Opinion
A149003 A149729 A150195 A151006
08-22-2018
In re L.N., a Person Coming Under the Juvenile Court Law. SAN FRANCISCO HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. C.M., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City & County Super. Ct. No. JD15-3363)
In this dependency case, the juvenile court ordered that L.N., a boy born in March 2007, be removed from the custody of his mother, C.M. (Mother). The court placed L.N. with his previously noncustodial father, B.N. (Father), and terminated dependency jurisdiction. In taking this approach, the court relied on Welfare and Institutions Code section 361.2, which provides for placement with a noncustodial parent if the court finds, as it did here, that doing so would not be detrimental to the child.
Undesignated statutory references are to the Welfare and Institutions Code.
In consolidated appeals challenging this order and several related ones, Mother does not contend placement with Father would be detrimental to L.N. She argues, however, that (1) the court could not rely on section 361.2 in the circumstances of this case, (2) the court's finding that L.N. fell within its dependency jurisdiction and its decision to remove him from Mother's custody were not supported by substantial evidence, and (3) several of the court's orders were procedurally or otherwise defective.
We find some of the issues raised by Mother to be moot and dismiss the appeals raising those arguments. As to the remaining issues, we find no reversible error and therefore affirm the court's orders.
I. BACKGROUND
A. The Initial Petition and the Detention of L.N.
The San Francisco Human Services Agency (the Agency) filed a dependency petition (§ 300) on behalf of L.N., along with a detention report, on December 2, 2015. The petition alleged in part that Mother used inappropriate physical discipline on L.N. and that he was afraid to go home to Mother. The detention report stated that a family friend, D.C., reported that, on Saturday, November 28, 2015, Mother asked him to pick up L.N. and care for him for the weekend. When D.C. arrived at the home, and while speaking to another person in the home, he heard a loud slap. L.N. told D.C. that Mother had slapped him. The next day (Sunday), L.N.'s face was swollen. L.N. was crying, and he told D.C. he was scared of Mother and did not want to return home.
On Monday, a social worker visited L.N. at school. L.N. stated Mother had slapped him on the face and caused a bruise. The social worker saw a grayish mark underneath L.N.'s right eye, where he said Mother had hit him. L.N. stated he was scared of Mother and did not want to go home. L.N. told the social worker Mother slapped him on the face " 'all the time' "; on one occasion Mother slapped him on the stomach "and it hurt for a long time"; Mother pulled his ears, which "hurt[] a lot"; and Mother " 'takes her anger out' " on him by hitting him. L.N. also stated that Mother yelled at him and called him bad names including " 'A Word, A Hole, F Word, and the S Word' " and that he has headaches because of the yelling.
The detention report stated that D.C., who had cared for L.N. on several occasions over the previous 20 months, reported that L.N. had complained of headaches for the past eight months. L.N. reported that during the week of November 16-20, 2015, Mother did not get out of bed to take him to school and once slapped him in the face when he tried to get her out of bed. L.N. stated he had to make his own food that week and does so most of the time.
The detention report stated that on November 4, 2015, L.N.'s 15-year-old half-sister, H.M., had been detained. H.M. alleged she was raped by Mother's friend, with whom she had been left for the weekend by Mother; Mother did not want H.M. to return to her care. The report outlined several prior referrals for the family, spanning from 2004 to 2015, some alleging neglect, alcohol abuse by Mother, lack of supervision, and physical abuse. The referrals that were investigated were deemed inconclusive or unfounded.
The petition included allegations under section 300, subdivisions (a) (risk of serious physical harm), (b) (failure to protect), (g) (no provision for support) (based on the then-unknown identity and whereabouts of L.N.'s father), and (j) (abuse of sibling) (based on the detention of H.M.).
The court (Hon. Robert M. Foley) ordered L.N. detained. He was placed with D.C.
B. Jurisdiction
Prior to the jurisdiction hearing, the Agency reported it had performed a search for Father but could not locate him.
At the jurisdiction hearing on December 14, 2015, the Agency's counsel stated, "We have a resolution to the jurisdictional portion of the case." The petition would be amended to strike all the existing allegations and to add allegations under section 300, subdivision (b) that (1) Mother has a history of being the victim of physical and sexual abuse and requires mental health assessment and treatment (B-1 count); (2) Mother has a history of excessive alcohol abuse which requires assessment and treatment (B-2 count); and (3) Mother used inappropriate physical discipline on L.N. (B-3 count). Counsel for Mother and counsel for L.N. confirmed these statements reflected their discussions with the Agency's counsel.
Mother confirmed for the court that her attorney had advised her of her "right to a trial, a right against self-incrimination, a right to confront and cross-examine witnesses, and a right to compel the attendance of witnesses and to present [her] own evidence." The court asked: "And do you give up those rights in order to resolve this matter today?" (Italics added.) Mother replied: "I do." Mother also stated her attorney had explained the jurisdictional allegations and the consequences of submitting "to the petition." The court asked Mother's attorney whether Mother would "submit to the petition as noted," and Mother's counsel responded, "Yes, Your Honor, she will." (Italics added.)
The court (Hon. Nancy L. Davis) found Mother had freely and voluntarily waived her rights. The court received the detention report into evidence. The court then stated it was proceeding "per the parties' agreement," struck the allegations in the original petition, found true the allegations in the amended petition, and took jurisdiction, finding L.N. was a person described by section 300, subdivision (b). (Italics added.) Neither Mother nor her counsel objected. The court set a disposition hearing.
C. The Initial Disposition Order
On March 22, 2016, after a contested disposition hearing, the court (Hon. Michael I. Begert) declared L.N. a dependent, concluded his removal from Mother's custody and his current placement were necessary, and ordered that Mother be provided reunification services. The court ordered that Mother have supervised visits and unsupervised telephone contact with L.N. The court denied in part a request by L.N.'s counsel to appoint an educational representative "at this time," but ordered Mother to cooperate with L.N.'s school, "including providing any consent necessary to secure appropriate services or support for" L.N. The matter was set for a six-month review hearing on September 22, 2016.
Mother filed a notice of appeal (initiating appeal No. A148415). The notice stated Mother was challenging the court's March 22, 2016 disposition order and its December 2015 jurisdictional findings.
D. The Appointment of an Educational Representative
At a status review hearing on May 25, 2016, the court (Hon. Susan M. Breall) and counsel again discussed the question of appointing an educational representative to make educational decisions for L.N. Mother's counsel argued Mother had a right to a hearing on the issue, so the court set one for June 15, 2016, and L.N.'s counsel stated she would file a written request for appointment of an educational representative.
On May 31, 2016, L.N.'s counsel filed a written request under section 388 asking the court to modify its March 2016 order and appoint an educational representative. In the request, L.N.'s counsel stated in part that Mother had refused to participate in an individual education plan meeting for L.N., and that L.N. was struggling with both academics and behavior at school. The court (Judge Breall) signed an order on June 1, 2016, setting the hearing on the request for June 15, 2016.
At the June 15 hearing, counsel addressed the court on the question whether it should appoint an educational representative. Mother's counsel argued in part that there had been no change of circumstances since the court's March 22, 2016 order, and that appointment of an educational representative would not be in L.N.'s best interests (see § 388). Mother's counsel then stated, "submitted on that issue." But after the Agency's counsel made some additional comments and stated he was submitting the matter to the court, Mother's counsel stated the hearing that day was only to determine whether a prima facie case had been made for a change in the educational rights order, and that if the court believed there was sufficient evidence to support a change, it should set the matter for a contested hearing. In response, L.N.'s counsel stated, and the court agreed, that a prima facie case had been made at the previous hearing and that the current hearing was "the contested hearing."
After additional colloquy among the court, counsel, the social worker, and Mother (who was permitted to make a lengthy statement), the court found there were changed circumstances in that Mother had failed to cooperate with the effort to obtain an educational assessment and services for L.N. The court also found appointment of an educational representative and a court-appointed special advocate would be in L.N.'s best interest. The court granted the request for appointment of an educational representative.
Mother appealed (initiating appeal No. A149003).
E. The Order Setting Aside the Initial Disposition Order
In July 2016, L.N.'s counsel notified the court she had located Father. The court (Hon. Susan M. Breall) appointed counsel for Father, who resided out of state. On August 4, 2016, the court (Judge Breall) granted Father's request to be designated L.N.'s presumed father, as well as his requests for discovery and for visitation with L.N.
On September 12, 2016, Father filed a motion asking that the court set aside its March 2016 disposition order on the ground the Agency failed to make reasonable efforts to locate him and therefore notice was defective. Father argued Liam's counsel had hired a private investigator who had quickly located him. In an attached declaration, the investigator stated she had found Father's current address and telephone number within 20 minutes, using his name, L.N.'s and Mother's names, and information on L.N.'s birth certificate. Father also argued the Agency had only searched for Father within California despite receiving information that father lived out of state.
At the previously scheduled September 22, 2016 hearing, the court (Judge Breall) continued the six-month review hearing to October 24, 2016, and set a hearing on Father's motion to set aside for the same date (with the October 24 hearing to be held before Judge Begert).
Mother filed an opposition to Father's motion to set aside. She did not dispute Father's contentions about the searches conducted by the Agency and by L.N.'s counsel. Instead, she argued that setting aside the March 2016 disposition order would interfere with her right to pursue her appeal of that order (i.e., appeal No. A148415). She also argued the motion should be denied because L.N. had been out of her custody for six months, she had been participating in services for six months, and Father had been willfully absent from L.N.'s life for nine years. In a supplemental filing, she argued Father had made a general appearance and had thus accepted the court's jurisdiction.
At the October 24, 2016 hearing before Judge Begert, counsel for Father and Mother argued the merits of the motion at length. Father was living in Maryland. In addition to the points raised in the moving papers, counsel argued as to whether Mother had emailed the Agency the number of a Texas child support case involving Father, or L.N.'s social security number, both of which would have assisted the Agency in its search. L.N.'s counsel stated she supported Father's motion and believed the Agency's efforts to locate Father were insufficient.
The Agency's counsel argued Father's counsel should have sought relief by filing a petition under section 388, rather than by filing a motion. Counsel for the Agency also argued the Agency performed the search for Father in good faith, but he did not dispute the factual contentions in Father's moving papers. The Agency's counsel agreed that because Father was now in the case, the court's disposition order should be modified; the Agency's counsel argued, however, that disposition as to Mother should not be disturbed, as Mother already had been heard on the matter. Father's counsel responded that the court should not address disposition "piecemeal" and should vacate the earlier disposition order.
At the end of oral argument, the court granted Father's motion, set aside its March 2016 disposition order (but left in place the December 2015 jurisdictional findings), and set dates in November and December 2016 for a new disposition hearing. L.N. remained in his placement with D.C.
Mother appealed the set-aside order (initiating appeal No. A149729).
F. The Denial of Mother's Section 388 Petitions
1. Visitation
At the March 22, 2016 disposition hearing, the court (Judge Begert) ordered that Mother have supervised visits with L.N. At the May 25, 2016 and June 15, 2016 hearings, the court (Judge Breall) ordered that telephone calls between Mother and L.N. be supervised as well.
On September 22, 2016, Mother filed a section 388 petition asking the court to change the prior visitation orders and to allow her to have unsupervised visits and unsupervised telephone calls with L.N. Among other things, mother argued that she had completed a parenting class and started an outpatient drug treatment program. The court set a hearing on Mother's petition.
On November 28, 2016, after a two-day evidentiary hearing, the court (Judge Breall) found Mother had not shown changed circumstances or that a move to unsupervised visitation would be in L.N.'s best interest. The court expressed concern that Mother had not participated in therapy or random drug testing, had tested positive for alcohol and drugs on some of the occasions when she had tested, and had disparaged L.N.'s caretaker, D.C., during supervised visits. The court denied Mother's section 388 petition.
2. Father's Status as L.N.'s Presumed Father
On November 3, 3016, Mother filed a section 388 petition asking the court to set aside the August 4, 2016 order declaring Father to be L.N.'s presumed father, and to find instead that Father was "only a biological father." Mother's petition stated that since the presumed father finding, "Father has admitted that he was willing to sacrifice his relationship with his son in order not to deal with the mother and had no relationship with [L.N.] for nine years, thus making the Family Code marital presumptions inapplicable." Mother stated the change would be in L.N.'s best interest because he had no relationship with Father. In a supporting brief, Mother presented legal argument and argued that the "new facts" "undercut" the court's presumed father determination. Mother also submitted a declaration stating, among other things, that Father had moved out of the home before L.N. was born; that in 2008 father was behind on child support payments and had let Liam's health insurance lapse; and that Mother told Father she was living in San Francisco.
On November 3, 2016, the court (Judge Breall) denied Mother's section 388 petition without a hearing on the ground it did not state new evidence or a change of circumstances.
Mother filed a notice of appeal challenging the denials of her section 388 petitions pertaining to visitation and Father's status as presumed father (initiating appeal No. A150195).
G. The Disposition Retrial and the Final Disposition Orders
On March 30, 2017, after extensive evidentiary hearings over 14 court days, the court (Judge Begert) entered new dispositional orders. The court again declared L.N. a dependent, concluded again that removal of L.N. from Mother's custody was necessary, ordered that L.N. be placed with Father in Maryland, granted Father sole legal and physical custody of L.N., ordered visitation between L.N. and Mother, and terminated dependency jurisdiction. (See §§ 361, subd. (c), 361.2, subds. (a) & (b)(1).)
In finding that placement with Father would not be detrimental to L.N. (see § 361.2, subd. (a)), the court noted Father had been absent from L.N.'s life until very recently. The court noted, however, that Father had a stable home life and professional life, had cooperated with the Agency, and had made efforts to develop a relationship with L.N. during the dependency case. Father had flown to San Francisco for visits with L.N. and to attend court. The court noted there was no evidence Father had a criminal history or a history of child abuse or neglect. Applying section 361.2, subdivision (a) and following the Agency's recommendation, the court ordered that, since Father had requested custody and the placement would not be detrimental, L.N. would reside with Father.
Mother appealed (initiating appeal No. A151006).
H. Appellate Proceedings
As noted, Mother filed five appeals, challenging (1) the March 2016 disposition order (No. A148415), (2) the June 2016 order appointing an educational representative (No. A149003), (3) the October 2016 order setting aside the March 2016 disposition order (No. A149729), (4) the November 2016 orders denying Mother's section 388 petitions (No. A150195), and (5) the March 2017 disposition order (No. A151006).
On March 21, 2017 (while the disposition retrial was still proceeding in the juvenile court), this court, in response to a motion filed by the Agency, dismissed Mother's appeal of the March 2016 disposition order (which also included her challenges to the December 2015 jurisdictional findings) (No. A148415). In our dismissal order, we explained that (1) the parties had informed us the juvenile court had set aside the March 2016 disposition order in October 2016, and (2) the December 2015 jurisdictional findings were not immediately appealable. We thus could not grant effective relief. We stated our dismissal was without prejudice to Mother's ability to appeal any subsequent dispositional order and to raise her challenges to the jurisdictional findings in that appeal (while noting the Agency could present any responses to those challenges, including its argument that Mother had forfeited her right to challenge the jurisdictional findings).
In her appeal of the new disposition order entered on March 30, 2017 (No. A151006), Mother, among other arguments, renews her challenges to the December 2015 jurisdictional findings.
We consolidated the remaining four appeals (Nos. A149003, A149729, A150195, A151006) for decision.
On our own motion, we take judicial notice of the record and briefs filed in the dismissed appeal (No. A148415) (see Evid. Code, §§ 452, subd. (d), 459, subd. (a)), portions of which the parties also have incorporated by reference (see Cal. Rules of Court, rules 8.147(b), 8.200(a)(5)). In appeal No. A151006, we previously granted Mother's requests for judicial notice of certain items filed in the juvenile court or in the other appeals. In appeal No. A149729, we deferred ruling on a similar request and now grant it.
II. DISCUSSION
A. The Removal of L.N. From Mother's Custody
Mother challenges both the court's predicate finding that L.N. was within the court's dependency jurisdiction and its dispositional order removing L.N. from Mother's custody. We reject the claims of error.
1. Jurisdiction
As noted, at the jurisdictional hearing in December 2015, Mother submitted to the amended petition; the juvenile court found true the allegations in the amended petition; and the court found L.N. was a person described by section 300, subdivision (b). In her appeal of the court's March 2017 dispositional order (No. A151006), Mother challenges the underlying jurisdictional findings, contending in part that they are not supported by substantial evidence. (See In re Javier G. (2005) 130 Cal.App.4th 1195, 1199-1200 [dispositional order is appealable judgment; challenges to underlying jurisdictional findings must be raised in appeal of dispositional order].) In response, the Agency argues (1) Mother, by submitting to the petition at the jurisdictional hearing, forfeited her right to challenge the jurisdictional findings, and (2) the court's jurisdictional findings are supported by substantial evidence in any event. We agree with the Agency on both counts.
a. Waiver or Forfeiture
"As a general rule, a party is precluded from urging on appeal any point not raised in the trial court." (In re Richard K. (1994) 25 Cal.App.4th 580, 590 (Richard K.).) Here, Mother expressly agreed to jurisdiction. The Agency's petition recommended that the juvenile court assume jurisdiction over L.N. The Agency apprised the court that the parties had "reached a resolution to the jurisdictional portion of the case" based on specified modifications to the petition. Mother's counsel confirmed that the Agency's counsel's representation reflected the discussions among counsel. And after confirming that her counsel had advised her of her rights, Mother responded affirmatively to the court's question whether she was giving up those rights "to resolve this matter today." (Italics added.) Mother's counsel then responded affirmatively to the court's question whether Mother would "submit to the petition as noted." (Italics added.) The court then stated it was proceeding "per the parties' agreement," struck the allegations in the original petition, found true the allegations in the amended petition, and took jurisdiction, finding L.N. was a person described by section 300, subdivision (b). (Italics added.) Neither Mother nor her counsel objected.
By submitting to jurisdiction without offering any evidence or argument, Mother waived her right to challenge the juvenile court's jurisdiction on appeal. (Richard K., supra, 25 Cal.App.4th at p. 590 [parent's submission on social worker's recommendation waived right to appeal disposition].) Indeed, Mother submitted to jurisdiction to "resolve" the matter and in accordance with "the parties' agreement," by which she acquiesced to jurisdiction in exchange for the Agency's agreement that the allegations in the original petition would be stricken and new allegations under section 300, subdivision (b) would be included in their place. She did so knowingly and voluntarily, after being advised of her rights by her attorney and personally waiving them in court. "By accepting the negotiated settlement—and its benefits—[Mother] implicitly waived [her] right to challenge the true finding." (In re N.M. (2011) 197 Cal.App.4th 159, 167.) This court's decision in In re Isabella F. (2014) 226 Cal.App.4th 128, cited by Mother, is inapposite here. In that case, we declined to find forfeiture, noting the parties there "were not able to reach a negotiated settlement as they were in N.M." (Id. at p. 137.)
Mother's reliance on In re T.V. (2013) 217 Cal.App.4th 126 is also misplaced. T.V. pertained to a parent's submission on particular reports, which merely reflected an agreement that the court may consider the reports as the only evidence on the issue. (Id. at p. 136.) In that instance, the parent "acquiesces as to the state of the evidence yet preserves the right to challenge it as insufficient to support a particular legal conclusion." (Richard K., supra, 25 Cal.App.4th at p. 589.) Where the parent submits not on a report, but on the social worker's recommendation, the parent acquiesces in the "social worker's recommended findings and orders," which "dispels any challenge to and, in essence, endorses the court's issuance of the recommended findings and orders." (Ibid.)
Mother argues that her agreement to the juvenile court's jurisdiction is nonetheless invalid because the judge did not comply with the procedure set forth in rule 5.682 of the California Rules of Court . Under that rule, the court must advise the parent of the rights to a hearing on the issues raised by the petition, to assert any privilege against self-incrimination, to confront and to cross-examine witnesses, and to compel the attendance of witnesses. (Rules 5.682(a), 5.534(g).) The rule also required the court to inquire whether Mother admitted or denied the allegations of the petition, and to state on the record that Mother had not admitted the allegations. (Rule 5.682(b).) Finally, the version of the rule in effect at the time of the December 2015 jurisdiction hearing required that the petition be read to those present. (Former rule 5.682(a), repealed eff. Jan. 1, 2017.)
All rule references are to the California Rules of Court.
Here, the court accepted Mother's personal representation that her counsel had advised her of her rights, rather than advising Mother of those rights personally. The court also inquired of Mother as to whether her counsel had discussed with her the consequences of admission or submission, and Mother confirmed her counsel had done so. Mother personally and expressly waived her rights; the court found the waiver was voluntary; and Mother does not challenge that finding on appeal. (See rule 5.682(e).) Counsel for the Agency read the new allegations of the amended petition on the record. To the extent these procedures followed by the court constitute error, it was harmless under the circumstances. (See In re Monique T. (1992) 2 Cal.App.4th 1372, 1377-1379 [where juvenile court did not explain mother's rights as required or obtain her personal waiver, it was error to accept a waiver based only on counsel's representations; however, the error was harmless because mother was represented by counsel and never claimed she was pressured to waive her rights, and the evidence overwhelmingly supported the finding that mother was unable to care for her daughter]; accord In re S.N. (2016) 2 Cal.App.5th 665, 671-672.)
In any event, we proceed to the merits of Mother's jurisdictional argument.
b. Sufficiency of the Evidence to Support Jurisdiction
The court took jurisdiction over L.N. pursuant to section 300, subdivision (b). That provision specifies in part that a juvenile court may take jurisdiction when "[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child . . . or by the willful or negligent failure of the parent or guardian to provide the child with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular care for the child due to the parent's or guardian's mental illness, developmental disability, or substance abuse." (§ 300, subd. (b)(1).)
"The standard of review in juvenile dependency cases is the same as in other appeals on grounds of insufficiency of the evidence. We review the record to determine whether there is any substantial evidence, contradicted or not, which supports the court's conclusions. 'All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible.' " (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1649.) Each individual allegation in a petition need not independently support jurisdiction, which may be based on a parent's "pattern of behavior." (Id. at p. 1650.)
The detention report submitted to the juvenile court included substantial evidence supporting a conclusion that Mother engaged in a pattern of abuse that placed L.N. at substantial risk of serious physical harm. L.N.'s face was swollen and later bruised where Mother struck him, and he stated Mother hit him " 'all the time.' " L.N. stated he was afraid of Mother and did not want to go home. Mother once slapped L.N. on the stomach "and it hurt for a long time." She pulled his ears, which "hurt[] a lot." She yelled and cursed at him, and he had headaches because of her yelling. The report states that, for one week in November 2015, Mother would not get out of bed to take L.N. to school and slapped him in the face when he tried to get her out of bed.
There is no merit in Mother's appellate argument that the court was required to view this pattern of conduct as reasonable parental discipline. (See In re D.M. (2015) 242 Cal.App.4th 634, 640-641 [application of parental right to discipline turns on whether (1) parent's conduct was genuinely disciplinary, (2) the punishment was necessary, and (3) the amount of punishment was reasonable or excessive].) Mother presented no evidence or argument in support of such a finding. As discussed, the evidence that was submitted supports the contrary inference that Mother's pattern of conduct placed L.N. at substantial risk of serious physical harm.
Mother contends the court did not read the detention report. The record does not support this argument. The court admitted the report into evidence. The court also stated in its minute order that it found a factual basis for its findings. The court's failure to state expressly that it "read" and "considered" the report (and to check a box to that effect on the minute order) does not persuade us the court's decision is not based on substantial evidence.
2. Disposition: Sufficiency of the Evidence to Support Removal
To order removal from parental custody at a dispositional hearing, the court must find by clear and convincing evidence that one of the circumstances specified in section 361, subdivision (c) applies. At the conclusion of the disposition retrial in March 2017, the court found removal of L.N. from Mother's custody was necessary because (1) there would be a "substantial danger" to his "physical health, safety, protection, or physical or emotional well-being" if he were returned home, and there were "no reasonable means" to protect him other than removal (§ 361, subd. (c)(1)), and (2) he was "suffering severe emotional damage, as indicated by extreme anxiety, depression, withdrawal, or untoward aggressive behavior toward himself . . . or others," and there were "no reasonable means" to protect him other than removal (§ 361, subd. (c)(3)). On review of these findings, we apply the substantial evidence test, bearing in mind the heightened burden of proof. (In re Kristin H., supra, 46 Cal.App.4th at p. 1654.)
At the conclusion of the initial disposition trial in March 2016, the court found removal was necessary on the first of these grounds (i.e., L.N. would face a "substantial danger" to his well-being if he were returned home, and there were "no reasonable means" to protect him other than removal) (§ 361, subd. (c)(1)).
The record contains substantial evidence supporting the court's removal order. The Agency reports and social worker testimony admitted at the disposition retrial provided evidence Mother was physically and emotionally abusive and neglectful when L.N. was in her custody; she had alcohol abuse and mental health problems; and she had not addressed those problems despite the Agency's efforts to provide her with services. Although Mother participated in a parenting class and in family therapy with L.N., she had not participated in individual therapy, and had not been consistent with drug testing. Mother's progress also was impeded by her lack of insight into the reasons for the dependency proceedings. The social worker who authored the report for the disposition retrial testified Mother focused so much on her anger about the case plan requirements that it was very difficult for the social worker to communicate with her. The social worker believed returning L.N. to Mother's care would pose a safety risk to L.N.
L.N.'s individual therapist testified he had a diagnosis of chronic adjustment disorder with depressed mood swings with depression and anxiety. His symptoms included "depressed mood state, heightened anxiety, overwhelming thoughts of worry." He displayed isolating behaviors and sleep disturbances. The court stated it was relying on this testimony in part in ordering L.N.'s removal from Mother's custody.
As to L.N.'s treatment when he was in Mother's custody, L.N.'s caretaker D.C. and the social worker who initially interviewed L.N. at the time of his detention testified about his report Mother had slapped him. The social worker also testified about L.N.'s report that Mother frequently slapped him, took her anger out on him by hitting him, and yelled and cursed at him. Witnesses testified Mother was verbally abusive to L.N. L.N. testified in chambers that Mother hit him when he lived with her, although L.N. believed she had improved.
The evidence before the court, including the evidence of L.N.'s emotional state and Mother's lack of progress in services, supports the finding, by a clear and convincing standard, that removal of L.N. from Mother's custody was necessary under section 361, subdivisions (c)(1) (substantial danger and no reasonable means to protect without removal) and (c)(3) (emotional damage and no reasonable means to protect without removal).
Mother challenges the finding of emotional damage under section 361, subdivision (c)(3), arguing the court did not explain its finding in enough detail, the diagnosis and symptoms described by L.N.'s therapist were not sufficiently severe to support the finding, and the therapist did not testify Mother caused L.N.'s emotional problems. We find no defect in the court's statement of its finding, and we decline to reweigh the testimony provided by the therapist. Mother is correct the therapist testified L.N. faced a number of "stressors," which included separation from Mother, uncertainty about his ultimate placement, and having a new relationship with Father. But the court reasonably could conclude that, in light of the severe emotional difficulties L.N. was experiencing (arising from multiple causes), it was necessary for L.N. not to be placed with Mother, who had abused and neglected him and had not made significant progress in addressing the problems that led to the dependency proceeding.
As to the finding under section 361, subdivision (c)(1) that L.N. faced a substantial danger to his well-being in Mother's care, Mother notes there was evidence L.N. loved Mother, enjoyed his visits with her, and had provided inconsistent reports about whether Mother had physically abused him. Mother also notes there was evidence she participated in some services, including a substance abuse treatment program, a parenting class, and family therapy with L.N. As outlined above, however, other substantial evidence in the record supports the court's finding on this point. We will not reweigh the evidence.
Mother next contends the court's finding that removal was necessary is undercut by the court's order permitting Mother to have future unsupervised visits with L.N. after he is in Father's custody. But the court reasonably could conclude that, while visits would be appropriate, Mother was not ready to care for L.N.
Finally, we reject Mother's argument that the court should have found there were reasonable means to protect L.N. without removal. The evidence Mother had failed to make progress despite the Agency's provision of services supports the court's express finding no reasonable means were available. Any purported defect in the level of detail stated by the court in its findings was forfeited by Mother's failure to object. (See In re G.C. (2013) 216 Cal.App.4th 1391, 1398-1399.)
3. The Exclusion of Evidence Pursuant to the Psychotherapist-Patient Privilege
Mother challenges the juvenile court's ruling at the disposition retrial that communications between L.N. and the therapist who conducted family therapy with L.N. and Mother were inadmissible pursuant to the psychotherapist-patient privilege (Evid. Code, § 1014). The family therapist testified about Mother's progress in therapy, but the court sustained a continuing objection to any questions seeking the content of communications between L.N. and the therapist. The court also admitted reports the family therapist prepared concerning the therapy, with portions redacted that would have disclosed communications between L.N. and the therapist. Mother contends in part that application of the privilege was erroneous because L.N. placed his mental state in issue (see Evid. Code, § 1016).
Any error in application of the Evidence Code provisions governing the psychotherapist-patient privilege provides no basis for reversal unless Mother shows a reasonable probability the outcome of the disposition retrial would have been more favorable to her absent the error. (See In re G.C., supra, 216 Cal.App.4th at p. 1400 [harmless error standard for state law error].) She has not done so. Mother argues the excluded communications likely included statements by L.N. that Mother did not slap him in November 2015, which would have supported an argument by Mother that D.C. and the Agency improperly colluded to remove L.N. from Mother's custody. We do not find this theory to be a substantial one, and we do not find it reasonably likely that, if the court had admitted the additional information about family therapy, it would have reached a different conclusion about whether removal of L.N. from Mother's custody was necessary.
B. The Placement of L.N. With Father
1. The Applicability of Section 361.2
"Section 361.2 establishes the procedures a court must follow for placing a dependent child following removal from the custodial parent pursuant to section 361. [Citation.] When a court orders removal of a minor under section 361, the court first must determine whether there is a parent who wants to assume custody who was not residing with the minor at the time the events that brought the minor within the provisions of section 300 occurred. (§ 361.2, subd. (a).) 'If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child.' (§ 361.2, subd. (a).) The juvenile court must make the detriment finding by clear and convincing evidence." (In re Z.K. (2011) 201 Cal.App.4th 51, 70, italics in original.) "It is not the nonoffending parent's burden to show that [he] is capable of caring for [his] child. Rather, it is the party opposing placement who has the burden to show by clear and convincing evidence that the child will be harmed if the nonoffending parent is given custody." (Ibid.)
Mother contends section 361.2 only applies at the "first remov[al]" of a child from a custodial parent's home, which, for L.N., occurred in March 2016. In Mother's view, since Father had not yet been notified of the dependency proceeding and did not appear at that hearing, section 361.2 could have no further application in this case. Accordingly, in her appeal of the court's final disposition order entered in March 2017 (No. A151006), she argues that the court erred by applying section 361.2 after ordering L.N.'s removal from Mother's custody at the disposition retrial. In addition, in her appeal of the October 2016 set-aside order (No. A149729), Mother suggests that, since section 361.2 would not apply at any disposition hearing other than the initial one, there was no reason to set aside the initial disposition order and set a new disposition trial. We reject Mother's arguments.
Our Supreme Court has held that section 361.2 by its plain language applies only at disposition: "Nothing in this statute suggests that custody must be immediately awarded to a noncustodial parent regardless of when in the dependency process the parent comes forward. Rather, its language suggests that the statute is applicable only at the time the child is first removed from the custodial parent or guardian's home." (In re Zacharia D. (1993) 6 Cal.4th 435, 453; see id. at p. 439.)
Some appellate courts, however, have applied the section 361.2 detriment standard to requests for custody made by a noncustodial parent after the disposition phase of the dependency proceedings. (In re Jonathan P. (2014) 226 Cal.App.4th 1240, 1254; see also Z.K., supra, 201 Cal.App.4th at p. 71 ["issue of a return to parental custody can be raised late in the dependency proceeding . . . by means of a [section 388] petition to change, modify, or set aside a previous order based on a change in circumstances or new evidence"].) (Italics added.) The court in In re Suhey G. (2013) 221 Cal.App.4th 732, 744-745, held that a presumed father who did not receive notice of the dependency proceeding due to the agency's negligence could invoke section 361.2 even though the disposition hearing had already taken place. Relying in part on Z.K. 201 Cal.App.4th 51 and Suhey G., the court in Jonathan P. held section 361.2 may apply after the disposition stage of a dependency case. (Jonathan P., at pp. 1254-1256; see also In re Liam L. (2015) 240 Cal.App.4th 1068, 1084-1086 [even where notice to parent was adequate and § 361.2 does not apply, the standard governing a § 388 petition by a noncustodial parent seeking custody of his or her dependent child postdisposition is similar to the standard under § 361.2; the parent's request for custody "makes a prima facie case of best interests," thus requiring placement with the noncustodial parent unless the party opposing such placement establishes it would be detrimental to the child].)
In light of the above authorities and the showing that Father did not receive proper notice of the initial disposition hearing (which we discuss below), we hold the court properly applied section 361.2 in the present case. Mother's allegation that the statute never applies after an initial removal provides no basis for reversing the court's orders.
2. Father's Status as L.N.'s Presumed Father
Mother has appealed the court's November 3, 2016 order denying her section 388 petition to change the August 2016 order designating Father as L.N.'s presumed father. We affirm the court's denial of that petition.
We do not address the Agency's argument that Mother's initial appeal of the November 3, 2016 order (No. A150195) was premature (i.e., taken from a nonappealable order). Mother also incorporated her challenge to that order in her appeal of the final, appealable March 2017 disposition order (No. A151006), and we have since consolidated those appeals.
Under section 388, a parent may petition to modify a prior order "upon grounds of change of circumstance or new evidence." (§ 388, subd. (a)(1); see rule 5.570(a).) The juvenile court shall order a hearing where "it appears that the best interests of the child . . . may be promoted" by the new order. (§ 388, subd. (d).) "Thus, the parent must sufficiently allege both a change in circumstances or new evidence and the promotion of the child's best interests." (In re G.B. (2014) 227 Cal.App.4th 1147, 1157.)
"A prima facie case is made if the allegations demonstrate that these two elements are supported by probable cause. [Citations.] It is not made, however, if the allegations would fail to sustain a favorable decision even if they were found to be true at a hearing. [Citations.] While the petition must be liberally construed in favor of its sufficiency [citations], the allegations must nonetheless describe specifically how the petition will advance the child's best interests." (In re G.B., supra, 227 Cal.App.4th at p. 1157.) We review a juvenile court's decision to deny a section 388 petition without a hearing for abuse of discretion. (In re Anthony W. (2001) 87 Cal.App.4th 246, 250.)
"The child dependency statutes distinguish between 'biological,' 'presumed,' and 'alleged' fathers." (In re Jovanni B. (2013) 221 Cal.App.4th 1482, 1488.) Only a presumed father is entitled to reunification services under section 361.5, subdivision (a) and custody under section 361.2. (In re Zacharia D., supra, 6 Cal.4th at pp. 439, 454.) Mother's challenge to Father's status as presumed father is thus in part another challenge to the applicability of section 361.2 in this case.
Presumed parent status is governed by Family Code section 7611, which specifies (and incorporates from other statutes, including Fam. Code, § 7540) certain presumptions under which a person may qualify for this status. (In re Alexander P. (2016) 4 Cal.App.5th 475, 484; see id. at p. 485, fn. 7 [noting the statute "has been amended to refer to a presumed 'parent' rather than 'father,' recognizing that the second parent of a child may be female as well as male"].) Father sought designation as L.N.'s presumed father under Family Code sections 7540 and 7611, subdivision (a), which set forth, respectively, conclusive and rebuttable presumptions of paternity based on marriage to the child's mother at the time of birth. Family Code section 7540 states that, with an exception that does not apply here, "the child of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage." Family Code section 7611, subdivision (a) states a person is presumed to be the natural parent of a child if "[t]he presumed parent and the child's natural mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a judgment of separation is entered by a court." The latter presumption may be rebutted "in an appropriate action" by "clear and convincing evidence." (Fam. Code, § 7612, subd. (a).)
In support of his motion for presumed father status, Father submitted a declaration stating he was married to Mother at the time of L.N.'s conception and at the time of his birth in March 2007; he was cohabiting with Mother at the time of L.N.'s conception; and he was not impotent or sterile. (Mother does not dispute those facts.) Father stated that he and Mother divorced in February 2008. When L.N. was about six months old, Mother and L.N. moved from Texas to California. Father stated he had no contact with Mother or L.N. after that move, although he helped financially support L.N. and paid the vast majority of his court-ordered child support since 2008. Father stated he and the mother of his other son (L.N.'s half-sibling) have a successful and amicable co-parenting relationship. The court granted Father's motion for presumed father status on August 4, 2016.
In her subsequent section 388 petition to change the August 4 order (filed on November 3, 2016), Mother argued the court should vacate the August 4 order because Father had abandoned any relationship with L.N. for much of L.N.'s life. As to the presumptions of paternity, Mother noted some courts have declined to apply the Family Code section 7540 conclusive presumption when to do so would not serve the interests the presumption was intended to protect. (E.g., Alicia R. v. Timothy M. (1994) 29 Cal.App.4th 1232, 1237-1238 & fn. 2 [declining to apply conclusive presumption to allow biological father to avoid paying child support, where the marriage between the mother and her husband at the time of the child's conception and birth had been declared void and there was no parent/child relationship between the former husband and the child; "While the state has a legitimate interest in promoting marriage and not impugning a family unit, that interest cannot be served here where there is no marital union or family unit to disrupt"].)
The court correctly concluded Mother's November 3, 2016 petition did not present changed circumstances or new evidence that would warrant holding a hearing on whether to vacate the August 4, 2016 order. The court already knew when it entered the August 4 order that Father had not had contact with L.N. since he was six months old. Other facts included in Mother's brief and declaration in support of the section 388 petition also were not new and could have been presented before the court granted presumed father status, including the fact Father moved out of the home while Mother was pregnant with L.N.; he "irregularly" paid child support; and he "failed to meet his obligation to provide health insurance" for L.N. (See In re H.S. (2010) 188 Cal.App.4th 103, 105 ["the term 'new evidence' in section 388 means material evidence that, with due diligence, the party could not have presented at the dependency proceeding at which the order, sought to be modified or set aside, was entered"].)
The only fact Mother claimed was new was a brief statement made by Father's counsel in October 2016 in the briefing and oral argument on Father's motion to set aside the initial disposition order, addressing the reason for Father's lack of contact with Mother and L.N. Father's counsel stated that Mother had been emotionally abusive and that Father "was so traumatized by the relationship that he was willing to sacrifice at the time his relationship with his son if it meant he never had to deal with [M]other again."
The addition of this statement to the facts already known or available in August 2016 did not require the court to hold a hearing on Mother's section 388 petition. In her brief in support of the petition, Mother principally argued that the statutory presumptions of paternity relied on by Father should not be applied when the child and the parents have not lived together as a family and the father has not had contact with the child. As noted, such an argument already was available to Mother in August 2016 based on the facts known at that time. The court did not err in concluding the one new statement by Father's counsel did not constitute a change of circumstance or new evidence requiring a hearing on Mother's petition.
We do not address the parties' appellate positions as to the strength of this argument under the applicable case law and the facts of the present case (where there is no one competing to be designated L.N.'s presumed father).
Mother also argued in her brief in support of the section 388 petition (and contends on appeal) that a judgment of presumed parentage based on the relationship between the child and the presumed parent may be reconsidered if that relationship changes after the entry of the judgment. (See In re Alexander P., supra, 4 Cal.App.5th at p. 491; but see In re L.L. (2017) 13 Cal.App.5th 1302, 1310-1313 .) This theory provided no basis for section 388 relief here. The only new evidence pertained to Father's decision years earlier not to pursue contact with L.N. and Mother. There was no evidence that any change in the relationship between L.N. and Father occurred between the entry of the August 2016 paternity judgment and the November 2016 filing of Mother's section 388 petition.
3. The Set-Aside Order
Mother next challenges the procedural route the juvenile court took to arrive at its March 2017 decision placing L.N. with Father under section 361.2 (i.e., setting aside the initial disposition order on the ground Father had not received proper notice, and then holding a retrial on disposition). The set-aside and the retrial arguably were unnecessary because, as we have discussed above, the lack of notice entitled Father to the application of section 361.2 in any event. But the approach the court took did not constitute reversible error.
"Due process requires that a parent is entitled to notice that is reasonably calculated to apprise him or her of the dependency proceedings and afford him or her an opportunity to object. [Citation.] The child welfare agency must act with diligence to locate a missing parent. [Citation.] Reasonable diligence denotes a thorough, systematic investigation and an inquiry conducted in good faith." (In re Justice P. (2004) 123 Cal.App.4th 181, 188.) A parent may seek to modify or set aside a juvenile court order on the ground of lack of notice. (Id. at p. 189 [parent may file a § 388 motion to raise a due process challenge based on lack of notice].) We reject Mother's position that the court could not grant relief here based on the Agency's failure to locate Father and provide him with notice.
A parent may rely on a lack of notice to establish the court lacks jurisdiction. (Ansley v. Superior Court (1986) 185 Cal.App.3d 477, 481, 483 [agency made no effort to provide father with notice; father argued lack of notice was a defect in jurisdiction rendering dependency judgment void].) But a parent (like Father here) who does not challenge personal jurisdiction may nevertheless seek a change of order based on a lack of notice. (See In re Justice P., supra, 123 Cal.App.4th at pp. 189-190 [alleging inadequate notice, father filed § 388 petition to request a new disposition hearing].) Mother is incorrect in asserting that Father, by agreeing the court had jurisdiction, forfeited the right to seek any relief based on the Agency's failure to provide him with notice (a failure that made it impossible for him to participate in the March 2016 disposition hearing).
In re R.L. (2016) 4 Cal.App.5th 125, cited by Mother, does not support her argument. In In re R.L., a case involving application of the Hague Service Convention (the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Nov. 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638)), the appellate court held (1) the agency made reasonable efforts to locate the father and therefore there was no basis to vacate orders entered at the jurisdiction, disposition, and review hearings, and (2) when the agency later became aware the father was incarcerated in Mexico, the agency sought to notify him of a section 366.26 hearing and served him by a method that did not comply with the Hague Service Convention, but since the father had made a general appearance in the action, the defect in service was not fatal to personal jurisdiction. (In re R.L., supra, 4 Cal.App.5th at pp. 147-148.) As noted, Father did not challenge the court's jurisdiction here, but that did not preclude him from seeking a change of order based on the Agency's failure to provide him with notice.
a. A Juvenile Court May Set Aside a Disposition Order
Mother claims a juvenile court may never set aside a disposition order without also setting aside the preceding jurisdictional findings. We disagree.
A juvenile court has authority to modify or set aside its prior orders. (See §§ 385, 386, 388; Nickolas F. v. Superior Court (2006) 144 Cal.App.4th 92, 111-112.) Mother has cited no authority supporting her assertion that a categorical exception applies in the case of disposition orders. Instead, she cites cases stating generally that a dependency proceeding is a " ' "bifurcated" ' " proceeding (In re A.S. (2011) 202 Cal.App.4th 237, 243) involving jurisdictional and dispositional phases. At jurisdiction, the court determines whether the child is described by section 300 (§§ 300, 355, subd. (a), 356); at disposition, the court may adjudge the child a dependent and then address issues such as placement (§§ 300, 358, subd. (a), 360, subd. (d), 361, 361.2). (See In re David B. (2017) 12 Cal.App.5th 633, 645.) The jurisdiction order is not immediately appealable; the disposition order is the first appealable order in a dependency case. (In re Nicholas E. (2015) 236 Cal.App.4th 458, 463.)
These general principles of dependency and appellate procedure do not support Mother's contention that a juvenile court lacks authority to set aside a disposition order unless it also sets aside its prior jurisdiction order. We find no basis for imposing such a limitation on the court's authority.
b. The Court's Set-Aside Order Was Supported by Evidence
Mother argues there was "[n]o [e]videntiary [b]asis" for a finding the Agency failed to make reasonable efforts to locate Father and notify him of the proceedings. She is incorrect.
Father's motion to set aside the initial disposition order described and attached several exhibits supporting his argument that the Agency's efforts to locate him were inadequate. The exhibits included a declaration from the private investigator hired by L.N.'s counsel to locate Father. The investigator stated that, using the names of Father, Mother, and L.N., and certain information from L.N.'s birth certificate, she conducted database searches that produced Father's current address and telephone number in about 20 minutes.
The exhibits submitted by Father also included a declaration of due diligence filed by the Agency in December 2015 about the efforts it had made to locate Father (which apparently involved searching within California), as well as other Agency notes and documents. Father also submitted an excerpt of the reporter's transcript of the March 2016 disposition hearing. At that hearing, Mother testified Father was paying child support and that, as of three years earlier, Father resided in Maryland. When the court then asked where the child support action was pending, the social worker stated it was her understanding that "the child support is coming from the state of Texas," but the Agency had not been able to obtain further information about Father from the Texas child support agency without his date of birth.
On appeal, Mother does not contend the evidence submitted to the court in advance of the October 2016 hearing provides an insufficient basis for a finding that the Agency made inadequate efforts to locate Father and provide him with notice. Mother also expressly disavows any argument that the court was obligated to hold a full evidentiary hearing on the question, and she does not claim she ever requested one. Mother instead argues the record does not show the court formally "admitted" the submitted evidence, because the court did not make an express statement to that effect on the record and did not fill in a section of the form it used as its written order that would have allowed it to describe the submitted evidence. In our view, this omission does not undercut the validity of the court's ruling and provides no basis for reversal.
It is clear from the reporter's transcript of the October 24, 2016 hearing on the set-aside motion that the court was considering the "new evidence" submitted by Father, as well as its own knowledge of the earlier proceedings in the case when the issue of Father's whereabouts had been raised. The court noted that, at the March 2016 hearing (after Mother's testimony that Father was paying child support), it had expressed concern about whether the Agency had made adequate efforts to locate Father and provide him with notice of the proceedings. The court also referred to a written order it had issued after the March 2016 hearing, requiring the parties to "make best efforts to locate any alleged fathers" of L.N.
Finally, at the conclusion of the October 2016 hearing, the court stated: "I don't like the record on this. I don't think the Agency did anything in bad faith. In fact, when I heard what the Agency had to say, I thought that they had made a reasonable effort. [¶] But now I'm presented with new evidence that makes it appear that in hindsight it would have been relatively easy to find father." On this basis, the court concluded Father had "a legitimate argument that he wasn't provided notice and he should have been in this case provided with notice." The court therefore granted Father's request to set aside the March 2016 disposition order. The evidentiary basis for the court's order is clear from the record. The lack of an express statement that the evidence submitted by Father had been "admitted" provides no basis for reversal.
c. Father's Failure to File a Section 388 Petition Was Harmless
Courts have held a motion under section 388 (authorizing a parent to seek to modify or set aside a prior order "upon grounds of change of circumstance or new evidence" (§ 388, subd. (a)(1))) "is a proper vehicle to raise a due process challenge based on lack of notice." (In re Justice P., supra, 123 Cal.App.4th at p. 189, citing Ansley v. Superior Court, supra, 185 Cal.App.3d at pp. 481, 487-488.) A section 388 petition must allege the new order will promote the child's best interests. (§ 388, subd. (d).) Mother argues a section 388 motion is the exclusive method to seek relief for lack of notice, and therefore Father's motion to set aside (which did not rely on section 388, but instead on section 385, which states a juvenile court may modify or set aside its prior orders) was improper.
Even assuming Father should have filed a section 388 petition, any error by the court in granting Father's motion did not prejudice Mother. After setting aside the prior disposition order removing L.N. from Mother's custody, the court set a new disposition hearing, at which the Agency again had the burden to prove removal was necessary, and Mother had a second opportunity to litigate that question fully.
Mother argues, however, that the set-aside procedure used by the court was prejudicial because it interfered with Mother's right to appeal the court's jurisdiction findings. We disagree. As noted, following the entry of the set-aside order, this court dismissed Mother's appeal of the vacated March 2016 disposition order, in which Mother also raised challenges to the December 2015 jurisdictional findings. In our dismissal order, however, we expressly stated our dismissal was without prejudice to Mother's appealing any new disposition order and presenting in that appeal her challenges to the jurisdictional findings. Mother has challenged the court's jurisdictional findings in her present appeal of the second disposition order, and we have addressed those challenges in this opinion. As the juvenile court noted at the October 2016 hearing on the set-aside motion, Mother's right to appeal the jurisdictional findings, while delayed, was preserved.
Mother contends the delay in her ability to seek appellate review of the jurisdictional findings violated her due process rights and requires reversal of the set-aside order. The cases cited by Mother are inapposite and do not support a holding that a juvenile court, having concluded there is a proper basis to set aside a disposition order, must nevertheless leave the order in place so a party can appeal it and obtain review of prior orders that are not immediately appealable. (Cf. In re Melvin A. (2000) 82 Cal.App.4th 1243, 1248 [cited by Mother; it was error for juvenile court to impose but then stay an appealable order terminating parental rights, thus leaving parent "in limbo as to the status of the termination order and her ability to immediately appeal that order"]; In re M.V. (2006) 146 Cal.App.4th 1048, 1062 [cited by Mother; noting that delays in appellate process itself, resulting in part from an extended appellate briefing process and a change of appellate counsel, had hampered appellate court's ability to ensure the child's best interests].)
C. Other Alleged Defects in the Final Disposition Order
Mother argues the court's final disposition order is defective because the court made inconsistent or inaccurate statements in announcing its decision. The court denied Mother's motion to dismiss the dependency petition (see § 390 [authorizing dismissal in the interests of justice]) and terminated dependency jurisdiction after placing L.N. with Father (see § 361.2). In stating it was terminating dependency jurisdiction, the court also stated the dependency case was "dismissed." Contrary to Mother's suggestion, this statement does not render the court's ruling inconsistent or invalid. The court expressly terminated jurisdiction pursuant to section 361.2. The court's statement that the case was "dismissed," while superfluous, was harmless.
Mother also finds fault with the final disposition order because the court stated its findings applied both to the circumstances at the time of the final hearing and to the circumstances at the time the dependency petition was filed. While the latter portion of the court's statement does not appear to have been necessary, we again find no prejudice.
Finally, Mother notes that the court, in announcing its final decision on disposition, misstated the date of the dependency petition as November 3, 2015. As discussed, the petition for L.N. was filed on December 2, 2015, and amended on December 14, 2015. The court's misstatement of this date provides no basis for reversal of its disposition order.
November 3, 2015, was the date of a dependency petition filed for L.N.'s half-sibling H.M.
D. Moot Issues: Educational Rights and Visitation During the Dependency
1. The Order Appointing an Educational Representative
Mother has appealed the court's June 2016 order granting a request by L.N.'s counsel to appoint an educational representative for L.N. Mother contends the court erred by (1) failing to give Mother notice that the June 15, 2016 hearing on the issue would be an evidentiary hearing, and (2) violated due process and section 388 by deciding the issue without hearing live testimony. In light of the subsequent developments in the dependency proceeding, Mother's appeal of the June 2016 order limiting her educational rights during the dependency is moot. We therefore dismiss her appeal of that order.
We requested, and the parties filed, supplemental briefs addressing whether the appeal of the educational rights order is moot in light of developments in the juvenile court.
"[T]he critical factor in considering whether a dependency appeal is moot is whether the appellate court can provide any effective relief if it finds reversible error." (In re N.S. (2016) 245 Cal.App.4th 53, 60 (N.S.).) As noted, in its March 30, 2017 order, the juvenile court granted Father custody of L.N. and terminated dependency jurisdiction. In light of that order (which we affirm in this opinion), a finding of reversible error in connection with the earlier order limiting Mother's educational rights during the now-terminated dependency proceeding would not provide effective relief to Mother.
We previously denied Mother's petition for a writ of supersedeas requesting a stay of the March 30, 2017 order.
In her supplemental brief, Mother argues the appeal is not moot because the purported errors in connection with the order appointing an educational representative could "infect the outcome of subsequent proceedings," specifically Mother's appeal of the March 30, 2017 order and the petition for a writ of supersedeas she filed in that appeal. (See In re Joshua C. (1994) 24 Cal.App.4th 1544, 1547-1548.) But as noted, that appeal and the accompanying writ petition have now been resolved. In any event, Mother presents no argument as to how the alleged errors in connection with the June 2016 educational rights order could have affected the juvenile court's subsequent decision at the disposition retrial on the broader questions of removal from Mother's custody, placement with Father and termination of jurisdiction (or how any such errors could have affected this court's review of that decision).
Finally, Mother notes an appellate court has discretion to resolve an issue " 'of broad public interest that is likely to recur.' " (See N.S., supra, 245 Cal.App.4th at p. 59.) The fact-specific procedural arguments presented in her appeal of the educational rights order (i.e., the intertwined questions whether the court provided proper notice to Mother as to the nature of the June 15, 2016 hearing and whether the court then erred by proceeding at that hearing without live witness testimony) do not meet this standard. (See In re David B., supra, 12 Cal.App.5th at p. 654.) We decline to exercise our discretion to decide them.
2. The Visitation Order
Mother has appealed the court's November 2016 order denying her section 388 petition to change the earlier orders specifying Mother's visits and telephone calls with L.N. during the dependency proceeding would be supervised. She asserts that, at the November 2016 hearing on the visitation issue, the court erred by excluding testimony of the family therapist who worked with L.N. and Mother.
We agree with the Agency that this issue is moot, and we therefore dismiss Mother's appeal of the November 2016 order pertaining to visitation. When the juvenile court terminated dependency jurisdiction in March 2017, it issued an exit order specifying Mother's visitation rights. Since the November 2016 order governing Mother's visitation with L.N. during the dependency is no longer in effect, this court could not provide effective relief if it determined the court committed reversible error in entering that order. (See N.S., supra, 245 Cal.App.4th at p. 60.)
Because we dismiss Mother's appeal of the November 2016 visitation order as moot, we do not address the Agency's argument that the appeal of that order should be dismissed as premature (i.e., taken from a nonappealable order).
Mother suggests the court's November 2016 visitation order "infected" subsequent proceedings (i.e., the disposition retrial that concluded in March 2017) because in those proceedings, the court (a different judge) limited the testimony Mother could elicit from the family therapist. As we have explained above, we find no reversible error in connection with the disposition retrial, and we conclude any error in connection with the scope of the family therapist's testimony in that proceeding was harmless. We find no basis for concluding that the November 2016 order led to unfairness or reversible error in subsequent proceedings.
Finally, we find no ground for exercising our discretion to resolve the fact-dependent evidentiary question raised in Mother's appeal. (See In re David B., supra, 12 Cal.App.5th at p. 654.)
We have considered Mother's remaining appellate arguments and find them to be without merit.
III. DISPOSITION
In No. A149003, the appeal of the educational rights order is dismissed as moot.
In No. A149729, the October 24, 2016 order setting aside the March 2016 disposition order is affirmed.
In No. A150195, the November 3, 2016 order denying Mother's section 388 petition as to Father's presumed father status is affirmed. The appeal of the November 28, 2016 order denying Mother's section 388 petition as to visitation is dismissed as moot.
In No. A151006, the March 30, 2017 disposition order is affirmed.
/s/_________
Streeter, Acting P.J. We concur: /s/_________
Reardon, J. /s/_________
Smith, J.
Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.