Opinion
A158786
08-27-2020
In re C.J., et al., Persons Coming Under the Juvenile Court Law. SAN FRANCISCO HUMAN SERVICES AGENCY, Petitioner and Respondent, v. C.J., Objector and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City & County Super. Ct. No. JD14-3238, JD14-3238A)
At a post-permanency review hearing under Welfare and Institutions Code section 366.3 in dependency proceedings for C.J. and J.J. (Minors), the trial court denied C.J.'s (Father) request for a contested trial on his allegations that his drug test results earlier in the proceeding were mishandled. Father appeals, contending the court's ruling denied him due process. We conclude that even if the court erred by denying Father's request for a trial, the record does not show that the denial prejudiced him. We shall therefore affirm.
Undesignated statutory references are to the Welfare and Institutions Code.
BACKGROUND
We recite the facts only as necessary to resolve the issues on appeal. The full factual background of this case may be found in our opinions in prior appeals arising from this case. (See In re J.J. (June 1, 2020, A158072) [nonpub. opn.]; In re C.J. (Dec. 30, 2019, A156975) [nonpub. opn.]; C.J. v. Superior Court (Feb. 2, 2017, A149965) [nonpub. opn.]; In re C.J. (Feb. 2, 2017, A148255) [nonpub. opn.].)
Though these decisions were not published, we cite them because they are relevant to this proceeding under the doctrines of law of the case, res judicata, or collateral estoppel, as explained below. (Cal. Rules of Court, rule 8.1115(b)(1).) --------
The Minors "came under the jurisdiction of the juvenile court in October 2014 after the juvenile court sustained allegations, inter alia, that Father's unknown mental health status and lack of judgment placed Minors at risk of harm and that he had violated a court order prohibiting Minors' mother, Z.W. (Mother), from having contact with them. . . . Minors were placed with Father, but were removed in January 2015 after reports of an incident in which Father arrived at Minors' school to pick them up, appearing confused and disoriented, admitted to paramedics he had been smoking crystal methamphetamine, and had a positive test for methamphetamine. Father was granted reunification services, which included drug testing. The juvenile court later ordered him to participate in a substance abuse treatment program.
"At the 18-month review hearing on October 24, [2016], the juvenile court found that return of Minors would create a substantial risk of detriment, terminated reunification services, and set the matter for a permanency hearing pursuant to section 366.26." (C.J. v. Superior Court, supra, A149965), at p. 2.) Father challenged that order via a writ petition, contending it was not supported by substantial evidence. (Ibid.) We disagreed because the evidence showed, among other things, that Father tested positive for methamphetamine on at least 10 occasions between May 2015 and September 2016. (Id. at p. 3.)
At the section 366.26 hearing, the juvenile court found the children were not adoptable, placed them in long term foster care with their maternal great aunt and uncle, and ordered that Father's visitation with the children continue. (In re C.J., supra, A156975, at p. 3.) Father was dissatisfied with his counsel during the six-month review hearings in the following years, and in February 2019 the juvenile court ultimately granted Father's request to represent himself but ordered his last attorney to assist Father as advisory counsel. (Ibid.)
In October 2019, the court held another six-month review hearing. Father appeared and stated that after reading through some of the "discovery," he determined he wanted a trial on some of the issues that his attorneys had allowed the judge to "rubber stamp." Father clarified that he meant he wanted to have a civil rights attorney look into his case. The court told Father he was free to file any civil action he wished and proceeded to make its findings regarding the renewal of the dependency.
After the court ordered Father to appear at the next six-month review hearing, Father asked if the court was denying his request for a trial. Father explained he wanted a trial on "[i]ssues that I have where discovery where drug tests was with someone else name on it, but, you know, focusing on me where, you know, the people who were doing the drug tests stopped doing it with CPS because they can't take that. It wasn't on their fault. They figured that CPS was doing something with the tests."
The juvenile court denied Father's request. Father timely appealed.
DISCUSSION
Father contends the juvenile court deprived him of his due process right to notice and opportunity to be heard at the review hearing by denying his request for a contested hearing. "The federal and state Constitutions guarantee that no state shall deprive any person of life, liberty or property without due process of law. [Citation.] A parent's interest in the companionship, care, custody and management of his children is a compelling one, ranked among the most basic of civil rights." (In re Marilyn H. (1993) 5 Cal.4th 295, 306.) While this requires that a parent receive due process in dependency proceedings, it "is well recognized that due process 'is a flexible concept which depends upon the circumstances and a balancing of various factors.' [Citations.] Even where due process rights are triggered, it must always be determined 'what process is due.' [Citation.] . . . Accordingly, our courts have recognized that '[d]ifferent levels of due process protection apply at different stages of dependency proceedings.' " (In re A.B. (2014) 230 Cal.App.4th 1420, 1436.)
Several decisions have considered, with divergent results, whether due process provides parents an absolute right to a contested evidentiary hearing in dependency matters, including in post-permanency review hearings, or whether parents must make an offer of proof to obtain such a hearing. (In re T.S. (2020) 52 Cal.App.5th 503 [discussing cases].) Indeed, we confronted this same question in an earlier opinion in this matter in response to Father's request for a contested hearing regarding the reunification services the agency offered him. (In re C.J., supra, A148255), at p. 8.) As we concluded then, it is unnecessary for us here to finally resolve the scope of a parent's right to a contested hearing. (Id. at p. 9.) Even if we assume that the juvenile court erred by depriving Father of his right to a hearing, which we do not imply, we may not reverse unless we determine the error resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13.) The parties here agree that the applicable " ' "standard of review where a parent is deprived of a due process right is whether the error was harmless beyond a reasonable doubt." ' " (M.T. v. Superior Court (2009) 178 Cal.App.4th 1170, 1180.)
Father contends he wanted a trial to revisit several issues he believed his prior attorneys had failed to raise earlier in the case, but the only specific issue Father identified is his allegation that the agency was "doing something with" Father's earlier drug tests and the tests had someone else's name on them. He argues these issues were relevant because Father's substance abuse and positive drug tests were key factors in the juvenile court's decision to terminate efforts to return Minors to Father's custody.
Father does not explain how potential irregularities in the earlier proceedings could have changed any of the juvenile court's findings and orders at the hearing. We have already upheld the juvenile court's factual findings and orders based on this evidence. (C.J. v. Superior Court, supra, at p. 1-2.) Father has not offered any legal theory he could use to overturn these rulings or any evidence he might have to support any such challenges, and such challenges appear to be barred by the doctrines of issue preclusion or law of the case. (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 825 ["issue preclusion applies: (1) after final adjudication (2) of an identical issue (3) actually litigated and necessarily decided in the first suit and (4) asserted against one who was a party in the first suit or one in privity with that party"]; Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491 [" 'The decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case' "].)
It is theoretically possible that exceptions to these doctrines might apply or that an earlier ruling could be overturned based on extrinsic fraud. (In re David H. (1995) 33 Cal.App.4th 368, 381 ["A court always has inherent equitable jurisdiction to vacate a judgment or order that was obtained through extrinsic fraud"].) However, Father has not offered any evidence or argument to support such an attack on the juvenile court's prior rulings. Without some suggestion that Father had even a possibility of prevailing at the trial the juvenile court declined to provide him or could have obtained any other form of relief based on his allegations, we cannot say the denial of Father's request for a trial at the six-month review hearing resulted in a miscarriage of justice. (Cf. M.T. v. Superior Court, supra, 178 Cal.App.4th at p. 82 [no prejudice from denial of evidentiary hearing at six-month review hearing where it was "not clear from the record what issue [the parent] sought to raise much less what evidence he had to offer"].)
DISPOSITION
The juvenile court's order is affirmed.
/s/_________
BROWN, J. WE CONCUR: /s/_________
POLLAK, P. J. /s/_________
TUCHER, J.