Opinion
NOT TO BE PUBLISHED
Appeal from a post judgment order of the Superior Court of Orange County, Ct. Nos. DP03315 & DP010242 James Marion, Judge.
Michael D. Randall, under appointment by the Court of Appeal, for Defendant and Appellant.
Benjamin P. de Mayo, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minors.
OPINION
BEDSWORTH, J.
Michael C. appeals from an order denying a modification petition that requested increased visitation with his children, Melanie C. and Donovan C. He argues it was an abuse of discretion to deny the petition without an evidentiary hearing. The Orange County Social Services Agency (SSA) moves to dismiss the appeal as moot. We deny the motion to dismiss but cannot find any abuse of discretion, so we affirm the order.
FACTS
Michael C. and Dianna H. are the parents of Melanie (born in 2000) and Donovan (born in 2001). Their substance abuse and Michael’s domestic violence have been the subject of three sustained dependency petitions since 2000.
We consider this case along with a related petition for a writ of mandate by Dianna that challenges denial of her own modification petition. Since both matters arise from the same facts, we set out here the history of the case concerning both parents, even though this appeal is only by Michael. In an opinion filed concurrently with the decision, we deny Dianna’s petition. (Dianna H. v. Superior Court (Apr. 3, 2008, G039661 [nonpub. opn.].)
The 2000 petition alleged the parents were unable to provide regular care for Melanie due to substance abuse. (Welf. & Inst. Code, § 300, subd. (b).) In sustaining the petition, the juvenile court found Michael had used alcohol and marijuana, Dianna had used marijuana in the presence of Melanie, Dianna had physically abused the child, and the parents had engaged in domestic violence while the child was present. Further, Michael had hit Dianna on several occasions, sometimes with his fist and sometimes with a stick, and he had been arrested for inflicting corporal injury on a spouse. The child was removed from Michael’s custody and placed with Dianna.
All subsequent statutory references are to the Welfare and Institutions Code.
In 2002, Michael, while under the influence of methamphetamine, assaulted Dianna. He was charged with aggravated assault, and a domestic violence restraining order was issued that directed him not to contact Dianna or go to the family home. Michael ignored the order and returned the next day to assault Dianna anew. He was charged with violating the protective order and inflicting corporal injury on a spouse, and sentenced to three years probation plus 150 days in jail.
In October 2003, the juvenile court found Dianna had addressed the problems that led to dependency. The child was returned to her custody, Michael was allowed monitored visitation, and the case was closed. But problems soon followed.
In June 2004, a second petition was filed. The precipitating event was Michael’s arrest for violating the restraining order, a violation in which Dianna was complicit, having allowed Michael to spend time in her home and visit the children without supervision. The juvenile court found both parents were unable to care for the children due to substance abuse, and Dianna was unable to protect the children. (§ 300, subd. (b).) It sustained allegations that both parents had unresolved substance abuse problems, Dianna suffered from depression but failed to seek treatment or fill prescriptions, Dianna allowed strangers to enter the home freely, and on numerous occasions, Dianna left the children overnight in the care of an older sibling who was not an adult. The court found the parents’ relationship was one of ongoing conflict, often escalating into domestic violence. Once, the children had been present when Michael wielded a knife and was himself cut on the face (how was not explained). Another time, Michael threw an object at Melanie hard enough to leave a bruise (what was thrown was not said). The children were removed from parental custody and reunification services provided. The restraining order remained in effect.
This time, Michael completed a parenting class, two domestic violence programs, anger management counseling, and resided for a time in a sober living home. Visitation, originally monitored twice a week, was increased and the monitor lifted. But then Michael was arrested for possession of drug paraphernalia in early 2005. He completed a deferred judgment program, but relapsed and tested positive for methamphetamine in September 2005. In October 2005, the restraining order was modified to allow the parents to have peaceful contact.
At a December 2005 status review hearing, the juvenile court ordered the parents to have no contact with each other. It warned Michael that if he violated the order, or tested positive for drugs, the visitation monitor would be reimposed. A week later, the assigned social worker spoke to Michael about the no contact order and drug testing, and he assured her he understood both. Later that day, Michael showed up at Dianna’s home while she was meeting with another social worker. The latter said “[Michael] walked in the door as if it was a normal routine.”
In January 2006, the children were returned to Dianna again, this time under a family maintenance plan. Once again, the parents were ordered to have no contact with each other. Michael was given monitored visits of one hour per week, which SSA was authorized to increase if they went well. For a time, they did. Visitation was increased to two hours twice a week, the monitor was lifted, and the parents were allowed to have contact outside of the home.
But things began to unravel again in June and July 2006. After being drug free for nine months, Michael tested positive for methamphetamine. He told the social worker he used it one time to increase his energy level at work. In the middle of June, Michael went to Dianna’s home, where they argued. She called the police, but he left before they arrived.
On July 20, 2006, a status review hearing was held. After minors’ counsel expressed concern for the children’s safety, the juvenile court ordered Michael to stay 100 yards away from Dianna and the children, and their home. It also warned him that if he disobeyed the order, the children could be removed from Dianna once again. Neither the order nor admonition appear to have had any impact, as Dianna revealed the following day. She called a social worker to confess she had been allowing Michael to live in her home for some time, they had argued the night before, and now she was afraid Michael was trying to drug her and the children. When the social worker went to the home, Dianna appeared to be under the influence of methamphetamine, and she admitted having used it with Michael the previous night. Both children told the social worker they did not feel safe at home when Michael was around. The children were detained.
A supplemental petition – the third petition in this case – was filed on July 21, 2006. It alleged failure to protect the children and inability to care for them due to substance abuse (§ 300, subd. (b)), and set out the events described in the preceding two paragraphs. Trial was held in October 2006. Among other things, SSA reported Michael had tested positive for methamphetamine in late September. The juvenile court sustained the petition, removed the children from parental care, and denied further services. Michael was allowed weekly monitored visitation after he tested clean five times. Dianna was also given weekly visitation subject to clean drug testing.
In February 2007, a selection and implementation hearing was held. SSA reported Michael had been arrested and incarcerated in December 2006 for violating probation after another fight with Dianna in late July 2006. The juvenile court found the children had a probability for adoption but were hard to place, and no prospective adoptive parent had been identified (§ 366.26, subd. (c)(3)). It continued the hearing for 180 days to allow SSA to locate an adoptive family. It ordered Michael was to have no visitation while in custody. Once out, if tested clean, he was allowed monitored visits twice a month for one hour, and telephone calls the weeks he did not visit.
Michael filed the instant modification petition in July 2007. He requested removal of the monitor and increased visitation, or alternatively increased monitored visitation at a park or other site away from SSA’s offices. He also asked for increased telephone contact and giving SSA discretion to increase visitation. In a supporting declaration, Michael said upon his release from custody in early March 2007, he had moved into a sober living home, obtained a job, and enrolled in an anger management program. The sober living home required attendance at weekly Alcoholics Anonymous meetings and drug testing twice a week. An attached letter from the program director attested to Michael participation, saying “regular drug testing of all participants” was performed and Michael’s test results were negative.
Michael declared he had made all scheduled visits and allowed calls to the children. He brought food and toys to the visits, which he said were “always positive.” When he arrived, the children “come charging at me, hollering ‘Daddy, Daddy,’” telling him they love him, miss him, and “I’m the best Daddy.” Michael said “I am completely committed to my sobriety and to the physical and emotional well-being of my children.” He declared the monitor should be removed because he would not do anything to jeopardize future contact with his children. To bolster his request, he attached an e-mail from the assigned social worker to his attorney, written in response to the attorney’s inquiry about the restrictions on Michael’s visitation. The social worker replied visits had been moved to SSA’s office at the request of minor’s counsel in response to an incident in March 2007. Michael had shown up at one of Dianna’s visits with the children at a park soon after he was released from custody, despite the court order barring visitation until he tested clean. The social worker thought Michael might not have been aware of the order and said she supported visits at the park. She explained the children had enjoyed the one (unauthorized) visit, and the monitor did not express any concern over Michael’s presence.
The petition was considered at a follow-up selection and implementation hearing in late July 2007. SSA and minors’ counsel strongly opposed the request. Minors’ counsel argued Michael was “a really violent man” who lacked control and abused the children and Dianna, and had a long history of disobeying court orders, most recently with the March park visit. Counsel dismissed any claim Michael was unaware of the order, pointing out he was in court when it was made (our examination of the record confirms that was the case). As she put it, “the problem with having . . . this . . . violent person who has a history of not following court orders is that we don’t know on what day he will loose his temper and do something inappropriate once again. That’s why . . . I don’t want them in an open public place in a park.”
The juvenile court denied the petition without an evidentiary hearing. It said Michael was starting his third batterer’s program and “there really hasn’t been a change in [Michael’s] circumstances.” It also found an increase in visitation would not be in the best interests of the children. As the court put it, Michael “really screwed up not only those kids’ lives but the mother who’s desperately trying to improve herself. . . . [H]e’s destroyed his children’s chances or he’s made it so the odds are against them . . . .” The selection and implementation hearing was continued to December 2007 so SSA could assess two prospective adoptive families it had identified.
I
SSA moves to dismiss the appeal as moot on the ground the juvenile court entered a new visitation order at the follow-up selection and implementation hearing in December 2007. It also moves for judicial notice of the December 2007 order. We take judicial notice of the order, but deny the motion to dismiss.
The December 2007 order denied a second modification petition by Michael, [and one by Dianne that is the subject of our related opinion, Dianna H. v. Superior Court (Apr. __, 2008, G039661 [nonpub. opn.] and it ordered visitation “increased” to two hours of monitored visits. But there was no increase. A check of the transcript of the hearing reveals the judge ordered visitation one time a month for two hours. It is hard to see that as an increase over the twice a month for one hour that was set in July 2007.
Generally, “[a]n appellate court reviews the correctness of the judgment based on the record at the time of its rendition. Matters occurring after judgment are ordinarily irrelevant and should not be considered. [Citation.]” (Chyten v. Lawrence & Howell Investments (1993) 23 Cal.App.4th 607, 619 fn. 4.) We see no reason to depart from that rule here.
II
Michael argues it was an abuse of discretion to deny his petition without a hearing. He avers he made progress in abstaining from drugs, and the social worker’s e-mail showed increased visitation would not be detrimental to the children. He is dead wrong.
A parent seeking to modify a prior order must show there has been a change in circumstances, and modifying the order would be in the best interests of the children. (§ 388; In re Kimberly F. (1997) 56 Cal.App.4th 519, 526.) A hearing is required only if the parent makes a prima facie showing of facts which, if proved, would warrant the relief requested. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.)
There was no abuse of discretion in denying this petition without a hearing. Indeed, a weaker case is difficult to imagine. Coming on the heels of seven years of drug abuse, violence, and disobeying court orders, Michael’s four months of sober living showed nothing that approaches a change of circumstances. He had remained drug free and avoided violence for longer periods in the past, only to relapse each time. Most telling is the March visit to the park. Michael was present in custody on February 6, 2007, when the juvenile court ordered no visitation until he was released, and “when he gets out of custody, no visits until he tests and tests clean.” A month later, fresh out of jail, he started off on the wrong foot and went ahead with a visit prior to drug testing. Far from showing changed circumstances, the record shows a disturbing continuation of some of the conduct that led to dependency in the first place.
Nor was there any showing that increased visitation would benefit the children. The juvenile court apparently gave no weight to the social worker’s e-mail approving of the park visit, and rightly so. To be candid, we must question the judgment of the social worker in approving of the visit in violation of a court order. Granted, the social worker seemed confused about Michael’s knowledge of the order. At first, she said she had not discussed the visitation order in correspondence with Michael while in jail, “since I believed he was told at the court hearing.” In the next sentence, she said she thought Michael was unaware of the order because he did not know he could make collect calls while in jail. But that is no excuse. Sensible caution dictates any doubts should have been resolved in favor of obeying the court order – particularly in light of Michael’s history of drug abuse and violence. Just as there was no prima facie showing of changed circumstances, no prima facie showing was made that a change in visitation would be in the children’s best interests.
Since the record supports the finding that Michael failed to make the prima facie required for an evidentiary hearing, the order appealed from must be affirmed.
WE CONCUR: SILLS, P. J., RYLAARSDAM, J.