Filed 4/27/07 In re Ciera W. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from an order of the Superior Court of Los Angeles County, Anthony Trendacosta, Commissioner. Affirmed.

Aida Aslanian, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Judith A. Luby, Senior Deputy County Counsel, for Plaintiff and Respondent.

____________________

INTRODUCTION

Appellant Christopher W. appeals from a jurisdictional/dispositional order in the matter of his daughter, Ciera W. He challenges the juvenile courts proceeding with the dispositional hearing in his absence and determination that he was entitled to allegedrather than presumedfather status. We affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

The Department of Children and Family Services (DCFS) detained 11-month-old Ciera W. on March 3, 2006, when a social worker visiting the home of her mother, Tiffany J. (mother),[1]found drug paraphernalia and unrelated men under the influence of drugs in the home. It had been reported that mother was a prostitute, used cocaine, and at times left Ciera with strangers or alone. Mother denied that the drug paraphernalia was hers, claimed she only used marijuanaon a daily basisand admitted a history of prostitution and drug use. Mother also stated that she had a three-year-old, Tyler, who lived with a maternal aunt.[2]

On March 8, DCFS filed a petition under Welfare and Institutions Code section 300, subdivision (b),[3]alleging that mother was unable to care for Ciera due to her substance abuse. While the petition listed Cieras father as unknown, the addendum report identified appellant as the father and stated that he was incarcerated. At the detention hearing, mother identified appellant as the father, stated that they were not married, they had not lived together at the time of Cieras conception or birth, and appellant had not claimed paternity. She identified appellants address as Lancaster State Prison.

At the detention hearing, the juvenile court identified appellant as an alleged father and appointed counsel for him. It ordered appellant brought to court for the next hearing. At the next hearing on March 15, however, appellants counsel waived his presence.

In a report prepared for the April 4, 2006 jurisdictional/dispositional hearing, DCFS reported that appellant had a lengthy criminal record, including a number of strike offenses. He was currently serving a 16-month prison term for vehicle theft following a parole violation. He was scheduled to be released on July 27, 2006.

Appellant told the social worker that he had been in and out of prison since he was 13 years old. He had lived with mother for three months. Prior to his current incarceration, he had been living with his girlfriend. He planned to return to her home after he was released and wanted Ciera to live with him. He added that he had enrolled in drug treatment, parenting and anger management programs in jail.

DCFS recommended that appellant be denied reunification services, in that he was only an alleged father. It also recommended placement of Ciera with her maternal grandmother.

The juvenile court prepared an order for appellants appearance at the jurisdictional/dispositional hearing. Appellant was sent a notice of hearing on petition. It notified him that the jurisdictional/dispositional hearing would be held on April 4, 2006. It further notified him that a section 300 petition had been filed, he had the right to be present for the hearing, he might be liable for the cost of an appointed attorney or the childs support, and the court could proceed with the hearing whether or not he was present. The notice stated that a copy of the petition was attached, but not that a copy of the social workers report was attached.

Appellant signed a waiver of right to be present at hearing affecting prisoners parental rights. He requested that his attorney appear for him at the hearing.

At the April 4, 2006 hearing, the juvenile court first sustained the section 300 petition as amended. It then stated its intent to proceed with the dispositional hearing. At that point, appellants counsel objected on the ground appellant was not present and, while he had been given a copy of the section 300 petition, he had not been given a copy of the social workers report. Therefore, he was unaware that DCFS was recommending that he not be given reunification services. Proceeding in his absence would deny appellant due process of law.

The court denied a continuance of the hearing based on appellants waiver. Appellants attorney claimed it was not a knowing and intelligent waiver. The court stated that the waiver form was clear and suggested that, when appellant got out of prison, he could file a section 388 petition. Appellants counsel protested, but the trial court proceeded with the dispositional hearing.

The court declared Ciera to be a dependent child of the court. It ordered her placed with her maternal grandmother. It found appellant to be an alleged father and did not order reunification services for him. Appellant appealed from this order.

During the pendency of this appeal, DCFS reported for the October 3, 2006 hearing that appellant had been released from prison on July 26, 2006. He did not yet have a permanent address and was not financially able to care for Ciera.

The Childrens Social Worker (CSW) had met with appellant on August 3, 2006 and provided him with information on, and instructed him to participate in, random drug testing, drug treatment, parenting classes and domestic violence counseling. On August 7, the CSW provided a drug and alcohol test referral for appellant. As of the writing of the report, however, appellant had not submitted to drug testing or begun domestic violence counseling yet. He claimed to be attending parenting classes, but the CSW had no proof of that.

The CSW also reported that appellant had been having weekly monitored visitation with Ciera. Ciera was warming up to him.

Appellant appeared at the October 3, 2006 hearing. At that point, he had an address and telephone number. Based on appellants release from prison and visitation with Ciera, his counsel requested reunification services.

It appeared to the juvenile court that appellant was approaching Kelsey S.[4]standing, that hes not quite a presumed father yet, but hes moving in that direction. The court found appellant in partial compliance with his case plan. It ordered DCFS to provide appellant with reunification services. It ordered him to participate in parenting, domestic abuse and drug counseling, random drug testing and to comply with the terms of his parole.

DISCUSSION

Appellant contends that the juvenile courts April 4, 2006 dispositional order must be reversed, in that his constitutional rights to due process were violated. He argues that despite his absence and other defects in notice, the trial court erroneously refused his counsels request for a continuance, held the dispositional hearing and made the dispositional order determining him to be an alleged father, rather than a presumed father, with the result that he was denied reunification services. Specifically, appellant contends that the notice of hearing he received was defective, in that it did not clearly indicate that a dispositional order would be made, and he was not served with the dispositional report, which recommended he be denied reunification services based upon his status as an alleged father. In addition, appellant had no opportunity to meet or otherwise confer with his court-appointed counsel prior to the dispositional hearing.[5]

Constitutional due process violations such as appellant claims are insufficient grounds for reversal of an order or judgment unless they result in prejudice to the appealing party or fall within certain narrow categories inapplicable here which require reversal per se. (Rose v. Clark (1986) 478 U.S. 570, 576-577, overruled on other grounds in Brecht v. Abrahamson (1993) 507 U.S. 619, 637; Chapman v. California (1967) 386 U.S. 18, 22, 24.) In dependency proceedings, due process violations have been held subject to the harmless beyond a reasonable doubt standard of prejudice. (In re Justice P. (2004) 123 Cal.App.4th 181, 193.) California Constitution, article VI, section 13 provides that [n]o judgment shall be set aside . . . for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice. Accordingly, we must affirm the order if the claimed due process violations were harmless beyond a reasonable doubt and, therefore, did not prejudice appellant sufficiently to constitute a miscarriage of justice and warrant reversal. (Cal. Const., art. VI,  13; In re Justice P., supra, at p. 193.)

DCFS contends that contrary to appellants claims, appellant suffered little or no prejudice from the trial courts denial of the continuance and issuance of the April 4, 2006 dispositional order. We agree.

By the time DCFS completed its submission on appeal, appellant was essentially in the position he would have been in if the court had continued the dispositional hearing, whether the continuance had been granted for a few days or weeks after the April 4, 2006 hearing or until appellant was released from prison on July 27, 2006. In spite of the fact of appellants alleged father status, DCFS began providing reunification services to him on August 3, 2006, just a few days after his release and only four months after the challenged dispositional hearing. In addition, appellant was given an opportunity to demonstrate the Kelsey S. characteristics required to be determined to be Cieras presumed father. Beginning with appellants first visit in August, he participated in weekly visitation with Ciera.

Appellant was provided the services and opportunity to change his paternal status without filing a section 388 petition[6]and incurring the attendant effort, expense and delays in the proceedings. In a review hearing held October 3, 2006, the juvenile court acknowledged appellants efforts to qualify as Cieras presumed father and gave him additional time and reunification services to pursue his efforts. Because Ciera was under three years old, appellant could have been limited to six months of services, beginning on the date of the order, April 4, 2006. ( 361.5, subd. (a)(2), (3).) Since his July 27, 2006 release, however, appellant has been granted a total of eight months of reunification services. Even if appellant had appeared at the April 4, 2006 hearing and reunification services had been ordered, given Cieras young age, it would have been inappropriate to transport her to appellants prison for reunification visits while he remained incarcerated. (Cal. Rules of Court, rule 5.695(f)(4).)

We conclude that any due process defects claimed by appellant were harmless beyond a reasonable doubt and do not require reversal of the April 4, 2006 dispositional order. (In re Justice P., supra, 123 Cal.App.4th at p. 193; accord, Rose v. Clark, supra, 478 U.S. at pp. 576-577.)

The order is affirmed.

NOT TO BE PUBLISHED

SPENCER, P. J.

We concur:

VOGEL, J.

ROTHSCHILD, J.

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[1] Mother is not a party to this appeal.

[2] The maternal aunt became Tylers legal guardian in May 2003.

[3] All further section references are to the Welfare and Institutions Code.

[4]Adoption of Kelsey S. (1992) 1 Cal.4th 816 holds at page 849 that [i]f an unwed [biological] father promptly comes forward and demonstrates a full commitment to his parental responsibilitiesemotional, financial, and otherwisehis federal constitutional right to due process prohibits the termination of his parental relationship absent a showing of his unfitness as a parent.

[5] Appellant acknowledges that, in response to the notice of hearing, he signed and submitted a waiver of appearance. He contends on appeal that it was not a knowing and intelligent waiver, in that he had not received adequate notice and did not have access to the advice from his counsel as to the possible outcome of the hearing and the effect of his waiver. Appellant admits, however, that he told a DCFS worker that he had received notice for the dispositional hearing, but would not attend because it would lengthen his prison time.

[6] In making its April 4, 2006 dispositional order, the juvenile court indicated that no continuance was warranted in part because, upon release from prison, appellant would be able to seek a different disposition by filing a section 388 petition based on the changed circumstance that he was no longer incarcerated.