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Transportation to Court

• How is an incarcerated parent notified of a court hearing regarding his/her children?
• How important is it for a prisoner to appear in court at a dependency or custody proceeding?
• How do you go about requesting transportation to a court hearing regarding your children?
• How does the case Payne v. Superior Court support an incarcerated person’s fundamental right to be present at court hearings?
• Would it be possible for the incarcerated parent to file a request for transportation to a juvenile court hearing on his or her own behalf?
• Who is responsible for transporting prisoners to court?
• How long before the hearing should a request for transportation be made?
• What happens if notification of hearing is not received by the prisoner in time to arrange for transportation?
• Will a prisoner lose good time if he or she goes to a hearing concerning his or her child?

The purpose of this booklet is to notify prisoners and their legal advocates of a prisoner’s legal right to request to be present at all hearings and court proceedings affecting their children. In addition, this booklet is designed to familiarize you with the procedures used to initiate a request for transportation to a court hearing. The procedure is not uniform throughout California. In this guide, we will introduce the general procedures, time constraints, and department or people responsible for initiating the process, and give you some sample forms which you may use to obtain a court order for transport to a court proceeding affecting your custodial rights. This guide is not intended to replace your lawyer. If you have representation, then stay in close contact with your lawyer and keep her/him informed about all aspects of your case. If you use this guide to proceed on your own (pro se), be sure to visit the law library to check the current status of the statutes and case law cited in this guide.

When a parent is incarcerated, the children become unrecognized victims and also suffer from the consequences of their parent’s incarceration. Parents often do not have the time or the resources to plan for placement of their children before their incarceration. If arrangements have not been made, children are placed in temporary shelter by the welfare department or a social service agency. These circumstances further complicate the situation and could lead to permanent severance of the parent-child relationship by the court.

How is an incarcerated parent notified of a court hearing regarding his or her children?

Regulations outline procedures for notifying parents of juvenile court proceedings. Unfortunately, the incarcerated parent is often given insufficient notification of hearings and in some cases no notification at all.

Incarcerated parents have the right to be notified of a court hearing where their children are dependents of the court, where their parental rights may be permanently terminated, and in other matters concerning the custody of their children. In California, the courts have held that a social service department must make reasonable efforts to provide a parent with adequate notice and an opportunity to be heard before depriving a parent of his or her parental rights. In re B.G., 11 Cal. 3d 690 (1974). In other custody and family law matters, the presiding judge of the court in question sets the policies and procedures as to how a prisoner is notified and ordered to appear before the court. Generally speaking, a parent has the right to be present at all hearings or have an attorney present to represent the parent’s interests.

The manner in which a prisoner is to be notified of a hearing is not entirely clear, although case law generally supports the necessity of giving a prisoner adequate and effective notice of a hearing. In one case, the California Court of Appeals held that the juvenile court erred when it did not allow a hearing to be delayed when the attorney had not been able to contact the parent to prepare for the hearing after reasonable efforts to do so. In re C.P., 165 Cal. App. 3d 270(1985).

In North Carolina, a Department of Social Services caseworker merely sent notice to a prisoner but took no further action after the letter was returned. The North Carolina Court of Appeals held that this evidence is not sufficient to prove that “diligent efforts” had been made to give notice and render reasonable services to assist family reunification. Matter of Harris, 360 S.E.2d 485, 489 (N.C. App. 1987). Note that while decisions made in North Carolina courts are not binding in California, they may be helpful in similar cases.

How important is it for a prisoner to appear in court at a juvenile court or custody proceeding?

When the incarcerated parent is having his or her parental rights challenged in court by the state or an individual, the absence of the parent from the courtroom can place him or her at a serious disadvantage. The fact that the prisoner has the opportunity to express his or her ability and qualifications as a parent to the court could become an important factor in determining the outcome of the case. This may be the only opportunity that the prisoner-parent has to address the judge directly and the only chance that the judge has to assess the attitude, behavior, and appropriateness of the parent.

The court date could also provide the incarcerated parent with the opportunity to arrange to visit with his or her children. Meetings with his or her attorney and/or social worker could be arranged to review the status of the parent and children. This could be especially valuable to an incarcerated parent housed in another county.

How do you go about requesting transportation to a court hearing regarding your children?

California Penal Code section 2625 gives California prisoners an absolute right to be transported to court proceedings in an action that could terminate the prisoner’s parental rights under Part 4 (beginning with section 7800) of Division 12 of the Family Code, and section 366.26 of the Welfare & Institutions Code. This means that the court cannot proceed without the parent or parent’s attorney unless the parent has made a waiver of his/her right to be present. The section also governs transportation of prisoners to court where their children have been made dependents of the court under Welfare and Institutions Code sections 300 et seq. In all other family matters (i.e., divorce, child support, guardianship, etc.), the court may order the prisoner before the court. This means that it is up to the court to decide whether the parent’s presence is required in order to proceed. The court may not order the transport of a prisoner who is sentenced to death, even where that sentence is being appealed.

An increasing number of jurisdictions are recognizing the right of incarcerated parents to be present at court proceedings. One of the problems prisoners face in arranging transportation to a court proceeding regarding their children is that it is unclear in many jurisdictions what agency has the primary responsibility for initiating the process. The responsibility can fall on juvenile court, the probation department, the correctional facility, or even the court-appointed attorney.

In most counties, the legal advocate or court-appointed attorney is responsible for drawing up the documents to be submitted to the courts. In some counties, a public defender is specifically assigned to provide and file the proper documents or forms. To a lesser degree, counties place the responsibility on the child’s social worker or juvenile court authorities.

If the incarcerated parent is not sure whether a court order has been issued transporting him or her to the court hearing, he or she should write to the appointed lawyer, the juvenile court judge, or the child’s social worker to advise them that the parent wishes to attend the hearing.

How does the case Payne v. Superior Court support an incarcerated person’s fundamental right to be present at court hearings?

Prisoners facing a civil action where their fundamental rights are being threatened, such as in actions dealing with marriage and parental status, are required by the state and federal constitutions to be given an opportunity to be heard by the court.

In Payne v. Superior Court, 17 Cal. 3d 908, 919 (1976), the California Supreme Court held that an indigent prisoner seeking to defend a civil suit has a due process right of access to the court. A trial court must exercise its discretion to determine whether access is best provided through a personal appearance by the prisoner, representation by counsel, or both. Payne at 924-25. Because incarceration creates unusual obstacles to effective communication between attorney and client, even when counsel has been appointed, a personal appearance by the prisoner is often essential to safeguard the prisoner’s marital and parental interests in actions which will affect those interests. Payne supports the granting of such access to the courts, while Penal Code section 2625 not only encourages such appearances by prisoners but actually requires that they be permitted in certain actions, at the prisoner’s request.

Would it be possible for the incarcerated parent to file a request for transportation to a juvenile court hearing on his or her own behalf?

Yes, another alternative would be for the prisoner to submit the forms on his or her own behalf “pro per.” Attached in Appendix 1 are sample forms requesting transportation to court, along with blank forms for you to fill out and an explanation of how to fill out these forms.

Who is responsible for transporting prisoners to court?

The Sheriff’s Department in the county where the hearing is to take place is responsible for making arrangements to physically transport an incarcerated parent to a court hearing.

How long before the hearing should a request for transportation be made?

Whether the request for transportation is made through a government agency, individual attorney, or prisoner filing pro per, the Sheriff’s Department will need sufficient time to arrange the transportation. Sufficient time requested by the Sheriff’s Department for different counties in California ranges between five days to one month before the court date, and can sometimes be as long as six weeks. However, a copy of the order for transport must be transmitted to the warden or other person in charge of the institution, not less than 48 hours before the prisoner is to be transported to the hearing.

What happens if notification of hearing is not received by the prisoner in time to arrange for transportation?

Although a social services agency may send notice within an appropriate time period, correctional procedures may cause the parent to receive notification just before the hearing or even after it has taken place. If this is the case, a prisoner should immediately write to the court or court-appointed attorney explaining the circumstances of the late notification and request that the attorney continue the matter until he/she can be transported to court. If the judge does not allow continuance, it might be appropriate to file an appeal. If it is possible, ask a relative to appear at the hearing for you to explain that you were not given enough time to request transportation. This would be a way of showing the court your concern for your children. According to Penal Code section 2625, the court is not supposed to go forward with any hearing which might terminate parental rights without the parent or his/her attorney present.

You should also write to the court-appointed attorney to ask that the court be notified of the problem.

Will a prisoner lose good time if he or she goes to a hearing concerning his or her child?

No. The California Code of Regulations requires that you continue to receive good time during the time that you are “removed to out-to-court status,” which is considered an authorized absence. “‘S’ time credit shall be applied to an authorized absence from the inmate’s work/training assignment by order of the prison administration. The inmate shall receive sentence-reducing credit that would have been earned if the inmate had been able to work.” California Code of Regulations, Title 15, section 3045.3.

REMEMBER, if your child is over 3 years old and is made a dependent of the juvenile court, you have a period of twelve (12) months in which to reunify with your child. While some juvenile courts will give a parent an additional six (6) months for a total of eighteen (18) months, this is not always the case, and the court can terminate your parental rights within this time if you do not stay closely in touch with your child. If your child was under the age of 3 at the time s/he was removed from the parent’s custody, then only six (6) months of reunification time is required. This is why it is so important to be present at each and every hearing involving your child.