In re G.R. CA4/1

Filed 11/15/13 In re G.R. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re G.R. et al., Persons Coming Under the
Juvenile Court Law.
D063748
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. 518009A-C)
Plaintiff and Respondent,
v.
GONZALO R. et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of San Diego County, Carol
Isackson, Judge. Affirmed.
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and
Appellant Gonzalo R.
Monica Vogelmann, under appointment by the Court of Appeal, for Defendant
and Appellant Linda D.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Kristen M. Ojeil, Deputy County Counsel, for Plaintiff and Respondent.
Gonzalo R. and Linda D. appeal a juvenile court order terminating their parental
rights to their minor son, G.R., under Welfare and Institutions Code1 section 366.26.
Gonzalo contends the court violated his due process rights to notice and an opportunity to
be heard when it proceeded with the selection and implementation hearing in his absence.
Linda joins in Gonzalo's argument. We affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2011, three of Linda's children, including seven-year-old G.R.,2 became
dependents of the juvenile court under section 300, subdivision (b) and were removed
from parental custody based on findings Linda abused prescription drugs, left the
children with other people without making arrangements for their care, and failed to
provide the children with necessities. Linda admitted she could not care for her children
and asked that they be removed from her custody. Gonzalo had been incarcerated in
Nevada since 2009. The court placed the children in out of home care, ordered
reunification services for Linda, and ordered no services for Gonzalo under section 361.5,
subdivision (e) because he was going to remain incarcerated for the duration of the
1 Statutory references are to the Welfare and Institutions Code unless otherwise
specified.
2 Gonzalo is the father of G.R. only. The other children are not subjects of this
appeal.
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reunification period. After Gonzalo was transferred to a correctional facility that offered
services, a case plan was filed for him.
Throughout the proceedings, Gonzalo was represented by counsel and appeared by
telephone from prison. The court terminated Linda's services at the 12-month hearing.
At the 18-month hearing, the court terminated Gonzalo's services and set a section 366.26
selection and implementation hearing. The court noted G.R.'s only contact with Gonzalo
during the dependency case was one telephone call in December 2012, and some letters
and photographs G.R. received from Gonzalo. The court found there was essentially no
relationship between G.R. and Gonzalo. Gonzalo was personally served with notice of
the selection and implementation hearing.
The social worker assessed the children as generally and specifically adoptable.
They had been placed together with caregivers who wanted to adopt all of them. The
social worker recommended the court terminate parental rights and order adoption as the
children's permanent plans. Linda, who had been in and out of jail, had not regularly
visited the children and said she was glad to know they were being well cared for.
Gonzalo remained incarcerated in Nevada, and said he was happy to know G.R. was
doing well with a family who loves him, and he understood why it was in G.R.'s best
interests to live in a permanent and loving home.
The selection and implementation hearing was continued several times, and the
court found notice had been properly given. Counsel for Gonzalo indicated he did not
intend to call any witnesses. The court authorized Gonzalo to appear at the contested
hearing by telephone or through counsel.
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At the contested selection and implementation hearing, the court again found
notice had been properly given. Gonzalo's attorney was present, and the court placed a
telephone call to Gonzalo at his detention facility. When no one answered, the court left
a voicemail message stating arrangements had been made for Gonzalo to appear
telephonically and asking that Gonzalo return the call so that he could participate in the
hearing. The court expressed its hope that Gonzalo would call in, and proceeded with the
hearing. After considering the evidence and arguments of counsel, the court found the
children were adoptable and none of the exceptions to adoption applied. The court
terminated parental rights and referred the children for adoptive placement.
DISCUSSION
Gonzalo contends the court violated his due process rights to notice and an
opportunity to be heard by allowing the selection and implementation hearing to proceed
in his absence. He asserts the court should have made more of an effort to contact him at
his detention facility to ensure his participation in the hearing by telephone. Linda joins
in this argument to the extent it benefits her.
A
In juvenile dependency proceedings, a parent has a due process right to notice and
an opportunity to be heard. (In re Justice P. (2004) 123 Cal. App. 4th 181, 188.) Due
process is a flexible concept that depends on the circumstances of the case and a
balancing of various factors. (In re Earl L. (2004) 121 Cal. App. 4th 1050, 1053.) For an
incarcerated parent, this entails "meaningful access to the courts," and includes being
represented by appointed counsel, receiving a copy of the social worker's report, having
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an opportunity to call and cross-examine witnesses, and presenting his or her own
testimony in written form. (In re Jesusa V. (2004) 32 Cal. 4th 588, 601; In re Axsana S.
(2000) 78 Cal. App. 4th 262, 269.)3 " '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 Jesusa V., supra, 32 Cal.4th at p. 602, quoting In re
Axsana S., supra, 78 Cal.App.4th at p. 269.) Thus, " '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.' " (In re Jesusa V., supra, at p. 602.) Moreover, there is no
denial of due process when a prisoner-parent is unable to attend a hearing because he or
she is in the custody of another state or the federal government and is instead represented
by counsel. (Id. at p. 626.)
B
Here, the record shows Gonzalo had notice of the selection and implementation
hearing, and he does not argue otherwise. Instead, he claims he was "treated in a
3 In Jesusa V., supra, 32 Cal.4th at pp. 624-625, the Supreme Court held an
incarcerated father has a statutory right to be present at a jurisdiction and disposition
hearing under Penal Code section 2625 absent a waiver. The court disapproved the
holding in Axsana S., supra, 78 Cal. App. 4th 262, to the extent it held otherwise. (In re
Jesusa V. at p. 624, fn. 12.) However, the court in Jesusa V. agreed with the Axsana S.
court's holding that incarcerated parents have no " 'due process right to be present at
dependency proceedings involving their children.' " (In re Jesusa V., supra, 32 Cal.4th at
p. 602.)
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fundamentally unfair manner" when the court proceeded without him. Gonzalo had
arranged through his appointed counsel to participate in the hearing by telephone from
his detention facility in Nevada, but for reasons unexplained in the record, he was
unavailable at the time the court placed the call and for the duration of the hearing.
Nevertheless, Gonzalo had the opportunity to participate through counsel, who
adequately represented his interests regarding termination of his parental rights. The
court's inability to reach Gonzalo by telephone did not deprive him of a meaningful
opportunity to be heard, and there was nothing unfair about the manner in which the court
proceeded.
C
In any event, an incarcerated parent must show any claimed violation of his right
to be present at a dependency hearing resulted in prejudice. (In re Iris R. (2005) 131
Cal. App. 4th 337, 343; In re Jesusa V., supra, 32 Cal.4th at pp. 625-626 [harmless error
analysis required in light of legislative imperative that dependency actions be resolved
expeditiously].) Here, Gonzalo's counsel did not object to the admission of Agency's
reports, cross-examine the social worker, or call any witnesses. Indeed, counsel
submitted the matter on the record, noting Gonzalo's statements and "feelings about the
situation" were contained in Agency's addendum report. In that report, Gonzalo said he
was happy to hear G.R. was doing well with a family who loves him, and although "he
will always care about and love his son, he understands why it is in [G.R.'s] best interest
to reside in a permanent and loving home." The evidence showed Gonzalo had been
incarcerated since before the dependency petition was filed. His only contact with G.R.
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throughout the two years G.R. was a dependent was one telephone call and some letters
and photos Gonzalo sent. G.R. was likely to be adopted and had no beneficial parent-
child relationship with Gonzalo to preclude terminating parental rights. Gonzalo has
provided no explanation of what he might have said or done to change the court's
findings had he appeared by telephone at the selection and implementation hearing, and
we can conceive of none. Thus, we conclude no other result was possible even if
Gonzalo had participated in the hearing. (In re Jesusa V., supra, 32 Cal.4th at p. 626;
D.E. v. Superior Court (2003) 111 Cal. App. 4th 502, 514 [even if juvenile court should
have exercised its discretion to continue disposition hearing so incarcerated father could
be present, any error was harmless].)
DISPOSITION
The order is affirmed.
IRION, J.
WE CONCUR:
HALLER, Acting P. J.
AARON, J.
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