Opinion
B230059
09-28-2011
In re KING W., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. WENDY O., Defendant and Appellant.
Andre F. F. Toscano, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CK81861)
APPEAL from an order of the Superior Court of Los Angeles County, Elizabeth Kim, Referee. Affirmed.
Andre F. F. Toscano, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Navid Nakhjavani, Deputy County Counsel, for Plaintiff and Respondent.
INTRODUCTION
Mother Wendy O. (Mother) appeals from a juvenile court order denying her request for a contested review hearing held pursuant to Welfare and Institutions Code section 364. Mother sought to present evidence on the issues of her progress in compliance with court-ordered programs and visitation with her son, a dependent child of the juvenile court. Section 364, however, limits the juvenile court's inquiry at a review hearing to whether the conditions requiring continuing supervision of the juvenile court exist. Where the appellant does not offer to present evidence on the issue of whether continued supervision by the juvenile court is necessary, the denial of her request for a contested hearing is not a denial of due process of law. We affirm the order.
Unless otherwise specified, statutes in this opinion will refer to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL HISTORY
Detention and Section 300 Petition: On April 11, 2010, three-year-old King W. was detained after an anonymous call raised concern for King's safety due to Mother's drug use and domestic violence compounded by bruises and King's screaming on a regular basis. When a CSW and police officers went to her home, Mother opened the door, releasing an odor of marijuana. Mother then slammed and locked the door, cursed, shouted, and accused the CSW and police officers of rape and maltreatment of people, screaming that she would not open the door for "fucking police and social workers" and "you mother fuckers will have to shoot me." Police officers heard furniture being moved to block the front door, and saw that King, who had pulled back window blinds, was crying and appearing afraid.
When six more officers arrived, Mother banged windows, threw objects against window bars, and acted uncontrollably as if under the influence of alcohol or drugs. King cried and screamed loudly. When a police sergeant could not calm Mother, he ordered officers to enter the home forcibly, which they did after moving a couch and shelf placed to block the front door. Inside the CSW smelled a stronger marijuana odor and observed marijuana buds and joints throughout the home accessible to King. Mother was belligerent and refused to provide information about relatives. The home was filthy, with trash and piles of dirty clothes and a stench of rotten food and dirty diapers. Roaches crawled on the floor and walls. Sitting on a pile of trash, King was very dirty, with a heavily soaked diaper with a stench of feces possibly carried for several hours. The home had no food. Mother was arrested for willfully endangering King's health, barricading herself and him inside her residence in disregard of officer orders, interfering with a police investigation, and because her actions were consistent with being under the influence of alcohol or drugs. King was detained.
On April 14, 2010, the Department of Children and Family Services (DCFS) filed a section 300 petition alleging that King W. was a person described by section 300, subdivision (b), in that Mother possessed marijuana in the home in King's presence, establishing a detrimental and endangering home environment and endangering King's physical and emotional health and safety. A first amended petition alleged in a second count that on April 11, 2010, Mother barricaded herself and King inside the home, interfered with an ongoing police investigation by disregarding law enforcement requests, and her behavior forced law enforcement to gain entry, which placed King at risk of physical and emotional harm and damage.
At the April 14, 2010, detention hearing, the juvenile court found that a prima facie case was established for detaining King as a person described by section 300, subdivision (b) and ordered him detained.
Adjudication and Disposition: Ernesto B. Banaag, M.D. examined King and reported that he was severely autistic, nonverbal, and unable to follow directions, was underweight, and wore diapers. A Regional Center Evaluation Report stated that King required constant supervision to prevent injury, King's disruptive behavior interfered with social participation almost daily, self-injurious behavior occurred, running or wandering away occurred or was attempted almost every day, and King's outbursts requiring intervention occurred at least once a week.
On April 15, 2010, Edwin W. (Father) appeared at a DCFS office and said he did not want King in foster care and would do whatever it took to have his child with him. The DCFS inspected Father's home and reported that Father lived alone in a clean, appropriately furnished one-bedroom apartment with working appliances and utilities and no visible safety hazards. Father, who had five felony convictions in 1987, said he was released from prison in 2005 and complied with the terms of his parole. Father stated that he and Mother never married and he never lived in Mother's home, but he was in King's life since he was born and visited frequently. He and Mother had a Family Law order for visitation and child support. On April 26, 2010, the juvenile court found Father to be King's presumed father.
Besides her arrest on April 11, 2010, when King was detained, Mother was arrested on February 25, 2010, on a charge of kidnapping with intent to commit a sex crime. Mother was released on February 25, 2010. Mother had a criminal history with misdemeanor convictions in 1993 for trespass, driving without a license, and three counts of forging a name on an access card. Mother denied marijuana use and denied having marijuana in her home. Mother said she had PTSD and had only legal drugs for anxiety, but refused to disclose what medication she took or whether she was currently in therapy or under a psychiatrist's care. Mother said she burned frankincense, sage, and oil, not marijuana. Mother refused to submit to an on-demand drug test.
Father, however, stated that Mother smoked marijuana in front of children in her house, left drug paraphernalia around the house, and at least once police pulled Mother over for smoking marijuana in the car while King was with her. Father had seen Mother sell marijuana. Father stated that Mother had a history of police coming to her home and had a recent arrest in addition to her March 2010 arrest. Father said Mother had a history of violent behavior and was diagnosed with bipolar disorder. He had filed a restraining order against Mother because of her violent behavior. Mother was ordered to take a 52-week domestic violence class but she would not attend.
Father was assessed as cooperative with the DCFS and concerned about King. He wanted King to live with him and felt he could meet King's needs. On May 15, 2010, the juvenile court ordered King released to Father's custody.
At the adjudication and dispositional hearing, the juvenile court sustained two counts of the amended petition as to Mother, found that King was a person described by section 300, subdivision (b) and declared King a dependent child of the juvenile court, and ordered King placed in Father's home under DCFS supervision. The juvenile court ordered that Mother receive family reunification services, that Mother have monitored visitation, and ordered Mother to participate in individual counseling, parenting class, drug counseling, random drug testing, and individual counseling to address case issues. Father was ordered to receive family maintenance services.
First Appeal: Mother appealed from the adjudication and dispositional order. In an opinion filed on June 14, 2011, this court found that the juvenile court's denial of Mother's request to continue the adjudication hearing was not an abuse of discretion and did not deny her right to due process, found that substantial evidence supported the jurisdictional findings sustaining the allegations that King was a person described by section 300, subdivision (b), and affirmed that order.
Status Review Hearing: As of December 22, 2010, the DCFS reported that King lived in Father's home. Father had completed all court-ordered programs, participated in Regional Center classes with King, and appeared to have a stable, loving relationship with King in which Father ensured that King's needs were met.
Mother had only completed her court-ordered parenting class. She stopped receiving counseling after nine sessions because she could not afford to continue. Mother told a CSW she did not enroll in a drug program because she questioned why she needed to attend one. Between October and December 2010, Mother drug tested negative three times but missed five tests. The DCFS reported that Mother only partially complied with her court-ordered case plan, and continued to be in denial about the issues that brought her family to the juvenile court's attention. Mother's weekly visits with King at the CSW's office went well and Mother interacted appropriately with King. The DCFS recommended termination of jurisdiction over King with a family law order granting Father custody and monitored visits for Mother.
In the December 22, 2010, hearing, Mother requested that the juvenile court set the matter for a contest on the issues of visitation and the extent of Mother's progress. Counsel stated that Mother disputed the characterization of what she had done. Although Mother had missed drug tests, her counsel stated that she was hospitalized from October 19, 2010 and was on bed rest until December 2, 2010, and therefore the missed drug tests should be considered excused. Counsel also stated that Mother was enrolled in a drug program, had been doing counseling with the Department of Mental Health, and had completed her parenting class. The juvenile court responded that King currently lived with his father, and the focus was whether that home was a safe and stable environment for King. The juvenile court stated that it would close out the case if the appeal were not pending, and denied the request to set the matter for a contested hearing. The juvenile court ordered the DCFS to continue to provide, and the parents to continue to participate in, all services previously ordered, ordered return to Father's home as the permanent plan, and set the matter for a judicial review hearing on April 20, 2011.
Mother filed a timely notice of appeal.
ISSUE
Mother claims that the juvenile court erroneously denied Mother due process in denying her a contested section 364 review hearing.
DISCUSSION
Mother claims that the juvenile court's refusal of the request to set the matter for a contested section 364 hearing violated her right to due process by denying Mother her right to confront and cross-examine witnesses, to compel the attendance of witnesses, and to present evidence to the court.
1. Hearings Pursuant to Section 364
"When a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child." (§ 361.2, subd. (a).)
"Section 364 establishes procedures for review hearings for children who have been adjudged dependent children, but have not been removed from their parents. When proceeding under section 364, because the child is in placement with a parent, the court is not concerned with reunification, but with determining whether continued supervision is necessary in the family home. (§ 364, subd. (c).) [S]ection 364 applies, not only to children who have never been removed from parental custody, but also to those who were removed and then returned to only one parent." (In re Gabriel L. (2009) 172 Cal.App.4th 644, 650.)
"Under section 364, subdivision (c) and California Rules of Court, rule 5.710(e)(2), if the court determines the child may safely be returned to the parent, it terminates jurisdiction unless the social worker establishes that conditions still exist that require supervision. 'The court shall terminate its jurisdiction unless the [social services agency] establishes by a preponderance of the evidence that the conditions still exist which would justify initial assumption of jurisdiction under Section 300, or that those conditions are likely to exist if supervision is withdrawn.' (§ 364, subd. (c); see Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 304 .) If, after returning the child to the parent's custody, the court determines continued supervision is required, it continues the matter for six months at which time it holds a review hearing. (§ 364, subd. (c).) Section 364 refers to services only by stating the social worker is required to report on the services offered and the progress made by the family, and the failure of the parent to participate regularly in a treatment program is prima facie evidence that continued supervision is necessary. (§ 364, subds. (b), (c).) Rule 5.710(e)(2) provides, 'If the child is returned, the court may order the termination of dependency jurisdiction or order continued dependency services and set a review hearing within [six] months.' (Rule 5.710(e)(2).)" (In re Gabriel L., supra, 172 Cal.App.4th at pp. 650-651, fn. omitted.)
2. Mother Has Not Shown Error In the Denial of Her Request for a Contested Hearing on the Issues of Her Progress in Her Court-Ordered Case Plan and Visitation
Because King was removed from Mother's custody and placed in the custody of Father, section 364 required a hearing not more than six months after the dispositional hearing. At that hearing "the court shall determine whether continued supervision is necessary." (§ 364, subd. (c).) Thus section 364 limits the juvenile court's inquiry to whether the conditions requiring continuing supervision exist. (In re Elaine E. (1990) 221 Cal.App.3d 809, 814; Bridget A. v. Superior Court, supra, 148 Cal.App.4th at p. 304.) Section 364 "does not allow the parties to present evidence on any issue[;] rather, the court's inquiry (and parties' right to present evidence) is limited to whether continued supervision is necessary." (In re Elaine E., at p. 814.) Mother requested a contested hearing on the issue of visitation and the extent of her progress in her court-ordered case plan. Where the appellant does not offer to present evidence on the issue of whether continued supervision is necessary, the juvenile court's denial of Mother's request for a contested hearing was not a denial of due process of law. (Ibid.)
Mother briefly argues that the juvenile court erroneously determined that it could not address the section 364 review or make section 362.4 termination orders because Mother's prior appeal was still pending. We disagree. It is true that while the appeal was pending, the juvenile court had discretion, subject to statutory requirements, to terminate its jurisdiction. (In re Natasha A. (1996) 42 Cal.App.4th 28, 39.) It was not required to do so, however, and we agree with the DCFS that it was proper for the juvenile court to await this court's determination of the pending appeal, because if the jurisdictional findings and dispositional orders had been reversed, the case would end and King would be returned to Mother's custody.
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Defendant relies on In re Roger S. (1992) 4 Cal.App.4th 25 and In re Michael W. (1997) 54 Cal.App.4th 190. Roger S. held that when making an order to be transferred to the family court, the juvenile court has the power to hear evidence relevant to that order under section 362.4, which authorizes the juvenile court to make custody and visitation orders to be transferred to an existing family court file. (In re Roger S., at p. 30.) Michael W. followed Roger S. (In re Michael W., at pp. 194-196.)
Michael W. and Roger S., however, are distinguishable. Here, similar to what occurred in In re Natasha A. but unlike what occurred in Michael W. and Roger S., the juvenile court did not issue a termination order under section 362.4. (In re Natasha A., supra, 42 Cal.App.4th at p. 36.) Unlike in Roger S. and Michael W., here there was no pending dissolution proceeding in family law court between Mother and Father, who were not married. Thus the reliance of Roger S. and Michael W. on the juvenile court's power to hear evidence on the issues of custody and visitation pursuant to section 362.4, which concerns termination of juvenile court jurisdiction over a dependent child of the court when proceedings for dissolution of marriage or for legal separation of the dependent child's parents are pending in superior court, does not apply here. Moreover, Roger S. and Michael W. apply only to evidence concerning visitation and custody, as set forth in section 362.4, and not to the main issue Mother raised, which was her progress in complying with her court-ordered case plan. Finally, Mother makes no showing of prejudice from the denial of her request for a contested hearing. (See In re Michael W., supra, 54 Cal.App.4th at pp. 196-197.)
For these reasons, Roger S. and Michael W. do not apply and Mother has not shown that the denial of her request for a contested hearing to present evidence on her progress in complying with her court-ordered case plan and on visitation (the nature of which evidence is unknown) was error.
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KITCHING, J.
We concur:
KLEIN, P. J.
CROSKEY, J.