Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK02172, D. Zeke Zeidler, Judge.
Michael A. Salazar, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and O. Raquel Ramirez, Deputy County Counsel, for Plaintiff and Respondent.
ALDRICH, J.
INTRODUCTION
Anne S. appeals from the order of the juvenile court that denied her oral request to have unmonitored visits with her two children. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Very recently, we filed another opinion in this case. We repeat the relevant factual background from that previous opinion (B227775). The family came to the attention of the Department of Children and Family Services (the Department) when they were found sleeping in Anne’s car in a beach parking lot. By then, the family had been homeless for over a year. This dependency arose because of the state of Anne’s mental health, which “ ‘affect[ed] her judgment and ability to properly care for and supervise her children, ’ ” Kerrie S. (age 11 years) and Luis S. (age 13 years). As a result of her mental health issues, Anne made inappropriate decisions for the children and false allegations and accusations about people close to the children. Anne was agitated, confrontational, and uncooperative in front of the children. She was argumentative, violated the court’s visitation orders, undermined and demeaned the children’s relationships with their grandmother, and was unable to comply with the conditions of her visits. The juvenile court declared the children dependents under Welfare and Institutions Code section 300, subdivision (b) and removed them from Anne’s custody. Eventually, the court terminated reunification services because Anne made questionable progress in therapy and her visits ran the gamut from monitored to liberalized and back to supervised. The court found that the children would be at risk if returned to Anne’s care because of her inability to recognize the fact that her numerous false allegations about the children’s caretakers, her persistent need for therapy, her instability, distortion, and lack of impulse control, all put the children at risk.
Although our previous opinions are unpublished, we may nonetheless cite them here as they are law of this case. (Cal. Rules of Court, rule 8.1115 (b)(1).)
All further statutory references are to the Welfare and Institutions Code.
In April 2007, the juvenile court appointed H.D., the children’s paternal grandmother, as their legal guardian. Since then, Anne has filed a series of petitions for modification under section 388 seeking return of the children to her, or alternatively, additional or liberalized visitation.
“By the middle of July 2010, Anne’s visits with the children were monitored by the Human Services Aid at the Department and by Anne’s friend Tania C.
On August 25, 2010, Anne filed another section 388 petition seeking to have the children removed from the legal guardian’s custody and placed with Anne, or in a foster home in close proximity to Anne. After a hearing, the juvenile court denied the petition. We affirmed that order in an opinion filed on May 26, 2011 (B227775).
At the hearing held on November 3, 2010, for the periodic review of the permanent plan (§ 366.3), Anne submitted a document that read: “Kerrie stated that the CSW [children’s social worker] stated ‘You shouldn’t ask for weekends with your mom, because if you do someone could break into your mom’s house and hurt you or your mom, and there is no way for me to protect you if you go to your mom’s house for the weekends. Also, if you go to your mom’s house and something happens there, you will ‘NEVER BE ABLE TO VISIT YOUR MOM AGAIN.’ ” (Emphasis in original.)
In response, the juvenile court ordered the Department to “interview minor Kerrie regarding remarks attributed to Kerrie.” (Capitalization omitted.) The supervising children’s social worker interviewed Kerrie and learned that Kerrie’s attorney made the statement in question. Also, Kerrie stated that Anne altered what the attorney actually said. Kerrie thought her attorney was telling Kerrie that if she were to have overnight visits with Anne, or if the case were closed, that the social worker would no longer be available to protect Kerrie and help ensure that everyone remained safe. Kerrie believed her attorney wanted Kerrie to know that the social worker had the responsibility to ensure that Kerrie was “ ‘safe’ ” and being protected from problems with Anne. The social worker reminded Kerrie, that if she ever felt unsafe, she should call 911.
Kerrie also reported in the interview with the CSW that visits with Anne were better as Anne was getting along with the guardian and was no longer “ ‘bad mouthing’ ” the paternal grandparents. Asked if she would like to live with Anne full time, Kerrie responded, “ ‘no.’ ” Kerrie “ ‘want[ed] to have unmonitored visits with my mom, but not live there.’ ” She wanted to visit Anne on the weekends because when she did before, she was able to play with Anne’s friend’s children.
At the hearing on November 22, 2010, Anne’s attorney requested, based on the social worker’s interview of Kerrie, that Anne be allowed unmonitored visits with both Kerrie and Luis. Kerrie’s attorney replied, “Based on the fact that I am my client’s [guardian ad litem] and having to balance what my client’s desires are and the best interest of my client, I am not suggesting that it’s [sic] in my client’s best interest that she have unmonitored visits with this mother. [¶] Typically what happens in this case is whenever she is granted unmonitored visits, something inevitably happens.” (Italics added.) The juvenile court noted it had been unsuccessful in its efforts to prevent Anne from engaging in inappropriate discussions with the children even during monitored visits.
As the hearing drew to a close, the following dialogue occurred: “THE COURT: As long as I’m able to have DCFS monitor at their office or therapeutic setting, then I at least have a more reasonable option. [¶] THE MOTHER: Faggot. [¶] [THE COURT:] That concludes that matter. Parties are excused. [¶] [MOTHER’S ATTORNEY]: No consideration for the holidays? [¶] THE COURT: No. [¶] THE MOTHER: Faggot. [¶] THE COURT: That’s it. [¶] All prior orders - - [Counsel].... [Counsel] are present. [¶] As the mother left the courtroom, in between the courtroom door and the antiroom [sic] door, the mother looked back and three times said the word faggot, addressing the court. [¶] All counsel are aware that I am openly gay and it was very clear to me from her looking directly at me that it was directed to me. [¶] That concludes that matter.” (Italics added.)
Anne then filed her appeal from the November 22, 2010 ruling.
CONTENTIONS
Anne contends the juvenile court abused its discretion by denying her oral request for unmonitored visits with Kerrie.
The Department argued in its appellate brief that Anne’s notice of appeal did not specify that she was challenging the visitation order, with the result that we lack jurisdiction to consider that challenge. We disagree. “ ‘[I]t is, and has been, the law of this state that notices of appeal are to be liberally construed so as to protect the right of appeal if it is reasonably clear what [the] appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced.’ [Citations.] A notice of appeal ‘is sufficient if it identifies the particular judgment or order being appealed.’ (Rule 8.100(a)(2).)” (In re Joshua S. (2007) 41 Cal.4th 261, 272.) Anne’s notice of appeal was sufficient because it identified the date of the particular juvenile court order she was appealing from and included, “F[ull] F[orce and] E[ffect]/No Change” which would include the visitation orders.
DISCUSSION
1. Anne did not file a section 388 petition and so her oral request for a modification in the visitation orders was procedurally deficient.
Anne’s request for unmonitored visits was made orally, without following the formal procedures of a section 388 petition. As we explained in a prior opinion Los Angeles County Department of Children and Family Services v. Anne S. (Feb. 24, 2010, B215054 [nonpub. opn.].), “Throughout a dependency, interested parties may petition the juvenile court for modification of its prior orders pursuant to section 388. (In re Jasmon O. (1994) 8 Cal.4th 398, 415; Cal. Rules of Court, rule 5.570.) A section 388 modification petition is an appropriate vehicle to ‘extend or limit the right to visitation or to terminate visitation altogether.’ (In re Jennifer G. (1990) 221 Cal.App.3d 752, 757.)
“In In re Lance V., supra, 90 Cal.App.4th 668, the juvenile court issued a disposition order awarding the noncustodial mother reasonable, supervised visits. (Id. at p. 671.) The mother requested mediation to resolve visit-related issues. Mediation failed. At the subsequent hearing, the court reduced the mother’s visitation, and when the mother’s attorney began to protest, the court stated: ‘ “I have made my decision. That’s it.” ’ (Id. at p. 673.) The appellate court reversed the visitation order on the ground that in changing the visitation order without having before it a petition for modification pursuant to section 388, the juvenile court deprived the mother of the procedural safeguards provided by section 388. (In re Lance V., supra, at pp. 676-677.) The court found ‘nothing in the code or in the legislative history that provides for a special hearing authorizing a change in orders following an unsuccessful mediation. Contrary to respondent’s argument, mother did not seek to alter the previous visitation orders; she sought a voluntary resolution of difficulties that were occurring with visitation as ordered.’ (Id. at p. 675.)
“Likewise, here, the... hearing appealed from was held under section 366.3. There is nothing in sections 366.3, or 366 concerning periodic status reviews in general, that would put Anne on notice that visitation was at issue [at the hearing]. No one, least of all Anne, sought to alter the standing visitation orders in advance of the... hearing.” (Los Angeles County Department of Children and Family Services v. Anne S., supra, B215054, at pp. 7-8.) Following this analysis, in February 2010, we reversed the visitation order for lack of notice to Anne and remanded the issue of visitation to the juvenile court for further consideration.
Based on our February 2010 opinion, and the fact that Anne regularly files section 388 petitions seeking modification of visitation and placement orders, it is manifest that Anne is fully aware that a section 388 petition is a required procedural prerequisite to modifying a visitation order. Nonetheless, Anne’s request for unmonitored visitation at issue in this appeal was made orally by her attorney at the hearing to review the permanent plan (§ 366.3). There was no specific notice that unmonitored visits would be an issue at that hearing and no one sought to alter the previous visitation orders before the hearing. Absent a section 388 petition, the requisite notice was not accorded the Department, Kerrie’s attorney, or the guardian.
Anne counters that the Department was on notice that visitation would be an issue because (1) the juvenile court ordered the Department to investigate the statements attributed to Kerrie contained in Anne’s written submission to the court; and (2) in her interview with the social worker, Kerrie stated she would like unmonitored visits with Anne. We are unpersuaded.
In its order, the juvenile court did not direct the Department to interview Kerrie about her desires concerning visitation. The court’s order simply directed the Department to “interview minor Kerrie regarding remarks attributed to Kerrie.” (Capitalization omitted.) The remarks appeared to suggest that harm would come to Kerrie if she went to stay with Anne. Those remarks did not indicate that Kerrie desired to change the existing visitation order; they appear to suggest the opposite. Neither the Department, Kerrie’s attorney, nor any other party filed a section 388 petition seeking to alter the standing visitation orders as the result of the remarks. Furthermore, while the social worker’s report of her investigation mentioned that Kerrie wished to have unmonitored visits, such a comment does not constitute notice to the parties that visitation would be an issue at the periodic status review hearing under section 366.3. As we stated in our previous opinion, “There is nothing in sections 366.3, or 366 concerning periodic status reviews in general, that would put [any party] on notice that visitation was at issue [at the hearing].” Thus, there is nothing about the court’s order to investigate Kerrie’s remarks that would put anyone on notice that visitation would be at issue in the section 366.3 periodic review of the permanent plan hearing on November 22, 2010.
Accordingly, in the absence of the procedural prerequisite of a section 388 petition, the juvenile court did not abuse its discretion in denying Anne’s oral request for a modification of the visitation orders.
2. Even assuming the court’s order to investigate Kerrie’s remarks constituted notice that visitation would be at issue in the November 22, 2010 hearing, there was no abuse of discretion in denying the request to change visits.
Even were we to agree with Anne that Kerrie’s comment to the social worker about unmonitored visits adequately constituted notice, based on this record, the juvenile court did not abuse its discretion in denying Anne’s request because there is no showing that the change would be in the children’s best interest.
“The goal of dependency proceedings, both trial and appellate, is to safeguard the welfare of California’s children.... These proceedings are ‘ “designed not to prosecute a parent, but to protect the child.” ’ [Citation.] The best interests of the child are paramount. [Citations.]” (In re Josiah Z. (2005) 36 Cal.4th 664, 673, italics added, citing § 202, subd. (d) [“Juvenile courts and other public agencies charged with enforcing, interpreting, and administering the juvenile court law shall consider the safety and protection of the public... and the best interest of the minor in all deliberations pursuant to this chapter.” (Italics added.)].)
Here, the juvenile court clearly considered the children’s best interests in denying Anne’s request for unmonitored visits. As we have repeatedly explained in earlier opinions in this case, this dependency was commenced because of Anne’s mental health issues, which issues cause Anne, among other things, to make false allegations and accusations about people close to the children, be agitated, confrontational, argumentative, and uncooperative in front of the children. Throughout the years, Anne has repeatedly violated the court’s visitation orders, undermined and demeaned the children’s relationships with their grandmother, and has been unable to comply with the conditions of her visits. One psychologist explained that Anne’s “repeated false allegations could cause emotional and psychological damage to her children....” Her behavior, we noted, “cause[s] the children to act out and feel anxious themselves.” Anne still cannot control her comments or behavior. As a result, we explained that “this dependency is marked by a continuous cycle of liberalized visits that are subsequently restricted because of Anne’s behavior, which she had not addressed in therapy.” Indeed, we just filed an opinion affirming the juvenile court’s denial of Anne’s section 388 petition to have the children removed from the legal guardian’s care.
At the November 22, 2010 hearing, Kerrie’s attorney and guardian ad litem stated that she could not conclude that unmonitored visits with Anne would be in the child’s best interest. The court itself noted that it was unable to prevent Anne from making inappropriate remarks to Kerrie even during visits that were monitored. Anne was again unable to control herself at the November 22, 2010 hearing and hurled disparaging epithets at the court five times. Although Kerrie expressed to the social worker an interest in unmonitored visits, throughout this case she has vacillated between wanting more and less restricted contact with Anne. In our recently filed opinion, we noted that Kerrie has repeatedly stated “ ‘ “I’ve had it with mom.” ’ She is tired of Anne’s behavior swinging from nice to mean. The children are tired of Anne’s tardiness and want no overnight visits.... Luis only visits with Anne to prevent her from making ‘a big deal’ with the court and the Department.” Although Kerrie’s therapist opined that Kerrie could benefit from overnight visits with Anne, that comment was made in May 2010, and no therapist has recommended unmonitored visits since then. In short, this record more than amply supports the juvenile court’s implied conclusion it would not be in the children’s best interest to grant Anne unmonitored visits with them.
DISPOSITION
The order is affirmed.
We concur: KLEIN, P. J., CROSKEY, J.