Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Super. Ct. No. CK37046, David S. Milton, Judge.
John Dodd and Ellen Forman Obstler, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, Frank DaVanzo, Principal Deputy County Counsel, and Kim Nemoy, Senior Deputy County Counsel, for Plaintiff and Respondent.
ZELON, J.
Marcus M. appealed from the juvenile court’s order terminating parental rights to his son, James F., alleging error in appointing a guardian ad litem without inquiring about his competence and in failing to obtain a knowing waiver of his right to be present at the termination of parental rights hearing. This court previously concluded that the juvenile court’s error in appointing a guardian ad litem without inquiring into Marcus M.’s competence constituted a structural error requiring the reversal of the orders terminating his parental rights. On review, the California Supreme Court concluded that the error in the guardian ad litem appointment process was subject to harmless error analysis and was in fact harmless. (In re James F. (2008) 42 Cal.4th 901.) On remand, we consider the question of whether the failure to obtain a knowing waiver of Marcus M.’s right to be present at the hearing at which parental rights were terminated requires reversal. We conclude that this, too, was harmless error, and affirm the judgment of the juvenile court.
FACTUAL AND PROCEDURAL BACKGROUND
The facts of the case have been set forth exhaustively in the prior opinion of this court and in the opinion of the Supreme Court. We therefore omit a full recitation of the facts and instead set forth only those facts that are relevant to the narrow issue remaining on remand.
The permanency planning hearing (Welf. & Inst. Code, § 366.26) for James F. was first set for November 8, 2004. Because the home study of the maternal grandparents had not been completed and filed, the hearing was continued repeatedly. The hearing was then scheduled for August 22, 2005, but Marcus M. did not appear on that date. According to a note in the record, Marcus M. could not be transported from the prison because he was in “four-point restraints” (meaning, apparently, restraints of both hands and feet). The court again continued the permanency planning hearing. On September 12, 2005, Marcus again did not appear, the court again received information that he was “in four-point restraints,” and the court again rescheduled the hearing.
Unless otherwise indicated, all further statutory references are to the Welfare and Institutions Code.
On the next hearing date, October 20, 2005, Marcus M. again did not appear. This time, the juvenile court received information that Marcus had been transferred from prison to a medical facility and that his mental condition was likely the reason for both the transfer and the failure to transport him to court. The court again rescheduled the hearing.
The juvenile court held the permanency planning hearing on December 7, 2005. Marcus M. was not present. At the start of the hearing, Marcus M.’s attorney said that she wanted to call Marcus M.’s parents to testify that “[t]hey had spoken to the father [Marcus M.], and they could explain why he didn’t want to come to court.” The court said, “All right. He did indicate he did not want to come for whatever reason,” and Marcus M.’s attorney said, “Yes.” The court continued, “The court’s been informed his perception is a safety reason.” Again Marcus M.’s counsel agreed. The court asked the guardian ad litem whether she had spoken with Marcus M. recently, and she said that she had not, and that she did not “think his position has changed since the last time.” Marcus M.’s counsel said, “No. He had wanted to be present. That’s why we had asked him to be brought in. But he doesn’t wish to appear, it appears. And I’m ready to go forward today, but I would like to be able to call the paternal grandfather.” The court asked why, and counsel responded, “To explain why he wished to come to court today. He had a conversation with him.” The court commented that the “only potential relevance” of the paternal grandfather’s testimony was “the father’s reason for not being here. From what I can see, he’s made an election not to be here for whatever reason. It’s his choice. If he doesn’t trust the Sheriff of Los Angeles County to protect him, then he’s made that choice. That’s a decision he made. It can’t stop the case from going forward.”
The court then proceeded with the termination of parental rights hearing. After hearing testimony from James F.’s mother, Cynthia F., and from his paternal grandfather, the court found by clear and convincing evidence that James F. was adoptable and that it would be detrimental for him to be returned to his parents’ custody. The court selected adoption as the permanent plan for James F. and terminated the parental rights of Marcus M. and Cynthia F.
DISCUSSION
The sole remaining issue in this case is whether the order terminating Marcus M.’s parental rights should be reversed because the termination hearing took place in Marcus M.’s absence and without a knowing waiver of the right to appear at the hearing.
Penal Code section 2625, subdivision (b) requires that an incarcerated parent be given notice of any hearing to terminate parental rights. Subdivision (d) provides that if the parent has indicated a desire to be present during the court proceedings, the court must issue an order for the temporary removal of the parent from the incarceration facility, and that no section 366.26 hearing may take place without the parent and his or her attorney unless the court has received “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 interest not to appear at the hearing.” (Pen. Code, § 2625, subd. (d); In re Jesusa V. (2004) 32 Cal.4th 588, 622 [statutory language referring to “prisoner or the prisoner’s attorney” interpreted to require presence of both parent and counsel at the hearing unless waiver is executed].)
The parties disagree whether the juvenile court acted in accordance with this provision at the termination of parental rights hearing held on December 7, 2005. No written waiver appears in the record that would be sufficient to satisfy Penal Code section 2625’s waiver requirement. (Pen. Code, § 2625, subd. (d).) In the court records is a copy of an order for a prisoner’s appearance at the December 7 hearing, with the notation at the top “Refused & waived 11-30-05.” A second copy bears a note reading, “Wavied [sic] 12-6-05 Willcox.” No evidence appears to have been received to establish what occurred, who the authors of these notes were, or to provide any context for the notations; and there is no waiver signed by Marcus M. himself or affidavit from any officer of the institution where Marcus M. was placed.
The question, however, is whether any such waiver was actually necessary under Penal Code section 2625. Marcus M. contends that it was, because he had previously indicated a desire to be present during the termination of parental rights hearing. He points to statements on the record at an August 2005 court date for the termination hearing, in which both Marcus M.’s mother and his guardian ad litem reported to the court that Marcus wanted to be present at the hearing. Moreover, at the next hearing date in October 2005 Marcus M.’s attorney reported that Marcus M. was upset that he had not been brought to court, that he was “adamant” about attending, and that she believed that she would probably report her to the State Bar if she did not call him as a witness. Counsel said, “He wants to be present.” Marcus M. claims that the juvenile court erred in proceeding with the December hearing at which his parental rights were terminated despite his earlier assertions that he wanted to be present and in the absence of a knowing waiver signed by Marcus M. or a statement from his designated representative that he had expressly indicated his intent not to appear.
County Counsel, however, argues that the representations from counsel on December 7 that Marcus M. did not want to be present were sufficient to eliminate the requirement of a waiver from Marcus M. or an affidavit from the warden. The Attorney General asserts that once “the court had received a statement from father’s counsel that he did not wish to appear at the hearing, . . . the court was no longer compelled to require his presence.”
We see no provision for an informal discontinuation of the presence requirement in Penal Code section 2625, subdivision (d). Instead, that subdivision establishes that the prisoner’s desire is the predicate for issuing a temporary removal order: “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.” (Pen. Code, § 2625, subd. (d).) There are several statements in the record that Marcus M. wanted to be present at the termination hearing, and the juvenile court properly issued the temporary removal order.
Once such an order has been issued, one of two things must happen for the court to proceed with the hearing: the prisoner must be brought to court or the proper waiver must be executed. Penal Code section 2625, subdivision (d) continues, “No proceeding may be held under . . . Section 366.26 of the Welfare and Institutions Code . . . 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.” The statute does not provide for an informal revocation of the asserted desire to be present such as that made orally by Marcus M.’s counsel here, nor can counsel’s assertion that “it appears” that Marcus M. elected not to appear be considered the equivalent of that waiver. As neither one of the two conditions for proceeding with the hearing was satisfied—Marcus M. did not come to court and there was no adequate written waiver or affidavit—Penal Code section 2625, subdivision (d) was not satisfied.
County Counsel contends that if there was noncompliance with Penal Code section 2625, subdivision (d), it was invited error, because Marcus M.’s counsel indicated a willingness to proceed despite the absence of a written waiver. We need not decide the issue, however, because any error here was harmless.
The court’s decision to proceed with the hearing was harmless error. (In re Jesusa V., supra, 32 Cal.4th 588, 625 [applying harmless error standard of People v. Watson (1956) 46 Cal.2d 818, 836 to violation of Penal Code section 2625].) At the section 366.26 hearing, the sole basis urged for refraining from termination of Marcus M.’s parental rights was that Marcus M. had maintained regular visitation with James F. and that James F. would benefit from continuing the relationship. (Fmr. § 366.26, subd. (c)(1)(A), now § 366.26, subd. (c)(1)(B)(i).) Regardless of Marcus M.’s presence, he would not have been able to establish that he had maintained regular visitation and that continuing the relationship would have benefitted James F. Marcus M.’s contact with James F. was largely restricted to the beginning of James F.’s life, months had passed without any personal visits because Marcus M. was placed in a facility where visitation could not occur, and Marcus M. had only telephonic contact with his two-year-old son. As the California Supreme Court observed in the context of finding harmless the error in appointing a guardian ad litem for Marcus M., “Due to his mental condition and incarceration, Marcus was never ready to assume custody of his young son, James F. His contacts with James during the first two months of James’s life and their biweekly visits between July and November of 2004 during Marcus’s confinement at Patton State Hospital, when James was only one year old, ‘could not have created the type of bond and parent-child relationship necessary to force this child to forgo adoption.’” (In re James F., supra, 42 Cal.4th at p. 918.) We cannot conceive of any additional testimony Marcus M. could have presented or evidence he could have submitted which would have altered the outcome here.
Notably, Marcus M. does not argue that had he been present the outcome would have been different—he only asserts, “The Court can only speculate about how the proceeding would have been different had Father attended the hearing.” Marcus M. complains that “[b]ecause Father was not transported to the hearing, only the grandfather testified about the relationship between Father and son, and the grandfather’s testimony was discounted.” The grandfather’s testimony was discounted by the juvenile court because the paternal grandfather testified that James F. lived in the home of his paternal grandparents for nearly one year, when in fact he was there for at most three months. While it is true that the only testimony in support of Marcus’s argument against terminating parental rights was viewed with suspicion by the juvenile court because of this vast discrepancy, even if Marcus M. had testified to his early contact with James F. as an infant and to subsequent telephonic contact with James F. as a toddler, we cannot believe that the ultimate outcome would have differed in any respect. Marcus M. could not have established the applicability of the regular visitation exception to the termination of parental rights.
DISPOSITION
The order is affirmed.
We concur: PERLUSS, P. J., WOODS, J.