In re C.T.
Filed 12/12/12 In re C.T. CA1/4
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
FOUR
In re C.T.,
a Person Coming Under the Juvenile Court Law.
HUMBOLDT
COUNTY DEPARTMENT OF HEALTH & HUMAN SERVICES,
Plaintiff and Respondent,
v.
C.T.,
Defendant and Appellant.
A135757
(Humboldt
County
Super. Ct.
No. JV0900712)
C.T.
(referred to as Father) appeals an order made at a post-permanency plan hearing
for his son, C.T., contending substantial
evidence does not support the juvenile court’s visitation order. We conclude the juvenile court’s visitation
order was proper.
BACKGROUND
We
are familiar with the background of this case through our review of three
earlier appeals in this and a related case.
(In re Tamara T. (July 19, 2012, A132508),
We will not recite the facts found in the “Background†portions of those
opinions, but rather incorporate them by reference. We have taken judicial notice of the records
of those appeals.
As
we explained in our earlier opinions, C.T. and his sister T.T. are the two
oldest of the six children of A.B. (Mother).
Father is the father of C.T. and T.T., but not of Mother’s four younger
children. The juvenile court took
jurisdiction of T.T. on June 14, 2010,
and of C.T. on August 25, 2010. T.T. was eventually placed in foster care.
On
November 29, 2011, at
Mother’s request, and over Father’s objection, the juvenile court ordered a
guardianship for C.T., with his maternal grandmother (Grandmother) as guardian,
pursuant to Welfare and Institutions Code
section 360, and made other dispositional findings and orders. In C.T.
I, we concluded the juvenile court erred in ordering the guardianship under
section 360 because Father had not waived reunification services. Accordingly, we reversed the November 29, 2011 order to the
extent it established a guardianship for C.T.
(C.T. I, A134153,
On
January 25, 2012, the
juvenile court granted the request of the Humboldt County Department of Health
and Human Services (the Department) that Father’s visitation with C.T. and T.T.
be supervised. Father was granted
supervised visitation with C.T. twice a week, so long as he was sober, and the
visits could become unsupervised at the discretion of the social worker after
consultation with C.T.’s counsel. In
A134923, supra, slip op. at pp. 4-5,
6; CT 3:753.)
The
Department filed a status review report for a post-permanency planning review
scheduled for May 29, 2012. (§ 366.3.) According to the report, Grandmother was
providing a “structured and consistent environment.†However, C.T. had recently had emotional
outbursts, particularly at school, and had been physically aggressive. Father had had no contact with the Department
during the reporting period, and only limited telephone contact with C.T. He had not participated in supervised
visitation with C.T. The Department recommended
that visitation occur as stated in the case plan, which indicated Father would
visit with C.T. a minimum of two hours a week and that unsupervised visitation
could take place at the social worker’s discretion with the approval of C.T.’s
attorney.
Father
was not present at the May 29, 2012
hearing. His counsel asked for a
continuance to allow her to review the report with Father. C.T.’s attorney said she wished to submit a
request for a restraining order as to
Father, and Father’s attorney objected to a temporary order being entered
without notice to Father. The juvenile
court told C.T.’s counsel she could submit the request ex parte.
C.T.’s
counsel submitted the request for a restraining order the next day, alleging
that Father had made numerous phone calls to T.T. and C.T. “threatening to hunt
down, kill or have killed friends of [T.T.’s] and that if either [T.T. or C.T.]
tells anyone then he will have them killed too.†According to the petition, the calls had
taken place between May 21, 2012
and May 28, 2012. On May
31, 2012, the juvenile court issued a temporary order restraining
Father from contact with C.T., T.T., and Grandmother. A hearing on the restraining order was set
for June 14, 2012, and the
temporary order would expire on midnight
of that date. The court ordered service
of the notice of hearing at least five days before the hearing. The court also found visitation between
Father and the children would be detrimental and suspended visitation pending
further order of the court.
The
post-permanency review hearing took place on June 5, 2012, that is, after the temporary order had been
issued but before the hearing on the restraining order was to take place. Father appeared through counsel. C.T.’s counsel noted that the court had
issued the temporary order suspending visitation between Father and C.T., and
in order to avoid conflicting orders, asked the court to order visitation
pursuant to the temporary restraining order.
She also asked to have the paragraph allowing unsupervised visitation at
the social worker’s discretion deleted.
Father’s counsel objected on the ground that Father had not been
notified of the restraining order or its grounds. The juvenile court deleted the paragraph
about unsupervised visitation and ordered visitation as provided in the case
plan “except as provided by restraining order issued by a court.†Consistent with its November 29, 2011 order, the court ordered a
permanent plan of guardianship with Grandmother. Father appealed this order.
DISCUSSION
Father’
s only substantive challenge on appeal is that the evidence does not support
the visitation order. However, we must
first consider the threshold issue, raised by Father, of whether our reversal
of the juvenile court’s order establishing a guardianship as a permanent plan
requires us to reverse the order made at the post-permanency hearing. Father argues that this result is required
under Hampton v. Superior Court
(1952) 38 Cal.2d 652, 655, which holds that where there has been an unqualified
reversal, “the order or judgment appealed from is vacated,†and
833, which holds that “[a]n unqualified reversal remands the cause for new
trial and places the parties in the trial court in the same position as if the
cause had never been tried.†In
2011 order to the extent it established a
guardianship for C.T., and otherwise affirmed the order. (C.T. I,
A134153, supra, slip op. at pp. 7-13,
16, 21.) As a result, to the extent the
order currently under review continues to order guardianship as a permanent
plan, it too must be reversed. Father
cites no authority, however, suggesting that our reversal in
our earlier decision. Accordingly, we
will consider Father’s appeal.
Father’s
argument on the merits is as follows:
The juvenile court stated in its June 5, 2012 findings and orders
that visitation would take place as set out in the case plan, except as
provided by a restraining order issued by the court. No restraining order had been admitted into
evidence, nor any evidence that visitation of two hours a week was
inappropriate. Therefore, there was no
substantial evidence to support the juvenile court’s order, and the court abused
its discretion and violated his right to due process in making it. He also argues that the juvenile court did
not follow the proper notice procedures in issuing the temporary restraining
order that was in effect on June 5, 2012.
In
support of his position, Father draws our attention to cases stating that
“[a]bsent a showing of detriment caused by visitation, ordinarily it is
improper to suspend or halt visits even after the end of the reunification
period. [Citations.]†(In re
Luke L. (1996) 44 Cal.App.4th 670, 679; see also In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1138;
580-581 & fn. 5 [appellate court reviews order denying visitation for
substantial evidence].)
This
is not a case, however, in which the order challenged on appeal denied
visitation. Rather, it ordered
visitation as provided in the case plan except
as provided in any restraining order.
Courts are clearly authorized to issue restraining orders in dependency
cases. “[O]nce a juvenile dependency
petition has been filed, the juvenile court may issue a temporary restraining
order protecting the dependent child and any caregivers of the child[,]†and
may issue ex parte orders protecting the child.
(In re Cassandra B. (2004) 125
Cal.App.4th 199, 211, citing § 213.5. subd. (a)); see also (Cal. Rules of
Court, rules 5.620(b) & 5.630.) In
making the order Father challenges, the juvenile court was not called on to
make factual findings as to whether visitation would be detrimental; it simply
stated explicitly what was already implicit in the statutory scheme—that
visitation would be subject to any restraining order the court might issue.
>
DISPOSITION
To
the extent the order appealed from establishes a guardianship for C.T., it is
reversed. In all other respects, the
order is affirmed. Father’s request that
we order further proceedings to be heard before a different judge is denied.
_________________________
RIVERA,
J.
We concur:
_________________________
RUVOLO, P. J.
_________________________
REARDON, J.
name="_ftn1" title=""> [1]
All statutory references are to the Welfare and Institutions Code.
name="_ftn2" title=""> [2]
The record indicates that at the June 14, 2012 hearing on the restraining
order, the children’s counsel said Father had not been served, and the court
reissued the temporary order and set another hearing for July 3, 2012. The record does not reveal the outcome of the
July 3, 2012 hearing. Father has not
appealed any restraining order issued by the juvenile court. (See In
re Cassandra B., supra, 125
Cal.App.4th at pp. 207-209 [restraining order in dependency proceeding is
directly appealable].)
