Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County. Nancy Williamsen, Commissioner. Super. Ct. No. 515373
Erik R. Beauchamp, under appointment by the Court of Appeal, for Defendant and Appellant.
John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Levy, J.
INTRODUCTION
Appellant M.M. is the alleged father of an infant adjudged a juvenile dependent. On appeal, he contends the court erroneously ordered him to be financially responsible for the minor’s expenses and for the costs of appointed counsel, without conducting a hearing on his ability to pay. Respondent asserts the instant appeal is premature since the court has not ruled upon appellant’s paternity challenge and appellant is not yet subject to any reimbursement orders. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2008, S.D. gave birth to a child, M.M. S.D. had a history of severe psychiatric, behavioral, and mental health problems. S.D. also had a history of substance abuse problems. Both S.D. and the child tested positive for methamphetamine when the minor was born. S.D. admitted that she used methamphetamine during her pregnancy, and a social worker determined she continued to use drugs after the minor’s birth.
Respondent, the Stanislaus County Community Services Agency, determined that S.D. was unable to care for M.M., she was not truthful to social workers about the infant’s whereabouts, and she was not truthful about whether she had provided sufficient formula and clothing to the people who were caring for the infant. S.D. failed to attend a team decision meeting scheduled on November 13, 2008, and respondent decided to detain the minor because of S.D.’s flight risk and her refusal to take medication for her significant mental health problems. The minor was placed in foster care.
Appellant is the minor’s alleged father. At the time of the minor’s birth, appellant and S.D. were not married, appellant was in custody in county jail, appellant did not sign the paternity declaration, and there were no other possible fathers named for the minor at that time. Appellant had a lengthy felony and misdemeanor record, including service of prison time and multiple parole violations.
A social worker interviewed appellant at the county jail shortly after the minor was taken into protective custody. Appellant said he was in jail for violating parole. He was charged with assault with a deadly weapon and served time in prison, and he thought he would be sent back to prison until August or September 2009. Appellant said he was the minor’s possible father. Appellant admitted daily methamphetamine use and said he used methamphetamine with S.D. He did not think S.D. used methamphetamine while she was pregnant, but he believed S.D. needed drug treatment. Appellant denied having a drug problem but he was willing to enter a drug treatment program if it would help. The social worker had reports about domestic violence between appellant and S.D., but appellant denied any domestic violence incidents with S.D. Appellant wanted his mother or brother evaluated to take care of the minor.
On November 14, 2008, respondent filed a petition in the Superior Court of Stanislaus County alleging the minor was a dependent within the meaning of Welfare and Institutions Code section 300, subdivisions (b) and (g), and that appellant was the minor’s alleged father. As to section 300, subdivision (b), it was alleged the minor was at substantial risk because S.D. had a history of severe psychiatric, behavioral and mental health problems, substance abuse problems, and domestic violence incidents with appellant. As to section 300, subdivisions (b) and (g), it was alleged that appellant was incarcerated in Stanislaus County Jail for drug possession and violating parole.
All further statutory citations are to the Welfare and Institutions Code unless otherwise indicated.
On November 17, 2008, the court conducted the detention hearing. S.D. and appellant were present, and appellant was in custody. The court ordered the minor detained, and appointed attorneys to represent appellant and S.D. The court granted appellant’s motion for DNA testing to determine paternity.
On December 1, 2008, the court convened the scheduled jurisdiction hearing. Both appellant and S.D. were present with their attorneys. Appellant was in custody, and informed the court he was about to be transferred from county jail to Deuel Vocational Institute (DVI). The court continued the hearing because the parties had not received respondent’s jurisdiction report, and stated it would order appellant to be transported from DVI to attend the jurisdiction hearing.
On December 15, 2008, the court issued an order for appellant to be transported from DVI to the next hearing on January 6, 2008.
The Jurisdiction/Disposition Report
On January 2, 2008, respondent filed a report in anticipation of the upcoming jurisdiction/disposition hearing. According to the report, S.D.’s whereabouts were unknown, and she had failed to meet with the social worker or appear for any scheduled appointments. The report recommended the court find due diligence had been used to locate S.D., and to deny services to S.D. pursuant to section 361.5, subdivision (b)(1).
The report stated that respondent was unable to determine appellant’s location or whether he was still in custody, which prevented respondent from complying with the court’s order to conduct paternity testing. The report recommended denial of services to appellant pursuant to section 361.5, subdivision (a).
Respondent’s report further stated:
“It is further recommended, pursuant to Section 903, 903.1 and 903.2 … that the father, mother, spouse or other person liable for the support of the child, the estates of such persons, and the estates of the child, shall make payment to the Stanislaus County Department of Child Support Services, for the cost of the child(ren)’s care, support and maintenance, for legal services rendered to the child or the mother, father, spouse or other person liable for the support of the child and for the supervision of the child, as ordered by the Juvenile Court, in an amount to be determined by the Stanislaus County Department of Child Support Services in accordance with their ability to pay.” (Italics added.)
The Jurisdiction/Dispositional Hearing
On January 6, 2009, the court convened the joint jurisdiction/dispositional hearing. Appellant and S.D. were not present but were represented by their attorneys. The court determined appellant was still in custody but he was not transported to the hearing because appellant’s attorney did not have his correct prison identification number.
The court asked whether there was legal authority to order appellant’s transportation from prison to attend the hearing since appellant was “merely an alleged father. His rights are limited to establishing paternity.” The court noted that the statutes authorized transportation of a parent, but queried whether appellant was “a parent at this point or is he merely an alleged father? … I’m not sure why we are giving him a paid vacation from prison when he has not established paternity at this point. It would be different, I think, if he were a biological father but not a presumed father.”
The court continued the hearing because respondent intended to file an amended petition to include allegations that S.D.’s whereabouts were unknown. The court further ordered that appellant’s request for a transportation order had to be supported by points and authorities as to whether an alleged father had the right to be transported from prison to the hearing.
On January 8, 2009, respondent filed the first amended petition, which included the allegation that S.D.’s whereabouts were unknown.
On January 9, 2009, appellant filed a motion for a transportation order from DVI to the jurisdiction/disposition hearing, and argued he was entitled to be present at the hearing pursuant to Penal Code section 2625. Appellant argued the statute authorized transportation of prisoners for hearings involving the child of a prisoner, and the statute did not distinguish between an alleged, biological, or presumed parent.
On January 13, 2009, the court conducted the jurisdiction/disposition hearing as to the amended petition. Neither appellant nor S.D. was present. Appellant’s counsel objected to conducting the hearing in appellant’s absence. The court reviewed appellant’s motion and denied the transportation request, and found appellant did not have a statutory right to be present under to Penal Code section 2625.
“At this time [appellant] is merely an alleged father. He is not a parent. He has not yet established paternity or parentage. His rights are limited at this time to merely establishing that he is the father. And then at that point to establish at what level, whether he is merely an alleged, biological, declared, or presumed father. Also, the Court has previously attempted to have him transported here through a previous signed order for transport.
“Despite [appellant’s] lack of establishing parentage at this time, he has an attorney who is present to represent his interests. At this point his interests are merely to establish he is the father so that has not yet happened, although the Court has made the necessary order for that to happen.” (Italics added.)
Penal Code section 2625, subdivision (b) provides for the court to issue transportation orders for prisoners to attend proceedings which seek to “adjudicate the child of a prisoner a dependent child of the court.” Section 2625 does not authorize transportation of a prisoner to a hearing to determine whether he is a presumed father, where the prisoner was represented by counsel. (In re Jesusa V. (2004) 32 Cal.4th 588, 600-602.)
The court further found that even if appellant had a statutory right to be present, such a right would not override the time limits in a dependency case and the court did not find good cause to continue the matter.
The court found the facts in the amended petition were true, adjudged the minor as a dependent within the meaning of section 300, subdivisions (b) and (g), and found a substantial risk of danger if the minor remained in the custody of a parent. The court found S.D. had mental health and substance abuse problems which rendered her unable to provide proper care and control for the child, “and there is no identified father who could provide care.” (Italics added.) The court found respondent used due diligence to determine S.D.’s whereabouts.
The court denied reunification services to S.D. pursuant to section 361.5, subdivision (b)(1). The court also denied services to appellant as the “alleged father” pursuant to section 361.5, subdivision (a). The court further ordered:
“Social worker may authorize such medical, surgical, dental, or other care which from time to time may become necessary. Parents continue to be financially responsible for their child. Parents are also responsible for reimbursement of attorney fee cost. Court does approve the case plan attached to the disposition report.” (Italics added.)
The court determined the DNA test to establish paternity was scheduled for later that month, and set the matter for a paternity hearing in February 2009, and the six month review hearing in June 2009.
The court’s minute order for the jurisdiction/disposition hearing states: “The Court adopts findings and Orders as set forth on pages 21-23 of the Social Workers report filed on 1-2-09 and are incorporated as part of this minute order ….” As set forth ante, there is a recommendation in page 22 of that report, for the court to find the “mother” or “father” were financially liable for the minor’s care and maintenance, and for legal services rendered to the minor, the “mother,” or the “father,” “as ordered by the Juvenile Court, in an amount to be determined by the Stanislaus County Department of Child Support Services in accordance with their ability to pay.” (Italics added.)
DISCUSSION
On appeal, appellant contends the juvenile court improperly ordered him to be financially responsible for the minor, and for the legal services provided to appellant and the minor in the dependency matter, because the court failed to allow for a determination of his ability to pay such costs. Appellant asserts the court’s order must be stricken because “it is rather obvious” he does not have the ability to pay since he was in prison during the hearings in this case.
The court’s orders at issue in this case involve sections 903, 903.1, and 903.2. Section 903 provides that the “father, mother,… or other person liable for the support of a minor … shall be liable for the reasonable costs of support of the minor” while the minor is detained pursuant to an order of the juvenile court. (County of Los Angeles v. Ralph V. (1996) 48 Cal.App.4th 1840, 1843; § 903, subd. (a).) A “father, mother,… or other person liable for the support of a minor” is similarly liable for the cost to the county of legal services rendered to the minor pursuant to an order of the juvenile court, for legal services rendered by the county to the “father” or “mother” in a dependency proceeding (§ 903.1, subd. (a)), and for the costs of probation (§ 903.2, subd. (a)). (See also § 903.4, subd. (a).)
There are several problems with appellant’s arguments in this case based upon the express language of the financial responsibility statutes. First, these provisions state that the “father” shall be financially responsible for various costs in a dependency matter, including legal services provided to him. (§ 903, subd. (a); § 903.1, subd. (a).) As the juvenile court extensively discussed at the jurisdiction/disposition hearing, appellant is an “alleged father” who has challenged paternity. The court ordered DNA tests to determine paternity but those tests had not been accomplished because of appellant’s custodial transfer. Thus, appellant’s challenge to the court’s financial responsibility order is premature because the court has not resolved his paternity contest or determined he is the minor’s “father.”
As noted by respondent, while an appeal may be taken from the juvenile court’s disposition order, it could be argued that appellant is not an “aggrieved party” with a right to raise this specific issue in this appeal, since the court’s order was potentially applicable to the minor’s “father,” and appellant has not been adjudicated as the minor’s “father.” (See, e.g., In re George B. (1991) 228 Cal.App.3d 1088, 1094; Code Civ. Proc., § 902.)
Second, appellant’s challenge also is premature because the court did not order appellant to pay a specific amount pursuant to a “father’s” financial responsibility for a dependent minor, or for the legal services provided by the county to the minor and the minor’s “father.” Appellant has not been ordered to make any payments pursuant to sections 903, 903.1, and/or 903.2.
Third, even assuming the court’s orders were applicable to appellant as an “alleged father,” the entirety of the record refutes appellant’s assertion that the court’s financial responsibility order violated due process and failed to provide for the court or an appropriate agency to determine his ability to pay. In making the dispositional orders, the juvenile court stated that the “[p]arents continue to be financially responsible for their child. Parents are also responsible for reimbursement of attorney fee cost.” Appellant asserts these statements constitute the full extent of the court’s orders and necessarily omitted any reference to whether the parent has the ability to pay.
However, the court’s next sentence was: “Court does approve the case plan attached to the disposition report.” The minute order further states that the court adopted the “findings and Orders as set forth on pages 21-23 of the Social Workers report filed on 1-2-09 and are incorporated as part of this minute order ….” As we have already explained, page 22 of respondent’s report specifically provides that the “mother” or “father” shall be financially liable for the child’s care and maintenance, and for legal services rendered to the child, the mother, or the father, “as ordered by the Juvenile Court, in an amount to be determined by the Stanislaus County Department of Child Support Services in accordance with their ability to pay.” (Italics added.)
Appellant acknowledges the notation in the minute order, and the language contained in respondent’s January 2, 2009, report and recommendations about an ability to pay finding, but contends such language is not part of the court’s order in this case because the reporter’s transcript is silent on whether the court made an ability to pay finding, and inconsistencies between the reporter’s transcript and clerk’s transcript must be resolved in favor of the reporter’s transcript. (See, e.g., People v. Mesa (1975) 14 Cal.3d 466, 471 [when the record of the court’s oral pronouncement of sentencing conflicts with the clerk’s minute order, the oral pronouncement controls].)
The California Supreme Court, however, has rejected “such a mechanical rule” and outlined the “correct approach” when such a conflict occurs: “‘It may be said... as a general rule that when, as in this case, the record is in conflict it will be harmonized if possible; but where this is not possible that part of the record will prevail, which, because of its origin and nature or otherwise, is entitled to greater credence [citation]. Therefore whether the recitals in the clerk’s minutes should prevail as against contrary statements in the reporter’s transcript, must depend upon the circumstances of each particular case.’” (People v. Smith (1983) 33 Cal.3d 596, 599, quoting In re Evans (1945) 70 Cal.App.2d 213, 216; see also People v. Cleveland (2004) 32 Cal.4th 704, 768.)
Thus, “[a]s a general rule, a record that is in conflict will be harmonized if possible. [Citation.] If it cannot be harmonized, whether one portion of the record should prevail as against contrary statements in another portion of the record will depend on the circumstances of each particular case. [Citation.]” (People v. Harrison (2005) 35 Cal.4th 208, 226.) “When a clerk’s transcript conflicts with a reporter’s transcript, the question of which of the two controls is determined by consideration of the circumstances of each case. [Citation.]” (People v. Malabag (1997) 51 Cal.App.4th 1419, 1422-1423.) Absent a conflict between the transcripts, the clerk’s transcript can be relied upon to establish even a valid waiver of constitutional rights where the reporter’s transcript is silent on the matter. (Id. at p. 1423.) Moreover, a clerk’s transcript may control over a conflicting reporter’s transcript where the clerk’s transcript was detailed and more reliable. (Id. at p. 1426.)
In the instant case, there is no conflict between the clerk’s and reporter’s transcripts. Indeed, the transcripts actually coincide and complement each other. The reporter’s transcript contains the court’s dispositional orders, including the court’s approval of the dispositional plan. The minute order in the clerk’s transcript provides greater detail of the court’s orders by citing to specific pages of respondent’s report which expressly provided for a determination of a parent’s ability to pay prior to the imposition of any financial responsibility orders.
Moreover, the court’s adoption of the “ability to pay” language in respondent’s report is consistent with the statutory scheme at issue here. An order for financial responsibility can issue only after the parents, by means of an order to show cause, have had the opportunity to appear and present evidence that they are not financially able to pay. (§ 903.4, subds. (c), (d) & (e).) Section 903.45 allows a county to designate a county financial evaluation officer who is empowered to hold hearings for the purposes of determining if a parent or other person liable for support has the ability to pay, and to petition the court for an order requiring that person to pay. The parent has the right to notice and a hearing before the county financial evaluation officer as to the parent’s ability to pay, and a right to contest the county financial officer’s determination before the juvenile court. (§ 903.45, subds. (a) & (b).) At any time before satisfaction of a judgment entered under section 903.45, the parent “may petition the rendering court to modify or vacate the judgment on the basis of a change in circumstances relating to his or her ability to pay the judgment.” (§ 903.45, subd. (c).)
Appellant asserts there is no evidence that Stanislaus County has such a financial officer, based upon information obtained by appellate counsel during a telephone call to a county agency. Such information is not properly before this court.
Sections 903 and 903.2 expressly condition the parent’s financial responsibility on his or her ability to pay. (§ 903, subd. (c), § 903.2, subd. (b).) While section 903.1 does not contain an express “ability to pay” provision for legal costs, section 903.45, subdivision (b) directs the county officer to evaluate the parent’s ability to pay costs imposed under sections 903, 903.1, 903.2, “or any other reimbursable costs allowed under this code.” Thus, a parent who is held financial responsible under sections 903, 903.1, and 903.2, is entitled to a hearing before the juvenile court regarding his or her ability to pay, and that determination is reviewed for an abuse of discretion. (§ § 903.4, 903.45.)
We thus conclude that appellant is not yet subject to any type of financial responsibility order since the paternity of the dependent minor has not been determined. We further conclude that the entirety of the record contains the court’s clear order that a parent in this case shall not be subject to a financial responsibility order without a determination of that parent’s ability to pay, consistent with the provisions of the financial responsibility statutes.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Vartabedian, Acting P.J., Hill, J.