In re Seth M.
Filed 2/7/12 In re Seth M. CA2/2
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
TWO
In re SETH M., a Person Coming
Under the Juvenile Court Law.
B232967
(Los Angeles
County
Super. Ct.
No. CK30826)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
RICKEY M., Sr.,
Defendant and Appellant.
APPEAL from
orders of the Superior Court
of
County. Timothy R.
Saito, Judge. Reversed and remanded.
Patricia K. Saucier, under
appointment by the Court of Appeal, for Defendant and Appellant.
Andrea
Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Sarah
Vesecky, Deputy County Counsel, for Plaintiff and Respondent.
* * * * * *
Rickey M., Sr. (father) appeals from the juvenile court’s
jurisdiction and disposition orders on
a petition under section 342 of the Welfare and Institutions Code
16). Father contends the juvenile court
abused its discretion in denying his requests for continuances of the
jurisdiction and disposition hearings and violated his
disposition hearing. We agree and
reverse.
FACTUAL AND PROCEDURAL BACKGROUND
This family has a lengthy child
welfare history that includes numerous referrals dating back to 1992. Seth and two of his older siblings, Jasmine
M. (now age 19) and Rickey M., Jr. (now age 18) recently came to the attention
of the Los Angeles County Department of
Children and Family Services (the Department) in January 2009, due to a
referral of neglect.
name="_ftnref2" title="">[2] On January
20, 2009, the Department filed a section 300 petition on behalf of
all three siblings. As sustained, the
petition alleged: “There exists a parent
child conflict between the children Jasmine and Rickey [M.] and father, Rickey
[M., Sr.,] resulting in father calling the children derogatory names and the
children being unwilling to remain in the care of father therefore father is
unable to provide appropriate supervision for the children. Further father was unable to make
arrangements for timely follow-up mental health treatment for Jasmine following
her hospitalization for mental health problems.
Further father was unable to provide appropriate grief counseling for
Jasmine, Rickey and Seth [M.] following the death of their mother. Father’s use of derogatory name calling and
his inability to provide appropriate mental health counseling for the children
places the children at risk of harm.â€
The children were detained and placed in foster care.
Pursuant to mediation, the parties
reached agreement with respect to jurisdiction and disposition. The children were to remain in foster care and
have monitored visits with father, who would receive family reunification
services, and participate in a parenting
program, individual and conjoint counseling, and a random drug testing
program with eight consecutive clean tests.
For the
six-month review hearing on July 31, 2009, the Department reported that father
had completed his parenting classes, substance abuse testing and individual
counseling. Although Jasmine and Rickey
did not wish to visit father, Seth was enjoying weekly visits with father. Father was working and not present at the
hearing, in which the court found father was in full compliance with his case
plan, and ordered the Department to provide further
the court ordered the children to remain suitably placed.
For the
12-month review hearing on January 29, 2010, the Department reported that Seth
was doing well academically, was on the honor roll, had placed sixth in a local
skateboarding competition, and was visiting father on a weekly basis. Seth was receiving individual therapy, and
his therapist reported that he had met his treatment goals and she planned to
terminate services. None of the children
wanted to reunify with father at that time.
Father was in agreement with the children remaining suitably placed,
stating that he needed more time to work on his relationships with them and to
find a legal guardian for Seth. The Department
recommended termination of reunification services.
Father was
not present at the January 29, 2010 review hearing. His attorney informed the court that father
had called her that morning reporting he was sick and that he was requesting a
continuance and a contested hearing. The
court continued the matter to February 24, 2010 for a contested hearing. Father was not present at the contested
hearing. His attorney requested a
continuance which the court denied, noting that father had a history of failing
to attend hearings. The court proceeded
with the review hearing. Rickey and
Jasmine read statements and testified.
Rickey testified that he had seen father use drugs, and Jasmine
testified that father had physically abused her, she did not want to live with
him, and she did not feel it was safe for her brothers to live with father
either. Seth also made a statement after
the close of evidence, to which the court gave no evidentiary value. Seth stated he had not done well academically
while living with father due to all the commotion, violence and emotional abuse
in the house; father was “not an adult†but “a little kid,†was “very
manipulative,†and “not really responsibleâ€; and Seth did not need someone like
that in his life.
Over the
Department’s objection, the court offered father further reunification services
because it saw “a glimmer of hope; not a lot, but a glimmer.†The court also ordered that if father “truly
want[ed] to reunify with his children,†he was to participate in random drug
testing, submit to on-demand drug testing, reenroll in individual counseling,
and participate in conjoint counseling once the children’s therapists deemed it
appropriate. The case was calendared for
July 9, 2010 for an 18-month review hearing and a section 366.22 hearing, and
the court instructed father’s attorney to tell father he was required to be
present if he wanted his children returned to him at that time.
By the time
of the 366.22 hearing, Jasmine and Rickey were not on good terms with father
and not visiting him, though Seth wanted to reunify with father. Father was attending individual counseling
and drug and alcohol counseling, and conjoint therapy had been scheduled. At the hearing, the court terminated
reunification services, identified long-term foster care as the permanent plan
for Jasmine and Rickey, returned Seth to father’s care, and ordered the
Department to provide family maintenance services.
The case
was on calendar January 7, 2011 for a section 364 hearing as to Seth. The Department reported Seth had told the
social worker he and father were getting along and he was happy at home. Seth was doing well in school and continued
to skate professionally, earning money and prizes. The social worker learned that father and
Seth had discontinued conjoint therapy after one session; father reported
scheduling conflicts and Seth did not feel they needed the therapy. The social worker was having a difficult time
meeting with them, and had to meet Seth at school in order to make his required
monthly contact. Father was not present
at the hearing and reported to his attorney that his employer would not allow
him time off from work. The juvenile
court stated that while it sounded like everything was going well, it was
difficult to tell. The court set the
matter for a contested hearing on March 10, 2011.
Meanwhile,
on February 1, 2011, the Department detained Seth from father’s care due to a
referral of a physical altercation, in which father reportedly choked Seth and
pushed and shoved him out of the door.
The referral stated that Seth did not want to return to father’s
home. The social worker contacted
Rickey, who stated that Seth had come to see him that morning with a bleeding
hand. Seth told Rickey he pushed father,
who responded by choking him and punching him in the face. Father called the social worker that day,
stating that he had taken Seth’s skateboard from him after they argued about
Seth’s grades and delinquent behavior.
Father reported that Seth used profanities and choked him, father shut
the door on Seth, and Seth smashed the front window. Later the same day, the social worker
interviewed Seth, who appeared distressed and was shaking. Seth stated that father had choked him,
punched him three times in the face and pushed him against a window, causing it
to break. Seth had cuts on two of his
fingers, but no other marks or bruises.
Seth stated that father had been abusive toward him and his siblings
when they were younger and that he was afraid and unwilling to return to father’s
home. Police officers interviewed Seth
and took photographs of his injuries.
The police report documented two small lacerations on his fingers.
On February
4, 2011, the Department filed a section 342 petition on behalf of Seth based on
the alleged “inappropriate physical altercation,†which placed Seth “at risk of
harm.†Father was not present at the
detention hearing. His attorney
represented that he had reported being unable to obtain time off from
work. The court ordered Seth to remain
detained and that father’s visits be monitored.
The court set the jurisdiction and disposition hearing for March 10, and
ordered Seth to be present.
On March 1,
2011, the Department submitted a jurisdiction/disposition report in which the
social worker stated that father had not returned calls or e-mails for the past
week or so, and had not visited Seth or called him to reconcile. At a mediation, all counsel “submitted†to
continuing the case for trial. Father
did not appear at the mediation.
The
jurisdiction and disposition hearing on the section 342 petition took place on
March 10, 2011. Father and Seth were not
present. Father’s attorney asked to
continue the case for another week. She
informed the court that father had e-mailed her a list of dates he would be
available and that he risked losing his job if he missed any work that
week. She also stated that she had
notified the Department’s attorney of father’s request for a continuance
earlier in the week, and that father had sent her a text message that morning
stating that he denied the allegations.
The court denied the request for a continuance, noting that father had
received proper notice and had not appeared at the detention hearing or at the
mediation.
Father’s attorney stated that she
had no exhibits to offer and submitted on the department’s reports. She then stated: “Your Honor, my client indicated in his
communication with me earlier that, similar to what he stated in his phone
interview with [the social worker], that he in no way inappropriately
disciplined his son, pushed his son, was in no way engaged in any kind of
physical altercation with his son. He
asked his son to leave. He wanted to
take his skateboard away from him. And
it was his son that actually became violent and threw the skateboard through
the window from outside when his father told him to leave the house. And there is evidence that we saw in the
detention report that Seth’s hand was bloodied.
And I think it can be inferred from that . . . he in fact
did try to throw his skateboard through a window and cut himself. He was well inclined to do that. My client is adamant that he in no way was
physical with his son.â€
The court stated it did not believe
that Seth would have sustained cuts to his fingers had he thrown a skateboard
through the window. The court sustained
the petition and found Seth to be a person described by section 300,
subdivision (b).
The court
then asked if there was any objection to proceeding to disposition. Father’s attorney responded, “No objection,â€
and then stated, “And I’m sorry, Your Honor.
I will make a legal objection to proceeding to dispo[sition] on behalf
of my client, as he’s indicated he wanted to be here.†A discussion was held off the record. Back on the record, father’s attorney asked
for a contested disposition, stating again that father “was insisting that he
be present.†The court denied the
request, stating that it did not believe there was any basis for a contested
hearing. The court then ordered that
Seth be suitably placed in a planned permanent living arrangement. This appeal followed.
DISCUSSION
Jurisdiction
Hearing
Section 352, subdivision (a)
provides that a court “may continue any hearing†at counsel’s request “only
upon a showing of good cause†and when not “contrary to the interest of the
minor,†and further provides that when considering whether to grant a
continuance the court “shall 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.†We review a juvenile
court’s ruling on a request for a continuance for abuse of discretion. (In re
B.C. (2011) 192 Cal.App.4th 129, 143.)
We agree with father that the
juvenile court abused its discretion in denying his request for a continuance
of the jurisdiction hearing. Father’s
attorney provided the court with good cause for continuing the hearing. She explained that father had informed her
that he would lose his job if he took time off the day of the hearing, and that
he had provided alternative available dates.
She then contacted the Department’s attorney earlier in the week to ask
about another date. Thus, father and his
attorney were not shirking their responsibilities. In these difficult economic times, it was
neither fair nor realistic for the court to ignore that father was threatened
with the loss of his job if he appeared in court on March 10, 2011. Furthermore, given that it had only been a
month since the section 342 petition was filed, there was ample time for the
juvenile court to grant a brief continuance to accommodate father’s work
schedule. Indeed, father’s attorney was
only seeking a continuance for a week or so.
Moreover, in denying the requested
continuance, the court never addressed Seth’s best interests. Instead, the court focused on the facts that
father had received proper notice and had failed to appear at the detention and
mediation hearings. We agree with father
that the court appeared to be punishing him for his past failures to attend
hearings. But the purpose of dependency
proceedings is to protect children and serve their best interests, not to
punish parents. (In re B.T. (2011) 193 Cal.App.4th 685, 696.)
Additionally, the allegations of the
section 342 petition were limited to a single incident involving a physical
altercation between father and son, each of whom gave conflicting descriptions
of the event. In other words, it was a
question of he said versus he said. It was therefore particularly critical for
father to be present to provide his side of the story.
The case is remanded for a new
jurisdiction hearing on the section 342 petition so that father may be present.
Disposition
Hearing
Father contends the juvenile court
erred in denying his request for a continuance of the disposition hearing and
violated his due process right in
denying his request that it be contested.
We agree.
Section 358 mandated a 30-day
continuance of the disposition hearing.
Section 358, subdivision (a)(3) provides: “If the social worker is alleging that
subdivision (b) of Section 361.5 is applicable, the court shall continue the proceedings
for a period not to exceed 30 days. The
social worker shall notify each parent of the content of subdivision (b) of
Section 361.5 and shall inform each parent that if the court does not order
reunification a permanency planning hearing will be held, and that his or her
parental rights may be terminated within the timeframes specified by law.†Section 361.5 deals with the Department’s
provision of family reunification services, and subdivision (b) specifies
15 instances in which reunification services need not be provided.
In the report for the March 10,
2011 jurisdiction and disposition hearing, the social worker stated the
following in the “Recommendationâ€
section: “Non-Reunification Issues (WIC 361.5)
[¶] The Department of
Children and Family Services recommends no Family Reunification Services to
father [] due to the family’s noncompliance with counseling and father’s recent
physical abuse of Seth, DCFS concludes that the risk level is very high for
future abuse.â€
We reject the Department’s argument
that section 358 did not mandate a continuance because the report did not
expressly reference subdivision (
recommending termination of reunification services because father had already
exhausted his services, and not because he fit within one of the 15 specified statutory
instances for not granting services. The
Department asserts “[t]he fact father had exhausted his reunification services
was no secret,†and points out that during the March 10, 2011 hearing the
Department’s attorney stated that father was not being offered reunification
services because he had been receiving them for well over 18 months. But the social worker made no mention of
exhaustion of reunification services as the basis for the recommendation not to
offer any more services. Instead, the
social worker referred to noncompliance with counseling and the recent physical
abuse which, as father asserts, appears to be a reference more to the fact that
father had previously received services for Seth’s siblings, and had not made a
reasonable effort to treat the problems that led to the removal of Seth’s
siblings. (§ 261.5, subd. (b)(10).)
We also agree with father that
the juvenile court denied his right to due process by denying his request for a
contested disposition hearing. “A
parent’s interest in the companionship, care, custody and management of his
children is a compelling one, ranked among the most basic of civil rights. [Citation.]â€
(In re Marilyn H. (1993) 5
Cal.4th 295, 306.) “Before the state can
deprive a parent of this interest, it must provide the parent with a hearing
and an opportunity to be heard.†(
668.) In dependency proceedings, parties
have a due process right to cross-examine and confront witnesses, and to use
the process of the court to bring in witnesses and to present evidence. (In re
Malinda S. (1990) 51 Cal.3d 368, 383; In
re Dolly D. (1995) 41 Cal.App.4th 440, 446; In re Amy M. (1991) 232 Cal.App.3d 849, 864; Cal. Rules of Court,
rule 5.534(k).) We determine whether a
deprivation of due process was harmless beyond a reasonable doubt. (In re
Dolly D., supra, at p. 446; In re
Thomas R. (2006) 145 Cal.App.4th 726, 734.)
The
juvenile court offered no explanation for its denial of father’s request for a
contested disposition, other than to state that it did not think there was a
basis for a contested disposition. All
we have is the court’s earlier comments that father had failed to appear at
prior hearings. But “[t]he consequences
of a parent’s failure to appear at a scheduled hearing or conference
. . . do not include the deprivation of the due process right to
confront and cross-examine witnesses.†(
p. 446.)
The
Department argues that father was not deprived of due process because his
attorney did not represent that she had affirmative evidence to present or that
she needed to cross-examine witnesses.
But in this case the disposition hearing was a critical hearing akin to
a review hearing because Seth was removed from father’s care and ordered placed
in a planned permanent placement. In
255, 266, the court stated: “As a matter
of statutory construction and constitutional due process, we conclude the
juvenile court cannot require a party to a review hearing to tender an offer of
proof as a condition to obtaining a contested hearing.â€
“The
essential characteristic of due process in the statutory dependency scheme is
fairness in the procedure employed by the state to adjudicate a parent’s
rights. [Citation.] Due process also connotes a ‘hearing
appropriate to the nature of the case.’
(Mullane v. Central Hanover Tr. Co.
(1950) 339 U.S. 306, 313.)
. . . [D]ue process is a flexible concept, one whose
application depends on the circumstances presented.†(In re
James Q., supra, 81
Cal.App.4th at p. 265.)
Here, where
the juvenile court removed Seth from father’s care based on a physical
altercation between them to which there were no other direct witnesses, father
should have been given the opportunity to be heard in a meaningful manner, to
present evidence and to cross-examine witnesses. We note the juvenile court had previously
ordered Seth to be present at the March 10, 2011 hearing. But the record does not indicate that he was
present. Under these circumstances, we
cannot conclude that the court’s error in denying father a contested hearing
was harmless beyond a reasonable doubt.
Accordingly,
the case is remanded for a contested disposition hearing on the section 342
petition at which father may be present.
DISPOSITION
The jurisdiction and disposition
orders on the section 342 petition are reversed. The case is remanded for new jurisdiction and
disposition hearings at which father may be present, and the disposition
hearing shall be contested at father’s request.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
DOI TODD
We concur:
____________________________,
P. J.
BOREN
____________________________,
J.
CHAVEZ
statutory references shall be to the Welfare and Institutions Code, unless
otherwise noted.
name="_ftn2" title="">[2] Jasmine
and Rickey, Jr., are not parties to this appeal.
