Opinion
B318768
06-28-2023
In re C.B., a Person Coming Under the Juvenile Court Law. v. S.C., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Jacques Alexander Love, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, Interim County Counsel, Kim Nemoy, Assistant County Counsel, and Sally Son, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 20CCJP06587A, Ashley Price, Juvenile Court Referee. Affirmed.
Jacques Alexander Love, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Interim County Counsel, Kim Nemoy, Assistant County Counsel, and Sally Son, Deputy County Counsel, for Plaintiff and Respondent.
RUBIN, P. J.
Father S.C. appeals from the juvenile court's dispositional order removing son C.B. from his custody. He contends the court lacked authority to remove son because it granted removal under Welfare and Institutions Code section 385, not section 387. He also argues substantial evidence does not support removal. We affirm.
All subsequent statutory references are to the Welfare and Institutions Code, unless indicated otherwise. Section 385 generally empowers the juvenile court to change its prior orders. Section 387 is more tailored and provides the procedure for removal of a child from parental custody after a dispositional order had previously placed the child with a parent.
FACTUAL AND PROCEDURAL BACKGROUND
Parents have one child together-son, born in 2020. In November 2020, the family came to the attention of Los Angeles County Department of Children and Family Services (DCFS) due to parents' domestic violence.
1. Jurisdiction
On February 11, 2021, the juvenile court assumed jurisdiction over son pursuant to section 300, subdivisions (a) and (b)(1), based on parents' history of engaging in violent verbal and physical altercations, and mother's mental and emotional problems. The violence included eight incidents between August 2018 and November 2020, where parents had caused each other physical injuries and damaged property. The sustained allegations indicated that, at various times, each parent had been the aggressor.
On March 18, 2021, at the dispositional hearing, the court removed son from parental custody. The court provided parents with reunification services, and ordered separate, unmonitored visits with son in the caregiver's home.
2. Six-month Review Period
During the first six months of reunification, father continued to deny any history of domestic violence with mother but was compliant with services. Although they appeared to remain in contact, the parents lived apart and there were no reported instances of domestic violence. At the September 16, 2021 six-month review hearing, over DCFS's objection, the juvenile court terminated the previous suitable placement order and placed son in home-of-parents. The court ordered each parent not to be present during the other parent's time with son. The court also ordered parents to complete co-parenting classes and attend conjoint counseling if they reconciled. The court ordered DCFS to make unannounced home visits.
3. Detention from Mother
On September 18, 2021, shortly after parents had exchanged custody of son, mother became upset about items missing from the diaper bag. With son in hand, mother went to the home of one of father's friends, where father's car was parked outside. There, she cursed and yelled at the friend, demanding to see father. Unsuccessful in her efforts to confront father at the friend's house, mother went to paternal great-grandmother's home. She calmed down but told paternal great-grandmother that she wanted father to return the missing items. After texting father 100 times, mother left. DCFS reported that father acted appropriately in avoiding mother and, thus, a confrontation.
On September 27, 2021, the juvenile court authorized son's removal from mother. That same day, DCFS filed a petition under section 342, alleging that mother's aggressive conduct toward father's friend in son's presence and her irate demands to see father endangered son. On October 5, 2021, the juvenile court formally ordered son detained from mother and released to father, with mother given monitored visitation.
Section 342 states: "In any case in which a minor has been found to be a person described by Section 300 and the petitioner alleges new facts or circumstances, other than those under which the original petition was sustained, sufficient to state that the minor is a person described in Section 300, the petitioner shall file a subsequent petition."
Although DCFS awarded custody to father, the record suggests that DCFS was uncertain of where father was living. Father stated he was living with paternal great-grandmother, but during a mid-September 2021 visit to paternal greatgrandmother's home, the social worker found no evidence of father's presence. For example, father apparently had no clothes in the house, nor was there a crib for son.
4. November 2021 Jurisdictional/Dispositional Report
In the November 2021 jurisdiction/disposition report, DCFS reported that father manipulates and provokes mother. The social worker stated that mother is open to co-parenting and reconciling, but father is not and refuses to spend time with mother. The social worker explained that father agitates mother, often prompting volatile reactions by mother. The report stated that it appeared that father was trying to provoke mother.
For example, the social worker described an interaction where father purposely upset mother when parents were exchanging son at a police station. Father "spoke to the [social worker] with his back purposely turned away from the mother, and then held the child turned away from mother, to agitate her.
Father also didn't bring the playpen that mother allowed him to borrow, and requested him to return that day." The social worker stated that father "tries to get [mother] to go off," and that "he can be a very mean person." The social worker concluded that parents lacked insight and accountability.
During the month following son's detention from mother, father interfered with mother's visitation by turning off his phone to inhibit contact and visitation arrangements, making son unavailable, and attempting to change the visit location.
5. Domestic Violence in a Hotel Room
On November 7, 2021, father allowed mother to spend the night in his hotel room; son was also present. The next morning, parents argued about possibly living together and father's infidelity. Mother told police that at this point, father opened her luggage and began throwing her belongings at her. When father sought to leave, mother pushed father, who was holding son. Father put son down and went into the bathroom to call for help. Mother prevented the bathroom door from closing, and bit father's arm. Both parents called 911; mother also called hotel security. Hotel security separated parents. Father suffered a bite mark on his arm, and mother had a scratch on her arm. Son sustained no injuries. Police officers determined mother was the dominant aggressor and arrested her for domestic violence.
The next day, November 9, 2021, father filed a request for a restraining order, listing himself and son as protected persons, and mother as the restrained party. The juvenile court granted the temporary restraining order.
When interviewed about the hotel incident, father gave conflicting reports to DCFS about why he was in the hotel room, when he arrived, and why and when mother showed up at the hotel. Father told DCFS that his employer paid for the hotel, but provided different accounts about two different companies (including the hotel) employing him. Father then changed his story and stated the hotel was a meeting place, where he and his coworkers took a shuttle to their worksite. Father stated he would provide proof his employer paid for the hotel; none was forthcoming.
Mother told police that she had been staying with father and son for approximately one week at the hotel. Although father told police that mother had spent the night at the hotel with him, father denied to DCFS that mother spent the night or that he had informed mother of his whereabouts. When asked how mother located him at the hotel, father stated mother must have followed him there, and called the hotel to learn his room number, before barging into his room. Father later said that mother" 'just showed up'" to his room and asked to stay. Father explained that mother knew father's schedule "because of their co-parenting." Father said he told mother to leave, but mother forced her way into the hotel room. Father attempted to leave, but mother blocked the doorway and the physical confrontation ensued. Despite telling officers otherwise, father denied to DCFS that he was holding son when mother hit him.
6. Father's Obstruction of DCFS's and Mother's Visits
On December 9, 2021, DCFS filed an ex parte application requesting the court order father to adhere to DCFS's home-of-parent policy, sign all service provider consents, and adhere to the court orders for mother's visits. The application stated that after son's release to father, father had made it difficult for DCFS to complete home visits. Father missed scheduled appointments, tried to limit DCFS's visits to 15 minutes, or abruptly ended the visit without warning. Father was hostile during the home visits and, without permission, used an audio device to record the social worker.
The record does not reflect that the court ruled on this motion.
The application explained that father's home address was unstable, making it difficult to comply with reunification. Father denied living at his Lancaster mailing address that DCFS had on file. He claimed a residence in Carson, but then said he relocated to Los Angeles. Father refused to submit his updated mailing address so that he could receive referrals to service providers. He declined to avail himself of a recommended service provider referral in Antelope Valley - the referral was based on his mailing address - even though all of his other providers were located in Antelope Valley.
DCFS also reported that father made it increasingly difficult to schedule mother's court-ordered visits. When the social worker discussed visitation dates, father responded that he would be out of town although he provided no details. When the social worker attempted to confirm one prescheduled visit, father stopped communicating altogether. At DCFS's next visit to father's home, father became "verbally aggressive and increasingly . . . hostile" when the social worker would not change the location for the exchange of son from father to mother.
Finally, DCFS reported that father missed son's 15-month medical appointment. He then switched son's medical service provider without authorizing the medical facility to provide DCFS access to son's medical records.
7. DCFS's Section 385 Petition for Removal
On December 20, 2021, the juvenile court authorized DCFS to detain son. When DCFS contacted father by telephone, he initially refused to surrender son, stating he needed to contact his lawyer. After additional communication by text and telephone, in which DCFS threatened court action if father did not surrender son, father brought son to DCFS's offices.
On December 28, 2021, DCFS filed an ex parte application and order pursuant to section 385, requesting removal of son from father's custody due to parents' altercation at the hotel. DCFS summarized the hotel incident, providing statements from police officers and father (mother did not make herself available for comment). DCFS also reiterated that father had not provided a stable residence address, was not living at the address he provided DCFS, refused to reveal who cared for son when father was at work, and interfered with DCFS's access to son. DCFS asked the juvenile court vacate its previous order releasing son to father, detain son from father, and place son in out-of-home care. 8. Detention Hearing
At the December 28, 2021 detention hearing, DCFS and son's counsel requested detention from father pursuant to section 385. Son's counsel expressed concern that, after son's release to parents, son was present during two separate violent altercations: first, mother's September confrontation over the missing diaper bag items, and second, the altercation between parents at the hotel. In both situations, parents placed son at risk of physical harm. Son's counsel stated parents were noncompliant with court orders, and not forthcoming.
Father's counsel requested son's return to father's custody. Counsel stated father vehemently objected to being characterized as noncompliant and uncooperative with DCFS. Counsel argued father had been portrayed inaccurately in reports, and asserted father had no control over mother. Counsel highlighted that father had acted protectively over son in response to mother's aggression.
Father then addressed the juvenile court directly and stated DCFS was putting forth a false narrative about father, withholding evidence that did not fit its narrative, and making false statements to strengthen that narrative. Father accused DCFS of abusing its power and argued son had been emotionally harmed by his removal from father's custody.
DCFS argued father violated the court's order not to be with mother and son at the same time. DCFS also pointed out that mother's visitation was supposed to be monitored, and father allowed mother access to son without a monitor. DCFS expressed concern that father was not cooperative with DCFS, failed to make son available to DCFS in violation of the court's orders, and DCFS had difficulty detaining son.
Citing the two incidents since son's release, the juvenile court provisionally detained son from father and ordered that father's visits be monitored. The court also reissued the temporary restraining order protecting father from mother. The court set the hearing on the section 342 and 385 petitions for January 13, 2022.
9. Adjudication of the Section 342 and 385 Petitions, Disposition, and Restraining Order Hearing
On January 13, 2022, the juvenile court stated it was proceeding with adjudication of the section 342 petition and that "the court will then entertain additional testimony or argument regarding disposition as it relates to detention from father." As to the section 342 petition, the juvenile court heard argument from all counsel and sustained the petition in its entirety with amendments.
The court then proceeded to disposition for the petitions. DCFS elicited testimony from one police officer who had responded to the incident between parents at the hotel. Upon arriving at the scene, the officer interviewed mother separately. Mother told the officer that she had been staying with father for a week. The officer observed three to four large luggage bags in the room filled with children's toys and clothes, and mother's clothing. Mother's and son's belongings were messily scattered around the room. Both parents told the officer that the items were mother's.
Called by his counsel, father testified that the night before the hotel incident, he had slept at his home. Father worked at the hotel, and the next morning, he took son to the hotel. Because the caregiver who picks up son in the morning was not returning father's calls, father brought son upstairs to a room that had been assigned to him as a hotel employee. Father had not been in the room long before mother knocked on the door. Mother had at least one bag with her, but father was unsure of the exact number. Father had only brought son's diaper bag with him to the room. Father stated he did not tell mother his room number and did not know how she discovered it, but mother knew he worked at the hotel.
Father testified the last contact he had with mother was during the hotel incident, and up to that point he was in compliance with the court's orders. Father testified he was not interested in reconciling with mother. If the court were to return son to his custody, father stated he would continue to abide by court orders, and rely on his support system and therapy.
In argument, son's counsel joined in DCFS's recommendation to remove son from both parents. Counsel argued the officer's statements relating to the incident at the hotel were more credible than father's version. Regardless of which parent's story was true, parents were in violation of the court's orders, both parents suffered injuries during the incident, and son was at risk. Counsel argued neither parent appreciated the seriousness of the incident, and nothing the parents said indicated that son could be safely released to them.
Father's counsel requested that son be returned to father's custody. Counsel argued father was non-offending under the section 342 petition and cited mother's erratic behavior as the basis for the petition. Father had learned from his programs and was able to care for son. Counsel reiterated mother's conduct was out of father's control, and father took "actions to be protective over his son."
DCFS argued the police officer's testimony that mother's belongings were scattered in the hotel room defied father's account of mother just "swinging by." DCFS highlighted parents' relationship dynamics and how father "eggs the Mother on," indicating that father played a role in instigating the violence. DCFS requested the court order the child suitably placed.
The juvenile court found parents were in violation of court orders. The court did not find father's testimony credible, observing that father provided three or four different versions of the hotel incident and had admitted to police that he had allowed mother into the hotel room. The court credited the social worker's observations about the dynamics between parents and that father was manipulative. The court concluded that both parents were equally at fault and could not be trusted to follow court orders or avoid engaging in domestic violence in the presence of their young son.
The juvenile court removed son from parental custody, and ordered that parents receive family reunification services and separate monitored visitation. The juvenile court granted father's request for a permanent restraining order protecting him from mother.
Father repeatedly interrupted the juvenile court during the virtual proceedings and made inappropriate messages in the chat feature, including one that the court perceived as a threat. The court stated: "I don't know how I can continue to conduct the proceeding without your client interrupting. I would also indicate that during the course of this hearing, I have repeatedly ignored the fact that your client has put several inappropriate messages in the chat feature including one which the court is concerned about in the sense that it is somewhat of a threat. 'I will fight this at every level. Mark my words.' He's referring to this court as a, quote kangaroo court. He is indicating that the decision the court is making today is about money rather than the safety of the child. His behavior is outrageous."
DISCUSSION
Father appeals the court's removal order, asserting that the court was not authorized to remove son absent a section 387 petition.He also argues substantial evidence does not support removal.
DCFS responds that father forfeited his argument that the court was not authorized to remove son absent a section 387 petition because he never made the argument in the juvenile court. We observe that in arguing against removal, father's counsel pointed out that DCFS did not file a new petition. Counsel stated: “Father is non-offending in the 342 petition. [DCFS] did not file a new petition as to father because there is no evidence that his own actions placed the child at risk. The case is here because the mother's erratic behavior . . . .” Although brief and somewhat vague, counsel's statements could be construed to point out the lack of a section 387 petition against father. To the extent counsel failed to adequately bring this issue to the juvenile court's attention, we exercise our discretion to address this argument on the merits.
"We normally review an order removing a child from parental custody for substantial evidence viewing the record in the light most favorable to the juvenile court's findings. [Citations.] When the issue on appeal involves the interpretation and proper application of the dependency statutes, however, our review is de novo." (In re Anthony Q. (2016) 5 Cal.App.5th 336, 344.)
1. Applicable Law
Section 385, the statute cited by DCFS in its petition for removal from father, provides the juvenile court generally with the power to change its previous orders: "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.)
Section 387, the statute on which father relies, provides the procedural requirements for removal of a child from a parent after jurisdiction has been established and dispositional orders had placed the child in the parent's care. "[S]ections 385 and 387 both regulate a juvenile court's authority to modify its dispositional orders, but section 385 applies to the modification of orders generally and section 387 applies more specifically to the modification of prior placement orders." (In re Brianna S. (2021) 60 Cal.App.5th 303, 313 (Brianna S.).) Under section 387, DCFS must file a supplemental petition stating why the previous disposition was ineffective. (§ 387, subd. (b).) "A section 387 petition need not allege any new jurisdictional facts, or urge different or additional grounds for dependency because a basis for juvenile court jurisdiction already exists. [Citations.] The only fact necessary to modify a previous placement is that the previous disposition has not been effective in protecting the child." (In re T.W. (2013) 214 Cal.App.4th 1154, 1161.) Here, given that father was an offending parent under the original jurisdictional findings, there was no requirement that a new sustained allegation against him was necessary to remove son.
The juvenile court then convenes a noticed hearing within 30 days of the petition. (§ 387, subd. (a).) At the hearing, the court first determines whether the supplemental petition's allegations are true. (§ 387, subd. (b).) If true, the court proceeds to the dispositional phase, where DCFS has the burden to show by clear and convincing evidence there is a substantial danger to the child's physical health, safety, protection, or physical or emotional well-being if left in parental custody, and there are no reasonable means to protect the child's physical health without removal from the parents' physical custody. (In re C.M. (2017) 15 Cal.App.5th 376, 388.)
2. Proceeding Under Section 385 Was Harmless Error
We agree DCFS sought and the juvenile court granted removal using the incorrect procedural vehicle, a section 385 petition. The statutory scheme is clear that removal from parental custody at this stage of the proceedings is by way of a section 387 supplemental petition. (§§ 387, 385; Cal. Rules of Court, rule 5.560(c); In re D.D. (2019) 32 Cal.App.5th 985, 989; see Brianna S., supra, 60 Cal.App.5th at p. 314.)
"Like most other errors, procedural errors by the juvenile court require reversal only if they result in a 'miscarriage of justice.' (Cal. Const., art. VI, § 13; see In re Celine R. (2003) 31 Cal.4th 45, 59-60 [ ].) An order does not result in a miscarriage of justice if the court's order is 'substantively correct,' even if the court 'committed' a 'procedural error' along the way." (Brianna S., supra, 60 Cal.App.5th at p. 315.) We evaluate whether father was accorded due process, i.e., notice and the opportunity to be heard, and whether the order was supported by substantial evidence. (Id. at pp. 315-316.)
We conclude the juvenile court's error in ordering removal pursuant to section 385 rather than section 387 was harmless because father received due process and substantial evidence supported removal.
a. Due Process
Despite the petition's invocation of section 385, the juvenile court accorded father all the process he was due under section 387. First, father had notice that DCFS intended to ask for removal because the section 385 petition that DCFS filed explicitly requested removal from father's physical custody. The petition expressly described the basis for removal-the hotel domestic violence, which evidenced father's defiance of court orders and failure to keep son safe, and father's efforts to make son inaccessible to DCFS. On December 28, 2021, the same day DCFS filed the petition, the court held the detention hearing and informed the parties it would be adjudicating the removal petition on January 13, 2022. Father had ample notice of the January hearing. The juvenile court then held a timely hearing, where father testified, presented evidence, and argued his position.
The ex parte application DCFS filed under section 385 stated, "Based on this information, the Department respectfully recommends that Court orders [sic] that the child [C.B.] be detained from the parents, suitably placed in out of home care." The hearing took place within 30 days of the filing of the petition as required by section 387, subdivision (c).
In sum, the juvenile court ensured father received both notice and an opportunity to be heard, satisfying his right to due process, exactly what he would have received under section 387. (Brianna S., supra, 60 Cal.App.5th at p. 315.)
b. Substantial Evidence Supported Removal
Because DCFS removed son from parental custody, DCFS had the burden to show by clear and convincing evidence there was a substantial danger to son's physical health, safety, protection, or physical or emotional well-being if left in parental custody, and there were no reasonable means to protect son's physical health without removal from parents' physical custody. (In re C.M., supra, 15 Cal.App.5th at p. 388.) When "presented with a challenge to the sufficiency of the evidence associated with a finding requiring clear and convincing evidence, the [appellate] court must determine whether the record, viewed as a whole, contains substantial evidence from which a reasonable trier of fact could have made the finding of high probability demanded by this standard of proof." (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1055; see In re I.R. (2021) 61 Cal.App.5th 510, 520 [applying standard to removal order in dependency proceedings].)
Applying this heightened standard, we conclude substantial evidence supported removal. The juvenile court found that father was equally culpable for the violence and could not be trusted to follow court orders or refrain from domestic violence in son's presence. These findings were supported by evidence that father failed to comply with court orders requiring mother's visits to be monitored and prohibiting parents from being together with son. Father placed son at substantial risk of harm by staying with mother and son at the hotel, and engaging in domestic violence there in son's presence.
Father asserts the evidence was insufficient because son was not harmed during the altercation. Father misses the point. "The parent need not be dangerous and the minor need not have been harmed before removal is appropriate. The focus of the statute is on averting harm to the child." (In re T.W., supra, 214 Cal.App.4th at p. 1163.) Here, parents had a long history of domestic violence, father engaged in a pattern of behavior provoking mother, and father lacked insight into his role in the domestic violence.
Father contends there was no present risk to son because father had obtained a restraining order against mother, and parents did not have contact with son in the seven weeks after the hotel incident. The juvenile court, at least impliedly, concluded the restraining order was cold comfort given parents' documented history of ignoring court orders, and the scene father made at the hearing despite the court ordering him to speak through counsel. Father also had repeatedly hamstrung DCFS's ability to monitor and protect son by inhibiting DCFS's access to the child and being altogether evasive about son's whereabouts.
DISPOSITION
The juvenile court's order is affirmed.
I CONCUR: MOOR, J.
BAKER, J., Concurring
I agree we should affirm the order under review, but I would hold the argument S.C. (Father) makes on appeal is forfeited for lack of a contemporaneous objection in the juvenile court (and there is no good reason to exercise our discretion to consider the forfeited issue). (In re S.B. (2004) 32 Cal.4th 1287, 1293 [purpose of the forfeiture rule, which applies in dependency proceedings, is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected].) In my view, Father has not adequately presented an evidence sufficiency challenge; though there is a heading to that effect in the opening brief, any challenge to the sufficiency of the evidence comes only in the context of Father's argument that the juvenile court followed the wrong statutory procedure in removing his son from his custody.