Wednesday, December 30, 2015
Refusal Continuance Held to Be Due Process Denial
By a MetNews Staff Writer
Denying a man a continuance when, at the time of the scheduled hearing, his attorney was in trial constituted a due process violation, the Fifth District Court of Appeal has ruled.
The man, identified in the opinion as “Daniel E.,” is the father of three boys who were declared dependents of the court in 2014 due to recurrent domestic violence between the parents. Last Aug. 19, a 12-monthg review hearing was continued because his lawyer was in trial and, on Sept. 16, another request for a continuance was made for the same reason.
The lawyer who appeared to make the request said he anticipated that the father’s attorney would be available in the afternoon.
Fresno Superior Court Judge Brian M. Arax said he would proceed to rule but that the attorney of record could cross-examine the social worker in the afternoon, and that he might reconsider his ruling in light of what was elicited. The lawyer making the appearance said he could not promise the appearance that afternoon of the attorney of record, and noted that a witness who was needed had not yet been subpoenaed.
Arax terminated the father’s reunification services and set a hearing on whether to sever parental ties.
Representing himself, Daniel E. filed a petition for a writ. It was granted Monday.
An unpublished “By the Court” opinion said:
“We conclude the juvenile court abused its discretion in not continuing the contested 12-month review hearing. Counsel’s reason for the request─i.e., father’s attorney was in trial─constituted good cause to continue the hearing. Further, counsel was not prepared to represent father in a contested hearing and the court knew that. In addition, there was no doubt that father wanted a contested hearing. He attended the hearings and identified witnesses he wanted to call. By not continuing the hearing, the juvenile court deprived father the right to protect his interest in regaining custody of his children by challenging the state’s evidence. The court denied father due process.”
The case is Daniel E. v. Superior Court, F072383.
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