San Joaquin Cnty. Human Servs. Agency v. S.J. (In re A.J.)

• Decision Date: 04 April 2022
• Docket Number: C093305
• Citation: 77 Cal.App.5th 7,292 Cal.Rptr.3d 192
• Parties: IN RE A.J., a Person Coming Under the Juvenile Court Law. San Joaquin County Human Services Agency, Plaintiff and Respondent, v. S.J., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

77 Cal.App.5th 7

292 Cal.Rptr.3d 192

IN RE A.J., a Person Coming Under the Juvenile Court Law.

San Joaquin County Human Services Agency, Plaintiff and Respondent,

v.S.J., Defendant and Appellant.

C093305

Court of Appeal, Third District, California.

Filed April 4, 2022

Gino de Solenni, under appointment by the Court of Appeal, for Defendant and Appellant.

J. Mark Myles, County Counsel, and Mark Doronio, Deputy County Counsel, for Plaintiff and Respondent.

HULL, J.

We have, in several unpublished decisions, explained that the practice of "splitting" jurisdiction and/or disposition hearings, as was done here, by purporting to hold them separately "as to mother" and "as to father," is unauthorized and erroneous. A sister court also explained this in a published opinion in 2005. ( In re Joshua G. (2005) 129 Cal.App.4th 189, 202-203, 28 Cal.Rptr.3d 213.)

Nonetheless, this practice has continued. It has, in this case, complicated the entire record, and as shall be seen, caused confusion, unnecessary procedural difficulties and delays. We will explain again that this procedure is unauthorized and erroneous and, in this case, resulted in the (likely unintentional) forfeiture of appellant's claim on appeal. We will, nonetheless, as a matter of fairness, address appellant's issue on appeal since the juvenile court and parties were using an unauthorized procedure that resulted in the forfeiture of appellant's claim.

S.J., father of minor A.J., appeals from an order of the juvenile court bypassing reunification services. ( Welf. and Inst. Code, § 361.5, subds. (b)(12) & (e) ; unspecified statutory section citations that follow are to the Welfare & Institutions Code.) He argues that the juvenile court erred by denying his request for a continuance and proceeding with a disposition hearing without transporting him from his place of incarceration to the hearing. Although we find error in the manner in which these proceedings were conducted, we further find it was not error to deny father a continuance of the hearing and we affirm the juvenile court's orders.

FACTS AND HISTORY OF THE PROCEEDINGS

On July 31, 2019, A.J., then 11 years old, was taken into protective custody after father and stepmother were arrested for armed robbery. A.J. had been in father's sole custody since he was a baby and did not have a relationship with his mother. Before father's arrest, A.J. and father had been homeless and living in father's vehicle.

On August 2, 2019, a section 300 petition was filed on A.J.’s behalf, alleging that the minor came within the provision of section 300, subdivision (b), failure to protect; section 300, subdivision (g), no provision for support; and section 300, subdivision (j), abuse of sibling. At the August 5, 2019 detention hearing, the juvenile court found the San Joaquin County, Human Services Agency (Agency) had made a prima facie showing that A.J. came within the provisions of section 300, was at substantial risk of danger, was removed from parental custody and was placed with his paternal grandfather.

The minor's mother made her first appearance and was appointed counsel at the September 18, 2019 jurisdiction hearing. Although father had obtained a signed transportation order for the hearing, he was not present at the hearing because he had been moved to a different institution. His attorney requested and received a continuance so father could be present.

Father was not present at the October 9, 2019, continued hearing and the hearing was again continued to November 20, 2019. Although a transportation order for father had been obtained, he was not present at the November 20, 2019 jurisdiction hearing either. The matter was continued to December 10, 2019, and father's counsel was directed to prepare transportation orders. Father, however, was not present at the December 10, 2019 hearing. The juvenile court appointed a guardian ad litem for the mother and continued the hearing for jurisdiction "Re: FATHER" to January 8, 2020.

The juvenile court signed a transportation order for the January 8, 2020 hearing but father was not present at the hearing because he had a conflicting court proceeding in another county. The juvenile court then proceeded with a jurisdiction hearing, purportedly just with regard to mother. The court struck and modified certain factual allegations as submitted by mother and the Agency, sustained the petition as amended, and found that A.J. came within the juvenile court's jurisdiction pursuant to section 300, subdivisions (b) and (g).

The sustained petition, as amended, included factual allegations relating to both father and mother, separately. The court then set the matter for February 19, 2020, for what the juvenile court described as a disposition hearing with respect to mother and a combined jurisdiction/disposition hearing with respect to father. The court signed a transportation order to secure father's attendance.

The Agency's disposition report recommended that A.J. continue in his placement in foster care, and recommended bypassing reunification services for father pursuant to section 361.5, subdivision (e) (incarcerated parent), but offering services to mother, who had been visiting A.J. twice a week, attending counseling, and had completed her parenting classes. Father was not taken to the February 19, 2020 hearing. The matter was set for a contested hearing, described as a contested jurisdiction hearing for father and a contested disposition hearing for both parents.

The contested hearing was continued due to the COVID-19 pandemic. On June 1, 2020, the juvenile court held an uncontested hearing at which it adjudged the minor a dependent child of the court, ordered the minor removed from parental custody, and provided reunification services for mother. This disposition hearing purportedly was held solely for mother, as father did not appear at the hearing. The juvenile court continued the jurisdiction/disposition portion of the proceedings as to father, excused mother from that hearing, and issued another transportation order.

Father was not present at the continued July 27, 2020 hearing. The juvenile court declared father to be A.J.’s presumed father and set a jurisdiction/disposition hearing for father for a later date, for which it provided yet another transportation order. It also set a dependent review date, purportedly for mother, only.

On September 4, 2020, the Agency filed a jurisdiction report recommending the juvenile court sustain the jurisdictional allegations with respect to father. The matter was heard on September 15, 2020. Father was, again, not transported, so the juvenile court continued the hearing to November 3, 2020.

In the meantime, the juvenile court held a review hearing for the mother on September 24, 2020, and extended her reunification services.

Although the juvenile court had signed transportation orders, father, who had recently been moved to prison in Kern County, was not transported to the November 3, 2020 hearing "because of COVID." Counsel for father and the Agency told the court that father had not been transported to the last five hearings because of the COVID-19 pandemic and had not been transported to the earlier hearings due to "an issue" with the county jail. Father's counsel said that father wanted to dispute jurisdiction and disposition and argued he was entitled to do so in person.

The Agency opposed father's counsel's request for yet another continuance, emphasizing that section 352 permitted the court to proceed in an incarcerated parent's absence and arguing, inter alia, that they were "way beyond the 60-day time limits for disposition," there had been 10 prior continuances, and mother was in reunification. Father had recently been moved from an out-of-county jail to state prison after reportedly accepting a plea agreement of two years, with a release date of "at least 2022." The Agency argued there were several grounds to bypass father for reunification and requested the court proceed with the hearing. Minor's counsel concurred.

The juvenile court declined to again continue the matter and stated it found the allegations in the petition true by a preponderance of the evidence. Father's counsel presented evidence, with respect to disposition, that father had sought out and participated in substance abuse, relapse prevention, female roles, and reentry services while in custody. Father had maintained contact with the social worker throughout the proceedings despite his in-custody status. Counsel argued father had raised the minor for the majority of the minor's life, had provided for the minor's mental health by providing mental health medication, appeared to love and care for the minor, and the minor had cried and called out for father when he was being taken to the receiving center. Father's counsel requested the juvenile court provide father with reunification services.

Minor's counsel opposed reunification services, arguing the minor had already been out of father's custody for over a year and father was not going to be released from custody for "at least another year." Minor's counsel also noted the seriousness of father's behavior that gave rise to jurisdiction, having committed an armed robbery with the minor in the car waiting for him. The Agency concurred, noting the minor had only recently shown any interest in having contact with father and that the armed robbery conviction also permitted bypass pursuant to section 361.5, subdivision (b)(12) (violent felony conviction).

Both the Agency and minor's counsel also noted that the minor was in reunification with mother, which was scheduled for what they referred to as a 12-month review hearing in two months. The juvenile court bypassed father for reunification services pursuant to section 361.5, subdivisions (b)(12) and (e).

Father appeals from the juvenile court's November 3, 2020 orders.

DISCUSSION

IImproper "Splitting" of Hearings

A practice or procedure whereby a juvenile court "splits"...