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In re D.R.

California Court of Appeals, Second District, First Division
Sep 24, 2008
No. B204473 (Cal. Ct. App. Sep. 24, 2008)

Opinion


In re D.R., a Person Coming Under the Juvenile Court Law. LLOYD L., Plaintiff, v. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Defendant and Respondent D.R., Appellant. B204473 California Court of Appeal, Second District, First Division September 24, 2008

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

APPEAL from an order of the Superior Court of Los Angeles County. Albert J. Garcia, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Reversed with directions. Los Angeles County Super. Ct. No. CK45378.

Roni Keller, under appointment by the Court of Appeal, for Appellant.

Raymond G. Fortner, Jr., County Counsel, and O. Raquel Ramirez, Deputy County Counsel, for Defendant and Respondent.

MALLANO, P. J.

Five days before D.R. became 18 years old in November 2006, his legal guardian, Lloyd L., petitioned the juvenile court seeking to modify a 2003 order terminating juvenile court jurisdiction, to reinstate jurisdiction and to continue services for D.R., who suffered from developmental and medical problems. The court summarily denied Lloyd’s petition and both Lloyd and D.R. appealed. In an opinion filed in September 2007, we reversed the order and directed the juvenile court on remand to conduct a hearing on the merits of the petition for modification. (In re D.R. (2007) 155 Cal.App.4th 480, 489.)

D.R. now appeals from an October 23, 2007 order denying the petition for modification, contending that the order was (1) premature, because the October 23 hearing was held before the issuance of the remittitur, and (2) made without due process notice to D.R. Los Angeles County Department of Children and Family Services (DCFS) filed a letter brief agreeing only with D.R.’s first contention. Because the October 23, 2007 hearing on the petition for modification was held before issuance of the remittitur, we reverse the October 23, 2007 order.

DCFS wrote that it “does not oppose this Court’s reversal of the juvenile court’s October 2007 orders denying the section 388 petition and termination of jurisdiction, and remand to the juvenile court for the purpose of conducting a hearing on the section 388 petition after the remittitur in this matter is received by the juvenile court.”

BACKGROUND

The details of D.R.’s childhood and the dependency proceedings up to November 2006 are set out in In re D.R., supra, 155 Cal.App.4th 480, which was filed on September 20, 2007. On September 26, 2007, the juvenile court held a hearing attended by counsel for DCFS and Attorney Jennifer Waxler, who was appointed at that hearing to represent D.R. The court stated that it was “reinstating jurisdiction for purposes of the report [by DCFS], and I want a full report dealing with all of the issues set forth in the appellate court decision with respect to the needs of the child. The department is to give notice, and we’ll set it for October 23[, 2007].” DCFS was ordered to transport D.R. to court on October 23.

On October 9, 2007, Attorney Waxler filed a “walk on request” to be relieved as counsel for D.R. because of a conflict. On October 10, 2007, Attorney Loraine Tafoya was appointed to represent D.R.

On October 18, 2007, the juvenile court acknowledged receipt of DCFS’s interim review report on the petition for modification. In the report, dated October 15, 2007, the DCFS social worker reported that he spoke with D.R.’s guardian, Lloyd L., on October 10, 2007. Lloyd told the social worker that D.R. had moved out of his home in July 2007 and went to live with his mother. The social worker learned that D.R.’s mother moved several times, and one of D.R.’s siblings told DCFS that D.R. was living with a maternal aunt, Debby, in Los Angeles. The social worker was not able to locate and contact D.R. until October 15, 2007. On October 15, D.R. called the social worker and confirmed that he was living with the maternal aunt in Los Angeles. D.R. also told the social worker that he needed one more class to graduate from high school and planned to take the class in January 2008 at Long Beach City College. D.R. was not then employed but had an interview for a job at an oil refinery on October 19.

The social worker stated that he explained the October 23 hearing and petition to D.R., who told the social worker that he did not want his DCFS case to be reopened and he did not want to attend court on October 23 because of a possible job opportunity. D.R. told the social worker that he did not have medical coverage, and the social worker then “made [D.R.] aware that he can apply for MediCal through DPSS. [D.R.] stated that he has not had any issues with his heart murmur.” The social worker provided D.R. with the name and telephone number for the independent living program coordinator at the Lakewood DCFS office. DCFS recommended that jurisdiction be terminated.

On October 4, 2007, by first class mail DCFS sent D.R. two notices of the hearing set for October 23. The notices were sent to an address in Long Beach. Neither notice explained the nature of the hearing, but one of the notices characterized the hearing as a review hearing and stated that the social worker recommended “Termination of Court and DCFS jurisdiction for [D.R.]”

Lloyd L. lived in Bellflower, so DCFS apparently knew on October 4 that D.R. was no longer living with Lloyd. We infer that the Long Beach address to which D.R.’s notices were sent was one of the addresses for D.R.’s mother. It was not until October 15 that DCFS confirmed that D.R. was living with a maternal aunt in Los Angeles. But DCFS did not send notice of the hearing to D.R. at a Los Angeles address.

D.R.’s attorney appeared at the October 23 hearing, but D.R. did not. The court stated: “Now, the report comes back and this child is 18 and does not want us to have jurisdiction. He’s with the mother, or maybe somebody else, so what are you suggesting that I do? Keep this thing for another two years? [¶] . . . [¶] . . . Well, I think I complied with the orders of the appellate court. I reinstated jurisdiction on this thing and held a hearing on it. [¶] I am going to follow the recommendation. I am going to find notice was given as required by law and jurisdiction of this case will be terminated.” The court denied the petition for modification. On December 19, 2007, D.R., through his attorney, filed a notice of appeal.

DISCUSSION

As conceded by DCFS, the juvenile court lacked jurisdiction on October 23, 2007, because the remittitur was not issued until November 28, 2007. “[G]enerally, the taking of an appeal by the filing of the notice of appeal deprives the trial court of jurisdiction of the cause and vests jurisdiction with the appellate court until issuance of a remittitur by the reviewing court. [Citations.] When the remittitur issues, the jurisdiction of the appellate court terminates and the jurisdiction of the trial court reattaches.” (Andrisani v. Saugus Colony Limited (1992) 8 Cal.App.4th 517, 523.) An order made while the trial court is without jurisdiction due to a pending appeal is void on its face. (Ibid.; see also In re Francisco W. (2006) 139 Cal.App.4th 695, 705 [if the lower court retries the matter before issuance of the remittitur, the order would be void].) Because it is conceded that the October 23, 2007 order is void, we need not address the issue of whether D.R. was afforded proper notice, as D.R. will again be entitled to notice of the hearing on the petition for modification upon remand from this appeal.

DISPOSITION

The October 23, 2007 order is reversed, and on remand the juvenile court is directed to conduct a hearing on the merits of the petition for modification filed on November 2, 2006.

We concur: ROTHSCHILD, J., HASTINGS, J.

Retired Associate Justice of the Court of Appeal, Second Appellate District, Division Four, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.


Summaries of

In re D.R.

California Court of Appeals, Second District, First Division
Sep 24, 2008
No. B204473 (Cal. Ct. App. Sep. 24, 2008)
Case details for

In re D.R.

Case Details

Full title:LLOYD L., Plaintiff, v. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND…

Court:California Court of Appeals, Second District, First Division

Date published: Sep 24, 2008

Citations

No. B204473 (Cal. Ct. App. Sep. 24, 2008)