1

Filed 12/22/21; Certified for Publication 1/12/22 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

----

In re A.V., a Person Coming Under the Juvenile 

Court Law.

C092928

SAN JOAQUIN COUNTY HUMAN SERVICES 

AGENCY,

Plaintiff and Respondent,

v.

S.V.,

Defendant and Appellant.

(Super. Ct. No. 

STKJDDP20200000110)

The juvenile court exercised dependency jurisdiction over minor A.V. under 

Welfare and Institutions Code section 3001 and removed her from the custody of her 

mother, S.V. (mother). Mother challenges the sufficiency of the evidence supporting the 

1

 Further undesignated statutory references are to the Welfare and Institutions Code.
2

court’s exercise of jurisdiction as well as the resulting disposition order. She argues in 

the alternative that the court denied her due process right to be heard at the jurisdictional 

hearing when it made the challenged findings in her absence. We agree with mother’s 

latter contention and shall reverse without reaching her sufficiency of the evidence 

challenge.

BACKGROUND

A. Family History

Mother has several children, including N.V., J.V., and A.V. The whereabouts of 

A.V.’s father, H.B. (father), are unknown. The family has a long history with Child 

Protective Services (CPS). As of April 2020, the family had been referred to CPS over 

30 times. During previous contacts, the family was offered various mental health and 

safety net services, including WRAP services. 

A.V. has severe mental health issues, which cause her to be aggressive to mother 

and her siblings. She often reports being hit or abused by mother. Subsequent 

investigations, however, have shown that A.V. is actually the aggressor who physically 

assaults mother. 

On March 6, 2020,2respondent San Joaquin County Human Services Agency 

(Agency) investigated a referral from a reporting party that assessed A.V. at St. Joseph’s 

hospital. During the assessment, A.V. claimed her mother hit her with a spatula all over 

her body, spanked her, threw toys at her, and had previously hit her with a hanger. No 

marks or bruises were visible on A.V.’s body. It was also reported that A.V. had extreme 

violent behavior, had been diagnosed with adjusting disorder, and had been physically 

aggressive with mother in the past. 

2 Further date references are to 2020, unless otherwise indicated.
3

B. Dependency Petition

In April, the Agency filed a section 300 petition on behalf of A.V. alleging that 

A.V. had suffered, or there was a substantial risk that she would suffer, serious physical 

harm or illness as a result of the failure or inability of her parent to supervise or protect 

her adequately (§ 300, subd. (b)(1)), and that A.V. had been left without any provision for 

support as the whereabouts of her father were unknown and reasonable efforts to locate 

him had been unsuccessful (§ 300, subd. (g)). 

According to the petition, at a Child and Family Team meeting on March 26, out 

of home care was recommended for A.V. due to mother no longer being able to provide 

the necessary parenting and care for A.V.’s significant behavioral and mental health 

needs. A.V. had had numerous mental health interventions, including being admitted to 

San Joaquin County’s Behavioral Health Center twice in an eight-day period with law 

enforcement escort due to her aggressive behaviors and a two-week stay at St. Helena 

Psychiatric Hospital after making claims of increased aggression towards her mother. 

A.V. had been diagnosed with mood regulation disorder, posttraumatic stress disorder 

and oppositional defiant disorder, and had been prescribed multiple psychotropic 

medications, including Latuda and Clonidine. Despite participating in Therapeutic 

Behavioral Services through Aspiranet and psychiatric care through Children’s Youth 

Services, she continued to require multiple mental health crisis contacts each month, with 

law enforcement escort, and continued to accuse mother of physically abusing her even 

though A.V.’s siblings reported that A.V. was actually the one who hit mother with 

objects such as spatulas and her hands. A.V. “act[ed] up,” got “wild,” and sometimes 

slept up to 20 hours a day, with frequent verbal and physical outbursts. 

The petition further alleged that mother struggled to provide adequate and 

necessary care for A.V.’s significant mental health needs even though A.V. received 

extensive in-home services through Aspiranet. The Agency alleged that, according to 
4

several of A.V.’s mental health providers, mother did not always follow through with 

protocol or directives, she had trouble staying on task, and attempted to override the plans 

for A.V. recommended by Aspiranet providers. Mental health staff expressed concerns 

that mother contributed to the escalation of A.V.’s problematic behaviors and had trouble 

providing A.V. with space when A.V. began to escalate. Mother stated that she could not 

“ ‘parent on the minor’s level,’ ” but stated she was willing to accept help from service 

providers even if it makes her “ ‘look bad’ ”; at the time, A.V. was temporarily residing 

in the maternal grandmother’s house. The petition alleged mother admitted to 

experiencing anxiety herself, and that the whereabouts of A.V.’s father remained 

unknown. 

At a hearing on April 2, the juvenile court found a prima facie case that A.V. came 

within section 300 and ordered her detained outside mother’s home. The court further 

authorized a group home placement for A.V. The court set a jurisdictional hearing in 

May. Due to the COVID-19 pandemic, on the court’s own motion, the jurisdiction 

hearing was later continued to June 11. 

At the June 11 hearing, the Agency requested a continuance to file an amended 

petition. The juvenile court continued the jurisdiction hearing to July 2. 

C. First Amended Petition

On June 30, the Agency filed a first amended petition, adding an allegation under 

section 300, subdivision (c) that A.V. was suffering, or was at substantial risk of 

suffering, serious emotional damage evidence by severe anxiety, depression, withdrawal, 

or untoward aggressive behavior toward self or others. The added allegation contained 

nearly identical language as previously alleged under subdivision (b)(1).
5

D. Jurisdiction

At the July 2 jurisdiction hearing, where mother was present, the court continued 

the hearing to July 16, after mother’s counsel requested that the court appoint mother a 

guardian ad litem. The court sustained the petition as to father, who did not appear. 

On the afternoon of July 15, the day before the continued jurisdiction hearing, 

mother met with the assigned social worker to discuss the proposed case plan. During the 

meeting, mother informed the social worker that her infant son was sick with a fever, and 

she was concerned he might have COVID-19. The child’s pediatrician apparently 

recommended that mother take the child to get tested, although mother was unsure if she 

wanted to do that. The social worker advised mother to follow the pediatrician’s advice. 

Mother also expressed concerns about not being able to attend the jurisdiction hearing 

that was scheduled for the next day given her son’s condition. The social worker 

instructed mother to reach out to her attorney for legal advice about the hearing. The 

social worker requested that mother contact her attorney about whether she would be 

present at the jurisdiction hearing, and mother agreed to call her counsel. 

On the morning of July 16, the juvenile court held the jurisdiction hearing. 

Mother was not present in court and her counsel informed the court that she had not had 

an opportunity to speak with her that morning. Counsel noted that mother desired 

changes to the petition and wanted to set the matter for a contested jurisdictional hearing. 

Mother’s guardian ad litem told the court she had met with mother and did not see any 

need for her continued appointment. During the hearing, the social worker did not 

apprise the court of her meeting with mother the previous day when they discussed 

mother potentially missing the hearing due to her child’s fever and COVID-19 concerns. 

The juvenile court found there was no good cause to continue the matter, and that 

mother waived her rights by her nonappearance at the hearing. The court further found 
6

that there was a factual basis for the allegations in the petition, that the allegations were 

true, and that A.V. came within section 300. The court set the matter for disposition 

E. Motion to Set Aside Jurisdictional Findings

Five days after the jurisdictional hearing, mother’s counsel advised the court at a 

miscellaneous hearing regarding guardian ad litem issues that mother had left her a voice 

message the day before the jurisdiction hearing and said her baby had a fever, although 

she did not get the message before the hearing. She requested the court “withdraw the 

default” as to jurisdiction. The court requested a written motion, saying it would not 

consider an oral motion. 

On August 12, mother filed a written motion requesting the juvenile court set aside 

the July 16 default regarding jurisdiction and allow mother to litigate the jurisdictional 

allegations at a contested hearing. Mother’s counsel explained that after business hours 

on July 15, the day before the jurisdictional hearing, mother had left her two voice 

messages. The first message was not detailed, and counsel did not return mother’s call 

before leaving the office at 6:30 p.m. as she expected to see her at the jurisdictional 

hearing the next day. 

After mother failed to appear at the jurisdictional hearing, mother’s counsel 

checked her voice messages again after speaking with mother’s guardian ad litem, and 

counsel learned that mother had left her a detailed message at 6:38 p.m. on July 15, 

explaining that her child was sick with a fever, that she had discussed taking the child to 

the emergency room with the doctor, but over fears of being exposed to COVID-19, it 

was determined that they would set a teledoctor appointment for 9:30 a.m. on July 16 to 

evaluate the child’s health, and requesting that the jurisdictional hearing be continued. 

Mother’s second message also noted that she had spoken earlier in the day with the social 

worker and that she was trying to follow the social worker’s advice to contact counsel. 
7

Mother’s counsel stated in the motion that had she received mother’s second voice 

message prior to the jurisdictional hearing, that she would have advised mother to follow 

guidance from the CDC, California, and San Joaquin County to not attend the court 

appearance to avoid potentially exposing persons at the courthouse to COVID-19. 

Attached to the motion were copies of mother’s phone records showing the 

various phone calls she made to the doctor as well as the social worker before and after 

the jurisdiction hearing, as well as medical records regarding her child’s condition. The 

attachments included a text message mother sent the social worker around 8:00 p.m. on 

July 15, the night before the jurisdiction hearing, that explained she had been unable to 

get in touch with her attorney and requested that the social worker advocate with either 

the judge or her counsel to request a continuance of the jurisdiction hearing given her 

child’s illness. 

On August 19, the Agency filed a response to mother’s request to set aside the 

jurisdictional findings. The Agency opposed the request, arguing that it was not the 

social worker’s responsibility to inform the court that mother might miss the hearing over 

health concerns for her younger child. The Agency argued mother should have done 

more to contact her attorney and let her know she was unable to attend the jurisdictional 

hearing. 

F. Denial of Motion to Set Aside Jurisdictional Findings and Disposition

In an August 2020 disposition report, the Agency recommended services for 

mother but not father. According to the report, A.V. was living in a short-term residential 

treatment facility where her “severe” mental health needs required “significant 

monitoring and stabilization.” This allowed her needs to be met in one centralized 

location. Because A.V.’s mental health needs were so extensive, a relative placement 

was not considered at that time. 
8

Due to COVID-19, mother and A.V. visited biweekly via video calls. Both 

mother and A.V. wished to reunite and live together. Sometimes however, mother was 

still a trigger for A.V., and A.V.’s behavior worsened following visitation. According to 

the report, mother needed to develop an understanding of how her reactions to A.V. 

either triggered her or helped to deescalate her behaviors. Therapeutic visitation would 

be arranged to “monitor and strengthen the relationship” between mother and A.V. 

The court considered mother’s motion to set aside the default jurisdictional 

findings at a hearing on August 27. Mother’s counsel argued that the social worker had a 

duty to at least inform the court regarding her conversations with mother about 

potentially missing the jurisdictional hearing due to concerns over her infant child’s 

health, especially given the COVID-19 pandemic, even if she did not have a duty to 

advocate for a continuance on mother’s behalf. Counsel argued that mother had kept the 

social worker apprised of the situation and tried to contact counsel, although it was after 

work hours. The Agency disputed what exactly mother told the social worker at their in 

person meeting regarding the infant’s health, and reiterated its position that the social 

worker had no duty to request a continuance on mother’s behalf. 

After considering the parties’ arguments, the court denied the motion, finding that 

mother chose not to go to the emergency room and instead made a doctor’s appointment 

for her sick child during the time set for the jurisdictional hearing. Had mother really 

been concerned for her child’s health, the court surmised, she would have immediately 

contacted her attorney and taken the child to the emergency room. Although the court 

acknowledged ongoing concerns related to the COVID-19 pandemic, the court found that 

at “four months into it, it has been addressed.” The court therefore found an insufficient 

basis to set aside the jurisdictional findings made in mother’s absence. Although 

information from the social worker would have been helpful, the court stated there was 

no guarantee it would have granted mother a continuance. 
9

After denying mother’s motion, the court set the matter for a dispositional hearing 

as to mother on September 3. At the Agency’s request, the court proceeded on 

disposition as to father, declaring A.V. a dependent of the court and removing her from 

mother’s home. The court bypassed father for reunification services. 

At the September 3 disposition hearing as to mother, the court again ordered A.V. 

a dependent of the court, found clear and convincing evidence the child’s custody had to 

be taken from the home, ordered that mother be given services, and incorporated the 

other recommendations of the social worker into the court’s findings and orders. Mother 

timely appealed. 

DISCUSSION

Mother contends insufficient evidence supports the juvenile court’s jurisdictional 

findings, or, in the alternative, that the court denied her due process by declining to set 

aside the jurisdictional findings made in her absence because, in her view, good cause 

existed to excuse her absence from court. We conclude good cause existed to excuse 

mother’s absence from the jurisdictional hearing, and that the court erred in denying her 

motion to set aside the findings.

“ ‘Parenting is a fundamental right, and accordingly, is disturbed only in extreme 

cases of persons acting in a fashion incompatible with parenthood.’ ” (In re Angelia P.

(1981) 28 Cal.3d 908, 916.) Impairment of this fundamental right must strictly adhere to 

procedural due process. (In re Crystal J. (1993) 12 Cal.App.4th 407, 412.)

In juvenile dependency, “[d]ue process includes the right to be heard, adduce 

testimony from witnesses, and to cross-examine and confront witnesses.” (In re 

Armando L. (2016) 1 Cal.App.5th 606, 620); specifically, due process “focuses on [a 

parent’s] right to notice and the right to be heard” before a child is removed from his or 

her care. (In re Matthew P. (1999) 71 Cal.App.4th 841, 851.) “When a parent is absent 

without good cause at a properly noticed hearing,” however, “the court is entitled to 
10

proceed in the parent’s absence.” (In re Vanessa M. (2006) 138 Cal.App.4th 1121, 

1131.) Ordinarily, a parent’s failure to appear will not constitute the good cause 

necessary to justify a continuance because substantial importance is attached to the 

child’s need to promptly resolve the dependency matter. (Id. at pp. 1131-1132, citing 

Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2005 ed.) § 2.104[5], p. 2-

169, citing § 352, subd. (a).) Thus, “[a]n unjustified failure to appear at a duly noticed 

hearing reflects a parent’s choice not to attend,” and the juvenile court “may properly 

treat this choice as a waiver of the right to be present at that hearing and of the benefits 

of being present.” (In re Vanessa M., at p. 1132, original italics.) 

In the context of the jurisdictional hearing here, we must balance mother’s desire 

to retain custody of A.V. and to counter the allegations of the petition against the 

government’s goal of serving the child’s best interests by resolving dependency matters 

expeditiously and allowing the juvenile court wide latitude to control dependency 

proceedings. (In re Vanessa M., supra, 138 Cal.App.4th at pp. 1129-1130.) After 

considering the totality of the circumstances, including the backdrop of the relatively new 

COVID-19 pandemic at the time of the hearing,3 we conclude mother set forth good 

cause for her absence from the jurisdictional hearing. While the juvenile court may have 

been justified in initially proceeding in her absence without any explanation for her 

failure to appear (id. at p. 1131), the court subsequently erred in denying her motion to 

set aside the jurisdictional findings once mother provided sufficient evidence of a valid 

medical excuse for her nonappearance. (§ 385; Nickolas F. v. Superior Court (2006) 

3

 We grant mother’s request to take judicial notice of official guidance from the 

Centers for Disease Control and Prevention (CDC) that persons caring for someone who 

has symptoms of COVID-19, which includes fever, to stay home except to get medical 

care. (Evid. Code, §§ 452, subds. (c), (h), 459, subd. (a).) 
11

144 Cal.App.4th 92, 98 [under certain circumstances, juvenile court may reconsider prior 

interim orders when necessary to prevent a miscarriage of justice].) 

The record shows that the day before the scheduled jurisdiction hearing, mother 

met with the assigned social worker to discuss the proposed case plan, and she informed 

the social worker that her younger child was sick with a fever and she was worried that 

he may have COVID-19. She also expressed concerns about being unable to attend the 

jurisdiction hearing the next day because of her child’s illness. Given the COVID-19 

pandemic, the baby’s pediatrician had recommended that mother get the child tested. 

The social worker told mother to follow the pediatrician’s recommendation, and also told 

her to contact her attorney for legal advice about whether to attend the jurisdiction 

hearing. 

Mother did in fact call her counsel two times the night before the hearing as 

instructed by the social worker. Although the first message was not detailed and counsel 

did not return her call, the second message, which counsel did not listen to until after the 

hearing, alerted counsel that mother would not be able to attend the hearing in light of her 

baby’s health-related issues. While it would have undoubtedly been more prudent to call 

counsel during business hours, it appears mother’s counsel was in a hearing all afternoon, 

making it unlikely she would have been able to take mother’s call in any event. This is 

not a case, then, when mother simply did not show up for the hearing without any 

explanation.

Not only did mother try to contact her attorney twice before the scheduled hearing, 

but she also texted the social worker, albeit after-hours, asking that the social worker 

request a continuance given her baby’s ill health and the COVID-19 pandemic that, at the 

time, was relatively new. These phone calls and text messages again show mother did 

attempt to notify the parties and counsel that she could not attend the jurisdiction hearing. 

And although we agree that the social worker did not have a duty to advocate for a 

continuance on mother’s behalf as the Agency argued below, we find it troubling that the 
12

social worker did not apprise the court of her conversation with mother the previous day 

when mother did not show up for the jurisdiction hearing and both her counsel and her 

guardian ad litem expressed surprise that she was not there. The social worker could 

have easily mentioned the conversation, at least to alert the parties and the court that there 

might be a reason for mother’s absence. Under such circumstances, the court could have 

taken a brief recess to allow mother’s counsel to contact her to clarify the reason for her 

absence. Such a minimal procedural step, we believe, comports with the juvenile law’s 

goal of family preservation whenever possible (Katie V. v. Superior Court (2005) 

130 Cal.App.4th 586, 596), and would not have unnecessarily delayed the proceedings to 

A.V.’s detriment. 

Based on the totality of the circumstances, especially when considered against the 

backdrop of the new COVID-19 pandemic and the guidance to stay home when sick or 

caring for someone who is sick or may be sick with COVID-19, we believe mother 

established sufficient good cause for her absence from the jurisdictional hearing. 

Because mother’s counsel informed the court at the jurisdictional hearing that mother 

desired changes to the petition and wanted to set the matter for a contested jurisdictional 

hearing, we cannot conclude the error was harmless beyond a reasonable doubt. The 

juvenile court found there was a factual basis for the allegations in the petition in 

mother’s absence, and yet never considered, let alone admitted, the detention/jurisdiction 

report at the hearing and no witnesses testified at the hearing. 

Mother is entitled to challenge the basis for jurisdiction in a contested 

jurisdictional hearing. Given our conclusion, we do not reach mother’s sufficiency of the 

evidence challenge to the jurisdictional findings made in her absence. 
13

DISPOSITION

The jurisdiction and disposition orders as to mother are reversed, and the matter is 

remanded to the juvenile court to hold a contested jurisdictional hearing.

 \s\

BLEASE, Acting P. J.

We concur:

 \s\

MAURO, J.

 \s\

RENNER, J.
1

Filed 1/12/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

----

In re A.V., a Person Coming Under the Juvenile Court 

Law.

C092928

SAN JOAQUIN COUNTY HUMAN SERVICES 

AGENCY,

Plaintiff and Respondent,

v.

S.V.,

Defendant and Appellant.

(Super. Ct. No. 

STKJDDP20200000110)

APPEAL from a judgment of the Superior Court of San Joaquin County, Anthony 

P. Lucaccini, Judge. Reversed with directions.

Katherine Marie Curtis for Defendant and Appellant.

Mark Gabriel Rodriguez Doronio for Plaintiff and Respondent.
2

THE COURT:

The opinion in the above-entitled matter filed on December 22, 2021, was not 

certified for publication in the Official Reports. For good cause it now appears that the 

opinion should be published in the Official Reports and it is so ordered

BY THE COURT:

 \s\ ,

BLEASE, Acting P.J.

 \s\ ,

MAURO, J.

 \s\ ,

RENNER, J.