Opinion
B227877 x-ref. B222775
10-26-2011
In re E.H., a Person Coming Under the Juvenile Court Law LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. ERIC H., Defendant and Appellant.
Thomas S. Szakall, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, and Judith A. Luby, Principal 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CK39974)
APPEAL from an order of the Superior Court of Los Angeles County. Marguerite D. Downing, Judge. Reversed and remanded with directions.
Thomas S. Szakall, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, and Judith A. Luby, Principal Deputy County Counsel, for Plaintiff and Respondent.
Eric H. (father), the father of E.H., appeals from the juvenile court's order denying his request for joint legal custody of his daughter and imposing monitored visitation. Because the basis for the court's order directly conflicts with our later-issued opinion in father's first appeal in this case, In re E.H. (Nov. 17, 2010, B222775 [nonpub. opn.], we reverse the order and direct the court to award E.H.'s mother (mother) sole physical custody of the child, mother and father joint legal custody and unmonitored visitation for father on weekends and alternating holidays.
FACTUAL AND PROCEDURAL BACKGROUND
As noted in our prior opinion, on March 2, 2010, the juvenile court declared E.H. a dependent child of the court based on a petition filed by the Department of Children and Family Services (DCFS) under Welfare and Institutions Code section 300, subdivisions (b) and (g). Under subdivision (b), the court found E.H.'s mother (mother) had endangered her daughter by riding in a vehicle as a passenger with E.H., then just more than one year old, on her lap and failing to secure her daughter in a car seat. The vehicle was involved in a collision, and E.H. suffered head injuries. Under subdivision (g), despite evidence that E.H. visited with father every weekend and on alternating holidays, that father was happy with the visitation schedule and enjoyed the weekends with his daughter and that both mother and father paid for their daughter's child care, and over father's objection, the court found that father had failed to provide the child with the necessities of life. Also over father's objection, the court developed a case plan that included father's participation in career counseling and a job skills program because father then was not employed. The court ordered that E.H.'s parents retain physical custody of her and that she continue to reside with mother and spend weekends and alternating holidays with father. Father appealed from the March 2, 2010 order, contesting the jurisdictional finding against him and the case plan for him to participate in career counseling and a job skills program.
Statutory references are to the Welfare and Institutions Code.
While the appeal was pending, DCFS indicated, in an interim review report dated March 30, 2010, that father "sees his child every weekend [for overnight visits] and every other holiday. He has stated that this arrangement works well for him and the child's mother." At the March 30, 2010 review hearing the court maintained E.H.'s placement with mother and the visitation schedule with father and continued the matter to September 28, 2010.
In the status review report prepared for the September 28, 2010 hearing, DCFS indicated that E.H. "appears to be a happy toddler. No mental or emotional issues have been noted." In addition, E.H. continued to visit father every weekend and on alternating holidays, and father still was pleased with this arrangement. Mother reported E.H.'s visits with father were appropriate. DCFS noted that father had not complied with the case plan for him to attend career counseling and a job skills program. According to DCFS, father said that he did not have to participate in the career counseling and job skills program because he is a non-offending parent. "Father stated that he did nothing wrong and that he should not be punished." Based on an evaluation of mother and her progress with her case plan, DCFS recommended termination of jurisdiction as to E.H., with a family law order awarding mother sole legal and physical custody of E.H. In addition, despite father's successful unmonitored visitation with E.H. every weekend and on alternating holidays, DCFS in its hearing notice indicated, without explanation, that it recommended monitored visitation for father.
At the review hearing on September 28, 2010, father requested joint legal custody of E.H., representing to the juvenile court that no previous legal custody order existed with respect to E.H. In response, the court noted that father had failed to comply with the case plan for him to attend career counseling and a job skills program. It terminated jurisdiction over E.H., but stayed its order until submission of a family law order that, over father's objection, awarded mother sole legal and physical custody of the child and imposed monitored visitation for father. On October 1, 2010, the court lifted the stay of termination, formally terminated jurisdiction and entered the family law order. Father filed a notice of appeal.
Although the review hearing took place on September 28, 2010 and the subsequent hearing when the juvenile court formally terminated jurisdiction occurred on October 1, 2010, the court signed and filed the family law order on October 28, 2010. To the extent that father's appeal encompasses the October 28, 2010 family law order, we construe his notice of appeal as having been filed immediately after entry of that order. (Cal. Rules of Court, rule 8.104(d) ["notice of appeal filed after judgment is rendered but before it is entered is valid and is treated as filed immediately after entry of judgment"].)
About six weeks after father filed his second notice of appeal, on November 17, 2010, we issued our opinion in father's first appeal. We reversed the judgment as to father, concluding that no substantial evidence supported the finding against father under section 300, subdivision (g). Because the undisputed evidence demonstrated that father visited with E.H. every weekend and on alternating holidays, that he shared child care expenses with mother and communicated with mother regarding their daughter and that E.H. was happy and well adjusted, father did not leave the child without provisions for support. As a result, no basis existed to find father an offending parent under section 300, subdivision (g). (In re Eric H., supra, B222775, at p. 6.) In addition, we concluded the juvenile court had abused its discretion by imposing a case plan requiring father to attend career counseling and a job skills program. We held that, assuming mother's failure to restrain E.H. in a car seat constituted "conditions [that] support[ed] the juvenile court's jurisdiction over the child, father was not involved with [those conditions]. Father's participation in career counseling and a job skills program, therefore, would not in any way 'eliminate those conditions that led to the court's finding' his daughter a dependent child." (Id. at pp. 7-8, quoting § 362, subd. (c).)
DISCUSSION
Father contends in this appeal that our opinion in his first appeal demonstrates that the juvenile court erred by rejecting his request for joint legal custody over E.H. and changing his visitation to monitored. We agree. We discern no basis for the court's decision. And the only basis cited by the court was father's failure to comply with the case plan for career counseling and a job skills program. Given our determination that the court erred in its jurisdictional finding against father under section 300, subdivision (g), and then abused its discretion by implementing the case plan including career counseling and a job skills program, father's failure to comply with that case plan is not grounds to deny him joint legal custody and to impose monitored visitation. This is particularly so because father successfully continued his regular visitation with his daughter, E.H. was happy and DCFS reported that she had no mental or emotional issues.
We note that, because no legal custody order regarding E.H. was in place when father requested joint legal custody on September 28, 2010, awarding father joint legal custody would not disrupt a previous order. In addition, mother's counsel voiced no objection to father's request for joint legal custody at the hearing on September 28, 2010, and mother has not filed a brief on appeal to suggest that she has any opposition to joint legal custody. Nor did counsel for E.H. state any objection to father's request for joint legal custody at the September 28, 2010 hearing or file an appellate brief on E.H.'s behalf noting any objection. Moreover, although DCFS's report in conjunction with the September 28, 2010 hearing recommended that mother be awarded sole legal custody, and its hearing notice indicated a recommendation of monitored visitation for father, it gave no explanation for those recommendations, and the only negative notes in the report regarding father related to his failure to comply with the case plan, which we later determined to be improper. On appeal, DCFS filed a letter acknowledging that the juvenile court's order awarding mother sole legal custody and imposing monitored visitation for father "clearly referenced and was dependent upon its prior orders that subsequently were reversed by this Court."
Accordingly, because the juvenile court's decision was based on an erroneous jurisdictional finding against father and an improper case plan, we reverse the order, and accompanying family law order, and direct the juvenile court to enter a new family law order awarding mother sole physical custody of E.H., mother and father joint legal custody and unmonitored visitation for father on weekends and alternating holidays.
In its letter, DCFS stated it did not oppose "reversal and remand to the juvenile court in order to allow the juvenile court the opportunity to reconsider its decision in light of the intervening appellate opinion." Under the circumstances of this case, remand to the juvenile court for reconsideration is not necessary. The denial of joint legal custody to father and imposition of monitored visitation plainly was based on the court's prior erroneous jurisdictional finding against father and its displeasure with father's failure to follow the case plan that we later determined was improper. And, as noted, neither mother nor E.H. through their individual counsel, either in the juvenile court or on appeal, objected to father's request for joint legal custody or indicated monitored visitation was appropriate. Further, father was following his visitation schedule, E.H. was happy and no issues were noted.
DISPOSITION
The order denying father's request for joint legal custody and imposing monitored visitation, and the accompanying family law order, are reversed. The juvenile court is directed on remand to enter a new family law order awarding mother sole physical custody of E.H., mother and father joint legal custody and unmonitored visitation for father on weekends and alternating holidays.
NOT TO BE PUBLISHED.
ROTHSCHILD, J.
We concur:
MALLANO, P. J.
CHANEY, J.