the jurisdiction hearing
because Father was not present. Father’s
attorney stated that Father had sent her a letter requesting that he be present
for the hearing and that she was not authorized to proceed in his absence. The juvenile court stated that it would make one
more attempt to bring Father to court for the jurisdiction hearing, but
instructed Father’s attorney to inform Father that the court could not keep
continuing the case for his presence.
The court issued another statewide removal order for Father to be
transported to court for the continued jurisdiction hearing on April 11, 2011. For reasons that are not
clear from the record, the DCFS once again prepared a removal order for Father
from North Kern State Prison. The
statewide tracking sheet that was returned again stated that Father was at the
Substance Abuse Treatment Facility in Corcoran State Prison and that the
removal order needed to be resubmitted.
On April 11, 2011, the juvenile court held the jurisdiction and disposition hearing
in Father’s absence. At the start of the
hearing, the court asked Father’s attorney whether Father had been given notice
of the hearing by counsel. Father’s
attorney confirmed that their office had been in contact with Father, but asked
for a continuance so that Father could be transferred to court for the
hearing. The court denied the request
for a continuance, noting that multiple attempts had been made to bring Father
to court but none had resulted in his presence.
Proceeding with
adjudication, the court admitted into evidence each of the prior reports filed
by the DCFS. The court also accepted
Mother’s waiver of rights and agreement to submit on the basis of the
reports. Father’s attorney argued that
the section 300 petition should be dismissed because the children did not
personally witness any domestic violence between the parents and there was no
nexus between Father’s alcohol abuse and any risk of harm to the children. Both counsel for the DCFS and counsel for the
children argued that the petition should be sustained based on Father’s history
of domestic violence and alcohol abuse as well as his repeated violations of
the restraining order. The court
sustained an amended petition pursuant to section 300, subdivision (b), based
on findings that Father had engaged in domestic violence against Mother in
August 2010, had been arrested and charged with violating a restraining order
in October 2010, and had an ongoing history of alcohol abuse which rendered him
incapable of providing regular care for the children.
Turning to disposition, the juvenile court ordered that the children
be removed from the custody of Father and remain in the home of Mother subject
to court supervision. The court also
directed the DCFS to provide family maintenance services to Mother including
parenting education and domestic violence counseling, but denied family
reunification services to Father under section 361.5, subdivision (e)(1). The court noted that Father was not entitled
to reunification services because the children were in the care and custody of
Mother. The court also noted that
Father’s incarceration time would exceed the statutory period for reunification
services and that Mother indicated she did not intend on reuniting with Father
after his incarceration ended. The court
did grant Father monitored visitation with the children after he was
released. A status review hearing was
set for September 29, 2011.
III.
September 29, 2011 Status
Review Hearing
In its status
review report for the September 29, 2011 hearing, the DCFS stated that the
children appeared to be healthy, happy, and safe in Mother’s care. She was actively involved in the children’s
lives and able to ensure that all of their educational and medical needs were
being met. Mother was participating in a
domestic violence program and recently had enrolled in a parenting education
program. Neither Mother nor the children
were interested in individual counseling.
Father was still incarcerated at the Corcoran State Prison and had not
had any contact with the children. On
September 11, 2011, Father sent a letter to the DCFS stating that he had
completed a substance abuse program and was the class Valedictorian. He received a six-week reduction in his
sentence for completing the course and he believed that it gave him a new
perspective on life. Father also had
completed an office services course which reduced his sentence by six
weeks. He reported that his anticipated
release date was January 15 or 16, 2012.
Father further stated that he was participating in weekly domestic
violence and anger management classes and that he felt he was gaining knowledge
so that he could be a better person for his family. In its report, the DCFS recommended that the
juvenile court continue its jurisdiction for another three months to allow
Mother to complete her court-ordered programs and address case issues.
On September 9,
2011, Father was served with a written notice of the upcoming status review
hearing which stated that the DCFS was not recommending any change in orders,
services, placement, custody, or status.
The record does not reflect whether a copy of the report was served on
the parties, but does show that the report was not signed by the social worker
until September 22, 2011.
On September 29,
2011, the juvenile court held the status review hearing. Father was not present in court, but was
represented by counsel. Father’s
attorney requested a continuance on the grounds that Father had asked to
personally attend every hearing and had not been timely served with a copy of
the DCFS’s status review report although he was given notice of the hearing
date. The court denied the request for a
continuance because Father had received timely notice of the hearing and he had
not been granted any family reunification services. The court ordered continued supervision of
the children and set the matter for a further status review hearing on January
4, 2012 to address the termination of jurisdiction. The court advised Father’s attorney to contact
Father before the next hearing date because the court likely would grant Mother
sole legal and physical custody of the children at that time with monitored
visitation for Father. Father’s attorney
asked that Father be transported to court for the next status review hearing,
but the court denied the request.
On October 3, 2011, Father filed his first notice of appeal,
challenging all of the prior findings and orders of the juvenile court.
IV.
January 4, 2012 Status Review
Hearing
In its status
review report for the January 4, 2012 hearing, the DCFS informed the court that
Mother continued to provide a stable, safe, and loving home for the
children. Mother also continued to
comply with her court-ordered case plan by completing a parenting education program
and participating in a domestic violence program. Father remained incarcerated at the Corcoran
State Prison where he had no contact with the children. On September 28, 2011, Father sent a letter
to the DCFS documenting his progress in various programs, including a
certificate of participation in a drug and alcohol education program, a
certificate of completion of an office services and computer technology
program, and a certificate of completion of a 90-day substance abuse treatment
program. In its report, the DCFS
recommended that the juvenile court terminate its jurisdiction and issue a
family law order granting Mother sole legal and physical custody of the
children and granting Father monitored visitation. The DCFS also recommended that Father’s visitation
not be subject to modification until he completed an anger management and
domestic violence program.
On December 8,
2011, Father was served with a written notice of the upcoming status review
hearing which stated that the DCFS was recommending termination of jurisdiction
over the children. A copy of the DCFS’s
status review report was mailed to the parties on December 23, 2011.
On January 4,
2012, the juvenile court held the status review hearing. Father was not present in court, but was
represented by counsel. Father’s attorney
requested a continuance and a statewide removal order for Father because Father
had indicated that he wanted to be present for all hearings. Father’s attorney also argued that a
continuance should be granted because the DCFS’s status review report had not
been mailed to Father 15 days before the hearing as required by section
364.05. In support of the request, the
attorney reasoned that, although Father had not been offered reunification
services, his parental rights would be impacted by an order granting Mother
sole legal and physical custody of the children. However, when asked by the court, the
attorney could not identify any portion of the proposed orders that Father
would contest if he were present. The
court agreed that the DCFS’s report had not been timely served, but denied the
request for a continuance and removal order because Father’s presence at the
hearing would not change any of its findings or orders.
The juvenile
court proceeded to terminate its jurisdiction over the children. The court ordered that Mother be granted sole
legal and physical custody of the children and that Father be granted weekly
monitored visitation with the children to be supervised by a professional
or mutually agreed upon monitor.
However, because the DCFS’s status review report had not been timely
served on Father, the court decided to stay its orders for a nine-day period
pending receipt of a family law custody order to cure the defect in service of
the report. The matter was therefore
continued to January 13, 2012. On that
date, the family law custody order was signed and filed by the juvenile court
and its jurisdiction over the children was terminated.
On February 16, 2012, Father filed a second notice of appeal,
challenging the juvenile court’s findings and orders from the January 4, 2012
and January 13, 2012 hearings.
I.
Failure to Ensure Father’s
Presence at Jurisdiction and Disposition Hearing
Father first
contends that the juvenile court violated his constitutional and statutory
rights to personally attend the jurisdiction and disposition hearing by failing
to ensure that Father was transported from prison to court for the hearing
pursuant to Penal Code section 2625, subdivision (d).
the statutory requirements of Penal Code section 2625 by proceeding with the
jurisdiction and disposition hearing in Father’s absence, but that such error
was harmless.
Penal Code
section 2625 requires a juvenile court to order an incarcerated parent’s
temporary removal and production before the court under certain
circumstances. (In re Jesusa V. (2004) 32 Cal.4th 588, 599.) Subdivision (d) of the statute provides, in
pertinent part, as follows: “Upon
receipt by the court of a statement from the prisoner or his or her
attorney indicating the prisoner’s desire to be present during the court’s
proceedings, the court shall issue an order for the temporary removal of the
prisoner from the institution, and for the prisoner’s production before the
court. . . . [N]o petition to adjudge the child of a prisoner a dependent child
of the court pursuant to subdivision (a), (b), (c), (d), (e), (f), (i), or (j)
of Section 300 of the Welfare and Institutions Code may be adjudicated
without the physical presence of the prisoner or the prisoner’s attorney,
unless the court has before it a knowing waiver of the right of physical
presence. . . .†(Pen. Code, § 2625,
subd. (d).) Absent such a waiver, the
statute requires the presence of both the prisoner and the prisoner’s attorney
at a jurisdiction or disposition hearing.
(In re Jesusa V.,
369, 385.)
Although an
incarcerated parent has a right under Penal Code section 2625 to be present at
a jurisdiction or disposition hearing, a violation of that statutory right does
not, in and of itself, establish a denial of the constitutional right to due
process. (In re Jesusa V., supra,
32 Cal.4th at pp. 625-626.) Rather, the
due process rights of an incarcerated parent are adequately protected where, as
here, the parent is represented by counsel at the hearing. (Ibid.;
see also D.E. v. Superior Court
(2003) 111 Cal.App.4th 502, 513 [“Conducting a dispositional hearing in the
absence of an incarcerated parent who has expressed a desire to be present may
violate a statutory right, but not a due process right.â€].) Moreover, any violation of an incarcerated
parent’s right to be present at a dependency hearing is subject to a harmless
error analysis. (In re Jesusa V., supra,
at p. 625 [“[W]e have regularly applied a harmless-error analysis when a
defendant has been involuntarily absent from a criminal trial. [Citations.] We
do not believe the Legislature intended a different result in the analogous
circumstance here, when a prisoner is involuntarily absent from a dependency
proceeding.â€].) Under the “familiar
harmless-error test,†reversal is proper only if it is reasonably probable that
a result more favorable to the appellant would have been reached in the absence
of the error. (Ibid.; see also People v.
Watson (1956) 46 Cal.2d 818, 836.)
In this case,
Father’s attorney informed the juvenile court of Father’s desire to be present
at the jurisdiction and disposition hearing.
As the DCFS concedes, the juvenile court’s decision to proceed with the
adjudication and disposition of the section 300 petition in Father’s absence
constituted a violation of Penal Code section 2625. However, the juvenile court’s error in
failing to ensure Father’s presence at the hearing was harmless because it is
not reasonably probable that the result would have been more favorable to
Father if he had personally attended the proceeding. Father argues that his presence at the
hearing was necessary because his attorney did not have the authority to
cross-examine witnesses or present evidence on Father’s behalf. Father also asserts that, if he had been
present in court, he would have been able to provide testimony that his alleged
conduct did not pose a risk of harm to the children and that it was in the
children’s best interests for Father to receive family reunification
services. Yet Father fails to explain
why his attorney lacked the authority to call witnesses or present other
evidence in Father’s absence, but was permitted to argue on his behalf for the
dismissal of the section 300 petition and the granting of family reunification
services. Furthermore, beyond his
anticipated release date and the fact of his completion of classes, Father
fails to identify what specific testimony or evidence he could have offered at
the hearing that would have supported a different outcome in this case.
On the other
hand, there was strong evidence to support the juvenile court’s jurisdictional
finding that Father had engaged in acts of domestic violence against Mother
which posed a substantial risk of harm to the children. In August 2010, Father struck Mother in the
face during an altercation in the family home.
The children were present in the home and were aware that their parents
were having an altercation. In the past,
Father also pushed Mother and was arrested for spousal battery. Notwithstanding the issuance of a restraining
order in August 2010 prohibiting Father from contacting Mother, Father refused
to stay away from Mother and was arrested multiple times in September and
October 2010 for violating the terms of the restraining order. Indeed, Father’s repeated violations of the
restraining order culminated with him being convicted of felony stalking and
sentenced to a three-year prison term while this dependency case was pending.
There was also
compelling evidence to support the juvenile court’s jurisdictional finding that
Father’s alcohol abuse rendered him incapable of providing regular care to the
children. Each family member interviewed
by the DCFS confirmed that Father drank to excess and was an alcoholic. They further disclosed that Father was
verbally abusive toward Mother when he was drunk and that Mother and the
children often had to leave the family home and stay with the maternal
grandmother because of Father’s drinking.
Father’s acts of physical violence against Mother, including the August
2010 incident, also occurred while Father was intoxicated. When the DCFS initially interviewed Father
about the domestic violence allegations, Father appeared to be under the
influence of alcohol. In a subsequent
interview with the DCFS, Father attempted to minimize the detrimental impact of
his drinking on the children and insisted that his alcohol abuse
only affected him, not his family.
There is nothing in the record to suggest that Father’s testimony at the
jurisdiction hearing could have refuted the overwhelming evidence showing that
his alcohol abuse posed a substantial risk of harm to the children.
With respect to
the juvenile court’s disposition order, it is not reasonably probable that
Father would have been granted family reunification services if he had been
present at the hearing. Under section
361.5, subdivision (e)(1), reunification services generally must be offered to
an incarcerated parent unless the juvenile court finds that such services would
be detrimental to the child. (
1339, 1344.) However, section 361.5’s
mandate to provide reunification services absent specified exceptions only
applies in cases where the child is placed in out-of-home care, and not where
the child is placed with a custodial parent.
(See § 16507, subd. (b) [“[f]amily reunification services shall only be
provided when a child has been placed in out-of-home care, or is in the
care of a previously non-custodial parent under the supervision of the juvenile
courtâ€]; In re Pedro Z. (2010) 190
Cal.App.4th 12, 19 [§ 361.5’s provision for family reunification services
“does not apply when, at the disposition hearing, a child does not enter
foster care, but is returned to a parentâ€].)
As the juvenile court noted at the disposition hearing, because the
children had remained in the care and custody of Mother at all times,
Father was not entitled to reunification services.
Even if Father
had been eligible to receive family reunification services under section 361.5,
the juvenile court acted within its discretion in finding that such services
would be detrimental to the children. As
discussed, during the pendency of this case, Father was convicted of felony
stalking based on his repeated violations of the restraining order and was
sentenced to a three-year term in state prison.
In addition, both Mother and the children informed the DCFS that they
did not want Father to live with them in the family home because of his alcohol
abuse. Bryce specifically stated that he
did not want Father in the home because he was afraid that Father would hurt
Mother or the children. Lucas similarly
related that Father’s alcoholism caused trouble for the family and that the
children were happy when Father was in jail because they did not have to see
him drunk. Ethan likewise reported that
he did not want Father in the home and was glad when Father left. Prior to denying reunification services for
Father, the juvenile court also confirmed with Mother that she did not intend
on reuniting with Father once he was released from prison. Under these circumstances, Father cannot show
how his presence at the hearing would have resulted in a more favorable
disposition.
In sum, it is not reasonably probable that the outcome of the
jurisdiction and disposition hearing would have been different if Father had
been transported to court for the hearing as required by Penal Code section
2625. The juvenile court’s statutory
error in failing to continue the hearing to ensure Father’s presence was
therefore harmless.
II.
Denial of Requests to Continue
Status Review Hearings
Father also
challenges the juvenile court’s denial of his requests to continue the two
status review hearings held on September 29, 2011 and January 4, 2012. Father contends that there was good cause for
a continuance of each hearing because the DCFS failed to timely serve Father
with its status review reports in accordance with section 364.05. Father also claims that the juvenile court’s
denial of a continuance deprived him of a meaningful opportunity to
discuss the contents of the DCFS’s reports with his attorney and to advise the
court of his current status and progress in addressing case issues. We conclude that Father did not suffer any
prejudice as a result of the DCFS’s failure to timely serve the status review
reports, and thus, the trial court did not abuse its discretion in denying
Father’s requests for a continuance.
Section 352 is
the primary statute governing continuances in dependency proceedings. (Renee
S. v. Superior Court (1999) 76 Cal.App.4th 187, 194.) It states that the juvenile court may
continue a dependency hearing upon a showing of good cause provided that the
continuance is not contrary to the interest of the minor. (§ 352, subd. (a).) In considering the minor’s interests, the
court must “give substantial weight to a minor’s need for prompt resolution of
his or her custody status, the need to provide children with stable
environments, and the damage to a minor of prolonged temporary
placements.†(Ibid.) A juvenile court’s
denial of a request for a continuance will not be overturned on appeal absent a
showing of an abuse of discretion. (
166, 180; In re Ninfa S. (1998) 62
Cal.App.4th 808, 811.)
Section 364 is the primary statute governing status review hearings
when a child is not removed from parental
custody. Subdivision (b) of the
statute provides that, at least 10 calendar days prior to the hearing, “the
social worker shall file a supplemental report with the court describing the
services offered to the family and the progress made by the family in
eliminating the conditions or factors requiring court supervision.†(§ 364, subd. (b).) Section 364.05 states that a copy of the
report “shall be provided to all parties at least 10 calendar days prior to the
hearing,†which “may be accomplished by mailing the report at least 15 calendar
days prior to the hearing.†(§
364.05.) It further provides that “[t]he
court shall grant a reasonable continuance, not to exceed 10 calendar days,
upon request by any party or his or her counsel on the ground that the report
was not provided at least 10 calendar days prior to the hearing as required by
this section, unless . . . the court finds that the party’s ability to proceed
at the hearing is not prejudiced by the lack of timely service of the
report.†(Ibid.) Father argues that
the DCFS failed to comply with section 364.05 because it did not mail either of
its status review reports at least 15 days before the hearing, and that the
lack of timely service warranted a continuance.
A.
September 29, 2011 Hearing
With respect to
the September 29, 2011 status review hearing, the record reflects that the DCFS
timely served Father with a written notice of the hearing on September 9,
2011. The notice provided that the DCFS
was not recommending any change in orders, services, placement, custody, or
status, but it did not include a copy of the status review report. The DCFS filed its report with the juvenile
court on the date of the hearing, but the record does not reflect whether it
served a copy of the report on Father, and if so, when the copy was
served. However, in light of the fact
that the report was not signed by the social worker until September 22, 2012,
it does not appear that the report was mailed to Father at least 15 calendar
days before the hearing as required by section 364.05.
Although the
DCFS failed to timely serve Father with a copy of the status review report for
September 29, 2011 hearing, the error was harmless. As reflected in the timely served notice of
the hearing, the DCFS was not recommending any changes to the juvenile court’s
orders in its report. Instead, the DCFS
was recommending that the court continue its jurisdiction over the children for
another three months to allow Mother to complete her court-ordered
programs. Because Father was still
incarcerated at the time of the hearing and had not been granted any family
reunification services, the DCFS’s limited recommendation of continued court
supervision for a three-month period did not adversely affect Father’s parental
rights.
Father nevertheless asserts that a brief continuance of the
September 29, 2011 hearing was warranted so that his attorney could confirm
Father’s anticipated release date and arrange for the next status review
hearing to be scheduled after Father’s release.
However, unlike the jurisdiction and disposition hearing, Father did not
have a statutory right to be present at the status review hearings held during
his period of incarceration, and the juvenile court was not required to delay
any such review hearings pending Father’s release from prison. (In re
Marcos G., supra, 182 Cal.App.4th
at p. 386 [“[O]nly in proceedings to adjudicate a child of a prisoner a
dependent of the juvenile court or to terminate parental rights must a court
order production of a prisoner for the hearing.
For all other proceedings, the trial court has discretion whether to
order removal from the institution of a prisoner-parentâ€].) Considering that the juvenile court did not
modify any of its prior orders at the September 29, 2011 hearing but merely
continued its dependency jurisdiction for an additional three months, Father
cannot show that he was prejudiced by the lack of timely service of the DCFS’s
status review report.
B.
January 4, 2012 Hearing
With respect to the January 4, 2012 status review
hearing, the record reflects that the DCFS timely served Father with a written
notice of the hearing on December 8, 2011.
The notice provided that the DCFS was recommending the termination of
jurisdiction and issuance of a family law order, but it did not include a copy
of the status review report. The DCFS
mailed the report to the parties on December 23, 2011, 12 calendar days before
the scheduled hearing. Accordingly,
service of the report did not comply with the statutory notice period required by
section 364.05.
The DCFS’s failure to timely serve Father with a
copy of the status review report for the January 4, 2012 hearing was also
harmless error. The record reflects that
the juvenile court cured any defect in the service of the report by staying the
effective date of its final orders for nine days following the
hearing. As a result of the stay, the
orders terminating jurisdiction over the children and granting sole legal and
physical custody to Mother with monitored visitation to Father did not take
effect until January 13, 2012, 21 days after service of the report.
Father reasons that the issuance of a nine-day stay was not sufficient
time for his attorney to discuss the court’s proposed orders with him and to
obtain any additional information about his release date and progress in
addressing case issues. However, at the
September 29, 2012 hearing, the juvenile court specifically directed Father’s
attorney to contact Father prior to the next status review hearing and to
notify him of the court’s intent to terminate its jurisdiction and grant Mother
sole legal and physical custody of the children at that time. Father thus had more than three months to
confer with his attorney about the proposed custody order and to present the
court with any further information that might be relevant to its final decision.
Moreover,
as the juvenile court noted in denying the request for a continuance of the
January 4, 2012 hearing, Father’s attorney could not identify which portions of
the proposed custody or visitation orders Father would contest if a continuance
were granted. As the court further
observed, Father’s mere presence at a continued hearing would not change any of
its findings or orders; the
court did not need to hold multiple hearings to determine that the termination
of jurisdiction with a family law custody order was proper. Under these circumstances, Father cannot show
that he was prejudiced by the DCFS’s three-day delay in serving a copy of its
status review report.
C.
Reversal Is Not Required
Finally, we
reject Father’s argument that the DCFS’s failure to timely serve the status
review reports in accordance with section 364.05 constitutes structural error
requiring automatic reversal. In support
of this argument, Father cites to Judith
P. v. Superior Court (2002) 102 Cal.App.4th 535, 553-558, where the appellate
court relied heavily on criminal cases in holding that non-compliance with the
notice requirements of section 361.21 was structural error and thus reversible
per se. However, the California Supreme
Court has cautioned against using the structural error doctrine in dependency
cases. (See In re James F. (2008) 42 Cal.4th 901, 915-916 [“[The] significant
differences between criminal proceedings and dependency proceedings provide
reason to question whether the structural error doctrine that has been established
for certain errors in criminal proceedings should be imported wholesale, or
unthinkingly, into the quite different context of dependency cases.â€].) Instead, the Supreme Court has held that, in
the dependency context, “[i]f the outcome of a proceeding has not been
affected, denial of a right to notice and a hearing may be deemed harmless and
reversal is not required.†(
1326-1327 [declining to apply Judith P.’s
structural error analysis to claim of failure to give notice of dependency
proceeding]; In re Sabrina H. (2007)
149 Cal.App.4th 1403, 1419-1420 [same].)
In this case, there is nothing in the record to support a conclusion
that the outcome of the dependency proceedings would have been different if
Father had been timely served with copies of the DCFS’s status review reports
or allowed to be present at the two status review hearings. The juvenile court accordingly did not abuse
its discretion in denying Father’s requests for a continuance.
DISPOSITION
The orders of the juvenile court are
affirmed.
ZELON,
J.
We concur:
PERLUSS,
P. J. SEGAL,
J.
name="_ftn1" title="">[1] Unless otherwise
stated, all further statutory references are to the Welfare and Institutions
Code.
name="_ftn2" title="">[2] The family had been
the subject of prior referrals in both Los Angeles and Contra Costa counties
based on Father’s alcohol abuse and domestic violence.
