Opinion
No. B194013.
February 1, 2007. [CERTIFIED FOR PARTIAL PUBLICATION]
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of the Facts and parts II., III., and IV. of the Discussion.
Appeal from the Superior Court of Los Angeles County, No. CK57657, Daniel Zeke Zeidler, Judge.
Emma Castro for Petitioner.
No appearance for Respondent.
Raymond G. Former, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Judith A. Luby, Deputy County Counsel, for Real Party in Interest.
Children's Law Center of Los Angeles and Martha Matthews for Minor A.V.
OPINION
Ricardo V. (father), father of dependent daughter A.V., petitions for extraordinary writ review of orders setting a permanency planning hearing, terminating reunification services, and granting a Los Angeles County Department of Children and Family Services (DCFS) petition requesting that father's custody, pending the rehearing of a referee's order granting custody to father, be modified to allow monitored visits only. (Welf. Inst. Code, §§ 366.22, 366.26, 388; Cal. Rules of Court, rule 8.452 [former rule 38.1] (hereafter Rule).) We deny the writ.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
In the published portion of the opinion, we conclude that a referee's order is not automatically vacated when a party's request for rehearing before a judge is granted. Pursuant to section 250, that order remains in force until a new order is made after rehearing of the original order or pursuant to other procedures authorizing the court to modify an existing order.
In the unpublished portion of the opinion, we hold that if any error resulted from the dependency court's alternate reading of section 250, such error was harmless, that at any rate father failed to preserve this issue by not raising it in the trial court, and that substantial evidence supported the trial court's orders.
FACTS
A. V., born in September 1999, is the daughter of father and Rachel D. (mother), who is not a party to this proceeding. On January 6, 2005, DCFS detained A. V. from mother and father (parents) after a domestic violence incident on January 2, 2005 in which father allegedly threw mother against a wall in A. V.'s presence. In the section 300 petition, filed January 11, 2005, DCFS claimed parents had a history of engaging in such incidents. In the accompanying detention report, DCFS noted that A. V. currently was and long had been living with her paternal great aunt Pat, Pat's domestic partner Tai, and their two-year-old daughter. For eight months, Pat and Tai (caregivers) had been taking A. V. to therapy for anger and depression arising from A. V.'s worries about her parents' unstable, volatile relationship. A. V.'s therapist reported that the recent domestic violence incident had left A. V. "very scared" and unwilling to go back to "her `daddy's home.'" The therapist reported that A. V. had told her that in addition to pushing mother against the wall, father had pulled out a gun, pointed it at mother, and said "`pow . . . pow. . . .'" A. V. was unsure whether the gun was real or a toy. The detention report, however, also noted that the caregivers had observed father to be affectionate with A. V., and A. V. had told her therapist that she enjoyed father's company. The detention report also recounted the family's earlier history with DCFS, including father's two earlier convictions for domestic violence and parents' failure to follow through on therapy and services DCFS offered them. Various relatives reported other serious violent incidents. DCFS recommended monitored visitation, therapy, and counseling for parents. At the section 300 hearing in January 2005, the dependency court removed A. V. from parents' custody, granted parents only monitored visits, ordered DCFS to provide parents with reunification services, and ordered no use of corporal punishment or discussion of the petition allegations with A. V., who remained with her caregivers. At the jurisdiction/disposition hearing on February 15, 2005, the dependency court sustained the section 300 petition, left all orders in effect, and left A. V. in her caregivers' custody. Through the end of 2005, various sources reported continuing trouble between parents and their sporadic participation in court-ordered therapy and counseling programs. But parents reported that things were better between them, with less verbal and no physical fighting, and that A. V. enjoyed her visits with them and wished to live with them. In late February 2006, a counseling program reported father was consistently attending and participating in therapy. In March 2006, the court allowed mother unmonitored visits and father unmonitored overnight visits as long as both remained in therapy. In May 2006, mother told a DCFS caseworker that she was pregnant and excited about it, father had a good new full-time job, parents had had no further physical altercations for a year, and they were "`ready to have [A. V.] back.'" Yet A. V. was exhibiting troubling behavior. The court found both parents in compliance with the case plan and ordered DCFS to address recommendations to release A. V. to her parents in its next progress report. The court also ordered parents to sign a release for A. V. to have a psychological evaluation and referred the matter to family team decision-making. In June 2006, the social workers and psychologists attending the family team decision-making meeting found the visible power differential between mother and father suggestive of an ongoing domestic violence problem, with mother sitting slumped quietly and making little or no eye contact while father was angry and sarcastic and glowered at the caregivers. The group facilitator concluded that father's intimidating anger and hostility and imperviousness to change or new information made it pointless to hold the scheduled follow-up meeting. Parents again denied or minimized their problems. DCFS recommended that A. V. remain with her caregivers and that family reunification services for parents be terminated. The court set a contested section 366.22 hearing for July 11, 2006. At the July hearing, the dependency court referee heard conflicting testimony, found that A. V. clearly wanted to live with her parents and was not afraid of them, discounted the severity of parents' verbal fighting, and found father to have demonstrated positive changes and maturity in the face of hatred from mother's side of the family. The referee maintained dependency court jurisdiction over A. V. but ended the existing suitable placement order and ordered A. V. placed permanently in father's home. She also found father, but not mother, in compliance with the case plan and terminated mother's reunification services. On July 20, 2006, A. V.'s counsel filed a timely application for a rehearing before a judge, which was granted on August 7. On August 21, 2006, the dependency court judge set the rehearing for August 31; stated that upon the grant of a rehearing, the case's status reverted back to where it stood on July 11, 2006 before the referee's order, thus reviving the suitable placement order that placed A. V. with her caregivers; but modified the suitable placement order to permit A. V. to have an extended visit with father through the August 31 rehearing date. On August 25, 2006, A. V.'s caregivers filed a de facto parent request under Rule 5.534, subdivision (e), to participate in the rehearing. On August 30, DCFS filed an interim review report that provided troubling new evidence about A. V.'s family, including mother's claim that father had "`backhanded [mother] and busted [her] lip'" after mother disclosed that she was having an abortion and would leave him due to his infidelity. Mother said she had lied to the court in July and pretended to have a stable relationship with father for fear of never getting to see A. V. again, but she said that father had not changed, and that A. V. had seen them fighting during parental visits. In mid-July, A. V. told a DCFS caseworker that father had a new girlfriend whom he was going to marry. She later reported that father was treating her badly and had spanked her. Father denied her claims but admitted to spanking her once and telling her to shut up when she was having a tantrum. Other sources made other allegations. The August 30 report noted that father had lied to the court about the state of his home and relationship with mother, had improperly coached A. V. and sought to make her avoid her caregivers, and continued to show aggressive behavior and inappropriate physical conduct. As such, DCFS recommended that A. V. be returned to her caregivers, that parents have only monitored visits, that reunification services be terminated for both, and that the dependency court set a section 366.26 permanency hearing. On August 31, 2006, the caregivers moved for judicial determination of their de facto parent status claim. At the scheduled hearing that day, the dependency judge stated that he felt compelled to continue the rehearing until after the referee resolved the de facto parent request, in case the caregivers got standing to participate in the rehearing. The court suggested continuing the rehearing to September 12, 2006, when a review hearing in the case was already scheduled. Father declined and also refused to allow the caregiver's attorney to participate pending determination of the de facto parent request. The judge reaffirmed his understanding that with the grant of rehearing, the case reverted to its status prior to the July 11 hearing, including the earlier suitable placement order. Because father was planning to leave with his fiancé on their honeymoon on September 6 and would not return until September 14, father's attorney requested that the court extend father's visit until the hearing date or at least until September 6. The court refused to extend father's visit and set a date of September 18. The court informed counsel that it deemed the August 30 DCFS report to be a section 388 petition by DCFS alleging changed circumstances requiring a return to monitored parental visits. The court ordered the parents' visits to revert to monitored status on an emergency basis based on the information in the report. Father's counsel requested that the court allow father to be heard on the change to monitored visitation and to give evidence to challenge the allegations in the report. The court denied the request based on parents' lack of credibility and the need for emergency action. When father's counsel asked, "Is the court making an order regarding placement of the child with a particular party?" the court said no, "It reverts back to the previous [suitable placement order]." Counsel did not correct or object to the court's understanding of the reversion of the case's status. At a hearing on September 12, 2006, the referee granted de facto parent status to one caregiver. At the contested rehearing on September 18-19, 2006, the judge heard testimony from A. V., father, mother, and A. V.'s maternal and paternal grandmothers primarily about alleged physical violence. Mother and the maternal grandmother described other incidents, while father and the paternal grandmother indicated there were none. A. V. and father were questioned about the spanking, alleged harsh words, and his telling A. V. that her caregivers could go to jail if they met her and talked with her. After closing arguments, the judge stated that the "parents are manipulative" and untrustworthy, and that both had lied at the July 11 hearing. The court found that father had unresolved anger management and domestic violence issues and had "made no progress in the case[.]" The court terminated father's reunification services, granted the 388 petition, and allowed parents only monitored visits. The court set a January date for a section 366.26 permanency hearing. Father filed a timely notice of intent to file a writ petition.
DISCUSSION I.
On July 12, 2006, a dependency court referee ordered that A.V. be placed permanently in father's home. After A.V.'s counsel timely sought a rehearing before a judge, which was granted on August 7, on August 21, 2006, the dependency court judge set a rehearing date of August 31 and stated that upon the grant of a rehearing, the case's status reverted back to where it stood before the referee's order, thus reviving the earlier suitable placement order that placed A.V. with her caregivers.
Father contends that the dependency judge erred in vacating, on August 21, 2006, the referee's July 12, 2006 order pending rehearing, because section 250 prohibits a judge from vacating or modifying the referee's order until after a rehearing. (§ 250 "[Subject to limitations in sections 249 251,] all orders of a referee . . . shall become immediately effective . . ., and shall continue in full force and effect until vacated or modified upon rehearing by order of the judge of the juvenile court."].) DCFS, in response, contends that this statutory language should be read to mean that a referee's order may be vacated by a judge's order at any point after a rehearing is granted, even before the actual rehearing occurs, and that the dependency court's declaration that the case reverted to its status before the July 2006 hearing was such an order.
There is some legitimate confusion in the law on this point. It is true that certain dated court opinions indicate that a referee's order like those in this case becomes a nullity upon grant of rehearing. ( In re Anthony M. (1976) 64 Cal.App.3d 464, 468 [ 134 Cal.Rptr. 540]; In re Dale S. (1970) 10 Cal.App.3d 952, 957 [ 89 Cal.Rptr. 499].) The Advisory Committee comment to the later rule 1318, a closely similar predecessor to the current rule 5.540 that was also associated with section 250, however, noted that rule 1318 did not "follow the concept stated in In re Dale S. . . ., that the order of the referee becomes a `nullity' upon the mere granting of a rehearing" and indicated that the referee's order should remain in effect until the dependency judge has reviewed it. (Deering's Cal. Codes Ann., Rules of Court (1980) p. 329.) Although father offers no authority to support his interpretation aside from the plain language of section 250 itself, based on that language and the comment on rule 1318 it appears that section 250 and rule 5.540 should be read straightforwardly to give force and effect to a referee's rehearable order until the matter covered by the order actually has been reheard.
We note that the trial court's actions and statements reflect this interpretation, not that proposed by DCFS, because the trial court apparently did not order that the case revert back to its earlier status, but rather just stated that that is what had happened automatically after the grant of a rehearing.
II.
Accepting father's interpretation, we note that even though the dependency judge repeatedly expressed his understanding that on grant of rehearing the referee's orders were nullified and the status of the case automatically reverted to where it stood before those orders, there is no indication in the record that father ever challenged this interpretation of section 250 in the trial court. Nor did father point out in the record any objection he made to the trial court's interpretation, as required by Rule 8.204(a)(1)(C). ( In re S. C. (2006) 138 Cal.App.4th 396, 406.) As such, father has waived that issue. ( Id. at pp. 406-407; In re Dakota S. (2000) 85 Cal.App.4th 494, 501-502 [appellate court will not consider claims of error where objection could have been presented to trial court but was not].) Were we to reach the merits on this issue under father's interpretation of section 250, we would find any error harmless. Although on August 21, 2006 the trial court declared that the case's status had reverted to the situation before the July 2006 hearing, such that the earlier suitable placement order came back into force, the court modified that order to allow A. V. to remain with father until August 31, which was then the scheduled rehearing date, after which the referee's order would have been nullified anyway. So father suffered no harm to his parental rights during the period from August 21 to August 31. On August 31, the trial court was confronted with the problem of how to handle the caregivers' de facto parent request and reasonably concluded that the rehearing should not go forward until their right to participate in it was determined. Father helped ensure that the hearing could not go forward that day by refusing to agree to allow the caregivers to participate in the rehearing pending that determination. The rehearing would have occurred on September 12, but was continued to September 18 because of father's honeymoon. During the honeymoon days from September 6 to September 14, father was out of state and effectively would not have had A. V. in his custody through that period. So father only was denied custody of A. V. for the first five or six days of September and the three days before the September 18 rehearing. Although under other circumstances this denial of custody might have constituted a technical error, on the facts in this case it did not. For a dependency court has broad discretion to act in what that court finds to be the best interest of a dependent child. ( In re Jose M. (1988) 206 Cal.App.3d 1098, 1103-1104.) We review such exercise of discretion deferentially. ( In re Eric B. (1987) 189 Cal.App.3d 996, 1004-1005.) Here, the dependency court acted on an emergency basis in the light of disturbing new evidence indicating that father's propensity toward domestic violence — the basis for sustaining the section 300 petition in the first place — remained unchanged. Because the court assumed that the case's status had reverted automatically, the court justified only its imposition of monitored parental visits, not A. V.'s removal, on the ground of emergency and changed circumstances, but the same basis would have supported A. V.'s removal from father's home. Father acknowledges that a child may be taken from a parent's physical custody "for a temporary detention period" without the dependency court making section 361, subdivision (c) findings by the clear and convincing evidence standard. (See In re Henry V. (2004) 119 Cal.App.4th 522, 525.)
Although father complains that the dependency court erred by removing A. V. from his custody and then placing her back with him on a visit, if this was error, it was beneficial to father relative to immediate removal of A. V. from his home on August 21. We also note that the situation in this case, in which a child long had been out of a parent's custody, only had been returned briefly by a referee's order that was subject to reversal on rehearing, and was placed back on a visit for only 10 days pending the rehearing, is entirely different from the authorities father cites in which appellate courts reversed trial courts for systematically engaging in a legal fiction at the beginning of the dependency process by finding parents unfit to have custody but nevertheless placing the children back with them on a long-term basis. (See Savannah B. v. Superior Court (2000) 81 Cal.App.4th 158, 161-162; In re Andres G. (1998) 64 Cal.App.4th 476, 480-481; In re Damonte A. (1997) 57 Cal.App.4th 894, 897-899.)
III.
Father also contends that the dependency court erroneously deemed DCFS's August 31 report to be a section 388 petition "for Purposes of Denying Father Custody of His Child, Without Proper Notice to Father." As we have explained, however, the court did not base its removal decision on the August report, but only deemed it a section 388 petition for purposes of modifying the pre-July 2006 suitable placement order to limit parents to monitored visits. In response to father's argument that he was entitled to notice and a chance to challenge the allegations in the DCFS report, the dependency judge noted that section 388 petitions normally are submitted ex parte and that he was acting on an emergency basis based upon the evidence in the report. The same reason we have stated above regarding the discretion of a dependency court to act in a dependent child's best interest applies here. Again, we note that father acknowledges that a child may be taken from a parent's physical custody "for a temporary detention period" without findings of clear and convincing evidence. (See In re Henry V., supra, 119 Cal.App.4th at p. 525.) Moreover, of all the authorities father cites regarding a parent's right to notice in dependency proceedings, none address section 388 petitions. ( In re Claudia S. (2005) 131 Cal.App.4th 236, 247-250; In re Wilford J. (2005) 131 Cal.App.4th 742, 746-752; In re Jasmine G. (2005) 127 Cal.App.4th 1109, 1114; In re Rodger H. (1991) 228 Cal.App.3d 1174, 1181-1183.) We also do not see how father could show that he had any significant probability of a better outcome at the rehearing had he not been denied custody of A. V. for a few days or had there been no change to monitored visits. Thus, even if the dependency court erred in any way on either of these issues, any such error would be harmless.
At the August 31, 2006 hearing, counsel for father indicated an impression that the report was the basis for removal of A. V. from father's custody, but the trial court never did.
IV.
Finally, father argues that the court had insufficient evidence at the September 2006 rehearing to remove A. V. from his custody, to refuse to restore her to his custody, or to terminate his reunification services. In reviewing the sufficiency of the evidence to support a trial court's rulings, an appellate court applies the substantial evidence standard of review, regardless of whether the appropriate standard of proof in the trial court was by clear and convincing evidence or by a preponderance of the evidence. ( In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.) Under this deferential standard of review, father bears the burden to show insufficient evidence, and we must review the evidence in the light most favorable to the trial court's order, drawing all reasonable inferences and resolving doubts in favor of DCFS. (See In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) Under this standard, we find substantial evidence suggesting that father has not yet resolved the domestic violence and anger management problems that initially led to A. V.'s detention. This substantial evidence supports the dependency court's decisions to not return A. V. to father's custody and to terminate reunification services. Father's argument that there was insufficient evidence to remove A. V. from father's custody is inapplicable, because at the rehearing, the baseline from which the trial court conducted its review was the status of the case before, not after, the referee's order. (See §§ 254 [all rehearings of matters heard by a referee are de novo].)
DISPOSITION
The petition for an extraordinary writ is denied.Spencer, P. J., and Vogel, J., concurred.