Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County No. CK 58393.
Marilyn Mackel, Juvenile Court Referee. Affirmed.
Deborah Dentler, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Tracey F. Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.
WOODS, J.
Appellant, the mother of minor T., appeals from the juvenile court’s order granting father legal and physical custody of the child, ordering that appellant have no contact with the child and terminating jurisdiction. Appellant contends the court erred by issuing a no contact order at a hearing where she had no prior notice the social worker (CSW) would be recommending the case be terminated with a no contact order. We affirm.
FACTUAL AND PROCEDURAL SYNOPSIS
I. Original Petition
This case came to the attention of the Los Angeles County Department of Children and Family Services (Department) as a result of a March 7, 2005, referral alleging father was sexually inappropriate with T. during T.’s visits.
On March 11, 2005, the Department filed a petition pursuant to Welfare and Institutions Code section 300, subdivisions (b) and (d). The petition alleged father sexually abused T. by masturbating in his presence, caused T. to view pornographic movies, and S., T’s half-sibling, also sexually abused T. by masturbating in his presence. The petition alleged father put T. in a dangerous situation by leaving the child outside in the yard with a large dog and had a history of substance abuse that rendered him incapable of providing regular care for T. The petition alleged appellant failed to protect T. from the abuse and had a history of substance abuse.
All statutory references are to the Welfare and Institutions Code.
Father denied all the allegations. Father believed his son had emotional and psychological problems. Father stated appellant was upset with him because he refused to give her a full month of child support instead of two monthly installments and the allegations were appellant’s way of retaliating against him. The parents had not been married and were not living together. T. lived with appellant.
II. Detention
A. Reports and Amended Petition
On March 11, 2005, the court found a prima facie case had been made, detained T. and released him to appellant’s custody. The court ordered the Department to provide appellant and father with referrals to CSAP (child sexual abuse program) and a parenting class and ordered appellant and father to provide six clean random drug and alcohol tests. The court ordered that T. attend counseling and CSAP. The court granted father monitored visitation in a therapeutic setting. T. was to have no contact with his half-brother or his paternal aunt. The court ordered psychological evaluations of the parties pursuant to Evidence Code section 730.
In April, the Department filed a first amended petition adding an allegation that father physically abused T. by hitting and slapping him. The April report included an interview with T., who described father’s physical and sexual abuse.
An information for the court noted that according to father, T. was not afraid of the dog. One day when T. was in the yard shooting baskets, father saw the dog knock T. down. T. got up and three seconds later T. called the dog a jerk and came into the house. T. then went outside with S. and played in the yard again, and the dog followed the boys just like it always did Deputy Drake stated the suspected child abuse report was closed because appellant, the reporting party, had a history of making false reports as a result of a custody battle.
The CSW interviewed the maternal grandmother who gave a detailed history of appellant’s past. The grandmother was very upset because she had not seen T. since February 2004. According to the grandmother, appellant had become involved in her sister’s marital problems and since then had not spoken to or had a relationship with her sister. Appellant basically divorced herself from the family, and no one in the family had seen T. Appellant’s father was a diagnosed schizophrenic. The grandmother was concerned appellant was having emotional problems.
On April 12, the Department received a referral that T. had been sexually abused by his step-mother. On May 2, the Department received additional allegations of sexual abuse by father. Appellant had taken T. to school that day to talk to the school nurse about the sexual abuse. Appellant brought a video camera and a blowup Superman doll so she could record T. while he demonstrated the abuse with the doll. A third referral that day alleged the ex-husband of appellant’s sister had sexually abused T. at the sister’s home. T. said his maternal aunt and grandmother knew he was being abused and did nothing to stop it.
A fourth referral on May 4, alleged the step-mother’s brother sexually abused T. every time T. had visited father prior to February 19. T. had been afraid to report the abuse because he was afraid father or his step-mother would hurt his pet guinea pig Spotty. T. thought the molestation was videotaped and posted on the internet.
The CSW spoke to the maternal aunt about the allegations. The aunt said appellant had been diagnosed as bipolar when appellant was younger, a maternal uncle was diagnosed as bipolar, but was functionally well as he was medication compliant. The maternal grandfather had been institutionalized because of paranoid schizophrenia.
On May 5, T. was detained from appellant. Based on T.’s numerous new disclosures and appellant’s conduct, the Department believed T. was being emotionally harmed by appellant.
A second amended petition, filed on May 10, added new allegations concerning appellant. The petition alleged appellant had an unresolved history of mental health issues, including, but not limited to, depression and suicidal ideation and two suicide attempts. Also, appellant had made an escalating series of false child abuse allegations against many individuals, subjected T. to repeated medical examinations and abuse investigations, and her unresolved history and false allegations endangered T.
B. The Hearing
The detention hearing was held on May 10. After the court stated it was going to issue detention orders, appellant requested a rehearing, which the court heard that day. Appellant submitted a number of letters and other documents. The court permitted appellant to proceed with the CSW who was in court. The CSW testified, and the court found it had a sufficient basis for detention.
On May 17, the court ordered new Evidence Code section 730 evaluations with Dr. Daniel Kramon. Dr. Kramon’s evaluation was filed with the court on August 10, as were other documents provided by appellant. T. was moved into a non-relative foster home.
C. Amended Petitions
The third amended petition, filed on August 25, deleted the allegations of sexual abuse by father and S. and added a new allegation that appellant suffered from an emotional or mental disorder which caused her to believe T. had been molested by father and numerous relatives, appellant had communicated that belief to T. and persuaded him he had been molested, and her disorder placed T. at risk of emotional harm.
On September 27, the court granted appellant’s request to proceed in pro per. The court also granted appellant’s request to discontinue CSAP counseling based on the recommendation of Shlomo Zadok, appellant’s therapist.
On October 24, a fourth amended petition was filed adding an allegation that appellant had emotionally abused T. by calling him twice during Spotty’s death and telling T. that Spotty died of a broken heart because of its separation from T. The October report contained details of the calls. T. was now in another foster home. Attached to the report were letters from Zadok, who stated he had conducted a personality test on appellant and had seen her twice a week. Zadok opined appellant was a normal person and did not suffer from any mental disorder. Zadok recommended that appellant not attend any counseling other than his own as those interventions were stressful for her and interfered with his work with her.
On October 24, the court denied appellant’s request to have T. seen by Zadok and granted her request to exclude Dr. Kramon’s psychological evaluation.
III. Jurisdiction
The hearing commenced on November 28 and took place over three more days. Even though the Department had withdrawn the sexual abuse allegations, appellant filed a request to have T. testify in chambers about whether he had been molested by father. T. testified in chambers. When asked if anyone had hurt him, T. responded his father, his uncle, his step-uncle, his brother, his step-mother and his aunt and described the abuse.
The court reconsidered its decision and admitted Dr. Kramon’s psychological evaluation into evidence and denied appellant’s motion to exclude it.
Dr. Kramon had evaluated the parties in June 2005. In Dr. Kramon’s opinion, it was unlikely T. had been sexually abused by father or any one else. Dr. Kramon stated that T. and appellant had, in essence, indicated there was a vast conspiracy on the part of various family members to sexually molest T. Appellant claimed family members who were angry with her were acting out by molesting T. According to Dr. Kramon, that belief was a manifestation of paranoid-type thinking. T. appeared to be feeling confused and angry and was likely becoming increasingly unclear as to his own thoughts and beliefs. Dr. Kramon opined that appellant was emotionally unstable and was currently not functioning in a manner that would create a healthy emotional environment for T.
Dr. Kramon concluded T. was in an extremely difficult position. To continue to place T. away from appellant would cause T. a great deal of emotional stress as he was closely bonded to her, but that bond had some unhealthy aspects. To place T. with appellant would perpetrate serious distortions that appeared to have occurred. To place T. with father would likely create significant loyalty issues. Dr. Kramon recommended the best placement would be in a relative’s home.
Appellant called two social workers as witnesses. Brenda Hoffing, the CSW who responded to the initial child abuse referral, testified she thought T.’s initial disclosure was credible. Appellant cross-examined Lorna Schill, the CSW who wrote the reports, using the state welfare plan.
At the conclusion of the adjudication, the court stated:
[T]he court agrees with counsel for the father and the [Department] that this is a very serious case of parental alienation and it’s made more serious than what seems to be a lack of insight into the environment that creates this alienation. [¶] Minor’s counsel and the court concurs with minor’s counsel that the child really does believe what he said happened to him and that suggests to the court that the level on intensity of the alienation, some of what may well have been months of it, may have been unconscious; [¶] However, the court has no doubt that based upon the court’s observation of the mother when the father is present in court there is no doubt that the mother’s hostility, disdain is heightened.
The court found true the allegations that appellant had created an environment that caused severe familial alienation and that she emotionally abused T. by her calls about the death of his pet. The court sustained the petition under subdivisions (b) and (c) of section 300 and dismissed all the allegations against father.
IV. Disposition
On January 25, 2006, the court appointed appellant’s advisory counsel as her attorney and continued the case for a contested disposition hearing.
The Department reported in March that appellant had started conjoint counseling with T. on February 22, but it was too early for the therapist to give a report. T. was also in conjoint counseling with father. The conjoint therapist (Dr. Benjamin Lasky) reported that T. viewed his parents in a highly polarized manner. T. fought any positive feeling that he had for father and presented things in black and white; appellant was nearly perfect while father was to blame for all the problems T. faced.
The court received a letter from Zadok, who wrote he believed appellant was a woman of integrity and could not have invented her son’s molestation story or contributed to her son’s disclosure of molestation.
On March 24, the court ordered another psychological evaluation of T. by Dr. Timothy Collister. The appointment order asked what, if anything, could be done to repair T.’s relationship with father. The court ordered that visits for both parents had to be monitored by a CSW “experienced in [alienation] issues.”
The May progress report stated T. had not had visits because the foster family agency did not know about the order for visitation. The foster parents indicated they were willing to adopt T.
In June, an information for the court indicated appellant had telephone contact with T. six times from February to May. Ronald Korn, a marriage and family therapist (MFT), submitted a letter describing the contact between T. and appellant with whom he had conducted 12 consultations between March and June.
According to Korn, appellant appeared to be a model parent who loved her son intensely and missed daily contact with him. However, appellant refused to engage in meaningful discussions about her life, continuously referring to those whose only intention was to bring grief to herself and her son -- the social workers, the judge and father. Appellant believed they all conspired to keep her from raising her son; the tenor of appellant’s complaints was that she would continue her fight against the forces of evil. Appellant had not shown any insight into her behavior. There were instances of parental alienation, such as soliciting T. to talk of those disgusting “‘things that [father] did’” to him. Mostly, her outbursts referred to the social workers, the police and the court. Appellant did not present well as a healthy integrated person. Korn’s provisional diagnosis was bipolar disorder, manic with paranoid features.
Dr. Collister submitted his report in June noting that father had not complied with the court order for Dr. Collister to evaluate father. Dr. Collister opined that the graphic detail T. used in discussing the alleged sexual abuse made it unlikely that T. had not been abused; either T. had been molested or his beliefs were part of a fairly evolved, extensive, delusional system which had affected his behaviors. The prognosis for T. developing a more positive relationship with father was guarded at best.
On June 13, the court ordered that father begin four-hour unmonitored visits with T.; if those visits went well, they could be extended up to eight hours. The court gave the Department discretion to liberalize those visits to weekend visits if appropriate.
On July 26, the CSW reported that during one of appellant’s monitored telephone calls with T., appellant said, “‘I can’t believe they are letting you be with this molester.’” At that time, T. had been spending weekends with father and had been requesting more time with father. The court admonished appellant regarding her statement father was a molester and ordered her visits take place in a therapeutic setting. The court ordered appellant’s visits be monitored in a therapeutic setting and gave the Department discretion to liberalize father’s visits.
On August 7, appellant requested an order clarifying who would monitor her visits and who should pay for the monitor if payment was requested. The court ordered appellant’s visits to take place in a therapeutic setting, noted Korn was the current monitor and clarified Korn’s role was as a monitor not a therapist.
On August 14, the CSW reported she had mailed appellant a 14-page referral list of mental health agencies in the San Fernando Valley area; some of the agencies provided sliding scale fees based on income. Appellant told the CSW that she intended to throw the list away just as she had done with other referrals.
Korn said he was not interested in acting as a monitor, denied charging appellant $150 per hour, and said his fee was $25 per hour. A letter from Zadok pronounced appellant sane and stated she was a woman with a strong personality and a high level of integrity as proved by two psychological tests.
In the August report, the Department recommended T. be placed with father. The Department submitted a last minute update stating T. was okay living with father. T.’s therapist wrote a letter stating that T. and father had gradually and continually improved their relationship, but T. was still resistant to moving to father’s home. T. had not said anything negative about father or family members in months so it was likely the stress of major change, such as changing schools or homes, was the cause of his expressed anxiety rather than a personal issue with father or family.
At the hearing, the court asked appellant if the reason visits had not taken place was because she was unwilling to have them monitored in a therapeutic setting. Appellant’s counsel explained appellant felt Korn was against her and requested an alternate therapeutic setting for visits and conjoint counseling with T.’s individual therapist. Appellant indicated she would stay in individual counseling if she could stay with her current therapist; the court indicated it was not impressed with Zadok. The court recommended that appellant’s therapy occur at the Children’s Institute or with Dr. Hebe Lien. Appellant’s counsel asked if appellant could have conjoint counseling with T. there as well. The court replied appellant could, but she would have to pay for the therapy as she was working and had a consistent income. The court ordered the Department to find an appropriate therapist to monitor appellant’s visits. The Department offered to have a CSW monitor a visit so appellant could have a visit that week.
The court ordered T. placed with father, who was to receive family maintenance services. Appellant was offered family reunification services. The court ordered appellant to be in individual counseling and parenting and granted her monitored visits in a therapeutic setting.
Appellant’s appeal from the disposition order was unsuccessful.
On November 2, appellant walked on a request to have T.’s visits monitored by a CSW or someone other than a therapist. Appellant asserted having the visits monitored by a therapist violated the teachings and tenets of her faith and her constitutional right to freedom of religion. The court granted the request and ordered that a CSW could monitor the visits as long as the CSW was familiar with the case and was credentialed as an MFT, had a master’s degree in social work (MSW) or was a licensed clinical social worker (LCSW).
On December 6, the matter was again walked on as the prior order had been made without notice to father or his counsel. Appellant’s position was that she was willing to have a Scientologist monitor the visits. The court ordered appellant could have visits in Korn’s office. The court ordered that, in consultation with the conjoint therapist and after a period of appropriate therapy, additional contact between T. and appellant could be established with a LSCW or MSW familiar with the history of the case, including someone employed by the Department, monitoring the visits.
In February 2007, the Department reported that T. had adapted well to life in father’s home, was earning good grades in school, and was getting along with his step-mother and half-brother. T. had been in conjoint counseling with father for a year, and father had completed a parenting class and was in individual counseling. T. and appellant had had only one visit, which went well, and had numerous telephone calls. No visit with a therapeutic monitor had occurred because appellant refused to comply with that order. When the CSW discussed the therapeutic monitor with appellant, she became agitated and angry and stated she would meet with the senate to discuss the CSW’s incompetence.
During the monitored telephone calls, appellant often made inappropriate comments to T. In September 2006, appellant told T., “‘It’s not my fault, this is the way the court wants to play.’” The CSW warned appellant about discussing the court case with T. Later that month, after T. kept insisting he was fine, appellant persisted in finding something wrong and told T. it was all right for him not to say anything, and she had hired new people who would handle the case. When the CSW tried to redirect appellant, appellant told the CSW her job was on the line. During a December 2006 call, after T. said he had not had a chance to listen to the CDs appellant had given him, appellant said, “‘Whatever, I’m bringing these people down, I’m pissed off, but not at you. I know that you can’t like the things you used [to].’” Later that month, appellant told T. they soon would have a lot of money. Appellant continuously commented she was suing the Department.
The Department was concerned appellant had made no effort to try to cooperate and comply with the visitation orders. Appellant stated she would not rest until T. was returned to her. It was evident to the Department that appellant never had any intention of complying with the court’s orders or the Department’s directives. T. remained stable in father’s home, and father had complied with all of the court’s orders.
The Department recommended that the case be terminated with a family law order granting legal and physical custody of T. to father and that appellant be granted no visitation and only be given one weekly telephone call. The Department notice of the February 8 review hearing indicated its recommendation was for termination of jurisdiction with a family law order granting father legal and physical custody and monitored telephone calls for appellant.
On February 8, appellant requested a contested hearing. Appellant had not had any visits with T. during the past six months. Appellant argued the court’s order that visitation occur in a therapeutic setting violated her constitutional and civil rights. Counsel for the Department clarified the court was not asking appellant to participate in therapy. The court denied the request to change the visitation order.
On March 6, appellant filed another request asking the court to vacate the order visitation take place in a therapeutic setting. Appellant attached documents concerning Scientology doctrines on mental health counseling. The court ruled the attachments and the request did not provide a basis to change the previous orders.
The court terminated reunification services for appellant on March 22, finding appellant had minimally complied with the reunification plan. At the hearing, appellant requested that numerous persons involved in the matter submit to a polygraph test. The court told appellant that if she wanted to take such a test, there were private companies that administered them.
In May, appellant filed a section 388 petition again requesting modification of the court’s previous visitation order; the basis for the petition was that appellant had undergone a polygraph test indicating she was not deceptive in her statements concerning T.’s sexual abuse. The court denied the petition and subsequently explained polygraph results are not admissible.
Numerous phone calls occurred from February to June 2007. On August 9, appellant walked on a request asserting the Department had not been facilitating T.’s monitored telephone calls with her. Because the court was going to be dark, it ordered the CSW to prepare a report addressing appellant’s contacts with T. and submit the report for the next review hearing.
Appellant continued to be inappropriate during the calls. On February 9, appellant began crying and said, “‘They didn’t let me see you’” and “‘I’m fighting for you.’” On April 10, appellant told T., “‘It doesn’t sound like you want to talk to me, it’s okay, I’ll hang up. I don’t believe this, [t]he reason I can’t see you is because I’m a Scientologist and I don’t believe in therapy.’” On April 17, appellant told T. he should not worry and everything would end in her favor. On May 8, appellant stated, “‘It’s all going to change, there’s a big surprise for everyone. Victory and Justice just around the corner, you hang tight.’” A week later, appellant told T. her feelings had been hurt the previous week when she had not been able to speak to him. T. apologized and said he was not at home, but he had nothing to tell appellant. On June 12, appellant blamed T. for the family’s involvement with the Department and the court.
On September 12, the CSW reported that on numerous occasions, T. said he did not want to speak with appellant. On June 27, T. had told the CSW appellant made him feel guilty about not wanting to speak to her on the phone. T. said he no longer wanted to speak to appellant on a weekly basis, but every other week. T. explained he did not like what appellant talked about and felt uncomfortable when appellant blamed his father, the CSW and the court for not having custody of him. On August 15, T. told the CSW he no longer wanted to talk to appellant on the phone.
In its September report, the Department opined having T. tell appellant he did not want to talk to her would create unnecessary emotional distress for T. The Department concluded it was in T.’s best interest to have no further telephone contact with appellant. The Department recommended the court terminate dependency jurisdiction with a family law order specifying father be granted full legal and physical custody of T., with appellant having one monitored phone call per week at T.’s discretion. The Department sent appellant notice of its recommendation.
At the September 11 hearing, appellant argued the phone calls previously ordered by the court could not be discontinued by the CSW merely because T. did not wish to speak to her. Appellant requested that the matter be continued and dependency jurisdiction remain open so she could receive her weekly phone calls with T. In addition, appellant stated she had contacted Korn to set up an appointment, but he refused to see her. Appellant also claimed she had called the CSW, and the CSW told appellant she would set something up, but never did.
The court indicated it saw two problems: it was inappropriate for the CSW to ask T. if he wanted to speak to appellant; and appellant continued to make inappropriate statements. The court continued the matter for a brief period for the Department to call T. and set up the three-way calls with appellant. If appellant made an inappropriate statement, the calls were to be immediately terminated. If that occurred on more than two occasions, the Department was to walk on the matter with a full record of the nature of the inappropriate statements as well as T.’s reaction. The court requested a report from T.’s therapist regarding the issue of appellant’s involvement and communication with T. The court continued the hearing until November 1.
On October 29, the Department walked on a report informing the court that appellant’s calls continued to be inappropriate. During a call on September 24, appellant asked T. four consecutive times if he wanted to visit her. T. did not respond. Appellant then told T. that she loved him and asked four consecutive times if he loved her. There was a long silence. T. did not respond. The CSW told appellant to change the subject and move on. During another call, appellant told T. she loved him. T. said, “‘Thank you.’” Appellant became upset and said, “‘What, you don’t love me!’” The CSW ended the call. The CSW monitored a call two days before T.’s birthday. Appellant was upset the call occurred that day and not on T.’s actual birthday. The CSW told appellant it was T.’s request to speak to her on that day because he had other plans on his birthday. Appellant interrogated T., “‘Whose idea was [it] to have a telephone call today and not your birthday?’” and “‘Was it your idea?’” T. responded in an upset voice it was his idea. The phone went dead as T. had hung up on appellant.
The final telephone call occurred on October 16; it lasted 20 seconds. T. told appellant he had a lot of homework. Appellant responded it was okay and she just wanted him to know that she had passed her lie detector tests and everyone would know he was not lying, “Victory, baby!” Minutes later, father called the CSW and asked what had happened during the call. Father said T. was upset and shaken about his conservation with appellant and asked father if they were going to take him out of father’s home and asked if he was going to live with appellant. The CSW spoke to T. who said he was not happy about appellant’s statements and it was disturbing to him. When the CSW asked what T. meant, he said, “‘What mother told me, I don’t need to know.’” T. said he was scared now that appellant had passed a lie detector test and asked whether he was going back to her. The Department recommended the telephone calls between appellant and T. be terminated.
On October 29, the parties stipulated to continue the matter for the appearance of appellant’s and father’s attorneys. The parties also stipulated there be no telephone calls pending the continued hearing date.
The matter could not go forward on November 19 as appellant’s attorney declared she had an actual conflict and asked to be relieved. Appellant asked she be allowed to represent herself or the matter be returned to the family law court. The court relieved counsel, denied appellant’s request, appointed counsel to represent her, and continued the matter for a month.
For the next court date, the Department informed the court that T. was participating in individual and conjoint counseling with a therapist. According to the therapist, T. had stated he did not want telephone calls with appellant, saying “‘She makes me feel guilty that I don’t say what she wants me to say.’” T. felt appellant’s tone of voice scared him and his stomach hurt during and after the calls. The therapist stated T. suffered from symptoms of post traumatic stress disorder and the symptoms appeared more often when he had telephone calls with appellant. The therapist believed T. was held emotionally hostage by appellant and was still fearful of her. The therapist said it was causing T. severe stress when he talked with appellant and it was damaging to T.’s emotional health to have contact with appellant.
On November 30, the Department sent appellant notice of its recommendation for termination of jurisdiction and a family law order granting full legal and physical custody of T. to father.
On December 18, appellant and her counsel were present in court. Counsel stated appellant was objecting to the no contact order and it was appellant’s belief T. wanted to see her. Appellant addressed the court and indicated it had lots of documents saying T. had repeatedly reported sexual abuse by father and a variety of other persons and the court had failed T. After appellant’s statement, the court indicated it was going to terminate jurisdiction and its order was going to be consistent with the Department’s recommendation. The court noted there will be a time in the future when T. might wish contact with appellant, and if that occurred, father was ordered to facilitate contact. Such contact was ordered to be in a monitored therapeutic setting, and for that to happen, appellant would have to obtain a licensed therapist. The court encouraged appellant to see a therapist who could assist her in learning appropriate communication so that she ultimately have contact with her child.
The court found by clear and convincing evidence that visits with appellant posed a substantial risk and detriment to T. Termination was stayed pending receipt of the family law order, which was to be received on January 4, 2008.
The order was not received until February 28, 2008, when the court lifted the stay of the termination of jurisdiction as of December 18, 2007.
Appellant filed a timely notice of appeal from the December 18 order terminating jurisdiction.
DISCUSSION
Appellant contends the court erred in issuing a no contact order at a hearing where she had no prior notice the Department would be recommending the case be terminated with a final order of no contact. Although the notice of the December 18 hearing stated the Department was recommending a grant of custody to father and termination of jurisdiction, it said nothing about recommending a no contact order. (See In re DeJohn B. (2000) 84 Cal.App.4th 100, 106 [“‘[D]ue process requires “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”’”].)
Although appellant objected to the no contact order, she did not object on the basis of lack of notice. However, the question of whether notice was defective where the facts are not in dispute is a question of law which a parent may raise for the first time on appeal. (In re P.C. (2006) 137 Cal.App.4th 279, 287.)
Appellant posits she was denied due process because the notice and report did not contain notice of the no contact recommendation. (See In re Crystal J. (1993) 12 Cal.App.4th 407, 412-413 [“Due process requirements in the context of child dependency litigation have similarly focused on the right to a hearing and the right to notice. A meaningful hearing requires an opportunity to examine evidence and cross-examine witnesses, and hence a failure to provide parents with a copy of the social worker’s report, upon which the court will rely in coming to a decision, is a denial of due process. Where an investigative report is required prior to the making a dependency decision, and it is completely omitted, due process may be implicated because a cornerstone of the evidentiary structure upon which the court and parents are entitled to rely has been omitted.” (Citations omitted; original italics.)].)
The court in Crystal J., went on to note that: “Where, however, the assessment report is prepared, is available to the parties in advance of the noticed hearing, and does address the principal questions at issue in the particular proceeding, errors or omissions in the report cannot be characterized in terms of denial of due process. Deficiencies in an assessment report surely go to the weight of the evidence, and if sufficiently egregious may impair the basis of a court’s decision to terminate parental rights. Such deficiencies, however, will ordinarily not amount to a deprivation of procedural due process.” (Citations omitted; original italics.) (In re Crystal J., supra, 12 Cal.App.4th at p. 413.)
Moreover, appellant complains the report for the December hearing was not served on her or her counsel 10 days prior to the hearing as required by section 361.21, subdivision (c). (See Judith P. v. Superior Court (2002) 102 Cal.App.4th 535, 549-553 [the 10-day notice requirement is mandatory and obligatory].) In Judith P., the court concluded noncompliance with section 361.21 was structural error requiring per se reversal absent a continued hearing or an express waiver of the right to timely service of the report. (Id., at pp. 553-558.) However, “The Judith P. court relied heavily on criminal cases in holding the tardy delivery of the status report constituted structural error. The following year, our Supreme Court in [In re Celine R. (2003) 31 Cal.4th 45, 58-59] criticized case law that analogized criminal cases to dependency cases; the high court observed that such an analogy was inapt.” (In re Sabrina H. (2007) 149 Cal.App.4th 1403, 1420, fn. 14.)
In Sabrina H., which appellant concedes controls, the court noted: “Errors in notice of dependency proceedings do not automatically require reversal; instead, we assess such errors to determine whether they are harmless beyond a reasonable doubt.” (In re Sabrina H., supra, 149 Cal.App.4th at p. 1419; see also In re Angela C. (2002) 99 Cal.App.4th 389, 394 [“Constitutional error as a general rule does not automatically require reversal. In determining the effect of ‘most constitutional errors,’ appellate courts can properly apply a Chapman harmless error analysis.”].)
Looking at the Department reports, appellant essentially had prior notice of its recommendation of a no contact order. In the February report and notice of hearing, the Department recommended terminating jurisdiction and appellant only be allowed weekly monitored calls. In the August 2007 report, the Department recommended appellant be allowed only monitored weekly calls at T.’s discretion. In September, the Department noted it was in T.’s best interest to have no further telephone contact with appellant. In the October ex parte application, the Department recommended the telephone calls between appellant and T. be terminated.
Pursuant to Evidence Code section 459, subdivision (a), we take judicial notice of the family law order finally entered by the court on February 28, 2008. In part, that order provides: “Mother shall have no visitation or contact with child unless said visitation or contact is in a therapeutic setting or a counseling session. [¶] Father shall be given notice of a therapeutic session at least 21 days in advance and father will transport minor to the therapeutic session.” Thus, the final order entered by the court was not that appellant could have no contact with T., but that any contact had to be made under certain specified conditions.
Appellant asserts that if she had notice she might have refuted the Department’s characterization of the reason she had not visited her son, i.e., she tried to arrange a visit, but the CSW refused to help; she called T.’s therapist who thought a visit was a good idea; and she was willing to have monitored visits. At the December 18 hearing, the court allowed appellant to address it, and she presented those same arguments, which the court impliedly found unconvincing.
Appellant also claims she could refute the Department regarding the impact of contact on T. by subpoenaing the therapist, the CSW or T. to say T. wanted contact with her and some contact would be beneficial. Appellant notes that her August 2006 visit with T. went well, in March 2007, T.’s counsel said T. wanted to see appellant; and in September 2007, the court advised the Department it was inappropriate not to permit the calls and ordered the Department to arrange for the calls.
Appellant ignores later developments; subsequent to those events, T. expressed a desire to live with father and not to have phone contact with appellant. As noted by the court, appellant had been inconsistent about her willingness to visit in a therapeutic setting. Even though appellant had been in therapy with Zadok, when the court ordered that visits were to occur in a therapeutic setting, she asserted that order violated her constitutional right to freedom of religion and claimed therapy was against the beliefs of her religion (i.e., Scientology). Although the court ordered visits be monitored in a therapeutic setting in July 2006, it was not until June 2007, that appellant stated she was willing to visit in a therapeutic setting. However, the court’s ruling was not based on the lack of visits, but rather on appellant’s inappropriate comments during her calls to T. and the opinion of T.'s therapist that T. was being held emotionally hostage by appellant, was fearful of her, was suffering from severe emotional stress because of those calls, and it was damaging to his emotional health to have contact with appellant. Furthermore, the court did not prohibit any future contact with T. In essence, the court created a safe harbor for T. to heal emotionally before he had contact with appellant and appellant met the conditions imposed by the court.
In addition, appellant did not request a continuance or a contested hearing. (See In re Cheryl E. (1984) 161 Cal.App.3d 587, 603.) Accordingly, under all these circumstances, any error in not providing appellant of notice of the recommendation for a no contact order was harmless beyond a reasonable doubt. (See In re Angela C., supra, 99 Cal.App.4th at pp. 391, 394-395.)
The December 18 hearing was held pursuant to section 364. Appellant had a right to a reasonable continuance if she did not receive the related report in a timely manner. (§ 364.05.)
As a final salvo, appellant argues the no contact order was not supported by evidence as she did not have notice of the recommendation and did not see the Department’s evidence in advance. (In re Daniel C.H. (1990) 220 Cal.App.3d 814, 837.) In September 2007, the court continued the matter and ordered a report from T.’s therapist about appellant’s involvement in T.’s life. That report as well as the history of the case as described above, particularly appellant’s inappropriate comments and their effect on T. and appellant’s refusal to comply with the court’s visitation order, provided substantial evidence supporting the court’s finding that visits with appellant posed a substantial risk to T.
DISPOSITION
The order is affirmed.
We concur: PERLUSS, P.J., JACKSON, J.