Opinion
A118993
6-4-2008
In re ERIN R., a Person Coming Under the Juvenile Court Law. SONOMA COUNTY HUMAN SERVICES DEPARTMENT, Petitioner and Respondent, v. RICHARD R., Objector and Appellant.
NOT TO BE PUBLISHED
Minor Erin R.s younger brother, Richard R., appeals from the denial in part of the relief sought in his August 2007 petition under Welfare and Institutions Code section 388 for increased contact and visitation with Erin. Richard contends that he was denied due process when the trial court scheduled a hearing on the petition and then denied him the right to present evidence or make arguments in support of his petition. We find no prejudicial error and affirm the juvenile courts order.
All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
I. BACKGROUND
A. Termination of Parental Rights
This section reiterates the summary of facts and proceedings contained in our nonpublished opinion in In re Erin R. (Feb. 13, 2008, A117602) (Erin II):
At Richards request, we have taken judicial notice of the appellate records in appeal Nos. A117602 and A112531.
Erin was born in November 1995. Her brother, Richard, was born in May 1997. On March 28, 2003, the juvenile court detained the children after receiving new reports of abuse and neglect by their parents. The record disclosed a history of such reports, dating back to 1998.
The Department filed petitions pursuant to section 300. As subsequently amended, the petitions alleged, among other things, that Father had witnessed physical assaults on the minors by their mother and failed to protect them. At the jurisdiction hearing, the parents submitted on the Departments report and recommendation that the petitions be sustained. The court sustained the amended petitions, declared the children dependents of the court, and ordered reunification services for the parents.
Richard and Erin were originally placed together in a foster home. They were moved together three times to new foster placements due in part to Erins disruptive and oppositional behaviors. By the 12-month review, psychologist Kathy Dark was recommending that the children be separated due to their different needs. Dr. Dark believed that Richard needed nurturing and attention while Erin required tight structure and discipline to create a feeling of safety so that she did not have to have control. Erin was moved to a group home in February 2004.
Between the 12- and 18-month reviews, Father failed to report to the Department that mother had hit Erin during a visit, which led to an immediate curtailment of visits. At the 18-month review hearing, the court terminated reunification services for Erin and set a section 366.26 permanency planning hearing for her. In Richards case, the court ordered the Department to begin trial visits with the Father and to institute a plan to transition him back into Fathers home. All reunification services for mother were terminated. Father and mother had separated early in the dependency proceedings, and father had a new job and a new fiancée, Sarah L. Richards trial home visit was successful, and his dependency was eventually dismissed.
Before the section 366.26 permanency planning hearing for Erin, Father filed a section 388 modification petition asking the court to allow Erin to return home on a trial visit and to vacate the section 366.26 hearing. He cited the juvenile courts decision to return Richard to Fathers home and the progress Father demonstrated in the Departments trial home visit report as per se indicators of change of circumstances. Father also cited Erins bond with her brother. Erins section 366.26 report, dated April 7, 2005, recommended termination of parental rights and adoption. At Fathers request, the court approved a bonding study to address Erins relationship with mother and Father, her proposed adoptive parents, and her brother Richard.
Erin was placed in the home of Mr. and Mrs. W. in June 2005. Mrs. W. was a preschool teacher at Erins school to whom Erin had developed an attachment. The W.s expressed interest in adopting Erin if she could not return to her father.
Following a combined trial, the juvenile court denied Fathers section 388 petition and selected adoption as the permanent plan for Erin. The juvenile court found that none of the exceptions to adoption applied and that there were no barriers to adoption by the W.s or "another person if the W[.s are] no longer available." The court found that Erin lacked basic trust in either parent, did not have a positive emotional attachment to either parent, and did not perceive either parent as being able to protect her or provide for her needs on a consistent basis. While recognizing that Father had made great strides in ameliorating the issues that had led to Erins dependency, the court also found that Erins early years had caused her lasting emotional damage, and that Father lacked the ability to provide the type of structure, boundaries, and sense of safety that she required.
Regarding Erins relationship with Richard, the court found that Erins loving feelings toward Richard were mixed with anger, and that she was sometimes controlling and mean to him. Relying on the testimony of expert witnesses including an adoption specialist, Erins psychotherapist, and the clinical psychologist who had performed the bonding study, the court found that Erin played a parental role toward Richard that interfered with her own emotional health.
The court found that it was not in Erins best interest that she be returned to her father, even on a trial basis. It terminated Fathers parental rights and set adoption as the permanent plan. Both parents appealed. This court affirmed the juvenile courts orders in December 2006. (In re Erin R. (Dec. 29, 2006, A112531) [nonpub. opn.] (Erin I).)
B. February 2007 Modification Petition
In December 2006, Erins adoptive placement with the W.s failed and she was returned to the Valley of the Moon Childrens Home (VOMCH) until a suitable adoptive home could be found. While Erin was residing with the W.s, her visits with Richard had been limited to one hour of supervised visitation per month. After moving to VOMCH, Richard and Erin were initially permitted unlimited telephone contact and increased visitation.
In February 2007, Richard filed a "Request to Change Court Order" (form JV-180) pursuant to section 388. The materials filed in support of the request cited and sought relief under both subdivisions (a) and (b) of section 388. The order Richard requested be changed was the order terminating Fathers parental rights and setting adoption as the permanent plan. The request also referred to the limited visitation he had been allowed while Erin was living with the W.s. The changed circumstances cited in the request were that: (1) the adoption by the W.s had fallen through; and (2) Richard was now in regular contact with Erin.
Section 388, subdivision (a) requires the existence of a prior court order. Subdivision (b), which may only be asserted by persons claiming a sibling relationship with the dependent child, does not require a prior court order. The two subdivisions read in relevant part as follows: "(a) Any parent or other person having an interest in a child who is a dependent child of the juvenile court . . . may, upon grounds of change of circumstance or new evidence, petition the court . . . for a hearing to change, modify, or set aside any order of court previously made . . . . [¶] (b) Any person . . . may petition the court to assert a relationship as a sibling related by blood . . . [to] a dependent of the juvenile court, and may request visitation with the dependent child . . . or consideration when . . . implementing a case plan or permanent plan for the dependent child or make any other request for an order which may be shown to be in the best interest of the dependent child." Subdivision (c), which applied to petitions asserted under both subdivisions (a) and (b), states in relevant part: "(c) If it appears that the best interests of the child may be promoted by the proposed change of order [or] recognition of a sibling relationship . . . , the court shall order that a hearing be held . . . ."
On February 9, 2007, the juvenile court responded to the petition by checking box No. 13.b. on form JV-180, which states: "The judge will not hold a hearing. The judge will make a decision based on your request and any other papers filed by [the Department or the minor]. You . . . may ask for a hearing, which the judge will hold if there is good cause." Richards attorney promptly submitted a brief requesting a hearing and the Department filed written opposition
The Department argued that Richard had failed to make a prima facie showing required to warrant a hearing on his modification petition. Regarding the claim of changed circumstances, the Department stated that although the first adoptive placement had failed, Erin had "recently been placed in a new adoptive home and adoption continues to be the most appropriate permanent plan for her." Erins counsel also opposed Richards request for a hearing, characterizing it as "a thinly veiled attempt by the father who has failed at reunification and who has had his parental rights terminated to . . . regain custody as if he could turn back the clock to begin the reunification process all over again."
Erin was placed in a new adoptive home on January 31, 2007. At that time, the Department stopped allowing the calls and reduced Richards supervised visits with Erin back to once per month.
The juvenile court denied Richards modification petition without an evidentiary hearing on March 16, 2007, checking the box on form JV-180 stating that "[t]he request does not show that it will be in the best interest of the child to change the order." Richard filed a "Motion to Reconsider Order Regarding Request for Modification and Request for Hearing" that focused primarily on the cutoff of Richards visitation, and sought an order compelling the Department to grant increased visitation. The juvenile court denied Richards motion to reconsider the decision to hold no hearing on his section 388 petition, and denied the request for reconsideration of the petition. We affirmed those decisions in Erin II, supra, A117602.
C. August 2007 Proceedings
On May 2, 2007, Erins second adoptive placement failed and she was returned to VOMCH. The Departments recommended plan was that she remain in the group home "until she `age[d] out "at age 14, as the Department no longer considered her to be to be adoptable. The court changed Erins permanent plan in accordance with the Departments recommendation on August 16, 2007. In August 2007, the Department approved the resumption of monthly supervised visitation between Erin and Richard, which began with a visit on July 26.
In August 2007, Richard again petitioned under section 388, this time seeking an order (1) allowing him weekly visits and unlimited telephone communication with Erin to be followed up by an evaluation for unsupervised weekend visits, and (2) enjoining the Department from unilaterally terminating his visitation with Erin in the future. Richard cited the failure of Erins second adoption as the changed circumstance warranting a modification of visitation, and requested an evidentiary hearing on his petition.
Although Richard did not address whether the weekly visits and telephone calls would be supervised or unsupervised, it seems clear that allowing "unlimited" telephone calls would mean that the calls could not be supervised.
The petition, submitted on form JV-180, was supported by an extensive points and authorities and by declarations from Richards stepmother, Sarah L., Richards appellate counsel in Erin II, and Richards trial counsel. Sarah L. averred that Richard missed his sister and wished to see her during the five-month period preceding July 26 when visitation had been cut off, and that he continued to desire more contact with her than he was being allowed. She further stated that Richard "wants Erin to return to our home and believes Erin also wants to return to our home." According to Richards trial counsel, Richard looked forward to visits with his sister and wished he could see her all the time. Richards appellate counsel stated that she had visited Richard in his home. He told her he " `really missed everything about " Erin and showed her a letter from Erin that was hanging on his wall in which Erin had written " `[Richard] + Erin = Brother & Sister 4 ever!"
On August 20, the trial court signed the order page of Richards form JV-180 petition. Instead of checking the box next to paragraph 13.b. as it had in response to the February 2007 petition, the court this time checked the box next to paragraph 13.a. and left the box next to paragraph 13.b. unchecked. Paragraph 13.a. reads as follows: "The best interest of the child may be promoted by the requested new order, and either (a) the request states a change of circumstance or new evidence, or (b) the request has been filed for the purpose of asserting a brother or a sister relationship with the child. A hearing shall be held on the request as follows: [¶] a. • The matter is set for a hearing on (date) _________ at (time) _______ a.m./p.m. in Dept. _____ ." The court set a hearing for August 30, 2007 at 1:30 p.m.
On August 29, the Department submitted a written "Opposition to Request for Hearing on Section 388 Petition," with an accompanying declaration from Betty Johnson, the social worker who had been handling Erins case. The Department argued that Richard failed to make a prima facie showing that increased visitation was in Erins best interest. The Department stated, among other things that the letter Erin had written to Richard did not constitute evidence of Erins current feelings because it was undated, no one recalled when it was written, and it could have been written when Erin and Richard were still in placement together. According to Johnson, the team of professionals working with Erin—including her therapist, CASA worker, juvenile court counsel, and the director of her group home—had reached a consensus that the current once-per-month schedule was appropriate. According to Johnson, Erin had not asked to have more frequent visits with her brother.
The Department may have believed that the court was operating under the Superior Court of Sonoma, Local Rules, rule 10.20.B. (rule 10.20.B.), under which the court first determines whether a modification petition appears to merit a full hearing, and may schedule an abbreviated oral argument for the limited purpose of determining whether to set the matter for trial or deny it on the record. (Rule 10.20.B., ¶ 6.) Under the local rule, this procedure occurs even before the petition is allowed to be filed. (Rule 10.20.B., ¶ 6.d.) The rule also requires advance service of a draft petition and the marking of the original petition as "received" when it is initially submitted to the court. (Rule 10.20.B., ¶¶ 1-5.) None of this appears to have occurred in this case.
On August 30, Richard submitted a written reply to the Departments opposition requesting that the court personally inquire into Erins wishes regarding visitation. The reply papers included a declaration from Richards trial counsel with exhibits showing that counsel had requested Erins trial counsel to have Erin present for the hearing and requested permission for Dr. Albert Kastl, an expert psychologist retained by Richard, to meet with Erin. Counsel also averred that he had learned from Erins trial counsel that Erin wanted increased visitation with Richard.
At the outset of the August 30 hearing, Richards juvenile court counsel, Eric Lifschitz, advised that Dr. Kastl was on call and available to testify. Lifschitz explained that he had not brought Dr. Kastl to the hearing because he had been informed by the court clerk that Kastl might or might not be allowed to testify at the hearing. Lifschitz also requested a ruling on his previously submitted request that Sarah L. be appointed a guardian ad litem (GAL) for Richard and be allowed to attend the hearing. He explained that the GAL would have notice of and could participate in all future dependency proceedings regarding Erin. The Department objected on the grounds that the appointment was unnecessary and there was no legal basis for Richards father or stepmother to have any role in Erins future dependency proceedings through the device of having Sarah L. appointed as Richards GAL. Although the court did appoint Sarah L. as Richards GAL for purposes of the hearing, it denied Lifschitzs request that she be appointed GAL generally for Richard and be required to receive notifications of future proceedings.
After taking a recess to read Richards August 30 submission, the court turned to counsel for Erin and explained that it had scheduled the hearing as a vehicle for determining whether Erin wanted increased visitation with Richard: "[T]he Court has received a JV-180 and the Court was concerned based on the information that was provided as to what Erin wants to have happen. And the only real vehicle that the Court immediately had available to it . . . was to have the proceeding today for the Court to make a determination if theres a showing that would require a hearing to determine if a change in [visitation] would be in the best interest of Erin. [¶] As the lawyer for Erin, what is your clients position?" (Italics added.)
Erins trial counsel, Patricia Lansdowne, reported that she had spoken to Erin and that Erin wanted "a little more time" with Richard in visitation and did not have a problem with having regular telephone contact with him. Erin "somewhat agreed" that the visits and calls should be supervised. According to Lansdowne, Erin was "ambivalent" about weekend visits to Richards home. She had never asked for extra visits with Richard herself. When the idea of home visits was raised with her, she responded by saying, "[O]h, good, Id get to see my kitty again," but did not seem at all focused on seeing her brother in that setting, according to Lansdowne.
Lansdowne told the court that Erin may have remembered Richard telling her that her kitty missed her during an earlier telephone conversation in which he started talking to her about her how nice it was at home, and that this was one reason his telephone calls to her needed to continue to be monitored. Lansdowne described Erin as "a really fragile, vulnerable girl" and recommended that the court approach increased visitation cautiously and that it take a "wait and see" attitude toward any increase in visitation beyond an increase to one two-hour supervised visit per month and weekly supervised telephone contact of 10 to 15 minutes. The Department did not oppose an increase in visitation to that level. The Department stated that it would be closely monitoring Erins reaction to the increased visitation.
After Lansdowne and counsel for the Department had been heard, Lifschitz asked the court, "[W]ill we be provided any opportunity to address any of these issues?" The court responded as follows: "Well, sir, I read your JV-180, and it brought up issues that the Court wanted to resolve. Your declaration and information I dont believe did [rise] to the level of warranting a hearing, but I did want to talk about the issues with minors counsel. [¶] But the Court, based upon the information the Court has . . . is not going to order unlimited telephone communication and unsupervised weekend visits."
Lifschitz asked the court for "an opportunity for us to at least present some oral argument," and to explain why they would want to present further evidence. The court responded that counsel should have presented any additional information for the court to review in written declaration form. The court reiterated its position that the evidence Richard had presented did not warrant a hearing but that the court "did want to use it as a vehicle to bring the parties together so we could discuss the issues."
The juvenile court ruled in relevant part as follows: "[The] Court does not find sufficient evidence to grant an evidentiary hearing re 388 Petition. Court orders the following contact between [Erin] [and] Richard: weekly supervised telephone contact—10 [to] 15 minutes [and] supervised visits increased to 2 hours monthly." The court also stated on the record that the Department could not reduce visitation without coming back to court.
Richard timely appealed.
II. DISCUSSION
Richard makes the following contentions on this appeal: (1) the subject order is void because the trial court employed a procedure that is unauthorized by law; (2) the court erred and denied Richard his federal constitutional right to due process by depriving him of a full evidentiary hearing on the merits of his petition; (3) the court erred in finding that there were no changed circumstances to warrant a hearing; (4) the trial court failed to apply the best interest standard and remand is required in order to determine Erins best interests; and (5) the court erred when it vacated the appointment of Richards GAL at the end of the hearing. Although Erin filed no appeal from the courts orders, Erins appellate counsel joins in Richards argument that the court erred in denying him an evidentiary hearing. Appellate counsel asserts that the error deprived Erin, as well as Richard, of due process.
We note that Erins appellate counsel is thus seeking to reverse on procedural grounds an order that her trial counsel recommended to the court.
A. Denial of Petition
We begin by trying to understand the substance and effect of the juvenile courts seemingly contradictory actions in response to Richards August 2007 modification request. At the hearing, the court stressed that it did not believe Richard had made out a prima facie case warranting a hearing on his proposed modification. At the same time, rather than denying the petition without a hearing as contemplated by the statute and by paragraph 14 of form JV-180, the court had checked paragraph 13.a. on form JV-180 indicating that Erins best interest "may be promoted by the requested new order" and that the request stated a change of circumstance or was filed for the purpose of asserting a sibling relationship with the minor. Notwithstanding the language of paragraph 13, the court explained that it had called the hearing in order to hear from Erins counsel whether Erin wanted increased visitation and on that basis to resolve the visitation issues raised in the petition. Based on the form, Richard argues that the court must be deemed to have made findings that his petition did set forth a prima facie case of either changed circumstances or asserting a sibling relationship, and that Erins best interests might be promoted by the requested order. Based on those preliminary findings, Richard and Erin both argue that the court could only determine the matter based on a full evidentiary hearing on the merits. Since the court did not allow such a hearing but proceeded to decide on a visitation order without taking evidence or even allowing oral argument on the merits from Richards counsel, Richard and Erin argue the procedure was unlawful and violated their statutory and due process rights to an evidentiary hearing to determine Erins best interests.
As we read section 388, subdivisions (b) and (c), a sibling who seeks increased visitation with a dependent minor, as in this case, makes out a prima facie case warranting a hearing if he or she alleges facts that if found to be true would show that the visitation order sought would be in the minors best interests. Unlike subdivision (a) of section 388, no prior order and no separate showing of changed circumstances or new evidence is required under these subdivisions.
We construe the courts actions somewhat differently. In our view, the court must be taken at its word when it expressly stated at the hearing and in its written order following the hearing that it did not find Richard had met his prima facie burden. As discussed post, that finding was correct and, because it was correct, no evidentiary hearing was required under section 388. Nonetheless, having rejected Richards petition without a hearing due to its insufficiency, the court was not powerless to address the issue of visitation or to make a new order for increased visitation.
Section 385 provides: "Any order made by the court in the case of any person subject to its jurisdiction may at any time be changed, modified, or set aside, as the judge deems meet and proper, subject to such procedural requirements as are imposed by this article." This statute and its relationship to section 388 and to the inherent powers of the juvenile court under the California Constitution were explained in Nickolas F. v. Superior Court (2006) 144 Cal.App.4th 92 (Nickolas F.) at pages 110-118. In brief, Nickolas F. held that a juvenile court has the statutory authority under section 385 to modify its prior orders sua sponte. (Nickolas F., at pp. 98, 116.)
In Nickolas F., the juvenile court adopted the agencys recommendation at the disposition stage that reunification services be offered to the father of two minors despite information in the agencys disposition report that the father was incarcerated for having abused the minors paternal half brother. (Nickolas F., supra, 144 Cal.App.4th at pp. 99-100, 103.) The agency ultimately provided no services to the father. (Id. at p. 102.) When a new social worker was assigned to the case, the agency learned that the fathers abuse of the minors half brother had been far more grievous than previously assumed. (Id. at pp. 101, 102-103.) When the agency recommended at the 12-month stage that reunification services be terminated and a section 366.26 permanency planning hearing be set, the father objected on the ground that no services had been provided despite the dispositional order requiring them. (Nickolas F., at pp. 101-102.) The court continued the proceedings in order to give the agency time to petition under section 388 to modify the dispositional order to deny reunification services for the father. (Nickolas F., at p. 102.) The agency alleged in its petition that modification was warranted by "new evidence" before the court concerning the exact nature of the fathers crime and the length of his incarceration. (Ibid.) The juvenile court agreed, found the modification would be in the minors best interests, modified the dispositional order to deny reunification services to the father, and set a permanency planning hearing. (Id. at p. 103.)
On writ review of the courts orders, the appellate court found that the orders were unauthorized by section 388, but that the error was harmless because the result would have been the same had the juvenile court acted pursuant to section 385 or its constitutional authority under California Constitution, article VI, section 1. (Nickolas F., supra, 144 Cal.App.4th at pp. 99, 106-110, 119.) Relying on Le Francois v. Goel (2005) 35 Cal.4th 1094 (Le Francois), the appellate court rejected the fathers argument that the final clause of section 385—making the courts power to modify its previous orders subject to the procedural requirements of Welfare and Institutions Code, article 12—means that the court may not modify a prior order unless a party or interested person has filed a petition for modification pursuant to section 388 and the court proceeds in compliance with the requirements of that section. (Nickolas F., at p. 112.) The Nickolas F. court reasoned as follows: "By its terms, section 388 applies only when a party petitions the court for modification . . . . Nothing . . . in the plain language of section 385 indicates that the Legislature intended to limit the juvenile courts authority to reconsider its previous orders to circumstances in which a party has filed a petition pursuant to section 388. [¶] This conclusion is consistent with the California Supreme Courts reasoning in Le Francois. . . . The Le Francois court held that statutes that deal with reconsideration of motions may constitutionally limit the ability of the parties to file repetitive motions, but may not impede the trial courts ability to reconsider its prior interim orders on its own motion so that it may correct its own errors. [Citation.] . . . [I]f the statutes at issue [so] . . . limit[ed] the trial courts authority, [they] would ` "directly and materially impair and defeat the courts most basic functions, exercising its discretion to rule upon controversies between the parties and ensuring the orderly administration of justice," and would thus violate the separation of powers doctrine embodied in the California Constitution. [Citation.]" (Id. at pp. 113-114, fn. omitted.)
Article VI, section 1 of the California Constitution provides: "The judicial power of this State is vested in the Supreme Court, courts of appeal, and superior courts, all of which are courts of record."
The position rejected by the court in Nickolas F. is, in substance, the position Richard has taken in arguing that the juvenile courts visitation order in this case is void.
In our view, the reasoning of Nickolas F. is sound, applies to the facts of this case, and authorizes the juvenile court action from which Richard has appealed. As in Nickolas F., the juvenile court here was unaware that it had the power to revisit the issue of Richards visitation sua sponte and thereby caused some confusion about the parties procedural rights. But any error in that regard was harmless because the court was empowered by section 385 and its inherent powers under article VI, section 1 of the state Constitution to reach the same result. In reaching that conclusion, we consider the following issues: (1) did the juvenile court properly deny Richards petition without a hearing under section 388; (2) were Richard or Erin otherwise denied notice and an opportunity to be heard under section 385; and (3) does the record show that the court applied the best interest standard and exercised its independent judgment?
We note preliminarily that section 385 by its terms presumes the existence of a prior court order to be modified. At the August 30, 2007 hearing, the Department asserted at one point that there had not been any prior court orders concerning visitation between Richard and Erin. However, as Richard points out, the court had previously signed an order that, among other things, expressly approved the visitation schedule that was being followed prior to the Departments suspension of visitation in February 2007. Moreover, any authority the Department properly exercised over visitation ultimately stemmed from the order establishing the juvenile courts dependency jurisdiction over Erin, and its ensuing orders approving the Departments recommended plans for her, since the Department merely "acts as an arm of the court" in a dependency case. (See In re Danielle W. (1989) 207 Cal.App.3d 1227, 1234.) Thus, when the court adopted its order on visitation at the August 30 hearing, it was modifying a prior order for purposes of section 385.
1. Summary Denial of Section 388 Petition
Neither Richard nor Erin offer any analysis of Richards petition and supporting declarations to show that they made out a prima facie case under section 388. They rely instead on the fact that the court checked paragraph 13.a. of form JV-180 as proof that Richards prima facie burden was satisfied. However, as the court made clear at the hearing, it checked paragraph 13.a. because it saw no other mechanism in form JV-180 to bring the parties in for a hearing on the issue of visitation since, in its view, Richard had failed to make a prima facie showing under section 388. Although there is no question that the court misled the parties about the nature of the hearing by proceeding in that manner, no principle of estoppel or appellate review makes the courts act of checking a box on form JV-180 binding on this court if, in fact, the court was correct in finding that the petition did not warrant a hearing.
We review a summary denial of a hearing on a modification petition for abuse of discretion. (In re Zachary G. (1999) 77 Cal.App.4th 799, 806 (Zachary G.).) We will not disturb the decision of the trial court unless the trial court exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination. (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 421.) "The prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition." (Zachary G., at p. 806.) When determining whether the petition makes the necessary showing, the court may consider the entire factual and procedural history of the case. (In re Justice P. (2004) 123 Cal.App.4th 181, 188-189; In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451.)
Here, against the background of the factual history of this case, Richard had the burden of alleging facts that, if true, would have shown that weekly visits and unlimited telephone communication with Erin to be followed up by evaluation for unsupervised weekend visits was in Erins best interests. (§ 388, subds. (b), (c); Zachary G., supra, 77 Cal.App.4th at p. 808.) The relevant factual background included the courts 2005 findings that: (1) Erin had suffered lasting emotional damage and was left in a fragile emotional state as a result of the abuse she suffered in her early years and her fathers inability to protect her; (2) Erins loving feelings toward Richard were mixed with anger and their relationship was sometimes strained and detrimental to both of them; (3) Erin tended to act in a parental and controlling fashion toward Richard that substantially interfered with her own emotional health; and (4) it was not in Erins best interest that she be returned to her fathers custody even on a trial basis.
Against this background, the three declarations Richard submitted in support of his modification petition fell well short of supporting a requested visitation order that would have allowed essentially unlimited visitation and contact between Erin and Richard leading toward possible unsupervised weekend stays by Erin in her fathers custody. Sarah L.s declaration stated in material part: "The termination of visits between [Richard and Erin] was not in the best interest of Erin or [Richard]. [Richard] missed his sister and wished to see her during this period. He continues to desire more contact with Erin. [¶] . . . [Richard] wants Erin to return to our home and believes Erin also wants to return to our home. [¶] . . . I support [Richards] goal of increased visitation with his sister . . . ." Richards trial counsel, Eric Lifschitz, submitted a declaration averring that he had spoken to Richard and Richard looked forward to his visits with his sister and wished he could see her all the time. Richards appellate counsel also averred that Richard told her he missed his sister and had put an undated note from her on his wall in which she expressed her love and affection for him as her brother.
As we read them, the supporting declarations showed at most that an affectionate brother-sister bond existed between Richard and Erin, that Richard wanted more visitation with Erin, and that he believed (without any stated foundation) that she wanted more visitation with him. The declarations were devoid of any competent evidence that it would be in Erins best interests for visitation with Richard to be increased to the extent that he sought, much less for her to have weekend visits in her fathers home. The latter would have been in direct contradiction with Erins permanent plan and with previous findings as to her emotional needs. The declarations also completely failed to address or dispel the courts earlier findings regarding Erins relationship with her brother and its impact on her emotional state. In short, we cannot say that the juvenile court abused its discretion in determining that Richard failed to meet his threshold prima facie burden to show that a hearing was required under section 388.
Lifschitz submitted a "reply" declaration on the day of the hearing in which he reported being informed the previous day by Erins counsel that Erin had expressed a desire for increased visitation with Richard. However, as Erins counsel made clear at the hearing, she had raised that subject with Erin in preparation for the hearing. It had not been initiated by Erin. There is no indication that Erin actively sought the level of visitation Richard was requesting, much less that the requested level of visitation would have been in her best interests.
Since no hearing was required, Richards and Erins arguments that a full evidentiary hearing with oral testimony was required under section 388 also fail.
Erin appears to read section 388 to automatically require an evidentiary hearing unless the petition is summarily denied. With exceptions not relevant here, the California Rules of Court leave the form of hearing to the discretion of the court unless "[t]here is a due process right to confront and cross-examine witnesses." (Cal. Rules of Court, rule 5.570(h)(2)(B).) As we noted in Erin II, supra, A117602, form JV-180 does not match up very well with rule 5.570 in that regard and is causing unnecessary confusion and litigation. Other appellate courts have observed the same problem. (See In re C.J.W. (2007) 157 Cal.App.4th 1075, 1080 [form JV-180 and rule 5.570 are "hopelessly inconsistent" regarding whether and how a hearing will be conducted]; In re Lesly G. (2008) 162 Cal.App.4th 904.)
2. Notice and Opportunity to Be Heard
Nickolas F. holds that "the juvenile court has the statutory authority, pursuant to section 385 to change, modify, or set aside `[a]ny order made by the court in the case of any person subject to its jurisdiction sua sponte, after providing the parties with notice and the opportunity to be heard. [Citation.]" (Nickolas F., supra, 144 Cal.App.4th at p. 98, italics added, fn. omitted.)
In this case, all parties were noticed that there would be a hearing on August 30, 2007 to consider possible modification of the visitation allowed between Richard and Erin. Richards attorney was informed by Lansdowne before the hearing that she would be making a proposal for increased visitation that would not include home visits. Although Richard did not have advance notice that the hearing would focus on Lansdownes proposal, or of its exact terms, we believe Richard and his counsel had sufficient notice that the court might modify Richards visitation rights at the August 30 hearing to satisfy due process requirements.
Regarding Richards "opportunity to be heard," we have noted that the court did not permit Lifschitz to offer argument orally on the visitation proposals offered by the minors counsel. But that is not in itself a denial of the opportunity to be heard. We know from the standpoint of statutory interpretation that the terms "heard" or "hearing" do not necessarily require an opportunity for oral argument. (Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1247.) The courts consideration of a partys written submissions or of the written record may constitute a sufficient "hearing" in law. (Id. at pp. 1248-1251.) In our view, given the extent of Richards prehearing written submissions, the nature of the courts contemplated action, and the procedural posture of the case, Richard did have a meaningful and adequate opportunity to be heard.
Prior to the hearing, Richard submitted a 42-page brief addressing why he should be granted increased visitation with Erin. On the day of the hearing, he submitted a second five-page brief, along with a declaration and six exhibits, which the court took time out to read before proceeding with the hearing. As we noted in Erin II, supra, A117602, Richard had also filed extensive briefs on the subject of visitation in connection with his February 2007 modification petition and March 2007 "Motion to Reconsider Order Regarding Request for Modification and Request for Hearing" before the same juvenile court judge. Thus, at the time of the hearing, Richards position and arguments regarding the extent of the visitation he desired and the reasons such visitation should be granted had been spelled out in great detail and were familiar to the court. It was unlikely that further argument along those lines delivered orally would have broken new ground or influenced the result.
Nor was it unfair to allow minors counsel, Ms. Lansdowne, to address the court orally on visitation while denying that right to Mr. Lifschitz. At the time of the hearing, Erin had not been heard from at all on the subject of Richards pending request for increased visitation. Although Lansdowne had submitted a brief opposing trial home visits in response to the February petition, no brief or declaration had been submitted on Erins behalf in response to the pending petition. Since the central issue in deciding whether to grant increased visitation was Erins best interests, the court was entitled to put the focus of the oral hearing on Erins counsel who was in the best position to directly address it. This is particularly true since Richard had offered no evidence on that subject despite his voluminous submissions.
Finally, the fairness of Richards opportunity to be heard must be measured by the type of order the court was contemplating and the interests at stake for Richard in the outcome. The court was not considering any order that would have adversely affected Richard. It was considering whether to increase his visitation rights, not whether to reduce them. Ultimately, the court adopted an order that benefited Richard by increasing his visitation with Erin over what the Department was then allowing, and by precluding the Department from reducing that level of visitation without a further order from the court. Considering that the court could have simply denied Richards section 388 petition without a hearing and taken no action to increase his visitation rights, we do not believe that it was required to entertain oral argument from him before it acted sua sponte to give him part of the relief he had sought in his petition. In fact, the only significant issue on which the court denied Richard relief was his request that the new visitation schedule be followed up by evaluation for unsupervised trial home visits. Given the stage of these proceedings, post-termination of parental rights, Richards right to be heard on that issue was at its minimum.
We conclude that Richard had adequate notice and an opportunity to be heard before the court adopted the order from which he appeals.
Regarding Erins right to be heard, we have noted that her trial counsel, Ms. Lansdowne, was present at the hearing, spoke at length, reported on Erins wishes, and offered the proposal on visitation that the court adopted. In due process terms, this afforded Erin an opportunity to be heard. Richards and Erins counsel on appeal have argued in effect that without an evidentiary hearing we cannot be sure that Ms. Lansdowne articulated Erins real interests and wishes. In the absence of any legal requirement that the court bypass Ms. Lansdowne and hear directly from Erin, we will make no such assumption. (See § 317, subd. (e) [if the child is four years of age or older, minors counsel must "interview the child to determine the childs wishes and to assess the childs well-being, and shall advise the court of the childs wishes"].)
3. Best Interest Standard
Richard contends that the juvenile court merely deferred to the Departments wishes without exercising its independent judgment and without making a necessary finding that the level of visitation it proposed to order was in Erins best interest. (See In re H.G. (2006) 146 Cal.App.4th 1, 16-17 [reversing removal order where juvenile court failed to state on the record or otherwise indicate that it exercised its independent judgment to consider statutory bases for removal of a child from relative placement].)
We will not infer from the fact that the juvenile court agreed with the Departments position regarding the issue of whether an evidentiary hearing was required that the court did not exercise its independent judgment. In fact, had the court merely deferred to the Departments wishes it would not have convened a hearing at all, would not have issued an order for increased visitation, would not have stipulated that the Department would have to return to court if it wished to reduce visitation, and would not have appointed Sarah L. as Richards GAL even for purposes of the August 30 hearing. We have upheld the juvenile courts determination that no evidentiary hearing was required and will draw no adverse inferences from it.
In our view, the record shows that the court did apply the best interest standard whether it made explicit findings in those terms or not. The court made it clear that it wanted to hear from Erins counsel to assist it in determining Erins best interests. The court specifically asked Ms. Lansdowne whether she believed "it would be in the best interest of Erin to have that telephone call [with Richard] once a week for 10 to 15 minutes." The very fact that the court opted to hold a hearing to ascertain Erins wishes and the position of her counsel on increased visitation when no hearing on that subject was required shows that the court was doing its utmost to fulfill its statutory role of protecting Erins well-being.
For all the reasons discussed, we will affirm the courts order on visitation.
B. Appointment of GAL
Code of Civil Procedure section 372, subdivision (a) provides that in any proceeding in which a minor is a party the minor shall appear "by a guardian ad litem appointed by the court in which the action or proceeding is pending, or by the judge thereof . . . ." Section 388, subdivision (b) provides that a GAL may be appointed for a dependent child asserting a sibling relationship in certain circumstances: "The court may appoint a guardian ad litem to file the petition for the dependent child asserting the sibling relationship if the court determines that the appointment is necessary for the best interests of the dependent child." The statute is silent as to when the court may appoint a GAL for a nondependent child. (In re Valerie A. (2007) 152 Cal.App.4th 987, 1000, fn. 4.)
Richard contends the juvenile court committed reversible error when it terminated the appointment of Sarah L. as his GAL at the close of the August 30 hearing since visitation will be a recurring subject in this proceeding in future years. We are not persuaded. The juvenile court was under no obligation to appoint a GAL for Richard at the August 30 hearing, but exercised its discretion to do so. Having appointed Sarah L. for purposes of the hearing, the court retained discretion to terminate the appointment.
Richard concedes that the court could reappoint Sarah L. as GAL in the event of further court proceedings regarding visitation if it chooses to. He argues this state of affairs would be prejudicial because a new appointment request should not have to be filed each time the Department reduced his contact with Erin, modified the location of the visits, or changed the way they were arranged or supervised. We will not assume that visitation issues will require such frequent court intervention that the temporary appointment procedure followed in this instance would become onerous. We would expect the juvenile court to take appropriate steps to head off any such eventuality if it occurred. Further, it was not reversible error for the juvenile court to refuse to appoint Sarah L. as "guardian ad litem to receive notice for all future hearings," as requested by Richards trial counsel at the August 30 hearing. While the law favors the maintenance of Erins sibling bond with Richard post-termination of parental rights (§ 16002, subd. (b)), it does not give Richard or his family a favored role in Erins dependency proceedings, including either the right to notice of review hearings or to the permanent appointment of a GAL to represent him in negotiations with the Department.
III. DISPOSITION
The order appealed from is affirmed.
We concur:
Marchiano, P.J.
Swager, J.