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In re A.H.

California Court of Appeals, Fifth District
Mar 4, 2008
No. F054193 (Cal. Ct. App. Mar. 4, 2008)

Opinion


In re A.H. et al., Persons Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. L.C., Defendant and Appellant. F054193 California Court of Appeal, Fifth District March 4, 2008

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Fresno County No. 97889-0, Jane Cardoza, Judge.

Gino deSolenni, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance by Plaintiff and Respondent.

THE COURT

Before Vartabedian, Acting P.J., Levy, J., and Cornell, J.

OPINION

L.C. appeals from October 2007 orders denying her ex parte request for a contested hearing on a matter previously decided and her request for an order returning custody of her three children (Welf. & Inst. Code, § 388) who have been dependent children for many years. Appellant’s appointed appellate counsel submitted a letter dated January 28, 2008, advising that no brief would be forthcoming (In re Sade C. (1996) 13 Cal.4th 952). By order dated January 31, 2008, we extended time for appellant to personally file a letter brief.

All statutory references are to the Welfare and Institutions Code unless otherwise indicated.

Appellant has filed such a letter brief with this court. In it, she argues the court erred by failing to grant her meaningful evidentiary hearings on the department’s modification request as well as her later request for custody. Having reviewed the appellate record as summarized below, we conclude appellant’s assertions 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). We will affirm.

PROCEDURAL AND FACTUAL HISTORY

Domestic violence and child endangerment by appellant in 2000 led to the underlying dependency proceedings. Appellant’s children, two girls and a boy, then ranged in age from ten to six years old. The girls were placed together in one foster home while their younger brother was placed in a separate foster home. Appellant received reunification services, including outpatient psychiatric treatment, until February 2003 when the court terminated services and ordered the children placed in long-term foster care.

Over the ensuing years, the children fared well in foster care but their relationship with appellant grew strained because of appellant’s increasingly erratic and confrontational behavior. Nevertheless, appellant attempted several times without success to either regain custody of her children or reinstate reunification services. Over the years, visitation had varied from supervised to unsupervised depending on appellant’s circumstances.

Our summary of the proceedings to this point comes from our opinion in L.C. v. Superior Court (F052211), filed in April 2007.

By September 2007, the court had changed the boy’s permanent plan from long-term foster care to legal guardianship with his former foster parents. The girls, by then 17 and 16 years old, were still in long-term foster care. The court had also recently authorized twice-monthly unsupervised overnight visits between the children and appellant. However, following the second such overnight visit, appellant failed to return the children to their respective homes and absconded with them to Stockton, California.

These orders were apparently made on August 31, 2007.

Once authorities located and returned the children to Fresno County, respondent Fresno County Department of Children and Family Services (department) petitioned to modify the court’s visitation order and resume visits on a supervised basis. The court set the matter for hearing in early October at which time appellant’s trial counsel requested a contested hearing. The department’s showing in support of its petition was also incomplete. Consequently, the court continued the hearing to October 23, 2007.

Appellant was not present in court on October 23rd. Her attorney requested a continuance, based in part on appellant’s absence. He explained appellant had contacted his office to say she had personal matters to take care of and could not come to court. Trial counsel added he did not know what the personal matters were and apparently appellant had not divulged them to counsel’s office assistant.

The court did not find good cause to continue the hearing. Thereafter, the court granted the department’s request, ordering that the visits be supervised.

On October 26, 2007, appellant personally submitted an ex parte application to reset the hearing on the department’s petition. She claimed she wanted to present her case and had written her attorney before the 23rd asking him to set the case for a contested hearing because she was unable to attend due to personal reasons. The court denied appellant’s application the same day.

Also on October 26th, appellant filed a request pursuant to section 388 to modify the court’s August 31, 2007, permanent plan of legal guardianship for her son and order for liberal visitation. She sought the return of all three children to her custody. Appellant did not support her request with any new evidence or changed circumstances since the court’s August 31, 2007 orders. The court summarily denied appellant’s request on October 26th, noting it neither stated new evidence or a change of circumstances nor did it show it would be in the children’s best interest to change the order.

Thereafter, appellant filed notices of appeal from both of the trial court’s October 26th rulings. She did not appeal from the court’s earlier October 23rd decision granting the department’s request for supervised visitation.

DISCUSSION

Appellant contends the court erred by failing to grant her meaningful evidentiary hearings on the department’s modification request as well as her later request for custody. Having reviewed the record, we conclude there is no basis for either of appellant’s contentions.

First, to the extent appellant questions the court’s October 23rd decision denying her attorney’s request for a continuance and granting the department’s request, those rulings are not properly before this court. (In re Elizabeth G. (1988) 205 Cal.App.3d 1327, 1331.) Appellant did not appeal the October 23rd decision and her notices of appeal make no reference to the October 23rd rulings.

Second, as for her ex parte application, appellant ignores the fact that her attorney did request on her behalf a contested hearing, which the court set for October 23rd. However, on the 23rd, appellant was absent. To claim, as she did in her ex parte application, that counsel should have again requested a contested hearing is nonsensical under the circumstances. In addition, we observe appellant never disclosed in her ex parte application her personal reasons for not attending the October 23rd hearing. Absent such a disclosure, she is in no position to claim she was entitled to a new hearing. (§ 352.)

Third and finally, because appellant neither submitted any new evidence or changed circumstances since the time of the court’s August 31, 2007, ruling nor presented any evidence that a hearing would promote the children’s best interests, the order summarily denying her request was entirely proper. (In re Jasmon O. (1994) 8 Cal.4th 398, 415.)

“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 . . .). If he does not, he may, in the court's discretion, be deemed to have abandoned his appeal. (Berger v. Godden [(1985)] 163 Cal.App.3d [1113] at p. 1119.) In that event, it may order dismissal. (Ibid.) Such a result is appropriate here. With no error or other defect claimed against the orders appealed from, the Court of Appeal was presented with no reason to proceed to the merits of any unraised ‘points’—and, a fortiori, no reason to reverse or even modify the orders in question. (See People v. Brigham (1979) 25 Cal.3d 283, 289 . . . .)” (In re Sade C., supra, 13 Cal.4th at p. 994.)

Having reviewed her letter brief and the record herein, we conclude appellant raises no arguable issue regarding the court’s October 26th rulings.

DISPOSITION

The orders appealed from are affirmed.


Summaries of

In re A.H.

California Court of Appeals, Fifth District
Mar 4, 2008
No. F054193 (Cal. Ct. App. Mar. 4, 2008)
Case details for

In re A.H.

Case Details

Full title:FRESNO COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and…

Court:California Court of Appeals, Fifth District

Date published: Mar 4, 2008

Citations

No. F054193 (Cal. Ct. App. Mar. 4, 2008)