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In re C.P.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Jan 15, 2020
No. E073145 (Cal. Ct. App. Jan. 15, 2020)

Opinion

E073145

01-15-2020

In re C.P., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. C.T., Defendant and Appellant.

Joanne D. Willis Newton, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel and Jamila Bayati, Deputy County 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.No. J-279897) OPINION APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes, Judge. Affirmed. Joanne D. Willis Newton, under appointment by the Court of Appeal, for Defendant and Appellant. Michelle D. Blakemore, County Counsel and Jamila Bayati, Deputy County Counsel, for Plaintiff and Respondent.

I. INTRODUCTION

Defendant and appellant, C.T. (Mother), appeals from the juvenile court's June 27, 2019 dispositional orders adjudicating Mother's son, C.P., then age 12, a dependent and removing C.P. from Mother's care. Mother claims the court erroneously refused to allow her to appear by telephone at the June 27 hearing, or continue the hearing and "facilitate" her personal appearance at the hearing, after the court failed to order Mother to appear in person at the hearing. She claims the court violated Family Code section 3430 and her procedural due process rights. We conclude this claim is wholly lacking in merit and affirm the challenged dispositional orders.

II. BACKGROUND

In October 2018, Mother and C.T., then age 11, were living in Washington. That month, Mother signed a notarized letter, authorizing L.T., who lived in California, to care for C.P. Mother had only met L.T. two weeks earlier, when L.T. was visiting her father in Washington. Mother and C.P. were homeless, Mother was abusing drugs, and Mother told L.T. she was unable to care for C.T. C.P.'s father died in 2011. L.T. took C.P. to live in L.T.'s home in California and enrolled C.P. in middle school. L.T. came to believe that Mother was "not healthy" for C.P. and limited Mother's calls with C.P. C.P. told L.T. that he "used to smoke weed a lot," that Mother thought it was "okay" for him to do so, and that he had been "abused" while he was staying with Mother.

On February 11, 2019, L.T. and C.P. argued about "stories and lies" C.P. was telling L.T., so L.T. told C.P. to "pack his stuff and 'get out'" of L.T.'s home. L.T. denied she intended to kick C.P. out of her home, claiming she only threatened C.P. "to put the fear of God in him." Later on February 11, L.T. and her husband discovered that C.P. had gone to a neighbor's home. The police were called, and respondent, Children and Family Services (CFS), became involved.

On February 14, a CFS social worker called Mother, who said she had not spoken to C.P. for three months, until C.P. called her on February 11 and said that L.T. had kicked him out of her home and "didn't want him." According to Mother, L.T. had offered to care for C.P. until Mother was "medically stable enough" to care for him, and Mother was now able to care for C.P. Mother wanted to purchase an airline ticket for C.P. so that he could return to Mother in Washington.

On February 19, C.P. told CFS social workers that he understood he would be living with L.T. until Mother could get "'her life together." C.P. said that L.T and her husband were initially "nice" to C.P. but after a couple of months, L.T. stopped allowing C.P. to call or have any contact with Mother. After L.T. told him to "get out," C.P. went to the neighbor's home "for help." Later on February 19, L.T. reported that C.P. had been watching "inappropriate movies" and using "foul language" in speaking to L.T.

Also on February 19, a CFS social worker spoke with the counselor at C.P's middle school, who reported that the school had a handwritten note stating that L.T. was C.P's caregiver. The counselor recalled that "CPS in Washington" had called the school, inquiring about C.P., expressed concern that C.P. had been taken without his mother's permission, and was "glad to hear he was alive and in school." The counselor also reported that, on February 14, the school nurse had called L.T., noted that C.P.'s "enrollment pack" showed he had asthma, and asked L.T. what medication C.P. should be taking for his asthma. L.T. told the nurse that C.P. was no longer living in her home and she had "no idea" where he was.

On February 21, CFS obtained a detention warrant for C.P., took him into protective custody, and notified Mother by telephone that C.P. had been temporarily detained. Mother asked CFS to put C.P. on an airplane and send him "back home" to Washington. CFS reported that Mother did not seem to understand "the severity of her actions" even though she knew C.P. had been "put out" of L.T.'s home and left without food, clothing or shelter.

On February 25, CFS filed a dependency petition for C.P., alleging juvenile court jurisdiction under Welfare and Institutions Code section 300, subdivisions (b) (failure to protect), (c) (serious emotional damage) and (g) (no provision for support). The petition alleged that Mother had a history of substance abuse which impaired her ability to adequately care and supervise C.P.; that Mother had left C.P. in L.T's care without providing for his basic needs, including food, shelter, and medication for his asthma; that Mother had failed to make any effort to provide for C.P. after learning that L.T. had kicked him out of her home; and that Mother had "uprooted" C.P. from his "school, siblings, and extended family without any emotional preparation or support."

At the detention hearing on February 26, the court found that a prima facie case for detention had been made and ordered C.P. detained outside Mother's care. C.P. was in a confidential foster home, and there were no known California relatives to assess for placement. Mother was not present at the hearing but the court-appointed counsel appeared for her, and Mother was properly notified of the hearing. At the hearing, Mother's counsel told the court that she had spoken with Mother that morning, confirmed that Mother lived in Washington state, and reported that Mother was asking the court to assess Mother for returning C.P. to her in Washington. Mother denied the petition's allegations.

C.P. declined to be present at the hearing, but told minor's counsel that his foster home was "great," he liked his new school, and he had lived in Washington "almost his entire life." The court ordered Mother to submit to same day or random drug testing, authorized Mother to have twice-weekly, supervised telephone contact with C.P., and monthly supervised visits, which CFS could liberalize. The court also authorized CFS to release C.P. "to CPS in the state of Washington if appropriate," and continued the matter for a jurisdictional and dispositional hearing on March 19, 2019. The court directed CFS to look into whether Washington authorities would take C.P.'s case.

In a jurisdictional/dispositional report, filed on March 14, 2019, CFS asked the court to continue the March 19 jurisdictional and dispositional hearing "due to UCCJEA [Uniform Child Custody Jurisdiction Enforcement Act, Family Code section 3400 et seq.] issues," given that C.P. was a resident of Washington. Authorities with a child protective services agency in Washington had told CFS that "a parent has a right to leave their child with whomever they wish" and on that basis the agency was declining to open an investigation for C.P.

In court on March 19, the court questioned whether it had jurisdiction over C.P., given that C.P. had been living in Washington, but acknowledged that Washington authorities were thus far declining to open a dependency case for C.P. and that the court had no authority to order Washington authorities do so. The court continued the March 19 hearing to April 29, to allow minor's counsel, and Children's Advocacy Group (CAG), to determine whether C.P. could safely be returned to Mother or to other Washington relatives, if any. For his part, C.P. was still happy in his foster home, and told his counsel he did not want to be returned to Mother until after he went to Magic Mountain at the end of March.

On April 25, CFS reported that there had been multiple referrals alleging Mother had neglected, physically abused, or failed to adequately supervise C.P. and his two siblings. Among other things, it was alleged that the father of C.P.'s half-sibling once "choked slam[ed]" C.P., and that Mother had a history of drug use and trafficking. In December 2017, a dependency case was opened in Arizona, based on allegations that Mother used methamphetamine and marijuana, and engaged in domestic violence in front of the children. In May 2018, Mother "fled" from Arizona to Washington while she was being investigated in Arizona for continuing to use methamphetamine and marijuana, and engaging in domestic violence. One of C.P.'s siblings was placed with the sibling's father in Arizona. In November 2018, a Washington referral alleged Mother had physically abused C.P. and his other sibling by throwing the children against a wall, hitting them with toys and other objects, and kicking them in their sides. Mother would leave the children alone to use drugs. An "adult sister" took custody of C.P.'s other sibling in Washington. CFS had yet to fully investigate Mother's criminal history. Among other things, CFS recommended that the court declare C.P. a dependent, remove him from Mother, and grant Mother reunification services.

In court on April 29, the court discussed the addendum report and determined that the matter should be further continued to allow CFS to determine whether Arizona authorities would open a case for C.P. They also authorized CFS to release C.P. to either Arizona or Washington authorities if either state decided to assume jurisdiction over C.P. The court also indicated it was inclined to assume jurisdiction over C.P. because Mother had willfully sent C.P. to California, but the court expressed concern that its ruling might be reversed on jurisdictional grounds after the case proceeded through a Welfare and Institutions Code section 366.26 hearing.

Thus, on April 29, the court continued the jurisdictional and dispositional hearing to June 27. The court set the matter for a "short-cause contest" on Mother's behalf, and said, "And that way I can go forward." Mother was not present in court on April 29, but she continued to be represented by counsel. Mother's counsel told the court that Mother had not recently been in contact with her counsel, but that Mother was in contact with the social worker.

On June 27, Mother was again not present in court. Mother's counsel advised the court that she had spoken with Mother on the previous day, that Mother had "requested to appear today by phone," but Mother's counsel "warned" her "that may not be possible." The court advised the parties that, on the previous day, it had spoken with an Arizona judge and "they agree[d] California is the best jurisdiction." In addition, Washington authorities were still not interested in assuming jurisdiction. The court ruled that California had jurisdiction, because Mother had impliedly consented to or agreed to California jurisdiction by willfully sending C.P. to California to be cared for.

Next, the court asked all counsel whether the court was "ready to proceed." Mother's counsel responded, " Your Honor, I would be requesting to set it today. If that is not possible, I would submit. The court asked, "What are the issues?" and Mother's counsel responded, "Mom believes that the allegations are not founded. She does object to California taking jurisdiction in this matter." The court responded, "It is on for contest today. It was already set, so I would be going forward." Mother's counsel then told the court: "The communication with Mother has been ongoing since the last hearing. She didn't think this case would proceed in California. During our conversation yesterday, I did inform her that she would have to find a way here or risk not appearing by phone. She did say she could not find a way from Washington to California within such short notice, but she is on notice in regards to this hearing." The court pointed out the matter had been set as contested, on April 29, and that Mother "should have been here, in my mind. I'm prepared to proceed without her. She has had ample notice to make herself available to the Court."

When asked whether the hearing should be continued, county counsel objected to "any continuance," noting that Mother had been aware of the June 27 date since the last hearing on April 29, and Mother had "a history of traveling between states" so any claim that Mother could not make herself present on June 27 was "not consistent with her history." Minor's counsel agreed that the hearing should proceed, noting that Mother "could have made arrangements" to be present June 27, given that two months had passed since the April 29 hearing.

Thus, the court proceeded with the hearing. Following the admission of the reports and argument, the court sustained the allegations of the petition, declared C.P. a dependent, ordered C.P. removed from Mother's custody, granted Mother reunification services, and made further dispositional orders. Mother filed a timely notice of appeal.

Although the notice of appeal does not identify the findings or orders appealed, it indicates that Mother was seeking the return of C.P. to Mother's care.

III. DISCUSSION

Mother claims the juvenile court's denial of her same-day request to appear by telephone at the June 27, 2019 jurisdictional and dispositional hearing, coupled with the court's denial of Mother's implied, alternative request to continue the hearing, was an abuse of the court's discretion, violated her procedural due process rights, "undermined her right to effective assistance of counsel," and also violated section 3430 of the UCCJEA. These claims lack merit. A. The Court Did Not Abuse Its Discretion in Denying Mother's Implied Requests to Either Appear By Telephone on June 27 or Continue the June 27 Hearing

We begin by observing that rule 5.531 of the California Rules of Court, which applies in all juvenile court proceedings, establishes "standards" that apply to "any appearance or participation in court by telephone. . . ." (Rule 5.531(a).) Rule 5.531 requires courts to develop "local procedures or protocols" to ensure the "fairness and confidentiality of any proceeding in which a party is permitted by statute, rule of court, or judicial discretion to appear by telephone." (Rule 5.531(b), added italics.)

References to rules are to the California Rules of Court.

These procedures or protocols are required to: "(4) Establish a deadline of no more than three court days before the proceeding for notice to the court by the party . . . of that party's intent to appear by telephone. . . ." and "(5) Permit the party, on a showing of good cause, to appear by telephone even if he or she did not provide notice of intent to appear by telephone." (Rule 5.531, (b)(4), (5).) We assume that the juvenile court adopted these procedures or protocols, at least informally, given that rule 5.531(b) required the court to do so. (See Evid. Code, § 664 ["It is presumed that official duty has been regularly performed"].) We also interpret rule 5.531 as having prohibited the juvenile court from allowing Mother to appear by telephone at the June 27 hearing, except upon a showing of good cause, given that Mother did not notify the court of her intent to appear by telephone at least three court days before the hearing. (Rule 5.531(b)(4), (5).)

And we assume, for purposes of our discussion, that the court had inherent authority and discretion to allow Mother to appear by telephone on June 27, provided that Mother complied with rule 5.531(b) by demonstrating good cause for appearing by telephone. (See First State Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 324, 333 ["It is well recognized that 'all courts have inherent supervisory or administrative powers which enable them to carry out their duties. . . .'"]; rule 5.531(c) ["Nothing in this rule confers on any person an independent right to appear by telephone"].)

Just as the juvenile court is only authorized to grant an untimely request to appear by telephone upon a showing of good cause (rule 5.531(b)), the court is authorized to continue a jurisdictional and dispositional hearing, "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." (Welf. & Inst. Code, §352, subd. (a)(2); rule 5.550(a)(2).)

Statutory references are to the Welfare and Institutions Code.

The court's denial of a request to continue a hearing in a dependency case is reviewed for an abuse of discretion. (In re F.A. (2015) 241 Cal.App.4th 107, 117.) Likewise, the court's denial of a party's same-day request to appear by telephone at the hearing should be reviewed for an abuse of discretion, given that the court only has discretion to grant either request upon on a showing of good cause. (Rule 5.531(b)(4); § 352, subd. (a)(2); rule 5.550(a)(2).) '"Discretion is abused when a decision is arbitrary, capricious or patently absurd and results in a manifest miscarriage of justice.'" (In re D.Y. (2018) 26 Cal.App.5th 1044, 1056.) And, as a general matter, continuances are discouraged in dependency cases. (Ibid.)

Here, Mother did not show good cause, either for granting her same-day request to appear by telephone at the June 27 hearing, or for granting her request to continue the hearing, for an unspecified amount of time, to allow Mother to travel from Washington to California and appear in person at the hearing.

On June 27, Mother's counsel told the court that counsel had been in contact with Mother since the April 29 hearing, that Mother had been notified of the June 27 hearing, and that Mother was not present in court on June 27 only because Mother did not believe the case would go forward in California. But whether authorities in Arizona or Washington would assume jurisdiction in the case was very much an open question at the time of the previous hearing on April 29. And, on April 29, the court set the matter for a contest on June 27, on Mother's behalf, and made it clear to the parties that it was inclined to assume jurisdiction and proceed on June 27, unless Arizona or Washington authorities assumed jurisdiction in the meantime. Thus, Mother's assumption that the case would not go forward on June 27 was unfounded.

Additionally, Mother's counsel did not claim that Mother was unable to attend the June 27 hearing in person due to any emergency, or because Mother could not afford to travel from Washington to California. Rather, counsel told the court that, when she spoke with Mother on June 26, Mother said "she could not find a way from Washington to California within such short notice." (Added italics.) But as the court pointed out, Mother had "had ample notice to make herself available" on June 27. Mother was notified of the June 27 hearing two months earlier, around April 29, when the record shows she was in contact with her counsel.

Contrary to Mother's argument, the court made it abundantly clear, on April 29, that it was setting the matter as a contest on June 27, so that the court and parties would be able to proceed with the jurisdictional and dispositional hearing on June 27, in the event that neither Arizona nor Washington authorities assumed subject matter jurisdiction in the case before June 27. Mother's assertion that "there was no way for [Mother] to know until June 27, 2019, that the court was going to assert subject matter jurisdiction" is unfounded.

Additionally, and perhaps most importantly, Mother's counsel did not claim that Mother had any testimony or other evidence to offer at the June 27 hearing, regardless of whether Mother was allowed to appear by telephone or whether the hearing was continued.

Mother claims the court's decision to proceed with the June 27 hearing "undermined" her right to effective assistance of counsel, because her counsel was not prepared to proceed with the contested jurisdictional and dispositional hearing on June 27. Mother points out that, on June 27, her counsel asked the court to "set" the matter, and if that was not possible, counsel submitted the matter. We read counsel's request to "set" the matter as an implied request to continue the June 27 hearing, as Mother claims it was, not as a request to "set" the matter for the first time. Indeed, the same attorney represented Mother in court on April 29 and June 27. Thus, Mother's counsel must have known that, on April 29, the court set the matter for a contested jurisdictional and dispositional hearing on June 27. And, if Mother had any evidence to offer at the hearing, or if Mother's counsel was unprepared to proceed on June 27, we presume that Mother's counsel would have said so.

For all of these reasons, the court did not abuse its discretion, either in denying Mother's request to appear by telephone on June 27, or in refusing her request to continue the hearing for an unspecified period. B. Family Code Section 3430 and Mother's Procedural Due Process Rights

Mother makes a novel and unfounded argument that the court's refusal to allow her to appear by telephone on June 27 violated Family Code section 3430, which is part of the UCCJEA. (Fam. Code, § 3400 et. seq.) Mother asserts that, "[t]he juvenile court committed an error of law by refusing to permit [Mother] to appear by phone when it had failed to order her to appear in person or facilitate her doing so in accordance with [Family Code] section 3430 ." (Added italics.) We disagree.

Family Code section 3430 provides: "(a) In a child custody proceeding in this state, the court may order a party to the proceeding who is in this state to appear before the court in person with or without the child. The court may order any person who is in this state and who has physical custody or control of the child to appear in person with the child.
"(b) If a party to a child custody proceeding whose presence is desired by the court is outside this state, the court may order that a notice given pursuant to Section 3408 include a statement directing the party to appear in person with or without the child and informing the party that failure to appear may result in a decision adverse to the party.
"(c) The court may enter any orders necessary to ensure the safety of the child and of any person ordered to appear under this section.
"(d) If a party to a child custody proceeding who is outside this state is directed to appear under subdivision (b) or desires to appear personally before the court with or without the child, the court may require another party to pay reasonable and necessary travel and other expenses of the party so appearing and of the child."

Nothing in Family Code section 3430 required the court to order Mother to appear in person on June 27, and the court did not order Mother to appear in person on June 27. Thus, the court was neither authorized nor required to "require another party to pay" Mother's "reasonable and necessary travel and other expenses" for appearing on June 27. (Fam. Code, § 3430, subd. (d).)

Mother asserts that, "in light of the court's failure to direct [Mother] to appear in person or to make [CFS] provide travel funds for [Mother], in compliance with subdivisions (b) and (d) of [Family Code] section 3430 . . . , it was an error of law for the court to deny [Mother's] request to appear by phone and proceed with the jurisdictional and dispositional hearing without her."

Mother points out that she was homeless in October 2018. Thus, she argues, she "could not afford to travel from Washington to California and back for court hearings." But even if Mother could not afford to pay her travel expenses, Family Code section 3430 did not require or even allow the court to order CFS to pay Mother's travel expenses, when the court did not order Mother to appear, solely on the ground that Mother was indigent and unable to pay her travel expenses.

Contrary to Mother's additional claim, the court's denial of Mother's June 27 request to appear by telephone on June 27 did not deprive Mother of access to the court, or her procedural due process right to be heard in a meaningful manner. Mother cites no authority, and we have found none, to support her claim that her indigency and inability to pay her travel expenses afforded her a procedural due process right to appear by telephone on June 27. As we have also noted, Mother did not even claim, through her counsel, that she needed to appear by telephone because she was indigent and unable to afford her travel expenses. Indeed, Mother never asked the court, at any time, to find that she was indigent.

As we have explained, Mother did not show good cause for appearing by telephone on June 27 or for continuing the June 27 hearing. "When a parent is absent without good cause at a properly noticed hearing, the court is entitled to proceed in the parent's absence. (In re Vanessa M. (2006) 138 Cal.App.4th 1121, 1131.)

IV. DISPOSITION

The June 27, 2019 jurisdictional findings and dispositional orders are affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS

J. We concur: MILLER

Acting P. J. SLOUGH

J.


Summaries of

In re C.P.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
Jan 15, 2020
No. E073145 (Cal. Ct. App. Jan. 15, 2020)
Case details for

In re C.P.

Case Details

Full title:In re C.P., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO

Date published: Jan 15, 2020

Citations

No. E073145 (Cal. Ct. App. Jan. 15, 2020)