Opinion
C086189
08-27-2018
In re C.C., a Person Coming Under the Juvenile Court Law. SACRAMENTO COUNTY DEPARTMENT OF CHILD, FAMILY AND ADULT SERVICES, Plaintiff and Respondent, v. C.C., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JD233670)
C.C., father of the minor, appeals from the juvenile court's jurisdiction and disposition orders. (Welf. & Inst. Code, §§ 300, 358, 360.) Father contends the orders must be reversed because the juvenile court proceeded to trial on jurisdiction in his absence, in violation of Penal Code section 2625 and his due process rights. Finding any error harmless, we shall affirm.
Further undesignated statutory references are to the Penal Code.
BACKGROUND
We dispense with a full recitation of the facts of the minor's dependency, as these details are not necessary to resolve father's sole contention on appeal. It suffices to say that in August 2013, the minor (born in 1999) was placed into protective custody after his cousin was no longer able to house him. The Department of Health and Human Services (Department) filed a Welfare and Institutions Code section 300 petition on the minor's behalf because his parents were incarcerated and unable to make arrangements for his care. He had been living with his paternal grandmother since he was five years old, but she had told him to leave. He had only lived with father briefly, several months after father's release from prison in October 2012, but then father was returned to prison. The minor had not had any contact with father since he was four years old, except for the time he lived with him briefly in 2013.
After the minor went missing, the initial petition was dismissed. In June 2015, the minor was detained at juvenile hall. He had no contact information for father. Father's whereabouts were unknown and mother was unwilling to provide for the minor's care. The Department filed a second petition on the minor's behalf, but again he went missing. In November 2015, the juvenile court issued a warrant, ordered the minor detained and set a jurisdiction hearing. Father was originally located and noticed in Wasco Prison, but had since been released and his whereabouts were unknown. The jurisdiction hearing was continued because the minor's whereabouts also remained unknown.
In October 2017, the minor was detained at juvenile hall. Although homeless, he was working and wanted to "clear up his probation warrant and get on with life" as well as obtain his high school diploma or GED and obtain a license to drive trucks. He agreed to remain in placement, participate in programming and receive services, return to school, and continue working. He reported that he had not had any recent contact with father, who was again incarcerated.
The Department mailed notice of the October 31, 2017 hearing to father at Valley State Prison with a certified mail return receipt requested.
The court appointed counsel for father and continued the hearing a week.
At the November 6, 2017 continued hearing, father's counsel appeared on his behalf. The hearing was continued another eight days to permit father and minor's counsel to speak with their clients about discovery. The court emphasized its intention to proceed with jurisdiction and disposition at the next hearing date; the minor was turning 18 two days later, and would need to be declared a dependent by his eighteenth birthday, if at all, to take advantage of the benefits provided by the California Fostering Connections to Success Act (the Act).
Taking jurisdiction of the minor's case before he turned 18 preserved his ability to take advantage of the benefits provided by the Act. The Act allows nonminor dependents to be eligible to take advantage of certain benefits up to the age of 21, provided they were originally under the jurisdiction of the juvenile court prior to turning 18. (In re Shannon M. (2013) 221 Cal.App.4th 282, 295; Welf. & Inst. Code, §§ 11400 et seq.; see 42 U.S.C. § 675(8).)
On November 14, 2017, father's counsel again appeared on his behalf. Counsel represented that she had written a detailed letter to father and enclosed the amended petition and report, but had not received any response. She also had not received any response from the litigation coordinator of Valley State Prison after she left a message, attempting to arrange father's appearance by telephone. She had not been able to secure his presence, representing that she needed a minimum of four weeks in order to have father transported. She requested a continuance of the hearing, arguing only that father had a "right" to be present.
The Department and minor's counsel objected to the request, citing the urgency to ensure the minor's eligibility for benefits under the Act. The juvenile court denied the request for a continuance, emphasizing the minor's best interests and the exceptional circumstances that required the court to proceed before the minor turned 18 years old.
Father's counsel then submitted to jurisdiction and disposition.
The juvenile court found the allegation in the petition true, adjudged the minor a dependent, and ordered the minor removed from parental custody. The court explained to the minor, who was present, that he would be in extended foster care and receive funds available to help pay rent and other items, with a goal of independency. The court set a nonminor dependent status review hearing. Father appealed.
DISCUSSION
At the outset, we reject father's contention, made in passing, that the failure of the court to secure his personal presence at the jurisdiction/disposition hearing violated due process. Father has no due process right to be personally present at the jurisdiction or disposition hearing. (In re Axsana S. (2000) 78 Cal.App.4th 262, 271.) The presence of father's counsel afforded him due process. (Ibid.)
Father's primary contention is that the court had a statutory duty, under section 2625, subdivision (d), to order father transported to the hearing.
Section 2625, subdivision (d) states in relevant part: "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 . . . (b) . . . 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 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." The California Supreme Court has interpreted this section to require both the prisoner and the prisoner's attorney be present at the hearing. (In re Jesusa V. (2004) 32 Cal.4th 588, 623-624.) Father contends that this provision afforded him the right to be present at the adjudication hearing, and that his absence was prejudicial.
First, although it is true that section 2625 affords incarcerated parents a statutory right to be present at certain hearings (In re Axsana S., supra, 78 Cal.App.4th at p. 269), a court is only required to order a prisoner's production before the court when the prisoner requests it. (Adoption of I.M. (2014) 232 Cal.App.4th 40, 46; see § 2625, subd. (d) ["[u]pon 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"].)
Here, father does not assert on appeal that he ever made such a request in the juvenile court and the record does not reflect such a request. Father's counsel merely stated she believed father had a right to be present, and she wanted to "preserve his right." She admitted that she had not received any communication from father. Thus, she did not communicate his request to be present.
Further, even if we were to infer a request through counsel, father's absence did not result in prejudice. (See In re Jesusa V., supra, 32 Cal.4th at pp. 624-625 [harmless error analysis applies to violation of § 2625, subd. (d)].) Father submitted to jurisdiction and disposition. He did not submit a declaration to the juvenile court for the hearing, nor is there any offer of proof in the record. His briefing cursorily states that he "had no opportunity to testify to protect his parental rights" and that "[w]ithout [father], there was no defense case" but does not allege specific prejudice or explain how the result of the proceedings could have possibly been different had he been in attendance.
We see no possibility of a different result from the record before us.
DISPOSITION
The judgment and orders of the juvenile court are affirmed.
/s/_________
Duarte, Acting P. J. We concur: /s/_________
Hoch, J. /s/_________
Renner, J.