Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. CK78524 Marguerite D. Downing, Judge.
Lee Gulliver, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Jacklyn K. Louie, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for Minor.
DOI TODD, J.
In this second appeal, Manuel S. (father) appeals from the juvenile court’s orders terminating jurisdiction over his daughter Emily S. (now age three), and setting forth custody and visitation (the exit orders). Father contends that he did not receive proper notice of the six-month review hearing at which the issues were addressed, and that the juvenile court abused its discretion in denying him a contested hearing. We disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
At the time father filed the instant appeal, his first appeal from the juvenile court’s jurisdictional and dispositional orders was pending. On February 1, 2011, we issued our unpublished opinion in the first appeal (In re Emily S., case No. B221439), affirming the court’s orders. We held that the juvenile court had jurisdiction over Emily and her two older half-siblings, Imelda A. (age 12) and Ruben A. (age five), based on the allegations that father had been sexually abusing Imelda for five years since she was nine years old; that father physically abused Imelda and Ruben; and that father has a history of domestic violence with the children’s mother, D.A. (mother).
In this second appeal, the parties have repeated their lengthy factual statements from the first appeal, which we will not repeat here except to note the following: At the conclusion of the December 2009 jurisdictional and dispositional hearing, the juvenile court ordered the children to be placed with mother. The court also ordered father to participate in parent education and individual counseling to address issues of anger management and domestic violence, and to complete a sexual abuse counseling program for perpetrators. At that time, father was incarcerated on felony charges for lewd acts with a child under the age of 14, and the court ordered that his visits with Emily be monitored. The court also set the matter for a six-month review hearing pursuant to section 364 of the Welfare and Institutions Code. This is where the first appeal left off.
Unless otherwise noted, all statutory references shall be to the Welfare and Institutions Code.
In its subsequent June 18, 2010 status report, the department reported that the children remained happily placed with mother. Imelda and Ruben were participating in, and benefiting from, therapy. Imelda was also participating in an ROTC military program at school, and Ruben had received the “Principal’s Award for Most Improved Student.” Mother was planning to enroll Emily in the local head start program.
Mother had gotten a job and had divorced father. Her restraining order against father remained in effect until September 4, 2014. Mother had completed six months of individual counseling and was making progress, and had completed her courses in domestic violence and parent education. The social worker believed that mother was providing a safe and stable environment for the children and that mother continued to regularly meet their needs. Mother wanted to keep her children with her and wanted the dependency case closed so that she could provide the children with a normal life. Mother had a good relationship with Imelda’s and Ruben’s father, who wanted his children to stay with mother. He was unable to care for them full time due to his job and other children in Mexico, but Imelda and Ruben enjoyed his occasional visits.
Father remained incarcerated in county jail. Mother reported that she did not feel comfortable taking Emily to visit him because she did not think jail was an appropriate setting. The social worker reported keeping in contact with father on a monthly basis by first-class mail. Father sent a letter to the social worker dated May 18, 2010 indicating that he was not able to attend any court-ordered services because they were not available to him in custody. A sergeant at the jail confirmed that father was “not eligible due to housing.”
The department’s report recommended that the juvenile court terminate jurisdiction with a family law order giving mother sole legal custody, with “monitored visits for father.” The department also recommended that the juvenile court terminate family reunification services for father. Notice of the June 18, 2010 hearing and the department’s recommendations was mailed first class to father’s place of incarceration. The same notice was sent electronically to father’s attorney.
At the June 18, 2010 hearing, father was present in custody with his attorney. Father’s attorney informed the court that father was not submitting on the department’s recommendations and requested a contested hearing. The court denied father’s request for a contested hearing “in light of the fact that our job here is to return children to a safe home” and the “court has done that.” Father’s attorney informed the court that father had not seen Emily for 11 months. His attorney argued that because father was not able to receive the court-ordered services in jail, he was not afforded reasonable services. Emily’s attorney asked that mother be granted sole legal and physical custody, and that father have monitored visits once a month after his release from incarceration. The court found that the conditions justifying jurisdiction no longer existed and that continued supervision was no longer necessary. The court terminated jurisdiction, giving mother sole legal and physical custody of the children. The court continued the matter until June 25, 2010, at which time the court issued custody and visitation exit orders. The orders specified that father could have one monitored visit per month after his release from prison, and that his visits were not to be liberalized until he completed a parenting class, individual counseling to address domestic violence and anger management, and a sexual abuse program for perpetrators. This appeal followed.
DISCUSSION
I. Notice of Hearing.
Father contends that he did not receive proper notice of the section 364 six-month review hearing that took place on June 18, 2010. He does not argue that he or his attorney failed to receive any notice at all. Rather, he argues that the notice served was inadequate because the department’s stated recommendation of “monitored visits” did not give him notice that his visits would be suspended “indefinitely” until his release from custody, that his visits would be reduced to once per month, and that any liberalization of his visits would be conditioned on his fulfillment of certain requirements. He therefore claims that “he did not have an opportunity to prepare appropriately for the hearing or to formulate the arguments and objections that he might make in support of his position.” We find no merit to father’s contention.
Section 292, subdivision (d) provides that notice of a review hearing held pursuant to section 364 “shall contain a statement regarding the nature of the hearing to be held and any change in the custody or status of the child being recommended by the supervising agency.” Father and his attorney were clearly put on notice that termination of jurisdiction, custody and visitation were issues that would be addressed at the June 18, 2010 hearing. Father’s attorney seemed to understand these topics were at issue, as she made arguments and requests on father’s behalf in court.
Additionally, we have granted father’s request to take judicial notice of a criminal minute order indicating that all criminal charges against father were dismissed in the furtherance of justice pursuant to Penal Code section 1385 as the prosecution was unable to proceed, that there are no plans to refile the charges, and that father was released on July 1, 2010, just six days after the juvenile court’s written exit orders were issued. Thus, contrary to father’s argument, his visits with Emily were not suspended “indefinitely.”
Father also complains that the frequency of his visits with Emily was reduced from once a week to once a month, without any prior notice to him. But the juvenile court noted at the review hearing that more visits could occur if the parents agreed.
Finally, father claims he had no notice that liberalization of his visits would be conditioned on his fulfillment of certain “preconditions.” But all of these preconditions constituted father’s original case plan, and they did not prevent the visits from taking place. Father claims the visitation order is permanent, citing section 302, subdivision (d), which provides that a juvenile court’s exit orders remain in effect after dependency jurisdiction is terminated and cannot be modified by a family law court unless that court finds that there has been a significant change of circumstances since the juvenile court issued the order and that the modification is in the best interests of the minor. As the department notes, there is nothing to prevent father from bringing the status of his criminal case to the attention of the family law court in seeking any modification of the exit orders.
We are satisfied that the notice given to father of the section 364 review hearing provides no basis for remanding the matter to the juvenile court or reversing its orders.
II. Contested Hearing.
Father contends that the juvenile court abused its discretion by denying his request for a contested hearing prior to terminating jurisdiction over Emily and issuing exit orders regarding visitation and custody. (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300 [“We normally review the juvenile court’s decision to terminate dependency jurisdiction and to issue a custody (or ‘exit’) order pursuant to section 362.4 for abuse of discretion”].)
The department concedes that a parent has a right to an evidentiary hearing on the issue of exit orders. (In re Michael W. (1997) 54 Cal.App.4th 190, 194–196.) But the department argues that the failure to grant father’s requested evidentiary hearing was harmless error. (See In re Michael W., supra, at pp. 196–197; In re Chantal S. (1996) 13 Cal.4th 196, 214.) We agree.
Here, father fails to establish that an evidentiary hearing would have resulted in a different outcome. Father essentially argues that had he been granted a contested hearing he would have presented evidence on three issues: The lack of “reasonable services” in jail, the lack of visitation with Emily, and his desire to have joint legal custody of Emily. But all of these issues were, in fact, presented to the juvenile court.
First, not only did father’s attorney argue to the court at the section 364 hearing that father was not receiving reasonable services because none of the court-ordered case plan services were available to him in jail, but the court was already made aware of this fact by the department’s status report.
Second, father’s attorney informed the court that father had not seen Emily in 11 months. Again, the court was aware of this fact from the status report, which stated that mother had not taken Emily to visit father in jail because she did not believe it was an appropriate setting. Father claims he could have presented evidence of the availability of family visitation facilities at the county jail. But this evidence could not change the past, and quickly became irrelevant in light of father’s release from custody.
Finally, father points out that he requested joint legal custody of Emily. But as he acknowledges, his attorney explained to the court that mother could easily contact father in jail by letter regarding any issues concerning Emily. The court understood this and noted the reality that it would be “more than difficult” for mother to contact father for his input if he were convicted on the criminal charges pending against him and sent to prison. At the time the court terminated its jurisdiction and issued exit orders, father was still awaiting trial on the criminal charges. Father identifies no evidence he could have presented at that time that would have resulted in a different outcome on the issue of legal custody. Indeed, mother still has a restraining order against father in effect until September 2014, stemming from father’s threats to do violence to mother, Emily and her siblings. Emily’s attorney reminded the court of this restraining order during the section 364 hearing.
Because father has not demonstrated any prejudice by the lack of an evidentiary hearing, any error by the court in refusing to grant such a hearing was harmless.
DISPOSITION
The orders are affirmed.
We concur: BOREN, P. J., ASHMANN-GERST, J.
Section 364, subdivision (a) provides in part: “Every hearing in which an order is made placing a child under the supervision of the juvenile court pursuant to Section 300 and in which the child is not removed from the physical custody of his or her parent or guardian shall be continued to a specific future date not to exceed six months after the date of the original dispositional hearing.”
At a section 364 hearing, “the only issue before the court is ‘whether continued supervision is necessary.’’’ (In re Natasha A. (1996) 42 Cal.App.4th 28, 35.) The court must terminate its jurisdiction unless the department “establishes by a preponderance of evidence that the conditions still exist which would justify initial assumption of jurisdiction under Section 300, or that those conditions are likely to exist if supervision is withdrawn.” (§ 364, subd. (c); In re Janee W. (2006) 140 Cal.App.4th 1444, 1450.)