Vol. 16, No. 3: February 25, 2020 Written by: Stacie Hendrix (SH), Nancy Sariñana (NS), Margaret Lee (ML), Kristin Hallak (KH).
NEW DEPENDENCY CASELAW
Notice – Incarcerated Parents; Right to Counsel In re A.J. – filed 12/24/2019; Cert. for Publ. 1/23/2020; Second Dist., Div. Five Docket No. B297762 Link to case: https://www.courts.ca.gov/opinions/documents/B297762.PDF
AN INCARCERATED PARENT’S LACK OF PROPER NOTICE FOR A JURISDICTION AND DISPOSITION HEARING CONSTITUTES PREJUDICIAL ERROR THAT REQUIRES REVERSAL
A petition was filed against mother for her four minors in early 2015, while father was incarcerated in Mississippi due to prison overcrowding in California. The Agency knew his whereabouts but indicated in a report to the court that they could not contact him given his incarceration. Father received untimely notice in April 2015 of the jurisdiction and disposition hearing and promptly sent letters stating his desire to appear in court. The court made no mention of father’s letters, sustained the petition, removed the minors from both parents, and ordered reunification services for mother and no reunification services for father. In early 2016 father was sent back to prison in California, and a social worker personally served him for the upcoming WIC 366.26 hearing. Father indicated he wanted to appear and filed a section 388 petition asking for reunification services and visits, which was denied. Father was transported for the WIC 366.26 hearing in
August 2016 and counsel was specially appointed for him. Counsel filed a section 388 petition challenging the adequacy of father’s notice and asking to vacate the dispositional orders, which was denied by the court in December 2016. FA began having weekly visits with his children in November 2016 when he was released from prison and did so until his parental rights were terminated on April 30, 2019. Father appealed.
Reversed. Due process affords a parent notice that is reasonably calculated to apprise them of the dependency proceedings and an opportunity to object. A petition cannot be adjudicated if a parent is incarcerated without that parent either being present in court or knowingly signing a waiver of their right to be physically present. Penal Code section 2625, subdivision (b) requires the court to order an incarcerated parent be noticed for proceedings under section 300 and 366.26 and inform them of their options to request to appear and participate in person or by phone. Additionally, if a parent is indigent and desires counsel, the court must appoint counsel for that parent if their child is in an out of home placement, unless the parent waives their right to counsel. The deprivation of appointed counsel for a parent in dependency proceedings has a unique impact on the fairness of the proceedings. Here, father clearly requested to be present in court at his first opportunity, took steps to establish relationships with his children, and enrolled in classes while incarcerated. If father had been appointed counsel, they could have taken steps to ensure father’s presence in court, presented evidence, and argued for reunification services. Father’s lack of timely notice for the jurisdiction and disposition hearing led to prejudicial errors including the court failing to appoint counsel. Absent that error, it is reasonably probable that father would have received reunification services and potentially not lost his parental rights. (KH)
In re D.P..—filed 1/8/20, Cert. for Publ. 2/6/20; Second District., Div. Three Docket No. B295780 Link to case: https://www.courts.ca.gov/opinions/documents/B295780.PDF
INCORPORATING DEPENDENCY COURT ORDER 415 INTO A REMOVAL ORDER WITHOUT STATING FACTS THAT SUPPORT REMOVAL DOES NOT COMPLY WITH SECTION 361(e).
D.P. came to the court’s attention after the Agency received a referral that mother had driven with D.P. while under the influence of alcohol and she suffered from bipolar disorder. The family court issued a two-year restraining order protecting father and D.P. from mother and granting father sole custody. The Agency filed a petition alleging mother had mental and emotional problems and a history of marijuana and alcohol use. The court detained D.P. from mother and released him to father. At the combined jurisdiction and disposition hearing, the court sustained the petition and stated it would remove D.P. from mother’s custody “pursuant to Dependency Court Order 415, the terms of which are contained in the minute order.” The court also order monitored visits and ordered mother to complete a full drug and alcohol treatment program, a 12-step program, and a 26-week domestic violence program. Mother appealed the removal order arguing the juvenile court failed to state the facts supporting removal. Mother also challenged the order limiting her to monitored visitation and requiring that she participate in the ordered services.
Reversed in part, affirmed in part. Pursuant to section 361, the juvenile court must determine whether reasonable efforts were made to prevent or to eliminate the need for removal and shall state the facts on which the decision to remove the minor is based. Incorporating Dependency Court Order 415 into the court clerk’s minute order to support removal of children under section 361, subdivision (c)(1) is not a replacement for a statement of the facts supporting the court’s decision to remove a child from a parent’s custody. The juvenile court’s error was not harmless because if the court had considered the evidence in light of section 361’s mandated factual findings, there was a reasonable chance the court would have concluded reasonable alternatives to removal were available. The juvenile court reasonably exercised its discretion to limit mother to monitored visits and to order her to participate in services. (NS)