Filed 10/21/22 In re I.B. CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
In re I.B., a Person Coming Under
the Juvenile Court Law.
ALAMEDA COUNTY SOCIAL
SERVICES AGENCY,
Plaintiff and Respondent, A164574
v.
(Alameda County
MICHAEL B.,
Super. Ct. No. JD-033548-01)
Defendant and Appellant.
Appellant Michael B. (Father) appeals from an order adjudging his
daughter, I.B., a dependent minor and placing her in the care of I.B.’s
mother, D.A. (Mother, who is not a party to this appeal). His sole argument
on appeal is that the juvenile court erred when it declined his attorney’s
request to continue the jurisdiction/disposition hearing because Father was
incarcerated. Although Father had a right to be present for the hearing, any
error in declining to continue the hearing was harmless. We therefore affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
Three-year-old I.B. came to the attention of respondent Alameda
County Social Services Agency (the Agency) in spring 2021 after reports that
Father tried to pistol whip Mother. The parents have never been married,
their relationship ended when I.B. was around one, and Mother apparently
was raising her daughter mostly on her own. The minor’s teeth were visibly
rotting and she experienced pain when eating.
The Agency filed a juvenile dependency petition in May 2021 under
Welfare and Institutions Code section 300,1 subdivision (b)(1) (failure to
protect) based on domestic violence between the parents in April and May, as
well as on the minor’s severe tooth decay. The petition also alleged that
Father’s willingness or ability to provide the minor with adequate support
was unknown. (§ 300, subd. (g) [no provision for support].) The juvenile
court detained the minor from Father, and she remained in Mother’s custody.
The Agency recommended in a June 2021 jurisdiction/disposition report
that the juvenile court sustain the dependency petition, that the minor
remain with Mother, and that Mother and the minor receive family-
maintenance services while Father receive informal child-welfare services.
The report stated that Father denied harming Mother.
An amended dependency petition that dropped allegations regarding
the minor’s tooth decay was filed in early September 2021. The parties
appeared for a jurisdiction/disposition hearing a few days later, on
September 14. Father’s counsel stated she had not yet seen the amended
1All statutory references are to the Welfare and Institutions Code
unless otherwise specified.
petition, and counsel sought a brief continuance so that she could discuss the
petition with Father. The court set the matter for a contest in October.
As of mid-October, the Agency still recommended that the minor
remain in Mother’s custody, with family-maintenance services for them and
informal child-welfare services for Father. The social worker reported that
Father often did not follow through with communication from the Agency and
that it was difficult to arrange visitation for him.
A contested jurisdiction hearing began on October 20, 2021. Father
appeared remotely. The social worker testified about what she had learned
regarding three instances of domestic abuse by Father: the incident in which
Father tried to pistol whip Mother, an incident in April 2021 when Father
went to Mother’s home and yelled for her to come out, and an incident in May
when Father threatened to shoot or burn Mother. According to the social
worker, Father denied that these incidents took place. The social worker
found Mother to be credible based on her (the social worker’s) work with
domestic-violence resources and based on Mother’s reports that her daughter
experienced behaviors believed to be related to having experienced domestic
violence. Father, by contrast, had not been an active participant in the case.
Father’s counsel cross-examined the worker, but the cross-examination was
not completed by the end of the day, and the hearing was continued until
December 1.
When the parties met again on December 1, Mother had a new
attorney, and she requested a continuance. The juvenile court granted the
request, and the matter was continued until January 14, 2022. But on
January 13, the juvenile court informed the parties of the need to travel
unexpectedly, and the matter was again continued, this time until
February 2.
At the start of the February 2 hearing, Father’s counsel reported that
Father was in jail facing felony charges. Counsel requested a continuance.
The court recognized that Father had a right to attend the hearing but
stated, “I don’t believe that a continuance is in the best interest of the child at
this point given the age of the case.” Father’s counsel objected that it was
“essential” that Father be present to assist with his representation. Citing
D.E. v. Superior Court (2003) 111 Cal.App.4th 502, the court stated it “must
hold a disposition hearing within the time limits of [section] 352 even when
an incarcerated parent’s statutory right to be present at the hearing is
violated through no fault of the parent, which I think is the situation that we
have here.” The court observed that the case was “probably the oldest” on its
docket and stated “we did start the trial and we need to finish it.” Father’s
counsel then asked for a continuance until the following day to secure
Father’s presence, but the court said there was “no point in continuing the
matter to a Thursday” (the next day) since the jail’s video room was available
for parents only on Tuesdays. The court denied the request for a continuance
because it found there was not good cause for one.
Father’s counsel continued her cross-examination of the social worker.
Following testimony and argument, the juvenile court described the case as
“very much a ‘he said’ and ‘she said’ scenario” and acknowledged that it
would have been beneficial to have the parents testify in order to evaluate
their credibility. The court found there was “just enough evidence” to sustain
the allegations in the petition. As for disposition, the court had concerns
about evidence of substance use by Mother but nonetheless followed the
Agency’s recommendation and placed the minor in her care.
After Father appealed, a supplemental dependency petition was filed
(§ 387) alleging that Mother had not engaged in relapse-prevention treatment
and that she had tested positive three times for several substances. I.B. was
ordered detained from Mother and apparently placed with a relative. At a
hearing in July 2022, the juvenile court sustained allegations in the
supplemental petition.
II.
DISCUSSION
Father argues that the juvenile court prejudicially erred by depriving
him of his right to attend the continued portion of the jurisdiction/disposition
hearing. We conclude that under the circumstances any error was harmless.
As a person in custody in a county jail, Father had a right to be present
at the jurisdiction/disposition hearing. (Pen. Code, § 2625, subds. (a) & (d).)
He argues, and the Agency concedes, that the juvenile court was mistaken to
the extent it thought it was strictly bound by section 352, subdivision (b),
which provides that the dispositional hearing must be held within six months
of detention if the minor has been removed from parental custody. Because
I.B. remained in Mother’s care, these time limits did not apply. (Cf. D.E. v.
Superior Court, supra, 111 Cal.App.4th at p. 513 [where child is in protective
custody, strict time limits of § 352 may prevail over parental right to attend
hearing under Pen. Code, § 2625].)
But as Father recognizes, we apply a harmless-error standard of review
to any violation of his statutory right to be present at the dispositional
hearing. (D.E. v. Superior Court, supra, 111 Cal.App.4th at p. 513.) We
reverse only if it is reasonably probable that a result more favorable to
Father would have been reached had he been present for the hearing.
(People v. Watson (1956) 46 Cal.2d 818, 836; In re M.M. (2015)
236 Cal.App.4th 955, 963; D.E. at pp. 513–514; but see In re Christopher L.
(2020) 56 Cal.App.5th 1172, 1187–1188 [concluding that Watson review was
appropriate but also analyzing error under higher standard of Chapman v.
California (1967) 386 U.S. 18]; In re Christopher L. (2022) 12 Cal.5th 1063,
1083–1084 [affirming Christopher L. but not reaching question of prejudice
analysis].) Father cannot show prejudice under this standard.
Father notes that he “denied there had been any domestic violence and
expressed significant concerns about Mother, including her ability to safely
parent” I.B. He claims that “[h]ad the juvenile court heard testimony from
Father and observed his demeanor and believed his version of the events,
there can be no doubt that the outcome of the proceedings would have been
different.” But the fact is that Father made clear since the start of
proceedings that he denied harming Mother, and the juvenile court
acknowledged his position. Even if Father had testified, the juvenile court
still had before it evidence that I.B. displayed behaviors consistent with
having experienced domestic violence. And although Mother did not testify,
the social worker was able to testify as to Mother’s credibility because she
had engaged in her case plan. Father, by contrast, had not engaged. We
recognize “the vital role that live testimony plays in a court’s assessment of
credibility and its evaluation of conflicting evidence.” (In re M.M., supra,
236 Cal.App.4th at p. 964.) But under the circumstances presented here, we
cannot conclude that it is reasonably probable that a result more favorable to
Father would have been reached had he been present for the hearing
III.
DISPOSITION
The Agency’s unopposed September 8, 2022 request for judicial notice is
granted.
Father’s unopposed September 26, 2022 request for judicial notice is
granted.
The trial court’s February 2, 2022 order is affirmed.
_________________________
Humes, P.J.
WE CONCUR:
_________________________
Margulies, J.
_________________________
Banke, J.
In re I.B. A164574