In re J.A.
Filed 9/4/13 In re J.A. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
>
In re J.A., a Person Coming Under the Juvenile Court Law. | |
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. B.W., Defendant and Appellant. | E058470 (Super.Ct.No. J243976) OPINION |
APPEAL
from the Superior Court
of
Bernardino County.
Gregory S. Tavill, Judge.
Affirmed.
Teri
A. Kanefield, under appointment by the Court of Appeal, for Defendant and
Appellant.
Jean-Rene
Basle, County Counsel,
Jeffrey L. Bryson, Deputy County Counsel, for Plaintiff and Respondent.
No
appearance for Minor.
The
juvenile court terminated the parental
rights of J.E. (Mother) and defendant and appellant B.W. (Father) to their
son, J.A. (Welf. & Inst. Code, §
366.26, subd. (b)(1).)
name="_ftnref1" title="">[1] Father raises six issues on appeal. First, Father asserts the juvenile court
violated his statutory and due process
rights by not honoring his request to be transported to the termination
hearing. Second, Father contends the
juvenile court erred by not informing Father he could request the court find
him to be a presumed father. Third,
Father asserts the juvenile court, and plaintiff and respondent
Services (the Department), failed to timely inform him that a test revealed
he was J.A.’s biological father. Fourth,
Father contends the juvenile court violated Father’s opportunity to be heard
when it did not respond to Father’s written request for an attorney. Fifth, Father asserts the foregoing alleged
errors had the cumulative effect of denying him due process. Sixth, Father asserts the juvenile court
erred by not performing a proper inquiry pursuant to the
J.A.
is male and was born in April 2012. At
the time of birth, J.A. tested positive for methamphetamines. Mother had six other children who had been
removed from her care due to Mother’s substance abuse. Mother’s parental rights to two of her children
were terminated, and Mother failed to reunify with the other four children. S.S., the father of two of Mother’s other
children, was named as J.A.’s father on J.A.’s birth certificate. However, on April 26, Mother said she did not
know who J.A.’s father was.
On
April 30, 2012, the
Department filed a petition alleging Mother failed to protect J.A. by (1)
abusing drugs; (2) engaging in domestic
violence in the past and not addressing the violence; (3) not benefiting
from prior reunification services; and (4) abandoning J.A. at the hospital. (§ 300, subd. (b).) The Department alleged Mother left J.A.
without provisions for support because Mother’s whereabouts were unknown. (§ 300, subd. (g).) The juvenile court ordered J.A. be detained
and placed in a foster home. The court
ordered that S.S. take a paternity test.
The court ordered that Mother complete a paternity inquiry. The juvenile court advised Mother she might
not receive reunification services. (§
361.5, subd. (b).) The court denied
Mother visitation with J.A.
In
an amended petition dated April 30,
2012, Father was named as an alleged father along with S.S. On May 14, S.S. told a Department social
worker that he might be J.A.’s father.
The Department was waiting to receive results from the paternity
test. Mother told the social worker “she
is not sure who the father is but she is adamant that the child’s father is not
[S.S.]†Mother completed a “Parental
Notification of Indian Status†form. The
form reflected Mother did not have Indian ancestry.
The
DNA paternity test was completed on May
23, 2012. The test revealed
a zero percent probability that S.S. was J.A.’s father. On June 20, the juvenile court was informed
of the paternity test results. S.S. was
excused from all further hearings. At a
hearing on July 19, Father was not present in court due to being in prison;
however, his attorney was present. The
hearing was continued so Father’s attorney could “prepare [a] transportation
order.†The transportation order was
prepared and signed by the juvenile court judge on July 23. On July 26, Father was served with a form
entitled “Prisoner’s Statement Regarding Appearance at Hearing Affecting
Parental Rights.†The form allowed a
prisoner to inform the court of his/her desire to be present at an upcoming
hearing.
Mother
was arrested on June 19 for burglary.
(Pen. Code, § 459.) Mother was
released on June 22, but arrested again on July 31 for fighting in a public
place. (Pen. Code, § 415.) Mother was released on August 1; her
whereabouts were unknown following the release.
Father’s mother (Grandmother) contacted a Department social worker and
said Father was an alcoholic.
Grandmother explained Father was in prison for burglary and had
approximately 18 months left to serve on his sentence.
The
juvenile court held J.A.’s jurisdiction and disposition hearing on August 20,
2012. Father and his attorney were
present at the hearing; Father was in custody.
Father’s attorney requested a paternity test to determine if Father was
J.A.’s biological father. The court
ordered DNA testing for Father. The
court found J.A. did not come under the provisions of ICWA. The court found true the allegations that
Mother failed to protect J.A. (§ 300, subd. (b)), left J.A. with no provisions
for support (§ 300, subd. (g)), and failed to reunify with J.A.’s half
siblings. The court ordered J.A.
continue to be placed in foster care.
The court denied visitation and reunification services to Mother and
Father. At the hearing, the court gave
notice that (1) the termination of parental rights hearing would take place on
December 18, 2012, at 8:30 a.m.; and (2) a review hearing would take place on
September 28. The juvenile court said,
“[Father] is ordered to return on December the 18th. This is notice to you of that hearing.â€
On
November 6, 2012, the juvenile court judge signed an order to transport Father
to the December 18 hearing. The
transportation order reflected Father was to be transported from North Kern
State Prison. J.A.’s DNA was collected
on November 7, and Father’s DNA was collected on November 27. Paternity test results were completed on
December 6, 2012, and filed with the court on December 14. The test reflected a 99.99 percent probability
that Father was J.A.’s biological father.
On December 18, Father’s attorney was present in court, but Father was
not at the hearing. Father’s counsel
said, Father “did waive his presence for this hearing.†The court continued the hearing to February
4, 2013. The court asked if notice was
complete for the February 4 hearing. The
Department’s counsel responded, “Father was noticed in court for today.â€
On
January 24, 2013, the Department informed the court that Father was scheduled
to be released from Soledad State Prison on October 11, 2013. On January 27, Father wrote a letter to the
juvenile court. In the letter, Father
expressed his “wish to exercise [his] custody rights and be included in all
decisions concerning [J.A.’s] welfare.â€
Father wrote, “Recently I learned of a February 4th hearing regarding my
son. I received no notice of this
hearing, and was not given an opportunity to attend. Had my mother not informed me, this hearing
would have occurred without my knowledge.
I request that any decisions concerning the custody of my son be
postponed until I can be present. I also
request legal counsel to guarantee my parental rights are honored.â€
A memo dated
January 27 and addressed to the “OTC Desk†was also sent to the juvenile
court. In that memo, Father wrote: “On 20 November 2012, I signed a waiver for
my court appearance scheduled for 18 December 2012. At this time I rescind my waiver to attend
that and any future court appearances.
Please advise me in a timely manner should I be summoned to appear in
court.â€
On
January 29, the Department mailed Father notice of the February 4 hearing. On February 4, the juvenile court held the
termination hearing. At the hearing,
Father’s attorney said, “[Father] is not present. He’s in State prison and previously waived
transport.†Grandmother was present at the
hearing. Father’s attorney asked the
juvenile court to have Grandmother assessed for a possible relative
placement. Grandmother asked the
juvenile court to consider Father’s “pre-GED scores†as evidence that Father
was “trying to better himself†while in prison.
Grandmother asked that J.A. remain in temporary foster care until Father
was released from prison. Grandmother
explained that she could not take custody of J.A. due to an illness. The juvenile court terminated Mother’s and
Father’s parental rights to J.A. and ordered J.A.’s permanent plan be
adoption. On February 5, the day after
the hearing, the juvenile court received Father’s January 27 letter and
memo.
A. DUE PROCESS: TRANSPORTATION
Father
contends the juvenile court violated his statutory and
honor his request to be transported†to the February 4 termination
hearing. Father asserts his waiver to be
present at the December 18 hearing was not a waiver of his presence at all
future hearings. We find the alleged
error to be harmless.
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†a transportation order. The statute further provides that a juvenile
court shall not adjudicate a petition to terminate parental rights “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).) Due process guarantees
notice and a meaningful opportunity to be heard. (In re
Jesusa V. (2004) 32 Cal.4th 588, 601 (Jesusa
V.).) There is case authority for
the proposition that a waiver of appearance at a specific hearing does not
automatically apply to a subsequent hearing.
(In re Julian L. (1998) 67
Cal.App.4th 204, 208.)
The
record reflects Father’s counsel said, at the hearing on February 4, that
Father “previously waived transport.†It
is unclear if Father knowingly waived his right to be present at the February 4
hearing, as the record does not include a signed waiver or affidavit as
required by Penal Code section 2625, subdivision (d). Given the lack of a written waiver in the
record, we will assume the juvenile court erred in conducting the termination
hearing without Father being present.
Accordingly, we review the record to determine if the juvenile court’s
error was harmless. (
625.) We must determine if it is
reasonably probable a result more favorable to Father would have been reached
if Father had been present at the hearing.
(Id.; People v. Watson (1956) 46 Cal.2d 818, 836-837.)
The
issue at the termination hearing was whether J.A. was likely to be
adopted. Section 366.26, subdivision
(c)(1), provides: “If the court
determines . . . that it is likely the child will be adopted, the court shall
terminate parental rights and order the child placed for adoption.†The record reflects Father never met
J.A. Given that Father never met the
child, it is unclear what, if any, evidence or argument Father could offer
about J.A.’s adoptability or lack thereof.
Since it appears Father would have nothing to offer in regard to J.A.’s
adoptability, we conclude the juvenile court’s error was harmless because it is
not reasonably probable a result more favorable to Father would have occurred
if Father had been present at the hearing.
Father
asserts the juvenile court’s error was structural and therefore not subject to
harmless error review. In
was incarcerated. (Jesusa V., supra, 32
Cal.4th at p. 595.) The biological
father asserted he had statutory and constitutional rights to be present at the
jurisdiction hearing. (
2625, and concluded a waiver must be executed reflecting a knowing waiver of an
incarcerated parents’ right to be present at a dependency hearing. (Jesusa
V., at pp. 622-624.) The Supreme
Court determined the juvenile court erred by conducting the jurisdiction
hearing without the biological father’s presence or a waiver of his
presence. (Id. at p. 624.)
The
Supreme Court then discussed a harmless error analysis. The court explained the error was not
reversible per se because the juvenile court did not act in excess of its
jurisdiction due to Penal Code section 2625 being designed to grant an
incarcerated parent a right to attend hearings—it was not intended to be a
jurisdictional statute. (
The Supreme Court analogized the situation to a criminal defendant being
absent from trial, and noted such an error is regularly subjected to a harmless
error review. (Id. at p. 625.)
Additionally, the Supreme Court cited a legislative interest in
resolving dependency proceedings expeditiously and concluded this interest
“would be thwarted if the proceeding had to be redone without any showing the
new proceeding would have a different outcome.â€
(Ibid.) Thus, our Supreme Court held the juvenile
court’s error could be reviewed to determine if it were harmless. (Ibid.)
The
Supreme Court’s analysis concerning structural error appears applicable in this
situation as well, in that our high court has already determined Penal Code
section 2625 errors do not involve the juvenile court’s jurisdiction—only a
statutory violation. Father asserts the
termination of parental rights is distinguishable from other types of
dependency proceedings. However,
Father’s argument is relying on the facts of his case, not the law set forth in
Jesusa V. For example Father “urges this court to find
that structural error occurs under facts such as these: A parent’s rights are terminated, the lower
court makes no attempt to transport him to the hearing, does not acknowledge or
respond to his written requests, one of his letters never appears in the
record, he is never given alternate means for communicating with the court, and
he is not given required documentation (JV-505) which would have better enabled
him to communicate with the court.â€
name="_ftnref2" title="">[2]
Father’s
argument concerning the facts of this case cannot overcome the law set forth by
our high court in Jesusa V.
Penal Code section 2625 is not structural.
We are bound to follow our high court’s conclusion. (Auto
Equity Sales, Inc. v. Superior Court (1962)
57 Cal.2d 450, 455-456.)
B. JV-505 FORM
Father
contends the juvenile court erred by not presenting him with a form entitled,
“Statement Regarding Parentage,†which allows an alleged father to give the
court information concerning his interaction with the child. For example, there is a space for an alleged
father to describe the money or items he has given to a child. (JV-505.)
We disagree with Father’s contention.
If
one or more men are identified as an alleged father, then the juvenile court
shall give each man a JV-505 form. (§
316.2, subd. (b).) For the sake of
judicial efficiency, we will assume the juvenile court erred because a JV-505
does not appear in the record.
Accordingly, we must determine if the error was harmless.
We
must determine if it is reasonably probable a result more favorable to Father
would have been reached if Father had been presented with the JV-505. (People
v. Watson, supra, 46 Cal.2d at
pp. 836-837.) The point of the JV-505
form is to assist the juvenile court in making a finding related to the alleged
father’s status. (§ 361.2, subd.
(f).) The juvenile court ordered DNA
testing on August 20, 2012. The DNA test
revealed there was a 99.99 percent probability that Father was J.A.’s
biological father. Even with the results
reflecting Father was J.A.’s biological father, the juvenile court found J.A.
was adoptable and terminated Father’s parental rights. It is unclear how presenting Father with a
form would have changed this outcome given that Father never met J.A. Thus, we conclude the juvenile court’s error
was harmless.
Father
asserts the error “was not harmless because being provided with the correct
form would have enabled [Father] to better articulate his position and his
wishes to the court.†Father’s argument
is not persuasive because the JV-505 form concerns efforts an alleged father
made to support the child and/or hold the child out as his child. For example, there is a space for an alleged
father to explain the time the child has spent with the alleged father’s
family. Given that Father never met J.A.
nor interacted with J.A.’s foster parents, it appears unlikely that Father
could have completed the form with meaningful information for the court given
the questions on the form. Moreover,
Father was present at the hearing on August 20 but never spoke, further
indicating a lack of information to be offered on Father’s part. In sum, we find Father’s argument to be
unpersuasive.
C. DNA TEST RESULTS
Father
contends the juvenile court erred by not informing him of the paternity test
results in a timely manner. Father
asserts there is nothing in the record reflecting he was notified of the
paternity results “much before January 27, 2013.†In support of this contention, Father cites
his January 27 letter to the court wherein he wrote, “A paternity test has now
proved that [J.A.] is my son.†Father
emphasizes the word “now†in the letter as proof that there was a delay in
notifying Father of the test results.
Father argues the delay was legally significant because it “prevented
him from asserting his rights in a timely manner.â€
As
set forth ante, due process
guarantees notice and a meaningful opportunity to be heard. (Jesusa
V., supra, 32 Cal.4th at p.
601.) The DNA test results were filed
with the court on December 14. There is
nothing in the record indicating when exactly the test results were given to
Father. Father does not clarify in his
briefing when he learned of the test results.
Father does not make an offer of proof or other affirmative
representation reflecting he did not learn of the test results until it was
somehow too late to act on the information.
Father relies only on the vague wording in his letter, rather than
clearly informing this court about when exactly he learned of the test results.
“In
the absence of such a representation, the matter amounts to nothing more than
trifling with the courts.
[Citation.]†(
1426, 1431 [Fourth Dist., Div. Two].)
The information concerning when Father received the test results is
wholly within Father’s knowledge. (
Father waited until this appeal to complain of receiving the test
results in an untimely manner; at this point, Father cannot withhold his
knowledge about when he learned of the results in order to obtain a reversal. (Ibid.) The burden is on Father to show that if the
court erred, a miscarriage of justice occurred.
(In re G.C., Jr. (2013) 216
Cal.App.4th 1391, 1400.) Father has not
met this burden.
D. REQUEST FOR AN ATTORNEY
Father
contends the juvenile court erred by failing to respond to Father’s January 27,
2013, request that the court appoint an attorney for him. Father asserts his request for an attorney
reflects (1) he did not know the court had already appointed an attorney for
him, or (2) he did not believe his attorney was effective. Father asserts his lack of knowledge or faith
in his court appointed attorney was compounded by Father not being transported
to the hearing and not being presented with a JV-505 form.
At
the hearing on December 18, Father’s attorney said Father waived his right to
be present at the hearing. In Father’s
January 27 memo, he confirmed that on November 20 he signed a waiver of his
right to be present at the December 18 hearing.
The written waiver does not appear in the record. It can be inferred from the waiver
information that there was some level of communication between Father and his
juvenile court attorney, since the attorney was aware of Father’s waiver
despite the signed waiver not being in the record. Additionally, at the February 4 hearing,
Father’s attorney requested Grandmother be assessed for placement of J.A.
because “that was [Father’s] wish.â€
Father’s argument is asking this court to speculate that despite this
evidence of attorney-client communication, (1) Father was unaware he had a
court appointed attorney, or (2) he felt his attorney was ineffective. Speculation will not support reversal of a
judgment. (People v. Gray (2005) 37 Cal.4th 168, 230; In re Esmeralda S. (2008) 165 Cal.App.4th 84, 96 [Fourth Dist.,
Div. Two].) Thus, we find Father’s
argument to be unpersuasive.
E. CUMULATIVE ERROR
Father
asserts the alleged errors detailed ante,
combined to deny him due process: not
being transported to the hearing, not being presented with a JV-505 form, and
not being given a response to his request for legal counsel.
As
set forth ante, due process
guarantees notice and a meaningful opportunity to be heard. (Jesusa
V., supra, 32 Cal.4th at p.
601.) The issue at the termination
hearing was whether J.A. was likely to be adopted. (§ 366.26, subd. (c)(1).) Father was represented by counsel at the
termination hearing. On behalf of Father,
counsel requested Grandmother be assessed for placement of J.A. Father never met J.A. or interacted with J.A.’s
foster parents. Thus, it is unclear
what, if any, evidence or argument Father could have offered about J.A.’s
adoptability. Father’s counsel expressed
Father’s desire for Grandmother to be assessed for placement of J.A. Grandmother offered the court evidence about
Father’s educational progress. Father
does not explain what other information, if any, he would have offered had he
been present at the hearing, afforded a different attorney, or presented with a
JV-505 form. Since Father has not
explained how a more favorable result may have occurred absent the accumulation
of these alleged errors, we conclude the cumulative effect of the alleged
errors was harmless. (
625.)
F. ICWA
Father
contends the juvenile court erred by not inquiring into Father’s possible
Native American ancestry. It does not
appear the juvenile court inquired into J.A.’s paternal ancestry after the DNA
test revealed Father is J.A.’s biological father. Thus, we conclude the trial court erred because
it failed to inquire about J.A.’s paternal ancestry. (§ 224.3, subd. (a).) Accordingly, we review the record to
determine if the error was harmless.
“[T]here
can be no prejudice unless, if [Father] had been asked, [F]ather would have
indicated that the child did (or may) have such ancestry.†(Rebecca
R., supra, 143 Cal.App.4th at p.
1431, italics omitted.) “The burden on
an appealing parent to make an affirmative representation of Indian heritage is
de minimis.†(Ibid.) An appealing parent
can meet this burden by making an offer of proof or affirmative representation
“that, had he been asked, he would have been able to proffer some Indian
connection sufficient to invoke the ICWA.â€
(Ibid.)
In
Father’s opening brief, he writes that neither he “nor his mother would have
any way of knowing that if they were
Native American, they should step forward and say so[.]†(Italics added.) Father does not assert on appeal that he
could proffer evidence reflecting a connection to a Native American tribe. Father is only asserting he may or may not
claim a connection to a Native American tribe.
In its respondent’s brief, the Department asserts, “Father has never
represented to anyone that he has Indian ancestry—once again, he is merely
trifling with this court[.]†Despite
this information about needing to make an affirmative representation, in
Father’s appellant’s reply brief he still fails to make any affirmative
representation concerning a possible connection with a Native American
tribe. Given that Father has not met his
burden, we conclude the juvenile court’s error was harmless.
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
HOLLENHORST
Acting P. J.
McKINSTER
J.
subsequent statutory references will be to the Welfare and Institutions Code,
unless otherwise indicated.
name="_ftn2" title=""> [2] There
is a dispute between Father and the Department as to whether Father’s January
27 letter and memo constitute the two letters referenced in the January 27 letter,
or whether there was a separate, earlier, letter to the juvenile court, which
does not appear in the record.
