Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. CK78079 Terry T. Truong, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Daniel G. Rooney, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Byron G. Shibata, for Plaintiff and Respondent.
CROSKEY, J.
In this dependency case (Welf. & Inst. Code, § 300 et seq.), Olivia O. the mother of the subject minor child Marina E. (Mother and Marina, respectively), appeals from the dependency court’s disposition order. Mother asserts the court denied her due process when it failed to give her adequate notice that if she did not appear at a mediation hearing the court would proceed to adjudicate the dependency petition and make a disposition order on that same day.
Unless otherwise indicated, all references herein to statutes are to the Welfare and Institutions Code.
The record shows that at a pretrial resolution conference the parties asked to be sent to mediation. The court informed the parties that mediation would occur on September 28, 2009, and if there was no resolution then trial would be held on September 30. However, when Mother failed to appear for mediation, the court held an adjudication and disposition hearing that same day rather than continuing the case to the already set September 30 trial date. Case law in this appellate district has made it clear, and we will likewise do in this opinion, that converting a settlement hearing into an adjudication hearing (with or without a disposition order), is a violation of due process in the absence of adequate notice to the parties that such conversion will occur, or appropriate waivers from the parties. We will therefore reverse the disposition and adjudication orders and direct the trial court to hold a properly noticed adjudication and disposition hearing.
BACKGROUND OF THE CASE
1. Investigation by Social Services
This case commenced with the filing of a section 300 petition by the Los Angeles County Department of Children and Family Services (the Department) on July 14, 2009. Marina, who was born in January 1997, was 12 years old at the time. The Department had detained her on July 9, 2009, and placed her in the care of her maternal grandmother (MGM). At the time of the Department’s intervention Marina was living with her 18-year-old sister, and with Mother (who was 38 years old), and Mother’s boyfriend (who was also 38 years old). The whereabouts of Marina’s father (Father) were unknown.
Department intervention came after Marina went to the MGM’s house for a weekend visit in June 2009. During the minor’s visit she told the MGM she was afraid to return home because of violence and drug abuse in the home. Marina told the MGM that Mother’s boyfriend was using marijuana and he had bags of white powder, and she stated he had threatened to stab Marina’s father with a knife. The MGM kept the minor instead of returning her to Mother’s care.
The Department’s detention report adds that a referral to the Department alleged that the boyfriend verbally abuses Marina and Mother by calling them names and belittling them, and he has naked pictures of Mother on his cell phone and allowed Marina to use the phone. When Marina saw the pictures it so disturbed her that she became sick and could not concentrate in school.
The MGM told the Department social worker that Mother had been a good mother to Marina and Marina’s sister until Mother met the boyfriend. Then Mother changed and began neglecting Marina and her sister. The MGM stated Marina became sad and was not doing well in school.
Marina told the social worker Mother’s boyfriend had lived with them for a long time. She stated he smokes “weed” and has bags of white powder and when she told Mother about the bags the boyfriend told Mother they belonged to Marina’s sister. Marina stated Mother took no action on it. Marina told the social worker she is afraid of the boyfriend because he threatens to hit her if she tells anyone what goes on in the home, and she is afraid of Mother because Mother might yell at her and hit her for talking about the home life. She stated Mother does hit her. She stated the boyfriend punches and hits Mother and pushes Mother around, and he uses bad words to Marina and Mother. Asked what Mother does when the boyfriend is bothering Marina, the minor stated Mother tells him to stop. Marina stated that if she were to visit with Mother she would want someone there with her. She stated she wanted to remain with the MGM and did not want to return home if the boyfriend is there.
When she was interviewed by the social worker Mother stated her boyfriend helps with the rent and provides for her and her children. She denied that he had ever hit her or threatened her, denied being afraid of him, denied that he uses drugs, and denied that he is abusive to her daughters in any way. She stated Father does not visit Marina and Marina misses him and is jealous of Mother’s boyfriend. She stated she and Father separated three years ago. She explained the incident with the knife by saying there have been times when they hear noises outside the home and she told the boyfriend not to go outside without protection, and so on one occasion he grabbed a knife and took it into the bedroom when he went to look out a window to see who was in the backyard. Mother stated Marina bumped into him and she must have been scared. Mother denied that the boyfriend was waiving the knife. Asked about the white powder, Mother stated her cousin had given a bag of white powder to her and she brought it home with the intention of flushing it down the toilet but forgot to do that. She denied that she and the boyfriend use the substance. She stated it was not intended that Marina see the photographs of Mother on the boyfriend’s phone. Mother was in agreement that Marina should remain with the MGM pending a Department investigation because the minor feels safe there.
Marina’s sister told the social worker Mother has been in a relationship with the boyfriend for four years. Sister stated some days in the home are fine and other days there are problems. The boyfriend “tr[ies] to get violent, ” curses at Mother and Marina, yells at Marina, and does not treat Mother well, but Mother “always backs him up” and will not say anything to make him angry.
The boyfriend stated he has a good relationship with Mother and he denied hitting her. He stated Mother’s family has always tried to separate him and Mother. He stated he has a criminal record for fraud, and a record for drugs from when he was a juvenile. He denied using drugs and stated the bag of white power probably belongs to Mother’s sister. He denied hitting Marina and stated he does not become involved in disciplining her. He denied waiving the knife at her and said he had it because he was going to the window to see if someone was outside. He stated he had intended to erase the photographs of Mother from his phone but Marina took the phone before he could do so.
A Department report states that the CLETS report for the boyfriend indicates he has a long history of arrests and convictions, including robbery, possession of marijuana for sale, maliciously defacing with paint, inflicting corporal injury on a spouse, and transporting/selling narcotics. A Department report also states the boyfriend had an arrest “in 1989 for 626.8(A)(1) PC-Sex offender/etc stay/disrupt school.”
At a team decision meeting there was concern that Mother is not able to adequately protect Marina because Mother stated she (Mother) brought drugs into the home, and because Mother does not believe there is domestic violence in her relationship with the boyfriend even though the statements from Marina and Marina’s sister demonstrate the severity of the conflict in the home. Mother was asked about a June 2006 voluntary family maintenance program she was in when she lived in Palmdale. She stated it was not the result of domestic violence but she also stated the matter was closed because she had not intended to reconcile with the boyfriend. She did not participate in family preservation at that time but was provided with employment assistance, transportation services and funding.
Marina was at the team decision meeting and during her visit with Mother she was quiet and timid and appeared distant. Mother, MGM and a maternal aunt agreed to maintain contacts with one another to set up regular visits between Mother and Marina, and Marina’s sister could be included.
2. The Detention Hearing
At the July 14, 2009 detention hearing the court found cause to detain Marina and she was detained with the MGM. Individual counseling was ordered for Mother and Marina, and parenting for teens classes for Mother. Monitored visits for Mother were also ordered and were to be as often as could be arranged. The court declined to make a paternity finding until notice to Father could be accomplished. The court set a pretrial resolution conference for August 10, 2009, and advised Mother that if she was not present on that date the court could and would proceed without her.
3. Pretrial Resolution Conference
In its jurisdiction/disposition report prepared for the pretrial resolution conference the Department social worker provided updated interviews. Marina told the social worker Father left the family home at Mother’s request when Mother started dating the boyfriend, approximately three years earlier. Marina stated Mother’s boyfriend punches and slaps Mother, tells Mother she is stupid, and becomes angry if food is not ready when he comes home from work. Mother is not honest with the police when they ask her if the boyfriend hits her and Mother believes everything the boyfriend tells her. When the boyfriend is deported Mother drives to the Tijuana border and brings him back, and he uses many names so that he is not arrested. When the boyfriend threatens Marina and she yells back at him, Mother becomes upset and hits Marina. The boyfriend has never hit Marina, but he calls her and her sister and Mother names, and uses the “B” and “F” words and other bad words in Spanish. Marina appeared to be saddened that Mother was still in a relationship with him. She stated the boyfriend had never touched her private parts and that Mother had told her if he ever did she (Mother) would hit him. Asked if anyone had ever touched her private parts, Marina hesitated, looked away, and then said “no.” Asked why she hesitated to answer, Marina stated she did not know. She still wanted to live with Mother but not if the boyfriend was there.
A report from the California Attorney General’s office shows the boyfriend has 16 aliases.
Marina’s maternal aunt (MA) told the social worker she did not understand how Mother could protect the boyfriend and choose him over Marina. She stated that when the boyfriend was deported the MA “brought her to live over here (Riverside)” but then Mother left to bring the boyfriend back into the country. The MGM also expressed dismay over Mother’s choosing the boyfriend over her daughters. She stated Mother was a good mother until she began a relationship with the boyfriend. The maternal grandparents indicated that if efforts at family reunification fail they would be willing to provide Marina with a permanent home of guardianship or adoption.
The social worker met with Mother on July 31, 2009 and provided her with referrals for programs, but had not been able to contact Mother after that. Mother had two monitored visits with Marina, one at the MGM’s home. Mother does not have a vehicle with which to visit in Riverside where the MGM lives. When the maternal grandparents suggested to Mother that she take the Metro to Riverside and visit for the weekend, Mother wanted her boyfriend to visit as well and the grandparents indicated that was not possible because Marina is afraid of the boyfriend.
Mother appeared at the August 10, 2009 pretrial resolution conference. Observing that the parties wished the case to be sent to mediation, the court set a mediation date of September 28, “with a backup trial date of September 30th.” The court then addressed Mother, stating: “Ma’am, you’re ordered to be here on that date. Check in, we’ll send you down to mediation. And if we don’t settle the case on that date, put it on the record, you’re also to come back here on September 30th as the backup trial date at 8:30. Do you understand that?” Mother indicated she did understand that directive. When Mother’s attorney indicated that Mother would be available for an interview the court ordered a supplemental report to include an interview with Mother. Mother’s attorney indicated such report could also verify that Mother’s boyfriend had moved out of the home. The court stated that all such relevant issues should be in the report.
The report for the September 30th, 2009 trial date indicates the social worker made several attempts to contact Mother but Mother had not made herself available. The social worker called the boyfriend’s cell phone on September 21, 2009, and the boyfriend indicated he and Mother were still living together because Mother has no money and nowhere to go. He indicated he would give Mother “the message.” That same day the social sent Mother a letter asking that Mother contact the social worker so they could meet before “the upcoming court hearing on September 30, 2009.” (Italics added.) Also on that same day the social worker spoke with the MGM and the latter indicated Mother had not had a visit with Marina because Mother continued to indicate she had no transportation to visit the minor. However, Mother did speak with the minor on the telephone.
Mother did not appear for mediation on September 28, 2009. Her attorney asked the court to “put over this case, the already existing adjudication date, as my client is not here.” (Italics added.) The attorney stated the case involves “multiple allegations” and the attorney “would like to have an opportunity to at least make an attempt, one final attempt to get her version of what happened.” The court denied the request to put the case over.
4. Adjudication and Disposition
Thus, although September 28, 2009 was the day designated solely for mediation, the court adjudicated the dependency petition on that day. It sustained allegations that Mother created a detrimental home environment for Marina and endangered her physical and emotional health and safety by slapping her face; allowing illegal drugs in the home within Marina’s access; allowing Mother’s boyfriend, whom Mother knows to be an abuser of illegal drugs, to reside in the home and have unlimited access to Marina; allowing the boyfriend to be in the home when he was under the influence of illegal drugs and alcohol; engaging in physical altercations with the boyfriend in which the he struck Mother with his fists and slapped her, in the presence of Marina, thus failing to protect the minor; failing to protect Marina in that she allowed the boyfriend to be in the home and he entered the minor’s bedroom and brandished a knife and caused the minor great fear; and failing to protect Marina in that the minor no longer wishes to remain in Mother’s home and care due to the domestic violence.
The court then proceeded to disposition, declaring Marina a dependent child of the court and removing her from Mother’s custody. The court ordered a case plan for Mother to include parenting classes, individual counseling to address case issues, including domestic violence and child protection, and on-demand drug testing. Mother was given monitored visitation with Marina. Thereafter Mother filed this timely appeal.
CONTENTIONS ON APPEAL
Mother contends she was given inadequate notice for the September 28, 2009 hearing and that resulted in her losing the opportunity to present her case to the court.
DISCUSSION
1. Trial Court Error Occurred
On August 10, 2009, when the dependency court set the mediation for one day and the trial for two days later, the court told Mother that if mediation did not produce an agreement the parties would come back two days later and have a trial. However, the court did not follow its own instruction. Instead, it held the adjudication/disposition hearing on the day set for mediation when Mother did not appear on that date.
In In re Wilford J. (2005) 131 Cal.App.4th 742, 747, 749 et seq., division seven of this appellate district made it clear that it is a denial of fundamental due process (adequate notice and an opportunity to be heard) to set a hearing for a pretrial resolution conference or mediation and then proceed to adjudication on the same day without having first given notice to the parties that an adjudication hearing would follow the pretrial resolution conference or mediation, on the same day, if a settlement was not reached. (Accord In re Stacy T. (1997) 52 Cal.App.4th 1415, 1418, 1424, 1426.) In Wilford J. and Stacy T., the courts ruled that adjudication orders made at improperly held adjudication hearings would not support the disposition orders. In Wilford J., the court declined to reverse the jurisdiction and disposition orders because the parent who challenged them had appeared at disposition hearings with his attorney and had never challenged the unscheduled jurisdiction hearing, thus depriving the trial court of the opportunity to correct its due process mistake. Here, of course, the court not only did not tell Mother that an adjudication would be held the same day as the mediation if she failed to appear, it told her that if no settlement was reached at mediation, the trial would be two days later. No settlement was reached. Perhaps that was because she did not appear, but perhaps it would not have been reached even if she had appeared. Such speculation does not alter the due process analysis that she was told the trial date would be two days after the mediation date, not the day of the scheduled mediation.
“A parent’s fundamental right to adequate notice and the opportunity to be heard in dependency matters involving potential deprivation of the parental interest [citation] has little, if any, value unless the parent is advised of the nature of the hearing giving rise to that opportunity, including what will be decided therein. Only with adequate advisement can one choose to appear or not, to prepare or not, and to defend or not.” (In re Stacy T., supra, 52 Cal.App.4th at p. 1424.) “Converting a noticed [pretrial resolution conference] into an unscheduled jurisdictional hearing, absent appropriate waivers from the parties or their counsel, deprives parents of vitally important procedural protections that are essential to ensure the fairness of dependency proceedings.” (In re Wilford J., supra, 131 Cal.App.4th at p. 747.) The result can be no different when the converted hearing was a mediation, as occurred in the instant case.
2. Was the Error Harmless or Reversible Per Se?
This case also presents the issue whether the trial court’s error in holding the trial on the day set for mediation was reversible per se or whether the harmless beyond a reasonable doubt standard applies. In re Stacy T. applied the latter standard and found reversal was necessary. “[W]e have to consider the possibility that had [Mother] known that in fact the [mediation that was set for hearing] would accelerate into the jurisdictional and dispositional hearings, she would have appeared. Then, we have to consider that she might have testified on her own behalf. We cannot speculate as to the substance or effect of such testimony except that it would have to bear on issues before the court....” (In re Stacy T., supra, at p. 1426.) To that we add that such non appearing parent would miss the opportunity to call witnesses.
We reject the Department’s argument that “nothing indicates Mother would have actually attended the hearing” if it had been held on the proper day, nothing indicates she would have testified, and “nothing indicates that Mother would have called the social worker or others to refute the detailed factual statements and other evidence in the [Department] reports regarding the allegations [in the petition].” We are not convinced that those things would not have happened. It bears noting that of the three hearings in this case Mother appeared at the first two. Thus, there is a history of her coming to court to address the allegations against her. Also, the allegations against Mother in the section 300 petition are substantially based on the fact that her boyfriend resides with her in an unhealthy environment for Marina, and Mother’s attorney was of the impression, at the August 10 hearing, that Mother intended for the boyfriend to move out of the home. Although the boyfriend told the social worker a week before the mediation-turned adjudication/disposition hearing that he and Mother were still living together because Mother has no money and nowhere to go, it is possible that Mother, seeing the distinct possibility that an order would be made for Marina to continue living with the maternal grandparents and eventually she (Mother) would lose custody to guardianship or adoption by them, would accept an offer from the maternal grandparents or the maternal aunt to reside with them. At the improperly held adjudication/disposition hearing, Mother’s attorney stated she did not know if Mother was currently living with her boyfriend. The attorney indicated the jurisdiction/disposition should not take place that day because “there are multiple allegations” and the attorney needed to contact Mother and “get her version of what happened.”
In In re Amy M. (1991) 232 Cal.App.3d 849, the parents of two children asserted their right to due process was violated when the trial court refused to permit them to call one of the minors as a witness at an adjudication hearing. The reviewing court observed that the parents were notified of the adjudication hearing, present at it and represented by counsel, and were able to call and cross-examine other witnesses, and therefore the denial of their due process right to call the minor was not “so fundamentally unfair as to automatically void the jurisdictional order.” (Id. at pp. 867-868.) The court cited then-recent United States Supreme Court “reaffirmance of the applicability of harmless error analysis to ‘most constitutional errors’.” The Supreme Court case to which the Amy M. court had reference is Arizona v. Fulminante (1991) 499 U.S. 279. Unlike the Amy M. case, here Mother and her attorney were not notified that the adjudication hearing would take place on September 28, Mother was not present at it and thus could not testify at it, and there is no indication her attorney was prepared to adjudicate the case by calling witnesses or presenting argument that day.
The instant case is more similar in its constitutional issue to In re Jasmine G. (2005) 127 Cal.App.4th 1109. In Jasmine G. the court also referenced Arizona v. Fulminate, noting that the Supreme Court “explained that all constitutional errors are not equal. Trial errors-those which occur during presentation of the case to the trier of fact-may be evaluated to see if the error was harmless beyond a reasonable doubt. [Citation.] Structural errors are different and demand automatic reversal. ‘These are structural defects in the constitution of the trial mechanism, which defy analysis by “harmless-error” standards.’ [Citation.] Structural defects are those ‘affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.’ ” (Jasmine G., supra, at p. 1115.) In Jasmine G., the court found the social services agency had failed to make an adequate attempt to give the appellant mother notice of a selection and implementation hearing. The court held the failure was a structural defect, saying that the failure went “well beyond trial error” in that it did not just hinder the mother’s ability to present her case effectively but rather it denied her the opportunity to be heard at all. That is what we have here. The trial court told Mother her trial would be on one date and instead held it on an earlier date, one on which Mother was not present in court.
In sum, we find that whether we apply the harmless error standard of review, or the proper standard-reversible per se analysis-we conclude that the disposition and adjudication orders must be reversed.
DISPOSITION
The disposition order is reversed and the trial court is directed to hold a properly noticed adjudication and disposition hearing.
We Concur: KLEIN, P. J., KITCHING, J.