In re Geovanny O.

 

 

 

 

 

 

 

 

 

Filed 9/4/13 
In re Geovanny O. CA2/2

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
TWO

 
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In re GEOVANNY O., a Person Coming Under the Juvenile Court Law.	B247254         (Los Angeles County
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,               Plaintiff and Respondent.               v.   JOSE O.,               Defendant and Appellant.	Super. Ct. No. CK94197)

 

 

 

            APPEAL
from orders of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County.  Sherri Sobel,
Juvenile Court Referee.  Affirmed.

 

            Jesse
McGowan, under appointment by the Court of Appeal, for Defendant and Appellant.

 

            John
F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and Kim
Nemoy, Deputy County Counsel for Plaintiff and Respondent.

 

            Appellant
Jose O. (father) appeals from the juvenile court’s jurisdictional and
dispositional findings and orders removing his son Geovanny from his custody
and denying him family reunification
services under Welfare and Institutions Code section 361.5, subdivision
(b)(12).href="#_ftn1" name="_ftnref1" title="">^[1]  Father contends he was denied his statutory
and due process right to receive notice of the recommendation of the href="http://www.fearnotlaw.com/">Los Angeles County Department of Children and
Family Services (the Department) that he be denied reunification services
because of his conviction for robbery. 
Father, who was incarcerated throughout the proceedings below, who was
absent from the jurisdictional and dispositional hearing, and who did not
submit a waiver of his right to attend the hearing, further contends the
juvenile court committed prejudicial error by refusing to continue the hearing
so that father could be transported to the hearing.  Finally, father contends the juvenile court
erred by failing to consider placing Geovanny in his care pursuant to section
361.2.

            The
record shows that father received notice of the Department’s recommendation
that reunification services be denied; that through his counsel, father was
given the opportunity to be heard on that issue; and that father was not prejudiced
by the juvenile court’s refusal to continue the jurisdictional and
dispositional hearing.  Father never
requested custody of Geovanny under section 361.2 in the juvenile court below
and he therefore forfeited consideration of that issue on appeal.  For these reasons, we affirm the juvenile
court’s orders.

>BACKGROUND

            On
July 2, 2012, the Department
filed a section 300 petition on behalf of Geovanny (born February 2009)
alleging that his mother, Cynthia (mother), had a history of drug abuse and had
engaged in a physical altercation with the maternal grandmother in the child’s
presence.  Father was in custody at the
time of the detention hearing, but his precise whereabouts were unknown.  The juvenile court found father to be
Geovanny’s presumed father and ordered the Department to make efforts to
contact him.  The juvenile court further
found a prima facie case for
detaining Geovanny with a maternal great aunt.

            On
July 23, 2012, the Department filed a first amended petition that included
allegations under section 300, subdivisions (b) and (g), that father had a
history of substance abuse and a criminal background that included drug related
charges; that father’s substance abuse rendered him incapable of providing
Geovanny with regular care and supervision and placed the child at risk of
harm; and that father was currently incarcerated and had failed to provide the
child with the necessities of life.

            In
its July 23, 2012
jurisdiction/disposition report, the Department’s investigator reported that
father was incarcerated but that efforts to contact him had been
unsuccessful.  According to mother and
the maternal great aunt, father’s involvement with Geovanny had been minimal.  Both mother and the maternal great aunt
reported a history of domestic violence
between father and mother that stopped only when their relationship ended,
shortly after Geovanny’s birth.  Included
in the Department’s report was a list of father’s arrests and convictions,
including a 2011 robbery conviction for which father was serving a two-year
prison term.  Father’s robbery conviction
was the basis for the Department’s recommendation that he be denied family
reunification services pursuant to section 361.5, subdivision (b)(12).  The report included “the [Department’s]
recommendation . . . that pursuant to [section] 361.5(b)(12) no reunification
services be ordered for the father because the [father]href="#_ftn2" name="_ftnref2" title="">^[2] has been convicted of a violent felony as defined
in subdivision (c) of Section 667.5 of the Penal Code (as noted in the criminal
history section, on 07/10/2011, the father was convicted of 211 PC--robbery).”

            On
July 18, 2012, father was
served with a copy of the first amended petition, along with a notice of
hearing on the petition.  The notice of
hearing advised father that the Department “may seek an order pursuant to
[section] 361.5 that no reunification services be provided to the parent(s) or
guardian(s).”

            Father
appeared in custody at the July 23,
2012 hearing and was appointed counsel.  Father’s counsel advised the court that
father had a “dispositional issue” and asked that father’s appearance at the
contested disposition hearing be waived. 
When the juvenile court asked father’s counsel the nature of the
dispositional issue father intended to raise, counsel responded,
“[r]eunification services for the father.” 
The juvenile court then replied: 
“Okay.  The Department is not
going to be recommending them.”  After
counsel for the Department confirmed the Department’s position, the juvenile
court set the matter for a contested jurisdictional and dispositional
hearing.  The court noted that father’s
appearance would be waived if his counsel had the authority to appear on his
behalf.

            On
August 21, 2012, father received notice of a September 6, 2012 hearing on the
first amended petition.  The notice of
hearing, like the previous notice served on July 18, 2012, advised father that
the Department “may seek an order pursuant to [section] 361.5 that no
reunification services be provided to the parent(s) or guardian(s).”  Father signed a waiver of his right to appear
at the hearing.

            At
the September 6, 2012 hearing, father’s counsel claimed that father had waived
his appearance only because he thought an agreement had been reached with the
Department.  Because the agreement had
purportedly fallen through, father’s counsel asked that father be transported
to court for a full trial.  The
Department’s counsel advised the juvenile court that the Department intended to
file a second amended petition, and the court set the matter for a continued
jurisdictional and dispositional hearing.

            In
October 2012, the Department filed a second amended petition that included an
additional allegation under section 300, subdivision (b), that father’s felony
conviction for robbery endangered Geovanny’s physical safety and emotional
wellbeing.  Father was served with a copy
of the second amended petition, as well as notice of an October 25, 2012
hearing on that petition.  The href="http://www.mcmillanlaw.com/">notice of hearing included the advisory
statement that the Department “may seek an order pursuant to [section] 361.5
that no reunification services be provided to the parent(s) or guardian(s).”

            Father
waived his appearance at the continued October 25, 2012 hearing.  At the hearing, father’s counsel objected
that father had never received notice “that the Department changed its
recommendation to no [family reunification services].”  Father’s counsel reiterated the explanation
she had given at the previous hearing held on September 6, 2012:  “County counsel and I had worked out a
settlement agreement and this trial was set for mother until this first amended
petition was filed which -- I obviously hadn’t talked to my client.  We had language.  We had a disposition.  Obviously things have changed.”

            After
the juvenile court agreed with father’s counsel and stated its intention to
continue the hearing as to father, counsel for the Department interjected:  “Your Honor, if I may, I believe the notice
was no [reunification services] all along . . . .  [T]he no [reunification services]
recommendation was in the jurisdiction/disposition report.”  The juvenile court replied that “the
Department need[s] to let [father] know that the Department’s not going to be
offering reunification services here under probably two sections . . . .  So I do think he has a right to get
notice.”  The court continued the hearing
as to father and proceeded with a jurisdictional hearing as to mother.

            Father
was served with notice of the continued jurisdictional and dispositional
hearing on the second amended petition to be held on December 5, 2012.  The notice of hearing again contained the
advisement that the Department “may seek an order pursuant to [section] 361.5
that no reunification services be provided to the parent(s) or guardian(s).”

            Although
a removal order had been issued for father’s appearance at the continued
jurisdictional and dispositional hearing held on December 5, 2012, father did
not appear at the hearing, nor did he submit a signed waiver of his right to
appear.  Father’s counsel objected to
proceeding on the grounds that father had not received notice of the
recommendation to deny him reunification services and had not waived his
appearance at the hearing.  The
Department’s counsel argued that its recommendation had been included in the
July 23, 2012 jurisdiction/disposition report and in the notice of hearing
served on father.  Geovanny’s counsel
joined in the Department’s argument.

            The
juvenile court found that father had waived his appearance at the hearing,
sustained the section 300, subdivision (b) allegations against father, declared
Geovanny to be a dependent of the court, and ordered him removed from his
parents’ custody.  The court ordered
reunification services for mother and denied services to father under section
361.5, subdivision (b)(12).

            This
appeal followed.

>DISCUSSION

I.  Notice regarding denial of
reunification services

            Section
361.5, subdivision (b)(12) provides that “[r]eunification services need not be
provided to a parent or guardian described in this subdivision when the court
finds, by clear and convincing evidence . . . [t]hat the parent or guardian of
the child has been convicted of a violent felony, as defined in subdivision (c)
of Section 667.5 of the Penal Code.” 
Robbery in violation of Penal Code section 211 is a violent felony.  (Pen. Code, § 667.5, subd. (c).)

            When
denial of reunification services under section 361.5 is an issue, subdivision
(c) of that statute requires the juvenile court to hold a dispositional hearing
on the issue and requires the Department to prepare a report as to whether
reunification services should be provided: 
“In deciding whether to order reunification in any case in which this
section applies, the court shall hold a dispositional hearing.  The social worker shall prepare a report that
discusses whether reunification services shall be provided.”  (§ 361.5, subd. (c).)

            When
the Department alleges that denial of reunification services under section
361.5 is appropriate, section 358, subdivision (a)(3) requires the Department
to notify each parent of the content of section 361.5 and to inform the parents
that if the juvenile court does not order reunification, a permanency planning
hearing will be held at which parental rights may be terminated.  Subdivision (a)(3) of section 358 also
requires the juvenile court to continue the matter for a period not to exceed
30 days; it provides:

“If the social
worker is alleging that subdivision (b) of Section 361.5 is applicable, the
court shall continue the proceedings for a period not to exceed 30 days.  The social worker shall notify each parent of
the content of subdivision (b) of section 361.5 and shall inform each parent
that if the court does not order reunification a permanency planning hearing
will be held, and that his or her parental rights may be terminated within the
timeframes specified by law.”

 

            The
statutory framework requires both notice and an opportunity to be heard before
reunification services may be denied.  (>In re Jessica F. (1991) 229 Cal.App.3d
769, 782 (Jessica F.).)  Such notice is constitutionally mandated as
well.  “Notice is both a constitutional
and statutory imperative.  In juvenile
dependency proceedings, due process requires parents be given notice that is
reasonably calculated to advise them an action is pending and afford them an
opportunity to defend.  [Citation.]”  (In re
Jasmine G. (2005) 127 Cal.App.4th 1109, 1114.)

            In
this appeal, father challenges the sufficiency of the notice provided him under
section 358.  This same issue was
addressed by the court in Jessica F.,
a case in which a mother who was denied reunification services argued that she
had insufficient notice of the county’s recommendation that she be denied
services under section 361.5, subdivision (b)(4).  (Jessica
F., supra, 229 Cal.App.3d at p.
782.)  The court in Jessica F. first noted that the mother could not claim she had
received no notice that services might be denied her because the jurisdiction
and disposition reports recommended that the juvenile court “‘[f]ind that
361.5(b) may apply and Reunification Services may not be ordered’” and because
county counsel had specifically pointed out that recommendation during the
jurisdictional hearing attended by both the mother and her counsel.  (Jessica
F., at p. 782, fn. 15.)  The court
concluded that “section 361.5 only requires that mother be given notice in the
social worker’s report that reunification services might be denied and, further,
that mother be afforded an opportunity to be heard on that issue, both of which
occurred in this case.”  (>Id. at p. 782.)

            Here,
as in Jessica F., the statutory and
constitutional notice requirements were satisfied.  Father had both notice and the opportunity to
be heard regarding the Department’s recommendation that he be denied
reunification services under section 361.5, subdivision (b)(12).  That recommendation, and father’s robbery
conviction as the basis for denying him services, were included in the July 23,
2012 jurisdiction/disposition report. 
Both father and his counsel were present at the July 23, 2012 hearing
when the juvenile court pointed out, and the Department’s counsel confirmed,
that “[t]he Department is not going to be recommending [reunification
services].”

            Father
contends the July 23, 2012 jurisdiction/disposition report was not sufficient
notice of the Department’s recommendation to deny him reunification services
because he believed an agreement had been reached with the Department regarding
reunification services but the agreement was subsequently withdrawn.  Even assuming that a failed agreement with
the Department on reunification services negated the notice father received in
the July 23, 2012 jurisdiction/disposition report, father received subsequent
notice advising him of the Department’s position.  Father was served with notices of hearing
dated July 18, 2013, August 21, 2012, September 13, 2012, and November 1, 2012,
each of which advised him that the Department “may seek an order pursuant to
[section] 361.5 that no reunification services be provided to the parent(s) or
guardian(s).”  Each of the notices
further advised father that the purpose of the hearings was to adjudicate a
section 300 petition, that father had the right to be present at the hearing
and to be represented by counsel, that if the allegations of the petition were
found to be true, the juvenile court would proceed to disposition and could
remove Geovanny from his parents’ custody. 
A copy of the section 300 petition, the first amended petition, and the
second amended petition was attached to the respective notices sent to
father.  In addition, father was
represented by his counsel at the September 6, 2012 and October 25, 2012
hearings when the issue of no reunification services was specifically
discussed.  The statutory and due process
notice requirements were met in this case. 
(Jessica F., supra, 229
Cal.App.3d at p. 782.)

II.  Continuance of the
jurisdictional and dispositional hearing

            Father
contends the trial court committed prejudicial error by failing to further
continue the December 5, 2012 hearing because father had both a statutory and
due process right to be present at that hearing and his absence precluded any
meaningful trial on the issue of reunification services.  We agree that father had a statutory right
under Penal Code section 2625, subdivision (d), to be present at the
adjudication and disposition hearing held in his absence on December 5, 2012,
and that the trial court erred by proceeding without him.  (In re
Jesusa V. (2004) 32 Cal.4th 588, 622 (Jesusa
V.).)  We conclude, however, that
father’s absence from the hearing did not deprive him of due process, and that
under the applicable harmless error standard, he suffered no prejudice.  (Id. at
pp. 602, 622, 625.)

            Penal
Code section 2625 governs dependency proceedings affecting the parental rights
of individuals who are incarcerated. 
Subdivision (d) of that statute ensures that incarcerated parents have
the opportunity to be present at proceedings in which their children may be
removed from their custody.  (>Jesusa V., supra, 32 Cal.4th at p.
623.)  It provides in relevant part:  “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. . . .  [N]o
petition to adjudge the child of a prisoner or 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).)

            Our
Supreme Court has interpreted Penal Code section 2625, subdivision (d) to
require the presence of both the incarcerated parent and his or her counsel,
absent the parent’s waiver of the right to attend.  (Jesusa
V., supra, 32 Cal.4th at pp. 621-624.) 
In the instant case, father was not present at the December 5, 2012
jurisdictional and dispositional hearing, and no waiver of his appearance had
been submitted.  The juvenile court
accordingly erred by adjudicating, in father’s absence, the allegations of the
section 300 petition pertaining to him, in violation of Penal Code section
2625, subdivision (d).href="#_ftn3"
name="_ftnref3" title="">^[3]  (Jesusa
V., supra, at p. 622.)

            The
harmless error standard applies when determining whether father was prejudiced
by the juvenile court’s failure to comply with Penal Code section 2625,
subdivision (d).  (Jesusa V., supra, 32 Cal.4th at pp. 625-626.)  In the instant case, father was notified of
the December 5, 2012 hearing.  At the
hearing, father was represented by his appointed counsel, who had received the
social worker’s reports, and who had the opportunity to present evidence or to
cross-examine witnesses regarding the content of those reports.  The juvenile court invited father’s counsel
to present argument on father’s behalf, but counsel declined.  The circumstances here are similar to those
presented in In re Axsana S. (2000)
78 Cal.App.4th 262, a case in which an incarcerated father awaiting trial on
murder charges was involuntarily absent from a dependency hearing at which he
was denied reunification services with his daughter.  The court in Axsana, after noting that the father had “cited no case law
providing incarcerated parents a due process right to be present at dependency
proceedings involving their children” (id.
at p. 270), concluded that the incarcerated father had not been denied due
process because he had the opportunity to be heard, through his appointed
counsel, throughout the dependency proceedings, including the hearing at which
reunification services were denied.  (>Ibid.)href="#_ftn4" name="_ftnref4" title="">^[4]

            The
Axsana court’s conclusion that an
incarcerated parent has no due process right to be present at a dependency
hearing was reaffirmed by the California Supreme Court in Jesusa V.  In >Jesusa V., an incarcerated father
claimed that he was denied due process as the result of his involuntary absence
from a hearing on his status as a presumed father and from a subsequent
combined jurisdictional and dispositional hearing at which he was ordered to
have no contact with the child.  Although
absent from the hearings, the father had appointed counsel to represent him
throughout the dependency proceedings.  (>Jesusa V., supra, 32 Cal.4th at pp. 601,
625-626.)  After citing with approval the
Axsana court’s due process holding,
the Supreme Court in Jesusa V. noted
that “courts have ‘repeatedly held that the due process rights of a prisoner
who has been prohibited from participating in a custody hearing are not
violated where the prisoner was represented by counsel at the hearing and was
neither denied an opportunity to present testimony in some form on his behalf
nor denied the opportunity to cross-examine witnesses.’  [Citations.]” 
(Jesusa V., at p. 602.)  The Supreme Court went on to conclude that
the incarcerated father in the case before it had not been denied due process
because he was represented by counsel.  (>Id. at pp. 602, 625-626.)

            Here,
as in Jesusa V. and >Axsana, father was represented by his
appointed counsel throughout the juvenile court proceedings below, including at
the jurisdictional and dispositional hearing at issue.  At the hearing, father’s attorney made no
offer of proof of the testimony father wanted to present in person.  Father has not identified, either in the
juvenile court below or in this appeal, the evidence he claims he would have
offered had he been present.  Given these
circumstances, we conclude that “‘[n]o other result was possible’ even if he
had been present.  [Citation.]”  (Jesusa
V., supra, 32 Cal.4th at p. 626, quoting In re Rikki D. (1991) 227 Cal.App.3d 1624, 1632.)  Father was not denied his due process right
to be heard.

III.  Placement of Geovanny in
father’s custody

            Father
contends the juvenile court erred by failing to consider placing Geovanny in
his custody under section 361.2.  We need
not consider this issue because father did not request custody in the juvenile
court proceedings below.  He therefore
forfeited appellate consideration of the issue. 
“A parent’s failure to raise an issue in the juvenile court prevents him
or her from presenting the issue to the appellate court.  [Citation.]” 
(In re Elijah V. (2005) 127
Cal.App.4th 576, 582.)

>DISPOSITION

            The
orders establishing juvenile court jurisdiction over Geovanny, removing him
from father’s custody, and denying father reunification services are affirmed.

            NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS.

 

 

                                                                                    ____________________________,
J.

                                                                                    CHAVEZ

 

We concur:

 

 

 

____________________________, P. J.

BOREN

 

 

 

____________________________, J.

ASHMANN-GERST