Brendan P., In re

• Decision Date: 21 March 1986
• Citation: 184 Cal.App.3d 910,230 Cal.Rptr. 720
• Court: California Court of Appeals Court of Appeals
• Parties: In re BRENDAN P., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY DEPARTMENT OF SOCIAL SERVICES, Petitioner and Respondent, v. BERNARD P., Objector and Appellant. D002442.

Page 720

230 Cal.Rptr. 720

184 Cal.App.3d 910

In re BRENDAN P., a Person Coming Under the Juvenile Court Law.

SAN DIEGO COUNTY DEPARTMENT OF SOCIAL SERVICES, Petitioner and Respondent, v. BERNARD P., Objector and Appellant.

D002442.

Court of Appeal, Fourth District, Division 1, California.

March 21, 1986.

As Modified on Denial of Rehearing April 18, 1986.

Review Denied June 20, 1986.

Starre & Cohn, Harold J. Cohn and Seth Kramer, Los Angeles, for Objector and appellant.

Edwin L. Miller, Jr., Dist. Atty., Peter C. Lehman and Edward J. Mantyla, Deputy Dist. Attys., for plaintiff and respondent.

Minou Emami, San Diego, for minor.

STANIFORTH, Acting Presiding Justice.

At issue in this case is the juvenile court's jurisdiction to make a dependency finding under Welfare & Institutions Code section 300, subdivision (a), when the father had not received sufficient notice of the proceeding and the superior court had immediately before made a determination as to the custody of the child.

FACTS

This case involves a protracted and bitter custody battle over Brendan by his parents Dorothy and Bernard.

In 1982, Dorothy left Bernard in Virginia and came to California with Brendan and her other two children after she had filed charges against Bernard for assault and child molesting against the other two children. None of these charges was ever substantiated or proven in court.

Custody alternated between Dorothy and Bernard by means of Dorothy's hiding Brendan in California and Bernard's kidnapping him.

Also, in 1982 Dorothy initiated child custody proceedings in the San Diego Superior Court. Over a protracted period, the San Diego court made visitation orders while the custody battle waged. Dorothy was consistently uncooperative; for 11 months following June 1982, the father and son had virtually no contact. In October 1983, there was a lengthy, nine-day litigated custody hearing before Judge Kapiloff of the superior court family law division. Judge Kapiloff, after hearing extensive testimony of mental health professionals, social workers and the parents, ordered joint custody to be in both parents with two days per week visitation to Bernard. In the process of that ruling, Judge Kapiloff specifically found there was "no evidence that Brendan was molested by [his father]."

To say the parties did not cooperate with the court order is a gross understatement. There continued to be open warfare between them--the mother determined to impede visitation, the father determined to have it--sometimes angry and out of control. Hearings were held, charges made, considered, acted on. Judge Kapiloff on April 2, 1984, made a formal order for two days a week supervised visitation between father and son. The mother went into hiding with the child. Bench warrants issued. On April 27, the mother turned herself in to the superior court juvenile division, allegedly because Judge Kapiloff was not present in the courthouse that day. Judge Napoleon Jones of the juvenile court recalled the arrest warrants and ordered the mother to appear before Judge Kapiloff on April 30. On that day the mother appeared in court, was reprimanded by the judge and ordered to return for a hearing on May 9, 1984.

On May 3, the parties came before Judge Kapiloff on the father's motion for enforcement and modification of the visitation order. The judge ordered two eight-hour visitations to happen May 5 and 6, 1984. The mother thwarted both these visitations.

The next day, May 4, a dependency petition was filed in the juvenile court regarding Brendan, alleging under Welfare and Institutions Code section 300, subdivision (a), that Brendan had no parent or guardian actually exercising and capable of exercising proper parental care and control. The petition stated "because of said minor's age [he] is in need of such care and control, in that on or about 5-3-84 the emotional atmosphere in the home, to wit, including but not limited to the mother is being forced to allow Brendan to visit his father, [Bernard], who has sexually molested and physically abused Brendan's half sibling [which was] detrimental and harmful to the health and welfare of said minor." The petition also recites: "The mother having custody is requesting the services of the Juvenile Court."

The face of the petition indicates it was mailed on May 7 to various parties, including the father. He contends he never received it. He was handed the petition on May 9. He was present with counsel at the hearing but took no part. The court observed the petition was directed "uniquely" to the mother and made a dependency finding based solely on her admissions on the allegations of the petition. After a very brief hearing and the making of the dependency finding, the mother's attorney gave a long speech, saying the mother and child were closely bonded, her care was excellent and custody should be placed with her. (This following the mother's admission to allegations of neglect and inability to care for the child.) The court elected to temporarily maintain Brendan's placement in a foster home ¹ so as to observe the child's interaction with both parents in a neutral setting. Shortly thereafter, on May 24, because the foster home became unavailable to the child, the court placed Brendan with the mother. "Liberal and ample" supervised visitation was ordered between Bernard and Brendan.

Difficulties with the visitation continued to plague the parties and the courts; these difficulties will not now be discussed since they are not strictly relevant to the issues raised by this appeal. To summarize the situation, since May 4 (date the petition was filed), the father has only seen Brendan on a supervised basis for periods no longer than an hour for a total of 18 visits over a one-year period. Additionally, the heat of the battle and serious difficulties between the parties led Judge Dennis Adams on January 19, 1985, to recuse the entire San Diego bench from further hearing this matter. The case has since been assigned to a retired judge from Los Angeles.

The appeal here is from the juvenile court assumption of jurisdiction. From the pro se brief filed by the father, we distill these serious challenges to the dependency finding: (1) there was inadequate notice of the petition to the father, violating traditional due process guarantees; (2) the circumstances under which the juvenile court succeeded the family court constitutes a transgression of basic rules governing situations of concurrent or overlapping jurisdiction. We have here in fact an unseemly spectacle of a collusive petition being deliberately used to change the forum and to render useless and futile the careful deliberations and great investment of judicial time and effort already expended in a court of co-equal jurisdiction.

I

First of all, as stated, the petition was not served on the father until the day of the hearing, a fact respondent Department of Social Services (Department) does not deny. Although there is an indication the Department mailed the petition two days before, that is hardly sufficient time for the petition to reach the father and for him and his attorney to act on it. Moreover, the father denies ever receiving it.

The Welfare and Institutions Code provides where the minor is "detained," as Brendan was here (in a foster home), notice must be given five days before the hearing ( § 337, subd. (b) ) and that on the father's request, the court must grant a continuance ( § 322; Cal.Rules of Court, rule 1332).

Furthermore, in addition to these statutory requirements, as a matter of fundamental due process, a parent and his attorney are entitled to such notice of a custody proceeding as provides reasonable opportunity to prepare and be heard in the matter because of the importance of the parental right involved. (See In re Kelvin M., 77 Cal.App.3d 396, 402, 143 Cal.Rptr. 561; In re C.P., 165 Cal.App.3d 270, 274, 211 Cal.Rptr. 498.)

The fundamental and crucial right to "conceive and to raise one's children" is protected by due process guarantees. (Stanley v. Illinois, 405 U.S. 645, 658, 92 S.Ct. 1208, 1216, 31 L.Ed.2d 551; In re Kelvin M., supra, 77 Cal.App.3d 396, 400, 143 Cal.Rptr. 561.) "[T]he interest of a parent in the companionship, care, custody, and management of his children is a compelling one, ranked among the most basic of civil rights [citations] [and] the state, before depriving a parent of this interest, must afford him adequate notice and an opportunity to be heard." (In re B.G., 11 Cal.3d 679, 688, 114 Cal.Rptr. 444, 523 P.2d 244.) (See also In re Jeremy C., 109 Cal.App.3d 384, 397, 167 Cal.Rptr. 283. ["Notice of the specific facts upon which removal of a child from parental custody is predicated is fundamental to due process]," citing In re Gault, 387 U.S. 1, 30-31, 87 S.Ct. 1428, 1445-46, 18 L.Ed.2d 527.)

Department argues any notice defects were waived because the father and his attorney were at the hearing and neither objected nor requested a continuance.

This precise argument was rejected in In re C.P., supra, 165 Cal.App.3d 270, 274, 211 Cal.Rptr. 498, where the appeal court held "even absent a request for continuance," (emphasis added) it was an abuse of discretion for the court not to grant a continuance of up to seven days under Welfare and Institutions Code section 353 "to enable [the father's] counsel to acquaint himself with the case." (Ibid.) The father was denied his day in court on the jurisdictional issues. The jurisdictional order was reversed.

Moreover, in the instant case, at the hearing (very brief, encompassing 20 pages of reported transcript), the father and his attorney were treated as nonparticipants. When appearances were first entered, none was entered for either the father or his counsel. The father's attorney (Mr. Koehler) was allowed to briefly comment after the mother's attorney (Ms. Morris) requested placement with the mother. Koehler also attempted to ensure that the record...