Opinion
B299322
04-29-2020
In re I.B., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. A.B., Defendant and Appellant.
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Sarah Vesecky, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 18LJJP00470A APPEAL from an order of the Superior Court of Los Angeles County, Jessica A. Uzcategui, Judge. Affirmed. Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Sarah Vesecky, Deputy County Counsel, for Plaintiff and Respondent.
____________________
The juvenile court declared father's eleven-year-old daughter I.B. a dependent child, removed her from father's custody, and placed her with mother, after finding father's heroin abuse posed a substantial danger to I.B.'s health and safety. The court based its finding in part upon I.B.'s report that she feared father because he fell asleep while driving her, he was aggressive with others, including with mother, and, on more than one occasion, she witnessed father smoking a strange smelling substance from a piece of foil.
Father appeals the juvenile court's order terminating dependency jurisdiction and granting mother sole legal and physical custody of the child, with one annual visit for father. He claims the court denied him due process when it refused his request for a contested hearing on the custody and visitation orders. The record disproves his contention. We affirm.
Statutory references are to the Welfare and Institutions Code. When dependency jurisdiction is declared, but a child is not removed from the physical custody of a parent, section 364 directs the juvenile court to hold review hearings every six months after the date of the original disposition hearing and to determine whether continued supervision is necessary. (§ 364, subds. (a) & (c).) The statute mandates that the court "shall terminate its jurisdiction unless the social worker or his or her department establishes by a preponderance of evidence that the conditions still exist which would justify initial assumption of jurisdiction under Section 300, or that those conditions are likely to exist if supervision is withdrawn." (Id., subd. (c).) When the juvenile court terminates its jurisdiction over a dependent child, section 362.4 authorizes the court to make custody and visitation orders that are transferred to a family court file and remain in effect until modified or terminated by the superior court. (In re Roger S. (1992) 4 Cal.App.4th 25, 30 (Roger S.).)
FACTS AND PROCEDURAL HISTORY
On July 10, 2019, the juvenile court held a status review hearing under section 364. In advance of the hearing, the Los Angeles County Department of Children and Family Services (Department) filed a report recommending the court terminate its jurisdiction with a family law order giving sole physical and legal custody to mother, and granting father monitored visitation in a therapeutic setting. The Department reported there were "no safety concerns" for I.B. in mother's care, I.B. appeared to be "very happy and stable under the care of her mother," and the child had "strong familial bonds in the household and . . . a lot of support." As father had not maintained contact with the Department and was not in compliance with his court-ordered case plan, the Department recommended the court terminate father's enhancement services.
Section 364, subdivision (b) directs the child welfare agency to file a report with the court "describing the services offered to the family and the progress made by the family in eliminating the conditions or factors requiring court supervision," together with "a recommendation regarding the necessity of continued supervision."
After announcing its tentative decision to adopt the Department's recommendations, except the therapeutic setting restriction, and to grant father monitored visits with I.B., the court asked if the parties wished to be heard regarding the tentative. Father's counsel said his client opposed the recommendation to terminate jurisdiction. He said father intended to drug test for the Department and asked that I.B. be released to father's custody, with joint legal custody shared between the parents. If the court was not inclined to grant father's request, counsel argued father should be granted unmonitored visitation as the monitored visits had "not been set up so that [father] can visit and communicate with [I.B.]." With that, father's counsel stated, "I submit."
After hearing argument from the minor's counsel, who agreed with the Department's recommendations and the court's tentative decision to grant monitored visits, the court addressed father's counsel:
"THE COURT: [Father's counsel], the court will hear your client's contest now. I don't know if you want additional evidence.
"[FATHER'S COUNSEL]: I have no additional evidence, Your Honor.
"THE COURT: Does anyone else wish to be heard?
"[MOTHER'S COUNSEL]: Yes, Your Honor. Your Honor, we'd like to join with the Department and minor's counsel that this case be closed today. And I will submit as to the matter of visits and the frequency to the court.
"[THE COURT]: [The Department], did you wish to be heard?
"[THE DEPARTMENT]: No, thank you, Your Honor.
"THE COURT: Thank you. The court is deeming father's contest on the sustained allegations in the petition indicating father's current abuse of heroin and methamphetamine as well as the fact that father has had no contact with the Department, and is not in
compliance with any element of his case plan. Has not visited the minor. [¶] The court is denying father's contest. Let's keep services in place. I'm denying father's request for joint legal [and] physical custody, and denying father's request for unmonitored visits."
The juvenile court found conditions no longer existed that would justify jurisdiction under section 300, and terminated jurisdiction with a custody order granting mother sole legal and physical custody of I.B. and father one monitored visit a year.
The court stayed termination of jurisdiction pending receipt of a proposed custody order. The court then asked father's counsel: "Anything further?" Counsel responded: "Just that the court's order and findings regarding custody and visitation would be over father's objection, Your Honor."
The court issued a minute order memorializing its custody and visitation orders, noting the orders were over father's objection. The minute order stated: "The Court denies father's request for a contested hearing, father's request for joint physical/legal custody of the minor and father's request for unmonitored visitation at [t]his time." Father filed a notice of appeal from the termination of jurisdiction and the custody and visitation orders.
DISCUSSION
"When the juvenile court terminates its jurisdiction over a dependent child, section 362.4 authorizes it to make custody and visitation orders that will be transferred to an existing family court file and remain in effect until modified or terminated by the superior court." (Roger S., supra, 4 Cal.App.4th at p. 30.) Because section 362.4 empowers the juvenile court to fashion termination orders, it also presumptively authorizes the court to consider evidence relevant to that task. (Roger S., at p. 30 [disagreeing with holding of In re Elaine E. (1990) 221 Cal.App.3d 809 that section 364 directs the court to focus exclusively on the question of whether continued supervision is necessary and precludes the court from taking evidence on visitation orders]; accord In re Michael W. (1997) 54 Cal.App.4th 190, 196 (Michael W.) [agreeing with Roger S. and rejecting In re Elaine E. holding].)
Father contends the juvenile court denied him due process by refusing his "request for a contested hearing on the custody and visitation issues." Our review of the record confirms the court did no such thing. After the court announced its tentative decision to adopt the Department's recommendations regarding custody and visitation (except with respect to the therapeutic setting restriction), the court invited the parties to offer argument. Father's counsel argued visitation should be unmonitored, citing concerns that father could not adequately communicate with I.B. in a monitored setting. He concluded his argument in unmistakable fashion: "With that, I submit."
Moreover, unlike the juvenile courts in Roger S. and Michael W., the juvenile court here did not refuse to consider evidence relevant to the task of fashioning a custody and visitation exit order. On the contrary, notwithstanding father's submission of his case, after minor's counsel argued in support of monitored visits, the court again invited father to offer any evidence he had in support of his contest. Father's counsel responded, "I have no additional evidence, Your Honor." Father had an adequate opportunity to argue and offer evidence on the terms of the exit order, consistent with the dictates of due process. (Cf. Roger S., supra, 4 Cal.App.4th at p. 28 [juvenile court refused to hear testimony regarding visitation schedule from four witnesses who were prepared to testify at section 364 hearing]; Michael W., supra, 54 Cal.App.4th at p. 193 [juvenile court denied the mother's request for an evidentiary hearing to present expert testimony regarding her improved psychological condition].)
Notwithstanding the reported transcript of the section 364 hearing, father maintains a single sentence in the clerk's minute order proves the juvenile court did in fact deny his request for a contested hearing on custody and visitation. That sentence reads: "The Court denies father's request for a contested hearing, father's request for joint physical/legal custody of the minor and father's request for unmonitored visitation at [t]his time." In view of the clear contents of the hearing transcript, this isolated line from the minute order is insufficient to overcome our presumption of correctness.
It is a fundamental principle of appellate review that the judgment of the trial court is presumed correct. Accordingly, all intendments and presumptions are indulged to support it on matters as to which the record is silent and error must be affirmatively shown. (Denham v. Superior Court of Los Angeles County (1970) 2 Cal.3d 557, 564.) In this case, the hearing transcript clearly demonstrates that the juvenile court gave father the opportunity to present argument and evidence in support of his opposition to the Department's recommendations and the court's tentative decision regarding custody and visitation. While the minute order inconsistently indicates the court denied father a contested hearing, "[c]onflicts between the reporter's and clerk's transcripts are generally presumed to be clerical in nature and are resolved in favor of the reporter's transcript unless the particular circumstances dictate otherwise." (In re Merrick V. (2004) 122 Cal.App.4th 235, 249, citing People v. Smith (1983) 33 Cal.3d 596, 599.)
The circumstances here do not persuade us to depart from the usual presumption. Indeed, the minute order's reference to the denial of a "contested hearing," appears to be drawn from the court's remark that it was "denying father's contest"—a statement that, when read in context, plainly referred to father's opposition to the Department's recommendations regarding custody and visitation. That apparent meaning is bolstered by the fact that, at no point after the court announced its tentative decision, did father's counsel request a contested hearing. Father has not shown the juvenile court denied him due process.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J. We concur:
LAVIN, Acting P. J.
Retired Presiding Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------