Opinion
C086411
10-30-2018
In re G.G., a Person Coming Under the Juvenile Court Law. SACRAMENTO COUNTY DEPARTMENT OF CHILD, FAMILY AND ADULT SERVICES, Plaintiff and Respondent, v. S.G., 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JD238446)
Appellant S.G., father of the minor, appeals from the juvenile court's judgment of disposition. (Welf. & Inst. Code, §§ 360, 395; statutory section references that follow are to the Welfare and Institutions Code unless otherwise stated.) He contends his due process and statutory rights were violated because he was not given proper notice of the disposition hearing. We agree and reverse the judgment.
FACTS AND PROCEEDINGS
We limit our recitation of the facts to those necessary to determine the limited issue on appeal.
A section 300 petition was filed in Yuba County on behalf of the minor in August 2017, after mother was arrested for being under the influence of a controlled substance with the minor in her care. The petition alleged both parents had substance abuse problems and father was aware of, but did not object to, mother's use of methamphetamine while breastfeeding.
Both parents appeared at the 8:30 a.m. detention hearing on August 11, 2017. The hearing was continued to August 14, 2017, at 1:30 p.m., and both parents appeared at the continued detention hearing. The minor was temporarily detained. A settlement conference was set for August 28, 2017, at 2:00 p.m. and a jurisdiction hearing was set for August 31, 2017, at 9:00 a.m.
Both parents appeared at the jurisdiction hearing. The Yuba County Juvenile Court ordered the case transferred to Sacramento County and the court ordered the parents to appear at the transfer-in hearing at 8:30 a.m. on September 15, 2017, at the Sacramento County Juvenile Court.
Both parents appeared at the transfer-in hearing in Sacramento County on September 15, 2017, and counsel was appointed to represent them. The Sacramento County Juvenile Court advised the parents that participation in reunification services at that time would be voluntary and they did not need to commence services until ordered to do so at the dispositional hearing. The court accepted the transfer in and ordered the parents back for a hearing at 8:30 a.m. on October 4, 2017.
Mother was present at the hearing on October 4, 2017, but father was not. Mother explained that father was unable to be present because of his work schedule. The Sacramento County Juvenile Court ordered transfer of the case back to Yuba County due to procedural defects and the court ordered the parents to appear at 9:00 a.m. on October 11, 2017. The court also ordered the clerk to provide an expedited copy of the minute order to father, which was mailed to father two days later.
Mother was present at the transfer-in hearing in Yuba County on October 11, 2017, but father was not. The Yuba County Juvenile Court accepted the transfer-in of the case and set a jurisdictional hearing for 9:00 a.m. on October 19, 2017, in Yuba County. Both parents were present at the jurisdictional hearing. The Yuba County Juvenile Court sustained the allegations of the petition and transferred the case back to Sacramento County, ordering the parents to appear at the transfer-in hearing at 8:30 a.m. on November 2, 2017, at the Sacramento County Juvenile Court.
Both parents appeared at the transfer-in hearing in Sacramento County on November 2, 2017. The Sacramento County Juvenile Court accepted the transfer-in and set a dispositional hearing at 8:30 a.m. on November 22, 2017. Both parents appeared with counsel at the dispositional hearing on November 22, 2017, but, due to her erratic behavior, mother was escorted out by the bailiff before the commencement of the hearing. The juvenile court continued the disposition hearing to December 6, 2017, and ordered father be present on that date. The juvenile court did not state at what time the hearing would be held. The minute order from the hearing states that the hearing was continued to 8:30 a.m. on December 6, 2017, at 3341 Power Inn Road, Sacramento, California 95826, but a copy of the minute order was not mailed to the parties and their attorneys until December 5, 2017.
Neither parent appeared at the continued dispositional hearing on December 6, 2017. Father's counsel requested a continuance, as follows: "Your Honor, I would request a continuance. My client, the father, is not present. However, I don't know why he's not here before the Court." The juvenile court denied the request, stating: "I am not prepared to grant a continuance in this matter. [Father] was present on November 2nd when the original dispositional date of November 22nd was set. He did not appear that date, but he has had -- continues to have notice of the date, time, and location of the hearings, so I'm going to deny that request, as I don't believe there's good cause to do so."
The Sacramento County Juvenile Court found that "the parents had not made any progress in alleviating or mitigating the causes" that brought the case before the court in that they did not have stable housing, mother had untreated mental health issues, both parents had substance abuse issues, and neither parent had drug-tested as directed by the Sacramento County Department of Health and Human Services, now called the Sacramento County Department of Child, Family and Adult Services (the Department). The court further found that the parents had not engaged in services, nor were they present at the hearing. The court adjudged the minor a dependent of the juvenile court, removed the minor from parental custody and ordered family reunification services for the parents.
DISCUSSION
Father contends his due process and statutory rights were violated because he was not given proper notice of the December 6, 2017, disposition hearing.
Until parental rights are terminated, parents are entitled as a matter of due process and statute, to notice of the juvenile proceedings. (In re DeJohn B. (2000) 84 Cal.App.4th 100, 106; § 294.) Notice must be "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. [Citations.] The notice must be of such nature as reasonably to convey the required information, [citation], and it must afford a reasonable time for those interested to make their appearance. . . ." (Mullane v. Central Hanover Bank & Trust Co. (1950) 339 U.S. 306, 314 [94 L.Ed. 865, 873].) If a parent is present when the court continues the hearing to a new date, further notice is not required. (In re Malcolm D. (1996) 42 Cal.App.4th 904, 913.)
In this case, father generally attended court appearances and was present on November 22, 2017, when the juvenile court continued the disposition hearing to December 6, 2017. The juvenile court, however, did not provide oral notice of the time of the continued hearing. The written notice, subsequently served on father, did indicate the time of the hearing was 8:30 a.m. but, significantly, the written notice was not mailed to father until the day before the hearing. Thus, the juvenile court was mistaken when it stated father was not present at the November 22, 2017, hearing and when it found that father had notice of the date, time, and location of the December 6, 2017 hearing.
We reject the Department's argument that father "was presumably aware of the time of the hearing" because he did not ask the juvenile court to clarify the time at the November 22, 2017 hearing. We also reject the Department's novel and ill-conceived argument that father "was on constructive notice that the continued hearing would take place at 8:30 a.m." since the three previous hearings in the Sacramento County Juvenile Court had been set for that time. First, assuming a party will intuit the time of an upcoming hearing does not comport with notions of due process. Second, a review of the record reveals that, while the three previous Sacramento County hearings were held at 8:30 a.m., numerous other hearings were intermixed throughout this case (albeit in Yuba County), with hearing times of 9:00 a.m., 1:30 p.m. and 2:00 p.m.
The Department also asserts that the failure to object on the grounds of lack of notice should be deemed to have forfeited father's claim of error. We decline, under the facts of this case, to deem father's contention forfeited or waived. Although father's counsel requested a continuance of the disposition hearing to allow for father's presence, counsel did not object to the improper notice of the hearing at either the November 22, 2017, or the December 6, 2017, hearing, quite possibly because counsel did not realize father had not received proper notice at the time. Regardless of the reason, father did not appear without objection to the defects in the notice. (c.f. In re Etherington (1950) 35 Cal.2d 863, 867 [mother's appearance and participation in juvenile court hearing without objection as to timeliness of notice constituted a waiver of any insufficiency in notice as a jurisdictional requirement].) Nor does the record support a finding that father knowingly and intelligently waived his right to notice and an opportunity to be heard. Although father's attorney had the authority to stipulate to a wide variety of matters on father's behalf, the waiver of a constitutional right such as due process must be knowing and intelligent, and cannot be waived by mere acquiescence. (In re Laura H. (1992) 8 Cal.App.4th 1689, 1695; accord, Tyler v. Children's Home Society (1994) 29 Cal.App.4th 511, 545.)
Finally, we reject the Department's claim that any failure to properly notify father of the disposition hearing was harmless because dispositional judgment was supported by substantial evidence. That the judgment is supportable by the evidence presented, but without any additional evidence father might have presented had he been present, does not render the error in notice harmless. And, as father points out, the juvenile court considered his absence in making its findings and orders which tends in reason to rebut the Department's argument that father's presence would not have made any difference in the outcome of the proceeding.
In determining prejudice, we have to consider that, had father been provided proper notice of the hearing, he would have appeared. He had appeared at most of the many hearings prior to the December 6, 2017, disposition hearing, including the originally set November 22, 2017, disposition hearing. (See In re Stacy T. (1997) 52 Cal.App.4th 1415, 1426.) We also have to consider that, had father appeared, the juvenile court would not have considered his absence in rendering judgment. Father also might have testified on his own behalf. (Ibid.) We cannot speculate as to the substance or effect of such testimony, except to note that it would have to bear on issues before the court, including whether he was able to care for the minor, what attempts he had made to ameliorate the conditions leading to dependency, and the existence of reasonable means to protect the minor without removal. (Id. at pp. 1426-1427.) We cannot say that, had he presented such evidence, the outcome would not have differed.
In sum, father was not provided adequate notice of the date and time of the continued disposition hearing and, on this record, the due process and statutory violations were substantial and not harmless beyond a reasonable doubt. (In re Stacy T., supra, 52 Cal.App.4th at p. 1426, fn. 9 [harmless beyond a reasonable doubt prejudice standard applied to violation of due process right to notice].) Accordingly, we reverse the dispositional judgment and direct the juvenile court to hold a new hearing, after providing father with adequate notice of the time, date, and location of the hearing.
Because we reverse the dispositional judgment and remand for a new, properly noticed hearing, we do not reach father's additional contentions that the juvenile court's removal order was not supported by substantial evidence.
DISPOSITION
The dispositional judgment is reversed and the matter is remanded for a new, properly noticed disposition hearing.
HULL, Acting P. J. We concur: MAURO, J. RENNER, J.