Opinion
B230450
11-29-2011
In re JUAN M., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. CINDY M., Defendant and Appellant.
Eva E. Chick, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, Frederick Klink, Senior Deputy County Counsel, and William D. Thetford, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. CK78525)
APPEAL from an order of the Superior Court of Los Angeles County. Marilyn Kading Martinez, Commissioner. Affirmed in part, reversed in part and remanded with directions.
Eva E. Chick, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, Frederick Klink, Senior Deputy County Counsel, and William D. Thetford, Principal Deputy County Counsel, for Plaintiff and Respondent.
Appellant Cindy M. (mother) appeals from the juvenile court's order terminating jurisdiction, awarding custody of her young son Juan to his father Fernando Z. (father), and ordering supervised visitation for mother. Mother argues the court abused its discretion in terminating jurisdiction and awarding custody to father because she was showing progress with the case plan and because she requested, and the Department of Children and Family Services (the Department) recommended, further family reunification services for her. She also argues she was prejudiced by the Department's failure to file or serve its status report in a timely manner. Finally, mother argues the court's visitation order must be reversed because it provides that the "[p]arents agree to arrange duration and frequency of visits," which, in effect, gives father veto power over whether visits will occur at all.
We agree with mother that the visitation order must be reversed. With respect to her remaining arguments, however, we are not persuaded. Accordingly, we affirm in part, reverse in part and remand with directions.
Background
1. Events Preceding Juan's Detention
Mother had a traumatic childhood, growing up in San Diego and Mexico. She was raised by various family members, some of whom abused her. When she was 14 years old, she worked in a Tijuana strip club, where she was raped many times. When she was 15 years old, an uncle gave her methamphetamine and, in return, demanded to have sex with her. Mother reported this to her school nurse and she was placed in foster care, where she stayed from July 2006 to July 2008.
While in foster care, mother met Juan's father. She was about 16 years old at the time; father was in his mid-thirties. Father befriended her and bought her beer. Mother did not want to return to her foster home because she was intoxicated. She went home with father and stayed with him for two weeks, during which time they had sexual intercourse. She eventually returned to her foster home and, soon after, moved into transitional housing. In September 2007, when mother was 17 years old, she gave birth to Juan. Father was not a part of Juan's life and was not sure he was Juan's biological father.
In August 2009, when Juan was almost two years old, police were called to the transitional housing program where he was living with mother. Mother had asked the manager of the housing facility for help in managing her frustration and with parenting skills. She told the manager she had hit Juan with a mop. The manager saw marks on Juan's back and shoulder. He also had a scratch by his eye. The manager called police, who then called the Department.
When interviewed, mother denied abusing Juan. She said she was upset with him after he had poured shampoo into the bathtub and slipped. She said she had accidently scratched his face near his eye on a different day when she was putting a book down. She admitted to drinking and smoking marijuana periodically. Mother showed the social worker Juan's immunization record, which showed his immunizations were up to date. Mother told the social worker that Juan was very active, which the social worker and others also witnessed.
Because of the visible marks on Juan's back and shoulder as well as mother's apparently low frustration level, the Department detained Juan and placed him with a foster family.
2. Section 300 Petition and Related Hearings
A few days later, on August 19, 2009, the Department filed a section 300 petition,alleging mother physically abused Juan, mother had a history of drug abuse, and father failed to provide for Juan. At the initial detention hearing, the juvenile court ordered that Juan remain detained in foster care and that mother receive reunification services and monitored visits. Father's whereabouts were unknown and he did not appear at the hearing, although the court found he was the alleged father.
All section references are to the Welfare and Institutions Code.
Father appeared at the next hearing. At that time, he was living in an abandoned building in Compton. He requested, and the court ordered, a paternity test. The court also ordered mother to submit to random drug testing.
At the December 31, 2009 hearing on the petition, the juvenile court sustained the petition as amended and declared Juan a dependent of the court. Based on the results of the paternity test, the court found father to be Juan's biological father. The court ordered Juan referred to the Regional Center and family reunification services for mother. In particular, mother was ordered to participate in counseling and to continue with random drug testing. The court ordered monitored visits for both mother and father. Father indicated that, since learning he was Juan's biological father, he wanted to take responsibility for him and, therefore, would take steps toward requesting presumed father status. At the close of the hearing, the court advised mother of the importance of substantially complying with her case plan. The court indicated, if mother failed to do so, it could lead to termination of her parental rights. Mother indicated she understood.
The juvenile court amended the section 300, subdivision (a) allegation against mother to state mother had "inappropriately physically disciplined" Juan (instead of physically abusing him) and the section 300, subdivision (b) allegation against father to reflect that father had been located. The court sustained those allegations as amended and dismissed the remaining counts.
In May 2010, father filed a request to change a court order, seeking presumed father status and that Juan be placed with him. Father indicated that, since December 2009, he had visited Juan every week and had developed a strong relationship with his son. He had also provided Juan's foster parents with food, clothes and toys. He said he had a stable home and a job and was ready to provide a safe and nurturing home for Juan. Juan's foster parents confirmed father visited every week, called every day to check on Juan, and provided food, clothes and toys. Father's fiance had also been visiting Juan with father and had formed a good relationship with Juan as well. The social worker visited father's home and found it appropriate for Juan.
At the July 2, 2010 hearing on father's request to change the court's order, mother objected to father's request that Juan be placed with him. Mother was concerned not only in light of her past experience with father—namely, his decision to have a child with her when she was only 16 years old and he was almost 20 years older than her—but also because of father's current living situation and his lack of counseling to address his poor judgment in the past. Mother said she had been to his home and did not believe it was a safe environment for Juan. She asked that Juan remain in foster care until the next review hearing.
Over mother's objection, the juvenile court granted father's request. The court found him to be Juan's presumed father, placed Juan with him, and ordered family maintenance services for him. The court noted that, since paternity had been determined, father had "made a full commitment to this child. . . . He has maintained regular visitation. He has cooperated with the social worker. . . . [H]e has the ability to properly parent this child. Perhaps at all times in our lives or sometimes in our lives we all make certain mistakes."
At that same hearing, which was also a review hearing, the court noted mother had only recently begun complying with the court's orders, had missed many drug tests and had been inconsistent with her visits with Juan. In its report filed with the court the day before the hearing, the Department indicated that, for the past six months, mother had not been in compliance with the court orders. In particular, she had not completed any program (she only recently enrolled in a substance abuse program), her visits with Juan were inconsistent (she had only visited him five times), and had only made three out of eleven drug tests (the results for which were negative). But, because mother was making some progress, the court ordered family reunification services continued for her. In light of a conflict between mother and father, however, the court ordered that father not be the monitor for mother's visits with Juan. Mother did not appeal any of the court's findings or orders from the July 2010 hearing.
The court set the next hearing for December 2, 2010. The court stated that hearing would be "both a 364 and a .21(f)."
3. Termination of Jurisdiction, Custody and Visitation Order
At the start of the December 2, 2010 hearing, the juvenile court noted the Department had filed its status report with the court just that day and had failed to give timely notice of the hearing. Counsel for mother and father both said they had received the report only that morning. No one asked for a continuance, and the court proceeded with the hearing, saying it had read the report as well as the attached progress reports. The court's minute order for the hearing indicated it was a "JR364 as to father and P21F as to mother." Similarly, the Department's report stated the "matter is before the court for a 21(f) 12 month review hearing for mother and a 364 review hearing for father."
In its late-filed status report, the Department stated Juan was "thriving in the home of father." It also indicated Juan was no longer a Regional Center client and that father had told the Department Juan was developmentally on target. The social worker was "highly encouraged by the child's continued healthy development within the caring and loving environment created by his father."
As to mother, the Department noted she had been enrolled in court-ordered classes since June 2010 (after having been ordered to do so in December 2009) and had earned various certificates, including perfect attendance and most improved. Her case manager reported that mother demonstrated motivation to complete the program and that she "continues to show improvement and increased maturity." Mother also had consistent and positive visits with Juan. And she continued random drug testing. Although the Department's report stated mother received negative test results except for one recent positive test for marijuana, the record includes a report stating mother had tested positive for ecstasy twice in September 2010. Father did not have any current safety concerns with mother, but he told the Department social worker that mother had left several messages on his phone, in which she not only "curses him out" but also asked if he wanted to become romantically involved with her again.
At the December 2010 hearing, mother requested, and the Department recommended, additional family reunification services for mother. Counsel for mother noted that, while mother still had work to do, she was making progress. Mother said she wanted to have her son back. The Department argued it was "in the child's best interest" to continue family reunification services for mother. It stated that, because mother was "actively participating in her court ordered classes and has maintained consistent and appropriate visitation it is recommended that Family Reunification Services be continued for mother." In addition, the Department recommended that Juan remain with father and, assuming mother continued to comply with the case plan and progress with her court-ordered programs, requested that it be allowed to liberalize mother's visits to include overnight visits.
Father argued there was no risk to Juan in father's custody and that the court should terminate jurisdiction. Father said he was able to provide a stable and safe home for Juan. Counsel for Juan agreed with father's position. Although they requested further reunification services for mother, neither she nor the Department argued against Juan's continued placement with father.
In deciding to terminate jurisdiction, the juvenile court stated "the focus is on whether or not the child is at risk. The child is not at risk in his father's custody. Father has been fully compliant and cooperative. He has taken good care of Juan and Juan is not at all at risk in his custody." As to mother, the court stated it did not have "any information or any evidence that she's making substantial progress addressing the issues which in part [] brought her child before this court." And, noting the 18-month date was two months away, the court held that "while there's compliance, there's not substantiated progress and I can't find even with two more months of family reunification, there's a substantial likelihood that [mother] would complete all of her treatment goals."
In its order terminating jurisdiction, the juvenile court granted legal and physical custody to father. The court also ordered supervised visits for mother. Its visitation order stated "Parents agree to arrange duration and frequency of visits" and that the visits would be supervised by a "monitor approved by Father." The court indicated visits were to be supervised because mother had not completed all of her court-ordered programs.
Mother appealed the court's December 2, 2010 order.
Discussion
1. Standard of Review
We review the juvenile court's custody order and visitation order for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re R.R. (2010) 187 Cal.App.4th 1264, 1284.) "'The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.'" (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319.) There is no abuse of discretion when the record contains substantial evidence supporting the findings and the decision. (In re Kevin F. (1989) 213 Cal.App.3d 178, 186.) "We must indulge all reasonable inferences to support the decision of the juvenile court and will not disturb its findings when there is substantial evidence to support them." (In re Michael D. (1987) 188 Cal.App.3d 1392, 1395.)
2. Custody and Termination of Jurisdiction
Mother contends the juvenile court abused its discretion when it terminated jurisdiction and granted custody to father. Although her arguments on appeal are not entirely clear, she appears to argue (a) the court abused its discretion in awarding custody to father because she "was ready to have Juan returned to her care at the [December 2, 2010] section 366.21, subdivision (f) hearing," (b) under section 364, the court should have continued its supervision of father, and (c) she was prejudiced by the Department's failure to file and serve its December 2, 2010 status report in a timely manner. Because the Department recommended continued reunification services for mother before the juvenile court, it did not take a position on appeal and did not file a respondent's brief.
After reviewing the record, we asked the parties to file letter briefs addressing whether the juvenile court had applied section 361.2 as well as whether the court had considered Juan's best interests. Because it disposes of most of mother's arguments, we address the application of section 361.2 first.
The parties correctly agree that the juvenile court erred at the December 2010 hearing when it applied section 364 instead of section 361.2. The parties disagree, however, whether the court's error was harmless or prejudicial (and therefore reversible error). We agree with the Department and conclude the error was harmless.
Section 361.2 governs cases such as this one where a child is removed from the custody of one parent (here, mother), is placed with the previously non-custodial parent (here, father), and the custodial parent or both parents are given reunification services. (See In re Nicholas H. (2003) 112 Cal.App.4th 251, 262.) Under section 361.2, the juvenile court has discretion to order the previously noncustodial parent to assume custody subject to the jurisdiction or supervision of the court. (§ 361.2, subd. (b)(2)-(3).) The court has broad discretion under subdivision (b) of section 361.2 to provide reasonable visitation to the offending parent and to provide reunification services to one or both parents. (§ 361.2, subd. (b)(1)-(2).)
Under section 361.2, the juvenile court also has discretion to determine which parent shall have legal and physical custody of the child and then to "terminate its jurisdiction over the child." (§ 361.2, subd. (b)(1).) "When deciding whether to terminate jurisdiction, the court must determine whether there is a need for continued supervision, not whether the conditions that justified taking jurisdiction in the first place still exist, as required under section 364." (In re Janee W. (2006) 140 Cal.App.4th 1444, 1451. See also In re Sarah M. (1991) 233 Cal.App.3d 1486, 1502-1503, disapproved on other grounds in In re Chantal S. (1996) 13 Cal.4th 196 [The standard for terminating jurisdiction is "whether there exists a need for continued supervision."].) In other words, termination of jurisdiction is appropriate if there is no evidence the child would be at risk without continued supervision. (In re Sarah M., supra, at pp. 1502-1503.)
Although the juvenile court here incorrectly applied section 364 instead of section 361.2, "if the evidence on the appropriate issue was undisputed and supports a finding that there is no need for continued supervision, we may affirm the order terminating jurisdiction." (In re Janee W., supra, 140 Cal.App.4th at p. 1452.) Here, by the time of the final hearing, when jurisdiction was terminated, it was undisputed that Juan was doing well and, in fact, was "thriving" in his father's care. The social worker was "highly encouraged by the child's continued healthy development within the caring and loving environment created by his father." This undisputed evidence supports a finding that there was no need for continued supervision.
Although, at the July 2010 hearing, mother objected to Juan being placed with father, she did not object to Juan's continued placement with father at the December 2010 hearing. Rather, at the December 2010 hearing, mother objected to the court terminating jurisdiction because she believed she could benefit from further reunification services. But, in a section 361.2 case such as this, "[t]ermination is not conditioned upon the completion of any court services." (In re Sarah M., supra, 233 Cal.App.3d at p. 1502. See also In re Janee W., supra, 140 Cal.App.4th at pp. 1453-1455.) "[E]ven if reunification services are offered to the previously custodial parent, once the dependency court determines that further supervision of the children in the home of the previously noncustodial parent is not required, the failure to provide adequate reunification services to the other parent does not prevent the court from terminating jurisdiction under section 361.2." (Id. at p. 1455.) Thus, even if mother would have benefited from further services, that was not the proper focus at the December 2010 hearing.
"An appeal from the most recent order entered in a dependency matter may not challenge prior orders, for which the statutory time for filing an appeal has passed." (In re Elizabeth M. (1991) 232 Cal.App.3d 553, 563, abrogated in part on other grounds in In re Tabitha W. (2006) 143 Cal.App.4th 811.) "If an order is appealable [], and no timely appeal is taken therefrom, the issues determined by the order are res judicata." (In re Matthew C. (1993) 6 Cal.4th 386, 393.) The order entered at the dispositional hearing is the "final judgment" and is immediately appealable, along with the jurisdictional order. (§ 395, subd. (a)(1); In re Sheila B. (1993) 19 Cal.App.4th 187, 196.) Subsequent orders are appealable as orders after judgment (ibid.), with the exception of the order terminating reunification services and setting a section 366.26 hearing which must be reviewed by writ. (§ 366.26, subd. (l)(1) In re Merrick V. (2004) 122 Cal.App.4th 235, 247.) Here, the order entered at the July 2010 hearing was an appealable order because it was an order entered after judgment. Mother did not appeal that order and, therefore, she has waived any challenge related to that order.
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We conclude the juvenile court did not abuse its discretion in terminating jurisdiction and awarding full custody to father. As of the December 2010 hearing, it was undisputed Juan was no longer at risk, he no longer needed the protection of the juvenile court, and the court properly terminated jurisdiction. (See In re Janee W., supra, 140 Cal.App.4th at p. 1455.)
b. Mother's arguments
We now turn to mother's arguments on appeal.
First, mother seems to argue the court erred in not awarding custody to her because, as she says in her brief on appeal, she "was ready to have Juan returned to her care at the [December 2010] section 366.21, subdivision (f) hearing," To the extent she makes this argument, it is easily dismissed. Mother never said she was ready to take custody of Juan at the December 2010 hearing. In fact, she (and the Department) requested further reunification services. And, although counsel for mother said she was doing well in her courses, counsel also noted "[o]f course, there's a little more progress to be seen and my client feels she is on her way there." Mother cannot complain on appeal when she never asked the juvenile court for custody. (In re Cheryl E. (1984) 161 Cal.App.3d 587, 603 ["A party on appeal cannot successfully complain because the trial court failed to do something which it was not asked to do."].)
Second, mother claims the juvenile court should have continued its supervision of father under section 364. This argument is also easily dismissed. As already explained, not only is section 364 inapplicable, but mother did not make any such request at the December 2010 hearing. And, although she objected to Juan's placement with father at the July 2010 hearing, she never appealed that ruling. Thus, we do not address the argument here. (See fn. 3 above.)
Finally, mother argues she was prejudiced by the Department's failure to file its status report for the December 2010 hearing in a timely manner (i.e., 10 days before the hearing). It is undisputed that the Department filed the report late and that there was no clear waiver of the defect. Mother claims the requirement to file the report 10 days before the hearing is mandatory and the failure to do so is structural error and reversible per se. To support her argument, mother relies on Judith P. v. Superior Court (2002) 102 Cal.App.4th 535, which held "that any party to a dependency proceeding who did not receive the status report at least 10 days before a prepermanency planning review hearing must be granted a continuance or must expressly waive his or her right to the timely service of such report." (Id. at p. 558.) Mother fails to note, however, that the holding of Judith P. has been eroded by subsequent Supreme Court decisions (see, e.g., In re James F. (2008) 42 Cal.4th 901, and In re Celine R. (2003) 31 Cal.4th 45), and that many courts of appeal have recognized this erosion (see, e.g., In re A.D. (2011) 196 Cal.App.4th 1319, 1326 [noting that, in James F., "the California Supreme Court has cautioned against using the structural error doctrine in dependency cases"]; and In re Sabrina H. (2007)149 Cal.App.4th 1403, 1420, fn. 14 [questioning whether analysis of Judith P. survives after the Supreme Court's decision in Celine R.]).
In James F., our Supreme Court addressed a due process violation related to the appointment of a guardian ad litem. There was no dispute that the process by which the guardian ad litem was appointed did not satisfy due process. Nevertheless, the Court concluded the juvenile court's due process error was not structural. The Court found it appropriate to use a harmless error analysis there because, unlike structural error, prejudice could be determined without "„a speculative inquiry into what might have occurred in an alternate universe.' [Citation.]" (In re James F., supra, 42 Cal.4th. at p. 915.) The Court concluded: "If the outcome of a proceeding has not been affected, denial of a right to notice and a hearing may be deemed harmless and reversal is not required. [Citation.]" (Id. at p. 918.)
Similarly, here, we conclude a harmless error analysis is appropriate. Mother's concern with the late-filed report is that the juvenile court might not have had time to review it or its attachments, which she argues substantiated her progress with her case plan. She claims that, had there been sufficient time to review the report and its attachments, the court might have granted her request for additional reunification services. We are not persuaded by mother's argument. First, the juvenile court indicated it had read and considered the report and the attached progress reports. And, more importantly, as we discussed above, mother's argument ignores the fact that the focus at the December 2010 hearing was not whether mother should have been given further reunification services. Rather, the focus was whether continued supervision was required. It was not. And, "once the dependency court determines that further supervision of the children in the home of the previously noncustodial parent is not required, the failure to provide adequate reunification services to the other parent does not prevent the court from terminating jurisdiction under section 361.2." (Janee W., supra, 140 Cal.App.4th at p. 1455.)
Thus, even if we accept mother's argument with respect to the report, the outcome of the hearing would not have changed. In other words, regardless of mother's progress with her case plan, the court still would have determined continued supervision was no longer required as it was undisputed Juan was "thriving" with his father. Accordingly, the failure to file the status report 10 days before the December 2010 hearing was harmless error.
3. Visitation
Mother argues the juvenile court abused its discretion because, although it ordered supervised visitation for mother, the court failed to specify the frequency and duration of her visits. We agree.
"When a juvenile court terminates its jurisdiction over a dependent child, it is empowered to make 'exit orders' regarding custody and visitation. [Citations.] Such orders become part of any family court proceeding concerning the same child and will remain in effect until they are terminated or modified by the family court." (In re T.H. (2010) 190 Cal.App.4th 1119, 1122-1123.)
"The power to determine the right and extent of visitation by a noncustodial parent in a dependency case resides with the court and may not be delegated to nonjudicial officials or private parties. [Citation.] This rule of nondelegation applies to exit orders issued when dependency jurisdiction is terminated. [Citations.]" (In re T.H., supra, 190 Cal.App.4th at p. 1123.) "A visitation order may delegate to a third party the responsibility for managing the details of visits, including their time, place and manner. [Citation.] That said, 'the ultimate supervision and control over this discretion must remain with the court. . . .' [Citation.]" (Ibid., quoting In re Julie M. (1999) 69 Cal.App.4th 41, 51.) "Several appellate courts have overturned visitation orders that delegate discretion to determine whether visitation will occur, as opposed to simply the management of the details." (In re T.H., supra, 190 Cal.App.4th at p. 1123, citing In re Julie M., supra, 69 Cal.App.4th at pp. 48-51; In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1138; In re S.H. (2003) 111 Cal.App.4th 310, 317-320; In re Donnovan J. (1997) 58 Cal.App.4th 1474, 1476-1478.)
Here, the court ordered supervised visitation for mother, but added that the "[p]arents agree to arrange duration and frequency of visits." This was error. As the custodial parent, father "could conceivably agree to only one visit a year or less without violating the letter of the court's order. This is more than simply a delegation of the authority to set the 'time, place and manner' of the visitation—it effectively delegates to [father] the power to determine whether visitation will occur at all. [Citation.] [Mother's] ability to seek a modification or enforcement of the order in the family court does not solve the problem of this unauthorized delegation." (In re T.H., supra, 190 Cal.App.4th at p. 1123.) Thus, while the juvenile court ordered supervised visitation, it abused its discretion "by framing its order in a way that gave [father] an effective veto power over that right." (Id. at p. 1124.)
Accordingly, the case must be remanded so that the trial court can exercise its discretion in formulating an order that establishes, at the very least, the amount of visitation to which mother is entitled. (See In re T.H., supra, 190 Cal.App.4th at p. 1124.) Because the family's circumstances may have changed since the dependency was terminated, the court should consider any relevant evidence proffered by the parties regarding the terms of the visitation order. (Ibid.)
Disposition
The court's custody order is affirmed in part and reversed in part. The portion of the order regarding visitation only is reversed. In all other respects, the order is affirmed. The case is remanded to the juvenile court for further proceedings consistent with this opinion.
NOT TO BE PUBLISHED.
CHANEY, J. We concur:
MALLANO, P. J.
ROTHSCHILD, J.