Opinion
B317874
01-17-2023
In re D.S., a Person Coming Under the Juvenile Court Law. v. Q.S., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Pamela Rae Tripp, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, and Peter Ferrera, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. 18CCJP00502B Tara L. Newman, Judge. Affirmed.
Pamela Rae Tripp, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, and Peter Ferrera, Principal Deputy County Counsel, for Plaintiff and Respondent.
ASHMANN-GERST, J.
At the disposition hearing on November 12, 2021, the juvenile court declared D.S. (minor, born Dec. 2012) a dependent of the court and removed him from parental custody. The court denied minor's alleged father, appellant Q.S. (father), family reunification services pursuant to Welfare and Institutions Code section 361.5, subdivision (e)(1). On appeal, father argues that he received insufficient notice of the hearing and that the juvenile court erred when it denied his request for a continuance to obtain the results of DNA testing.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
We affirm.
BACKGROUND
Prior Juvenile Dependency Case
In March 2018, the juvenile court sustained a section 300 dependency petition alleging that minor's mother, D.B. (mother), and her male companion, K.T., had an unresolved history of engaging in physical altercations in minor's presence. At that time, the court ordered no family reunification services for father. In December 2020, the court terminated its jurisdiction with a custody order awarding mother sole physical custody of minor, with mother and father sharing joint legal custody. Father was granted monitored visitation with minor.
Instant Section 300 Dependency Petition
On June 14, 2021, DCFS filed a new dependency petition seeking the juvenile court's exercise of jurisdiction over minor and minor's half-sibling, D.T. (born Nov. 2018), pursuant to section 300, subdivisions (a) (serious physical harm), (b)(1) (failure to protect), and (j) (abuse of sibling). The petition alleged that mother and K.T. had a history of engaging in violent altercations and that mother had struck parked cars while driving with D.T. as a passenger. The petition indicated that minor had been detained on June 1, 2021, and had been placed with his maternal grandmother.
D.T. is the daughter of mother and K.T. She is not the subject of this appeal, and neither mother nor K.T. are parties to it. Accordingly, we do not discuss the proceedings as they relate to D.T.
The dependency petition listed father as minor's alleged father and indicated that his whereabouts were unknown. Father was nonoffending in the petition.
Detention Report
Mother reported that father was minor's biological father, but that minor did not have any contact with him. Mother did not have contact information for father. Minor told a DCFS social worker that he did not know father's whereabouts and that he had last seen and spoken to father two to three years earlier. Minor said that he missed father.
According to DCFS, father had been convicted of a felony in January 2021 and sentenced to six years in prison.
Detention Hearing
At the detention hearing on June 17, 2021, the juvenile court noted that it had received a parentage questionnaire from mother identifying father as minor's father. According to the questionnaire, father had held himself openly as minor's parent, but he was not present at minor's birth, did not sign the birth certificate or other paperwork naming him as the father, was not married to or living with mother at the time of minor's conception and birth, and had not received minor into his home. No paternity test had been completed.
Mother informed the juvenile court that father was currently incarcerated but she did not know by which authority and she would have to ask him the next time he called. The court found father to be minor's alleged father and ordered DCFS to follow up with mother regarding his whereabouts.
Counsel for DCFS stated that the previous juvenile custody order indicated a prior finding that father was minor's biological father. The juvenile court stated that it would revise its parentage finding accordingly. Counsel for DCFS subsequently clarified that it was unclear when a biological parenthood finding had been made previously or whether an error appeared in the custody order.
The juvenile court revised its biological parentage finding, returning to its initial finding that father was minor's alleged father. The court said it would revisit its finding once father had appeared and had the benefit of counsel present.
The juvenile court found that a prima facie showing had been made that minor was a person described by section 300 and detained him from parental custody. The court indicated that it would set an arraignment hearing for father to address appointing him counsel. The court also directed DCFS to request transportation for father.
Last Minute Information for the Court (July 16, 2021)
DCFS informed the juvenile court that father was in the custody of the California Department of Corrections and Rehabilitation at Wasco State Prison (Wasco). On July 1, 2021, DCFS submitted statewide removal forms for father to be transported to the July 23, 2021, arraignment hearing. DCFS submitted proof of sending notice of the hearing to father at Wasco by first-class mail on July 1, 2021.
Arraignment Hearing
Father did not appear at the July 23, 2021, arraignment hearing. The juvenile court ordered DCFS to submit a statewide removal order for father for a hearing on August 27, 2021. The court ordered a dependency attorney "to continue to reach out to father."
DCFS's Reporting for Jurisdiction/Disposition
DCFS sent father two notices regarding the upcoming August 27, 2021, hearing. The first was sent on July 28, 2021, and indicated DCFS's recommendation of "Suitable Placement" and "Family Reunification[.]" The second notice was sent on August 5 or 6, 2021. The second notice indicated a different DCFS recommendation-that no family reunification services be offered to father pursuant to section 361.5, subdivision (b).
A DCFS investigator reported contacting Wasco and leaving voicemails to schedule an interview with father. Father returned a statement regarding parentage indicating that he believed he was minor's parent and requesting that the juvenile court enter a judgment of parentage. Father consented to genetic testing to determine whether he was minor's biological parent. He also wanted the court to find that he was minor's presumed parent, having told "mother and other family and friends" that minor was his child and having participated in "regular recreation and quality time" with minor.
Father also sent a letter to DCFS stating that he did not want to go to court, as "it w[ould] slow down [the] process of being released or transferred[,]" which would "ultimately slow[] down [the] process to get back to [his] sons." Father wanted maternal grandmother to have temporary custody of minor. He did not want minor to "see [him] in this sit[]uation." Father signed a form indicating that he understood that he had a right to be present at the hearing but was giving up that right. Another form was signed by father's correctional counselor declaring that father had expressly stated that he did not want to attend the hearing and waived his right to do so.
DCFS reported that father's estimated release date from prison was in June 2023.
August 27, 2021, Hearing
A dependency attorney appeared as a "Friend of the Court" for father on August 27, 2021. The juvenile court received father's waiver of appearance and continued the adjudication hearing and father's arraignment. The court directed the dependency attorney to continue reaching out to father.
September 27, 2021, Hearing
The juvenile court formally appointed a dependency attorney to represent father on September 27, 2021. According to the court, father's counsel "indicated that she was able to proceed forward with jurisdiction" but "ask[ed] for a continuance as to disposition" for DNA testing.
Counsel for DCFS objected to continuing the disposition hearing, noting, inter alia, that father had received notice of DCFS's recommendation that he not receive reunification services-a recommendation that would not be impacted by the results of DNA testing.
The juvenile court sustained the dependency petition, but it continued disposition to November 12, 2021, due to father having been "newly . . . appointed counsel" and his request for DNA testing. The court indicated that there would "be no further continuances for the DNA results." The court appointed a laboratory as an expert to perform the DNA testing.
Last Minute Information for the Court (Nov. 2, 2021)
Father had been transferred from Wasco to the California Rehabilitation Center in Norco (Norco). Prison staff agreed to schedule father to contact the court at the upcoming November 12, 2021, hearing.
Father had provided a sample for DNA testing on October 20, 2021. Minor had missed his appointment to provide a sample on October 13, 2021. A DCFS social worker would transport minor to the rescheduled appointment set for November 4, 2021, "to ensure it [would] not [be] missed."
Last Minute Information for the Court (Nov. 10, 2021)
DCFS reported that minor had provided a DNA sample on November 4, 2021, but that the processing lab would not complete its comparison until the week of November 15, 2021.
Disposition Hearing
Father appeared via WebEx at the November 12, 2021, disposition hearing.
Father's counsel asked the juvenile court to find that notice of the hearing was improper. She stated that there was "no notice in the portal" or "proof of service to indicate that father was given notice of the . . . bypass recommendation." She also asked for a continuance to receive the DNA test results. She noted that DCFS was recommending to bypass reunification services under section 361.5, subdivision (e), but that father was the alleged father and "alleged fathers are not entitled to family reunification services." She argued that the court should wait for the DNA test results, which could allow father to "elevate his status to biological [father,] before determining whether or not father can receive family reunification services." She also noted that the delay of the DNA results was not father's fault.
Counsel for DCFS argued that the recommendation of no family reunification services was based on section 361.5, subdivision (e), and "ha[d] nothing to do with the father being alleged, bio, or presumed." Even if father was deemed minor's presumed or biological father, DCFS's recommendation would be the same. Thus, good cause did not exist to continue disposition.
The assigned DCFS dependency investigator testified that she had been in contact with prison staff at Norco to facilitate father's appearance at the hearing. She had e-mailed the minute order from the previous hearing-which contained information about the November 12, 2021, hearing-to the prison's litigation coordinator. The litigation coordinator informed the dependency investigator that the information would be forwarded to father's counselor at the prison.
The juvenile court found that the minute order sent to father "contained all the necessary information" and that notice was proper. The court declined to continue the disposition hearing, observing that father's parenthood status did not impact DCFS's recommendation. The court stated that once the DNA results were received, it would "entertain . . . making a different determination for . . . [father]'s status[.]"
As for disposition, the juvenile court declared minor a dependent of the court and removed him from parental custody. The court denied father family reunification services pursuant to section 361.5, subdivision (e)(1), but ordered monitored telephonic visits between minor and father.
Appeal
Father filed a timely notice of appeal "from all dispositional findings made on [November 12, 2021,] including notice issues[,]" as well as "any other appealable issues."
On August 30, 2022, DCFS filed a request asking us to take judicial notice of the juvenile court's August 16, 2022, minute order. We granted the request on September 12, 2022. (Evid. Code, §§ 452, subd. (d), 459, subd. (a); In re M.F. (2022) 74 Cal.App.5th 86, 110 (M.F.) ["While appellate courts rarely consider postjudgment evidence or evidence developed after the ruling challenged on appeal, such evidence is admissible for the limited purpose of determining whether the subsequent development has rendered an appeal partially or entirely moot"].)
At a review hearing held on August 16, 2022, the juvenile court found that mother had made substantial progress and ordered minor returned to her custody. Minor remained under the court's jurisdiction. The court ordered DCFS to provide father with enhancement services.
DISCUSSION
Father contends that the dispositional order removing minor from parental custody and denying father family reunification services must be reversed because his right to due process was violated. Specifically, he argues that notice of the disposition hearing was improper and that the juvenile court erred by denying his request for a continuance of the hearing to obtain the results of DNA testing. We conclude that neither alleged error provides a basis for reversal.
Father does not challenge the juvenile court's declaration of dependency jurisdiction over minor.
In its respondent's brief, DCFS argues that the juvenile court's August 16, 2022, order returning minor to mother's custody has rendered father's appeal moot. "The critical factor in assessing mootness is whether the appellate court can provide any effective relief if it finds reversible error or if the purported error affects the outcome of subsequent proceedings. [Citations.]" (M.F., supra, 74 Cal.App.5th at p. 111.) We are not convinced that the deprivation of reunification services does not have the potential to affect further proceedings and, therefore, decline to find the appeal moot.
I. Notice of Disposition Hearing
A. Relevant law
"'There are three types of fathers in dependency law: presumed, biological and alleged. [Citation.] '"A father's status is significant in dependency cases because it determines the extent to which the father may participate in the proceedings and the rights to which he is entitled."' [Citation.]
"Presumed parent status, which is the equivalent of a legal parent, '"'ranks the highest.'"' [Citation.] It confers 'all the rights afforded to parents in dependency proceedings, including standing, the appointment of counsel, and reunification services.' [Citation.]" (In re A.H. (2022) 84 Cal.App.5th 340, 349, fn. omitted (A.H.).)
"Next in order of ranking is a biological father, a man 'who has established his paternity but has not established his qualification as a presumed parent.' [Citation.] 'A court may order reunification services for biological fathers if they are in the child's best interest ....' [Citation.]
"Finally, an alleged father is a man who may be a child's father but has not yet established either presumed father status or biological paternity. [Citations.] 'Alleged fathers have "fewer rights" and, unlike presumed fathers, "are not entitled to custody, reunification services, or visitation."' [Citation.]" (A.H., supra, 84 Cal.App.5th at pp. 349-350.)
Notwithstanding these limited rights, alleged fathers still possess "a constitutionally protected due process right to '"be given notice and an opportunity to appear, to assert a position, and to attempt to change [his] paternity status [citation]."' [Citations.]" (A.H., supra, 84 Cal.App.5th at pp. 350-351.) To comply with due process, notice must be "reasonably calculated to advise [the parent that] an action is pending and afford them an opportunity to defend. [Citation.]" (In re Jasmine G. (2005) 127 Cal.App.4th 1109, 1114 (Jasmine G.).) "An alleged father also is statutorily entitled to notice of the jurisdiction and disposition hearings, accompanied by an advisement of various rights and a copy of the petition. [Citations.]" (A.H., supra, at p. 368, fn. omitted.)
B. Standard of review
We "consider de novo whether inadequate notice violated father's due process rights. [Citation.]" (In re Mia M. (2022) 75 Cal.App.5th 792, 806.)
C. Analysis
DCFS concedes that notice of the disposition hearing did not comply with all statutory requirements. We accept this concession. Because minor was detained and father did not appear at the initial hearing in this matter (i.e., the detention hearing on June 17, 2021), father was required to "be noticed by personal service or by certified mail, return receipt requested." (§ 291, subd. (e)(1).) This does not appear to have occurred for the November 12, 2021, hearing. Rather, the assigned DCFS dependency investigator testified that she e-mailed the minute order from the previous hearing to the litigation coordinator at father's place of incarceration. Additionally, it does not appear that a copy of the dependency petition was provided to father in connection with notice of the November 12, 2021, hearing, as required by section 291, subdivision (d)(7).
Despite these statutory notice deficiencies, we do not find that father suffered a violation of his constitutional right to due process. On August 5 or 6, 2021, DCFS sent father notice by first-class mail that it would be recommending the denial of reunification services for father pursuant to section 361.5, subdivision (b). DCFS's recommendation of no family reunification services was also discussed at a hearing on September 27, 2021, where father was represented by counsel. At that hearing, the juvenile court continued disposition to November 12, 2021. A DCFS dependency investigator subsequently contacted prison staff where father was incarcerated to facilitate father's appearance on November 12, 2021. And, father did, in fact, appear at the disposition hearing, represented by counsel. Father was thus provided with notice that comported with the requirements of due process, as it was "reasonably calculated to advise [him that] an action [wa]s pending and afford [him] an opportunity to defend. [Citation.]" (Jasmine G., supra, 127 Cal.App.4th at p. 1114.)
We also conclude that the statutory defects in notice were harmless under any applicable standard. (Chapman v. California (1967) 386 U.S. 18, 24 [more stringent beyond-a-reasonable-doubt standard for federal constitutional error]; People v. Watson (1956) 46 Cal.2d 818, 836 [reasonable probability standard for state law error]; see also A.H., supra, 84 Cal.App.5th at p. 372 [observing that appellate courts are divided as to which prejudice standard applies to defective notice in dependency proceedings].) There simply is nothing in the record to suggest that the outcome of the disposition hearing would have been any different had DCFS served notice by personal service or by certified mail (with return receipt requested), with a copy of the petition attached. (§ 291, subds. (d)(7) &(e)(1).) No miscarriage of justice occurred. (Nickolas F. v. Superior Court (2006) 144 Cal.App.4th 92, 119 ["A trial court's judgment may not be set aside for procedural error unless the error resulted in a miscarriage of justice"], citing Cal. Const., art. VI, § 13.)
II. Request for Continuance of Disposition Hearing
A. Relevant law
Upon request, a juvenile court may continue a disposition hearing provided that the continuance is not "contrary to the interest of the minor." (§ 352, subd. (a)(1).) But, "if a minor has been removed from the parents' or guardians' custody, a continuance shall not be granted that would result in the dispositional hearing, held pursuant to Section 361, being completed longer than 60 days, or 30 days in the case of an Indian child, after the hearing at which the minor was ordered removed or detained, unless the court finds that there are exceptional circumstances requiring a continuance." (§ 352, subd. (b), italics added.)
These provisions reflect "the strong countervailing interest . . . that dependency actions be resolved expeditiously. [Citations.]" (In re Jesusa V. (2004) 32 Cal.4th 588, 625; see also In re A.J. (2022) 77 Cal.App.5th 7, 18 (A.J.) ["Timeliness is of 'vital importance . . . in the early stages of dependency proceedings' [citation] and 'delay disserves the interests of the minor, the parents, and the courts, and is clearly inconsistent with the intent of the Legislature.' [Citations.]"].)
B. Standard of review
We review the denial of a request for a continuance for an abuse of discretion. (In re D.Y. (2018) 26 Cal.App.5th 1044, 1056.) "'Discretion is abused when a decision is arbitrary, capricious or patently absurd and results in a manifest miscarriage of justice.' [Citation.]" (Ibid.)
C. Analysis
The juvenile court did not abuse its discretion in denying father's request for an additional continuance of the disposition hearing.
"[W]hen a child has been removed from the parents' or guardians' custody, as [minor] was here, the juvenile court may not grant a continuance that would cause the disposition hearing to be completed more than 60 days after the detention hearing, unless there are exceptional circumstances ...." (A.J., supra, 77 Cal.App.5th at p. 17, citing § 352, subd. (b); Cal. Rules of Court, rule 5.550(a)(3).) Held on November 12, 2021, the date of the disposition hearing was already more than 60 days after the June 17, 2021, detention hearing. Thus, to grant father's requested continuance, the juvenile court would have been required to find that exceptional circumstances existed. Nothing before the court compelled such a finding.
In the juvenile court, father's counsel argued that a continuance was justified to allow DNA test results to return, which could potentially allow father to elevate his status from an alleged to a biological father. It is certainly true that "[a] court may order reunification services for biological fathers if they are in the child's best interest but may not do so for alleged fathers. [Citation.]" (In re J.W.-P. (2020) 54 Cal.App.5th 298, 301; see also § 361.5, subd. (a).) But, here, the juvenile court was explicit that its denial of reunification services was based on section 361.5, subdivision (e)(1), which was not impacted by father's paternity status. Rather, that section allows the court to deny services to an incarcerated parent where "the court determines, by clear and convincing evidence, those services would be detrimental to the child" in light of a nonexhaustive list of factors. (§ 361.5, subd. (e)(1).)
Father makes a perfunctory assertion that "substantial evidence did not support the denial of reunification services for the reasons stated by the [juvenile] court." He has forfeited this argument by failing to support it with reasoned legal argument and authority. (See People v. Stanley (1995) 10 Cal.4th 764, 793 [principle that an appellate court may treat as waived a point made without legal argument and citation to authorities "is especially true when an appellant makes a general assertion, unsupported by specific argument, regarding insufficiency of evidence"].) Forfeiture aside, we would still reject the argument on the merits. Father had no contact with minor for years and had never received minor into his home, his estimated release from prison was not until June 2023, and he had sent a letter to DCFS stating that he did not want minor to "see [him] in this sit[]uation." Substantial evidence thus supported bypassing reunification services under section 361.5, subdivision (e)(1).
As the results from the DNA testing would have no impact on the juvenile court's decision regarding reunification services, the delay in obtaining those results did not present "exceptional circumstances" (§ 352, subd. (b)) justifying an additional continuance of the disposition hearing.
DISPOSITION
The November 12, 2021, dispositional order is affirmed.
WE CONCUR: LUI, P.J., HOFFSTADT, J.