In re E.A.
Filed 4/22/13
In re E.A. CA1/2
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opinion has not been certified for publication or ordered published for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
TWO
>
In re E.A., a Person Coming Under the Juvenile Court Law. | |
SAN MATEO COUNTY HUMAN SERVICES AGENCY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. Y.A., Defendant and Appellant. | A136944 (San Mateo County Super. Ct. No. 82483) |
County Human Services Agency Children and Family Services (the agency)
filed a petition pursuant to section 300, subdivision (b) of the Welfare and
Institutions Code
title="">[1]
on behalf of E.A. The petition alleged
that Y.A. (mother) was unable to care for E.A. because of mother’s alcohol
abuse. The petition also alleged that
E.A.’s father, M.A. (father), lived in Palestine. Father informed the agency that he wanted
custody of E.A. and at the dispositional
hearing the court removed E.A. from mother and ordered E.A. to be placed
with her father in Palestine. The court stayed the order until the
necessary documents and arrangements could be made for E.A. to travel to Palestine. The court also ordered visitation with mother
and E.A. to be arranged by the parents.
On
appeal, mother argues that the visitation order was inadequate because it did
not specify the amount of visitation or how it would be provided. She also objects to the transfer of E.A. to
father’s home in Palestine and the
juvenile court’s denial of her request to continue the dispositional
hearing. She maintains that the court
did not have sufficient information regarding E.A.’s home in Palestine,
as there was no home check, or the specialized education or services available
to E.A.
We agree that the
visitation order is insufficiently specific, as it needs to set forth the
minimum number of hours of visitation per week or month and whether all of the
visitation will be telephonic. If some
of the visits are to be in person rather than by telephone or video, the court
needs to set forth how such visits will be facilitated and who is to be responsible
for paying for these visits. We reject
mother’s other challenges to the juvenile court’s orders. We conclude that the juvenile court did not
abuse its discretion when it terminated dependency
jurisdiction, granted father legal and physical custody of E.A., ordered
E.A. transferred to Palestine, and
issued a stay of the order until E.A. is on a plane to Palestine. Accordingly, we reverse the visitation order,
but otherwise affirm all of the juvenile court’s orders.
BACKGROUND
>The Petition and Detention
On August 14, 2012, the agency filed a petition pursuant to section
300, subdivision (b) on behalf of E.A.
The petition alleged that the child was not quite 10 years old and that
mother was unable to provide regular care for her daughter due to mother’s
abuse of alcohol. It further alleged
that the agency had provided mother with voluntary services in the past but she
had continued to test positive for various drugs and alcohol. On July 4, 2012, the police stopped mother while she was driving and
she had a 0.18 blood alcohol content; mother had prior convictions for driving
under the influence. Mother had failed
to complete an alcohol/drug assessment or enroll in alcohol/treatment services
and also had failed to secure stable housing or counseling services for her
daughter. Additionally, mother had
pinched E.A., resulting in a bruise on at least one occasion. On March 21, 2012, mother had been placed on a href="http://www.sandiegohealthdirectory.com/">psychiatric hold due to her
intoxication and suicidal statements.
intoxication and suicidal statements.
With regard to E.A.’s father, the petition stated
that he resided in Palestine with E.A.’s twin brother. He had been unable to obtain a visa in order
to travel to the United States to arrange care for E.A.
The agency filed its detention report on August 14, 2012. Prior to
the filing of this petition, E.A., according to the report, had been the
subject of four referrals since 2010.
All of the referrals related to mother’s alcohol abuse and neglect of
E.A.
The
report indicated that mother told the social worker that she married father in Palestine
and father and she “never technically got divorced.†She had not seen father in six years.
A referral to the agency made on June 11, 2012,
triggered the filing of the current petition.
On this date, mother, according to the report, was in the hospital for
unknown reasons and had not made any arrangements for the care of E.A. The referent told the social worker that on
June 9, 2012, mother, while drunk, pinched E.A. during a struggle between
mother and child. The social worker
observed a small bruise on the child’s arm.
The child, according to the report, asserted that she saw her mother
drink from different bottles all day and that her mother hurt her by hitting
her on the back of her head and pinching her.
The child expressed a desire to be with her stepfather (mother’s former
fiancé) or her maternal grandparents.
The detention hearing was held on August 15,
2012. Mother’s counsel stated that
mother was submitting on detention but was concerned about the placement of
E.A. The maternal grandmotherhref="#_ftn2" name="_ftnref2" title="">[2] was at the hearing and the court considered placing
E.A. with her. The maternal grandmother
informed the court that she was supposed to leave for Palestine but had remained
only to make sure that E.A. “is in good condition, in good, safe hands.†She stated that she did not want E.A. to be
placed in a foster home. After further
discussion, the court adopted the agency’s recommendation to have E.A. remain
in the home of Rita R., the mother of mother’s former fiancé.
E.A. with her. The maternal grandmother
informed the court that she was supposed to leave for Palestine but had remained
only to make sure that E.A. “is in good condition, in good, safe hands.†She stated that she did not want E.A. to be
placed in a foster home. After further
discussion, the court adopted the agency’s recommendation to have E.A. remain
in the home of Rita R., the mother of mother’s former fiancé.
The Jurisdictional/Dispositional
Hearing
On
August 31, 2012, the agency filed its jurisdictional/dispositional report. The social worker spoke to E.A. on August 22,
2012, and she reported that her mother was “drunk all of the time.†She asserted that her mother pinched her and
pulled her hair.
On
August 27, 2012, the social worker made a telephone call to father in
Palestine. Father confirmed that he knew
that mother had been abusing alcohol and not providing care for E.A. He reported that he was unable to get his
visa to come to the United States to get his daughter but that he would “love
to have her.†He stated that his green
card had been revoked in 2010 because he did not know that his visa needed to
be renewed every six months.
Mother
told the social worker that she moved to Palestine in July 1999 to reside with
her grandparents. She became engaged in
October 1999, and married father in May 2000.
She stated that father “is extremely well to do and the family owns a
factory in Palestine.†In 2006, mother,
father, E.A., and her twin brother, moved to California with the hope of
establishing a business. After two months,
father decided that the business was not doing well and that they should return
to Palestine. Mother did not want to
return because of the war there and the “limitations†on her life. Mother remained in the United States with
both children, and father moved back to Palestine. In 2007, father visited the United States and
asked if he could take the son back with him; mother said that he promised to
return the child. Mother stated that he
never returned the child. In 2008,
mother tried to go to Palestine to get her son, but she had violated a visa in
1999 and was unable to enter the county.
With
regard to her drinking, mother said that she began drinking at the age of 24,
and was a bartender for approximately five years. She stated that her drinking became a problem
approximately one year ago when she lost her bartending job. Mother acknowledged her drinking problem and
asserted that she wanted to get better and have E.A. returned to her care. On August 29, 2012, mother called the social
worker and maintained that it would be best for E.A. if she went with her
father in Palestine and that he would take good care of her.
Father,
according to the report, said that he was born in Palestine and that he married
mother in 2000. They remained in
Palestine until 2006, and mother, according to father, was an ideal mother
while in Palestine. He confirmed that
they moved to the United States in 2006, and that he wanted to move back to
Palestine after about four months. He
noted that mother wanted to remain in the United States. He claimed that he asked to take both
children back to Palestine with him but mother would not permit that. A year later he returned to the United States
for a visit and again requested to take the children. Mother, according to father, permitted him to
take only their son because she “loved the girl more.†He proclaimed that he had visited E.A. and
had talked to her on the telephone. He
indicated that mother limited his access to E.A. after he expressed concern
about mother’s care of E.A. He told the
social worker on August 27, 2012, that he wanted E.A. to live with him and that
he had a four-bedroom home and would be able to provide a therapist for
her.
On
August 22, 2012, the social worker spoke to E.A. She divulged that she did not like living
with her mother. She said that it would
be hard to pick between her father and her mother’s former fiancé. She also noted that she did not speak Arabic,
(i.e., knew only one word), and that she had her homework and Netflix in the
United States. She reported that her
father treated her well and that in Palestine she would have her brother,
father, her room, and her family. She
said that she did not want to see her mother because she did not treat her
well. The report indicated that E.A. was
receiving speech therapy through the school district and that she was “slightly
developmentally delayed.â€
The
agency recommended that E.A. be declared a dependent of the court and that both
mother and father be offered reunification services. The agency also recommended that the child be
detained in the home of Rita and Rita’s son, mother’s former fiancé.
The
agency filed an addendum report on September 17, 2012. The report revealed that mother had been
residing at the Shelter Network (the shelter) and had participated in an
alcohol and other drug assessment. The
recommendation of the assessment was for mother to enter and complete a
residential treatment program. Mother
registered for the program but did not enter into the program.
The
social worker supervised a visit between E.A. and mother on September 12,
2012. Mother was extremely affectionate
and hugged and kissed the child throughout the visit. Mother was “extremely encouraging and
helpful†in having the child complete her homework.
The
agency filed a second addendum report on September 19, 2012. The report stated that mother mentioned on
September 17, 2012, that she was not sure whether she would be permitted to
remain at the shelter because she had been late on her curfew twice. She admitted that she had been drinking
alcohol with her boyfriend outside the shelter on September 15, 2012, which was
reported to the shelter. The shelter
conducted a breathalyzer test on her; mother failed it. On September 19, 2012, mother confirmed that
she was no longer allowed to stay at the shelter.
The
social worker contacted the case manager for mother at the shelter. The case manager disclosed that mother had
been late on three nights and had failed the breathalyzer tests. Mother appealed the decision to dismiss her
from the shelter and indicated that she had obtained employment and potential
housing with her boyfriend. Mother asked
if she could return to the shelter and was permitted to do so. Mother again returned later than expected,
her breath smelled of alcohol, and she did not pass the breathalyzer test.
In
this second addendum report, the agency recommended that E.A. be declared a
dependent of the court. It stated that
both mother and father would be offered reunification services.
On
September 20, 2012, the juvenile court held the uncontested jurisdictional
hearing. Father appeared telephonically
and was assisted by an Arabic interpreter.
Counsel for mother reported that she received a voicemail that morning
indicating that mother had been taken into custody the night before; thus,
mother was not present for the hearing.
Father’s counsel indicated that he was going to contest disposition.
attorney stated that the primary issue was placement of the child and mother’s
counsel commented that the last time she had spoken to mother “she was in
agreement with the father’s request.â€
The attorney for the child interjected that his client “is pretty
opposed to the idea. Doesn’t speak the
language. Hasn’t seen bio dad in a very,
very long time. It’s not a
relationship.†Counsel added that it
would be “ideal†if father and daughter could get to know each other
first.
E.A.
indicated that she did not want to see her father on the computer when talking
to him, but the court still ruled that Skype should be set up to permit E.A.
and father to see each other when they talked.
The court continued the jurisdictional hearing to be held with the
contested dispositional hearing.
The
agency filed its third addendum on October 17, 2012. The agency stated that E.A. was happy at
Rita’s home and appeared to be doing well.
E.A. told the social worker on several occasions that she enjoyed
residing with Rita; she also told her that she would like to go to Palestine to
be with her father and brother. E.A.
repeated that she did not want to live with her mother. According to the teacher and speech
pathologist for E.A., she had been telling everyone at school that she was
moving to Palestine. Both the teacher
and speech pathologist emphasized that it was important that E.A. continue to
receive specialized education and speech therapy. E.A. was performing at a 1.6 grade level due
to her learning disability and speech problem.
Additionally, there had been “chaos†in E.A.’s prior school year but she
was now improving significantly. Mother
had stated that there were no resources in Palestine to address E.A.’s needs
but father claimed that E.A. would attend an American school in Palestine where
there was “an abundance of resources available.â€
The
report indicated that mother continued to struggle with her alcohol addiction
and continued to be homeless. She was
living with her boyfriend in his car.
Mother had not provided any toxicology tests, and was refusing to get
tested. According to the agency’s
report, when asked whether she still wanted E.A. to live with her father in
Palestine, mother responded: “ ‘No, not
anymore. I was planning on going there,
but now, I am not going to go, so I don’t want her to go either. . . . If she leaves the country, I will never see
my daughter again. I can’t go unless I
finish up everything that is going on here.
If she is here, at least I can see her once a week. I want her to know that I am her mother.’ â€
The
agency’s report stated that father had “been extremely compliant through the
course of the investigation†and consistently confirmed that he wanted E.A. to
live with him in Palestine. He insisted
that he was willing to do whatever was necessary to ensure that she would have
a nurturing environment. Father stated
that E.A.’s twin brother was currently attending an American private school in
Palestine and the majority of the teachers were English speaking and from the
United States. He asserted that if the
school did not have specialized education services, he would hire a private
speech therapist and teacher to assist E.A. with her learning disability.
Father
was having difficulty setting up the Skype contact with E.A., but he was
calling E.A. on the phone. The first
Skype contact was on October 10, 2012, and they were continuing to Skype
multiple times throughout the week. E.A.
also had Skype contact with her twin brother.
Father showed E.A. the house and the bedroom he had prepared for her. E.A. told the social worker that she was
excited to see her family in Palestine.
The
agency also spoke with the maternal grandfather who was living in
Palestine. He opined that it was
essential that E.A. live with father. He
maintained that there were special schools in Palestine and that father could
hire tutors to assist E.A.
The
agency concluded that father had been actively making efforts to have E.A.
returned to him. The report provided the
following: “Any request that the [social
worker] has made, the father has immediately responded. The father sent $200 via Western Union
immediately, he had a document notarized, he established a Skype account, the
father has contacted the [social worker] many times to ensure that the [social
worker] received all of the documents [that] were requested. The father has expressed concern about
[E.A.’s] emotional health and has asked the [social worker] to not disclose
information about the mother to [E.A.] which may ‘hurt her.’ The father has also requested that [E.A.]
leave the courtroom when the discussion of the mother is raised. The father has stressed the desire of having
his daughter return to him and his son.â€
The
agency recommended that physical and legal custody of E.A. be granted solely to
father pursuant to section 361.2, and that E.A.’s dependency status be
terminated.
On
October 19, 2012, the agency filed a second amended petition. The second amended dependency petition
deleted the jurisdictional allegations against father.
The
juvenile court held the jurisdictional/dispositional hearing on October 19,
2012. Father appeared via video and was
assisted by an Arabic interpreter.
Before going on the record, mother’s counsel requested a continuance
because of the late notice of the agency’s change in position. The court denied this request.
Mother
submitted on the amended petition for jurisdiction and waived her rights. The court found the amended petition
true.
Maryam
Adalat, the social worker for the agency, testified. She acknowledged that the current caregivers
of E.A., Rita and her son, were excellent.
She stated that mother had not been testing, was homeless after being
told to leave the shelter, and was not willing to go into treatment. Since mother was not making any progress, she
was concerned that E.A. would not be able to live with mother.
In
addition to mother’s lack of progress, Adalat stated that the agency changed
its recommendation to have E.A. live with father in Palestine because father
wanted his daughter back and had been “extremely compliant.†She admitted that no one from the agency had
been to father’s home to check it. She
explained that the agency would ordinarily have another agency check father’s
home if he were living in another state in the United States, but such a check
was not mandatory because he was not an offending parent.
Adalat
acknowledged that mother was loving and affectionate when she visited with
E.A. E.A., however, told Adalat that she
did not want to be around her mother.
Adalat
admitted that she first did not recommend placement with father because he had
not been the caregiver for the last six years and had little contact with
E.A. That condition had not changed,
although father was having more contact through Skype. Adalat testified that E.A. told her that she
was not sure whether she would select her father or her current placement if
given the choice, but she definitely did not want to be with her mother. Currently, according to Adalat, E.A. was
telling her that she wanted to go live with her father in Palestine. She said that she wanted to be with her
father, brother, and grandfather. Adalat
admitted that E.A. could not be removed from father’s home in Palestine if the
situation did not go well. She conceded
that there was a risk but stressed that father was the nonoffending
parent. She also agreed that E.A. was
doing well this year and that she had concerns about removing her from her
current setting.
Adalat
testified that the maternal grandmother and maternal grandfather told her that
the schools were great and father also assured her that he could get a speech
therapist and a mental health service provider for E.A. if needed. She noted that E.A. was in the fifth grade
but testing at the 1.6 grade level.
Adalat looked at the website for the school that E.A. would be attending
but she could not find much information about special education. Father had not yet had a chance to
investigate special services at the school because he had been busy trying to
obtain E.A.’s birth certificate. She
emphasized that father was willing to hire a tutor or a therapist if services
at the school were not available.
Since
E.A. had been detained on August 15, 2012, she had spoken to father, according
to Adalat, more than 10 times but less than 20.
In all of the conversations, father expressed his desire to have E.A.
live with him. Adalat did not have any
concerns regarding his ability to meet E.A.’s needs and did not believe that
there was any detriment in having E.A. live with her father.
When
doing the risk assessment, Adalat spoke to the maternal grandmother, who is not
Palestinian. The grandmother told Adalat
that she believed E.A. would be safe and happy in Palestine. She acknowledged that there were cultural
differences but the grandmother insisted that women were respected. She asserted that within their community most
of the restrictions were related to safety.
The grandmother had traveled many times to Palestine and had visited
father’s home. Adalat stated that she
also talked to the maternal grandfather, and he confirmed what the grandmother
had said. He said that his wife and he
would stay in Palestine to help E.A. adjust.
Adalat
testified that she also spoke to the current caregivers of E.A., Rita and
mother’s former boyfriend, as they had been in contact with father. They declared that he had been “great†and
had been “an excellent support†for E.A.
Father
testified that he wanted E.A. to come live with him and that he had the
resources to meet her needs. He informed
the court that he had visited the school where E.A. would be going and spoke
with the principal. Father insisted that
the school was excellent, that it had 15 American teachers and 15 Arabic
teachers, and that there was an after-school program to help tutor E.A. in
language. If the school could not meet
E.A.’s special needs, he stressed that he was prepared to hire a
therapist.
Father
revealed his recent marriage and disclosed that his wife was sitting with
him. He declared that his wife supported
E.A.’s coming to live with them.
The
court then heard argument from counsel.
The attorney for E.A. stated that he had “grave concerns.†He maintained that even if it were the right
answer for E.A. to be with her father in Palestine, placing her there now was
premature. He believed there was a
detriment at this point in time to satisfy section 361.2. Counsel expressed concern about placing E.A.
with the nonoffending parent when the parent was living in a country “that we
know very little about.†He added that
father had not “checked out some things regarding what [E.A.] desperately
needs, which is special help in every respect . . . . And he hasn’t inquired if there is a special
ed[ucation] teacher there, trained to deal with children that are delayed. He doesn’t have a therapist lined up. Hopefully, there are therapists nearby. I’m not convinced of that. It would be great to know that and have some
communication begun with that person who’s going to be working with
[E.A.].†He stressed that E.A. was now
working with people and she was flourishing and that he “would hate to see her
move into a situation where she’s going to stagnate or not have that special
help that she needs in order to develop into an adult.â€
Counsel
for E.A. suggested that the court take jurisdiction and continue the case for
further disposition and then the social workers could visit father’s home and
the school in Palestine. During that
time, E.A. could study some rudimentary Arabic.
He also had apprehension over the court’s learning that father had just
married and nothing was known about father’s new wife. He concluded:
“But combine that with the fact that it’s been six years since there’s
been contact, there is just a tremendous amount of concerns that amount to
detriment at this point.â€
At
the end of the hearing, the juvenile court ruled as follows: “Nobody likes to take away a child from a
parent, but I’m really bound by the presumption, or the clear and convincing
evidence, that the placement would be detrimental to her safety, protection, or
physical or emotional well-being.
[¶] And while [the attorneys for
E.A. and mother] have concerns about that, and there are some concerns, but
that standard has not been met.†The
court concluded that the concerns did not establish detriment and the
attorneys’ concerns were “sort of speculation.â€
The court found that father “was a very credible witness†and observed
that he was “going to be a very loving parent, who [was] going to do everything
possible for his daughter.†The court
granted father sole physical and legal custody, and stated that dependency
would be terminated once E.A. was transported to Palestine. The court noted that dependency would remain
open until the transfer with “the same supervision and the same living
situation†that she currently had. The
court ordered maternal grandfather to transport E.A. to Palestine.
The
minute order of the hearing on October 19, 2012, stated that sole physical and
legal custody of E.A. was granted to father pursuant to section 361.2. The order provided that E.A.’s dependency
status was terminated and that this order was stayed “until child is on the
plane to Palestine.â€
Reconsideration
On
October 19, 2012, mother filed a notice of appeal from the order of this same
date, which closed the dependency proceeding and gave custody of E.A. to
father. Five days later, on October 24,
2012, mother filed a motion for reconsideration and for a stay. Father and the agency separately filed
opposition to mother’s motion for reconsideration.
The
agency filed an addendum report on October 25, 2012. The reported indicated that mother had missed
two supervised visits with E.A. and refused to participate in testing. The maternal grandmother told the social
worker that she was moving to Palestine to help with E.A.’s transition. She reported that she believed that father
would be “the best father.†She told the
social worker that E.A. was “very happy and excited about going to Palestine.â€
The
juvenile court held a hearing on October 26, 2012.
acted as the interpreter. Counsel for
mother raised various arguments but presented no new evidence. Counsel for father asserted that mother had
presented no new evidence or any change in circumstances. Counsel for E.A. argued that the child’s best
interest was the most important consideration and that no investigation had
been done of father’s home and father had a brand new wife who had not been
interviewed. Additionally, there had
been an inadequate investigation into the special education services and there
was the issue that E.A. did not speak Arabic.
Counsel maintained: “It is
detrimental––all of those things are detrimental to the child if any of those
things turn out to be problematic and there is nothing we can do about it once
she leaves.â€
At
the end of the hearing, the juvenile court stated: “[I]n my view there is no new evidence to the
mother’s benefit that would cause me to want to change my order. But even if I could completely reopen the
hearing and take in all the evidence, including what is known now about the
maternal grandmother, mother’s refusal to test, mother’s missing visits, it is
very clear to me that the best interest of this child would be to be with the
father.†The court denied the motion for
reconsideration and the request for a stay.
The
court signed the custody order and final judgment on October 26, 2012, which
stated that E.A. was to live with father and that he had legal and physical
custody of E.A. The order indicated
visitation for mother and that it was to be arranged by the parents.
On
November 13, 2012, mother filed her supplemental notice of appeal. On this same date, she also filed a petition
for writ of supersedeas and requested a stay.
Two days later, on November 15, mother filed for temporary orders
pending determination of the petition for writ of supersedeas and the request
for a stay. We granted this application
for temporary orders. Father applied for
permission to file opposition, which we granted. The agency and father separately filed
opposition to mother’s writ. On November
29, 2012, we summarily denied mother’s writ of supersedeas. We denied her second petition for writ of
supersedeas and request for an immediate stay on April 19, 2013. Subsequently, we granted mother’s unopposed
request for judicial notice.
DISCUSSION
Mother
challenges the juvenile court’s ruling that mother may visit E.A. “[a]s
arranged by the parents.†She argues
that the court should have provided standards for how the visitation would be
provided given that mother was homeless and without resources and that E.A. was
being placed with her father in Palestine.
Section
361.2, subdivision (b)(1) states that the court “may†when ordering the
nonoffending parent with legal and physical custody of the child “provide reasonable
visitation by the noncustodial parent.â€
it “may issue . . . an order determining the custody of, or visitation with,
the child.†(§ 362.4.) In making any custody or visitation order,
the juvenile court must always consider the best interests of the minor. (In re
John W. (1996) 41 Cal.App.4th 961, 973, superseded by statute on another
issue.) Section 362.4 authorizes the
juvenile court “ ‘to make custody and visitation orders that will be transferred
to an existing family court file and remain in effect until modified or
terminated by the superior court.’ †(
203.) Such an order is commonly referred
to as an “exit order.†(
“We
review an order setting visitation
for abuse of discretion. [Citation.]â€
(In re R.R. (2010) 187
Cal.App.4th 1264, 1284.) “ ‘The
appropriate test for abuse of discretion is whether the trial court exceeded
the bounds of reason. When two or more
inferences can reasonably be deduced from the facts, the reviewing court has no
authority to substitute its decision for that of the trial court.’ [Citations.]â€
(In re Stephanie M. (1994) 7
Cal.4th 295, 318-319.)
On
appeal, mother maintains that she did not forfeit her challenge to the
visitation order because in the lower court she argued that placement with
father would deny her any real possibility of visitation and she would be
essentially without a remedy because E.A. would be in Palestine. Mother, however, did not specifically object
below on the basis that the visitation order was too vague or that it
improperly failed to specify the frequency or duration of her visits with
E.A.
“In
dependency litigation, nonjurisdictional issues must be the subject of
objection or appropriate motions in the juvenile court; otherwise those
arguments have been waived and may not be raised for the first time on
appeal.†(In re Christopher B. (1996) 43 Cal.App.4th 551, 558.) An appellate court’s discretion to excuse forfeiture
should be exercised rarely and only in cases presenting an important legal
issue. (In re. S.B. (2004) 32 Cal.4th 1287, 1293, superseded by statute on
other grounds.) In dependency cases,
however, discretion to consider forfeited claims “must be exercised with
special care[,]†“[b]ecause these proceedings involve the well-being of
children[.]†(Ibid.) The overriding issue
should remain consideration of the child’s best interests.
Here,
the alleged defect in the visitation order is a question of law. When a visitation order is inadequate, it
could lead to unnecessary conflict between the parents. This conflict could ultimately deprive E.A.
of continued contact with her mother.
Since mother raises an important legal issue and the interests of justice
weigh in favor of consideration, we will exercise our discretion to consider
the visitation order. (See
1236, 1267.)
A
visitation order “necessarily involves a balancing of the interests of the
parent in visitation with the best interests of the child. In balancing these interests, the court in
the exercise of its judicial discretion should determine whether there should
be any right to visitation and, if so, the frequency and length of
visitation.†(In re Jennifer G. (1990) 221 Cal.App.3d 752, 757.) If a juvenile court “grants visitation, ‘it
must also ensure that at least some visitation at a minimum level determined by
the court itself, will in fact occur.’
[Citation.]†(
1497, 1505.) “[B]y failing to mandate
any minimum number of monitored visits [within a stated period of time], the
court’s abstract recognition of [a parent’s] right to visitation is illusory .
. . .†(In re S.H. (2003) 111 Cal.App.4th 310, 319; see also
not be allowed to control whether visitation occurs]; In re Chantal S., supra, 13 Cal.4th at p. 213 [a juvenile court
abuses its discretion when it delegates to a third party the complete authority
to decide whether visitation takes place].)
The power to determine
the right and extent of visitation by a noncustodial parent in a dependency
case, including orders issued when the dependency case is terminated, resides
with the juvenile court and may not be delegated to nonjudicial officials or
private parties. (In re Donnovan J. (1997) 58 Cal.App.4th 1474, 1476.) In In
re T.H. (2010) 190 Cal.App.4th 1119, the juvenile court terminated
dependency jurisdiction and issued an exit order allowing supervised visitation
by father “ ‘to be determined by the parents.’ †(Id. at
p. 1122.) In holding that the lower
court abused its discretion in issuing this visitation order, Division Five of
this court explained that the rule of
nondelegation applies to exit orders issued when dependency jurisdiction is terminated. (Id. at
p. 1123.) A visitation order that states
that visitation is “to be determined by the parents,†does more than simply
delegate ministerial tasks, such as the “authority to set the ‘time, place, and manner’ of the visitation—it effectively delegates
to mother the power to determine whether visitation will occur at all.†(Ibid.) The appellate court noted that the record
demonstrated the inability of the parents to get along, suggesting that any
agreement regarding visitation would be difficult to achieve. (Ibid.) Division Five concluded that the lower court
abused its discretion by structuring the visitation order in a manner that
provided the mother with essentially veto power over father’s right to
visitation. (Id. at p. 1124.)
Here, similarly to
the trial court in In re T.H., supra, 190
Cal.App.4th 1119, the juvenile court framed the visitation order to give father
veto power over mother’s right to visitation; thus her right to visitation is
illusory. The order stated that mother’s
visitation with E.A. was to occur “[a]s arranged by the parents.†The order does not specify
whether the visits are to be in person or by telephone; it does not set forth a
minimum number of telephonic and/or in-person visits; and it does not mandate
the length of time for each visit.
Furthermore, if the court intended to require in-person visits, it did
not provide any information on whether E.A. was to travel to the United States
or whether mother was to travel to Palestine and whether father should pay for
these trips. The court could properly
leave the details, such as the time or day, to the parents, but it should have
set forth the minimum number of visits per week or month, the minimum amount of
time the visits should last, and whether such visitation was to be solely by
phone or video. If the court rules that
the phone visits are to be supplemented with in-person visits, the court must
detail the number and length of these visits and how they are to be facilitated.
The agency stresses that
when ordering legal and physical custody of the child to the nonoffending
custodial parent the only requirement under section 361.2, subdivision (b)(1)
is that the court order “reasonable†visitation to the other parent. Additionally, California Rules of Court, rule
5.695(a)(7)(A) provides that a court at a disposition hearing may remove
physical custody from the parent and “[a]fter stating on the record or in
writing the factual basis for the order, order custody to the noncustodial
parent, terminate jurisdiction, and direct that Custody
Order––Juvenile––Final Judgment (form JV-200) be prepared and filed under
rule 5.700[.]†Here, the court ordered
visitation pursuant to section 361.2, subdivision (b)(1), and checked the box
on the Judicial Council form that stated mother may visit the child “[a]s
arranged by the parents.†The agency
argues that the court’s order was therefore sufficient.
As already discussed,
this visitation order was legally inadequate.
The court did not order “reasonable†visitation as the order of
visitation was illusory. The court could
not delegate to father the power to determine whether any visits would occur
and, if so, their frequency and duration.
(See In re Chantal S., supra, 13
Cal.4th at pp. 213-214; In re T.H.,
supra, 190 Cal.App.4th at p. 1122.)
The
agency also argues that the order was sufficient because father testified that
he would pay for an airplane ticket for mother to visit E.A. Furthermore, the agency points out that
mother could seek relief in the family court if father fails to cooperate with
the visitation order.
Father
did indicate that he would consider paying for a plane ticket for mother to see
E.A., but it is completely unclear whether he would do this one time or multiple
times. Furthermore, there was no promise
from father about having E.A. have telephonic contact with mother, which is of
paramount importance in a situation where the child is moving to a foreign
country and the costs and visa restrictions may bar any possible in-person
contact.
We
disagree with mother to the extent that she relies on In re Marriage of Condon (1998) 62 Cal.App.4th 533 (
juvenile court must ensure that visitation will, in fact, occur. In Condon,
the parents had been temporarily awarded joint legal and physical custody
of the two children in a dissolution case and the mother wished to return to
her native Australia with her two children.
(Id. at pp. 536-541,
550.) The trial court issued a custody
order providing that the children would spend the school year with their mother
in Australia and their vacation periods with their father in California. (Id. at
p. 540.) The appellate court held that
the trial court needed to take steps to ensure its orders would remain
enforceable in Australia. (
Cal.App.4th 533 is clearly
distinguishable from the present case as it was not a dependency case and the
children had not been removed from one parent’s home. Thus, in Condon,
“protective measures were necessary to ensure the nonmoving parent’s
continuing custody or visitation rights.â€
(See In re Karla C., supra, 186
Cal.App.4th at p. 1266 [distinguishing Condon
and other family law custody cases involving international relocation from
dependency proceedings].) In contrast,
here, the issue is mother’s visitation rights once E.A. is in Palestine and the
court could have issued an order granting mother no visitation. Additionally, dependency was terminated and
the juvenile court has no continuing authority with regard to visitation.
Cal.App.4th 1236 is also unavailing. In
was required to take measures to ensure compliance with its orders while it
retained jurisdiction. In the present
case, the juvenile court terminated jurisdiction and any problem that develops
regarding visitation can be raised in the family court. If we were to adopt the argument urged by
mother, juvenile courts would be reluctant to ever offer visitation in
situations, like the present, where enforcement of the visitation order in the
foreign country cannot be assured and placement with the nonoffending parent in
the foreign country is in the child’s best interest.
Mother
maintains that “[a]n unenforceable order is no order at all, and thus is
void.†(Condon, supra, 62 Cal.App.4th at p. 562.) The visitation order is not unenforceable or
void in the United States, and the juvenile court is in the best position to
assess whether it is likely that the nonoffending parent will follow the
court’s orders and act in the child’s best interests. Here, the record supports the juvenile court’s
implied finding that father would not prevent mother from visiting E.A. and
would act in a manner consistent with E.A.’s best interests. The juvenile court found father to be
credible and committed to the best interests of E.A. The social worker testified that father had
complied with all of her requests and had demonstrated a commitment to E.A.’s
best interests. Nothing in this record
suggests that father would refuse to comply with a visitation order. We agree, however, that if the court orders
visitation other than telephonic visitation, it should address how such
visitation should be facilitated.
Accordingly,
we reverse the juvenile court’s visitation order and remand for the juvenile
court to specify the minimum number of visits, the minimum duration of the
visits, and whether the visitation is to be by telephone, in person, or
both. If in person, the court should set
forth how this visitation should be facilitated.
with Father
Mother does not contest the order removing E.A. from her
custody and does not argue that she could reunify with E.A. Instead mother challenges the juvenile
court’s decision to terminate jurisdiction and place E.A. with father.
The
juvenile court at the dispositional hearing has broad discretion to make
custody orders when it terminates jurisdiction in a dependency case. (§ 361.2, subd. (b); In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re Nada R. (2001) 89 Cal.App.4th 1166, 1179.) Thus, we review the trial court’s decision to
terminate jurisdiction and issue a custody order for abuse of discretion. (Nada, at
p. 1179.)
“When
a court orders removal of a child pursuant to Section 361, the court shall
first determine whether there is a [noncustodial] parent . . . who desires to
assume custody of the child. If that
parent requests custody, the court shall place
the child with the parent unless it finds that placement with that parent would
be detrimental to the safety, protection, or physical or emotional well-being
of the child.†(§ 361.2, subd. (a),
italics added.) Section 361.2, subdivision
(a), evidences “the Legislative preference for placement with [the
noncustodial] parent . . . .†(
1124, 1132.)
“[A] nonoffending parent has a constitutionally protected
interest in assuming physical custody, as well as a statutory right to do so,
in the absence of clear and convincing evidence that the parent’s choices will
be ‘detrimental to the safety, protection, or physical or emotional well-being
of the child.’ [Citations.]†(In re
Isayah C. (2004) 118 Cal.App.4th 684, 697.)
The juvenile court must make the detriment finding by clear and
convincing evidence and we review this evidence in the light most favorable to
the court’s decision to determine whether substantial evidence supports the
lower court’s ruling. (
1564, 1569-1570.)
Section
361.2, subdivision (b) gives the juvenile court three choices once it decides
to place children with a noncustodial parent.
First, as the court did here, it may make custody and visitation orders,
to be filed in family court, and terminate dependency jurisdiction. (§ 361.2, subd. (b)(1).) Second, the court may retain dependency
jurisdiction and require the agency to conduct a home visit within three
months, after which the court may proceed pursuant to any of the three options
in section 361.2, subdivision (b). (§
361.2, subd. (b)(2).) Third, the court
may retain dependency jurisdiction and order services for either parent or both
parents, and if it orders services for both, it may make a custody
determination at a review hearing. (§
361.2, subd. (b)(3).)
In
the present case, the record supported the juvenile court’s finding that E.A.’s
placement with father would not be detrimental to her safety, protection, or
physical or emotional well-being. When
first contacted by the social worker on August 27, 2012, father stated that he
was unable to get his visa to come to the United States but that he would “love
to have†his daughter. He stated that he
wanted E.A. to live with him and that he had a four-bedroom home. He also said that he would provide a
therapist for her, if needed. According
to father, he wanted to have both of his children live with him, but mother
refused to permit E.A. to accompany him back to Palestine. He told the social worker that he was willing
to do whatever was necessary to ensure that E.A. would have a nurturing
environment. He maintained that if the
American private school in Palestine that E.A. was to attend did not have
specialized education services, he would hire a private speech therapist and
teacher to assist E.A. with her learning disability.
Additionally,
father demonstrated a concern for E.A.’s emotional health. He told the social worker not to report to
E.A. any information about mother if that information could “hurt her.†Father also requested that E.A. leave the
courtroom when there was any discussion of mother.
Although
E.A. had limited personal contact with her father, she had telephonic visits
with him. Early in the proceedings, E.A.
indicated that she wanted to remain at Rita’s home but, subsequently, she told
the social worker on several occasions that she would like to go to Palestine
to be with her father and brother.
Additionally,
both the maternal grandfather and maternal grandmother asserted that father
would be a good parent to E.A. and that she should be placed with him. They confirmed that they would stay in
Palestine to help E.A. adjust. Rita and
her son, the current caretakers of E.A., also told the social worker that they
had been in contact with father and that he had provided excellent support for
E.A.
The
foregoing evidence amply supported the juvenile court’s ruling. Mother does not argue that the evidence
demonstrates that father would not be a good father but claims that the
inadequate investigation of father’s home in Palestine established clear and
convincing evidence of detriment. She
maintains that the investigation by the agency did not comply with the social
study report requirements as set forth in sections 16501.1 and section
358.1. (See also Cal. Rules of Court,
rule 5.690(a) [petitioner must prepare a social study of child, which includes
a discussion of all matters relevant to disposition].)
“
‘The [a]gency has a duty to apprise the court of all relevant facts and
circumstances when issuing reports.
[Citations.] “At each stage of
the dependency proceeding, the social services agency is statutorily mandated
to prepare social study reports and make recommendations to assist the
court. [Citations.] In this role, the social services agency acts
as an impartial arm of the court in assisting the court to carry out the
Juvenile Court Law.†[Citations.] ‘The duties to furnish child welfare services
and to provide reports and recommendations to the juvenile court are actually
placed by statute upon “the social worker.†’
[Citation.]†(
987, 1011-1012.) Here, the record
demonstrates that the agency prepared a disposition report and satisfied its
duties under the statutes.
Sections
358.1 and 16501.1 do not support
mother’s argument that the investigation was inadequate. Section 358.1 simply sets forth the “factual
discussion†that must be in each social study or evaluation made by the social
worker. Here, there is no allegation
that the social worker did not have a plan required by section 358.1, and this
section does not require any more information than was provided by Adalat. As courts have recognized, section 16501.1 does
not create any mandatory duty. Section
16501.1 contains a recitation of the Legislature’s findings and a declaration
of the goals and purpose of case plans for children involved in dependency
proceedings. Where an out-of-home
placement is necessary, this statute provides that selection of the placement
must be evaluated according to stated criteria, and must be based on an order
of priority that puts relatives above foster families. (§ 16501.1, subd. (c)(1).) The statute is merely declaratory of the
Legislature’s goals for dependent children and “creates no mandatory
duties.†(County of Los Angeles v. Superior Court (2002) 102 Cal.App.4th 627,
641; see also Becerra v. County of Santa
Cruz (1998) 68 Cal.App.4th 1450, 1460.)
Mother
argues that the record demonstrates that the agency did not carry out its duty
because it did not investigate whether a home study could be done of father’s
home in Palestine. Mother contends that
Adalat was under the impression that no home check could be conducted but the
record does not show that Adalat attempted to contact Israeli authorities or
the Palestinian authority to confirm that no welfare check could be conducted.
E.A.’s counsel requested a home visit prior to placing E.A. with father in
Palestine. She emphasizes that Adalat,
the social worker, conceded that father’s home would have been investigated had
father lived in this country. Mother
contends that the social worker improperly delegated the responsibility of
investigation to the father seeking custody. (See In
re John M., supra, 141 Cal.App.4th 1564.)
Mother
maintains that the record demonstrates that a home study was especially
important in the present case. She
stresses that E.A. was being placed in a region where there is a war, E.A. has
special education needs and not even father was certain that the school in
Palestine would meet her needs, and E.A. did not speak Arabic. Additionally, mother stated that she had
“experienced severe oppression while in the Middle East†and she also told the
social worker that her “partner†also had a drinking problem. There was also, mother insists, an inadequate
investigation of the other people in the household as there was an incident
with the maternal grandfather where he pushed mother away from E.A. and mother called
the police. There was no investigation
into father’s new wife.
Mother
does not cite any authority that requires a home study before placing a child
in the nonoffending parent’s home. When
placement is with a parent, “the appropriate investigation is a basic one, less
rigorous than the investigation necessary for placement with a more distant
relative such as a cousin.†(
p. 1573.)
Contrary
to mother’s argument, the agency did not simply accept father’s statements
about the home situation in Palestine.
Adalat did not personally visit the school E.A. would be attending in
Palestine but she reviewed the information about it on its web site. She did not have any obligation to contact
authorities in Palestine or Israel to do a welfare check on father’s home when
the evidence in the record showed that father’s home was safe and that he was
committed to ensuring that E.A.’s needs would be met. Rather than simply relying on father’s
statements, the social worker confirmed her impressions of father and the
veracity of father’s statements with the maternal grandmother, maternal
grandfather, and Rita. The maternal
grandmother had been to Palestine and both she and the maternal grandfather,
who was in Palestine during part of the proceedings, assured Adalat that the
schools were good and father’s home would be good for E.A. Adalat explained that she felt the most
reassured by the maternal grandmother’s statements since she was not
Palestinian.
The
record also contained sufficient evidence to support the juvenile court’s
conclusion that E.A. would be safe in Palestine. Mother argues that the area is “war-torn†but
cites no evidence showing that E.A.’s welfare would be seriously jeopardized if
she were living with her father and twin brother in Palestine. There is no evidence that her twin brother,
who is currently living with father, is in danger. Furthermore, maternal grandmother insisted
that there was not a safety problem where father lived and, although there are
cultural differences, women are respected.
Mother did state that she experienced oppression in Palestine but, at
one point during the dependency proceedings, she favored placing E.A. with
father in Palestine and believed such a placement would be beneficial for
E.A. On August 23, 2012, mother told the
social worker that she wanted E.A. back but less than one week later, on August
29, mother told the social worker that she wanted E.A. “to go with her father
in Palestine. I think that this is what
would be best for her. He will take good
care of her and she will be with her brother.â€
At the hearing on September 20, 2012, when discussing the placement of
E.A., mother’s counsel stated that the last time she spoke to mother “she was
in agreement with father’s request†to have E.A. placed with him.
Mother’s
stated reason for contesting the placement of E.A. with father in Palestine was
not related to any perceived detriment or danger to E.A. She opposed the placement because mother
originally was also going to go to Palestine but when she decided not to go or
she learned that she could not go, she did not want E.A. to go. When asked on October 10, 2012, by the social
worker whether she still wanted E.A. to return to her father in Palestine, she
responded: “ ‘No, not anymore. I was planning on going there, but now, I am
not going to go, so I don’t want her to go either. . . . If she leaves the country, I will never see
my daughter again. I can’t go unless I
finish up everything that is going on here.
If she is here, at least I can see her once a week. I want her to know that I am her mother.’ â€
Thus,
the evidence supported a conclusion that mother was not worried about E.A.’s
welfare or safety in Palestine. The
record also supported the juvenile court’s finding that E.A.’s home in
Palestine was safe. There was no
evidence in the record, other than mother’s one statement that her “partnerâ€
had a drinking problem, to indicate that father had a substance abuse problem
or that his home would be unsafe. As
already noted, the statements of the Rita and her son about their interactions
with father, the separate declarations of the maternal grandparents, and the
promises and actions of father demonstrated father’s concern for E.A.’s needs
and confirmed that he had the resources to provide her a home that would meet
her needs.
Finally,
mother argues that the record did not demonstrate that E.A. could become a
permanent resident of Palestine. She
cites cases that show that sovereign nations require approval for entry. We took judicial notice of the documents
submitted by mother that show that Israel must approve in advance any request
for permanent residency. She argues that
the juvenile court did not have sufficient evidence that E.A. could become a
permanent resident.
Mother’s
“evidence†is insufficient. It does not
show that E.A. will not be able to enter Palestine and it does not show that
children of Palestinians have any difficulty joining their parents in
Palestine. The record is completely
devoid of any evidence that E.A. will not be able to emigrate or that she will
not be able to become a permanent resident.
We conclude that the record shows that the juvenile court
made a reasonable determination that the agency’s investigation into father’s
situation was sufficient to determine that E.A.’s safety and welfare in
father’s custody in Palestine could be assured.
Mother has not cited to any law that requires a more thorough
investigation of father than the investigation done. The investigation revealed that E.A. would
have a home in Palestine where she would have her own bedroom and would be
living with her father, twin brother, and other relatives. Her maternal grandmother and maternal
grandfather, with whom she had a relationship, would be there to help her
adjust. Her father indicated that he
would make sure that her schooling was adequate and that she would receive a
therapist or other personal assistance if necessary. The court found father to be credible and the
record supported this determination as he complied with all of the agency’s
requests and exhibited a commitment to E.A.’s best interests. We agree with the juvenile court’s finding
that the argument that jurisdiction should not be terminated and placement
postponed until further investigation can be conducted because Palestine or
father’s home might not be safe is based on speculation, not evidence.
Accordingly, we conclude that the record supported the
finding of no detriment and the court did not abuse its discretion in
terminating jurisdiction and placing E.A. with father.
of Mother’s Request for a Continuance
Mother contends the juvenile court abused its discretion
when it denied her request for a continuance of the
jurisdictional/dispositional hearing. At
the hearing on October 19, 2012, there was a conference prior to going on the
record where mother requested a continuance based on the “late notice of the
agency’s change in position . . . .â€
Continuances in juvenile proceedings are disfavored. (See In
re Axsana S. (2000) 78 Cal.App.4th 262, 272, disapproved on another ground
in In re Jesusa V. (2004) 32 Cal.4th
588, 624, fn. 12.) When considering a
request for a continuance, the juvenile court must give substantial weight to
the child’s need for prompt resolution, the need to provide the child with a
stable environment and the damage to the child resulting from prolonged
temporary placement. (§ 352, subd.
(a).) Further, “[c]ontinuances shall be
granted only upon a showing of good cause and only for that period of time
shown to be necessary by the evidence presented at the hearing on the motion
for the continuance.†(§ 352, subd.
(a).) The standard of review on appeal
of a denial of a continuance is abuse of discretion. (In re
Karla C. (2003) 113 Cal.App.4th 166, 180.)
In
its second addendum report filed on September 19, 2012, the agency recommended
that E.A. be declared a dependent of the court and that reunification services
should be offered to both mother and father.
On October 17, 2012, the agency filed its report and changed its
recommendation. It recommended that the
court terminate dependency jurisdiction and give legal and physical custody of
E.A. solely to father. The court
held the jurisdictional/dispositional hearing two days later on October 19.
Counsel
for mother requested a continuance because of the late notice of the agency’s
change in position. The juvenile court
denied this request, and mother claims the denial of this request constituted
structural error. Alternatively, she
maintains that the denial was an abuse of discretion.
Mother’s claim of
that the agency did not comply with Ca
