Opinion
G061419
01-03-2023
In re A.A. et al., Persons Coming Under the Juvenile Court Law. v. F.K., Defendant and Appellant; ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, M.A., Defendant and Respondent.
Pamela Rae Tripp, under appointment by the Court of Appeal, for Defendant and Appellant F.K. Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent. Jack A. Love, under appointment by the Court of Appeal, for Defendant and Respondent M.A.
NOT TO BE PUBLISHED
Appeal from orders of the Superior Court of Orange County Super. Ct. Nos. 21DP0388, 21DP0389 &21DP0390, Daphne Grace Sykes, Judge. Reversed.
Pamela Rae Tripp, under appointment by the Court of Appeal, for Defendant and Appellant F.K.
Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent.
Jack A. Love, under appointment by the Court of Appeal, for Defendant and Respondent M.A.
OPINION
O'LEARY, P. J.
F.K. (Mother) appeals the juvenile court's orders extending jurisdiction for six months and granting M.A. (Father) conjoint counseling. Mother argues the court erred by making these orders. We agree with Mother the court erred by extending jurisdiction and reverse the orders.
FACTS
I. Prior Appeal
A complete recitation of the facts from our prior nonpublished opinion In re A.A. et al. (Apr. 28, 2022, G060760) (A.A.), is unnecessary. Suffice it to say, in April 2021, Father's three children, 16-year-old daughter A.A., 14-year-old son A.R.A., and 12-year-old daughter S.A. were removed from Father's custody due to allegations of general neglect. Mother retained custody.
The detention report stated that in March 2021, Father hit Mother on the head three or four times with a steel cup. Father was arrested, and Mother was issued an emergency protective order. Father violated the protective order on April 7 and was arrested. The report stated Mother reported Father hits A.A. and S.A. with his open hand and closed fist on the face and body. Father also body shames his daughters, A.A. and S.A. A.A. said Father would "'beat'" her with a closed fist, open hand, or wrists. S.A. said Father was always upset and punched her with a closed or open hand and hit her on the head with his wrist. A.R.A. confirmed Father hits A.A. and S.A. regularly. Father denied hitting Mother or his children.
The Orange County Social Services Agency (SSA) filed petitions alleging A.A., A.R.A., and S.A. were children as described in Welfare and Institutions Code section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), and (j) (abuse of sibling [A.R.A. only]).
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
On Mother's request, the court issued a restraining order against Father. Father was prohibited from contacting Mother and the children in any way and was ordered to stay 300 yards away from them.
At a combined hearing on jurisdiction, disposition, and a temporary restraining order, the juvenile court admitted the reports into evidence. Father, Mother, and social workers testified.
The court sustained the petitions as to all three children and declared them dependent children. The court found reasonable efforts had been made to prevent or eliminate the need for removal of the children from Father. The court concluded there was clear and convincing evidence that to vest custody with Father would be detrimental to the children and to vest custody with Mother was required to serve the children's best interest (§ 361, subd. (c)(1)). The court opined it did not have enough information to determine what would help the parents and ordered Evidence Code section 730 evaluations for both of them.
The court indicated it needed to address visitation but first wanted the children's therapists' input. The court indicated the children could not simply "say[] no" to visitation but "we have to give them a little space at this time." The court stated the following: "So the initial visitation would be in the form of conjoint therapy, once the therapists for the kids have given their input on that."
The court ordered the temporary restraining order to become permanent and expire in three years. The restraining order provided for monitored visitation between Father and the children "to be determined upon input of therapist through SSA only." In the previous appeal, we rejected Father's arguments the juvenile court erred by denying him visitation and the court erred by delegating decision-making authority concerning visitation to the children and their therapists. (A.A., supra, G060760.) The court ordered a case-plan review for November 17, 2021, and a six-month review hearing for March 14, 2022.
II. This Appeal
In the interim review report prepared for the November 17, 2021, hearing, the social worker reported the children remained with Mother, who had completed parent education and was providing them a safe and stable household. The social worker detailed each child's participation in therapy and reported each child individually said they did not want contact with Father. She noted A.A. had only completed five therapy sessions and had not made progress. The social worker said Father had completed his case plan services and wanted visitation with his children. SSA recommended scheduling another case plan review. At the hearing, the juvenile court left all prior orders in effect and continued the matter to December 1, 2021.
In the December 1, 2021, interim review report, the social worker reported on Mother's and Father's Evidence Code section 730 evaluation reports. The evaluator recommended Mother would benefit from improving her problem-solving skills and addressing her history of domestic violence. The evaluator recommended Father participate in psychiatric treatment because he was "'minimally aware'" of his demandingness on Mother and the children. The social worker reported Father wanted visitation with his children and he did not understand why they did not want to see him. The social worker stated A.R.A. and S.A. were in therapy and a therapy referral was submitted for A.A. At the continued hearing, the juvenile court ordered Father could write the children letters. The six-month review hearing was scheduled for March 14, 2022.
On February 15, 2022, Father filed a section 388 petition requesting visitation, or alternatively, conjoint counseling. Father asserted A.A. did not have a therapist thus "rendering the visitation order impossible to realize." At a progress review hearing the following week, the juvenile court calendared Father's section 388 petition for March 14, 2022.
In the status review report for the March 14, 2022, hearing, the social worker reported Mother was protective of her children and "they feel 'much better' in their environment." Mother provided a safe and stable environment for the children and met their needs. Mother and Father were compliant with their case plan services. The social worker detailed each child's participation in therapy-A.A. was inconsistent in therapy; A.R.A. completed his therapy though he was not engaged and not ready to visit Father; and S.A. was inconsistent in therapy, not engaged, and not ready to visit Father. The social worker said Father wanted visitation, but the children were not ready. SSA recommended continued supervision to ensure they were not at risk of harm, their needs were met, and to continue therapy to participate in conjoint therapy with Father.
In an addendum report, the social worker reported the children do not want to speak with Father. She added A.A. and A.R.A. did not read Father's letter, and S.A. read the letter but "became visibly upset" and said Father was "'[i]nsincere.'"
At a hearing, the juvenile court continued the six-month review hearing and Father's section 388 petition to April 18, 2022. Mother requested a contested section 364 hearing because she wanted the case closed.
In an April 2022 addendum report, SSA recommended terminating dependency proceedings. The social worker stated Mother provided the children with a "safe and stable home environment." She added Mother met the children's medical, dental, psychological, and educational needs. The social worker stated Mother completed her case plan services, including parent education and individual counseling. The social worker said the children continued to refuse any contact with Father, believing they were much better off without seeing or speaking with him. She noted there was an active restraining order in place protecting the mother and children from Father. The juvenile court continued the six-month review hearing and Father's section 388 petition to April 25, 2022, and then May 23, 2022.
In an addendum report, the social worker reported that Mother explained her personal empowerment services taught her to "overcome her feelings of being controlled by her husband and the years of abuse she ha[d] suffered." Mother did not want to communicate with Father and would seek a divorce when dependency proceedings closed. The social worker reported the children do not want contact with Father. A.A. does not feel safe around Father, A.R.A.'s life is better without Father home, and S.A. feels Father only causes problems.
On May 23, 2022, the juvenile court conducted a hearing on Father's section 388 motion and contested six-month review (§ 364). Father's counsel argued the juvenile court should not terminate jurisdiction. Counsel stated his children did not participate in sufficient therapy to allow Father to obtain visitation and he had not seen them in over one year. Counsel requested the court order conjoint counseling. Counsel conceded, "the children do appear to be safe in . . . Mother's home."
Mother's counsel requested the court terminate jurisdiction because Mother and the children completed their services and there was no justification for keeping the case open. The children's counsel agreed the court should terminate jurisdiction, noting that even Father's counsel admitted the children were safe with Mother. SSA's counsel requested the court terminate jurisdiction because there was no evidence the conditions existed that justified the court in maintaining jurisdiction. Counsel said, "[SSA] [did] not have concerns about the children with . . . Mother." Pursuant to the court's request, Father's counsel and the children's counsel detailed how much therapy they completed. We provide the juvenile court's ruling in its entirety.
On appeal, SSA filed a short letter brief stating it agreed with Mother and the children below and would not oppose Mother's appeal.
"Father has filed a motion under section 388 for this court to modify its previous ruling. The court must find by clear and convincing evidence that the proposed change which is either visitation or conjoint counseling is in the best interest of the child or of the children in this case. [¶] The court has read and considered the moving papers, the relevant reports, the recommendations of [SSA] contained therein, the arguments of counsel, and the court appreciates the relative positions of the parties as expressed through their counsel, in particular the opinions of the children. [¶] On December 6[], 2021, the court conditioned Father's visits with his children upon the therapist[s'] determination of -- for their appropriateness. It is undisputed that the children went to their -- have gone to their own therapists for various numbers of sessions, several sessions. It's undisputed that the children, teenagers here by the way, remain resolute in their desire not to have any contact with . . . Father. It's also undisputed that . . . no therapist has recommended these visits. [¶] Father had an expectation that he would have an opportunity to see his children if he did certain things. Father's expectation, however while understandable from his point of view, does not inform this court's decision. It has been established that Father abused and traumatized the members of his household. The household divided. The children appropriately went one way for their safety; Father went another. [¶] There were orders that each member address the issue individually, and that did occur although it's undisputed whether Father's -- excuse me -- it is disputed whether Father's therapy has any effect, and we didn't go over that. Nevertheless, we are more than a year later, and Father has abided with the restraining order of no contact between him and his children. Notably, there has also been no safe therapeutic form [sic] for these children to discuss the significant events of their past with . . . Father, the source of the abuse, under the direction and guidance of an experience therapist. This court therefore concludes that this is the missing piece that needs to be addressed for the long-term benefit of the children. As such, the [section] 388 motion for conjoint therapy solely, not for visitation, but for conjoint therapy is granted. [¶] The conjoint therapy sessions shall occur in beginning in the summer months. By its order, the court is not suggesting any particular outcome between Father and [the] children. The court is rather declining to determine -- to terminate dependency at this time, and the court is further finding that notwithstanding family maintenance with . . . Mother, that as to . . . Father, the circumstances still exist and would continue to exist if supervision is withdrawn and therefore, the problem with Father's abuse relative to his children must be addressed directly." The court granted Father's section 388 petition, declined to terminate jurisdiction, and set the matter for a six-month review hearing on November 21, 2022.
That matter has since been continued a couple of times. The six-month review hearing is scheduled for January 18, 2023.
DISCUSSION
In re Aurora P. (2015) 241 Cal.App.4th 1142 (Aurora P.), is instructive. In that case, the court stated the following:
"After the juvenile court finds a child is a person described in section 300, it must 'hear evidence on the question of the proper disposition to be made of the child.' [Citation.] In appropriate circumstances, the court may declare the child a dependent, and 'without removing the child from his or her home, order family maintenance services to ameliorate the conditions that made the child subject to the court's jurisdiction.' [Citation.] Once a child has been declared a dependent, the juvenile court must review the status of the child every six months. [Citation.] 'The applicable standards at the sixmonth review hearing differ depending on the child's placement.' [Citation.] Section 364 provides the standard when 'a child under the supervision of the juvenile court . . . is not removed from the physical custody of his or her parent or guardian.' [Citations.]
"At the section 364 review hearing, 'the court is not concerned with reunification, but in determining "whether the dependency should be terminated or whether further supervision is necessary." [Citations.]' [Citations.] The juvenile court makes this determination 'based on the totality of the evidence before it.' [Citation.] Part of the evidence the juvenile court must consider is the supplemental report of the social worker [citation], who must 'make a recommendation regarding the necessity of continued supervision.' [Citation.]
"Section 364[, subdivision] (c) establishes a 'statutory presumption in favor of terminating jurisdiction and returning the children to the parents' care without court supervision.' [Citation.] Under the statute, the juvenile court 'shall terminate its jurisdiction unless the social worker or his or her department establishes by a preponderance of evidence that the conditions still exist which would justify initial assumption of jurisdiction under [s]ection 300, or that those conditions are likely to exist if supervision is withdrawn.' [Citation.] While the statute speaks in terms of the social worker or department establishing the basis for the continuation of dependency jurisdiction, the first sentence of section 364[, subdivision] (c) makes clear that the parent, the guardian, or the child may offer evidence on that question. [Citation.] Furthermore, even if the social worker or department recommends termination of dependency jurisdiction, the juvenile court is not bound by that recommendation and may retain jurisdiction 'if there is a preponderance of evidence that the conditions are such to justify that retention.' [Citations.]
"In short, under section 364[, subdivision] (c), the juvenile court must terminate dependency jurisdiction unless either the parent, the guardian, the child, or the social services agency establishes by a preponderance of the evidence that the conditions justifying assumption of jurisdiction exist or will exist if supervision is withdrawn. Thus, in the absence of a contrary showing at the review hearing, termination of dependency jurisdiction will be the 'default result.' [Citation.]" (Aurora P., supra, 241 Cal.App.4th at 1154-1156, fns. omitted.) We review the trial court's order for substantial evidence. (Id. at p. 1156.)
Here, substantial evidence does not support the juvenile court's order declining to terminate jurisdiction. Beginning in November 2021 through April 2022, the numerous SSA reports all established Mother was providing the children with a safe and stable home. Mother completed her case plan services and ensured the children's medical, psychological, dental, and educational needs were met. The children were thriving in Mother's care-each child expressed feeling safe, secure, and calm since Father left. Contrary to the juvenile court's conclusion, there was no evidence that the conditions justifying assumption of jurisdiction exist or will exist if supervision is withdrawn. Indeed, at the hearing, Father's counsel admitted the children were safe with Mother.
Father suggests the juvenile court's order declining to terminate jurisdiction was proper because there was evidence the children's participation in therapy was inconsistent. He also muses it was "interesting" SSA changed its recommendation between March 2022 and April 2022. Neither point is relevant to whether the conditions justifying the court's jurisdiction still exist. The evidence was clear the children were thriving in Mother's care and there was no evidence of physical or emotional abuse with Father removed from the family home.
Father claims Mother does not have standing to challenge the juvenile court's order on his section 388 petition. This argument is frivolous. Mother certainly had standing to challenge the juvenile court's failure to terminate jurisdiction (§ 364). As mentioned earlier, when a child remains in a parent's home under family maintenance, the court should not be concerned with reunification but rather be focused solely on whether dependency should be terminated or if further supervision is necessary. The court appears to have forgotten that section 364 establishes a statutory presumption in favor of terminating jurisdiction when a child has reunified with one parent, who no longer requires court supervision. (Aurora P., supra, 241 Cal.App.4th at p. 1155.) Thus, in this case, the court should have first reviewed the status of the case under section 364 before considering Father's petition. Only if further supervision of Mother was required would the court have jurisdiction to consider the section 388 petition. Termination of dependency would have rendered the petition moot.
We reverse the orders made at the six-month review hearing on May 23, 2022. Although the juvenile court was required to review the status of the children every six months, the court has not held a review hearing since May 23, 2022. A court need not suspend review hearings while an appeal is pending. (In re Natasha A. (1996) 42 Cal.App.4th 28, 38 (Natasha A.).) "It is true that as a general rule, an appeal stays further proceedings in the trial court regarding matters embraced in or affected by the judgment or order appealed from. [Citations.]" (Id. at p. 39; Code Civ. Proc., § 916). However, this general rule has a number of statutory exceptions, and pursuant to Code of Civil Procedure section 917.7, the court had jurisdiction, even while the appeal was pending, to hold a review hearing and "in its discretion, and subject to all statutory perquisites" terminate its jurisdiction. (Natasha A., supra, 42 Cal.App.4th at p. 39.) In other words, the court does not need to wait for issuance of the remittitur to hold the sixmonth review hearing and terminate jurisdiction. We order the court to hold a hearing within 20 days of the filing of this opinion. Given the importance of expediency and the need for finality, we also encourage the parties to stipulate to the immediate issuance of a remittitur. (Cal. Rules of Court, rule 8.272(c)(1).)
DISPOSITION
We reverse the May 23, 2022, orders and remand for the juvenile court to hold a hearing within 20 days of the filing of this opinion.
WE CONCUR: MOORE, J. SANCHEZ, J.