In re Cassandra A.

Filed 4/12/07 In re Cassandra 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of San Bernardino County. Robert G. Fowler, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Jennifer Mack, under appointment by the Court of Appeal, for Defendant and Appellant.

Ruth E. Stringer, Acting County Counsel, and Phebe W. Chu, Deputy County Counsel, for Plaintiff and Respondent.

Jacquelyn E. Gentry, under appointment by the Court of Appeal, for Minors.

Sonia H., mother of Cassandra A. and Brianna A., was not present when the juvenile court terminated her parental rights pursuant to Welfare and Institutions Code^[1]section 366.26. On appeal she argues that the court committed reversible error in failing to sua sponteorder that she be transported to the hearing from the facility where, in lieu of serving a formal prison sentence, she was enrolled in the Alternative Sentencing Program. We conclude that any error was harmless and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The underlying juvenile dependency petition was filed on February 24, 2004. A day earlier, the San Bernardino Sheriffs Department responded to a serious and violent domestic dispute between Sonia H. (mother) and Francisco A.,^[2]which took place in the presence of their young daughters, Cassandra (born November 2003) and Brianna (born January 2003), and which placed the girls at risk of harm. In addition to the domestic violence incident, the petition alleged that the parents had substance abuse problems which impacted their ability to provide for the childrens care, pursuant to subdivision (b) of section 300, and that both parents were then incarcerated with unknown release dates, pursuant to subdivision (g).

At a combined jurisdictional/dispositional hearing held on March 18, 2004, both parents entered no contest pleas, after which the court found the allegations of the petition to be true (except that no finding was made with respect to the subdivision (g) count as to mother). The children were declared dependents of the court and the parents were ordered to participate in reunification services. The following month, the girls were placed with their paternal grandmother and stepgrandfather, an arrangement with which mother apparently agreed.

By September, mother was back in custody, having been charged with vehicle theft and possession of a controlled substance, and was expected to be released in December. Prior to her incarceration, mother had visited her daughters approximately six times and, according to the social worker, had somewhat of a relationship with them. The social worker believed the children would benefit by remaining with their paternal grandmother and for DCS to continue providing services to the parents.

When the six-month review hearing proceeded on October 15, 2004, the parents were still in custody and neither was in attendance. The court ordered six additional months of services, in which the parents were ordered to participate.

The 12-month review hearing was held on April 18, 2005, and the court again ordered six more months of services. The report prepared for that hearing indicated that mother had been incarcerated in December 2004 on a drug-related charge and upon her release in February 2005 began residing with the childrens maternal grandmother. The report further indicated that mother had been participating in reunification services.

By October 2005, mother was again incarcerated. She had been arrested in April or May after testing positive for drugs, and was taken into custody in August after being terminated from her court-ordered drug program. In September, she was sentenced to three years in state prison. However, because she was pregnant, she was transferred to the Womens Alternative Sentencing Program, where she would be able to remain with her newborn child while participating in drug treatment, parenting classes, and domestic violence programs. According to the social worker, mothers counselor indicated that the program is not really like prison but is an intense drug treatment program, including 30 hours of group [sessions], one on one counseling, and parenting instruction. . . . Of course, in the event mother failed to comply with the programs requirements, she would be transferred to state prison to serve the remainder of her term, and her newborn baby would be removed from her custody.

The 18-month review hearing was eventually held in January 2006. Mother was still enrolled in the Alternative Sentencing Program and did not attend the hearing. The court terminated reunification services, finding that mother had not availed herself of the services offered to her. A permanency hearing was scheduled for May 9, 2006.

Mother was not in attendance at court on May 9, 2006, her attorney stating she is in custody in San Diego, however, shes in a specialized facility and I think they may let her out on her own to come to court. [] There was a debate whether this was a facility where she was actually in custody or whether she could walk out, et cetera, at the last hearing. But at any rate, Id like to see if shes able to come out on her own. The court responded: You want short cause because right now youre not planning on litigating any issues? This is just [] an attempt to contact your client and get her here? Counsel replied, Yes. The matter was continued to May 25, 2006, for a pretrial conference, and to June 6, 2006, for a contested hearing. Meanwhile, DCS was recommending the children remain in their current placement with their paternal grandparents and that they be freed for adoption.

Mother did not appear on either of the continued dates. At the May 25 pretrial conference, her attorney informed the court he had learned from the social worker that it appeared that mother would be transported to court for the contested trial. Then, at the June 6 contested permanency hearing, counsel simply informed the court that mother was still in custody in San Diego. He provided no explanation for her absence, nor did he object to proceeding without her or request a continuance.

When the permanency hearing got under way, mothers counsel called the childrens paternal grandmother to the stand to testify. The grandmother indicated the girls have no telephone contact with mother, they do not ask to see mother, it is not her intention to permit visitation with mother, and she wants to adopt the children. However, in response to counsels inquiry as to whether mother had made any effort to contact the children, she said, Now and then she tries and makes a call but not very often. They always have problems where shes at. The last time mother was able to speak to the girls, she said, was about a month and a half earlier. When the girls do talk to mother on the phone, they do not recognize her voice as being that of their mother. Finally, the grandmother indicated that the girls refer to her and her husband as mom and dad or mama and papa.

After the close of evidence (and apparently without asking counsel if they wished to present closing argument), the court announced its decision. Finding clear and convincing evidence that it is likely the children will be adopted, the court terminated parental rights and designated adoption as the permanent plan.

Counsel for mother thereafter filed a motion for reconsideration, asking the court to vacate the order terminating parental rights and to hold a further hearing at which mother could be transported from prison. The court denied the motion, finding that it lacked jurisdiction pursuant to section 366.26, subdivision (i).

DISCUSSION

Insisting that she had a statutory right and a due process right to be present at the hearing at which her parental rights were terminated, mother contends the juvenile court committed reversible error in not ordering her transported pursuant to Penal Code section 2625. We conclude that any error in proceeding in mothers absence without a waiver was harmless.

Penal Code section 2625, subdivision (b), requires that an incarcerated parent be given notice of any hearing to terminate parental rights under section 366.26. Pursuant to subdivision (d), Upon receipt by the court of a statement from the prisoner or his or her attorney indicating the prisoners desire to be present during the courts proceedings, the court shall issue an order for the temporary removal of the prisoner from the institution, and for the prisoners production before the court. No proceeding may be held under . . . [s]ection 366.26 . . . without the physical presence of the prisoner or the prisoners 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.

Mother contends that, notwithstanding any confusion as to whether she would be able to walk out of the facility to attend the hearing, she was serving a prison sentence; thus, the court was statutorily mandated to issue an order for [her] temporary removal. Citing In re Iris R. (2005) 131 Cal.App.4th 337, 342, she asks us to infer from the repeated statements of her attorneyand from the fact the matter was set contestedthat she wished to attend the hearing.

On the record before us, we cannot say that mothers trial counsel made a sufficient request for mother to be present to warrant the court to provide for her temporary removal. Although mother did, through her attorney, indicate a desire to be present, no objection was raised at the hearing at which the court proceeded in her absence. Nor does mother provide any authority for the proposition that a mere communication to counsel of a desire to be present, without more, requires a sua sponte order. Even if there were such a case, we cannot overlook the fact that counsel, after indicating to the court at the prior proceeding that the facility at which mother was housed was willing to transport her, neither voiced an objection nor requested a continuance when mother did not appear at the permanency hearing.^[3]

Notwithstanding our conclusion the court had no sua sponte obligation to order mothers temporary removal without what could be construed as a statement from the prisoner or his or her attorney indicating the prisoners desire to be present during the courts proceedings, as required by Penal Code section 2625, it was error for the court to proceed in mothers absence without first obtaining a waiver. (In re Jesusa V. (2004) 32 Cal.4th 588, 623-624 (Jesusa V.).) Only by requiring the prisoner either to be present or to have executed a waiver of his or her appearance can the court ensure the prisoner actually received the notice [of the hearing]. (Ibid.) The error, however, was harmless. The statutory mandate of Penal Code section 2625 requiring notice of hearing and the physical presence or a signed waiver of appearance from an incarcerated parent is not a jurisdictional prerequisite to conducting a hearing under section 366.26. (Jesusa V., at p. 625.) Rather, violations of Penal Code section 2625 are subject to harmless error analysis. As the Jesusa V. court observed, we have regularly applied a harmless-error analysis when a defendant has been involuntarily absent from a criminal trial. [Citations.] We do not believe the Legislature intended a different result in the analogous circumstance here, when a prisoner is involuntarily absent from a dependency proceeding. (Jesusa V., at p. 625.) Thus, the involuntary absence of an incarcerated parent from a dependency proceeding is reversible only if it is reasonably probable the result would have been more favorable to the parent absent the error. (Ibid.)

Mother insists that if she had been present at the hearing she would have been able to present evidence as to the applicability of the beneficial parental relationship exception set forth in section 366.26, subdivision (c)(1)(A). In particular, she contends she would have been able to testify about restrictions to telephone access and her ability to make telephone calls while in custody. She contends she could also have testified about her relationship with the children and the bond she shared with them. In support of her position there was a bond, she states, The social worker observed the minors to be very happy to visit mother, especially Brianna, who wanted to be with mother. . . . The paternal grandmother observed the minors to be very bonded to mother, especially Brianna. However, the record references to which she cites do not support her statements. Additionally, as mother points out in her opening brief, after acknowledging earlier in the case that mother had somewhat of a relationship with the girls, once the social worker recommended termination of parental rights, she opined that mothers inability to visit for only five months completely eroded any parent/child bond they had. We therefore fail to see how mothers presence at the hearingparticularly since she had been incarcerated during most of the reunification periodwould have made any difference in the outcome.

Apart from any statutory violation, mother contends that holding the permanency hearing in her absence was a denial of due process. She maintains that prisoners have a constitutional right of access to the courts (Payne v. Superior Court (1976) 17 Cal.3d 908, 914) and that where there is an infringement of a fundamental constitutional right, the Chapman^[4]harmless beyond a reasonable doubt test applies. However, the Jesusa V. court has ruled that when a juvenile court proceeds with a section 366.26 hearing without the presence of an incarcerated parent, the error is not one of constitutional dimension. (Jesusa V., supra, 32 Cal.4th at pp. 601-602, 626.) Said the court: Although there is no dispute that prisoners have a constitutional right of access to the courts [citation] and that absent a countervailing interest of overriding significance, persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard [citation], it does not follow that prisoners have a constitutional right to be personally present at every type of hearing. (Id. at p. 601, italics omitted.) The court concluded that due process does not demand an incarcerated parents personal appearance so long as his or her attorney is present. (Id. at p. 602.)

Mother contends, however, that Jesusa V.s holding does not apply where the hearing is one at which parental rights are terminated. Noting that the subject hearing in Jesusa V. was a presumed fatherhood hearing, rather than a hearing at which parental rights were terminated, she maintains the court differentiated cases where the prisoners parental rights were going to be terminated at the hearing. While the court did make such a distinction, it did so with regard to the fathers claim that Penal Code section 2625 had been violated. Thus, explaining that Penal Code section 2625 requires a court to order a parents temporary removal and production before the court only where the proceeding seeks to terminate parental rights or adjudicate the child of the prisoner a dependent child, the court concluded that the statute is inapplicable to a proceeding to identify a presumed father. (Jesusa V., supra, 32 Cal.4th at p. 602.) The court made no such distinction in addressing the merits of the fathers due process argument, concluding only that, as stated in In re Axsana S. (2000) 78 Cal.App.4th 262, personal appearance by a party is not essential [in a dependency case]; appearance by an attorney is sufficient and equally effective. (Jesusa V., at p. 602.) On that basis we reject mothers due process argument.

DISPOSITION

The order terminating parental rights is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ MILLER

J.

We concur:

/s/ HOLLENHORST

Acting P. J.

/s/ KING

J.

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^[1] All further statutory references will be to the Welfare and Institutions Code.

^[2] Francisco A. is not a party to this appeal.

^[3] It is of no moment that mothers counsel, asserting that his client had a right to be present when her parental rights were terminated and he had no reason to know she was in the prison system at the time of the earlier hearing, thereafter asked the court to vacate its ruling and hold a further hearing so that mother could be transported from prison. As previously indicated, the court lacked jurisdiction to grant the requested relief. ( 366.26, subd. (i).) In any event, we find disconcerting counsels assertion that he was unaware of mothers whereabouts at the time of the section 366.26 hearing. Indeed, when the court asked counsel at that hearing if his client was still in custody, counsel replied that she was.

^[4]Chapman v. California (1967) 386 U.S. 18.