Opinion
B293438
05-15-2020
In re I.V., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. D.V., Defendant and Appellant.
Law Office of Robert McLaughlin, Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant D.V. Janette Freeman Cochran, under appointment by the Court of Appeal, for C.A.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17LJJP00285A-B) APPEAL from an order of the Superior Court of Los Angeles County, Steven Ipson, Commissioner. Affirmed. Law Office of Robert McLaughlin, Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant D.V. Janette Freeman Cochran, under appointment by the Court of Appeal, for C.A.
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Appellant D.V. (Father) threatened his children's mother, C.A. (Mother), with a semiautomatic firearm and then threatened to kill himself, in the presence of one of his sons. As a result, Father was convicted of assault with a semiautomatic firearm, and is incarcerated. At sentencing, the criminal court issued a domestic violence protective order prohibiting Father from contacting Mother for ten years. Concurrently, the Department of Children and Family Services (DCFS) initiated a Welfare and Institutions Code section 300 proceeding regarding the couple's two small sons, I. and R. The juvenile court awarded sole legal and physical custody of the children to Mother and ordered them removed from Father. Over Father's objection, it declined to order visitation or contact between the children and Father, as a consequence of the criminal protective order. Father contends the visitation ruling was an abuse of discretion. We affirm the order.
All further undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Consistent with our standard of review, we state the evidence in the light most favorable to the juvenile court's findings, resolving all conflicts and drawing all reasonable inferences to uphold the court's orders, if possible. (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1216.)
Father and Mother have two children together, I. (born in September 2012) and R. (born in April 2017). In October 2017, the children resided with Mother; Father lived in another residence with his mother.
In October 2017, the family came to DCFS's attention due to a domestic violence incident. As described in an incident report from the Lancaster's Sheriff's station and interviews conducted by DCFS, on the evening of October 28, 2017, Father and Mother were running errands together and began arguing. Six-month-old R. was in the back seat. Father was acting bizarre and paranoid. He believed they were being followed, Mother was wearing a "wire," and she was setting him up to be attacked by unknown persons. Father drove into the desert near 110th Street West and B Avenue, repeatedly stating, " 'someone is going to die today, either you or me.' " He parked the car, told Mother to get out of the car, and retrieved a black, semiautomatic handgun from the trunk. He stated, " 'see, this is what happens when you want to get me in trouble and take my kids away.' " Father removed the magazine to show Mother, rechambered it, and fired a shot toward the mountains. He pointed the gun at Mother and stated that he would kill her or himself. She pleaded with him to stop. He then pointed the gun at his own head, began to cry, threw the car keys into the car, and told Mother to leave and have someone else raise his children. Mother ran to the car but before she could drive away, Father grabbed her cellular telephone and walked away into the darkness. As she was driving off, she heard what she believed was a gunshot. Then she saw Father limping back toward the street. Using the vehicle's "On Star" system, she called 911. According to Mother, Father was addicted to methamphetamine and had unaddressed mental health issues and violent tendencies. Mother suspected Father was under the influence of narcotics during the incident.
As a result of his conduct, Father was charged with a variety of criminal offenses, including assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b)). Mother obtained an emergency protective order against Father on behalf of herself and the two children.
The emergency protective order expired on January 3, 2018.
On December 20, 2017, DCFS filed a juvenile dependency petition and a detention report on behalf of I. and R. pursuant to section 300, subdivisions (a) (substantial risk that child will suffer serious physical harm) and (b)(1) (failure to protect), based on the couple's history of domestic violence and Father's substance abuse. In addition to the October 2017 incident, the detention report recounted a 2013 incident of domestic violence, in which Father, angry at Mother, punched out a car window with one hand while holding I. in the other; he also smashed a cellular telephone against a wall to prevent its use. Mother and her mother suffered minor cuts from the shattered glass; I. cried in fear when the window broke, but was apparently uninjured. Father pled guilty to inflicting corporal injury on a spouse or cohabitant (Pen. Code, § 273.5, subd. (a)), a misdemeanor, and was sentenced to 120 days in jail. The detention report also related that I. stated Father was " 'mean and nice,' " and was mean when he " 'put something around mom's neck and tried to hurt her.' "
The juvenile court determined that DCFS had established a prima facie case the children were persons described by section 300, detained them from Father, and released them home to Mother. The court ordered monitored visits for Father by a DCFS-approved monitor in a DCFS-approved setting, to occur after Father's arraignment on the petition.
On January 23, 2018, Father pled no contest to assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b)) in the criminal proceeding, and the other criminal charges were dismissed. On February 14, 2018, the criminal court sentenced him to six years in prison, with a scheduled release date of August 2022. It issued a "criminal protective order—domestic violence" pursuant to Penal Code section 136.2, subdivision (i)(1), using Judicial Council Form CR-160. That order prohibited Father from having any contact with Mother, either personally or through a third party, except through an attorney of record, for a 10-year period. Item 16 of the CR-160 form contains a box that may be checked, allowing an exception to the no-contact order, for the safe exchange of children and court-ordered visitation. The criminal court did not check box 16. Item 10 of the order prohibited Father from taking any action to obtain the addresses or locations of the protected person or their family members. The order stated that any family or juvenile court order for visitation "must not conflict with the provisions of this [criminal protective] order." The order did not list the children as protected persons.
In subsequent dependency proceedings, Father pled no contest to the section 300 petition. The juvenile court sustained the petition as to two of the section 300 counts, struck the other two counts, declared the children dependents of the court, ordered them removed from Father, and maintained them in Mother's custody. It ordered monitored visitation for Father, with DCFS to assess visitation at his place of incarceration and possible monitors.
In September 2018, DCFS reported that the children were doing well with Mother and recommended termination of jurisdiction, with Mother to have sole legal and physical custody. As to visitation with Father, DCFS observed that the children's paternal grandmother, A., had been approved to transport the children to visit Father at Wasco State Prison. However, while A. was in the process of being cleared by the prison, Father was moved to a new facility that was almost five hours away from the family's residence in Palmdale. DCFS recommended Father have monitored visits in a therapeutic setting.
At an October 10, 2018 hearing, the juvenile court found that the conditions justifying initial assumption of jurisdiction under section 300 no longer existed, and terminated jurisdiction. It awarded Mother sole legal and physical custody of the children.
Father does not challenge these rulings.
The parties then discussed the issue of visitation for Father. DCFS recommended that any visits be in a monitored, therapeutic setting. Father's counsel expressed concern that the therapeutic setting requirement would make visits impossible during Father's incarceration. Counsel pointed out that the paternal grandparents had expressed their willingness to coordinate monitored visits with Father every other month. Counsel for DCFS responded that if the court omitted the therapeutic setting requirement, monitored visits should occur only on the recommendation of a therapist. DCFS counsel stated, "This is a very emotionally charged case where the father pointed a gun at himself in the child's presence and threatened to kill himself and subjected the child to emotional [distress]."
Mother objected to visitation at the prison. Her counsel expressed concern that Father's place of incarceration was distant, and visits would likely involve overnight stays. "So even with the paternal grandparents monitoring . . . that would just be a bit much for the children." Moreover, Mother did not wish to "put the children through seeing their Father in prison." Counsel for the children suggested that Father should be permitted letters and telephone calls with the children while incarcerated, "and then monitored visits by someone other than the Mother."
The juvenile court initially stated its inclination to order visitation as follows. "Father, at this time would receive monitored visits. The visits to be monitored by any party agreed upon between the parents, not to include the mother. If no party is agreed upon, a paid professional monitor paid for by the father. [¶] . . . [T]he visits should be on any schedule agreed upon between the parents. If no schedule is agreed upon, the visits will be once every six months in compliance with the custodial policies. The father . . . may receive phone calls, and may enjoy phone calls and letters with the minors. And those may be monitored at the mother's discretion. [¶] . . . [¶] So if she wants to pick up the phone and listen in, she can."
At that point, counsel for Mother objected and alerted the court to the criminal protective order. The court examined the order, and observed it precluded contact between Father and Mother. Consequently, it ruled, "The court's not going to order any visitation because of the protective order." Father's counsel objected that the children were not listed as protected persons. He proposed that visits could be coordinated through the paternal grandparents or another person without violating the criminal protective order. In his view, "communication with the paternal grandparents is not a third party communication. The paternal grandparents set up the whole visit and . . . could relay that info to the father. Then he would not be communicating to the mother through them. So I don't think it would violate the terms of the order." Counsel for the children opined that there was no showing visitation was detrimental to the children, and argued that letters, phone calls, and visitation every six months was appropriate.
The court declined to order visitation or contact. It reasoned that it lacked authority to make orders that conflicted with the criminal protective order. Mother had sole physical and legal custody, and could not have contact with Father through a third party, except an attorney of record. "So my interpretation is even that contact [through the grandparents] would not be allowed." "If the grandparents are setting up the visits, then they are communicating with the mother as far as when the visits would be. I am uncomfortable and would decline to mix any orders potentially so I am going to order no visitation and I'm not going to order phone calls or letters. I don't believe that I can, in compliance with the criminal order." The court noted that the order could be modified by the criminal court at any time, and Father could seek such modification. The court's minute order stated, Father "is to have no visits pursuant to the terms of the Criminal Court protective order."
DISCUSSION
Father appeals the juvenile court's exit order insofar as it denies him visitation and contact with his sons. He argues that the court abused its discretion by denying him visitation and contact with the children, which was contrary to their best interests. In his view, the criminal protective order does not bar visitation arranged by the paternal grandparents, and the court erred by concluding otherwise. In any event, he urges, the court had the authority to override the criminal protective order, and, by "deferring" to it, "abdicated" its responsibility to make appropriate visitation orders. For the first time in his reply brief, he asserts that the California Rules of Court and a Los Angeles County local rule required that, if the juvenile court determined visitation or contact was in the children's bests interests, it was required to communicate with the criminal court to seek modification of the order.
1. Applicable legal principles
Section 362.4, subdivision (a), authorizes a juvenile court to make "exit orders" regarding visitation when it terminates jurisdiction. (In re Chantal S. (1996) 13 Cal.4th 196, 202-203; In re Armando L. (2016) 1 Cal.App.5th 606, 616; In re Jesus M. (2015) 235 Cal.App.4th 104, 111, fn. 11; In re J.T. (2014) 228 Cal.App.4th 953, 959.) "The power to determine the right and extent of visitation by a noncustodial parent in a dependency case resides with the juvenile court . . . ." (In re Armando L., at p. 616; In re S.H. (2011) 197 Cal.App.4th 1542, 1557; In re T.H. (2010) 190 Cal.App.4th 1119, 1123.) In making an exit order, the best interests of the child, in the context of the peculiar facts of the case, are paramount. (In re Chantal S., at p. 201; In re John W. (1996) 41 Cal.App.4th 961, 973; cf. In re J.P. (2019) 37 Cal.App.5th 1111, 1119.)
The juvenile court has broad discretion in fashioning a visitation order, and we review such an order for abuse of discretion. (In re S.H., supra, 197 Cal.App.4th at pp. 1557-1558; In re Alexandria M. (2007) 156 Cal.App.4th 1088, 1095; In re J.P., supra, 37 Cal.App.5th at p. 1119.) We may not disturb the order unless it exceeds the limits of legal discretion and was arbitrary, capricious, or patently absurd. (In re M.R. (2017) 7 Cal.App.5th 886, 902; Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300.) During a reunification period, a juvenile court must safeguard visitation because "the focus of the proceedings is to promote reunification of the children with their parents." (In re D.B. (2013) 217 Cal.App.4th 1080, 1094.) "Visitation during the postreunification period, however, is governed by different statutes, which focus on permanency and stability for the child." (Id. at p. 1090.)
Penal Code section 136.2, subdivision (i)(1) provides that a 10-year postconviction protective order may be imposed when a defendant is convicted of a domestic violence offense. (People v. Beckmeyer (2015) 238 Cal.App.4th 461, 465; People v. Caceres (2019) 39 Cal.App.5th 917, 921.) Such a protective order is authorized when the crime qualifies as a domestic violence offense, and the protected person qualifies as a victim. (People v. Beckmeyer, at p. 466.) A criminal protective order issued pursuant to Penal Code section 136.2, against a defendant charged with domestic violence, takes precedence in enforcement over any conflicting civil court order, except an emergency protective order. (Pen. Code, § 136.2, subds. (c), (e)(2); Lugo v. Corona (2019) 35 Cal.App.5th 865, 869-870; In re B.S. (2009) 172 Cal.App.4th 183, 191.)
There is no dispute that Father was convicted of a domestic violence offense, or that Mother was the victim.
2. Application here
On the facts of this case, the juvenile court did not abuse its discretion by finding that court-ordered visitation or contact, as a practical matter, would run afoul of the criminal protective order. As noted, the criminal protective order prohibited Father from contact with Mother, including through a third party. When the juvenile court's exit order was made on October 10, 2018, I. had just turned six, and R. was approximately a year and a half old. Given the children's ages and the fact Mother had sole legal and physical custody, phone calls and letters could not realistically occur without Mother's involvement. The children were too young to telephone Father on their own, and calls from Father to them would necessarily be answered by Mother. Letters from Father arriving at Mother's residence would likewise necessitate contact with her. R. was obviously too young to read, and it was likely I. would need Mother's assistance understanding such letters, even if he possessed rudimentary reading skills. Thus, Mother's assistance would bring her directly into contact with Father, in violation of the order. And, the order required that Father take no action to obtain the address or location of the protected person "or their family members," further precluding letters. (Italics added.)
As to visitation, even if the paternal grandparents were willing to facilitate trips to the prison, such visits could not occur without contact between Mother and Father via third parties, the grandparents. As the juvenile court reasoned, Father would have to contact his parents to discuss scheduling, and the grandparents would then have to relay this information to Mother to coordinate a visit. In short, to arrange visits between Father and the children, the paternal grandparents would necessarily act as third party intermediaries between Father and Mother in violation of the protective order's prohibition on contact through a third party. Father cites no authority stating that such a procedure is not the equivalent of a third party contact.
On the facts of this case, therefore, where Father is incarcerated, Mother has sole custody of two very young children, and visits between Father and the children thus would have to be coordinated by Father's relatives and Mother, the juvenile court did not abuse its discretion by concluding the criminal protective order barred such a procedure.
To the extent Father argues the juvenile court had the authority to override the criminal protective order in the case of a conflict between it and a proposed visitation order, he is incorrect. (§ 136.2, subd. (e)(2); In re B.S., supra, 172 Cal.App.4th at p. 191 ["the Legislature has provided that a restraining order issued by a criminal court against a defendant charged with domestic violence 'has precedence in enforcement over any civil court order against the defendant' "]; Los Angeles Superior Court Local Rules, rule 8.34(a) [recognizing "statutory requirement that criminal protective orders have precedence over all other contact orders"].) The protective order itself states that it takes precedence in enforcement over any conflicting civil court order.
The authorities Father cites for the proposition that the juvenile court "abdicated its sole responsibility to make appropriate visitation exit orders" are inapposite. (In re S.H. (2003) 111 Cal.App.4th 310; In re C.C. (2009) 172 Cal.App.4th 1481, 1489; In re Christopher H. (1996) 50 Cal.App.4th 1001, 1008-1009.) In In re S.H., the juvenile court ordered visitation to occur at a social worker's office, as part of reunification services. The order specified that visitation was not required if the children refused visits. (In re S.H., at p. 316.) The appellate court reversed, reasoning that visitation is an integral part of any unification plan and a court may not delegate to a third party—such as DCFS, a social worker, or a child—the determination that visitation will occur. (Id. at pp. 317-318.) Instead, "the power to decide whether any visitation occurs belongs to the court alone." (Id. at p. 317; see In re C.C., at p. 1489 [same]; In re Christopher H., at pp. 1008-1009 [juvenile court's order that Father be allowed "reasonable" supervised visits was not an unlawful delegation of the power to set visitation to the Department of Social Services].) None of these cases addresses the interplay between a criminal protective order and a juvenile court's visitation orders, and none holds that a juvenile court may simply disregard a criminal protective order and issue a conflicting order. A quotation Father mistakenly attributes to one of these authorities appears to come from In re William T. (1985) 172 Cal.App.3d 790, 797. But William T. does not assist Father either. There, the conflict was between conflicting visitation orders issued by a juvenile court and a superior court; no criminal protective order was at issue.
For the first time in his reply brief, Father argues that California Rules of Court, rule 5.445 and Los Angeles County Superior Court Local Rules, rule 8.34(d) required the juvenile court to communicate with the criminal court to seek modification of the criminal protective order. Father did not make this argument in the trial court, and he raises it for the first time in his appellant's reply brief. We therefore deem it forfeited. (In re Anthony Q. (2016) 5 Cal.App.5th 336, 345 ["[T]he forfeiture doctrine applies in dependency cases and the failure to object to a disposition order on a specific ground generally forfeits a parent's right to pursue that issue on appeal."]; In re S.B. (2004) 32 Cal.4th 1287, 1293 [same].) Moreover, issues raised for the first time in a reply brief are forfeited or waived. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 408 [issues raised for the first time in a reply brief are forfeited]; People v. Rangel (2016) 62 Cal.4th 1192, 1218 [same].) Accordingly, to the extent Father claims the juvenile court was obliged to comply with the relevant rule of court and local rule, he has forfeited this claim on appeal.
Penal Code section 136.2, subdivision (f), mandates promulgation of a protocol, for adoption by the local courts, providing for the timely coordination of orders against the same defendant and in favor of the same named victim and ensuring communication between criminal, juvenile, and family courts. In turn, California Rules of Court, rule 5.445, provides that superior courts must adopt "[a] procedure by which the court that has issued a criminal court protective order may, after consultation with a court that has issued a subsequent child custody or visitation order, modify the criminal court protective order to allow or restrict contact between the person restrained by the order and his or her children." (Cal. Rules of Court, rule 5.445(c)(2).)
Los Angeles County Superior Court, Local Rules, rule 8.34, sets forth a "court communication protocol for Domestic Violence and Child Custody Orders," which is intended to avoid the issuance of conflicting orders and permit appropriate visitation between a restrained person and his or her child while providing for the safety of all victims and witnesses. (Super. Ct. L.A. County, Local Rules, rule 8.34(a).) In pertinent part, it provides: "If a criminal court protective order exists and a judicial officer in another court has a case in which he or she determines that it is appropriate to permit visitation different than that provided for in the criminal protective order, the judicial assistant for that judicial officer must contact the judicial assistant for the judicial officer currently assigned to the criminal case to request a modification. The criminal judicial assistant must notify the judicial assistant of the judicial officer who is requesting the modification that his or her request and proposed modification have been received." (Id., 8.34(d)(1).) If, within 15 days after giving appropriate notice, there is no objection to the proposed modification, the criminal protective order may be modified as requested. If the criminal court judicial officer or either party in the criminal case objects to the proposed modification, the criminal court judicial officer shall conduct a hearing to determine whether modification is warranted. (Id., 8.34(d)(2).)
We note that our conclusion does not leave Father without a remedy if he wishes contact with his children during his incarceration. Nothing prevents him from seeking modification of the criminal protective order to allow third party contact or direct contact with Mother to facilitate visitation. Nor does our conclusion preclude Father from seeking a modification of the visitation order based on changed circumstances once he is released from prison.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EDMON, P. J. We concur:
LAVIN, J.
DHANIDINA, J.