Filed 4/9/18 In re M.N. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO



In re M.N. et al., Persons Coming Under the Juvenile Court Law.

SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

S.H.,

Defendant and Appellant.


E069197

(Super.Ct.Nos. J272033 &
J272034)

OPINION


APPEAL from the Superior Court of San Bernardino County. Christopher B. Marshall, Judge. Affirmed.
Lauren K. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.
Michelle D. Blakemore, County Counsel, Dawn M. Martin, Deputy County Counsel for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL HISTORY
Defendant and appellant S.H. (Father) is the father of E.N. (male, born in 2013) and M.N. (male, born in 2014; collectively, Minors).
On July 20, 2017, plaintiff and respondent San Bernardino County Children and Family Services (CFS) received a referral alleging general neglect and caretaker absence or incapacity due to C.N. (Mother) repeatedly smashing her head against a rock or radio, resulting in injury. Mother was transported to Loma Linda University Medical Center. Minors were in the care of the maternal grandmother (MGM).
MGM told the social worker that Mother and her children had been living in MGM’s home for the previous six months. The week prior, MGM asked Mother to leave the home because she believed Mother was using drugs. MGM allowed Minors to continue residing in her home. MGM then obtained a temporary restraining order against Mother because Mother was always drunk and would attempt to physically assault MGM. MGM had a court date in August 2017 to obtain a permanent restraining order against Mother.
MGM stated that Minors did not witness Mother’s behavior on July 20, 2017. Mother visited MGM that day and was “acting crazy,” and believed someone in the closet was trying to kill A.N. When Mother tried to take A.N. from the home, MGM took the children and went to the home of MGM’s sister. MGM advised the social worker that Mother smoked marijuana and drank alcohol. Mother had been diagnosed with depression and schizophrenia; she was not taking any medication.
The paternal grandmother (PGM) informed the social worker that Father had been incarcerated since August of 2014. Mother had lived with PGM intermittently for the past five years, even after Father went into custody. PGM believed Mother used marijuana and drank alcohol, and Mother would become paranoid when she drank alcohol. Paternal aunt and paternal uncle both witnessed Mother’s paranoia.
On July 24, 2017, the social worker interviewed Mother at the hospital. Mother began dating Father in 2012. They remained in a relationship but they never married. Mother was currently unemployed; she received welfare to care for her children. After being kicked out of MGM’s home, Mother relapsed and started using methamphetamine. Mother began using methamphetamine when she was 13 years old, but stopped at age 18 when she became pregnant with A.N. Mother continued to use marijuana and drink alcohol.
Mother was diagnosed with schizophrenia and depression when she was younger, and she stayed in a mental hospital for two months. When released from the hospital, she did not continue with the prescribed medication because she did not have insurance or money to pay for them. Mother admitted she still heard voices telling Mother that there were people after her, they were going to kill her and her children, and that she was worthless and should kill herself.
Mother denied the need for a rehabilitation program and professed she could stop using drugs and alcohol if she wanted. She did not need the drugs and alcohol, they just numbed her pain.
On July 27, 2017, CFS filed petitions under Welfare and Institutions Code section 300 on behalf of Minors under subdivisions (b) and (g). With regards to Father, the petitions alleged that he should have known about Mother’s mental illness and drug-use history, and he also had a history of drug use, which placed Minors at risk. Moreover, Father was incarcerated and left Minors without provisions for support.
At the detention hearing on July 28, 2017, Father was not present and was incarcerated in Fresno. Mother confirmed Father was the father of E.N. and M.N.; he was present for E.N.’s birth and was listed on E.N.’s birth certificate. Father was neither present for M.N.’s birth nor was he listed on M.N.’s birth certificate. The court found a prima facie case for detention and ordered visitation for Mother but no visitation for Father.
In the jurisdiction/disposition report dated August 18, 2017, CFS recommended reunification services to Mother but no reunification services to Father because his incarceration exceeded the time limit for family reunification services under section 361.5, subdivision (e)(1). PGM told the social worker that on August 7, 2014, Father robbed a home in Fresno with six other males, in search of money and marijuana. The residents of the home began shooting at Father and his cohorts, and two people died. PGM reported that the prosecutor was seeking a 26-year sentence and Father’s counsel was requesting a seven-year sentence. CFS noted it was impossible to provide Father with reunification services based on the length of his incarceration.
Mother reported that Father had met M.N., but he had not met E.N. because of Father’s incarceration. Minors knew Father as “dad,” but only through pictures. CFS recommended that Father be found to be Minors’ presumed father. Father had a lengthy criminal history beginning when he was a minor for possession of a firearm at school, and leading to his current incarceration, which included charges for attempt to commit a crime, murder, robbery, and kidnapping.
The jurisdiction/disposition report also included Mother’s medical records from 2012 showing that she was treated for delusions, suicidal thoughts, paranoia and agitation. Mother was discharged with medication.
Father was provided notice of the jurisdiction/disposition hearing. In a handwritten document, Father indicated his desire to be present at the hearing. At the September 29, 2017, contested jurisdiction/disposition hearing, Father was not present, but was represented by counsel. His counsel contested the allegations that Father knew or should have known of Mother’s mental health and drug use since he had been incarcerated since 2014; there was no way Father would have known about Mother’s circumstances while incarcerated. Father’s counsel also contested Father’s drug use allegation claiming there was no evidence to support the allegation.
After hearing argument from counsel, the court dismissed the allegation regarding Father’s history of drug use, but found the remaining allegations true with amendments that specified Mother’s mental health history was schizophrenia and depression. The court noted: “There’s information that [Father’s] relatives whom [Mother] lived with were well informed about her mental health issues, especially if she drank and especially if she used drugs. And so the Court is certainly going to find that [Father] should have known about her history.”
As to disposition, Father’s counsel claimed that there was insufficient evidence that reunification services would be detrimental to Minors or that Father would be incarcerated beyond the statutory timeframe. After hearing argument, the juvenile court found that reunification services would be detrimental to Minors “considering the length of the time that [Father] has already been incarcerated and the nature of this crime.” The court further indicated it considered the degree of detriment to Minors if reunification services were not offered, and noted that Father had not had a significant presence or relationship with Minors given their ages because of his incarceration. Therefore, the court denied reunification services to Father and found that reunification services to Father would be detrimental to Minors under section 361.5, subdivision (e)(1).
DISCUSSION
Father’s sole argument on appeal is that the juvenile court violated its statutory duty to have Father transported to the jurisdiction/disposition hearing under Penal Code section 2625, subdivision (b), since Father was incarcerated. Father also claims that the court violated his due process rights by proceeding in Father’s absence.
Penal Code section 2625, subdivision (b), requires a court to order a prisoner/parent’s temporary removal and production before the court “where the proceeding seeks to terminate the parental rights of any prisoner, or any proceeding brought under Section 300 of the Welfare and Institutions Code, where the proceeding seeks to adjudicate the child of a prisoner a dependent child of the court.” Subdivision (d) of Penal Code section 2625 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.” The statute’s meaning is clear. Under Penal Code section 2625, a prisoner/parent has a statutory right to be present at certain hearings, but not a constitutional one. (In re Axsana S. (2000) 78 Cal.App.4th 262, 269 (Axsana S.), overruled on other grounds by In re Jesusa V. (2004) 32 Cal.4th 588, 624, fn. 12 (Jesusa V.).) Because this mandate is statutory, error is reversible only if it is reasonably probable the result would have been more favorable to Father absent the error. (Jesusa V., at pp. 624-625.)
Here, Father was provided notice of the jurisdiction/disposition hearing, and he indicated his desire to be present at the hearing. However, on the date of the hearing, Father’s counsel simply indicated that “He is not present. [¶] My understanding is that he was incarcerated in Fresno County custody.” The court then proceeded with the hearing without objection. The People contend that, because Father’s counsel failed to object to proceeding in Father’s absence, “any argument should be deemed waived.” Father contends the argument is not waived because he “did everything possible to inform the court that he wanted to be present at the jurisdiction and disposition hearings.” We need not address the People’s waiver argument because Father’s contention fails on the merits.
In this case, Father has not shown a due process violation. As noted, although he was not present at the jurisdiction/disposition hearing, Father was represented by counsel. He received meaningful access to the courts through his appointed counsel. (Axsana S., supra, 78 Cal.App.4th at p. 269.) “In dependency cases, as in other civil cases, personal appearance by a party is not essential; appearance by an attorney is sufficient and equally effective.” (Ibid.) Moreover, Father has not directed this court to any authority that recognizes a due process right to personally attend the section 300 hearings. (See Axsana S., at p. 271.) To the extent that Father argues the court exceeded its jurisdiction when it proceeded without him, even though he was represented by counsel, such argument fails. Once the prisoner/parent has received notice and the opportunity to be present, “Penal Code section 2625 did not bar the court from proceeding in his absence provided his attorney was present.” (Ibid.; see In re Rikki D. (1991) 227 Cal.App.3d 1624, 1629, overruled on other grounds by Jesusa V., supra, 32 Cal.4th at p. 624, fn. 12.)
Moreover, even if the court erred in proceeding with the case without Father, any error was harmless. As noted, Father had meaningful access to the courts through his appointed counsel. At the hearing, Father’s counsel argued:
“For [Father], your Honor, we are objecting to the recommendation that he not be offered services[.]
“It’s our position that there is insufficient evidence to indicate that services would be detrimental to [Minors], also, that there’s insufficient evidence that [Father] will be incarcerated beyond the statutory time frames. We have no confirmation of his sentencing and/or suspected length of incarceration.
“We are asking that he be allowed to have visits with [Minors] to include custody visits if and when appropriate, as well as written communication and letters.”
After hearing argument from counsel for CFS, the juvenile court stated:
“Well, the Court has considered the charge that is pending. The Court does not have the actual sentence for [Father], but the Court will find by clear and convincing evidence that services would be detrimental to [Minors], considering the length of the time that [Father] has already been incarcerated and the nature of his crime. And the Court has considered the degree of detriment to [Minors] if services are not offered, as [Father] has not had a significant presence with [Minors] or a significant relationship at current with respect to [Minors], given their ages because of his incarceration.”
Notwithstanding the above, Father contends that if he had been present at the hearing, he could have provided testimony to support the factors under section 361.5 for the court to consider in assessing detriment from reunification services. Father first alleges that he would have testified as to the items he has provided for Minors, as well as his relationship with them in determining the degree of parent-child bonding. The fact is that Father has been incarcerated for the past three years and has been unable to provide support for Minors. Mother reported that she received welfare to care for her children. E.N. was less than a year old when Father went to prison. Father was present for E.N.’s birth but not for M.N.’s birth. Minors know Father as “dad,” but only through pictures. The evidence shows that Minors have no relationship with Father as he has been incarcerated for a majority of E.N.’s life and all of M.N.’s life.
Moreover, Father claims that he could have provided testimony regarding the length of his sentence. PGM, however, reported that the prosecutor was seeking a 26-year sentence, and Father’s defense counsel was requesting a seven-year sentence. As noted by counsel for CFS, Father has been in custody for over three years, which was “pretty sufficient evidence that the district attorney at least from Fresno County has no intention of reducing or dropping the charges any time soon.” There was no mention that the charges would be dropped; Father’s counsel was merely seeking a reduced length of sentencing. Even if Father were sentenced to seven years and given credit for time served, he still had a minimum of four additional years, which still exceeded the statutory timeframes for reunification services.
Father further claims that his testimony may have provided mitigated details regarding the nature of his crime. Father’s crimes, however, involved murder, robbery and kidnapping charges. Father, along with six other males, robbed a home for money and marijuana. A resident of the home and one of the males involved in the robbery died during the incident. It is significant to note that just days after M.N. was born, Father chose to commit a crime for drugs that resulted in two deaths. There is nothing that would likely mitigate the details of such a heinous crime.
Based on the above, Father failed to demonstrate that his failure to appear resulted in any prejudice. Therefore, any alleged error was harmless.
DISPOSITION
The juvenile court’s jurisdiction findings and dispositional order are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


MILLER
J.


We concur:


RAMIREZ
P. J.


McKINSTER
J.