In re Jose N.
Filed 3/21/13 In re Jose N. CA2/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND
APPELLATE DISTRICT
DIVISION
ONE
In re JOSE N., A Person Coming
Under the Juvenile Court Law.
B242139
(Los Angeles
County
Super. Ct.
No. CK77184)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Respondent,
v.
JORGE N.,
Appellant.
APPEAL from orders of the Superior
Court of
Motion to dismiss denied.
Lauren K. Johnson, under
appointment by the Court of Appeal, for Appellant.
John F. Krattli, County Counsel,
James M. Owens, Assistant County Counsel, and William D. Thetford, Deputy
County Counsel, for Respondent.
_______________________________
Jorge N. (father) appeals from orders regarding
visitation after his son Jose was put into guardianship with his maternal aunt,
contending the trial court improperly granted the aunt authority to prohibit
visitation and improperly terminated dependency jurisdiction. We conclude father forfeited his claims, which
also fail on the merits.
BACKGROUND
A. Prior Proceedings
This is the second appeal in this matter. We take the preliminary background facts from
our opinion in the first appeal. (
On May 8, 2009,
the Los Angeles Department of Children and
Family Services (DCFS) filed a dependency petition under Welfare and
Institutions Code
title="">[1] section 300, alleging Gabriela R. (mother)
physically abused her eight-year-old son Jose N., engaged in violent altercations
with a male companion in Jose’s presence, and failed to obtain appropriate
medical care for Jose. The petition and
detention report stated father’s whereabouts were unknown.
Jose began living with a maternal
aunt, Martha R., in April 2009. In May
2009, DCFS initiated a parent locator search for father but was unable to
locate him until February 2011, although it was undisputed he had been paying
child support from New Mexico
since 2008. In the meantime, the trial
court found father was the presumed father, adjudicated the petition, removed
Jose from mother’s and father’s custody, ordered reunification services for
mother, later terminated those services, and set the matter for a permanency
hearing under section 366.26. At an
October 2010 hearing, Jose told the juvenile court he wanted Martha R. to adopt
him.
Before the permanency hearing,
father contacted DCFS, traveled to California, submitted to Live Scan (an
electronic fingerprinting system that checks an individual’s criminal history),
visited Jose, and sought further visitation and custody. He represented that he lived in New Mexico
with his wife and eight-year-old stepdaughter, could support Jose financially,
and would move to a three-bedroom home if Jose came to live with him.
However, Jose told the court he
still wanted his aunt to adopt him and would “never change†his answer. DCFS reported he was “very scared about [the]
possibility [of] leaving California to live with his father in New Mexico,†and
he did not want to have visits with father if doing so meant he would have to
move. He did not know if he wanted to
visit father in New Mexico, and would sometimes refuse to speak with father on
the telephone.
Father appeared for a hearing on July 15,
2011, and requested unmonitored visitation with Jose in New Mexico. However, Jose’s counsel informed the court
that Jose preferred that the visits take place in California.
The court ordered monitored visits
to occur in California.
In October 2011, DCFS reported Jose
had said that “when he talks to [father] by telephone, he gets hurt by father
and does not want to talk to him for a long period of time.†In a status review report in November 2011,
DCFS reported: “Jose continues to have
telephonic conversation with father twice a week for a few minutes. Jose states that he is uncomfortable talking
with father.†DCFS also stated that
“[i]nteraction with father is distasteful to Jose and any further forced
interaction with father would be a disruption to Jose’s life and not in his
best interest at the present time.†DCFS
also reported that “Jose stated that he is uncomfortable with his telephone
calls because father tells Jose that he comes to California and wastes his time
and money. [The social worker] asked
Jose if he would like to have a visit with father in New Mexico and Jose
stated no. [The social worker] asked if he would like to
live with father, Jose stated no. On
10/14/11, 10/21/11 and 10/28/11, [the social worker] monitored telephone
contact between Jose and father. [The
social worker] observed Jose to be very uncomfortable during the telephone
contact. Jose had agreed to talk with
his father for 5 minutes and did not want to be on the phone a minute
more. When 5 minutes elapsed, Jose
informed [the social worker] that he did not want to talk anymore. . . . Jose refused to talk with father after the
last visit on 11/10/11. Jose does not
have any type of bond with his father and is not willing to attempt to develop
one.†In December 2011, DCFS reported
Jose told a social worker he wanted no further telephone contact or visitation
with father, and stated he wanted to be adopted by Martha R. and have the
dependency case closed. Jose’s therapist
recommended that telephone contact between Jose and Father be at Jose’s
discretion “[d]ue to Jose’s consistent discomfort with having weekly phone
contact with father.â€
DCFS recommended the juvenile court
order legal guardianship as the permanent plan for Jose.
Father filed a section 388 petition
in which he asked the juvenile court to vacate all orders and findings made
after the disposition hearing, order family reunification services for him, and
place Jose with him in
arguing he had not received proper notice of the dependency proceedings. The juvenile court denied father’s section
388 petition, noting Jose and father did not have the “kind and quality
relationship†where the court could place Jose with father. Although Jose’s counsel informed the court
Jose no longer wanted to visit with father, the court ordered that father was
entitled to monitored visitation.
Father filed an appeal from the
order denying his section 388 petition, but we affirmed the order on October
30, 2012. (In re Jose N. (Oct. 30, 2012, B238244) [nonpub. opn.].) We observed that “Father had had no contact
with Mother or Jose for well over a year before these dependency proceedings
commenced. At the time of the hearing on
Father’s section 388 petition, Jose was nearly 11 years old and had been living
with Martha [R.] for two and a half years.
Father had had nine months to reestablish a relationship with Jose
between the time Father learned of the dependency proceedings and the juvenile
court denied the section 388 petition.
Jose decided he wanted no further contact with Father, and his therapist
concluded such contact should be at Jose’s discretion. Throughout the dependency proceedings, Jose
maintained he wanted to live with Martha [R.]
Regardless of whether Father can establish DCFS should have located him
sooner, he cannot establish it is in Jose’s best interest to be placed with
Father or to have his permanent plan delayed while Father attempts to reunify
with him.†(Id. at pp. 12-13.)
B. Current Proceedings
In February 2012, father and Jose had the first of what
was intended to be bimonthly conjoint counseling sessions designed to foster a
relationship between them. However,
because of logistical issues and father’s financial hardships, it was the only
session.
Jose began receiving weekly
2009. On May 1, 2012, Brooke McLean,
Ph.D., Jose’s clinical therapist, expressed concern that Jose had attended only
half of the last ten scheduled visits.
Dr. McLean reported that Jose’s presenting problems included
“hyperactivity, anxiety, fearfulness, inattention, distractibility, difficulty
completing tasks, irritability, defiance, and poor social skills.â€
According to Martha R., Jose’s symptoms worsened when
father began making attempts to be part of his life, and Jose was “wetting the
bed almost every night and despite her refusal, she often will find him
sleeping at the foot of her bed in the morning.†Dr. McLean reported that “Jose has expressed
feeling uncomfortable speaking with his father on the phone and views his
father in very concrete and rigid terms.
In therapy Jose has expressed quite rigid and inflexible opinions about
his father, giving no allowance for understanding or forgiveness despite any
efforts his father has made. His
resistance and defensiveness regarding his father appears to be [a] reasonable
reaction and coping mechanism to manage his increased anxiety about the threat
he likely perceives from his father. His
father’s recent return to his life, and the father’s intention to obtain
custody of Jose, likely is seen as a threat to the stability of his home with
Martha [R.], the caregiver who has been providing him with a stable and
nurturing home for the past several years.
Additionally, father appears to lack insight and ha[s] unrealistic
expectations about the time and effort necessary to establish a relationship
and meaningful connection with a son he has virtually never had a relationship
with.â€
Martha R. and father agreed that
father would have telephonic contact with Jose three times per week, on Monday,
Wednesday and Friday, at 7 pm. Although
father told a social worker his calls during the week of March 26 to April 6,
2012 went unanswered, they spoke on the phone regularly thereafter. Father stated he generally spoke with Jose
for only five minutes, during which Jose did not say much. He said Jose had “an attitude†with him and
did not want to talk.
Jose told a social worker he did
not like to talk to father. He did not
know what to say and would become uncomfortable and anxious.
Martha R. reported that father
would become upset with Jose during telephone calls when Jose had little to
say. He hung up on Jose during one
telephone call because Jose referred to Martha R. as “mom†and her husband as
“dad.†Father also became upset during a
visit at the courthouse when he attempted to help Jose with his homework and
the child told him he was not doing a problem correctly. Martha R. also complained that father tended
to call at times other than those agreed upon and would then report that she
was unavailable to take the calls.
In early May 2012, Father called
Jose and told him he was “‘tired of begging’†and would not call anymore, after
which Jose went to his room, wanting to be alone.
DCFS reported that Jose continued
to do well in Martha R.’s home. Martha
R. agreed to facilitate telephone calls between father and Jose three times a
week, but Jose was uncomfortable talking to father, would not know what to say,
and would become anxious and not want to talk.
Martha R. nevertheless encouraged Jose to talk to his father.
DCFS also reported that Martha R.
had been required to enroll in therapy for the completion of an adoption home
study, but failed to do so. Martha
stated she received mental health therapy for three to four years to deal with
anxiety. She stopped due to insurance
issues but was working to reinstate her mental health care.
Father’s attorney, Anuradha Khemka,
was relieved at the May 16, 2012 review hearing and Brenda Perez Rodriguez, of
the same law firm, was appointed. Father
did not attend that hearing or the permanency hearing on May 21, 2012. At the permanency hearing, Rodriguez informed
the court she had had no contact with father—his phone was disconnected—and had
received no instructions. She raised no
objection to the appointment of the legal guardian, visitation orders, or
termination of jurisdiction.
The juvenile court appointed Martha
R. as Jose’s guardian and terminated dependency jurisdiction.
Mother’s counsel then asked, “Just for the record,
could the court please state the visitation rights for the parents?†The court responded as follows: “Do I have it on here? Mother will have monitored visits, minimum
one time per month for two hours and it must be confirmed 24 hours in advance,
time and place and monitor to be determined by the legal guardian. [¶]
Monitored phone calls one time a week with permission as arranged by the
legal guardian and parents. That will
include mother and father.â€
On the same day, the court signed an order providing
visitation as follows: “Mother and
father: monitored minimum one time per month for 2 hours and must be confirmed
at least 48 hours in advance; time, place and monitor as determined by legal
guardian; monitored phone calls minimum 1x/a week as arranged by legal guardian
and parents.â€
Father filed a timely appeal,
stating in the notice of appeal that he appealed the following order: “May 21, 2012: Maternal Aunt, Martha [R.] was
appointed Legal Guardian of Jose [N.].â€
DISCUSSION
Father expressly disclaims any
challenge to the installation of Martha R. as Jose’s legal guardian. He contends instead that the visitation order
failed to satisfy the requirements of section 366.26 and the juvenile court
should have retained dependency jurisdiction in order to supervise visitation
and Jose’s and Martha R.’s mental health therapy. We conclude father has forfeited the claims,
which at any rate fail on the merits.
A. Waiver
In early May 2012, father told Jose
he was “tired of begging†and would not call anymore. A few days later he failed to attend a
section 366.26 review hearing and five days after that missed the permanency
hearing. He made no attempt below, and
makes none on appeal, to explain these absences. If father had concerns about visitation and
jurisdiction, the juvenile court was the place to raise them. His failure to take part in the review and
permanency hearings below precludes his raising the concerns here. (In re
Anthony P. (1995) 39 Cal.App.4th 635, 641 [failure to object to visitation
order waived right on appeal to contend permitted visitation was
insufficient].)
We will
nonetheless briefly address the merits of father’s claims if only to
demonstrate that his newly appointed counsel did not render ineffective
assistance. (§ 317.5 [“All parties
who are represented by counsel at dependency proceedings shall be entitled to
competent counselâ€]; see Deborah S. v.
Superior Court (1996) 43 Cal.App.4th 741, 748, fn. 5.)
B. Termination
of Dependency Jurisdiction
Father first argues termination of
dependency jurisdiction was improper because it was “inconsistent with the
court’s desire to allow father to continue to come forward in a positive
way.†The juvenile court evinced this
desire at the May 16, 2012 review hearing when discussing the negative impact
of phone conversations between father and Jose, and father’s recent refusal to
call.
Section 366.3, subdivision (a)
provides in pertinent part: “If a
juvenile court orders a permanent plan of . . . legal guardianship . . . , the
court shall retain jurisdiction over the child . . . until . . . the legal
guardianship is established . . . . the court may continue jurisdiction over
the child as a dependent child of the juvenile court or may terminate its
dependency jurisdiction and retain jurisdiction over the child as a ward of the
legal guardianship, as authorized by Section 366.4.†“If, however, a relative of the child is
appointed the legal guardian of the child and the child has been placed with the
relative for at least six months, the court shall, except if the relative
guardian objects, or upon a finding of exceptional circumstances, terminate its
dependency jurisdiction and retain jurisdiction over the child as a ward of the
guardianship, as authorized by Section 366.4.â€
(Ibid.)
Father does
not explain how retention of dependency jurisdiction would further positive
communication between him and his son.
When jurisdiction existed and the telephonic visitation was three times
per week, the conversations were brief and unpleasant for both parties, and
were eventually terminated by father.
Nothing suggests retention of dependency jurisdiction would facilitate a
different result.
Father also argues the juvenile
court should have retained jurisdiction to ensure that Martha R. takes Jose to
his mental health therapy sessions and enrolls in therapy herself. The argument is predicated on father’s
contention that Jose misses half of his therapy sessions and Martha R. has
abandoned hers. The predicate is
unsupported by the record. By May of
2012 Jose, who began therapy in 2009, had missed half of the last ten scheduled visits.
Although this may be cause for concern, it does not by itself suggest
Jose misses half of all visits or that the court should supervise his
therapy. Similarly, the record reflects
Martha R. was working to reinstate her own mental health therapy, and nothing
suggests she requires court assistance or supervision to do so.
Neither father’s problem with
telephone conversations nor minor logistical difficulties in Jose’s and Martha
R.’s mental health therapy constitute exceptional circumstances justifying
retention of dependency jurisdiction.
C. Visitation Order
Father
contends the order that only telephonic visitation occur fails to satisfy the
visitation requirement of section 366.26, and the requirement that he obtain
Martha R.’s permission for telephonic visitation is a restriction that is
unsupported by substantial evidence and constitutes an abuse of discretion. We disagree with both contentions, disposing
of the first with the simple observation that the court did not order that only
telephonic visitation occur, but rather ordered that visitation occur a
“minimum one time per month for 2 hours,†time and place to be determined by the guardian. It thus ordered telephonic visitation in
addition to personal visitation.
The restriction on telephonic
visitation was not improper. When a
juvenile court terminates jurisdiction in a dependency case it may issue an
order for visitation of the dependent child.
(§ 362.4.) In doing so, it has
broad discretion to determine what serves the child’s best interests, and its
decision will not be reversed absent a clear abuse of that discretion. (Bridget
A. v. Superior Court (2007) 148 Cal.App.4th 285, 300; see also
452, 465 [juvenile court’s visitation order reviewed under the abuse of
discretion standard].) Any problem that
develops respecting visitation may be addressed within the court’s continuing
guardianship jurisdiction. (§§ 366.3,
subd. (a), 366.4; In re Twighla T.
(1992) 4 Cal.App.4th 799, 806; California Rules of Court, rules 5.740, subd.
(c) [hearing on petition to modify guardianship orders], 5.570 [section 388
petition must be filed to modify guardianship orders].)
We note there appears to be some
confusion as to what the visitation order actually states. At the permanency hearing the trial court
stated father could have “[m]onitored phone calls one time a week
guardian and parents.†(Italics
added.) But that same day, the court
signed an order providing for “monitored phone calls minimum 1x/a week as
arranged by legal guardian and parents.â€
The only difference between the oral and written orders is addition of
the phrase “with permission†in the oral order.
The parties make much of this difference and instruct us at length on
rules governing the relative primacy of oral and written orders, father arguing
application of these rules leads to the conclusion that telephonic visitation
is restricted, and DCFS arguing that Martha R.’s permission is not required
before telephonic visits occur.
We need not reach the primacy issue
because even if Martha’s permission is required before telephone calls between
father and Jose may occur, such a condition would not exceed the bounds of
reason.
A visitation order is tailored to
serve the interests of the minor, not the parent. (In re
Julie M. (1999) 69 Cal.App.4th 41, 50.)
Only the juvenile court may determine the right and extent of visitation
by a noncustodial parent, but it “may delegate to a third party the
responsibility for managing the details of visits, including their time, place
and manner.†(In re T.H. (2010) 190 Cal.App.4th 1119, 1123.)
Here, telephonic visitation between father and
Jose was at times problematic, as father sometimes disapproved of Jose’s
conversational habits, while Jose shrank from father’s disapproval and found
the conversations to be unpleasant. The
juvenile court nevertheless ordered that telephonic visitation occur “one time
a week,†with Martha R.’s permission.
We do not read the order as giving Martha R. the
authority to prevent telephonic visitation altogether. On the contrary, it seems clear the juvenile
court established the extent of telephonic visitation—one time per week—and
delegated to Martha R. the authority only to set the time, place and manner of
it. Father adduces no difficulty created
by this arrangement other than his inability to reach Jose for a period of one
week in March 2012. From this he
suggests Martha R. will unreasonably interfere with telephonic visitation. We reject the suggestion. Martha R. encouraged Jose to speak with
father and agreed to even more visitation—three times per week—than was ordered
by the court. Father’s inability to
reach Jose every time he calls does not suggest Martha intends to prevent
visitation.
The visitation order was not an
abuse of discretion.
D. Motion to Dismiss
DCFS moves to dismiss the appeal,
arguing father failed to identify the orders granting visitation and
terminating dependency jurisdiction in his notice of appeal, and raised no
argument in his appellate briefs regarding the order identified in the notice,
appointing Martha R. as Jose’s guardian.
DCFS argues the appeal should be dismissed on the further ground that
father forfeited his claim that the visitation and termination orders were
improper.
We decline to dismiss the appeal
based either on the defective notice of appeal (California Rules of Court, rule
8.100(a)(2) [“The notice of appeal must be liberally construedâ€]) or on the
forfeiture, as father is entitled to a decision on whether the issues he raises
have been preserved.
DISPOSITION
The juvenile court’s orders are affirmed. Respondent’s motion to dismiss the appeal is
denied.
NOT TO BE PUBLISHED.
CHANEY,
J.
We concur:
MALLANO, P. J.
JOHNSON, J.
name="_ftn1" title=""> [1] Undesignated statutory references are to the
Welfare and Institutions Code.
