Dependency Case Law

Louis J. v. Superior Court of San Diego County (Nov. 13, 2002) 103 Cal.App.4th 711 [127 Cal.Rptr.2d 26]. Court of Appeal, Fourth District, Division 1.

The juvenile court denied the father’s request to stay the proceedings, terminated reunification services, and set a permanency plan hearing. The father is a petty officer in the United States Navy. His two boys were detained after their mother engaged in a knife fight with her pregnant niece in the boys’ presence. Upon learning of the detention, the father left Japan, where he was stationed, to temporarily care for the boys. One month later he returned to Japan and the boys were placed in foster care. They were later adjudged dependents. The father waived his appearance for the jurisdiction and disposition hearings, authorizing counsel to proceed on his behalf. He did not request custody of the boys.

By the time of the 12-month review hearing, the social worker reported that the father was interested in gaining custody of his sons. Due to the special needs of his sons, the navy allowed the father reassignment by humanitarian transfer. Since the Health and Human Services Agency (HHSA) recommended that the boys be placed with the father upon his transfer, the court continued services to the 18-month date. However, when the father did not undertake the humanitarian transfer due to financial concerns, HHSA changed its recommendation to that of setting a permanency plan hearing. Evidence was also introduced from a naval legal officer who stated that the father knew that he must have physical custody of his sons in order to move forward with a transfer because the officer had fully briefed him on the issue.

The following month the father moved to stay the proceedings under the Soldiers’ and Sailors’ Civil Relief Act (50 U.S.C. Appen. § 501 et seq.; “the act”), alleging that his assignment to serve in Japan did not allow for leave or transfer until November 2002, and that but for the deployment, the HHSA would place the boys in his care. The father provided a letter from his commanding officer in support of his motion. HHSA opposed a stay, arguing that the father had not shown either that he attempted to be available for trial or that his rights would be adversely affected by his absence. The court denied the request to stay the proceedings, terminated reunification services, and set a permanency plan hearing. On appeal, the father argued that the court had abused its discretion because he had made a clear showing that his ability to conduct his defense was materially affected by his military service. He further contended that he had exercised due diligence in attempting to make himself available for trial, that the stay would have lasted only five months, and that his parental rights had been materially affected. HHSA contended that the father had not shown that he had requested leave to attend the hearing and further that he had not been diligent in pursuing a permanent transfer.

The Court of Appeal concluded that there was nothing in the record to show that the father took any definitive action to put himself in a position to take physical custody of the boys during the 20 months of the proceedings, and denied the motion for a stay. The appellate court noted that the purpose of the act is to temporarily suspend legal proceedings that may prejudice the civil rights of persons in active military service. (50 U.S.C. Appen. § 501.) The court may deny a serviceperson’s motion for a stay during his or her period of military service if the court is of the opinion that the defendant’s ability to conduct a defense is not materially affected by reason of military service. (50 U.S.C. Appen. § 521.) The appellate court noted that the father had waited one year before expressing an interest in obtaining custody, had rejected the option of a humanitarian transfer, and had neglected to pursue other transfer options explained to him by the naval legal officer. Moreover, the father had not explained how his absence from the hearing prevented him from asserting a defense. The appellate court felt that the aim of the father’s request was not to postpone the hearing until he could participate, but rather to give him time to be in a better position. The act cannot be used to give an advantage to the serviceperson over the person or agency making a legitimate claim; there must be a balance between the parties. In consideration of the boys’ right to a permanent home and the availability of other remedies before the occurrence of the permanency hearing, the appellate court concluded that the court did not abuse its discretion in denying the father’s request for a stay.

The father also contended that a brief toll in the proceedings would have been in his sons’ best interest. However, the appellate court concluded that further delay was not in their best interest given a child’s need for stability and a permanent home, neither of which had been assisted by the father’s actions thus far. Therefore, the appellate court affirmed the juvenile court’s decision to deny the petition for a stay of the 18-month review hearing.