Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. CK 75111 Marilyn Martinez, Commissioner.
Andrea R. St. Julian, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Jeanette Cauble, Deputy County Counsel, for Plaintiff and Respondent.
FLIER, J.
Anthony T., Sr., and Anthony T., Jr., are father and son; we will refer to Anthony T., Sr., as father and to Anthony T., Jr., by his first name. Father appeals from an order denying his petition brought under Welfare and Institutions Code section 388. We affirm.
All statutory references are to the Welfare and Institutions Code.
FACTS
Anthony was born in 1994; at the time, his mother was 31 and father was 27. Mother works as a live-in caretaker; father is a plumber.
Anthony’s mother has hit him across the mouth with a belt, she has hit him with an open hand and has struck him with a stick. She has “washed” his mouth out with soap. Father has punched him in the head with a closed fist and hit him numerous times on his right eyebrow, raising a lump. One day father was battering Anthony with his fists; the police were called and took Anthony to the hospital. It is not surprising that Anthony himself turned violent, and choked his mother.
Anthony’s parents were constantly fighting. Physical violence between them was common. Anthony saw father kick and punch his mother. One time father hit his wife on the head with the wooden part of some garden clippers. In a statement that captures the family’s culture of violence, father admitted that “I hit her across the head a couple of times till she calmed down.” On the other hand, father also claimed that it was his wife who attacked him with the garden clippers. In September 2008, father threatened to kill his wife and Anthony and pursued them to a church where he showed up with a knife. This proved to be father’s undoing and he was arrested and prosecuted for terrorizing his wife and son.
We find the statement in father’s reply brief astonishing that “detriment cannot merely be shown where the parent in question is less than ideal.” We pass by such remarks in silence.
Father abuses drugs and alcohol. He denies this, even though his wife, Anthony and a family to whose house Anthony fled at one point all confirm that he has a serious and substantial addiction to drugs and alcohol. According to Anthony’s mother, father’s abuse of alcohol is worsening.
In the summer of 2008, Anthony was hospitalized in a psychiatric ward with depression. He was diagnosed with major depressive disorder, attention deficit disorder and “oppositional defiant disorder.” When he was released in September 2008, he went to stay with Mr. and Mrs. G. whom both Anthony and father knew. The G.’s would not let father into the house because of his severe drug and alcohol abuse.
The section 300 petition filed by the Los Angeles County Department of Children and Family Services (DCFS) on October 24, 2008, reported that Anthony stated that he was fed up with his parents. As we relate in the next section, this feeling on Anthony’s part hardened into a resolve never to return to his parents’ house.
PROCEDURAL HISTORY
DCFS records disclose that Anthony’s family had 19 referrals prior to the filing of the section 300 petition in October 2008; the first referral was in 1995. The referrals were for general neglect and physical and sexual abuse. It is not necessary to detail this history further.
The court detained Anthony in shelter care after a hearing that took place on October 24, 2008. The parents were given monitored visits. In a DCFS report dated December 2, 2008, Anthony is quoted as saying that he did not want to live with his father and mother. In this report, DCFS recommended that Anthony remain in out-of- home care and that the parents be provided with reunification services.
The Probation Department and DCFS prepared a joint report because it appeared that Anthony appeared to be described by both section 300 and 601; the latter section addresses children who are truants. This joint report of December 2008 noted that Anthony had significant mental health issues.
At this time, Anthony was in a foster home; DCFS reported that Anthony was exhibiting rebellious behavior.
In March 2009, the court ordered Anthony to be evaluated for bipolar disorder. In April 2009, the court found Anthony to be described by subdivisions (a), (b) and (c) of section 300. In order, these subdivisions address serious physical harm inflicted by a parent or guardian, inability of the parent to protect the child from serious physical harm and a child who has suffered serious emotional damage. In April 2009, the court ordered suitable placement for Anthony and reunification services for his parents. As might be imagined, the tasks imposed on father by the court as part of the reunification effort were manifold.
DCFS filed the six-month status report on reunification services on October 15, 2009. Father had been released from custody in May 2009, but he refused to participate in the case plan, stating that DCFS and the criminal justice systems had wrongly accused him of doing things he did not do. Although he wanted to speak to Anthony, his son refused to see him. Father stated that everyone was conspiring against him.
In the meantime, after a difficult start, Anthony’s performance at school was improving dramatically. His therapist reported that he had adapted to his foster home and that he had become cheerful and cooperative and hoped to be adopted. He continued to refuse to see either of his parents.
Because Anthony’s mother complied with the treatment plan and completed her tasks, DCFS recommended continued reunification services for her, but not for father. The court ordered continued reunification services for both parents.
Father filed his section 388 petition on February 18, 2010. He requested that the court’s orders re visitation be enforced and that the court order conjoint counseling for father and Anthony.
Anthony’s counsel filed an opposition to the section 388 petition. The opposition was supported by a letter from Anthony’s therapist that stated that Anthony’s strong preference was not to be reunited with his parents, that Anthony longed for a stable home and wanted to do well in school. Anthony feared that he would regress if he would be reunited with his parents. The therapist wrote that there was good reason to think that this would happen if Anthony was reunited with his parents.
DCFS also opposed the petition. DCFS noted that Anthony did not want to speak to his parents and that he did not want to have anything to do with them; he felt they had harmed him physically and mentally, which is an understatement. But for one letter in December 2009, father had not attempted to make any contact with Anthony, even though DCFS had encouraged Anthony to contact father. Anthony, however, adamantly refused to do so.
During the hearing on the section 388 petition, father’s counsel stated that father “very much wants to attempt to mend the relationship between himself and his son.... [¶] In a monitored visitation setting there will be no opportunity for Anthony to experience any abuse.” Counsel asked the court “to provide an opportunity for a father and his child to maintain a relationship.”
After hearing additional argument from Anthony’s counsel, the court stated that it would order that no visits by father take place. The court noted that the “abuse of this child by his father was severe. It was excessive.” At this point father interrupted the court by stating: “I never had a chance for a trial and excuse me that I speak out of turn and excuse me that I raised my voice. I never had a decent lawyer. I would so much like to file an appeal because these charges are false and I cannot put up with this. I’m sorry.” Father thereupon walked out of the courtroom.
The court, however, had not finished. The court noted that Anthony was making good progress but that he had much to deal with. The court stated that father, on the other hand, had refused to participate in any aspect of the reunification program, that he refused to deal with DCFS, that he did not respond to attempts by the social worker to communicate with him and that he was “just hostile.” The court concluded, correctly in our view, that any contact between Anthony and his father would be detrimental to Anthony’s emotional well-being and would put him in peril of regressing.
The court denied the section 388 petition.
DISCUSSION
1. There Was No Due Process Violation
Father contends that DCFS should have filed a petition requesting that the order regarding visitations be modified to preclude all visits. Father contends that the failure to file such a petition was a denial of due process because he was entitled to have advance notice that the court would consider such a course of action.
Father did have such notice. The written opposition filed by Anthony’s counsel to father’s section 388 petition states that “Anthony requests that the court order that he is not required to visit with Father at this time.” The opposition also pointed out that the therapist thought that Anthony’s progress would be imperiled “if he is forced to attend visits” with father and that “Anthony’s stated desire is not to have contact with his father.”
None of this in the opposition came as a surprise as Anthony had made it clear since at least December 2008 that he did not want to have anything to do with father and did not want to see him. In his reply brief, father states that the opposition to the section 388 petition was inadequate notice because it was filed on the day of the hearing. But the opposition only confirmed what had been true for well over a year: Anthony was adamant that he did not want to see his father. This was in fact the status quo, as shown by the fact that there was not a single visit between father and Anthony after DCFS filed the initial section 300 petition on October 24, 2008.
The section 388 hearing took place on March 24, 2010.
Given what the facts were, it was obvious to everyone in March 2010 that the only issue was whether there would be any visits at all. Indeed, the trial court’s opening remark at the section 388 hearing was that Anthony’s counsel “is asking that the court order that there not be any visits.” Father was fully on notice for over a year that Anthony did not want to see him.
Contrary to father’s claim, this case is not like In re Lance V. (2001) 90 Cal.App.4th 668. In that case, visitation was the issue at a hearing wherein there was sharp disagreement whether the child wanted to visit with his mother, what effect those visits had on the child and how frequently the visits should take place. Without taking any sworn testimony, the trial court ordered the visits to be reduced and modified the format of the visits unfavorably to the mother. (Id. at pp. 672-673.) The mother was unaware at the outset of the hearing that the court would make these alterations in the visits with the child. The appellate court concluded that the mother’s “due process rights to notice and an opportunity to be heard were clearly compromised when the court modified the existing order without holding a properly noticed hearing on the merits.” (Id. at p. 677.)
In this case, father and his counsel were perfectly aware of what the issue was going to be. Thus, In re Lance V. is distinguishable because in that case the mother had no warning about what ensued as a result of the hearing. In this case, there was ample notice and a clear awareness what the issue was going to be at the section 388 hearing.
Finally, as DCFS correctly points out, the alleged lack of notice was not brought to the attention of the trial court during the hearing. There was no objection for the very good reason that everyone was well aware what the issue was. In his reply brief, father claims “finding and orders of the judgment on review are automatically deemed excepted to” and that an objection was not required. Not so. “Appellate courts have applied the waiver doctrine in dependency proceedings in a wide variety of contexts.” (In re Dakota S. (2000) 85 Cal.App.4th 494, 502.) As some of these courts have noted, any other rule would permit a party to deliberately stand by in silence and thereby permit the proceedings to reach a conclusion in which the party could acquiesce if favorable and avoid if unfavorable. (Ibid.) That is certainly true of this case. Counsel was free to object and to seek a continuance but he did not do so. He was clearly ready to proceed and did so. It is now too late to change tactics.
2. The Order Is Supported by Substantial Evidence
Father contends that “[w]ithout any evidence of detriment or even the slightest harm, the trial court erred in terminating visitation.”
Nothing could be further from the truth.
The trial court was facing a triad of facts that not only justify its ruling, but made that ruling inevitable.
In the first place, father’s physical abuse of Anthony was of life threatening proportions. Second, father’s defiance and open contempt of even minimal social controls renders him dangerous. Third, Anthony is improving, attends school and is able to live with a normal family. The trial court had the report of the therapist that visits with father would be perilous to Anthony’s emotional stability and well-being. The advances that Anthony has made are vital and must be safeguarded.
These facts have a synergistic effect on each other. As an example, the fact that father is quick to engage in physical violence exacerbates the danger that is posed by his disregard for rules and social constraints.
The most compelling reason, however, for denying father even monitored visits is that, as the trial court found, he is, simply put, out of control. What occurred at the section 388 hearing illustrates this. It happens rarely that a person represented by a lawyer will interrupt judicial proceedings with an intemperate statement to a trial judge who is in the process of handing down a ruling, but then to exacerbate the situation by stalking out of the courtroom is an expression of complete contempt for social constraints. Walking out of the courtroom before the trial judge had finished making her ruling captures the entirety of this man’s ungovernable and ungoverned behavior.
The trial court was well aware of the foregoing. The trial court also knew that father had not complied with any order of the court in the reunification process, that father had disavowed any wrongdoing and blamed others for his own misdeeds, that father held DCFS responsible, and that father had battered and assaulted not only Anthony but also his wife in short, the court knew that father was irresponsible and dangerous.
The trial court reasonably concluded that to compel Anthony to visit father even in a monitored visit would be detrimental to Anthony. Not only is there substantial evidence to support the order, there is no evidence to the contrary and all of the evidence supports the order that was made. It is therefore unnecessary to decide whether the standard of review is abuse of discretion (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067) or substantial evidence (In re Mark L. (2001) 94 Cal.App.4th 573, 580-581).
Father has taken a single comment by Anthony quoted in DCFS’s December 2, 2008 report out of context. The context of the statement “He never hurt me” was that Anthony was recounting how he got along with father when the latter was taking care of him while his mother was out of the house working as a live-in; Anthony stated that on those occasions father never hurt him. How Anthony actually felt about father is reflected by the fact that Anthony was adamant beginning in late 2008 that he did not want to see father.
Father claims that “DCFS had failed to facilitate any personal visitation between father and son although such had been ordered early in the dependency.” The initial flaw in this contention is that father was in jail until May 2009 and made no effort to contact DCFS after his release. There is also no support in the record that DCFS “failed to facilitate” visits. To begin with, DCFS had to address Anthony’s adamant refusal to even see father, much less visit with him. The point that the record does support is that father declined to have anything to do with DCFS and thus the failure to have visits can be laid at his door, and cannot be blamed on DCFS. There is no record of even one attempt on father’s part until the filing of the section 388 petition in February 2010 to try to set up a visit with Anthony.
That father claims that DCFS had been derelict in its “duty” regarding visitation is specious. We see no dereliction of duty, on the contrary, what the record reveals is that DCFS dealt effectively and with considerable care with a situation that hovered near disaster for months until Anthony was able to gain enough emotional balance, with the help of others, to begin to put his life back together.
3. The Trial Court Did Not Delegate Its Duty to Rule on the Section 388 Petition
Father concedes that the trial court made a finding of detriment, but goes on to contend that “such a finding was essentially based on Anthony, Jr.’s statement that he did not want to see his father.”
Father does not cite to any portion of the record to support this claim. In fact, father’s claim is nothing but an opinion an opinion that is refuted by the record.
After father walked out of the hearing, the trial court reviewed father’s complete lack of cooperation with, and his hostility toward, DCFS and father’s disregard of all court orders regarding reunification. The court stated: “This is not Anthony’s decision. This is the court’s decision. Certainly I can take Anthony’s position into consideration. Anthony is almost 16....” The court noted that Anthony would not be physically at risk in a monitored visit. The court went on to state: “I suspect that [father] may not be appropriate at a visit and what I meant and what I’m about to say is not a critical factor in making my decision he has been so hostile to the Department in his failure to take any responsibility in placing placement [sic] blame elsewhere and stating that he will not participate in anything. The fear of that face-to-face contact with this child, that he will make those kind of statements. [¶] At any rate, Anthony is at risk particularly emotionally. That contact with his father would be detrimental to Anthony’s emotional well-being. He is likely to regress, according to his professional therapist, who has been working with him for a substantial period of time.”
It is evident that the trial court’s primary concern was that exposure to father posed a threat to Anthony’s emotional balance and that it was possible that Anthony would regress as a consequence of visits with father. Secondarily, the court was concerned over father’s demonstrated lack of cooperation with DCFS and the court and that this meant that it was possible that father would act inappropriately during the visits. As far as whose decision it was to prohibit visits, the court went out of its way to state that “This is not Anthony’s decision. This is the court’s decision.” The record certainly confirms this statement.
We are not impressed by the citation of no less than 10 cases for the proposition that a court cannot delegate its power to decide whether visits should take place. This principle is not even remotely at issue in this case.
Because delegation is simply not at issue, we relegate to the margin the observation that the court was certainly correct that it could consider the adverse consequences of an unwanted visit. (In re Julie M. (1999) 69 Cal.App.4th 41, 50.)
4. There Was No Evidence of a Change in Circumstances
Father makes the baffling claim that DCFS’s “failure to effect visitation was a change in circumstances warranting the grant of the requested relief.”
There was no such failure on the part of DCFS but there was a failure on father’s part to even attempt to set up a visit at any time before he filed his section 388 petition. Moreover, this failure on father’s part was a course of conduct to which he steadfastly held after he was released from jail in May 2009. It is therefore impossible to speak of the lack of visits as a “change in circumstances”; lack of visits was eminently the status quo.
As father notes, he was required to show by a preponderance of the evidence that there is new evidence or a change in circumstances and that it was in Anthony’s best interest that a previous order be set aside or vacated. (E.g., In re M.V. (2006) 146 Cal.App.4th 1048, 1056-1057.) There simply was no evidence of a change of circumstances. Indeed, there was not even an attempt in the petition or during counsel’s argument to suggest that such evidence existed.
We again observe that the citation of multiple cases to support propositions that are not at issue, such as the necessity of a change of circumstances for a section 388 petition, is of no help to us or to father.
As we have shown, it is simply not true, as father claims, that his petition was denied “with little explanation.” The trial court gave a comprehensive list of reasons for its decision, as the record shows.
Father also complains that he needed no or low/cost referrals. After he walked out of the hearing, and following the rulings that we have set forth, the trial court noted that there would be a further hearing in about a month and that the court hoped that father would avail himself of referrals that DCFS would make. The court closed with the observation that it hoped that father would come to court and advise the court “that he is making an effort to tell his son that he does want to take some responsibility and do something positive about why his son is before this court.” This is a statement we strongly endorse.
DISPOSITION
The order is affirmed.
We concur: RUBIN, Acting P. J.GRIMES, J.