Opinion
B199265
4-15-2008
In re KAREN A., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. DONALD A., Defendant and Appellant.
Joseph D. MacKenzie, under appointment by the Court of Appeal, for Defendant and Appellant. Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Kim Nemoy, Senior Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Donald A. (father) appeals from the judgment declaring Karen A. a dependent of the court under Welfare and Institutions Code section 300. Father contends he was denied his due process rights to notice of the hearing, transportation from his place of federal incarceration to the hearing, and cross-examination of witnesses against him. We find no due process violations and affirm.
Hereinafter, all statutory references are to the Welfare and Institutions Code unless otherwise specified.
FACTS AND PROCEDURAL BACKGROUND
Karen was born in August 2005 to father and Maria P. (mother). The household consisted of mother, father, Karen, and Karens half-sister, Maria C., who was born in 2000 to mother and Roberto C. Karen and Maria were taken into protective custody on July 6, 2006, after Maria alleged that father sexually molested her and Karen. A dependency petition was filed.
The dependency court found father is Karens presumed father.
Maria is not a subject of this appeal.
Father moved out of the home when the children were detained, left his job, tried to change his appearance and identity, and became whereabouts unknown. He was located in October 2006. The social worker personally served him with notice of the hearing on the petition set for October 30, 2006.
Father appeared in court on October 30, 2006, and an attorney was appointed to represent him. The matter was continued to February 5, 2007, for a contested adjudication.
Father was arrested by the sheriffs department in November 2006. The matter was trailed to February 6, 2007, for father to be brought to court. Father was present in court in custody on February 6, 2007, for the start of the adjudication. After exhibits were admitted into evidence, the Department of Children and Family Services rested. Counsel for father cross-examined Maria. The matter was continued to February 22, 2007, and thereafter from date to date, to March 29, 2007.
On March 1, 2007, father was released from state custody and taken into federal custody on an immigration hold. Father was not present in court on March 29, 2007, but was represented by counsel. Noting it had no power to compel the federal authorities to facilitate fathers appearance in state court, the dependency court ordered counsel to use her best efforts to contact father, obtain fathers instructions, and proceed in his absence. Counsel stated she believed she could locate father and proceed in his absence. The adjudication was continued to May 3, 2007.
On May 3, 2007, father was not present in court, but was represented by counsel, who confirmed father was in federal custody on an immigration hold. Counsel asked the dependency court to strike the allegations of the petition against father, because father could not be present. "[H]e will be deported and the Department can always bring the allegations against him again if he does return to this country." The request was denied. The dependency court stated that, as father was outside the jurisdiction of the court, the case would go forward based on In re Maria S. (1997) 60 Cal.App.4th 1309, 1310-1314 (the inability of a parent, who is represented by counsel, to attend the dependency hearing does not deprive him of his right to participate).
Counsel sought to cross-examine mother, Roberto, and Marta P., who is Marias maternal grandmother, on their statements in the reports. The dependency court ruled that the proposed cross-examination was irrelevant and would not be allowed.
The dependency court sustained allegations against father under section 300, subdivisions (b) (substantial risk of serious physical harm as a result of fathers sexual abuse of Maria and Karen), (d) (sexual abuse), and (j) (sibling abuse). The children were declared dependants of the court, custody was taken from the parents, and the Department was ordered to provide reunification services. This timely appeal followed.
The dependency court also sustained allegations of physical abuse and failure to protect against mother and failure to protect against Roberto.
DISCUSSION
1. Father Was Not Deprived of Due Process By Lack of Notice
Father contends due process was violated in that he was not given notice of the May 3, 2007 hearing. Father contends he was not in court on the date the matter was continued to May 3, 2007, and the record contains no proof that the social worker sent him notice of the continued date. We find that the contention was forfeited by fathers failure to object in the trial court on this ground. (In re Anthony P. (1995) 39 Cal.App.4th 635, 641.) Father was present in court when the adjudication began. Upon resumption of the hearing on May 3, 2007, counsel neither objected on notice grounds nor requested a continuance. Having failed to raise an issue in the dependency court that he did not receive notice, he cannot contend now that his right to notice was violated.
In any event, the record does not support a finding of a lack of notice resulting in a denial of due process. Counsel was ordered to use her best efforts to contact father and get instructions so that counsel could proceed in fathers absence on May 3, 2007. When the case resumed, counsel confirmed father was in federal custody and was going to be deported. It is reasonable to infer from the order, counsels confirmation, and the fact counsel did not indicate she had been unable to talk to father, that counsel contacted father and gave him notice of the May 3, 2007 continued date, satisfying the due process requirement.
Due process requires "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." (Mullane v. Central Hanover Bank & Trust Co. (1950) 339 U.S. 306, 314.)
To the extent father contends there was a violation of statutory notice, we disagree with the contention. Father mistakenly contends he had a right to notice of the hearing pursuant to Penal Code section 2625, subdivision (b). Penal Code section 2625 applies only to prisoners who are in state custody. (Pen. Code, § 2625, subd. (a); In re Maria S., supra, 60 Cal.App.4th at p. 1312.) Father also mistakenly contends he had a right to notice pursuant to section 291, which provides parents must be given notice of the jurisdiction/disposition hearing. (See § 291.) After notice of a hearing has been given, and the hearing has been continued, "renotice need not comply with [section 291] as long as it satisfies due process." (In re Phillip F. (2000) 78 Cal.App.4th 250, 252.) Actual notice of the continued date is sufficient. (Id. at p. 259; In re J. I. (2003) 108 Cal.App.4th 903, 910.)
Penal Code section 2625, subdivision (b) provides in pertinent part: "In any proceeding . . . brought under Section 300 . . . to adjudicate the child of a prisoner a dependent child of the court, the superior court of the county in which the proceeding is pending, or a judge thereof, shall order notice of any court proceeding regarding the proceeding transmitted to the prisoner."
Father attended the first day of the hearing and knew the hearing was being continued. Even if he was not made aware of the date it was eventually continued to, there was no prejudice because fathers federal custodial status made it impossible for him to be present in court. Nothing in the record suggests that another or different notice would have resulted in fathers presence at the hearing or different trial tactics by counsel. Any notice error was harmless beyond a reasonable doubt. (See In re Daniel S. (2004) 115 Cal.App.4th 903, 912-913 [lack of statutory notice is not reversible error if the error was harmless beyond a reasonable doubt]; In re Angela C. (2002) 99 Cal.App.4th 389, 392-396 [lack of due process notice not reversible if harmless beyond a reasonable doubt].)
2. Father Was Not Denied Access to the Proceeding
Father contends he was denied his due process right to be present at the May 3, 2007 hearing, in that the dependency court failed to investigate his custody status and order him transported to the hearing. Father is mistaken. First, the dependency court investigated fathers custody status by ordering counsel to locate father in custody. Second, it is undisputed in the record that the dependency court had no authority to order father transported to the hearing.
Incarcerated parents who are represented at a hearing by counsel have no due process right to personally be present. (In re Jesusa V. (2004) 32 Cal.4th 588, 602; In re Axsana S. (2000) 78 Cal.App.4th 262, 269-271 [disposition hearing].) The lack of a protocol between state and federal authorities to facilitate attendance in dependency proceedings by prisoners awaiting deportation does not violate due process. (In re Maria S., supra, 60 Cal.App.4th at pp. 1310-1314.) As father was represented in court by counsel, due process was not violated.
To the extent father contends he was denied a statutory right under Penal Code section 2625, subdivision (d) to personally attend the hearing, we disagree with the contention. As noted above, Penal Code section 2625 applies only to state prisoners. Moreover, a written waiver is not required when the prisoner is represented at the hearing by his attorney. (Pen. Code, § 2625, subd. (d).)
Penal Code section 2625, subdivision (d) provides in pertinent part: "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 . . . petition to adjudge the child of a prisoner a dependent child of the court pursuant to subdivision (a), (b), (c), (d), (e), (f), (i), or (j) of section 300 . . . may be adjudicated 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."
3. The Dependency Court Properly Excluded Cross-Examination of Marta, Roberto, and Mother
Father contends he was denied due process by the dependency courts denial of his request to cross-examine Marta, Roberto, and mother on their statements in the reports. We hold the dependency court did not abuse its discretion by ruling the proposed cross-examination of the witnesses was irrelevant.
Father does not contend the order violated any statute.
"While both the federal and state Constitutions confine the express right of confrontation to criminal defendants [citation], parties in civil proceedings also have a due process right to cross-examine and confront witnesses [against them]." (In re Malinda S. (1990) 51 Cal.3d 368, 383, fn. 16.)
Only relevant evidence is admissible. (Evid. Code, § 350.) "We review the trial courts ruling for an abuse of discretion. `Broadly speaking, an appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence. Speaking more particularly, it examines for abuse of discretion a decision on admissibility that turns on the relevance of the evidence in question. (People v. Waidla (2000) 22 Cal.4th 690, 717-718.) Put another way: `The trial court retains broad discretion in determining the relevance of evidence. (People v. Garceau (1993) 6 Cal.4th 140, 177.) Relevance is statutorily defined as `having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. (Evid. Code, § 210.)" (San Lorenzo Valley Community Advocates for Responsible Education v. San Lorenzo Valley Unified School Dist. (2006) 139 Cal.App.4th 1356, 1414.)
In the reports, Roberto stated Maria told him that father was molesting her and that he reported this to mother. Mother denied Roberto told her. Mother also denied Maria told her about the molestations and stated she noticed no sign that father was molesting Maria. Marta stated Maria told her on July 5, 2006, that father was molesting her, and Marta immediately took Maria to the doctor.
Maria had stated she told mother about the molestation.
As an offer of proof, counsel stated she wanted to ask Roberto "what he knew and who he told" and whether he was really the one who molested Maria. Counsels offer of proof as to mothers testimony was merely that mother made statements that are in the report. Counsel was unable to state how cross-examination of the witnesses on their statements in the reports would lead to relevant evidence.
Father argues that cross-examination of Roberto, mother, and Marta on their statements were relevant in that "there were discrepancies between Marias statements, other information in [the] reports, and Marias testimony." However, father had an opportunity to cross-examine Maria on any such discrepancies. Mothers statements in the reports were favorable to fathers denial he molested Maria. The dependency court could reasonably conclude that whether Roberto told mother about Marias disclosure did not tend to prove or disprove the allegation that father molested Maria. As the court could reasonably conclude cross-examination of the three witnesses would not lead to evidence that father did not molest Maria, the order denying cross-examination did not deprive father of due process.
DISPOSITION
The orders are affirmed.
We concur:
TURNER, P. J.
ARMSTRONG, J.