Opinion
B302160
07-02-2020
In re S.W., a person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. THELMA B., Objector and Appellant.
Marissa Coffey, under appointment by the California Court of Appeal, for Objector and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Navid Nakhjavani, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. CK84460B) APPEAL from an order of the Superior Court of Los Angeles County, Emma Castro, Commissioner. Affirmed. Marissa Coffey, under appointment by the California Court of Appeal, for Objector and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Navid Nakhjavani, Deputy County Counsel, for Plaintiff and Respondent.
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Three years after a girl's maternal grandmother became her legal guardian, the juvenile court modified its prior visitation order to allow the girl's father to have unmonitored overnight visits. The grandmother objects to the modification on the ground that the court did not allow her to argue why modification was unwarranted. We conclude that there was no error and that the absence of argument was in any event harmless. Accordingly, we affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Pertinent family
S.W. was born in May 2011. Sironn W. is her father. Thelma B. (Thelma) is S.W.'s maternal grandmother.
II. Initial assertion of dependency jurisdiction
After S.W. was born with cocaine in her bloodstream, the Los Angeles Department of Children and Family Services (the Department) filed a petition that, among other things, asked the juvenile court to exert dependency jurisdiction over S.W. on the grounds that (1) her mother's use of cocaine placed S.W. at substantial risk of serious physical harm (thereby rendering dependency jurisdiction appropriate under Welfare and Institutions Code section 300, subdivision (b)), and (2) her mother's acts of "physical[] abuse" against S.W.'s older brother and of leaving him alone in a "filthy and unsanitary" home placed S.W. at substantial risk of serious physical harm (thereby rendering dependency jurisdiction appropriate under section 300, subdivision (j)). There were no allegations regarding father, although father has a criminal history.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
The juvenile court sustained the above stated counts and declared S.W. to be a dependent.
Between July 2011 and October 2011, S.W. was temporarily placed with Thelma. The Department had concerns about this placement because Thelma had a criminal history and had a juvenile dependency petition sustained against her for child cruelty against S.W.'s mother.
In October 2011, S.W. was placed with father.
III. Removal from father
After father tested positive for cocaine in August 2012, the Department filed a supplemental petition asking the juvenile court to remove S.W. from father's custody due to (1) his substance abuse and (2) the "violent altercation" he had with "law enforcement" in S.W.'s presence when the Department came to detain S.W. from his custody.
After father entered a no contest plea to these allegations, the juvenile court removed S.W. from father's custody and ordered that father receive reunification services.
S.W. was once again placed with Thelma. Father was granted monitored visitation with S.W. Because father's visitation was "consistent" and those visits were "going well," the juvenile court in July 2013 permitted father to have unmonitored visits with S.W.
IV. Termination of reunification services and creation of legal guardianship
In early July 2014, father was arrested for forgery. He was not released from custody until March 2015.
Although father had completed his reunification case plan after 18 months of reunification services, the juvenile court terminated reunification services when the 18-month period concluded while father was incarcerated. The court set the matter for a permanency planning hearing.
In January 2016, the juvenile court determined that S.W.'s permanent plan would be to place S.W. with Thelma as S.W.'s legal guardian. The court then appointed Thelma as S.W.'s legal guardian, but granted father the right to monitored visits with S.W. The court then terminated its dependency jurisdiction over S.W.
V. Post-guardianship period
In August and September 2016, father filed three petitions pursuant to section 388 asking the juvenile court to modify its prior orders in order to (1) terminate Thelma's legal guardianship and return S.W. to his custody, or (2) grant father unmonitored visits. The juvenile court summarily denied all three petitions.
In June 2017, father filed a fourth section 388 petition seeking the same relief. By this time, the relationship between father and Thelma had substantially degraded: Thelma had obtained a five-year civil restraining order against father in September 2016 and a three-year civil harassment order against the paternal grandmother in July 2017. Both were based upon incidents in which father became verbally or physically aggressive with Thelma. Despite the acrimony between father and Thelma, the visits between father and S.W. continued to occur and to go well. In April 2018, the juvenile court denied father's request to terminate the legal guardianship and return S.W. to his custody, but granted father's request to allow for unmonitored visits for five hours each Saturday.
Father filed a fifth section 388 petition on the day his fourth petition was heard in April 2018, but the juvenile court's ruling on his fourth such petition rendered the fifth petition moot.
The ensuing unmonitored visits went well and S.W. indicated that, while she did not want to live with father, overnight visits "would be good."
VI. Current section 388 petition
In September 2019, father filed his sixth section 388 petition asking the juvenile court to modify its prior orders in order to (1) terminate Thelma's legal guardianship and return S.W. to his custody, or (2) grant father unmonitored "day, weekend and overnight visits." He claimed his completion of an anger management program, a parenting class, and 10 conjoint therapy sessions with S.W. constituted changed circumstances.
The juvenile court set a hearing to decide whether to conduct an evidentiary hearing. The court also ordered the Department to file a report regarding father's petition, and the Department in preparing that report conducted interviews (of Thelma and S.W.) and a further follow-up investigation.
The court held a hearing on October 11, 2019. Father and Thelma were present along with their counsel. After reviewing the case history in this case and the contents of the Department's report, the court determined that it would not set the matter for a further evidentiary hearing. The court indicated it was "not inclined" to terminate the legal guardianship and place S.W. with father, but was inclined to "grant the father's request for overnight visits" given that such visits were a logical "second phase" following the grant of unmonitored day visits and given S.W.'s "favorable" "statements" about those unmonitored day visits. After the court hammered out the details of allowing father to have S.W. every other weekend and for one week during each of the two months of summer vacation, Thelma's counsel inquired, "Is [the court] inclined to hear argument as to [Thelma's] objection to the orders?" After the court confirmed that Thelma was objecting, the court replied, "No, I'm not inclined."
VII. Appeal
Thelma filed this timely appeal.
DISCUSSION
Thelma argues that the juvenile court erred in partially granting father's most recent section 388 motion to allow for overnight visits because the court denied her attorney the opportunity to argue at the hearing it held.
I. The pertinent law
As pertinent to this appeal, section 388 empowers a "parent" to petition the juvenile court "to change, modify or set aside" any of its previous orders. (§ 388, subd. (a)(1).)
Substantively, a juvenile court may grant a section 388 petition only if the parent established by a preponderance of the evidence that (1) there has been a "change of circumstances," and (2) modifying the previous order is in the best interest of the child. (§ 388, subd. (a); Cal. Rules of Court, rule 5.570(h)(1)(D); In re Stephanie M. (1994) 7 Cal.4th 295, 316-317; In re S.J. (2008) 167 Cal.App.4th 953, 959.) We review the grant of a section 388 petition for an abuse of discretion. (In re Vincent M. (2008) 161 Cal.App.4th 943, 954.)
Procedurally, a juvenile court has four options when a parent files a section 388 petition: "(1) grant the request because all parties and attorneys agree to the request; (2) summarily deny the request on various grounds, including that the request does not state new evidence or a change of circumstances, or that the proposed change of order does not promote the best interests of the child; (3) grant a hearing on whether the court should grant or deny an evidentiary hearing on the request; and (4) order a hearing because the best interests of the child may be promoted by the request." (In re Alayah J. (2017) 9 Cal.App.5th 469, 480 (Alayah J.); accord, Cal. Rules of Court, rule 5.570(f).) Although we generally review a juvenile court's decision whether to provide a hearing for a section 388 petition for an abuse of discretion (In re Aljamie D. (2000) 84 Cal.App.4th 424, 431; In re Jeremy W. (1992) 3 Cal.App.4th 1407, 1413), we independently examine whether the court misconstrued or transgressed the applicable standards for doing so. (Alayah J., at p. 479.) Non-compliance with these standards does not warrant reversal unless the "reviewing court finds it reasonably probable [that] the result would have been more favorable to the appealing party but for the error." (In re Celine R. (2003) 31 Cal.4th 45, 59-60 (Celine R.).)
II. Analysis
Thelma argues that the juvenile court erred because it purported to hold a hearing on whether to grant or deny an evidentiary hearing on father's section 388 petition, but at that hearing went on to partially grant that petition. This lapse in procedure, Thelma continues, was exacerbated by the court's refusal to "hear argument" from Thelma's attorney about "her objection" to the grant.
We reject this argument for two reasons.
First, the procedure the court followed was appropriate. Upon receiving father's section 388 petition, the court purported to select the third of the four available options when it set the matter for a hearing on whether to grant or deny an evidentiary hearing. But once the hearing began, the court proclaimed that it was immediately moving to the fourth option of conducting a more fulsome hearing on the merits of father's petition to alter visitation, albeit not an evidentiary hearing. Although Thelma complains that the court erred in not making that hearing an evidentiary hearing, she points to no factual disputes that needed resolving. Because evidentiary hearings are generally warranted only when "material facts are in dispute" (Younan v. Caruso (1996) 51 Cal.App.4th 401, 408; In re Hirenia C. (1993) 18 Cal.App.4th 504, 517), the court did not err in conducting a merits hearing that was not also an evidentiary hearing. Thelma nonetheless argues that the merits hearing was procedurally defective because the court did not allow her counsel to argue about the undisputed facts. Had she been allowed to so argue, she asserts, she could have "identif[ied] the many red flags" in the record "that [f]ather's ongoing visits with S[.W.] raised" and thereby "ma[d]e a record about her concerns." But it is well settled that juvenile dependency proceedings are civil in nature (In re Mary S. (1986) 186 Cal.App.3d 414, 418), and "[o]ral argument in a civil proceeding tried before the court without a jury, is a privilege, not a right, which is accorded the parties by the court in its discretion" (Oil Workers International Union v. Superior Court of Contra Costa County (1951) 103 Cal.App.2d 512, 581; cf. In re F. (1974) 11 Cal.3d 249, 254-255 [denying of right to make closing argument in juvenile delinquency proceedings is error], disapproved of on another point as stated in People v. Bonin (1988) 46 Cal.3d 659, 694). The juvenile court did not abuse its discretion by declining to hear further argument regarding the particulars of Thelma's "objection" once the court confirmed that Thelma was, in fact, objecting.
Second, even if we assume that the juvenile court erred in denying Thelma's attorney the right to explain the particulars of her objection, this denial does not warrant reversal because we do not find it "reasonably probable" that the juvenile court would have reached a contrary decision had counsel been permitted to argue. (Celine R., supra, 31 Cal.4th at pp. 59-60.) To begin, by the time Thelma's attorney asked to argue, the court had already come to its conclusion about allowing overnight visits and explained its cogent reasons for doing so—namely, that the court's earlier order allowing for unmonitored day visits was going well and that unmonitored overnight visits were the next logical "phase." The likelihood that the court would, at this point, change its mind seems slim. Further, Thelma's argument would—by her own admission—be a summary of the juvenile court record from Thelma's perspective. Summarizing the record would not lead to a different result because juvenile courts are presumed to be familiar with the record (In re Randy B. (1976) 62 Cal.App.3d 89, 97; Evid. Code, § 664), and the juvenile court here went a step further and summarized much of the record. Thelma's remaining arguments about why the denial of argument was prejudicial, at bottom, simply register disagreement with the substance of the juvenile court's ruling. She argues that the court erred (1) because it did not "meaningfully consider whether weekend visitation with [f]ather was in S[.W.]'s best interests," (2) because the court did not ask for more updated reports, and (3) because Thelma was more "proactive" in obtaining services for S.W. than father, but these arguments effectively ask us to re-weigh the evidence from her perspective and come to a different substantive conclusion than the trial court. This is beyond our purview, as our role is confined to asking whether the evidence viewed in the light most favorable to the ruling—not the light most hostile to it—supports that ruling. (In re I.J. (2013) 56 Cal.4th 766, 773; In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) Here, it does.
Thus, Thelma's complaint that the juvenile court did not recite every document in the record that it relied upon is of no moment.
DISPOSITION
The juvenile court's order granting father's section 388 petition in part is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, J.
HOFFSTADT We concur: /s/_________, Acting P. J.
ASHMANN-GERST /s/_________, J.
CHAVEZ