Opinion
F083254
06-27-2022
In re CHRISTOPHER Q. et al., Persons Coming Under the Juvenile Court Law. v. JUAN Q., Defendant and Appellant. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent,
Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Boze, County Counsel, and Angela J. Cobb, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County, Nos. JVDP-20-000054, JVDP-20-000055 Ann Q. Ameral, Judge.
Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and Appellant.
Thomas E. Boze, County Counsel, and Angela J. Cobb, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
DETJEN, J.
Dependency jurisdiction was taken over Christopher Q. and Juan Q. (Christopher and Juan, respectively; minors or children, collectively). At the disposition hearing, they were placed with their parents, Juan Q. (father) and Karina A. (mother) separately on family maintenance services, with the juvenile court ordering the parents to have 50/50 custody of each child. At a Welfare and Institutions Code section 364 family maintenance review hearing, the juvenile court found placement of Juan with father was detrimental due to father engaging in alienating Juan from mother. The court placed Juan with mother and ordered supervised visitation to father.
All further undesignated statutory references are to the Welfare and Institutions Code.
Father appeals the juvenile court's order placing Juan with mother. He contends such an order was inappropriate at the stage of a section 364 review hearing where no party had filed a petition requesting the order. Father further contends that his due process rights to notice were violated because the Stanislaus County Community Services Agency (agency) did not recommend any change in custody or visitation ahead of the hearing but advocated for the placement change during the hearing and father otherwise did not have prior notice of minors' or mother's positions-advocating for Juan to be placed with mother. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
At the time this family came to the attention of the agency in March 2020, Christopher was 11 years old, and Juan was three years old. Father and mother were no longer a couple and had a highly contentious relationship. At the outset of the proceedings, father had full legal and physical custody of Christopher, and the parents had "50/50" custody of Juan. The parents had restraining orders against one another and would exchange Juan at the police station. Father had made multiple police reports against mother dating back to 2019, with father alleging mother followed him when he had the children in the vehicle on a few occasions and that her boyfriend had threatened him with a firearm. The most recent of these reports was on March 1, 2020 - father made a report that mother and her boyfriend were following him in a vehicle, and at one point, mother's boyfriend pointed a firearm at him and yelled" 'I'll kill you.' "
The agency received a referral the following day, March 2, 2020. Both parents had shown up to the sheriff's department to request records without knowledge the other was going to be there. They each wanted to make a report on the other of violating the restraining orders, but the deputies did not respond as it was clear each parent did not know the other would be there. Law enforcement involved the agency because of law enforcement's concerns of potential emotional effects of the parents' relationship on the children; the responding social worker noted "[t]he children have been witnessing [the parents] arguing and putting the children in the middle of their [custody] agreement. For example, they will say ask the children about what happened to back up their story." When the social worker interviewed Christopher, he confirmed father's story of what happened on March 1, 2020, and stated he was very scared of mother and her boyfriend and did not want her close to Juan.
The social worker obtained a protective custody warrant. Separate Team Decision Making (TDM) meetings were held with each parent on March 4, 2020, and in each meeting, it was agreed the children would remain in protective custody.
The family had child welfare referrals dating back to 2018, with many being "[e]valuated [o]ut." One referral in 2018 for emotional abuse was deemed inconclusive alleging father had perpetrated domestic violence against mother. In August 2018, a referral for general neglect was substantiated alleging father strangled mother and attempted to rape her in the presence of the children. In March 2019, a referral for emotional abuse was substantiated alleging mother had stabbed father multiple times in the arm during a custody exchange in front of the police station. Father had two prior domestic violence convictions. Mother had a charge for assault with a deadly weapon which had been dismissed.
The agency filed a petition on behalf of minors alleging they came within the juvenile court's jurisdiction under section 300, subdivision (b)(1). The agency alleged minors had suffered or were at substantial risk of suffering physical harm or illness as a result of the failure or inability of the parents to supervise or protect them adequately. The factual allegations included the March 2, 2020 incident at the sheriff's department, the police reports and child welfare referrals involving domestic violence between the parents, Christopher's statement he feared mother and her boyfriend, reports mother had been physically abusive, and the parents' criminal history.
At the detention hearing on March 6, 2020, the court found a prima facie showing had been made that minors were described by section 300 and that there was not a substantial risk of detriment or harm if minors were placed in the care of father. The court ordered the children be returned to father's care and detained from mother, whom the court and the parties - apart from mother - agreed was the source of the risk to the children.
The agency later reported that prior to the detention hearing, the social worker spoke with father, and father spoke negatively about mother to the point where it was difficult for the social worker to discuss the petition with him. Father commented about how mother would not cook or clean, was undocumented, and spoke in a negative way about how she had ambition and wanted to better herself. Father consistently made these types of comments throughout his interactions with the social worker. Father appeared to believe that women were to meet their husband's needs. He was angered by mother's desire to have a job and make her own income.
The agency conducted a home assessment of both mother's residence and mother's boyfriend's residence, and no drugs or guns were found. Mother reported to the social worker that father was the perpetrator of domestic violence throughout their relationship, and provided police reports and pictures of her injuries, documenting several incidents. Mother stated that father's many reports to law enforcement accusing her of domestic violence were false. Mother explained that it was father who followed her with the children in the car, not the other way around, on several occasions including on the March 1, 2020 occasion. She provided a video to the social worker of father on her boyfriend's street on March 1, 2020, driving erratically. Mother also provided a video of the incident where father reported mother had stabbed him in March 2019. The video demonstrated mother did not stab father. Mother further reported that Juan calls her" 'mommy puta,'" a derogatory word in Spanish.
Based on this further investigation, the agency reported in its jurisdiction report dated March 23, 2020, "[t]here are concerns that [father] has manipulated and fabricated reports against [mother], there are concerns that [father] took advantage of [mother's] silence with Child Welfare during the Emergency Response investigation in order to appear as the victim and making [mother] seem like the sole offender." The social worker went on to say, "There are concerns that [father] does not help his male sons have a healthy relationship with the mother, rather, he shares his own opinions about the mother with the children which in turn have made the children react towards her in similar negative ways."
The agency filed an amended petition on March 23, 2020, which included additional supporting facts pertaining to father, detailing several police reports made by mother of incidents of domestic violence with father as the perpetrator causing physical injury to mother. Additional supporting facts included that there were videos showing father had been to mother's boyfriend's house on the day father reported mother was following him with a gun, and an audio recording demonstrating that mother did not stab father on the day father reported she did. Finally, a supporting fact was added indicating Juan had called mother a derogatory name.
The agency prepared a disposition report dated May 13, 2020, recommending the court amend the family court custody orders to award the parents 50/50 custody of minors and order family maintenance services be provided to both parents.
Due to multiple continuances, mother and father were not arraigned on the first amended petition until May 22, 2020. Both parents entered denials. Father requested to set the matter for a contested combined jurisdictional/dispositional hearing. The court granted the agency discretion to place Juan with mother pending the next hearing over father's objection.
The agency prepared an addendum disposition report dated June 1, 2020, indicating that Juan had been released to mother parttime. The recommended disposition for family maintenance services for both parents remained the same. Attached to its report were documents indicating father's restraining order against mother arose from his accusation she attempted to run him over with a vehicle. A criminal charge of assault with a deadly weapon was initiated against mother, and mother successfully petitioned for a finding of factual innocence.
Due to more continuances, the jurisdictional/dispositional hearing was not conducted until August 27, 2020. At that time, the parties informed the court they would not be proceeding to trial as they had reached a resolution. The parents would be submitting on the reports and recommendations set forth in the disposition report. Counsel for the agency further informed the court that Christopher was refusing to visit with mother. Counsel for the agency reported Juan had been visiting with mother "week on and week off" and the visits were going well. Counsel for the agency further stated the agency would not be forcing Christopher to have parenting time with mother but requested the court admonish the parents not to alienate the children against the other parent, which the court did.
The court found the first amended petition true. The court found there was no detriment to placing minors with either parent. The court ordered that the parents have joint legal and physical custody and ordered the parents to participate in family maintenance services. The case plan provided that mother was to participate in family counseling with Christopher, participate in individual counseling, complete a domestic violence assessment and follow all recommendations, and complete coparenting services. The case plan provided that father was to participate in individual counseling, complete a domestic violence assessment and follow all recommendations, and participate in coparenting services. The court set a section 364 review hearing.
The agency's status review report dated February 8, 2021, recommended that the court: find continued jurisdiction over minors was necessary; and order that minors remain in the custody of both parents; and continue family maintenance services.
The agency reported that, during the reporting period, Christopher and father made several allegations that mother was physically abusing Juan. Each allegation was evaluated out with the agency concluding there were no safety concerns with mother. The agency opined father was making false allegations and had influenced Christopher to do so as well. Further, Juan told mother that father did not want Juan to talk to her and expressed that he did not want to visit mother. Juan also stated that father told him that he could push mother, not hug mother, and that it was okay to yell at mother.
The social worker reported difficulties working with father, including father becoming angry to the point of needing intervention, refusing to sign consents or releases of information, refusing the social worker access to his home for monthly visits, and recording the social worker without consent. The social worker indicated a previous social worker on the case had similar difficulty working with father. In addition, father refused to sign the "Family Agreement/Safety Plan" prepared by the agency to "ensur[e] the safety of the children in his care."
Christopher began attending individual counseling and was taking antidepressant medication. Christopher had not yet commenced family counseling with mother. Christopher refused to have any contact with mother, and the social worker opined "[i]t appear[ed] that [Christopher] has been completely turned away from [mother] as a result of the influence in the home." The social worker reported that the agency was "concerned about Christopher's wellbeing as he appears to be placed in a situation where he feel[s] that he needs to disown his mother and advocate for his brother by making different allegations about his brother being abused. The agency is concerned about the allegations Juan . . . has made about [father] telling him to behave in an aggressive manner."
Mother completed her individual counseling sessions, where she worked on identifying coping skills and a support system. According to the clinician, mother" 'presented with good insight into the situation that led her to have her family involved with [Child Protective Services] and took accountability for her actions.'" After mother completed a domestic violence assessment, it was recommended that mother participate in domestic violence victim counseling. At the time the report had been written, mother had attended one session. Father attended individual counseling and was reported to be open with his clinician and" 'vulnerable . . . about his past traumas and experiences that led to [the dependency proceedings].'" Father stated he did not want to attend coparenting counseling with mother.
On February 18, 2021, the date set for the section 364 review hearing, minors' counsel stated he was "extremely concerned about the emotional well-being of the children" based on the information in the section 364 report. Minors' counsel requested to trail the case to "have further discussions with County Counsel about this matter, and also for consideration of what our office may wish to do independent of what County Counsel may consider doing as well."
Mother's counsel stated he was not objecting to the request to trail the matter and stated, "I do want to be very clear that it is our request, at this time, that Juan be placed in the sole custody of [mother] and that Christopher be placed either with his aunt or a cousin or perhaps even in a foster home outside of the father's care" based on the evidence of alienation of the children by father from mother. Father objected to the court making any interim order regarding the custody of minors. Deputy county counsel stated she would discuss the matter with the agency. The court trailed the matter, noting it would not be making any interim orders as "these issues are central to the case" though the court did underline minors' counsel's concern about the emotional well-being of the children.
On February 26, 2021, the next date of the section 364 hearing, the court noted the contested issue to be decided at the hearing was that minors' counsel and mother's counsel were requesting Juan be immediately removed from father's custody. The court noted it was keeping interim orders in place but set the matter for a contested hearing in light of the requests. The court again ordered mother and father not to alienate each other from minors.
The contested section 364 hearing was held on March 22, 2021. The agency made an offer of proof on behalf of the social worker, stating that the social worker would testify that an emergency response investigation was opened in light of the concerns raised at the February 18, 2021 hearing. The allegations of general neglect were deemed unfounded and the allegations of emotional abuse were deemed inconclusive. The referral was closed with the recommendation of continued court-ordered family maintenance services. The social worker would further testify that father was beginning to better cooperate with the agency, including allowing the social worker to talk with Christopher; apologizing for his past behavior; signing the multi-agency consents; and, on the day of the hearing, signing the family agreement though he backdated it. Mother's counsel and minors' counsel did not offer any additional evidence. Father's counsel made an offer of proof on behalf of father, stating that father would testify that he has been actively cooperating with the agency since February 25, and that he was angry with mother but does not intentionally alienate minors and that he was working on his anger with the help of the agency.
Minors' counsel argued that father was "emotionally abusing his children by alienating their affection towards their mother" and characterized father's behavior as "a deliberate, a continuous and a calculated effort intended to separate the children from their mother and to deprive the mother from the custody of her children," further stating it was "an effort solely fueled by the hate of [father] for [mother]." Minors' counsel detailed several instances from the reporting period including instances of Juan reporting father did not want him to talk to mother and told Juan it was permissible to be verbally and physically hurtful toward mother. Minors' counsel further detailed evidence of a "hate campaign" against mother in 2018 and 2019, including accusing her of domestic violence of which mother was later found by the criminal court to be factually innocent. Finally, minors' counsel pointed out that Christopher had perpetrated father's false allegations and had been making his own, which was evidence of his being alienated against mother. Minors' counsel requested that the court "protect the emotional well-being of Juan . . ., [and] to act in the best interest of Juan . . . by removing him from the custody of [father]."
Mother also requested that Juan be "primarily placed in the care and custody" of mother and that Christopher be "removed from [father's] care and either placed with a relative or in suitable placement."
Father requested the court follow the agency's recommendations and argued it was not appropriate to make any change to custody at that time.
In ruling, the court stated that in reading the file, "it appears that the father has been alienating Christopher's affections for his mom. It seems to me abundantly clear." The court went on to state that if it were to place Christopher with mother, it would not be in Christopher's best interest. The court also stated it was not inclined to place Juan with mother fulltime because it would be adverse to Christopher's best interests because he loves his brother. The court concluded by saying "I think what we should do is maintain the status quo, with a clear understanding that if there are not some very significant changes in the next three months, then the Court very well may consider a major overhaul in the custody arrangement." The court noted it was short setting the hearing because "I am not going to let this go another six months. We are coming back in three months." The court stated it was going to follow the recommendation of the agency. It found the circumstances that justified initial assumption of jurisdiction still existed. It found mother's progress was good and father's progress was limited. The court advised father: "I am going to have to see some major progress in the next three months and you starting to cooperate with the Agency. That means that you are going to need to cooperate in coparenting counseling. That also means that you are not to record any of the social workers during exchanges or during the monthly compliance visits. You are to allow the children access to the social worker during visits." The court again admonished the parents not to alienate minors from one another. Finally the court stated, "I don't want to take Christopher away from his father's custody and place him with the mom, but the mom should have a relationship with Christopher and Christopher should have a relationship with his mother." The court told father "you have been less than cooperative in certain things. I am giving you three months to turn things around. Like I said, it looks like you're finally starting to see the light, but there's got to be some major changes in the next three months or there's going to be some orders that the Court is going to make that you are not going to like."
The agency's second status review report dated June 9, 2021, recommended the court: find continued custody with both parents would not create a substantial risk of detriment to the children; retain jurisdiction; and order that the children remain in the custody of the parents and family maintenance services continue. It reported that the social worker continued to express difficulty working with father. Father struggled to understand the reason for court intervention, continued to decline to participate in domestic violence services, and refused to sign the case plan. The social worker was never able to speak meaningfully with father about his coaching Christopher not to speak to the social worker and it was difficult for the social worker to gather information regarding minors because father tended to abruptly end conversations. Father's behavior left the social worker "unsure of what kind of care or home environment he is offering his children." It further reported that Christopher continued individual counseling and continued to refuse to see mother and that Juan also began individual counseling. Mother continued to participate in domestic violence victims counseling. Mother expressed to her clinician that she was open and willing to start coparenting counseling with father. The clinician reported she" 'has demonstrated being in a healthier state where she can establish appropriate boundaries, utilize assertive communication to convey needs and has healthy coping skills.'" Her clinician also stated that mother" 'has the tools to be able to start family counseling whenever her son is ready to start sessions.'" Father continued to participate in individual counseling and participated in a domestic violence assessment. It was recommended that father complete a domestic violence offenders program. He began the program in April 2021 but expressed he did not know why he had to participate in domestic violence services because he had done so in the past when he was falsely accused by his ex-wife in 2018. Father had not commenced coparenting services but agreed to do so.
The section 364 review hearing was trailed twice, and on July 15, 2021, the hearing was set for contest.
It is not clear from the record which party set the hearing for contest or what the contested issues were, and these matters appear to have been part of an off-the-record discussion.
At the contested section 364 hearing on August 12, 2021, the court admitted the agency's reports, an additional exhibit proffered by the agency, an offer of proof detailing why it was recommended that father complete a psychological evaluation, and an exhibit proffered by father - a letter from an elementary school - which was not provided in the appellate record nor described on the record at the hearing. No testimony was taken.
Father's appellate counsel represents this letter showed father had enrolled Juan in kindergarten at the school and provided the school with all necessary documents, but that registration had not yet been processed.
Counsel for the agency stated it was submitting on the agency's recommendation and report.
Minors' counsel indicated it was requesting that the court "change the 50/50 custody arrangement of Juan . . . and have Juan . . . primarily placed with the mother." Minors' counsel argued that, at the last hearing, the court was looking for "significant change from [father]." Minors' counsel again stated he was asking the court to make the change to put primary custody of Juan with mother. He argued father was not acting in the best interest of minors as evidenced by the reports of his refusing to cooperate with the social worker, refusing to participate in a Child and Family Team meeting, refusing to share information with mother about minors, receiving information from mother about minors, failing to take Juan to his counseling appointments, and continuing to deny he is a perpetrator of domestic violence. Minors' counsel argued that father had alienated the affection of Christopher toward mother, "[b]ut it is not too late for Juan. . . . If he continues to be primarily with this father, he'll ruin his little boy as well."
The court heard from Christopher who stated that Juan told him that mother hits him and that Christopher does not believe mother should have full custody of Juan because "it's not stable for him because of all the trauma she has caused us."
Father's counsel argued that father had enrolled Juan in school and stated that the parents had 50/50 custody and the "primary caregiver" designation only had an effect on tax benefits. Father's counsel stated father did not object to a psychological evaluation but objected to the clinician the agency purported it would be using.
Mother's counsel joined in minors' argument "word for word" with the exception that he did not believe Christopher and mother's relationship was beyond repair. He argued that court supervision should continue and agreed with minors' counsel that mother should be given primary custody of Juan-with the hope that coparenting counseling could begin after father undergoes a psychological evaluation.
Father's counsel stated he was objecting to mother's characterization of minors' counsel's argument. He stated it was not his understanding that minors' counsel "made any suggestion with respect to how much the time period shipped, it was merely that quote, 'should be designated as the primary care holder, caregiver.'" Minors' counsel stated he did request that, to which father's counsel stated, "That was not what you did request." Before minors' counsel had a chance to respond, counsel for the agency stated, "Well, it sounds like [father's attorney] is giving rebuttal to [mother's attorney's] argument, and he is not entitled to do that. If he is objecting, state the objection, and now it is my turn." Father's counsel responded, "I did my objection." Father's counsel then requested that "[minors' counsel's] comment about what he is requesting be stricken." The court declined to strike the comment and asked to hear county counsel's rebuttal argument.
In rebuttal, deputy county counsel stated the agency was very concerned about father's behavior based on his inconsistency with cooperating with the agency and his not complying with court orders. Deputy county counsel stated she was submitting on the recommendation in the reports but "support[s] Your Honor looking at those orders and really evaluating where we were back in March, at the time of the last . . . court ruling . . . and looking at where we're at now, and making some drastic changes that are in the best interest of the children." Deputy county counsel stated that the agency was not making any efforts to file a section 387 to remove custody from father, it did not disagree "that maybe the best plan would be to make a change with who has primary custody, who has that increased parenting time, which would be the mother, and also to look at if she's going to have more time or more parenting time with Juan . . ., that it only makes sense to have Juan . . . attend a school in her area of residence."
In ruling, the court stated it was "not going to follow the Agency's recommendation in this particular matter." The court found the circumstances which justified initial assumption jurisdiction were still present and that continued supervision was still necessary. The court then stated it found "based upon clear and convincing evidence, that [father] has been actively engaging in alienating the affections of both of his children for that of the mother" and it was "really . . . fearful that it is too late as to Christopher, but the Court is going to do everything it can to ensure that [father] is not able to alienate the affections of Juan." The court went on: "Therefore the Court is going to make a major change, and I am going to direct that the child, Juan . . ., remaining in the care of the father would create a substantial risk of detriment. The Court is going to place Juan in the care of his mother, and that will be effective immediately."
The court ordered that "mother is going to have Juan all the time," and father "will have visitation with Juan three times per month." The court ordered the visits be supervised "because I want to ensure that [father] does not continue to attempt to alienate Juan's affections for his mother." The court noted father was attempting to alienate Juan's affections from mother as he had done with Christopher, and that it was further concerned that father was refusing to coparent and cooperate or take responsibility for domestic violence he had perpetrated in the past. The court ordered Christopher was entitled to attend the visits with Juan as well. The court found Christopher would remain in the care of father, and Juan would be placed in the care of mother, both under the supervision of the agency. The court ordered that the case plan be amended to provide that father undergo a psychological evaluation. Finally, the court found that mother's progress was good and father's progress was poor and set the matter for another family maintenance review hearing.
DISCUSSION
Father contends the juvenile court improperly placed Juan with mother at the section 364 review hearing because there was no section 342, 387, or 388 petition before it. He further contends he was deprived of notice of the parties' positions, particularly the agency's, which he contends changed from the outset of the hearing to the end of the hearing, in violation of his due process rights. We find no error, and if we did, we would conclude any error was harmless.
Though father frames his arguments as two separate issues, because of the nature of the arguments and the resulting overlapping analysis, we address them together. As to father's first contention, it is clear from the record that no party filed a noticed section 342, 387, or 388 petition to request a change in the 50/50 custody order to reflect that Juan be placed with mother fulltime with visitation to father, a fact to which agency concedes. Father contends the absence of such a petition means the court's order must be reversed, but agency contends the court's order was proper under section 385. That section provides: "Any order made by the court in the case of any person subject to its jurisdiction may at any time be changed, modified, or set aside, as the judge deems meet and proper, subject to such procedural requirements as are imposed by this article." (§ 385.) In his reply brief, and in response to the agency's position, father argues the court did not act properly under section 385 because the order made here simply does not fall within the purview of section 385 and because the "necessary procedural requirements" were not complied with.
We agree with agency that the court's order was proper under section 385 and that the procedure used, though not necessarily an example of best practice, was adequate to protect father's rights. Under section 385, the juvenile court has authority to modify or set aside its orders sua sponte as circumstances warrant, and the primary procedural requirement is that it provides the parties with notice and an opportunity to be heard. (§ 385; M.L. v. Superior Court (2019) 37 Cal.App.5th 390, 399 (M.L.); Nickolas F. v. Superior Court (2006) 144 Cal.App.4th 92, 110-116 (Nickolas F.).) In addition, "notice must be provided 'to the social worker and to the child's counsel of record, or, if there is no counsel of record, to the child and his or her parent or guardian' in accordance with section 386." (M.L., at p. 399.)
See also Nickolas F., supra, 144 Cal.App.4th 92, regarding procedural requirements of section 385, the court stated, "When the juvenile court contemplates modifying a previous order, either pursuant to a request by a party or on the court's own motion, section 385 does not impose any particular procedural requirement described in Welfare and Institutions Code, article 12. Rather, as indicated by the phrase 'subject to such procedural requirements as are imposed by this article,' the type of procedural mechanism required by section 385 depends on the type of modification sought. (§ 385, italics added.) The use of the word 'such' means that the procedural requirement is 'definite but not specified.' [Citations.]" (Nickolas F., at p. 113.)
Post-disposition removal orders have been construed to be included within the court's authority under section 385. We conclude the nature of the court's order was similarly permissible. (See M.L., supra, 37 Cal.App.5th at p. 399.)
We note the court was not acting completely on its own motion; rather it appeared to be acting in direct response to minors' counsel's and mother's counsel's clear and consistent requests that Juan be placed with mother; these requests, in substance, appeared to be oral section 388 petitions. A section 388 petition may be filed by any party when the party seeks to have a previous order changed or modified, including custody and placement orders, based on new evidence or changed circumstances. (§ 388; M.L., supra, 37 Cal.App.5th at pp. 398-399; In re Anna S. (2010) 180 Cal.App.4th 1489, 1502.) While section 388, as well as California Rules of Court, rule 5.570 require section 388 petitions to be filed in written form with prior notice to the parties, the court is not precluded from considering an oral section 388 petition. (See In re Baby Boy L. (1994) 24 Cal.App.4th 596, 609.) None of the parties below or on appeal appear to have construed these requests expressly as section 388 petitions, so we do not discuss the matter in further detail. If we were to construe minors' counsel's request as an oral section 388 petition, however, our analysis would be the same - whether, in light of the procedural irregularities, father had adequate notice and an opportunity to be heard on the matter. Because minors and mother raised the issue, our conclusion does not implicate father's due process right to a fair trial before a disinterested neutral. (Cf. In re G.B. (2018) 28 Cal.App.5th 475, 487-489 [father's right to a fair trial violated when juvenile court "crafted, asserted, and adjudicated jurisdiction allegations against father" (italics omitted)].) Father does not assert a violation of this type, however, minors' and mother's requests render the present case distinguishable from the type of violation present in In re G.B.
Father asserts the court was not authorized to proceed under section 385 and that a party was required to file a petition requesting the order. Contrary to father's suggestion, a court's authority under section 385 is not limited to circumstances where a party filing a petition requests the order. (Nickolas F., supra, 144 Cal.App.4th at pp. 113-114 [finding a court could act sua sponte under § 385 rather than § 388 because § 388 expressly applied only when a party petitions the court for a change or modification]; cf. In re Brianna S. (2021) 60 Cal.App.5th 303, 313-314, 315-316 [finding that where the agency sought removal from a relative, it must proceed under § 387 rather than § 385, but error was harmless where relative was afforded procedural protections including notice and opportunity to be heard].)
The main issue, properly framed, is whether the procedure used here afforded father with adequate notice of the court's consideration of the issue and an opportunity to be heard.
As to notice, father was personally present at the first section 364 hearing when the issue of whether Juan should be placed with mother was the primary issue and was clearly requested by both minors and mother. While the court ultimately decided to keep the custody and visitation orders as they were, the court short set the matter for three months rather than the customary six months, with an admonition to father that it was considering changing the custody and visitation orders at the next hearing unless it saw him make significant changes regarding minors' well-being. The court's comments made clear the issue was going to be further explored and addressed at the next section 364 hearing. The totality of these circumstances put father on actual notice of the potential placement change, as well as minors' and mother's position in support of the change in placement, contrary to father's assertion in his briefing that he was unaware of minors' and mother's positions.
Father contends the agency did not provide him proper notice of its position because its status review report recommended no change, but county counsel advocated for placement with Juan. Father contends because of this, in addition to his contention he was unaware of minors' and mother's position (which we have explained, is belied by the record), his due process rights were violated. We disagree with father's contention that the agency changed its position. In our view of the record, it appears the agency maintained its position that it was not advocating for removal but commented it did not object to a parenting time change albeit a "drastic" one. County counsel was clear that had the agency been advocating for removal of father, it would have filed a petition but had chosen not to.
Further, with regard to his opportunity to be heard, father was personally present at the August 12, 2021 section 364 hearing and represented by counsel. The court admitted the agency's most recent status review report, three subsequent filings by the agency entitled "additional information," which included updated information from the parents' service providers and delivered service logs, as well as the additional exhibits proffered by the agency and father. The court gave each party the opportunity to put on additional evidence, which all parties, including father, declined. The court then allowed minors' counsel to state its request that Juan be placed with mother on the record and heard argument from the parties.
The circumstances of the present case afforded father adequate notice and opportunity to be heard regarding the possibility Juan may be placed with mother, and as such, we find no error with regard to the court's order and no due process violation.
We acknowledge there are some circumstances that support a contrary conclusion: father's counsel was substituted in after the March 22, 2021 review hearing, and thus was not present for minors' and mother's request and the court's comments regarding the second review hearing; minors' counsel's request was put on the record after the parties had submitted the case; and father's counsel did appear at one point in the hearing to be confused regarding minors' counsel's request. Even if we were to consider these factors in father's favor, and conclude that they hindered father's notice and opportunity to heard on the issue of the potential custody change, we would find any error to be harmless.
Father's new counsel substituted in on June 24, 2021.
When a juvenile court's order is amenable to harmless error analysis, the error may be deemed harmless "[i]f the outcome of a proceeding has not been affected." (In re James F. (2008) 42 Cal.4th 901, 918.) "[A] finding that the juvenile court's error was prejudicial must be based on a claim or prejudice rather than speculation of possible prejudice - because it is simply inefficient to reverse a dependency judgment based upon speculation [of a different outcome]. (See James F., supra, 42 Cal.4th at p. 916 [there is a strong public interest in prompt resolution of dependency cases]; see also People v. Gray (2005) 37 Cal.4th 168, 230 . . . [speculation cannot support reversal of a judgment].)" (In re Esmeralda S. (2008) 165 Cal.App.4th 84, 96.)
Neither party asserts the alleged error was structural requiring per se reversal. Courts are split as to whether errors in juvenile dependency cases - even those of constitutional magnitude - are analyzed under the "harmless beyond a reasonable doubt" standard or the "Watson" standard, which requires the appellant to show a reasonable probability of a more favorable outcome. (See In re Al.J. (2019) 44 Cal.App.5th 652, 665-666.) Father mentions both standards have been used but does not make any arguments as to why the stricter standard applies and maintains that under either standard the error was not harmless. We do not decide the issue here as we conclude any error here is harmless under either standard.
Father contends the alleged error here was not harmless because there were "points and contentions," which should have been "further explor[ed]" at a hearing on a noticed petition, such as the fact that there was no finding made that Christopher was at risk of harm in father's care, but Juan reported "severe mistreatment from [m]other," as well as the effect of separating the siblings on minors' well-being. However, the record indicates the court considered all these issues in making its order. Father cites no authority that a finding that Christopher could safely remain in his care precluded the juvenile court's detriment finding as to Juan. The evidence of Juan's alleged reports of mistreatment by mother were well-documented in the reports as being investigated and reasonably believed to be fabricated by father and Christopher. Further, the court clearly considered the minors' sibling relationship, as it was the stated reason for not changing Juan's custody and visitation at the previous section 364 hearing.
Further, the record contains no indication father had anything additional to add. Father's counsel did not object to any lack of notice, did not indicate he had to consult with father in light of minors' or mother's request, did not request to reopen evidence or request to prepare further argument on the particular point of custody and visitation, and did not request a continuance to prepare to defend against the request. While father objected to mother's counsel's characterization of minors' counsel's argument, he did not object to the substance of mother's argument that Juan be placed with her. In absence of any request to further defend against the request, we cannot conclude father would have put on any evidence, much less, any favorable evidence that would have had any effect on the outcome of the hearing.
Finally, the court explicitly noted it found detriment by clear and convincing evidence, the proper standard when a parent's custody rights are implicated. Father does not contend the evidence was not legally sufficient to support the court's detriment finding nor does father challenge the sufficiency of the evidence supporting any other court findings and orders at the hearing.
Due process requires that "[a] child may not be taken from a parent's physical custody during juvenile dependency proceedings, except for a temporary detention period, unless clear and convincing evidence supports a ground for removal specified by the Legislature," such as the grounds under section 361, subdivision (c). (In re Henry V. (2004) 119 Cal.App.4th 522, 525.) Section 361, subdivision (c) prevents removal of a child from the custody of a parent with whom the child resided at the time of the initiation of the dependency proceedings unless, the court finds by clear and convincing evidence for example, "[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's, guardian's, or Indian custodian's physical custody" (id., subd. (c)(1)) or "[t]he minor is suffering severe emotional damage, as indicated by extreme anxiety, depression, withdrawal, or untoward aggressive behavior toward himself or herself or others, and there are no reasonable means by which the minor's emotional health may be protected without removing the minor from the physical custody of his or her parent" (id., subd. (c)(3)).
DISPOSITION
The juvenile court's August 12, 2021 findings and orders are affirmed.
WE CONCUR: LEVY, Acting P. J., SNAUFFER, J.