Opinion
A114699
4-19-2007
In re BARRY L., a Person Coming Under the Juvenile Court Law. SAN MATEO COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. BARNEY L., Defendant and Appellant.
NOT TO BE PUBLISHED
After the juvenile court held a hearing on a petition for modification filed by appellant Barney L.—the father of Barry L., it modified its prior order in a different manner, implementing a recommendation from respondent San Mateo County Human Services Agency. (See Welf. & Inst. Code, § 388.) Barney appeals, contending that the court violated his due process rights by modifying its prior order without providing him with sufficient advance notice of the proposed modification. We affirm the order.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
I. FACTS
The county provided us with a brief record on appeal. We have also taken judicial notice of the record in two earlier appeals involving the same parties. (See Evid. Code, §§ 452, subd. (d)(1), 459, subd. (a).)
Appellant Barney L. is the father of Barry, who was born in December 1997. In September 2004, Barry came to the attention of child protective authorities, having displayed significant aggression and violence. As Barney was incarcerated in state prison with an anticipated release date of July 2007, he was unable to protect or provide for his son. In November 2004, Barry was declared to be a dependent child and placed in a therapeutic group home. Barney was not offered reunification services because of his continued incarceration. (See § 361.5, subds. (b)(12), (e)(1).)
Many of these facts are taken from an earlier appeal in this matter. (In re Barry L. (Jan. 13, 2006, A111182 [nonpub. opn.].) As Barrys mother is not a party to this appeal, we refer to facts pertaining to her role in the dependency proceedings only as they relate to the fathers appeal.
Barney has an "extensive and violent criminal history," and he has been in and out of state prison for nearly 30 years. In the past, he has been convicted of felony threats to a school official, rape, kidnapping, robbery, false imprisonment, and inflicting corporal injury on a spouse. His current incarceration appears to stem from a parole violation.
The issues of visitation and written communication between Barney and Barry arose frequently in the juvenile court proceedings. Initially, the juvenile court barred physical visitation, but permitted written correspondence between Barry and Barney, if Barrys therapist found this to be in the minors best interest. At the six-month review hearing in July 2005, the juvenile court was asked to end written correspondence between Barney and Barry as detrimental to the minor. It denied this request, continuing to allow Barney to have screened letter contact with Barry. It also denied Barneys request to have contact visits with Barry while Barney was still in prison.
We rejected Barneys appeal of this ruling in September 2005. (In re Barry L. (Sept. 29, 2005, A109665 [nonpub. opn.].)
In January 2006, we rejected Barneys appeal of these rulings. (In re Barry L., supra, A111182.)
In September 2005, Barneys counsel filed a petition for modification, asking that the social worker submit reports to the father about Barrys educational and therapeutic progress. Apparently, the juvenile court ordered that he receive monthly reports from the social worker.
At the 12-month review hearing in October 2005, Barneys request for visitation was again denied. At the 18-month review hearing in February 2006, the juvenile court again ordered that any written contact between Barney and Barry be screened by Barrys therapist. Supervised telephone contact between Barney and Barry was to be permitted only if Barrys therapist believed that it would be helpful to the minor and in his best interests.
In June 2006, Barney sought modification of the juvenile courts prior orders. He asked that the court require that the social worker and Barrys therapist send to him monthly updates about Barrys educational, therapeutic, medical and behavioral status, or risk monetary sanctions for failure to do so. He stated that he had received only one report from the social worker in a year and that the therapist had sent no updates during that time.
Barney also asked the juvenile court to compel Barrys therapist to help the minor respond to Barneys letters. Barney stated that Barry had said that he wanted to write to his father, but did not know how to do so. He stated that Barry had not written to him in a year and that the therapist was not helping the minor write letters to Barney. A June 19, 2006 hearing date was set for Barneys request.
In the report prepared three days before the hearing on Barneys petition for modification, the agency stated that, according to Barrys therapist, Barry has been hesitant to or has refused to write letters to Barney since September 2005. Barrys former court-appointed advocate noted before her assignment ended in December 2005 that the minor did not mention Barney. Photographs and correspondence have been sent to Barney about the minors progress almost every month.
Barry did not have an advocate after 2005.
In May 2006, Barney had spoken accusingly with the social worker and wrote a threatening letter to her. A copy of the letter was attached to the report, along with a letter that Barney sent to the social workers supervisor criticizing her handling of his sons case.
The agency did not recommend approval of Barneys request for modification. Instead, it recommended that it only be required to provide reports to Barney on a quarterly, rather than a monthly, basis, stating that the more frequent reports did not give sufficient time to report any changes. The agency did not file its own petition for modification. Its report was not filed until the date of the hearing.
Barney did not attend the hearing, but was represented by counsel, who asked that the agency be required to comply with the juvenile courts prior order. The juvenile court expressed concern about the safety of the social worker assigned to the case, citing the "erratic, disturbed nature" of Barneys letter to her. It vacated the order requiring the social worker to report to the father monthly and agreed that quarterly correspondence and photographs would be sufficient.
II. DISCUSSION
On appeal, Barney first purports to challenge the juvenile courts authority to modify its own order in response to an agency recommendation because the agency did not file and notice a formal petition for modification pursuant to section 388. He cites In re Lance V. (2001) 90 Cal.App.4th 668, in support of this claim. His case predates recent decisions by the California Supreme Court on a related issue and other appellate courts rejecting the requirement of a section 388 petition as a prerequisite to a juvenile courts authority to modify its prior orders. (See Nickolas F. v. Superior Court (2006) 144 Cal.App.4th 92, 98-99, 110-116 (Nickolas F.); see also Le Francois v. Goel (2005) 35 Cal.4th 1094, 1096-1097, 1108-1109.)
In his reply brief, Barney abandons this argument, focusing instead on whether he received sufficient notice of the specific modification that the juvenile court ultimately made. He argues that he was not given sufficient notice of that request in advance of the hearing, such that he had no opportunity to seek a contested hearing on it. He urges us to conclude that the agencys request set out in its report filed on the date of the hearing did not provide him with sufficient advance notice to comply with due process. For this reason, he urges that we reverse the juvenile court order.
A juvenile court may modify its own order as it deems proper, subject to statutory procedural requirements. (§ 385; Nickolas F., supra, 144 Cal.App.4th at p. 116.) A modification order cannot be made unless prior notice of the application has been given to various parties, including the parent. (§ 386; Nickolas F., supra, 144 Cal.App.4th at pp. 111-112, fn. 16.) One means of seeking a modification of a juvenile court order is to file a petition for modification. (§ 388, subd. (a).) A juvenile court may also modify its prior orders sua sponte, as long as the parties are provided with notice and an opportunity to be heard before modification is made. (Nickolas F., supra, 144 Cal.App.4th at pp. 98-99, 110-116; see Le Francois v. Goel, supra, 35 Cal.4th at pp. 1096-1097, 1108-1109.)
In this matter, Barney was noticed that there would be a hearing to consider possible modification to the prior juvenile court order when he made the request for modification that resulted in the hearing. The question before the juvenile court at that hearing was whether its prior order should be modified and, if so, in what manner. At that hearing, his attorney was present and was given an opportunity to speak. She did speak on his behalf, noting that she had no evidence to offer on the matter. The juvenile court did not adopt Barneys proposed modification, instead endorsing the agencys recommendation on the same issue. When it did so, the juvenile court expressly acted to shield the agencys social worker from Barneys abusive behavior. Thus, even though the agency recommended this result, it appears that the juvenile court can also be deemed to have acted sua sponte.
Barney argues that he was not given sufficient notice of the specific modification that the agency sought and that the juvenile court ultimately approved when he was given notice of the hearing on his own request for modification of the same order. If we were to adopt this reasoning, a juvenile court could only issue orders that were precisely limited by the specific notice given by the parties giving notice of the hearing. We view this approach as unnecessarily limited, as insufficiently grounded in the best interests of the minors that the juvenile court is charged to protect, and as an attempt to circumvent the holding of Nickolas F., supra, 144 Cal.App.4th 92. Once an issue is properly noticed and the parties have an opportunity to be heard on that issue, the juvenile court may fashion whatever order it deems necessary to address the concerns brought out at the hearing on that issue, even if the order ultimately entered varies in some respects from the specific order sought by the moving party.
In this matter, we are satisfied that the issue of modification of the prior order was properly noticed and that Barney had an opportunity to address the juvenile court about this issue at the hearing. As the juvenile court had authority to modify its prior order on the specific issue before that court sua sponte, we are satisfied that Barneys due process rights were not violated. (See Nickolas F., supra, 144 Cal.App.4th at pp. 98-99, 110-116.)
The order is affirmed.
We concur:
Ruvolo, P.J.
Rivera, J.