Opinion
G061361
07-20-2023
In re H.M., a Person Coming Under the Juvenile Court Law. v. A.S., Defendant and Appellant. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent,
Lelah S. Fisher, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County, No. 17DP0280 Douglas J. Hatchimonji, Judge. Affirmed. Motion to Dismiss Appeal. Denied.
Lelah S. Fisher, under appointment by the Court of Appeal, for Defendant and Appellant.
Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minor.
OPINION
SANCHEZ, J.
INTRODUCTION
H.M. has spent the last 10 of his 17 years of his life as the subject of a heated and often vicious custody battle between his mother, A.S. (Mother) and his father, A.M. (Father). The conflict started in the family court, where a major point of contention was the proper care and treatment of H.M., who has been diagnosed with cystic fibrosis. The conflict moved to the juvenile court when H.M. was taken into protective custody in March 2017. Although H.M. was taken into protective custody because he had tested positive for benzodiazepine, after physical custody was vested with Father at the dispositional hearing, the primary concerns of the dependency case became H.M.'s increasing and ultimately complete alienation from Mother and Father's role in causing it.
Mother brought two petitions under Welfare and Institutions Code section 388 to remove H.M. from Father's custody, a motion for a citation for contempt against Father for violating various court orders, and a motion for a citation for contempt against SSA and one of its social workers. Trial began in January 2020 and continued into March, but due to the COVID-19 pandemic and other reasons, had not resumed by March 2022. At that point, the juvenile court declared a mistrial.
Statutory citations are to the Welfare and Institutions Code unless otherwise indicated.
In this case, Mother appeals from the order declaring a mistrial on her two petitions to remove H.M. from Father's custody and her motions for contempt citations. In a related appeal, Case No. G061679, Mother appeals from the juvenile court order denying her two petitions for removal of H.M. from Father's custody, terminating dependency jurisdiction pursuant to section 664, and making her parenting time with H.M. subject to his agreement.
We affirm the order declaring a mistrial because it has not caused Mother to suffer any prejudice. A consequence of that order was the striking of the evidence and testimony constituting much of Mother's case-in-chief. But the retrial has been held, and at the retrial Mother reconstructed, or could have reconstructed, her case-in-chief presented at the first trial. The declaration of mistrial did not impair Mother's ability to prove her allegations of contempt against Father. We deny SSA's motion to dismiss the appeal as moot.
Mother and Father's marital dissolution and these protracted dependency proceedings have been the source of four nonpublished opinions: In re Marriage of A.M.S. and A.C.M., Jr. (May 20, 2016, G051533); In re H.M. (May 18, 2018, G055484) (H.M. I); In re H.M. (July 16, 2018, G055754) (H.M. II); and In re H.M. (Aug. 2, 2019, G057128) (H.M. III). On our own motion, we take judicial notice of our opinions listed above. (Evid. Code, §§ 452, subd. (d); 459, subds. (a), (b) &(c).)
Another dependency appeal, Case No. G058378, was dismissed after the record was filed. On our own motion and for good cause we have incorporated by reference into the record on appeal in the present case the appellate record in Case No. G058378 (which in turn incorporated by reference the record on appeal in H.M. III) and the appellate record in Case No. G061679. We also have granted SSA's unopposed request for judicial notice of the entire record in case No. G061679. In addition, we incorporate by reference our nonpublished opinion in In re H.M. (July 20, 2023, G061679).
FACTS AND PROCEDURAL HISTORY
I. FACTS AND PROCEDURAL HISTORY THROUGH DECEMBER 2018
Our opinions in In re Marriage of A.M.S. and A.C.M., H.M. I, H.M. II., and H.M. III, cover events from H.M.'s birth to an order dated December 10, 2018 that was issued after the six-month hearing.
II. H.M. III
We address in some detail the holding and reasoning of H.M. III because it has guided (some might say haunted) the course of these dependency proceedings. H.M. III arose out of an order denying a section 388 petition brought by Mother to change custody and an order issued at the conclusion of the six-month review hearing in December 2019 at which the juvenile court found that continued jurisdiction was necessary to protect H.M. from substantial risk of suffering serious emotional damage.
In H.M. III we concluded Mother had proved changed circumstances with the results of her polygraph test. (H.M. III, supra, G057128.) We explained that H.M. had been placed in protective custody because he tested positive for benzodiazepine, custody had been vested with Father based on a finding that vesting custody with Mother would be detrimental to H.M., and "[a]lthough the [juvenile] court did not expressly find that Mother gave the benzodiazepine to H.M., the fingers were pointed at her." (H.M. III, supra, G057128.) "Mother's polygraph test results were significant," we found, "because they challenged, if not eliminated, the entire premise for vesting custody with Father."
In H.M. III, we also stated: "In addition, we note, there was no evidence Mother had possession of benzodiazepine, she tested negative for the drug, and H.M. was taken to the hospital because he had been coughing up blood in his mucus which, according to H.M.'s physician, was a consequence of cystic fibrosis and indicated an infection treatable with antibiotics." (H.M. III, supra, G057128, fn. Omitted.)
We found that H.M.'s alienation from Mother had worsened dramatically after September 2017 and "Father was a major contributor to, if not the primary cause of, this alienation." (H.M. III, supra, G057128.) Nonetheless, we affirmed the order denying Mother's section 388 petition because the custody change proposed by Mother would not be in H.M.'s best interest. We concluded: "The juvenile court understood the risk of harm, both short-term and long-term, posed by H.M.'s alienation from Mother. The juvenile court also understood the risk of harm posed by removing H.M. from Father's custody. The juvenile court observed H.M. become emotional and having to take breaks from testifying when it was suggested he might be removed from Father's custody. The juvenile court commented that '[H.M.] has noted continually he feels healthier and safer with Father and his siblings.' H.M.'s beliefs, rightly or wrongly held, that Mother gave him the benzodiazepine and caused him to cough up blood, means that placing H.M. in Mother's or Maternal Grandparents' custody would be particularly traumatic for him. [¶] In ruling on Mother's section 388 petitions, the juvenile court took into account both the risk of harm from parental alienation and the risk of harm from removing H.M. from Father's custody. Thus, while the court did not change custody, it issued a series of orders intended to foster better relations between H.M. and Mother and start the healing process." (H.M. III, supra, G057128.)
In H.M. III, we shared Mother's concern that "going forward Father will not comply with the court's orders and not do his part to allow H.M. to repair his relationship with Mother." (H.M. III, supra, G057128.) Father's track record was "not encouraging" as he had "not always been cooperative in complying with court orders and has done so with apparent impunity." (H.M. III, supra, G057128.) We concluded the juvenile court did not abuse is discretion because "we trust that from here on out failure to comply with the orders will have immediate and serious consequences, which might include contempt citations." (H.M. III, supra, G057128.)
We issued this warning, "[f]ailure to comply is not an option for Father or SSA." (H.M. III, supra, G057128.) We also gave this direction: "If, however, substantial progress is not made within a reasonable time in improving the relationship between H.M. and Mother, then the juvenile court shall have no alternative but to consider changing custody." (H.M. III, supra, G057128.)
III. Facts: December 2018 Through January 2020
This section recounts the facts from December 2018, when the juvenile court made the orders that were the subject of H.M. III, through January 2020, when the trial commenced. The facts are taken from 18 SSA reports (two interim review reports, a status review report, and addendum reports Nos. 1-15) submitted from April 2019 through March 2020 as well as court orders entered during that time period. We relate the contents of those reports and orders by topic.
A. Effect of H.M. III
H.M. III was issued on August 2, 2019, just about two-thirds into the time period covered in this subsection. It would be nice to believe that H.M. III caused a change in Father's behavior and attitude and led him to encourage H.M. to improve his relationship with Mother, but that belief would be mistaken. As the SSA reports demonstrated, Father's behavior became markedly worse, more hostile, and even aggressive after H.M. III. H.M.'s relationship with Mother got worse, not better.
On August 13, 2019, SSA presented Father with a document of expectations based on H.M. III. Among the expectations on that document were that Father and H.M. were not permitted to move to Nevada, H.M. would attend all therapy sessions with a therapist who was licensed and experienced in high conflict cases and attachment disorder, H.M. and Mother would have conjoint therapy with a therapist licensed and experienced in high conflict cases and coparenting issues, H.M. would attend all visits with Mother, information about H.M.'s medical appointments would be provided to SSA and Mother in advance, Father and H.M. would make themselves available for SSA visits at least once a month in Father's home, and Father would provide a weekly schedule of availability so SSA could do unannounced visits.
Father was asked to sign the document of expectations. He refused. On August 21, 2019, Father told social service worker Victoria Ovieda (SSW Ovieda) that he was concerned that "everyone was pushing the child towards the 'abuser,'" meaning Mother.
In Addendum Report No. 7, dated October 23, 2019, SSA concluded that "[F]ather is not compliant with Court expectations, order, and the case plan[,] and is uncooperative in many respects." SSA had considered detaining H.M. but decided not to do so because he was safe and not at substantial risk of physical or emotional harm under Father's care, Father had been meeting H.M.'s basic needs, and H.M. had stated he felt safe with Father and wished to remain in his care.
B. SSA Recommendations
SSA consistently recommended that dependency jurisdiction be continued and H.M. remain in Father's custody. In Addendum Report No. 3, SSA recommended that the court authorize Father to move to Nevada with H.M. and transfer services to that state.
C. H.M.'s Physical Health and Well-Being
Father was in compliance with his case plan requirement to keep H.M. physically safe and healthy and to provide for his basic needs. Loma Linda University Children's Hospital - Cystic Fibrosis and Pulmonary Disorders Centers (Loma Linda) personnel reported that H.M. was generally doing very well, his functions remained "'very good,'" and Father was managing H.M.'s condition and treatment well. The doctor warned that added emotional stress would be detrimental to H.M.'s health. In September 2019, H.M.'s cystic fibrosis case manager at Loma Linda expressed her belief that telling H.M. he had to visit Mother "'has not been helpful.'" In September 2019, Father's wife (Stepmother) told social service worker Melissa Nicholson (SSW Nicholson) that H.M.'s emotional health was affecting his physical health.
SSW Nicholson attended H.M.'s appointment in October. Despite a court order permitting SSW Nicholson's presence, Father was angry that she was there. SSW Nicholson was asked to wait in the waiting room. After the appointment, H.M.'s case manager told SSW Nicholson that H.M. was doing well and his lung functions remained good.
Social workers and Mother attended H.M.'s appointment at Loma Linda on January 8, 2020. H.M. asked Mother, "'Why are you here?'" His eyes were puffy, red, and filled with tears. Mother told the social workers Father had blocked her from accessing any of H.M.'s medical or school records.
Mother and the social workers stayed in the waiting room while H.M. was taken into his appointment. A hospital social worker came out and told them that Mother's presence was negatively affecting H.M.'s health. The doctor told the social worker that if H.M. was upset when he came to an appointment, he would not be able to complete his lung tests. The doctor had to give H.M. a breathing treatment before conducting the tests that day because H.M. was upset upon arriving at the appointment.
D. H.M.'s Education
H.M. attended online school. As of September 20, 2019, H.M.'s grades were two B's, one C, and one D. (His grades first semester 2017-2018 were all A's. H.M.'s school records, received by SSA in February 2020, showed that for the 2018-2019 school year (seventh grade) and the fall semester 2019-2020 school year (eighth grade) H.M.'s grades were markedly worse. During the fall semester, H.M. missed 17 out of 79 school days. H.M.'s teachers noted that "[w]ork habits must be improved" and "[H.M.] fails to finish assignments."
E. H.M.'s Visits and Relationship With Mother
H.M.'s relationship with Mother went from bad to worse. Dozens of failed visits are recounted in the SSA reports. From late 2018 until late 2019, the visits followed this pattern: H.M. would walk up to Mother, tell her he did not want to be there and did not want to see her, and then call Father, walk or run back to his car, or simply run away. Father and H.M. would leave. If maternal grandparents were at a visit, H.M. would say he did not want to visit them.
In January 28, 2019, Father told social worker Ovieda he would not bring H.M. to visits with Mother if the maternal grandparents were present because, he claimed, they were "not on his side" and he did not get along with them.
H.M. became aggressive and openly hateful to Mother. At a visit in August 2019, H.M. confronted Mother about why she was not at conjoint therapy that morning. When Mother told H.M. she loved him, he raised his voice and told Mother to shut up. When Mother commented it was hot out and asked if H.M. wanted water, he asked, "for what[?] [S]o you can poison me again[?]" Mother told H.M. she did not poison him, but a woman drove up, and he got into her car and they left.
Moving visits with Mother to the SSA offices did not prevent H.M. from running away or improve his attitude toward visiting Mother. Two examples suffice. At a visit on November 26, 2019, H.M., before even seeing Mother, asked the social worker, "[c]an I leave now?" After setting eyes on Mother, H.M. stated: "[O]kay, I'm leaving now. You guys can't force me to visit with her when I don't want to see her." At a visit on December 31, 2019, H.M. refused to enter the building, told Mother he did not want to stay, and ran back to Father's vehicle. In both instances, Mother was upset at having not been able to visit H.M. and expressed her frustration that the social workers had done nothing to stop H.M. from leaving the visits.
Father did nothing to encourage H.M. to stay at visits with Mother. For example, at a visit on December 17, 2019, a sheriff's special officer showed Father a court order stating H.M. was not allowed to leave visits early. Father said the order was incorrect and drove away with H.M.
Rock bottom was hit at a visit on January 16, 2020. A sheriff's special officer asked H.M. to come inside for his visit, but H.M., who was standing by Father's truck, would not budge. When the visitation monitor asked Father to encourage H.M. to visit Mother, Father told the supervising social worker to show him a court order saying H.M. had to stay at the visit. The social worker reminded Father that he was aware of the court's "desire" that H.M. visit Mother, but Father interrupted the social worker to complain about the visitation monitor. Father was angry and yelled at the social worker to do his job and protect H.M. Father argued with the sheriff's special officer about producing the court order. When the social worker told Father that court orders are not brought to visits, Father yelled, "'[g]et away from me! Get away from me!'" The social workers, the sheriff's special officer, and the visitation monitor encouraged H.M. to go inside to visit with Mother, but H.M., repeating what Father had said, stated, "'show me the court order.'" Father then got out of his truck, approached the social workers, sheriff's special officer, and visitation monitor, and in loud voice talked about Mother's mental health issues and her "'20 hospitalizations'" and said she was unfit to parent H.M. When asked if he had a copy of the court order, Father reached into his pocket, pulled out an empty hand, waved the hand, and sarcastically said, "'there you go.'"
F. Individual Therapy: H.M.
SSW Ovieda found therapist Donna Clark, who met the 2018 Court order requirements for H.M.'s individual therapist. Clark said her main goal for H.M. was "to assist him in finding ways to speak to his mother honestly while improving their overall communications." H.M. had several individual therapy sessions with Clark from January to March 2019.
On March 22, 2019, Father and H.M. told SSW Ovieda that H.M. would not continue therapy with Clark because, according to H.M., Clark had talked about having a girlfriend and there were "'tweakers'" hanging around her home. Clark told SSW Ovieda that Father had cancelled all sessions and told her H.M. did not feel comfortable due to things Clark had said in H.M.'s first and only session with her. Clark believed that Father had canceled the sessions because she disagreed with Father's assessment of H.M. and wanted him to bring H.M. every weekend. Clark denied making the statements attributed to her by H.M. and Father and said she does not have a girlfriend and does not live near "tweakers." Clark believed that because she disagreed with Father, he would misconstrue her words to H.M. as an excuse to discontinue services.
Clark related an incident with Father that had occurred just before H.M.'s first session on March 9, 2019. Father became very angry and raised his voice at Clark when she said that H.M. should be seen both weekly for individual sessions and after visits with Mother so that she could help H.M. "process those visits" in an effort to connect with Mother. Father spoke badly about Mother and previous therapists: He said Mother was "'crazy, and tried to poison' [H.M.]" Father told Clark she had been "'tricked'" by others. Father said those things in front of H.M. and used up all but 30 minutes of H.M.'s session time with Clark. In Clark's opinion, "[F]ather is attempting to control [H.M.]'s life by alienating H.M. against the mother."
Clark scheduled conjoint sessions to start in April 2019, but Father terminated services with her before then. After discontinuing H.M.'s therapy with Clark, Father found a new therapist for H.M. He completed an intake session with this new therapist-Gail York-on April 4, 2019 and thereafter had therapy sessions with her until January 2020. York's goal was to "address the relationship between the child and the mother and work towards building healthy communication and coping."
When SSW Ovieda met with H.M. after his therapy session with York on May 16, 2019 he said he wanted to live in Nevada, go to regular school, and play hockey. He did not ever want to see Mother. SSW Ovieda also spoke with York, who recommended that H.M. be permitted to move to Nevada because he was old enough to choose which parent he wanted to live with.
On August 14, 2019, York reported that H.M. was adamant in wanting nothing to do with Mother. He had been in tears due to his frustration with court involvement and wanted the dependency case to end. At that time York diagnosed H.M. as having adjustment disorder with anxiety to which she later added depression.
During an individual therapy session on August 20, 2019, H.M. told York he was not willing to stay at visits with Mother and would continue to run away if he had to attend them. He was frustrated with the court and said, "'I am stuck with a crappy life because of the court.'" H.M. claimed that Mother was trying to send Father "to jail" and did not want him to live in Nevada with his family. H.M. said that if Mother loved him she would let him go. He claimed he never had a good relationship with Mother and had always wanted to live with Father. H.M. said Mother was "'crazy.'" As examples, H.M. remembered Mother cutting herself while opening H.M.'s medication and burning herself while cleaning H.M.'s medical supplies, which he claimed, Mother had done on purpose. H.M. said Mother "'wants me to be sick because she likes the attention.'"
After the session, York met with SSW Ovieda and SSW Nicholson and expressed her opinion that "'this whole process is detrimental to [H.M.] emotionally and physically.'" York stated her concern that court involvement was increasing H.M.'s stress levels, which could damage H.M.'s immune system.
On October 25, 2019, York reported that H.M. was well-adjusted, happy, and thriving aside from his issues with Mother. Thus, York concluded he no longer needed individual therapy and only the conjoint therapy should continue.
G. Conjoint Therapy: H.M. and Mother
York scheduled a conjoint therapy session for August 20, 2019. On August 14, York contacted Mother to invite her to the session. York's only interactions with Mother were by telephone and "with each conversation, the mother was hostile and demanded to complete an intake for therapy," which, York said, was unnecessary.
On October 1, 2019, York reported that the first conjoint therapy session between Mother and H.M. went badly. York had to redirect H.M. several times because he was being disrespectful and yelling at Mother. At one point, York asked Mother to step out and had Father come in and try to get H.M. to stop yelling. H.M. told Mother, "'you are not my mother'" and whenever Mother said anything, H.M. called her a liar. Mother remained appropriate throughout the session.
At a session on October 15, 2019, Mother brought photographs of H.M. and her when he was younger; H.M. tore them up. He refused to listen to York and called Mother a "fucking bitch." York told H.M. that if he did not get himself under control, she might have to call the police. H.M. ran out of the session, and York called the police. Moments later, Father brought H.M. back. Father told H.M. his behavior was unacceptable and he had to follow York's direction and listen to York as though Father were speaking.
York later told SSW Nicholson: "'[H.M.] still is absolutely [convinced] that his mother[] poisoned him. I don't think he will ever change his mind on that. The lie detector test has been talked about in session, he said it was two years after the fact.'"
The next and final conjoint therapy session did not fare any better. York reported that H.M. became agitated when Mother would not listen to or acknowledge what the child was saying or would deflect his questions. H.M. shoved a table into Mother. Father was called into the session to calm H.M. Instead, Father mocked Mother in front of H.M. by saying, "'[H.M.] will be 18 soon and you will still be living in your own in your little apartment.'"
In a letter dated October 31, 2019 York wrote that after having completed three conjoint therapy sessions she believed that forcing H.M. to continue attending conjoint therapy with Mother would be tantamount to psychological and emotional abuse. She wrote that she could not ethically continue doing conjoint sessions with H.M. and Mother and that she believed no mental health professional should do so. York wrote that she would continue to see H.M. individually. Finally, York expressed her opinion that H.M.'s rights were being violated and his opinions and desires should be considered for the sake of his mental and emotional well-being. On November 5, 2019, York advised SSA that H.M.'s development was being negatively affected by Mother's continued efforts to force visitation and conjoint therapy on him.
In December 2019, SSA found an available conjoint therapist, Jinice Beacon, and asked both parents to sign the referral to begin counseling. Father refused to sign the referral because York had stated that forcing H.M. into conjoint therapy was tantamount to child abuse. Father did sign the referral on January 28, 2020. However, on February 18, 2020, Beacon reported she could no longer accept the referral because Father had called her and lectured her on whether or not she should facilitate conjoint counseling. Beacon viewed Father's conduct as a veiled threat and believed Father's goal was to prevent H.M.'s reunification with Mother.
H. Evidence Code Section 730 Evaluation of H.M.
The Evidence Code section 730 evaluator reported that H.M. showed minimal insight into his psychological stressors, which included the possible effect of prolonged exposure to the high conflict relationship between Mother and Father. The conflict between Mother and Father was so severe as to cause H.M. to dismiss any value in reconciling with Mother and to avoid recognizing his own thoughts of feelings on that conflict. The evaluator believed that conjoint counseling would not be of benefit to H.M. in the short run.
I. Individual Therapy: Father
After making numerous inquiries, SSA was not able to find a qualified therapist for Father's individual therapy. Father, however, found a therapist in Nevada and attended individual therapy sessions with that therapist from February to May 2019. The therapist expressed concern that Father's last psychological evaluation was inconclusive due to lack of participation. The therapist wanted Father to complete a psychological test to assess personality traits and psychopathology. Father declined to take the test because, he claimed, he was not required to do so and he already had completed an Evidence Code section 730 evaluation. After that discussion, the therapist had no further contact with Father.
Father told the assigned social worker he would no longer attend individual therapy. He had completed three months and claimed he was not required to complete psychological testing. SSA continued to provide Father with referrals for individual therapy even though Father would not participate.
J. The Move to Nevada
On September 4, 2019, Father told the assigned social worker that the home in Running Springs, California was no longer his residence and he had been "'staying'" in Nevada for the last two weeks. Father later informed the social worker that he had spent most of 2018 and the entire summer of 2019 in Nevada. On October 11, 2019, Father reported that aside from a couple of weeks living in Nevada, he was living in California during the weekdays and in Nevada on weekends. Father told SSW Ovieda that he and H.M. traveled to Nevada every Sunday and Monday to see Stepmother and H.M.'s siblings. SSW Ovieda authorized this arrangement. SSA told Father repeatedly he was not allowed to reside in Nevada.
On September 27, 2019, Father reported that H.M. had a pediatrician in Henderson, Nevada, and that pediatrician had seen H.M. on August 23 after H.M. had a panic attack. H.M. broke his arm while in Nevada and his surgery and orthopedic followup appointments were in that state. As of December 2019, Father and H.M. were living in Running Springs on weekdays and in Nevada with Stepmother and the other children on weekends. On December 13, 2019, the juvenile court authorized Father and H.M. to travel to Nevada from December 21 through 28.
K. Mother's Status
On November 8, 2019, Senior Social Services Supervisor Laura Yescas learned that Mother had been hospitalized on a section 5150 hold for at least the past 24 hours. It was reported that Mother had been hospitalized "'because she has been in a custody battle for 11 years.'" On November 12, Yescas received a message from hospital staff reporting Mother was still at their facility and was expected to be there for 14 days as they had found "'probable cause.'" Mother was discharged on November 24, 2019.
Mother would not sign authorizations for SSA to obtain her medical records from the November 2019 hospitalization.
In September and October 2019, Mother continued to attend individual therapy with Dr. Lisa Grajewski and to see her family physician, Dr. Nayanna Shaw, who prescribed Mother lithium for anxiety. But Mother resisted following the recommendation in her Evidence Code section 730 evaluation that she get a second opinion from a psychiatrist at a major medical facility regarding her medication.
L. Home Visits
On November 26, 2019, social service worker Robert Gomez (SSW) and his supervisor met Father, Stepmother, and H.M. for a home visit. Father escorted SSW Gomez and his supervisor upstairs to meet in the kitchen. There were no furnishings in the house. Father explained his renters just moved out, but during next month's contact, Father and H.M. will have moved back in. When SSW Gomez tried to speak to H.M., Father interjected that H.M. did not want to talk to social workers anymore. Father disparaged Mother in front of H.M. also spoke about Mother being hospitalized "'22 times.'"
IV. PROCEDURAL HISTORY: DECEMBER 2018 UNTIL JANUARY 2020
This section recounts the procedural history from December 2018 until January 2020, which is roughly the same time period covered in the preceding section.
A. Mother's Section 388 Petition to Remove H.M. From Father's Custody and Motions for Contempt; Father's Move-Away Petition
In February 2019, Mother filed a motion for a citation for contempt against the director of SSA and SSW Ovieda (Mother's motion for contempt against SSA). In March 2019, Mother filed a motion for contempt against Father for failure to comply with the court orders made on November 9 and 26 and December 10, 2018. In August 2019, Mother filed a second amended motion for a citation for contempt against Father (Mother's second amended contempt motion), which alleged 11 counts.
Mother alleged that Father had declined to schedule sessions for himself and H.M. with the Evidence Code section 730 evaluator, had not made H.M. available for or encouraged conjoint therapy with Mother, not obtained individual therapy for H.M., taken H.M. to Nevada without court authorization, canceled a visit with Mother to take H.M. to Nevada, enrolled H.M. in virtual rather than in-person school, not attended individual therapy for himself, and moved H.M. to Nevada in violation of court orders.
In July 2019, Mother filed a section 388 petition requesting that H.M. be removed from Father's custody and placed with her, the maternal grandparents, or a foster home (Mother's first section 388 removal petition).Mother dismissed the motion for citation of contempt against the director of SSA. On July 31, 2019, the trial court denied Mother's motion to remove SSW Ovieda.
As changed circumstances, Mother alleged that Father was not in compliance with court orders (including the order that he not move to Nevada), not attending therapy, canceling visits with Mother, telling H.M. he does not have to stay for visits, and not requiring H.M. to attend regular school. Mother alleged that H.M.'s separation from her was not in H.M.'s best interest and H.M. was not receiving appropriate medical attention with Father.
Mother filed a notice of appeal from that order. The appeal was docketed as case No. G058378. In January 2020, this court dismissed that appeal at Mother's request.
In August 2019, Father filed a section 388 petition requesting that he be allowed to move to Nevada with H.M. (Father's Move-away Petition). Father alleged H.M.'s recent Evidence Code section 730 evaluation had found conjoint therapy unlikely to be of any benefit, H.M. refused to remain at visits, Father was "losing" his home in Running Springs, and H.M. was "desperate" to be reunited with his siblings and begin a new school in Nevada.
An evidentiary hearing on Mother's motion for contempt against SSA and Mother's second amended contempt motion was commenced in September 2019. The hearing was continued to a date in October, but on October 23, the court set the contempt motions aside for the time being and proceeded on Mother's first section 388 removal petition.
B. Concerns Over Father and Orders to Bring Him Into Compliance
On October 21, 2019, the juvenile court expressed "grave concern" over the direction in which the case had been heading since H.M. III was issued. The court stated that although Father had been presented with the opinion in H.M. III and the social workers had gone over it with him, "things have gone in a spiraling-out-of-control pattern." Referring to Father, the court stated: "[I]nstead of taking what should have been an eye-opening experience, saying 'Hey, these are the things that need to be done,' and 'these are the concerns by a higher court,' everything's gone in a bad direction." The court warned counsel there was a good chance H.M. would be detained and ordered a detention hearing.
On October 23, 2019 the trial court declined to detain H.M., but made strict, detailed orders in order to bring Father back into compliance with court-ordered requirements to repair the mother-child relationship. The court imposed a total of 17 orders, among which were orders that Father was not to remove H.M. from California without prior, express court approval; Father was not to change H.M.'s residence in California without seven-days' notice to SSA; H.M. may not reside at any location beyond a 50 mile radius of Loma Linda; Father must provide a weekly schedule of H.M.'s whereabouts to SSA; and Father was to ensure that H.M. attended individual and conjoint counseling sessions and visits with Mother. SSA was ordered to notify the court by ex parte application of any willful failure by Father to comply with any of these conditions within one business day of the violation. The court granted Mother's request to stay the denial of removal and ordered H.M. not to be removed from California for seven days.
C. Suspension of Conjoint Therapy; Motion to Disqualify Judge
On November 4, 2019, minor's counsel filed a section 388 petition requesting that visitation and conjoint therapy be suspended due to their adverse effects on H.M.'s mental and physical health. The court granted the petition in part by ordering conjoint counseling with Mother and H.M. suspended due to therapist refusal. SSA was to refer Mother and H.M. to a neutral county therapist for conjoint counseling. The court otherwise denied the request to suspend visitation.
Later in November, minor's counsel filed a motion to "recuse" the judge (Jeremy Dolnick). The motion was ordered stricken on the ground it disclosed no legal grounds for disqualification. Judge Dolnick nevertheless recused himself, and the case was assigned to Judge Hatchimonji.
D. Declaration of Mistrial as to Mother's First Section 388 Removal Petition
On December 13, 2019, Judge Hatchimonji declared a mistrial as to Mother's first section 388 removal petition. The court held a status conference and ordered the following matters be heard concurrently at an evidentiary hearing: (1) a section 364 review hearing (originally set to be conducted on May 22, 2019); (2) Mother's first section 388 removal petition; (3) Mother's second amended contempt motion (4) Father's move-away petition and (5) the issue of visitation between H.M. and Father, Mother, Stepmother and siblings. The court ordered exclusion of all evidence from before November 9, 2018 and the testimony and evidence taken in the prior hearing be stricken but available for any reason permitted by the Evidence Code for prior testimony. The court deferred ruling on Mother's second amended contempt motion and Mother's motion for contempt Against SSA.
The court scheduled trial to begin on January 6, 2020 and ordered both Mother and Father to be present every day of trial. The court confirmed that the October 23, 2019 order restricting Father and H.M. from leaving California remained in full force and effect but authorized Father and H.M. to be in Nevada from December 21 through December 28, 2019.
V. FACTS: FEBRUARY 2020 THROUGH MARCH 2022
This section recounts the facts from February 2020 through March 2022, when the juvenile court declared the mistrial that is the subject of this appeal. The facts are taken from 12 SSA reports (Addendum Reports Nos. 14-25) with dates starting in February 2020 and ending in March 2022, ex parte applications, and court orders entered during that time period. We relate the contents of those reports, ex parte applications, and orders by topic.
A. SSA's Recommendations
Throughout this period, SSA consistently recommended that the juvenile court continue to assert dependency jurisdiction over H.M. and that he remain in Father's custody.
B. H.M.'s Desires
H.M. consistently and repeatedly expressed the same desires: He wanted to live with Father and Stepmother in Nevada, attend school in Nevada, have no contact with Mother ever again, and have the juvenile dependency case closed.
C. Where H.M. Was Living
Father's house in Running Springs was sold in February 2020. Father and H.M. stayed in Nevada until February 19, 2020 and then returned to California, where they moved about between hotels, parking lots, and campsites for the next three or so weeks. On February 23 and 24, SSA attempted unannounced visits to a Wal-Mart parking lot where Father had reported he was living but did not find Father, H.M., or Father's vehicle. On February 25, Father sent SSW Gomez an e-mail reporting that he and H.M. were staying at a campsite in Barstow. On March 2 and 9, Father sent SSW Gomez only latitudinal and longitudinal coordinates, no address.
On March 11, by stipulation of the parties, the court authorized Father and H.M. to leave that day to travel to Nevada. On March 12, the court ordered Father and H.M. to return to California on March 2020. Father did not bring H.M. back to California on that date.
Between April 16, 2020, and December 24, 2020, the juvenile court granted ex parte applications brought by SSA, and opposed by Mother, to permit Father and H.M. to socially isolate in Father's home in Henderson, Nevada. In March 2021, SSA brought a final ex parte application for an additional 30 days of isolation in Nevada. The court granted that application on May 10, 2021.
On June 25, 2020, SSA brought an ex parte application to inform the juvenile court that Father was planning to enroll H.M. in school in Nevada, did not plan to return to California, and refused to provide SSA with his financial and employment information or information regarding H.M.'s new therapist. This ex parte application marked a watershed: As of that date, June 25, 2020, it was clear that Father had moved H.M. to Nevada and, court's orders notwithstanding, was not going to return him to California to live.
D. H.M.'s Physical Health and Well-being
During the COVID-19 pandemic, H.M.'s appointments at Loma Linda were conducted by video. Starting in April 2021, Loma Linda required H.M. to appear in person for appointments. Father was not happy with that decision and transferred H.M. to the Las Vegas Cystic Fibrosis Center. In October 2021, Father refused to sign the releases of information so that SSW Gomez could speak with the Las Vegas Cystic Fibrosis Center. Father stated he would provide all medical records, H.M. was seen quarterly, and his next scheduled appointment was for a routine check-up on December 2, 2021. Father and Stepmother, refused to disclose whether H.M. had received a COVID-19 vaccine.
In February 2022, Father reported that H.M. was being seen by a children's lung specialist in Las Vegas, Nevada. Father refused to provide details as to H.M.'s treatment or medication regimen, sign releases of information in order to verify H.M.'s medical care, and provide documentation of doctor's appointments and medication. He claimed he already had provided those documents and his attorney had "after-visit" medical information for H.M. SSW Gomez never received any such documentation. Father denied that H.M. had any recent hospitalizations. Father reported that H.M. had been stable for the past two years at least and had demonstrated good lung strength at his last clinic visit. Father stated he had always followed through with H.M.'s medical needs.
E. H.M.'s Education
In July 2020, Father reported that H.M. would be enrolled in online school in Nevada because that was where H.M. lived. As of September 2020, H.M. was enrolled in online school in Nevada.
In May 2021, the juvenile court allowed Father to enroll H.M. in school temporarily in Nevada because Father was unable to enroll him in school in California. Father and Stepmother refused to provide H.M.'s school information. Eventually, in July 2021, Father's attorney provided H.M.'s report card to SSA. The report card showed that H.M. was doing very well; however, SSA was unable to verify the H.M.'s educational progress with someone representing the school, or with Father or H.M. During a compliance contact on October 4, 2021, H.M. stated he was in school and it was "good," and Father had "no comment" on H.M.'s schooling. During a compliance contact on February 28, 2022, Father would only state that H.M. was enrolled in school.
F. Compliance Contacts
Starting in March 2020, SSA conducted compliance contacts with H.M. and Father by video. H.M. appeared to be healthy, happy, and improving in his education. H.M. consistently said things were going well, he wanted to live with his family in Nevada, and he wanted the dependency case to close.
Father was not cooperative in making the compliance contacts go smoothly. For example, at a contact on July 27, 2020, Father refused to permit the social worker to see H.M.'s bedroom and on August 24 insisted on recording the contact, which prompted the social worker to end the call. On September 1, SSA brought an ex parte application to inform the juvenile court of obstacles to completing a compliance contact with Father and H.M. for the month of August 2020. The court ordered Father to make H.M. available for monthly compliance visits, to allow H.M. to speak alone with the social worker with H.M.'s attorney permitted to be present, and not to record interactions with SSA.
The December 2020 and January 2021 compliance contacts were missed despite several attempts to schedule them. On January 21, 2021, SSA, Father, and all the attorneys involved agreed that compliance contacts be scheduled on the first Monday of every month at 9 a.m.
Yet Father's cooperation got worse, not better. At the February 1, 2021 contact, Father refused to let H.M. ever have contact with SSA without Father present, even if all the attorneys were present, despite the court order. At the March 1, 2021 contact, Father was not present, but Stepmother was and she would not allow H.M. to be interviewed in private. Father and H.M. did not appear for the scheduled April 5, 2021 contact. When SSW Gomez sent Father an e-mail asking for dates to make up the missed compliance contact, Father responded angrily that the next compliance contact would be May 3, he no longer consented to be contacted directly by anyone at SSA, and SSA should reach him through his attorney. Father was not present for the compliance contact on May 3, 2021. Stepmother stated that Father would not be attending monthly compliance contacts anymore due to the stress it causes him and that she would not allow H.M. to be interviewed in private.
On May 10, 2021, the juvenile court ordered Father to make H.M. available with no one else present except for minor's counsel or counsel's representative, during the monthly compliance contacts. Father did not attend the June 7, 2021 contact. Stepmother offered to step away so that H.M. could speak with the social worker alone, but H.M. refused and ended the call. Just before the July 12, 2021 contact, the social worker was informed that H.M. would no longer be attending video compliance contacts. As of August 2, 2021, neither Father nor H.M. were participating in compliance contacts.
The next compliance contact was on October 4, 2021. Father reported that H.M. had completed counseling and that Father would not be attending counseling or anger management. Father suggested the social worker speak with H.M. about a missed visit with Mother and he had "no comment" on H.M.'s schooling and extracurricular activities.
Father did not attend the compliance contact on November 1, 2021 because, as reported by Stepmother, they were "very distressing" for him. The December 2021 compliance contact was canceled due to a conflict and the change in Father's counsel, and the January 10, 2022 contact was canceled because Father's counsel was ill.
On January 26, 2022, in response to a report by SSA, the juvenile court ordered SSA to perform an in-person compliance visit with H.M. in Nevada by the end of February, ordered Father and H.M. to cooperate with the visit, and ordered all counsel to attend. On February 4, the court issued further orders for the structure of the February compliance visit. Among those orders were that the contact was not to be recorded and that SSA "will request an escort from appropriate law enforcement in advance of the visit."
On February 28, 2022, social service worker Marcella Salzle (SSW Salzle) completed the scheduled compliance contact at Father's home in Henderson, Nevada. The contact did not go well. A police officer was present. Father would not allow Mother's counsel "to step foot on his property" so counsel waited down the street. Father allowed his counsel, SSW Salzle, and counsel for SSA, H.M., and Father into the home. SSW Salzle interviewed Father about his and H.M.'s care and services. Father was agitated and difficult to engage. Even though SSW Salzle told Father it was imperative that he provide detailed information, he gave general information in response to nearly all of the questions asked. Father refused to provide any information about H.M.'s treatments, medical regimen and doctor's appointments. SSW Salzle reviewed the case plan with Father but he refused to sign it because he disagreed with the proviso that Father had participated in the case plan development. When asked about H.M.'s school, Father responded, "'he is enrolled in school.'" Father claimed to know nothing about H.M.'s visits with Mother and how they were going. He said visits were between H.M. and Mother: Father did not get involved because H.M. was now 16 years old and Father had no influence over him.
SSW Salzle tried to interview H.M. in the presence of county counsel and minor's counsel and her assistant in the entryway of the home. H.M. appeared healthy. However, H.M. became upset when he saw the police officer. H.M. started breathing more rapidly and, bringing his hand to his head, asked why the police were present and whether anyone was in trouble. SSW Salzle explained to H.M. the police officer was only there to keep the peace, and the police officer reassured H.M. that no one was in trouble. H.M. said he was embarrassed by the police presence. He walked away and told Father he wanted to leave. Father told H.M. to get into the car. H.M. got into Father's car, and Father drove off.
SSW Salzle conducted a walk-through of the home. Stepmother recorded part of the compliance contact in violation of the court order. The home was modern, updated, and posed no visible safety hazards.
G. Individual and Conjoint Therapy: H.M.
During this period, SSA continued to contact providers of conjoint therapy and inquire about their availability. SSW Salzle found an available therapist and starting June 15, 2020, contacted both Mother and Father several times to sign the referral. Mother signed the referral in August 2020; Father refused to sign.
In April 2020, H.M. started individual therapy with Fred Lubin of Oasis Counseling in Nevada. Until August 2020 Father repeatedly refused to disclose Lubin's information for SSA to verify H.M.'s participation and progress. On September 30, 2020, SSW Gomez was able to speak with Lubin, who confirmed that H.M. had been receiving individual counseling services with him since April 24, 2020. Lubin reported he did not have experience in family law or custody disputes: He worked mostly with adults, and he would not be able to testify in court. Lubin's approach was to serve as an empathetic ear for H.M. and allow him to talk about his feelings.
As of September 2020, H.M. was seeing Lubin every other week. Lubin did not meet the court-imposed requirements, had not been approved by the court or SSA, and appeared to be unaware of many aspects of H.M.'s case. In October 2020, SSW Gomez determined that a therapist suggest by Father had the necessary experience and met the requirements imposed by the court; however, H.M. said he liked Lubin and did not want to change therapists.
In February 2021, Lubin reported that H.M. appeared to be happy and stable. H.M. had expressed mild contempt for Mother and dislike for their visits. The next month, H.M. reported that he continued to attend counseling and it was going well but he did not think he needed it. In May 2021, H.M. reported that at some unknown time the number of therapy sessions had decreased to one a month.
H.M. completed his counseling sessions with Lubin in June or July 2021. Lubin reported that H.M. was not in distress and truly did not want a relationship with Mother at that time. In a letter dated June 22, 2021, Lubin expressed his beliefs that H.M.'s disaffection for and rejection of Mother were H.M.'s true feelings and were not influenced by Father or Stepmother and that H.M. did not need further counseling or therapy.
H. Individual Therapy: Father
In October 2021, Father reported that he would not be attending counseling or anger management therapy. However, in February 2022 Father reported he had attended individual therapy on and off during the prior year and more recently had been participating weekly. He refused to provide the identity of his therapist.
I. H.M.'s Visits and Relationship with Mother
Starting in April 2020, visits with Mother-or more accurately, attempted visits-were conducted online via Zoom. The online visits went no better than the in-person ones, and the SSA reports recount dozens of failed online visits from April 2020 through February 2022. The visits, with little variation, followed this pattern: H.M. would log on for the visit; Mother would tell H.M. she loved and missed him; H.M. (often talking over Mother) would tell Mother he did not love, like, and/or miss her and he wanted no contact with her; and H.M. would log off within minutes if not seconds of the visit commencing.
A notable departure from this pattern occurred during the visit on August 11, 2020. When Mother said she loved and missed H.M., he began to aggressively question her about the "thirteen court dates scheduled" and why Mother wanted to send him to a boys' home. The social worker tried to redirect H.M. but he was rude and disrespectful to her and continued to question Mother aggressively about why she wanted to take him away from "his parents."
H.M. did not log on for a couple of visits in 2021, and, starting in 2022, did not log on to visits at all. H.M. did not respond to the social worker's e-mail asking about a missed visit on January 11, 2022 visit and claimed he missed a visit scheduled for January 25 because he had been busy. As to a missed visit on February 8, H.M. sent the social worker an e-mail stating: "I DONT WANT TO TALK TO HER! IM DONE!!!"
Mother was offered an in-person visit with H.M. at a local park in Nevada for February 28, 2022, but she responded that she could not make that date because she had been exposed to COVID-19.
H.M. consistently and repeatedly told social workers that he did not like or want to have the video visits or any further contact with Mother. H.M. claimed that Mother would talk over him, not allow him to talk, and not answer his questions. On June 16, 2020, H.M. told the social worker, "'Nothing has changed and I still don't want to do these visits.'"
In October 2021, H.M., referring to Mother, said, he "'still doesn't like her, never will, does not want to do the visits anymore.'" He told SSW Gomez that "he wanted it noted for Court that he does not want to see his mother, does not want any contact with her and does not want anything to do with court anymore."
J. Mother's Status
Mother continued to refuse to sign releases for information about her medical records and hospital stay, despite repeated requests from SSW Gomez. She continued with therapy by virtual sessions.
VI. Procedural History: January 2020 Through March 2022
This section recounts the procedural history from January 2020 through March 2022, which is roughly the same time period covered in the preceding section.
A. Trial Begins on Mother's Section 388 Removal Petitions, Father's Move-away Petition, and the Section 364 Review
Trial on Mother's section 388 removal petitions, Father's move-away petition, the section 364 review, and other issues identified in the juvenile court's status conference order began as scheduled on January 6, 2020 and was continued eight times from January 13 through March 10, 2020. SSW Nicholson, SSW Gomez, and SSW Ovieda and Father testified. The court admitted into evidence the following SSA reports: (1) Status Review Report (5/22/2019), (2) Addendum Report No. 1 (6/24/2019), (3) Addendum Report No. 2 (7/25/2019), (4) Addendum Report No. 3 (7/31/2019). March 10, 2020 was the last day on which testimony was taken.
On January 7, 2020, Mother's counsel moved for a mistrial on the ground the court was "prematurely judging" what he had to say. The court denied the motion. On February 20, Mother's counsel moved again for a mistrial and announced he would file a motion to recuse Judge Hatchimonji on the ground he was "personally prejudiced in this case." The court denied the motion for a mistrial and invited counsel to file the appropriate motion for recusal. On March 10, Mother's counsel stated he intended to move for mistrial once again because the court would not permit him to question Father on his financial condition.
On February 25, 2020, Mother filed a motion to disqualify Judge Hatchimonji for actual bias. The court suspended proceedings. On March 5, 2020 the court ordered proceedings to go forward in accordance with Code of Civil Procedure section 170.4, subdivision (c)(1). On June 10, 2020, Judge Samantha Jessner issued a seven-page order denying Mother's motion to disqualify Judge Hatchimonji.
On February 28, 2020, SSA filed an ex parte application to inform the court of Father's threatening behavior at court on February 27, 2020 during the social worker's monthly compliance contact with H.M. When SSW Gomez asked how H.M. was able to get his cystic fibrosis treatments while living in a Wal-Mart parking lot, Father interjected that he was able to receive treatments in the recreational vehicle that Stepmother had bought for them. Father then leaned in close to SSW Gomez and in a threatening tone said, "[d]on't you ever question me about my son's treatments." Father yelled at SSW Gomez to look at him, asked if he looked like he was "playing" or was afraid of SSW Gomez or the court, and repeated not to ever question him about H.M.'s treatments.
B. Trial Continuances to June 2021 Due to the COVID-19 Pandemic, Withdrawals and Substitution of Counsel, and Illness of Counsel
Starting on March 17, 2020, the court was closed except for limited business pursuant to the Chief Justice's order and the Orange County Superior Court presiding judge's implementation order regarding the COVID-19 pandemic. The juvenile court vacated the trial date of April 23, 2020 based on Orange County Juvenile Court Amended General Order No. 5, which required all dependency matters calendared between March 30 and April 24, 2020 to be continued.
On May 22, 2020, the court set a trial readiness conference for July 7, and scheduled trial to resume in July 2020. On June 26, the court issued trial management orders for the resumption of the trial. Those orders limited any further testimony by Father to two hours of direct and redirect examination and three hours of cross- examination. The trial readiness conference was continued by stipulation of counsel to July 24. On that date the court set trial to resume on August 10.
On the scheduled trial date of August 10, 2020, the court received a request from Father's court-appointed counsel to be relieved due to a conflict. The juvenile court presiding judge granted the request and new counsel (Jhanelle Chilleen) was appointed to represent Father. At the trial setting conference on October 26, 2020, Chilleen moved to be relieved as Father's appointed counsel. On November 3, the presiding juvenile court judge granted Chilleen's motion, and new counsel (Landon Villavaso) was appointed to represent Father.
The trial setting had been rescheduled for December 14, 2020 but was continued to January 11, 2021 because Mother's counsel had been hospitalized with COVID-19 and pneumonia. On January 11, 2021, Mother's counsel filed a request to withdraw. The presiding juvenile court judge granted the request and the Orange County Public Defender's Office was appointed to represent Mother. The trial setting conference was continued to March 15 in order for Mother's new counsel to have time to complete his review of the case file, and was continued again at SSA's request to April 16.
At the trial setting conference on April 16, 2021 Mother's counsel suggested that trial resume on May 17. During the proceedings, Father interrupted, accused minor's counsel of not telling the truth, and yelled at the judge. The court told Father it was not going to tolerate his interruptions "just because he believes that yelling at me is going to make me do something faster, quicker, or in his favor." The court asked Father's counsel to emphasize to Father that the court was not going to tolerate inappropriate conduct which, if repeated, would lead the court to consider "other remedies." The court continued the trial setting conference to May 10, 2021.
On May 10, 2021, the court set the trial to resume on June 16, 2021. The court authorized Father to enroll H.M. in school in Nevada and declined to make any further orders regarding visitation with Mother "because, for disputed reasons, compliance with the orders seemed to have been spotty at best."
C. Father's Motion For Mistrial
In June 2021, Father's counsel notified the court of Father's intent to file a motion for mistrial. The court vacated the trial date of June 16 and set a hearing on the motion for June 23, 2021. In the motion for mistrial Father argued "delays in proceedings caused by global health conditions, illness of counsel, and the addition or substitution of new counsel for both [M]other and [F]ather. [¶] . . . make it difficult for the trial to reconvene without irreparably damaging the father's chances of receiving a fair trial." Mother filed opposition to Father's mistrial motion. On June 23, the juvenile court denied the motion.
D. Trial Continuances to November 2021
In August 2021, the presiding juvenile court judge granted a motion by Father's counsel to be relieved due to a conflict. New counsel (Manfredo Lespier) was appointed to represent Father. The court vacated the trial date and scheduled a trialsetting conference for August 25. At the trial-setting conference on August 25, Father's counsel announced he had not had contact with Father. The court set a further status conference for September 8, 2021, which was later continued to November 8.
On November 8, 2021, Father's counsel announced he would not be prepared to try this case until the end of April 2022 due to the size of the case, the amount of preparation needed, and his availability. After hearing arguments from counsel, the court stated it was considering declaring a mistrial and starting trial over again as a means of expediting the matter.
E. Reconsideration of Father's Motion for Mistrial and Trial Continuances to February 2022
On November 18, 2021, the court issued an order notifying the parties it would conduct a hearing on December 1 on reconsideration of the denial of Father's motion for a mistrial. The basis for reconsideration was "the protracted passage of time since the trial was last in session and the evolving circumstances of the case since that time, as well as the substitution of counsel for [M]other and [F]ather."
Also on November 18, 2021, Father's counsel filed a motion to be relieved as counsel. On December 6, the presiding juvenile court justice granted counsel's motion to be relieved, and new counsel (Brian Baron) was appointed to represent Father.
The court's motion for reconsideration was not heard on December 1 because, as revealed at a status conference on December 10, 2021, the notice of the court's motion had not been served on counsel. The status conference was continued to January 13, 2022, which later was continued to January 26 because Father's counsel was ill. On January 26, 2022, the juvenile court granted, over Mother's objection, Father's request to continue the status conference to March 9. The court issued a memorandum identifying the matters to be addressed at the status conference. Those matters included reconsideration of Father's motion for mistrial.
On February 25, 2022, Father's counsel filed a motion to appoint new counsel because Father had asked to terminate counsel's services. This motion must have been denied because counsel represented Father during the retrial.
F. Mother's Second Section 388 Petition to Remove H.M. From Father's Custody
On March 4, 2022, Mother filed another section 388 petition requesting that the court remove H.M. from Father's custody and place H.M. with her, or, in the alternative, with the maternal grandparents (Mother's second section 388 removal petition). Four days later, Father filed a section 388 petition requesting the court to terminate dependency proceedings and "exit the case" to family law court, or, in the alternative, to clarify that the current placement of H.M. with Father in Nevada remained pending completion of the current hearing (Father's section 388 petition to terminate dependency jurisdiction).
VII. THE JUVENILE COURT DECLARES A MISTRIAL
The juvenile court conducted a hearing on its motion for reconsideration, as scheduled, on March 9, 2022. After hearing argument from counsel, the trial court declared a mistrial as to all pending matters.
The juvenile court gave these reasons for declaring a mistrial: "First off, [Emily L.] makes it clear that past conduct is probative of current conditions. And so what has occurred in the past, in my view, is relevant as to the [section] 364 review issues and the . . . what appears to be many of the issues raised by past and current JV-180[']s that have been filed with the court. [¶] Having said that, one of the matters that remain[s] to be litigated is Mother's second amended motion for citation for contempt as to Father's failure to comply with court orders. That motion delineates specific instances of alleged contempt by Father. And certainly, to that extent, his conduct, or the conduct in the past and the posture of the case in the past is going to be relevant for the specific determination of that motion for contempt as it's currently postured. [¶] Furthermore, it seems to me that conduct by Father subsequent to original filing of that motion is potentially probative on the issues of intent when viewing Father's conduct in determining that contempt citation, which is a long way of saying . . . it seems to me what has occurred in the past is going to be relevant for multiple purposes. [¶] What is certainly happening at this current time is relevant to the outstanding issues to be resolved in this case. While we did have testimony in the past, it was with a brand-new set of lawyers. It was two years ago when that happened. Memories, including this court's memory, has faded as a result of the passage of time and the relevance of what has occurred in the past changes some issues. [¶] In other words, what happened in the past when we did it happened to be current circumstances. Now, what we did two years ago is the past, and to that extent, the past is probative because it casts light on the current conditions. So its probative value changes because of the passage of time, which is my way of alluding to that notion of once the river passes by, you can't jump back into place. [¶] So for that reason, I'm going to declare a mistrial in this case."
In re Emily L. (2021) 73 Cal.App.5th 1.
"No man ever steps in the same river twice, for it is not the same river and he is not the same man." (Heraclitus, a Greek philosopher, 540-475 B.C.)
The court identified the matters and issues to be set for a retrial as: (1) the contested six-month review hearing under section 364; (2) Mother's first section 388 removal petition and Mother's second section 388 removal petition to be heard as one motion; (3) Mother's second amended contempt motion; (4) Father's move-away petition; and (5) Father's section 388 petition to terminate dependency proceedings. As to the two section 388 petitions filed in March 2022, the court "bypass[ed] a prima facie argument" and set them directly for evidentiary hearing. The court set the evidentiary hearing to commence on May 9, 2022.
Mother timely appealed from the order declaring a mistrial.
DISCUSSION
I. APPEALABILITY
A declaration of mistrial in a civil matter is a nonappealable order. (Sullivan v. Delta Air Lines, Inc. (1997) 15 Cal.4th 288, 307, fn. 11; Tierney v. Javaid (2018) 24 Cal.App.5th 99, 109; see 7 Witkin, California Proc. (6th ed. 2021) Trial, § 184.) But "'[j]uvenile dependency law does not abide by the normal prohibition against interlocutory appeals.'" (In re T.G. (2010) 188 Cal.App.4th 687, 692.) Appellate jurisdiction in juvenile dependency matters is created and circumscribed by section 395, subdivision (a)(1) (section 395(a)(1)). "'[T]he general rule in juvenile dependency cases is that all orders (except for an order setting a section 366.26 hearing), starting chronologically with the dispositional order, are appealable without limitation.'" (In re Michael H. (2014) 229 Cal.App.4th 1366, 1373.)
Section 395(a)(1) reads in relevant part: "A judgment in a proceeding under Section 300 may be appealed in the same manner as any final judgment, and any subsequent order may be appealed as an order after judgment." In a juvenile dependency proceeding, the order entered at the dispositional hearing is the final judgment, and any order entered after the dispositional hearing is appealable as an order after judgment. (In re Daniel K. (1998) 61 Cal.App.4th 661, 667.)
The order declaring a mistrial appears to be appealable under section 395(a)(1) because it was made after the dispositional order in this matter and was not made at a hearing at which a section 366.26 hearing was ordered. If the order declaring a mistrial is not directly appealable, we construe Mother's appeal from the declaration of mistrial as an appeal from the juvenile court's August 10, 2022 order denying Mother's section 388 removal petitions and terminating dependency jurisdiction, which is an appealable order under section 395(a)(1). (In re K.C. (2011) 52 Cal.4th 231, 235-236; see Dominguez v. Financial Indemnity Co. (2010) 183 Cal.App.4th 388, 391, fn. 1 [appeal from nonappealable order deemed taken from a later-entered final judgment].)
II. MOTHER SUFFERED NO PREJUDICE FROM THE DECLARATION OF MISTRIAL
A. Law Regarding Mistrials
A trial court has the discretion to declare a mistrial whenever "'an error too serious to be corrected has occurred.'" (Velasquez v. Centrome, Inc. (2015) 233 Cal.App.4th 1191, 1214.) Among the recognized grounds for a mistrial are "'any . . . irregularity that either legally or practically prevents . . . either party from having a fair trial.'" (Clemente v. State of California (1985) 40 Cal.3d 202, 217.) "'A trial court should grant a mistrial only when a party's chances of receiving a fair trial have been irreparably damaged.'" (Blumenthal v. Superior Court (2006) 137 Cal.App.4th 672, 679.)
"Whether a particular trial incident has incurably damaged a party's right to a fair trial is by its nature largely a qualitative matter requiring an assessment of the entire trial setting. For this reason, trial courts are vested with wide discretion in ruling on mistrial motions." (Velasquez v. Centrome, Inc., supra, 233 at p. 1214.) "[T]he trial judge, present on the scene, is obviously the best judge of whether any error was so prejudicial to one of the parties as to warrant scrapping the proceedings up to that point." (Blumenthal v. Superior Court, supra, 137 Cal.App.4th at p. 678, italics omitted.)
B. It Is not Reasonably Probable that Mother Would Have Obtained a Better Outcome If the Juvenile Court Had Not Declared a Mistrial
1. Mother Was Able to Reconstruct, or Could Have Reconstructed Her Case-in-Chief
We need not address whether the juvenile court erred by declaring a mistrial because it is apparent from the records in these two appeals that the mistrial did not cause Mother to suffer any prejudice. The California Constitution prohibits a court from setting aside a judgment unless the error has resulted in a "miscarriage of justice." (Cal. Const., art. VI, § 13.) That language permits reversal only if "the reviewing court finds it reasonably probable 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.) In other words, Mother must demonstrate it is "reasonably probable that a result more favorable to the appealing party [Mother] would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836; see In re Celine R., supra, at p. 60 [Watson standard of prejudice applies in juvenile dependency cases].)
Mother argues she suffered prejudice because, by declaring a mistrial, the juvenile court "threw out" testimony that was part of her case-in-chief. As appellate relief, Mother requests reversal of the declaration of mistrial and remand for "the juvenile court to reconsider its rulings after retrial in light of the testimony presented in January, February, and March 2020." (Footnote omitted.) But during the retrial, Mother had the opportunity to, and for the most part did, recreate her case-in-chief. During the first trial, Father, SSW Nicholson, SSW Gomez, and SSW Ovieda, testified. During the retrial, H.M., Mother, SSW Gomez, SSW Salzle, and Stepmother testified. Nothing in the record suggests Mother would not have been able to call SSW Nicholson and SSW Ovieda to testify at the retrial if she wanted them to, and, in any case, their testimony largely repeated the contents of dozens of SSA reports received into evidence at both trials. Whether or not the juvenile court declared a mistrial, trial would have had to be reopened for Mother, H.M., Stepmother, and SSW Salzle to testify, and for SSW Gomez to resume his testimony in order to bring it up to date.
Father, as predicted, did invoke the Fifth Amendment at retrial, but the juvenile court received into evidence the transcript of his prior testimony and considered that testimony "as to all of the issues before the court."
When the juvenile court made its ruling in August 2022, it had before it all of the testimony and other evidence, or their equivalents, from the first trial. Thus, it is not reasonably probable the juvenile court would have reached a result more favorable to Mother if it had not declared a mistrial.
2. Declaration of Mistrial Did Not Impair Mother's Ability to Prove Contempt
Mother argues the declaration of mistrial permitted Father to invoke his Fifth Amendment right against self-incrimination which "irreparably prejudiced Mother's ability to prove contempt and to use the testimony presented in 2020 in proving what would be in H.M.'s best interest." For four reasons, we conclude it is not reasonably probable the juvenile court would have reached a result more favorable to Mother on her second amended contempt motion if the court had not declared a mistrial.
First, as of March 9, 2020, the last day on which testimony was taken in the first trial, Father had nearly finished testifying, so much so that the juvenile court later put strict time limits on any future questioning of him. Father already had been questioned at length on issues related to the contempt charges. Mother does not explain how more testimony from Father was necessary for her to prove her second amended contempt motion.
Second, Mother's second amended contempt motion was filed on August 12, 2019 and was based on allegations of Father's conduct occurring before that date. Father's testimony about his conduct during the period between March 9, 2020 and June 2022, when Father invoked his Fifth Amendment rights, therefore would not have been relevant to whether Father was guilty of contempt.
Third, as mentioned, the transcript of Father's testimony was received into evidence during retrial and considered by the juvenile court. In the statement of decision, the court described Father as "a completely disagreeable person" and "lacking in any credibility." In the juvenile court's words, "Father has been and is obstructionist, obnoxious and obdurate, and certainly contemptuous of the Court in attitude." The court found that Father bore "a measure of responsibility" for creating H.M.'s negative emotions and attitude toward Mother and that Father had taken actions to "frustrate, manipulate, delay and defeat the Court's orders intended to repair [H.M.]'s relationship with Mother." More testimony from Father could not have made the juvenile court's assessment of his credibility and character any more negative.
Finally, the court denied Mother's second amended contempt motion for legal reasons that were independent of Father's actual or potential testimony. Citing In re Nolan W. (2009) 45 Cal.4th 1217, the juvenile court concluded it did not have authority to punish Father for his contemptuous conduct because a parent cannot be punished solely for failure to satisfy aspects of a case reunification plan. The court went through Mother's second amended contempt motion count by count and concluded the orders claimed to have been violated by Father either did not direct him to do a particular act or were ambiguous. In her appeal from the August 10, 2022 order, Mother does not challenge those conclusions or the court's denial of her second amended contempt motion.
We note too that during the course of the first trial Mother twice moved for a mistrial and once indicated an intent to bring a third. By having brought her own motions for mistrial, Mother undermined the strength and credibility of her claim of prejudicial error. The effect of granting either of Mother's motions for a mistrial would have been to strike all testimony up to the point the mistrial was declared and to set a retrial at which Mother would be required to recreate her case-in-chief and Father would be able to invoke the Fifth Amendment. That is the very prejudice which she now claims to have suffered as a result of the declaration of mistrial.
III. SSA'S Motion to Dismiss the Appeal
After filing the respondent's brief, SSA filed a motion to dismiss the appeal as moot. SSA argued the appeal is moot because the retrial had been held and Mother had been able to or had the opportunity to recreate her case-in-chief. Mother did not file opposition to the motion to dismiss.
"'An appeal becomes moot when, through no fault of the respondent, the occurrence of an event renders it impossible for the appellate court to grant the appellant effective relief.'" (In re Anna S. (2010) 180 Cal.App.4th 1489, 1498.) The difference between lack of prejudice and mootness might be nothing more than looking at the same object from different angles. Reversal for lack of prejudice yields the same result as dismissal for mootness-the declaration of mistrial stands-albeit by different means. Granting the motion to dismiss would not save the parties time and expense inasmuch as SSA filed the motion after it had filed its respondent's brief, Mother did not file a reply brief, and the parties waived oral argument in this appeal.
In the present case it appears we cannot grant Mother any effective relief. But from our angle, we see the situation here as lack of prejudice rather than mootness and therefore deny SSA's motion to dismiss the appeal.
DISPOSITION
The order declaring a mistrial is affirmed.
WE CONCUR: O'LEARY, P. J. DELANEY, J.