Filed 6/25/15 Steven F. v. Super. Ct. CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
STEVEN F.,
Petitioner,
v.
THE SUPERIOR COURT OF NAPA A144038
COUNTY,
(Napa County
Respondent; Super. Ct. No. JV17619)
NAPA COUNTY DEPARTMENT OF
SOCIAL SERVICES,
Real Party in Interest.
Petitioner Steven F. is the presumed father of infant F. P.1 In December 2013, the
Napa County Juvenile Court ordered the child detained, that is, removed from petitioner’s
custody.
The following month, the court sustained the allegations of a petition filed by Real
Party in Interest Napa County Department of Social Services (Department) in which it
was alleged that F. P. qualified as a dependent child within the meaning of subdivisions
(b) and (c) of section 300 of the Welfare and Institutions Code.2 The gist of the
1
The minor’s mother was involved at all stages of the dependency, but is not a
party to this proceeding.
2
Unless otherwise indicated, statutory references are to this code.
1
allegations was that “the minor sustained injuries as the result of the father physically
abusing him”; “[t]he father did not seek out medical care for the minor, despite the minor
having obvious and observable injuries to his face and head”; and “the father,” who was
“currently incarcerated at NCDC [Napa County Department of Corrections],” “uses
marijuana and alcohol to the point of significant impairment.” There is no reporter’s
transcript of the jurisdictional hearing, but the minutes and formal jurisdictional order
make it clear that petitioner was present, did not contest the petition, and was informed of
the dates for the dispositional hearing.
The same is largely true for the unreported dispositional hearing. Petitioner is
described as “present in custody,” and with having been provided with “copies of
reports.” The minor was declared to be a dependent child, his placement entrusted to the
Department. The Department’s report informed the court that “the father was arrested for
. . . child cruelty; . . . inflicting injury upon a child; [and] battery with serious bodily
injury” and “is currently incarcerated related to these charges,” and for these reasons the
Department recommended that that he be denied reunification services, in accordance
with section 361.5, subdivision and (b)(6) and (c).3 The court accepted this
recommendation, and the recommendation that the mother receive reunification services.
Also, again as recommended by the Department, the court concluded: “Visitation
between the child and the father would be detrimental to the best interest of the child
therefore, no visitation is ordered at this time.”
The same is also true for the unreported six-month review hearing. Again, the
minutes recited that petitioner was “present in custody,” and the formal order stated he
3
“Reunification services need not be provided to a parent . . . when the court
finds, by clear and convincing evidence, any of the following: [¶] . . . [¶] [t]he child has
been adjudicated a dependent pursuant to any subdivision of Section 300 as a result of . . .
the infliction of severe physical harm to the child, . . . and the court makes a factual
finding that it would not benefit the child to pursue reunification services with the
offending parent . . . .” (§ 361.5, subd. (b)(6).)
“The court shall not order reunification services for a parent . . . described in
paragraph . . . (6) . . . of subdivision (b) unless the court finds, by clear and convincing
evidence, that reunification is in the best interest of the child.” (§ 361.5, subd. (c).)
2
received “copies of reports.” The court concluded that the mother’s progress under her
case plan had been “minimal” and terminated reunification services to her. It again
decided that “[v]isitation between the child and the father would be detrimental to the
best interest of the child therefore, no visitation is ordered at this time.” The court set a
hearing to decide the permanency placement plan pursuant to section 366.26. The court
also advised the parents of their right to file a petition for an extraordinary writ as
allowed by California Rules of Court, rules 8.452 and 8.456.
On the date set for the permanency planning hearing, January 8, 2015, Lisa
O’Brien substituted in as new counsel for petitioner and “request[ed] a contested hearing
be set.” The matter was continued to January 15 for an “Offer of Proof Hearing.” The
minute order for January 15 states that “Ms. O’Brien states she filed the JV 180 form[4]
with attachments today as her offer of proof.” After hearing “comments of Counsel
[¶] . . . The Court finds Ms. O’Brien has filed the improper form for this hearing. Further,
Ms. O'Brien has not met the burden of proof and the Court will move forward . . . .”
“Pursuant to the request of Father, this matter is set for a contested hearing” on
February 3.
Steven F. filed his petition for an extraordinary writ in this court on January 26.5
The relief he seeks is: (1) “vacate the order for hearing under section 366.26”; (2) “order
that reunification services be provided”; (3) “order visitation between the child and the
petitioner”; and (4) “visitations with paternal grandmother continue by court order.” The
grounds for relief were stated in the petition to be: “Father has received no notices of any
4
This is a reference to Judicial Council form JV-180, the means by which a parent
can request the court change an existing order in accordance with section 388. Steven F.
requested that the court change the no visitation order and allow supervised visitation
because “all allegations of abuse involving GBI have been disproven and dropped from
the criminal matter. Father plead no contest to a straight 273(d)pc, and was released from
jail with credit for time served. Father is not facing any further jail time and will be
required to attend counseling and classes re the minor.” Petitioner did not include any of
the “attachments” in the record provided to this court. Ms. O’Brien represented Steven F.
at every stage of the criminal matter, and continues to represent him here.
5
In response to which we issued a stay of proceedings in the juvenile court.
3
reports or hearings other than an ICWA [Indian Child Welfare Act] notice and a simple
notice of hearing. All notices were sent to the address of County Counsel, and not the
father. Father was incarcerated from Dec 15, 2013 through and including Jan 7, 2015.
The address of the jail is 1125 Third Street, Napa, CA 94559. At the Detention hearing
Father completed ICWA 010-A form with his Mothers address for notices. Ten of the
twelve notices/reports for the hearings were mailed to County Counsel at 1195 Third
Street, Napa.”
But in his 20 pages of supporting points and authorities, petitioner ranges far
beyond these limited points. In what is virtually a primer on dependency law, he
canvasses the principles governing the initial decision to detain a child, and proceeds to
the standards for determining the ultimate placement decisions. Particular attention is
paid to evidentiary burdens and the procedures attending various stages of the
dependency process. However, in casting his net so wide, petitioner faces several
daunting and disabling obstacles.
First, the phrasing of his supporting arguments do not make it clear whether
petitioner is truly arguing that all the principles he invokes, and the numerous statutes and
rules of court he quotes, were violated. (Cf. Cal. Rules of Court, rules 8.204(a)(1)(B)
[“Each brief must . . . [s]tate each point under a separate heading or subheading
summarizing the point, and support each point by argument, and . . . citation of
authority”], 8.412(a) [same rules apply to juvenile appeals and writ petitions].) The point
is largely academic because, secondly, by not providing us with reporters’ transcripts of
the detention hearing, the jurisdictional hearing, the dispositional hearing, or the six-
month review hearing, petitioner cannot sustain his burden of proving by an adequate
record that the juvenile court did not comply with its official duties (Evid. Code, § 664),
and thus that error actually occurred. (In re Kathy P. (1979) 25 Cal.3d 91, 102; In re L.
B. (2003) 110 Cal.App.4th 1420, 1424.)
Third, in the absence of those transcripts, petitioner cannot establish that the points
he now advances were presented and rejected at those hearings, thus preserving those
points for review. (In re S. B. (2004) 32 Cal.4th 1287, 1293; In re Dakota S. (2000) 85
4
Cal.App.4th 494, 502.)
And fourth, as this court has repeatedly held: “The waiver rule as applied in
dependency cases flows from section 395, under which the dispositional order is an
appealable judgment, and all subsequent orders are directly appealable without limitation
except for post-1994 orders setting a .26 hearing, which are subject to writ review [Cal.
Rules of Court, rule 5.600] and related limitations (§ 366.26, subd. (l)). A consequence
of section 395 is that an unappealed disposition or postdisposition order is final and
binding and may not be attacked on an appeal from a later appealable order. [Citations.]
In other words, ‘A challenge to the most recent order entered in a dependency matter may
not challenge prior orders for which the statutory time for filing an appeal has passed.’
[Citation.] The rule serves vital policy considerations of promoting finality and
reasonable expedition, in a carefully balanced legislative scheme, and preventing late-
stage ‘sabotage of the process’ through a parent’s attacks on earlier orders. [Citation.]”
(In re Jesse W. (2001) 93 Cal.App.4th 349, 355; accord, In re Janee J. (1999) 74
Cal.App.4th 198, 206–207.)
Accordingly, for example, we will not examine petitioner’s claim that “removal of
the minor from his home based on a single episode of parental misconduct was
improper,” because this is an issue that should have been addressed on a timely appeal
from the dispositional order, where, aided with reporter’s transcripts of the detention and
jurisdictional hearings, we could undertake a proper examination of this fact-specific
claim.
We will not examine petitioner’s claim that his submitting on the case worker’s
report at the jurisdictional hearing was not made with the proper waiver of rights, not
only because it would likewise be time-barred, but also because it cannot be verified from
the limited record before us. Any deficiencies in the case worker’s reports have been lost
for review because there is no proof that the claimed defects were timely brought to the
attention of the juvenile court. (See In re Noreen G. (2010) 181 Cal.App.4th 1359, 1379;
In re Urayna L. (1999) 75 Cal.App.4th 883, 886–887.)
5
We will not examine the intimation that the juvenile court should have ordered a
bonding study because the court was under no obligation to order such a study on its own
initiative (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338–1340), and there is
nothing before us demonstrating that the court was ever asked to direct preparation of a
bonding study.
But we can and do resolve petitioner’s main point, namely, that he did not get
appropriate notice of various hearings. As mentioned, he states in his petition that “All
notices were sent to the address of County Counsel, and not the father. Father was
incarcerated from Dec 15, 2013 through and including Jan 7, 2015. The address of the
jail is 1125 Third Street, Napa, CA 94559. At the Detention hearing Father completed
ICWA 010-A form with his Mothers address for notices. Ten of the twelve
notices/reports for the hearings were mailed to County Counsel at 1195 Third Street,
Napa.” Rather than address this important point, the Department urges us to treat it as
another issue waived or forfeited for review.
“A defect in notice . . . is a most serious issue, potentially jeopardizing the
integrity of the entire judicial process. However, when a parent had the opportunity to
present that issue to the juvenile court and failed to do so, appellate courts routinely
refuse to exercise their limited discretion to consider the matter on appeal. This is
precisely because defective notice and the consequences flowing from it may easily be
corrected if promptly raised in the juvenile court. . . . For example, in In re B. G. [(1974)
11 Cal.3d 679], the Supreme Court held that a mother had received inadequate notice of a
jurisdictional hearing, but concluded she had forfeited her right to raise that issue on
appeal when she appeared at subsequent hearings with her counsel in the juvenile court
yet failed to challenge the validity of the jurisdictional order.” (In re Wilford J. (2005)
131 Cal.App.4th 742, 754.) Although this appears to be the situation here, we elect not to
treat the issue as lost to review.
“[E]rrors in notice do not automatically require reversal but are subject to the
harmless beyond a reasonable doubt standard of prejudice.” (In re J. H. (2007) 158
Cal.App.4th 174, 183; accord, In re Marcos G. (2010) 182 Cal.App.4th 369, 387; see In
6
re James F. (2008) 42 Cal.4th 901, 918 [“If the outcome of a proceeding has not been
affected, denial of a right to notice . . . may be deemed harmless and reversal is not
required”].) The Department does not dispute petitioner’s allegation that notices were
mailed to him at 1195 Third Street, but his correct address was 1125 Third Street.
Petitioner identifies 1195 Third Street as being the County Counsel’s office. The County
of Napa Web site lists a number of agencies at that address:
(as of June 22, 2015). The Web site of the
County of Napa Department of Corrections has a pair of hyperlinks (“More information”
and “Map”) which show that the two addresses are only a stone’s throw apart from each
other, and appear to be across the street from each other:
(as of June 22, 2015).
Whatever uncertainty may inhere in the manner in which petitioner presents his
arguments, we do not understand him as claiming that he was either completely ignorant
or completely absent from the dependency proceedings. For example, he states in his
petition that he was present at the detention hearing (Dec. 18, 2013), and in his reply that
he “appeared at the Disposition Hearing on March 11, 2014.” Petitioner’s counsel
confirmed at oral argument that petitioner was indeed present at these hearings. These
admissions corroborate the minutes for the dispositional hearing which show petitioner as
being “present in custody.” This in turn lends support to the veracity of the minutes for
the jurisdictional and six-month review hearings that also show petitioner as being
“present in custody” and in receipt of the appropriate reports.
These recitals support an inference that petitioner did in fact receive notice of all
significant hearings. We note that each of the proofs of service using 1195 Third Street
also have “NCDC, #201303853,” an obvious reference to petitioner’s current status as a
resident of the county jail. It thus appears more than likely that if the notices and reports
were sent to 1195 Third Street, they were redirected across the street to the Department of
7
Corrections, and were then passed on to petitioner.6 The alternative is to accept that the
juvenile court conducted a dependency in absentia. So long as petitioner has not
provided us with the relevant reporter’s transcripts, we cannot accept that conclusion. (In
re Kathy P., supra, 25 Cal.3d 91, 102; In re L. B., supra, 110 Cal.App.4th 1420, 1424.)
We therefore conclude that any notice error was not prejudicial. (In re James F., supra,
42 Cal.4th 901, 918; In re J. H., supra, 158 Cal.App.4th 174, 183.)
The petition for extraordinary relief is denied on its merits, and is final as to this
court forthwith. (Cal. Rules of Court, rules 8.452(h)(1), 8.490(b)(2)(A).) The stay
heretofore issued is dissolved.
6
This inference, together with petitioner’s acknowledgement that he was present
at two of the four hearings, also suffice to defeat petitioner’s argument that the juvenile
court violated Penal Code section 2625, subdivision (d), which provides in pertinent 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. No . . . petition to adjudge the child of a
prisoner a dependent child of the court pursuant to subdivision . . . (b) [or] (c) . . . 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.” Although petitioner cites this
provision, he does not flat out assert that he was not present, nor does he positively state
that he did not make a valid waiver of his presence in conformity with the statute. Just as
it defies belief that petitioner appeared at two of the hearings without getting notice of
some kind, it stretches credulity to conclude that the juvenile court made an order for his
presence at only two of the four hearings.
8
_________________________
Richman, J.
We concur:
_________________________
Kline, P.J.
_________________________
Miller, J.
9