Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court for the County of Los AngelesJan Levine, Judge. No. CK 58321
Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and William D. Thetford, Principal Deputy County Counsel, for Plaintiff and Respondent.
COOPER, P.J.
SUMMARY
A few months after legal guardianship by the maternal grandmother was selected as the permanent plan for his four children, the father petitioned for modification of the order under Welfare and Institutions Code section 388. He sought the return of his three sons to his care and custody, and family reunification services for him and his daughter with the objective of her eventual return to his custody as well. The court denied his petition. On appeal the father contends his due process rights were violated because the children were not present at the hearing and he could not cross-examine them; instead, the court relied on representations of the children’s counsel and reports from the social worker and the children’s therapist that the boys were afraid of the father and did not want to live with him. The father also contends denial of his section 388 petition was an abuse of discretion. We reject both contentions and affirm the order of the juvenile court.
All further statutory references are to the Welfare and Institutions Code, unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
Edward E. is the father of Kailey, Jacob, Joshua and Daniel. In January 2005, the children were removed from the custody of their parents after the father and mother were arrested at their home in Big Bear. Police responded to a domestic violence call, and arrested both parents for drug possession and child endangerment, as methamphetamines were left within reach of 10-year-old Kailey. The children were placed with the maternal grandmother, where the three boys and their stepbrother Brandon were already staying. The dependency case was transferred to Los Angeles, where the mother resided. (The mother and father have since divorced.) The court sustained allegations that both the mother and the father (1) suffered from an alcohol and/or substance abuse problem resulting in inability or unwillingness to provide consistent care and protection to the children (and in the father’s case, inability or unwillingness to control his behavior), and (2) engaged in domestic violence with each other in front of the children, exposing them to risk of physical and emotional harm.
The disposition report of the Department of Children and Family Services (the Department) described the father’s extensive drug and alcohol history, and drug use by the mother as well. The children had a strong bond with their mother and wanted to return to her care. The parents’ relationship was volatile, and the mother described the father as “mean and violent.” The oldest child (father’s stepson Brandon, who is not involved in this appeal) reported he lived with the maternal grandmother because of problems with the father: the father yelled all the time; got angry; hit Jacob with a closed fist; threw mini-blinds at Brandon; argued a lot with the mother; and was “mean to everyone.” Kailey reported feeling sad and scared when her father yelled at her mother, and scared that her mother would get hurt. Jacob, then aged nine, reported his father fought with his mother and “would yell at her and cuss at her” every day. Jacob said he was afraid of his father hurting him; once Jacob “was holding a fork wrong and he pushed me into the kitchen drawer.” Jacob saw the father punch and throw things at Brandon, and throw things at his mother. Joshua, age 6, also reported his parents yelling every day.
Family reunification services were ordered, including drug abuse and domestic violence counseling for both parents and individual counseling for the children. On September 12, 2005, the children were placed in the home of the mother, on condition she and the children reside with the maternal grandmother. The court also ordered unmonitored day visits and continued services for the father, and that the parents stay away from each other. At the twelve-month hearing, the court ordered continued services for the father, including conjoint counseling with the children.
A few weeks later, on April 11, 2006, the children were again removed from the mother and detained with the maternal grandmother, because tests showed the mother continued to use illicit drugs. The children’s counsel reported the children were adamant about not wanting to live with their father, and that conjoint counseling (which had not begun) was necessary to find out why the children did not want to return to the father. The Department was ordered to report on the father’s conjoint counseling and to investigate placement with the father.
On May 24, 2006, the Department reported concerns about placement with the father based on statements from the children and their therapist, Shelia Clark, whose report included the following:
· Kailey had experienced an emotional setback as a result of resurfacing memories related to the January 2005 domestic abuse incident, exhibiting signs of a delayed post-traumatic stress disorder, and her adamant wish to avoid contact with the father increased in proportion to those memories.
· Clark expressed serious concerns about the conjoint counseling. The children told her the father and the conjoint therapist, John DelGrosso, were making negative statements about the mother. Kailey was being told that she would have to live with her father, and no judge would allow her to stay with her grandmother. Her fearfulness of the father had increased to pre-treatment levels. Jacob, who had been physically abused by the father, was also showing a regression, and was very fearful to go on visits with his father.
· Kailey, Jacob and Joshua each expressed to Clark that they wanted to live with their mother, and if they cannot, with their grandmother; they did not want to live with their father under any circumstances; they did not feel safe in Big Bear with their father; they did not want to be separated from their step-brother Brandon; they did not want to change schools and lose their current friends; and they did not want to continue in conjoint treatment with their father.
The conjoint therapist, DelGrosso, also reported difficulty with Kailey, who did not want to be with her father or to continue conjoint therapy. However, he reported the boys were able to express “their fears, anger, and pain” caused by their father’s conduct, and also expressed “their gladness in being with dad” during their weekend visits.
At the May 24, 2006 hearing at which the court sustained the petition to again remove the children from the mother, the father sought custody. He pointed out he had successfully completed all his programs and had begun the conjoint counseling. The court refused the father’s request, observing the children did not feel safe with their father; it would not force the children to live with their father if they did not want to do so; and conjoint therapy should continue in order to attempt to smooth out the father’s relationship with the children.
At the 18-month hearing, the Department recommended termination of family reunification services and a hearing to establish a guardianship with the maternal grandmother. At a contested hearing on July 26, 2006, the court found that “[t]he trauma that the children experienced that brought the case into court initially from the conflict between [father] and their mother has not been healed yet and they are very frightened. They are easily [sic] by things that occur in the present because those things can remind them of what’s occurred in the past. I know this from the letters that their therapist has written over the period of the case. . . . [¶] Their counsel has confirmed that this is the case.” The court terminated services, but ordered the Department to continue to provide conjoint counseling with the goal of rebuilding the father’s relationship with the children. The court set a hearing to select a permanent plan for January 24, 2007, to give the father more time to work on the relationship.
In October 2006, Jacob asked that he not be forced to attend visits with his father in Big Bear. His therapist reported that the family therapy had not been successful for Jacob; he enjoyed his visits to Big Bear only when they did not involve required interaction with his father; the father had used information given by one of the children to try to force the court to remove the children from the grandmother’s care, where Jacob felt safe and secure, resulting in Jacob’s being fearful that anything he said to the father would harm him and his siblings. The therapist recommended that visits continue, but not in Big Bear which generated memories of distress. At a hearing on November 14, 2006, the court ordered visits to continue, but only with Jacob’s consent.
When the father protested, this exchange occurred:
On January 24, 2007, the court appointed the maternal grandmother legal guardian of the children.
On April 30, 2007, the father filed a petition under section 388, seeking return of the boys to his care and custody and family reunification services with respect to Kailey. As grounds, the petition stated:
“Father and minors have successfully participated in conjoint family therapy. Father and minors have had frequent telephone conversations. Father and minors have consistent positive weekend visitations. Father continues to actively participate in the 12-step program. Father has started a new career in real estate sales. Father has made efforts towards a healthier relationship with the [maternal grandmother], current caregiver. Father continues to drug test negative.”
The petition stated return of the boys to the father would be better for the boys because:
“Jacob, Joshua, and Daniel have expressed a significant decrease in their fear stemming from the issues which brought this case to the courts’ attention in January 2005. Therapist, DelGrosso believes that reunification with the father continues to be in the best interest of the children. Kailey continues to flounder without the care & structure her father can provide her.”
The father’s petition included a number of character references from employers and friends, along with proof of his earlier completion of various counseling programs.
The court ordered a hearing on the petition. The children’s counsel requested the children be present, and father’s counsel asked the court if it wanted witnesses. The court replied: “No witnesses at a 388 hearing but we do need to hear from the kids. They are the subject of the 388 and we won’t hear from them in the nature of testimony but they need to talk to their counsel, and actually what you are requesting, sir, is return of Jacob, Joshua and Daniel and family reunification for Kailey. So all four of the kids have to be ordered in.”
At the hearing on May 31, 2007, the court again indicated that “[g]enerally, in the court we do argument only on 388 petitions.” The court stated it had read the petition, the letters and documents submitted by the father, and the Department’s report (which noted the boys continued to verbalize that they were happy and doing well with their grandmother and would “be afraid and not happy living with their father” and did not want to separate from each other). The court noted the father had completed all programs as ordered, and that the only issue was the best interest of the children. Father’s counsel began her argument on that point, and then stated:
“I have to confess that I wasn’t aware that this court preferred to proceed without testimony. We had anticipated that the children would be here because the main issue we felt also was the representations that the children were not comfortable in their father’s care because it just seemed to be so contrary to what he was experiencing on his weekends with the children and in his conversations with his children. And [children’s counsel] did advise me this morning that the children were released and I was particularly distressed, especially seeing that they were released, after I noticed the attachment from their former therapist which included statements that were attributed to these children which, of course, you know, we had no way of talking to these children about this. [¶] But the bottom line is that the courts historically have not turned to the children to ask them about making such burdensome decisions about whether or not they want to live with a parent or not live with a parent. . . . ”
The children’s counsel argued it was clear the children were still dealing with the emotional trauma of the incidents of domestic violence that occurred when they lived with their father; the children had expressed repeatedly to their individual therapist, their grandmother, counsel, and the court in their letters that they did not want any expanded contact with their father. “They are still afraid and to return them – to pull them out of their school, out of their home and send them back with their father would be – definitely would not be in the best interest of these children.”
The court denied the father’s petition, noting first that the well-known practice in its department on section 388 petitions was to handle them by argument. The court noted the children were ordered to be in court, but Jacob had a statewide test; their guardian said she could bring them in the afternoon if necessary. “But [children’s counsel] had spoken to all the children. She knew what their position was. The letters that were directed to me were part of the report and I did not see the necessity to drag the kids in here.” The court observed, among other things:
“[S]ometimes the kinds of things that children are exposed to and that they experience when – before a case is brought into court and then during the . . . more intense parts of the case cause injuries that do not heal in the time that either the law allows or that parents would like to see. And you can’t force it. I can’t force it. I think that the work you’re [the father] doing with the kids in conjoint counseling is the best thing that you can be doing to try and help those wounds heal and to communicate to the kids that you’re not the same person, that you won’t repeat the kinds of things that traumatized them but they have to come to that. I can’t force it. . . . ”
The court concluded the best interest of the children would not be promoted by return of the children to the father. The father filed a timely appeal.
DISCUSSION
The father claims his due process rights were violated and the denial of his section 388 petition was an abuse of discretion. Neither claim has merit.
A. There was no due process violation.
The father argues he was denied his due process right to confrontation and cross-examination because the boys were not present to testify at the hearing. Their testimony was necessary, the father says, because the basis for the court’s refusal to return the boys to him “was the alleged wishes of the boys not to return to him, as reported by the social worker and Clark [their therapist],” and “because of the conflicting reports the court was receiving regarding Jacob’s ‘fear’ of [the father] and whether or not the boys wanted to visit him.” We see no due process violation.
First, the trial court indicated, four weeks before the hearing, that “we won’t hear from [the children] in the nature of testimony but they need to talk to their counsel . . . .” Father’s counsel interposed no objection to this procedure at the time, so her claim at the hearing that she “wasn’t aware that this court preferred to proceed without testimony” appears disingenuous.
Second, the court relied on the Department’s report, which included the reports of the children’s therapist (based on interviews with the children and others conducted a few days before the hearing), the conjoint therapist, and the children’s own letters stating their wishes. The father interposed no objection to the report, and did not request cross-examination of its preparer, or of anyone else except the children.
Third, there were no “conflicting reports” about Jacob’s fear of the father, or about the “alleged” wishes of the boys not to return to him. Even DelGrosso, the conjoint therapist, reported that Jacob remembered details of an incident in Big Bear, and “resists attending visits because of discomfort that this memory might cause.” In short, the only conflict was between DelGrosso’s conclusion that it would be in Jacob’s best interest to be with his father (and that it was “important [for Jacob] to face and resolve pain, rather than run from it”), and the contrary conclusions of everyone else, including the social worker, the children’s therapist, and the children’s counsel.
The children told their individual therapist that they did not trust DelGrosso to tell the judge their feelings. Kailey wrote she did not want to go to counseling because DelGrosso “just sid[ed] with [the father].” Jacob was very distressed about DelGrosso’s opinion that the children did not have any “fear” of the father, and said DelGrosso told him that he would “‘just have to face his fears that dad may do it again, deal with it, he was going to have to live with father.’”
Of course, as father points out, there are circumstances under which due process requires the court to conduct a full hearing on a section 388 petition, “rather than limiting it to declarations under the court rules.” (In re Matthew P. (1999) 71 Cal.App.4th 841, 851.) Certainly parties to dependency proceedings have a due process right to confront and cross-examine witnesses. (Id. at p. 849.) Due process, however, is not absolute; when a due process right exists, the court “‘balance[s] . . . factors . . . to decide what process is due.’” (Id. at p. 850.) In dependency litigation, due process focuses on the right to notice and the right to be heard. (Id. at p. 851.) “Different levels of due process protection apply at different stages of dependency proceedings” (In re Thomas R. (2006) 145 Cal.App.4th 726, 733), and the due process right to present evidence “‘is limited to relevant evidence of significant probative value to the issue before the court.’” (Ibid.) In the context of a section 388 hearing,
Rule 5.570, subdivision (h), governs the conduct of a hearing under section 388. The hearing must be conducted as a disposition hearing under certain circumstances, including where there is a due process right to confront and cross-examine witnesses. (Cal. Rules of Court, rule 5.570, subd. (h)(2)(B).) “Otherwise, proof may be by declaration and other documentary evidence, or by testimony, or both, at the discretion of the court.” (Id., subd. (h)(2).)
“[W]e must balance the [parents’] interest . . . in regaining custody of the boys and in telling their side of the story about what they believe is the best interest of the boys against the government’s interest in serving the best interests of the boys by resolving dependency matters expeditiously and allowing the juvenile court wide latitude to control dependency proceedings.” (In re Matthew P., supra, 71 Cal.App.4th at p. 851.)
Thus, “where there is a contested hearing with an issue of credibility,” there is a due process right to confront and cross-examine witnesses. (In re Clifton V. (2001) 93 Cal.App.4th 1400, 1404-1405); see also In re Vanessa M. (2006) 138 Cal.App.4th 1121, 1130 [at a jurisdictional hearing, “[w]here, as here, credibility is at stake, parents are entitled to present oral testimony as well as to confront and cross-examine the witnesses against them”].) For example:
· In In re Matthew P., supra, the court held there was “no question that the [de facto parents] were denied an opportunity to be heard.” (71 Cal.App.4th at p. 851.) The denial of the parents’ section 388 motion rested entirely on the content of social services reports, and the parents alleged the social workers’ statements were inaccurate. The parents objected to the admission of the reports unless they were allowed to cross-examine the social workers. (Id. at pp. 851, 847.) The court concluded the parents should have been allowed to cross-examine the social workers and present evidence.
· Similarly, where a grandmother’s declaration directly contradicted the claims made in a mother’s section 388 petition, and the juvenile court refused mother’s request to permit live testimony and to cross-examine the grandmother and the social worker who prepared the report on which the court relied, the mother was denied due process. (In re Clifton V., supra, 93 Cal.App.4th at pp. 1405-1406 [“[t]here was a clear credibility contest between mother and the paternal grandmother, which the juvenile court resolved adversely to mother based solely on the parties’ written submissions and argument of counsel”; the error was not harmless, because “[w]e cannot say what the outcome of a live ‘swearing contest’ would have been, thus we cannot say mother was not harmed by the lack of opportunity to present live testimony and to cross-examine adverse witnesses”].)
In this case, there was no “credibility contest” that cross-examination of the children could assist in resolving. Indeed, there was no significant factual conflict to be resolved. Even the father’s petition asserts only that the minors have “consistent positive weekend visitations” (presumably referring to the two boys, Joshua and Daniel, who continue to visit) and the three boys “have expressed a significant decrease in their fear stemming from the issues which brought this case to the courts’ attention . . . .” But a “significant decrease” does not equate to the absence of fear (and no one contends Joshua and Daniel do not enjoy visiting the father). The father does not assert that, in fact, and contrary to their statements to others, the boys are not afraid and actually want to live with him; his position is that it is in any event in their best interest to do so. But that, of course, is not a factual dispute that requires cross-examination of the children.
Notably, the father did not object to the admissibility of the Department’s report and did not seek to cross-examine its preparer, as was the case in In re Matthew P. Instead, he seeks to cross-examine his own children, apparently hoping they can be persuaded to say something different from the statements made in their letters to the court and in their reported statements to the social worker and therapist. But, as we have seen, there is no real dispute over what they have said; the dispute is over the consequences which should flow from what they have said. We cannot conclude that due process requires subjecting the children to cross-examination under these circumstances. Even if the father had a due process right to take the testimony of his children, it is apparent that any error in refusing to permit him to do so was, beyond a reasonable doubt, harmless. (See Andrea L. v. Superior Court (1998) 64 Cal.App.4th 1377, 1387 [“[o]n this record, we confidently conclude, beyond a reasonable doubt, no different result would have been obtained” absent the error].)
B. The trial court did not abuse its discretion when it denied the father’s section 388 petition.
At a hearing on a petition for change of placement, the burden is on the moving party to show that there is new evidence or changed circumstances that make a change of placement in the best interest of the child. (In re Stephanie M. (1994) 7 Cal.4th 295, 317.) In this case, the father contends the trial court erred in denying his request for return of the boys, because there was no evidence he posed a risk to the children’s health or safety, and he had complied with all the requirements of the reunification plan. But it was not the Department’s burden to show a risk to the children; it was father’s burden to show that the change would be in the best interest of the children. This determination “was committed to the sound discretion of the juvenile court, and the trial court’s ruling should not be disturbed on appeal unless an abuse of discretion is clearly established.” (In re Stephanie M., supra, 7 Cal.4th at p. 318.)
We cannot find an abuse of discretion in the juvenile court’s decision. The test is whether the trial court exceeded the bounds of reason. (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319.) “‘“When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.”’” (Id. at p. 319.) The father claims the juvenile court “improperly focused on what the children wanted, when there was no evidence it would be detrimental to them to be returned to their father . . . .” We disagree. First, the father apparently fails to recognize that, after the termination of reunification services (which occurred at the 18-month hearing, in July 2006), the parent’s interest is no longer paramount, and the focus is shifted to the needs of the child for permanency and stability. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) The juvenile court “must recognize this shift of focus in determining the ultimate question before it, that is, the best interest of the child.” (Ibid.) That is exactly what the juvenile court did in this case. Second, there was ample evidence to support the conclusion that the proposed change in the boys’ placement was not in their best interest. In addition to “what the children wanted,” there was evidence the boys were happy, stable and well-adjusted in their maternal grandmother’s care. Moving them to their father’s home in Big Bear would make it difficult for them to see their sister Kailey (who now resides with her paternal aunt, the prospective co-legal guardian of the children) and their stepbrother Brandon, with whom they have close bonds. The children also have frequent and “positive loving contact” with the mother; the children (including Brandon) and the adults (mother, grandmother, paternal aunt) reported fears this “significant bonding and family structure [would] collapse if the father is granted his request for custody in Big Bear.” In short, we cannot find any ground to disagree with the juvenile court’s assessment of the best interest of the children; certainly we cannot say it exceeded the bounds of reason. (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319.)
DISPOSITION
The order is affirmed.
We concur: RUBIN, J. EGERTON, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
“THE COURT: I think you need to read the report for today, and you need to read the letter from Jacob.
“THE FATHER: I have, Your Honor. As demonstrated in the past, the mother, the grandmother, and everybody has violated court orders except myself. But you continue to take rights away from me. And emotionally, according to the [conjoint] therapist, you’re placing the children in emotional harm. My daughter hasn’t been involved with my relationship
“THE COURT: I don’t want to get into this conversation with you, Mr. [E.]. That’s why I
“THE FATHER: What is the law, then, Your Honor?
“THE COURT: The law is that
“THE FATHER: Please base your opinion on it.
“THE COURT: I have authority to make visitation orders that are in the best interest of the child. I have a letter from the child’s therapist saying that he’s afraid of you and doesn’t want to visit with you in Big Bear. And I have a recommendation from his social worker to allow him not to visit with you when he doesn’t want to. I have a statement from his lawyer saying that he’s afraid of you and doesn’t want to visit you in Big Bear. And I have the history of the case. And that history has taught me that you don’t take much responsibility for anything that happens in this case, that it’s never your fault, okay?”
Eventually, the bailiff asked the father to step outside.