Opinion
B318510
06-29-2023
In re A.L. et al., Persons Coming Under the Juvenile Court Law. v. M.L., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Suzanne M. Nicholson, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Melania Vartanian, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 20LJJP00140, Stephanie M. Davis, Judge Pro Tempore.
Suzanne M. Nicholson, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Melania Vartanian, Deputy County Counsel, for Plaintiff and Respondent.
WEINGART, J.
The Danes have a proverb stating, "The absent are always to blame." Taken both literally, and in its figurative sense of seeking to shift blame to someone else, it encapsulates our resolution of this matter. The juvenile court issued a domestic violence protection order pursuant to Welfare and Institutions Code section 213.5, subdivision (d) restraining M.L. (Mother). Mother was personally served with notice of the restraining order request, the temporary restraining order, and the time and location of the permanent restraining order hearing. On that appointed date, Mother's counsel was present in court but Mother failed to show up. Rather than proceeding with the restraining order hearing, the court gave Mother a second chance to appear by continuing the hearing to a future date; Mother's counsel was ordered to notify Mother of the new hearing date. At the continued hearing date, Mother again did not appear. Mother's counsel indicated that despite her outreach efforts Mother remained incommunicado, and requested a further continuance. The court denied that request, proceeded with the hearing, and issued the restraining order.
Subsequent unspecified statutory references are to the Welfare and Institutions Code.
Mother now blames the issuance of the restraining order not on her failure to appear for the initial hearing, or on her failure to remain in contact with her counsel, but on her counsel allegedly failing to object to the restraining order hearing moving forward because Mother herself lacked notice of the continued hearing date. This claim is baseless. Mother's counsel in fact requested the continued hearing not proceed because of lack of notice to Mother, a request the juvenile court reasonably rejected. Despite her efforts to deflect responsibility from herself, any blame for Mother's absence from the restraining order proceeding belongs to her and not someone else. We therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Petition and Detention of the Children from Father
As the sole issue on appeal is alleged ineffective assistance of counsel at the restraining order hearing, we accordingly limit our factual summary of the dependency proceedings.
Respondent Los Angeles County Department of Children and Family Services (DCFS) received a referral regarding Mother and R.A. (Father) following an incident on December 30, 2019, in which Father strangled Mother and locked her out of the home while their children were present. Mother called the police and Father was arrested. Mother later reported to DCFS that she and Father had been in a relationship for approximately nine years but, at the time of the incident, were separated and had been living separately for about five months.
Father is not a party to this appeal. Mother had a restraining order in place against Father, issued by the Kern County Superior Court on August 21, 2018. However, Mother reported that she had allowed Father into the home.
On January 14, 2020, Father pleaded no contest to one count of willful infliction of corporal injury (Pen. Code, § 273.5, subd. (a)), and on February 4, 2020, the court sentenced him to four years in state prison, suspended execution of the sentence, and placed him on formal probation for five years. The terms of probation prohibited Father from communicating with Mother and required him to stay at least 100 yards away from her. The criminal court also granted Mother a 10-year criminal protective order, requiring Father to stay at least 100 yards away from Mother.
On February 21, 2020, based on DCFS's application, the juvenile court issued a removal order authorizing detention of A.A. (born 2011), R.A., Jr. (born 2013), and M.A. (born 2017) (collectively, the children) from Father's care. On February 25, 2020, DCFS notified Mother and Father that the court had detained the children from Father's care; at that time the children were living with Mother.
On February 27, 2020, DCFS filed a petition pursuant to section 300, subdivisions (a) and (b)(1), based on an alleged history of domestic violence between Mother and Father. The petition also alleged Mother's two older children, A.L. and M.L. (for whom Father was not a biological parent), came under the jurisdiction of the court pursuant to section 300.
The next day, February 28, 2020, the juvenile court held a detention hearing at which it found a prima facie case that A.A., R.A., Jr. and M.A. were children described under section 300 and vested temporary placement and custody over those three children with DCFS. The court found Father to be the presumed father of the children, detained the children outside of Father's custody, released the children to Mother under DCFS supervision, allowed Father monitored visitation, and ordered family maintenance services. The court ordered Mother and Father not to have any contact with each other. Mother and Father denied the allegations of DCFS's petition.
The juvenile court scheduled a jurisdiction/disposition hearing for November 10, 2020. DCFS provided notice of the hearing to Mother and Father by mail. On the day of the hearing, DCFS filed a last minute information in which it reported that Mother and A.L. had engaged in a physical fight with Father's girlfriend in front of the Sheriff's station during an exchange of the children for a visit with Father. DCFS also indicated it had received a referral claiming that M.A. was being abused by Mother's boyfriend, that the boyfriend was a gang member and drug dealer, and that Mother was involved in selling drugs. DCFS requested a continuation of the jurisdiction/disposition hearing so that it could investigate.
At the jurisdiction/disposition hearing, the court continued the matter based on the information provided by DCFS. Father and his counsel appeared at the hearing remotely. Mother's counsel appeared remotely, but Mother did not appear.
B. First Amended Petition and Removal of the Children from Mother's Care
On December 3, 2020, DCFS filed a first amended petition, contending that the children came under the jurisdiction of the court pursuant to section 300, subdivisions (a) and (b)(1), based on the allegations supporting the original petition and on new allegations including that Mother and A.L. had engaged in a physical altercation with Father's pregnant girlfriend in the presence of the children. DCFS alleged Father failed to protect the children by "allow[ing] his live-in female companion to be the designated person to receive the children during the child exchange knowing that such contact is volatile."
On December 7, 2020, the juvenile court granted DCFS's application for an order pursuant to section 340, subdivision (b) authorizing DCFS to remove the children from Mother's care. In support of its application, DCFS contended among other things that Mother made it difficult for social workers to access the children to assess their health and safety, was coaching the children not to disclose what was going on in the home, was unable to self-regulate and control her anger, and had engaged in a fight with Father's girlfriend.
On December 9, 2020, DCFS served the removal order on Mother. The children were placed with their paternal grandmother.
C. Detention of the Children from Mother
At a detention hearing on December 17, 2020, the court found a prima facie case that A.A., R.A., Jr. and M.A. were children described under section 300 and vested temporary placement and custody over the children with DCFS. The court ordered the children detained from Mother. It ordered monitored visitation for Mother, and no contact between Mother and Father, between the children and Mother's boyfriend, or between the children and Father's girlfriend. Mother denied the allegations of the first amended petition.
The court held a detention hearing the previous day, December 16, but continued the hearing to December 17 at Mother's request.
D. Adjudication
The court held an adjudication hearing on January 27, 2021. Father and his counsel appeared remotely; Mother's counsel appeared remotely, but Mother did not appear. As to the counts against Mother, the court sustained as alleged the counts related to the history of domestic violence between herself and Father, and sustained as amended the counts related to Mother's physical altercation with Father's girlfriend along with other counts not relevant here. As to the counts against Father, the court sustained as alleged the counts related to his history of domestic violence against Mother, and sustained as amended the count for failing to protect the children by allowing his girlfriend to receive the children at an exchange.
On March 26, 2021, Mother filed a notification that her mailing address had changed to a residence in Las Vegas.
In an addendum report filed on April 5, 2021, DCFS indicated that Mother was residing in Nevada and the children were living with their paternal grandmother. DCFS reported that on many occasions Mother had not shown up for visits with the children, and sometimes when she did show up she was preoccupied with other activities and not attentive to the children. DCFS reported that Father had unmonitored visits at his mother's home; the children stated they enjoyed their visits with Father and wanted to live with Father.
E. Disposition
At the disposition hearing on May 3, 2021, the juvenile court declared A.A., R.A., Jr. and M.A. dependents of the court, and ordered them removed from Mother's and Father's custody and suitably placed. It ordered family reunification services, including monitored visitation of nine hours a week for Mother, and unmonitored visits for Father including overnights in the home of the paternal grandmother; the court provided DCFS discretion to release the children to Father. The court also ordered the parents to comply with the criminal protective order. The court ordered the parents not to visit together or monitor each other's visits, required there to be an appropriate third party for visitation exchanges, and prohibited contact between the children and Father's girlfriend, and between the children and mother's husband.
Mother had married her boyfriend.
F. Post-disposition Proceedings
In its six-month status review report, filed October 15, 2021, DCFS indicated that the children remained placed in the home of their paternal grandmother. DCFS further reported that Mother was living in Las Vegas, which made it difficult for her to visit the children in person.
In its report, DCFS also noted it did not know where Mother's oldest child, A.L., was living and Mother did not cooperate with DCFS in locating the child. DCFS reported that A.L. had called the social worker and asked to be picked up. Mother stated that she was in constant communication with A.L. but claimed not to know where the child was; Mother's claim was not credible, as DCFS had received a photograph taken on or about August 14, 2021, in which A.L. could be seen with Mother and other family members at a wedding. DCFS expressed concerns regarding "[M]other's ability to be appropriate and protect [the] children." The concerns included Mother's inconsistent visitation, poor quality of Zoom visitation, inappropriate exchanges with A.A. during phone calls, Mother's current relationship which appeared to include domestic violence, and Mother's resistance in assisting DCFS to locate A.L.
DCFS also reported that the children stated Mother spoke to them about inappropriate matters and yelled and cursed when speaking to them. In addition, Mother's husband shared a live video on Facebook in which he and Mother "violently shouted curse words at each other" and it appeared that objects were being thrown.
On November 3, 2021, at the six-month review hearing, the court terminated the suitable placement order and returned the children to the home of Father under family maintenance. The court ordered enhancement services for Mother. Father and his counsel appeared at the hearing remotely; Mother's counsel appeared remotely, but Mother did not appear.
G. Father's Application for a Restraining Order and DCFS's Petitions to Deny Mother Visitation
On November 23, 2021, Father filed an ex parte application for a restraining order protecting himself and the children from Mother. Father alleged that, during a video visit with the children, Mother threatened to come to Father's home and "physically assault [him] and/or other people in [the] home." He also alleged that Mother had taken her older child M.L. from the father's custody and refused to return her. In addition, Father alleged that Mother had acted inappropriately during monitored visits.
That same day, the court held a hearing on the application. All counsel appeared at the hearing, as did Father; Mother did not appear and there is no indication in the record that she was individually given notice of the application. Mother's counsel objected to the application on the ground the request was vague as to events, time, and specifics. DCFS joined in the application, confirming that a social worker monitoring a visit heard Mother threaten to abduct the children and saw M.L. in Mother's presence during the visit. Counsel for DCFS also indicated that, if the court allowed Mother to have continued visitation, DCFS would file a petition requesting the court to find that contact with Mother would be detrimental to the children and to deny visitation. The court issued a temporary restraining order (TRO) prohibiting Mother from contacting Father or the children, with an exception for monitored visits, set a hearing on the application for a permanent restraining order for December 14, 2021, and ordered that Mother be served with the TRO.
A juvenile court is authorized to issue a temporary restraining order without notice (§ 213.5, subd. (a) & (c)(1)) and to issue a restraining order with a duration of up to three years after notice and a hearing (id., subd. (d)). To distinguish these two types of restraining orders, we refer to a restraining order issued after notice and a hearing as a "permanent" restraining order.
On December 7, 2021, DCFS filed petitions under section 388 requesting the court find that further contact with Mother would be detrimental to the children and order that there be no visitation for Mother due to DCFS's concern Mother intended to abduct the children. DCFS alleged that Mother had taken her older child, M.L., in defiance of the court's orders and then stated to a social worker during a visit with the children, "you took the only thing I care about but you can't take nothing that I don't give you[. O]ne down, three to go." The court scheduled the hearing on the petitions for December 14, 2021, the same day set for the hearing on Father's application for a permanent restraining order.
On December 14, 2021, Father's counsel filed a request to continue the hearing on the permanent restraining order on the ground they had been unable to serve Mother with the TRO and application. At the hearing, Mother did not appear and the court found that she had not been properly served, so it continued the hearing to January 4, 2022, and extended the TRO to that date. The court continued the hearing on DCFS's petitions to deny Mother visitation to February 3, 2022, but made "temporary detriment findings" and denied Mother visitation, over her counsel's objections. The court served notice of the February 3, 2022, hearing on DCFS's petitions by mailing it to the Las Vegas address Mother had provided to the court on March 26, 2021.
The court also ordered DCFS to provide Mother with notice of the February 3, 2022 hearing on DCFS's petition; on January 11, 2022, DCFS filed a proof of service on Mother, which did not include the address to which the notice was sent.
On December 21, 2021, Mother was personally served with the TRO, Father's application for the restraining order, and the order continuing the hearing on the permanent restraining order to January 4, 2022.
The proof of service shows personal service at an address different from the address Mother had provided to the court.
Mother did not appear at the hearing on January 4, 2022. The court continued the hearing to February 3, 2022, which was the date for the continued hearing on DCFS's section 388 petitions to deny Mother visitation, after having an off-the-record discussion with Mother's counsel. The court stated as follows:
"The court does have the proof of service filed on behalf of the father indicating that the mother was properly noticed for today's hearing. We have had an off-the-record conversation regarding this case, and for several reasons, one of them being judicial economy, the court is going to continue the temporary [sic] restraining order hearing. I will also note for the record, for reasons of judicial economy, [Mother's counsel] had indicated off the record a willingness to waive time on her client's behalf with respect to the permanent restraining order hearing. And then also the [section] 388 [petition] that's set for February 3rd is going to be set for contest on that date. And the reason is because the issues, facts, and circumstances regarding the permanent restraining order and the [section] 388 [petition] are interwoven, and so the court will hear all of those matters at the same time. [Mother's counsel], is that accurate, that you're waiving time for the permanent restraining order hearing on behalf of your client to [February 3, 2022]?
"[Mother's counsel]: I am, your honor.
"The Court: Okay. So the court will note for the record that notice to the mother has been given as required by law for the restraining order hearing for today." The court directed Mother's counsel to provide notice to Mother of the continuance of the hearing on the restraining order, and included the following in its written order: "No further service of this order is required. Mother's counsel to notice Mother."
In a status review report filed on January 13, 2022, DCFS reported that Mother advised DCFS she had moved to Antelope Valley but had not provided an address.
Mother did not appear at the February 3, 2022 hearing. At the hearing, Mother's counsel requested a continuance based on counsel's inability to contact Mother. The court denied the request. Mother's counsel opposed the permanent restraining order on the ground that Father had not met his burden of proof because "most of what's been alleged is hearsay, and it appears the information from the social worker, a lot of it, especially regarding the alleged kidnapping is secondhand hearsay with no-very, very few details." Counsel for Father, the children and DCFS argued in support of the restraining order. The court granted a permanent restraining order, to expire February 3, 2025. The court concluded the evidence showed Mother had threatened to abduct the children, stating, "[T]he social worker did, in fact, see, during a monitored virtual visit, the child that was kidnapped that's no longer before this court, but the court is aware that that father retained custody, and the mother was not supposed to have unmonitored contact. So the court can reasonably infer based on that information and the statements of the mother . . ., one down and three to go, that the mother did, in fact, kidnap that child and threatened to kidnap the children currently before this court." Under the restraining order, Mother was prohibited from contacting Father and the children, and had no right to visitation.
As to DCFS's petitions to deny Mother visitation, the court found DCFS had met its burden and that Mother's behavior was "extremely dangerous and detrimental to the children." The court found that further contact with Mother would be detrimental to the children and denied Mother visitation.
H. Termination of Jurisdiction, Judgment and Mother's Appeal
At the hearing on February 3, 2022, the court also conducted a six-month review of the case under section 364 and determined that continued supervision of the children was not necessary. The court granted Father sole legal and physical custody, with no visitation for Mother, but stayed termination of jurisdiction pending receipt of juvenile custody orders.
On February 8, 2022, the court terminated jurisdiction over the children. The court signed the final judgment granting physical and legal custody of the children to Father, and denying Mother visitation, on February 8, and the judgment was filed the following day.
DISCUSSION
A. Standard of Review and Governing Legal Principles
"A parent in a dependency proceeding is entitled to competent counsel and to judicial review of claims of ineffective assistance of counsel." (In re M.F. (2022) 74 Cal.App.5th 86, 108.) A parent claiming ineffective assistance of counsel must demonstrate "that counsel failed to act in a manner to be expected of reasonably competent attorneys practicing in the field of juvenile dependency law." (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1667-1668.) "The parent must also establish that the claimed error was prejudicial." (Id. at p. 1668.) Prejudice in this context is "reviewed under the harmless error test enunciated in People v. Watson [(1956)] 46 Cal.2d 818, 836. [Citations.] Thus the parent must demonstrate that it is 'reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' [Citation.]" (In re Kristin H., at p. 1668.)
B. DCFS's Request to Dismiss the Appeal
Ineffective assistance of counsel claims are generally raised by way of a habeas corpus petition. (In re N.M. (2008) 161 Cal.App.4th 253, 270; see In re Paul W. (2007) 151 Cal.App.4th 37, 53 ["habeas corpus petitions are recognized as proper vehicles for raising claims of ineffective assistance of counsel in dependency proceedings"].) That is because "establishment of ineffective assistance of counsel most commonly requires a presentation which goes beyond the record." (In re Arturo A. (1992) 8 Cal.App.4th 229, 243.)
DCFS requests we dismiss the appeal and require Mother instead to pursue writ relief. There are gaps in the record before us that a writ petition might supplement. We do not know, for example, what was discussed in the off-the-record conference that preceded the continuance of the restraining order hearing from January 4, 2022 until February 3, 2022. The court indicated it was granting the continuance for several reasons discussed in that conference, but then named only one of those reasons on the record (a reason that did not relate to Mother's non-appearance).
Mother does not argue that any of this missing information is material to her ineffective assistance claim. We are of the same view. Because the record here allows us to determine a satisfactory explanation for counsel's action or inaction, we consider Mother's direct appeal on the merits. (In re M.F., supra, 74 Cal.App.5th at pp. 109-110.)
C. Mother's Ineffective Assistance of Counsel Claim Fails
The juvenile court issued the permanent restraining order pursuant to section 213.5, subdivision (d)(1), which requires "notice and a hearing." Mother contends that her counsel rendered ineffective assistance by failing to object to the court's issuance of the permanent restraining order on the ground that Mother had not been provided with notice of the February 3, 2022 hearing at which the court considered and issued the order. She argues that "There is no conceivable tactical explanation for counsel's failure to object to the lack of notice, particularly when [M]other failed to appear for the February 3, 2022 hearing and counsel herself had been unable to make contact with mother prior to the hearing."
In our view, the entire premise of Mother's argument-that her counsel did not object to the restraining order hearing moving forward on February 3, 2022 based on lack of notice-is mistaken. Mother's counsel did object to the hearing moving forward based on lack of notice to Mother. After counsel made their appearances, Mother's counsel requested that the matter not move forward that day but instead be continued because counsel had been unable to reach Mother to inform her of the new hearing date. Mother seems to fault her counsel for not phrasing this request specifically as an objection, and for not arguing the lack of notice stemmed not only from counsel's inability to contact Mother but also from Father and/or DCFS not independently serving Mother personally with notice (even though the court ordered no such thing). But without question Mother's counsel advocated that the hearing not take place on February 3, 2022, because of lack of notice to Mother. How counsel packaged that request is immaterial to the question before us. When counsel does in fact advocate a point, her failure to do so in a manner the client later believes would have been more forceful or persuasive is not ineffective assistance of counsel. (See People v. Williams (1997) 16 Cal.4th 153, 219-220.)
Although not relevant to Mother's claim of ineffective assistance, we add for the sake of completeness that the juvenile court's denial of Mother's request not to proceed with the hearing on February 3, 2022, was well within its discretion. Mother absented herself from multiple other appearances in the case. She was personally served with notice of the restraining order hearing scheduled for January 4, 2022, at which she failed to appear without explanation. Mother's counsel was present at the January 4, 2022 hearing, at which the court continued the restraining order hearing to February 3, 2022. The court ordered Mother's counsel to notify Mother of the new hearing date. Mother does not make any argument, or cite any authority, suggesting that this order was error. We are unaware of any requirement that the protected party in a restraining order proceeding and/or DCFS formally serve notice of a continuance of the permanent restraining order hearing on the party to be restrained where that party received the required notice of the initial hearing via personal service and was represented by counsel who appeared at that initial hearing. Mother's decision to ghost her own counsel between January 4, 2022 and February 3, 2022 did not necessitate a further continuance of the restraining order hearing, and the court did not err in denying Mother's continuance request and proceeding with the restraining order hearing on February 3, 2022.
Mother argues in her reply brief that "If in fact there were additional statutory authorization for a situation where no further service of the continued TRO were required, aside from the situation where all parties are actually present at the initial hearing, then certainly the [applicable mandatory Judicial Council] form would include a box to check." But the applicable form specifically notes that service on a party of the order rescheduling the hearing is not necessary when "the party . . . or their lawyer were at the court date" where the continuance was ordered. (Judicial Council Forms, form JV-253, italics added.)
DISPOSITION
The juvenile court's restraining order is affirmed.
We concur: ROTHSCHILD, P. J. BENDIX, J.