Filed 9/6/17 Nicole L. v. Superior Court CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
| NICOLE L.,
Petitioner,
v.
THE SUPERIOR COURT OF FRESNO COUNTY,
Respondent;
FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES,
Real Party in Interest.
|
F075791
(Super. Ct. No. 16CEJ300202-1)
OPINION |
THE COURT*
ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Leanne L. LeMon, Commissioner.
Nicole L., in pro. per., for Petitioner.
No appearance for Respondent.
Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Real Party in Interest.
-ooOoo-
Nicole L. (mother), in propria persona, seeks extraordinary writ relief from the juvenile court’s orders issued at a contested six-month review hearing (Welf. & Inst. Code, § 366.21, subd. (e)(1)),[1] terminating her reunification services and setting a section 366.26 hearing as to her now five-year-old son, Sergio, and four-year-old daughter, Madeline. She contends the court erred in conducting the hearing in her absence. We deny the petition.
FACTUAL AND PROCEDURAL BACKGROUND
In July 2016, police officers spotted then four-year-old Sergio standing on the window ledge of a two-story warehouse where mother was living with him and two-year-old Madeline. The officers coaxed him into the building and gained entry. Inside they found mother asleep on the couch and a methamphetamine pipe accessible to the children. The children were dirty and wore only diapers, which were soaked with urine and feces. Mother admitted using methamphetamine and said Sergio was autistic. She was arrested for felony child endangerment and incarcerated. The Fresno County Department of Social Services (department) took the children into protective custody and placed them in foster care.
The children’s father knew mother was living in the warehouse with the children. He admitted abusing drugs and alcohol.
The juvenile court exercised its dependency jurisdiction over the children (§ 300, subd. (b)(1)) in August 2016 and ordered the parents to participate in reunification services, including substance abuse treatment. The court set the six-month review hearing for February 2017.
In December 2016, mother was released from custody on probation and entered a substance abuse treatment program. However, she left a month later and was taken into custody.
In its report for the six-month review hearing, the department recommended the juvenile court terminate reunification services for both parents. Mother was facing a prison sentence and father had not visited the children since September 2016 or made any subsequent attempts to visit. During the review period, Madeline was diagnosed with autism.
The juvenile court continued the six-month review hearing and conducted it on June 1, 2017, as a contested hearing. Meanwhile, mother appeared in local custody with her attorney on April 13. The court set a settlement conference on May 18 and a trial on June 1 and told mother she would be transported to the hearing if she were still in custody. On May 18, mother was not transported to the hearing and her attorney told the court she was in state prison. The court set a trial date for June 1.
Mother did not appear at the June 1, 2017 hearing. Her attorney stated, “We are just going to note our objection … with the discussions we had off the record. My client has been transported to [prison]. She does have what appears to be a four-year sentence with roughly less than a year of time credits even with good-time/work-time. [¶] And with that, we’ll make sure that she’s transported to the .26 hearing.”
The juvenile court found the department provided the parents reasonable reunification services but that mother made no progress and father made minimal progress. The court terminated reunification services, suspended visitation between mother and Sergio, ordered quarterly supervised visits for Madeline and set a section 366.26 hearing.[2]
DISCUSSION
An incarcerated parent has a statutory right under Penal Code section 2625 to be present only at the dispositional and section 366.26 hearings, given the custody and parental rights at stake. Subdivision (d) of that section provides:
“Upon receipt by the court of a statement from the prisoner … 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 … 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 … (b) … of Section 300 of the Welfare and Institutions Code may be adjudicated without the physical presence of the prisoner or the prisoner’s attorney .…” (Pen. Code, § 2625, italics added.)[3]
Therefore, mother had no statutory right to be present at the six-month review hearing.
Moreover, mother had meaningful access to the juvenile court through her appointed counsel who appeared on her behalf. “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.” (In re Axsana S. (2000) 78 Cal.App.4th 262, 269.)
Thus, we find no error in the juvenile court’s decision to conduct the six-month review hearing without mother’s personal appearance. Moreover, the record reflects the intention to ensure her presence at the section 366.26 hearing, i.e., “[W]e’ll make sure that she’s transported to the .26 hearing.”
DISPOSITION
The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.
* Before Hill, P.J., Franson, J. and Peña, J.
[1] Statutory references are to the Welfare and Institutions Code unless otherwise indicated.
[2] Father did not file a writ petition.
[3] The statute also provides, however, that the juvenile court may conduct a dispositional or section 366.26 hearing in the parent’s absence if the parent has knowingly waived his or her right to be physically present. (Pen. Code, § 2625, subd. (d).)
