Michael B. v. Superior Court

Filed 9/29/06 Michael B. v. Superior Court CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

ORIGINAL PROCEEDINGS; petition for extraordinary writ. James C. McGuire, Judge. Petition denied.

Friedman, Gebbie & Gardner and Brian Huerter for Petitioner.

No appearance for Respondent.

Dennis E. Wagner, Interim County Counsel, and Phebe W. Chu, Deputy County Counsel, for Real Party in Interest.

Petitioner, the father of three dependent minors, challenges the trial court’s order setting a hearing pursuant to Welfare and Institutions Code section 366.26.^[1] He contends that the juvenile court erred in conducting a jurisdictional and dispositional hearing in his absence. We conclude that any error in proceeding in petitioner’s absence was harmless and deny the petition.

FACTS

Father’s children, S.B. (13 years old), M.B. (12 years old), and A.B. (11 years old) were removed from their parents in 2003 due to sustained allegations that he had sexually molested S.B. and A.B., and physically abused M.B. According to the San Bernardino County Department of Children’s Services (department), the children’s mother had nine other children currently in the dependency system and father had molested two of mother’s other daughters. Father is currently incarcerated in state prison until the year 2021 due to his conviction for lewd and lascivious acts with a child.

The three children were placed in the home of B.C. on June 23, 2004, by the Los Angeles County Department of Child and Family Services. B.C. was appointed their legal guardian on October 25, 2004. The case was transferred to San Bernardino County a month later because B.C. resided here. The case was then closed in September 2005.

Following reports of physical and emotional abuse of S.B. by the legal guardian, the department filed a petition on May 26, 2006, with allegations against father, mother, as well as the legal guardian.

At the detention hearing, counsel was appointed for father who was in custody in state prison and not present. The minors were removed, and the jurisdictional and dispositional hearing was set for June 16, 2006.

Father was sent notice of this hearing by certified mail. In a letter addressed to the social worker, father stated that he wanted to be present at the June 16, 2006, hearing. At the hearing, father’s counsel was present and reaffirmed his client’s desire to be present. The court stated that it was its understanding that father did have a right to be present.

Thereafter, B.C. signed a waiver of rights and submitted on amended allegations that she had used inappropriate physical discipline on S.B., pursuant to section 300, subdivisions (b) and (j). The department then dismissed without prejudice the allegations against the biological parents.

After these proceedings, the court indicated that it would continue the hearing until July 17, 2006, due to father’s letter indicating his wish to be present, commenting that it did not know how “he could possibly contest it. Has nothing to do with him.” When it was pointed out that all the allegations against the parents had been dismissed, the court opined that it did not think it was necessary to have father present. The deputy county counsel commented that she did not believe that it was a due process problem and the court stated, “Let the court of appeal deal with it.”

DISCUSSION

Father contends that he had an absolute right to be present at the jurisdictional/dispositional hearing under Penal Code section 2625.^[2] He asserted this right and his counsel contends that he “no doubt had information that he wished to share with the court to assist the court in making its decision.” He fails to enlighten us as to the specifics of this information.

Although father had a statutory right to attend the adjudication of the dependency petition with his attorney, his presence was not constitutionally required and, thus, his absence did not deprive the juvenile court of jurisdiction to proceed. (In re Jesusa V. (2004) 32 Cal.4th 588, 624-626.) In view of the facts that his attorney was present at the hearing and that, as noted, father fails to identify any evidence or arguments that he would have presented to the juvenile court, we must conclude that his involuntary absence from the proceedings was harmless error. (Ibid.)

DISPOSITION

The petition is denied.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

KING

J.

We concur:

HOLLENHORST

Acting P. J.

RICHLI

J.

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^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise stated.

^[2] “(d) 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.” (Pen. Code, § 2625, subd. (d).)