Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County, No. CK65602 Steven L. Berman, Juvenile Court Referee.
Lori A. Fields, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and O. Raquel Ramirez, Deputy County Counsel, for Plaintiff and Respondent.
ALDRICH, J.
INTRODUCTION
In this consolidated appeal, father Michael G., challenges numerous juvenile court orders that culminated in the termination of court jurisdiction with a family law court order which allowed father to have monitored visits with his son Garrett G. We hold that the juvenile court did not err in holding the jurisdiction hearing on February 1, 2007, but that it later erred in failing to hold a hearing before terminating its jurisdiction. Accordingly, we reverse the ruling terminating jurisdiction and remand for further proceedings in accordance with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
1. The predicate facts
Father and the child’s mother, Diana P., are the subject of a Riverside County family law court order which gave mother primary custody of Garrett, and awarded father visits every other weekend and one weekday.
In the fall of 2006, the Department of Children and Family Services (the Department) received a referral after then three-year-old Garrett returned to mother from a court-ordered visit with father, with bruises on his buttocks. When the social worker attempted to persuade father to curtail his overnight visits until a safety plan could be initiated, father became hostile and belligerent. The Department learned that father has a history of domestic violence with mother and a history of hitting her four children. The social worker also suspected that father had been physically or sexually abusing the children, and that mother had been withholding knowledge of the abuse and violence from authorities.
The Department detained Garrett and his three older half-siblings in October 2006 and filed a petition under Welfare and Institutions Code section 300, subdivisions (a), (b), (d) and (j). The petition alleged generally that father physically abused Garrett and his older brother and sister, and sexually abused Garrett’s two older sisters, which conduct put the children’s health, safety, and well-being at risk of harm.
Garrett’s older half-siblings and mother are not parties to this appeal.
All statutory references are to the Welfare and Institutions Code, unless otherwise noted.
The record in this case is replete with examples of father’s difficult, belligerent, and rude behavior. Father has a record of criminal convictions or arrests for inflicting corporal injury to a spouse or child, false imprisonment and preventing or dissuading a witness from making reports, battery, violation of court order to prevent domestic violence, and assault with a deadly weapon. Father’s ex-wife obtained a restraining order against him, but he ignored and violated it. He is also very angry and aggressive with Departmental and court personnel.
At the detention hearing on November 3, 2006, the juvenile court detained the children from their parents’ custody. The court awarded father monitored visits with Garrett to take place at the Department’s offices only.
2. The restraining order
Mother applied for a restraining order against father. After a hearing, the court found that father: (1) had not been candid about his background and record; (2) had criminal convictions starting in 1988, at least two of which convictions were for corporal violence on a spouse or child, and other arrests or convictions for battery and violation of court orders; and (3) had physically injured the children and mother. On these findings, the juvenile court issued a restraining order on December 21, 2006, to remain in effect until December 20, 2009, mandating that father stay at least 100 yards away from mother and the children.
3. The jurisdiction hearing on February 1, 2007
Father did not appear at the hearing on February 1, 2007, despite the juvenile court’s admonitions, in open court, on at least three occasions, that it would proceed even if father were absent. At the jurisdiction hearing, father’s attorney stated he had spoken to father and father’s pastor and was told that father was ill. “Apparently, [father was] experiencing some radiating pain out of his shoulder. He’s unable to come to court. He did ask that I request some additional time so that he could go to the Doctor today . . . .” Additionally, counsel informed the court: father “advised me that he no longer wanted me to represent him; that it’s his position that I am not representing him properly. He did not give me the authority to proceed in his behalf other than requesting a continuance. [¶] I advised [father] that his attendance was required, and that the normal procedure is the court would conduct a hearing if there were issues with his counsel. Nevertheless . . . he stated he was unable to be here today, so I’m requesting a continuance in his behalf. . . .”
The juvenile court denied the continuance request. It noted it had warned father it would proceed in father’s absence. It also noted that it had no evidence that father was actually ill. Stating, “[f]ather has been obstreperous during this entire matter, to say the least[,]” and that father had not called the court to request a continuance, the court found that the illness was simply a “delaying tactic.” The court proceeded with the jurisdictional and dispositional hearing. At the close of the hearing, the court sustained parts of the petition and dismissed others. Finding by clear and convincing evidence that a substantial danger existed to the physical and emotional well-being of the children, and no reasonable means to protect them existed without removal, the court removed Garrett from father’s custody and placed him under the Department’s supervision while permitting him to return to mother’s custody.
As for the disposition, the juvenile court ordered father into six programs. Finding father “an extremely angry person,” the court ordered visits with Garrett under the terms of the restraining order at the Department’s offices only.
4. The February 6, 2007, Marsden hearing and visitation orders
People v. Marsden (1970) 2 Cal.3d 118.
The next day, father walked on a request for a Marsden hearing. The juvenile court held a hearing and replaced counsel with father’s second court-appointed attorney.
Thereafter, the juvenile court held an open hearing to address the issue of father’s visitation because of concerns father had raised during the Marsden hearing. The court reiterated that father was awarded a minimum of three hours per week of visitation. It gave the Department discretion to allow father to have visits in a neutral setting. The court ordered the social worker to choose the time and monitor if either the Department’s office was inappropriate or the Department was unable to provide the full three-hour minimum per week for visits. Also, the court ordered the Department to assure that it returned father’s telephone calls.
The juvenile court denied father’s rehearing motion. Father filed his first appeal.
5. The June 28, 2007, six-month review/termination hearing
Father refused to comply with his case plan and had enrolled in no programs as of the section 366.21, subdivision (e) hearing, despite referrals from the Department. The only order father complied with was visitation.
Father moved for a rehearing. Father’s visits with Garrett occurred two to three times a week and lasted from three to five hours per visit. Father’s pastor or his mother (the paternal grandmother) functioned as monitors. Father frequently contacted the Department. The case social worker and his supervisor worked with father to resolve visitation issues. On several occasions, however, the social workers had to hang up on father because he became rude or loud. Still, the Department reported that the issues surrounding visitation with father improved over time.
By July 5, 2007, the juvenile court had already terminated jurisdiction with respect to mother and the father of her older three children. That day, it held a hearing with respect to father under both section 366.21, subdivision (e), the six-month review, and section 364, to determine whether to terminate its jurisdiction. At the hearing, father was disruptive and argumentative. The court reiterated that father had to participate in services if he wanted his child back. Father demanded a new attorney. The court held a second Marsden hearing and appointed father a third attorney.
Once again in open session, the parties discussed whether to terminate jurisdiction over father and Garrett. Addressing the court himself, father accused the social worker of falsifying the status review report. The court informed father that if he wanted to contest the reports, he could have a hearing. An extended discourse ensued between the court, father, and father’s newly-appointed counsel, during which the court gave father the opportunity to choose between retention of juvenile court jurisdiction or transfer to family law court. In the end, the court terminated jurisdiction and ordered sole physical and legal custody to mother.
Mother prepared and filed the custody order that the juvenile court signed on July 20, 2007. The custody order reflects the existing family law order in Riverside County. The order gave father supervised visitation because he had not successfully completed the dependency case plan. The attached visitation order gave reasonable visitation to father but granted mother the power to determine the monitor, time, place, and duration of visits. Transfer of Garrett between parents would occur at the Pico Rivera Police Department. Finally, the order indicated that the reason father’s visits were to be supervised was that he had not completed the court-ordered programs of sex abuse treatment for perpetrators, domestic violence offenders program, parenting classes, or individual counseling. Although the restraining order was attached, the court had crossed out its earlier finding, contained therein, that father had physically injured the children and mother. Father filed his second notice of appeal. We consolidated the two appeals.
CONTENTIONS
Father assigns as juvenile court error: (1) issuing the restraining order in December 2006; (2) failing to set out a detailed schedule for his visitation as part of the restraining order and incorporating the order into the court’s February 2007 disposition and July 2007 custody order; (3) denying his request for a continuance and failing to conduct a Marsden hearing before the jurisdiction hearing in February 2007; and (4) terminating jurisdiction in July 2007 without holding a hearing.
DISCUSSION
1. Father’s appeal from the restraining order is untimely.
Father first challenges the juvenile court’s restraining order. That order was issued on December 21, 2006. Father’s first notice of appeal was filed on April 2, 2007. Father’s challenge may not be heard.
Before disposition in In re Cassandra B. (2004) 125 Cal.App.4th 199, the juvenile court issued a restraining order against the mother that expired before the mother filed her two appeals. (Id. at p. 203.) Division Two of this Court of Appeal held that the “mother’s challenge to the restraining order in this case is subject to review on direct appeal from the order granting the restraining order.” (Id. at p. 208.) The Cassandra B. court reasoned that a party’s right to appeal is “ ‘completely a creature of statute.’ [Citation.]” (Id. at p. 207.) Section 395 governs the appellate rights in juvenile dependency, and courts agree that the first appealable order is the jurisdiction/disposition order. (In re Cassandra B., supra, at p. 208.) Nowhere in the Welfare and Institutions Code are appeal rights from injunctions addressed. Cassandra B. resolved this by looking to the Code of Civil Procedure. “ ‘[B]asic appellate principles codified in Code of Civil Procedure sections 901 through 923 apply in juvenile dependency proceedings, at least to the extent not inconsistent therewith. [Citations.],’ ” and section 395 should be interpreted in harmony “ ‘with basic appellate principles such as the one final judgment rule,’ codified in Code of Civil Procedure section 904.1. [Citations.]” (In re Cassandra B., supra, at p. 208.) Code of Civil Procedure section 904.1, subdivision (a)(6) specifically allows a direct appeal from an order granting an injunction. Therefore, Cassandra B. concluded, “a restraining order issued in a juvenile dependency proceeding is directly appealable to the same extent as a restraining order granted in a civil action. [Citations.]” (In re Cassandra B., supra, at p. 208.)
Section 395, subdivision (a)(1) reads in relevant part, “A judgment in a proceeding under Section 300 may be appealed in the same manner as any final judgment, and any subsequent order may be appealed as an order after judgment.”
Father contends that we should not follow Cassandra B. because, he argues, it is internally inconsistent and does not comport with rules of statutory construction. However, we agree with Cassandra B.’s reasoning. Nothing in the section 395 addresses the appealability of restraining orders. Section 213.5, governing restraining orders, does not provide for appeal rights. Nor does Code of Civil Procedure section 527, referred to in section 213.5. Thus, Cassandra B. appropriately looked to Code of Civil Procedure section 904.1 governing appeals from restraining orders, and concluded that it could be applied in juvenile dependency cases because it did not conflict with the relevant Welfare and Institutions Code provisions. Additionally, we conclude that it makes sense that restraining orders issued in juvenile dependency proceedings should be made appealable in the same manner as restraining orders in family law cases, pursuant to Code of Civil Procedure section 904.1 because section 213.5, which sets forth the procedures for restraining orders in dependency cases, refers to the restraining order provisions of the Code of Civil Procedure.
Father observes that section 213.5 refers to the Penal Code and the Family Code, in addition to the Code of Civil Procedure section 527, with respect to the application procedure for restraining orders. Thus, he argues, under the principle of exressio unius est exclusion alterius, Cassandra B. erroneously relied on the appellate provisions of the Code of Civil Procedure. However, there is no reference to the Penal Code in the portions of section 213.5 concerning the procedures for restraining orders. Rather, the statute specifies that the application procedure shall be made according to section 527 of the Code of Civil Procedure. (§ 213.5, subd. (a).) Also, Cassandra B. explained that section 213.5 does not provide for appeal rights and so that court logically referred to Code of Civil Procedure sections 901 through 923, as they were not inconsistent with the dependency provisions. (In re Cassandra B., supra, 125 Cal.App.4th at p. 208.)
Based on Cassandra B., supra, 125 Cal.App.4th 199, we hold that the juvenile court’s restraining order of December 21, 2006, was a directly appealable order. Father’s appeal dated April 2, 2007, was untimely insofar as he purported to appeal from that restraining order. (Cal. Rules of Court, rule 8.400(d).) Nor does father’s appeal from the disposition and jurisdiction orders revive his appeal from the restraining order. “An appeal from the most recent order entered in a dependency matter may not challenge prior orders for which the statutory time for filing an appeal has passed. [Citation.]” (In re Edward H. (1996) 43 Cal.App.4th 584, 590-591.)
Because father’s appeal from the restraining order was untimely, we need not reach father’s contentions that the juvenile court improperly granted the restraining order.
2. The court did not abuse its discretion in denying the request for a continuance of the jurisdiction hearing and father waived his challenge to the first Marsden hearing.
Father contends that the juvenile court abused its discretion in denying his request for a continuance of the February 1, 2007 jurisdiction hearing to conduct a Marsden hearing. He asserts that the continuance would have been brief and that good cause was shown by his attorney’s statements that father was ill, “no longer wanted [counsel] to represent him,” and “did not give [counsel] the authority to proceed in his behalf other than requesting a continuance.”
a. The court did not abuse its discretion in denying the continuance request.
“The juvenile court may continue a dependency hearing at the request of a parent for good cause and only for the time shown to be necessary. [Citations.] Courts have interpreted this policy to be an express discouragement of continuances. [Citation.] The court’s denial of a request for continuance will not be overturned on appeal absent an abuse of discretion. [Citation.]” (In re Karla C. (2003) 113 Cal.App.4th 166, 179-180.) “Provided the court complies with the statutory requirements authorizing continuances under section 352 there is no legal impediment for slight and justified delays.” (In re Sean E. (1992) 3 Cal.App.4th 1594, 1599.)
The juvenile court must conduct the disposition hearing within 60 days of the detention hearing. (§ 352, subd. (b).) The February 1 date for the jurisdictional and disposition hearing, when the court denied father’s request for a continuance, was already past the 60-day limit of section 352, subdivision (b). For that reason alone, the court did not abuse its discretion by declining to continue the trial date.
Subdivision (b) of section 352 reads in part: “Notwithstanding any other provision of law, if a minor has been removed from the parents’ custody or guardians’ custody, no continuance shall be granted that would result in the dispositional hearing, held pursuant to Section 361, being completed longer than 60 days after the hearing at which the minor was ordered removed or detained, unless the court finds that there are exceptional circumstances requiring such a continuance.” (Italics added.)
Nor did father make a proper application for a continuance. (§ 352.) He argues there was no evidence other than the court’s speculation that father’s request for a continuance was merely a delay tactic. Yet, it was father who carried the burden below to show good cause. While illness of a party can constitute good cause (cf. Jeff M. v. Superior Court (1997) 56 Cal.App.4th 1238, 1243, fn. 4), father made no telephone call to the court and presented no declaration or statement from a physician about the existence of a shoulder injury at all, let alone one sufficiently serious to have prevented father from coming to court. Father made no showing of how long the continuance would have been; father’s suggestion that it would have been “brief” is mere argument. Thus, the court was entitled to conclude (In re Casey D. (1999) 70 Cal.App.4th 38, 53) that father’s claim of a shoulder injury preventing him from coming to court, based solely on father’s and his pastor’s oral representations, was a delay tactic on father’s part, and simply not an adequate showing. In any event, the court observed that it had warned father at least three times, including the immediately preceding hearing, that: (1) father was ordered to appear on February 1 for the jurisdiction hearing, (2) the hearing would proceed in father’s absence, and (3) “The court can find the petition to be true and make dispositional orders that go against your interests” even in father’s absence. (Italics added.) Where father made no adequate showing to support his continuance request, the court did not abuse its discretion in denying the request.
Section 352 reads in relevant part, “(a) Upon request of counsel for the parent, . . . the court may continue any hearing under this chapter beyond the time limit within which the hearing is otherwise required to be held, provided that no continuance shall be granted that is contrary to the interest of the minor. In considering the minor’s interests, the court shall give substantial weight to a minor’s need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements.
b. The court did not commit a Marsden error on February 1.
Father contends that the court denied him due process and a meaningful opportunity to contest the allegations in the petition by failing to conduct a Marsden hearing before it held the jurisdiction hearing on February 1.
Insofar as father contends that he was denied his statutorily guaranteed representation by competent counsel under section 317.5, he waived this contention by failing to challenge it in a petition for writ of habeas corpus.
“When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance. (People v. Marsden [, supra, ] 2 Cal.3d 118, 124.) A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citations].” (People v. Crandell (1988) 46 Cal.3d 833, 854, disapproved on another point in People v. Crayton (2002) 28 Cal.4th 346, 364-365.) Marsden hearings have been applied in dependency cases. (See, e.g., In re Joann E. (2002) 104 Cal.App.4th 347, 355; In re James S. (1991) 227 Cal.App.3d 930, 935; In re Ann S. (1982) 137 Cal.App.3d 148, 150.)
However, “[t]he trial court is not obliged to initiate a Marsden inquiry sua sponte. [Citation.]” (People v. Lara (2001) 86 Cal.App.4th 139, 150; see People v. Montiel (1993) 5 Cal.4th 877, 906.) “The court’s duty to conduct the inquiry arises ‘only when the defendant asserts directly or by implication that his counsel’s performance has been so inadequate as to deny him his constitutional right to effective counsel.’ [Citations.]” (People v. Lara, supra, at p. 151, italics added.)
Here, while it was manifestly father’s obligation to request a Marsden hearing, he made no such request on February 1. Counsel’s suggestions that day that father “no longer wanted [counsel] to represent him” and that father “did not give [counsel] the authority to proceed in his behalf other than requesting a continuance,” do not, even by implication, constitute a request for a Marsden hearing. These statements do not allude to any dissatisfaction with counsel based on performance or representation. (People v. Lara, supra, 86 Cal.App.4th at p. 151; People v. Montiel, supra.) Therefore, where neither father nor his counsel requested a hearing into counsel’s representation until the day after the February 1 hearing, the juvenile court did not err in failing to initiate such an inquiry on its own motion on February 1. Moreover, because there was no request for a Marsden hearing on February 1, the need for such a hearing could not constitute good cause for a continuance.
On appeal, father states that his attorney told him the court would give him a Marsden hearing on February 1. There is nothing in the record to support that assertion. Rather, counsel represented to the court that he told father that the court’s “normal procedure” was to “conduct a hearing if there were issues with his counsel.” Father was not guaranteed a new attorney and there is no basis for father’s suggestion that his presence was not necessary on February 1 for that reason.
In any event, where father failed to appear on February 1 to request a Marsden hearing -- especially in the face of repeated warnings that the court would proceed in his absence -- he forfeited any contention that the juvenile court committed error for failure to hold a Marsden hearing before one was requested. Moreover, father’s repeated contentions to the contrary notwithstanding, the juvenile court never denied father a Marsden hearing. When it was requested, the court held the hearing and replaced father’s first appointed counsel.
3. The clerk’s transcript should be amended by the juvenile court.
Father observes that the clerk’s transcript does not accurately reflect the jurisdictional findings made by the juvenile court when it orally pronounced which portions of the petition it was sustaining and which counts it was dismissing. The Department agrees that the order should be corrected, but disagrees about what the amendment should look like.
“Conflicts between the reporter’s and clerk’s transcripts are generally presumed to be clerical in nature and are resolved in favor of the reporter’s transcript unless the particular circumstances dictate otherwise. [Citations.]” (In re Merrick V. (2004) 122 Cal.App.4th 235, 249; In re Josue G. (2003) 106 Cal.App.4th 725, 731, fn. 4.)Our Supreme Court has observed that “It is not open to question that a court has the inherent power to correct clerical errors in its records so as to make these records reflect the true facts. [Citations.]” (In re Candelario (1970) 3 Cal.3d 702, 705.) We may only change clerical errors, as opposed to judicial errors, which cannot be corrected by amendment. “The distinction between clerical error and judicial error is ‘whether the error was made in rendering the judgment, or in recording the judgment rendered.’ [Citation.]” (Ibid.)
Here, it is undisputed that there is a conflict between what was stated in the reporter’s transcript and what was reflected in the clerk’s transcript. However, the parties disagree about what the juvenile court actually orally ordered. The reporter’s transcript itself is confusing and conflicting. Therein, the court began by dismissing counts A-5, B-6, and B-7 as historical. The court also struck counts A-1, A-2, A-3, B-1, B-2, B-3, B-4, and B-5 as remote in time. After discussion, the juvenile court reintroduced count B-5 and summarized by stating that all of the counts were sustained except A-5, B-6, and B-7. Then the court stated: “B-4 is sustained. So it’s A-4, A-5, B-6, B-7. And the (j) counts are also sustained. 1, 2, 3, 4, 5.” From this recitation, it is unclear whether the court finally sustained or dismissed counts A-1 through A-3, and B-1 through B-3.
Under the circumstances, we cannot merely correct the error. What is apparent is that the court sustained at least eight counts. Father does not challenge the sufficiency of the evidence to support the sustaining of the petition. Thus, the juvenile court took jurisdiction on several correct bases. Just which counts the court sustained is relevant to shaping the entire dependency and determining what issues father must address in reunification. Therefore, the issue must be remanded to the juvenile court for determination of which counts it sustained and which counts it dismissed.
4. The juvenile court erred in terminating jurisdiction without holding a hearing.
Father contends that he was deprived of due process of law and a meaningful hearing before the juvenile court terminated its jurisdiction because the court failed to conduct a full evidentiary termination hearing and failed to conduct a full six-month review hearing under section 366.21, subdivision (e) before terminating jurisdiction.
Section 364 allows the juvenile court to terminate jurisdiction if it determines that continued court supervision is no longer necessary. Section 364, subdivision (c) specifies that the court make this determination after holding a hearing. This District Court of Appeal has held that when a noncustodial parent requests an evidentiary hearing, the juvenile court must hold a hearing before it decides custody and visitation issues ancillary to the termination of jurisdiction and the transfer of the case to the family law court. (In re Michael W. (1997) 54 Cal.App.4th 190, 192.) In the view of the Michael W. court, “a dependency court ought to accept all the help it can get before it makes an order affecting the lives of the children and parents who appear before it . . . .” (Id. at p. 196.)
Section 364, subdivision (c) reads, “After hearing any evidence presented by the social worker, the parent, the guardian, or the child, the court shall determine whether continued supervision is necessary. The court shall terminate its jurisdiction unless the social worker or his or her 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. Failure of the parent or guardian to participate regularly in any court ordered treatment program shall constitute prima facie evidence that the conditions which justified initial assumption of jurisdiction still exist and that continued supervision is necessary.”
“When the juvenile court terminates its jurisdiction over a dependent child, section 362.4 authorizes it to make custody and visitation orders that will be transferred to an existing family court file and remain in effect until modified or terminated by the superior court. As section 362.4 gives the juvenile court power to fashion termination orders, it makes no sense to interpret section 364 to preclude the court from considering evidence relevant to that task.” (In re Roger S. (1992) 4 Cal.App.4th 25, 30, fn. omitted.) Roger S. held that the juvenile court committed error when it refused to consider evidence concerning a change in visitation orders because the court’s power under section 362.4 required it to make an informed decision concerning “the best interests of the child.” (In re Roger S., supra, at p. 31.)
Additionally, a parent has the right to a contested hearing at the six-month review stage. “Section 366.21, subdivision (e) provides expressly for a ‘hearing’ to be held on the matters embraced by that statute.” (In re James Q. (2000) 81 Cal.App.4th 255, 261.) “As the terms of section 366.21, subdivision (e) make clear, the six-month review hearing has significant ramifications for a parent.” (Id. at p. 260.)
Here, at the commencement of the section 366.21, subdivision (e) hearing on July 5, 2007, father indicated he wanted to contest the Department’s report. The juvenile court acknowledged at least twice that father was entitled to a hearing and to a continuance to allow his newly-appointed attorney time to confer with father. The court also asked father numerous times whether father would like the court to terminate its jurisdiction (§ 364), to which father explained that he did not understand the legal terms. Then, the court stated: “Court terminates jurisdiction. Sole physical, sole legal, monitored visits. . . .”
This order was error. Not only do both sections 364 and 366.21, subdivision (e) provide for hearings, but the juvenile court also either offered or recognized father’s right to a continuance and a hearing on July 5, 2007. Nonetheless, the court abruptly terminated its jurisdiction. In so doing, the court failed to make an informed decision about (1) whether continued juvenile court supervision was necessary, or about (2) Garrett’s best interests. (See, In re Roger S., supra, 4 Cal.App.4th at p. 31.) The court did not avail itself of all the help it could get before it made the exit orders. There is an ongoing controversy here about custody and visitation. We “cannot condone a deliberate decision to impose artificial restrictions on the parties’ ability to bring relevant evidence to the attention of the court.” (In re Michael W., supra, 54 Cal.App.4th at p. 196.) The order terminating jurisdiction was premature and error.
The Department argues that father waived the issue by not specifically requesting a hearing. We disagree. Father was given the choice between two legally significant outcomes. Father persistently stated he did not understand the choice. Notwithstanding that the juvenile court repeatedly recognized father’s right to a continuance and a hearing, it denied father the opportunity to discuss the ramifications with his newly appointed attorney. Father did not forfeit the issue.
Furthermore, the error here did not occur in a vacuum; it prejudiced father enormously. In abruptly terminating jurisdiction, the court deprived father not only of an ability to contest the termination of jurisdiction and the exit orders but it also denied father the opportunity to contest the Department’s findings in its status review report for the six-month review hearing. All of these findings are incorporated into the exit and custody orders and are binding on father until he makes the necessary showing in the family law court.
Father also argues that the juvenile court failed to include in the restraining order a detailed schedule for father’s visitation as required by section 213.5, which in turn refers to Family Code section 6323, subdivisions (c) and (d). Although his challenge to the issuance of the restraining order is untimely, his attack on visitation provision contained in the custody and exit orders is not. Where we have determined that the order terminating jurisdiction must be reversed, the exit orders must also be reversed. To avoid repetition of any error, we note that the visitation provisions contained in the exit orders fail to “specify the time, day, place, and manner of transfer” as required by section 213.5, subdivision (l) and Family Code section 6323, subdivision (c). The visitation order must be corrected to reflect that the court awarded father six hours of visitation per week, and to delineate the time, place, and manner of transfer of Garrett without leaving visitation to mother’s sole discretion.
Section 6323, subdivisions (c) and (d) read:
DISPOSITION
The order of July 5, 2007 terminating jurisdiction is reversed in accordance with the views expressed herein. The case is remanded to the superior court to hold a hearing into which counts in the petition it sustained and which counts it dismissed. In all other respects, the orders are affirmed.
We concur: KLEIN, P. J., KITCHING, J.
“Continuances shall be granted only upon a showing of good cause and only for that period of time shown to be necessary by the evidence presented at the hearing on the motion for the continuance. Neither a stipulation between counsel nor the convenience of the parties is in and of itself a good cause. . . . Whenever any continuance is granted, the facts proven which require the continuance shall be entered upon the minutes of the court.
“In order to obtain a motion for a continuance of the hearing, written notice shall be filed at least two court days prior to the date set for hearing, together with affidavits or declarations detailing specific facts showing that a continuance is necessary, unless the court for good cause entertains an oral motion for continuance.”
“(c) When making any order for custody or visitation pursuant to this section, the court’s order shall specify the time, day, place, and manner of transfer of the child for custody or visitation to limit the child’s exposure to potential domestic conflict or violence and to ensure the safety of all family members. Where the court finds a party is staying in a place designated as a shelter for victims of domestic violence or other confidential location, the court’s order for time, day, place, and manner of transfer of the child for custody or visitation shall be designed to prevent disclosure of the location of the shelter or other confidential location.
“(d) When making an order for custody or visitation pursuant to this section, the court shall consider whether the best interest of the child, based upon the circumstances of the case, requires that any visitation or custody arrangement shall be limited to situations in which a third person, specified by the court, is present, or whether visitation or custody shall be suspended or denied.”