Wednesday, October 31, 2018
Court’s Omission of Hearing Time in Notice Violated Man’s Due Process Rights—C.A.
By a MetNews Staff Writer
A Juvenile Court judge’s command to a father to appear for a dispositional hearing was ineffective notice because the directive omitted the time of the hearing, rendering the resultant judgment a violation of the man’s right to due process, the Third District Court of Appeal held yesterday.
Acting Presiding Justice Harry E. Hull Jr. wrote the unpublished opinion reversing the judgment by Sacramento Superior Court Judge Laurie M. Earl.
The father was accused of having substance abuse problems and failing to object to the child’s mother using methamphetamine while nursing. The case against the couple, initially filed in Yuba Superior Court, was transferred back and forth between that court and Sacramento Superior Court three times before ending up in the latter for a dispositional hearing in November 2017.
Both parents were present for that hearing, but before it could start, the mother was removed from the courtroom for what Hull characterized as “erratic behavior.”
The court continued the hearing to December 6, 2017. The judge ordered the father to appear on that date, but did not tell him the time of the hearing.
The minute order reflected that the continued hearing was set for 8:30 a.m.; however, the minute order was only sent to the parties the day before the hearing.
At the continued hearing, the father’s attorney said:
“Your Honor, I would request a continuance. My client, the father, is not present. However, I don’t know why he’s not here before the Court.”
“I am not prepared to grant a continuance in this matter. [Father] was present on November 2nd when the original dispositional date of November 22nd was set. He did not appear that date, but he has had—continues to have notice of the date, time, and location of the hearings, so I’m going to deny that request, as I don’t believe there’s good cause to do so.”
Earl ruled the child a dependent of the court and ordered family reunification services.
“We reject the Department’s argument that father ‘was presumably aware of the time of the hearing’ because he did not ask the juvenile court to clarify the time at the November 22, 2017 hearing. We also reject the Department’s novel and ill-conceived argument that father ‘was on constructive notice that the continued hearing would take place at 8:30 a.m.’ since the three previous hearings in the Sacramento County Juvenile Court had been set for that time. First, assuming a party will intuit the time of an upcoming hearing does not comport with notions of due process. Second, a review of the record reveals that, while the three previous Sacramento County hearings were held at 8:30 a.m., numerous other hearings were intermixed throughout this case (albeit in Yuba County), with hearing times of 9:00 a.m., 1:30 p.m. and 2:00 p.m.”
“That the judgment is supportable by the evidence presented, but without any additional evidence father might have presented had he been present, does not render the error in notice harmless. And, as father points out, the juvenile court considered his absence in making its findings and orders which tends in reason to rebut the Department’s argument that father’s presence would not have made any difference in the outcome of the proceeding.”
The case is In re G.G., C086411.
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