Opinion
H043920
02-17-2017
In re A.P., a Person Coming Under the Juvenile Court Law. MONTEREY COUNTY DEPARTMENT OF SOCIAL & EMPLOYMENT SERVICES, Plaintiff and Respondent, v. L.P., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. J48572)
Appellant L.P. (father) appeals from the juvenile court's order terminating his parental rights to his son, A.P. (the child). He claims that the order must be reversed because the notice served on him in jail did not tell him how to arrange for his presence at the termination hearing and the record does not contain a signed waiver of his right to be present at the hearing. We find that father was not prejudiced by these procedural flaws and affirm the order.
I. Background
After the child was a few months old, father was not a significant presence in the child's life. He occasionally visited the child until the child was taken into protective custody in June 2015 at the age of three. The child, who had been left in a dangerous situation by mother, had cigarette burns all over his body and was significantly developmentally delayed. Father had been convicted of inflicting corporal injury on mother, and there was a current restraining order protecting mother from father. Father was homeless and on probation in Santa Clara County for a burglary conviction. He had been incarcerated as a teenager for sexually abusing his sister.
Although father was notified of the June 2015 detention hearing, he did not appear at the hearing. He did participate in weekly one-hour supervised visits with the child, and the visits were appropriate. Father also did not appear at the August 2015 jurisdictional/dispositional hearing. The court took jurisdiction over the child, removed him from parental custody, ordered reunification services for both parents, and granted father weekly supervised one-hour visits with the child.
Father made no effort to participate in reunification services, and he missed two of his August 2015 weekly visits with the child. He told the social worker he "had nothing to work on." His final visit with the child was on September 21, 2015. On September 29, 2015, father was incarcerated in Santa Clara County on resisting arrest and narcotics charges and for violating his probation. He made no effort to maintain contact with the social worker. Father did not appear at the November 2015 interim review hearing. He did not appear for the scheduled February 9, 2016 six-month review hearing; the matter was continued to March 7, 2016 for a contested hearing. Father was released from jail on February 25, 2016, but he did not contact the social worker to seek visits, request services, or inquire about the child's well-being.
Father did not appear at the scheduled March 7, 2016 contested six-month review hearing. The hearing was continued to the next morning. Father did not appear at the morning or afternoon hearings the following day. His attorney did not seek a continuance. The court expressly found that father had been provided with reasonable services, "and he failed to take advantage of them." The court terminated reunification services to both parents and set a Welfare and Institutions section 366.26 hearing for July 5, 2016. Father filed a writ petition challenging the juvenile court's order terminating services. He contended that he had not been provided with reasonable services. This court denied his petition.
Subsequent statutory references are to the Welfare and Institutions Code unless otherwise indicated. --------
Father had no further communications with the social worker and no visits with the child. He was again incarcerated in Santa Clara County's jail and was served by mail at a San Jose post office box on June 17, 2016 with notice of the July 5, 2016 hearing. Father was also personally served at the Santa Clara County jail on June 22, 2016 with notice of the July 5, 2016 hearing. These notices expressly informed father that he had "the right to be present at this hearing and have an attorney represent you."
The child continued to be placed with his half sibling in the same foster home where he had been placed in June 2015, and the foster parents were committed to adopting both children. The children were thriving in this placement.
Father did not appear at the July 5, 2016 hearing, but his appointed attorney was present. The matter was continued to July 12 for an offer of proof by father's attorney and for the setting of a contested hearing. Father did not appear at the July 12 hearing, but his attorney was present. Her request for a continuance was granted, and the matter was continued to July 19. Father did not appear at the July 19 hearing. His attorney requested another continuance so that she could speak to father about an offer of proof. The matter was continued to July 26. Father did not appear at the July 26 hearing. Father's attorney told the court that she had had "some recent contact" with father. "I just need [to] follow up and file something, but I do not anticipate having any offer of proof." She submitted the matter on the social worker's report. The court terminated parental rights as to mother, and it continued the matter to August 16 as to father.
On August 9, 2016, father's attorney filed a document entitled "Offer of Proof." She stated in this document that she had spoken to father by phone on July 22 and "explained the father's rights and the legal standards of a Selection and Implementation hearing." Father's attorney informed the court that "father asserts that the Department did not provide him with reasonable services." He also preferred that the child be placed with his mother. However, he "was unable to articulate any evidence to support an exception under the Welfare and Institutions Code for the Court to not terminate his parental rights." Nevertheless, he asked her "to place his objections on the record" at the hearing.
Father, who remained incarcerated, did not appear at the August 16, 2016 hearing. The court noted that it had "reviewed an offer of proof, which isn't much of an offer of proof . . . ." Father's attorney told the court: "[W]e did discuss the legal standards of a selection and implementation hearing. I explained to him his rights under the code section 366.26, and he was unable to articulate any evidence. [¶] We discussed the case, we discussed the time he spent with his child prior to the dependency. The longest time he ever spent with his son was one week. . . . [W]e don't have any evidence that would fall under one of the sections under a 366.26 to present for an offer of proof. [¶] The father does object to the recommendation, but with that, I have nothing further." The court terminated father's parental rights. Father timely filed a notice of appeal from the court's order.
II. Analysis
Father contends that the juvenile court's order must be reversed because (1) the notice served on him "failed to inform him of the procedures for implementing his right" to be present at the hearing, and (2) the court proceeded with the hearing in his absence and without a waiver signed by him.
"In any proceeding brought under . . . Section 366.26 of the Welfare and Institutions Code, where the proceeding seeks to terminate the parental rights of any prisoner, . . . the superior court of the county in which the proceeding is pending, or a judge thereof, shall order notice of any court proceeding regarding the proceeding transmitted to the prisoner." (Pen. Code, § 2625, subd. (b).) "Service of notice shall be made pursuant to Section 7881 or 7882 of the Family Code or Section 290.2, 291, or 294 of the Welfare and Institutions Code, as appropriate." (Pen. Code, § 2625, subd. (c).) "The notice shall contain the following information: [¶] (1) The date, time, and place of the hearing. [¶] (2) The right to appear. [¶] (3) The parents' right to counsel. [¶] (4) The nature of the proceedings. [¶] (5) The recommendation of the supervising agency. [¶] (6) A statement that, at the time of hearing, the court is required to select a permanent plan of adoption, legal guardianship, placement with a fit and willing relative, or another planned permanent living arrangement, as appropriate, for the child." (§ 294, subd. (e).) "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. No proceeding may be held under . . . Section 366.26 of the Welfare and Institutions Code . . . 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 . . . ." (Pen. Code, § 2625, subd. (d).)
Father accurately identifies two procedural flaws in the proceedings below. California Rules of Court, rule 5.530(f)(1)(A) provides: "Notice to an incarcerated parent of . . . a section 366.26 permanency planning hearing at which termination of parental rights is at issue must inform the incarcerated parent of his or her right to be physically present at the hearing and explain how the parent may secure his or her presence or, if he or she waives the right to be physically present, appearance and participation." (Italics added.) As father points out, the notice served on him did not explain how he could secure his presence at the termination hearing. Furthermore, the juvenile court did not comply with Penal Code section 2625, subdivision (d), as father was not present at the hearing and the record does not contain a signed waiver of his presence.
While we acknowledge these two procedural flaws, errors of this type do not merit reversal of an order unless the appellant can demonstrate that the errors were prejudicial. (In re Jesusa V. (2004) 32 Cal.4th 588, 624.) Father acknowledges that such errors are subject to harmless error review, but he makes no effort to argue that these errors were prejudicial.
These procedural errors were manifestly harmless in this case. Father never chose to attend any of the hearings in this case. He did not attend the June 2015 detention hearing, the August 2015 jurisdictional/dispositional hearing, or the March 2016 contested six-month review hearing even though he received proper notice of these hearings and was not incarcerated when they were held. The notice of the termination hearing properly informed him of his right to be present at the hearing, and his attorney subsequently explained to him his "rights" and attempted to elicit any evidence he might have to offer at the hearing. Despite her efforts, father "was unable to articulate any evidence" that would have been relevant to the court's decision at the hearing. Under these circumstances, father's absence from the hearing was not prejudicial because he could not have offered any relevant evidence if he had been present.
III. Disposition
The order is affirmed.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Elia, Acting P. J. /s/_________
Bamattre-Manoukian, J.