Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. OJ06005843, OJ06005844.
Richman, J.
A dependency involving four children, two boys and two girls, was transferred from Orange County to Alameda County. In time, matters had improved to the point that the Alameda County Juvenile Court dismissed the dependency as to the two girls, giving custody to their mother and denying any visitation to the father, M.V. (father). Father, who had objected to the transfer of the dependency, appealed. This court affirmed. During the pendency of that appeal, the juvenile court dismissed the dependency as to the two boys, once more giving custody to their mother and denying any visitation to the father. Father again appeals, contending that substantial evidence does not support the custody and visitation rulings. We reject these contentions, and we affirm.
BACKGROUND
On April 18, 2007, this court filed its opinion in father’s first appeal. That opinion has long been final, indeed, for almost a year prior to the filing of the opening brief for this appeal. Because our opinion describes most of the history of the children’s dependency, and because the issues father raises on his second appeal are related to the issues addressed on the first appeal, we quote our previous opinion in its entirety:
“This appeal involves four children in a proceeding that commenced in Orange County, but was transferred to Alameda County after the Orange County Juvenile Court had declared the children to be dependent minors and had conducted the six-month review. Thereafter, the Alameda County Juvenile Court denied a request by the Alameda County Social Services Agency (Agency) to transfer two of the children back to Orange County. As to those children, the court dismissed them from the dependency, leaving them in the custody of their mother. The court also prohibited visitation by [M.V.], the presumed father of three of the children, with any of the children.
“[M.V.] appeals, contending that the Alameda Juvenile Court abused its discretion in: (1) not returning the dependency to Orange County; (2) placing custody of his presumed daughter in the custody of her mother when the court dismissed the daughter from the dependency; and (3) prohibiting any visitation with any of the children. We reject all of these contentions, and affirm.
“BACKGROUND
“The record before us consists of a clerk’s transcript of 2421 pages, and 14 pages of reporter’s transcripts for three hearings conducted by the Alameda Juvenile Court. Most of the clerk’s transcript is duplication of the same information; we have in effect the same clerk’s transcript for each of the four children. The pertinent events and information may be distilled as follows:
“On November 30, 2005, the Orange County Social Services Agency filed a petition in which it was alleged that R.C., G.C., [B.C.], and [B.C.I], came within the provisions of Welfare and Institutions Code section 300, subdivisions (b) and (d). At the time the children ranged in age from 4 to 14. In May 2006, the Orange County Juvenile Court sustained the following allegations under subdivision (b):
Statutory references are to the Welfare and Institutions Code unless otherwise indicated. . . .
“ ‘On an unspecified date, in approximately 2004, while the child R.C. was thirteen years old, the child’s stepfather [i.e., appellant] slapped her, grabbed her arms and threw her to the floor, causing the child severe emotional distress.”
“ ‘The children’s alleged father [i.e., appellant], has a history of physical violence towards the mother, to include pushing the children’s mother, slapping the children’s mother on the mouth, causing her to bleed and striking the children’s mother on the nose and stomach. Said domestic violence occurred in the presence of the children, placing the children at risk of bodily harm and causing the children severe emotional distress.’
“ ‘On numerous unspecified dates, prior to November 28, 2005, the children’s alleged father [i.e., appellant], forced the child [R.C.] to kneel and hold rocks in her hands in midair and spanked her on the buttocks with his hands, leaving red marks causing the child undue pain and suffering. Said form of discipline demonstrates the children’s alleged father’s lack of insight into appropriate and safe parenting skills.’
“[M.V.] was found to be the presumed father of [B.C.I], G.C., and [B.C.]. [M.V.] submitted a Mexican document in which he acknowledged paternity of R.C., but the mother identified another man as R.C.’s actual father. [M.V.] had been married to the mother for eight years. The children were declared dependents and their custody given to the social services agency for suitable placement.
“There was no difficulty in placing G.C. and R.C. in foster care. However, there was considerable difficulty in placing [B.C.I] and [B.C.] (who has celebral palsy and is in a wheelchair). The boys were eventually placed in foster care, but not with the girls.
“Meanwhile, the mother had moved to Oakland where, according to the social worker, she ‘started participating in services. . . . [S]he is not planning on relocating to Orange County and wants nothing to do with the children’s father. Basically, the mother reported that she does not like Orange County and has no family support in Orange County. . . . The children’s mother reported that she is employed in Oakland and is attempting to secure an apartment for the children. The children’s mother has not visited with the children on a regular basis and she has not been forthcoming regarding her current living situation including her current address. It is obvious that the children’s mother is not making the children her priority at this time as evidenced by her lack of visits with the children.’ Appellant by contrast, was reported to be complying with his case plan. Nevertheless, the social worker recommended that the court at the six-month review continue the children as dependents and ordered that both parents be offered six additional months of reunification services. The following month, however, the social worker was reporting that the mother was now visiting regularly.
“After being trailed and continued no fewer than two dozen times, the six-month review was finally concluded on November 29, 2006. As previously mentioned, we have no reporter’s transcript, but the minutes show that the court accepted the social worker’s recommendations and continued the children as dependents. The court found that neither parent had made substantial progress in meeting the requirements of their respective reunification plans. The court also ordered that appellant have no visitation ‘pending results of 730 evaluation,’ and issued a protective order for mother against appellant. Lastly, the court ordered the dependency transferred to Alameda County, and denied appellant’s motion to stay the transfer order. The protective order, dated December 1, 2006 and effective until November 28, 2009, recites that because ‘Father has been making inappropriate remarks to the children that are detrimental to their well being. . . .,’ and the ‘Court has found that returning the children to the Father’s care would be detrimental due to father’s behavior,’ appellant could ‘have contact with the children only through mail sent to the children’s social worker.’
The reference is to Evidence Code section 730, which authorizes a trial court ‘at any time before or during the trial of an action . . . on its own motion . . . [to] appoint one or more experts to investigate, to render a report . . . relative to a fact or matter as to which the expert evidence is or may be required.’ The court’s referral asked the expert to ‘address concerns surrounding father’s visits with minors, effects of father’s behavior upon minors and appropriateness of visits, if any’ in light of ‘domestic violence between mother and father [and] physical abuse of minor [R.C.] by father.’ Appellant subsequently told the Alameda court: ‘They never sent me to a psychologist. They requested funds but they never sent me to a psychiatrist.’
“Following the recommendation of the Agency, the Alameda Juvenile Court accepted the transfer on January 30, 2007, and set a progress review hearing for March 5. By that time, [B.C.] and [B.C.I] were living with their mother, and G.C. and R.C. were living with their mother’s uncle in Alameda County. The Agency had informally advised the court that ‘we’re working on . . . more suitable housing arrangements that would permit all four children to be living with Mom.’
“In anticipation of the review hearing, the Agency recommended that G.C. and R.C. be returned to Orange County because the mother could not provide housing for them; the bottom line seems to have been that Orange County could pay while Alameda County could not. At the hearing, the court stated: ‘I am not willing to do that. I personally think the most appropriate thing is simply to dismiss those cases [i.e., G.C.’s and R.C.’s] and let the family make their own arrangements, and I believe the [social] worker is in agreement with that.’
In her report to the court, under the heading ‘Current Situation,’ the social worker stated: ‘The mother provided the name and address of her potential landlord. The undersigned spoke with the landlord and the mother was approved by the agency for last month rental deposit. The undersigned received a message from the landlord stating that they were unwilling to rent to the mother because it is a one bedroom and that the mother has too many children. [¶] The mother has very limited income. Because of the mother’s immigration status, she does not qualify for any assistance. All of the minors were born in Mexico and they do not qualify for any assistance. The Orange County Court placed the minors in Formal Family Maintenance even though two of the minors are out of the home. The agency is unable to transfer this case to Family Maintenance with two of the minors out of home. [¶] There will be a Family Maintenance Court Hearing in May and there are limited options regarding this case. The agency is recommending sending the two out of home cases back to Orange County. There is a courtesy supervision already in place for the two above mentioned minors. The mother is being billed by Orange County for the placement of the minors but the mother does not have the funds to pay the bill for placement. [¶] The agency is looking for direction from the Court regarding this matter.’
“The mother was agreeable to this disposition, but appellant objected, asking that ‘the case . . . be sent back to Orange County.’ The court ruled that ‘what I’m going to do today is dismiss [R.C.’s] and [G.C.’s] cases and maintain the . . . cases for [B.C.] and [B.C.I] and maintain our May 14th date’ for the next review hearing.
“[M.V.] filed timely notices of appeal from the order of March 5, 2007.
“DISCUSSION
“I
“The governing statute provides in pertinent part: ‘Whenever . . . subsequent to the filing of a petition in the juvenile court of the county where such minor resides, the residence of the person who would be legally entitled to the custody of such minor were it not for the existence of a court order issued pursuant to this chapter is changed to another county, the entire case may be transferred to the juvenile court of the county wherein such person resides at any time after the court has made a finding of the facts upon which it has exercised its jurisdiction over such minor, and the juvenile court of the county wherein such person then resides shall take jurisdiction of the case upon the receipt and filing with it of such finding of the facts and an order transferring the case.’ (§ 375.) Orders made pursuant to this statute are reversed only if the reviewing court concludes the juvenile court abused its discretion. (In re J.C. (2002) 104 Cal.App.4th 984, 993 and authorities cited.)
“Appellant states in his brief that ‘The juvenile court in Alameda County abused its discretion by failing to transfer the cases of [G.C.], [B.C.], and [B.C.I] back to Orange County because the transfer to Alameda County was not in the minors’ [ sic ] best interests. First, appellant would have been entitled to custody of the children if it were not for the dependency petition, and therefore, under section 375, the case should have remained in Orange County.’ Appellant does not establish that the Alameda court abused its discretion.
“There are several difficulties with the way in which appellant frames his contention. First, as he acknowledges, he could have appealed from the transfer order made by the Orange County juvenile court. (Citing In re Christopher T. (1998) 60 Cal.App.4th 1282, 1287-1288.) His failure to do so means that he cannot challenge it now. (In re Jesse W. (2001) 93 Cal.App.4th 349, 355; In re Janee J. (1999) 74 Cal.App.4th 198, 206-207.)
At the March 5 hearing, appellant’s counsel told the court that ‘My client in those proceedings down in Orange County filed an appeal of the orders from the court down there, and . . . that appeal is still pending.’ There is nothing in the record on appeal establishing that appellant initiated an appeal in Division Three of the Fourth Appellate District, which has jurisdiction over appeals from Orange County courts. Likewise, there is no mention of such an appeal in appellant’s brief. Finally, the clerk of this court contacted the clerk of Division Three of the Fourth Appellate District, who advised that there is no record of appeal by appellant. In light of these circumstances, we have proceeded in the belief that appellant did not perfect an appeal from the Orange County court's transfer order.
“Second, appellant treats the Alameda court as deciding that [B.C.I] and [B.C.] should not be returned to Orange County. This is incorrect, because the Agency’s recommendation applied only to the girls, not the boys. Appellant cannot attack the juvenile court for a nonexistent error. (See People v. Lilienthal (1978) 22 Cal.3d 891, 896 [‘it would be wholly inappropriate to reverse a superior court’s judgment for error it did not commit and that was never called to its attention’].)
“Third, appellant asserts that by transferring the dependency the Orange County court ‘effectively terminated appellant's visitation and parenting rights.’ These are arguments that could have been heard only on a timely appeal from the transfer order, and then only if these arguments were first made to the Orange County court. (In re Elijah V. (2005) 127 Cal.App.4th 576, 582; In re Dennis H. (2001) 88 Cal.App.4th 94, 98.) This is not a timely appeal from that order, and there record before us does not establish that a timely objection was made on these grounds prior to transfer.
“At the time the Alameda court made its ruling, there was nothing before it casting doubt on the facts that: (1) the mother was a bona fide resident of Alameda County, and intended to remain so; (2) she had-presumably with the approval of Orange County authorities—gathered all of her children into Alameda County; (3) she was currently living with both of her sons, and; (4) appellant had no inclination to emulate his wife and relocate from Orange County to Alameda County. The transfer itself was evidence that the Orange County social services agency, and the Orange County Juvenile Court, believed that Alameda County was now the more proper venue. Moreover, the transfer is also evidence that the Orange County court had concluded that the transfer was in the children’s best interest. (See Cal. Rules of Court, rule 5.610(e) [‘The court may not transfer the case unless it determines that the transfer will protect or further the child’s best interest’].)
“Returning part of the dependency to Orange County, and we emphasize that that the Agency’s motion covered only the girls and thus only half the children involved, would sunder the family yet again, and at a minimum, unquestionably delay any hope of ultimately reunifying all of the children under one roof. At no point did appellant state, or the Agency accept, that the children could live with him. Thus, a return to Orange County would simply mean another foster home. Moreover, the children’s sole contact with Orange County was the mere fact that appellant lived there. There is nothing to suggest that the mother had retracted her view never to return to Orange County with the children, or that any of them desired to live there. These circumstances fall far short of establishing the manifest abuse of discretion needed for reversal. (In re J.C., supra, 104 Cal.App.4th 984, 993.)
“Finally, appellant spends much time in his brief arguing factual matters such as the wife’s ‘inconsistent’ visitation, her failure to ‘actively participate in services,’ and the inadequacy of her current resources. Because we do not have a record of whatever arguments were made in the Orange County court prior to it ordering the transfer, we do not know that these arguments were in fact made by appellant. But we do know from the reporter’s transcript of the hearing of March 5, 2007, that these fact-based arguments were not advanced by appellant before the Alameda Court made its ruling. These arguments cannot be raised for the first time on this appeal. (In re Elijah V., supra, 127 Cal.App.4th 576, 582; In re Dennis H., supra, 88 Cal.App.4th 94, 98.)
“II
“Appellant’s next contention is that the Alameda court ‘erred in placing [G.C.] in the Mother’s custody when it dismissed jurisdiction over [G.C.].’ And his final contention is that the ‘juvenile court erred in denying visitation to appellant with his children.’ We choose to deal with both contentions because the standard of review is identical (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32 [‘The appellate standard of review of custody and visitation orders is the deferential abuse of discretion test’]) and because the relevant analysis is overlapping. Our review demonstrates that appellant again cannot surmount the high hurdle needed for reversal.
“This court has recognized that when a juvenile court terminates its jurisdiction over a dependent pursuant to section 362.4, it is still empowered to continue existing orders regarding visitation. (In re Hirenia C. (1993) 18 Cal.App.4th 504, 518-519; accord, In re John W. (1996) 41 Cal.App.4th 961, 972-973.) And it is a paramount principle that ‘No visitation order shall jeopardize the safety of the child.’ (§ 362.1, subd. (a)(1)(B).)
“Although appellant focuses upon G.C.’s placement, it must be remembered that G.C. was together with her sister R.C. at the home of their maternal uncle, who lives in Alameda County. Once the dependency was terminated as to G.C. and R.C., their custody would naturally revert to a parent, and such arrangements as the parent would make. (See Fam. Code, §§ 7501, subd. (a), 7505.) Having been advised that efforts were underway to bring together all four children with their mother, the court could reasonably assume that in visiting G.C. or [B.C.I] or [B.C.], there was a likelihood that appellant would also come into contact with R.C. and her mother. Given appellant’s prior history of inappropriate behavior towards both R.C. and the mother, the court could further conclude that the risk of contact with them was unacceptable. Moreover, the court chose to respect the order prohibiting visitation made by the Orange County court. We cannot conclude that erring on the side of caution and the children’s safety amounts to an abuse of discretion. (In re Marriage of Burgess, supra, 13 Cal.4th 25, 32.)
“DISPOSITION
“The order is affirmed.” (In re Bryan C. et al., (April 17, 2008, A117753) [nonpub. opn.].)
Although the dependency had been terminated as to the girls, it continued for the boys, [B.C.] and [B.C.I]. While father’s first appeal was pending, the following events occurred in the juvenile court in 2007:
On May 8, the social worker filed a report for a hearing scheduled for May 14, to review progress in the Family Maintenance Program. The report opened with the court being told that “The children come to the Court from the home of their mother, . . . whose address is confidential” in large part “due to a long history of domestic violence . . . on the part of the father.” The court was also informed that “The mother and the children report being afraid of the father and have not stated that they wanted contact with him.” The mother was described as having “a close and bonded relationship with her children and to be a resilient and resourceful ‘survivor’ working very hard to put her family back together again.”
The “children” at this point were just the two boys. It should be noted that the menace from father was not new, nor was it confined to the boys. In the final communication before the two girls were dismissed from the dependency, the social worker informed the court that the girls “come to Court from the home of the maternal uncle,” whose address was also being kept “confidential.”
The case worker further reported that the mother was benefiting from the services offered by the Agency and “fulfilling the conditions of her [reunification] case plan.” The two boys were enrolled in school and “doing well.” They have “a close relation between the siblings and their cousins, as well as with the adults in the extended family.” (This appears to a reference to the boys’ sisters who are living with their maternal uncle’s family.)
Because the case worker believed that “the Agency needs to remain involved with the family” due to the “detriment to the family if the father were to find out where the family is and reappear in their life,” she recommended that the court continue the dependency for the boys.
At the review hearing held on May 14, both parents were present. Counsel for the mother stated that “Mom is very pleased with the amount of effort that the [case] worker is doing to try to help her . . . . [T]he Agency’s certainly doing everything they can.” As for the boys, counsel reported them as “doing great.” There followed some discussion about a copy of the Orange County restraining order against father not having been received by the Agency.
Father’s counsel stated that “my client is not in agreement with [the Agency’s] recommendations” because he believed that “there was no jurisdiction in Orange County” and thus no jurisdiction in Alameda. Father’s counsel asked the court for visitation with the children, but in Anaheim, not in Alameda. The court stated it was “not prepared to order that.” Father then addressed the court, following which the court stated that it would adopt the social worker’s recommendations. A further family maintenance review was set for October 17.
In her final Status Review Report, the social worker informed the court that “The mother continues to be employed on a full-time basis and is living in an address that must continue to remain confidential due to a long history of domestic violence on the part of the father. . . . The mother was work[ed] very hard to maintain her family financially, as well as to being supportive emotionally and in a nurturing manner. She has also continued her attendance in the required programs, although this has been rather difficult for her, due to the various demands of being a single parent/caretaker to the minors.”
The social worker further reported that “Both boys appear to be doing well now that they are together as a family again. . . . [T]he children appear to be resilient, well-behaved and are closely bonded to each other and to their mother. All of the children have stated to the undersigned more than once that they do not wish to have contact with their father at this point in time.” Because the mother “has completed her case plan,” the social worker recommended that the boys’ dependency be terminated.
The final hearing on October 17 was brief. Father was not present. Merely stating that “Mom has done remarkably well under the circumstances,” her counsel submitted on the case worker’s report. Father’s counsel stated he objected to the recommendation but “we’re not asking for a contest.” The juvenile court then accepted the recommendations and terminated the dependency as to the two boys and ordered that “custody shall be as set forth in the custody order.” Moreover, “I don’t normally do this, but given the domestic violence history here, I am even going to follow the recommendation for no visitation for the father.”
Father filed a timely notice of appeal from the October 17 order.
DISCUSSION
Father claims there is no substantial evidence to support either the custody order or the visitation order. Before turning to the merits, we address one preliminary matter.
As mentioned in the first appeal, we were under the impression that father had not appealed from the order of the Orange County Juvenile Court transferring the dependency to Alameda County. (See fn. 4, ante.) This impression appears to have been erroneous. We granted the Agency’s request to take judicial notice of a decision by Division Three of the Fourth District affirming the transfer order. The reason we were not aware of the matter may be explained by the fact that the father was identified on our first appeal as “M.V.,” while on the Orange County appeal he was identified as “M.C.”
The appellate opinion we have judicially noticed shows that the Court of Appeal rejected father’s contentions, among others, that the Orange County Juvenile Court did not err or abuse its discretion by: (1) finding that it would be detrimental to the four children if custody was restored to father; (2) ordering the dependency transferred to Alameda County; (3) suspending father’s visitation with the children pending completion of a psychological evaluation of Father; and (4) issuing a restraining order prohibiting father from contacting either the mother or the children except through the social worker. (In re R.C. et al., G037935 (July 23, 2007, G037935) [nonpub. opn.].)
Although father frames his contentions in terms of whether the visitation and custody orders have the support of substantial evidence, this is not the correct standard of review. It must be kept in mind that those orders were made in the context of the Alameda County Juvenile Court terminating the dependency. As part of that action, a juvenile court is statutorily authorized to make “an order determining the custody of, or visitation with, the child.” (§ 362.4.) Termination orders are reviewed according to the abuse of discretion standard. (E.g., Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300.) Moreover, in the first appeal, we applied the abuse of discretion standard, noting that it governs review of “ ‘custody and visitation orders.’ ” (Quoting In re Marriage of Burgess, supra, 13 Cal.4th 25, 32.)
However, the point is of no practical importance. As pointed out by Division Three of this District: “The practical differences between the two standards of review are not significant. ‘[E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. . . . Broad deference must be shown to the trial judge. The reviewing court should interfere only “ ‘if [it] find[s] that under all the evidence, viewed most favorably in support of the trial court’s action, no judge could reasonably have made the order that he did.’ . . .” ’ [Citations.]” (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)
Regardless of what standard is used, it is abundantly clear that reversal is not appropriate. The same evidence that we found in the previous appeal demonstrated no abuse of discretion in the making of identical orders when the girls’ dependency was terminated would, by itself, support the same conclusion for the termination of the boys’ dependency. Even in the material generated after the girls’ dependency was terminated, a recurring theme in the case worker’s reports was the abiding fear of the mother and the children that their current confidential location would become known to father. Another theme was their oft-expressed desire to have no contact with father. The final word in the record is the juvenile court advising the mother how to make sure that the restraining order issued in Orange County was “in the system” and enforceable in Alameda County.
This amounts to substantial evidence for the custody and visitation orders. It also demonstrates that there was no abuse of discretion. (In re Jasmine D., supra, 78 Cal.App.4th 1339, 1351.) In light of the foregoing, we reiterate what we said on the first appeal: “We cannot conclude that erring on the side of caution and the children’s safety amounts to an abuse of discretion.”
The Agency argues that, by challenging only the custody and visitation rulings and not the juvenile court’s order officially terminating the boys’ dependency, father shows why his appeal is moot and should be dismissed. The Agency reasons that even if father shows error in either the custody or visitation rulings, reversal would not bring him any effective relief because they are merely incidental to the termination order, which is not attacked. Although there is considerable logic to this reasoning, we have elected to address father’s arguments on their merits. Therefore, the request that the appeal be dismissed as moot is denied.
DISPOSITION
The order is affirmed.
We concur: Kline, P.J., Haerle, J.