Opinion
E068343
02-14-2018
In re S.L. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. J.C. et al., Defendants and Appellants.
William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant J.C. Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant T.M. Jean-Rene Basle, County Counsel, and Pamela J. Walls, Special Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.Nos. J264262, J264263 & J264264) OPINION APPEAL from the Superior Court of San Bernardino County. Annemarie G. Pace, Judge. Affirmed. William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant J.C. Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant T.M. Jean-Rene Basle, County Counsel, and Pamela J. Walls, Special Counsel, for Plaintiff and Respondent.
Defendant and appellant J.C., hereafter referred to as father, appeals from an order terminating his parental rights to the minors S.L. and G.C. Throughout the dependency proceedings, father was incarcerated in a different county, awaiting trial for the murder of an unrelated infant, and was not allowed to attend the proceedings. He was, however, represented at all times by counsel. He contends that the juvenile court violated his federal constitutional due process rights and his state statutory right to be notified about juvenile court proceedings and to be produced to attend those proceedings. He contends that his exclusion from the jurisdiction/disposition hearing was prejudicial.
We conclude that father's contentions with respect to his absence from the jurisdiction/disposition hearing are not cognizable in this appeal because he did not appeal from the disposition order. We further conclude that he is not excused from the requirement to file a timely appeal from that order, contrary to his contention. He has not attempted to demonstrate that he suffered any prejudice from his involuntary absence from the hearing on termination of his parental rights, which is the sole proceeding from which his appeal is timely. Accordingly, we will affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
On February 26, 2016, petitions pursuant to Welfare and Institutions Code section 300 were filed in San Bernardino County as to the three children of T.M. (hereafter mother). (All further statutory citations refer to the Welf. & Inst. Code unless another code is specified.) G.C. was four years old, S.L. was two years old, and L.L. was six months old. Mother was then cohabiting with T.L., the father of L.L., or had been immediately prior to the events leading to the dependency proceedings. Father was in custody in Riverside County, awaiting trial for the murder of the infant daughter of the woman with whom he had been cohabiting.
L.L. is the half sibling of S.L. and G.C. Father raises no issues pertaining to L.L. Mother also filed a notice of appeal, but she did not file an opening brief raising any issues. Rather, she filed a brief pursuant to In re Sade C. (1996) 13 Cal.4th 952. On September 13, 2017, this court granted her motion to strike the Sade C. brief and to file a notice of joinder in father's opening brief. In her notice of joinder, she did not explain how any issue raised by father applies to her or to L.L. Instead, she merely asserted that if the termination order is reversed as to father, it should be reversed as to her as well. (See, e.g., In re A.L. (2010) 190 Cal.App.4th 75, 80.)
In light of this procedural posture, we need not describe in any detail the proceedings or facts pertaining solely to L.L. Nor do we need to describe mother's efforts at reunification.
The petitions were filed following an altercation between mother and T.L., during which she allegedly punched him in the face and smashed the windows of his vehicle. Mother was arrested for domestic violence. Mother had a history of methamphetamine abuse. She had been clean for several years, but appeared to have relapsed. The home in which they had been living, but were then vacating, was a "mess" and lacked basic provisions for the children. G.C. and S.L. were playing outside without shoes; S.L. was wearing only a diaper. Both children were dirty, had runny noses, and were coughing. They fell asleep almost as soon as they were placed in a car. They slept a good part of the day while their placement was being arranged. G.C. and S.L. were placed with their paternal aunt.
The petitions alleged that mother had endangered the children by engaging in domestic violence in their presence, placing them at risk of severe harm; that she lacked basic provisions and a safe home, placing them at risk for severe neglect; and that she suffered from substance abuse that negatively affected her ability to provide safe and adequate care, within the meaning of Welfare and Institutions Code section 300, subdivision (b). They also alleged that she was cohabiting with a registered sex offender who had been convicted of a violation of Penal Code section 288, placing the children at risk for sexual abuse, within the meaning of Welfare and Institutions Code section 300, subdivision (d), and that she had been arrested and incarcerated for domestic violence and was unable to provide for the care and support of the children, within the meaning of Welfare and Institutions Code section 300, subdivision (g). As to father, the petitions alleged that he was incarcerated for a charge of murder and was therefore unable to provide for the care and support of the children, within the meaning of Welfare and Institutions Code section 300, subdivision (g), and that he had been arrested and incarcerated for causing the death of an eight-week-old baby, putting the children at risk for severe harm or death, within the meaning of Welfare and Institutions Code section 300, subdivision (j).
The registered sex offender was a person other than T.L. Mother resided temporarily with that person after breaking up with T.L.
The original petitions alleged the death of the child as sibling abuse, within the meaning of section 300, subdivision (j). First amended petitions, filed on March 18, 2016, alleged instead that father caused the death of another child through abuse or neglect, within the meaning of section 300, subdivision (f).
Father was present at the birth of G.C., signed a declaration of paternity and is named on the child's birth certificate. He was apparently cohabiting with mother before and after G.C.'s birth. Because he was incarcerated, he was not present at the birth of S.L. Although mother reported that he is the father of S.L., he is not named on the birth certificate and did not sign a declaration of paternity. The court found that father is the presumed father of G.C. and that he is only the biological father of S.L. The court also found that ICWA does not apply.
The Indian Child Welfare Act of 1978. (25 U.S.C. § 1901 et seq.)
Neither reunification services nor visitation were ordered for father. Mother was given a reunification plan, which she ultimately failed to complete. G.C. and S.L. were removed from the home of their aunt, at her request, because she was not able to deal adequately with their behavior. They were placed in a foster home with the anticipation of adoption if mother failed to reunify. Reunification services were terminated on November 30, 2016. At the section 366.26 hearing held on April 24, 2017, the court found that the children were likely to be adopted within a reasonable time and terminated parental rights. Father filed a timely notice of appeal, as did mother. (See fn. 1, ante.)
LEGAL ANALYSIS
Father was not present at any of the hearings in the dependency proceedings, although he was represented by counsel from the detention hearing through the Welfare and Institutions Code section 366.26 hearing. He contends that by proceeding in his absence, the juvenile court violated both his constitutional right to due process and his statutory right, embodied in Penal Code section 2625, to be present at hearings despite his incarceration. He also contends that he did not receive notice of his right to appeal from the disposition order and did not file a notice of appeal from that order for that reason. Therefore, he contends, he should be allowed to address in this appeal the prejudicial effect of his absence from the jurisdiction/disposition hearing.
Penal Code section 2625, subdivision (d), provides: "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 Part 4 (commencing with Section 7800) of Division 12 of the Family Code or Section 366.26 of the Welfare and Institutions Code and no petition to adjudge the child of a prisoner a dependent child of the court pursuant to subdivision (a), (b), (c), (d), (e), (f), (i), or (j) of Section 300 of the Welfare and Institutions Code 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, superintendent, or other person in charge of the institution, or his or her designated representative stating that the prisoner has, by express statement or action, indicated an intent not to appear at the proceeding."
Father also contends that he was not given notice of the requirement that he file a petition for writ review following the review hearing at which reunification services were terminated and the section 366.26 hearing was set. He states that this is an additional reason that we should construe his notice of appeal to be a timely appeal from all prior orders. However, even if he had filed a writ petition, he would not have been able to address errors that arose during the jurisdiction/disposition hearing: jurisdictional findings and disposition orders may be reviewed by means of a petition for writ review only if the order setting the section 366.26 hearing is made contemporaneously with the jurisdiction and disposition orders, i.e., in a case where no reunification services are ordered for either parent. (Maggie S. v. Superior Court (2013) 220 Cal.App.4th 662, 671.)
Here, the order setting the section 366.26 hearing was not made at the jurisdiction/disposition hearing. Accordingly, father's failure to file a writ petition adds nothing to his argument that he should be excused from filing a timely notice of appeal from the disposition order. Moreover, the record shows that father was served with appropriate notice concerning the requirement of filing the writ petition to obtain review of the order terminating reunification services and setting the section 366.26 hearing.
The first appealable order in a dependency proceeding is the disposition order. In an appeal from that order, the appellant may raise any errors that occurred up to that point in the dependency. (In re A.A. (2016) 243 Cal.App.4th 1220, 1234.) If a party fails to appeal from the disposition order, however, the order is "'"final and binding and may not be attacked on appeal from a later appealable order." [Citations.]'" (Ibid.) In In re A.O. (2015) 242 Cal.App.4th 145, this court held that an exception to this rule applies if the juvenile court fails to advise a parent of his or her right to appeal from the dispositional order. (Id. at pp. 147-149.) In In re A.A., however, we held that as expressly stated in rule 5.590(a) of the California Rules of Court, no appeal advisement is required if the parent is absent from the disposition hearing. (In re A.A., at pp. 1236-1238.) Here, father was not present at the disposition hearing. He contends, however, that the rule should not apply because he was involuntarily absent, as a result of the juvenile court's erroneous assumption that an order to transport him for the hearing would have been ineffective.
In pertinent part, California Rules of Court, rule 5.590(a), provides that, after making its disposition order, the court "must advise, orally or in writing, the child, if of sufficient age, and, if present, the parent or guardian" of the right to appeal from the order. (Italics added.)
We agree with father that Penal Code section 2625 cannot simply be ignored because there might be some difficulty involved in arranging for the parent to be transported from another county. Here, however, the record does not reflect the reason for the court's belief that Penal Code section 2625 did not require it to arrange for father's attendance. Moreover, father's attorney not only did not object to proceeding in his absence, she conceded on two occasions that father could not be transported. As a general rule, a reviewing court will not consider an issue if an objection could have been but was not made in the trial court. (In re S.B. (2004) 32 Cal.4th 1287, 1293, superseded by statute on another ground as stated in In re S.J. (2008) 167 Cal.App.4th 953, 962.) Dependency matters are not exempt from that rule. (Ibid.) The purpose of the rule is to encourage parties to bring errors to the trial court's attention so that they can be corrected. (Ibid.) A second purpose is to create a record that permits review of the trial court's ruling to determine if it was erroneous. (In re A.E. (2008) 168 Cal.App.4th 1, 5.) Accordingly, even if we did hold that father was excused from filing a timely notice of appeal from the disposition order, the issue of the trial court's failure to arrange for his attendance would still not be cognizable because it was not preserved for appeal by a timely objection.
We also agree with father that, contrary to respondent's assertion, although Penal Code section 2625 does not apply when the sole allegation is that the incarcerated parent could not make arrangements for the child's care (Welf. & Inst. Code, § 300, subd. (g)), it does apply when there are other allegations as well. Respondent's contention is based on In re Iris R. (2005) 131 Cal.App.4th 337. In that case, however, the subdivision (g) allegation was the sole basis for the dependency. (Iris R., at p. 341.)
Father has also filed a habeas corpus petition alleging that his trial attorney provided constitutionally deficient representation by failing to preserve father's contentions concerning the prejudicial effect of his involuntary absence from the proceedings. (In re J.C. on Habeas Corpus, case No. E068992.) We have addressed the writ petition by separate order.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. FIELDS
J.