Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County, Sherri Sobel, Referee. Los Angeles County Super. Ct. No. CK36723
Kimberly A. Knill, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Jacklyn K. Louie, Deputy County Counsel, for Plaintiff and Respondent.
KITCHING, J.
INTRODUCTION
A father appeals from an order adjudicating an order pursuant to Welfare and Institutions Code section 366.26 terminating parental rights to his daughter, Kaylee M. Father claims a violation of his Penal Code section 2625, subdivision (b), right to be present at the section 366.26 hearing. Although it was error for the juvenile court to proceed with that hearing without Father’s presence or his waiver of his right to present, the error was harmless. Father claims the “beneficial relationship” exception of section 366.26, subdivision (c)(1)(A), but that exception required Father to show he maintained regular visitation and contact with the child. For a period of nearly nine months, however, Father had not visited or had any contact with Kaylee. Father has not shown that he could have provided evidence to satisfy the exception. We affirm the order.
Unless otherwise specified, statutes opinion will refer to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL HISTORY
Detention: On March 16, 2005, two-month-old Kaylee M. was detained from her mother, Nichole M. (Mother), who was homeless and had no family. Mother had five other children who had been adopted through the Department of Children and Family Services (DCFS). Kaylee’s father, Steven G. (Father), did not live with Mother; he lived in a recovery home for alcoholics and drug addicts and had 40 days of sobriety. Witnesses saw Mother engaging in a domestic dispute with Father while she had the baby in her arms. Mother handled Kaylee in a reckless, unsafe manner, shaking and swinging her recklessly. At one point Mother nearly dropped Kaylee and caught her by pinning her against a brick wall. When police were called, they observed Mother’s red eyes, slurred speech, and incomprehensible statements. Police officers felt Mother was under the influence, arrested her for assault, and detained Kaylee. The police officers stated that Mother was involved in a domestic violence disturbance in which she was the aggressor. Mother was hostile and uncooperative with law enforcement.
Father informed a DCFS CSW that he had known Mother for five years, was not romantically involved with her at that time, but tried to stay friendly for Kaylee’s sake. Father stated that Mother became homeless three weeks earlier. Father stated that he lived in a recovery house, and after using drugs and alcohol for 15 years and attending the recovery program twice, he had been clean and sober for 40 days. Father stated he would like to take control of and raise Kaylee, live with her paternal grandparents, and continue his drug rehab program. Later, however, Father stated he would like another family member to take custody of Kaylee until he could get his life together.
A physician found Kaylee had no signs of injuries, abuse, or neglect.
A CSW interviewed Mother, who was in a hospital for treatment of a sprained ankle. When Mother asked the CSW who was with Kaylee, she was told that Kaylee was with Father and another CSW. Mother became upset and said she did not want Father with Kaylee and that Father just got out of jail for abusing her. A police officer who escorted Mother to the hospital stated that Mother admitted to him that she had been using crack cocaine and she had used while pregnant with Kaylee.
A CSW assessed the family. Kaylee’s safety was of immediate concern because of suspected child endangerment and neglect by Mother, who still used drugs and had a long history of drug use. Mother’s five other children had been detained and adopted, four of them due to Mother’s drug use. Father had failed to protect Kaylee from Mother’s behavior. Domestic violence between Mother and Father posed a physical and emotional risk to Kaylee. The CSW recommended detention and placement of Kaylee to protect her safety.
On March 21, 2005, the DCFS filed a petition alleging that Kaylee M. was a child described by section 300, subdivisions (a) [serious physical harm], (b) [failure to protect], and (j) [abuse of child’s siblings]. The juvenile court found that a prima facie case was established for detaining Kaylee as a person described by these statutes, ordered temporary placement and custody vested with the DCFS, and ordered Kaylee detained in Shelter Care. The juvenile court found that Steven G. was the declared father. The juvenile court ordered the DCFS to provide family reunification services to Kaylee, Mother, and Father, and ordered monitored visits for Father two times a week, but no visits for Mother until she appeared in court. The matter was set for a pretrial resolution conference on April 19, 2005.
Adjudication and Disposition: For the April 19, 2005, dispositional hearing, the DCFS reported that Kaylee was detained in a foster home. Parental rights had been terminated for Kaylee’s five siblings, Justice M., Liberty M., Semaj M., Maniya M., and Yiale M. Mother and Father both stated that Stephen G. was Kaylee’s father, although Kaylee’s birth certificate gave no name for “father.”
Mother had a criminal history of arrests or convictions for loitering, prostitution, vandalism, possession of a controlled substance, resisting arrest, and battery. Father’s criminal history included arrests and convictions for misdemeanor violation of court order to prevent domestic violence (Pen. Code, § 273.6(a)), felony conviction for battery (Pen. Code, § 243(c); two felony convictions in 1992 and in 1993 for transporting or selling narcotic/controlled substance (Health & Saf. Code, § 11352(a)); and a 1994 revocation of probation and commitment to state prison for four years. Father stated he was on parole until 2006. Father also admitted to spending two years nine months in prison for a 1993 kidnapping conviction.
Father attended the April 19, 2005, hearing, in which the juvenile court adjudicated the petition and sustained allegations that Kaylee was a person described by section 300, subdivision (b): that Mother physically abused two-month-old Kaylee by pinning Kaylee’s body and face against a wall with Mother’s body, shaking Kaylee in the air, and swinging Kaylee around and grabbing her, and Father did not take action to protect the child; that Mother had a five-year history of substance abuse and current cocaine use and alcohol abuse, making Mother incapable of providing regular care for Kaylee, and Mother used illicit drugs while pregnant with Kaylee and two of Kaylee’s siblings were born suffering from a detrimental condition, including a positive toxicology screen for illicit drugs; that Father had a 15-year history of substance abuse, rendering him incapable of providing regular care for Kaylee, and Father had failed to complete two substance abuse rehabilitation programs; that on March 16, 2005, Mother slapped Father’s face and struck him while holding Kaylee in her arms, and on a previous occasion Father pushed Mother; and that on March 16, 2005, Mother was under the influence of alcohol while Kaylee was in her care and could not adequately protect and supervise Kaylee. The juvenile court sustained allegations that Kaylee was a person described by section 300, subdivision (j): that Kaylee’s five siblings were former dependent children of the juvenile court due to Mother’s substance abuse, exposing two of those siblings to illicit drugs at their birth, and that Mother failed to participate in a substance rehabilitation program, failed to comply with court orders, and failed to reunify with Kaylee’s siblings, who received permanent placement adoption services; and that Mother continued to use illicit drugs. The juvenile court dismissed allegations pursuant to section 300, subdivision (a).
The juvenile court found Kaylee was a person described by section 300, subdivisions (b) and (j), declared her a dependent child of the court, and ordered custody taken from Mother and placed with the DCFS for suitable placement.
The juvenile court ordered no family reunification services be provided to Mother. The juvenile court ordered monitored visits for Father twice per week, ordered no contact with Kaylee by Mother pending further court order, and ordered Father to participate in individual counseling (to address issues in the petition, domestic violence, and anger management), drug counseling, and random drug testing. The juvenile court continued the matter to a July 18, 2005, progress hearing, and set an October 18, 2005, permanent plan hearing.
July 18, 2005, Progress Hearing: Father was currently on probation for drug charges. Father had visited Kaylee weekly, and the foster parent described his visits as very positive. Mother had not visited Kaylee since her detention and Mother’s whereabouts were unknown. Father had participated in Bimini Recovery Home since February 10, 2005, and his case manager reported that he participated consistently and completely with the program and was an exemplary resident. Father received certificates of completion for Phases one and two of the program, had participated in weekly anger management classes and individual counseling, and drug tested negatively five times between March 29 and May 25, 2005. Father had also made regular contact with the DCFS to understand what he needed to do to achieve return of custody of Kaylee. He was cooperative and participated in court-ordered programs, although he had yet to complete the full program.
Father did not attend the July 18, 2005, hearing. The juvenile court gave the DCFS discretion to increase Father’s visits in time and duration, and to lift the monitor.
October 28, 2005, Review Hearing: For the review hearing, the DCFS reported that in July 2005, Father stopped visits with Kaylee and stopped attending his drug program, individual counseling, and his weekly anger management classes, Father had not drug tested since June 1, 2005, and had not contacted the CSW to inquire about Kaylee. Father’s whereabouts were unknown.
In the six months she lived with them, Kaylee had bonded with her caregivers, who were very interested in adopting Kaylee. Given Father’s lack of participation in court-ordered programs and lack of visitation with Kaylee since July 2005, the DCFS recommended termination of Father’s family reunification services and the setting of a section 366.26 hearing.
The DCFS reported that on October 4, 2005, Father called the CSW and stated that he had gone to Las Vegas for two months to find a job. The CSW informed him that he needed to begin his court-ordered programs again; Father said he would do so. Father made an appointment to see the CSW on October 11, 2005, but did not appear and had not called the CSW since October 4, 2005.
Father attended the October 28, 2005, hearing. The juvenile court found that Father made significant progress in resolving problems that led to the child’s removal, and demonstrated the capacity and ability to complete the treatment plan and provide for Kaylee’s safety, protection, physical or emotional well-being, and special needs, and ordered another six months of reunification services for Father. The juvenile court informed Father that if he did not reunify with Kaylee and obtain custody of her in the next six months, the juvenile court would set the matter for a permanent plan which would probably include termination of Father’s parental rights. The matter was set for an April 17, 2006, permanent plan hearing.
April 17, 2006, Hearing: After returning from Las Vegas in September 2005, Father again moved into Bimini Sober Living housing, which required him to attend weekly NA/AA meetings, and resumed drug testing, testing negatively on eight dates between October 20, 2005 and March 10, 2006. Father also participated in weekly anger management classes at Bimini Recovery House in Los Angeles. Father resumed monitored visits with Kaylee. He complained that Kaylee was not bonding with him in visits monitored by foster parents because Kaylee stayed with the foster parents during visits. Father’s mother, Wanita G., began monitoring Father’s visits with Kaylee. The foster parents and Wanita G. described Father as very appropriate with Kaylee during visits. Father missed one visit on March 1, 2006, because of business at the DMV. In March 2006, the CSW increased monitored visits from two to four hours. Father now wanted unmonitored or overnight visits. Father, however, lived in a Sober Living home that did not allow children. Father was employed as a truck driver, and was working on obtaining housing and was waiting for an apartment to become available in a building his family owned.
Kaylee appeared bonded with her caregivers. An adoption assessment deemed Kaylee adoptable, and her current caregiver was very interested in adopting her.
The DCFS reported that Father did not appear for a drug test on March 27, 2006. He explained that he tested elsewhere, but had not provided proof of that testing and had not met with the CSW. Father did not respond to the CSW’s letter to Father outlining what he needed to do to comply with court orders.
Father did not attend the April 17, 2006, hearing. The juvenile court observed that there were no reports from Father’s therapist or any other care providers. The juvenile court found Father in substantial compliance with his case plan, and there was a substantial probability of return of Kaylee to him by the 18-month date, five months later. The juvenile court ordered reunification services to be provided to Father for a further five months, until September 18, 2006. The juvenile court advised Father’s attorney to inform him that the juvenile court could consider termination of parental rights at the September 18, 2006, hearing.
September 18, 2006, Hearing: The DCFS reported that the CSW had attempted to contact Father, but had received no response. Father had no contact with the CSW since late April, 2006, and had not provided information that he was attending any court-ordered programs. The CSW received random drug-testing results, showing that Father had not appeared for drug testing on five dates between March 10 and May 30, 2006. Kaylee had no visits or contact with Father since May 2006.
Kaylee was very attached to her foster mother, who was willing to adopt. Kaylee was doing very well in her foster placement. An adoption home study was approved on May 11, 2006. Because Father had no contact with the DCFS, visitation by Father with Kaylee had not occurred in the previous five months, and Kaylee was likely to be adopted if she could not be returned to her parents, the DCFS recommended termination of family reunification services and setting of a section 366.26 hearing.
Father did not attend the September 18, 2006, hearing. In that hearing, the juvenile court found that Father was not in compliance with the case plan, ordered family reunification services terminated for Father, and set the matter for a section 366.26 permanent plan hearing on January 16, 2007, and ordered the Father be personally served with notice of that hearing.
January 16, 2007, Hearing: For the January 16, 2007, hearing, the DCFS reported that Kaylee had no contact with Father (or Mother) in the previous reporting period. The home study for the foster parent’s adoption of Kaylee was approved on May 11, 2006. Kaylee had lived with the foster parent for nearly two years and had become attached to her; they had developed a bonded, loving, parent-child relationship and the foster mother had shown she was very capable of meeting Kaylee’s needs. The foster mother was open to a post-adoption contract agreement with Father, and a referral was made to the Consortium for Children to facilitate such an agreement, but the referral was closed because Father did not respond.
The DCFS attempted to obtain a “State In and Out” order for Father for the January 16, 2007, court date. A court order for Father’s appearance at a hearing affecting a prisoner’s parental rights was filed on January 4, 2007. The request was returned because the California Department of Corrections number for Father was unknown, and that number was required on the court order. The proof of service by the CSW stated that the CSW personally delivered a copy of the notice of hearing under section 366.26 to Father on November 8, 2006, at 1:10 p.m.
Father, who was incarcerated, did not attend the January 16, 2007, hearing. The juvenile court found that notice was given to Father as required by law, but he was not present and had not waived his appearance. The juvenile court continued the matter because of the parents’ failure to appear, ordered the DCFS to give notice of the proceeding to the parents and to prepare and submit a statewide jail removal order for Father, and set the matter for Father’s section 366.26 hearing on February 20, 2007.
February 20, 2007, Hearing: Father did not appear at the February 20, 2007, hearing. The juvenile court denied the request by Father’s attorney for a continuance to have Father appear in court. The juvenile court found that notice was given as required by law on January 16, 2007. The juvenile court found that it was likely that Kaylee would be adopted and there were no section 366.26, subdivision (c) exceptions, and ordered parental rights of Mother and Father terminated.
Father’s Appeal: On February 20, 2007, Father filed a notice of appeal from the February 20, 2007, order terminating parental rights.
ISSUE
Father claims that he had a statutory right to be present at the section 366.26 hearing, and therefore the juvenile court erroneously terminated his parental rights.
DISCUSSION
Father claims that Penal Code section 2625 gave him the right to be present at the section 366.26 hearing. Penal Code section 2625 governs actions affecting a prisoner’s parental rights. Penal Code section 2625, subdivision (b) requires the superior court, in a proceeding brought under section 366.26 which seeks to terminate a prisoner’s parental rights, to “order notice of any court proceeding regarding the proceeding transmitted to the prisoner.” “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.” (Penal Code, § 2625, subd. (d).)
It is not clear that Father has established that Penal Code section 2625 applies to him and governs his parental rights. The March 21, 2005, order states that Father signed a paternity waiver of rights and the juvenile court found him “the declared father.” It is doubtful that Father satisfied the requirements to become a presumed father under Family Code section 7611, as he was not married to Mother, his name did not appear on Kaylee’s birth certificate, and, although he asserted that he was Kaylee’s biological father, he did not receive the child into his home within the meaning of Family Code section 7611, subdivision (d). The juvenile court made no other determination of Kaylee’s paternity. (See In re Jesusa V., (2004) 32 Cal.4th 588, 620; § 316.2; Cal. Rules of Court, rule 5.635.) In the termination of parental rights proceeding, the juvenile court referred to Father as an “alleged father.” On the other hand, only a statutorily presumed father can receive reunification services (In re Cody B. (2007) 153 Cal.App.4th 1004, 1009; In re Mary G. (2007) 151 Cal.App.4th 184, 197), and presumed father status entitles the father to appointed counsel (In re Kobe A. (2007) 146 Cal.App.4th 1113, 1120), both of which Father received in this case. We therefore will assume that Penal Code section 2625 applies to Father.
Penal Code section 2625, subdivision (d) states: “No proceeding may be held under . . . Section 366.26 of the Welfare and Institutions Code . . . 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 signed by the prisoner or an affidavit signed by the warden, superintendent, or other person in charge of the institution, or his or her designated representative stating that the prisoner has, by express statement or action, indicated an intent not to appear at the proceeding.”
Despite the statement in Penal Code section 2625, subdivision (d), that the juvenile court cannot conduct a section 366.26 proceeding “ ‘without the physical presence of the prisoner or the prisoner’s attorney,’ ” the California Supreme Court has interpreted the italicized “or” in its conjunctive sense, to mean “and.” This construction reflects the legislative intent to require a prisoner’s presence, or the prisoner’s executed waiver of the right of physical presence, in a section 366.26 hearing. (In re Jesusa V., supra, 32 Cal.4th at pp. 622-623.) It also supports the “legislative goal of ensuring that prisoners actually receive notice of the proceeding.” (Id. at p. 623.) Consequently it was error for the juvenile court to proceed with the section 366.26 hearing without Father Steven G.’s presence or his waiver of that right. (In re Jesusa V., at p. 624.)
Violation of this statutory mandate is subject to a harmless-error analysis. (In re Jesusa V., supra, 32 Cal.4th at p. 624-625.) Father claims prejudice from the termination of his parental rights in his absence, but relies on a series of assertions about his conduct preceding the 12-month review hearing on April 17, 2006. The issue instead is whether Father’s presence at the section 366.26 hearing would have made it reasonably probable that the result would have more favorable to him. (In re Jesusa V., at p. 625.) In this context, Father’s only claim is that had he been given notice and transported to appear at the February 20, 2007, hearing, he might have been able to testify and present evidence of the beneficial relationship exception to termination of his parental rights. The beneficial relationship exception, however, has two requirements, and Father makes no showing about its requirement that he maintained regular visitation and contact with Kaylee.
Under the beneficial relationship exception of section 366.26, subdivision (c)(1)(A), a juvenile court finding that “the court has continued to remove the child from the custody of the parent . . . and has terminated reunification services, shall constitute a sufficient basis for termination of parental rights unless the court finds a compelling reason for determining that termination would be detrimental to the child due to . . . the following circumstance: [¶] (A) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(A).) The parent bears the burden of providing evidence of this exception. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1350.) The subdivision (c)(1)(A) exception requires a showing “that the parent has maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (In re Angel B. (2002) 97 Cal.App.4th 454, 466.)
Father had visited Kaylee regularly, except between July and October 2005, until he stopped visiting in May 2006. No further visits or contact occurred between May 2006 and the February 20, 2007, hearing. Thus for a period of nearly nine months Father had not visited or had any contact with Kaylee. He therefore could not establish the first prong of the section 366.26, subdivision (c)(1)(A) exception, that he had “maintained regular visitation and contact with the child[.]”
We therefore conclude that under the harmless-error test, Father was not prejudiced by the conduct of the hearing without his presence or his executed waiver of his presence. The error being harmless, we affirm the order.
DISPOSITION
The order terminating parental rights is affirmed.
We concur: CROSKEY, Acting P.J., ALDRICH, J.