Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Mateo County Super. Ct. Nos. 78152, 78153
Retired judge of the Superior Court of Marin County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
This appeal has been taken from a judgment following a jurisdictional hearing that included orders by the juvenile court that terminated dependency jurisdiction, denied appellant reunification services, and granted the mother exclusive physical and legal custody of the minors. We agree with appellant that the dispositional orders are flawed by the juvenile court’s failure to grant him a dispositional hearing and the right to present evidence. We therefore reverse the judgment in part.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
In light of the legal issues raised in this appeal, in our integrated statement of the case and facts we need not recite in great detail the evidence pertinent to the allegations of the dependency petitions. (See Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 245.)
Appellant is the father of two daughters, M.B. and S.B., who are the subjects of the present dependency action. The mother of the minors, N.B., was married to appellant and resided with him when the dependency action was initiated. Two dependency petitions filed on behalf of the minors on March 19, 2008, alleged pursuant to Welfare and Institutions Code section 300, subdivisions (a) and (b), that appellant inflicted serious harm on the two girls and the mother failed to protect them.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
The initial hearing report filed with the petitions indicated that on February 26, 2008, the Burlingame Police Department responded to a report of a domestic dispute at the residence appellant shared with the minors and their mother. N.B. reported that during an altercation a week earlier appellant had kicked and punched her in the head several times before she left for work. When N.B. returned home in the evening she discovered that M.B., then age seven, “sustained a bloody lip.” M.B. stated that after her mother left the house she had been hit several times in the face and head by appellant. According to M.B., the two-year-old daughter S.B. had been hit twice in the head by appellant during the day “for crying.” N.B. also disclosed to the police that appellant had kicked, hit and choked her on several prior occasions in front of the children, and the minors had been subjected to physical violence and emotional abuse for at least the past year. She stated that appellant threatened to kill her on many occasions, and she felt that his “threats were genuine.” N.B. expressed that she was “in fear of her life;” M.B. also conveyed her fear of appellant. He was arrested and charged with corporal injury of a cohabitant (Pen. Code, § 273.5, subd. (a)) and infliction of corporal punishment upon a child (Pen. Code, § 273d, subd. (a)).
During subsequent interviews, appellant first denied, then admitted assaulting his wife and the children. He expressed remorse for the assaults and “stated that he is crazy and needs help.”
Following the initial hearing on March 20, 2008, the trial court ordered the minors to remain in the custody of their mother under the supervision of respondent. Appellant remained incarcerated in county jail, and was ordered not to be released on bail until the mother and the sheriff’s department received notice. The matter was set for an uncontested jurisdictional hearing on May 8, 2008.
The jurisdictional report filed on May 5, 2008, continued to recommend that mother retain legal and physical custody of the children and receive voluntary services for three months. Termination of the dependency was also recommended.
The report indicated that the mother was receiving therapy from a psychologist and participating in a program for battered women. She consulted with an attorney, filed for divorce from appellant, and professed that she wanted him out of her life. N.B. remained fearful of defendant and hoped that he would receive only supervised visits with the children.
Appellant remained incarcerated. He reiterated in interviews that he had a long history of mental illness, with associated auditory hallucinations, and declared that he had contemplated suicide. Defendant attempted to hang himself in his jail cell and was “on suicide watch” at the county jail facility. He acknowledged that he assaulted his wife and daughter, although he could not explain his behavior other than to suggest that he was not in his “right mind.” Appellant also admitted the allegations of the petition. In the criminal proceeding a restraining order was issued that prohibited appellant’s contact with the family.
At the uncontested jurisdictional hearing appellant’s counsel declared that appellant did not want to sign the waiver of rights form, but was “submitting on the report as to jurisdiction.” The social worker indicated that respondent wanted to declare the minors dependent children, grant sole custody to the mother, and immediately dismiss the case with three months of voluntary services to the mother. Mother’s counsel agreed to dismissal of the action, but only if allegations of mother’s failure to protect the minors were stricken by the court. Appellant objected to the recommendation of sole legal and physical custody to the mother. His counsel acceded to dismissal of the petitions and litigation of custody in the pending dissolution action, but wanted appellant present for “argument on [the] disposition” if the court was inclined to follow the “existing recommendation” in the jurisdictional report. The court expressed that appellant was entitled to be present for a hearing on disposition, and the matter would be set “for a hearing.” Mother executed a waiver of rights and submitted the matter on the report.
As the jurisdictional hearing proceeded, appellant’s counsel objected to an order of custody of the children to the mother under section 361.2, as specified in the report. Counsel argued that section 361.2 governs only “noncustodial parents,” and thus “does not apply in this case.” Counsel added that under section 361.5 once a dependency petition is sustained the court must order respondent to provide reunification services, and “must hold a dispositional hearing.” A contested dispositional hearing was requested by appellant’s counsel.
At the conclusion of the hearing the court sustained the petition, declared the minors dependent children, granted sole legal and physical custody of the minors to the mother, denied reunification services to appellant on the ground that “those services” would “be detrimental to the children,” and terminated the dependency. This appeal followed.
DISCUSSION
Appellant argues that the juvenile court erroneously entered a dispositional order at the conclusion of the jurisdictional hearing. His challenge to the order has two facets: first, that the court lacked statutory authority to declare the minors dependent children at the jurisdictional hearing, then deny him reunification services, grant the mother sole custody of the minors, and terminate jurisdiction; and second, that he was denied the right to a contested dispositional hearing before the order was entered.
I. The Trial Court’s Authority to Grant Custody to the Mother and Terminate Jurisdiction .
Appellant argues that the juvenile court purportedly entered the custody and dismissal order pursuant to statutory authority, section 361.2, that does not apply in the present case. He points out that section 361.2 governs only those dependency cases in which a court has assumed jurisdiction of a minor and must determine “ ‘whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child.’ If so, the court must place the child with that parent unless it finds that doing so poses a risk of harm to the child. (§ 361.2, subd. (a).) Under that section, when the court orders removal of a child from a parent’s home and determines that another parent, with whom the child did not previously reside, is available, it may choose two options. First, it may simply terminate jurisdiction and give the other parent legal and physical custody of the child. (§ 361.2, subd. (b)(1).) Second, it may have the other parent assume custody of the child, and ‘may order that reunification services be provided to the parent or guardian from whom the child is being removed, or the court may order that services be provided solely to the parent who is assuming physical custody in order to allow that parent to retain later custody without court supervision, or that services be provided to both parents, in which case the court shall determine, at review hearings held pursuant to Section 366, which parent, if either, shall have custody of the child.’ (§ 361.2, subd. (b)(3).)” (In re Janee W. (2006) 140 Cal.App.4th 1444, 1451, fn. omitted, italics added.)
Respondent acknowledges “that section 361.2 is not applicable to this case and does not provide the authority for the custody orders issued in this case, because both parents were custodial parents at the time of the events and conditions arose that made the children fall within the provisions of section 300.” Instead, respondent seeks to justify the juvenile court’s order under section 362.4, which “states that, when the juvenile court terminates jurisdiction over a minor dependent child, and proceedings to alter the marital status of the child’s parents or to determine the child’s paternity are pending in the superior court, or a custody order has been entered with respect to the child, ‘the juvenile court on its own motion, may issue a protective order as provided for in Section 213.5 or as defined in Section 6218 of the Family Code, and an order determining the custody of, or visitation with, the child.’ An order entered pursuant to section 362.4 is commonly referred to as an ‘exit order.’ [Citation.] The exit order is filed in any pending superior court action in which the custody of the child is at issue and if no such action is pending, the exit order can be used to open a file in the superior court of the county of residence of the parent who has been given custody of the child. (§ 362.4.) That order ‘shall continue until modified or terminated by a subsequent order of the superior court.’ (Ibid.)” (In re Nicholas H. (2003) 112 Cal.App.4th 251, 269, italics added.) “ ‘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.’ ” (In re Chantal S. (1996) 13 Cal.4th 196, 203, quoting In re Roger S. (1992) 4 Cal.App.4th 25, 30; see also In re Jennifer R. (1993) 14 Cal.App.4th 704, 712.)
Here, a dissolution action was pending when the juvenile court terminated jurisdiction and entered the order granting custody of the minors to the mother. Thus, upon proper termination of the dependency proceeding the court had the discretion under section 362.4 to enter a custody order. (In re Natasha A. (1996) 42 Cal.App.4th 28, 36.) The record also supports the court’s finding that the children were no longer at risk in the custody of their mother and no longer needed the protection of the juvenile court. (In re Janee W., supra, 140 Cal.App.4th 1444, 1452.) The reference in the juvenile court order to section 361.2 rather than section 362.4 as the basis for the custody order is harmless error and does not provide a reason to reverse the termination order if the evidence supports the finding that continued supervision of the minors is not required. (In re Janee W., supra, at p. 1452.) Further, with termination of the dependency action by the court, no reason existed to provide defendant with reunification services; his parental rights were no longer at issue.
Appellant complains that section 362.4 did not independently justify the termination of jurisdiction, or the custody order associated with it. He claims that the statutes governing dependency cases where the child is not removed from parental custody, sections 364 and 388, “do not authorize termination of the court’s jurisdiction at the initial” hearing at which dependency is declared, but rather “apply to termination of jurisdiction at future hearings.” He maintains that the juvenile court thus had no authority to terminate the dependency at the initial jurisdictional hearing, and consequently no authority to issue a section 362.4 custody order along with the termination order.
Appellant is correct in asserting that “Section 364 applies when a dependency court determines that jurisdiction under section 300 is appropriate, but ‘the child is not removed from the physical custody of his or her parent or guardian . . . .’ (§ 364, subd. (a).)” (In re Janee W., supra, 140 Cal.App.4th 1444, 1450.) Also, “If a child is declared a dependent, but is not removed from the parent’s physical custody, the court must schedule a review hearing under section 364 within six months of the date of the declaration of dependency and every six months thereafter. (§ 364; Cal. Rules of Court, rule 5.710(a)(2); In re Janee W. (2006) 140 Cal.App.4th 1444, 1450 [45 Cal.Rptr.3d 445].) At the time of such review hearing, the court must terminate dependency jurisdiction unless the social services agency establishes that conditions still exist that justify the court taking jurisdiction of the child.” (In re Alexandria M. (2007) 156 Cal.App.4th 1088, 1095.) Section 388 provides that a parent may petition the juvenile court “for a hearing” to “terminate the jurisdiction of the court” upon grounds of “change of circumstances or new evidence.”
While we consider the juvenile court’s decision to declare the two minors dependent children but then dismiss the dependency in the same proceeding to be a rather curious one, we find nothing in the statutory scheme that requires the court to conduct a further review hearing before issuing a termination order. Subdivision (a) of section 364 directs that, “Every hearing in which an order is made placing a child under the supervision of the juvenile court pursuant to Section 300 and in which the child is not removed from the physical custody of his or her parent or guardian shall be continued to a specific future date not to exceed six months after the date of the original dispositional hearing.” (Italics added.) However, subdivision (d) adds the proviso, “If the court retains jurisdiction it shall continue the matter to a specified date, not more than six months from the time of the hearing, at which point the court shall again follow the procedure specified in subdivision (c).” We interpret section 364 to mean that a future hearing must be ordered if jurisdiction is continued, not to prohibit termination of jurisdiction, even at the jurisdictional or dispositional hearing, if the conditions to do so are found. Section 388 mandates a hearing, but only upon a petition by the parent and a showing of proper grounds, which did not occur here. We therefore conclude that under the statutory scheme the trial court was authorized to terminate jurisdiction and issue an associated custody order pursuant to section 362.4, “because ‘[u]pon termination of dependency jurisdiction, the juvenile court is empowered to issue “an order determining the custody of, or visitation with, the child.” ’ ” (In re Elizabeth M. (2008) 158 Cal.App.4th 1551, 1557, italics omitted.)
We observe that the court may have agreed taking jurisdiction was appropriate when the dependency action was initiated, but no longer necessary with appellant incarcerated, the mother accepting responsibility for protecting the minors, a dissolution petition pending and a restraining order issued. “When deciding whether to terminate jurisdiction, the court must determine whether there is a need for continued supervision, not whether the conditions that justified taking jurisdiction in the first place still exist, as required under section 364.” (In re Janee W., supra, 140 Cal.App.4th 1444, 1451.)
II. The Failure to Afford Appellant a Dispositional Hearing .
We turn our inquiry to the failure of the court to provide appellant a contested dispositional hearing and the right to present evidence before granting exclusive physical and legal custody of the minors to the mother and denying reunification services to him. Respondent “concedes that a disposition report must be filed and a disposition hearing held prior to disposition orders being issued by the court,” and acquiesces in reversal of the “disposition orders.” Upon review of the record we agree.
“The procedure to be followed” in dependency proceedings “was described by our Supreme Court in Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248–249 [19 Cal.Rptr.2d 698, 851 P.2d 1307], as follows: ‘When the court has found jurisdiction under section 300, it then must conduct a disposition hearing. (§ 358; Cal. Rules of Court, rules 1451, 1455.) If the court declares the child to be a dependent child of the juvenile court, it then considers whether the child may remain with the parents or whether the child must be removed from the parents pursuant to section 361, subdivision (b). At the dispositional hearing, the standard of proof for removal from a custodial parent is clear and convincing evidence. (§ 361, subd. (b); Cal. Rules of Court, rule 1456(c).)’ ” (In re Shaundra L. (1995) 33 Cal.App.4th 303, 306.) At the dispositional hearing the parents are entitled to present evidence on issues of custody and visitation prior to dismissal of the action. (In re Natasha A., supra, 42 Cal.App.4th 28, 35–36; In re Roger S. (1992) 4 Cal.App.4th 25, 30.) Once the juvenile court has “assumed jurisdiction under section 355 by finding the child is a person described by section 300, the court is required to hear evidence on the question of the proper disposition to be made of the child. (§ 358, subd. (a).)” (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 302, italics added.)
Appellant did not in any way waive his right to a dispositional hearing. To the contrary, he not only objected to the proposed custody order, but declined to submit the matter and expressly insisted upon a dispositional hearing in the case despite the recommendation of termination of the proceeding. The juvenile court recognized appellant’s right to a dispositional hearing, but then seemed to conflate the jurisdictional and dispositional proceedings by issuing an order at the conclusion of the jurisdictional hearing that included dispositional provisions. Having decided to terminate jurisdiction, the court properly chose to exercise its power to make a termination order, but erred in refusing to consider appellant’s request for a hearing to present evidence on the issue of custody. (In re Michael W. (1997) 54 Cal.App.4th 190, 195; In re Natasha A., supra, 42 Cal.App.4th 28, 35–36.)
There remains the issue of prejudice. Had the juvenile court merely terminated jurisdiction in the case we would find no prejudicial error. The decision of the court to deny appellant reunification services was not prejudicial to appellant where the dependency was terminated and his parental rights were no longer at risk.
The inclusion of the custody order is another matter. Cases have declared that “it would likely be reversible error for the juvenile court to refuse to hear evidence which is relevant to the formulation of an appropriate ‘exit’ order” regarding custody or visitation. (In re Hirenia C. (1993) 18 Cal.App.4th 504, 520; see also In re John W. (1996) 41 Cal.App.4th 961, 972.) Section 362.4 not only “authorizes the juvenile court to ‘issue’ an order determining the custody of the child,” but also “directs that the order ‘shall be filed in the proceeding for nullity, dissolution, or legal separation, or in the proceeding to establish paternity, at the time the juvenile court terminates its jurisdiction over the minor, and shall become a part thereof. . . .’ ” (In re Ryan R. (2004) 122 Cal.App.4th 595, 600.) A custody order issued as an exit order under section 362.4 becomes part of the family law file and remains in effect “in the family law action ‘until modified or terminated by a subsequent order.’ ” (In re John W., supra, at p. 970.) The juvenile court’s custody order may be in the nature of pendente lite orders in an ongoing family law proceeding, but we must presume the family law court would defer to those orders and hesitate to second-guess the juvenile court judge, at least absent a persuasive showing of changed circumstances. (Id. at p. 973; In re Michelle M. (1992) 8 Cal.App.4th 326, 328.) A juvenile court’s exit order of custody is prejudicial in a future family court proceeding “because there would ‘be a presumption in favor of maintaining the status quo.’ ” (In re John W., supra, at p. 971, quoting from In re Jennifer R., supra, 14 Cal.App.4th 704, 711.) Although the order granting exclusive custody to the mother was certainly appropriate based upon the record before the juvenile court at the jurisdictional hearing, without a dispositional report, a hearing, or any presentation of evidence we cannot find the error harmless and must reverse the termination and custody orders. (In re Michael W., supra, 54 Cal.App.4th 190, 197.)
Section 302, subdivision (d) also provides: “Any custody or visitation order issued by the juvenile court at the time the juvenile court terminates its jurisdiction pursuant to Section 362.4 regarding a child who has been previously adjudged to be a dependent child of the juvenile court shall be a final judgment and shall remain in effect after that jurisdiction is terminated. The order shall not be modified in a proceeding or action described in Section 3021 of the Family Code unless the court finds that there has been a significant change of circumstances since the juvenile court issued the order and modification of the order is in the best interests of the child.”
DISPOSITION
Accordingly, the dispositional orders of the juvenile court that terminated jurisdiction, denied appellant reunification services, and granted exclusive custody of the minors to the mother are reversed. That part of the judgment that sustained the allegations of the dependency petition and declared the minors dependent children is affirmed. The case is remanded to the juvenile court for proceedings not inconsistent with the views expressed herein.
We concur: Marchiano, P. J., Margulies, J.