Opinion
B151885
April 16, 2002 REVIEW GRANTED AUGUST 14, 2002.
Appeal from orders of the Superior Court of Los Angeles County, No. CK45078, Marilyn Kading Martinez, Commissioner. Affirmed in part; reversed in part.
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
Lloyd W. Pellman, County Counsel, and Lois D. Timnick, Deputy County Counsel, for Plaintiff and Respondent.
In this dependency case, the trial court found it had jurisdiction over Jesusa V. and awarded "presumed father" status to her stepfather. Her biological father, Heriberto C., appeals from these orders which were entered after hearings held while he was incarcerated in a California prison. Heriberto contends holding the jurisdictional and presumed father hearings in his absence violated his statutory right to be present and his due process right to a meaningful opportunity to be heard. He also contends the trial court erred on the merits when, after determining he was the biological father, it awarded presumed father status to the stepfather. We affirm the order determining presumed father status but reverse the order determining jurisdiction because Heriberto was denied his right under Penal Code section 2625, subdivision (d) to be present at the jurisdictional hearing.
FACTS AND PROCEEDINGS BELOW
The Dependency Petition. The Department of Children and Family Services filed a petition alleging Jesusa V. had been "exposed to violent confrontations" between her mother and her father, Heriberto C. In the most recent episode, Heriberto "struck and raped the child's mother resulting in the [mother's] hospitalization." The petition further alleged Heriberto "has a long history of violent and aggressive behavior, . . . a long-standing history of alcohol abuse and is a current user of alcohol which renders [him] incapable of providing regular care for the child." Jurisdiction was alleged under Welfare and Institutions Code section 300, subdivisions (a) and (b) based on the mother's failure to take action to protect Jesusa from exposure to these violent episodes and Heriberto's inability to care for Jesusa due to his alcoholism.The Detention Hearing. Heriberto was in jail at the time of the detention hearing and did not appear. Paul B. appeared and testified that at the time of Jesusa's birth he was married to her mother but they were not living together and he did not claim to be Jesusa's biological father. He further testified he is still married to the mother and they have five children in common who live with him. The trial court ordered Jesusa detained and placed with her stepfather, Paul B. The court set a date for Heriberto's arraignment on the petition and another date for a pre-resolution conference and paternity hearing to determine Paul B.'s presumed father status. Finally, the court issued an order under Penal Code section 2625 directing the Los Angeles County Sheriff to transport Heriberto from jail to the arraignment and other proceedings.
Under dependency law, only the child's mother and "presumed father" are entitled to reunification services and custody of the child. (Welf. Inst. Code, §§ 361.5, 361.2.)
Heriberto's Arraignment. The Sheriff brought Heriberto to his arraignment on the petition and the trial court appointed counsel to represent him. Heriberto denied the allegations in the petition and informed the court he would seek presumed father status.
The Pre-Resolution Conference. The Sheriff again transported Heriberto to court for the pre-resolution conference and presumed father hearing. At the conference, Jesusa's mother proposed to plead no contest to the petition. Heriberto objected. He pointed out the allegations the mother failed to protect Jesusa implied there was something to protect her from and that issue "goes to the heart of the father's case." The trial court accepted this argument, set the matter for a contested jurisdictional hearing, and continued the presumed father hearing to the date set for the jurisdictional hearing. In doing so, the court advised Heriberto's counsel: "You may want to consider having him file a declaration." The court ordered the county sheriff to transport Heriberto to the hearings.
The Jurisdictional and Paternity Hearings. Heriberto was not present for the jurisdictional and paternity hearings. His counsel advised the court Heriberto had been transferred out of Los Angeles County to a state prison in Kern County. Counsel also informed the court he had received a letter from Heriberto in which his client stated he wished to be present for the proceedings and requested the matters be continued until he could be brought in. The trial court denied the request for a continuance and, over the objection of Heriberto's counsel, proceeded to adjudicate the presumed father and jurisdictional issues.
On the issue of presumed father status, the trial court found Heriberto to be Jesusa's biological father. The court also found both Heriberto and Paul B. qualified as statutorily presumed fathers but concluded Paul B.'s presumption was founded on weightier considerations of policy and logic. Therefore, the court awarded Paul B. status as Jesusa's presumed father.
On the jurisdiction issue, the court dismissed the allegations relating to Heriberto's alcoholism and permitted the Department to make certain amendments to the remaining allegations. The court sustained the petition as amended.
Heriberto filed a timely appeal.
DISCUSSION I. THE TRIAL COURT DID NOT ERR IN DETERMINING PRESUMED FATHER STATUS WITHOUT AFFORDING HERIBERTO THE OPPORTUNITY TO PRESENT HIS LIVE TESTIMONY.Heriberto was incarcerated throughout the dependency proceedings. Pursuant to the trial court's orders under Penal Code section 2625, which we discuss below, the Los Angeles County Sheriff transported Heriberto to all the proceedings except the contested presumed father and jurisdictional hearings. Heriberto was not present for these hearings because sometime before their scheduled date he had been transferred to Kern State Prison and was no longer within the jurisdiction of the Los Angeles County Sheriff.
Counsel for Heriberto objected to proceeding with the paternity hearing in his client's absence. He argued a continuance should be granted for several reasons. Heriberto's testimony was necessary to respond to the mother's claim he had not held himself out as Jesusa's father. He had not discussed the presumed father issue with Heriberto earlier because he expected Heriberto to be present to discuss the issue the day of the hearing. Heriberto had written him a letter "stating he would like to be here[.]" Finally, counsel reminded the court it had impliedly found Heriberto's presence at the hearing to be necessary when it ordered the county sheriff to transport him there.
One of the ways a man can qualify as a presumed father is to take the child into his home and hold her out as his natural child. (Fam. Code, § 7611, subd. (d).)
The trial court denied Heriberto's request to continue the hearing. The court commented it understood "the issue of [presumed father status] would be fully decided on the briefs and argument on the briefs. No testimony to be taken." The court also advised Heriberto's counsel that in deciding the presumed father issue the court was not going to rely on the mother's statements Heriberto had failed to hold himself out as Jesusa's father. For this reason, the court concluded, "it would seem to have him come to help you address those issues is not necessary since I won't use those factors at all in rendering my decision."
Heriberto argues the trial court's failure to provide him an opportunity to testify at the presumed father hearing was an abuse of the court's discretion under Penal Code section 2625 and denied him his due process right to a meaningful opportunity to be heard. We disagree.
Penal Code section 2625 provides that upon request a prisoner has the right to be present at any proceeding brought under Welfare and Institutions Code section 300 to adjudicate the prisoner's child a dependent child of the court and any proceeding brought under Welfare and Institutions Code section 366.26 to terminate the prisoner's parental rights. The statute further provides "[i]n any other action or proceeding in which a prisoner's parental . . . rights are subject to adjudication" the trial court "may" order the prisoner's production before the court. Plainly, a hearing to determine presumed father status falls within the discretionary portion of the statute.
Pen. Code, § 2625, subds. (b), (d).
See In re Barry W. (1993) 21 Cal.App.4th 358, 369-370.
Heriberto does not deny an order for his attendance at the hearing was within the trial court's discretion. Rather, he argues once the trial court exercised its discretion to order his attendance at the hearing it was error to proceed without him. The court should have granted a short continuance so the warden of Kern State Prison could be ordered to transport him to the proceeding in order to testify.
Heriberto's argument assumes his presence at the hearing would have entitled him to testify. Not so. Under the rules of court for dependency cases, "[t]he court may make its determination of paternity or nonpaternity based on the testimony, declarations, or statements of the mother and alleged father." Thus, the trial court had no obligation to receive Heriberto's live testimony even if he had been present at the hearing. This is especially so where the court had previously advised Heriberto if he wished to present testimony he should do so through a declaration.
Cal. Rules of Court, rule 1413, subd. (e)(2); emphasis added. We interpret this rule to apply to determinations of presumed father status as well as paternity.
It is beyond dispute a biological father has a due process right to establish his status as a presumed father and in doing so he is entitled to "a meaningful opportunity to be heard." In this case, however, Heriberto has not shown the trial court denied him a "meaningful opportunity" to be heard on the issue of presumed father status. He was represented by counsel at the hearing. Well in advance of the hearing he received the social workers' reports which contained all the evidence the trial court relied on in determining the presumed father issue. Thus, Heriberto had ample time before the hearing to prepare a declaration setting out facts supporting his claim to presumed fatherhood and challenging contrary evidence contained in the social workers' reports. Furthermore, the trial court did not base its decision denying him presumed father status on the statements by the mother which he sought to contest at the hearing. Instead, the court assumed for purposes of its decision Heriberto had taken Jesusa into his home and held her out as his natural child.
Adoption of Kelsey S. (1992) 1 Cal.4th 816, 840, 843, 849.
Payne v. Superior Court (1976) 17 Cal.3d 908, 914.
In re Axsana S. (2000) 78 Cal.App.4th 262, 269.
See In re Rikki D. (1991) 227 Cal.App.3d 1624, 1631.
We conclude Heriberto has no basis for contending the trial court denied him his statutory or constitutional rights at the hearing to determine presumed father status.
II. THE TRIAL COURT DID NOT ERR IN DECLARING PAUL B. THE PRESUMED FATHER OF JESUSA.
It is undisputed Paul B. and Heriberto both qualify as presumed fathers under Family Code section 7611 Paul B. qualifies as a presumed father because he and Jesusa's mother were married to each other at the time of Jesusa's birth. Heriberto qualifies as a presumed father because he received Jesusa into his home and held her out as his natural child.
Family Code section 7612, subdivision (c), however, states any presumption under section 7611 "is rebutted by a judgment establishing paternity of the child by another man." The trial court adjudged Heriberto to be the biological father of Jesusa. Therefore, Heriberto contends, Paul B's presumed fatherhood was rebutted as a matter of law under Family Code section 7612, subdivision (c). We are not persuaded by this argument because we question its underlying premise: that in the context of dependency proceedings "presumed fatherhood" should be treated as an evidentiary presumption rather than as a rule of substantive law.
The primary purpose of Family Code section 7611, a part of the Uniform Parentage Act, is to establish a child's "natural father" through a series of rebuttable presumptions. In dependency proceedings, however, the purpose of section 7611 is not to establish paternity. Rather, its purpose is to determine whether the man in question has demonstrated a sufficient commitment to his parental responsibilities to be afforded rights not afforded to natural fathers — the rights to reunification services and custody of the child. For this reason, we conclude that in dependency proceedings the term "presumed father" does not denote a presumption of fatherhood in the evidentiary sense and presumed father status is not rebutted by evidence someone else is the natural father.
Family Code section 7611 states: "A man is presumed to be the natural father of a child if he meets the conditions" specified in the statute. See also Dawn D. v. Superior Court (1998) 17 Cal.4th 932, 937 [section 7611 creates a rebuttable presumption affecting the burden of proof in actions to establish paternity].
As noted above, only a statutorily presumed father is entitled to reunification services under Welfare and Institutions Code section 361.5, subdivision (a) and custody of his child under Welfare and Institutions Code section 361.2 Presumed fatherhood, for purposes of dependency proceedings, denotes one who "promptly comes forward and demonstrates a full commitment to his paternal responsibilities — emotional, financial, and otherwise[.]" ( Kelsey., 1 Cal.4th at p. 849.) As one court put it: "The purpose of reunification services is to 'reunite the family in a situation where the best interests of all concerned, the child, the parent and society as a whole, are well served.'" ( In re Sarah C. (1992) 8 Cal.App.4th 964, 975, citation omitted.)
The Supreme Court's decisions in Kelsey S. and Zacharia D. and the statutory scheme itself support our conclusion.
Kelsey S., 1 Cal.4th 816.
In re Zacharia D. (1993) 6 Cal.4th 435.
On several occasions our Supreme Court has observed presumed father status, when used to connote a father with financial and social ties to the child, is unrelated to natural father status. In Kelsey S. the court stated: "A man's parentage of a child may be undisputed and legally proven, but he may nevertheless fail to be a 'presumed father'. . . . Conversely, even if paternity is denied and legally disproved, a man may be deemed, under some circumstances, to be a 'presumed father.'" Although Kelsey S. was an adoption case, it relied on the same categories in section 7611 for determining presumed father status as are used in dependency cases. Moreover, in Zacharia D., which was a dependency case, the court noted "it is possible for a man to achieve presumed father status, with its attendant rights and duties, without being the biological father." The court's observations suggest in the dependency context the term "presumed father" is not an evidentiary term but a term of convenience used to identify a preferred class of fathers by reference to the familial bonds described in section 7611 which the Legislature has determined reasonably approximate the class of fathers it wishes to benefit.
Kelsey S., 1 Cal.4th at p. 823, fn. 3; emphasis added.
Zacharia D., 6 Cal.4th at p. 450, fn. 18. Although there is dictum in this footnote suggesting presumed father status in a dependency proceeding may be rebutted by blood tests establishing another man is the biological father, this issue was not before the court because the man who was not the natural father had terminated all reunification efforts with Zacharia and signed a statement relinquishing any claim he may have had to the child. ( Id. at p. 441, fn. 3.)
See W. E. J. v. Superior Court (1979) 100 Cal.App.3d 303, 308, disapproved on other grounds in In re Baby Girl M. (1984) 37 Cal.3d 65, 72 and in Kelsey S., 1 Cal.4th at p. 849, fn. 13.
The conclusion presumptive fatherhood is not an evidentiary presumption in the dependency context is also clear from the fact that in dependency proceedings a "presumed father" has greater rights than a "natural father." It would not make sense to use the categories in section 7611 simply to establish an evidentiary presumption a man is a "natural father" when, in the dependency context, being a "natural father" is a step below being a "presumed father."
Zacharia D., 6 Cal.4th at p. 449; and see discussion above at page 8.
Moreover, if the role of section 7611 in a dependency proceeding was merely to establish an evidentiary presumption a man was the child's natural father, a man who was already established to be the child's natural father before dependency proceedings commenced logically could never become a "presumed father" because a presumption under the statute would be unnecessary. We fail to see the rationality in a system which would confer more rights on a father when his biological tie to the child is unknown than when it is.
See In re Tricia M. (1977) 74 Cal.App.3d 125, 132.
We conclude, therefore, Paul B.'s presumed fatherhood was not rebutted by the trial court's decision Heriberto is Jesusa's natural father. As a result, we are left with two conflicting presumptions; one favoring Heriberto and one favoring Paul B.
Where two or more conflicting presumptions arise under Family Code section 7611, "the presumption which on the facts is founded on the weightier considerations of policy and logic controls." The trial court found awarding presumed father status to Paul B. best comported with "the state's interest in preserving the integrity of the family and the welfare of the child." The court noted the mother and Paul B. were married and the mother sought refuge with Paul B. after Heriberto allegedly beat and raped her. Regardless of whether the mother's allegations of assault and rape were true, the court found the fact the mother went to Paul B. for aid and comfort demonstrated an important bond between them which would benefit Jesusa. In addition, Paul B. was a career military officer, had stable employment, and had never been convicted of a crime. He was the father of and had custody of Jesusa's half-brothers and half-sisters. Jesusa had spent considerable time in Paul B.'s home even before the juvenile court placed her there and had developed a bond with Paul B. and her siblings. The court also found Paul B. "has assumed the parental rights and particularly assumed the parental responsibilities of this young child."
For the reasons stated above, we find no error in awarding presumed father status to Paul B., Jesusa's step-father, over Heriberto, the child's biological father.
III. THE TRIAL COURT ACTED IN EXCESS OF ITS JURISDICTION WHEN IT ADJUDICATED THE DEPENDENCY PETITION IN HERIBERTO'S ABSENCE.
After the trial court determined the presumed father issue the court proceeded to try the jurisdictional issue. Heriberto was not present for the reasons explained above, and the trial court again overruled his counsel's objection to proceeding in his absence. Based on the social workers' reports, which incorporated reports from the Los Angeles County Sheriff, the Long Beach Police Department, and statements by Heriberto, the trial court found "a factual basis to find true and sustain [the petition] by the preponderance of the evidence[.]"
Heriberto appeals the finding of jurisdiction contending the trial court's failure to provide him an opportunity to appear and testify at the jurisdictional hearing denied him his due process right to a meaningful opportunity to be heard and his right under Penal Code section 2625 to be physically present at the hearing. We conclude that under Penal Code section 2625 Heriberto had an absolute right to be present at the hearing and the trial court acted in excess of its jurisdiction when it proceeded without him.
We reject the Department's contention that because Heriberto had been denied presumed father status he had no right to participate in the jurisdictional hearing or to challenge the jurisdictional finding on appeal. Heriberto's presumed father status has nothing to do with the court's finding of jurisdiction over his child. Indeed, the trial court proceeded backward in this case because if it found no jurisdiction over the minor the issue of presumed fatherhood would be moot.
A. The Trial Court Did Not Deny Heriberto His Due Process Right To A Meaningful Opportunity To Be Heard.
It is well settled a child's biological father has a liberty interest in the companionship, care and custody of his child and the state cannot interfere with this interest without affording the father due process of law. One of the fundamental requirements of due process is a meaningful opportunity to be heard. The opportunity to be heard through counsel generally satisfies this requirement. Situations may arise, however, in which the opportunity to be heard through counsel is insufficient to satisfy the demands of due process. "Accordingly, if a court determines that a prisoner's personal testimony is needed to preserve due process rights," the court has "a constitutional duty" to find some means of obtaining that testimony.Here, the trial court impliedly found Heriberto's personal testimony regarding the jurisdictional allegations was not needed to preserve his due process rights and Heriberto has failed to demonstrate why the court's finding was erroneous.
This is not a case in which Heriberto was prevented from presenting any evidence opposing jurisdiction. The trial court had before it the social workers' reports in which Heriberto denied beating and raping Jesusa's mother on the night Jesusa was detained. The reports also contained Heriberto's explanation the mother incurred facial injuries that night when she beat her own head with her fists because she has "mental problems." In addition, Heriberto had noticed six witnesses other than himself to testify in opposition to the petition including Jesusa's mother and social worker, the police officers who arrested him, and the forensic nurse who examined the mother. The trial court did not prevent Heriberto from calling any of these witnesses. He chose not to.
Cf. Adoption of Baby Girl B. (1999) 74 Cal.App.4th 43, 55.
Additionally, Heriberto's counsel failed to make an offer of proof as to the testimony Heriberto would give if he were present. Indeed it is clear from his counsel's earlier statements opposing the paternity hearing counsel had not discussed the jurisdictional issues with Heriberto, relying instead on his assumption he could do so when Heriberto arrived for the hearings.
See discussion at page 5, above.
Penal Code 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 . . . 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 [or other official] stating the prisoner has . . . indicated an intent not to appear at the proceeding." (Emphasis added.)
In the present case, the trial court acknowledged Heriberto's request to be present at the jurisdictional hearing and ordered the Los Angeles County Sheriff to transport him to the proceedings. By the time the court learned Heriberto had been removed to Kern State Prison it was too late to issue a new order for his transportation to the scheduled jurisdictional hearing. There is no contention Heriberto waived his right to be present at the jurisdictional hearing. Over his counsel's objection the hearing proceeded in Heriberto's absence.
The issue presented by these facts is whether, under Penal Code section 2625, subdivision (d), an incarcerated parent has an absolute right to be present at his child's jurisdictional hearing. The answer to this question, to paraphrase a former president, depends on what the definition of the word "or" is.
Two reported cases have interpreted the phrase "without the physical presence of the prisoner or the prisoner's attorney." Both cases agreed the word "or" is used in the disjunctive to mean the prisoner must be present or the prisoner's attorney must be present but not both. In In re Rikki D., an action to terminate parental rights under former section 232 of the Civil Code, the court concluded "Penal Code section 2625 does not bar commencement of a proceeding to terminate parental rights where a prisoner is represented in court by counsel[.]" The court supported its conclusion with authorities showing "[t]he word 'or' ordinarily means 'an alternative such as 'either this or that . . .''" and the Legislative Counsel's interpretation of the statute to mean "'no proceeding to . . . adjudicate a child a dependent child may be held without the physical presence of the prisoner or the prisoner's attorney. . . .'"
In re Rikki D., 227 Cal.App.3d at p. 1631.
In re Rikki D., 227 Cal.App.3d at pp. 1629-1630, citations omitted; accord In re Axsana S., 78 Cal.App.4th at p. 271.
It is easy to understand why previous decisions construing the statute adopted a disjunctive interpretation of the word "or." The ordinary, familiar meaning of "or" "is to mark an alternative such as 'either this or that.'" Here, the "ordinary" meaning would be either the prisoner or the prisoner's lawyer must be present. Our state-issued Webster's dictionary supports this interpretation. It defines "or" as "used as a function word to indicate (1) an alternative between different or unlike things, states, or actions. . . ." Webster's gives as an example: "wolves or bears are never seen in that part of the country." This sentence means the same as "you never see a wolf in that part of the country and you never see a bear in that part of the country." However, if instead of using the disjunctive "or" the sentence used the conjunctive "and," so that it read "wolves and bears are never seen in that part of the country," the meaning would be ambiguous. The sentence could mean you never see a wolf in that part of the country and you never see a bear in that part of the country or it could mean you may see a wolf or you may see a bear but you will never see them together.
Hogue v. Ford (1955) 44 Cal.2d 706, 712; Kray Cabling Co. v. County of Contra Costa (1995) 39 Cal.App.4th 1588, 1593.
(Webster's Third New International Dictionary (1981) p. 1585 ["Webster's"].)
(Webster's at p. 1585.)
The vagaries of the English language, however, make the disjunctive/conjunctive explanation of "or" and "and" too simplistic. As one legal scholar noted, "[i]n various contexts, 'or' can mean 'and,' and vice versa." Our Supreme Court has held "or" can be construed as "and" "when such construction is found necessary to carry out the obvious intent of the Legislature in a statute . . . when such intent may be gleaned from the context in which the word is used." The court cautioned, nevertheless, using "or" in the conjunctive sense is an "unnatural construction" of the word and should be resorted to only when the intent of the Legislature is "obvious."
(Leff, The Leff Dictionary of Law: A Fragment (1985) 94 Yale ILL. 1855, 2021.)
Hogue v. Ford, 44 Cal.2d at p. 712.
Hogue v. Ford, 44 Cal.2d at p. 712.
Three arguments can be made for reading the phrase "prisoner or the prisoner's attorney" in the disjunctive sense. We have already mentioned the first argument — the disjunctive is the common, ordinary understanding of the word "or" while the conjunctive is "unnatural." In addition, there is no evidence of legislative confusion over the use of "or" instead of "and" in the drafting of the language at issue. Both versions of the bill which introduced what is now subdivision (d) of Penal Code section 2625 used the word "or" as did the Legislative Counsel's Digest. Finally, as a matter of public policy "the juvenile dependency statutory scheme requires that petitions under section 300 be heard and decided rapidly." Delaying jurisdictional proceedings so the incarcerated parent can be located and brought to court when he is already represented by counsel is contrary to that policy.
Assem. Bill No. 4354 (1975-1976 Reg. Sess) amended May 20, 1976, amended June 3, 1976.
Legis. Counsel's Dig., Assem. Bill No. 4354 (1975-1976 Reg. Sess.).
In re Axsana S., 78 Cal.App.4th at p. 272.
We have concluded, however, the word "or" in the sentence under consideration must be construed in the conjunctive sense to mean "and." This was the Legislature's intent as shown by the context in which the word "or" is used. Furthermore, construing "or" in the disjunctive would lead to absurd results.
When reading the statute as a whole it is obvious the Legislature went to great pains to assure the prisoner not only received notice of a dependency jurisdictional proceeding affecting his child but had a right to be physically present at the proceeding if he so desired. Thus, the first sentence of Penal Code section 2625, subdivision (d) states if the prisoner indicates a "desire to be present" the trial court "shall issue an order for the temporary removal of the prisoner from the institution, and for the prisoner's production before the court." To hold the matter can proceed without the physical presence of a prisoner who has indicated a "desire to be present" so long as his attorney is present would render meaningless the first sentence of subdivision (d) which mandates the trial court issue an order for the prisoner's attendance. Such a holding would also render meaningless the provision for the prisoner's "knowing waiver of the right of physical presence" because, if the matter can proceed with only the prisoner's attorney present, there would be no need to obtain the prisoner's waiver of the right to be present.
Pen. Code, § 2625, subds. (b), (c).
In addition, construing the word "or" in the disjunctive would lead to absurd results. If the matter can proceed when either the prisoner or the prisoner's attorney is present then the matter can proceed not only in the Rikki D. situation, in which the prisoner is absent but his attorney is present, the matter also can proceed in the situation in which the prisoner represented by an attorney is present but the attorney is not. Furthermore, the matter can proceed even if neither the prisoner nor the prisoner's attorney is present if the prisoner signed a waiver of his right to be present. The Legislature could not have intended these results.
Having determined the trial court denied Heriberto his statutory right to be present at the jurisdictional hearing, we turn to the question whether this error requires reversal. We conclude that it does because by proceeding with the hearing in Heriberto's absence the court acted in excess of its jurisdiction.
It is has long been recognized a court acts in excess of its jurisdiction where, even though it has jurisdiction over the parties and the subject matter in the fundamental sense, "it has no 'jurisdiction' to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites." This case falls in the latter category. The statute states " no petition . . . may be adjudicated without the physical presence of the prisoner . . . ." (Emphasis added.) Thus the physical presence of the prisoner is a procedural prerequisite to adjudication of the petition and an adjudication in the prisoner's absence is an act in excess of jurisdiction because the trial court has no power, i.e., jurisdiction, to deprive the prisoner of his statutory right.
Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288 The court cites numerous examples of acts in excess of jurisdiction. ( Id. at pp. 288-290.)
Cf. Carter v. Superior Court (1917) 176 Cal. 752, 758 [where defendant entitled to a cost bond, trial court acts in excess of jurisdiction if it proceeds in the absence of the bond].
For the reasons set forth above we conclude the jurisdictional order in this case must be reversed.
DISPOSITION
The order determining Paul B. the presumed father of Jesusa V. is affirmed. The order determining Jesusa V. to be a dependent child of the court is reversed and the cause remanded to the trial court for further proceedings in accordance with the views expressed in this opinion.
We concur:
LILLIE, P.J.
WOODS, J.