Opinion
A159001
05-28-2020
In re M.M., a Person Coming Under the Juvenile Court Law. HUMBOLDT COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. TAMMY M., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. No. JV170265)
Tammy M. (mother) appeals from the juvenile court's denial of her motion under Welfare and Institutions Code section 388 to set aside a visitation order for her child's presumed father and to dismiss the dependency. Mother's sole contention on appeal is that the juvenile court abused its discretion and violated her due process rights when it did not allow her to testify at the hearing on her section 388 motion, relying instead on documentary evidence and an offer of proof. We will affirm.
Further undesignated statutory references in the factual and procedural background are to the Welfare and Institutions Code.
BACKGROUND
Mother has three children—R.A., S.M., and M.M.—who were adjudged dependents of the court in March 2018. Her current appeal relates to M.M. (minor) only. The three children have remained in mother's custody during the dependency proceedings.
Robert A. (father) is the biological father of R.A. and S.M. and lived with mother and the three children at the start of this case. He was recognized as the presumed father of R.A. in January 2018, and on June 20, 2019, the juvenile court elevated father to presumed father of S.M. and minor.
In a prior appeal, mother challenged the court's June 20, 2019 order insofar as it recognized father as the presumed father of minor. We affirmed the court's order on March 4, 2020. (In re M.M. (A157684, March 4, 2020) [nonpub.opn.], p. 1 (first appeal).)
The following events in the dependency case pertinent to this appeal took place while the first appeal challenging father's status in relation to minor was pending.
On July 29, 2019, the juvenile court held a contested family review hearing on the three children's cases. The court ordered six additional months of family maintenance services to the parents and children. On August 2, the court signed a document entitled "6 Month Review Findings and Orders," which, among other things, ordered family maintenance services for mother and father, continued placement of the children with mother, and visitation for father as stated in the case plan. Mother does not appeal these orders.
On September 24, 2019, mother filed a section 388 motion seeking to change the July 29 order. She alleged the change in circumstances warranting the motion was that "Father . . . failed to maintain consistent visitation and often cancels visits, shows up late, or drops the children off late" and "failed to develop a healthy relationship with the children and additional time with the Father poses a risk to the children's wellbeing."
Initially, mother asked the court (1) "to modify visitation orders and adopt the current schedule . . . for [R.A. and S.M.] without further liberalization," (2) "to refrain from ordering any visits for . . . [minor] based on safety risks and the lack of Father's efforts in forming a relationship with the child," and (3) either to find mother made substantial progress and terminate dependency or to transfer the case to Upland, California, so mother could move in with her parents.
In its addendum report prepared for the motion hearing, the Humboldt County Department of Health and Human Services (Department) recommended denying the motion. It reported that mother told a social worker on October 17 that father was "not the biological father to [minor] and he should not have access to the child" and further stated she was unwilling to make a visitation schedule for father to visit minor as ordered by the court.
On November 6, 2019, the juvenile court held a contested hearing on mother's section 388 motion. The court began the hearing by reminding mother that, while it was clear she was dissatisfied the court's previous orders, to prevail on her motion, "there needs to be a change of circumstance and showing that the changes [requested by mother] is [sic] in the children's best interests."
Mother's attorney withdrew the request for an order transferring the case to Upland and stated his "main focus is what the current visitation orders are." She asked for no visits between father and minor based on "the complete lack of relationship between [father] and [minor]." Mother's attorney noted father was not biologically related to minor and an appeal was pending on his presumed father status. At that point, father's attorney objected, suggesting mother was attempting to challenge the court's prior order granting father status as the presumed father of minor.
In response to father's attorney's objection, the court said it wanted to allow mother's attorney "to give a long presentation" because "that may limit what the Court allows as testimony." The court explained it would allow each party to "make a lengthy presentation, and at the end of those, we'll decide . . . what testimony there would be in this hearing based on that." The court emphasized it was not relitigating the issue of father's presumed father status as to minor.
Mother's attorney then argued that "the quality of the relationship" between father and minor was relevant to the issue of visitation "because just because we have a presumption of paternity doesn't guarantee visitation and custody." The court asked whether the parents had been participating in coparenting counseling and asked for an offer of proof as to mother's testimony so "we could decide whether we're going to hear from her." After conferring with mother, her attorney told the court there had been no coparenting sessions since June 13. She stated, "There has been an attempt to schedule those sessions" with mother texting father and father declining to schedule the appointments, "thus continuing Mother's reasons for filing this 388, is that there has been no further engagement by the father to develop their co-parenting relationship or their plans for the future." This was the extent of the offer of proof regarding mother's testimony.
Completing a coparenting program or coparenting therapy was a component of mother's case plan.
The attorney for the children asked the court to deny the motion and further requested "very specific visitation orders for [minor]."
County counsel argued against the motion and asserted any change of circumstance was actually negative for mother. Referring to mother's refusal to allow father any visits with minor despite the court order for visitation, county counsel said she had "never seen anything like it in 22 years of dependency." She noted, "we still have not had one visit with [minor] and . . . that's just not acceptable."
Father's attorney joined with county counsel in asking for the motion to be denied.
Asked by the court to respond, mother's attorney said mother was "very much offended by the comments being made about her noncompliance." Mother's counsel referred to the Department's addendum report, which cataloged visits being rescheduled, canceled, and changed, suggesting father's lack of visits with the children was his fault. She argued, "[I]f the Court is not inclined to hear testimony from Mom today, I would just ask that the Court review all of the ways in which Mom has taken steps to maintain a schedule. The schedule that she was requesting to remain the same . . . worked for the family."
In fact, the 30-page "Delivered Service Log" attached to the addendum report that mother's attorney referred to did not list a single scheduled visit between father and minor; the visits described all involved R.A and/or S.M.
After hearing the parties' presentations, the court stated, "I am going to take the matter under submission, because I am hearing that there needs to be a set schedule. . . . I have already looked at everything. I'm going to relook. [¶] I'm not going to have Mother testify, because the fact of the matter is this, even if Mother has done everything right, so giving her the benefit of all of—all of that she has—she is in an ideal situation, it's not in the children's best interests at this time" "to terminate the dependency." The court continued, "I'm not denying the [section] 388 [motion] because of Mother's lack of anything. I am reiterating the need for co-parenting counseling." The court ordered visits between father and minor and stated, "If the mother does not allow those to occur, then she will be in contempt of court."
Mother's attorney objected to any specific order for visitation between father and minor without mother's testimony being heard "as to the issue of quality of relationship and safety hazards she believes are present." The court responded that it was not going to allow testimony "because I made the order for visits to occur some time ago. Nothing has happened. And so, I don't think that—Mother's testimony . . . would be meaningful and, again, not focusing on what the mother's position is but what has been outlined as the children's best interests."
At a subsequent hearing on November 13, the court gave its ruling, which included a detailed visitation schedule for each child, including minor, and denied the section 388 motion.
Mother's attorney asked the court to "clearly outline exactly what evidence it considered in reaching the ruling so that my client can have that information available to her appellate attorney, as she has indicated, based on the ordering of visits with the child [minor], that she will be filing an appeal."
The court responded that it essentially found no change of circumstance. "The mother just doesn't like the Court's ruling and was coming back before the Court. [¶] The Court found no showing that it would be in the child's best interests to grant the 388 in the matter. The Court does not believe any hearing from the mother and testimony would have changed that at all."
DISCUSSION
Section 388, subdivision (a)(1), provides that a parent "may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court."
To prevail on a section 388 motion, the moving party—here mother—must "show by a preponderance of the evidence both that there are changed circumstances or new evidence and that . . . a change in court order would be in the best interest of the child." (In re D.B. (2013) 217 Cal.App.4th 1080, 1089.)
Mother contends the juvenile court's refusal to allow her to testify at the hearing on her section 388 motion was an abuse of discretion and violation of her due process rights. We disagree.
California Rules of Court, rule 5.570(h), cited by mother, provides that for a hearing on a section 388 motion, "proof may be by declaration and other documentary evidence, or by testimony, or both, at the discretion of the court."
Here, mother attached documentary evidence to her section 388 motion, the Department submitted an addendum report with attached documentary evidence, and the court expressly stated it had "looked at everything." We see no abuse of discretion in the juvenile court's decision not to allow mother to testify.
As an initial matter, we remind mother that she alleged the change of circumstance warranting a change in the July 29 order was that father failed to maintain consistent visits and "failed to develop a healthy relationship with the children." Mother, however, has never disputed the Department's evidence that she has steadfastly refused to allow father to have any visits with minor. To the extent father may have cancelled, rescheduled, or been late for, visits with R.A. or S.M., that would not constitute a change of circumstance in respect to minor. Prior to mother's section 388 motion, the most recent court order for visitation between father and minor prior was issued August 2, 2019. Since mother did not allow any visits to occur, her testimony could not possibly show that father failed to develop a healthy relationship with minor between August 2 and November 6, 2019, when the hearing on mother's section 388 motion took place.
In other words, as the juvenile court stated, there was no change in circumstance subsequent to the court's August 2 visitation order; mother simply did not like the court's ruling that father was the presumed father of minor and the visitation orders that followed as a result of that ruling. And, as the court noted, although mother appealed the order on father's presumed father status in relation to minor, she did not request a stay of the order. Thus, father has been recognized as the presumed father of minor since June 20, 2019.
On appeal, mother focuses on the part of her section 388 motion that requested termination of dependency. She asserts her testimony "was critical to whether the juvenile court had evidence to determine whether or not it should grant [her] request . . . because neither [her attorney's declaration] nor attachments filed with the petition specifically addressed that issue. The declaration stated that [mother] had provided exclusive care of [minor] since his birth but did [not] contain specific evidence regarding her care. Thus, [mother's] testimony would have been the only evidence to support her request."
But the juvenile court made clear that it was not in the children's best interest to terminate dependency before mother and father attended coparenting counseling as ordered by the court, regardless of mother's progress in other aspects of her case plan. Mother's testimony on her personal progress in individual counseling or the extent of her care of minor would not have changed the fact that joint coparenting counseling had not occurred. And specifically regarding minor, the court explained that mother's testimony would not affect the court's reasons for denying the motion "because I made the order for visits to occur some time ago. Nothing has happened. And so, I don't think that—Mother's testimony . . . would be meaningful." Under these circumstances, it was not an abuse of discretion not to allow mother to testify.
Nor was there a violation of due process. "[D]ue process is a flexible concept." (In re Tamika T. (2002) 97 Cal.App.4th 1114, 1116.) In Tamika T., the court held the juvenile court did not deny a mother due process by requiring that she make an offer of proof before holding a hearing on whether the parent could establish a statutory exception to the termination of parental rights. (Ibid.) The court reasoned, "Because due process is . . . a flexible concept dependent on the circumstances, the court can require an offer of proof to insure that before limited judicial and attorney resources are committed to a hearing on the issue, mother had evidence of significant probative value. If due process does not permit a parent to introduce irrelevant evidence, due process does not require a court to hold a contested hearing if it is not convinced the parent will present relevant evidence on the issue he or she seeks to contest." (Id. at p. 1122.)
In this case, the juvenile court asked for an offer of proof and was not convinced the testimony proffered would be relevant to what the court viewed as dispositive issues—whether court-ordered visitation between father and minor had occurred and whether the parents had attempted coparenting counseling. Applying the reasoning of Tamika T., we do not believe due process required the court to hear mother's testimony ("regarding her care" of minor or her substantial progress in therapy) when the court knew it would have no effect on the outcome of the hearing.
In re Clifton V. (2001) 93 Cal.App.4th 1400 and In re Matthew P. (1999) 71 Cal.App.4th 841, relied upon by mother, are inapposite. Those cases recognize that a court may violate due process if it refuses to permit live testimony "where there is a contested hearing with an issue of credibility." (Clifton V. at pp. 1404-1405, citing Matthew P.) In the current case, however, there is no relevant credibility contest. Mother does not dispute that she never allowed father to have visits with minor. And no one disputed that mother attended individual counseling and may have progressed in some components of her case plan.
In her reply brief, mother argues for the first time that the juvenile court abused its discretion in denying her request to terminate the dependency because the court's concerns regarding the parents' ability to coparent (she fails to mention the court's additional concern that mother refused to allow court-ordered visitation between father and minor) were unrelated to the issue that originally led to minor's dependency. This argument is completely different from the contention mother raises in her opening brief. The argument is forfeited, first, because mother did not raise this objection with the juvenile court (see In re Riva M. (1991) 235 Cal.App.3d 403, 411-412 ["As a general rule, a party is precluded from urging on appeal any point not raised in the trial court"]) and, second, because mother did not make the argument in her opening brief (see In re Tiffany Y. (1990) 223 Cal.App.3d 298, 302). Furthermore, this claim appears to be more appropriately directed at the court's July 29 order continuing jurisdiction over the children, but mother has not appealed that order.
DISPOSITION
The order denying mother's section 388 motion is affirmed.
/s/_________
Miller, J. WE CONCUR: /s/_________
Richman, Acting P.J. /s/_________
Stewart, J.