Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 95D001083, Michael J. Naughton, Judge.
Alan T. S., in pro per., for Appellant.
Mary T., in pro per., for Respondent.
OPINION
SILLS, P. J.
I
This case presents a permutation of a problem addressed by this court more than a decade ago in In re John W. (1996) 41 Cal.App.4th 961 and more recently by our colleagues in the Second District in In re Marriage of David & Martha M. (2006) 140 Cal.App.4th 96: How are family courts to treat custody cases whose last stop was the juvenile dependency courts?
In John W., this court, basically relying on In re Jennifer R. (1993) 14 Cal.App.4th 704 which emphasized the differences between family law and juvenile dependency courts, observed that juvenile dependency court exit orders provided by Welfare and Institutions Code section 362.4 could not “be equated with permanent family law custody and visitation orders.” Rather, such orders were more in the nature of family law orders made pending litigation. (John W., supra, 41 Cal.App.4th at p. 973; accord, In re Roger S. (1992) 4 Cal.App.4th 25 [juvenile court orders pursuant to section 362.4 necessarily had to be based on best interests of child].)
John W., however, was decided in 1996, and in 2000 the Legislature added subdivision (d) to section 302 of the Welfare and Institutions Code. New subdivision (d) to section 302 made clear that “[a]ny custody or visitation order issued by the juvenile court at the time the juvenile court terminates its jurisdiction pursuant to Section 362.4” should be treated, in essence, as a permanent family court custody judgment, and therefore can only be modified by the family court on a showing of a significant change of circumstances “since the juvenile court issued the order.” Subsequently, in Marriage of David & Martha M., the Court of Appeal reversed a family law court order that had reduced a father’s visitation as it existed under a juvenile court exit order, because the family court applied a simple best-interests test instead of a change-of-circumstances test. (Marriage of David & Martha M., supra, 140 Cal.App.4th at p. 103.)
Our problem is what to do when the juvenile court does not, at least formally, make an “exit” order as such, but leaves custody as it stood under the last family law order, that is, as it stood before the dependency proceedings. More specifically, the question is: In a family law modification proceeding brought after -- indeed, almost immediately after -- the termination of juvenile court jurisdiction, was the family law court to consider whether there was a showing of a significant change of circumstances since the termination of dependency jurisdiction, or was it to consider whether there was a significant change of circumstances since the last family law order made years earlier?
If the juvenile court had made a formal exit order, it would be an easy question. We would simply follow Marriage of David & Martha M., which itself follows subdivision (d) of section 302, and reverse for a “do over” using the right standard. This opinion would conclude here.
The absence of an explicit exit order from the juvenile court, however, complicates the case. We are forced to go back to another idea in John W. -- one which has not been changed by the Legislature and in fact is very much in keeping with the Legislature’s subsequent addition of subdivision (d) to section 302: Namely, that in terminating jurisdiction, the juvenile dependency court must necessarily leave children in a status quo that is itself in the best interests of the formerly dependent children. In other words, we assume that juvenile courts are doing their job when they terminate jurisdiction and do not leave custody arrangements in anything other than what would be the best interests of the children.
The facts in John W. are instructive in that regard: After separation, the mother made a series of allegations of sexual abuse against the father in regard to the couple’s one child. (We emphasize for the sake of readers of this opinion: Absolutely no allegations of sexual abuse have been leveled against the father here.) By 1993, a dependency petition was sustained in John W., but not on allegations of sexual abuse. Rather, the theory was that the child was suffering emotional damage because of the parents’ ongoing custody dispute. (John W., supra, 41 Cal.App.4th at p. 966.) Things went well in the juvenile court, however, and by September 1994, a juvenile court judge terminated dependency jurisdiction because there was uncontradicted evidence that the child was “no longer suffering emotional damage.” (Id. at p. 968.) However, in fashioning a formal exit order, the juvenile court judge decided that the custody should be straight-forward 50-50 split on the theory that there was no reason to prefer one parent to the other. And, to boot, included a preclusion that the order could not be modified for another year. (Id. at pp. 968-969.) Both parents appealed, attacking the straight jacketing aspect of the juvenile court’s exit order.
In evaluating the appeal, this court in John W. concluded three things:
(1) The exit order was not the equivalent of a permanent family court order (John W., supra, 41 Cal.App.4th at pp. 970-973), hence the a priori preclusion of modification for another year was error;
(2) in making the exit order, the juvenile court was required to look to the best interests of the child under all the circumstances, hence the reflexive but not otherwise deliberative 50-50 split was in error; it didn’t follow that 50-50 was in the best interests of the child under all the circumstances (John W., supra, 41 Cal.App.4th at pp.973-974); and
(3) the remand should be to the family court, because it would be inappropriate to return it to a court that had already terminated jurisdiction (John W., supra, 41 Cal.App.4th at p. 975).
The 2000 addition of subdivision (d) to section 302 only affects conclusion (1), above, and only insofar as this court observed that exit orders were subject to a “lesser standard” (i.e., that of pendente lite orders) regarding subsequent change. (See John W., supra, 41 Cal.App.4th at p. 973.) And it is worth noting the addition of subdivision (d) was consonant with conclusion (1) in John W. insofar as John W. actually reversed a juvenile court order that absolutely precluded subsequent modification by the family law court for an arbitrary period. Under the present law (as illustrated in Marriage of David & Martha M.), a showing of a significant change of circumstances and the best interests of the child would require a change from the juvenile order, regardless of any such arbitrary modification-preclusion order.
It is conclusion (2), however, that is primarily of interest to the case before us now: In John W., the initiating impetus for the ultimate assumption of dependency jurisdiction was the mother’s allegations of sexual abuse. At the hearing giving rise to the exit order, the trial court observed that the sexual abuse allegations as well as the counter allegations that the child had been coached into making false sexual abuse allegations, had never been “‘put to rest.’” (John W, supra, 41 Cal.App.4th at p. 968; see also id. at p. 974.) And yet despite the unresolved nature of those allegations, the juvenile court terminated jurisdiction. (Id. at p. 968.)
On appeal, and with we hope a not misplaced confidence in the judges of the juvenile court to want to do the right thing, we noted the obvious: No one in his or her right mind would return a child to a child molesting parent if he or she really thought the parent had molested the child. At the trial level, the juvenile court in John W. was willing to terminate jurisdiction and return the child to his parents. Obvious implication: The juvenile court obviously did not take the allegations of molestation seriously, and considered them as a tactic in a custody war between two parents.
The passage is important, and we quote it now: “Despite the juvenile court’s remark here that the child abuse allegations against both parents were never put to rest, as a practical matter they were. We presume that juvenile court hearing officers have more common sense than to release small children to the custody of individuals who have molested them, or, alternatively, have bribed children into making false accusations of molestation. Even though there never was a formal exoneration of either parent (much the same way that criminal cases rarely end with a jury declaring a defendant’s absolute innocence), the fact remains the juvenile court was willing to return John to his parents. Unlike Jennifer R. [supra, 14 Cal.App.4th 704], here neither parent was adjudged to pose any danger to the child.” (John W., supra, 41 Cal.App.4th at p. 974, italics added.)
II
Which brings us to the relatively voluminous record in the present case. By 1995 Alan and Mary S. were separated and in divorce proceedings in the family law court in Orange County. A final, formal judgment as regards child custody was filed in the family law case in February 1997, which awarded the father, Alan, primary physical custody of the couple’s two children, Thomas, born in 1991, and Sarah, born in 1993. At the time, Alan was a law librarian for a large law firm in Orange County. In 1999, Mary relocated to the area around Reno, Nevada, where she found work as a clerk in family law court in Washoe County. She made no attempt to change custody, though the record does suggest that visitation, given the increased geographical separation of the parents, thereafter became problematic.
We hereby grant appellant’s motion to augment the appendix. We deny his motion to file it under seal.
The appellant’s appendices, prepared by appellant in pro per., do not begin with a copy of the petition, but with a copy of a stipulation and order from a pendente lite OSC filed in May 1995.
In any event, the two children lived with their father for the next seven years, certainly through most of 2004. However, in October 2004, the two children came into the juvenile dependency system in Los Angeles Superior Court (Alan had changed jobs, and was now working for a large law firm in Los Angeles County), based on Mary’s allegations of physical abuse. The abuse on which dependency jurisdiction was ultimately predicated was that Alan had slapped his son “multiple times in the face with his hand causing Thomas red marks on his face” and had struck Sarah “twice in the face with his fist” causing a bloody lip. The reference to single injuries suggests that each slapping incident was a single incident, as distinct from something that had been done habitually.
In preparation for a status review hearing scheduled for January 2006, a social worker wrote that since November 2005, “there has been no safety concerns regarding the children under the care of the father.” Accordingly, on February 9, 2006, the juvenile court terminated jurisdiction. The order of termination in Los Angeles County Juvenile Court case CK 56151, specifically stated that “No custody order is issued.” In any event, the termination order left both Thomas and Sarah with father, Alan.
On February 22, 2006 -- that is, within less than 13 days from the date of the termination of jurisdiction -- mother Mary S., now Mary T. -- filed an OSC in family court seeking a modification of custody, scheduled for April 2006. In the meanwhile, Mary filed ex parte papers in the Nevada court (where she worked) requesting a temporary change of custody based on allegations that Thomas -- now about 14 -- now did not want to live with his father. One incident in particular appears to have taken place after the February 2006 termination of jurisdiction which prompted Thomas’ new-found attitude: Apparently “around the beginning of March,” Alan was driving Thomas to school, the father and son began arguing, and Alan, instead of driving Thomas to school, drove him out into the desert where he threatened to teach Thomas a lesson and “kick your ass” (Mary’s declaration would later have it as “whoop your ass” but, after more arguing, Alan drove Thomas back, and Thomas now unequivocally decided he wanted to live with his mother.)
The Nevada court declined to grant Mary’s ex parte request, in part because a hearing was already scheduled in California for a few weeks later in April. In April, the Orange County family law court, Judge Naughton presiding, granted temporary change of custody to Mary. About a week later Alan would unsuccessfully move to recuse Judge Naughton for cause based on his having had a telephone conversation with a Nevada judge concerning Mary’s unsuccessful ex parte in Nevada. Judge Naughton noted that it was “good judicial practice” under the Uniform Child Custody Jurisdiction and Enforcement Act for judges in courts outside the jurisdiction to communicate with each other.
Judge Naughton’s April 2006 order was temporary. The hearing for a permanent change did not take place until January 2007, with Judge Monarch presiding. (At the hearing, Alan, who had been representing himself in pro per., was represented by attorney Brian Saylin.)
The hearing lasted two full days. The issue of the proper standard -- change-of-circumstances versus ab initio best interest -- was squarely placed before the trial judge, with Alan’s attorney asserting that there had been “no change of circumstances from the time of the Los Angeles Superior [juvenile] Court order to the present.” Mary’s attorney on the other hand disagreed, and said the standard was best interest. For his part, Judge Monarch recognized “it’s an area I’m not clear on” and took the matter under submission.
Judge Monarch issued a statement of decision several days later. And what is clear is that Judge Monarch adopted the paradigm that the case turned on whether there had been a significant change in material circumstances since the February 1997 final family law court judgment. Having done so, he changed primary physical custody of both Thomas and Sarah to Mary, in particular noting, “the pattern of discipline imposed by” Alan “[f]rom and after February, 1997.” He said he disbelieved Alan’s denials of having administered physical punishment to Thomas. (At one point in the proceedings Judge Monarch had described the relationship between father and son as toxic. (“The relationship between the father and the son appears to be a toxicity, maybe a pathological toxicity. I don’t know.”)) As to Sarah, the statement of decision said that she had “suffered extreme emotional distress” having “witnessed the toxic relationship being developed and maintained between” father and son.
Since the children were already residing with the mother pursuant to the temporary order, there apparently was no hurry to prepare a formal order and findings after hearing, and in fact such an order (embodying the change of custody) was not filed until April 24, 2007, prepared by Mary’s attorney. Alan claimed that the order was never served on him (and, indeed, the record gives no indication of it). Alan claimed only to have found out about it when he requested the file in “June of 2007.” On August 6, 2007, Alan (now again in pro per) brought a motion to vacate the April judgment and also requested a new trial, supported by assertions that neither he nor his counsel, Gene Kinsey, had been served with the April findings and order, and that extrinsic fraud constituted a ground to vacate the judgment. The motion also argued that documents from the juvenile court file had been improperly disclosed, but also made the point that it was incorrect for the trial court to change custody when the juvenile court had just returned the children to him the month before the OSC in the family court that led to the change of custody.
Alan admitted in a later declaration that the court’s copy had a proof of service dated April 24, 2007, but that was the declaration where he said he never received a copy of the mailing.
According to Alan’s declaration, the revelation came in regard to an unrelated (that is, support not custody) hearing in front of a commissioner on May 30, where Mary apparently asserted the existence of a formal order but the commissioner had no such order in his file.
The motion to vacate or for a new trial came before Judge Naughton on September 7, 2007. He denied the motion, albeit without prejudice, because it should have been brought before Judge Monarch. (The reporter’s transcript of the hearing contains the “without prejudice” statement. The actual minute order contains no such leavening agent, and more brusquely says, “This motion for new trial should have been heard in front of Judge Monarch, department C67, and it wasn’t. Motion is denied.”)
A notice of appeal was filed less than a week later, on September 12, 2007. The notice specifies the appeal is from a judgment entered April 24, 2007 and from the motion to vacate and set-aside/new trial, i.e., which we of course take to mean the order denying the motion to vacate and for a new trial.
III
As a procedural matter, we conclude that Alan’s appeal is timely. Despite being invited to do so by supplemental briefing, Mary has provided no factual basis (either at the trial or appellate level) on which to conclude that, contrary to Alan’s declaration, he was served with a written notice of entry of the April 24, 2007 findings and order after hearing. Not having been so served, the 180-day deadlines applying to new trial motions (Code Civ. Proc., § 659, subd. (2)), motions to vacate (Code Civ. Proc., § 663a, subd. (2)) and to appeals generally (Cal. Rules of Court, rule 8.104(a)(3)) operates, and September 12 is within 180 days of April 24. We therefore have jurisdiction to examine the merits of Alan’s appeal attacking the April 24 order as well as the challenge to the order denying the motions for new trial and to vacate made on September 7.
In supplemental briefing, Mary only indicates that the trial court’s “written and signed decision was available to the parties for months prior to be [sic] reduced to an order.” (Italics added.) More conspicuously, Mary has not provided either the trial court or this court with any proof that the April 24 findings and order was ever mailed to Alan.
IV
As noted in John W. and the cases it relied on, there are structural dynamics inherent in juvenile dependency litigation that differ from those in family litigation. In particular, the juvenile court is not as concerned with competing claims as between fit parents as is the family court. (See John W., supra, 41 Cal.App.4th at p. 971, citing In re Jennifer R., supra, 14 Cal.App.4th at p. 712, citing In re Roger S. (1992) 4 Cal.App.4th 25, 30-31.) Also, the relevant parts of juvenile dependency law show that a traditional exit order is, indeed, optional: Section 362.4 of the Welfare and Institutions Code states that “When the juvenile court terminates its jurisdiction over a minor . . . the juvenile court on its own motion, may issue a protective order as provided for in Section 213.5 or as defined in Section 6218 of the Family Code, and an order determining custody of, or visitation with, the child.” (Italics added.)
That said, as we noted in John W., the dependency court is also charged with a determination of the best interests of the children under all the circumstances. (John W., supra, 41 Cal.App.4th at pp. 973-974.) Mary certainly had the opportunity to request the juvenile dependency court change custody and might have appealed its termination of jurisdiction leaving the children with Alan. (In fact, snippets in this record indicate she may have done so but then abandoned her appeal).
Accordingly, under John W., we presume that the juvenile court did its duty in deciding, for practical purposes, that to leave the children with Alan as a kind of default was in the children’s best interests under the circumstances. (Civ. Code, § 3548 [presumption that “The law has been obeyed.”].) Doing nothing is itself a decision to approve the status quo.
We therefore, and consistent with In re Marriage of David & Martha M., conclude that the appropriate standard for the trial court was not, as the trial court used, any change of circumstances since the February 1997 order, but -- tracking section 302, subdivision (d) of the Welfare and Institutions Code as a common law gloss on the family law change of circumstances rule -- whether there was a “significant change of circumstances since the juvenile court issued the order.”
In that regard, the evidence at the January 2007 hearing clearly showed one incident which might have amounted to a change of circumstances, which was the drive-out-into-the-desert argument that Thomas and his father had in March 2006, resulting in Thomas’ change of mind to wanting to live with his mother. Whether the trial court would have found a change of circumstances based on that one incident is, however, not our call to make as an appellate court, because the trial court evaluated the case on the basis of everything that happened since February 1997 -- including the trip to juvenile dependency court. We also note that (unless we blinked and missed something while examining the transcript of the January 2007 hearing), there does not seem to have been any change of circumstances at all regarding daughter Sarah, with the trial judge’s finding of extreme emotional distress based on the father-son relationship as kind of make weight to justify an order that kept both siblings together. (Now, it might be that both siblings have such a bond that one must go with the other, but nothing in the record suggests any such bond.) Indeed, the evidence concerning Sarah was that she was a straight-A student and doing very well with Alan when she was yanked out of school in 2006.
Indeed, on this record at least, it appears that the trial court may have done the daughter -- then doing very well with her father -- a grave disservice in changing custody in the middle of the second semester of the school year based on nothing more than a perceived inability of her brother and father to get along. Our review has not revealed any post-juvenile court basis on which primary physical custody of Sarah should have been changed, but, in any event, if there was (or is), Mary will have the opportunity to argue that basis on remand.
V
Because the trial court applied the wrong standard in evaluating custody at the January 2007 hearing, the April 24, 2007 order embodying that standard must be reversed. Reversal of the April 24 order obviates any need to evaluate the merits of the trial court’s denial of the subsequent motions to vacate and for new trial.
Now let us be clear: The April 24 order is reversed. The matter is remanded to the trial court for re-trial. At that re-trial, the standard will be whether there has been any change of circumstances since the termination of juvenile court jurisdiction in early 2006 to justify changing custody of either or both children from Alan to Mary. It will be Mary’s burden to show such a change; if she doesn’t, the “default” result will be that the children will go back to Alan, which is, after all, where the juvenile dependency court left things. Obviously, however, events and circumstances during the pendency of this litigation may be included -- the hearing is not to be limited to just events between January 2006 and January 2007, but obviously may include facts and circumstances since January 2007 as well.
We are therefore spared the issue of whether the trial court erred at the January 2007 hearing in arguably considering only portions of the dependency record.
Appellant is to recover his costs on appeal.
WE CONCUR: ARONSON, J., IKOLA, J.