Opinion
F079570
01-06-2020
In re P.V., a Person Coming Under the Juvenile Court Law. TULARE COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. P.V., Appellant; JULIA W., Defendant and Appellant.
Elizabeth Klippi, under appointment by the Court of Appeal, for Defendant and Appellant. Deanne H. Peterson, County Counsel, and Amy-Marie Costa, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. JJV071380A)
OPINION
THE COURT APPEAL from orders of the Superior Court of Tulare County. Robin L. Wolfe, Judge. Elizabeth Klippi, under appointment by the Court of Appeal, for Defendant and Appellant. Deanne H. Peterson, County Counsel, and Amy-Marie Costa, Deputy County Counsel, for Plaintiff and Respondent.
Before Levy, Acting P.J., Peña, J. and Snauffer, J.
-ooOoo-
INTRODUCTION
Appellant Julia W. (mother) contends her due process rights were violated when the Tulare County Health and Human Services Agency (agency) failed to properly notify her of the continued jurisdiction hearings. Yet, despite the lack of proper notice, the juvenile court proceeded with a jurisdictional hearing in May 2019. The agency declined to file a respondent's brief in this matter. We reverse.
FACTUAL AND PROCEDURAL SUMMARY
Because the only issue on appeal is whether proper notice of hearings was provided to mother, we focus our recitation of facts and procedure on those matters relevant to this issue.
The minor, P.V., came to the attention of the juvenile court when a Welfare and Institutions Code section 300 petition was filed on her behalf on March 23, 2018, alleging physical abuse, substance abuse, and an unsanitary home environment. The minute order from the detention hearing states that mother was present at the detention hearing and a contested jurisdiction hearing was set for April 23, 2018. The reporter's transcript also shows that mother was present at the detention hearing and present when the contested jurisdiction hearing was set.
References to code sections are to the Welfare and Institutions Code.
A few days after the detention hearing, the minor ran away from her foster home placement. On April 10, 2018, mother told the social worker she was contemplating waiving reunification services because the minor " 'is a risk to her family.' "
At the April 23, 2018 hearing, the minor's whereabouts were still unknown. Mother did not appear in person, but her counsel was present. The matter was continued to June 4, 2018. The minute order directs the agency to make efforts to notify mother of the continued hearing date. There is no indication in the record that notice of the continued hearing was served on mother.
The minor was still on " 'runaway status' " at the June 4, 2018 continued hearing. Mother was not present. Mother's counsel was present at the hearing and indicated that at the time of the last hearing, mother had been in the hospital for kidney stones. Mother " 'didn't hear anything about the next hearing date.' " The juvenile court continued the hearing to July 16, 2018. There is no indication in the record that the minute order, setting forth the continued hearing date, or any other notice was served on mother.
At the July 16, 2018 jurisdiction hearing, the hearing was continued once again, this time to August 27, 2018. Mother was not present at the August 27 hearing; mother's counsel was present. Mother's counsel indicated she had not heard from mother. The juvenile court took the matter off calendar until the minor could be found. The minute order for the August 27 hearing, however, states that a continued jurisdiction and disposition hearing was scheduled for February 11, 2019. There is no proof of service of the minute order in the record.
In September 2018, the minor was located. A week later she ran away again.
Neither mother nor the minor were present at the continued hearing on February 11, 2019, although counsel for mother was present. The juvenile court put the matter over to July 29, 2019. There is no document in the record showing that mother was noticed of the continued hearing date.
The minor was located on May 10, 2019, and placed in a secure foster home. Mother and the minor appeared to have been in contact and the social worker opined that mother had " 'a calming effect' " on the minor.
On May 16, 2019, the agency filed a notice of hearing setting forth a date of May 20, 2019, for a jurisdiction hearing. The proof of service of the notice states that mother's counsel was served by email on May 16; mother was not served.
Mother's counsel appeared at the May 20, 2019, hearing. Counsel stated she had received an email on Thursday and read the email over the weekend. Counsel tried calling mother that morning regarding the hearing but was unable to reach her. Counsel for the agency noted that mother had a right to be present at the jurisdiction hearing but had not been present at any hearing since the detention hearing. The agency's counsel also represented that mother had been ordered to appear without further notice at the detention hearing. The record reveals no such instruction or order was given to mother.
The juvenile court indicated it intended to proceed with a jurisdiction hearing, despite any lack of notice to mother. The juvenile court sustained the amended petition and scheduled a disposition hearing for the following month.
In the disposition report, it was noted that the minor wanted to live with mother and have visitation with her father. The agency recommended the minor be returned to mother's custody with family maintenance services.
Mother and the minor both were present at the June 10, 2019, disposition hearing. The disposition report was admitted into evidence, but the juvenile court indicated it would not follow the agency's recommendation. The minor's counsel stated the minor wanted the juvenile court to follow the agency recommendation and return her to mother's custody.
Mother's counsel also supported the agency recommendation and pointed out that mother had not been noticed of the jurisdictional hearing and disputed jurisdictional findings.
The juvenile court ordered the minor removed from parental custody and that family reunification services be provided.
Mother filed a timely notice of appeal.
DISCUSSION
Mother contends her due process rights were violated, warranting reversal of the jurisdictional findings and orders. The agency apparently agrees, as it did not file a respondent's brief. We agree the deprivation of due process warrants reversal.
Parents have a fundamental and compelling interest in the companionship, care, custody, and management of their children. (Stanley v. Illinois (1972) 405 U.S. 645, 651.) Due process entitles them to notice of juvenile proceedings affecting their interest in the custody of their children. (In re Melinda J. (1991) 234 Cal.App.3d 1413, 1418.) "[D]ue process requires 'notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.' " (Ibid.) We reject the contention that justice is "served by sacrificing a parent's due process rights to a minor's need for stability." (In re DeJohn B. (2000) 84 Cal.App.4th 100, 102.)
"A parent's fundamental right to adequate notice and the opportunity to be heard in dependency matters involving potential deprivation of the parental interest [citation] has little, if any, value unless the parent is advised of the nature of the hearing giving rise to that opportunity, including what will be decided therein. Only with adequate advisement can one choose to appear or not, to prepare or not, and to defend or not." (In re Stacy T. (1997) 52 Cal.App.4th 1415, 1424 (Stacy T.).) Thus, it is not enough to merely inform the parent of the date, time and place of a hearing; the parent has a due process right to be informed of the nature of the hearing, including what will be decided at the hearing, in order that the parent may make an informed decision whether to appear and contest the matter. (In re Wilford J. (2005) 131 Cal.App.4th 742, 751 (Wilford J.); see also In re Anna M. (1997) 54 Cal.App.4th 463, 468 [notice regarding the setting of a section 366.26 hearing must notify the parent "of what [is] truly at stake in the section 366.26 hearing"].)
In Wilford J., supra, 131 Cal.App.4th 742, the father, who did not appear at the detention hearing, was given a " 'generic notice' " of the next hearing which advised him of basic rights but did not advise him of the nature of the proceedings. The proceedings were in fact a pretrial resolution conference. Father, who was not represented, did not appear, and the court proceeded with a jurisdictional hearing. On appeal, the father contended that his due process right to notice had been violated. The appellate court agreed: "Converting a noticed [pretrial resolution conference] into an unscheduled jurisdictional hearing, absent appropriate waivers from the parties or their counsel, deprives parents of vitally important procedural protections that are essential to ensure the fairness of dependency proceedings." (Id. at pp. 746-747.) "Although the failure to respond to a court order to attend a [pretrial resolution conference] may serve as the basis for an award of sanctions (Local Rule 17.22(a); see Code Civ. Proc., § 177.5), nonappearance at a [pretrial resolution conference] does not justify conducting an entirely different proceeding or entry of the absent party's 'default' on the allegations of the section 300 petition." (Id. at p. 750.)
Here, mother was not even afforded a generic notice. Neither the agency nor the juvenile court provided mother with any notice of the continued jurisdiction hearings. Moreover, when mother's counsel received a mere four days' notice by email of the May 20, 2019 jurisdiction hearing, and was unable to contact mother before the hearing, counsel raised the issue of inadequate notice. Yet, the juvenile court chose to proceed.
At the June 10, 2019 disposition hearing, held three weeks after the jurisdiction hearing, mother and her counsel again raised the lack of notice of the May 20, 2019, jurisdiction hearing. The juvenile court erroneously stated, "Mother had notice and she chose not to be here...." This comment from the juvenile court was erroneous, as the record discloses no notice was given to mother of that hearing.
The jurisdiction hearing was held 14 months after the petition was filed. Circumstances had changed during that time, as the disposition report filed for the June 10, 2019, disposition hearing noted. The agency now believed circumstances had changed to the extent they recommended the minor be returned to mother's custody. Mother had completed parenting courses, anger management courses, and was on appropriate medication.
Mother was not given adequate notice of the jurisdiction hearing on May 10, 2019, or the prior continued jurisdiction hearings. Failure to provide mother notice and an opportunity to contest the proposed findings deprived her of due process. (In re Melinda J., supra, 234 Cal.App.3d at p. 1418.) We will reverse the findings and jurisdiction and disposition orders and direct the matter be set for a jurisdiction hearing of which mother and her counsel are to be provided adequate notice. (Stacy T., supra, 52 Cal.App.4th at p. 1424.)
DISPOSITION
The May 20, 2019 jurisdiction findings and order, and the June 10, 2019 disposition order, are reversed. The matter is remanded to the juvenile court with directions to set a jurisdiction hearing of which mother and her counsel are to be provided adequate notice. (Stacy T., supra, 52 Cal.App.4th at p. 1424.)