Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK81754 Marguerite Downing, Judge.
Grace Clark, under appointment by the Court of Appeal, for Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel and Jacklyn K. Louie, Deputy County Counsel, for Plaintiff and Respondent.
KITCHING, J.
INTRODUCTION
Miguel H. (father) appeals a jurisdictional and dispositional order of the juvenile court regarding his children, Natalia H., Bryan H., Melissa H. and Anthony H. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
This case arises from an incident that occurred on April 1, 2010, which we shall describe below. As of that date, Natalia was eight, Bryan was seven, Melissa was four, and Anthony was two. Erica G. (mother) is the mother of all four children.
About one and one-half years before the commencement of these proceedings, father and mother separated. Although the entire family continued to live on the same parcel of real property, mother and the children lived in the back house of the property while father lived in the front house.
Father had a history of using illegal drugs and alcohol and verbally abusing mother. There is conflicting evidence in the record as to whether father committed domestic violence prior to the incident. The word “socios, ” the name of a street gang, is tattooed on father’s neck. The children’s paternal grandmother denies that father is in a street gang.
Respondent Los Angeles County Department of Children and Family Services (the Department) had two previous referrals regarding father. The first was for general neglect in June 2009. The second was for emotional abuse in September 2009. The record does not indicate how these referrals were resolved.
1. The April 1, 2010, Incident
On April 1, 2010, mother left the children with father, who was unemployed at the time. While father was bathing, the children played with a sack of cement powder in the backyard. When father discovered the mess the children had made he became furious. Paternal grandmother pleaded with father to not hit the children. Unfortunately, father did not listen to this plea. Father punched Natalia in her face causing her to suffer a nasal fracture, and a swollen and bruised eye that almost shut. Father also punched Melissa and Anthony on the back. Only Bryan escaped physical abuse, as he hid under a bed. Bryan, however, stated that he was afraid of father, and that he heard father using the “F” word when he was hitting Bryan’s siblings.
After the incident mother called the Los Angeles County Sheriff’s Department. Police officers from the sheriff’s department investigated the matter, wrote a report, and referred the matter to the Department and the district attorney’s office.
After the incident mother left the property where father lived and moved with the children into the home of a relative. On April 5, 2010, mother applied for and obtained a temporary restraining order against father.
2. The Juvenile Dependency Petition and Initial Hearing
On April 6, 2010, the Department filed a juvenile dependency petition. The petition alleged that the juvenile court had jurisdiction over the children pursuant to Welfare and Institutions Code section 300, subdivision (a) (serious physical harm) as a result of father’s physical abuse of the children on April 1, 2010. It also alleged that the juvenile court had jurisdiction over the children pursuant to section 300, subdivisions (b) (failure to protect) and (j) (abuse of sibling) in light of father’s physical abuse and mother’s failure to protect the children.
All future statutory references are to the Welfare and Institutions Code.
On the same day the petition was filed the juvenile court held an initial hearing. Father and his counsel were present at that hearing. The juvenile court found that there was a prima facie case for detaining the children, released the children to mother, deemed father the presumed father of the children, and scheduled a pre-trial resolution conference (PRC) on April 29, 2010. The court also ordered father back at the PRC on April 29, 2010, without further notice, order or subpoena.
Father was notified of the hearing by voicemail on April 1, 2010. On April 5, 2010, a Department social worker made telephone contact with father. At that time, the Department confirmed father’s address in Los Angeles and again gave him notice of the April 6, 2010, hearing.
3. April 29, 2010, Pre-Trial Resolution Conference
The juvenile court held a PRC on April 29, 2010. Father was not present at the hearing, though his counsel was there.
The court received a jurisdiction/disposition report from the Department dated April 29, 2010. The report stated: “The mother stated that she was told by Detective Marvin Jaramilla” that father “was arrested around 4/21/2010 and put in jail for fracturing Natalie’s [sic] nose.” The report further described the efforts of a Department investigator to locate father. Detective Jaramilla advised the investigator that father may be in a holding cell at Central Regional Detention Center in Lynwood. But when the investigator went there on April 23, 2010, father was not there. Further, the investigator could not locate father on the Inmate Information System. The report thus concluded that father’s whereabouts, as well as his interest and ability to parent, were “unknown.”
At the PRC the juvenile court scheduled a jurisdictional and dispositional hearing on June 17, 2010.
4. June 17, 2010, Hearing and Order
On June 17, 2010, the juvenile court held a jurisdictional and dispositional hearing. Father was not present at that hearing. Father’s counsel stated to the court: “I will be asking for a continuance, because it’s my understanding that father is in custody and I ask for him to be brought in, unless he has signed a waiver.”
The juvenile court denied father’s request for a continuance. In so doing, the court stated: “He [father] was here on 4/29. I ordered him back.” This was not true, because father was not present on April 29, 2010. The court further stated: “He [father] is currently not in county jail, so there is no reason that he is not here and he hasn’t contacted you [father’s counsel], so [the] request [for a continuance] is denied.”
An investigator with the Department filed a “Last Minute Information” dated June 17, 2010, which stated in part: “This investigator previously submitted a Due Diligence to determine if father is in a statewide facility. The Due Diligence remains pending.”
At the end of the hearing, the court sustained the petition with respect to section 300, subdivision (a). The court, however, dismissed the allegations relating to mother, including the allegations that the court had jurisdiction over the children pursuant to section 300, subdivisions (b) and (j). All four children were declared dependents of the court.
With respect to father, the court granted him visitation rights to the children. The court also ordered him to participate in programs for alcohol and narcotics abuse, and to submit to drug testing.
Father filed a timely appeal of the June 17, 2010, order.
CONTENTIONS
Father makes two main arguments. He first contends that the juvenile court abused its discretion when it denied his request for a continuance of the June 17, 2010, hearing. Father also argues that his due process rights were violated because he was not notified of the June 17, 2010, hearing. Based on these two alleged errors, father requests this court to reverse the juvenile court’s June 17, 2010, order.
DISCUSSION
1. The Juvenile Court Did Not Abuse Its Discretion in Denying Father’s Request for a Continuance
Section 352, subdivision (a) provides that the juvenile court may continue any hearing if it is not contrary to the interest of the minors. The statute also states: “Continuances shall be granted only upon a showing of good cause and only for that period of time shown to be necessary by the evidence presented at the hearing on the motion for the continuance.” (§ 352, subd. (a).)
“In considering a request for a continuance, the court must ‘give substantial weight to a minor’s need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements.’ [Citation.] We reverse an order denying a continuance only on a showing of abuse of discretion.” (In re J. I. (2003) 108 Cal.App.4th 903, 912.) “Discretion is abused when a decision is arbitrary, capricious or patently absurd and results in a manifest miscarriage of justice.” (In re Karla C. (2003) 113 Cal.App.4th 166, 180.)
Here, the juvenile court did not act in an arbitrary, capricious, or patently absurd manner when it denied father’s request for a continuance on June 17, 2010. At that time, the court had no way to gauge the likelihood that father would appear at a continued hearing. There is nothing in the record indicating that father’s counsel knew where father could be located at the June 17, 2010, hearing. Further, there is nothing in the record indicating that father was incarcerated at that time.
On appeal father’s counsel speculates about father’s whereabouts on June 17, 2010, and during the time period after father appeared at the April 6, 2010, hearing. Appellant’s opening brief states: “[A]ccording to [the Department] Father was arrested and incarcerated on April 21, 2010. (C.T. p. 57.) Therefore, it is likely that he remained incarcerated during both the April 29, 2010 hearing and the June 17, 2010 hearing.” (Italics added.) The Department, however, could not confirm father’s arrest and incarceration on April 21, 2010. Moreover, it is pure speculation to assume that father remained incarcerated after April 21, 2010.
There is nothing in the record or in father’s appellate briefs indicating that father communicated with his juvenile court counsel on any date after April 6, 2010, or that he ever communicated with his court-appointed appellate counsel. Appellant’s opening brief concludes with a request that father “be allowed to personally file a brief raising any arguable issues with this court.”
In light of the children’s need for an expeditious resolution of this juvenile dependency case, and the absence of information about father’s whereabouts, the juvenile court did not abuse its discretion in denying father’s request for a continuance of the June 17, 2010, hearing.
2. Father Did Not Meet His Burden of Showing the Juvenile Court’s Denial of His Request for a Continuance Resulted in a Miscarriage of Justice
We cannot reverse the juvenile court’s June 17, 2010, order unless father shows that it resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13; In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1430.) Father failed to meet his burden of showing that the juvenile court’s denial of his request for a continuance was prejudicial. He does not, for example, explain what difference, if any, his presence at the hearing would have made. Indeed, because the underlying facts regarding father’s physical abuse of his children are undisputed, it is difficult to imagine what father could possibly have said to convince the juvenile court to issue a different order. Accordingly, even if we assume the juvenile court erroneously denied father’s request for a continuance, we cannot reverse the June 17, 2010, order because the court’s error was harmless.
3. Father Forfeited His Argument Regarding Notice
Father and his counsel were both entitled to receive notice of the June 17, 2010, hearing. (§ 291.) Father’s counsel appeared at the hearing but father did not. There is nothing in the record indicating that father was given notice of the hearing. On appeal, father contends that the June 17, 2010, order must be reversed because he was not given notice of the hearing. Father’s counsel, however, did not argue at the June 17, 2010, hearing that father was not provided with notice of the hearing. Father thus has forfeited the argument on appeal. (In re P.A. (2007) 155 Cal.App.4th 1197, 1209; In re Wilford J. (2005) 131 Cal.App.4th 742, 754.)
4. The Juvenile Court’s Failure to Give Father Notice of the June 17, 2010, Hearing Was Harmless Beyond a Reasonable Doubt
Father contends that the juvenile court’s failure to provide him with notice of the June 17, 2010 hearing violated his due process rights. “In dependency proceedings, due process violations have been held subject to the harmless beyond a reasonable doubt standard of prejudice.” (In re Justice P. (2004) 123 Cal.App.4th 181, 193.)
Here, father was represented at the June 17, 2010, hearing by counsel. At the beginning of the hearing, the juvenile court announced its tentative ruling, which included dismissing several allegations in the juvenile dependency petition. Later, when the juvenile court asked father’s counsel to make his argument, father’s counsel stated: “[I]n light of my conversations that I had with my client previously, I would... submit on the court’s tentative.”
On appeal father does not state what, if anything, he would have said at the hearing if he were present. Father also does not describe how, if at all, his argument at the hearing would have changed if he had been given notice.
Indeed, as stated ante, it is difficult to imagine how father could have gotten a better result. Father brutally assaulted his eight-year-old daughter. He also violently struck his younger children, only four and two years old, respectively, at the time. This was unquestionably a case in which the juvenile court should assume jurisdiction. With respect to the disposition, given his brutality, father was fortunate that the court granted him visitation rights. Likewise, in light of father’s long term drug and alcohol problems, the juvenile court’s order that he seek treatment for those problems and drug testing was reasonable. It is also worth noting that father’s counsel did not object to drug and alcohol treatment and testing, based on his “prior conversations” with father. Accordingly, the juvenile court’s failure to provide father with notice of the hearing was harmless beyond a reasonable doubt.
Father contends that the juvenile court made a “structural” constitutional error, and thus the error is reversible per se. The concept of structural error was developed by the United States Supreme Court in criminal cases. (In re James F. (2008) 42 Cal.4th 901, 914 (James F.).) In James F., however, the California Supreme Court noted there were significant differences in the rights and protections afforded in a dependency proceeding from those afforded in a criminal proceeding. (Id. at p. 915.) The court further stated: “These significant differences between criminal proceedings and dependency proceedings provide reason to question whether the structural error doctrine that has been established for certain errors in criminal proceedings should be imported wholesale, or unthinkingly, into the quite different context of dependency cases.” (Id. at pp. 915-916.)
In James F., the issue was whether the juvenile court’s error in the procedure used to appoint a guardian ad litem for the father in a dependency proceeding required automatic reversal of an order terminating the father’s parental rights, or whether instead the error was subject to harmless error review. (James F., supra, 42 Cal.4th at pp. 904-905.) The juvenile court did not explain to the father what a guardian ad litem is or what powers a guardian ad litem has, nor did the court give the father a meaningful opportunity to be heard in opposition to the appointment. (Id. at p. 911.) It was undisputed that the procedures used for appointment of the guardian at litem for the father did not comport with due process. (Ibid.)
The California Supreme Court nonetheless held that juvenile court’s due process error was not structural. The court noted that the “result achieved” in the case was “correct” and “just” because the father was never ready to assume custody of his son. (James F., supra, 42 Cal.4th at p. 918.) It concluded its opinion with the following statement: “If the outcome of a proceeding has not been affected, denial of a right to notice and a hearing may be deemed harmless and reversal is not required. [Citation.] We conclude that a juvenile court’s error in the process used for appointment of a guardian ad litem for a parent in a dependency proceeding is a form of trial error that is amendable to harmless error analysis.” (Id. at pp. 918-919, fn. omitted.)
Similarly, in this case, the result achieved by the June 17, 2010, order was fair and just. Father does not and cannot explain how the order could have been different had he given notice of the June 17, 2010, hearing. We thus hold that the juvenile court’s failure to provide father with notice was not structural error.
Father relies on three Court of Appeal cases, all of which were decided before the Supreme Court decided James F., and all of which are distinguishable. In In re Jasmine G. (2005) 127 Cal.App.4th 1109 (Jasmine), the Orange County Social Services Agency (SSA) made no attempt to give the mother notice of a selection and implementation hearing, even though it had spoken to the mother eight times over the telephone prior to the hearing, and had her residential address. (Id. at p. 1116). Similarly, in In re DeJohn B. (2000) 84 Cal.App.4th 100 (DeJohn), SSA did not attempt to notify the mother of the six-month review hearing at which the court terminated reunification services and scheduled a permanency hearing. (Id. at p. 102). There are no similar facts in this case. The Department made concerted efforts to contact father but could not locate him. This case is thus distinguishable from Jasmine and DeJohn.
In Judith P. v. Superior Court (2002) 102 Cal.App.4th 535 (Judith), the Department failed to provide the mother with a copy of a status report at least 10 calendar days prior to a section 366.21, subdivision (f), hearing, contrary to the express mandate of the statute. (Judith, at pp. 539-540.) We held that because neither the mother nor her counsel received the statutorily required report, they did not have “reasonable notice of the issues raised by such report, and no reasonable opportunity to prepare to rebut the evidence contained in the report via a contested hearing.” (Id. at p. 558.) No similar facts exist here. Father’s counsel was notified of the June 17, 2010, hearing, and was given all necessary documents to prepare for it. Judith is thus distinguishable from this case.
For the foregoing reasons, we reject father’s argument that the order dated June 17, 2010, must be reversed because of the juvenile court’s failure to provide father with notice of the hearing on that date.
DISPOSITION
The June 17, 2010, order is affirmed.
We concur: KLEIN, P. J., CROSKEY, J.