Opinion
A117753
4-18-2008
In re BRYAN C., BRANDON C., G.C., and R.C., Persons Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. MATEO V., Defendant and Appellant.
NOT TO BE PUBLISHED
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 Mateo V., the presumed father of three of the children, with any of the children.
Mateo 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 clerks transcript of 2421 pages, and 14 pages of reporters transcripts for three hearings conducted by the Alameda Juvenile Court. Most of the clerks transcript is duplication of the same information; we have in effect the same clerks 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., Brian C., and Brandon C., 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.
The record shows that the the actual spelling of "Brian" is "Bryan."
"On an unspecified date, in approximately 2004, while the child R.C. was thirteen years old, the childs stepfather [i.e., appellant] slapped her, grabbed her arms and threw her to the floor, causing the child severe emotional distress."
"The childrens alleged father [i.e., appellant], has a history of physical violence towards the mother, to include pushing the childrens mother, slapping the childrens mother on the mouth, causing her to bleed and striking the childrens 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 childrens 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 childrens alleged fathers lack of insight into appropriate and safe parenting skills."
Mateo was found to be the presumed father of Brandon, G.C., and Bryan. Mateo submitted a Mexican document in which he acknowledged paternity of R.C., but the mother identified another man as R.C.s actual father. Mateo 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 Brandon and Bryan (who has cerebral 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 childrens father. Basically, the mother reported that she does not like Orange County and has no family support in Orange County. . . . The childrens mother reported that she is employed in Oakland and is attempting to secure an apartment for the children. The childrens 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 childrens 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 reporters transcript, but the minutes show that the court accepted the social workers 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 appellants 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 Fathers care would be detrimental due to fathers behavior," appellant he could "have contact with the children only through mail sent to the childrens 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 the fact or matter as to which the expert evidence is or may be required."
The courts referral asked the expert to "address concerns surrounding fathers visits with minors, effects of fathers 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, Bryan and Brandon were living with their mother, and G.C. and R.C. were living with their mothers uncle in Alameda County. The Agency had informally advised the court that "were 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 mothers 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 Im going to do today is dismiss [R.C.s] and [G.C.s] cases and maintain the . . . cases for Bryan and Brandon and maintain our May 14th date" for the next review hearing.
Mateo 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.], Bryan, and Brandon 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 now 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, appellants 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 appellants 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 courts transfer order.
Second, appellant treats the Alameda court as deciding that Brandon and Bryan should not be returned to Orange County. This is incorrect, because the Agencys 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 courts 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 appellants 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 childrens 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 childs best interest"].)
Returning part of the dependency to Orange County, and we emphasize that that the Agencys 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 childrens 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 wifes "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 reporters 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
Appellants next contention is that the Alameda court "erred in placing [G.C.] in the Mothers 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 Brandon or Bryan, there was a likelihood that appellant would also come into contact with R.C. and her mother. Given appellants 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 childrens safety amounts to an abuse of discretion. (In re Marriage of Burgess, supra, 13 Cal.4th 25, 32.)
DISPOSITION
The order is affirmed.
We concur:
Kline, P.J.
Haerle, J.