Opinion
F054232
8-6-2008
In re A.C., a Person Coming Under the Juvenile Court Law. MADERA COUNTY DEPARTMENT OF PUBLIC WELFARE, Plaintiff and Respondent, v. STANLEY C., Defendant and Appellant.
Teri A. Kanefield, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Not to be Published
OPINION
THE COURT
Before Vartabedian, Acting P.J., Wiseman, J. and Dawson, J.
A.C. had been in temporary foster care since January 2005.
Stanley C. appeals from a 2007 order terminating dependency jurisdiction and defining custody and visitation rights as to his son A.C. (Welf. & Inst. Code, § 362.4). Following her court appointment and review of the appellate record, appellants appellate counsel advised she would not be filing an opening brief pursuant to In re Sade C. (1996) 13 Cal.4th 952. We in turn granted appellant leave to personally file a letter brief.
Appellant has filed such a letter brief with this court. In it, he raises a series of complaints against the trial court dating back as early as June 2005 when the court adjudged appellants son a juvenile dependent. Having reviewed the appellate record as summarized below, we conclude appellants complaints do not amount to claims that the juvenile court committed an error affecting the outcome of this case (In re Sade C., supra, 13 Cal.4th at p. 994). For the most part, he has failed in his responsibility as an appellant to affirmatively establish reversible error on the record before us. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) It is not this courts duty to search the record, which in this case exceeds 5,000 pages, and investigate appellants unsupported allegations. We will affirm.
PROCEDURAL AND FACTUAL HISTORY
In April 2005, appellant and his former wife submitted to the Madera County Superior Courts exercise of juvenile dependency jurisdiction (Welf. & Inst. Code, § 300, subd. (c)) over their then three-year-old son, A.C. The child suffered serious emotional damage and was at substantial risk of suffering further serious emotional damage, evidenced by severe anxiety, depression, and withdrawal caused by the parents conduct. They were engaged in a bitter custody dispute over A.C. The mother accused appellant of engaging in parental alienation. Appellant accused the mother of physically and sexually abusing A.C. A mental health professional stated as a result of the number of interviews and investigations which occurred as part of the custody battle it was impossible to tell if A.C. accurately reported the things he stated happened to him.
Subsequently in June 2005, the court adjudged A.C. a dependent child but did not remove him from parental custody.1 Having found the parents made some progress towards alleviating or mitigating the causes previously necessitating A.C.s foster care placement, the court returned him to his parents joint physical custody, on a rotating basis and subject to family maintenance services. Those services consisted of counseling and parenting classes.
The courts custody order remained in effect until mid-September 2005 when the court granted, on a temporary basis, a modification petition brought by A.C.s counsel. Appellant had allegedly abducted A.C. and not complied with other court orders. Appellant denied the allegations, once again claiming the mother had abused A.C. On an interim basis, the court removed A.C. from appellants custody, placed the child with his mother and ordered family reunification services for appellant. The court further gave appellant time to file a formal response and set an October contested hearing date on the petition.
Eventually in July 2006, the parties reached a settlement of the modification petition. The lengthy delay in resolving the petition was attributable to a variety of factors, including the withdrawal of appellants original attorney, appellants unsuccessful effort in persona propria to disqualify the trial judge (Code Civ. Proc., § 170.1), the withdrawal of appellants court-appointed attorney following Marsden proceedings, appellants substitution of privately-retained counsel, a lengthy evidentiary hearing, and an injury to appellants new attorney. In the end, the parties agreed and the court ordered that A.C. would continue to reside with his mother, subject to a detailed and graduated plan for visitation with appellant to be directed by A.C.s therapist. Both parents were also to continue in individual counseling and neither parent was to question or interrogate A.C.
While appellant implies in his letter brief that the trial judge ruled on his own disqualification, the record reveals otherwise. Another judge heard the matter and denied appellants motion.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
The court continued its order for family maintenance services over the following year. The graduated visitation plan went into effect and the parents complied with the counseling requirements. Although there had been no additional reports of child abuse, there was evidence appellant was still questioning A.C. about his mothers care and there remained difficulties in the transition between the parents respective care.
On this basis, respondent Madera County Department of Public Welfare (the department) began recommending in December 2006 that the court terminate its dependency jurisdiction. However, because the parents as well as their attorneys disagreed over almost every factual and procedural aspect of the case, a status review originally scheduled for December 2006 became a contested hearing which was not completed until September 2007.
At that point, the court terminated its jurisdiction. In its exit orders, the court granted the parents joint legal and physical custody, awarding primary physical custody of A.C. to the mother subject to appellants visitation rights, as detailed in the courts order.
DISCUSSION
I. Appealability
Ordinarily, our appellate review in dependency matters is limited to the most recent appealable order, in this case the courts September 2007 decision terminating dependency jurisdiction and regarding child custody. Appellate jurisdiction to review a dependency judgment or an appealable order depends upon a timely notice of appeal. (In re Elizabeth G. (1988) 205 Cal.App.3d 1327, 1331.) A juvenile courts dispositional order, here the June 2005 order adjudging A.C. a dependent child, is an appealable judgment. (In re Eli F. (1989) 212 Cal.App.3d 228, 233; Welf. & Inst. Code, § 395.) The courts subsequent orders are also each reviewable by appeal. (Welf. & Inst. Code, § 395, subd. (a).) An appeal from the most recent order entered in a dependency matter may not challenge prior orders for which the statutory time for filing an appeal has passed. (In re Elizabeth M. (1991) 232 Cal.App.3d 553, 563.)
Here, appellant neither appealed from the disposition order nor any subsequent order prior to the September 2007 decision. He nonetheless claims he is entitled to our review of all of his claims because the trial court did not advise him either in June 2005 or in September 2005 of his appellate remedy. We agree there is no record that the trial court informed appellant or the mother of their appellate remedy. For the sake of argument, we will assume appellants appellate contentions are timely.
II. The Courts June 2005 Dispositional Order
Appellant contends the court made findings — that he abused alcohol and abused A.C.s mother during their marriage — based on inadmissible hearsay evidence and without giving him the chance to rebut it. Appellant fails to establish either that the court erred, let alone how he was prejudiced. Thus, we conclude this argument is meritless.
By way of background, after the parents submitted to the courts dependency jurisdiction in April 2005, the court conducted an 11-day contested dispositional hearing, during 10 of which days the court heard testimony from 21 witnesses and received into evidence numerous exhibits from both parents. As it announced its dispositional orders, the court also spoke at length about "how this [the former couples inability to communicate and cooperate for the sake of A.C.] all happened" and its impressions from the evidence it had heard. Referring to the stress in the former couples lives after A.C.s birth and before their separation, the court stated, for instance, that it thought appellant abused alcohol. It also expressed its belief appellant abused the mother during their marriage.
As mentioned earlier, it is appellants duty on appeal to affirmatively establish error on the appellate record. (Denham v. Superior Court, supra, 2 Cal.3d at p. 564.) Although he points out the courts remarks in the record, he fails to demonstrate on the record that the court erred as he alleges. He also does not include any supporting legal authority. (In re Daniel M. (2003) 110 Cal.App.4th 703, 708.)
Even absent any showing of error, we fail to understand how appellant was prejudiced by the courts remarks. They were not part of any necessary statutory finding to support the courts decision nor did they result in any order prejudicing appellant. In its ruling, the court also expressed serious doubts about each parents credibility. While it found the mother had caused an injury to A.C., she had not sexually abused him and the child did not fear her. As for appellant, he had a habit of questioning A.C. which appeared to plant seeds in the childs mind against the mother. However, the court did not think A.C. was in substantial danger from either parent at that point. The courts concern was that the parents needed to focus on their behavior, quit blaming the other parent, and learn to communicate for A.C.s benefit. Indeed, as summarized above, the court at the June 2005 hearing returned A.C. to the parents joint physical custody. Although the court ordered family maintenance services, it did not order appellant into either substance abuse treatment or domestic violence treatment.
III. September 2005 Order
Next, appellant claims the court denied him due process by allegedly denying him an opportunity to present evidence at a September 16, 2005 hearing on the petition to modify the courts custody order brought by A.C.s attorney (A.C.s petition). In another portion of his letter brief, appellant also accuses the court of conducting the September 2005 hearing without notice to him. He further argues the courts September order temporarily removing A.C. from his custody violated the Family Code. Our review of the record and the Family Code finds no support for any of appellants arguments in this regard.
According to A.C.s petition and the supporting evidence, September 14, 2005 should have been a day on which appellant would deliver A.C. to his mothers care. That exchange did not occur, however, and A.C.s attorney in turn met the childs mother at the police department. They learned that approximately two days earlier appellant reported to the police that the mother had physically abused A.C. He did not mention A.C. was a dependent child of the court. The police initially responded by telling appellant not to return A.C. to the mother. After investigating and determining appellants allegation was false, the officer in charge tried repeatedly and without success to contact appellant. A.C.s attorney also tried to locate the child without success.
A.C.s attorney also presented a report from a therapist that the three-year-old child recently made more sexual abuse allegations about his mother. However, the therapist noted A.C.s detached affect when making his statements and that he also made some implausible and/or bizarre reports.
Appellants attorney received ex parte notice of A.C.s petition on September 15, 2005, and both he as well as appellant were present at the September 16 hearing. Thus, appellants claim of no notice is meritless.
At the hearing, counsel for A.C., the mother, and the department submitted on A.C.s petition and supporting evidence. When asked if he wanted to be heard, appellants attorney requested an evidentiary hearing which the court was willing to grant. However, the attorney needed a minimum of two weeks. In the interim, appellants counsel requested the court place A.C. with his father, order a SART investigation or re-investigation, and order the child be taken to a particular psychologist, Dr. Jay Fisher, who had conducted an earlier psychological evaluation in early 2005, for further evaluation.
The court denied each of the attorneys requests. In particular, regarding a new evaluation, the court noted it had already ordered counseling for A.C. The court then issued temporary orders, including removing A.C. from appellants care and conditioning future visitation on a psychological evaluation of appellant. It also gave appellant the opportunity to file a response to A.C.s petition and set the matter for an evidentiary hearing on October 11, 2005. In the end, as previously mentioned, the parties reached a settlement on the petition.
We conclude no arguable due process violation occurred on this record. Appellant received notice and the opportunity to contest the petitions allegations. (In re Matthew P. (1999) 71 Cal.App.4th 841, 851.) The fact that the court made temporary orders, rather than conduct an immediate evidentiary hearing, did not amount to an abuse of the courts discretion in handling the custody issue and protecting A.C.s best interests (In re Stephanie M. (1994) 7 Cal.4th 295, 317). We note in this regard that the courts paramount concern is the childs welfare. (In re Malinda S. (1990) 51 Cal.3d 368, 384.)
In addition, appellant did not request an immediate evidentiary hearing but rather two weeks time within which to respond to the petition. It was only after the court issued its orders, that appellants attorney questioned why the court ruled as it did without giving appellant an opportunity to first testify. This in our view amounted to gamesmanship on appellants part. We will not permit a silent parent to essentially argue that the juvenile court erred by not being psychic. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339.)
We also observe that the parties, including appellant, eventually stipulated to the mother having primary physical custody subject to appellants visitation. Thus, we fail to discern how appellants rights were violated.
Further, there is no merit to appellants claim that the courts temporary order violated the Family Code. Family Code section 3027.5, subdivision (a) that a parents custody or visitation rights shall not be limited solely because the parent lawfully reported suspected sexual abuse. However, it appears the report appellant allegedly made to police was that the mother physically abused A.C. In any event, appellant neglects to mention that, according to subdivision (b) of section 3027.5, a court is authorized to order supervised visitation or limit a parents custody or visitation rights if the court finds the parent made a report with intent to interfere with the other parents lawful contact and the limitation is necessary to protect the health, safety and welfare of the child. Had the court reached such a conclusion in this case, we could uphold it. In any event, we note, as discussed below, the court reversed itself a month later and ordered weekly supervised visits. Thus, we conclude any error did not impact the outcome in this case.
IV. 2007 Proceedings
Appellant also alleges that during the 2007 contested proceedings, he showed the need for an additional expert, apparently to evaluate A.C., based on the testimony of two of appellants witnesses. Appellant fails to cite either the evidence supporting his allegation or any supporting authority for his position. In addition, he does not explain how the absence of yet another expert witness was error, yet alone prejudicial error.
Furthermore, appellant fails to take into account the significance of the July 2006 stipulated order that A.C. would reside with his mother, subject to appellants visitation rights. Once the parties agreed to and the court made that order, custody and visitation was not subject to being relitigated during the 2007 proceedings simply because the department recommended that the court terminate its dependency jurisdiction and make exit orders. Rather, in order to change an existing juvenile dependency order, such as the placement and visitation order here, a party must formally petition the court and (1) demonstrate either a change of circumstance or new evidence warranting a new and different order, and (2) establish the proposed change would promote the childs best interests of the child. (Welf. & Inst. Code, § 388.) Whether the juvenile court should modify a previously made order rests within its discretion and its determination may not be disturbed unless there has been a clear abuse of discretion. (In re Stephanie M., supra, 7 Cal.4th at p. 318.) Here, there is no indication that appellant ever formally petitioned the court pursuant to section 388 or otherwise established changed circumstances existed such that it would be in A.C.s best interests to be placed in appellants physical custody.
V. The Trial Judges Impartiality
Finally, appellant accuses the trial judge, who presided throughout these lengthy proceedings, of prejudice against him. Once again, appellants accusations do not amount to claims of arguable error.
Two of his complaints — namely that the judge improperly allowed the other parties to attack appellants character and permitted cumulative testimony adverse to appellant — are neither supported by record citations or supporting legal authority. In addition, these types of complaints relate to the admissibility of evidence and are not reviewable on appeal absent appropriate evidentiary objections on the record (Evid. Code, § 353). Given appellants failure to cite to the record where these issues arose, we cannot even evaluate whether appellant preserved these claims for review.
Appellant also alleges the judge "predetermined appellants guilt" on A.C.s petition and engaged in ex parte communications adverse to appellants interests. Although appellant does cite to the record regarding these allegations, those record citations do not support appellants allegations of judicial impropriety.
As to the "predetermined" guilt allegation, appellant cites an October 11, 2005 reporters transcript. It was on that date that the court had set A.C.s petition for an evidentiary hearing. However, appellant had substituted out his attorney and asked the court for appointed counsel. The court granted his request and continued the case so that the new attorney could prepare. When the court asked appellant if there was anything else, appellant mentioned in part difficulty in identifying a psychologist to evaluate him for purposes of visitation. In the process, appellant stated he contacted Dr. Fisher who had prepared a report entitled psychological evaluation in early 2005 and offered to write a letter to the court if needed. A dispute then erupted over Dr. Fisher and the benefit of his much earlier report in resolving whether visitation now would be a detriment to A.C. When appellant stated Dr. Fisher had previously concluded the mother was a danger to A.C., the court responded "Im not buying that anymore. [¶]. . .[¶] You know what, things have changed as far as what Ive read, and I think youre the problem. Im going to be honest with you, thats the way I think right now today."
Relying on these remarks, appellant accuses the court of prejudging him. Taken out of context, we would agree that the courts remarks appear intemperate and suggest it had decided the matter without ever hearing evidence from appellant. However, having reviewed the remarks in their context, we disagree with appellants accusation. First, the court previously decided after hearing 10 days of testimony, including that of Dr. Fisher, in the preceding May and June that the mother was not a danger to A.C. Second, the court also stated it would be interested in hearing all the facts. Third and totally ignored by appellant is the fact that having made the above-quoted remarks, the court went to reverse its order conditioning future visitation with A.C. upon a psychological evaluation of appellant. The court instead ordered weekly supervised visitation to commence immediately between A.C. and appellant.
With regards to an alleged ex parte communication, appellant cites a portion of his Marsden hearing in March 2006 against his then-court appointed attorney. Appellant alleged his attorney mentioned seeing the judge and discussing the case. The judge acknowledged inadvertently seeing the attorney at a cleaners and that appellants attorney said he was working on appellants case. According to the judge, that was the extent of the conversation. The attorney had a similar recollection. There was no evidence of any ex parte communication regarding the dependency case.
Last, appellant accuses the court in 2005 of refusing to allow him to call witnesses appellant allegedly subpoenaed. He admits there is no record to support his accusation but alleges the reporters transcript has somehow been altered. He notes the reporters transcript for the date in question ends at page 1768 and pages 1771-1800 of the reporters transcript are missing. This does not mean the transcript has been altered. As the court reporter for that date certified, this was a true and correct transcription of the proceedings had and testimony given on the date in question. There were no pages 1771-1800. The next volume of reporters transcript would begin on page 1801.
IV. Conclusion
". . . An appealed-from judgment or order is presumed correct. (E.g., Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Hence, the appellant must make a challenge. In so doing, he must raise claims of reversible error or other defect (see ibid.), and `present argument and authority on each point made (County of Sacramento v. Lackner (1979) 97 Cal.App.3d 576, 591; accord, In re Marriage of Ananeh-Firempong (1990) 219 Cal.App.3d 272, 278)." ( In re Sade C., supra, 13 Cal.4th at p. 994.)
Having reviewed appellants letter brief and the record herein, we conclude appellant raises no arguable issue regarding the courts decision.
DISPOSITION
The order terminating jurisdiction and determining custody and visitation rights is affirmed.